Dorf on Commandeering and Originalism

|The Volokh Conspiracy |

Last week in a Dorf on Law blog post, Michael Dorf was objecting to the anti-commandeering doctrine of New York v. United States and Printz v. United States. In it he said this:

I'll begin by saying that I don't like the anti-commandeering doctrine in any context. It strikes me that the dissenters were right in New York and Printz. Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.

On Twitter, I reacted to his reference to the Articles of Confederation and the following exchanged ensued:

BARNETT: How about returning to original scope of Congress's powers? Then less need for anti-commandeering doctrine. Deal?

DORF: If we return to the economic conditions that prevailed at the Founding, I'll take that deal!

BARNETT: That's cheating. You don't get to rely on Articles of Confederation, etc. then. Can't have it both ways.

DORF: AoC shed light on orig understanding. Changed circumstances bear on how it applies 2day. Follow-up post nxt wk.

BARNETT: Dorf in short: follow original understanding when it suits you? And expansive reading of Congressional power is another change in circumstances. Can everyone play?

DORF: L Lessig proposed that idea in 1995 Sup. Ct. Rev. 125. It's not crazy but I disagree. I'll discuss Monday.

True to his word, on Monday, Dorf offered his response here. In it, he makes a standard nonoriginalist law professor move:

Barnett misunderstands what I was saying. Originalists think that the meaning of any provision of the Constitution simply is the original understanding. Nonoriginalists like me mostly think that the original understanding is an important starting point in construing the constitutional text, but not necessarily the end point. In the anti-commandeering cases, the majority (authored by Justice O'Connor in New York v. United States and by Justice Scalia in Printz v. United States) offered a historical, i.e., originalist argument for the anti-commandeering principle. Accordingly, the dissenters-who offered the counterargument that begins with the Articles of Confederation-were responding that the originalist argument for the anti-commandeering principle fails on its own terms. Neither they nor I said or assumed that one must always be bound by the original understanding, regardless of intervening changes in the world. Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism in all matters relating to federalism or anything else.

Because Dorf's response evokes the entirety of the originalism-nonoriginalism debate, I cannot fully respond to this move in a blog post. But I can say that Dorf almost gives away the store when he says this: "Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism in all matters relating to federalism or anything else." A more completely accurate statement of his position would be "Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism anything at all in all matters relating to federalism or anything else."

As the rest of his blog post makes clear, like other living constitutionalists, "changed circumstances" does all the work in Dorf's analysis. If adhering to the original meaning of the text fits today's "circumstances," then it should be followed. But if "circumstances" have changed, then it need not be followed. So all the matters is what meaning fits today's circumstances. Whether or not it is a "starting point," the original meaning plays no role at all in the "ending point" of the analysis. All that matters is the meaning that, in Dorf's view, "works" today.

So his invocation the Articles of Confederation is a mere make-weight to his real argument based in existing circumstances, and this was the only point of my Tweet. For the record, I have no opinion on whether ordering state legislatures to enact laws would be an "improper" means of carrying into execution Congress's power under the original meaning of the Commerce and Necessary and Proper Clauses. (At least one scholar whose opinion I respect has privately made the argument to me that it would be, but because I don't know if he has written this, I do not want to use his name here.)

Perhaps the dissenters in New York and Printz were right on originalist grounds. Stranger things have happened. Unless they were prepared to adhere to original meaning, however, then this is largely a make-weight in their own argument. But I don't observe justices being as cavalier in as law professors at invoking "changed circumstances" to justify ignoring or overriding original meaning. So their use of the Articles did more real work in their dissenting analysis than in it does in Dorf's. Unlike him, they generally feel the need to clear the field of originalist arguments before they can make their nonoriginalist moves. We see this repeatedly in cases like Heller and Noel Canning.

My only points in my Tweets were that Dorf's invocation of the Articles gives his analysis a patina of faithfulness to the original meaning of the text of the Constitution to which his methodology is not entitled; and if everyone can play the "changed circumstances" game, I don't see why the modern expansive doctrines defining Congress's commerce power does not justify the anticommandeering doctrine as a means of preserving states from being made a mere appendage of the federal government. Without it, for example, state legislatures can be commanded by Congress to pass laws pertaining whenever Congress lacks the power to enact them itself.

I suspect that this rationale, and not an adherence to original meaning, is what motivated the Rehquist Court's adoption of the anticommandeering doctrine. As I have explained here, that Court generally took a "this far and no farther (without a justification that does not lead to a national police power)" approach in its New Federalism jurisprudence. As Dorf correctly notes, only Justice Thomas advocated a return to the original scope of the Commerce Clause.

Dorf then goes on to up the ante by claiming that the original meaning of "commerce" somehow also evolves with changing circumstances. But I should leave that issue to a separate post.