Constitutional Law Response 122 Harv. L. Rev. F. 98

The Constitutional Legitimacy of Freestanding Federalism

Responding to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009)

Response To:


In Federalism and the Generality Problem in Constitutional Interpretation, Professor John Manning takes aim at the Rehnquist Court’s practice of invoking freestanding, textually unspecified principles of federalism as a basis for limiting congressional power. Manning identifies this practice at work in the “new federalism” cases — in particular, the clear statement requirement of Gregory v. Ashcroft; the anticommandeering rule of New York v. United States and Printz v. United States; and the protection of state sovereign immunity in state court of Alden v. Maine. Manning argues that such invocation of freestanding federalism in constitutional interpretation is fundamentally at odds with the Court’s textualist turn in statutory interpretation, where the Court has rejected general purposive analysis because it fails to respect the reality of legislative compromise. Manning claims that resort to abstract federalism purposes is similarly disrespectful of the processes and compromises used to adopt and amend the Constitution.

In this response, Professor Gillian Metzger provides two central criticisms of Manning’s argument. First, she argues that the fact of constitutional compromise cannot shoulder the analytic work that Manning assigns to it. Second, she argues that Manning’s argument is far more destabilizing to existing doctrines and long-established practices of constitutional interpretation than he acknowledges. She concludes, however, that although Manning does not deliver a knockout blow to freestanding federalism, Manning’s article makes a forceful case for why courts should proceed cautiously when invoking general federalism principles, and for why courts may not be the venue in which consideration of freestanding federalism should primarily occur.