Jason Mazzone (University of Illinois College of Law) has posted Federalism Unwritten (2013 University of Illinois Law Review 1871) on SSRN. Here is the abstract:
Accounts of unwritten constitutional principles have tended to overlook unwritten principles of federalism. Using the tools that Akhil Amar provides in his book, America’s Unwritten Constitution, this Article seeks to correct that shortcoming. It begins the task of identifying the unwritten principles of federalism that developed historically and that shape our modern constitutional system. The Article does so by taking up an important historical case study: how, consistent with the Constitution’s federal design, were militiamen to be armed? The written Constitution assigns power to Congress to “provide for...arming...the Militia,” but what exactly this power meant in practice was unclear. Resolving the scope of this federal power — a power that could affect the lives of virtually every American citizen — generated widespread and passionate debates when, beginning in the first days of the Republic, efforts turned to ensuring that militiamen had the arms and equipment they needed to perform their national security role. These debates entailed the first significant national conversation about the meaning of American federalism that occurred after the drafting and ratification of the (written) Constitution. Unearthing this conversation enriches our understanding of federalism’s historical origins and its contemporary meaning. Several lessons emerge. While today federalism is often conceived as entailing divisions of authority, historically, federalism was highly dynamic: it involved overlapping federal and state jurisdiction and ongoing interactions between the states and the national government. A key component of our early federal system was the dependence of the federal government upon the states to put in place federal programs. This dependence gave the states authority to limit the reach of federal law, to decide which federal laws would apply at all, and to resist and curtail federal laws that were inconsistent with state policies. Today, courts play a key role in enforcing federalism limits on national power. Historically, the meaning of federalism developed in Congress and the federal executive branch, in the legislatures of the states and among their governors, and from the contributions of ordinary Americans. While questions of federalism are nowadays often discussed separately from issues of individual rights, historically, federalism and liberty were closely and inevitably intertwined: the language of federalism was often the language of individual rights, and vice-versa.
A recent episode highlights the importance of incorporating federalism into accounts of our unwritten Constitution. During the litigation over the Patient Protection and Affordable Care Act of 2010 that culminated in the Supreme Court’s 2012 decision in NFIB v. Sebelius, challengers to the federal individual health insurance mandate contended that never before had Congress required Americans to purchase something (in the case, an insurance policy). Supporters of the healthcare mandate responded that it was not unprecedented because in the Militia Act of May 8, 1792, Congress required militiamen to acquire their own arms and equipment. Neither side in the healthcare litigation had the story quite right, and this shared deficiency resulted from a common failure to understand the Militia Act in the context of the federalism principles this Article uncovers.