McConnell and clear mistake

Michael McConnell michael.mcconnell at LAW.UTAH.EDU
Wed Dec 31 16:28:57 PST 1997

In response to Sandy Levinson:

I, too, am not sure how Thayerian I want to be. It does
seem that some contexts (perhaps those mentioned in the
Carolene Products footnote, perhaps those involving
boundaries between democratic branches (where it seems to
me that Jesse Choper was 180-degrees wrong)) warrant
heightened judicial intervention. RFRA is an appealing case
for deference because the limitations it imposed on the
states were equally limitations on the federal government,
thus providing a kind of structural guarantee against
overreaching. My general argument does not depend on the
degree of Thayerism one espouses. To whatever extent
Thayerism controls, to that extent congressional authority
to differ from judicial interpretations should be

As to Printz:
As an original matter, commandeering may have been a close
question, but I think Scalia has the best of the argument,
even if he does not present the case very well. The
nationalists (a/k/a Federalists) opposed commandeering, but
for the ironic reason that they thought it gave the states
*too much* power (that is, power to frustrate enforcement
of federal law). The anti-federalists tended to defend
commandeering, but only in comparison with the even worse
alternative of direct national government power over
individuals. No one supported the modern (anti-Printz) view
that the feds should be able both to commandeer and to
enforce directly. Moreover, the anti-commandeering view is
most consistent with the general theory of dual
sovereignty, in which power is divided between the two
levels of government but neither level can control the
actions of the other.

Even if the issue is less than clear as an original matter,
it seems to me that this is one question on which
consistent practice and interpretation has reached a clear
resolution. In the antebellum period, both
arch-nationalists like Story and states-rights advocates
like Taney embraced strong anti-commandeering principles.
(See Prigg (Story) and Dennison (Taney)). In the late 19th
Century, anti-commandeering was taken to absurd heights.
See Collector v. Day. During the New Deal, the Court
climbed down from these heights, but in New York v. United
States ((1946), not a single Justice took the position that
the federal government may freely tax or regulate the
activities of state government.

Perhaps even more decisive is the fact that, across the
over 200 year history of this country, Congress has
consistently refrained from passing commandeering statutes.
One of the most remarkable things about the government's
brief in Printz was its inability to cite other statutes
that would be endangered if the Court struck down the Brady
Bill. The only previous example of which I am aware was a
provision of the Clean Air Act that, when invalidated by a
lower court, Solicitor General McCree declined to defend in
the Supreme Court.

Printz thus establishes a bright-line, easily administrable
and understood rule, completely consistent with past
practice, that enforces an undoubted constitutional value.

In my opinion, an unbroken practice of this sort is
entitled to precedential weight exceeding any single
decision of the Supreme Court. Against it, even the
scholarship of Evan Camiker pales.

-- Michael McConnell (U of Utah)

More information about the Religionlaw mailing list