Prof. Lawson has asked me to elaborate about the relationship of state and federal governments. What difference, if any, is there between the limit on states imposed by the Due Process of Law guarantee in the Fourteenth Amendment, and the limit imposed by the similar guarantee in the Fifth? And, to put it in a concrete case, supposing I think the individual mandate in Obamacare is unconstitutional (as indeed I do; I am currently litigating one of the many challenges to the mandate)—do I also think a state mandate is unconstitutional?
First, some background. I think it’s actually not as clear as Prof. Lawson thinks whether or not states “trace their basic legal authority to the federal Constitution.” As I explain more fully in my article, Privileges, Immunities, and Substantive Due Process, antebellum legal scholars were divided over this issue due to certain ambiguities in American legal history. Many argued that the states were basically sovereign entities, united by a sort of treaty. The most extreme of these was John C. Calhoun, but even relative moderates, like Pennsylvania’s Chief Justice Jeremiah S. Black, argued that except where explicitly barred by the federal Constitution, the states were free to act in whatsoever manner they pleased—that states enjoyed the sovereignty that William Blackstone called “supreme, irresistible, absolute authority.”
Pitted against them were the Lockeans, most notably John Quincy Adams and his admirers, like Charles Sumner, William Seward, and Abraham Lincoln. They argued that the principles of the American constitutional order—derived from the Declaration of Independence, the Anglo-American common law, and other sources—limited the authority of states even in the absence of explicit constitutional limits. This view was generally associated with anti-slavery forces, either radicals like Frederick Douglass, who argued that slavery was already unconstitutional even before the ratification of the Thirteenth Amendment, or moderates who thought that while the Constitution protected slavery in states where it already existed, it barred, or allowed Congress to bar, its expansion. They all agreed that no state could be legitimate and claim “supreme, irresistible, absolute authority.”
These thinkers rejected the states-rights theory in favor of the theory of “paramount national citizenship,” which held that people were citizens first of the nation, and then only derivatively of their home states. They relied heavily on the original Privileges and Immunities Clause in Article IV—look, for example, at Adams’ objection to the admission of Missouri, or Joel Tiffany’s treatise on the Constitution. Rufus King and others had explained in 1787 that the states had never been sovereigns, lacked “the peculiar features of sovereignty,” and “as political beings, they were dumb” and “deaf”—and had derived their sovereignty from their membership in the federal union. Lincoln reiterated that point in 1861 when he argued that states derived their sovereignty from the federal union.
After the clash of visions about federal and state power had erupted into Civil War, victorious Republicans hoped to settle the question forever by adding the Fourteenth Amendment, to constitutionalize what they had always thought true: that Americans are citizens of the nation first, and of states only derivatively, and that their natural and common law rights are protected against state interference by the federal government. That’s why the Fourteenth Amendment starts out by defining citizenship nationally. (States don’t even have the constitutional authority to determine who their own citizens are! That’s a pretty pathetic “sovereignty”!) Then the rights of all Americans are secured against state infringement by an additional Privileges or Immunities Clause, a second Due Process of Law Clause, and a brand new Equal Protection Clause.
Of course, this effort to write the theory of “paramount national citizenship” into the Constitution was crippled in the cradle by the Slaughterhouse Cases, which ruled—without any basis, and without any inquiry into original meaning or anything at all except the Court’s mere say-so—that the Fourteenth Amendment wasn’t meant to “radically change the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.” In fact, that’s precisely what it was meant to do. (It comes as no surprise that Jeremiah Black, one of the great spokesmen for the states-rights theory of the Constitution, was the attorney for Louisiana in Slaughterhouse, and that he exulted over his role in demolishing one of the keystones of Reconstruction.)
Before I get too far afield, the point is that, while states don’t derive their “basic legal authority” from the same source as the federal government, citizens of the United States do derive their basic political protection from, and owe their basic political allegiance to, the union, not the state. And that is why states must remain within the boundaries of Due Process of Law just like the federal government. States are not departments of the federal government, and they are not governments of enumerated powers, but they are bound within federal constitutional limits, including provisions that require them to respect natural rights, common law rights, and the rights articulated in the federal Constitution.
This is why the “incorporation” doctrine is best seen as an aspect of the Due Process of Law guarantee. Properly understood, incorporation is a generalized limit against arbitrary state action—not a straight transfer of the Bill of Rights guarantees to the states. The federal government may not take property without paying for it, for instance, because of the specific command of the Fifth Amendment. But in my view—and in the Chicago B. & Q. Court’s view—the due process clause forbids states from taking property without paying for it only because, and to the extent that, doing so would be an unauthorized, arbitrary assertion of power. Thus the Fourteenth Amendment’s Due Process Clause places a more generalized restriction on states, one that still leaves them an indefinite range of powers. It puts a ceiling on their ambitions by depriving them of the ability to choose their citizens, protecting the privileges or immunities of those citizens, and then barring states from acting in ways that violate the principles of lawfulness—principles which, of course, include the aforementioned rights, but also include the anti-arbitrariness principles I’ve mentioned. These overlap, but are not identical. For example, I think one could make a good argument that laws banning gay marriage do not deprive persons of natural rights, traditional common law rights, or rights articulated in the Constitution, but are arbitrary exercises of ipse dixit power (and more obviously violate the Equal Protection Clause). This position hardly serves my libertarian predilections, but I think it’s the best reading of the post-Civil War Constitution’s federalist structure.
While the individual mandate in Obamacare is unconstitutional because it exceeds Congress’ power under the Commerce and Necessary and Proper Clauses—and is thus outside the enumeration of powers—the Massachusetts individual mandate could only be unconstitutional if it deprives a person of a natural right, of a traditional common law right, or of a right articulated in the Constitution, or if it is an exercise of arbitrary, ipse dixit power. I don’t know enough about that mandate to reach a conclusion, but I think the right approach is suggested by Loan Association v. Topeka. That case differs from the mandate cases in that it involved a tax that went directly to a private industry, rather than a statute compelling consumers to buy something from a private firm, but the principles remain sound:
It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use…. [I]n deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, [courts] must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.
But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difficulty in holding that this is not such a public purpose as we have been considering. If it be said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importunities of two-thirds of the businessmen of the city or town.
One major problem with the individual mandate, of course—as highlighted in our brief in the Florida case—is that it is not a tax, but a device concocted to evade the politically unpopular route of taxation. Taxing people to pay for government-operated hospitals would probably be constitutional, but would have polled badly. So, by forcing consumers to buy from a private firm, and forcing private firms to serve consumers, Congress evaded the traditional democratic process for providing government services. RomneyCare likewise essentially co-opts the insurance industry to provide a subsidized public service instead of taking the honest, but politically unpopular, route of seizing the insurance industry through eminent domain or establishing an alternative socialized medicine scheme. I would think those who consider “due process” to be satisfied so long as the legislature abides by traditional rules of promulgation would be unnerved by such a novel evasion of political accountability.