Article

Federal Decentralization

Constitutional law relies on the diffusion of powers among different individuals in different institutions to produce many desirable institutional goods: checks and balances, democratic accountability, and effective government, for instance. Federalism and the separation of powers have been presented as the primary institutional arrangements generating this diffusion. Scholars and jurists alike, though, have largely neglected another form of diffusion: federal decentralization. Federal power cannot be appropriately diffused if it is geographically concentrated in a single place. Federal decentralization ensures that federal officials in places distant and therefore different from Washington compete with and constrain federal officials in Washington. This Article identifies and evaluates federal decentralization as a dimension of constitutional law.

This Article first uncovers the long but lost history of federal decentralization, and places it at the core of our constitutional experience from the Founding to its current moment on constitutional center stage. The First Congress located important federal officials in a different metropolitan area than the President and Congress, and arranged for the Congress and the White House to operate in different buildings in different neighborhoods. The current Congress has considered legislation proposed by both parties that would increase federal decentralization.

This Article then argues that federal decentralization makes visible the diffusions of power that federalism and separation of powers cannot provide and, executed properly, attempts to provide them. It gives federalism the voice it needs and separation of powers the exit it lacks. Federalism aspires to empower local majorities, and federal decentralization enhances the voice of local majorities by making them empowered neighbors rather than unfamiliar strangers to federal officials—and even permits local majorities to act as federal officials themselves. The separation of powers aspires to generate rivalrous branches, but rival interests can only be generated by ensuring that sometimes federal officials exit Washington rather than operate in it. Federal decentralization, though, risks injecting excessive diffusion into the American system. It therefore requires its own vocabulary to recognize and resolve the persistent set of institutional design challenges that it raises.

Justice Souter’s Common Law

The first-year law-school curriculum aims to teach students the “common law method.” But exactly what sort of judicial reasoning that method permits and requires has long been the subject of debate. There are multiple models of common law reasoning, not just one. This Article identifies one such model that legal scholars have yet to recognize as a distinct theory of common law adjudication. It is an approach I ascribe to former Justice David Souter.

Seeing Justice Souter as a common law judge is hardly novel; in fact, it is the conventional wisdom about him. But in my view, Souter’s understanding of the process of case-by-case adjudication reflects deeper philosophical commitments—and, for that reason, carries with it more radical implication—than has been appreciated. To support this claim, I compare Souter’s understanding of the common law to two better known rivals—Professor Ronald Dworkin’s “law as integrity” and Judge Richard Posner’s legal pragmatism. I then show how each of the three models flows from its own more general model of practical reasoning.

The upshot of this comparative analysis is a clearer view of a model of common law reasoning that combines elements of the other two but that rejects an assumption common to them both. Like Dworkin’s, Souter’s model sees legal principles embodied in case law; but like Posner’s, it is empiricist and pragmatist in spirit. It can coherently combine these elements only because, unlike either of its rivals, Souter’s model treats factual and evaluative forms of reasoning as continuous with each other, rather than dichotomous. In rejecting the fact/value dichotomy, Souter accords a much greater role to history in common law reasoning than do either Posner or Dworkin. The result is an understanding of common law adjudication that is at once more traditional and more radical than either of its more famous counterparts. I examine that more radical dimension at play in some of Justice Souter’s most famous and controversial opinions, including the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

The Damagings Clauses

Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the Federal Constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied.

This Article recovers the hidden history of the state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents.

This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.

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