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Principles of Federalism: Repeal the 17th Amendment and Restore the Founders’ Design. We are a very specific and unique Constitutional Republic, not a progressives democracy!

August 5, 2011

Ramifications of Repealing the 17th Amendment

Engage, Volume 12, Issue 2 – July 29, 2011

Todd J. Zywicki, <!––>Ilya Somin<!––>

Ramifications of Repealing the 17th AmendmentThe 17th Amendment, ratified in 1913, replaced the election of U.S. senators by state legislators with the current system of direct election by the people. In this article, Professors Todd Zywicki and Ilya Somin of George Mason University School of Law debate whether repealing the 17th Amendment would restore the principles of federalism to the constitutional system by increasing state power, or whether repeal would have little if any effect on the respective powers of the federal government and the states. 

Ramifications of Repealing the 17th Amendment

August 2011

Federalism & Separation of Powers

Ramifications of Repealing the 17th Amendment

An Exchange Between Todd Zywicki and Ilya Somin

Repeal the 17th Amendment and Restore the Founders’ Design

by Todd Zywicki*

The election of United States senators was an essential part of the Founders’ original design for the Constitution. Ratified in 1913, the Seventeenth Amendment replaced the election of U.S. senators by state legislators with the current system of direct election by the people. By securing the Seventeenth Amendment’s ratification, progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.

Would repealing the Seventeenth Amendment be a panacea for America’s constitutional ills? No, of course not. Our constitutional culture has become too intellectually shallow and corrupted by decades of structural protections destroyed by expediency and special interests to believe that any single change could restore the constitutional culture.

But could reinstating the Founders’ design for the Senate provide a marginal step toward restoring constitutional government and deepening  citizen understanding about the Constitution? I believe it could.

The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty. To this end, the Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or “during good behavior.” And senators would be elected by state legislatures.

Empowering state legislatures to elect senators was considered both good politics and good constitutional design. At the Constitutional Convention in Philadelphia, the proposal was ratified with minimal discussion and recognized as the approach “most congenial” to public opinion. Direct election was proposed by Pennsylvania’s James Wilson but defeated ten-to-one in a straw poll. More important than public opinion, however, was that limitations on direct popular sovereignty are an important aspect of a constitutional republic’s superiority to a direct democracy. As Madison observes in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Election of senators by state legislatures was a cornerstone of two of the most important “auxiliary precautions”: federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the state governments would be in peril of being “swallowed up,” to use George Mason’s phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators’ constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.

The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent. Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends—through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions—would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.

There is no indication that the supporters of the Seventeenth Amendment understood that they were destroying federalism. But they failed to recognize a fundamental principle of constitutional design: that in order for constraints to bind, it is necessary for politicians to have personal incentives to respect them. “Ambition,” Madison insisted in Federalist 51, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed. Today, as historian Robert Higgs has observed, federal expansion creates a “ratchet effect.”

Just as important as its role in securing federalism, the Senate as originally conceived was essential to the system of separation of powers. Bicameralism—the division of the legislature into two houses elected by different constituencies—was designed to frustrate special-interest factions. Madison noted in Federalist 62 that basing the House and Senate on different constituent foundations would provide an “additional impediment . . . against improper acts of legislation” by requiring the concurrence of a majority of the people with a majority of the state governments before a law could be enacted. By resting both houses of Congress on the same constituency base—the people—the Seventeenth Amendment substantially watered down bicameralism as a check on interest-group rent-seeking, laying the foundation for the modern special-interest state.

Finally, the Framers hoped that indirect election of senators would elevate the quality of the Senate, making it a sort of American version of the House of Lords, by bringing to public service men of supreme accomplishment in business, law, and military affairs. There is some evidence that the indirectly-elected Senate was more accessible to non-career politicians than is today’s version. And research by law professor Vikram Amar has found that during the nineteenth century, accomplished senators such as Webster and Calhoun frequently rotated out of the Senate and into the executive branch or the private sector, with an understanding among state legislators—and, notably, the senator selected to fill the seat—that they could return to service if they wished to do so or were needed. Foes of the Seventeenth Amendment argued at the time that its enactment would spawn a deterioration in the body’s quality. Whether the modern titans of the Senate such as Trent Lott, Bill Frist, Harry Reid, and the late Ted Kennedy are superior to Webster, Clay, and Calhoun is to some extent a matter of taste. But it is likely that reinstating the original mode of selection would change the type of individuals selected—and it is not implausible to think that the change would be positive.

Criticisms of Repealing the Seventeenth Amendment

Critics of repealing the Seventeenth Amendment raise several concerns. But those criticisms are either misguided or overstated.

Establishment media and liberal politicians have mocked calls for repeal of the Seventeenth Amendment as anti-democratic. To be sure, indirect election would be less democratic than direct election, but this is beside the point. The Framers understood what today’s self-interested sloganeers of democracy do not: What matters is not whether a given method of selecting governmental officials is more or less democratic, but whether it will safeguard the constitutional functions bestowed upon each branch and conduce to their competent execution. Notably, those who purport to be most shocked by the anti-democratic implications of repealing the Seventeenth Amendment are also the most vociferous in denouncing democratic election of judges, implicitly recognizing that democracy is simply a means to constitutional government, not an end in itself.

Moreover, certain of the Senate’s duties—such as its role as a type of jury to hear impeachment proceedings—make sense only if it is somewhat insulated from the public’s passions of the moment, as was well demonstrated by the farcical Senate trial of Bill Clinton. The decision to abandon the Senate’s original composition as an indirectly-elected body necessitates a redesign of impeachment proceedings, at least for partisan impeachments, reallocating that authority from the Senate to some less political institution.

Critics of repeal have also contended that election of senators by state legislatures was, and would be today, unusually prone to corruption and bribery. But research by historian C. H. Hoebeke found that of the 1,180 Senate elections between 1789 and 1909, in only fifteen cases was fraud credibly alleged, and in only seven was it actually found—approximately one-half of one percent. Nor does anyone but the most oblivious person believe that elections today are free of corruption, bribery, and the quasi-bribery of modern political fundraising and lobbying. Even in the progressive era it was not believed that direct election of senators would be a panacea to prevent corruption, and there is no evidence that politics became cleaner or less corrupt once direct election of Senators was adopted. Among the Seventeenth Amendment’s staunchest supporters were urban political machines (hardly advocates of clean government), which understood that direct election would boost their control of the Senate as they drove and bribed their followers to the polls.

Others argue that repealing the Seventeenth Amendment would make little material change in restoring the original constitutional structure. Perhaps. And, indeed, as during the era before the Seventeenth Amendment, many states would probably adopt either de facto direct election of senators, in which legislatures essentially agree to ratify the popular vote, or attenuated forms of it, such as primaries or conventions to select party nominees from whom the legislatures choose. Although adopting popular methods for selecting nominees or senators would substantially reduce the value of indirect election of senators on restoring the constitutional system, my intuition is that even an entirely formalistic process might reinstitute some degree of accountability of senators to state legislators and to restore the public’s understanding of the difference between a direct democracy and a democratic constitutional republic.

Contrasting Seventeenth Amendment Repeal to Other Proposals

Others argue that in light of the predicted ineffectiveness of the Seventeenth Amendment, defenders of constitutional government instead should focus on other reforms that prove more effective in practice. Two proposals are particularly noteworthy. First, it is argued that many of the goals of repealing the Seventeenth Amendment could be achieved by judicial enforcement of the Tenth Amendment and/or the Commerce Clause as limits on the federal government. Second, Randy Barnett has proposed a “federalism amendment,” which would permit the states by a three-fourths vote to nullify a law enacted by the national government.

I agree that both of these proposals would reinforce federalism and would be positive developments in improving our constitutional structure. So let me stress that I have no objection to those proposals.

But they are incomplete substitutes for the role envisioned by the Framers for a state-appointed U.S. Senate.

First, although those proposals would help to reinforce federalism, they would do little to buttress the second, equally-important purpose of the original Senate: to create a robust form of bicameral legislature with the end of frustrating special interest influence over politics.

Second, the Tenth Amendment and the federalism amendment would not substitute for many of the other institutional roles of the original Senate, such as the Senate’s role in judicial confirmation proceedings. Senators more attuned to state interests might change the confirmation process for federal judges (and thereby the nomination process as well) toward the selection of judges that are more aware of federalism and other structural constitutional issues.

Third, state legislatures would be able to affirmatively propose amendments to the federal constitution via their influence over the Senate. Other than arguably the Twenty-First Amendment repealing Prohibition, none of the constitutional amendments adopted since the founding era (the Bill of Rights and Eleventh Amendment) constrain or limit the federal government’s powers, although many of them limit states’ powers. This should not be surprising: since the adoption of the Seventeenth Amendment, the Article V amendment process is biased toward the adoption of amendments that increase the power of the federal government relative to the states. Absent a new convention, states are limited to the passive role of ratifying or rejecting proposals generated by the House and Senate by two-thirds vote, thereby requiring members of Congress to voluntarily reduce their own power. In light of the ability of Congress to exercise agenda control to block amendments that limit their power, it is entirely unsurprising that proposals such as a balanced budget amendment, term limits, and other popular proposals remain permanently bottled up—as will, inevitably, the federalism amendment.

Fourth, with respect to the protection of federalism, both the Tenth Amendment and the federalism amendment place ex post limits on the exercise of national power rather than ex ante. The authority of state legislatures to compose one branch of the legislative process empowers the states to have their views heard as an organic part of the logrolling and negotiations that go into legislation, rather than having simply an after-the-fact ability to raise constitutional challenges to particular provisions. Moreover, there is a huge gulf between the ability of states to influence legislation through the informal process of political compromise on one hand and those that are so egregious as to fail constitutional muster under the Tenth Amendment or to trigger the cumbersome process of a federalism amendment. Allowing the states to exercise influence over the development of legislation should tend to influence the organic influence of state interests in the legislative process.

During the nineteenth century the Supreme Court had a very modest role and jurisprudence in enforcing federalism limits on the national government. Instead, to the extent that Marshall and his successors ventured into federalism issues, it tended to be to knock aside state interference with national power. Why the Court was more concerned with strengthening national power under the Constitution was obvious: because of the role of the state legislatures in electing the Senate, the national government rarely sought to legislate to the full extent of the outer reaches of its constitutional power. Legislation that stretched the reach of the Commerce Clause simply was not enacted in the first place; thus it was rarely necessary for the Court to define the constitutional limits on the federal government.

Reading the debates of the Founding era, it is evident that the authors of The Federalist Papers and others believed that election of the Senate by state legislatures would be both a necessary and sufficient condition for preserving federalism and limiting the federal government. Anti-Federalist George Mason endorsed the composition of the Senate, expressing his fear that “the national Legislature [would] swallow up the legislatures of the States. The protection from this occurrence,” he continued, would “be the securing to the state legislatures the choice of the senators of the United States.” Anti-Federalist John Dickinson also noted that the election of the Senate by state legislatures would “produce that collision between the different authorities which should be wished for in order to check each other.” And it seemed to perform exactly that function for the century-plus that it was in existence.

But the role of the original Senate in enforcing federalism and bicameralism points to a corollary challenge: to the extent that those remain constitutional ends, what is to be done in light of the fact that the Seventeenth Amendment eliminates the proposed constitutional means for achieving those goals? There is no indication that the framers of the Seventeenth Amendment intended to renounce the constitutional principles of federalism and bicameralism when they modified the process for selecting Senators.

In that case it does point to the need to develop new constitutional means for securing the ends of limited and divided government. In the absence of repealing the Seventeenth Amendment, therefore, renewed judicial enforcement of federalism limits as well as proposals such as the federalism amendment are reasonable and salutary efforts to recreate the means of constitutional government that the Seventeenth Amendment secured so well for over a century.

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* George Mason University Foundation Professor of Law, George Mason University School of Law. Substantial portions of this article previously appeared in the November 15, 2010 issue of National Review, available at http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki.

Endnotes

1 Todd Zywicki, On the “True Story of the History of the Seventeenth Amendment and Federalism,” posting to the Volokh Conspiracy (Nov. 15, 2010), http://volokh.com/2010/11/15/on-the-true-story-of-the-history-of-the-seventeenth-amendment-and-federalism/.

2 Randy E. Barnett, The Case for a Federalism Amendment, Wall St. J., Apr. 23, 2009, at A17, available at http://online.wsj.com/article/SB124044199838345461.html.

Engage: Volume 12, Issue 2

 

Why Repealing the 17th Amendment Won’t Curb Federal Power

by Ilya Somin**

Some conservatives and libertarians believe that the 1913 adoption of the Seventeenth Amendment—which requires that senators be elected by popular vote, rather than by state legislatures—was a great mistake that led to a vast expansion of federal power. They argue that repealing the amendment would be a major step toward reigning in federal overreach.1 In 2010, the call for repeal was taken up by many activists associated with the Tea Party Movement.

Repeal advocates such as Gene Healy of the Cato Institute assert that the Amendment “has done untold damage to federalism and limited government.”

The assumption underlying such claims is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power.

Unfortunately, repeal of the Seventeenth Amendment is unlikely to have the effect that advocates hope for. This is so for two reasons. The Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly-elected senators.

I. Nearly All Senators Would be Elected by Popular Vote Even Without the Seventeenth Amendment.

As Professor Todd Zywicki (a leading academic critic of the Amendment) showed in a 1997 article, by 1908 twenty-eight of the then forty-six states already had laws that mandated popular election of senators.

Nine other states required the legislature to take account of popular votes, though they stopped short of taking away all legislative discretion.5

Given the strong political trend toward popular election of senators at the state level, it is likely that all but a handful of states would have enacted popular election within a few years after 1913 even without the federal constitutional amendment. It is debatable whether any states would have held out against popular election to the present day. Even if one or two had done so, the likely effect on policy outcomes would probably have been minimal. The presence of two or four legislatively-selected senators in a chamber with 100 members would have done little to change the general trend of legislation.

If the amendment were repealed today, popular election would almost certainly remain in the vast majority of states. As Todd Zywicki recognizes, “Democracy is popular.”

In theory, popular election could potentially be blocked if the amendment repealing the Seventeenth included a ban on state legislation designed to ensure that senators are chosen by popular vote. It would be difficult, but perhaps not impossible, to draft an amendment that could effectively preclude all the different devices state legislatures could use to promote popular election of senators.

But an amendment of that type would face even more daunting political odds than a straightforward repeal of the Seventeenth. In addition to the extraordinary uphill struggle that any amendment effort faces, such a preclusive amendment could be portrayed as infringing on state autonomy, as well as undermining democracy. And even an amendment banning the use of popular vote devices for selecting senators could not prevent state legislators from promising to choose whatever candidate for the Senate had the greatest amount of popular support, as demonstrated, for example, by public opinion polls. In many states, there might be substantial political pressure for state legislators to make such pledges.

II. Senators Chosen By State Legislators Would not Want to Limit Federal Power More than Popularly-Elected Senators Do.

Even if a constitutional amendment could effectively eliminate popular election of senators and replace it with selection by state legislatures, it is far from clear that federal power would contract. The claim that senators chosen by state legislatures would act to curb the feds relies on the assumption that state governments oppose federal power. Professor Todd Zywicki argues that, before the Seventeenth Amendment, “senators had strong incentives to protect federalism [because] [t]hey recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home.”

Whatever was the case before 1913, under modern conditions senators chosen by state legislatures often have strong incentives to support expanded federal power. Those incentives arise precisely because senators’ reelection depends on “pleasing state legislators.” The state legislators in question are often heavily dependent on federal subsidies and regulations. They are unlikely to do anything to overturn the federal trough at which they themselves regularly feed.

State governments routinely lobby for grants of federal money. In recent years, state dependence on federal funding has increased enormously, as a result of the fiscal crisis some states have found themselves in during the present recession. In 2009, federal grants-in-aid accounted for 24.2% of all state government revenue, up greatly from 19.8% in 2007. 10

State governments are anxious to get as much federal grant money as possible. This reality is unlikely to change if the Seventeenth Amendment were repealed and legislative selection of senators reinstated. To the contrary, senators chosen by state legislators would face even stronger incentives to lobby for additional federal grants than popularly-elected senators do. The political survival of the former would be completely at the mercy of the very state governments that benefit from federal grants. 11

State governments also often support federal regulations and spending programs that reduce competition between state governments and benefit interest groups that have influence at the state level.11 States compete with each other for businesses and taxpayers. Like any other competitors, they often prefer to establish a cartel that will minimize competition and enable them to collect higher “profits” in the form of increased tax revenue.12

Here too, senators chosen by state legislators would have strong incentives to lobby for expanded federal power whenever such is in the interest of the state governments they represent.

If senators were chosen by state governments rather than by voters, the  composition of federal spending and regulation might indeed change. More federal money would flow to state governments and those interest groups that have influence over them. We could potentially see more federal grants to small, local interest groups, such as those that lobbied for the notorious “bridge to nowhere” in Alaska.13 There would also be more regulations benefiting state officials and associated private interests. On the other hand, the federal government might become less solicitous of interest groups that do not have much leverage at the state level.

Repeal of the Seventeenth Amendment could potentially lead to reduced federal spending if the Supreme Court began to enforce constitutional limits on federal grants to state governments.14

If Congress could not hand out money to the states or could only do so for a very narrow range of purposes, then state governments would have more reason to oppose federal spending. Increased federal spending and taxes would then make it more difficult for the states to raise tax revenue for themselves.

But so long as Congress has the power to give the states handouts for virtually any purpose, senators chosen by state legislators are unlikely to oppose federal power any more than current senators do. At this point, there is little prospect that the Court will crack down on federal grants to state governments in the foreseeable future. In Sabri v. United States, a 2004 decision, the justices unanimously ruled that even grants with conditions that have very tenuous links to any federal interests are constitutional.15 In the key 1987 case of South Dakota v. Dole, the Supreme Court reiterated the rule that the Spending Clause of the Constitution gives Congress the power to give grants to the states so long as they promote the “general welfare” and emphasized that courts should “defer substantially to the judgment of Congress” in determining whether any particular grant program actually advances the general welfare or not.16 Although I and some other academic commentators have criticized this deferential policy,17 there is little chance that it will change in the near term. Both conservative and liberal justices seem to accept the status quo.

Conclusion

The Seventeenth Amendment is not necessarily beneficial. I am not convinced that any great harm would result from repealing it. Indeed, a straight-up repeal of the amendment would probably have little effect of any kind, since popular election of senators would persist in most states even if it were no longer constitutionally mandated. Even a more aggressive repeal amendment that outlawed popular election might not make the political system any worse than it is today.

But advocates of federalism and political decentralization have little if anything to gain from pursuing repeal. Even if they somehow succeed, such efforts are unlikely to result in any meaningful new constraints on federal power.

Perhaps an effort to repeal the Seventeenth Amendment could help rein in federal power by galvanizing support for political decentralization more generally. In that event, it might still be worth undertaking. But any such effect seems unlikely. Repeal of the Seventeenth Amendment is not a cause likely to attract much political support outside of a hard core of conservative and libertarian activists. If the Tea Party movement or other conservatives choose to make repeal a major focus of their political efforts, the attempt could even backfire. Associating federalism with an “anti-democratic” amendment could help turn moderate public opinion against federalism more generally.

Those who believe that repeal of the Seventeenth Amendment is the key to a revival of federalism in the United States are barking up the wrong tree. They would do well to invest their limited political resources elsewhere.

…………………………………………………………….

** Associate Professor of Law, George Mason University School of Law.

Endnotes

1 See, e.g., Todd Zywicki, Repeal the Seventeenth Amendment, Nat’l Rev., Nov. 15, 2010, available http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki?page=1; Gene Healy, Repeal the 17th Amendment? Wash. Examiner, June 8, 2010, available at http://www.cato.org/pub_display.php?pub_id=11876.

2 See, e.g., Aaron Blake, Tea Party Pushes 17th Amendment to the Forefront, Hill, May 3, 2010, available at http://thehill.com/blogs/ballot-box/house-races/95705-tea-party-pushes-17th-amendment-to-the-forefront?page=1#comments.

3 Healy, supra note 1.

4 Todd Zywicki, Beyond the Shell and Husk of History: The History of the 17th Amendment and Its Implications for Current Reform Proposals, 45 Cleve. St. L. Rev. 165, 192 (1997).

5 Id.

6 Quoted in Healy, supra note 1.

7See Zywicki, supra note 4, at 191-93 (describing several of them).

8 Zywicki, Repeal Seventeenth Amendment, supra note 1.

9 See John McGinnis & Ilya Somin, Federalism vs. States’ Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 117-18 (2004).

10 Figures calculated from Council of Economic Advisers, Economic Report of the President, Tbl. B-83 (2011), available at http://www.gpoaccess.gov/eop/2011/xls/ERP-2011-table83.xls.

11 See generally Michael S. Greve, Compacts, Cartels, and Congressional Consent, 68 Mo. L. Rev. 285, 333-340 (2003) (showing how states can lobby for federal intervention that reduces interstate competition).

12 See Geoffrey Brennan & James M. Buchanan, The Power to Tax: Analytical Foundations of a Fiscal Constitution 182-83 (1980); id. at 333-40; Ilya Somin, Closing the Pandora’s Box of Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments, 90 Geo. L.J. 461, 470-71 (2002).

13 This $398 million bridge project would have benefited only a tiny handful of people. It was finally abandoned after it became a national scandal and symbol of wasteful federal spending benefiting local interest groups. See Steven Quinn, Alaska Abandons Controversial Ketchikan Bridge Project, Seattle Times, Sept. 22, 2007, available at

http://seattletimes.nwsource.com/html/localnews/2003897011_webbridge22.html.

14 For a defense of such judicial intervention, see Ilya Somin, Closing the Pandora’s Box of Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments, 90 Geo. L.J. 461 (2002); and John Eastman, The Spending Power , 4 Chap. L. Rev. 1 (2001).

15 Sabri v. United States, 541 U.S. 600 (2004) (upholding federal grant to state governments conditioned on allowing prosecution of state officials for taking bribes even if the bribery in question had no connection any federal project).

16 South Dakota v. Dole, 483 U.S. 203, 207 (1987).

17 See Somin, Pandora’s Box, supra note 14; Eastman, supra note 14; Lynn Baker, The Spending Power and the Federalist Revival, 4 Chap. L. Rev. 195 (2001).

Engage: Volume 12, Issue 2

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