Conservative jurisprudence has a long and unfortunate history of ignoring state power.
Over the coming weeks, I’ll dedicate several posts to the proposition that Erie Railroad Co. v. Tompkins (1938) must be overruled, or otherwise put out of its misery. One cannot get the United States Constitution right unless one starts with the proposition that every single sentence in Erie Railroad is wrong.
Much of what’s coming is stripped from The Upside-Down Constitution. I fear that many readers will skip the book’s long chapters on Erie. It’s a boring personal injury case, and its holding seems unexceptional: in “diversity” cases among parties from different states, federal courts will follow the rule of decision of the state where they sit (usually, the state where the case was filed). That does not sound like the stuff of which constitutional revolutions are made. But it is, and they are. Here’s the gist of the argument:
The actual Constitution embodies a “competitive” federalism that disciplines government at all levels. The New Deal Constitution, by contrast, embodies a “cartel” federalism that empowers government at all levels. The central case in that transformation isn’t Carolene Products, or Steward Machine Co., or West Coast Hotel, or United States v. Darby, or even Wickard v. Filburn (which, to the horror of many of my friends, I believe to be rightly decided). While the often appalling reasoning in those cases certainly reflects the constitutional New Deal’s cringe-inducing presumptions, one can live with the decisions and still have a sensible federal order. That is not true of Erie Railroad. Accept that case or any of its premises, arguments, and tenets, and you’ve bought into a cartel federalism that erodes limited government, legal certainty, political responsibility, commerce, and any other virtue one might want to associate with federalism.
Recently, there has emerged a small but forceful band of Erie critics; I’ll discuss their writings in forthcoming posts. However, Erie revisionists face a difficult task. The case is taught as received wisdom in every CivPro and FedCourts class in the country (with intermittent exceptions at Yale and NYU Law School). And there is a yet more potent force of resistance: originalism, in its dominant forms and as conventionally understood. Erie is originalism’s counterpart to Lochner, as incontrovertibly right as Lochner was wrong. It is cited in the same in terrorem fashion, in cases that have nothing to do with the original legal problem and for the same global proposition: judges shouldn’t make things up. It is not the constitutional text or some hermeneutic theorem but Erie Railroad, a stone that the Founders would have rejected, that has become originalism’s cornerstone. That, I hope to demonstrate, is a very bad thing.