SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Sunday, March 14, 2004

THE TRUE STORY OF CONSTITUTIONAL FEDERALISM: Below is the short review of Prof. David E. Engdahl's excellent mini-treatise Constitutional Federalism: In a Nutshell (2d ed.), which I am going to submit to Amazon tomorrow.

*******

Constitutional Federalism: In a Nutshell (2d ed), West: 1987
By David E. Engdahl


Essential to a Proper Understanding of Federalism (5 Stars)

This book is an excellent mini-treatise on constitutional federalism, written by one of the finest federalism scholars in the legal academy. It discusses federalism’s main themes and issues, and does so in a clear, cogent and concise manner.

All too often, laymen and lawyers alike wrongly refer to federalism as a synonym for “states’ rights.” Some think it simply a tool in the “conservative” constitutional scholar’s arsenal. This reviewer is an attorney who was once a student of Professor David Engdahl, and I can assure you that neither he nor his scholarship supports either of those erroneous notions. Those who have respect for complexity and nuance will have much to appreciate here.

Nonetheless, Engdahl rejects the notion of “process federalism,” a dubious notion that really isn’t federalism at all. He provides a clear overview of the concept of enumerated powers, discussing what is actually meant by the word “powers” in this sense, and also how those powers extend in legislation. His discussion of the Necessary and Proper Clause is as sophisticated as any in the legal academy. Likewise, his understanding of the Commerce Clause is much more logical and textually supportable than those exhibited by any of the justices on the U.S. Supreme Court. Engdahl is also an expert on interstate compacts and federal borrowing and spending powers, giving readers of this work with some impressive scholarship in these areas. He also provides a much better approach to the commandeering immunity concept, as grounded in the Necessary and Proper Clause (rather than the 10th Amendment), and rightly identifies the Ex Parte Young doctrine (a part of 11th Amendment jurisprudence) as a “silly fiction.”

As noted, this book is written in the form of a small treatise, so it is not something a layperson would pick up and as easily understand. Furthermore, this edition was printed in 1987, and there have been many developments since that time, largely in the guise of the “New Federalism” spawned by U.S. v. Lopez (1995) and recent jurisprudence in the area of state sovereign immunity. (This reviewer recommends Dr. Michael Greve’s Real Federalism for a discussion of more recent federalism jurisprudence.) None of the more recent developments detract from what is contained in this book, however. This small treatise provides the law students and legal scholars with clear and well-reasoned analysis of the principles of federalism and Supreme Court jurisprudence in that area. It is highly recommended.

*******

FURTHER THOUGHTS: Indeed, Prof. Engdahl is an outstanding scholar. One prestigious legal academic who now sits on the federal bench told me that Prof. Engdahl's 1992 Duke Law Review article on judical review--"John Marshall's 'Jeffersonian' Concept of Judicial Review"--is one of the best he's ever seen on the subject. Furthermore, his 1994 article in the Duke Law Review--"The Spending Power"--provides the best overview of the constitutional history of federal spending power. "The Basis of the Spending Power," published in the Seattle University Law Review in 1995, is an intriguing companion to his '94 Duke article. (Dr. John Eastman's more recent article on the General Welfare Clause in the Chapman Law Review is another intriguing work along these lines that I strongly recommend.)

I was very fortunate to have Prof. Engdahl for all of three courses on constitutional law during my time in law school, and enjoyed many a good conversations with him in his office on these and similiar subjects.

(North Seattle, WA)

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