Speaker 1: Pushkin.
Speaker 2: I'm Michael Lewis, and this is against the rules. All
Speaker 2: this season, we're looking at the rise of sports betting,
Speaker 2: America's newest form of legalized gambling. Today it seems like
Speaker 2: it just suddenly happened, but it was actually a long
Speaker 2: road and I had to do a lot of background
Speaker 2: interviews to fully understand it. Today, I want to share
Speaker 2: with you one of those conversations because it's fascinating. In
Speaker 2: our previous episode, we heard briefly from a legal historian
Speaker 2: and professor at the University of Chicago named Alison Lercroix.
Speaker 2: Alison and I actually talked a long time about the
Speaker 2: wider context for why in twenty eighteen, the Supreme Court
Speaker 2: decided to overturn a federal law called the Professional and
Speaker 2: Amateur Sports Protection Act. That context goes back to the
Speaker 2: founding of the country actually and tension between state and
Speaker 2: federal jurisdictions. The State of New Jersey brought up all
Speaker 2: of that when it argued a case now called Murphy
Speaker 2: versus Nzuba before the Supreme Court. Do you know the
Speaker 2: case at all?
Speaker 1: I do. I teach it in constitutional law. Yeah, oh, well,
Speaker 1: here we go.
Speaker 2: Are there any cases from way back when of the
Speaker 2: federal government telling states they can't change their laws or
Speaker 2: they can't do something in their laws, rather than the
Speaker 2: federal government directly legislating something telling the states how they
Speaker 2: have to legislate it.
Speaker 1: Well, I mean, then this gets to one of the
Speaker 1: I think trickiest points in the Murphy opinion, especially as
Speaker 1: Justice Alito writes it. And we actually usually spend a
Speaker 1: fair amount of time talking about this in class because
Speaker 1: I think just this Alito says, Look, this is a
Speaker 1: clear case of what the Court calls commandeering. And even
Speaker 1: though it's Congress telling the states they can't do something
Speaker 1: that is, in a theoretical sense, the same as Congress
Speaker 1: telling the state legislatures they have to do something that's commandeering,
Speaker 1: can't do that even though it's a negative, and so
Speaker 1: on and so forth. But I think he spends an
Speaker 1: enormous amount of time in the opinion dealing with the
Speaker 1: objection to his framing, which is, what about all the
Speaker 1: instances in which Congress passes a law, and we know,
Speaker 1: because of how the supremacy Clause of the Constitution operates
Speaker 1: in a doctrinal sense what lawyers call preemption, federal law
Speaker 1: preempts state law to the extent the two conflict, and
Speaker 1: Justice Alito says, well, that's true, but that's only true
Speaker 1: if Congress is passing a law that isn't totally and
Speaker 1: only directed at state legislatures. So yes, preemption, but you've
Speaker 1: got to have some like normal regular individuals or companies
Speaker 1: or whatever not have it be a direct order to
Speaker 1: state legislatures. But if you go back to the nineteenth century,
Speaker 1: they're a lot looser about how they understand the supremacy
Speaker 1: clause operating. And there's another case in Virginia in eighteen twenty,
Speaker 1: which is another Supreme Court justice riding circuit.
Speaker 2: What does that mean? Riding circuit?
Speaker 1: It means they were sitting and acting as a judge,
Speaker 1: but they were not in the Supreme Court chamber. They
Speaker 1: weren't in DC. They always seem to kind of go
Speaker 1: out on a limb a little bit more when they
Speaker 1: were riding circuit. It's like they weren't sitting there with
Speaker 1: their brethren, and the cases they were hearing were often
Speaker 1: trial court cases. It would be like if Justice Soda
Speaker 1: my or spent some portion of the year sitting in
Speaker 1: the New York Federal Court, like in the Second Circuit
Speaker 1: or the district court hearing essentially a lot of trial
Speaker 1: court cases, and people would be like, oh, that's Justice
Speaker 1: Soda my or but she's riding circuit and New York
Speaker 1: part of her circuit.
Speaker 2: That's a weird thing to have done. So you could
Speaker 2: conceivably have rendered some judgment that you're then going to
Speaker 2: see again at the Supreme Court level.
Speaker 1: Yes, and that happened a lot. And so you have situations.
Speaker 1: In this eighteen twenty case in Virginia, the circuit riding
Speaker 1: Justice Marshall was his kind of his turf, and so
Speaker 1: he's sitting there as a trial court judge, and it's
Speaker 1: a case about a ship that comes into Norfolk, Virginia,
Speaker 1: and it has these crew members, some of whom, according
Speaker 1: to the record, are quote persons of color. Virginia law
Speaker 1: says such persons cannot be imported or allowed to migrate
Speaker 1: into the state. Federal law says we support state law
Speaker 1: whatever it is. And this I think is another complication
Speaker 1: for the Murphy line of argument, because Chief Justice Marshall
Speaker 1: basically says, we have been various Acts of Congress, including
Speaker 1: this one that says the federal government will support states
Speaker 1: in whatever they're doing. Visa VI persons of color, and
Speaker 1: he basically reads it to say that limits in some
Speaker 1: cases or some instances, what states can do. Now he
Speaker 1: pulls back, He doesn't go all the way to saying, Virginia,
Speaker 1: you can't say that a person of color cannot migrate
Speaker 1: into Virginia because of federal law. And he kind of
Speaker 1: dodges it on what he terms what we would call
Speaker 1: statutory construction. He basically says, it's not clear from the
Speaker 1: evidence that the law actually applies to these people. So
Speaker 1: the end, and then he writes letters to his fellow
Speaker 1: justices basically saying, I tried to avoid the deep constitutional question.
Speaker 1: But I think what he was on the verge of saying,
Speaker 1: and what he and some of the other federal judges
Speaker 1: seem to be comfortable with, was this notion that acts
Speaker 1: of Congress, so like papsa in Murphy, whould remove certain
Speaker 1: options from the state legislature's toolkit, and that that wasn't
Speaker 1: itself a constitutional problem, It wasn't commandeering to say Congress
Speaker 1: was doing that.
Speaker 2: Talk to me, like I am a curious seventh grader
Speaker 2: about how this argument even starts. What the federal government
Speaker 2: gets to do and what the states get to do.
Speaker 1: One could go even further back and talk about the
Speaker 1: British Empire and kind of separations between layers of government
Speaker 1: during the colonial period. I mean, that was my first book.
Speaker 1: It was trying to figure out did the British Empire
Speaker 1: give a blueprint for how the founders in the seventeen
Speaker 1: eighties thought about distributing power. And I think one of
Speaker 1: the things that was going on when we think about
Speaker 1: the Constitution and people drafting it in seventeen eighty seven
Speaker 1: was they weren't new to the idea that you would
Speaker 1: have a bunch of different levels of government that were competing,
Speaker 1: because that had been the imperial experience. So I think
Speaker 1: often we start like seventeen eighty seven, blank slate, but
Speaker 1: that wasn't how they experienced it. So they're kind of thinking, Okay,
Speaker 1: we don't have an empire, we don't have Britain and
Speaker 1: the Crown. We're setting up this new national government. They
Speaker 1: called it the General Government. We would call it the
Speaker 1: federal government. But then they're kind of trying to figure out,
Speaker 1: how do we give it some power but not all
Speaker 1: the power because we don't want to be France. They're
Speaker 1: constantly kind of invoking France as a structure.
Speaker 2: This is funny and what's wrong with France?
Speaker 1: Well, okay, so first that's pre revolutionary France. So they're
Speaker 1: you know, they're like, there's a king, the king has
Speaker 1: absolute power. That's not good. But also the structure of
Speaker 1: government was like everything runs from the center. So even
Speaker 1: though you have you know, tax collectors out there out
Speaker 1: in the provinces in France, you know, hitting people up
Speaker 1: for money, they didn't They worked for the center. It
Speaker 1: wasn't like there was some local or what we would
Speaker 1: think of as level government. There was just you know,
Speaker 1: a bunch of people who were appointed by the king.
Speaker 1: And the American founders were thinking, well, A, we don't
Speaker 1: want that as a sort of theoretical matter. B we
Speaker 1: don't have that because we have these colonial governments that
Speaker 1: we're now going to call states. And like Massachusetts thinks
Speaker 1: it has a certain set of powers, Virginia thinks it
Speaker 1: has a certain set of powers. And so part of
Speaker 1: I think part of the story in the early nineteenth
Speaker 1: century is understanding several decades earlier that the Founders were
Speaker 1: like consumed by this question of how do you have
Speaker 1: multiple levels of government? And then how do we sort
Speaker 1: of set ground rules for how they'll interact and how
Speaker 1: do we distribute the power between the center and the peripheral.
Speaker 2: Powers, Because we don't want to be France, because.
Speaker 1: We don't want to be France, although maybe we do
Speaker 1: if you ask Jefferson and yeah.
Speaker 2: But if we don't want to be friends, but that
Speaker 2: doesn't mean we want to be the United Kingdom.
Speaker 1: Correct, We definitely don't want to be either of them,
Speaker 1: So we want to be in their words, something entirely knew,
Speaker 1: although again they knew that they couldn't create something from
Speaker 1: a blank slate. So so what they ended up doing
Speaker 1: in the Constitution was saying, Okay, we're going to write
Speaker 1: this down. That's pretty novel. Lots of countries, Britain especially
Speaker 1: have constitutions, but they're not written down. We're going to
Speaker 1: write it down, and when we write it down, we're
Speaker 1: going to talk about the central The general government has
Speaker 1: certain powers and everything that we don't say in the constitution,
Speaker 1: or that the Constitution doesn't somehow give to the general
Speaker 1: government is a power that stays with the states or
Speaker 1: with the people, and we often, i think forget the
Speaker 1: or with the people part. Today it's like it's the
Speaker 1: states versus the federal government. Well, the people are in
Speaker 1: there too.
Speaker 2: What were the most contentious bits of this? Who is
Speaker 2: fighting about what on this subject?
Speaker 1: I mean, part of me wants to say everything, but
Speaker 1: the specific bones of contention. The phrase they keep using,
Speaker 1: and they keep using into the early nineteenth century is
Speaker 1: the umpire? Who's the umpire? And one thing I love
Speaker 1: about this is we think, oh, yeah, umpire. There wasn't
Speaker 1: baseball yet at this point, so that's very funny.
Speaker 2: This is riveting. Yeah, So where do they get this word?
Speaker 1: Well, they get the word because to them it means
Speaker 1: something like impartial judge, kind of person overseeing general rules,
Speaker 1: a sort of judge like figure, but not necessarily in
Speaker 1: a court. So they talk about it as okay, we're
Speaker 1: going to have the system, it's going to be complicated,
Speaker 1: it's going to have lots of levels of government. We're
Speaker 1: okay with that. That's necessary, and theoretically we've worked out
Speaker 1: why it's okay. But who's the umpire? I mean, the
Speaker 1: way I describe it in class in constitutional law is
Speaker 1: who decides? But then also who decides who decides? Because
Speaker 1: it's who's going to settle the frictions and the controversies
Speaker 1: that come up. So one of the things, and this
Speaker 1: is actually Aimes Madison's proposal at the Constitutional Convention. Madison says,
Speaker 1: I know what we'll do. It's going to be great.
Speaker 1: We'll give the Senate the power to veto state laws.
Speaker 1: And a few other states delegations support him at this
Speaker 1: huh yeah. Now it's staggering to us because it's like,
Speaker 1: you can't do that for all sorts of reasons.
Speaker 2: No, it's like running the wrong way around the bases
Speaker 2: or something.
Speaker 1: Exactly.
Speaker 2: It's like it's a rule that you can't imagine someone
Speaker 2: thinking about adopting.
Speaker 1: Right, And it's Madison, of all people. So it's not
Speaker 1: just some you know, lesser known member of the Philadelphia
Speaker 1: Convention sitting off in a corner, the author of the
Speaker 1: Federalist papers exactly. And Madison calls this the federal negative
Speaker 1: or the veto, and he's like, listen, this is the
Speaker 1: umpire problem. The states are going to pass a whole
Speaker 1: bunch of different laws. They'll be kind of self motivated
Speaker 1: or parochial. We know that they'll do that. So the
Speaker 1: problem will be to harmonize them, to keep them from
Speaker 1: doing things that are that are focused on themselves and
Speaker 1: selfish as opposed to being mindful of the needs of
Speaker 1: the whole union, the sort of general welfare of everybody.
Speaker 2: He saw Nevada coming a mile away.
Speaker 1: That's exactly right. And so he kind of goes day
Speaker 1: after day in the convention telling people like, this is great,
Speaker 1: and he even at one point invokes the British Empire
Speaker 1: and he's like, you know, yeah, problems and implementation, but
Speaker 1: it was a good idea, and other people support him.
Speaker 1: There are other delegates that go along with him for
Speaker 1: a while on this. Obviously, in the end it doesn't
Speaker 1: end up passing. What they end up putting in instead
Speaker 1: is what we know, which is a system with an
Speaker 1: umpire in the form of the Supreme Court of the
Speaker 1: United States. They don't really specify what it's going to
Speaker 1: look like, and things like enumeration and the enumerated powers,
Speaker 1: so the federal government only has certain powers, the states
Speaker 1: have the rest. And also something in the Constitution that
Speaker 1: we call the Supremacy Clause Article six, which basically says
Speaker 1: federal law is supreme even if state law appears to
Speaker 1: contradict it. What's really interesting about all this, though, to
Speaker 1: me is that Madison, to the end of his life
Speaker 1: and he lived to eighteen thirty six, was still defending
Speaker 1: the negative and still saying this would have been better.
Speaker 2: It's kind of great that even James Madison doesn't change
Speaker 2: his mind exactly, and nobody ever changes their minds, they
Speaker 2: just die. So but if you're you saying that if
Speaker 2: Madison's argument had won, we wouldn't have a Supreme Court, we.
Speaker 1: Would have a Supreme Court, I think because that is
Speaker 1: in the Constitution. And I think he did not view
Speaker 1: that as he didn't view it as one or the other,
Speaker 1: the federal negative or the Supreme Court. But I see,
Speaker 1: but he thought that a lot of the time, and
Speaker 1: this is how he talked about the negative. You would
Speaker 1: just say, okay, state legislature, like Illinois legislature, you've passed
Speaker 1: a law. Before the law becomes fine, the Senate of
Speaker 1: the United States will essentially have to ratify it, so
Speaker 1: it's part of the legislative process, and then later down
Speaker 1: the road maybe someone will challenge it in court for
Speaker 1: some other reason. But that's a kind of after the
Speaker 1: fact corrective. And actually there's this interesting exchange of letters
Speaker 1: that Madison had with Thomas Jefferson, who's off in Paris,
Speaker 1: and Madison's kind of reporting to him on his plans,
Speaker 1: very proud about the Federal Negative, and Jefferson just writes
Speaker 1: back and says, prima facia, I do not like it,
Speaker 1: which just feels like that must have been a tough
Speaker 1: letter to get. And Jefferson's like it's too big, like
Speaker 1: it will cover ninety nine out of one hundred cases
Speaker 1: that it doesn't need to. We can just wait. If
Speaker 1: people are really aggrieved and the states have overstepped down
Speaker 1: the road, some person will bring a lawsuit and that's
Speaker 1: how we'll deal with it. And that's what happened, and
Speaker 1: that's what happened.
Speaker 2: When we return, Alison and I get into a what
Speaker 2: if scenario for James Madison's alternate vision for American government.
Speaker 2: I'm back with the University of Chicago law professor and
Speaker 2: legal historian Alison Lacroix. She's the author of a book
Speaker 2: called The Innerbellum Constitution. I found it fascinating to think
Speaker 2: about the America that James Madison wanted to construct with
Speaker 2: the Constitution, a nation where Congress would have veto power
Speaker 2: over state laws. He called it the Federal Negative. What
Speaker 2: would the world look like if Madison had his way.
Speaker 1: That is a very interesting question. So one thought would
Speaker 1: be we would not have as many great constitutional questions
Speaker 1: in the Supreme Court. We would probably have had a
Speaker 1: lot of them fought out in the Senate, and that
Speaker 1: would have gone in lots of different ways. So, for instance,
Speaker 1: South Carolina in eighteen nineteen passes this law that they
Speaker 1: call the police Bill. It has various other names, and
Speaker 1: that state law basically says any sailor or seaman who's
Speaker 1: a black person. They use the color distinctions of the time,
Speaker 1: but we could think of it as an African American
Speaker 1: sailor from anywhere in the world who comes into port
Speaker 1: in South Carolina has to be jailed while their ship
Speaker 1: is in port. And it leads to this whole federal
Speaker 1: court case, a literal federal court case. And so it's
Speaker 1: an interesting question to think. Okay, imagine Madison's negative. South
Speaker 1: Carolina passes this police bill, Does it die in the
Speaker 1: Senate or does South Carolina get Georgia some of the
Speaker 1: other sort of deep southern states to go along with it.
Speaker 1: Does some of the northern states feel like it's pro trade.
Speaker 1: So I think we'd be having those constitutional fights in
Speaker 1: the Senate on top of the other constitutional fights that
Speaker 1: were going on in the Senate.
Speaker 2: What are in the innerbellum period? Are there any states
Speaker 2: rights cases that come before the Supreme Court that have
Speaker 2: any kind of relevance for the present moment and that
Speaker 2: might become relevant all of a sudden before the Supreme Court.
Speaker 1: Absolutely, I mean, one of the most interesting things about
Speaker 1: the interbellum period is you start looking for states rights
Speaker 1: type arguments, and they're everywhere. So there are lots of
Speaker 1: states rights arguments, but they're basically like proto or very
Speaker 1: explicitly pro slavery. They're like South Carolina nullifying federal law
Speaker 1: or seceding. But in fact, we see them coming up
Speaker 1: in all sorts of different guises and from different places.
Speaker 1: So one of my favorite examples is one that I
Speaker 1: talk about in the last chapter of the book involving Wisconsin.
Speaker 1: So in eighteen fifty, Congress passes this Fugitive Slave Act
Speaker 1: that basically says slavery is the national norm. Essentially, so
Speaker 1: even if a state says, like Wisconsin, slavery is not
Speaker 1: permitted Wisconsin as a free state, if someone who is
Speaker 1: alleged to be a fugitive slave ends up in Wisconsin.
Speaker 1: There enslaver can come find them and bring the full
Speaker 1: force of the federal government to bear and capturing their fugitive.
Speaker 1: And so there's a case that comes up in eighteen
Speaker 1: fifty four with an individual, one person, a man named
Speaker 1: Joshua Glover, and he's a free black man. He is
Speaker 1: a fugitive. He is living in Racine, Wisconsin, and he's
Speaker 1: captured by federal authorities. He's dragged to Milwaukee jailed, and
Speaker 1: there's this dramatic jail break on behalf of helping Glover
Speaker 1: become free. And then there's this year's long political and
Speaker 1: legal conflict because Wisconsin claims states' rights. They basically say,
Speaker 1: Wisconsin is a sovereign state. How dare these other states
Speaker 1: or even the federal government tell us what sorts of
Speaker 1: protections we can give to persons within our borders. And
Speaker 1: if you take away the name Wisconsin and you look
Speaker 1: at some of the documents or the arguments, and I've
Speaker 1: done this, you show it to students or other folks
Speaker 1: who are coming to the materials, they're shocked that it's
Speaker 1: Wisconsin because they think, well, no, the state's rights arguments,
Speaker 1: that's what the Southerners are making, that's what the sort
Speaker 1: of pro slavery people are making. But the fact is
Speaker 1: that some of the northern and Midwestern states make the
Speaker 1: argument too, because they view it as a state invading
Speaker 1: them the preferences of other states like South Carolina, North Carolina,
Speaker 1: Georgia invading the sovereign territory of Wisconsin, and they regard
Speaker 1: that as an offense against their state's sovereignty.
Speaker 2: What happens with this case, well.
Speaker 1: It ends up going to the Supreme Court. And so
Speaker 1: this is now eighteen fifty nine on what we know.
Speaker 2: Yeah, and where is his name, Joshua Glover?
Speaker 1: Joshua Glover?
Speaker 2: Where is Joshua Glover?
Speaker 1: For these five he has escaped to Canada, so he's
Speaker 1: no longer even he's no longer even interested in it.
Speaker 1: The case is now a journalist from Milwaukee named Sherman
Speaker 1: Booth who was involved in stirring up the crowd and
Speaker 1: breaking Clever out of the jail in Milwaukee at a
Speaker 1: federal marshal. The federal marshal, who again we're very primed
Speaker 1: by twentieth century and recent history to think the federal
Speaker 1: government on this they're going to be like the nineteen sixties,
Speaker 1: they're going to be like Eisenhower and Little Rock. They're
Speaker 1: going to be the ones saying, you know, emancipation and
Speaker 1: equal rights. No, the federal Marshal is trying to bring
Speaker 1: suit and penalties against the journalists for helping the fugitive.
Speaker 2: And so in that moment, the federal government, had they
Speaker 2: got their myths on Joshua Glover, would have returned him
Speaker 2: to his owner.
Speaker 1: Yes, yes, who was his owner?
Speaker 2: Who was his owner?
Speaker 1: It was a man by the name of Benamey Garland
Speaker 1: from Missouri.
Speaker 2: Wrong side of history, that dude. Yeah, But all right,
Speaker 2: So and where was he? Where was he?
Speaker 1: He was outside Saint Louis, who was in Missouri, had
Speaker 1: a plantation, and he was actually there. I mean, he
Speaker 1: came to Wisconsin and sort of got his law abiding
Speaker 1: group of people, you know, who to us are vigilante kidnappers,
Speaker 1: but under the terms of the law at the time,
Speaker 1: they were complying with federal law. And so it goes
Speaker 1: up to the Supreme Court of the United States in
Speaker 1: eighteen fifty nine and the court issues a unanimous decision
Speaker 1: and they say, Wisconsin, you are not allowed to nullify
Speaker 1: federal law, but you know that's eighteen fifty nine. That's
Speaker 1: what the Court says. The Wisconsin legislature maintains for three
Speaker 1: more years that it has the power to nullify the
Speaker 1: Federal Fugitive Slave Law. The Legislature of Wisconsin only reverses
Speaker 1: that view in I think six once the Civil War
Speaker 1: has started, and then they're like, Okay, yeah, we're not
Speaker 1: doing the state's rights thing anymore. We'll be right back.
Speaker 2: Look, I'm aware my show isn't the History Channel, and
Speaker 2: we've been covering a lot of legal history with my
Speaker 2: guest Alison Lercroix. But all of this history gets us
Speaker 2: to the constitutional back door that's allowed states to legalize
Speaker 2: sports betting. It goes back to arguments about federalism, a
Speaker 2: concept in the Constitution about how power should be shared
Speaker 2: between the national government and the states. The Supreme Court's
Speaker 2: built to be the umpire of such things, but the
Speaker 2: umpire is changing all the time. So I'm kind of
Speaker 2: curious how federalists the Supreme Court has been over time
Speaker 2: and where we are when we get to Murphever's NCAA
Speaker 2: compared to other times in history.
Speaker 1: Well, even what the Court means when it talks about
Speaker 1: federalism has sometimes changed, and so there's a little bit
Speaker 1: of a yes, yeah, the sort of moving target kind
Speaker 1: of are we all agreed about what this term that's
Speaker 1: so important but very underspecified actually means. Yes, It's not
Speaker 1: a sort of straight line one way or the other.
Speaker 1: It's not like in the olden days whenever those were
Speaker 1: they didn't care about federalism, and now we do. Nor
Speaker 1: was it they used to care a lot and now
Speaker 1: we don't, which I think goes to sometimes how again,
Speaker 1: the Supreme Court today sort of acts like in the
Speaker 1: good old days, everybody understood federalism was real and this
Speaker 1: is what it meant. We need to bring that back
Speaker 1: because one of the most significant facts or kind of
Speaker 1: again surprises in many ways about the early nineteenth century
Speaker 1: is just how nationalistic in lots of ways the Supreme
Speaker 1: Court was of people were and they disagreed what the
Speaker 1: purpose of the union, what the purpose of that was,
Speaker 1: what it was supposed to look like, wild disagreement. But
Speaker 1: did they believe in significant federal national power much of
Speaker 1: the time. The answer is yes, in part because Southerners,
Speaker 1: to take the usual objection right, which would be wholl
Speaker 1: but what about all these Southern slave owners who want
Speaker 1: states rights they do when they don't, because when you
Speaker 1: look more closely, you can find plenty of Southern slave owners,
Speaker 1: including James Madison, including John Marshall, and lots of others
Speaker 1: who think they're going to control the national government because
Speaker 1: of all the things in the Constitution that give them
Speaker 1: more power. From the three fifths clause, which says, for
Speaker 1: purposes of Congressional representation, a state with a lot of
Speaker 1: enslaved people, those people all count for purposes of population
Speaker 1: at least three fifths of a person. We look at
Speaker 1: that and where like, how could they have counted any
Speaker 1: person as three fifths of a person? But it was
Speaker 1: giving additional representation in Congress to states that had slavery,
Speaker 1: which meant for much of the early nineteenth century, the
Speaker 1: federal government is in the hands of Southern slaveholders, and
Speaker 1: that goes just from Congress all the way to things
Speaker 1: like the Electoral College to appointments to the Supreme Court. So,
Speaker 1: in a sense the sort of where is slavery and
Speaker 1: all this, the answer is it's kind of everywhere. But
Speaker 1: I think much of the impetus of Marshall and even Jefferson,
Speaker 1: people who we think of as skeptics of some forms
Speaker 1: of national power. Their primary focus was building a union
Speaker 1: and having a union, and so they believed in national power,
Speaker 1: and they said, federalism means both, we have this national
Speaker 1: layer of government, but the states are not just districts
Speaker 1: administrative arms of the center. There's a tension there. And
Speaker 1: then I think, for say eighteen fifteen to eighteen sixty one,
Speaker 1: tons of federalism talk, but very different views of what
Speaker 1: federalism is. Like, does it mean Andrew Jackson as president
Speaker 1: gets to tell South Carolina stop nullifying federal law or
Speaker 1: I'll send in the army. Yes, in fact Jackson says
Speaker 1: that right, But it also means, you know, Jackson is
Speaker 1: comfortable allowing Georgia to expropriate land from the Cherokee Nation
Speaker 1: and lots of other indigenous nations. And then around about
Speaker 1: I would say eighteen sixty three, it's like midway through
Speaker 1: the Civil War that I think we start to get
Speaker 1: a resurgence of kind of unabashed nationalism and not as
Speaker 1: much states rights ism. And then the twentieth century, the
Speaker 1: New Deal, the civil rights movement, a lot of expansion
Speaker 1: of federal power. And then I think the nineteen eighties
Speaker 1: and nineteen nineties, the Supreme Court. He discovers what it
Speaker 1: calls federalism, and that's where we get the cases that
Speaker 1: lead us to Murphy versus NCAA, the commandeering or anti
Speaker 1: commandeering cases that say, take states seriously, don't let Congress commandeer,
Speaker 1: and reading the Tenth Amendment as all about preserving power
Speaker 1: for the states.
Speaker 2: Why do you teach Murphy?
Speaker 1: Well, I teach Murphy because I teach the commandeering cases
Speaker 1: that preceded it, which are Congress telling the states do
Speaker 1: this thing like pass a law that allows hazardous waste
Speaker 1: disposal or else you the state own the hazardous waste.
Speaker 1: Court says, no, you can't do that. Another case where
Speaker 1: the Court says, hey, states help set up gun registries
Speaker 1: and state officials have to maintain them while we get
Speaker 1: the federal system up and running. The Court says, no,
Speaker 1: you can't do that. Commandeering and Murphy is like the
Speaker 1: hypothetical you would ask in class where you said, Okay,
Speaker 1: Congress can't take over and command your state legislatures and
Speaker 1: state officials by telling them what to do? Can I
Speaker 1: tell them what not to do? And that is like
Speaker 1: a classic law professor move to say okay, we talked
Speaker 1: about the positive case, what about the negative? Can Congress
Speaker 1: say you can't do this? And that's Murphy? Murphy is
Speaker 1: the hypothetical that a lot of us were asking, because
Speaker 1: it's can Congress say to the states, here are things
Speaker 1: you cannot do? And pre Murphy, I think the answer
Speaker 1: would have been, that's basically a supremacy clause preemption question.
Speaker 1: They do it all the time, and that's why Justice
Speaker 1: Alito and the majority in Murphy have to do this
Speaker 1: intense hair splitting that they do about this is targeting
Speaker 1: the states, it's not private parties.
Speaker 2: When you say this to the class, can Congress tell
Speaker 2: states what they can't do? What kind of responses do
Speaker 2: you get?
Speaker 1: I think people are suspicious, they feel like they're being tricked.
Speaker 1: Maybe that's just you know, another day in a law
Speaker 1: school classroom. But I mean it depends how you frame
Speaker 1: the hypothetical, because I think if you say, can Congress
Speaker 1: tell the states the state legislature is what they can't do, well,
Speaker 1: let's say Congress passes wage and hour's laws, federal minimum
Speaker 1: wage or things about safety. Isn't that implicitly telling the
Speaker 1: state you can't have a law that says you can
Speaker 1: pay people sub federal minimum wage.
Speaker 2: You can't have child labor.
Speaker 1: You can't have child labor. Yeah, and the answer has
Speaker 1: to be read the supremacy Clause Article six says federal
Speaker 1: laws supreme any state law to the contrary notwithstanding. So
Speaker 1: what is it that's different? And I actually find it
Speaker 1: it's actually quite hard to frame the holding of Murphy
Speaker 1: in a way that brings the class along. It feels
Speaker 1: very hair splitting. I think because the overall picture of
Speaker 1: Congress can put things on the table for the states,
Speaker 1: it can take things off the table. It can't compel
Speaker 1: the states to do things.
Speaker 2: What are the consequences of having Murphy as.
Speaker 1: A precedent, As often happens, when you take a federal
Speaker 1: rule off the table, you get this explosion of state activity.
Speaker 1: And the happy federalism story is the states act as
Speaker 1: laboratories of democracy, and the sad federalism story is race
Speaker 1: to the bottom. But you get states that say great,
Speaker 1: you know, the states are more in touch with their constituencies,
Speaker 1: like New Jersey can decide to have sports gambling to
Speaker 1: the extenate wants to California.
Speaker 2: But are there broader consequences outside of sports? Gambling. If
Speaker 2: you've got the president of Murphy, where the Supreme Court
Speaker 2: has said Congress can't tell the states what they can't do,
Speaker 2: what else might Congress not be able to tell the
Speaker 2: states they can't do.
Speaker 1: Well, potentially a whole host of things. I think Justice
Speaker 1: Alito has this line in his opinion in Murphy, where
Speaker 1: he says, this is like a member of Congress is
Speaker 1: standing over the shoulder of the state legislators. That's different
Speaker 1: from Congress passes a federal law that says, you know,
Speaker 1: drug labels have to have the following information, or you
Speaker 1: have to have the following kind of environmental standards or
Speaker 1: scrubbers on factories or whatever. Because we understand that to mean, okay,
Speaker 1: the states can't pass a conflicting state law, but the
Speaker 1: federal law is directed at other players beyond just the
Speaker 1: state legislature, like they're also talking there to you know,
Speaker 1: to factories or to other parties. But sure, you can
Speaker 1: certainly imagine, especially in our moment right now, a situation
Speaker 1: where whatever we're talking about, whether it's all the different
Speaker 1: federalism adjacent issues right now, abortion, the border, the mif
Speaker 1: of pristone with the interstate shipment of abortion inducing medication
Speaker 1: and having a federal rule in lots of cases seems
Speaker 1: desirable because we have uniformity. But it's also true that
Speaker 1: people are going to have very different policy views about
Speaker 1: those things and might in fact say, you know, no,
Speaker 1: it's actually better to have different states having different rules.
Speaker 1: So a rule that says Congress can't prohibit the states
Speaker 1: from doing things potentially, I mean, this is one of
Speaker 1: the ironies actually in the Court's opinion right where they
Speaker 1: I think they think of themselves as doing They say
Speaker 1: they don't want to do judicial activism, they're not big
Speaker 1: fans of broad judicial power and so on and so forth,
Speaker 1: but they issue rules that do really affect the behavior
Speaker 1: of other institutions and other people. Congress has to be
Speaker 1: very clear what it's preempting in the statute. Get some
Speaker 1: private parties, not just state actors in there. But we're
Speaker 1: going to have a lot of litigation about what can
Speaker 1: states do up to that point, and you know, can
Speaker 1: they make their own rules or can they not make
Speaker 1: their own rules?
Speaker 2: Thank you so much for this.
Speaker 1: Thank you very much.
Speaker 2: Alison Ler Croix is the Robert Newton Reed Professor of
Speaker 2: Law at the University of Chicago. And author of the
Speaker 2: Interebellum Constitution, Union, Commerce, and Slavery in the Age of Federalisms.
Speaker 2: Against the Rules is written and hosted by me Michael
Speaker 2: Lewis and produced by Lydia gen Kott, Catherine Gerardeau and
Speaker 2: Ariella Markowitz. Our editor is Julia Barton. Our engineer is
Speaker 2: Sarah Bruguer. Against the Rules is a production of Pushkin Industries.
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