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"The primary structural purpose of the United States Constitution is to empower the federal government to solve problems that the states would need to act collectively to solve, and to prevent the states from undermining these solutions or causing such problems from the perspective of the Constitution or Congress. Any faithful account of what the Constitution is for and how it should be interpreted must include this main structural function. The Constitution was established principally because of the widely recognized failures of its predecessor, the Articles of Confederation, to adequately address "collective-action problems" facing the states, including funding the national government, regulating foreign and interstate commerce, and defending the nation from attack. These challenges are called collective-action problems because the states would need to cooperate or coordinate their behavior-they would need to act collectively, not individually-to solve them, and they would often struggle to do so. In a fundamental sense, the U.S. Constitution is the Collective-Action Constitution, and the sobering problems facing America today-including inadequate access to health care, climate change, the COVID-19 pandemic and future ones, opioid addiction, gun violence, racism and other bigotry, political extremism, unlawful immigration, terrorism, and nuclear proliferation-cannot be adequately dealt with by government if Americans do not recognize this truth. The main goal of the Collective-Action Constitution is not to vindicate a conception of economic efficiency, but to create and maintain political and economic union"--

U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other federal courts is best viewed as neither top-down nor bottom-up, but side-by-side. When the Court intervenes in fierce political conflicts, it may proceed in stages, interacting with other federal courts in a way that is aimed at enhancing its public legitimacy. First, the Court renders a decision that is interpreted as encouraging, but not requiring, other federal courts to expand the scope of its initial ruling. Then, most federal courts do expand the scope of the ruling, relying upon the Court's initial decision as authority for doing so. Finally, the Court responds by invoking those district and circuit court decisions as authority for its own more definitive resolution. That dialectical process, which this Article calls "reciprocal legitimation," was present along the path from Brown v. Board of Education to the unreasoned per curiams, from Baker v. Carr to Reynolds v. Sims, and from United States v. Windsor to Obergefell v. Hodges-as partially captured by Appendix A to the Court's opinion in Obergefell and the opinion's several references to it. This Article identifies the phenomenon of reciprocal legitimation, explains that it may initially be intentional or unintentional, and examines its implications for theories of constitutional change and scholarship in federal courts and judicial politics. Although the Article's primary contribution is descriptive and analytical, it also normatively assesses reciprocal legitimation given the ...

Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if underappreciated, dimension of judicial role. I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself—over the long run and with respect to the nation as a whole—by accomplishing two paradoxically related preconditions and purposes of law: expressing social values as social circumstances change and sustaining social solidarity amidst reasonable, irreconcilable disagreement. I derive judicial statesmanship from an understanding of the preconditions of law's public legitimation and from an understanding of the purposes of the institution of law. I demonstrate that statesmanship is a necessary, although not sufficient, component of judicial role. I argue that judicial statesmanship is not sufficient to legitimate the legal system because there are other major purposes of law with which statesmanship can be in tension, especially those advanced by maintaining fidelity to such ruleof-law values as consistency and transparency. But I also argue that statesmanship is necessary if law is to fulfill all of its functions and to take account of the conditions of its own legitimation. The rule of law depends for its practical realization on political trust between the government and the governed. In circumstances in which trust is strained, the virtue of statesmanship is especially valuable and produces leadership. I illustrate the present importance of judicial dtatesmanship by engaging some instances of its existence or absence during the U.S. Supreme Court's October 2006 Term. I argue that Justice Kennedy's controlling opinion in Parents Involved in Community Schools v. Seattle School District No. 1 seems in important ways to exhibit the practice of judicial statesmanship but that his majority opinion in Gonzales v. Carhart will in most respects likely prove a failure of statesmanship.

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control. While it is a context-sensitive empirical question whether specific applications of the commandeering ban would cause the federal government to respond by engaging in preemption, giving states a choice between commandeering and preemption, using the conditional spending power, or declining to regulate, this inquiry primarily advances a conceptual claim. Because there often will exist a non-trivial chance that Congress will engage in preemption when it cannot commandeer, and because it is impossible for the Court to know at the time of judicial decision where a given case fits along the continuum of preemption probabilities, federalism doctrine requires a strategically sophisticated conceptual system, one that accounts for all of the regulatory possibilities before Congress. This inquiry recommends replacing the Court's categorical anticommandeering rule with a legal standard that is sensitive not only to accountability concerns, but also to the feasibility of preemption should commandeering be prohibited and to the financial burdens imposed by commandeering. One payoff of this approach is that it turns the conventional wisdom about New York and Printz on its head. Because preemption was reasonably available only in New York, Printz involved the stronger Tenth Amendment challenge. After anticipating various objections, the author employs a post-9/11 terrorism hypothetical to illustrate the argument's ...