Lawrence B. Solum (University of Virginia School of Law) has posted Third Order Normative Questions and Federalism on SSRN. Here is the abstract:
This Article aims to reorient normative theories of federalism by clarifying and precisifying the relationship between three conceptually distinct “orders” of normative questions. The first order of questions concerns the substantive content of legislation and regulation. The second order of questions concerns the allocation of legislative and regulatory authority between the states and the national government. Second order questions are questions about how and by whom first order questions should be answered. The third order of questions is about how to answer the second order questions. Third order questions are addressed by normative constitutional theories like Public Meaning Originalism, Constitutional Pluralism, and Congressional Supremacy (Thayerianism). The thesis of this Article is that third order questions in constitutional theory must be answered first, because commitments at the third order level ought to constrain our second order choices.
My investigation of these questions will proceed in six steps. Part One explicates and clarifies the relationship between first, second, and third order normative questions about federalism. Part Two describes the space of second order options, answering the question, “What are the possible allocations of authority between the state and national governments?” The second part then proceeds to sketch some of the normative theories of federalism that could be used to answer the question, “Which of the possible allocations is best?” Part Three turns to third order questions and identifies five possible institutional arrangements for answering the second order questions: this nonexhaustive list includes judicial supremacy (living constitutionalism), congressional supremacy (Thayerianism), constitutional supremacy (originalism), as well as constitutional presidentialism and constitutional interactionism, though only the first three are examined in detail. Part Four sets out the distinction between outcome reasons and process reasons as justifications for answers to third order questions and argues for the primacy of process reasons like legitimacy and the rule of law. Part Five explicates and defends Public Meaning Originalism and examines the answers it might give to second order questions about federalism. Part Six draws out the implications of the third-order framework for the principal normative theories of federalism surveyed in Part Two and examines the challenge that structural federalism doctrines pose for Public Meaning Originalism.
As always, comments are very welcome! Please email lsolum@gmail.com.
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Lawrence Solum