This is the second in a series of blog posts, written in anticipation of our forthcoming article, in which we (myself and my co-author, Michael McCloskey) intend to provide glimpses of the countless gems contained in Justice Harlan’s lectures. This post focuses on Harlan’s view on the interplay between states’ rights and federal power, with a focus on U.S. Term Limits v. Thornton, and who representatives represent—the people of a district or the United States as a whole.

In all of the Constitution’s provisions which may arguably enshrine some principle of federalism, perhaps the most unassuming provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”[1]

Of that clause, Justice John Marshall Harlan once said:

“There is no more important provision in the constitution than that, nor one about which there is a larger amount of ignorance, or none about which more unmeaning or senseless things are said.”[2]

Though the Justice was, at times, prone to hyperbole, his point should not be lost on us today.  Whether in the form of “states’ rights” or intertwined in the slew of preemption cases before the Supreme Court this term,[3] federalism is enjoying renewed attention from all corners of contemporary political and legal discourse.

During his lecture on November 20, 1897, Justice Harlan took the opportunity to opine on the role of the states in defining the national identity in our federalist framework:

It is not to be entertained for a moment that any state of this union may act as it pleases in the matter of sending Representatives to Congress beyond the power of the United States. . . . We must not forget that a Member of the House of Representatives is not there simply as the representative of the people of his district.  He represents in a sense the whole country.[4]

This theory of who members of Congress in fact represent, it would seem, is open to quite a bit of scholarly debate.[5] But it would be nearly a century before the Supreme Court weighed in on the precise issue in any definitive way.

The Court in U.S. Term Limits, Inc. v. Thornton, per Justice Stevens, held that the imposition of term limits for congressional candidates was not a regulation of the time, place, or manner of choosing representatives, but rather an impermissible restriction on the qualifications for that office.[6] In so doing, the Court noted that, in our federal government, “representatives owe primary allegiance not to the people of a State, but to the people of the Nation.” Quoting Justice Story’s Commentaries on the Constitution—a favorite of Justice Harlan—Stevens commented “each Member of Congress is ‘an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. . . . Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.’”[7]

Moderating the five-to-four ruling, as usual, was Justice Kennedy. Kennedy began his opinion with a conciliatory nod to the dissenters—Justice Thomas’s opinion was joined by the Chief Justice, Justices O’Connor and Scalia—“The majority and dissenting opinions demonstrate the intricacy of the question whether or not the Qualifications Clauses are exclusive.”[8] Though he joined the opinion of the Court in full, Kennedy’s concurring opinion developed a slightly more nuanced view of the theoretical federalism at play in the case.

The political identity of the entire people of the Union is reinforced by the proposition, which I take to be beyond dispute, that, though limited as to its objects, the National Government is, and must be, controlled by the people without collateral interference by the States.  McCulloch affirmed this proposition as well, when the Court rejected the suggestion that States could interfere with federal powers.  “This was not intended by the American people.  They did not design to make their government dependent on the States.” . . . The States have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere. . . . The federal character of congressional elections flows from the political reality that our National Government is republican in form and that national citizenship has privileges and immunities protected from state abridgment by the force of the Constitution itself.[9]

If that language somewhat moderated the majority’s opinion, this next sentence not-so-subtly reminded the majority who was really in charge:

That the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States. (citing United States v. Lopez, ante p. 549 (1995)).

This passage, which cites the landmark United States v. Lopez decided a month earlier in the Term, highlights the significance of federalism, and the interplay between states’ rights and federal power. This rejoinder—punctuated, both literally and symbolically, with a stark citation to United States v. Lopez—was Kennedy’s message to the majority: Federalism is a two-way street.[10]

With this discussion, we see how Justice Harlan’s views were quite ahead of his time, and how he foresaw developments in constitutional law far into the future.

This post was co-authored by Josh Blackman and Michael McCloskey.