Michael Halley


A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the cases embrace as "a window into the commonalities, if any, between statutory and constitutional interpretation." But Manning's overly programmatic approach does not so much open this portal as close it shut. His insistence that legislative acts and the Constitution are alike is impossible to square with the theory of our written constitution that has prevailed ever since John Marshall and Alexander Hamilton first propounded it: that the acts of a superior must trump those of every inferior authority.