David Engdahl

Professor Emeritus

Biography

After law school, Professor Engdahl declined a teaching fellowship offered him by the Harvard Law School in order to pursue graduate study in law at the University of Michigan, where his doctoral work on the legal history of marriage and the conflict of laws influenced the treatment of marriage in the Restatement (Second) of the Conflict of Laws. His law school teaching career began at Colorado in 1966, but in 1975 Professor Engdahl resigned his academic tenure to assume responsibility for legal services to that state’s colleges and universities as an Assistant Attorney General. Later he founded a small, general-practice firm in Denver, and specialized in constitutional issues until accepting a faculty appointment at the law school here in 1981.

Professor Engdahl’s practice in two states and several different federal District Courts and Courts of Appeal, as well as the Supreme Court, involved him in some nationally prominent pro bono and public interest cases in the 1970’s, including those arising out of the National Guard shooting of students at Kent State University and the domestic use of military resources to end the American Indian Movement occupation of Wounded Knee. His dominant interest, however, has been the constitutional allocation of power among state and federal governments. He was general counsel to the Western Interstate Energy Board for two years, and an advisor to the Western Governors’ Policy Office. He has been a consultant and draftsman for interstate compacts and agreements, and has been of counsel to various states (and on occasion, to the National League of Cities and the National Association of Counties) in several cases involving federalism issues.

Professor Engdahl’s publications include the handbook Constitutional Federalism in a Nutshell (West, 1987); chapters in several other books; and more than thirty-five scholarly articles, several of which have materially influenced the course of constitutional discussion and decision on the issues he has addressed.

Publications

Books

Constitutional Federalism in a Nutshell (West Publishing, 2d ed. 1987).

Constitutional Power: Federal and State in a Nutshell (West Publishing 1974).

Book Chapters

The Necessary and Proper Clause, and The Tribunals Clause, in The Heritage Guide To the Constitution (Regnery 2005).

The Duties and Powers of Congress Regarding Conventions for Proposing Amendments, in The Constitutional Convention (National Legal Center for the Public Interest 1987) (with James E. Bond).

State Power to Regulate Nuclear Materials Transportation, in Transportation of Radioactive Materials in the Western States 51 (Pollock & Rogers 1974).

Deficiencies of Price-Anderson Protection for Plowshare, in Plowshare Technology Assessment Legal Studies, v.3 364 (Western Interstate Nuclear Board 1973).

Due Process Forbids Soldiers in Civil Disorders, in Peter Davies, The Truth About Kent State: A Challenge to the American Conscience 212 (Farrar Straus Giroux 1973).

Articles

The Contract Thesis of the Federal Spending Power, 52 S.D. L. Rev. 496 (2007).

The Necessary and Proper Clause, in The Heritage Guide to the Constitution (Matthew Spalding ed., 2006).

The Tribunals Clause, in The Heritage Guide to the Constitution (Matthew Spalding ed., 2006).

The Necessary and Proper Clause, in The Heritage Guide to the Constitution (D. Forte ed., 2005).

The Exceptions Clause, in The Heritage Guide to the Constitution (D. Forte ed., 2005).

Intrinsic Limits of Congress' Power Regarding the Judicial Branch, 1999 BYU L. Rev. 75 (1999).

The Necessary and Proper Clause as an Intrinsic Restraint on Federal Lawmaking Power, 22 Harv. J.L. & Pub. Pol'y 107 (1998).

Casebooks and Constitutional Competency, 21 Seattle U. L. Rev. 741 (1998).

The Basis of the Spending Power, 18 Seattle U. L. Rev. 215 (1995).

The Spending Power, 44 Duke L.J. 1 (1994).

John Marshall's 'Jeffersonian' Concept of Judicial Review, 42 Duke L.J. 279 (1992).

What's in a Name: The Constitutionality of Multiple Supreme Courts, 66 Ind. L.J. 457 (1991).

Federal Question Jurisdiction Under the 1789 Judiciary Act, 14 Okla. City U. L. Rev. 521 (1989).

The Supreme Court and Constitutional Democracy, 3 Const. Comment. 513 (1986) (book review).

Conflicting Jurisdictions of Federal, State and Local Authorities: The Federal Preemption Doctrine, 31 Rocky Mtn. Min. L. Inst. 1.1 (1985).

Sense and Nonsense About State Immunity, 2 Const. Comment. 93 (1985).

Foundations for Military Intervention in the United States, 7 U. Puget Sound L. Rev. 1 (1983), reprinted in Military Intervention in Democratic Societies (Rowe & Whelan eds. 1985).

The Federal Lands Program Under SMCRA, 26 Rocky Mtn. Min. L. Inst. 117 (1980).

Some Observations on State and Federal Control of Natural Resources, 15 Hous. L. Rev. 1201 (1978), reprinted at 16 Pub. Land & Resources L. Dig. 230 (1979).

State and Federal Power over Federal Property, 18 Ariz. L. Rev. 283 (1977), reprinted at 14 Pub. Land & Resources L. Dig. 269 (1977).

A Rejoinder, 50 Ind. L.J. 778 (1975) (in response to article on civil disturbance regulations, infra).

Book review: The Eleventh Amendment and Sovereign Immunity, 18 Am. J. Legal Hist. 256 (1974).

The New Civil Disturbance Regulations: The Threat of Military Intervention, 49 Ind. L.J. 581 (1974).

Preemptive Capability of Federal Power, 45 U. Colo. L. Rev. 51 (1973).

State Power over Plowshare: The Constitutional Framework, 14 Atom. Energy L.J. 243 (1973).

The Legal Background and Aftermath of the Kent State Tragedy, 22 Clev. St. L. Rev. 3 (1973).

Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1 (1972).

A Comprehensive Study of the Use of Military Troops in Civil Disorders with Proposals for Legislative Reform, 43 U. Colo. L. Rev. 399 (1972).

Soldiers, Riots and Revolution: The Law and History of Military Troops in Civil Disorders, 57 Iowa L. Rev. 1 (1971).

Constitutionality of the Voting Age Statute, 39 Geo. Wash. L. Rev. 1 (October 1970).

Interstate Urban Areas and Interstate 'Agreements' and 'Compacts': Unclear Possibilities, 58 Geo. L.J. 799 (1970), reprinted in Crisis in Urban Government (Thos. Jefferson Publishing 1971).

'Full Faith and Credit' in Merrie Olde England: New Insight for Marriage Conflicts Law from the Thirteenth Century, 5 Val. U. L. Rev. 1 (1970).

Proposal for a Benign Revolution in Marriage Law and Marriage Conflicts Law, 55 Iowa L. Rev. 56 (1969).

Requiem for Roth: Obscenity Doctrine Is Changing, 68 Mich. L. Rev. 185 (1969).

The Canonical and Metaphysical Background of the Classic Dutch Marriage Conflicts Rule, 15 Nederlands Tijdschrift Voor Internationaal Recht 42 (1968).

Medieval Metaphysics and English Marriage Law, 8 J. Fam. L. 381 (1968).

Book review: The Reconstruction Amendments' Debates (A. Avins, ed. 1967), 21 J. Legal Educ. 119 (1968).

Secularization of English Marriage Law, 16 Kan. L. Rev. 505 (1968).

English Marriage Conflicts Law Before the Time of Bracton, 15 Am. J. Comp. L. 109 (1966-67).

Characterization of Interstate Arrangements: When is a Compact Not a Compact, 64 Mich. L. Rev. 63 (1965).

Consolidation by Compact: A Remedy for Preemption of State Food and Drug Laws, 14 J. Pub. L. 276 (1965).

Consolidating State and Federal Regulatory Power over Food and Drugs, 20 Food Drug Cosm. L.J. 587 (1965).

Construction of Interstate Compacts: A Questionable Federal Question, 51 Va. L. Rev. 987 (1965).

Poetry

Remembering Kent, in Peace Is Our Profession 278 (East River Anthology 1981) (previously published in 119 Cong. Rec. 14478 (1973) (statement of Sen. Kennedy).