The Wages of Crying Judicial Restraint

Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate. The first version of federalism is the pre‐New Deal version. This version affirms that the Constitution established a national government of limited and enumerated powers, that those powers should be interpreted according to their original meaning, and that much of what the federal government tried to do before the New Deal, and did during the New Deal and after, is unconstitutional. The post‐New Deal vision of federalism has been interpreted by progressives, quite beyond what the Court has actually said, as repudiating the idea that the Constitution enumerates certain limited congressional powers and that these limits are to be enforced by the courts. This progressive vision of the post‐ New Deal federalism essentially says that Congress has the plenary power to legislate as it will with respect to the national economy.9 Put another way, the Commerce and Necessary and Proper Clauses combine to create a “National Problems Power” vested in Congress. Because most law professors held this vision of the New Deal, it came as quite a shock to them when the Rehnquist Court established the New Federalism. The New Federalism established the proposition that there were limits that were compelled by what Chief Justice Rehnquist referred to as “first principles” of constitutional government. That these limits would be enforced by the Court seemingly rejected and repudiated the progressive vision of the post‐New Deal constitutionalism that, up to that point, had seemed orthodoxy

Federalism at the Crossorads: Old Meanings, New Significance

Federalism has remained a contested concept. The constitutional certainties of the modern federal state are under attack from confederal practices of negotiated agreement. Such practices have their traditional roots in the political theories of Althusius and Montesquieu. The central argument of this article is that the American Federalists broke with that older tradition and deliberately misinterpreted Montesquieu along the way. Consequently, the predominant reading of federalism emphasizes federal supremacy over the idea of a social compact among equal partners, territorial representation dominates over the recognition of social community, and the allocation of divided powers is guided by national prerogatives rather than regionally differentiated policy needs. Recent trends towards a more collaborative form of federalism indicate that the old model of constitutional federalism may be replaced by new practices of treaty federalism

NEW FEDERALISM: THE SEARCH FOR NEW BALANCES

Public Economics,

The Capitol in the Classroom: Implementing the Common Core in an Era of Coercive Federalism

The increased prevalence of federal mandates and funding initiatives support the existence of coercive federalism. The Common Core State Standards Initiative is a notable example of a coercively implemented policy. The failures of its implementation suggest important limitations to coercive federalism, particularly in regards to education policy. Based on my study of the implementation of the Common Core in New York State, I argue in this thesis that its failure is attributed to its rushed rollout in schools, extensive amount of standardized testing, and lack of support received from both teachers and parents

Federalism and International Human Rights in the New Constitutional Order

This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court\u27s innovations in the law of federalism in connection with Congress\u27s exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government\u27s power with respect to foreign affairs. Most of the speculation has been that the Court is about to - or at least should - engage in what I have called projects of restoration and revolution. That is, the Court will, or should, return to an understanding of the relation between the nation\u27s power with respect to foreign affairs that prevailed before the New Deal-Great Society era

New Constitution, New Europe: What About (Fiscal) Federalism?

More than fifty years after the Schuman Declaration, Europe is still far from a real Political Union. In fact, Europe faces an important imbalance between the two sides of the integration process, appearing as an important actor in the international economic scenario, but as a minor actor in the international political arena. In this paper, we start by arguing that the “small steps” strategy that led Europe until the present situation is no longer sufficient to let the Union efficiently overcome its present deficits and challenges. So, we call for an important change in the institutional and economic organisation of the EU, towards a model of largely decentralised federalism. By examining the present challenges for EU and the characteristics of the proposal for an European Constitution designed by the Convention, as well as comparing the main federal systems existing in the world today, we argue that the mentioned proposal is not enough to give the EU a strong voice both in the political and the economic areas. In this context, we discuss the design of an adequate institutional framework for the political organisation of the EU, presenting an alternative proposal based on the characteristics of a truly federal system, also as its consequences in what concerns the design and implementation of European economic policies. Keywords: European Union, Political Union, Federalism, Fiscal Federalism, European Constitution

The New Federalism in Criminal Procedure in 1984: Death of the Phoenix?

A decade has passed since my first article on the topic of new federalism in criminal procedure entitled, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court. This chapter takes a fresh look at the new federalism in criminal procedure in light of developments occurring since 1974

Federalism in the Taft Court Era: Can It Be “Revived”?

This Article analyzes the Supreme Court\u27s view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as reviving pre-New Deal principles. This Article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the twentieth century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity and the dormant Commerce Clause. The application of the ideal of dual sovereignty also significantly undercut state power, because it invited the pre-New Deal Court to prohibit states from regulating the exclusively federal area of interstate commerce. For these reasons the modern Court has abandoned the ideal of dual sovereignty in its doctrine of intergovernmental tax immunity and the dormant Commerce Clause. Contemporary opinions in these areas imagine federal and state interests as intermingled and overlapping, rather than as separated into discrete spheres. The modern view actually offers more protection for state regulations than did the ideal of dual sovereignty espoused by the pre-New Deal Court. Second, the pre-New Deal Court understood itself as a common law court authorized to articulate the deepest experiences and values of the American people. This authority transcended the distinction between federal and state power, which is why the pre-New Deal Court never conceived itself as an agent of a federal government that was potentially in tension with state sovereignty. The Court never understood the centralization resulting from judicial decisionmaking as a federalism issue. The Court freely regulated intimate areas of state life through the promulgation of general common law. The pre-New Deal Court\u27s common law authority was regarded as even more fundamental than Congress\u27s claim to articulate the national will. The triumph of Holmesian positivism in Erie Railroad Co. v. Tompkins transformed the Court into an instrument of specifically federal law. The federalism implications of judicial decisionmaking in the areas of common law and constitutional rights were thus made manifest for the first time. The Court\u27s authority to impose structural limitations on congressional power was also profoundly altered. Third, the pre-New Deal Court, like the country generally, regarded the federal government as a potentially distant, bureaucratic, and oppressive institution. States were by contrast conceptualized as sites of democratic self-government. Federalism was typically conceived as the problem of reconciling centralization with self-government. Thus federal and state regulations, even of the same subject matter, were not regarded as equivalent. State regulation was self-chosen; federal regulation was potentially coercive. This view of the federal government was pushed to the margins of American political culture when the crisis of the New Deal legitimated the national government\u27s authority to speak as the genuine representative of an authentic national democratic will. Combined with the demise of the Court\u27s common law authority, this transformation of Congress\u27s legitimacy undercut the Court\u27s ability to second-guess Congress\u27s vision of national priorities when reviewing the limits of congressional power. Fourth, the pre-New Deal Court conceived structure and rights as complementary and mutually dependent concepts. The Court defined individual rights in ways designed to serve structural principles, like the integration of the national market. And it defined structural principles, like the limits of congressional power, in terms of the individual rights affected by federal legislation. Because the Lochnerism of the pre-New Deal Court inclined it to protect freedom of contract, it sought to impose limits on congressional power that were highly sensitive to the nature of the economic transactions regulated by federal legislation. Modern constitutional thinking, by contrast, sharply distinguishes structure from rights, and it does not seek to protect the same kind of economic rights as did pre-New Deal Lochnerism. The revival of pre-New Deal federalism, in short, would require the contemporary Court to restore an ideal of dual sovereignty that in important doctrinal areas is not only incoherent, but deeply antagonistic to state power; to reassert its authority as a common law court; to resurrect an image of Congress as a national legislature unsupported by a genuine national democratic will; and to dismantle the contemporary distinction between structure and rights so as to limit congressional power in ways designed to protect rights of substantive due process

Vectoral Federalism

In this Article, I offer a new framework for understanding federalism. “Vectoral federalism” engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups.Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government’s power to regulate states and the states’ concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also illuminates and helps to rectify the Court’s errors. Vectoral federalism has the potential to become an important tool for understanding American federalism and for developing a more unified and coherent federalism doctrine