Chapter Excerpts
Chapter 1: Redefining Federalism
If federalism is about protecting the states, why not listen to them?
In the last decade, the Supreme Court has reworked significant areas of
constitutional law with the professed purpose of protecting the dignity
and authority of the states, while frequently disregarding the states'
views as to what federalism is all about. The Court, according to the
states, is protecting federalism both too much and too little.
(Read the full chapter in PDF format 34k)
Chapter 2: Federalism and Environmental Protection
With more and more frequency, state or local governments that are willing to play an active role in environmental protection are blocked by court rulings that declare such action inconsistent with federal law. People who care about the environment should not be afraid to challenge judicial doctrines that block these "overachieving" state and local governments.
Chapter 3: Federalism as a Neutral Principal
Federalism, as we define it here, deserves support from Americans for an amalgam of practical and historic reasons that have almost nothing to do with our preferences regarding the outcome of policy debates. Rather, support for federalism as a neutral principle distills to one basic, patriotic idea: we support federalism because the ingenious system devised by our Framers still has much to commend itself to us today.
Chapter 4: Federalism as Libertarian
Fantasy
Giving states more freedom to act will not necessarily lead to lowering regulatory standards or shrinking the role of the government in protecting the health, safety, and welfare of its citizens. Federalism is necessarily an imperfect vehicle for those who want to limit the power of all governments.
Chapter 5: The Rise of Libertarian Federalism
Individuals with a vision of the Constitution that matches the libertarian federalists' in its radicalism are winning lifetime appointments to the federal appellate bench in disproportionate numbers. However, some of the Supreme Court's more recent federalism decisions indicate movement on the Court away from libertarian federalism.
Chapter 6: The Voice of the States: An Overview
The states are asking the Court to redefine federalism. They seek a federalism jurisprudence that is more about protecting the critical structural role states play in our federal system and about the Court's grave responsibility to protect state experimentation and less about limiting government power at all levels. We believe that the states offer the Court a view of federalism and the protection of state sovereignty and prerogatives that is both workable and true to our constitutional text, structure, and history. The Court has much to learn from the states about federalism, if it would only listen.
Read what the states have told the Supreme Court about
redefining federalism in key cases.
Chapter 7: Overprotecting Federalism Under the Commerce Clause
If we are to effectively combat problems like unfair discrimination, child pornography, possession of machine guns, and drug use, we need to listen to the voice of the states. They're telling us that courts should not unduly constrain federal power in the name of federalism and state sovereignty, especially where the states themselves welcome a federal presence.
Chapter 8: Limiting State Experimentation Under the "Dormant" Commerce Clause
Nowhere in the law is the voice of the states stronger or more persuasive
than in its call for reform of the dormant Commerce Clause. The states'
united voice in opposition to the Court's recent decisions indicates just
how much those decisions have stifled much-needed state experimentation.
If federalism has anything to do with protecting such experimentation,
and if the Court really cares about federalism, it must listen to the
states' call for reform of the dormant Commerce Clause.
Chapter 9: Stifling Federalism Under the Supremacy Clause
Elimination of obstacle preemption, and sincere adherence to a clear statement rule with bite under the Supremacy Clause, would fit hand in glove with the Court's parallel efforts to promote federalism and state sovereignty under other constitutional provisions.
Chapter 10: Sovereign Immunity and the Fourteenth Amendment
The states have helped steer the Court aware from a doctrinally incoherent and unreasonably narrow view of federal authority to an approach that pays proper deference to congressional prerogatives, even when it comes at the expense of state immunity.
Chapter 11: Preventing Commandeering Under the Tenth Amendment
Although courts must protect state autonomy, they should distinguish between genuine threats such as the commandeering of legislatures and federal laws that require states simply to provide minimal assistance in a way that does not undermine state independence. Only then will Tenth Amendment jurisprudence allow the appropriate allocation of federal and state authority.
Chapter 12: Conclusion
Federalism as explained by the states is not a zero-sum game where every
expansion of the national government's power is viewed as an intrusion
into the power of the states. Federalism instead is about respect for
the critical structural role states play in our federal system. This understanding
of federalism restores it to its proper place as a neutral principle,
not a partisan political tool. The ends that it serves are a better political
process, more robust political participation, and the allocation of power
in a way that improves how government serves its citizens. These ends
are the essence of democracy, and ones that all Americans, whatever their
political views, should hope to attain.
To read about how federalism concerns are playing out in the debate about policy responses to global warming, please visit our blog, www.warminglaw.com
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