Making Federalism Doctrine


This article develops and defends a general approach to constitutional federalism doctrine. My position is probably best described as sympathetic criticism of the Rehnquist Court’s “Federalist Revival.” I think that the Court’s project of reviving a judicial role in enforcing federalism is terribly important, but that many of the Court’s particular measures in that vein are unhelpful or, sometimes, counterproductive.

The article makes three claims. The first is methodological: I argue that courts can and should formulate doctrines to enforce the federal balance, even when those doctrines cannot be tied directly to constitutional text and history. Recognizing that constitutional doctrine is distinct from the Constitution itself, I insist that courts may have to innovate doctrinally in order to enforce federalism under modern circumstances quite different from anything the Framers likely envisioned. Because a focus on doctrine presupposes a judicial role in enforcing federalism, I also consider issues of comparative institutional choice, concluding that courts cannot abdicate their responsibility to decide federalism cases but that issues of relative institutional competence should be considered in formulating particular doctrinal rules of decision in such cases.

My second claim is descriptive. I first develop three variables for assessing federalism doctrine: (1) the extent to which that doctrine pursues ends of state sovereignty (defined as state governmental unaccountability for violations of federal norms) or autonomy (define as state capacity for meaningful self-government); (2) the focus of judicial review on the substance of federal action or on the process by which such actions are taken; and (3) the extent to which the resulting rules are hard (not subject to override by further political branch action) or soft (leaving open the prospect that the national government may still act, if it speaks sufficiently clearly or advances a sufficiently weighty interest). I then use these variables to assess the jurisprudence of the Rehnquist Court’s usual majority on federalism issues, concluding that the Court has generally favored sovereignty over autonomy, substance over process, and hard over soft rules. The more suprising conclusion, however, is that the Court’s frequent dissenters on federalism issues – who are usually thought to be thoroughgoing nationalists – in fact do have their own theory of federalism. That theory, which manifests most clearly in cases involving federal statutory preemption of state law, stresses state autonomy over sovereignty, process over substance, and relies almost exclusively on soft rules.

The third claim is normative. I argue that the dissenters’ vision actually has much to recommend it from the States’ perspective; in particular, I insist that state autonomy – the capacity for self-governance – is much more important than sovereignty. Because I think the dissenters’ model does not go far enough, however, I develop a somewhat more aggressive model of “strong autonomy,” which relies heavily on process and soft rules but is more willing to contemplate some attention to substance and some hard prohibitions on national action. I defend that model both in terms of the underlying values that federalism is generally thought to serve and of the comparative institutional competences of the courts and the political branches. In particular, I argue that the Court’s institutional experience with enforcing federalism in the first part of the 20th century counsels against rigid subject matter tests for valid national action, while the institutional arrangements of the political branches offer both some protection for states and promising avenues for process-based judicial review. The final part of the article gives some illustrative doctrinal examples: Most important, I argue that the Court should tighten substantially its rules for finding federal preemption of state law, while de-emphasizing state sovereign immunity.


Constitutional Law

Date of this Version

March 2004