Judicial Federalism

Federalism is defined by the Merriam-Webster dictionary as "the distribution of power in an organization (as a government) between a central authority and the constituent units."

Federalism is a system whereby the central government and the local state governments divide the powers between them. This division of power is one of the provisions in the U.S. Constitution. It gives the right to governments on the local level to act independently when issues arise that are local in nature. As an example, local governments provide for the public's health, control interstate trade and issue all sorts of licenses.

Judicial federalism is of the same nature. It divides the power of the courts between the federal level and the state and local levels. Local courts can rule on many issues independently. There have recently been many arguments in the judicial system when it was felt that local courts overstepped their authority and decided on issues that have federal ramifications.

Many states have recently expressed that there has been a steady decline in the protection of human rights with regard to the federal government. State courts have expanded the liberties and rights of individuals by utilizing the constitutional rights that are granted on the state level. Through a form of judicial federalism, they will be able to achieve this expansion. Judicial federalism is nothing more than the two levels of judiciary systems, the federal and the state, interacting with each other. In the case at hand, the state is exercising its judicial independence over the federal judicial system to expand the individual's liberties and rights. The two judicial systems are the state supreme courts and the United States Supreme Court.

In order to be able to predict if this type of judicial federalism will be successful in expanding the right of individuals, it is important to scrutinize the roles of both sides and judicial federalism's disposition. Precedents and case histories of the role of the United States Supreme Court's decisions about judicial federalism must be closely examined to see what kind of decisions the Supreme Court handed down with regard to individual rights. Precedents and case histories of state courts must also be examined to determine their disposition to the expansion of individual rights. It is important to see how the state courts have interpreted their own state's constitutions and what documents will be presented as evidence. An example is school vouchers, which is a burning issue in many states. State courts can interpret the distinctive language of the constitution to protect the rights of their state's citizens. The Bush v. Holmes case in Florida in 2006 proved there are many obstacles presented to judicial federalism. However, it also proved how state constitutions can be used to guarantee the liberties and rights of individuals.

There are advantages and disadvantages to federalism. Here are some advantages:

State governments have the right to establish policies and laws that only pertain to the citizens of that state and are not followed by citizens of other states. These decisions were made based on the feelings of the majority of the people in that state. Same-sex marriage is recognized in some states and is illegal in others. The federal government also does not recognize same-sex marriages.

Federalism divides the work and responsibilities of the various branches of the government and allows for each branch to utilize its resources best. The federal government concentrates on the defense of the country and on international affairs, while the state government concentrates on the day-to-day activities of its citizens.

Here are some disadvantages:

Federalism can lead to competition between the states and regions. Each state is competing for its share of federal dollars. Federalism can also lead to selfishness within states. The states might institute laws and policies that may be detrimental to the region. They could, for example, institute laws regarding industrialization that can hinder the growth of a neighboring state.

Selected full-text books and articles on this topic

The Silver Anniversary of New Judicial Federalism
Gormley, Ken.
Albany Law Review, Vol. 66, No. 3, Spring 2003
Federal Law in State Court: Judicial Federalism through a Relational Lens
Copeland, Charlton C.
The William and Mary Bill of Rights Journal, Vol. 19, No. 3, March 2011
Judicial Federalism after Bush V. Gore: Some Observations
Solimine, Michael E.
Justice System Journal, Vol. 23, No. 1, January 1, 2002
PEER-REVIEWED PERIODICAL
Peer-reviewed publications on Questia are publications containing articles which were subject to evaluation for accuracy and substance by professional peers of the article's author(s).
Respecting State Courts: The Inevitability of Judicial Federalism
Michael E. Solimine; James L. Walker.
Greenwood Press, 1999
The Role of State Supreme Courts in the New Judicial Federalism
Susan P. Fino.
Greenwood Press, 1987
Judicial Federalism: The Resurgence of the Supreme Court's Role in the Protection of State Sovereignty
Wise, Charles.
Public Administration Review, Vol. 58, No. 2, March-April 1998
PEER-REVIEWED PERIODICAL
Peer-reviewed publications on Questia are publications containing articles which were subject to evaluation for accuracy and substance by professional peers of the article's author(s).
State Courts as Agents of Federalism: Power and Interpretation in State Constitutional Law
Gardner, James A.
William and Mary Law Review, Vol. 44, No. 4, March 2003
Federal Authority vs. State Autonomy: The Supreme Court's Role Revisited
Jensen, Laura S.
Public Administration Review, Vol. 59, No. 2, March 1999
PEER-REVIEWED PERIODICAL
Peer-reviewed publications on Questia are publications containing articles which were subject to evaluation for accuracy and substance by professional peers of the article's author(s).
Interest Groups and Judicial Federalism: Organizational Litigation in State Judiciaries
Donald J. Farole Jr.
Praeger, 1998
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