Respecting State Courts: The Inevitability of Judicial Federalism

By Michael E. Solimine; James L. Walker | Go to book overview

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The Once-and-Future Federalism

A continuous thread runs through the history of our nation's politics. That thread is federalism: the doctrine and practice of sharing power between two sorts of government, acting on behalf of, and regulating, the same people. We use the term "sorts of government" rather than the more common "levels of government." This is because a key premise of this book is that Washington, D.C. on the one hand, and all of the state capitals on the other, are home to governments that are very different in concept, scope of authority, and, sometimes, political culture.1 And, we

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The questions of size seems obvious enough. There are few if any states, or even regions of the country, that compare with the federal government in terms of size; most, in fact, are positively tiny by comparison. For a discussion of the impact of size on political participation and the formation of civic virtue see Michael J. Sandel, Democracy's Discontent347 ( 1996). See also David L. Shapiro, Federalism: A Dialogue93-94 ( 1995).

As for scope, although it is true that over the last sixty years a severe complacency has set in about the existence of a "federal police power" that virtually eliminates the distinction between state and federal government, that position has never been truly adopted in constitutional law. In fact, in the 1990s, the Supreme Court has held to the contrary, e.g., United States v. Lopez, 514 U.S. 549 ( 1995) (holding part of Gun Free School Zones Act of 1990 beyond Congress' Commerce power); Printz v. United States, 521 U.S. 898 ( 1997) (invalidating provisions of Brady Handgun Violence Prevention Act of 1993, which imposed background check duties on state officials), and may be willing to make even more reaffirmations about the distinction between delegated and reserved powers. See Ann Althouse , "Theoretical and Constitutional Issues: Enforcing Federalism After United States v. Lopez", 38 Ariz. L. Rev. 793 ( 1996); Vicki C. Jackson, "Federalism and the Uses and Limits of Law: Printz and Principle?", 111 Harv. L. Rev. 2180 ( 1998); Evan H. Caminker, "Printz, State Sovereignty, and the Limits of Formalism", 1997 Sup. Ct. Rev. 199; Matthew D. Adler & Seth F. Kreimer, "The New Etiquette of Federalism: New York, Printz, and Yeskey", 1998 Sup. Ct. Rev. 71.

Political culture, on the other hand, is more contentious. For a classic statement of the phenomena see Daniel Elazar, American Federalism: A View From the States ( 3d ed. 1984) or the work of V.O. Key, Jr., especially Southern Politics in State and Nation ( 1949). More

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