Enhancing Government: Federalism for the 21st Century

Enhancing Government: Federalism for the 21st Century

Enhancing Government: Federalism for the 21st Century

Enhancing Government: Federalism for the 21st Century


Federalism- the division of power between national and state governments- has been a divisive issue throughout American history. Conservatives argued in support of federalism and states' rights to oppose the end of slavery, the New Deal, and desegregation. In the 1990s, the Rehnquist Court used federalism to strike down numerous laws of public good, including federal statutes requiring the clean up of nuclear waste and background checks for gun ownership. Now the Roberts Court appears poised to use federalism and states' rights to limit federal power even further.

In this book, Erwin Chemerinsky passionately argues for a different vision: federalism as empowerment. He analyzes and criticizes the Supreme Court's recent conservative trend, and lays out his own challenge to the Court to approach their decisions with the aim of advancing liberty and enhancing effective governance. While the traditional approach has been about limiting federal power, an alternative conception would empower every level of government to deal with social problems. In Chemerinsky's view, federal power should address national problems like environmental protection and violations of civil rights, while state power can be strengthened in areas such as consumer privacy and employee protection.

The challenge for the 21st century is to reinvent American government so that it can effectively deal with enduring social ills and growing threats to personal freedom and civil liberties. Increasing the chains on government- as the Court and Congress are now doing in the name of federalism- is exactly the wrong way to enter the new century. But, an empowered federalism, as Chemerinsky shows, will profoundly alter the capabilities and promise of U. S. government and society.


In this book, I challenge the traditional conception of federalism as a limit on federal power very much followed by the Supreme Court over the past ten years. I argue for an alternative vision of federalism as empowerment of government at all levels. the federalism of the 1990s and the early twenty-first century—in both the Supreme Court and Congress—has been about restricting federal authority for the sake of protecting states' autonomy. the new Supreme Court, with Chief Justice John Roberts and Justice Samuel Alito, is likely to be even more aggressive in limiting federal power in the name of states' rights. This book strongly criticizes this approach as failing to serve the underlying goals of federalism and, more generally, of government. Federalism should be reconceived as being about equipping each level of government with expansive tools to enhance liberty and deal with social problems.

The genius of having multiple levels of government is that there are many different actors—federal, state, and local—that can advance freedom and respond to society's needs. Yet, the federalism decisions over the past decade have been striking in that they have ignored these values and have applied federalism principles in a highly formalistic fashion to invalidate desirable government actions.

In the 1990s, the Supreme Court used federalism as the justification for declaring unconstitutional federal laws requiring the cleanup of nuclear waste and background checks for people seeking to own firearms, prohibiting guns near schools, and allowing victims of gender-motivated violence to sue in federal court. All of these are unquestionably socially beneficial laws. Few in our society would argue against containing radioactive material or in favor of having guns near schools and permitting criminals unrestricted access to firearms. Yet, the Supreme Court's . . .

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