Academic journal article Duke Law Journal

Why Talking about "States' Rights" Cannot Avoid the Need for Normative Federalism Analysis

Academic journal article Duke Law Journal

Why Talking about "States' Rights" Cannot Avoid the Need for Normative Federalism Analysis

Article excerpt


In an article provocatively titled Federalism: Some Notes on A National Neurosis, (1) Edward L. Rubin and Malcolm Feeley diagnose the American concern about federalism as neurotic. Americans' ideas about the states are inappropriate and odd, Rubin and Feeley argue, but they do not seriously interfere with Americans' way of life. (2) Judges and commentators express a fond regard for the states, but they tend to favor only the most modest judicial efforts at preserving local autonomy; they hem in their federalism doctrine so that it can do little to threaten what is, in fact, a profound commitment to national unity.

Lynn A. Baker and Ernest A. Young do not hedge. (3) Unlike Rubin and Feeley's neurotics, who are burdened with an unnecessary obsession, but who do not let it interfere with their healthy pursuit of national uniformity, Baker and Young have no intention of keeping their federalism under control. I suppose Rubin and Feeley would diagnose them as psychotic. But Baker and Young turn Rubin and Feeley's notion on its head: they--in effect--diagnose Americans with post-traumatic stress disorder. It is not that ideas about federalism fog their straight thinking; rather, it is that nightmares from the past debilitate them. Americans cannot contemplate state and local government autonomy without having flashbacks to the nation's history of slavery, segregation, and racism. As Baker and Young see it, this flood of bad memories is disabling Americans from thinking accurately about--dare we say it?--states' rights. (4)

It is Baker and Young's assertion that that past is over, and that it is now safe to reap the benefits of real state autonomy. Part I of this Essay discusses Baker and Young's embrace of the term "states' rights" and examines whether it makes sense to equate the rights of states to the rights of individuals. Part II considers their contention that a "double standard" of constitutional interpretation exists and has a significant effect. Part III looks at their attack on the belief that Congress can protect state interests sufficiently. Ultimately, I conclude that there is no escape from the normative question: Will state autonomy do more harm than good? How this question is answered inevitably drives the thinking about whether to endorse stronger judicial enforcement of state autonomy and whether the label "states' rights" can be tolerated.


Baker and Young boldly employ the inflammatory term "states' rights." (5) Before reading their wonderfully assertive new article, I had thought the term states' rights survived only in the vocabulary of opponents of the Supreme Court's recent efforts on behalf of the states. (6) "Federalism," I would have thought, is the term of choice for supporters of the Court's current jurisprudence. The term federalism conjures up more functional and pragmatic ideas about the role of the states. In Younger v. Harris, (7) Justice Black wrote of

   a proper respect for state functions, a recognition of the fact that the
   entire country is made up of a Union of separate state governments, and a
   continuance of the belief that the National Government will fare best if
   the States and their institutions are left free to perform their separate
   functions in their separate ways. This, perhaps for lack of a better and
   clearer way to describe it, is referred to by many as "Our Federalism," and
   one familiar with the profound debates that ushered our Federal
   Constitution into existence is bound to respect those who remain loyal to
   the ideals and dreams of "Our Federalism." The concept does not mean blind
   deference to "States' Rights" any more than it means centralization of
   control over every important issue in our National Government and its
   courts.... [It] is a system in which there is sensitivity to the legitimate
   interests of both State and National Governments, and in which the National
   Government, anxious though it may be to vindicate and protect federal
   rights and federal interests, always endeavors to do so in ways that will
   not unduly interfere with the legitimate activities of the States. … 
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