The Judicial Safeguards of Federalism

By Devins, Neal | Northwestern University Law Review, Fall 2004 | Go to article overview

The Judicial Safeguards of Federalism

Devins, Neal, Northwestern University Law Review


There is no federalism constituency within Congress. Not only do federal lawmakers and national lobbyists gladly sacrifice federalism in order to advance other interests, but state officials also "have systematic political interests that often cause them to undermine federalism."1 In explaining why both state and federal officials discount federalism, John McGinnis and Ilya Somin's Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System provides an important and persuasive critique of the claim that the national political process inevitably protects federalism.2

My comments will extend Federalism v. States Rights in two ways. First, I will posit an alternative explanation as to why the national political process does not value structural federalism. In particular, I will argue that even if the American people were well informed about the benefits of federalism, they would still trade off those benefits in order to secure other policy objectives. For this reason, I think McGinnis and Somin are wrong in suggesting that informed voters would likely value federalism over other objectives and, consequently, that the problem with the political process policing federalism is that Americans are "know nothings" who have little incentive to learn about, let alone "monitor[,] the federal state balance."3 As I will argue in section II of this Comment, there is no reason to believe that the problem with federalism is that the principals (the American voters) lack the impetus to check their agents (state and federal officials). The problem is more pervasive: No one really cares about federalism.4

Second, by looking at congressional responses to the Rehnquist Court's federalism revival, I will argue that the Court could successfully pursue a more ambitious theory of structural federalism. In short, because interest groups, voters, and elected officials care more about underlying policy issues than about structural protections, there is no federalism constituency to block the Rehnquist Court's reinvigoration of federalism. This conclusion is in tension with McGinnis and Somin's contention that federal and state officials strongly support deferential judicial review of federalism issues and, as such, might resist additional judicial tightening of Congress's powers.


Americans have low levels of political knowledge and almost no knowledge of the division of power between federal and state governments.5 Extrapolating from social science research on political knowledge, McGinnis and Somin offer a common sense explanation for voter ignorance on federalism: Unlike issues such as gun control, same sex marriage, and the death penalty, federalism is "too abstract and complicated to engage the passion of citizens."6 What, then, of Americans who are well-informed about the federal-state balance, including the benefits of federalism outlined in Federalism vs. States ' Rights'? Would they trade off federalism for other objectives?

The answer to this question is important. One premise of the principal-agent theory that animates McGinnis and Somin's analysis is that informed Americans would not sacrifice structural federalism. Otherwise, there would be no need for judicial enforcement of federalism to protect the interests of voter/principals. Voter/principals, instead, would simply be part of a governmental system that regularly discounts federalism. Under this scenario, the Supreme Court might still protect federalism. But the rationale for such protection would not be moored to principal-agent theory. The justification for judicial protection of federalism, instead, would be tied to judicial efforts to advance the public interest or the Court's belief that the text and original meaning of the Constitution mandate judicial enforcement of federalism.7

McGinnis and Somin, to their credit, call attention to some of the reasons that informed voters might subordinate federalism to substantive policy objectives. …

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