Federalism and the Rehnquist Court: A Normative Defense

Abstract

The revival of federalism limits on national power by the U.S. Supreme Court is a happy development for three reasons. First, judicial review is as beneficial and as needed in federalism cases as it is in Fourteenth Amendment cases, and such judicial review does not raise the problems of the countermajoritarian difficulty. Second, Congress cannot be trusted alone to police the federalism boundaries that limit its own power. Finally, federalism is an incredibly important feature of the American constitutional order. This is indicated by (1) the prominence of federalism concerns in the text of our Constitution; (2) the importance of federalism in other countries around the world today; (3) the fact that the economics of federalism suggest some well-known reasons why constitutionally mandated decentralization is a good thing; and (4) the serious concerns about the dangers of excessive national power implicated by the specific issues that the Supreme Court's federalism case law touches upon.