The Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. The Court has been attacked for overstepping its bounds and, by some, on the grounds that the federalism-state balance should be maintained through the political process rather than judicial review. This criticism of the judicial enforcement of federalism fails as a matter of constitutional history and on empirical grounds. The Supreme Court in this era deserves praise, not criticism, for its recent federalism jurisprudence.
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References
1.
Americans with Disabilities Act. Pub. L. No. 101-336.
2.
Brutus. [1788] 1986. XV, 20 Mar. In The Documentary History of the Ratification of the Constitution. Vol. 16, ed. John P. Kaminski and Gaspare J. Saladino. Madison: State Historical Society of Wisconsin.
3.
Choper, Jesse H.1980. Judicial Review and the National Political Process . Chicago: University of Chicago Press.
4.
Dunlap, David W.2000. God, Caesar, and Zoning. New York Times , 27 Aug.
5.
Farrand, Max, ed. 1911. The Records of the Federal Convention of 1787. Vols. 1-3. New Haven, CT: Yale University Press.
6.
Hamilton, Marci A.1994. Discussions and Decisions: A Proposal to Replace the Myth of Self-Rule with an Attorneyship Model of Representation. New York University Law Review69:477-562.
7.
—. 1997. The People: The Least Accountable Branch. University of Chicago Law School Roundtable 4:1-16.
8.
—. 2000. The Calvinist Paradox of Distrust and Hope at the Constitutional Convention. In Christian Perspectives on Legal Thought, ed. Michael McConnell, Angela Carmella, and Robert Cochran.New Haven, CT: Yale University Press.
9.
—. Forthcoming. The Reformed Constitution: Calvinism, Representation, and Congressional Responsibility.
10.
Harlan, John M.1963. Thoughts at a Dedication: Keeping the Judicial Function in Balance. American Bar Association Journal49:943-45.
11.
Kramer, Larry D.2000. Putting the Politics Back into the Political Safeguards of Federalism. Columbia Law Review100:215-93.
12.
O'Connor, Phillip.2000. People with Disabilities March Here, Target High Court Case in Alabama. St. Louis Post-Dispatch, 10 Oct.
13.
Otero, Juan.2000. Congress Moves to Federalize Local Land Use Control . Nation's Cities Weekly, 7 Aug.
14.
Rakove, Jack.1997. The Origins of Judicial Review: A Plea for New Contexts . Stanford Law Review49:1031-64.
15.
Religion and Its Landmarks. 2000. New York Times . 27 July.
16.
Religious Freedom Restoration Act. Pub. L. No. 103-141.
17.
Religious Land Use and Institutionalized Persons Act. Pub. L. No. 106-274.
18.
Religious Liberty Protection Act. 106 H.R. 1691 (passed in House on 15 July 1999).
19.
Rossiter, Clinton, ed. 1961. The Federalist Papers. New York: Penguin Books USA.
20.
Sandler, Ross and David Schoenbrod . Forthcoming. Government by Decree.
21.
Unfunded Mandates Reform Act. Pub. L. No. 104-4.
22.
U.S. House. 1997. Committee on the Judiciary. Hearing Regarding Protecting Religious Freedom After Boerne v. Flores. 105th Cong., 1st sess. 14 July.
23.
—. 1998. Committee on the Judiciary. Oversight Hearing Regarding the Need for Federal Protection of Religious Freedom After Boerne v. Flores. 105th Cong., 2d sess. 26 Feb.; 26 Mar.
24.
—. 2000a. Committee on the Judiciary. State Sovereign Immunity and Protection of Intellectual Property. 106th Cong., 2d sess. 27 July.
25.
—. 2000b. Religious Land Use and Institutionalized Persons Act. 106th Cong., 2d sess., H.R. 4862.
26.
U.S. Senate. 1995a. Committee on the Judiciary. Constitution, State Sovereignty, and Role of Federal Government. 104th Cong., 1st sess. 11 July.
27.
—. 1995b. Committee on the Judiciary. Regarding S. 890—The Gun-Free School Zones Act of 1995. 104th Cong., 1st sess. 18 July.
28.
—. 2000. Religious Land Use and Institutionalized Persons Act. 106th Cong., 2d sess., S. 2869.
29.
Wechsler, Herbert.1954. The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government . Columbia Law Review54:543-60.
30.
Wilson, James. [1787] 1986. Speech to the Pennsylvania Ratifying Convention (Dec. 1, 1787). In The Documentary History of the Ratification of the Constitution, ed. John P. Kaminski and Saladino J. Gaspare.Madison: State Historical Society of Wisconsin .
