Bridging the Enforcement Gap in Constitutional Law: A Critique of the Supreme Court's Theory that Self-Restraint Promotes Federalism

Abstract:     
The Supreme Court has crafted numerous doctrines, such as justiciability and abstention, that enable federal judges to decline to exercise the jurisdiction Congress has granted them over all constitutional cases. The result is that constitutional law is often left to state judiciaries, which almost always have the last word because Supreme Court review has become so rare. State judges sometimes creatively expand or contract constitutional rights, thereby producing enforcement gaps. The Court has insisted that its jurisdictional rules of self-restrain promote the original understanding of federalism, which purportedly viewed state tribunals as highly autonomous and as equal partners with federal courts in enforcing federal constitutional law.

In this article, Professor Pushaw argues that, to the contrary, the Founders established an independent federal judiciary to ensure the supremacy and uniformity of federal law, not to carve out exceptions to federal question jurisdiction that ultimately entrust such law to state courts. He further contends that, if the vast modern increase in federal dockets has made it a practical necessity to create restrictive jurisdictional doctrines, federalism suggests that such limits should be imposed on controversies involving state law (most obviously diversity), not cases arising under the Federal Constitution. Professor Pushaw concludes by recommending that the Court restructure its jurisdictional doctrines to ensure that federal judges adjudicate all cases involving federal constitutional rights, and correspondingly eliminate as many state-law controversies as possible.

Number of Pages in PDF File: 53

Keywords: federal courts, jurisdiction, federalism, constitutional rights

JEL Classification: K4

Accepted Paper Series