Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea

Abstract:     
Like Gaul, this essay is divided into three parts. The first two parts are adapted from a public address delivered at the Association of the Bar of the City of New York, as part of its Bicentennial series, in 1987. The third part was added later, originally as an Addendum Note.

The general subject was introduced by the moderator, Mr. Robert MacCrate, President of the Amerian Bar Association, who put the following question: "Where does the federalism of the Constitution stand today?" Professor Martha Field of the Harvard Law School presented a paper in first response. This paper then followed, and both will eventually appear with a number of other papers in book form, by Random House, some time in 1988 or 1989.

The metaphor of "the cellophane sea" in the title is borrowed from a dissent by Justice Frankfurter in United States v. Kahriger, demurring to the suggestion that enumerated-power nominalism is the sole test of federalism judicial review. I wholly agree with that dissent. The argument presented here is that the same kind of "illegitimate use" analysis Frankfurter invoked in the cellophane-wrapped tax case is, contrary to the conventional view, equally applicable to commerce power cases and every other enumerated power case as well.

At one point (toward the end of Part I), a hypothetical act of Congress is proposed. The reader is invited to choose between two mutually exclusive ways of resolving its constitutionality, as suggested alternatively, in Part II. Part III revisits the general problem of navigating the cellophane sea.

Number of Pages in PDF File: 32

Keywords: federalism, judicial review

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