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The Puzzling Persistence of Process-Based Federalism Theories


Saikrishna Prakash


University of Virginia School of Law

John Yoo


University of California at Berkeley School of Law; American Enterprise Institute


Texas Law Review, June 2001

Abstract:     
The theory of the political safeguards of federalism has made a recent comeback, appearing in Supreme Court dissents by Justices Breyer and Souter and in prominent articles by Professor Larry Kramer and Professor Brad Clark. We argue that the idea that the political process can wholly replace judicial review in policing the boundaries between federal and state power is inconsistent with the text, structure, and original understanding of the Constitution. None of these sources allows the federal courts to exercise judicial review while simultaneously excluding entire subject matters from its protections - especially one as central to the constitutional structure as federalism. The political-safeguards theory treats judicial review as purely functional and almost discretionary, while we believe that the constitutional text, structure, and history impose judicial review as a mandatory duty on the courts. We show that political safeguards theory creates severe distortions in the constitutional structure, as does Kramer's provocative theory that the extra-constitutional role of the national political parties can serve as a complete substitute for judicial review of federalism questions. Finally, we show that the original understanding of the Constitution cannot support any theory that insists that the national political process's presence as a possible safeguard permits the exclusion of judicial review over federalism questions.

Number of Pages in PDF File: 74

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Date posted: May 3, 2001  

Suggested Citation

Prakash, Saikrishna and Yoo, John, The Puzzling Persistence of Process-Based Federalism Theories. Texas Law Review, June 2001. Available at SSRN: http://ssrn.com/abstract=268862 or http://dx.doi.org/10.2139/ssrn.268862

Contact Information

Saikrishna Prakash
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
John Choon Yoo (Contact Author)
University of California at Berkeley School of Law ( email )
Boalt Hall
890 Simon
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)
American Enterprise Institute ( email )
1150 17th Street, N.W.
Washington, DC 20036
United States
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