Evolving Understandings of American Federalism: Some Shifting Parameters

64 Pages Posted: 5 Jun 2015

Date Written: June 3, 2015

Abstract

This article examines the enduring question of the nature of the American federalism and its supposed role as a constitutional norm. It argues that federalism has not, and cannot, provide specific normative directions for resolving contested constitutional issues. The article stresses the fact that American understandings of the nation’s constitutional federalism were from the beginning sharply contested, and it explores the ways in which those understandings have remained sharply contested over the centuries. In particular, it traces changes that have occurred in ideas about the role of the Supreme Court, the “values” of federalism, the nature of federalism as a structure of government, and the very nature and meaning of the Constitution itself. The article concludes that “originalist” ideas misunderstand the nature of the federal system and that no “originalist” theory can either capture the reality of American constitutional federalism or provide specific normative direction to resolve the contemporary problems it confronts. Rather, American constitutional federalism must be understood as an evolving national enterprise guided generally by certain basic, if contested, values and principles and that those values and principles endure and give the system its true meaning.

Keywords: federalism, constitutionalism, originalism, Supreme Court

Suggested Citation

Purcell, Edward A., Evolving Understandings of American Federalism: Some Shifting Parameters (June 3, 2015). New York Law School Law Review, Vol. 50, No. 3, 2006, Available at SSRN: https://ssrn.com/abstract=2613997 or http://dx.doi.org/10.2139/ssrn.2613997

Edward A. Purcell (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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