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Foreword: On the Judicial Safeguards of Federalism

17 Pages Posted: 31 Mar 2008 Last revised: 16 Apr 2008

Robert Reinstein

Temple University - James E. Beasley School of Law


This short essay, written as an introduction to a symposium on federalism, asks whether there is a judicially enforceable constitutional boundary of exclusive state authority beyond which Congress cannot reach and whether there are areas of state autonomy that may be judicially implied from the nature of our federal system. While the modern Supreme Court's answer to these questions is clearly yes, this essay argues that the text and structure of the Constitution establish that there are no judicially enforceable limits on Congressional power in the cause of federalism, beyond those in the literal text of the Constitution.

I do not rely on the political safeguards of federalism. The Framers did provide the States with three important powers to influence the composition and functioning of the federal government - the powers to select Senators, determine the qualifications for voting for Representatives, and determine the method for selecting Presidential electors. But through a wave of constitutional amendments and collective political action, the citizens of the United States have eliminated or practically nullified these state powers. In consequence, the States today constitute one special interest group out of many.

The nullification of these constitutional prerogatives that the States once enjoyed argues against implying judicially enforceable states' rights. States' rights federalism may have been necessary in a fragmented country, with an embryonic national identity, where the people of one region were ignorant and suspicious of the people of the others. But as our common national identity took shape, and the bonds of the nation subsumed parochial interests, states' rights federalism became an anachronism. The Constitution does continue to contain several explicit rights in the States that must be honored, but there is no warrant for the Supreme Court to reinstate what has been removed, by creating implied spheres of exclusive state autonomy. In short, it is time to acknowledge what the Constitution, viewed as a whole, now makes clear - that the United States has plenary sovereign powers over the several States.

Keywords: exclusive state authority, state autonomy, plenary Congressional power, political safeguards of federalism, states rights, federalism

JEL Classification: K10, K19, K30, K39

Suggested Citation

Reinstein, Robert, Foreword: On the Judicial Safeguards of Federalism. Temple Political & Civil Rights Law Review, 2008; Temple University Legal Studies Research Paper No. 2008-63. Available at SSRN:

Robert Reinstein (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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