Defeasible Federalism

66 Pages Posted: 17 Feb 2012 Last revised: 26 Nov 2012

See all articles by Garrick B. Pursley

Garrick B. Pursley

Florida State University - College of Law

Date Written: February 15, 2012

Abstract

What does it mean for federalism — obviously an issue of constitutional magnitude — to influence constitutional doctrine without being the object of constitutional doctrine? My descriptive claim is that this does occur — concern about the effects of government action or constitutional doctrine on the viability of the federalist system have influenced doctrinal formulation in Commerce Clause cases, dormant Commerce Clause cases, preemption cases, and constitutional rights cases, among other areas. But, to date, the constitutional theory literature has overlooked the basic question of the nature and conceptual status of what courts call, variously, federalism “impacts,” “effects,” or “concerns” in these peculiar contexts. Federalism does not always have the decisive weight conventionally attributed to constitutional norms — it functions as a defeasible reason for decision in some situations. How can a constitutional norm be overridable by non-constitutional — even non-legal — considerations in certain cases? We need new analytic tools to distinguish federalism’s different roles. I develop an account in which federalism’s normative force varies from full and decisive where the stakes for the stability of the constitutional structure are high to overridable where the structural stakes are lower but the public policy stakes are high.

Keywords: federalism, constitutional theory, underenforcement, preemption, anticommandeering, doctrine, functionalist, Supreme Court

Suggested Citation

Pursley, Garrick, Defeasible Federalism (February 15, 2012). FSU College of Law, Public Law Research Paper No. 614, University of Toledo Legal Studies Research Paper No. 2012-14, Available at SSRN: https://ssrn.com/abstract=2005990 or http://dx.doi.org/10.2139/ssrn.2005990

Garrick Pursley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
103
Abstract Views
1,480
Rank
488,763
PlumX Metrics