Putting the Politics Back into the Political Safeguards of Federalism

Posted: 1 Mar 2000

Date Written: Fall 1999

Abstract

The Supreme Court's aggressive foray into federalism is obviously motivated by the legal philosophies and ideological predispositions of the Justices--but these are philosophies and ideologies fortified by beliefs about history. The present Court's zealous enthusiasm for intervening to protect states from Congress is plainly animated by a conviction that, in doing so, it is acting virtuously to recapture the true, historical Constitution, mistakenly abandoned in the years after the New Deal. In fact, aggressive judicial intervention to protect the states from Congress is consistent with neither the original understanding nor with more than two centuries of practice. The Founders believed that any attempt by Congress to usurp state power could and would be thwarted, just as similar attempts by the King and Parliament had always been thwarted: by popular political appeals organized under the leadership of state officials. This was republican politics, as understood and experienced in colonial and Revolutionary America. Unfortunately, no one anticipated the development of parties, which emerged in the 1790s from the crucible of learning to manage politics in an extensive republic. Party politics swiftly replaced republican politics and complicated what the Founders had erroneously assumed would be a permanent and natural antagonism between state and national politicians. Within less than a decade, cross-system connections formed through the incipient parties rendered the state governments unreliable watchdogs over federal activity. Yet rather than substitute a system of judicial review, this failed original understanding was replaced by the new politics, a politics that preserved the states' voice in national councils by linking the political fortunes of state and federal officials through their mutual dependence on decentralized political parties. It is this system of politics--built originally around parties but since embellished by other institutions that emerged as the nation matured (such as lobbies, think-tanks, and the national media)--that accounts for the continued success of American federalism. The current Supreme Court's determined encroachment on this system is as unnecessary as it is misguided.

Suggested Citation

Kramer, Larry D., Putting the Politics Back into the Political Safeguards of Federalism (Fall 1999). Columbia Law Review, Vol. 100. Available at SSRN: https://ssrn.com/abstract=206008

Larry D. Kramer (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-4455 (Phone)

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