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The Elusive Safeguards of Federalism

35 Pages Posted: 14 Nov 2000  

Marci A. Hamilton

Cardozo Law School


The Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. The Court has been attacked for overstepping its bounds, and by some, on the ground that the federalism/state balance should be maintained through the political process rather than judicial review. The most recent advocate of this position, Professor Larry Kramer, has argued that the political party structure ensures state interests are taken into account at the federal level, and therefore the Supreme Court need not and should not enforce federalism guarantees. This criticism of the judicial enforcement of federalism fails as a matter of constitutional history and on empirical grounds. The Supreme Court in this era deserves praise, not criticism, for its recent federalism jurisprudence.

Suggested Citation

Hamilton, Marci A., The Elusive Safeguards of Federalism. Annals of Political and Social Science. Available at SSRN: or

Marci A. Hamilton (Contact Author)

Cardozo Law School ( email )

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