Federalism as a Constitutional Principle

25 Pages Posted: 5 Mar 2015

Date Written: March 3, 2015

Abstract

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and institutional checks powered by political opportunism are important in maintaining the federal system, that system is unlikely to survive and flourish unless Americans continue to feel a meaningful degree of loyalty to their states as distinctive political communities.

Keywords: federalism, state sovereignty

Suggested Citation

Young, Ernest A., Federalism as a Constitutional Principle (March 3, 2015). University of Cincinnati Law Review, Forthcoming; Duke Law School Public Law & Legal Theory Series No. 2015-12. Available at SSRN: https://ssrn.com/abstract=2573338

Ernest A. Young (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8506 (Phone)

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