No Praise for Process Federalism: The Political Safeguards Mirage and the Necessity of Substantial, Substantive Judicial Review
20 Pages Posted: 28 Oct 2016 Last revised: 1 Nov 2016
Date Written: October 1, 2016
In this Essay on the occasion of the Villanova Law Review's 60th anniversary, I critique process federalism and its persistent claim that the national political process provides any kind of adequate representation of states' interests. Even modest versions of process federalism, such as Professor Ernie Young's formulation, must rely on a tenuous claim that states are represented in the national political process. Since the elimination of state legislative election of U.S. senators by the 17th Amendment, that predicate representation has been absent, both actually and virtually. Claims to the contrary fail on closer inspection. Accordingly, the process theorist's faith in the national political process rings hollow and leaves room for very substantial doubt that process federalism could ever sufficiently police the scope of congressional power and the appropriate federal balance.
Moreover, failures in the national political marketplace for popular loyalty abound. Non-transparency, popular political ignorance, and inefficiency at the modern senatorial ballot box all but assure resort to the political process will almost never safeguard federalism adequately. Accordingly, substantial, substantive judicial review continues to remain necessary to safeguard what the political process will not -- the structural value of federalism.
Keywords: judicial review, process federalism, representation reenforcement, 17th Amendment, transparency, accountability
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