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

See all articles by Tuan Samahon

Tuan Samahon

Villanova University - School of Law

Date Written: October 1, 2016

Abstract

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

Suggested Citation

Samahon, Tuan, No Praise for Process Federalism: The Political Safeguards Mirage and the Necessity of Substantial, Substantive Judicial Review (October 1, 2016). Villanova Law Review, Vol. 61, No. 3, 2016; Villanova Law/Public Policy Research Paper No. 216-1035. Available at SSRN: https://ssrn.com/abstract=2859571

Tuan Samahon (Contact Author)

Villanova University - School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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