The Rehnquist Court and Horizontal Federalism: An Evaluation and a Proposal for Moderate Constitutional Constraints on Horizontal Federalism

85 Pages Posted: 29 Sep 2004 Last revised: 27 Mar 2014


Horizontal federalism is an essential part of our Constitution. Although vertical federalism (the allocation of authority between the federal and state governments) has been a major concern of the Rehnquist Court, it has not been similarly concerned with horizontal federalism - the relation of the states. In fact, one might say the Court treats each area of horizontal federalism separately without considering what it is doing in another area. Specifically, the Court has placed strong due process limits on punitive damages, it has given no content to the full faith and credit clause, and it has retreated from earlier constraints in its latest dormant commerce clause case.

Because states can interfere with state sovereignty almost as much as the federal government can, this author believes that the Court should give as much attention to horizontal federalism as it does to vertical federalism. In addition, this writer believes that the Court should enforce horizontal federalism because it is part of the constitutional structure, because states should not be able to improperly externalize costs and internalize benefits, and because horizontal federalism provides important protections for individuals.

This paper will concentrate on three constitutional provisions that regulate the relations among the states: the due process clause of the fourteenth amendment, the full faith and credit clause, and the dormant commerce clause. Part II will examine the strong due process constraints the Court has placed on a state's authority to impose punitive damages in torts cases based on conduct in other states. It will conclude that those limits are proper under the due process clause, but that the Court has not correctly stated the basis for those limits. Part III will discuss the Court's full faith and credit clause cases concerning choice of law and judgments. This Part will conclude that the Court has given almost no content to the full faith and credit clause in choice of law cases and it has improperly created exceptions to full faith and credit for judgments. It will also propose a consistent standard for giving full faith and credit to another state's laws and judgments. Part IV will evaluate the Court's approach to the dormant commerce clause, and it will argue that the Court has retreated from the proper dormant commerce clause analysis in its latest important case in this area.

Part V will examine the Court's horizontal federalism jurisprudence as a whole. It will contend that the Court has no consistent approach to horizontal federalism; rather, it has used horizontal federalism to further its agenda in other areas, particularly concerning limits on punitive damages. This Part will then propose that the Court adopt consistent, moderate constitutional constraints on horizontal federalism based on the Constitution's structural provisions that limit a state's ability to extend its laws beyond its authority.

Keywords: federalism, constitutional law, conflicts

Suggested Citation

Fruehwald, Edwin S., The Rehnquist Court and Horizontal Federalism: An Evaluation and a Proposal for Moderate Constitutional Constraints on Horizontal Federalism. Hofstra Univ. Legal Studies Research Paper No. 04-19, Available at SSRN:

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