Federalism as Balance

73 Pages Posted: 27 Jan 2005 Last revised: 23 Feb 2010

Robert Justin Lipkin

Widener University School of Law

Abstract

Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore can play no identifiable analytic role in either conceptualizing or resolving federalist conflicts. The failure of federalism as balance to be an analytically sound element in understanding federalism is an additional reason for reexamining the political safeguards argument for enforcing federalism. Without sufficient analytic content, federalism as balance is merely a rhetorical device which legislators can use just as well or as poorly as judges.

Keywords: Federalism, balance, jurisprudence

Suggested Citation

Lipkin, Robert Justin, Federalism as Balance. Tulane Law Review, Vol. 79, 2004. Available at SSRN: https://ssrn.com/abstract=655242

Robert Justin Lipkin (Contact Author)

Widener University School of Law ( email )

PO Box 7474
4601 Concord Pike
Wilmington, DE 19803
United States
302-477-2193 (Phone)
302-477-2255 (Fax)

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