Fig Leaf Federalism and Tenth Amendment Exceptionalism

15 Pages Posted: 7 Apr 2005 Last revised: 4 Dec 2007

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law


The Supreme Court's jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O'Connor in her dissenting opinion twenty years ago in Garcia v. San Antonio Metro. Transit Auth. If adopted by the Court, this synthesis of the O'Connor and Scalia suggestions could work a real transformation in its federalism jurisprudence, and without some of the potentially radical side-effects that have thus far made the Court timorous and inconsistent. This very short paper explains how the synthesis would work, and why the Court should adopt it.

Keywords: federalism, jurisprudence, Tenth Amendment

JEL Classification: H11

Suggested Citation

Lund, Nelson Robert, Fig Leaf Federalism and Tenth Amendment Exceptionalism. Constitutional Commentary, Vol. 22, No. 1, pp. 11-24, Spring 2005; George Mason Law & Economics Research Paper No. 05-10. Available at SSRN:

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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