Toward a Theory of Interactive Federalism
105 Pages Posted: 2 Jun 2005
Dual federalism is dead, but its spirit continues to haunt contemporary discussions of federalism. Neither courts nor scholars embrace dual federalism's goal of creating exclusive and non-overlapping spheres of state and national authority. Nevertheless, the dualist conception of federalism as a line-drawing exercise persists. This Article offers an alternative conception that understands the interaction of national and state governments, rather than their separation, as the primary means of realizing the aims of federalism.
The focus on drawing lines between state and federal authority has led current federalism doctrine in unfortunate directions. In an attempt to create a protected realm of state control, the Rehnquist Court has used the concept of "noncommercial" activity as a limit on federal power. The distinction between commercial and noncommercial activity, however, has proven difficult to define. At the same time, the Court's conception of federalism has provided no assistance in clarifying the relationship of state and national authority in the vast areas of inevitable overlap. With regard to preemption and the dormant Commerce Clause, areas in which the "noncommercial" activity category has no application, the Court has failed to produce a coherent federalist approach. Instead the Court has broadly restricted the exercise of state power. Contemporary scholarly debates about federalism have been plagued by similar dualist tendencies. Commentators engage in irreconcilable disputes over the potential benefits and harms of separating state and federal authority. Dualist theories, moreover, provide no guidance to legislatures or courts in resolving the inevitable conflicts that arise in areas of concurrent state and federal regulation. Existing scholarship thus offers little assistance in assessing such important federal-state initiatives as the federal No Child Left Behind Act.
After examining some promising, but ultimately unsatisfactory alternatives, the Article offers a "polyphonic" conception of federalism to replace the now regnant dualism. Polyphonic federalism does not divide state and federal authority, but instead seeks to harness the interaction of state and national power to advance the goals associated with federalism. By rejecting the need to draw lines between state and federal realms, the polyphonic conception avoids the problems that have plagued judicial doctrine and federalism theory. The Article concludes by illustrating how courts can serve as crucial nodes of interaction between federal and state authority. In this way, the courts can fulfill the goals of federalism, including the protection of individual rights.
Keywords: Federalism, Constitutional Law
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