The Early Hours of the Post-World War Ii Model of Constitutional Federalism: The Warren Court and the World

Posted: 21 Jun 2005


The Warren Court is often portrayed as hostile to constitutional federalism. But this critique misses the degree to which the Warren Court's jurisprudence was reparative of the legitimacy of state governments, while at the same time it advanced a new form of post-World War II constitutional federalism. The Warren Court's decisions, especially on apportionment, in important respects strengthened the legitimacy of state governments. It is even arguable that the Court's decisions, by providing the impetus for a more democratically legitimate form of state government, helped contribute to a revival of states as a locus of reform, contributing to the more aggressive judicially enforced federalism limits on national power in the late 20th century.

The post World War II model of constitutional federalism, which reaction to the human rights abuses of World War II helped legitimate, guarantees a set of basic individual rights against all levels of government. It is a model that the political branches of the United States government supported in the postwar reconstruction of Germany. In raising the floor of basic constitutional norms designed to protect individuals from unfair treatment by any government, state or federal, the Warren Court both anticipated and reflected a burgeoning recognition of worldwide standards of human rights and human dignity, in international documents and in the new constitutions adopted in other federal systems such as Germany, India, and, later on, Canada. The Court's insight that, in a post-Hitler world, all governments must be held to high standards of protection for the rights of the individual and that such standards were not incompatible with vigorous states in a federal union, was consistent with burgeoning models of post-war constitutional federalism.

Suggested Citation

Jackson, Vicki C., The Early Hours of the Post-World War Ii Model of Constitutional Federalism: The Warren Court and the World. EARL WARREN AND THE WARREN COURT: THEIR LEGACY IN AMERICAN AND FOREIGN LAW, Harry Scheiber, ed., Institute of Governmental Studies Press, UC Berkeley, 2005. Available at SSRN:

Vicki C. Jackson (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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