The Foundations of Federalism: An Exchange

52 Pages Posted: 24 Feb 2006

See all articles by Randall P. Bezanson

Randall P. Bezanson

University of Iowa College of Law

Steven C. Moeller

University of Iowa - College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: February 2006

Abstract

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18-month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that federalism itself is best seen in non-theoretical terms, but instead as a practical and untidy system of occasions for sober second thought by federal and state governments engaged in the federal legislative process. On federal-state power conflicts, the Constitution should be seen as a purposeful "incompletely theorized agreement," to quote Cass Sunstein.

Keywords: federalism, Constitution, constitutional history, Supreme Court, political philosophy, constitutional law

JEL Classification: K11, K19

Suggested Citation

Bezanson, Randall P. and Moeller, Steven C., The Foundations of Federalism: An Exchange (February 2006). U Iowa Legal Studies Research Paper No. 05-40. Available at SSRN: https://ssrn.com/abstract=886577 or http://dx.doi.org/10.2139/ssrn.886577

Randall P. Bezanson (Contact Author)

University of Iowa College of Law ( email )

Boyd Law Building
Iowa City, IA 52242
United States
319-335-9171 (Phone)
319-335-9098 (Fax)

Steven C. Moeller

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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