The Foundations of Federalism: An Exchange
52 Pages Posted: 24 Feb 2006
Date Written: February 2006
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: Suggested Citation