Anti-Federalist Procedure

65 Pages Posted: 8 May 2006 Last revised: 2 Apr 2013


The last decade has witnessed the rise and growth of a surprising and disconcerting trend: Congress has pursued legislation, and the Supreme Court has rendered decisions, that impose upon, supplant, or usurp the judicial authority of states and their courts. This trend is surprising because those who have implemented it have been the foremost proponents of limited federal government and respect for state sovereign authority. The trend is disconcerting because it jeopardizes those very principles. Federal attempts to control state court jurisdiction or judicial procedure—what I refer to as "anti-federalist procedure" —not only offend state sovereignty and principles of constitutional federalism but have also been achieved through improper exercises or interpretations of the Commerce Clause authority or through expansive and untenable doctrinal contrivances of the Supreme Court. Moreover, anti-federalist procedure threatens state republicanism in violation of the Constitution's Guarantee Clause while expanding federal jurisdiction beyond the scope of authority conferred by Article III. In short, anti-federalist procedure unduly intrudes upon the sovereign authority of states, often has dubious constitutional validity, and is frequently driven more by substantive policy preferences that trump fealty to federalist principles. This Article reviews and critiques this phenomenon and offers a set of federalism-respecting procedural reforms that should properly confine federal procedural policymaking.

Keywords: Federalism, States' Rights, Civil Procedure, State Sovereignty, Tort Reform, Tenth Amendment, Guarantee Clause, Commerce Clause, Constitutional Law, Damages Caps, Schiavo, Bush v. Gore, Preemption, Federal Jurisdiction, Supplemental Jurisdiction

Suggested Citation

Spencer, A. Benjamin, Anti-Federalist Procedure. Washington & Lee Law Review, Vol. 64, p. 233, 2007, Available at SSRN:

A. Benjamin Spencer (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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