The Foundations of Federalism: An Exchange
The Journal of Philosophy, Science & Law, Vol. 7, March 12, 2007
50 Pages Posted: 23 Mar 2007
One hears the word "federalism" with some frequency these days. The debates over medical marijuana, capital punishment, abortion, assisted suicide, capital punishment, school financing, and even environmental policy, all have vital federalism dimensions. On these and other issues, the word "federalism" has transformed from a tired shibboleth for political conservatism into a more interesting, if complex, focus for conversation and debate.
The debate continues, but lawyers, academics, and concerned citizens who seek guidance on federalism issues in the pages of the United States Reports will not find a consistent theory of federalism within. The United States Supreme Court's fractured federalism opinions provide invariably Byzantine, frequently contradictory, and generally unhelpful advice. We share the frustrations of those who search for a new paradigm. In light of the enormous size and scope of the federalism question, we feel that the best way to move the conversation forward - the best way really to explore the secret workings of American federalism - is to break free of existing categories. What is called for is a free-wheeling, broad ranging, and altogether unreserved dialectic. Accordingly, we offer the reader the following exchange as a contribution to the ongoing scholarly dialogue on federalism.
Keywords: federalism, commerce clause, federalism issues, developing federalism jurisprudence, intergovernmental immunities, enumerated powers, constitutional provisions
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