The Third Death of Federalism

83 Pages Posted: 23 May 2007 Last revised: 2 May 2010

See all articles by A. Christopher Bryant

A. Christopher Bryant

University of Cincinnati - College of Law

Date Written: May 16, 2007


Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the White and Taft Courts similarly faltered when the Justices professed dedication to federalism was tested by congressional overreaching in the name of guarding the people from narcotics and other temptations to perceived moral vices. In sustaining what the Justices no doubt believed to be laudatory federal morals regulations, they sowed the seeds of federalism's first death twenty years later. For during the constitutional crisis of the 1930s, the Court's critics pointed to this earlier compromise of federalism principles in their efforts to expose as pre-textual the Court's invalidation of New Deal legislation on the ground that it exceeded Congress's enumerated powers.

This article explores the parallels between the neglected history of federal narcotics laws and the Court's recent rulings in Gonzales v. Raich and Gonzales v. Oregon. The full significance of those decisions can be perceived only when they are viewed in the light cast by the turbulent history of federal narcotics regulation. Then and now, drug abuse provokes intense reactions, both physical and emotional. The history suggests that now, as then, the Court's decisions may prove more portentous than they might at first appear. In addition, this parallel also begs more general questions about the feasibility of judicial efforts to enforce federalism. The final part of this article identifies and ventures some preliminary reflections on these issues.

Keywords: Federalism, Drug Laws, Supreme Court, Rehnquist Court, Constitutional Law

JEL Classification: K40, K49

Suggested Citation

Bryant, A. Christopher, The Third Death of Federalism (May 16, 2007). Cornell Journal of Law and Public Policy, Vol. 17, p. 101, 2007, U of Cincinnati Public Law Research Paper No. 07-08, Available at SSRN:

A. Christopher Bryant (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-6805 (Phone)
513-556-1236 (Fax)

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