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- Title
THE RETURN OF CONSTITUTIONAL FEDERALISM.
- Authors
SAWYER III, LOGAN EVERETT
- Abstract
The return of federalism to a prominent and hotly contested place in constitutional jurisprudence is one of the most important legal developments of the last half-century. But this Article argues that current explanations for the return of constitutional federalism are flawed in ways that distort our understanding of constitutional development and impoverish current debates over the judicial protection of state authority. Conventional jurisprudential approaches cannot explain why the Court in the 1970s began to turn away from long-established doctrinal principles and a decades-old theoretical justification for deference on federalism questions. Political approaches cannot explain why that shift originated with Justices associated with the political left. This Article offers an explanation for the return of federalism to prominence in our constitutional law that ignores neither the Court's unique institutional norms nor the importance of political change outside the Court. Through a close examination of the first decision since the New Deal to invalidate an exercise of Congress's commerce power on federalism grounds--the 1976 decision in National League of Cities v. Usery--it shows how durable changes in American government and politics undermined the dominant jurisprudential justification for deference on federalism questions. As the consensus surrounding the political safeguards of federalism collapsed, the debate over constitutional federalism returned. By portraying constitutional development as a result of the interaction of jurisprudential norms and political change, this approach casts light on contemporary efforts to generate constitutional change and current debates over the value of constitutional federalism.
- Subjects
UNITED States; FEDERAL government of the United States; CONSTITUTIONAL law; JURISPRUDENCE; UNITED States. Supreme Court; HISTORY of the United States Constitution; JUDICIAL deference; ATTITUDES of U.S. Supreme Court justices; NATIONAL League of Cities v. Usery (Supreme Court case); HISTORY
- Publication
Denver University Law Review, 2014, Vol 91, Issue 2, p221
- ISSN
0883-9409
- Publication type
Article