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Federal Philosophies and the Structure of American Law

Robert Schütze

in From Dual to Cooperative Federalism: The Changing Structure of European Law

The constitutional battle over the nature of sovereignty and federalism in America produced a compromise in the late nineteenth century: dual federalism. The philosophy of dual federalism suggested a ... More

The constitutional battle over the nature of sovereignty and federalism in America produced a compromise in the late nineteenth century: dual federalism. The philosophy of dual federalism suggested a particular constitutional structure for the idea of duplex regimen: the tasks of government would be divided between two - mutually exclusive – spheres. The federal government and the States were seen as “equal” and “co-ordinate” within their respective spheres. This constitutional solution appeased moderate “Nationalists” and “Statists” for more than a century. The shift away from dual federalism took place in the 1930s and is linked to the American “New Deal”. Modern “New Deal” jurisprudence abandons the conceptual duality between commerce versus police power. The demise of the exclusive spheres equally takes place at the legislative level. Federal pre-emption abandons automatic field pre-emption. The principal exception to the rise of cooperative federalism is foreign affairs. The exclusion of the States from international treaty-making preserves an enclave of dual federalism.Less

The Puzzling Persistence of Dual Federalism

Ernest A. Young

in Federalism and Subsidiarity: NOMOS LV

This chapter examines two ways that account for the persistence of dual federalism. The first is the critics' belief that the Supreme Court is inclined to revive strict dual federalist limits on ... More

This chapter examines two ways that account for the persistence of dual federalism. The first is the critics' belief that the Supreme Court is inclined to revive strict dual federalist limits on national power, even when what the Court actually says and does makes rather clear that it is not. The second has to do with the Supreme Court's rhetoric and doctrine regarding the use of dual federalist notions to limit state power, by defining distinct and exclusive spheres of national regulatory activity. While the chapter acknowledges that the Supreme Court's critics are right to condemn dual federalism, it argues that they are wrong to think that the Court has revived dual federalist limits on national power. It also compares dual federalism with dual sovereignty and considers alternatives to dual federalism, including managerial decentralization or “Marshallian federalism,” cooperative (and uncooperative) federalism, subsidiarity or collective action federalism, process federalism, and immunity federalism. It also comments on the claim that dual federalism is logically self-defeating and concludes with a discussion of the “Frankfurter Constraint”.Less

American Federalisms: From New Foundations to New Federalism

Erin Ryan

in Federalism and the Tug of War Within

Chapter three reviews the history of American federalism as a story of competition between compelling principles in tension with one another, stretching the legal framework in one direction and then ... More

Chapter three reviews the history of American federalism as a story of competition between compelling principles in tension with one another, stretching the legal framework in one direction and then overcorrecting in another. Visualizing operative federalism theory as a four-dimensional pendulum, the chapter describes it swinging freely over time among the independent federalism values—pointing to a favorite at one period in history and another in a different era. Ongoing uncertainty about how judicial doctrine should resolve these issues is reflected by the Court’s vacillating case law over this time period. Chapter three traces the swing of the pendulum through American history, casting its arc in terms of shifting theories about how best to balance competing values. Its fluidity reflects the combined forces of gradual ideological oscillation and occasionally violent tug of war as social events impact the evolution of interpretive federalism theory. The chapter begins with the difficulties that the pioneers of American federalism faced in deciphering what their new concept of dual sovereignty would mean in practice, from the national bank to the southern nullification challenges to the Civil War. Dual federalism emerged as the theoretical touchstone of the nineteenth century, establishing the classical idealism for which later dualist models would yearn. Even so, the challenges of jurisdictional overlap were clear as early as the Federalist Papers and the Constitutional Convention’s replacement of the Articles of Confederation. The chapter then explores federalism’s tug of war during the second half of American history, focusing on the twentieth century. It reviews the Progressive and Lochner eras, the Great Depression and the New Deal, the Civil Rights Movement and Great Society eras that led to the entrenchment of cooperative federalism under the Warren Court, and finally the New Federalism challenge under the Rehnquist Court.Less

The Rehnquist Revival of Jurisdictional Separation

Erin Ryan

in Federalism and the Tug of War Within

Chapter Four outlines the Rehnquist Court’s New Federalism embrace of dual federalism idealism, focusing on its Tenth Amendment and preemption cases. Beginning with reflections on the Court’s ... More

Chapter Four outlines the Rehnquist Court’s New Federalism embrace of dual federalism idealism, focusing on its Tenth Amendment and preemption cases. Beginning with reflections on the Court’s problematic quest for jurisprudential absolutes, the chapter compares the contemporary Tenth Amendment anti-commandeering cases to their predecessors. It then reviews dualist elements in other doctrinal areas of the New Federalism, including expanded state sovereign immunity under the Eleventh Amendment and limited federal power under the Commerce Clause and Section Five of the Fourteenth Amendment. Finally, the chapter explores how the Rehnquist Court’s federalism and preemption cases join to reify greater separation between idealized spheres of state and federal prerogative. It critiques the resulting model for failure to grapple with the values tug of war in contexts of jurisdictional overlap. Through the combined force of formal federalism doctrine and functional preemption decisions, the Rehnquist Court’s approach shifted the baseline from the uncritical overlap of cooperative federalism to a model emphasizing protected zones of exclusive state and federal power. The overarching implication is that the checks and balances of jurisdictional separation warrant protection at the expense of other values. The New Federalism decisions do not reestablish nineteenth century dualism, but they create theoretical tension with the cooperative federalism model that continues to predominate in federalism practice. They idealize the Tenth Amendment as the arbiter of an idealized, bright-line boundary between proper state and national jurisdiction, even at the interjurisdictional margin that belies such clarity.Less

Defending Dual Federalism: A Self-Defeating Act

Sotirios A. Barber

in Federalism and Subsidiarity: NOMOS LV

This chapter examines whether there is a case for dual federalism. It first considers the main ideas of Marshallian federalism and its defense by John Marshall in his opinion, McCulloch v. Maryland ... More

This chapter examines whether there is a case for dual federalism. It first considers the main ideas of Marshallian federalism and its defense by John Marshall in his opinion, McCulloch v. Maryland (1819). It then explains how the so-called logic of the forum affects traditional claims for dual federalism and goes on to discuss the issue of state sovereignty and the principle of subsidiarity as well as the dual federalist claim that states' rights exemptions from national power enhance liberty. It contends that defending dual federalism is a self-defeating act because it denies the existence of both a controlling national good, such as national prosperity or democracy, and an authoritative national judge. It argues that a defense of dual federalism would have to occur in a national forum, where it is impossible to defend it in the first place.Less

Federalism Old and New

in Polyphonic Federalism: Toward the Protection of Fundamental Rights

This chapter suggests that to look for the revival of state particularism is to misunderstand the fundamental character of contemporary federalism in the United States. The American Revolution left ... More

This chapter suggests that to look for the revival of state particularism is to misunderstand the fundamental character of contemporary federalism in the United States. The American Revolution left the United States an independent nation. Federalism has become less dual and more cooperative. More tasks fall within the shared jurisdiction of the state and national governments, and fewer come within the exclusive domain of either. Civil rights presented the most salient example of the continued regime of dual federalism. In keeping with its commitment to dual federalism, the Supreme Court attempted to limit state regulation of interstate commerce. The dormant Commerce Clause minimized the overlap of state and federal authority. The civil rights movement also dealt a strong blow to dual federalism. Federalism served as an efficient means for achieving goals through decentralized activity, harnessing the energy of dispersed nodes of power.Less

Defending Dual Federalism: A Bad Idea, But Not Self-Defeating

Michael Blake

in Federalism and Subsidiarity: NOMOS LV

This chapter responds to an article by Sotirios A. Barber, who argued that defending dual federalism is a self-defeating act because it denies the existence of both a controlling national good, such ... More

This chapter responds to an article by Sotirios A. Barber, who argued that defending dual federalism is a self-defeating act because it denies the existence of both a controlling national good, such as national prosperity or democracy, and an authoritative national judge. Barber anchors his case upon a particular view of what the function of a national forum must be and what it means to engage with that forum. While the chapter acknowledges that dual federalism is unattractive, it contends that its defects are at the level of substantive morality; those who defend it do not contradict themselves—they simply offer a less than attractive vision of the national community. The chapter claims that the debate over dual federalism cannot be decided by considerations of the logic of the forum, and that the failure of dual federalism cannot be situated within its performative logic.Less

Structuralism

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Structuralists contend that interpreters can avoid moral judgments in hard cases by reflecting on the structures of government, i.e., the Constitution's overall arrangement of offices, powers, and ... More

Structuralists contend that interpreters can avoid moral judgments in hard cases by reflecting on the structures of government, i.e., the Constitution's overall arrangement of offices, powers, and relationships. The Constitution's leading structural principles include federalism, separation of powers, and democracy. This chapter shows that Americans have always disagreed on structural questions and their implications for the constitutional rights of individuals. Interpreters cannot avoid philosophic responsibilities through noncontroversial inferences from the Constitution's structures. A responsible approach to structural questions demands a fusion of historical, philosophic, and scientific inquiry. It cannot avoid philosophic reflection and choices.Less