Ernest A. Young
- Published in print:
- 2014
- Published Online:
- March 2016
- ISBN:
- 9781479868858
- eISBN:
- 9781479821303
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9781479868858.003.0003
- Subject:
- Political Science, Political Theory
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 ...
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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
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”.
