A One-Sided Federalism Revolution: The Unaddressed Constitutional Compromise on Federalism and Individual Rights

A One-Sided Revolution argues that the Court's Federalism has gone only half way toward reviving the federalism principles that were largely abandoned during the constitutional transformation of the New Deal. The article outlines the recent case law which has reinvigorated the federalism doctrine, as well as the academic commentary on this revival. Contrary to much of this commentary, however, the article argues that this 'federalism revolution' has gone only half-circle. Under the constitutional scheme, the purpose of federalism was not simply to preserve the autonomy and authority of the states, but to create a governmental structure that would preserve liberty. In light of this twofold purpose, it is perhaps no surprise that as the Court ceased enforcing federalism principles in the latter half of the twentieth century it had to heighten its scrutiny of substantive individual rights, so as to make up for the loss of structural protections provided by federalism. The article traces the ways in which structural provisions in the Constitution - e.g., federalism - were designed to protect individual liberty. An historical examination reveals an inverse relationship between the Court's enforcement of these structural provisions and its activism regarding individual rights. The less the Court enforces the former, the more active it becomes with the latter. Consequently, both logic and history suggest that as the Court intensifies its review of federalism issues regarding state autonomy, which it is now doing, it should likewise lessen its activism regarding substantive individual rights. This would then allow the constitutional scheme to function as originally envisioned, and to provide a more flexible and dynamic democratic protection of liberty. As of yet, however, the Court has not yet embarked on this second side of the federalism revolution.