Judicial Enforcement of Federalism Principles

In these remarks, I shall deal first, though very briefly, with the elements of the U.S. constitutional text that pertain to the relationship between federal and state exercises of legislative power and to the federal judiciary’s role in enforcing constitutional principles that would preserve that relationship. I then examine more thoroughly and systematically the specific techniques with which the Supreme Court has experimented over these past 25 years in making federalism principles meaningful and their judicial enforcement effective. I do not mean to suggest that the Court was not attentive to questions of federalism during the long period between the country’s founding and the 1970s; that is far from the case. But the federalism jurisprudence of the Supreme Court over the last 25 years has been particularly rich in exploring the various strategies available to courts seeking to enforce principles of federalism, and in demonstrating what it is that makes each and every one of those strategies at least somewhat problematic.