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The Supreme Court's Federalism
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The Supreme Court's Federalism
Real or Imagined?

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March 2001 | 194 pages | SAGE Publications, Inc

In the last decade, the Supreme Court has handed down a remarkable series of decisions invalidating congressional legislation in the name of federalism or states' rights. Most of these were decided by a razor-thin majority of five justices. The cases fall into four categories.

First, in two cases the Court reaffirmed and expanded the principle of state sovereign immunity. In a second pair of cases, the Court held that state governments (other than their courts) cannot be "commandeered" by Congress to assist in the enforcement of federal law. Third, for the first time since the early New Deal, the Curt, but the familiar 5-4 margin, invalidated a federal statute enacted pursuant to the interstate commerce clause. Finally, the Court adopted a new, and extremely demanding, standard of review for congressional action under Section 5 of the Fourteenth Amendment, which empowers Congress to "enforce" the amendment "by appropriate legislation."

The 13 articles in this volume of The Annals deal with the various aspects of the Supreme Court's federalist revival and the principles underlying it. The first three articles discuss these principles in comprehensive terms. Each of the next three articles focuses on a particular aspect of the federalism principle or its judicial enforcement. These articles are followed by a contribution with regard to Congress' ability to escape the constitutional limitations of federalism by means of conditional grants under the spending clause. The next three articles point up alternative themes, purposes, or agendas in the Court's federalism decisions. Another two contributions focus on the anti-commandeering issue, but place that issue in a broader context. The final article illuminates, from several perspectives, the four-year-old federal habeas corpus statute (the Anti-Terrorism and Effective Death Penalty Act).


The Supreme Court's recent decision in Bush v. Gore - issued shortly before this volume went to press - dramatically reverses the case and principles that are the subject of the articles in this volume. Perhaps the best justification for the Court's action is not legal but political. The majority justices - or some of them - may have looked down the road and seen a constitutional catastrophe in the making. Unfortunately, there is also a less benign explanation: one or more of the justices may have reached the conclusion that if the presidential outcome were going to be determined by an act of judicial will, it would be their will, and not that of the Florida Supreme Court.


Jordan Steiker
Did the Oklahoma City Bombers Succeed?
 
CONTENTS
Frank Goodman
Preface
Steven G. Calabresi
Federalism and the Rehnquist Court
A Normative Defense

 
Edward L. Rubin
Puppy Federalism and the Blessings of America
Robert F. Nagel
Judicial Power and the Restoration of Federalism
Seth F. Kreimer
Federalism and Freedom
Evan H. Caminker
Judicial Solicitude for State Dignity
Marci A. Hamilton
The Elusive Safeguards of Federalism
Lynn A. Baker
Conditional Federal Spending and States' Rights
Herman Schwartz
The Supreme Court's Federalism
Fig Leaf for Conservatives

 
Ann Althouse
Inside the Federalism Cases
Concern About the Federal Courts

 
Vicki C. Jackson
Federalism and the Court
Congress as the Audience?

 
Matthew D. Adler
State Sovereignty and the Anti-Commandeering Cases
Daniel Halberstam and RoderickM. Hills, Jr.
State Autonomy in Germany and the United States

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