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Index
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437 INDEX A, B, and C v. Ireland, 391, 425 Acton, Lord, 136 Adams, Henry, 100 Adamson v. California, 167–168 Alden v. Maine, 151 Aleinikoff, T. Alexander, 37, 387 Alito, Samuel (Justice), 151, 169, 172 Althusius, Johannes: conception of subsidiarity of, 216–217, 220, 223, 224, 292; as “the father of federalism,” 216 American Insurance Association v. Garamendi , 58 Anderson, Benedict, 299 Anticommandeering doctrine: distinction between commandeering and conditioning, 45–46; and process federalism, 50 Anti-Federalists, 6, 145 Aquinas, Thomas, 126, 222, 365, 401 Arendt, Hannah, 349, 352 Arizona v. United States, 58, 60 Arizona Christian School Tuition Org. v. Winn, 174 Articles of Confederation, 142, 165, 183 Auer, Andreas, 370 Bailey v. Drexel Furniture Co., 147–148 Baker v. Carr, 141 Ballot box voting: and incentives to invest in political knowledge, 89–90; and lack of choice over basic political structure, 86–87; limitations of, 85– 90; and low probability of decisiveness of individual vote, 86; and political choice, 84–85; and “rational irrationality,” 88–90; and rational political ignorance, 87–88; as “voice” option, 85 Barber, Sotirios A.: criticisms of his arguments that dual federalism is selfdefeating , 22–31, 60–63; criticisms of his conception of dual federalism, 35–36, 39–40, 54, 56; criticisms of his conception of Marshallian federalism , 41–44; criticisms of his conception of process federalism, 50 Bauböck, Rainer, 260 Bedford Resolution, 143–144, 146–148, 153, 203 Bednar, Jenna, 36, 38 Bell, Abraham, 105 Bell, Daniel, 278–280, 299–300, 316 Benz, Arthur, 373 Bermann, George A.: arguments regarding federalism and subsidiarity in Europe and the United States, 127–128, 139–140, 144, 147, 194; conception of the values protected by federalism and subsidiarity, 136 Berns, Walter, 6–7 Bickford, Lucy: arguments by regarding Economics of Federalism, 223, 232; criticism of arguments by for judicial protection of federalism, 191, 194– 195, 198–199; criticism of arguments by regarding subsidiarity, 190–192; and quest for “golden mean,” 250 Bill of Rights, incorporation of: arguments for basing it on Privileges or Immunities Clause, 169; argument that Warren Court promoted federalism by, 191, 200, 202; and civil rights, 438 Index Bill of Rights (continued) 161–162, 170; Due Process Clause as doctrinal underpinning of, 166–167; Economics of Federalism and, 135, 159–163, 170; Justice Black’s theory of, 167–168, 170, 171; Justice Brennan ’s theory of, 168–171; Justice Frankfurter’s theory of, 167, 170; McDonald’s approach to and Second Amendment, 171–172; original meaning and, 163–166, 170–171; practice of from 1868–2010, 166– 169, 170–171; and rights of criminal or civil procedure, 162, 167, 170; and rights of political participation, 162, 170; selective incorporation, 162, 163, 168, 170, 171; subsidiarity and, 170. See also Due Process Clause Black, Hugo (Justice), 167–168, 170–171 Blackmun, Harry (Justice), 48 Board of Trustees of the University of Alabama v. Garrett, 150 Bobbitt, Philip, 195, 197 Bodskov, Morten, 30 Boyle v. United Technologies Corp., 156 Brandeis, Louis (Justice), 130, 158, 239 Brennan, William J. (Justice), 168–171, 201–202 Breyer, Stephen (Justice), 151, 172 Bricolage, 193 Brighouse, Harry, 285 Brown v. Board of Education, 375 Bulman-Pozen, Jessica, 45, 66 Burger Court, 52 Bush, George W. (President), 405 Calabresi, Steven G.: arguments by regarding Economics of Federalism, 128, 144, 223, 232; criticism of arguments by for judicial protection of federalism, 191, 194–195, 198–199; criticism of arguments by regarding subsidiarity, 190–192; and quest for “golden mean,” 250 Calhoun, John C., 6–8 Canadian federalism, doctrine of “pith and substance” in, 195 Caplan, Bryan, 89 Carozza, Paolo, 145 Carter v. Carter Coal Co., 147 Categorical federalism: as an approach to enumerated federal powers, 143– 146; argument that Economics of Federalism approach is superior to, 143–149; decisively rejected by New Deal, 148 Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 160 Choper, Jesse, 138–141. See also Political safeguards of federalism Cities: argument for granting constitutional status to, 259–261, 264, 269, 280, 283, objections to, 283– 286; argument for recognizing as a distinct level of authority within federalism, 260, 296, 317; concerns of are different from those of broader society, 280; conflict and pluralism in, 279; as constitutional nonentities, 259; cultural diversity of, 281–282; definitional features of, 268–269, 297–298; economic roles of, 298; “folk” conception of, 267–269; idea of “global cities,” 281; ignored by political philosophers, 259–260, 286; ignored in scholarship about federalism , 293–295; ignored in treatments of subsidiarity, 293...