Reclaiming Federalism

The revival of states' rights may be the most substantial accomplishment of the Rehnquist Court's conservative majority. Cases concerning federalism do not regularly capture the newspaper headlines of hot-button constitutional disputes, but the jurisprudence of the Rehnquist majority has, in fact, been in retreat recently when it comes to affirmative action, abortion, school prayer, gay rights, and even the death penalty. In each area, conservative justices defected, creating de facto liberal majorities. When it comes to states' rights, by contrast, the conservative majority has changed constitutional law dramatically. Not long ago, few propositions could be asserted more confidently in law-school classrooms than that states enjoy almost no constitutional protection from congressional power. Now, the talk concerns increasing restraints on federal power. What may be called "Rehnquist Federalism" has not yet made a revolution, and defections occur in federalism cases, too. But Rehnquist Federalism has changed the legal landscape by limiting congressional efforts to provide everything from effective remedies against discrimination to enforcement of federal statutory guarantees of overtime pay-all in the name of "state sovereignty" and despite the arguments of the four liberals on the Court.