Federalism: Political Identity and Tragic Compromise

Chapter 5. The Judicial Doctrine of Federalism

chapter five the judicial doctrine of federalism As stated at the outset, this book is about the theory of federalism, not about the legal doctrine of federalism that American constitutional courts have developed. Its goal is to approach federalism as a principle of political organization, without becoming immersed in the in‹nite complexities of the judicial decisions that have attracted so much controversy in recent years. Nonetheless, a theory is not particularly useful or interesting unless it can be applied to speci‹c situations. The purpose of this chapter, therefore, is to demonstrate the utility of the theory developed in the preceding chapters by applying it to the existing legal doctrine in the United States and particularly to the Supreme Court decisions of the past two decades. It is important to note, as an initial caveat, that this chapter does not attempt to provide a comprehensive analysis of these decisions. The vast quantity of scholarly literature on this subject precludes its systematic treatment in a discussion limited to the length of this chapter or even this book. Instead, the purpose of the present discussion is to present the particular insights that our preceding theoretical discussion brings to the Court’s federalism decisions. the relevance of legal doctrine The ‹rst point that the theory presented in this book suggests about federalism in the judiciary is that the courts are the natural battleground for federalism -related issues, at least in such a governmental system as that of the United States. As discussed in chapter 1, federalism, as opposed to decentralization , involves a claim of right, rather than a decision about the most 124 effective means to implement a given goal. Such claims are naturally—albeit not inevitably—referred to the judiciary. For example, the most passionate devotees of American federalism would agree that the federal government can exercise plenary authority in organizing its armed forces and controlling the money supply. Thus questions about whether the commanders of military bases located in particular states should have more decision -making authority or about whether individual Federal Reserve banks located in the states should be more autonomous are regarded by everyone as involving only issues of decentralization and cannot be referred to the courts. In contrast, courts are the natural forum to resolve truly federalist claims, such as a state’s right to ignore a federal statute or an individual ’s right to ignore the statute because it violates the rights of states. If such claims could not be tested and ultimately validated by a court, we would generally conclude that the underlying rights did not exist.1 It is not impossible to create a federalist system where the subunit’s claims of right were tested and validated by other means, such as the political means suggested by Herbert Wechsler and Jesse Choper,2 but the concept of rights and the mechanism of judicial enforcement are so closely linked in the United States that the courts will necessarily serve as the primary forum for resolving federalist claims.3 As discussed in chapter 4, however, the United States no longer has a federal system of governance. The evolution of a national polity has enabled the United States to dispense with this tragic solution, which is often necessary for linguistically or religiously divided nations and seemed equally necessary when America was divided by the issue of slavery. But courts, like commentators, continue to invoke federalism for the reasons speci‹ed in chapter 3—an abiding nostalgia for a bygone past and the ability to use this evocative idea as a rhetorical device in current political debates . In fact, the Supreme Court has become increasingly active in this area, reviving long-abandoned federalism doctrines to strike down a number of congressional statutes.4 If American federalism is truly vestigial, however, one could reasonably predict that these decisions would be incoherent , that they would fail to constitute a meaningful body of doctrine because they do not rest on a genuine political principle.5 This is the insight that the theory of federalism presented in previous chapters suggests and that this chapter will discuss. Before proceeding, it is necessary to de‹ne the concept of doctrinal incoherence and to specify the doctrine to which it relates. The term doctriThe Judicial Doctrine of Federalism 125 nal incoherence cannot mean that a group of judicial decisions that address a particular doctrine are open to criticism or even regularly criticized. If...