Document Type
Article
Publication Date
2-1-2006
Abstract
This article examines the enduring question of the nature of the American federalism and its supposed role as a constitutional norm. It argues that federalism has not, and cannot, provide specific normative directions for resolving contested constitutional issues. The article stresses the fact that American understandings of the nation’s constitutional federalism were from the beginning sharply contested, and it explores the ways in which those understandings have remained sharply contested over the centuries. In particular, it traces changes that have occurred in ideas about the role of the Supreme Court, the “values” of federalism, the nature of federalism as a structure of government, and the very nature and meaning of the Constitution itself. The article concludes that “originalist” ideas misunderstand the nature of the federal system and that no “originalist” theory can either capture the reality of American constitutional federalism or provide specific normative direction to resolve the contemporary problems it confronts. Rather, American constitutional federalism must be understood as an evolving national enterprise guided generally by certain basic, if contested, values and principles and that those values and principles endure and give the system its true meaning.
Recommended Citation
50 N.Y.L. Sch. L. Rev. 3