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Section 7: Federalism In The Rehnquist Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Federalism In The Rehnquist Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
State Constitutional Rights As Resistance To National Power: Toward A Functional Theory Of State Constitutions, James A. Gardner
State Constitutional Rights As Resistance To National Power: Toward A Functional Theory Of State Constitutions, James A. Gardner
Journal Articles
In the American legal order, constitutional rights are conventionally understood to apply to and restrain the level of government created by the constitution in which those rights appear. Thus, individual rights in a lower-order constitution are understood to apply solely to the lower level government and to have no relevance to the actions of any higher level of government. This article challenges the conventional understanding by arguing that individual rights appearing in state constitutions can in many circumstances play a meaningful role in restraining the exercise of national power. Specifically, the identification and enforcement of state constitutional rights can serve …
Federalism, U.S. Style, James S. Heller
Federalism, U.S. Style, James S. Heller
Library Staff Publications
No abstract provided.
The Balance Of Forces And The Empire Of Liberty: States' Rights And The Louisiana Purchase, Robert Knowles
The Balance Of Forces And The Empire Of Liberty: States' Rights And The Louisiana Purchase, Robert Knowles
Law Faculty Publications
This Article challenges the conventional wisdom about the Louisiana Treaty and argues that it was unconstitutional. As many students of history know, President Jefferson had serious misgivings about its constitutionality, which scholars have dismissed as driven by an overly strict construction of the Constitution. The Article concludes that Jefferson's concerns were in fact motivated primarily by respect for federalism principles.
This Article identifies and discusses the underlying conflict between two radically different visions of federalism. While Jefferson s Republicans believed that the incorporation of new states in the West would merely expand the Constitutions form of government to more territory, …
The Enumerated Powers Of States, Robert G. Natelson
The Enumerated Powers Of States, Robert G. Natelson
Faculty Law Review Articles
In this article, the author distills the essence of the federalists' enumeration of state powers for the benefit of the ratifying public. The article concludes that the listed items strongly suggest that a guiding principle of American federalism is a Coasean one: externalities and/or interdependence, without more, generally do not serve as constitutional justification for further centralization.
Unmasking Federalism, Carl W. Tobias
Unmasking Federalism, Carl W. Tobias
Law Faculty Publications
Judge John Noonan has astutely chronicled law and society over a half century. He was a professor for twenty-five years, authoring such classics as Persons and Masks of the Law, and has rendered distinguished service since 1985 on the United States Court of Appeals for the Ninth Circuit.Thus, the publication of Narrowing the Nation's Power: The Supreme Court Sides with the States ("Narrowing') would be important, even if the monograph were only a venerated scholar's reflections on his long, rich experience. This book, however, is a provocative critique that meticulously and incisively exposes the Court's new federalism and separation of …
The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck
The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck
Scholarly Works
Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind a …
The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett
The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett
Journal Articles
It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …
Vectoral Federalism, Scott Dodson
Vectoral Federalism, Scott Dodson
Faculty Publications
In this Article, I offer a new framework for understanding federalism. “Vectoral federalism” engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups.Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government’s power to regulate states and the states’ concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also illuminates and helps to …
The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca
The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca
Law Faculty Scholarly Articles
Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …