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Full-Text Articles in Law
Federalism As Balance, Robert Justin Lipkin
Federalism As Balance, Robert Justin Lipkin
Robert Justin Lipkin
Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore …
The Revival Of Federalism, John C. Eastman
The Revival Of Federalism, John C. Eastman
John C. Eastman
This article explores the efforts over the past quarter century by the conservative public interest law movement to revive the principle of federalism and, ultimately, the notion that the federal government is one of only limited, enumerated powers. Focussing on the Commerce Clause, the article traces the original meaning of the powers of the federal government over interstate commerce, as those powers were understood by those who drafted and ratified the Constitution, and contrasts that understanding with the expansionist view of the Commerce Clause adopted by the New Deal Court, which became the ruling orthodoxy for more than half a …