Federalism and the Court: Congress as the Audience?
Author | Vicki C. Jackson |
DOI | 10.1177/000271620157400111 |
Published date | 01 March 2001 |
Date | 01 March 2001 |
Subject Matter | Articles |
145
Federalism
and
the
Court:
Congress
as
the
Audience?
By
VICKI
C.
JACKSON
Vicki
C.
Jackson
is
a
professor
of law
at
Georgetown
University
Law
Center.
She
is
the
authorof many
articles
on federalism
and
the
Eleventh Amendment
and
writes
and
teaches
as
well
in
comparative
constitutional
law.
Professor
Jackson
serves
on
several
academic
and
professional
boards,
including
the
State
and
Local
Legal
Center’s
Advi-
sory
Board,
the
International
Association
of Constitutional
Law
Executive
Board,
and
the
D.C.
Bar
Board
of
Governors.
ABSTRACT:
The
Supreme
Court’s
revival
of federalism
as
a
limit
on
national
power
has
roots,
in
part,
in
the
Court’s
mistrust
of
the
na-
tional legislative
process
and
its
sense
of
institutional
competition
with
Congress.
To
the
extent
that
the
Court
is
concerned
about
care-
less
legislating,
six
rules
of
"care
and
craft"
in
drafting
legislation
are
proposed
for
members
of
Congress
to
consider:
develop
a
factual
re-
cord,
reflect
the
source
of
constitutional
authority,
tailor
the
statute
to
reach
"national"
and
not
"local"
matters,
consider
the
implications
of
decentralized
enforcement
for
surviving
constitutional
challenges
as
well
as
for
efficacy,
consider
whether
state
governments
are
treated
comparably
to
the
federal
government,
and
be
particularly
cautious
in
efforts
to
overrule
the
effects
of
the
Court’s
decisions.
To
the
extent
the
Court
is
concerned
with
its
own
institutional
preroga-
tives,
however,
or
is
committed
to
a
categorical
divide
between
areas
constitutionally
committed
to
the
states
and
the
federal
government,
care
and
craft
alone
will
not
be
a
solution.
NOTE:
The
views
expressed
herein
are
those
of
the
author
alone.
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