Federalism and the Rehnquist Court: A Normative Defense

• Date: 01 March 2001
• Published date: 01 March 2001
• DOI: 10.1177/000271620157400102
• Subject Matter: Articles

24

Federalism

and

the

Rehnquist

Court:

A

Normative

Defense

By

STEVEN

G.

CALABRESI

Steven

G.

Calabresi

is

a

professor

of law

at

Northwestern

University.

He

served

as a

law

clerk

to

Justice

Antonin

Scalia

and

Judges

Robert

H.

Bork

and

Ralph

K

Winter.

From

1985

to

1990,

he

served

in

the

Reagan

and

Bush

administrations,

working

both

in

the

White

House

and

in

the

US. Department

of Justice.

In

1982,

he

cofounded

the

Feder-

alist

Society,

a

national

organization

of conservative

lawyers

and

law

students.

ABSTRACT:

The

revival

of

federalism

limits

on

national

power

by

the

U.S.

Supreme

Court

is

a

happy

development

for

three

reasons.

First,

judicial

review

is

as

beneficial

and

as

needed

in

federalism

cases

as

it

is

in

Fourteenth

Amendment

cases,

and

such

judicial

re-

view

does

not

raise

the

problems

of the

countermaj oritarian

difficulty.

Second,

Congress

cannot

be

trusted

alone

to

police

the

federalism

boundaries

that

limit

its

own

power.

Finally,

federalism

is

an

incredi-

bly

important

feature

of the

American

constitutional

order.

This

is

in-

dicated

by

(1)

the

prominence

of federalism

concerns

in

the

text

of

our

Constitution;

(2)

the

importance

of

federalism

in

other

countries

around

the

world

today;

(3)

the

fact

that

the

economics

of

federalism

suggest

some

well-known

reasons

why

constitutionally

mandated

de-

centralization

is

a

good

thing;

and

(4)

the

serious

concerns

about

the

dangers

of

excessive

national

power

implicated

by

the

specific

issues

that

the

Supreme

Court’s

federalism

case

law

touches

upon.