The Elusive Safeguards of Federalism

AuthorMarci A. Hamilton
Published date01 March 2001
DOI10.1177/000271620157400107
Date01 March 2001
Subject MatterArticles
93
The
Elusive
Safeguards
of
Federalism
By
MARCI
A.
HAMILTON
Marci
Hamilton
is
a
visiting
professor
of law
at
New
York
University
School
of Law
and
the
Thomas
H.
Lee
Chair
in
Public
Law
of the
Benjamin
N.
Cardozo
School
of Law,
Yeshiva
University.
An
internationally
recognized
scholar
on
constitutional
issues
who
often
writes
on
federalism,
Professor
Hamilton
successfully
challenged
the
Religious
Freedom
Restoration
Act
before
the
U.S.
Supreme
Court
in
Boerne
v.
Flores,
521
U.S.
507
(1997).
She
is
frequently
asked
to
advise
Congress
on
issues
pertaining
to
federal-
ism
and
the
First
Amendment.
ABSTRACT:
The
Supreme
Court
has
issued
a
series
of
opinions
that
turn
on
the
Constitution’s
inherent
principles
of federalism,
decisions
that
have
alarmed
many
a
legal
scholar.
The
Court
has
been
attacked
for
overstepping
its
bounds
and,
by
some,
on
the
grounds
that
the
fed-
eralism-state
balance
should
be
maintained
through
the
political
process
rather
than
judicial
review.
This
criticism
of
the
judicial
en-
forcement
of federalism
fails
as
a
matter
of constitutional
history
and
on
empirical
grounds.
The
Supreme
Court
in
this
era
deserves
praise,
not
criticism,
for
its
recent
federalism
jurisprudence.

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