The Supreme Court's Federalism: Fig Leaf for Conservatives
| Published date | 01 March 2001 |
| Date | 01 March 2001 |
| DOI | http://doi.org/10.1177/000271620157400109 |
| Subject Matter | Articles |
119
The
Supreme
Court’s
Federalism:
Fig
Leaf
for
Conservatives
By
HERMAN
SCHWARTZ
Herman
Schwartz
is
a
professor
of law
at
Washington
College
of Law,
Ameri-
can
University.
He
is
the
author
of
The
Struggle
for
Constitutional
Justice
in
Post-
Communist
Europe
(2000);
Packing
the
Courts:
The
Conservative
Campaign
to
Re-
write
the
Constitution
(1988);
editor
of The
Burger
Years
(1987);
and
author
ofnumer-
ous
articles
on
American
and
comparative
constitutional
law.
ABSTRACT:
Throughout
American
history,
states’ rights
have
been
used
as
a
cover
to
hide
less
respectable
interests
such
as
race,
class,
religion,
power,
and
money.
Because
reforms
in
racial
justice
and
so-
cial
equality
have
come
primarily
from
the
federal
government
as
a
result
of
the
Civil
War
and
the
New
Deal,
states’ rights
have
usually
been
used
to
promote
conservative
interests.
Today’s
conservative
Supreme
Court
majority,
led
by
Chief
Justice
William
H.
Rehnquist,
has
imposed
limitations
on
federal
power
to
curtail
the
rights
of
women,
religious
groups,
the
elderly,
racial
minorities,
and
other
dis-
advantaged
groups.
Asserting
a
wide
range
of
benefits
from
strong
state
sovereignty,
few
of which
do
in
fact
exist,
the
conservatives
have
shrunk
the
scope
of
the
commerce
clause,
developed
implied
limita-
tions
on
federal
authority,
and
narrowly
construed
the
Civil
War
amendments.
Yet,
despite
their
federalist
rhetoric,
the
conservative
justices
have
not
hesitated
to
strike
down
state
and
local
legislation
and
other
action
enhancing
individual
rights—and
this
notwith-
standing
their
frequent
criticism
of
judicial
activism
in
other
areas.
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