In Search of Constitutional Federalism

In his magisterial Comparative Federalism: Theory and Practice, Michael Burgess (2006: 57) observes that the meaning of “federalism” was contested during the drafting and ratification of the US Constitution, with the “formidable proponents [of the Constitution] virtually commandeer[ing] the term ‘federal’,” which their opponents insisted should be reserved for confederations. The anti-federalists may have been correct as to the traditional meaning of federalism; but as Burgess recognizes, the framers of the new Constitution were jettisoning that understanding in favor of a new system that combined national and confederal features. As might be expected, their innovation left much unresolved, and this incompleteness has ensured that debate about America’s federalism has been a recurring feature of American political life. Thus, three decades after the Constitution’s ratification, Chief Justice John Marshall observed that “the question respecting the extent of the powers actually granted [to the federal government] is perpetually arising, and will probably continue to arise, as long as our system shall exist.” ¹ Woodrow Wilson (1909: 173) concurred a century later, noting that “the question of the relation of the States to the federal government cannot be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.” Fundamental disagreements about federalism also continue on the Supreme Court. When the Rehnquist Court launched its “new federalism” initiative, the justices were sharply divided, and this pattern seems likely to continue on the Roberts Court, if its highly contentious ruling upholding the Obama Administration’s national healthcare program is any indication. ² This chapter analyzes competing perspectives on constitutional federalism both on the US Supreme Court and in recent scholarly commentaries. It concludes with comments on the state of American constitutional federalism and of research on that topic.