Hastings Constitutional Law Quarterly

Article Title

Nostalgic Federalism


Among the most significant decisions of the Supreme Court over the past decade have been those limiting the scope of congressional authority to act in ways that infringe on the responsibilities and prerogatives of the states. In this article, we review four clusters of such cases - those constraining Congress' powers under the Commerce Clause, those refraining the parameters of section five of the Fourteenth Amendment, cases clarifying the limits on federal authority implicit in the Tenth Amendment, and those expanding the reach of state sovereign immunity. Despite the doctrinal diversity among these cases, the Authors argue that they all reflect a recurrent effort to identify bright lines separating the spheres of state and federal responsibility, an effort that reflects a nostalgic return to the jurisprudential world view of the nineteenth century. The Authors explore how far this nostalgic federalism has actually undermined familiar understandings about essentially plenary scope of federal authority and consider the plausible ways in which the Court's approach may be further extended in future cases. In the final section, the Authors suggest that ultimately the Court's nostalgic federalism may itself be limited both by the fragility of the five Justice coalition upon which it depends and by the inherent incoherence of the metaphysics upon which the Court's jurisprudence rests.