Hastings Law Journal


Calvin Massey


The conventional wisdom is that the Rehnquist Court has a federalism agenda-restricting the scope of federal legislative power and augmenting state power to ignore federal law-that it is implementing Term by Term. In this Article Professor Massey challenges that view, arguing that the localist bias of the Rehnquist Court's federalism is far less monolithic than is typically assumed. Of course it is true that the Rehnquist Court has used judicial review in important ways to increase state autonomy and limit federal legislative power. The scope of state freedom from regulation under the commerce clause has broadened; the deference paid by courts to congressional judgment that regulated activities substantially affect interstate commerce has diminished; the power of Congress to abrogate state sovereign immunity has shrunk; and congressional power to enforce the substantive guarantees of the Fourteenth Amendment has been subjected to heightened judicial scrutiny to ensure that Congress acts only to remedy violations of those substantive guarantees. These developments, while by no means insignificant, are not radical, insupportable, and reactionary measures, as they are often portrayed, but are devices responding to the need, rooted in the theory of federalism, for diffusion of power between the center and constituent elements of a federal system. However, the Rehnquist Court has been far from consistent in its development of federalism. The presumption against preemption has been largely ignored and the Court has begun to signal a more robust willingness to find federal grounds to examine issues of state law determined with finality by state courts. These latter developments cast considerable doubt on the claim that the Rehnquist Court has an unyielding agenda of expanding state autonomy and shrinking federal power, yet simultaneously open the Court to the charge that its brand of federalism is expedient. In this the Rehnquist Court has much company, for expediency and federalism are the Siamese twins of American constitutional history.

Professor Massey's argument proceeds in two major parts. First, he explains why federalism matters-why it is important to maintain significant state autonomy-and why the judiciary should play a role, albeit not the dominant role, in ensuring the continuance of a living federalism. Second, he examines the Rehnquist Court's federalism, defending those portions of its work that are consistent with the laudable goals of federalism and criticizing those portions are that inhibit the high ambitions of American federalism.

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