My Forthcoming Book Chapter on “The Impact of Judicial Review on American Federalism”

My forthcoming book chapter, “The Impact of Judicial Review on American Federalism: Promoting Centralization More than State Autonomy,” is now available on SSRN. It will be published in Nicholas and Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists? (Oxford University Press, forthcoming). This book examines the effects of judicial review on federal systems in numerous countries around the world, including Australia, Brazil, Canada, Ethiopia, Germany, Mexico, Nigeria, South Africa, Spain, and others. Each chapter is written by a scholar from the nation it covers. My chapter covers the United States, and argues that, on balance, judicial review has promoted centralization more than state autonomy, though it has at various times done both.

Because every chapter had to be of roughly the same length and I had to cover a much longer history of federalism and judicial review than most of the others, there were some difficult choices about what to include or exclude. For example, I largely omitted the federal courts’ preemption jurisprudence in order to spend more time on constitutional decisions. But, for what it’s worth, figuring out how to condense 200 years of legal and political history into a coherent 40 page narrative was a very interesting experience.

Here’s the abstract:

The relative scope of federal and state power under the U.S. Constitution has been a major bone of contention for over 200 years. Courts have sometimes enforced substantial limits on federal authority by striking down federal laws deemed to be outside the scope of Congress’ enumerated powers under Article I of the Constitution. Very often, the judiciary has also constrained state power by invalidating state laws as violations of constitutional rights.

While judicial review has therefore promoted both centralization and state autonomy at different times, on balance it has strengthened the former at the expense of the latter. This pattern has been especially prevalent since the 1930s, as the Supreme Court largely abandoned earlier efforts to police limits on congressional power, while simultaneously enforcing a growing array of individual rights against state and local governments.

This chapter examines the impact of judicial review on American federalism without attempting a normative judgment. It briefly outlines the structure of American federalism and judicial review, and then describes the history of judicial review of structural limits on federal power. In the nineteenth and early twentieth centuries, the Supreme Court engaged in limited, but significant efforts to constrain congressional power. These efforts were to a large extent abandoned after the constitutional revolution of the New Deal period in the 1930s. The Supreme Court has recently attempted to revive judicial enforcement of limits on federal power. But so far these efforts have had only a limited effect. The chapter then summarizes the history of judicial review of state laws. The range of issues on which federal courts have invalidated state laws is extremely broad. Overall, the impact of these rulings in curbing state autonomy significantly exceeds the effects of the courts’ more limited efforts to constrain federal power.

The last part of the chapter briefly explains why the latter result was not accidental. Because federal judges are appointed by the president and confirmed by the Senate, the chance that they will resist the political agenda of the dominant political coalition in the federal government is reduced. Even when federal judges do want to invalidate federal legislation, they may hesitate to do so when the result might create a political confrontation that the courts are likely to lose. Federal judges face fewer political risks when they strike down state legislation.