Three Federalisms, a new very short (10 pages) piece of mine is now up on SSRN. It was prepared for a Symposium on Checks and Balances Today: The Reality of Separation of Powers, held at Loyola University Chicago School of Law in March. Download it here. Here is the abstract:

Debates over the importance of "federalism" are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding: Enumerated Powers Federalism in the Founding era, Fundamental Rights Federalism in the Reconstruction era, and Affirmative State Sovereignty Federalism in the post-New Deal era. In this very short essay, my objective is to reduce confusion about federalism by defining and identifying the origin of each of these different conceptions of federalism. I also suggest that, while Fundamental Rights Federalism significantly qualified Enumerated Powers Federalism, it was not until the New Deal's expansion of federal power that Enumerated Powers Federalism was eviscerated altogether. To preserve some semblance of state discretionary power in the post-New Deal era, the Rehnquist Court developed an ahistorical Affirmative State Sovereignty Federalism that was both under- and over-inclusive of the role of federalism that is warranted by the original meaning of the Constitution as amended.