Posted by Randy Barnett:
Three Federalisms:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1180103988
[1]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 [2]here. Here is the
abstract:
Debates over the importance of �federalism� are often obscured by
the fact that there is 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.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=988347
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=988347
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