You are here

Redefining Federalism

"We the People" ratified the Constitution to form a national government strong enough to establish justice, provide for the common defense and general welfare, and secure the blessings of liberty. Subsequent amendments expanded the power of the federal government, shifting power away from the states. Yet recently, the Supreme Court has aggressively limited federal protections for women, workers, disabled people and the environment, in a misguided attempt to protect the states. CAC’s Redefining Federalism project advances a vision of federalism that ensures states can act as the laboratories of democracy, while also allowing the federal government to address problems states cannot fully address alone.

Think Tank

 If federalism is about protecting the States, why not listen to them? In the last decade, the Supreme Court has reworked significant areas of constitutional law with the professed purpose of protecting the dignity and authority of the States, while frequently disregarding the States' views as to what federalism is all about. The Court has ignored the views of the States in two directions: striking down federal laws despite the nearly unanimous opinions of the States that a federal role is appropriate, and invalidating State initiatives despite impassioned calls by the States about the ambiguity of the federal interest and the need for State innovation. The Court, according to the States, is protecting federalism both too much and too little.  Redefining Federalism is a book edited by Doug Kendall and published in 2004.

Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means. This might not sound revolutionary, but it is. This Report explains how we have arrived at this point, why it is significant, and what work remains to be done. 

Congress clearly had the authority to pass health care reform--including the individual mandate--and the legal challenges to the Act, filed by a handful of State Attorneys General, are more political theater than genuine constitutional argument.

Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.

On September 29, 2011, CAC released "CAC Supreme Court Preview:  Tests of Government Power in the Supreme Court’s 2011 Term—With Even Bigger Cases on the Horizon."  In this issue brief, CAC previews cases that challenge the federal government’s constitutional authority to act to protect against sex discrimination in the workplace, Coleman v. Maryland Court of Appeals, and to conduct surveillance using modern technology, United States v. Jones, as well as the states’ ability to take regulatory action that purportedly conflicts with federal law, for example, Douglas v. Independent Living Center. We note that the likely blockbusters of the Term are cases challenging the constitutionality of President Obama’s health care reform law, defending Arizona’s controversial immigration law, attacking affirmative action policies, and asserting the rights of same-sex adoptive parents. By June 2012, this term may prove to be among the most momentous terms in recent decades.