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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

In 2008, the nation was plunged into the worst financial crisis since the Great Depression, and in response, lawmakers established the Consumer Financial Protection Bureau. Since the CFPB's creation, opponents of financial regulation have sought to weaken its ability to protect the interests of consumers through both legislation and litigation. This White Paper provides background on the CFPB and then explains why the legal arguments against its constitutionality are all without merit.

With the Supreme Court poised to consider the review of marriage equality rulings by lower courts around the country, opponents of marriage equality have radically changed the thrust of their defense of state laws that deny same-sex couples the right to marry. Defenders of discriminatory marriage laws are now pressing a federalism/democracy argument, claiming that the people of a state have the authority to decide whether to place a badge of inferiority on same-sex couples and deny them the right to marry. As documented in this Issue Brief, this argument, which flies in the face of the Constitution’s text and history, is no more viable than prior arguments.

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.