The Continuing Dialogue of Federalism

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The Continuing Dialogue of Federalism
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The Continuing Dialogue of Federalism

Patrick E. Higginbotham

45 U. Kan. L. Rev. 985 (1997).

    Living today is part of doing historical research.  Defining tradition and understanding history are vital parts of the interpretative enterprise.  Federalism is a dialogical process, but it has normative content.  It is not a puzzle to be solved, but rather a project to be continued.

    The power to steer the federal system has limits.  In constitutional law, the ultimate question is always, at some level, the question of who decides.  Allocating power was the task of the Constitutional Convention.  If there was a central political belief in the Constitutional Convention, as well as in the ratification process, it was the distrust of power and the belief that its remedy was dispersal of power.

    Structure is the central pillar of protection.  In answering the question of who decides to limit the power of states, there is a tendency to move quickly to the judiciary without recalling the powerful protections of structure.  It is difficult to defend simultaneously the judicial role of finding that certain rights are essential to ordered liberty, or fundamental, or suspect, and at the same time maintain that locating core state interests is too open-ended for judicial decision making.

    Greater reliance on structure and process will not leave the courts on the sidelines, although it may force the courts into more of a role as referee than quarterback.  But our federalism needs its referees.  Courts participating in a federal dialogue need to remember that sometimes keeping the game going means letting someone else call the plays.  

Keywords: federalism, federal structure, federal courts, constitutional law, constitutional history, federal system, Constitutional Convention, branches of government, Seventh Amendment, Duncan v. Louisiana, Fourteenth Amendment, Ker v. California, Justice Harlan, David L. Shapiro, New York v. United States.

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