The states’ rights debate is America’s oldest constitutional debate. Every issue in the campaign to ratify the Constitution was connected to the question of the future of the states in the proposed federal union. Resistance to national power in the name of states’ rights brought the nation close to civil war on two occasions before firing started on Fort Sumter in 1861. Fearing that the Civil War Amendments to the Constitution would “fetter and degrade the State governments,” the Supreme Court nullified all but the amendments’ minimal promise for generations after the war. The scope of national power relative to...

This book comes at a time when the nation waits to see if the Roberts Court will resume the campaign for states’ rights that William Rehnquist launched in the mid-1970s. This campaign was Rehnquist’s contribution to an outlook on politics that regards government as a necessary evil. This outlook is well represented in popular opinion, the nation’s statehouses, and the current federal judiciary. It is also represented in legal academe. At present, this antigovernment outlook stands behind an attack on the Patient Protection and Affordable Care Act of 2010 (ACA or “Obamacare”). The leading argument agaist the ACA is a...

A theory of juridical federalism would tell judges and others what questions to ask to determine if the national government had exceeded its constitutional authority vis-à-vis the states. Such a theory, I contend, should direct judges to ask only two questions: (1) whether a challenged congressional act is reasonably calculated to achieve an authorized national end (like national security); and (2) whether, despite its justifying purpose, the act trenches on some protected individual right (like freedom of the press). Some would argue for a third question, regarding prerogatives reserved to the states. And others would ask only whether the act...

States rights’ federalists construe national power narrowly. They deny that the national government has a general regulatory responsibility for the nation’s economic health. They also exempt from national power social practices (like child labor and the working conditions of state employees) that they say are reserved to the states as rights. States’ rights federalism represents a general theory of the Constitution’s founding. This theory describes the original thirteen states as separate sovereigns contracting with each other to create a central government. In this founding act, the separate sovereigns delegate to the central authority the right to govern specific areas of...

The federalism axiom says the powers of the national government are enumerated and therefore limited in number. A nationalist theory compatible with this axiom would have to include a theory of nationally authorized ends and a rule against pretextual uses of power, acts seeking unauthorized ends under cover of authorized ends. A no-pretext rule and a list of national ends would not suffice for states’ righters, however. To see why, consider some examples.

The Gun-Free School Zones Act was a pretextual act. Gun possession in school zones could very well be a national problem, and one with serious economic consequences....

Why should we read Congress’s power in a manner that avoids conflicts with the states’ practices and policies? What is so valuable about the states that the nation should restrain its government from doing what it reasonably can to promote the security, well-being, and liberties of its people? I have examined the standard states’ rights answers to this question and the standard responses, and I join writers who find that restraining national power makes sense as an occasional matter of policy, not as an unqualified constitutional principle. Put differently and more broadly, restraining the nation’s power to pursue national ends...

Walter Berns once said that the debate in McCulloch was at bottom a debate over “the kind of country the United States was intended to be.” Maryland favored a Jeffersonian ideal whose economic basis was agriculture and whose philosophic defense stemmed from Rousseau; Marshall and the government favored a Hamiltonian vision of industrial power whose principal philosopher was Locke. Though the country may originally have been open to Jefferson’s vision, said Berns, Marshall favored the Hamiltonian option, partly because 1819 was too late for the nation to reverse course.¹ The authors of The Federalist and others might disagree with Berns...

We have examined different theories of what questions judges should ask when deciding state-federal controversies. Marshallian federalism asks whether Congress is pursuing authorized ends. Dual federalism asks whether and why Congress is substituting its policies for those of the states. Process federalism asks virtually no questions about state-federal boundaries. The ambiguities of the nation’s constitutional text and history make responsible choice among these theories depend on an argument—a showing that one theory is best for the country. The formal requirements of a good argument eliminate dual federalism. The requisite argument must take place in a national forum and follow...