The Elusive Safeguards of Federalism

The Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. The Court has been attacked for overstepping its bounds and, by some, on the grounds that the federalism-state balance should be maintained through the political process rather than judicial review. This criticism of the judicial enforcement of federalism fails as a matter of constitutional history and on empirical grounds. The Supreme Court in this era deserves praise, not criticism, for its recent federalism jurisprudence.