Abstract
Part I of this Note offers a brief account of the two main theories of
federalism protection: the political safeguards (or process federalism) and
judicial review. Part II then suggests a dual-safeguards approach as the single
constitutionally grounded theory, and proceeds to situate the procedural
safeguards and, importantly, judicial review, in the history, text, and structure
of the Constitution. Next, delving into the Court’s New Federalism line of
decisions, Part III analyzes the implications for these two constitutionally
grounded safeguards to deduce the proper framework for their respective
applications. It suggests that while political safeguards may be conceived in
terms of state sovereignty, the Court should frame its analysis in terms of
constitutional limits on federal power. Furthermore, Part III demonstrates
that judicially imposed limits on constitutionally enumerated powers offer a
workable, and desirable, framework in practice. Part IV then explains why
such a framework matters and defends state sovereignty as an end worthy of
it all.
Recommended Citation
Alexa R. Baltes,
One Federalism and the Judicial Role: Enforcing the Limits of Article I,
92
Notre Dame L. Rev.
(2017).
Available at:
https://scholarship.law.nd.edu/ndlr/vol92/iss1/10