Federalism and the Double Standard of Judicial Review

Abstract

From 1937 to 1995, federalism was part of a “Constitution in exile.” Except for the brief interlude of the National League of Cities doctrine—which, like Napoleon’s ill-fated return from Elba, met with crushing defeat—the post–New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-a-vis the states. The reason, by all accounts, has much to do with federalism’s historic link to other aspects of our expatriate