Columbia Law Review · 2000 · 44 citations · 0 references
LawHistoryPolitical ScienceAmerican PoliticsFederalismPolitical HistoryConstitutional EntrenchmentFederalism In Historical PerspectiveConstitutional UsurpationRevolutionary Constitution-making
Wechsler argued that judicial intervention to protect states from Congress was unnecessary, yet his analysis omitted the political dynamics that have sustained federalism for two centuries, including the Founders’ expectation that state officials would use popular appeals to counter federal encroachment, a strategy undermined by the rise of political parties. The mechanism is that the emergence of political parties linked state and federal officials’ political fortunes, allowing states to maintain influence in national councils. The study finds that this political linkage protects federalism, rendering the Supreme Court’s recent aggressive interventions unnecessary and misguided.
Herbert Wechsler, writing in 1954, recognized that aggressive judicial intervention to protect the states from Congress was inconsistent with original understanding and unnecessary. However, Wechsler's explanation of safeguards does not explain the system of politics that has accounted for the continued success of American federalism for more than two centuries of practice. The Founders believed that any attempt by Congress to usurp state power could and would be thwarted by state officials' mounting popular political appeals. Unfortunately, no one anticipated the development of political parties which swiftly replaced republican politics and eroded what the Founders had assumed would be a natural, permanent antagonism between state and national politicians. This new politics preserved the states' voice in national councils, however, by linking political fortunes of state and federal officials. It is this system of politics which has protected federalism and which renders the current Supreme Court's aggressive foray into federalism as unnecessary as it is misguided.