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The evolution of constitutional federalism

Photo of Michael Tolley delivering the Constitution Day lecture

Associate professor Michael Tolley delivered the political science department's annual Constitution Day lecture.

Michael Tolley, an asso­ciate pro­fessor of polit­ical sci­ence at North­eastern with exper­tise in com­par­a­tive con­sti­tu­tion­alism, began his Con­sti­tu­tion Day lec­ture on Thursday by quoting former Pres­i­dent Woodrow Wilson from 1908: “Fed­er­alism is the car­dinal ques­tion of Amer­ican con­sti­tu­tional law.”

Tolley’s lec­ture, held in Renais­sance Park, coin­cided with the day com­mem­o­rating the for­ma­tion and signing of the U.S. Con­sti­tu­tion 228 years ago. He exam­ined how the Supreme Court has inter­preted federalism—the bal­ance of power between the fed­eral gov­ern­ment and the states—in its rul­ings, specif­i­cally focusing on the court’s deci­sions under Chief Jus­tice William Rehn­quist (1986–2005) and Chief Jus­tice John Roberts since 2005.

Here are some high­lights from Tolley’s talk:

His­tory lesson
Tolley noted that while “fed­er­alism is an unmis­tak­able thread woven into the fabric of the United States Con­sti­tu­tion,” no pro­vi­sion in the text clearly delin­eates the boundary between the national gov­ern­ment and state sov­er­eignty. While other modern con­sti­tu­tions have detailed these bound­aries, the U.S. Con­sti­tu­tion, he said, is “famously vague” on the nature of this balance.

He said that over the course of Amer­ican polit­ical his­tory, the Supreme Court’s role in fed­er­alism mat­ters has been tied to the polit­ical regime of that era. Between the late 1700s and the early 1990s, the tides shifted between eras of national supremacy and dual federalism.

New fed­er­alism
Tolley said the legacy of the Rehn­quist court was its fed­er­alism rev­o­lu­tion, ush­ered in by a 1992 deci­sion in New York v. United States that rec­og­nized the 10th amendment’s lim­i­ta­tions on the power of national gov­ern­ment to coerce states into ful­filling fed­eral man­dates. The case involved a fed­eral statute requiring states to pro­vide for radioac­tive waste dis­posal or take respon­si­bility for waste made within their bor­ders. The court ruled, in a 5–4 deci­sion, that Con­gress doesn’t have the power to force states to imple­ment regulations.

Another 5–4 deci­sion, this time in United States v. Lopez in 1995, was the first since the New Deal in 1937 to limit Con­gress’ power under the Constitution’s com­merce clause.

The Rehn­quist court intro­duced some pro­found changes in the bal­ance of power between the fed­eral gov­ern­ment and the states,” Tolley said.

The Roberts court
Tolley argued that the Roberts court has sig­naled its own fed­er­alism rev­o­lu­tion, with a sharper turn on states’ rights and sov­er­eignty. And while it con­tinues the Rehn­quist court’s move­ment in this direc­tion, he said, there have also been “some new and dis­turbing trends as well.”

He pointed to the court’s 2011 deci­sion in Bond v. United States that rec­og­nized that indi­vid­uals, not just states, could have standing to bring cases chal­lenging the encroach­ment of national power on states’ rights.

Later, Tolley described the 5–4 deci­sion in Shelby County v. Holder in 2013 as “the most dis­turbing inno­va­tion that the Roberts court has introduced”—namely, the equal sov­er­eignty doc­trine. The court struck down Sec­tion 4 of the Voting Rights Act, essen­tially nul­li­fying the require­ment for states with a his­tory of dis­crim­i­na­tion to get fed­eral approval for making changes to their elec­tion laws.

The policy stu­dents in here ought to be really trou­bled by this,” he said. “This is likely to present some very serious prob­lems in years ahead.”

-By Greg St. Martin

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