Competing for the People's Affection: Federalism's Forgotten Marketplace

In recent years, the United States Supreme Court frequently has invoked federalism principles when reviewing federal legislation but has failed to articulate an overarching vision of federal-state relations. The Court has relied instead on seemingly disparate premises, including a local-national distinction that some believe is disingenuous, notions of "commandeering" and political accountability that some believe are poorly rationalized, and a conception of state dignity that critics charge is ill suited for a nation in which the people are sovereign. The Court does occasionally recite the perceived benefits of federalism, but those benefits are framed at such a high level of abstraction that they provide little guidance as to the manner (if any) in which the Constitution requires that regulatory power be distributed between the state and federal governments. Even those benefits themselves have been challenged, with numerous scholars arguing that much of what judges and politicians say about federalism is merely politics-driven rhetoric.