Federalism as a Constitutional Principle

Justice O’Connor rightly called federalism “our oldest question of constitutional law.”1 But the constitutional balance between the nation and the states is hardly what the cool kids are talking about these days. My first-year con law students show up each Fall expecting to learn about same-sex marriage, flag burning, and abortion; they’re plainly disappointed when they pick up the syllabus and see how much of the course is going to be about government structure. The first part of my talk resists that intuition. The notion that federalism is passé is so tragically wrongheaded that I can’t bear to leave it alone.

As we say in North Carolina, “it hurts my heart.” And thinking about why one should care about federalism can actually tell us a lot about the meaning of the federalism we have. The second part of my talk explores how the Constitution protects federalism. I’ll conclude by addressing what federalism needs to survive as a constitutional principle.