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The evolution of constitutional federalism

09/17/15 - BOSTON, MA. - Scenes during the Constitution Day Lecture held in Renaissance Park and at Northeastern University on Sept. 17, 2015. Professor Michael Dukakis gave opening remarks before political science professor Michael Tolley delivered the lecture. Photo by: Matthew Modoono/Northeastern University

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.”

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