No Federalist Here: Anti-Federalism and Nationalism on the Renquist Court

Abstract

In the course of commenting on the very interesting papers of Professors Althousel and Jackson, I shall make four points: (1) with the exception of cases like United States v. Lopez and City of Boerne v. Flores, which limit the scope of Congress' enumerated powers, the Supreme Court decisions protecting the states against federal power over the last decade do not yet fundamentally threaten the latter; (2) given the jurisprudential commitments of the various Anti-Federalists (as I shall call the Court's defenders of state sovereignty), cases like Lopez and City of Boerne will be unusual; (3) the Nationalists (as I shall call the dissenting Justices in these cases) need a better alternative to the majority's Anti-Federalism than the claim that Congress will invariably protect the states' interests; and (4) a doctrine that treats programs of cooperative federalism as less constitutionally suspect than complete nationalization is a viable candidate for that role.

Keywords: anti-federalists, congress, nationalists, states' interests, cooperative federalism