Instrumental and Non-Instrumental Federalism

11 Pages Posted: 9 Feb 2013

Date Written: 1997

Abstract

Although superficial appearances might suggest that the United States Supreme Court is divided into two blocs on questions of state sovereignty, there are at least three. At one end are the Nationalists. They take the view that the judiciary has virtually no role to play in protecting the States against national encroachment by the federal government. Protection for the States, if there is to be any, must, in their view, come from the political branches, especially the Senate, where power is allocated equally to large and small states. At the other end are the latter-day Anti-Federalists. They view the States as both deserving and in need of judicial protection against federal encroachment. Although Anti-Federalists grudgingly accept the last two centuries of expansion of the power of the federal government at the expense of the States, at least in symbolic ways, they refuse to accept Congressional omnipotence when it comes to state sovereignty. Beyond the positions I am labeling Anti-Federalist and Nationalist lies a third view that I shall call Federalist; Federalists recognize the utility of the States as a rival for power with the federal government, but look upon the States with a more jaundiced eye than do Anti-Federalists. Federalists distrust governmental power at the national and the state level (and for that matter, at all levels).

Keywords: Nationalists, Federalists, Anti-Federalists, congress, federal government, state

Suggested Citation

Dorf, Michael C., Instrumental and Non-Instrumental Federalism (1997). Rutgers Law Journal Vol. 28, No. 825, Cornell Legal Studies Research Paper No. 13-31, Available at SSRN: https://ssrn.com/abstract=2213839

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
86
Abstract Views
879
Rank
527,956
PlumX Metrics