Document Type


Publication Date





This paper starts from the proposition that although the Rehnquist Court imposed limits on federal power in the name of states' rights far more aggressively than did its post-1937 predecessors, it just as often chose not to impose limits in cases that otherwise fairly can be thought to have presented a question of federalism. The article then makes three claims. First, the article argues that any ultimately satisfying account of the Rehnquist Court's federalism doctrine must acknowledge that the decisions have often appeared to be driven as much by the Justices' policy preferences about the underlying substantive matters at issue in the cases as they have by any neutral theory of federalism.

Second, the article acknowledges that there are other accounts of why the Rehnquist Court only selectively invoked federalism, but argues that none of those accounts is superior to the instrumentalist account as a descriptive matter. To the extent that those accounts do accurately capture the Rehnquist Court's federalism doctrine, moreover, the article argues that they nonetheless leave the Justices room to choose when to invoke federalism and when to preference other values, constitutional or otherwise. And it is in the exercise of this doctrinal discretion that the Rehnquist Court has invited the charge that its federalism cases are driven as much by instrumentalist goals as by neutral principles of federalism.

Whereas the first two claims address the ends in federalism cases - in the sense that the Rehnquist Court's federalism cases cannot be understood without considering the underlying policy objectives advanced by those decisions - the article's third claim concerns the means in federalism cases. Specifically, the article considers why, if the instrumentalist account is correct, the ostensible constraints of judicial convention - particularly the requirement of a reasoned judicial opinion and the practices of adherence to precedent and (for those who claim to be originalists) reliance on a finite set of original source materials - have failed in federalism cases. The article's third claim is that careful study of the Rehnquist Court's federalism decisions reveals that the Justices systematically made careful, selective use of precedent and selectively relied on founding-era voices in cases in which originalism was the chosen methodology.

GW Paper Series

GWU Legal Studies Research Paper No. 308; GWU Law School Public Law Research Paper No. 308

Included in

Law Commons