GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2003

Status

Accepted

Abstract

Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, and school prayer - with relatively few important doctrinal innovations in these areas. The second Rehnquist Court, by contrast, focused on constitutional federalism, including the scope of federal power under the Commerce Clause and Section 5 of the Fourteenth Amendment, Tenth Amendment limitations on federal power, and state sovereign immunity from private lawsuits reflected in the Eleventh Amendment. Unlike the first Rehnquist Court, the second has generated a number of important innovations. Professor Merrill also suggests that Justice Antonin Scalia made a strategic choice to shift his priorities from social issues to constitutional federalism circa 1994. This hypothesis is unpersuasive. As Professor Merrill acknowledges, Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court. Thus, it is not surprising that Justice Scalia did not arrive on the Court with a full-fledged federalism agenda or that he preferred to wait for briefing and argument before reaffirming an important precedent like Hans v. Louisiana. From the beginning, however, Justice Scalia has been a strong proponent of constitutional federalism. In fact, with only one arguable exception, Justice Scalia has voted to uphold the constitutional prerogatives of the states in every major federalism case decided since he joined the Court. Justice Scalia does appear to have an agenda of sorts in federalism cases, although not the one that Professor Merrill suggests. Justice Scalia's goal in these cases is to uphold the original constitutional structure in order to respect the Founders' constitutional design and to protect individual liberty. Professor Merrill acknowledges Justice Scalia's interest in the constitutional separation of powers, but fails to recognize the connection between separation of powers and federalism. Neither feature of the constitutional structure was meant to be an end in itself. Rather, both separation of powers and federalism were designed to check government power and to secure individual liberty. Thus, even though Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court, it is not surprising that he quickly came to regard federalism - like separation of powers - as an essential element of the Founders' constitutional design.

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