5. Federalism and subsidiarity: perspectives from u.s. constitutional law

Abstract

This chapter examines the relationship between federalism and subsidiarity within the context of U.S. constitutional law. It begins with an overview of the Economics of Federalism and of subsidiarity in relation to the U.S. Constitution's enumerated national powers. It then considers the national constraints imposed by the Fourteenth Amendment on the states in light of the Economics of Federalism and of subsidiarity and goes on to discuss which unit—provincial, national, or international—is the correct one to decide a given matter. It argues that constitutional federalism enforced through judicial review is the correct legal response to the demands of the principle of subsidiarity. To support this claim, the chapter cites a 1994 law review article by George A. Bermann titled “Taking Subsidiarity Seriously: Federalism in the European Community and the United States.” Finally, it contends that reading the present-day doctrinal tests with an eye to the Economics of Federalism provides the best understanding of the U.S. Supreme Court's federalism doctrine as it stands in 2013.