Are the Judicial Safeguards of Federalism the Ultimate Form of Conservative Judicial Activism?

Abstract

In my view, no one can credibly deny that the Constitution's political safeguards shield the states' powers and prerogatives. That was the very purpose of the political safeguards. Moreover, it goes without saying that a resolute citizenry can safeguard federalism either through the ballot box or, if need be, the bullet. Politicians generally respond to sustained and vocal majorities, and when they do not, popular revolution may render them irrelevant. Yet to go further and claim that the Framers originally intended that these political safeguards to be federalism's only defenses is to commit a historical error. To accuse members of the federal judiciary of judicial activism compounds that error. This symposium piece challenges the claim that the Framers understood the political safeguards to be the exclusive safeguards of federalism. In my view, the latter assertion is inconsistent with the Constitution's text, structure, and original understanding. Part I maintains that the Constitution's text implicitly provides for judicial review of the constitutionality of federal legislation. Part II recounts statements of the Framers that reveal they understood that the Constitution provided for judicial review. As we shall see, nothing in the Constitution's text, structure, or history permits the courts to exercise judicial review over individual rights or subject matter limits on state powers while simultaneously refraining from the exercise of judicial review where the Constitution's subject matter limitations on federal power are concerned. Rather, the Framers understood the Constitution to empower both federal and state courts to enforce the Constitution's explicit and implicit limits on federal power. While the recent judicial turn toward limiting federal power might be activist in any number of senses of that word, it is not activist because of a supposed inconsistency with the Framers' design regarding the safeguarding of federalism.