Federalism, Fig Leaves, and the Games Lawyers Play

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This article, part of a symposium on the New Federalism movement, asks two questions about the movement and its opponents. The first is whether the disagreement is about principle – finding the appropriate balance between national and state powers, or just about politics – using the term federalism, which suggests abstract principle largely to hide partisan support of states' rights. It argues that it is politics, and that supporters of states' rights prefer New Federalism to States' Rights because of the latter phrase's association with support for racial segregation. The second question concerns consistency. The article argues that New Federalists depart from text and history in supporting state impunity from federal judicial review, focusing on the sovereign immunity doctrine. This appears to be at odds with their insistence that text and history should govern interpretations of national powers and justify rejection of precedents broadly construing the constitution. The article ends by suggesting renewed emphasis on cooperative federalism – joint federal/state efforts to achieve national and regional objectives.