Putting the Politics Back into the Political Safeguards of Federalism

Abstract

Herbert Wechsler, writing in 1954, recognized that aggressive judicial intervention to protect the states from Congress was inconsistent with original understanding and unnecessary. However, Wechsler's explanation of safeguards does not explain the system of politics that has accounted for the continued success of American federalism for more than two centuries of practice. The Founders believed that any attempt by Congress to usurp state power could and would be thwarted by state officials' mounting popular political appeals. Unfortunately, no one anticipated the development of political parties which swiftly replaced republican politics and eroded what the Founders had assumed would be a natural, permanent antagonism between state and national politicians. This new politics preserved the states' voice in national councils, however, by linking political fortunes of state and federal officials. It is this system of politics which has protected federalism and which renders the current Supreme Court's aggressive foray into federalism as unnecessary as it is misguided.