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7 - Federalism

Published online by Cambridge University Press:  07 August 2025

David L. Sloss
Affiliation:
Santa Clara University School of Law
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Summary

Chapter Seven presents a critique of the Court’s so-called “federalism” doctrines. Those doctrines have had very little practical effect in protecting state autonomy from unwarranted federal interference. Under the banner of federalism, the Court has engaged in illegitimate judicial lawmaking by creating a set of judge-made rules that have no basis in the Constitution’s text. Moreover, when the Court speaks of federalism, it conveniently ignores the fact that the Supreme Court itself is part of the federal government. If the Court truly wants to protect state autonomy from unwarranted federal interference, it should exercise self-restraint by limiting the reach of judge-made law that interferes with state autonomy. In particular, the Court should repudiate incorporation doctrine – a judge-made doctrine invented by the Warren Court that has no basis in the text of the Fourteenth Amendment. As a practical matter, incorporation doctrine imposes much more severe restrictions on state autonomy than all of the federal statutes (viewed in the aggregate) that the Court has invalidated under various federalism doctrines.

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  • Federalism
  • David L. Sloss, Santa Clara University School of Law
  • Book: People v. The Court
  • Online publication: 07 August 2025
  • Chapter DOI: https://doi.org/10.1017/9781009651226.009
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  • Federalism
  • David L. Sloss, Santa Clara University School of Law
  • Book: People v. The Court
  • Online publication: 07 August 2025
  • Chapter DOI: https://doi.org/10.1017/9781009651226.009
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Federalism
  • David L. Sloss, Santa Clara University School of Law
  • Book: People v. The Court
  • Online publication: 07 August 2025
  • Chapter DOI: https://doi.org/10.1017/9781009651226.009
Available formats
×