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Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism
Eskridge, William Bednar, Jenna
Eskridge, William
Bednar, Jenna
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Abstract
Like the Supreme Court's separation of powers jurisprudence, its federalism jurisprudence might, uncharitably, be described as "a mess." The Court's decisions setting forth jurisdictional limitations on national power have waffled famously. Taken as a whole, they flunk requirements of either good law or good policy: The decisions are inconsistent with constitutional text and with one another, and they lack a persuasive normative theory to justify the first inconsistency or to resolve the second. These difficulties are rehearsed in the six different opinions the Justices rendered in United States v. Lopez, where a fractured Court invalidated a federal statute that made it a crime to possess a firearm in proximity to a school.