Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court

Abstract

For all the brilliance of the Framers' original insight that "ambition must be made to counteract ambition," federalism has been the scene of both great successes and conspicuous failures. it has shielded racism as well as liberty, and it has driven citizens to the battlefield as well as to the negotiating table. Many of the underlying issues of the federal relationship were resolved, not in the peaceful manner intended by the Framers, but rather in the carnage of Manassas, Antietam, and Gettysburg. One could argue that continuing to refer to the Framers' intent in this regard is akin to studying the drawings and notes of the architect for an edifice that collapsed long ago. These failures together with the fundamental changes of the past century have not, however, prevented both the Court and political leaders from looking to Madison, Hamilton, and other constitutional greats of the eighteenth century for guidance on federalism issues.