University of Michigan Law School
Civil Rights Litigation Clearinghouse
Title "The Supreme Court's "New" Federalism: An Anti-Rights Agenda?"
Date Spring 2000
Author Mitchell F. Crusto
Author Institution Georgia State University
Author Role Faculty
External Link
Abstract In recent years, the United States Supreme Court has developed a "new" federalism doctrine. The Court's "new" federalism seeks to elevate the power of state governments over that of the federal government and, in part, encourages state governments to pursue their own constitutional rights agendas. Some pro-federalism Justices appear to be interested in limiting federal power. One strong proponent of the Court's "new' federalism, Justice O'Connor, expressed her expectation that greater states' rights will promote a broad range of solutions to the problems of rights protection. This Article raises and explores the following question: Is the Supreme Court's "new" federalism doctrine an anti-rights agenda?

Some judicial scholars have celebrated the Supreme Court's "new" federalism as a return of power to the states. Overall, a review of academic commentary on federalism shows that much of the federalism dialogue is wrongly focused on the locus of government power, federal versus state. Unfortunately, few scholars have pointed out federalism’s effect upon constitutional rights, particularly as it relates to protecting individual and civil rights. One noted legal scholar, Judge Robert H. Bork, has recognized the historical conflict between states' rights and civil rights. This Article will refer to this conflict as the "federalism paradox." Judge Bork's important recognition of the federalism paradox, however, has been essentially ignored by many academic scholars in their writings about federalism. For example, in an incisive, recent scholarly study of federalism, Harvard law professor David L. Shapiro overlooks the federalism paradox.

The essence of the federalism paradox is that the Court's new pro-state government orientation purports to protect state governments from an overbearing central government; but, ironically, it does not purport to protect the people from overbearing state governments. The federalism paradox refers to the inevitable tension between majority rule and protection of minority and individual rights. Federalism that promotes states' rights arguably promotes democracy, which is by definition majority rule. However, majority rule can lead to oppression of minority interests and individual rights. Many of those rights are constitutionally protected. Hence, federalism
encroaches upon constitutionally-protected rights.

Our recent constitutional history reveals the dangers of the federalism paradox and suggests that federalism is a flawed constitutional principle. The Civil Rights Movement produced many important lessons on federalism and civil rights. James Meredith's attempt to gain admission as an African-American into the then all-white University of Mississippi serves as a prime example. In the Fifth Circuit's handling of Meredith's struggle for admission, an outstanding American jurist, Judge John Minor Wisdom, noted that federalism does not relieve federal courts of their constitutional duty to "examine the rights and remedies in a factual context." As Judge Wisdom explained, federalism is workable when federal courts bear the primary responsibility for protecting the individual, "especially when the unlawful state action is locally popular." Hence, one historical response to the federalism paradox has been a strong federal judiciary actively adjudicating cases involving individual rights.

An analysis of the Supreme Court's recent substantive rights decisions shows insensitivity to the dangers inherent in the federalism paradox. In fact, the Court may be lowering the floor on constitutionally-protected rights. It also shows that the Court appears to be selective in supporting state actions, promoting state actions that reduce rights, and generally discouraging state actions that expand rights. Further, the Court abandons its "new" federalism in race cases by lowering the floor of protection for racial minorities.

This Article examines the Supreme Court's "new" federalism and evaluates its effects on constitutional rights of individuals and minorities. It concludes that the Court's "new" federalism, as applied in critical civil rights cases, is a flawed constitutional principle that threatens individual rights. It also concludes that the Court's "new" federalism is a part of an anti-rights agenda. This Article suggests that one solution to the Supreme Court's "new" federalism is for the Court to modify its approach in a way that allows federal courts to return to their roles as adjudicators and protectors of rights. As envisioned by the Framers and expressly mandated by the Constitution, this role is essential to protect constitutional rights. Although the Supreme Court has abrogated this role in recent years, the Court and lower federal courts have embraced it over the last thirty-five years.

This Article concludes that the Supreme Court's new pro-state-government federalism can only stand if federal or state courts commit to protecting individual and minority rights. This goal could be achieved if federal courts resume their active adjudication and remediation of wrongs that violate constitutional rights. This is the courts' constitutional duty. Alternatively, if the Supreme Court continues to pursue its current anti-rights course, then another solution is required. Either Congress must pass strong legislation or the President must enact regulations reinstating and guaranteeing minimal constitutionally-mandated individual and minority rights. For this solution to work, the Supreme Court must support these actions by Congress or the President rather than interpreting them as exceeding the limits of constitutional authority. Recent decisions, however, call into question the Court's willingness to rule in such a manner.

Finally, if the Supreme Court continues to limit federal authority to protect individual and minority rights, then the states must develop their own pro-rights principles. Unfortunately, it appears that the Supreme Court may only support state actions that limit rights and reject those that broaden them. Hence, this Article concludes that the Supreme Court's "new" federalism, as applied, is an anti-rights agenda.
Source Georgia State University Law Review
Citation 16 Ga. St. U. L. Rev. 517

This Resource Relates To
case Meredith v. Fair (SD-MS-0001)

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