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This module in the Structural Constitution course highlights key debates about federalism: at the time of the ratification of the Constitution, throughout our history with the expansion of the scope of the Federal government through the Commerce Clause and the weakening of the state governments in the Civil War and later Amendments, and the state it is today.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those that are to remain in the State governments are numerous and indefinite.”
-Madison, Federalist No. 45
Questions to be explored included:
What did Federalism look like at the time of the Founding? How did the state governments and the Articles of Confederation shape the writing of the Constitution? In what ways was the text of the Constitution a compromise among representatives from different states?
What is the history of the Commerce Clause? (and other clauses such as the Necessary and Proper clause that have been used to justify the expansion of the power of the federal government) With the size and scope of the federal government today, do the states in any way exercise a meaningful check on its power?
What is “new federalism” and how is it different from the federalism in the early Republic leading to the Civil War? Why does Federalism matter today?
We explore answers to these questions below.
Why is Federalism the only "patentable" idea in the U.S. Constitution? Judge Jeffrey Sutton explores the structure set up by the Framers in the Constitution to check and balance power between the federal government and the states, one of the difficul
Why is Federalism the only "patentable" idea in the U.S. Constitution? Judge Jeffrey Sutton explores the structure set up by the Framers in the Constitution to check and balance power between the federal government and the states, one of the difficult questions at the Founding. Our Framers approach, to ‘split the atom of sovereignty’ (to quote Justice Kennedy), lead to a structure (federalism) that was the first of its kind.
Jeffrey S. Sutton sits on the United States Court of Appeals for the Sixth Circuit. Judge Sutton was a partner with the law firm of Jones Day Reavis & Pogue in Columbus, Ohio, and served as State Solicitor of the State of Ohio. He also served as a law clerk to the Honorable Lewis F. Powell, Jr. (Ret.), the Honorable Antonin Scalia and the Honorable Thomas J. Meskill. He is the author of 51 Imperfect Solutions: States and the Making of American Constitutional Law.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Constitutional Law: Structure