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.

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8 of 22: New Federalism: Not Your Father’s Federalism [No. 86]

... Is federalism ideologically neutral?

New federalism started in the 1970’s with famed living Constitutionalist Justice William Brennan, who developed a progressive, liberty-protective approach to federalism -- “not your father’s federalism,” one that protected states’ rights and allowed for Jim Crow.

Judge Jeffrey Sutton now argues that federalism, rightly understood, is politically neutral. It is espoused by advocates on the left (such as Justice Brennan) as well as on the right (such as Justice Scalia). It also is an important tool for protecting liberty.

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.

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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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Other Videos in this Series


Who Decides? That is the Question... [No. 86]


Can Federal Courts Dictate State Law? [No. 86]


51 Imperfect Solutions [No. 86]


Was Federalism Designed to Protect Slavery? [No. 86]


Federalism: We All Have Roles to Play [No. 86]


Laboratories of Experimentation [No. 86]


Enumerated Powers, the Necessary and Proper Clause, and Prigg v. Pennsylvania [No. 86]


New Federalism: Not Your Father’s Federalism [No. 86]


Key Cases on the Commerce Clause [No. 86]


What Power Does Congress Have to Regulate Commerce? [No. 86]


McCulloch v. Maryland: The Debate About Enumerated Federal Powers [No. 86]


Is NFIB v. Sebelius a Commerce Clause Case? [No. 86]


Federalism as Another Separation of Powers [No. 86]


The Demand for Federalism [No. 86]


Does the Federal Government Use of Financial Power Over States Amount to Coercion? [No. 86]


What is the Purpose of Article IV? [No. 86]


Electoral Chaos & the Twelfth Amendment [No. 86]


How Does the Difficulty of Legislating Protect Federalism? [No. 86]


What Can the Federal Government Do Better than the States? [No. 86]


How Does Federalism Result in More Competent and Competitive Governance? [No. 86]


Does the Commerce Clause Apply Only to Commerce? [No. 86]


How Does the Constitution Adapt to New Concepts of Liberty? [No. 86]

About this Module

Total run time:

1h 10m


Total videos:



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