My talk will be built around four points.

First. The federalism jurisprudence of the Rehnquist Court. Federalism has two sides: regulating state laws that intrude on federal or national interests, and regulating federal laws that intrude on state interests. The Rehnquist Court has fiddled some with regulating states, but has for the most part maintained existing doctrine. It is in the latter domain-the regulation of federal legislation-that the Rehnquist Court has sought to make its name.

The cases and doctrines are familiar. The Court has invigorated judicial scrutiny of laws enacted under the Commerce Clause in cases like United States v. Lopez and United States v. Morrison. It has, in addition, deployed its new constitutional rules in the service of statutory construction, creating a strong clear statement principle that further constricts federal authority. See United States v. Jones; Solid Waste Agency of Northern Cook County v. Army Corps of Engineers. The Court has similarly beefed up judicial scrutiny of laws adopted under Section 5 of the Fourteenth Amendment in cases like City of Flores v. Boerne, United States v. Morrison, Kimel v. Florida Board of Regents, and Board of Trustees v. Garrett. In both these contexts, the Court’s approach has been to replace rational basis scrutiny with tougher standards of review on both the law and the facts. Most commentators include the Court’s state sovereign immunity cases in the “new federalism.” In my view, one can agree or disagree with these cases, but they do not constitute a new departure and are, for the most part, consistent with precedent stretching back more than a century.

The key to understanding the Court’s decisions respecting federalism rests in the majority’s underlying assumptions and justifications. The Court has never laid these out clearly, but they can be gleaned from a careful reading of the opinions. The new doctrine is built on three interrelated assumptions:

1. Ours is a system of divided powers in which states have enclaves of jurisdiction that cannot be invaded by the federal government. The reach of federal power may be great and the scope of concurrent jurisdiction large, but there are minimal fixed limits on what the national government can do.
2. The Framers and Founders of our Constitution intended and expected federal courts to play an important role in policing those limits and ensuring that the federal government does not overreach. The Supreme Court played this role until the early 1940s, at which time it unjustifiably abandoned its constitutional responsibilities.
3. To the extent this abandonment rested on assumptions that the political process would work to protect state interests, it has proved to be wrong anyway. Whether Congress ever cared about or took seriously the notion of limits on federal power, it no longer does. Absent judicial intervention, there is nothing to restrain federal growth.

Second. “Enclaves theory” misunderstands the nature of American Federalism. Federalism is nothing more (or fancier) than a way to ensure decentralized decision making. This is generally thought to be desirable for certain kinds of decisions, for reasons that are by now tediously familiar. Of course, even a unitary government will leave a fair amount to political subunits, but giving these subunits political authority independent of the central government is a precommitment strategy that enhances the likelihood of things being left to local or provincial authorities.

Broadly speaking, there are two ways to understand the structure of a federal system. On one view, subordinate units possess fixed enclaves of jurisdiction that cannot be legally invaded by the central government. These enclaves may be small, but some portion of a nation’s legislative jurisdiction has been deposited exclusively with state or provincial governments. On a second view, there is a set of guidelines for determining whether particular activity should be undertaken at one level or another, but no fixed, formal lines are drawn. The actual scope of provincial authority is left open to be determined through application of the relevant guidelines.

American federalism is a mix of the two systems, the fixed and the functional. On the one hand, the Framers rejected a general guideline in favor of a more particular enumeration, which many scholars and judges have assumed reflects clear adoption of the enclaves model. On the other hand, the Founders recognized that this enumeration was vague and open-ended. As they explained repeatedly, they had in mind a set of arguments about why it made sense to undertake certain activity at the federal level, and they expected the limits of the enumeration to be worked out in practice.

To modern scholars, mixing these two systems poses a difficult tension: either there are fixed limits or there are not. Whether one needs to argue a bit to determine what the limits are, either they exist or they do not. One cannot have it both ways. With this starting point, many scholars then adopt one or the other model without always acknowledging or recognizing it. Much disagreement over the Court’s role in federalism today thus stems from the fact that the combatants are not necessarily talking about the same thing.

The Founders saw no such tension. They adopted a federal system against a background in which one could assume that certain kinds of activities were by their very nature local. Madison made this point in Federalist 46, explaining that fears about whether vague delegations might lead the federal government to swallow the states were misplaced, because “it is only within a certain sphere, that the foederal power can, in the nature of things, be advantageously administered.” Of course, this assumption turned out to be false. There is no sphere that is “naturally” local, and the guidelines and arguments for deciding whether particular activity was within or without the broad delegations of authority could potentially reach almost anything.

How the Founders would have addressed matters if they shared this assumption cannot be known. Conservative scholars give priority to the notion of inherently local activity; liberal scholars emphasize the prevalence of functional arguments. But we simply cannot know how things would have been handled in 1787 had the Founders recognized the problem. We know this because it was not something that became apparent only at the end of the 19th century. The Founders confronted their mistake by the early 1790s, for Hamilton’s plans for national growth were every bit as ambitious and threatening as anything under consideration today. And the Founding generation simply divided-beginning an intellectual argument that has changed very little in the intervening two centuries.

Third. The Supreme Court was never meant to be (and never was) an important institution in policing the limits of federal power. Under any approach-enclaves, functional, or mixed-the question “who decides” is both crucial and independent. As a predictive matter, one can easily understand why adherents of the enclave approach might tend toward a system of judicial review, while those who favor the functional approach prefer a “political process” model. But one can easily construct arguments either way in the abstract. Of course, the Rehnquist Court has not built its case for judicial activism on abstract arguments. It has, rather, relied on a historical claim about original understanding. Unfortunately, its history is dead wrong.

Talk about original understandings is always risky, because the materials tend to speak in many voices. But not when it comes to federalism. The question of how the limits on federal authority would be enforced may have been the most widely discussed issue during Ratification (the need for a Bill of Rights being the only close competitor). Almost every Anti-Federalist claimed the limits were ephemeral; almost every Federalist sought to answer the charge. And their answer is loud and clear: The limits of federal power would be determined in and through politics, within a system self-consciously structured to protect states.

The full story here is complicated. It turns partly on understanding the intellectual background of American constitutionalism, which treated “fundamental law” as a special kind of law whose interpretation and enforcement was the responsibility of the people at large. It turns partly on understanding how judicial review first emerged as a very limited idea within this system of “popular constitutionalism.” It turns partly on examining the specific arguments that were made for controlling federal authority, which relied on constitutional structure (the Senate, the Electoral College, and so forth), but much more on the inherent political strength of state governments. I have written several very long articles that lay out this evidence in detail and will not recapitulate it here. I am happy to elaborate during the discussion, but for present purposes suffice it to say that the evidence is overwhelming in favor of a “political process” approach to the question of “who decides.”

Equally if not more interesting, from my perspective, was the durability of this approach even as many of the conditions that led the Framers to embrace it changed. Federal courts played no role setting limits on Congress for the first century of our existence, with the single (and disastrous) exception of Dred Scott. They played no role during the past six decades either. In the intervening period, they briefly played an equivocal role: striking down a few laws while leaving many more in place, occasionally articulating restrictive tests while more frequently writing opinions that left Congress free to innovate. It was only in 1935, when faced with the New Deal, that the Court tried to draw a deep line in the sand. The effort lasted less than two years before the Court returned to what had been the traditional practice of leaving questions of federal power to the political process.

Looked at in historical context, then, there is no basis for the Court’s assumption that it must control the limits of federal power. It’s current doctrine is consistent with neither original understanding nor past practice.

Fourth. There is no basis for believing that aggressive judicial control has become necessary. This leaves only the argument that things have changed to justify the Rehnquist Court’s current practice. This is not an argument that the Court itself has offered, but many of its academic supporters seem to believe that judicial intervention is necessary because Congress no longer takes the Constitution seriously. One problem with the hypothesis is that it does not fit what the Court has actually done. For if the concern is that Congress has become too cavalier in its attitude toward the Constitution, the Court chose some very odd laws to strike down. Certainly this characterization seems wildly out of place as applied to the ADA, the ADEA, or VAWA-each of which was adopted only after extensive congressional deliberation about whether the legislation satisfied the Constitution’s requirements. It seems similarly inapplicable to RFRA, which reinstated an understanding of the Constitution that had been embraced for thirty-odd years by prior Courts and was shared by numerous state courts and most commentators.

Justifying judicial intervention on the ground that Congress no longer exercises self-restraint is also weirdly out of touch with what has actually been happening for the past twenty years. The period of unremitting federal expansion ended with the election of Ronald Reagan back in 1980. Contraction has not been uniform, of course, and Congress still enacts a lot of laws. But the overall trend has been to return power to the states. It is noteworthy, I think, that both Reagan and the Republicans who devised the Contract With America made devolution and federal deregulation central in their political campaigns. Why should we believe that federalism issues are not taken seriously in politics or by Congress? The results may not conform to those preferred by the opponents of federal growth, but that hardly makes a case for judicial revolution.

Nor do I understand what baseline is being used by those who would argue that judicial intervention had become necessary because popular constitutionalism had failed. The federal government is, of course, vastly larger today than it was in the eighteenth century, or even in the early years of the twentieth century. So what? The kinds of problems society faces and the kind of governing it demands are totally different. It would be foolish to measure the activities of government today by the standards of the eighteenth or nineteenth centuries. State governments do more too, in part because of opportunities and funds made available by the federal government. What states do may attract less notice and media attention than the more sensational activities of the federal government-something that was equally true in the 1780s and 90s-but states still do most of the actual governing in this country, and the important objects of daily life are still chiefly matters of state and local, not federal, cognizance. The notion of measuring government today by eighteenth-century standards calls to mind Thomas Jefferson’s sensible rejoinder to this very point: “We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regiment of their barbarous ancestors.”

Yet if this is not the baseline, what is? The Justices’ own opinions that Congress is doing too much? Their feelings that unnecessary laws have been passed? Opponents of federal regulation have always felt that way, whether they were opposing Hamiltonian finance or Henry Clay’s American System or FDR’s New Deal. I imagine, too, that each time they dismissed references to earlier periods in the belief that only now had things “really” gotten out of hand. But even were this finally true, a judicial solution would still be inappropriate. The Court deals with problems by formulating tests of a kind that judges can administer, which in this context means taking a hatchet to a problem that needs a scalpel. At best, clumsy rules like “commercial versus noncommercial” or “substantial effect” leave Congress uncertain and invite a mess in the lower courts. If the problem really is Congress’s failure to take the Constitution seriously enough, the solution is to put our energies into rejuvenating and improving the legislature’s capacity in this regard, not to hand the matter over to a bunch of judges.