• Video

New Federalism: Not Your Father's Federalism

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. https://youtube.com/watch?v=646HqrQ8SDk


The idea of new federalism really started in about the 1970's. Justice William Brennan wrote a 1977 Law Review article. That's really where the name “new federalism” comes from. And the idea was that this was not your father's federalism, the one that protected states’ rights or allowed for Jim Crow, this was going to be a progressive, liberty-protective new federalism. I think Justice Brennan was right. In fact, one of the things about federalism that you might find interesting is it really is neutral. And it has advocates on the left, a living constitutionalist's like Justice Brennan, and it has advocates like the originalist Justice Scalia. In Justice Scalia's last majority opinion for the court, Kansas versus Carr, he made the point that states often experiment with new ideas in the wake of decisions by U.S. Supreme Court and that there's nothing wrong with their filling vacuums left by the U.S. Supreme Court or protecting rights that the U.S. Supreme Court decided not to protect for a given reason. The truth of it is there have been many situations where the leaders of rights protection have been state courts or in some cases state legislatures. Equality of school funding we would all agree is an important ideal in American government. In 1973, in a decision called Rodriguez, the U.S. Supreme Court rejected the claim that there was a Fourteenth Amendment right to equal funding between rich and poor school districts. And in the following 40 to 50 years, state legislatures and state courts have responded quite dramatically to some of those funding disparities. What we really have now is a system with dual sources of power, overlapping power, where Congress can regulate many areas of American life. The states can regulate many areas of American life. My view is that a good response to this world of overlapping power is to use the state courts and state constitutions as independent vanguards for protecting liberty and independent bulwarks for protecting liberty. Things have changed considerably, and this might be one way in which we can still continue to think correctly of ourselves as a country that takes seriously liberty protection.

Related Content