University of Notre Dame
Browse

File(s) under permanent embargo

Federalism and Freedom: The Precedential and Normative Roots of the Rehnquist Court's Federalism Revolution

thesis
posted on 2016-06-27, 00:00 authored by Christopher P. McMillion

This dissertation examines the Rehnquist Court’s federalism jurisprudence in four areas of federal-state conflict, addressing the following questions: (1.) Is this jurisprudence consistent with the Supreme Court’s federalism precedents? (2.) Is this jurisprudence consistent with the structure and design of the Constitution as amended? (3.) Can the tenets of this jurisprudence find support in conceptions of liberty and the rule of law presented by earlier political theorists?

Critics, both in the academic literature and in the popular press, contend that the Rehnquist Court’s federalism decisions break from precedent and adopt an unsound approach to the separation of powers. The few who have defended the decisions usually concede the point about precedent, offer a limited defense of its compatibility with originalist theory, and fail to comprehend the aspects of political theory that undergird the Rehnquist Court’s decisions.

I analyze the Court’s decisions and the critics’ responses through the lens of the three questions above. First, I argue that there is a substantial body of precedent with which the Rehnquist Court’s federalism jurisprudence is consistent. Second, I address the context of the structure and design of the Constitution. I examine the competing federal-state arrangements considered at the Constitutional Convention and explain where the Rehnquist Court’s federalism jurisprudence fits into the framework established at the Convention and through subsequent amendments. Third, I consider the place of this jurisprudence in the broader context of theoretical discussions by examining definitions of political liberty, the rule of law, and how a division of powers among different levels of government fits into the consideration of thinkers including Locke, Montesquieu, and Tocqueville. I conclude with a discussion of how these principles of federalism are founded in something more than ideology. Properly understood, federalism can promote local decision-making and deference to individual choices in a non-partisan manner. I examine marijuana regulations and sanctuary cities to provide concrete examples of this parity under the principles of federalism.

By combining an examination of precedent with a broad analysis of the tenets of the Rehnquist Court’s federalism jurisprudence in relation to conceptions of the separation of powers, liberty, and constitutional design, this project places those decisions within an appropriately broad context. I show that this jurisprudence was not truly revolutionary but was, instead, consistent with earlier conceptions of liberty and the relationship between different spheres of government.

History

Date Modified

2017-06-05

Defense Date

2016-06-23

Research Director(s)

Michael P. Zuckert

Committee Members

Vincent Phillip Muñoz Anthony J. Belllia, Jr.

Degree

  • Doctor of Philosophy

Degree Level

  • Doctoral Dissertation

Program Name

  • Political Science

Usage metrics

    Dissertations

    Categories

    No categories selected

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC