The Return of Dualism

in Polyphonic Federalism

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226736624
Published online March 2013 | e-ISBN: 9780226736648 | DOI:
The Return of Dualism

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This chapter investigates the failure of the dualist conception of federalism still dominant on the United States Supreme Court and in the halls of the academy. It outlines the dualist underpinnings of the current Supreme Court doctrine and the unfortunate results of the Court's dualist approach. The Court's dualist approach has narrowed the scope of both federal and state authority in important areas. The New Federalism of the Supreme Court constrains the power of the federal government. The anti-commandeering and sovereign immunity doctrines illustrate the difficulty in executing the dualist project. American Insurance Ass'n v. Garamendi reflects the power of a dualist approach to federalism. Constitutional federalism provides an important check on the states and the federal government colluding in promulgating national regulations. Furthermore, the process federalism, empowerment federalism, and cooperative federalism are elaborated. Cooperative federalism marks the end of dual federalism, but does not itself provide a replacement.

Keywords: constitutional federalism; Supreme Court; dualist approach; federal government; process federalism; empowerment federalism; cooperative federalism

Chapter.  15320 words. 

Subjects: Constitutional and Administrative Law

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