Document Type
Article
Publication Date
2009
Abstract
In Federalism and the Generality Problem in Constitutional Interpretation, Professor John Manning takes aim at the Rehnquist Court's practice of invoking freestanding, textually unspecified principles of federalism as a basis for limiting congressional power. Manning identifies this practice at work in a number of decisions he terms "the 'new federalism' cases" – in particular, the clear statement requirement of Gregory v. Ashcroft; the anticommandeering rule of New York v. United States and Printz v. United States; and the protection of state sovereign immunity in state court of Alden v. Maine. Despite their diverse subject matter, Manning demonstrates that a central analytic move in all these decisions is the Court's claim that the Constitution intended to preserve a system of dual sovereignty; from this general constitutional purpose the Court then infers restrictions on congressional power that are nowhere stated in the Constitution's text.
Disciplines
Constitutional Law | Law
Recommended Citation
Gillian E. Metzger,
The Constitutional Legitimacy of Freestanding Federalism,
122
Harv. L. Rev. F.
98
(2009).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/2196