Why Federalism Must be Enforced: A Response to Professor Kramer

The United States Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. The Court has been attacked for overstepping its bounds, and by some, on the ground that the federal/state balance should be maintained through the political process rather than judicial review. The most recent advocate of this position, Professor Larry Kramer, recently argued in the Columbia Law Review that the political party structure ensures state interests are taken into account at the federal level, and therefore the Supreme Court need not and should not enforce federalism guarantees. This criticism of the judicial enforcement of federalism fails as a matter of constitutional history and on empirical grounds. The Supreme Court in this era deserves praise, not criticism, for its recent federalism jurisprudence.