Federalism and the Double Standard of Judicial Review

From 1937 to 1995, federalism was part of a "Constitution in exile." Except for the brief interlude of the National league of Cities doctrine, the post-New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-a-vis the states. The reason, by all accounts, has much to do with federalism's historic link to other aspects of our expatriate constitution -- e.g., economic substantive due process, legislative non-delegation -- which were banished for their collusion against the New Deal. The revival of federalism as a constitutional force in 1995 with the Supreme Court's decision in United States v. Lopez has spurred renewed efforts to link "states' rights" to the discredited aspects of the Court's pre-New Deal jurisprudence. In this Article, we respond to these claims by asking whether federalism and economic substantive due process really belonged in constitutional exile together in the first place. The Supreme Court has not, of course, taken the Lochner experience as a cue to abandon the power of judicial review altogether. Instead, the Court simply has shifted its most searching judicial scrutiny from one class of cases, generally involving state and federal regulation of economic life, to others, involving free speech, personal privacy, and racial and gender equality. This shift is frequently described as "a double standard of judicial attitude." Part I of this Article attempts to pin down the precise content of the double standard of judicial review that arise after 1937 and to uncover the most plausible justifications for it. Part II addresses the double standard's "competence" rationale, concluding that judges face similar difficulties in all areas where the constitutional text provides little precise guidance. The fact that federalism is one of these areas does not justify the abdication of judicial responsibility for enforcing limits on national power vis-a-vis the states. Part III turns to the "necessity" rationale, which we contend offers neither an accurate account of the double standard's distinction between what is enforced and what is not, nor adequate protection for the states within our constitutional system. Finally, Part IV argues that federalism concerns are intimately connected to the sort of individual rights that receive vigorous protection under the double standard. Any perceived opposition between individual rights and states' rights is a product of contingent historical facts of questionable current relevance. Indeed, history is replete with examples in which state autonomy is not a barrier to, and is in fact essential for, the maintenance of individual liberty.