Narratives of Federalism: Of Continuities and Comparative Constitutional Experience

The dramatic title of the conference for which this Essay was written raises the question, what is the Constitution “in exile” from? The “Constitution in Exile” might refer to an entire set of doctrines and principles purportedly banished from constitutional discourse in the post–New Deal era. On the possible claim that this “exiled” Constitution is being repatriated, there is, on the one hand, little doubt that the Court has embarked on a revival of federalism as a judicially enforceable constraint on national power. Working from the infrequently changed text of an old, written constitution, the Supreme Court in the last decade has engaged in a substantial reworking of the outlines of the federal and state governments’ relative constitutional powers. The Court’s rather stark departures from an earlier, post– World War II era federalism landscape include its implicit abandonment of the premise of Garcia v. San Antonio Metropolitan Transit Authority, which primarily relied on the political process to