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2 results

  • 7 - Federalism

  • David L. Sloss, Santa Clara University School of Law
  • Book:
    People v. The Court
    Published online:
    07 August 2025
    Print publication:
    21 August 2025, pp 158-178

  • Summary

    Chapter Seven presents a critique of the Court’s so-called “federalism” doctrines. Those doctrines have had very little practical effect in protecting state autonomy from unwarranted federal interference. Under the banner of federalism, the Court has engaged in illegitimate judicial lawmaking by creating a set of judge-made rules that have no basis in the Constitution’s text. Moreover, when the Court speaks of federalism, it conveniently ignores the fact that the Supreme Court itself is part of the federal government. If the Court truly wants to protect state autonomy from unwarranted federal interference, it should exercise self-restraint by limiting the reach of judge-made law that interferes with state autonomy. In particular, the Court should repudiate incorporation doctrine – a judge-made doctrine invented by the Warren Court that has no basis in the text of the Fourteenth Amendment. As a practical matter, incorporation doctrine imposes much more severe restrictions on state autonomy than all of the federal statutes (viewed in the aggregate) that the Court has invalidated under various federalism doctrines.