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Copyright (c) 2004 Tulane University
Tulane Law Review

ARTICLE: Federalism as Balance*

* This Article's inspiration derived from a lively discussion of FAB on the ConlawProfListserv. While no one, other than me, is responsible for the arguments and objections examined here, I am grateful to all those who so graciously shared their ideas with me, especially Marci Hamilton and Mark Scarberry. Erin Daly, David Hodas, Robert Hayman, Jr., and Rodney Smith provided me with helpful comments on an earlier version of this Article. Penelope O'Connell, a fourth year evening division student at Widener University School of Law, contributed invaluable research and proofreading assistance.
+ Professor of Law, Widener University School of Law (Delaware), J.D., UCLA School of Law, 1984; Ph.D., (Philosophy) 1974, M.A., 1971, Princeton University; B.A., Brooklyn College, 1965.

November, 2004

Tulane Law Review

79 Tul. L. Rev. 93


Robert Justin Lipkin+


I. Introduction
A revolution now being waged in the Supreme Court promises to alter the relationship between the federal government and the states for the next generation. 1 The birth date of this revolution 2 can best be identified with President Ronald Reagan's elevation of Justice William H. Rehnquist to the Court's leadership as the sixteenth Chief Justice of the United States. 3 The Chief Justice's federalism, 4 like pre-New Deal federalism, 5 insists on the categorical expression and judicial enforcement of the idea of dual sovereignty in American law. 6 By appointing jurists who share the Chief Justice's constitutional commitments, the current President, George W. Bush, is now deftly poised to institutionalize this revolution in American government for decades. 7

Federalism's rebirth 8 affords American citizens the rare opportunity to reassess its meaning, content, and value, and then to recommit American constitutionalism to the ideal of dual sovereignty or, if such a recommitment is unworkable, to seek some alternative principle of federalism, which revises or replaces this ideal. This Article takes a modest first step toward this reassessment of federalism 9 by exploring the jurisprudential integrity of a particular set of expressions used to conceptualize and adjudicate conflicts between the federal government and the states. 10 This set of expressions relies heavily on the idea of federalism as balance, and so I shall call this discourse "federalism as balance," 11 or "FAB," for short. 12

If frequency of use were proof of legitimacy, invoking FAB ...
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