In many ways the basic structure of constitutional law circa 2006 - which features a strong national government of unlimited authority and weak protection of economic liberties and property rights - derives from the New Deal synthesis circa 1937. That synthesis insists that an extensive national role in the regulation of economic affairs is an indispensable tool for social progress. For the better part of fifty years that synthesis dominated both judicial and academic writing on American federalism. One of the great transformations that took place during the critical Chief Justiceship of William H. Rehnquist involved a systematic and prolonged challenge of that worldview. I have little doubt that many contributors to this Symposium will be critical of the efforts of Chief Justice Rehnquist and Justice O'Connor to "turn back the clock" on this critical question of federalism. My thesis is the precise opposite. I praise the two Justices for breaking the intellectual logjam on so critical an issue. Yet, at the same time, I take the view that on many key questions of federalism they should have pushed harder and moved farther than they ultimately did. I defend that thesis with respect to three critical areas of law: the scope of the Commerce Clause, dual sovereignty and the Tenth Amendment, and the doctrine of sovereign immunity...

 

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