Document Type

Article

Publication Date

1-2000

Abstract

This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide to federal power. State autonomy is valuable because it discourages excessive federal regulation. The Court's constitutional federalism is constrained, however, by its earlier concession of a general police power to the Congress. The Court essentially abdicated its responsibility to restrain Congress's power at the time of the New Deal. That abdication severely constrains the Court's constitutional federalism today. Part III focuses on the Court's decisions applying the principles of constitutional federalism to state courts. It compares Congress's greater authority over state courts with the limited power that Congress wields over state legislatures and executives, and explores the limits of that authority over state courts. Part IV provides background to Congress's enactment of the Uniform Act and explains why it adopted the form of preemption that it did. It then applies the constrained libertarianism theory of constitutional federalism developed in Parts II and III of this Article to the Uniform Act. I conclude that the Uniform Act is consistent with principles of constitutional federalism because its preemption results in less, rather than more, government interference with private conduct. That this unusual form of conditional preemption eliminates a state procedure, rather than a substantive law, should make no difference in the constitutional analysis. This preemption enhances liberty because it eliminates a secondary, and potentially inconsistent, level of government regulation. Individuals are more free if they have to deal with one level of government, rather than two, in managing their affairs. Having ceded to Congress the complete authority to regulate interstate securities markets, and thereby affording Congress the additional authority to restrict state courts in this area, the Uniform Act enhances individual liberty because eliminating state regulation enhances individuals' choices. State regulation cannot reduce, but can only supplement, the baseline of federal regulation. Eliminating state regulation reduces the overall amount of government. Therefore, the constrained libertarianism theory supports a broad preemption power. Finally, the Conclusion offers some thoughts on Congress's preemptive power over state courts in a world where markets are increasingly operating globally, rather than nationally.

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