Document Type

Article

Publication Date

1980

Abstract

A familiar passage in Professors Hart and Wechsler's casebook likens the relationship between federal and state law to that which exists between statutes and the common law. The underlying idea is that federal law rests upon a substructure of state law. "It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for [its] special purpose."' A similar relationship exists between state and federal judicial systems. State courts are courts of general jurisdiction, assumed to have authority to adjudicate controversies unless Congress has displaced them by conferring exclusive jurisdiction on federal courts. Federal courts, on the other hand, have only a limited jurisdiction carved out of the general jurisdiction of the state courts and conferred for restricted purposes. I mention these well-known relationships to explain why I shall not essay a comprehensive discussion of the Supreme Court's attitudes toward federalism during the past decade. Because of the variety and complexity of the relationships between state and federal law, any attempt to canvass all-or even the important-decisions bearing upon the Court's current attitude toward federalism would necessarily cover a very broad terrain, surely far more than I can traverse within the allotted time. Instead, I will consider what insights into the Court's attitudes toward federalism can be gained by exploring a limited number of constitutional decisions arising out of the social revolution of the past decade, those involving the constitutionality of gender classifications and those relating to childbearing. Confining the inquiry in this way eliminates any possibility of a definitive statement, or even a rounded view, of the Court's attitude toward federalism during the Burger years, but by focusing attention upon a small number of important cases it may open the way to insights that would be obscured in a tour de horizon. More specifically, an examination of the Court's response to the most important issues raised by the women's movement may tell us something of its current attitudes toward federalism as a device for mediating conflict in a period of rapid social change.

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