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Federalism and SubsidiarityNOMOS LV$
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James E. Fleming and Jacob T Levy

Print publication date: 2014

Print ISBN-13: 9781479868858

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9781479868858.001.0001

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Subsidiarity, the Judicial Role, and the Warren Court’s Contribution to the Revival of State Government

Subsidiarity, the Judicial Role, and the Warren Court’s Contribution to the Revival of State Government

Chapter:
(p.190) 6 Subsidiarity, the Judicial Role, and the Warren Court’s Contribution to the Revival of State Government
Source:
Federalism and Subsidiarity
Author(s):

Vicki C. Jackson

Publisher:
NYU Press
DOI:10.18574/nyu/9781479868858.003.0006

This chapter comments on the arguments advanced by Steven G. Calabresi and Lucy D. Bickford regarding the principle of subsidiarity as it relates to the European Union's quasi-federal system and the United States's constitutional system. It first questions the aptness of the U.S.-EU comparison and the conception of subsidiarity as being primarily about externalities, with particular emphasis on the problem of “bricolage” and constitutional multifunctionalism. It then notes the lack of a basis in comparative experience for strong judicially enforced versions of subsidiarity and goes on to propose an alternative “proceduralist” approach to the judiciary's role in advancing subsidiarity in the U.S. constitutional context. It also looks at the Warren Court and how it reinforced federalism by nationalizing the Bill of Rights in the U.S. Constitution, thus dramatically improving the legitimacy and efficacy of state governments.

Keywords:   subsidiarity, European Union, bricolage, judiciary, Warren Court, federalism, Bill of Rights, state governments, U.S. Constitution

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