Jump to ContentJump to Main Navigation
Federalism and SubsidiarityNOMOS LV$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM NYU Press SCHOLARSHIP ONLINE (www.nyu.universitypressscholarship.com). (c) Copyright University of NYU Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in NYSO for personal use.date: 30 June 2022

The Puzzling Persistence of Dual Federalism

The Puzzling Persistence of Dual Federalism

(p.34) 3 The Puzzling Persistence of Dual Federalism
Federalism and Subsidiarity

Ernest A. Young

NYU Press

This chapter examines two ways that account for the persistence of dual federalism. The first is the critics' belief that the Supreme Court is inclined to revive strict dual federalist limits on national power, even when what the Court actually says and does makes rather clear that it is not. The second has to do with the Supreme Court's rhetoric and doctrine regarding the use of dual federalist notions to limit state power, by defining distinct and exclusive spheres of national regulatory activity. While the chapter acknowledges that the Supreme Court's critics are right to condemn dual federalism, it argues that they are wrong to think that the Court has revived dual federalist limits on national power. It also compares dual federalism with dual sovereignty and considers alternatives to dual federalism, including managerial decentralization or “Marshallian federalism,” cooperative (and uncooperative) federalism, subsidiarity or collective action federalism, process federalism, and immunity federalism. It also comments on the claim that dual federalism is logically self-defeating and concludes with a discussion of the “Frankfurter Constraint”.

Keywords:   dual federalism, Supreme Court, state power, national power, dual sovereignty, Marshallian federalism, subsidiarity, process federalism, immunity federalism, Frankfurter Constraint

NYU Press Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs, and if you can't find the answer there, please contact us.