Judicial ReEngineering

REGENT UNIVERSITY LAW REVIEW
[Vol. 14:141
Moreover, not only does federalism diminish the likelihood of a
tyranny by the people; as Hamilton explained, it also discourages
tyranny by government.
This balance between the national and the state governments ought to
be dwelt on with peculiar attention, as it is of the utmost
importance.-It forms a double security to the people. If one
encroaches on their rights, they will find a powerful protection in the
other.-Indeed they will both be prevented from overpassing their
constitutional limits, by a certain rivalship, which will ever subsist
between them. 103
Federalism thus protects the liberty of the people from their
governments by having two of them, and it protects liberty from factions
of people by extending the sphere that a faction must control before it
becomes potent. This is why Madison believed that in "the extent and
proper structure of the Union, therefore, we behold a Republican remedy
for the diseases most incident to Republican Government." 1o4 The chance
for a successful republic hinges heavily on proper structure.
The Court has invalidated statutes commandeering state officials
because skirting the structure of federalism diminishes the
accountability of Congress and of state officials. "Accountability is thus
diminished when, due to federal coercion, elected state officials cannot
regulate in accordance with the views of the local electorate in matters
not pre-empted by federal regulation." 1 5 Both parties can "pass the
buck:" Congress by having state officials implement unpopular
programs, keeping congressmen "insulated from the electoral
ramifications of their decision;" 10 6 and state officials by blaming Congress
for passage of unpopular legislation. The people thereby have difficulty
holding the responsible party accountable, defeating the purpose of a
republic.1 0 7 A strict adherence to federalism prevents this occurrence.
"American federalism in the end is not a trivial matter or a quaint
historical anachronism. American-style federalism is a thriving and vital
institutional arrangement." 10 8 As the Supreme Court has explained,
103 Melancton Smith and Alexander Hamilton Debate Representation, Aristocracy,
and Interests (1788), reprinted in 2 DEBATES, supra note 26, at 772.
104 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,
at 411.
105 New York v. United States, 505 U.S. 144, 169 (1992).
Id.
106 Id.
107 See United States v. Lopez, 514 U.S. 549, 576-77 (1995).
If, as Madison expected, the Federal and State Governments are to control
each other ... and hold each other in check by competing for the affections
of the people ... those citizens must have some means of knowing which of
the two governments to hold accountable for the failure to perform a given
function.
108 Calabresi, supra note 5, at 770.
HeinOnline -- 14 Regent U. L. Rev. 158 2001-2002