Judicial Federalism and the Challenges of State Constitutional Contestation
By Robert A. Schapiro.
Scholars of federalism emphasize the importance of states and state constitutions as alternative sources of power in the United States. Authority does not simply flow from Washington, D.C. Rather, power is spread throughout multiple layers of governance. This proliferation of nodes of authority offers a variety of benefits. For example, if the national government does not adequately address a problem, the states can provide the necessary protection for their citizens. Thus, if federal law does not safeguard personal sexual liberty, grant equality rights to same-sex couples, or guarantee medical care, the states can step in and fill these gaps. These state endeavors may encourage the federal government to act, either by offering best practices or by highlighting the shortcomings of federal efforts. States can lead by example.
In addition, states can directly contest federal practices. Rather than supplementing federal efforts or substituting for federal inaction, states may actively oppose national policy. The means of opposition may be political, as states serve as rallying points for resistance to national programs. On at least one notable occasion, the Civil War, the opposition has taken military form. Recently, however, states have designated the federal courts as the forums of choice. States have brought suit against the national government, claiming that it has violated federal law.
***
This paper considers the role of states in bringing their disputes with the federal government into court. I wish to examine when it is appropriate for states to subject the national government to judicial supervision. In particular, I will focus on those instances where it appears that the state’s participation is necessary to make a dispute justiciable. States may become involved in litigation with the federal government for a variety of reasons, such as offering litigation support or bringing public attention to the matter. Here, though, I am interested in those situations where the state’s participation is essential to opening the courthouse doors, taking a dispute that otherwise would remain—at least for the moment—outside of judicial cognizance and endowing it with a magic key to the courtroom.