3
and Thomas have forced a new look at the post-New-Deal conventional wisdom about the
allocation of powers between the federal government and the states.
9
In this paper I propose to examine the current conflict over federalism in terms of a
broader perspective than that of the specific holdings in these recent cases. My initial con-
ceptualization of this issue was to ask, to what extent can we fruitfully understand that con-
flict as a reassertion, at bottom, of the competing visions of the structure of the union held
by Federalists and Antifederalists?
10
That is, do the majority justices in the most politically
prominent of those cases, Lopez, Term Limits, and Morrison, simply assert against the
strong nationalism of the post-New-Deal period a theory of union well within if neverthe-
less at the outer edges of the Constitution's design, or do they in fact reassert a theory of
union beyond that design, from the Articles of Confederation? Cass Sunstein, for example,
has written that "Whether on the Supreme Court or in the political arena, modern opponents
of national power actually carry forward the thinking of the anti-Federalists, not that of the
framers."
11
Similarly, Kathleen Sullivan argues that "the Court decided Term Limits
against the backdrop of a dramatic antifederalist revival. After a half-century of relative
complacency about the increasing federalization of lawmaking power, antifederalist argu-
9
As Taylor summarizes this development succinctly, recent federalism cases
. . . have clustered around three overlapping questions: What constitutional
limits remain on congressional power 1) to regulate private conduct in areas
traditionally governed by state law; 2) to command the states to use their
own powers and resources to carry out federal regulatory schemes; and 3) to
impose monetary liabilities on the states for violating federal laws that are
properly binding on the states?
Taylor, p. 2136.
10
Indeed, I would suggest that a great deal of the conflict between the two dominant politi-
cal parties in each of the historical American party systems represents the conflict between
Federalist and Antifederalist strains in American political culture. Prior to the New Deal, for
example, the Republicans were the Federalist party and the Democrats the Antifederalist
party, whereas since the New Deal, and especially since the 1960s, it is the Republicans who
are the Antifederalist party and the Democrats the Federalist party. Proof of this broad
historical claim is, of course, far beyond the scope of this paper.
11
Cass Sunstein, "The Return of States' Rights," The American Prospect, Vol. 11, no. 24,
October 20, 2000 (parenthetical statement).
Convention