Richard H. Fallon, Jr., Federalism as a Constitutional Concept, 49 Ariz. St. L.J. 961 (2017).
Abstract: Debates about constitutional federalism—by which I roughly mean the division of powers and responsibilities between the national and state governments—abound. Participants typically cast such debates as constitutional in character. Nearly invariably, however, policy concerns exert a dominating influence, either on the surface or just beneath it. More often than not, proponents offer federalism-based arguments on behalf of conclusions that they value for policy-based reasons. Reciprocally, champions of particular theories of constitutional federalism typically argue that their visions would yield better outcome —as measured along some dimension—than would any other understanding of the Constitution’s structure. In an effort to chart some dimensions of the relationship between federalism-based arguments and more overtly normative or policy based arguments, I pursue three lines of inquiry in this Essay.