Essay:
Bradford
R. Clark, Putting the Safeguards Back Into the Political
Safeguards of Federalism, 80 TEXAS L. REV. 327 (2001).
Abstract:
In
this essay, Professor Clark argues that the scholarship
regarding political safeguards lacks an adequate appreciation of
precisely how the political safeguards function to preserve the
governance prerogatives of the states.
Clark argues that commentators who invoke the political
safeguards to limit judicial review in federalism cases should
nonetheless favor vigorous judicial enforcement of
constitutionally prescribed lawmaking procedures.
This essay suggests that reliance on the political
safeguards to restrict judicial review in federalism cases
necessarily presupposes judicial review to enforce federal
lawmaking procedures and that commentators who invoke the
political safeguards for this purpose should urge courts to
invalidate unconventional federal lawmaking.