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Spring 2011 - Con Law II: Federalism

Levinson, Sanford V

Course ID: 381C  Unique # 29570  Credit Hours: 3
Meeting DaysTimesLocation
   Monday 9:05 am - 10:20 am TNH 3.124
   Wednesday 9:05 am - 10:20 am TNH 3.124
Exam Type   Date   Time      Name Range   Room  
  Final Wednesday, May 11    1:30 pm          A-Z

Federalism is thought to be an integral part of the American constitutional order.  But what, exactly, is federalism as a legal concept (as distinguished, say, from a political preference for decentralized decisionmaking in the initiation and implementation of public policies)? If, for example, federalism requires the assignment to states of "sovereign authority" over some significant policy domain(s)--education, religion, language, environmental control, family, for example--then does the United States Constitution, correctly understood, really provide any such explicit assignments? Or is federalism better understood as a series of political structures that, even without any such explicit assignments, work to achieve many of the same ends? If that's the case, to what extent do the structures of governance established by the United States Constitution, either in 1787 or today, effectively protect (whatever one thinks should be protected by) federalism? If, as many people think is the case, neither the modern Congress nor the Executive branch can be counted on to vindicate "federalist" values (whatever one might think they are), then what about the judiciary, including the Supreme Court?

The course will examine the political/legal history of federalism from 1787 to the present.  Although, inevitably, it will spend most of the time on the United States constitution, we shall also look with some care at the phenomenon of state constitutions and some of the conundrums presented by trying to retain some genuine sense of "state sovereignty" in the American constitutional order.  And some time will be spent looking at some other federal systems around the world for any insight on whether they might provide more effective protection for (whatever one thinks important in) federalism than does the American system.  Consider, e.g., the fact that the Budesrat in Germany is composed of state political officials, not, as in the United States Senate, popularly elected officials with no official connection at all to the state governments of the states from which they come.

Readings will be drawn primarily from Paul Brest et al., Processes of Constitutional Decisionmaking, but there will be collateral readings drawn as thought advisable from political science and political theory.

No prerequisite(s).

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