Vanderbilt Law Review

Article Title

Federalism, Untamed


Ann Althouse

First Page



Do you rankle at those amorphous rhapsodies about "Our Federalism" indulged in by judges who relegate civil rights litigants to state courts?' Why would anyone see cases in which state officials stand charged of violating the rights of individuals as presenting an occasion for deference to the states? If federal rights take precedence over state policies and practices, is it not perverse to prefer adjudication in the courts that have the strongest bias in favor of state interests? If jurisdiction is a duty and declining jurisdiction consequently a dubious business, shouldn't we reject judge-made doctrine and statutory interpretation that restrict access to federal court? And when the cases excluded involve matters of individual rights, shouldn't our disapproval become active condemnation?

If we address the Supreme Court's federalism-based jurisdictional doctrine with questions of this kind, we will probably tend to conclude that the Court has turned the proper hierarchy of values upside down, either through inept reasoning or active hostility to rights. In this essay, I turn away from that perspective and posit a theory that harmonizes the Court's federalism with the notion that federal rights take precedence over state policies and practices. I suggest that the Court's supposedly deferential moves in the name of federalism are little more than a strategy to exploit the state courts, conscripting them into a national agenda. That is, the Court's federalism is in reality quite tame. While individual rights frequently receive something decidedly less than expansive vindication, this federalism nevertheless constrains the state courts in a system structured according to national interests and policies.