Vanderbilt Law Review


Mark Tushnet

First Page



We are now in the midst of a confused era for federalism doctrine. A court of appeals has read the Supreme Court's precedents for at least as much as they are worth in holding that Congress, in enacting the Gun-Free School Zones Act of 1990, exceeded the power the Commerce Clause grants it., The Supreme Court itself has been unable to develop a stable constitutional doctrine about the roles of Congress and the courts in protecting federalism. Every time the Supreme Court has wandered into the federalism forest, it has gotten lost. For a while, scholars believed we understood why. Elaborating for modern times a Madisonian theme, Herbert Wechsler persuaded us that the Constitution's three structures --national power, federalism, and judicial review-- fit together comfortably. Because the interests of states as states were represented in the national political process, it was unnecessary to deploy judicial review to protect their interests against normatively unconstitutional assertions of national legislative power.