Abstract
Introduction Since 1976, and especially in the last few Supreme Court terms, legal scholars have detected a "new federalism." Several decisions suggest that Congress can no longer exercise virtually unlimited control over the nation's socioeconomic life from its power to "regulate commerce among the States." 1 These decisions point toward a revival of the constitutional principle of "dual federalism," in which both federal and state governments enjoy sovereign powers. 2 From the ratification of the Constitution until the New Deal, a consensus held that the national government was one of limited, enumerated powers and that the states reserved the vast bulk of ordinary government functions. The Tenth Amendment stated this principle, that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 3 In the early years of the twentieth century, the "progressive era," this dual system began to erode as Congress began to exercise local or "police powers" - the general power to legislate on matters concerning the safety, health, welfare, and morals of the people. 4 The Supreme Court and the American people were fundamentally ambivalent about this development, favoring greater national power but deeply divided about how far it should go. 5 The economic crisis of the Great Depression and political realignment of the New Deal swept that ambivalence away. 6 After 1937, the Supreme Court no longer struck down acts of Congress ...