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49 Ariz. St. L.J. 961 (2017)
Federalism as a Constitutional Concept

handle is hein.journals/arzjl49 and id is 1001 raw text is: FEDERALISM AS A CONSTITUTIONAL CONCEPT Richard H. Fallon, Jr.* INTRODUCTION Debates about constitutional federalism-by which I roughly mean the division of powers and responsibilities between the national and state governments'-abound.2 Participants typically cast such debates as constitutional in character. Nearly invariably, however, policy concerns exert a dominating influence, either on the surface or just beneath it. More often than not, proponents offer federalism-based arguments on behalf of conclusions that they value for policy-based reasons. Reciprocally, champions of particular theories of constitutional federalism typically argue that their visions would yield better outcomes-as measured along some dimension-than would any other understanding of the Constitution's structure. In an effort to chart some dimensions of the relationship between federalism-based arguments and more overtly normative or policy-based arguments, I pursue three lines of inquiry in this Essay. First, is there such a thing as a constitutional concept of federalism? On the one hand, the Constitution nowhere uses the term federalism. On the other hand, the Constitution includes a number of provisions bearing on the respective powers and prerogatives of the federal and state governments. Under these circumstances, my first concern is to clarify what it would mean to describe federalism as a constitutional concept such that we could plausibly ascribe a theory of federalism to the Constitution itself, rather than * Story Professor of Law, Harvard Law School. I am grateful to Max Schulman for invaluable research assistance and to participants in the Classical Liberal Institute's Conference on Federalism, especially including Richard Epstein, Daniel Francis, Michael Greve, Tom Merrell, and Ernie Young. 1. An additional, horizontal dimension of constitutional federalism involves states' prerogatives and responsibilities relative to other states. See, e.g., Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493, 494 (2008); Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 MICH. L. REV. 57, 59 (2014); Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1470 71 (2007). 2. For a lucid discussion of the values associated with federalism and of surrounding debates and controversies, see DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE (1995). On the historical origins of constitutional federalism, see ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010).

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