Foreword: On the Judicial Safeguards of Federalism

This short essay, written as an introduction to a symposium on federalism, asks whether there is a judicially enforceable constitutional boundary of exclusive state authority beyond which Congress cannot reach and whether there are areas of state autonomy that may be judicially implied from the nature of our federal system. While the modern Supreme Court's answer to these questions is clearly yes, this essay argues that the text and structure of the Constitution establish that there are no judicially enforceable limits on Congressional power in the cause of federalism, beyond those in the literal text of the Constitution. I do not rely on the political safeguards of federalism. The Framers did provide the States with three important powers to influence the composition and functioning of the federal government - the powers to select Senators, determine the qualifications for voting for Representatives, and determine the method for selecting Presidential electors. But through a wa...