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Toward a New Jurisprudence of Constitutional Federalism

The Supreme Court in the 1990s and Public Administration

American University

Bernard H. Ross

American University

In the 1990s, narrow majorities on the Supreme Court have reinvigorated constitutional federalism by strengthening dual sovereignty and developing a new jurisprudence for analyzing key principles of federalism. The new dual sovereignty enhances the Reserve Clause, limits Congress's Commerce Clause powers, and broadens the 11th Amendment's sovereign immunity. The new jurisprudence promotes policy and administrative diversity among the states, thereby enhancing their ability to serve as laboratories for the development of public management theories and practices. The new reality of enforceable constitutional limits to national power can invigorate discourse about federalism within the public administration community. In practice, the new jurisprudence makes some national cooperative federalism arrangements more costly or impossible. The jurisprudence is conceptualized as federalism, not intergovernmental relations, and it does not speak specifically to local governmental matters. In addition, it is not well suited for analyzing and resolving collective action problems.

The American Review of Public Administration, Vol. 28, No. 2, 107-125 (1998)
DOI: 10.1177/027507409802800201


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