By Garrett Epps
“Federalism was our Nation’s own discovery,” Justice Anthony Kennedy wrote in 1995. “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”
Splitting atoms is often a mistake; the Framers’ “genius” idea eventually shattered their antebellum Republic over the matter of slavery. Today, a century-and-a-half after that debacle, the federal-state boundary is so poorly marked that it’s the site of constant guerrilla legal warfare. Nobody ever quite wins or loses; in legislatures and courts, the war goes on.
In those skirmishes, the most striking theme is pervasive hypocrisy. In fact, the idea of “principled federalism” is, with the exception of a few lonely oracles in faculty lounges, slightly rarer than Sasquatch. From James Madison to Jeff Sessions, political leaders and judges routinely defend broad federal power when their party controls the federal government, and sweeping state authority when it does not.
Case in point: United States v. California, a massive immigration lawsuit filed last week by the Trump administration. As civil conflict goes, it’s not quite firing on Fort Sumter, but it does signal all-out legal …read more
From:: The Atlantic