Ann Althouse, Variations on a Theory of Normative Federalism: a Supreme Court Dialogue 42 Duke L. J. 979 (1993)
Abstract
This Article analyzes the Court's recent dialogue about federalism,revealing the convergence and ultimate divergence over its meaning. Part I looks in particular at the habeas case Coleman v. Thompson, in which Justice Blackmun makes his strongest statement of the need for normativity in habeas and stresses the constitutional rights of the isolated individual. Part II then examines two recent Tenth Amendment, substantive federalism cases, Gregory v. Ashcroft" and New York v. United States, in which Justice O'Connor elaborates a normative Federalism of her own. Although she agrees with Justice Blackmun that federalism ought to benefit the people, instead of the isolated rights-claimants Justice O'Connor sees the larger community-the electorate-as federalism's proper beneficiary, and she spins out a theory of federalism premised on democracy. Throughout, the Article considers these two theories as they edge close to each other but refuse to harmonize. Finally, the Article critiques both positions and envisions a salutory future dialogue about normative federalism.
