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Flashback Friday: Herbert Wechsler, “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government”

Flashback Friday is an occasional feature in which we look back to noteworthy articles from the past.

Daniel J. Elazar famously referred to federalism as a system of shared rule and self-rule and to the American states as polities in their own right. In this 1954 article in the Columbia Law Review, Herbert Wechsler wrote especially about the shared rule dimension of federalism, that is, the roles of the states in the composition and operations of the national government, particularly the states’ representation in Congress. Wechsler also contended that the existence of the states as government entities and as sources of law drives the nation’s federalism and has strongly affected the nature and scope of congressional processes since the nation’s inception. He argued, however, that there is no need for federal judicial protection of the states because the national political process protects the states’ interests. What became known as the “political safeguards” theory, which was also advocated by Jesse Choper, exerted considerable influence in the federalism literature and was embraced by the U.S. Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority (1985). However, critics of Garcia argue that the “political safeguards” are insufficient safeguards because they were already eroded substantially by 1985. Although the Court has made little use of the Tenth Amendment as a shield for the states since United States v. Darby Lumber (1941), it has somewhat protected states through other doctrines such as sovereign immunity, anti-commandeering, and dual federalism. Read more here.

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