Suchergebnisse

AbstractThis article analyzes Justice Anthony M. Kennedy's commitment to protecting state sovereignty. In contrast to scholars who view Kennedy's behavior as merely pragmatic or centrist, this article focuses on principles and tensions underlying his liberty-based approach to federalism. From his early career in Sacramento through three decades on the U.S. Supreme Court, Kennedy sought to restore a federalism he considered essential to personal and political liberty but increasingly "endangered." His opinions extended beyond the constitutional text to protect traditional areas of state concern, state treasuries, and local political decision making against increasing federal control. However, Kennedy subordinated state sovereignty when it interfered with the federal government's direct relationship to citizens, promoted economic protectionism, and violated his expansive conceptions of constitutional liberty and human dignity. The article concludes by situating Kennedy's distinctive conception of federalism within the larger Rehnquist and Roberts Courts.

The Supreme Court decisions in United States v. Lopez & US Term Limits v. Thornton reveal sharp divisions among the Justices about the constitutional federalism of Chief Justice John Marshall. A four-Justice liberal bloc, which voted in both cases in favor of the national side of the federal balance, considers Marshall essentially nationalist. A four-Justice conservative bloc, which voted in both cases to limit the federal sphere, reads Marshall as a virtual dual federalist. Justice Anthony Kennedy provided the deciding votes, siding with the conservatives in Lopez & with the liberals in US Term Limits. His concurring opinions interpret Marshall as recognizing the supremacy of the federal government while acknowledging judicially enforceable limits on the exercise of federal power. Kennedy's explanation for his apparently inconsistent votes in fact reflects most closely Marshall's theory of the role of the judiciary in upholding the balance of powers between the federal & state governments. Adapted from the source document.