Faint-Hearted Federalism: The Role of State Autonomy in Conservative Constitutional Jurisprudence

Earl M. Maltz

ABSTRACT

The conservative members of the Supreme Court often portray themselves as the protectors of the autonomy of state governments in the federal system. Among other things, they have relied on the concept of state autonomy as a justification for limiting the ability of Congress to protect both religious liberty and voting rights. However, at the same time, Chief Justice Roberts and his compatriots have often shown little regard for state autonomy in cases where the actions of the Supreme Court itself have had the effect of significantly limiting that autonomy. Thus, in cases such as Janus v. AFSCME Council 31, McDonald v. City of Chicago and Parents Involved in Community Schools v. Seattle School District No. 1, the conservative justices have not hesitated to find that the Constitution established national rules that deprived state and local governments of the authority to adopt policies that conservatives generally find objectionable. This essay is the first to juxtapose these two aspects of conservative constitutional jurisprudence and to argue that any justice who is truly committed to preserving state autonomy should also embrace the concept of judicial restraint in cases where the Court is called upon to review the actions of state and local governments.