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Denver University Law Review



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federalism, state soverignty


In Constitutional Home Rule and Judicial Scrutiny, Lynn Baker and Daniel Rodriguez start an important conversation about an interesting and understudied puzzle. In one view of vertical federalism, the federal government is understood as constrained to enumerated powers, states retain plenary police power, and local governments are traditionally creatures of the state. This view yields something of structural constitutional bell curve that situates the heart of sovereignty at the state level, leaving the federal government and local governments with forms of limited authority on either end. Despite this seemingly privileged state position, however, federal courts seem unwilling in the main to protect states from federal power in direct conflicts arising under the Tenth Amendment. Local governments asserting arguably equivalent home rule constitutional provisions as a shield against those same states more often get their day in state court. To Baker and Rodriguez, this conundrum can be understood largely as a question of differing self-conceptions of judicial competence at the federal and state level. State courts are comfortable with routinely deciding whether a matter is "local" or of "statewide concern" in interpreting constitutional home rule provisions. The U.S. Supreme Court, by contrast, has declared that divining a line between proper federal and state authority-at least in the context of state regulatory immunity under the Tenth Amendment-is functionally "unworkable." Baker and Rodriguez's tentative conclusion from this juxtaposition is that the federal courts-and it would seem, by extension, critics of resurgent state-centered federalism jurisprudence-should look to the state example and stop worrying so much about the difficulty of developing an elegant theory of governance scale that would, ex ante, provide clear theoretical lines between levels of governments. State courts, they argue, have proven adept at developing a constitutional common law in this area and the federal courts should learn from this example. As Baker and Rodriguez put it, "if the state courts are in fact doing a good job" developing a jurisprudence to police the state-local boundary under constitutional home rule, "it would suggest that the task is far from impossible and, indeed, that the U.S. Supreme Court might do well to follow the state courts' lead." This is a compelling argument in many respects, but worthy of some caution. In this brief comment, I want to suggest ways in which Baker and Rodriguez may be overly dismissive of the pragmatics of federal- court review of federal-state conflicts and conversely overly sanguine about the efficacy of state-court supervision of the state-local divide. Ultimately, the question should be not whether state courts are forging a path that federal courts have mistakenly abjured, but rather under what circumstances any court reviewing vertical constitutional conflicts should displace the political process that has created the conflict in the first place. There are no easy answers here, and Rodriguez and Baker have persuasively framed a parallelism that deserves serious attention. It is worth asking, however, when it is justified to displace normative debates about specific policy disputes into the realm of judicial review of governmental scale, rather than as a practical matter to leave those debates, as federal courts often do, to the give and take of intergovernmental collaboration and conflict. It may be that in answering this question, it is state courts that have lessons to learn from their federal counterparts, rather than the other way around.