The Burger Court and Our Federalism

Dicey derided federal government as weak government; others have found genius lurking in its institutional arrangements. But most students, as Professor S. R. Davis\u27s illuminating little book makes clear, have considerable difficulty in identifying what federal government is, whether the concept is approached analytically, legally, descriptively or normatively. American lawyers are not inclined to pursue such inquiries too far. For, like Justice Black, they are concerned only with Our Federalism and, like Justice Stewart and obscenity, they know it when they see it. Moreover, American lawyers have, in large measure, confined their attention to one specific component of Our Federalism; its legal content. Historically, the major legal issue in Our Federalism has been substantive in nature, i.e., the extent to which the basic charter mandates a clear division of powers, one that both protects and confines the central and state governments in their respective spheres. That issue is devoid of current significance. The radical transformation that has occurred in the structure of Our Federalism in the nearly two centuries of our existence has emptied the concept of nearly all legal content and replaced it with a frank recognition of the legal hegemony of the national government. This occurred well before the arrival of the Burger Court, and that Court shows no signs of attempting to undo the past. In recent years, attention has been drawn to a second, process-oriented dimension of Our Federalism: we have come to accept as an article of faith that adequate federal judicial and administrative mechanisms should exist to enforce federally secured rights. The Burger Court has been the object of much criticism at this level, some of it of an inflamed character. I think that the criticisms have been vastly overstated and that the Burger Court has done little to impair the Warren Court\u27s legacy of strong federal enforcement of federal rights