"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching upon the sphere of authority reserved for the states-is at the core of the long ascendant legal doctrine of federalism. Familiar to all by now, modem-day federalism, generally, is a doctrine that takes constitutional limits on federal power seriously and demands respect for the sovereignty of states, protecting them against wayward impositions on their authority. Although the Constitution has several provisions enshrining federalism principles, the central federalism passage in that document is the Tenth Amendment, which reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. " This clause and others reflecting federalism principles were reinvigorated by the Rehnquist Court, which was renowned for its active embrace of federalism. The Court's federalist leanings under the late Chief Justice Rehnquist led it to invalidate federal action on several notable occasions on the ground that Congress had exceeded its constitutional authority and intruded upon the sovereignty of the states. However, this "federalism revolution" as some would call it has not been confined to the courts. A core theme of Republican Party politics since Ronald Reagan assumed the presidency has been the vigorous promotion of new federalism and states' rights.

Interestingly, in the midst of continued political rhetoric in support of federalism and the Court's stern rejection of recent congressional Commerce Clause legislation on federalism grounds, Congress has pursued legislation, and the Supreme Court has rendered decisions, that impose upon, supplant, or usurp the judicial authority of states and their courts. In a spate of federal tort reform efforts, Congress has variously sought to regulate state judicial procedure directly by limiting the award of punitive damages in state courts for state law claims, to require the application of Rule 11 of the Federal Rules of Civil Procedure in state court proceedings, and to determine intrastate venue in personal injury actions in state courts. Meanwhile, the Court has expanded federal jurisdiction over state law claims through expansive preemption doctrines and expansive interpretations of federal jurisdictional statutes, which has had the practical effect of depriving states of the ability to adjudicate claims arising under their own laws. Most alarmingly, both Congress and the Court have reached out to review and invalidate the final determinations of state courts on matters traditionally within their sphere of authority, vacating state court punitive damages awards as "excessive," reversing the order of a recount deemed to be required under state law in a Presidential election, and authorizing federal district court review of a right-to-die dispute conclusively resolved by state courts.

I refer to each of these federal efforts to control or usurp state court jurisdiction or procedure with respect to state law claims as anti-federalist procedure. That is, anti-federalist procedure, as herein discussed, refers to federally-generated policies or doctrines that limit, control, or eliminate the ability of state courts to adjudicate state law claims in their courts or to devise and impose their own procedures for how such claims are litigated and resolved. Although the particular manifestations of anti-federalist procedure need not be illegitimate exercises of federal power, they often are.

This Article will review some of the more notable instances of antifederalist procedure, offering a critique and proposing statutory and doctrinal revisions needed to put matters right. Part II presents specific examples of antifederalist procedure, offering some critique and analysis along the way. A full critique is reserved for Part III, wherein the Article details the significant constitutional difficulties with anti-federalist procedure. In Part IV, I present a vision of what federalism-respecting procedure would look like in the statutory and doctrinal areas discussed in Part II, ultimately recommending fairly drastic alterations of Supreme Court doctrines and a less radical statutory modification.

Document Type


Publication Date

Winter 2007

Publication Information

64 Washington & Lee Law Review 233-293 (2007)