Federalism Case Comment 128 Harv. L. Rev. 85

Slipping the Bonds of Federalism



There are three tales told about federalism, but only one of them is true. The first is the nationalist’s tale. It depicts federalism doctrine as Shakespearean comedy. Always fanciful, sometimes silly, the story supplies moments of consternation and doubt. But the villain turns out to be mostly harmless and easily outwitted. All’s well that ends well. The second is the tale told by those who believe in state sovereignty — an epic story of heroes depicting battles against impossible odds and often ending, as did Beowulf, with death and loss. The third story, and the true one, is a tragedy — or at least a tale of tragic choices. It is a story of the failure of craft, of law’s best principles bumping up against doctrine’s worst frailties, of the conflicting obligations we place on judges. That is the real story of “Our Federalism.”

While the “curious case” of Bond v. United States (Bond) ended up being one of the less important chapters of this Term, it folds easily into each of these storylines. That’s because it is a stand-in for much of what’s wrong with federalism doctrine, and it should be a signal to us all that, no matter which tale we prefer, it’s time for a new narrative. The question isn’t how Bond’s two opinions will shape future federalism doctrine. The question is whether we can slip federalism’s many Bonds and start anew.