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The Supreme Court’s Role in Restoring Federalism

“The Supreme Court Should Make Politics Local Again”

The genius of the Constitution’s structure is the two-dimensional separation of government power. The horizontal separation is formed from creating three distinct branches of national government that exercise distinct national powers and limit each other through sometimes overlapping powers and other checks and balances. This is our “separation of powers.”

But that moniker is misleading, because there is a second separation of powers embedded in the Constitution: a vertical separation, or federalism, wherein states retain powers that the national government does not have, or exercise concurrent authority in some areas.

By dividing power in both of these ways, the Constitution provides what James Madison called a “double security” for liberty. Influenced by European writers such as John Locke and Montesquieu, and affected by their revolutionary history, the Framers believed that the opposite of dividing power—its concentration—threatened to bring tyranny.

Thus, our Constitution is designed like a pyramid. At the top is the national government, which exercises power that is supreme. But that national power is also limited in scope. At the bottom of the pyramid are the states. Their power can be superseded by national power when there is a clash, but the states’ powers are much broader in scope, meaning in many areas of life only the states have power to act.

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