Putting the Safeguards Back into the Political Safeguards of Federalism

In this Article, prepared for a Symposium at Villanova Law School titled "New Voices on the New Federalism," I briefly explore putting the *safeguards* back into the political safeguards of federalism. While nearly everyone seems to agree that judicial review is necessary and appropriate for the protection of individual rights, there is significant disagreement about whether judicial review is necessary, or even beneficial, in the federalism context. The earliest major "political safeguards" proponent, Professor Herbert Wechsler, and the most recent, Larry Kramer, have each argued that the states are adequately protected by various aspects of the federal political process, and have each concluded that the federal courts therefore have no meaningful, direct role to play in demarcating and enforcing the boundary between the powers of our federal and state governments. I disagree. I believe that the federal courts have a role to play in safeguarding state sovereignty that is as legitimate and essential as that generally acknowledged to be both necessary and constitutionally mandated for the protection of individual rights. This brief Article cannot offer a comprehensive defense of my own view, nor a nuanced critique of the influential work of Wechsler and Kramer. Rather, it provides a preliminary examination of two questions: (1) What are the "political safeguards" of federalism guarding against? and (2) Can the "political safeguards" identified by Wechsler or Kramer adequately serve this function?