Navid Kiassat (Yale Law School) has posted The Lost History of Federalism Canons Before Gregory: Federalism as Harmonization (Yale Law Journal, forthcoming) on SSRN. Here is the abstract:
Conventional wisdom treats the federalism canons as mid-to-late twentieth-century innovations, associated particularly with the Rehnquist Court. But courts have used federalism-sensitive arguments in statutory interpretation since the Marshall Court. This Note recovers this lost history, showing that federalism canons were deployed throughout the nineteenth and early twentieth centuries. It then draws on this history to argue that the federalism canons should not be understood as mere policy canons but as vertical (i.e., federal-state) analogs of well-established reconciliation canons such as the whole-code harmonization canon and the presumption against implied repeals. On this account, the federalism canons help reconcile federal and state enactments as part of a unified legal system. This reconceptualization grounds the canons in the established judicial practice of reconciliation, highlights the values underlying their deployment, and provides greater guidance on when to deploy the canons.
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