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Chief Justice William Howard Taft and the Concept of Federalism, 9 Constitutional Commentary 199 (1992)


Always given to a stately form of self-deprecation, William

Howard Taft would no doubt have been amused by the subject of

this paper. For of all the Supreme Court Justices of his time, Taft

was undoubtedly the most averse, for reasons of both affinity and

conviction, to what modem Americans would recognize as the ideal

of federalism.

To appreciate exactly why this is so, however, will require us to

disentangle at least four separate aspects of that ideal: federalism as

a commitment to limited national legislative power; federalism as a

commitment to the diversity of local cultures; federalism as a commitment

to decentralized management; and federalism as a commitment

to the diffusion of power. Although these four aspects of

federalism are ordinarily fused together into a single generalized

preference for state decisionmaking, they in fact rest on distinct rationales

and lead to quite diverse jurisprudential outcomes. These

differences can be made clear by an examination of Taft's unique

judicial perspective, an examination that has some relevance to our

own contemporary struggles with the constitutional implications of


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