In many of these issues, those chanting loudest for states' rights were also seeking to maintain a status quo in their states that included a legacy of slavery, racism, and discrimination. The irony is that the Founding Fathers envisioned federalism as a way to protect liberty and civil rights from an overbearing central government. But throughout much of U.S. history, it has been the national government that has played the role of protector of liberty and civil rights in the face of oppressive action or policies of some of the states. It is a juxtaposition that gave federalism a bad name. But that may have changed.
Some analysts say the high court is merely following the lead of the rest of the country.
Whether the Rehnquist court secures a position in history as the first to sustain a major resurgence of the constitutional principles of federalism may depend entirely on the outcome of the coming presidential election and future appointments to the high court. On the other hand, if a Republican wins in 2000 and appoints a conservative justice to replace a more liberal justice, it could mean that the 1990s was only the beginning of resurgent federalism, a mere appetizer to the main course still to come. The theory is that all issues not related to interstate trade, the national economy, national defense, or foreign affairs would fall to the states for regulation and legislation. Many regulations and policies that violate federalist principles, such as Social Security and Medicare, would most likely remain in place. But a meaningful push toward federalism's principle of dual sovereignty could have a significant and immediate effect on the reach of congressional legislation.