The Rehnquist Court's conservative majority seems committed to maintaining this boundary even though it may limit the ability of Congress to advance conservative policies in particular cases. Take same-sex marriage. Even though it is an A-list issue for social conservatives, the Court expressly identified marriage (in a recent Commerce Clause case) as a matter of "truly local" concern and not at all "economic." There is little reason to think the Court will back off on this, even if confronted by a federal statute banning same-sex marriage. The Rehnquist Court's federalism, then, is conservative without always generating a conservative outcome.He proposes that "Progressive Federalism" should be the mirror image of this.
It would give states and local governments much greater room to regulate the private market. This would check national and multinational business influence as Louis Brandeis and earlier progressives once imagined. It would also give the national government much more power to regulate nonmarket social relations. This would give Congress the power to protect basic Fourteenth Amendment rights.