In essence, this Article attempts to explain the underlying logic of two intersecting lines of recent Supreme Court decisions. The first line of cases concerns the allocation of constitutional power between the Nation and the States (i.e., cases about "federalism"); the other line concerns claims of individual right against exercises of purported State power (i.e., cases about "individual rights"). The federalism cases deal, respectively, with the powers of the States against Congress in the regulation of domestic matters"' and as against the Executive (and, less often, Congress) in influencing foreign affairs. The individual rights cases deal with equal access to State-provided benefits that take account of race" and with State regulation of private decisionmaking under the auspices of police power. Both lines of cases can be understood as efforts by the Supreme Court to adapt the American constitutional order to what it perceives as the necessities of globalization, and specifically to the successful transition from the constitutional order of the Nation State to that of the Market State.
Antonio F. Perez, Moral Communities or a Market State: The Supreme Court’s Vision of the Police Power in the Age of Globalization, 42 HOUS. L. REV. 637 (2005).