FW from Dan Conkle: (Not?) Fair to NYT

[Volokh, Eugene]

        This was sent Friday but because of some odd computer glitch doesn't
seem to have gone through; I'm retransmitting it on Dan's behalf

> -----Original Message-----
> From: Conkle, Daniel O.
> Sent: Friday, September 22, 2000 5:46 PM
> To: 'Discussion list for con law professors'
> Subject: (Not?) Fair to NYT
>
>
> This is semantics.  I didn't claim that  the N.Y. Times took a position on
> the question of constitutional power, but the Times most certainly took a
> position on federalism in the sense that my message (I thought) made
> obvious, i.e., in the sense of the appropriate role of national and state
> governments in resolving a controversial issue of public policy.  That's
> why
> I referred not only to constitutional doctrine, but also to "the more
> general policy of federalism."  And my point extends not merely to the
> Times, but to "conservative" advocates of national tort reform and the
> like.
>
> But if my terminology is somehow mistaken or inexact, please substitute
> "decentralized decisionmaking" for "federalism."
>
> (My original message is reproduced below.)
>
> Dan Conkle
> * * * * * * * * * * * * * * * * * * * * * * *
> Daniel O. Conkle
> Professor of Law
> Indiana University School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> mailto:conkle at indiana.edu
> * * * * * * * * * * * * * * * * * * * * * * *
>
> -----Original Message-----
> From: Frank Cross [mailto:crossf at MAIL.UTEXAS.EDU]
> Sent: Thursday, September 21, 2000 5:39 PM
> To: CONLAWPROF at LISTSERV.UCLA.EDU
> Subject: Not fair to NYT
>
> Too often debates about federalism get confounded with debates about
> decentralization.  I think that the NYT article on leaving the decision to
> Oregon was well-founded under principles of the occasional wisdom of
> decentralized decisionmaking.  The Times did not take a position on the
> federalism issue -- whether Congress had the constitutional power to do
> so,
> they just questioned the wisdom of the action.
>
> And I don't think S.Ct. Justices are any more principled, as evidenced in
> my USC L Rev. article that I have already promoted
>
> Frank Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> CBA 5.202
> University of Texas at Austin
> Austin, TX 78712
>
> -----Original Message-----
> From: Conkle, Daniel O. [mailto:conkle at INDIANA.EDU]
> Sent: Friday, September 22, 2000 3:44 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: PRPA letter
>
>
> Bryan Wildenthal  writes in part as follows:  "'Federalist' and
> state-autonomy-minded conservatives like Rep. Hyde (the sponsor, I
> believe,
> of PRPA) should be sympathetic to such arguments, and should recognize
> that
> their normative views on assisted suicide should not run roughshod over
> Congress's proper legislative role."
>
> Professor Wildenthal and the other participants in this discussion have
> principled views about constitutional doctrine and about the more general
> policy of federalism, and I like to think that I do also.  But I'm almost
> always disappointed when I looked for principled federalism in the world
> of
> politics or public commentary.  Unfortunately, this seems to be true of
> political "liberals" no less than political "conservatives."  Witness, for
> example, the N.Y. Times' recent discovery of federalism in the context of
> PRPA, and, as a thought experiment, imagine the Times' response to a
> congressional statute designed to protect abortion rights, e.g., the
> Freedom
> of Choice Act that was proposed a few years back:
>
> "The bill [PRPA] is an inappropriate attempt to usurp the power of states
> to
> address the profound question of the right to die. Oregon voters have made
> the
> decision to allow physician-assisted suicide as a reflection of their
> needs
> and
> values. Oregon's Death With Dignity law allows a terminally ill patient to
> receive a
> lethal dose of drugs only if judged by two physicians to be of sound mind
> and to have less than six months to live. Other states may choose not to
> legalize
> assisted suicide.  But Oregon voters should be allowed to act on this
> sensitive medical issue without Congressional interference." - N.Y. Times
> Editorial,
> 9/19/00
>
> Dan Conkle
> * * * * * * * * * * * * * * * * * * * * * * *
> Daniel O. Conkle
> Professor of Law
> Indiana University School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> mailto:conkle at indiana.edu
> * * * * * * * * * * * * * * * * * * * * * * *
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