Anthony Lewis forgets federalism?

[Scarberry, Mark]

In response to Michael McConnell's typically thoughtful post:

I have not spent a lot of time thinking about Printz. With that disclaimer I
think the Printz principle makes sense constitutionally and that it is
judicially enforceable. But as an antidote to an excessive concentration of
power, the Printz principle seems to me to be, in the scheme of things,
relatively ineffectual, and therefore relatively unimportant. That is not to
say that is unimportant in some other sense.

I had not thought much before about the relative numbers of state and local
police versus the number of federal police (FBI, INS, etc.). I suppose to
the extent that a large number of police would be needed to enforce
tyrannical dictates from a central government, then the Printz principle
could be very important as an antidote to central power. But given the
dependence of states and localities on federal money, will Printz be
effective in preventing the co-opting of state and local police through
strings on funding? Will the Supreme Court prohibit funding strings that are
more coercive than those in Dole?

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu



-----Original Message-----
From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
Sent: Wednesday, March 20, 2002 11:48 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Anthony Lewis forgets federalism?


I suppose that, were it not for the constitutional principle reflected in US
v Printz, California state troopers and police could be required to enforce
the cannabis ban instead of using federal agents in highly visible and
controversial sweeps, like the one reported last week; that oregon could be
forced to enforce the ban on assisted suicide notwithstanding its state
referendum; and that Michigan state police would have been required to
assist the feds in detaining Arab Americans for voluntary questioning in the
recent sweep. To me, it appears that the federal government's legal
inability to conscript state enforcements agencies has real resource and
political consequences. Are Sandy and the Marks saying that the Printz
principle (whatever they may think of it as a matter of constitutional
interpretation) is not judicially enforceable, or that it is not important?

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


> -----Original Message-----
> From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
> Sent: Wednesday, March 20, 2002 12:33 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Anthony Lewis forgets federalism?
>
>
> I take Mark Scarberry's first set of questions to be (merely)
> rhetorical, and not calling for answers.  As to his second, I
> too would
> answer no to (1) ("important judicially enforceable antidote") and yes
> to (2) ("important constitutional [though perhaps not judicially
> enforceable] antidote"), with a qualification arising from my
> uncertainty about my answer to (3) ("important cultural antidote").
>
> The uncertainty is that -- despite the routine invocation of
> Texas as a
> counterexample -- I am unpersuaded that the nation's diversity
> correlates sufficiently with state boundaries for federalism
> to have any
> real cultural bite.  Sometimes I'm inclined to give the Texas example
> away, and ask whether a nation largely homogenous in the remaining 49
> states can sustain a culture of geographically defined
> federalism; more
> recently, I've thought about setting a research assistant to
> the task of
> looking at various cultural indicators (proportion of meals
> consumed at
> MacDonald's, or attendance at which movies, or popularity of which
> television shows) to see if in fact Texas is really as distinct as is
> routinely claimed.
>
> I think it's easy to romanticize the connection between geography and
> cultural variation in the United States and, while recognizing that I
> have a reasonably cosmopolitan consciousness, wonder whether (believe
> that) there's much cultural variation correlated with geography.  If
> there isn't, I don't think that the answer to (3) could be yes.  But,
> once again, the issue of the degree of that correlation is an
> empirical
> question (of a sort that law professors are strongly disinclined to
> address).
>