Anthony Lewis forgets federalism?
mcurtis at LAW.WFU.EDU
Thu Mar 21 12:01:30 PST 2002
This post is in response to the general subject of federalism as a protection of
liberty. Historian James McPherson notes that in the years leading up to the
Civil War the issue of states rights was used opportunistically, not as a
consistent principle. For example, the Southern slaveholding elite embraced
states rights, except when the advantages for slavery called for strong national
power--eg fugitive slaves or the claim to extradite abolitionists for trial in
the South based on anti slavery newspapers sent South. On alleged fugitive
slaves one issue was whether Northern states could require due process under
state law before blacks were seized in the North and taken into slavery.
Pennsylvania required process to determine if the person really was a slave
before being hauled into a state where being black raised the presumption the
person was a slave. The Southern answer was that the right of recaption that the
slave holder had in his Southern state must be transplanted to Pennsylvania so
that the slaveholder had a constitutional right to seize and carry the "slave"
away without any legal process. This "constitutional" right preempted the Pa.
personal liberty law. Northerner opponents of slavery also invoked states'
rights when it was to their advantage. Sometimes federalism protected liberty;
sometimes it protected slavery.
I suspect things have not changed much. Federalism or states' rights or state
sovereignty would look more like a matter of consistent principle if its
supporters howled in outrage over decisions like Geier v. American
Honda--preemption of state no air bag tort claim in spite of savings clause for
common law claims in the statute & no express preemtpion & in spite of the fact
that the regulation did not purport to preempt. Strong support for preemtpion
seems to come from the govt's brief and a speech by the Sec. of Transportation
plus the claim that the regulation called for a gradual phase in of air bags and
torts suits would be in conflict with such gradualism. For those concerned
about state power, I recommend the article by Ernest Young, State Sovereign
Immunity and the Future of Federalism--making the point that preemption is a
much greater threat to the role of the states than requiring them to be subject
to private suit for violation of wage and hour laws, for example.. Of course,
as a matter of ideology many supporters of federalism are also happy with
preemption when it kills what they see as obnoxious state regulation. Perhaps
what we have here (on all sides) is a series of commitments and here the "tort
reform" commitment or whatever it is trumps commitment to federalism for almost
all the traditional federalism hawks--but not for Justice Thomas. And the
court's moderate wing--the one that usually supports national power--stands up
for federalism--but not Justice Bryer.
I understand the treaty power and the argument that the next comment is mixing
apples and oranges. Still to the extent that treaties override national and
state laws they can also seriously impair state power as well as the national
democratic process. At any rate, I will also be more impressed with these
claims when I begin to hear concerns about the potential effect of the WTO or
chapter 11 of NAFTA--now claimed to allow millions in damages because Cal.
banned a cancer causing chemical that was getting into drinking water--as
"virtual expropriation." (one made by a Canadian co.---perhaps this one won't
fly even in the NAFTA tribunal.)
"Scarberry, Mark" wrote:
> 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).
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