Anthony Lewis forgets federalism?
Tobias Barrington Wolff
tbwolff at UCDAVIS.EDU
Thu Mar 21 11:35:29 PST 2002
Keith Whittington writes:
>But the exercise is largely beside the point. If federalism is effective
>in preserving liberty, then it does so primarily through its structural
>operation (the examples cited by Michael McConnell in relation to the
>Printz principle are nice ones) rather than judicial invocations of Tenth
Big if. The point of the question was not to deny the purported structural
benefits of state sovereignty, but to focus attention on what more
immediate and concrete impact States' rights arguments have had on
individual liberty. If the answer is, "Not much," then that indicates that
the structural arguments must carry a considerably heavier burden.
And I should be forthright in admitting that my question incorporated a
value judgment as to the "liberties" involved. That is, I don't find
terribly convincing the invocation of a 19- or 20-year-old's frustrated
right to consume alcohol, as I don't view that "right" as terribly important.
Louise's invocation of the interposition of the laws of free States against
the expansion of slavery is much more on the mark -- and, I should admit,
something that I had in mind in raising the issue. Lemmon v. The State is
a good example -- an 1860 opinion of the New York Court of Appeals in which
that court, in open defiance of Dred Scott, invoked state law to prevent
slave owners from using New York ports to transport enslaved individuals
between slave States. But, if the answer to my question is that the only
meaningful examples of States' rights as protectors of concrete individual
liberties are to be found in the era that preceded the enactment of the
Reconstruction Amendments, then that, too, is a revealing fact.
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