The Enterprise of Con Law

[Allan Ides]

Do you see a similar "Drew Days Problem" in the current
administration's assertion of a unilateral power to invade foreign
nations?

Allan Ides

----- Original Message -----
From: Ernest <EYoung at MAIL.LAW.UTEXAS.EDU>
Date: Sunday, November 10, 2002 1:37 pm
Subject: Re: The Enterprise of Con Law

> I'm sorry if Prof. Stephens found my point dismissive.  I think
> it's fair to say my article addressing Prof. Stephens' and others'
> assertions about the domestic effect of customary international
> law is unreadably long because it bends over backwards to take
> opposing positions seriously.  I do find that much scholarship
> taking the internationalist or nationalist point of view makes
> very little effort to retain the notion of balance in a federal
> system.
> I describe this problem to my students as "the Drew Days Problem."
> At oral argument in Lopez, Justice O'Conor asked General Days the
> following question (paraphrasing):  "If the Gun Free School Zones
> Act is within Congress's power, what sort of law would _not_ be?"
> General Days had no answer to that question, and surely lost the
> case because of it.  The point is that because the Government's
> interpretation of the Commerce Clause lacked any limiting
> principle, it could not serve as a usable interpretation of a
> Constitution designed both to empower and to limit the central
> government.
> I find the same problem with the genre of scholarship that I
> described in my previous post:  If, for example, international law
> has or can have norms on any subject, and Congress can legislate
> on any subject on which international law arguably has a norm,
> then where is the limit?  How would the internationalists answer
> Justice O'Connor's question?
>
> Ernie Young
>
> -----Original Message-----
> From: Ana Stephens <stephens at LAW.ARIZONA.EDU>
> To: CONLAWPROF at listserv.ucla.edu
> Date: Sun, 10 Nov 2002 09:09:42 -0700
> Subject: The Enterprise of Con Law
>
> Prof. Young:
>
> Hyperbole notwithstanding, I agree with your statement about what
> oughtto be the enterprise of Constitutional law.  The problem, of
> course, is
> that your statement begs the very question to be answered.  The
> discussion about "proper limits" and the "legitimate functions of both
> state and federal governments" are concepts about which many
> reasonablepeople disagree.  I am certain you are familiar with the
> scholarship on
> federalism (as you yourself have written some very interesting
> articleson the topic) and the discussions that have been posted to
> this list.  I
> have found many of the threads helpful, informative, and thoughtful.
>
> My point is that it is perhaps not productive, I think, to be
> dismissiveabout other points of view or misrepresent them as it
> defeats the
> purpose of the objective you suggest.
>
> I found it interesting that my short response to  Professor Maltz
> couldbe included in a  "genre."   And, I think that extracting
> from my
> response a belief that "all limits on federal power" ought to be
> eliminated by a "clever" reading of the Constitution, is an inference
> that is difficult to make from what I said.
>
> I find interesting and productive the discussions that take place on
> this list, and I have learned quite a bit by "listening" to the
> legitimate disagreements on  the topics brought forth.
>
>
> Prof. Ernie Young wrote:
>
> "Professor Stephens' suggestion strikes me as a classic entry in
> the "How can we cleverly read the Constitution to eliminate all
> limits on federal power?" genre.  It seems to me that a better
> enterprise for constitutional law would be to try to develop
> readings that accommodate the legitimate functions and interests
> of both federal and state governments while still maintaining some
> balance in the system."
> ----------
>
> Ana Maria Merico-Stephens
> Associate Professor of Law
> and Affiliated Professor of Latin American Studies
> The University of Arizona
> James E. Rogers College of Law
> Tucson, Arizona  85721
> (520)626-8150
>
>
> -----Original Message-----
>
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