The Enterprise of Con Law

[Frank Cross]

I think Earl Maltz has exactly the right methodology, though I don't concur
that judicial protection of rights has not improved the quality of
government decisionmaking and action (though I do acknowledge the
legitimate case for this position and think the Court's new 14th amendment
jurisprudence barring congressional enforcement has been counterproductive).

And if we apply this methodology to federalism, I think the defense of
states rights comes up clearly wanting.


At 03:06 PM 11/11/2002 -0500, you wrote:
>In order to make the argument for judicial protection of individual rights,
>one first must decide what individual rights are a) important b) worthy of
>protection and c) not counterproductive.  To use an example that I think we
>all can agree upon, Taney's protection of the individual right to own
>slaves was not a good thing.  To use more controversial examples, consider
>the "right" of whites males not to have race considered in government
>decisionmaking, and the "right" to have an abortiion.  Finally, virtually
>every claim of individual right contraventes the "right" to use the
>political process to effectuate one's policy choices.
>
>The point is that in order to make a nonformal argument for strong judicial
>protection of individual rights, one has to prove that intervention by the
>courts will, in the long run, improve the quality of governmental decisions
>in this area--a demonstration that (at least to my mind) has not been
>made.  On the other hand, if one is relying on purely formal arguments,
>they work at least as well in the context of federalism.
>
>At 01:33 PM 11/11/2002 -0600, you wrote:
>>Well, one can find plenty of examples where the political branches have
>>stepped on civil liberties in the past, but one can find, I think, even
>>more examples of where the courts have failed.  It seems clear to me that
>>the political safeguards have better protected individual rights than
>>states rights.
>>
>>Compare the state of individual rights at the time of the founding or in
>>the nineteenth century with those rights today.  I think they have very
>>clearly expanded and not primarily due to judicial action.  Then compare
>>the state of state rights at the time of the founding or in the nineteenth
>>century with those rights today.  I think they have clearly declined.
>>
>>This doesn't answer the question though -- the key issue on the "adequacy"
>>of political safeguards (except for the most hidebound of formalists) is
>>the value of the rights.  While individual rights are plainly of great
>>value, the case for the value of states rights is pretty dubious.
>>Frank Cross
>>Herbert D. Kelleher Centennial Professor of Business Law
>>CBA 5.202
>>University of Texas at Austin
>>Austin, TX 78712
>
Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712