Health Care Question

[Sanford Levinson]

I think it's wrong to describe the Republican/conservative majority of the Supreme Corut as necessarily "states' rights."  As my (sadly) former colleague Ernie Young, who is far more sympathetic to "federalism" than I am, has repeatedly demonstrated, the Court has made no serious effort to rein in federal power with regard to conditional funding or pre-emption, and Ernie was one of those disappointed by Raich (which was, of course, lost by Randy Barnett, who believes that he'll have more success on a far more important and politically volatile case).  If there is any "conscription" of state officials involved, then perhaps one can get to five with regard to forcing the national government to enforce its own program, but that obviously has nothing at all to do with the regulation of individuals (by forcing them to buy insurance or to pay a penalty tax).  And, as Eric well suggests in his parenthetical, anyone interested in states' rights would not be ready to "incorporate" the Second Amendment against states that prefer to have their own policies re firearms.  

It is sometimes suggested--I have no way of knowing--that Justice Kennedy cares about his reputation abroad.  He would be ridiculted by almost every foreign judge if he joined in a decision invalidating the extension of medical care to millions of Americans in the name of free-market fetishism.  

I agree with Eric that the life of the law is experience, rather than doctrinal logic, but I just don't see the current Court as being so dogmatic as he does.  I loathe and despise Morrison, but I've been struck for many years how little anyone really cares about it, other than law professors.  Much of the Violence Against Women Act was basically expressive legislation, as was even more obviously true about the Safe Schools Gun Free Zone Act (or whatever the damned thing was named) struck down in Lopez.  Whatever one thinks of the law passed yesterday, there is nothing merely "expressive" about it.  It is designed to change the basic structure of American life in important respects.  

sandy

-----Original Message-----
From: Eric Segall [mailto:esegall at gsu.edu] 
Sent: Monday, March 22, 2010 6:38 PM
To: hamilton02 at aol.com; nlund at gmu.edu; Sanford Levinson; conlawprof-bounces at lists.ucla.edu; GCSISK at stthomas.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: RE: Health Care Question

As the person who started this entire thread, I would like to make one observation. Every person discussing the constitutional issues seems to believe that prior doctrine will be important. Was it important to the post-New Deal Court, the Casey Court, the Lawrence Court, the Seminole Tribe Court, the Agostini Court, the Smith Court, the Raich Court (after Lopez and Morrison), etc.

We have four states' rights Justices (except for guns) and one libertarian. I'm not good at math but . . . . .

Best,

Eric