Rampaging activists aplenty

Sanford Levinson SLEVINSON at MAIL.LAW.UTEXAS.EDU
Mon Jun 30 16:11:54 PDT 1997


Rick Hills writes:


>        On a related point: did anyone think it odd that Scalia did not cite
>Justice Story's opinion in Prigg v. Pennsylvania, in which Story suggested
>in dicta that state officers could not forced to acrry out the 1793
>Fugitive Slave Act...

Yes, I did think it odd.  And, incidentally, Prigg most definitely *is* an
activisit decision, for it is the most remarkably aggressive reading of
Congressional power in our nation's history, given that the basis of the
statute is *not* Article I, section 8, but, rather, the Fugitive Slave
Clause, which is surrounded by clauses explicitly giving Congress power to
legislate, though that power is conspicuously absent in the case of fugitive
slaves.  Indeed, Story admits in his first paragraphs that there is no
genuine interpretive theory that accounts for the result; rather, he thinks
it is necessary in order to save the Union, for a decision holding that the
Fugitive Slave Law was beyond Congress's power would presumably have
triggered secession "too early."

Incidentally, as to New York and the spending clause, are you assuming that
the amount given the states really covers the added costs of enforcing the
federal program (which is OK even with Lynn)?  But what if in fact the
federal grant does not cover the cost or, as in SD v. Dole, is a patent
attempt to induce a state policy that Congress presumably feels unable to
legislate directly.  Lynn would, I think, strike down both.  We know,
incidentally, that O'Connor also dissented in Dole.  I think it is foolish
to proclaim confidence, one way or the other, as to how the mercurial
Justice O'Connor will vote in a federalism case, except to say that she will
rarely be unsympathetic to the states' arguments.

Sandy



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