Federalism and Liberty

[Doug Laycock]

        Marci didn't get it.  It is not that one standard nationwide is
better than fifty different standards in fifty different states.  We have
not been offered that choice. It is that one potential regulator is less of
a threat than four or more.  An interest group seeking a regulation that
would restrict my liberty may go to Congress, to the Texas legislature, to
the Travis County Commissioners,  or to the Austin City Council, and
sometimes (depending on the issue) to the Austin Planning Commission, the
Austin Independent School District, the Metropolitan Transit Commission, the
Lower Colorado River Authority, and numerous other quasi-independent
regulatory bodies.  If any one level of government passes the regulation,
I'm regulated.  To preserve my liberty, I have to win this fight over and
over at every level.  We have not divided regulatory power; we have
multiplied it.

                                                                        Doug


At 01:55 PM 1/12/98 EST, you wrote:
>Michael Paulsen makes the point, shared by many, that the 14th Am. realigned
>the power relationship between the federal and state governments to the extent
>that federalism concerns should not be taken into account when courts are
>interpreting Sec. 5.  The record (precedential, societal, or historical) just
>does not bear this out in my view.  But, as I have said many times, I don't
>think the record of the 14th Am. is particularly clear in any direction.  One
>thing we do know is that the concept of a federal government as one of
>enumerated powers was not undermined and the 10th Am. was not repealed.  Those
>two structural characteristics counsel a narrow (textualist, if you will)
>reading of Congress's power against the states under Section 5.
>
>Doug Laycock makes the point that there is more liberty when the federal
>government acts presumably because you get one standard than there is when the
>states are left to act on their own.  Sandy Levinson agrees wholeheartedly.
>This seems to me to oversimplify the path to liberty.  I think there is more
>liberty in the world because the United States and Israel both exist than
>there would be if only one did.  Similarly, there is more liberty possible
>when we have 50 jurisdictions working through these issues than when we have
>one solution, handed down from the federal government.  Why should Utah's
>handling of religious liberty issues be identical to California's?  I think
>our differences are both theoretical and theological.  As a believer, I firmly
>believe in the responsibility of  the church to account for its demands on
>society and to respect a large number of collectively shared values, such as
>historical preservation.  Churches have an obligation to adjust and consider
>their views in light of their shared world.  This runs into direct conflict
>with the Laycock-Levinson model in which every time there is a conflict
>between church and state, the church has a natural right to hold onto its
>original position.  Accommodation should not be an obligation solely delegated
>to the state.
>
>Marci Hamilton
>Center of Theological Inquiry
>Benjamin N. Cardozo School of Law
>


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-471-3275 (voice)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu