Much has been written of late about the Supreme Court’s resurgent focus on federalism and the increasing frequency with which the justices defer to state interests in striking down acts of Congress. What has been curiously neglected, or at least underemphasized, is the practical effect of this trend on the status of specific individual rights and liberties.
This special issue of Human Rights examines a matter of major importance for the protection of individual rights: the reemergence of a "federalist" jurisprudence that challenges the authority of Congress to enact remedial legislation.
After a six-decade hiatus, the U.S. Supreme Court has reentered the federalism debate with a bang. The Court's "New Federalism" decisions have reinvigorated federalism norms in constitutional jurisprudence across a broad array of doctrinal categories, including the Tenth Amendment, the Eleventh Amendment, and the Interstate Commerce Clause. Where this movement will end is anyone's guess, but its beginnings are clear. The Court’s message appears to be that the federal government should think twice before it injects federal regulations into a state's business.
There are few places in the political world where the issue of federalism has asserted itself as clearly as it has in the arena of education. National politicians who issue calls for greater federal involvement in education historically have received a slap on the wrist from opposing politicians who claim such action would violate the inherent local nature of education.
Last November, at the height of the public’s concern about the war on terrorism, few were paying attention to an Oregon law that permits the assistance of a physician in hastening the death of a terminally ill patient. The statute, in effect since 1997, has been used by only 100 or so Oregonians who met its stringent, carefully drafted qualifications. So it was particularly stunning when Attorney General John Ashcroft directed the Drug Enforcement Administration (DEA) to go after Oregon doctors and pharmacists prescribing under the state’s Death With Dignity law. But his motivation will not be examined here. Rather, the legal theory underpinning the directive, and its broader implications for other individual rights, are the subjects of this article.
This Term the Supreme Court has agreed to hear the latest in a series of cases limiting the scope of federal antidiscrimination in employment statutes under states’ Eleventh Amendment immunity. This case is critical because it presents the possibility that state employees may lose even more of their protections under federal antidiscrimination law.
Without a doubt, the greatest changes in constitutional law in the last decade have been in the area of federalism. Virtually all of these cases have been decided by a 5-4 margin, with the five most conservative justices—Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—in the majority.
Federal civil rights litigation is and has been a primary means by which the protections of the law have been enforced and the promise of the Constitution has been fulfilled for millions of people. Unfortunately, litigating such cases today is like playing a game in which the rules constantly change to the disadvantage of civil rights plaintiffs. This article briefly explores how the U.S. Supreme Court has altered the interpretation of the Constitution, and then examines strategies for civil rights litigation in the wake of the Court’s new approach to federalism.
Gun rights supporters in Congress are currently engaged in a dubious trade-off: to save the Second Amendment, they’ve decided to undermine the Tenth. For two years running, Congress has appropriated funds for President Bush’s key crime-fighting program, Project Safe Neighborhoods, which is designed to ward off calls for additional gun control by ramping up enforcement of the gun laws already on the books. But the program illegitimately federalizes the prosecution of gun possession crimes ordinarily left to the states.
Republicans and conservatives are generally supposed to favor federalism and states’ rights. Democrats and liberals are supposed to be against those things. Contrary to these convenient generalizations, however, liberals tend to be pro states’ rights on a central federalism issue—the federal preemption of state law and, in particular, state common law.
The most striking aspect of the Court’s recent federalism decisions is how poorly "the rights of the people" have fared in comparison to the abstract interests of the states. This imbalance has been particularly conspicuous at the vanguard of the Court’s federalism agenda: limits on individual lawsuits seeking to remedy a state’s violation of federal law.
The recent passing of Patsy Takemoto Mink left a vacuum in public life and among advocates for the powerless, the poor, the neglected, and the mistreated in America. Her life was filled with "firsts" because she was unwilling to accept the limitations of prejudice or stereotype. She had to go to court to become the first Asian/Japanese American woman lawyer in Hawaii because, despite her roots in Hawaii, her residency was determined by her husband’s.