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    Fall 2002 - Federalism and Rights

    Volume 29 Issue 4  

    Federal Government

    Introduction

    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.

    Featured Articles

    Federal Government

    Tort Reform and Federalism: The Supreme Court Talks, Bush Listens

    by Allison H. Eid

    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.

    Human Rights

    A Federalism of Convenience

    by Estelle H. Rogers

    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.

    Federal Government

    Strategies for Civil Rights Litigators Amid the Supreme Court's Constitutional Counterrevolution

    by Thomas J. Henderson

    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.

    Federal Government

    Federalism Under the Gun

    by Gene Healy and Robert A. Levy

    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.

    Federal Government

    Human Rights Hero: Patsy Takemoto Mink

    by Paul Igasaki

    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.