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Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
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This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
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The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar
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I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …
Congress' Arrogance, Yale Kamisar
Congress' Arrogance, Yale Kamisar
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Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …