Constitutional Law Commons^™

The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill

University of Michigan Journal of Law Reform

Partisan gerrymandering is a political tradition the United States can no longer afford. Due in part to the effects of partisan gerrymandering, very few congressional elections are meaningfully competitive. This Note argues that partisan gerrymandering damages both the quality of American democracy and the federal system of the United States. This Note concludes that the important federal interests at stake warrant action by Congress to halt partisan gerrymandering. The Note further concludes that any action by Congress should incorporate the principles of federalism by resisting the temptation to micromanage and Congress should instead require state commissions to draft the boundaries …

Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose …

Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young

William & Mary Law Review

No abstract provided.

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

Journal Articles

It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the …

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

William & Mary Law Review

No abstract provided.

Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr.

William & Mary Law Review

No abstract provided.

Cool Federalism And The Life-Cycle Of Moral Progress, Lawrence G. Sager

William & Mary Law Review

No abstract provided.

Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro

William & Mary Law Review

No abstract provided.

Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from …

The Use Of Hiring Preferences By Alaska Native Corporations After Malabed V. North Slope Borough, James P. Mills

Seattle University Law Review

This article argues that Native corporations can provide employment preferences for Alaska Natives, so long as they are appropriately tailored to provide employment preferences to that corporation's shareholders or those closely related to the shareholders. Moreover, a hiring preference based on shareholder status is not a preference based on race and, as such, does not violate Alaska state law.24 But even if the Alaska Supreme Court found that these hiring preferences did violate the state constitution, given the federal government's unique relationship with Native corporations 25 and Congress's clear intent for Native corporations to favor Alaska Natives in their hiring …

Judicial Federalism And The Future Of Federal Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes …

Looking Ahead To The 2005-06 Term (2005), Jonathan H. Adler

Faculty Publications

This essay surveys the upcoming 2005-06 term of the Supreme Court, a term that may be as notable for what it says about the future direction of the Supreme Court as it is for specific decisions in any particular cases. This does not mean the term lacks important cases. To the contrary, this coming year the Court will consider the constitutionality of the Solomon Amendment, address the application of the Religious Freedom Restoration Act to religious use of drugs, and determine whether the federal government can effectively preempt Oregon's decision to legalize doctor-assisted suicide. It will revisit contemporary federalism and …

Time Out Of Mind: Our Collective Amnesia About The History Of The Privileges Or Immunities Clause, Michael P. O'Connor

Kentucky Law Journal

No abstract provided.

Discussion: A Focus On Federalism, Jeffrey B. Morris

Scholarly Works

No abstract provided.

Is Morrison Dead? Assessing A Supreme Drug (Law) Overdose, Jonathan H. Adler

Faculty Publications

There was little doubt that the federal government would prevail in Gonzales v. Raich. What was, perhaps, unexpected was so expansive a repudiation of enforceable judicial limitations on federal power. In upholding the constitutionality of the Controlled Substances Act as applied to the non-commercial intrastate possession and consumption of marijuana for medical purposes as authorized under California law, the Supreme Court hollowed out the core of contemporary commerce clause jurisprudence. Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the "substantial effects" test, that attenuated connections between …

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. At the same time, state intervention seeps into areas where a dominant federal role would be more defensible. …

Judicial Federalism And The Future Of Federal Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes …

Is Morrison Dead? Assessing A Supreme Drug (Law) Overdose, Jonathan H. Adler

Faculty Publications

There was little doubt that the federal government would prevail in Gonzales v. Raich. What was, perhaps, so unexpected was so expansive a repudiation of enforceable judicial limitations on federal power. In upholding the constitutionality of the Controlled Substances Act as-applied to the non-commercial intrastate possession and consumption of marijuana for medical purposes as authorized under California law, the Supreme Court hollowed out the core of contemporary Commerce Clause jurisprudence. Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the “substantial [e]ffects” test, that attenuated connections …

Section 6: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Statehood As The New Personhood: The Discovery Of Fundamental "States' Rights", Timothy Zick

William & Mary Law Review

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Faculty Publications

No abstract provided.

The Constitutional Floor Doctrine And The Right To A Speedy Trial, Darren Allen

Campbell Law Review

This article will begin with a quick description of the historical origins of the speedy trial right and the events marking its quiet evolution into a hallmark of our criminal justice system. It will then move into a discussion of the decisions articulating principles of new federalism which require that state courts defer to the federal interpretations of fundamental rights, before discussing of the controlling Supreme Court cases fashioning the test by which violations of the right are measured. Next, this article will showcase the critical differences between Spivey and Barker to demonstrate why North Carolina's speedy trial test intrudes …

Re-Balancing State And Federal Power: Toward A Political Principle Of Subsidiarity In The United States, Jared Bayer

American University Law Review

No abstract provided.

Making Federalism Doctrine, Ernest A. Young

ExpressO

This article develops and defends a general approach to constitutional federalism doctrine. My position is probably best described as sympathetic criticism of the Rehnquist Court’s “Federalist Revival.” I think that the Court’s project of reviving a judicial role in enforcing federalism is terribly important, but that many of the Court’s particular measures in that vein are unhelpful or, sometimes, counterproductive.

The article makes three claims. The first is methodological: I argue that courts can and should formulate doctrines to enforce the federal balance, even when those doctrines cannot be tied directly to constitutional text and history. Recognizing that constitutional doctrine …

The Rehnquist Revolution, Erwin Chemerinsky

The University of New Hampshire Law Review

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Connecting The Dots: Grutter, School Desegregation, And Federalism, Wendy Parker

William & Mary Law Review

No abstract provided.

Toward A New Constitutional Anatomy, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …

Of Federalism, Human Rights, And The Holland Caveat: Congressional Power To Iplement Treaties, Ana Maria Merico-Stephens

Michigan Journal of International Law

This Article explores whether the Rehnquist Court's federalism doctrine, as elaborated during this last decade, should or ought to extend to the domestication of discrete provisions of ratified human rights treaties. It explores this question by examining the International Covenant on Civil and Political Rights (Covenant) and by considering the civil remedy provision of Violence Against Women Act (VAWA) as potential implementing legislation for the equality provisions of the Covenant. In the context of this inquiry, the discussion engages federalism, as developed by the current Court, on its own terms. That is, I do not seek here to defend it …

Federalism And Foreign Affairs: How To Remedy Violations Of The Vienna Convention And Obey The U.S. Constitution, Too, Joshua A. Brook

University of Michigan Journal of Law Reform

This Note discusses various ways to bring the United States into better compliance with the 1963 Vienna Convention on Consular Relations The introduction to this Note discusses how violations of the Vienna Convention are currently treated in the United States. In particular, the introduction discusses the unsuccessful attempts to prevent the execution of Karl and Walter LaGrand, two German nationals sentenced to death in Arizona. The LaGrands were convicted after a violation of their rights under the Vienna Convention because they were not informed without delay of their right to consular notification and assistance. In later appeals, United States courts …

Property Clause For The Twenty-First Century, John D. Leshy

University of Colorado Law Review

No abstract provided.