Overview

t Distinguished from federalism and separation of powers. Rather than demanding that government is structured in a certain way, the judiciary intervenes directly to invalidate laws that violate certain protected rights.

t Original conception did not give much of a role to federal courts in this area: the principal guarantor of individual rights was the limitation of the power of the federal government. [but even during this period, states were subject to federal court supervision via the Contracts Clause]

t Factors detracting from state power over individual rights

n After the Civil War, it appeared that increasing states’ power in order to protect individual rights might have perverse results: the newly freed slaves needed a strong federal government to protect them from state tyranny.

n States’ rights were again cast into disrepute by the desegregation struggles of the 1950s and 1960s.

t The recent tendency in constitutional law has been to emphasize rights strategies rather than institutional strategies, though some recent cases (e.g. U.S. v. Lopezand New York v. United States) suggest a partial reversal of this trend.

t But realize that even the rights strategy is an institutional one, inasmuch as it depends on the SCt to act as the guarantor of rights. Thus, as with all institutional strategies, the question arises whether the institution will perform according to plan and carry out the function that it was hoped that it would perform. There are two possible types of failure:

n Judicial tyranny: if the court abuses its power.

n Judicial inadequacy: if the SCt fails to intervene when it should.

t Individual rights should be evaluated through the lenses of federalism and separation of powers.

n Federalism. Whenever a court finds that a new right exists, that court prevents states from experimenting, and arriving at different solutions, with respect to that right. It imposes uniformity and suppresses diversity.

n Separation of powers. We have already seen that sometimes Congress may have a good reason to interfere with states’ autonomy, but here it is courts that are deciding to interfere. There may be limitations on courts’ decisionmaking capacity that make it unsuitable for them to find certain new rights.

n Thus, in making any argument in favor of a constitutional right, it is not enough to show that recognizing the right is a good idea. One must also explain:

(1) why the decision whether to recognize that right should be made at a national, rather than a local, level; and

(2) why the SCt, rather than Congress, ought to be the federal actor who decides whether to impose that right on the states.

Date: 2015-01-02; view: 587