Federalism: We All Have Roles to Play [No. 86]
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Federalism: We All Have Roles to Play [No. 86]


We all have roles to play when it comes to
federalism. I would actually start with Congress. Congress is the body that exercises the limited
and enumerated powers, and I think it’s very healthy for Congress when it passes a law,
ideally before it passes a law, to ask itself whether the Constitution gave it that power? Ultimately, many issues in American government
become political issues, Congress is a political body, and there’s nothing wrong with Congress
debating the who decides question first before it substantively enacts a law. I think elected officials oddly enough have
a role to play. I think citizens have a role to play. Interest groups and American citizens are
all very opportunistic. They would like their winner-take-all solution
in D.C. whether through Congress or the U.S. Supreme Court, whenever they can get it, but
over time it turns out they’re not very happy when they don’t get it and this has led to
very serious disagreements, differences of opinion about what these guarantees mean. I think some patience, some respect for competing
views, some tolerance of the idea that one state might march down one road, another state
march down another, at least for a while, is not a bad way to think about it. I think the role that state courts have to
play here is to remind themselves and the lawyers advocating in front of them, the state
courts play a very significant role when it comes to American federalism and American
Constitutional Law. I think the key thing they can do is be leaders
when it comes to educating the bar and educating through their example that the state constitutions
are independent guarantees from the U.S. Constitution. Most law schools do not teach state constitutional
law. As a result, many state lawyers do not make
state constitutional law arguments on behalf of their clients. That’s a very shocking omission given that
most people would prefer two shots rather than one shot at invalidating a state or local
law. You can’t really blame the state courts for
this problem because they can’t arbitrate disputes that aren’t brought to them. They’re referees. They’re not players. They can’t bring a state constitutional law
claim into a case if the parties didn’t raise it. The thing the state courts can do perhaps
a little better in some instances is when they get two claims, and they get a state
constitutional law claim, make sure they’re looking at their state constitution’s text,
history, culture, precedent, to decide whether it might mean something different from another
state’s interpretation, or for that matter the U.S. Supreme Court’s interpretation of
similar or even identical language. I think the law schools could do a good job
by either teaching state con law, or when they teach federal con law, perhaps rename
it, call it American Constitutional Law. In which they teach the Federal Constitution
and they remind their students that there are 50 state constitutions that each independently
protect these same guarantees.

3 Comments

  • Joseph Smyth

    But if everything is subjective based on concept, theory and opinion ( dialectic) and using the Hegelian Dialectic both in the courts and legislation, where is the truth in regards to jurisdiction if it’s based on artificial reasoning? If Law is based on truth and justice, then we are really living in a fictional world of law

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