Federalism

The New Yorker recently published a profile of President Barack Obama, written by David Remnick. Eighteen pages and approximately 17,000 words long, it’s the sort of long-form journalism many of us yearn for in a blighted age of listicles and blurbs and click-bait articles the titles of which sound more like threats than topics of meaningful discussion.

In the piece, the President says:

“There is a historic connection between some of the arguments that we have politically and the history of race in our country, and sometimes it’s hard to disentangle those issues [ . . . ] You can be somebody who, for very legitimate reasons, worries about the power of the federal government—that it’s distant, that it’s bureaucratic, that it’s not accountable—and as a consequence you think that more power should reside in the hands of state governments. But what’s also true, obviously, is that philosophy is wrapped up in the history of states’ rights in the context of the civil-rights movement and the Civil War and Calhoun. There’s a pretty long history there. And so I think it’s important for progressives not to dismiss out of hand arguments against my Presidency or the Democratic Party or Bill Clinton or anybody just because there’s some overlap between those criticisms and the criticisms that traditionally were directed against those who were trying to bring about greater equality for African-Americans. The flip side is I think it’s important for conservatives to recognize and answer some of the problems that are posed by that history, so that they understand if I am concerned about leaving it up to states to expand Medicaid that it may not simply be because I am this power-hungry guy in Washington who wants to crush states’ rights but, rather, because we are one country and I think it is going to be important for the entire country to make sure that poor folks in Mississippi and not just Massachusetts are healthy.

When the President draws a connection between contemporary advocates of limited government and the vicious history of American apartheid, the public is wont to think that this connection is accepted truth. He sets a new starting point for discourse, a new baseline for measuring the claims of his political opponents. He leads the average citizen to think that there’s no argument needed for these conclusions . . . even though an actual argument is definitely called for to support accusations of this sort.

Nevertheless, he might be onto something. No. Seriously…

double red triangle arrows Continue reading “Obama Calls Out Federalism — Will Federalists Answer?”

“[O]ne familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of ‘Our Federalism.’ The concept does not mean blind deference to ‘States’ Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, ‘Our Federalism,’ born in the early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its future.”

– Justice Hugo Black, Younger v. Harris

Our Federalism. Our dear Federalism. Justice Black described this vaunted principle when deciding in 1971 that federal courts must show some restraint when interfering with state criminal prosecutions.

“Our Federalism,” though, only works when you work it. The many conservatives (myself included) who trumpet these principles in briefs, articles, and opinions ought to view this not simply as an academic matter but as a personal political responsibility as citizens.

For all the caterwauling on all sides about national politics and for all the petticoat-clutching over Our Federalism, it is shameful when those same folks can’t name a single member of their city council or school board or state supreme court. . . .

double red triangle arrows Continue reading “When ‘Our Federalism’ Turns Into ‘Somebody Else’s Federalism’: Why Local Elections Matter”

* “Beware of conservatives bearing gifts.” While there may be a federalism argument to be made in the DOMA case, it’s really about discrimination. It’s too bad some are afraid to stand up and say that. [Opinionator / New York Times]

* Sooo… was Melvyn Weiss, founder of Milberg LLP, really old, really drunk, or really old and drunk when he allegedly recited part of the alphabet as, “H, I, L, M, N, O, P, Q, R, S, T, U, V, W, S, X, U, V, W, S, I, C”? [Am Law Daily]

* “Can’t fire me, I quit” moments are much better when they involve partners. Ogletree’s ex-VP was asked to leave over a dispute with another lawyer, so he resigned. [Thomson Reuters News & Insight]

* The U. of Arizona is thinking about lowering tuition by 11% for in-state students and 8% for out-of-state students. On behalf of your indebted students, MOAR doing and less thinking. [Arizona Republic]

* The only thing that’s worse than allegations of insider trading is having your ex-wife’s post-divorce suit reinstated. This is really the last thing Steve Cohen needs right now. [DealBook / New York Times]

* Earlier this week, Governor Chris Christie banned minors from using tanning beds without parental consent. Fare thee well, GTL. Young Jersey Shore wannabes must be weeping. [Clarion Ledger]

Looking back, the part of last week’s arguments at the U.S. Supreme Court that stands out most for me is the last hour (DOMA merits) — a fitting finale to two days of historic argument on same-sex marriage.

The way things unfolded, the last hour is why we all came. It is why people slept on the sidewalk for days. It is why Americans tuned in and logged on for updates. It is why the attorneys signed up to argue.

We were there to discuss the future of marriage in this country, how different people see it, and where state and federal governments fit in.

The Prop 8 argument went to those core issues the day before, but in fits and starts. A muddy hybrid of standing and merits.

The last hour of DOMA went there and stayed there. Merits were the only thing on the menu, and we ate it up….

double red triangle arrows Continue reading “The Big Week at SCOTUS: What Stands Out Most”

Looking at my notes from today’s United States v. Windsor argument on DOMA at the U.S. Supreme Court, “$Q” is everywhere. That’s my shorthand for “money quote.” The merits part of the argument was $Q after $Q, moments that made an impact, in some cases if only to show where a justice might be headed.

Here are five. Look forward to bringing you more in-depth analysis of the argument in the next couple of days.

double red triangle arrows Continue reading “The DOMA Arguments at SCOTUS: Five Money Quotes”

Maybe people in Mississippi should watch this to figure out why the Voting Rights Act is still important.

My mother was born in 1950 in Mississippi. I’ve been to Mississippi. There are still brothers trying to escape to freedom from Mississippi.

Today the big story (at least in liberal circles) is that Mississippi finally officially ratified the Thirteenth Amendment, after two Ole Miss employees saw the movie Lincoln and decided to look into why their state hadn’t officially ratified the amendment. You can’t make that up: Mississippi needed a Spielberg movie to remind them to ratify the amendment banning slavery. I can’t wait till Mississippi sends an expedition to Isla Nublar to check into this whole “dinosaur situation” “Jesus Horse situation.”

You can see why liberals love this story. It’s the perfect deep south story: a tradition of holding people in bondage, slow response times, and incompetence.

And I’d leave it at that.

Except that as the Supreme Court gears up to eviscerate the pre-clearance requirements of the Voting Rights Act, it’s important to remember that not all states are created equal….

double red triangle arrows Continue reading “With All Deliberate Speed, Mississippi Officially Ratifies The Thirteenth Amendment”

Justice Antonin Scalia

Congress has its job and we have ours…. They can’t tell us to set aside rules of logic!

– Justice Antonin Scalia, speaking over the weekend at the National Lawyers Convention of the Federalist Society. He was responding to a question as to whether Congress could pass laws dictating how judges interpret the law.

(Additional highlights from Justice Scalia’s speech, after the jump.)

double red triangle arrows Continue reading “Quote of the Day: Actually, They Do It All the Time; It’s Called ‘Legislation’”

* Being 15 minutes early to crucial meetings is not all that it’s cracked up to be. [The Ying-a-Ling]

* Law school fiction: possible comic gold, possible Shakespearean tragedy. Check out excerpts from Cameron Stracher’s work in progress. [The Socratic Method]

* The key for women getting ahead in 2012: working for companies that don’t discriminate against women. I mean, it’s underwhelming advice, but voting with their feet is a big thing women can do to improve gender equality in the legal marketplace. [The Glass Hammer]

* It’s a point worth emphasizing: working a full-time job while in law school and doing well at said law school are basically incompatible goals. At least in this day and age. Maybe law school was easier for the Boomers because there was less competition (from, I don’t know, women and minorities). [Constitutional Daily]

* Note that this decision in support of federalism, the subject of a new article by Professor Ilya Somin, came from a unanimous Supreme Court. It’d be nice if Republicans could remember that this election season, instead of calling every progressive a devotee of centralized authority. [The Volokh Conspiracy]

* Is anybody still using Google Plus? Any lawyers? Bueller? Frye? [Legal Blog Watch]

* What we talk about when we talk about federalism: University of Chicago law professor Alison LaCroix, author of the just-published Ideological Origins of American Federalism, discusses the relevance of federalism for current policy debates. [Political Bookworm / Washington Post]

* Speaking of the Founding, if there’s another Constitutional Convention, I demand that all delegates wear wigs. [WSJ Law Blog]

* Mother sues hospital after the staff gave her the wrong baby to breast feed. So, I guess she won’t be appearing on the Project Wet Nurse reality show I just made up in my head. [BL1Y]

* What does Google think about the LSAT? [LSAT Blog]

* Minorities do better than whites when it comes to getting hired into tenure track positions at American law schools. But don’t start getting melanin injections just yet. [ABA Journal]

* Becoming a lawyer for the Catholic Church is a lot like becoming a lawyer for any other organization. [Slate]

* Former Duke lacrosse head coach Mike Pressler settles his lawsuit with the university. I’d say that he should go to a strip club to celebrate, but that would probably look bad. [NewsObserver]