Volume 25, Issue 4
Volume 25 Number 4 Summer 1998
Table of Contents
ARTICLES
Dismantling the Modern State? The Changing Structural Foundation of Federalism
By Keith E. Whittington
Federalism, as a constitutional concept underlying the appropriate distribution of powers among the federal and state governments, has responded in understandable ways to long-term trends in economics, political organization and political values. Such trends have encouraged centralization through most of the twentieth century, as is reflected in both judicial doctrine and governmental practice. However, changing conceptions of the political economy and the political regime have created a new structural dynamic that favors a less centralized version of federalism.
In this article, Professor Whittington examines the structural foundations of the movement toward centralization and the modern countertrends to that movement which have fostered a move toward decentralization. The author argues that such developments indicate that federalism is not meaningless as a constitutional concept. Neither, however, is it static nor simply a function of legal doctrine. Instead, federalism is a fluid concept which operates within broad limits and is shaped by larger political and social changes.
Permissible Content Discrimination Under the First Amendment: The Strange Case of the Public Employee
By Lawerence Rosenthal
The First Amendment is ordinarily thought to prohibit content or viewpoint discrimination. Yet public employers frequently regulate employees' speech based on the content or viewpoint of their speech. Additionally, they frequently seek to punish employees who publicly criticize their supervisors on the grounds that such criticism is insubordinate or will erode office discipline or morale.
The Supreme Court has attempted to address the special problems posed by the speech of public employees through the two-part "public concern" test. The test protects a public employee's speech if the speech relates to a matter of "public concern," and if the employee's speech interests outweigh that of the employer. This approach is problematic because it is difficult for the federal judiciary to determine what are issues of "public concern" worthy of First Amendment protection. Additionally, the public concern and balancing tests are difficult to apply and they come into tension with the overbreadth doctrine.
In light of these difficulties, the author argues for a new approach to the speech of public employees, one that would evaluate the speech of public employees under the rules governing incidental restrictions on speech. This approach requires employers to promulgate uniform policies that give employees fair notice of what they may say or write, instead of the ad hoc regulation that the Supreme Court has tolerated to date. At the same time, this approach leaves public employers free to regulate speech in the service of legitimate managerial objectives, such as banning racist and sexist speech from the workplace. As long as a restriction on speech reasonably advances a managerial objective (other than coercing ideological loyalty from public employees), the author argues that it should be upheld.
NOTE
First Lady, Last Rights? Extending Executive Immunity to the First Lady
By T. Natasha Patel
The First Lady's role has expanded beyond the traditional role of playing the White House hostess. The First Lady is actively involved in both domestic and international politics. Accordingly, in the Note, the author argues that the First Lady's actions are entitled to qualified executive immunity whenever she acts as a a representative of the federal government. The author traces the development of executive branch immunity. The author also discusses the role in politics, and other wise, that the First Ladies have played throughout history. Finally, the author examines the holing in Association of American Physicians and Surgeons v. Hillary Rodham Clinton, which held that the First Lady was a de facto federal employee or official.
COMMENT
Incitement by Any Other Name: Dodging a First Amendment Misfire in Rice v. Paladin Enterprises, Inc.
By Lise Vansen
In this Comment, the author compares divergent applications of the Brandenburg" standard at the district and appellate court level in Rice v. Paladin Enterprises, Inc. The author criticizes the district court's incitement analysis for failing to consider the extent to which context governs the meaning of language and the corresponding extent to which the instructions in Paladin's publication of the "Hit Man Manuals" could conceivably, uniquely constitute the incitement under Brandenburg.
Ultimately, the author argues that "at the heart of the district court's unexamined ruling . . . is an incitement standard that needs reworking." Hence, the author explores the usefulness, feasibility, and need for a more detailed and realistic standard, in particular one which ensures that violent crime instruction manuals, like that at issue in Rice, are closely examined for their potential to incite imminent lawless action.