Volume 30, Issue 4
Volume 30, Number 4 Fall 2000
ARTICLES
Nostalgic Federalism
By Judith Olans Brown & Peter D. Enrich
Among the most significant decisions of the Supreme Court over the past decade have been those limiting the scope of congressional authority to act in ways that infringe on the responsibilities and prerogatives of the states. In this article, we review four clusters of such cases – those constraining Congress’ powers under the Commerce Clause, those reframing the parameters of section five of the Fourteenth Amendment, cases clarifying the limits on federal authority implicit in the Tenth Amendment, and those expanding the reach of state sovereign immunity. Despite the doctrinal diversity among these cases, the Authors argue that they all reflect a recurrent effort to identify bright lines separating the spheres of state and federal responsibility, an effort that reflects a nostalgic return to the jurisprudential world view of the nineteenth century. The Authors explore how far this nostalgic federalism has actually undermined familiar understandings about essentially plenary scope of federal authority and consider the plausible ways in which the Court’s approach may be further extended in future cases. In the final section, the Authors suggest that ultimately the Court’s nostalgic federalism may itself be limited both by the fragility of the five Justice coalition upon which it depends and by the inherent incoherence of the metaphysics upon which the Court’s jurisprudence rests.
Constitutionality of State and Local Selective Purchasing Legislation: A 9-0 Supreme Court Decision in Favor of and in Defeat of Plaintiff
By Rebecca S. Hartley
In a 9-0 decision handed down in 2000, the Supreme Court struck down a Massachusetts selective purchasing law that restricted state agencies from trading with companies doing business in Burma. The Court based its decision on the narrow grounds that the law violated the Supremacy Clause of the U.S. Constitution. In the wake of so limited a decision, a number of constitutional questions remain unanswered regarding the rights of states to enact laws intruding upon federal foreign affairs.
This article examines three of the main areas of constitutional challenges to state actions in the foreign affairs arena from current orthodox and revisionist perspectives. In particular, the Supremacy Clause, the Foreign Commerce Clause, and the federal government’s exclusive foreign affairs powers are examined in the wake of Crosby v. National Foreign Trade Council.
The Constitutional Value of Dialogue and the New Judicial Federalism
By Lawrence Friedman
Notwithstanding that the new judicial federalism is no longer new, the question remains whether there is a legitimate basis for state supreme courts to interpret provisions of state constitutions that parallel provisions of the United States Constitution differently than the United States Supreme Court has interpreted the latter. The Author suggests that the interpretation of cognate state constitutional provisions by state court is institutionally legitimate and normatively desirable within the framework of federalism. The legitimacy of the practice is supported by the constitutional value of dialogue -- that is, the value that attaches to discourse about law and governance when that discourse occurs between and among the various organs of the federal and state governments.
NOTES
Invisibly Radiated: Federalism Principles and the Proposed Hague Convention on Jurisdiction and Foreign Judgments
By Khoi D. Nguyen
The proposed Hague Convention provides the United States with a guarantee that U.S. judgments in commercial and civil matters involving at least one foreign party will be recognized and enforced among the signatory countries. It requires the courts that render the judgments to have proper jurisdiction over the parties and the controversies based on a list of accepted and prohibited grounds for the exercise of jurisdiction. Among the prohibited grounds are transient and "doing business" general jurisdiction. Pursuant to the Hague convention, Congress would have to pass implementing legislation proscribing these prohibited bases of jurisdiction in both federal and state courts. Yet, Congress possesses no constitutional authorization to regulate in this area with respect to the states in spite of its commerce and treaty powers. Under the Supreme Court’s current interpretation of the Tenth Amendment and the principles of federalism, it is likely that any such implementing legislation would be found unconstitutional. The alternative is to leave the states to develop their own jurisdictional law in light of the Hague Convention and under the guidance of the Constitution. The purported benefits of the Hague Convention might just entice the states to abandon transient and "doing business" jurisdiction, allowing the United States to meet all of the obligations of the Hague convention and become a signatory.
Congress’ Property Clause Power to Prohibit Taking Endangered Species
By Sophie Akins
In 1995, the Supreme Court in United States v. Lopez reined in Congress’ commerce powers by holding that Congress may only regulate activities that substantially affect interstate commerce. Five years later, the Court in United States v. Morrison reaffirmed Lopez and held further that the Commerce Clause only supports Congress’ regulation of activities that are economic in nature. This Note examines the repercussions of Lopez and Morrison on Congress’ power to enact the Endangered Species Act under the Commerce Clause. Most scholars and courts seem to agree that the Endangered Species Act will fail under the Court’s recent Commerce Clause jurisprudence.
In contrast with its narrow delineation of Congress’ Commerce Clause power, the Court has broadly interpreted Congress’ power under the Property Clause. The scope of Congress’ property power is significant considering that nearly one-third of the land in the United States is owned by the federal government. More importantly, the Court has upheld Congress’ regulation of private activity on private land because it impacted public land. This Note analyzes the constitutionality of Congress’ power to prohibit harming endangered species under the Property Clause. The author concludes that many applications of the Endangered Species Act will survive such analysis.