According to the Daily Nebraskan news article linked below, James Duff, Con-Law professor at Georgetown Law School in Washington, D.C., divides his yearlong class into one semester on separation of powers, and the other on individual rights. He clerked for Chief Justice William H. Rehnquist, the leading exponent of the new federalism aka new states rights, beginning with the Lopez School Gun case in 1995 and extending to the VAWA (U.S. v. Morrison, rape) case in 2000, and others.
Duff makes an important point. In the former Soviet Union there are all sorts of admirable individual civil rights which the courts fail to enforce because they're under the thumb of the executive branch. President Putin recently consolidated his czar-like power even more, on the pretext of needing more power to fight terrorists.
See Pres. Bush, who imprisoned enemy fighters indefinitely at Guantanamo, Cuba without according them either POW or criminal defendant status. Just locked them in jail and threw away the key for as long as he liked, under harsh interrogation techniques that would have made Torquemada smile.
Duff said that "federalism – the concept that policy-making rights not specifically given to the federal government should be left to the states whenever possible – is the defining idea behind many of Rehnquist’s decisions, and the court under his leadership will be known for the promotion of federalism."
The article on Duff's talk - he was substituting for the ailing Rehnquist at the U. of Nebraska - is here.
CON-LAW EXAM TIP
You will understand Constitutional Law much better when you realize that its focus is on a theory of government, make that competing visions of government, in contention with one another. Once you understand the theory of government adoped into law, you'll have an intellectual framework into which the cases fit. Each case becomes a stake point fastening the huge tent to the ground in a recognizable shape.
So, Federalism relates to Individual Civil Rights. Federalism is another check-and-balance against unfettered central government power. Separation of powers is another. Freedom of the Press, the Press as the Fourth Branch of Government, is another.
Ultimate sovereignty residing in the people is another.
Judicial review, the power, is another.
Frankly, I hadn't listed them before. Above, listed below, are five checks-and-balances:
Federalism (the state-federal tug of war);
Separation of Powers (the three coordinate branches that must not encroach, yet must cooperate);
Power of Judicial Review (what gives the Supreme Court its power; Zeus's Thunderbolt);
Freedom of the Press (Press as Fourth Estate of government after the 3 branches);
Ultimate sovereignty in the People.
Wow!
I think I smell an exam question trying to get through...
NOW, Con-Law is easy, right?
Understand the theory and you'll understand the cases.
***
So then I posted this question, as to which I'm awaiting replies from the conlawprofs; it's hard to get a rise out of 'em sometimes:
On first reading the article whose first half I've copied and pasted below (the URL is at bottom), I thought "How very nice; the Chief Justice is all in favor of everybody's civil liberties."
As after-thoughts crept in, as they usually do, I asked whether I really believed that this is what the Chief had in mind all along.
If John Marshall had written some of William Rehnquist's federalism opinions, I imagine he would have taken some pains to point out how, while in the short run, it may seem sad that Christy Brzonkala had to lose her congressionally authorized (by VAWA) rape case against Morrison, it was only because in the long run so many more rape victims would be protected in the pursuit of their civil liberties by rendering the states so much stronger vis-a-vis Congress which had actually protected her when the states admitted that they couldn't (the 38 state A-Gs who supported VAWA).
And as for Mr. Lopez, who beat the federal rap for bringing a gun to school, Marshall might have observed that although we sadly have to clip Congress's wings this time, it's only to protect the civil rights of all individuals by strengthening the powers of the states. Checks and balances and all.
But I don't recall Rehnquist, C.J., saying anything like this in his federalism opinions.
I'm having trouble believing Prof. Duff's civil rights-promoting view of the Chief's new states rights opinions.
If Prof. Duff is correct, I suppose the ACLU ought to thank their lucky stars for the conservative wing of the Court, preserving everyone's civil rights with such alacrity.
Either that or I'm missing something...not for the first time...
I wonder what others here might think about the C.J. being more civil libertarian than some might have presumed.
rs
sfls