Fall 2002 Human Rights Magazine

The current and past editorial boards of Human Rights would like to thank Jessica Washington, our editor extraordinaire, for her outstanding contributions as staff editor during the past four years. We wish her the very best in her new endeavors.

Much has been written of late about the Supreme Court’s resurgent focus on federalism and the increasing frequency with which the justices defer to state interests in striking down acts of Congress. What has been curiously neglected, or at least underemphasized, is the practical effect of this trend on the status of specific individual rights and liberties. Indeed, the primary concern of most current commentary has been the procedural and structural dimensions of the New Federalism, rather than the substantive import of the judgments and policies that comprise this notable trend. The goal of this issue of Human Rights is to redress that balance by reviewing specific sectors in which recent federalism rulings and policies have had significant impact, and by examining more broadly the startling ascendancy of state interests in the Supreme Court’s jurisprudence.

The potential value of such a deeper, more intense analysis of the New Federalism’s effect is ample and obvious. What we have done, in several vital areas, is to invite the views of those who press in the lower courts and in the executive branch those rights and liberties that have been directly impacted by recent constitutional developments in this area. Their perspective, coming as it does from the front lines of human rights litigation, adds a vital and largely neglected dimension to the extensive scholarly analysis of the New Federalism.

The consensus of those who have written for this issue is predictably mixed, and the contributions themselves provide an appropriate balance. On one hand, University of Southern California law professor Erwin Chemerinsky posits that "the Court’s recent [federalism] decisions have lessened liberty, not enhanced it," adding his prognosis that "over time, there is no reason to believe that federalism decisions will do more to advance than restrict liberty." Meanwhile, Michael S. Greve, director of the American Enterprise Institute’s Federalism Project, notes that "conservative jurists and scholars . . . are deeply divided between states’ rights advocates, who view federal preemption with great skepticism and . . . business conservatives, who view preemption as a vital—and underutilized—defense against regulatory ‘balkanization’ . . ." Taking a more sympathetic view of the current Court majority and the position of the Bush administration, University of Colorado law professor Allison Eid observes that "President Bush appears to be taking legitimate state interests, as articulated by the Court’s New Federalism decisions, into account," citing illustratively the recently issued Federalism Impact Statement as evidence that "the Court’s ‘think twice’ message is coming through loud and clear."

The articles that follow provide specific examples and illustrations, drawn from sectors as diverse as elementary and secondary education, civil rights (for example, acts of Congress protecting the interests of women and of persons with disabilities), and family privacy issues, and guns. While other areas could have been cited in detailing the practical effects of the New Federalism on individual rights and liberties, the interests this issue features are surely exemplary and representative. In the process, it might be tempting to conclude that the New Federalism is all bad (or conceivably all good) for individual rights and liberties. Obviously the ultimate balance will depend greatly on the ways in which states exercise the substantially greater authority that the Court’s rulings have effectively delegated to the states by narrowing the range of Congressional regulatory power. And the Supreme Court has additional opportunities this Term in which it could choose to further constrict congressional power. We await that process with much interest, and with understandable anxiety.

Robert M. O’Neil

Stephen Wermiel

Special Issue Editors

As published in Human Rights, Fall 2002, Vol. 29, No. 4, p.2.