Federalism and Social Change

A familiar passage in Professors Hart and Wechsler\u27s casebook likens the relationship between federal and state law to that which exists between statutes and the common law. The underlying idea is that federal law rests upon a substructure of state law. It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for [its] special purpose. \u27 A similar relationship exists between state and federal judicial systems. State courts are courts of general jurisdiction, assumed to have authority to adjudicate controversies unless Congress has displaced them by conferring exclusive jurisdiction on federal courts. Federal courts, on the other hand, have only a limited jurisdiction carved out of the general jurisdiction of the state courts and conferred for restricted purposes. I mention these well-known relationships to explain why I shall not essay a comprehensive discussion of the Supreme Court\u27s attitudes toward federalism during the past decade. Because of the variety and complexity of the relationships between state and federal law, any attempt to canvass all-or even the important-decisions bearing upon the Court\u27s current attitude toward federalism would necessarily cover a very broad terrain, surely far more than I can traverse within the allotted time. Instead, I will consider what insights into the Court\u27s attitudes toward federalism can be gained by exploring a limited number of constitutional decisions arising out of the social revolution of the past decade, those involving the constitutionality of gender classifications and those relating to childbearing. Confining the inquiry in this way eliminates any possibility of a definitive statement, or even a rounded view, of the Court\u27s attitude toward federalism during the Burger years, but by focusing attention upon a small number of important cases it may open the way to insights that would be obscured in a tour de horizon. More specifically, an examination of the Court\u27s response to the most important issues raised by the women\u27s movement may tell us something of its current attitudes toward federalism as a device for mediating conflict in a period of rapid social change

Abstract Democracy: A Review of Ackerman\u27s We the People. by Bruce Ackerman.

Review essay on We the People: Foundations. By Bruce Ackerman. Cambridge, MA: The Belknap Press of Harvard University Press. 1991. Pp. x, 369. Reviewed by: Terrance Sandalow

Constitutional Interpretation

[W]e must never forget, Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, that it is a constitution we are expounding. Marshall meant that the Constitution should be read as a document intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. But he meant also that the construction placed upon the document must have regard for its great outlines and important objects. Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a moral code. The conclusion that there are limits to the meaning that may be given the Constitution is not likely to arouse controversy. Yet, that conclusion masks an important ambiguity concerning the source and permanence of those limits. The boundaries of permissible constitutional interpretation, it might be argued, are set by the intentions of those who drafted and ratified the original document and the several amendments to it. Accommodation to change through interpretation is not wholly foreclosed on this view, for the Constitution often speaks in generalities, but (proponents of this view maintain) present judgment is securely bounded by the intentions of the framers. The opposing view is less easily stated. At the risk of initial oversimplification, the boundaries of permissible constitutional interpretation are, on that view, subject to continuous adjustment. The meaning of the Constitution is never fixed; rather, it changes over time to accommodate altered circumstances and evolving values. Only the former view, it seems apparent, is compatible with the recurrent claim that the Constitution itself stipulates the values that must be employed in making decisions. The latter view recognizes limits to the interpretation that may properly be placed upon the Constitution, but it does not treat those limits as embedded in the Constitution. It regards constitutional law not as an expression of values written into the Constitution by the framers, but as the product of a continuing process of valuation carried on by those to whom the task of constitutional interpretation has been entrusted

Rejoinder (Response to article by William G. Bowen and Derek Bok)

In The Shape of the River, presidents Bowen and Bok pronounce the race-sensitive admission policies adopted by selective undergraduate schools a resounding success. The evidence they adduce in support of that conclusion primarily concerns the performance of African-American students in and after college. But not all African-American students in those institutions were admitted in consequence of minority preference policies. Some, perhaps many, would have been admitted under race-neutral policies. I argued at several points in my review that since these students might be expected to be academically more successful than those admitted because of their race, the evidence on which Bowen and Bok rely provides a potentially distorted view of the latter\u27s performance, almost certainly suggesting a greater level of success than those students actually achieved

Evolving Judicial Attitudes toward Local Government Land Use Control

The year 1967 begins the second half-century of zoning in the United States. The first comprehensive zoning ordinance was adopted by New York City in 1916. In the fifty years that have elapsed, zoning has become, notwithstanding a growing disenchantment with it on the part of planners, the most widely employed technique of land use control in the United States. At the present time only Houston, of all the major cities in the United States, lacks a zoning ordinance. And, though I have not obtained precise figures, we are all familiar with the increasingly large per centage of small municipalities, many with populations less than 5,000, that have adopted zoning ordinances. Curiously, particularly in view of the fact that zoning was largely the invention of lawyers, the legal profession has until recently, paid little attention to the legal problems of this pervasive control. Only in the last dozen years or so have the law schools, for example, found a place in the curriculum for systematic study of zoning

Introduction

The articles that follow, initially presented in 1983 as the thirty-second series of Thomas M. Cooley Lectures, address a subject that has deep roots in the United States\u27 history. Assurances that there would be constitutional protection of what are now called human rights-in the United States, they have more frequently been referred to as civil liberties and civil rights or individual rights and liberties-was a practical condition for the adoption of the Constitution. The belief that such guarantees are of vital importance in maintaining a society that is both free and just has over time become even more deeply embedded in our national consciousness. Despite the intense controversy that from time to time erupts over one or another Supreme Court decision-or perhaps because of it-it has become an article of faith among Americans that a constitutional specification of rights, enforced and elaborated by courts, is necessary to ensure liberty and as a safeguard against injustice

On Becoming a Law Professor

Thirty-five years ago, when I first joined a law faculty, only one job description existed for law professors, that for the conventional classroom teacher. In the years since, the opportunities available to lawyers interested in teaching have become a bit more varied. In addition to conventional classroom teachers, a growing number of law teachers are employed by law schools to provide what I shall somewhat misleadingly call clinical instruction.1 Although these comments are addressed mainly to men and women interested in classroom teaching, a few lines about clinical teaching may be in order because the initial question for anyone considering an academic career is which of these paths--conventional or clinical-to pursue

In Appreciation of Ted St. Antoine

As I began to think of what I might say this evening, it occurred to me that I was fortunate the occasion had not been billed as a roast. It would not be easy - and, indeed, might be sacrilegious - to direct attention to the foibles of a man whom thousands call the Saint. That title, by which he has been known by generations of students, is, of course, a measure of their affection and their esteem for him. For more than three decades, Ted has been one of our most popular teachers. Although I have learned a great deal from him over the years - though probably not as much as I should have, and surely not as much as Ted thinks I should have - I have never observed his classes. And so I must leave it to others to sing his praise as a teacher. Unfortunately, I am also not competent to comment on the importance of his scholarly achievements or on his many contributions to the profession, both as an arbitrator and as a leading member of the labor bar

The Distrust of Politics

In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives\u27 reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not on deficiencies in the political process, as commentators like Professor Ely have suggested, but rather on a disagreement with the substantive results that the political process yields