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45 U. Kan. L. Rev. 1045 (1996-1997)
Federalism and Civil Liberties

handle is hein.journals/ukalr45 and id is 1057 raw text is: Federalism and Civil Liberties Nelson Lundf I. INTRODUCTION When we think about the Supreme Court's role in American life, most of us would give pride of place to the protection of individual liberties from overbearing political majorities, especially the majorities that control state governments. Judging from the way the Court exercises its discretionary jurisdiction, the Justices apparently agree. Even legislators themselves-against whom we look to the Court for protection-often seem alarmed at the very thought that the Court might relax its vigilance. Although this notion of the Court as guardian of our personal liberties seems thoroughly ingrained in our contemporary legal culture, embraced on the right as well as on the left, it is not by any means self-evidently correct. On the contrary, a disinterested analysis suggests good reasons for concluding that the Supreme Court should essentially get out of the business of protecting civil liberties against state governments. In doctrinal terms, that would mean abandoning the Fourteenth Amendment incorporation doctrine, as well as substantive due process and some of the wilder extensions of equal protection analysis. Without attempting to show that the Court is absolutely required to take these steps as a matter of constitutional interpretation, I will try to suggest why the Constitution can very reasonably be interpreted to leave the states with much more discretion in the area of civil liberties than current doctrine provides. More important, however, I want to focus attention on a related question that has been too much neglected: Is it a good idea as a matter of constitutional design or constitutional practice for the Supreme Court to play the large role it has assumed for itself in balancing the competing demands of public discipline and private liberty? I suggest that it probably is not. The questions I focus on here are a subset of a larger group of issues about the proper relation between the states and the federal government. * Professor of Law, George Mason University School of Law; Ph.D., Harvard University 1981; J.D., University of Chicago 1985. For their thoughtful suggestions and criticism, I am grateful to David E. Bernstein, Stephen G. Gilles, Leon R. Kass, Mara S. Lund, John 0. McGinnis, participants in the Heritage Foundation/Federalist Society Symposium What Ever Happened to the Tenth Amendment?, September 12, 1995, and participants in the symposium on Federalism in the 21st Century at the University of Kansas School of Law, September 27-28, 1996. Financial support was provided through the Law and Economics Center at the George Mason University School of Law. The author is responsible for all shortcomings and excesses. 1045

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