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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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