Legal Commentary

Like Rick Hills, I participated in this weekend's annual Federalist Society Student Symposium, at the University of Michigan.  (Congratulations to the U of M students who clearly worked very hard to make the event a success, and thanks to Dean Evan Caminker for hosting the event.)  As it happens, Rick and I (along with Doug Laycock and Amy Wax) were on a panel whose topic, "Judicial Interference with Community Values", touches -- at least a bit -- on the "deference" discussion that Paul and Rick are having. 

The claims presented for the panel's consideration were, first, that "it is a basic assumption of federalism that individual communities can be different"; second, that "it is a benefit of federalism that free people can 'vote with their feet' and migrate to communities that share their values"; and, third, that "pervasive judicial review" can undermine this benefit, and this assumption, and "destroy local identity by homogenizing community norms."

Doug Laycock, in his remarks, suggested that the "vote with your feet" mechanism might not be applicable, or normatively attractive, when we are talking about fundamental rights.  My own remarks were, I think, consonant with Doug's; I suggested that the hard question is not whether "pervasive judicial review" can "homogenize community norms" but is, instead, when should judges charged with enforcing those norms to which our national community has committed itself in the Constitution invalidate local communities' efforts to express through law their norms.  Rick Hills shared some very interesting thoughts (maybe he'll re-present them here?) on the "bottom up" way that federalism generates rights.  And, Amy Wax reflected on the courts' role in the social-welfare-rights revolution.

UPDATE:   I just noticed Rick Hills' question, to me and others of my ilk, about Grutter, Kelo, and Davey.  Some quick thoughts after the jump . . . .

So, for what it's worth, my recollection is that Rick asked me about Dale, with which I basically agree, and not about Grutter, Kelo, and Davey.  But, in any event . . .  I might be the wrong person to answer Rick's question.  I think my views on the constitutional questions presented in Grutter and Kel0 are similar to Rick's.  I'm not convinced that the Fourteenth Amendment prohibits all programs that, in some way, take account of race.  (Whether the Justices in Grutter actually applied the "strict scrutiny" standard that, in previous cases, we were told -- for better or worse -- should be applied in such cases is, it seems to me, like the question of the wisdom of universities' affirmative-action policies, another matter.)  And, my sense is that the Kelo majority was right to conclude that the Constitution's use of "public use" does not rule out re-development plans of the kind that were at issue in that case.

Which leaves Davey.  I filed an amicus brief in that case, which focused on the history and meaning of the so-called "Blaine Amendments", and wanted it to come out the other way.  And, I have some thoughts in this paper about why I don't think people-who-like-federalism are necessarily locked in to deferring to states' more-demanding-than-the-Establishment-Clause anti-aid policies.