Fall 2024
With an emphasis on history, this Seminar is a deep dive into the origin and evolution of Federalism, the relationship between the 50 states and the United States. From the founding of the republic to the present day, federalism issues have vexed the American people, their political institutions, and their judiciaries. Federalism decisions are often driven as much by cultural, social, and political forces as they are by any discernible legal doctrine. This seminar will enable the student to explore how historical currents have shaped the law of federalism, and how the law, in turn, has influenced historical developments.
Many, if not all, federalism issues fall into one or more of three broad categories. The first is characterized by the phrase, “what kind of nation.” These issues go to the heart of what are/is the United States? The shorthand phrase, “laboratories of democracy,” a concept originated by Justice Louis Brandeis, describes the second category. These issues explore how innovative state policies interact with limitations imposed by the Constitution. The third category I call, “redefining liberty.” In the aftermath of the Civil War, the American people adopted the 14th Amendment to the Constitution, which added new express limitations on the power of the states. This Amendment compelled the American people and their governmental institutions to repeatedly revisit the Constitutional meaning of “liberty.” This class will critically examine issues from all three categories.
While the emphasis here is on the past, rarely has a topic of legal history been timelier. Each week, students will research, write about, and present to the class one or more legal issues in their historical context. The topics will delve into how Americans have viewed federalism from the 18th century, e.g. Chisholm v. Georgia, 2 US 419 (1793)(whether individual states enjoy sovereign immunity) to the 21st century. E.g. Dobbs v. Jackson Women’s Health Organization, et. al., 597 U.S. ___, (No. 10-1392, Decided 06/24/2022)(whether Mississippi’s pre-viability prohibitions on elective abortions are unconstitutional).
