Two cool new posts that build on what I called Federalism. 2.0.
First, from Jason Mazzone on the individual mandate and federalism:
Whatever else it proves, the individual mandate litigation is an opportunity to think more carefully and more systematically about how federalism and other structural provisions of the Constitution relate to individual liberties–and vice-versa.
Mike Rappaport at the Originalism Blog concurs with Jason:
I struggle to understand the appeal of a description of federalism as “states’ rights,” if that is taken to mean that states as states have some sort of moral right we are bound to respect. Federalism is a worthy goal to the extent it leads to good results for individuals, not because states have moral claims (what ever that might mean).
At Prawfs Allan Erbsen blogs about McIntyre Machinery, Ltd. v. Nicastro and looks at how the Court’s interpretation of personal jurisdiction and horizontal federalism was viewed as a tool to protect liberty:
We can more easily follow the plurality’s densely written argument by fragmenting it into components. The plurality essentially contended (on page 9 of the slip opinion) that: (1) limits on personal jurisdiction exist to protect “individual liberty” rather than as “a matter of state sovereignty”; (2) liberty is important because of the Due Process Clause; (3) the Due Process Clause “protects the individual’s right to be subject only to lawful power”; and (4) power is lawful only if it is within the “sovereign” “authority” of the forum state. So the plurality appears to have concluded that the scope of a state’s adjudicative jurisdiction is at least partially a function of the scope of its sovereign authority, assessed through the prism of liberty. But how do we know how far the state’s sovereign authority extends? It is here that the opinion takes an interesting turn. The plurality observed (again on page 9) that “if another State [other than the defendant’s “home State”] were to assert jurisdiction in an inappropriate case, it would upset the federal balance, which posits that each State has a sovereignty that is not subject to unlawful intrusion by other States.” This language suggests that each state’s sovereignty is a function of its role in a federal system that includes other equally sovereign states. The plurality’s complete chain of reasoning therefore runs as follows: limits on jurisdiction implicate liberty, liberty implicates due process, due process requires focusing on state authority, and state authority is a function of the forum state’s position among other coequal actors in a federal system. The opinion thus suggests that one cannot understand the scope of states’ adjudicative jurisdiction without thinking about horizontal federalism.
Again, NIcastro, like Bond, is from Justice Kennedy. Federalism-liberty is the new black.
I read Nicastro very quickly at the end of the term, and never had time to go back to it, but it seemed to be quite important.