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Of Power and Responsibility: The Political Morality of Federal Systems

This Article addresses whether a level or unit of government in a federal system must act only on political self-interest or on an understanding of the needs of the system as a whole. To address this question, this Article compares the dominant U.S. “entitlements” approach, which looks only to political self-interest, with the dominant “fidelity” approach in the European Union and in Germany, which demands that institutional actors temper political self-interest by considering the well-being of the system as a whole. 

This Article demonstrates that the fidelity approach actually comes in two significantly different versions: (1) a “conservative” fidelity approach, which undermines democratic federalism by seeking to align the diverse interests throughout the federal system, and (2) a “liberal” fidelity approach, which promotes democratic federalism by preserving constructive democratic intergovernmental engagement throughout the system. This Article concludes that the former should be rejected, but that the latter warrants our attention in the United States as a promising and hitherto neglected alternative to the dominant U.S. approach based on institutional “entitlements.”

“Happy” Birthday, Brown v. Board of Education? Brown’s Fiftieth Anniversary and the New Critics of Supreme Court Muscularity

Professor Michael Klarman’s book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, covers the entire corpus of Supreme Court case decisions concerning race, from the infamous Plessy v. Ferguson in 1896 to Brown v. Board of Education in 1954. Klarman addresses three principal questions: What factors explain the dramatic changes in racial attitudes and practices that occurred between 1900 and 1950? What factors explain judicial rulings such as Plessy and Brown? How much did such Court decisions influence the larger world of race relations? Klarman argues that, in regard to whether state-imposed segregation of the races violated the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court only reconsidered the meaning of the Constitution once public attitudes had already changed. He writes that the Supreme Court “did not invalidate racial segregation until after public opinion on race had changed dramatically as a result of various forces that originated in, or were accelerated by, World War II.” 

This Review explicates the interpretive sweep of Klarman’s book: its treatment of the Jim Crow decades, of the World War II years, of the Brown decision, and of the civil rights movement. It then critically considers Klarman’s overarching argument concerning the Supreme Court’s supposedly minimal role and influence in American politics and society. Lastly, the Review contends that Klarman’s analysis, when understood in conjunction with recent writings by Professors Rosenberg, Tushnet, and Rosen, represents both a potent and a potentially dangerous new political critique of the Supreme Court’s traditional power of constitutional judicial review.

Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts

The Supreme Court’s decision in Apprendi v. New Jersey established a relatively clear rule: The Sixth Amendment’s right to a jury trial places a substantive restriction on legislatures by preventing any fact that has been deemed necessary for a particular level of punishment, either by statute or by constitutional decision, from being subject to judicial factfinding. Specifically, the Court held that the Sixth Amendment right to a jury trial requires that any fact (other than a prior conviction) that exposes a defendant to a greater level of punishment be found by the jury beyond a reasonable doubt.

This decision was nominally directed at so-called “sentence enhancements”—facts found by the judge at sentencing that increase punishment beyond the maximum allowed by the underlying statute. Some scholars have expressed concern that legislatures, deprived of the use of the increasingly popular sentence enhancements, would redefine their criminal codes so as to avoid the new Apprendi requirement by simply raising the maximum penalty authorized by the underlying statute. The judge could then use this greater discretion in sentencing to inflict the higher level of punishment desired. In light of this fear, there has been a revitalized effort to understand the boundaries that the Constitution places on the substance of criminal law.

This Note argues that the Sixth Amendment right to a jury trial, as explained in Apprendi, places a substantive restriction on legislatures by requiring that any fact deemed necessary for a particular level of punishment, either by statute or constitutional decision, be treated as an element of the crime.

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