Issue 3
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.”
The Right to Education in Juvenile Detention Under State Constitutions
The importance of education to succeed in today’s society is well documented and recognized by courts, but is not adequately provided to the over 96,000 juveniles who are confined each year in the name of rehabilitation. This Note argues that children in juvenile detention have a right to an adequate education based on state constitutional guarantees of education. This right can be used to challenge the inadequacy of the current educational services provided in juvenile detention facilities. The argument proceeds in three parts. Part I provides background on the juvenile justice system, explains the importance of education in juvenile detention, and surveys the applicable federal statutes and corresponding litigation. Part II briefly discusses potential federal constitutional challenges based on the Equal Protection Clause and the Due Process Clause, but concludes that these challenges are unlikely to be successful. Part III argues that state constitutional guarantees of education are applicable to students in juvenile detention facilities. First, it analyzes the contours of the state rights to education as interpreted in school finance litigation. Second, it responds to the main objection that children in juvenile detention have sacrificed their right to education by arguing that (1) the purpose of confinement is rehabilitation, which is consistent with the right to education, and (2) even if the purpose of confinement is punishment, it does not follow that juveniles have sacrificed their right to education. Third, it analyzes specific challenges that could be raised by children in juvenile detention. Part IV concludes that given the acceptance of the adequacy conception of the right to education, the time is ripe to challenge the inadequacy of education currently provided in juvenile detention.