Are There Any Tories On Tory Hill?

fairlie3In a few months, the Marquette University Law School community will pack up and move to its new building, located on Tory Hill.  Perhaps this is a good time to consider whether any actual “Tories” will reside there.  This is doubtful, because American political thought does not have a history of embracing the Tory philosophy.  Nonetheless, in today’s political climate, we all might benefit from hearing an occasional Tory point of view.    

The Republican Party in America currently stands at a crossroads.  There has been a great deal of debate within the political punditry concerning whether the Tea Party movement is a positive or a negative development for the Republican Party.  Some observers have noted the friction between the rage being expressed by Tea Party activists at the government bailout of the financial markets and at the expansion of government regulation of the health care sector, on the one hand, and the more business and government friendly track record of establishment Republican officials on the other.  This friction was most evident last month, when conservative activists rejected the establishment candidate put forth by party leaders for the 23rd Congressional District in New York, split the Republican vote, and delivered the seat to a Democrat.   

Similarly, Sarah Palin’s book tour has engendered speculation about her future political plans.  Some have applauded her anti-Washington and anti-big government philosophy as reflective of the public‘s current attitudes.  In the wake of the Administration of President George W. Bush, who spoke like a “States’ Rights” Texas governor while simultaneously expanding the federal government in the name of education and national security, many conservatives look to the former Alaska governor as someone who might actually govern in accord with a political philosophy that promotes decentralized government.  However, other observers have questioned whether Sarah Palin’s appeal extends beyond regional and rural areas of the country.

Democrats have their own problems.

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Federalism and Criminal Law

mapThis is the fourth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

Habeas corpus presents the classic federalism problem in criminal law: how can federal courts overturn flawed state-court judgments while maintaining due respect for state sovereignty and the autonomy of state criminal-justice systems?  But federalism issues can also appear in criminal cases that originate in federal court.  In its new term, the Supreme Court has at least two such cases.

First, in United States v. Johnson, the Court will consider whether a battery conviction in Florida state court counts as a violent crime for purposes of the Armed Career Criminal Act, a federal sentencing statute.   (I have posted several times about ACCA in the past year, most recently here.)  Although “battery” normally evokes images of serious violent crime, Florida law defines battery so that it includes any nonconsensual touching, regardless of risk of injury.  For that reason, the Florida Supreme Court has already ruled that battery is not a violent crime for state-law purposes.  Thus, in Johnson, the United States Supreme Court is confronted with a question of whether it should defer to state-court characterizations of state crimes for purposes of implementing a federal statute.

Second, in United States v. Weyrauch, the Court must decide whether a state official can be convicted of honest-services fraud based on a conflict of interest that did not violate state law.  (This is one of three new cases in which the Court will consider various dimensions of the federal crime of honest-services fraud.) 

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Searching for Negative Space in the Constitution

Escher011Some people dislike the game of soccer.  They observe the players running around on the field and it all seems like random chaos.  Soccer aficionados, however, are not focusing on the players.  They are watching the spaces in between the players.  These empty spaces ebb and flow, like waves in the ocean, creating momentary opportunities for the attacking side.

Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.

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