Of Sovereignty and Federalism

Amar, Akhil Reed

doi:10.2307/796493

Cited by 71 publications

(15 citation statements)

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“…Hobbes explains that “a kingdom divided against itself cannot stand” (115). Splitting sovereignty, in Hobbes's mind, creates infighting and jealousies that will inevitably lead us back to war by destroying the social contract and the ideas that underpin it (Amar 1431). If sovereign power is in the hands of a single absolute ruler, decisions can be made swiftly and that unitary power will not degenerate into civil war (Hobbes 120–21, Mitchell).…”

Section: The Social Contract For Hobbes and On The Walking Deadmentioning

confidence: 99%

No Arts, No Letters, No Society, and Which Is Worst of All, Zombies: The Walking Dead and Hobbesian Politics

Kasper¹,

Kozma²

2019

The J of Popular Culture

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Section: The Social Contract For Hobbes and On The Walking Deadmentioning

confidence: 99%

No Arts, No Letters, No Society, and Which Is Worst of All, Zombies: The Walking Dead and Hobbesian Politics

Kasper¹,

Kozma²

2019

The J of Popular Culture

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“…The appropriate question to ask, continued the Liebers, was whether the act of the state official in question was necessary as measured by the put it, an act afterward deemed unnecessary from the perspective of a reasonable citizen became unlawful, with all the attendant consequences. 189 Military officers who were found liable despite acting under orders or in good faith fulfillment of their duties were not necessarily left in the difficult position of paying for their patriotism. This was because Congress regularly passed special private acts to indemnify such officers.…”

Section: The Standard Of Reasonmentioning

confidence: 99%

A Lost Theory of American Emergency Constitutionalism

Witt¹

2018

Law hist. rev.

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In the wake of the Civil War, Columbia Law School professor Francis Lieber, architect of some of the Lincoln administration's most important legal strategies, set out to write a definitive text on martial law and the emergency power. Lieber's text would have summed up his view of the legal lessons of the Civil War. Lieber died in 1872, leaving an unfinished manuscript to his son, Guido Norman Lieber, soon to become the Judge Advocate General of the Union Army. Norman Lieber worked on the manuscript but never finished it. Hidden deep in the younger Lieber's papers in the National Archives, the manuscript summarizes a strand of thinking about constitutional emergencies that first emerged in the controversies over slavery, then animated Emancipation and the broader legal strategy of the Lincoln White House, before running headlong into the post-war backlash signaled by the Supreme Court's 1866 decision inEx Parte Milligan. Building on debates over martial law in Anglo-American empire, the Liebers’ thinking embraced a forceful but constrained approach that made a cabined form of necessity the central principle of emergency governance in the modern state.

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“…Surely the people have a right to see their governments work independently within the proper bounds of their respective constitutional charters without troublesome meddling from their counterparts at the other level, yet equally surely, all power is not fractured, with the federal government and the States locked into a struggle for shares of the original delegation. I'm reminded of Professor Amar's suggestion that the States are meant to fight against the federal government for the rights of the people 98 and Professor Pettys's article about "federalism's forgotten marketplace"-competition for hearts and minds. 99 There's something here that is intellectually more appealing than Justice Stevens's unitary government and Justice Thomas's fractured government.…”

Section: Amentioning

confidence: 99%

The Foundations of Federalism: An Exchange

Bezanson

Moeller²

2006

SSRN Journal

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between what is truly national and what is truly local." 17 Independent states reasoning, I suppose. But the rule itself isn't specifically tied to the States as States, and so it fits more nearly with your enumerated powers model. The federalism rhetoric isn't necessary for or relevant to the result. So if this is a federalism revolution, it is a tame one indeed-though I worry that we've reached that conclusion by defining federalism so that almost no one is in favor of it. Loose talk of "police power" is disturbing, but very few federal statutes rest solely on aggregate economic effects analysis. Let me suggest something slightly different. Commerce Clause law before Lopez was hardly unambiguous. I think Eric Claeys's explanation of the New Deal cases is a good one. He argues that post-New Deal rational basis review was really a compromise between progressive reformers (who believed in unlimited congressional power) and the Supreme Court (which the public must perceive to be principled). 18 Professor Claeys describes the New Deal-era Supreme Court's "key innovation" as the modification of the substantial effects test in the NLRB v. Jones & Laughlin Steel 19 case: that case, he argues, "reversed the basic orientation of pre-1937 doctrine by reversing the direction of the 'effects' test. Roughly speaking, from Gibbons to the New Deal, the 'effects' test tried to maintain a principled line between interstate commerce and local activities" by permitting Congress to invoke the Necessary and Proper Clause and the Supremacy Clause to regulate intrastate activity "only after it was [already] clear the law's primary effect was to regulate interstate commerce." 20 The new substantial effects test, by contrast, permitted Congress to regulate nearly any activity, but "[b]ecause the test continued to distinguish between interstate commerce and local activities" in principle, "it preserved the idea that the Commerce Clause was one of several limited and enumerated powers." 21 I'm more sanguine, or perhaps less cynical, than Professor Claeys, but plainly Lopez and Morrison disambiguate the New Deal settlement that he aptly describes. So while Lopez and Morrison agitate some lawyers and law professors, they do not, without more, inject radical extratextual federalism principles into constitutional law. I'm not conceding that the decisions are correct, but it's clear to me that Lopez and Morrison don't disturb the core Commerce Clause precedents. The respondents in Gonzales v. Raich 22 relied on Lopez and Morrison to ask the Supreme Court to hold that the Controlled Substance Act's global criminal prohibition against marijuana was invalid as applied to intrastate, medical use of marijuana by terminally ill cancer patients. In his opinion for the Court, Justice Stevens stated that "[i]n their myopic focus, [respondents] overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases." 23 Lopez and Morrison involved challenges alleging "that a particular statute or provision fell outside Congress'...

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Of Sovereignty and Federalism

Cited by 71 publications

References 0 publications

No Arts, No Letters, No Society, and Which Is Worst of All, Zombies: The Walking Dead and Hobbesian Politics

No Arts, No Letters, No Society, and Which Is Worst of All, Zombies: The Walking Dead and Hobbesian Politics

A Lost Theory of American Emergency Constitutionalism

The Foundations of Federalism: An Exchange

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