Sunday, November 14, 2010

Individual Rights and Federalism

I've been reading Judicial Policy Making and the Modern State by Malcolm Feeley and Edward Rubin, which investigates the 20-year period in which federal courts transformed state prisons around the country. It's a pretty fascinating story, but especially in their contention that this period of judicial policy-making amounted to a final rejection of federalism:
"In imposing national norms on the state prisons that were following distinctly different models, the courts were rejecting the essential principle of federalism. As stated, federalism is distinguished from decentralization because it allows governmental subunits to follow separate norms rather than simply following separate managerial strategies for achieving a single, centrally established norm. The prison cases decisively rejected the state's power to follow separate norms in prison administration."
The federal courts saw that prisons were across the nation were adopting standards of the American Penological Association and the Federal Bureau of Prisons' guidelines everywhere but in the deep South, where penal institutions were spitting-image imitations of antebellum plantations. Federal judges, first in Arkansas, then independently across the South, decided that prisoners' Eighth Amendment rights against "cruel and unusual punishment" were being violated by the Southern Plantation model of prisons. Judges assumed jurisdiction over prisons in defense of prisoners' rights, and in vary degrees, assumed ultimate administrative control over state prisions. Judges implemented hundreds of reforms, in some prisons going so far as to designate a minimum wattage of bulbs to be used in lamps and schedules for washing windows.

The general argument of the book is that far from being a judicial usurpation of power, courts have always had a deeply governmental function and employed the modes of governance upon which the other branches relied. The nature of governance in the late 20th century and beyond requires courts to immerse themselves in administrative details when administrative agencies fail so deeply to be effective. While the court gets jurisdiction from the violations of individuals' rights, there is no justification to avoid reaching an equitable remedy that fails to protects all prisoners as opposed to the individual plaintiff before the judge. Federal restructuring of state prisons could not have been a usurpation of power merely on the grounds that justices engaged in detail-oriented implementation of solutions to problems.

The rejection-of-federalism argument is more problematic, however. Federalism was not rejected wholesale, just in cases in which the norms of state institutions violates the basic rights of United States citizens. The Fourteenth Amendment defines anybody born in the United States as a citizen thereof. This conceptualization of nationality replaced the antebellum notion of citizenship being contingent upon a state granting it. Virginia was capable of maintaining slavery because the enslaved were not citizens of Virginia, therefore not citizens of the US, and therefore not necessarily inheritors of basic rights. The prison cases enforced the Eighth Amendment against the states, reaching into state institutions to prevent abuses of American citizens' constitutional rights. However, in cases in which the exercise of state norms do not violate citizens constitutional rights, federalism remains alive and well. Or should we take for granted that all state norms which do not conform to national norms are also out of step with national conceptions of individual rights?

Judicial conceptions seem to track this notion. After all, "significant normative divergence" between national and local systems is exactly what is meant by the Palko Test, in which a state practice must "shock the conscience" in order to be reached by federal guarnatees of rights. It is clear that when rights are violated, the norms between institutions (or between an institution and the public) have diverged, but is the converse always true? If state and national norms diverge, is an individual's right always violated? For federalism to have suffered a total defeat, this must be the case. Otherwise, claims are not justiciably enforceable.

The norm of drinking and driving provides one such example. Louisiana does not prohibit the activity, though it does prohibit operation of a motor vehicle with a BAC of > .08. The notion that one can drive up to a daiquiri stand and drive away with a rum in your mouth doesn't sit well with national legal norms. Yet, there is no individual who could claim that the state has violated his right for not conforming to national norms. Federalism, my friends, is alive and well, so long as states don't violate judicially enforceable rights.

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