Comparative Constitutional Federalism: Europe and America

By Mark Tushnet | Go to book overview

counterparts to be sensitive to the dynamics of state legislation that, whatever its surface appeal, in fact smacks of protection or favoritism.

Sorting out national and local interests can be a process somewhat like that suggested in the famous footnote four of the Supreme Court's Carolene Products case. 108 There Justice Harlan F. Stone suggested areas, including the protection of the political process or protection of racial and other unpopular minorities, that might be candidates for closer judicial scrutiny. A like canvass might argue for greater national uniformity of rights as to those subjects.

Whatever one's formula, the ultimate aim should be to give full rein to two values intrinsic to constitutionalism in a free society: individual liberty as safeguarded by such constitutional provisions as the Bill of Rights and the Fourteenth Amendment; and individual liberty and rights of choice as fostered by international arrangements such as federalism.


NOTES
1.
Robert Alan Rutland, The Birth of the Bill of Rights 1776-1791 ( 1955), at 208-09.
2.
Barron v. Baltimore, 32 U.S. 243 ( 1833).
3.
Slaughter-House Cases, 83 U.S. 36 ( 1873).
4.
Plessy v. Ferguson, 163 U.S. 537, 550, 552 ( 1896).
5.
Ku Klux Klan Act, ch. 22, 17 Stat. 13 ( 1871) (certain provisions currently restated in 10 U.S.C. § 333; 18 U.S.C. §§ 371, 372, 2384; 28 U.S.C. §§ 1343, 1344, 1861; 42 U.S.C. §§ 1983, 1985, 1986).
6.
Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 ( 1964) (codified as amended at 42 U.S.C. §§ 1971, 1975a et seq., 2000a et seq. [ 1982]).
7.
Lochner v. New York, 198 U.S. 45 ( 1905).
8.
Adkins v. Children's Hospital, 261 U.S. 525 ( 1923) (invalidating District of Columbia's minimum wage law).
9.
Anson Phelps Stokes and Leo Pfeffer, Church and State in the United States ( 1964), at 77-78.
10.
Permoli v. First Municipality, 44 U.S. 589 ( 1845).
11.
Cantwell v. Connecticut, 310 U.S. 296 ( 1940).
12.
Everson v. Board of Education, 330 U.S. 1 ( 1947).
13.
330 U.S. at 15-16.
14.
Thomas Jefferson to Committee of the Danbury Baptist Association, January 2, 1802, The Life and Selected Writings of Thomas Jefferson, ed. Adrienne Koch and William Peden ( 1944), at 332-33.
15.
330 U.S. at 16.
16.
For the text of Madison's Memorial and Remonstrance, see Papers of James Madison, ed. William T. Hutchinson, Robert A. Rutland, and William M. E. Rachal ( 1962-- ), VIII, 295-306. The Virginia Statute for Religious Freedom appears in 12 Hening's Statutes at Large 84.
17.
330 U.S. at 13.
18.
Walz v. Tax Commission, 397 U.S. 664 ( 1970).
19.
See e.g. Lemon v. Kurtzman, 403 U.S. 602 ( 1971); Committee for Public Ed

-133-

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Comparative Constitutional Federalism: Europe and America
Table of contents

Table of contents

  • Recent Titles in Contributions In Legal Studies ii
  • Title Page iii
  • Contents v
  • Foreword: Toward a National Identity in the European Economic Community vii
  • Notes x
  • Preface xi
  • 1: The First Phases of American Federalism 1
  • Notes 16
  • 2: Economic Integration and Interregional Migration in the United States Federal System 21
  • Notes 50
  • 3: Preservation of Cultural Diversity in a Federal System: The Role of the Regions 67
  • 3: Preservation of Cultural Diversity in a Federal System 67
  • Notes 75
  • 4: Putting Up and Putting Down: Tolerance Reconsidered 77
  • Notes 105
  • 5: Protecting Human Rights in a Federal System 115
  • Notes 133
  • 6: Conclusion 139
  • Notes 150
  • Bibliographical Essay 153
  • References 159
  • Index 163
  • About the Editor and Contributors 167
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