The Revival of States’ Rights: A Progress Report and a Proposal

10th Amendment

The Revival of States’ Rights: A Progress Report and a Proposal

Lynn A. Baker, University of Texas School of Law, 22 Harvard Journal of Law and Public Policy 95 (1998)

Abstract: This is an edited version of remarks presented at the 17th Annual National Federalist Society Symposium on “Reviving the Structural Constitution” in March 1998. Focusing on the U.S. Supreme Court’s decisions in United States v. Lopez (1995) and Printz v. United States (1997), it offers both a brief progress report on the Court’s seeming revival of states’ rights and some suggestions for how the Court might proceed in the future.

Writing for the Court in Gregory v. Ashcroft, Justice O’Connor observed that “[iln the tension between federal and state power lies the promise of liberty.” For those of us who share Justice O’Connor’s view that judicial affirmations of states’ rights are guarantors of liberty rather than harbingers of slavery, the 1990s have been a time of cautious optimism. With its decisions in New York v. United States,2 United States v. Lopez A Seminole Tribe v. Florida, Printz v. United States, and City of Boerne v. Flores the Court has signaled a willingness to resume its too long-ignored duty to enforce the Constitution’s protections for state autonomy

Number of Pages in PDF File: 12

[CI] Eight years on and the candle of hope this paper may have portended has expired.

About the Author

I am a Southerner, a father, husband, and Christian and retired active duty Army field grade officer; I served for just over thirty years. I spent four years of my youth at The Citadel in Charleston. I am neither a theologian nor a professional historian. I do however ask many questions and endeavor to find answers and I believe, or at least hope, that I think critically and with the understanding that God provides.

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