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Friday, May 16, 2008

Why the Court ought to deny cert in Smith v Barrow...

... And almost any other case involving Pierce/Meyer rights. The reason, of course, is federalism.

Institutionally complex rights -- including rights to private property, rights to parental control, rights to separation of powers (see Calder v Bull), rights to an equally funded public education, and a bunch of others -- should simply not be federalized absent the most pressing need. This is not because these are unimportant rights. To the contrary, they are among the most important. But centralized definition of institutionally complex rights -- i.e., entitlements to essentially systems of collective governance -- generally is a disaster.

Such rights cannot be protected by a simple federal injunction on some well-defined set of state practices. Instead, these rights are entitlements to complex systems of law: The existence of the right requires comprehensive and detailed regulation, balancing (for instance) the interests of children, relatives, teachers, etc, all of whom have plausible federal entitlements to free speech, free exercise of religion, anti-establishment, and, of course, parental autonomy.

The notion that Article III courts can effectively protect such rights with centralized directives from a committee of nine elderly lawyers is laughable. Far better to leave these issues to the state courts' enforcement of state constitutions, where (a) the affected constituencies are powerful enough to amend the organic law to their liking; (b) the variety of jurisdictions is great enough to accommodate passionate differences of opinion about which rights are "fundamental"; and (c) the jurisdictions are small enough that there can be a constant dialogue between the legislature and court about exactly how to manage complex entitlements. (As an example, consider school finance litigation: love it or hate it, would you really want this issue -- about which the states and experts are deeply perplexed -- federalized?)

The Court acted wisely in San Antonio School District v Rodriguez not attempting to federalize the right to an equally funded public education. They'd do wisely here in refusing to federalize parental rights selectively to use the public school system.

Posted by Rick Hills on May 16, 2008 at 10:03 AM in Constitutional thoughts | Permalink


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Post in haste, repent at leisure. As Mark notes, the real title of the post should have been, "Why the Court ought to reverse the Fifth Circuit in Smith v Barrow."

(There is, of course, a case for having the SCOTUS take no position on certain ostensibly federal rights beyond acknowledging that they are indeed federal, letting the lower federal courts enforce them -- or not -- willy nilly. That case for administrative decentralization is loosely analogous to the case for federalism in rights: If the rights in question are so institutionally complex that they are best managed in a decentralized manner, then it is better to let a dozen circuits ponder the matter than a single SCOTUS -- especially if there is some rough regionalization of circuits' attiutudes because the nomination of judges is influenced by the Senators from a region).

Posted by: Rick Hills | May 19, 2008 7:09:17 AM

I'm puzzled at the assertion that federalism should lead the Court to deny cert. in Smith v. Barrow. After all, the Fifth Circuit imposed federal standards on a local school board. How about granting cert. and reversing the Fifth Circuit, citing federalism as the reason for reversal? (Not a prediction, but an analytic point.) As I recall, there was a case quite a while back involving (if I remember it correctly) a similar restriction on a school teacher's choice of private education for a child, in a district under a desegregation order where the expansion of private schools made desegregation more difficult.

Posted by: Mark Tushnet | May 19, 2008 5:56:38 AM

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