Erwin Chemerinsky and Shep Melnick and boston college and de toqueville and putnam

There is no topic more timely for those who think about law and who live in Oregon than federalism--the way that our political system allocates power between the state and federal governments. Within the last two weeks, the United States Supreme Court has "granted cert" (i.e., agreed to hear) Gonzalez v. Oregon, a challenge brought originally by then-Attorney General John Ashcroft to try to invalidate Oregon's Death with Dignity Act ("physician assisted dying"). Though rebuffed both at the United States District Court and the Ninth Circuit, Ashcroft pressed on. One of his last acts before leaving office was to make sure the petition for certiorari on this questions was submitted. When review was granted, it made all the more timely the symposium held today at Willamette University College of Law on the topic of federalism. One of the panels during the day considered what it called "physician assisted suicide," though a proponent of the Oregon statute preferred the appellation given above ("physician assisted dying").

Two major presentations that got the ball rolling were by one of the leading constitutional law scholars of our time (Professor Erwin Chemerinsky--Duke) and the holder of the Thomas P. O'Neil, Jr. chair in American Politics at Boston College (Professor Shep Melnick). This essay will probe the different styles and content of these two scholars, while the next will give an overview of the assisted suicide/dying issue.

Looking at Federalism

The presentations of Chemerinsky ("C"), the law professor, and Melnick ("M"), the political science professor, illustrated differences in temperament, expectation, methods of data collection and goals of these two disciplines. Whereas C built a sophisticated systematic edifice in his attempt to categorize and understand the Rehnquist Court's decisions on federalism, M was more interested in the nature of American democracy and the extent to which it is supple enough to meet the challenges of the 21st century. Whereas C was interested in how the law of federalism has developed, M wondered about whether America's social capital (to use a phrase coined by Prof. Robert Putnam) has declined to such a degree that the future of our "noble experiment" was imperiled. While C's emphasis on system implied that legal decisions are principled, and that close enough study of the Supreme Court's jurisprudence could yield a framework that would explain the development of law in the recent past as well as probable directions for the future, M doubted whether principle was involved in judicial decision-making at all. M challenged us, for example, to try to defend the "emerging national consensus" that Justice Kennedy relied on in striking down the death penalty for a capital murderer who had committed his crime when he was between 16-18 years of age. What "emerging national consensus" could possibly be in view when 40% of states permitted these executions, 35% did not and 25% of states have abolished the death penalty for any crime.

A Closer Look

C divided Rehnquist's nearly 19-year tenure as Chief Justice into three periods for federalism analysis: (1) 1986-around 1993; (2) 1993 or 1994-2003 and (3) 2003- present. He then divided the federalism-type decisions into four categories: (a) Limitation of the scope of Congressional power; (b) 10th Amendment; (c) State sovereign immunity; and (d) federal preemption. His encyclopedic and precise mind then rattled off cases, fact patterns, language of decisions and resultant uncertainties under all these categories. In general C argued that in the first period the Rehnquist Court was quiet on all four fronts, during the middle period the first three categories expanded fairly dramatically, while federal preemption also [possibly contrary to expectation] expanded, and in our current period the Court has not extended the federal issues any further. It would be too much to say, according to C, that the pendulum has "swung back;" it might be more accurate to say that the pendulum isn't continuing to swing in the state's rights direction.

M was more concerned to describe the ruminations of three leading political scientists: one from the 19th centurey (de Toqueville) and two leading contemporary figures (Putnam and Prof. Theta Skocpol). Guiding his thoughts was the rubric of political participation. Toqueville thought that the development of individualism was the biggest hindrance to public participation, even as it tended to help spawn the growth of the federal government. Putnam used the peculiarly 20th century methods of surveys and data collections to try to measure what he felt were declining levels of participation in all aspects of civil life in America. Finally, Skocpol stressed how democracy has spawned bureaucratic institutions which have both lost touch with "outside the beltway" constituencies and have cut the heart out of volunteerism and public participation.

Conclusion

While C seemed more intent on a descriptive analysis and intellectual system-building, M was clearly worried about the course of American democracy and not a little bit cynical about the vaunted "principled" decision-making of the United States Supreme Court. But these differences of temperament may be explained primarily by the social location of the two professors. C argues cases before the Court; the Court is very solicitous of someone who knows their jurisprudence better than they do. Thus, C sees himself actively involved in the shaping of law today. In contrast, M's teaches undergraduates (and grad students) who are 35 years younger than he is. I think the temptation to live in a past of one's own construction (which I see Prof. Putnam doing, too) is particularly strong for those teaching young students in the dismal disciplines of economics and political science. Yet, I am drawn more to the organic and methodologically rich method of political science than constitutional adjudication. The latter has always seemed to me to partake more of judicial "back filling" after decisions have been reached than decisions that flow from the shape of the text.

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