Judicial Power

If you were to put together every book of American Constitutional Law stories, and put them all in one room, and devote a couple months to reading them all, you would see that every story shares the same narrative. Roughly speaking, the narrative is states as villains, ah whether it's state governors, state legislatures, state courts, and the hero role is usually played by the federal government and usually it's the U.S. Supreme Court that comes in to save the day. Now, in American history there is some support for that narrative. Jim Crow is the best example, leading to Brown versus Board of Education where really it's fair to say the states had set a negative example and that negative example ultimately affected the meaning of Federal constitutional law. The truth of it is there have been many situations where the leaders of right protection have been state courts or in some cases state legislatures. And it seems helpful if you're going to understand American Constitutional Law in its totality you really want to know both stories. One example, that there's a part of the story that most people know, and a part of the story most people do not know. The eugenics movement was a rather unfortunate episode, lasted about 75 years. It was thought that there were good genes and bad genes, and having people with bad genes breed less would help society, having people with good genes breed more would help society. So the upshot of the eugenics movement was the passage of state laws that allowed states to involuntarily sterilize individuals who had either mental disabilities or had violated criminal laws. Now the part of that story that most people know is that led to the decision in Buck versus Bell in 1927, an 8-1 decision written by Oliver Wendell Holmes upholding these involuntary sterilization laws. So that's a case by the verdict of history where we would all agree the U.S. Supreme Court got that one wrong. The part of the story that most people don't know is that before 1927, before the Buck versus Bell decision, six state courts had reviewed the validity of these laws and all had invalidated them, all through opinions that most people today would say got the issue decided correctly. It seems to me federalism and the 50 state courts and the 50 state constitutions give us an opportunity to relieve that some of that pressure and perhaps be a little more patient before we adopt one national approach to some of these um rights protections. I would say that we're living in an era where we responded to the risks of Jim Crow of allowing too much state power which lead to some serious deprivations of liberty in American history. At times it will be appropriate to nationalize a right to resolve certain disputes nationally. But I think it's dangerous to be impatient about that because the risk is you'll too quickly, too precipitously nationalize the right and perhaps pick the wrong interpretation.