Suchergebnisse

Pundits predicted that the U.S. Supreme Court's ruling on the Affordable Care Act would make history. In fact, by upholding the individual mandate as a tax, the justices took themselves largely out of the picture, ensuring that the debate over health care will play out in the political sphere, where it belongs. Adapted from the source document.

The growth of administrative government in the United States since the turn of this century has meant the gradual rise of statutory enactments as a (if notthe) primary source of law. Despite the burgeoning importance of the work of legislatures, legal scholars were relatively slow to devote deserved attention to statutes and the bodies that enacted them.The familiar rhythm of the common law continued to draw the bulk of theoretical analysis.Any lingering concern about the relative neglect of statutes and legislative bodies may now be put aside. The last two decades have seen a remarkable collaboration among scholars in the disciplines of law, economics, and political science concerning how we can better understand what motivates legislatures and how we should interpret their work product.1This attention to statutes and the legislative process has caused scholars to engage in a great amount of congressional historiography, as they test their theories against legislative and political practice. Historians are noticeably absent from this interdisciplinary collaboration, a state of affairs this roundtable is designed to address. Everyone, it seems, is doing congressional historiography—everyone, that is, except the historians.

Once upon a time, Enlightenment ideals prevailed across the land. Neutrality, objectivity, and reason were accepted as the firmaments of Supreme Court decisionmaking. "Americans tend[ed] to believe that 'playing fair' [meant] making everyone play by the same rules, and any deviation from this definition [was] immediately suspect."' But "then, some scholars., abandoned the fundamental aspiration toward. . . neutrality in government." "Neutrality" came to be "considered a chimera, an illusion used by those in power to justify and perpetuate existing hierarchies." The nation was threatened with a return to pre-Enlightenment days, a "return to a world in which it matters not what is said, but who says it," "where objectivity is replaced by power." This is the story Professor Suzanna Sherry tells about the time of the Rehnquist Court. In All the Supreme Court Really Needs to Know It Learned from the Warren Court, Professor Sherry argues that some academics have unfairly called the Rehnquist Court conservative for adhering to the very same values of neutrality and objectivity advanced by that "beacon of [liberalism]," the Warren Court. According to Professor Sherry, two groups of scholars threaten these ideals. First, there are those who would replace the decisionmaking ideal of "[flormal neutrality" with the conflicting idea of "substantive neutrality or equality of results." Second, and even worse, are some scholars, "commonly called postmodernists or social constructivists," who attack the very idea of neutrality. These scholars "have abandoned the fundamental aspiration toward., neutrality in government,"9 which "explains the[ir] condemnation of the current Supreme Court: its adherence to principles of neutrality places it squarely among those committed to perpetuating existing hierarchies of power." One of Professor Sherry's particular targets is affirmative action. According to Professor Sherry, the Warren Court pursued a policy of race neutrality, insisting that race play no part in governmental decisionmaking. ...

The world we live in is becoming smaller. Although no doubt people have been saying that since at least the travels of Marco Polo, Columbus, and Vespucci, events appear to be moving with startling rapidity. Global trade, global travel, global communication-all are bringing us together in ways that even twenty years ago we hardly could imagine. The words "globalization" and "internationalization" are heard frequently now, and in many new and different contexts. In contrast to the globalization phenomenon, we are accustomed to thinking about American federalism largely in domestic terms. The primary arena in which the debate about the role of the states plays out is a national one. Other than a few odd cases in which state action has been challenged as interfering with international relations,' or the even fewer cases in which actions taken by the national government in the international sphere have been challenged on federalism grounds, most of the debate is about activity wholly domestic. Foreign affairs usually is seen as something remote from, although occasionally touching, the question of national-state relations. In the next century, the process of globalization is likely to cause us to reconsider the way we think about federalism As the world gets smaller, it will become more difficult to separate the domestic and foreign spheres. Domestic regulation increasingly has an impact on the international sphere, just as international integration has important implications for domestic activities. This international effect in turn triggers the foreign affairs powers of the national government, with regulatory implications for the states. In short, as the barriers between countries fall, the lines we have drawn between the national government and the states will come under increasing strain.