Introduction to the Course

A.  What the Course is About.

The course addresses three main questions:

1.  When is a federal constitutional right imposed on state action, instead of leaving the matter to state law?

2.  How does a federal system of federal courts and state courts function to enforce federal constitutional rights?

3.  What policies drive both the establishment of federal constitutional rights and their enforcement system?

1.  When Is a Federal Constitutional Right Imposed on State Action, Instead of Leaving the Matter to State Law?

       When James Madison sat down in 1789 to draft what became known as our Bill of Rights, his principal concern was to satisfy those who desired a set of rights enforceable against the federal government.  But he also drafted certain rights that would be enforceable against the states, including freedom of speech and of the press and the right to trial by jury in criminal cases.  Madison acknowledged that these rights were already included in some state constitutions, and had been a model for his proposals.  But he wanted the people of all the states to have “a double security,” which he explained this way to the First Congress:

I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not: I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who oppose this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against. . . .

       But this effort was successfully resisted by those who thought that the proper federalism balance was already achieved by those constitutional rights already contained in Article I, Section 10.  Chief Justice Marshall stated this federalism rationale in Barron v. Baltimore, 32 U.S. 243, 249-50 (1833):

Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments: the remedy was in their own hands, and would have been applied by themselves.  A convention would have been assembled by the discontented state, and the required improvements would have been made by itself.

       Over our history, the question of the proper balance between federally-established and state-established constitutional rights would recur.

2.  How Does a Federal System of Federal Courts and State Courts Function to Enforce Federal Constitutional Rights?

       Article I, Section 10 prohibited, among other things, state laws impairing the obligation of contracts and ex post facto laws.  How were these prohibitions to be enforced?  By a federal system of federal courts and state courts.

       The idea of a federal system was baked into the founding documents.  As Alexander Hamilton put it in Federalist Paper No. 82 (1788):

. . . [T]he national and state systems are to be regarded as ONE WHOLE. . . . This I infer from the nature of judiciary power, and from the general genius of the system. . . . 

       The system functions in two principal ways to enforce federal constitutional rights running against states.  First, it provides for review by the United States Supreme Court (and sometimes the lower federal court on habeas corpus) of state court judgments affecting assertions of federal constitutional rights.  Second, it provides federal trial jurisdiction and remedies to enforce federal constitutional rights.

3.  What Policies Drive Both the Establishment of Federal Constitutional Rights and their Enforcement System?

       How the system functions has varied over time.  Why the variability? Because, over our history, conceptions of judicial federalism and the federalism balance have varied.  Judicial federalism is about balancing federal interests and state interests.  It is about defining when a federal constitutional right is made applicable to the states and when the matter is left to state law.  It is about balancing the need for federal court enforcement of federal constitutional rights with the need to not unduly interfere with legitimate state interests.  It is about the jurisdictional relationships between state and federal courts, the remedies available to enforce federal rights and the definitions of the federal rights themselves.

       In some eras, the Court has tilted the federalism balance toward federal interests, in other eras toward state interests.  When rights have expanded, jurisdictional and remedial doctrines have typically expanded along with them.  Conversely, when a right has implicated a remedy which has become disfavored, the right or the remedy or both have been altered.  All these developments would make little sense without appreciating that jurisdiction, rights and remedies all grow in the same federalism soil.

B.  The Approach of the Course.

       Getting at answers requires employing systemic, policy, and historical perspectives.  It requires tracing how, over our history, ideas about federalism and the federalism balance have driven what federal constitutional rights have been established and how their enforcement system has functioned.  If you want to understand the law today and be able to conduct constitutional litigation, nothing is more practical than having these perspectives.

       This approach is hardly novel.  Justice Holmes put it well in his famous The Path of the Law (1897) speech:

The rational study of law is to a large extent the study of history.  History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know.  It is a part of the rational study, because it is the first step toward an enlightened skepticism, that is, toward a deliberate reconsideration of the worth of those rules.  When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength.  But to get him out is only the first step.  The next is either to kill him, or to tame him and make him a useful animal . . . [To do this we must consider] the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.

       A historical approach enables us to view of the work of the Supreme Court as resembling

the creation of a novel whose narrative has been developed by a series of authors.  Each author has responsibility for a chapter that must build on the development of the text so far.  Thus a successor author’s range of choice is significantly constrained by the prior development of the characters and the plot, though he may still reshape the narrative, introduce new characters, and gracefully or ruthlessly eliminate some of the old ones.  Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61, 61-62 (1984)

C.  The Organization of the Course.

       The course is organized both historically and topically to reflect that, over our history, Congress and the Supreme Court have adjusted the federal system of courts in accordance with their conceptions of the then-appropriate federalism balance, tilting the balance sometimes toward federal interests, sometimes toward state interests.

       The course is divided into three parts.

       The first part is devoted to the federal system and federalism balance between 1787 and 1930.  This historical period is then subdivided topically to correspond to the major functions of the federal system: review by federal courts of state court judgments affecting assertions of federal rights and original federal trial jurisdiction and remedies enforcing federal rights.

       The second part is devoted to the topic of original federal trial jurisdiction and remedies to enforce Fourteenth Amendment rights; it is subdivided historically to correspond to two different eras of federalism balancing: 1931-70 and 1971-2021.

       The third part is devoted to the topic of direct review and habeas review enforcing Fourteenth Amendment rights; it is subdivided historically in the same way as the second part.

       Our tour through two and a third centuries of federal jurisdiction, rights and remedies law hopefully will engender a deep appreciation of the marvelous uniqueness and resilience of our federal system.  The system derives from the Founding Fathers, the 1789 and post-Civil War Congresses, those responsible for the Fourteenth Amendment and those lawyers, judges and justices who have since applied the system to practical problems and changing conditions.  Future evolution will similarly owe much to those future lawyers and judges who are today’s students.  The enterprise is an ongoing one, with an excitement and challenge that seem forever fresh.  The challenge is to develop an understanding of present and future policy choices for the Supreme Court and Congress; and, as is true with any legal subject worthy of extended reflection, the challenge is to discover a deeper and truer understanding that enables you to participate in the future development of the subject.