I thought Volokh readers might enjoy an email exchange I had earlier today with NYU lawprof Roderick Hills earlier:
Hi Randy –
I thought I’d send along a recent blog post at Prawsblog that gives you, Cato, Ilya, etc some flak in a good-natured way. (Brian Galle also has a post on health care federalism that might interest you). . . .
I am at the intermission of “The 39th Steps” (in DC) but managed to read your post before the play started. I am not sure when I will be able to reply, but wanted to note that I jointly submitted the Cato brief in Comstock that you like so much. And, in Raich, I also litigated a Ninth Amendment/Due Process Clause theory. It was the Ninth Circuit’s ruling for us that propelled the Commerce Clause theory to the Supreme Court (where we continued to assert Ninth Amendment/Due Process theory). When the Supreme Court declined to consider that theory, we then argued and lost this claim on remand to the Ninth Circuit.
Unlike some I could name, I feel free to employ the whole Constitution–including e.g. the Privileges or Immunities Clause of the 14th Amendment which qualifies state power–both the parts the Court is more inclined to accept and those parts which, for now, are “lost” but not yet repealed.
BTW, as a fan of the film I am really enjoying the play.
PS: Feel free to clean this up (I am using my cell phone) and post if you like.
I expect that Rick has probably been away from his PC while enjoying his Sunday and unable to add my message to his post. So, as comments on Prawsblawg seem not to be working or are disabled–oh, sweet irony, right?–I thought I would post it here (after very slight editing).
Rick closes his blog post with this:
In other words, the pro-federalism rhetoric of the Cato Institute [and me!] in Comstock may come back to haunt them in McDonald v. City of Chicago, where they filed an amicus brief favoring incorporation of the Second Amendment. As a federalism supporter who is lets his libertarian sympathies take second place to his love of subnational democracy, I certainly hope so.
Really? The Constitution has some protections of “federalism” in the form of enumerated federal powers. It also has some constraints on the police powers of the states such as the Thirteenth and Fourteenth amendments. I believe defenders of liberty are entitled to assert both sorts of clauses in litigation, and I do not see how invoking one should “come back to haunt” anyone when invoking the other. Unless, that is, one places one’s love of subnational democracy above both liberty and the Constitution.