The Rules of Everyday Life

Abstract

The author argues that the rules prescribing and proscribing our daily conduct have, in the last two centuries, become increasingly federal in origin. He argues that the paradigms that sought to separate national from local concerns were directed at federal power and not at the nature of rules. Moreover, he suggests that the paradigms developed for separating what was a purely local concern from what was a concern fit for federal regulation were too abstract and had no rigor in separating federal lawmaking from intrusions into matters that should be left to the states. He suggests that in addition to consideration of institutional competencies and economic costs, attention be given to ethical theory, especially to recognition of community conceptions of the good and to the autonomy of communities and individuals in choosing the conceptions that govern them.

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References

1. By the mid-1990s, “the accumulation of statutes had reversed the pattern that held for the first century of the nation: the bulk of the federal criminal code now treats conduct that is also subject to regulation under the states' general police powers.” Sara Sun Beale , “Federalizing Crime: Assessing the Impact on the Federal Courts,” this issue of The Annals of the American Academy of Political and Social Science.

2. United States v. Lopez, 115 S. Ct. 1624 (1995), was decided after this article was written. While the decision is the first in nearly sixty years to declare unconstitutional a federal criminal law enacted pursuant to authority under the commerce clause, it changes nothing in the article. The Court continues to use the same unhelpful analysis it has in the past, with the same mantra of “a distinction between what is truly national and what is truly local.” A different approach is needed, perhaps the one suggested in this article.

3. Ed Gillespie and Bob Schellhas , eds., Contract with America (New York: Times Books, 1994), pp. 9-11. Examples of further federalization are the Taking Back Our Streets Act, as well as state civil law subjects in the Personal Responsibility Act, the Family Reinforcement Act, and the Common Sense Legal Reforms Act.

4. Carter v. Carter Coal Co., 298 U.S. 238, 327 (1936) (Cardozo, J., dissenting in part and concurring in part) (“But a great principle of constitutional law is not susceptible of comprehensive statement in an adjective.”).

5. See, for example, Judicial Conference of the United States, Committee on Long Range Planning , Proposed Long Range Plan for the Federal Courts (Washington, DC: Judicial Conference of the United States, 1995).

6. New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).

7. “Moses and Modernism,” Michigan Law Review, 92:1347 (1994).