Document Type

Article

Publication Title

Loyola of Los Angeles Law Review

Abstract

The purpose of this Article is to begin investigating the importance of expressivism to any description of structural rights. Specifically, this Article will offer a potential response to the critics of the anti-commandeering rule. The prohibition on commandeering might be defensible, but only if the expressive dimension of governmental action is acknowledged. Part I reviews the conventional criticisms of the New York-Printz rule. According to most commentators, the anti-commandeering rule is ill-defined, ineffective, and arbitrary. Using the rule's perceived inadequacies as a reference point, Part II attempts to construct an expressive defense of the anticommandeering rule. The perceived inadequacies-particularly Printz's formalist tendencies-actually point the way to a potential functional defense by hinting at the expressive dimension of "state autonomy" and prompting an inquiry into why the expressive dimension of "autonomy" might be important. While the conclusions drawn in this part are necessarily tentative, I suggest that the anticommandeering rule might serve to protect the capacity of the states to act as political counterweights to the federal government by preserving and reinforcing public perception of the states as credible alternative political institutions. More importantly, by sketching the outlines of an expressive defense of the anti-commandeering rule, I hope to illuminate the long-overlooked importance of expressive theory to any defense of institutional structures, and to spark a discussion about its explanatory and justificatory power in the context of structural rights.

First Page

1309

Volume

33

Publication Date

2000

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