High-Speed “Federalism” Goes Off the Rails

The Washington Post reports that federal-state plans for a high-speed train connecting San Francisco with Los Angles and points in-between may never come off the ground. In the face of public resistance, the state may have to decline some $3.5 billion in federal “stimulus” funds dedicated to an initial segment of the line, connecting the thriving metropolises of Bakersfield and Merced. We may be witnessing an outbreak of fiscal and institutional sanity.

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Schools for Misrule

I just listened to the episode of Law Talk on Schools for Misrule.  Richard Reinsch does a great job of interviewing Walter Olson on his new book.  After the podcast, I will definitely be putting the book on my reading list.  Olson covers the history of law schools and how they came to their present state, where so much of what goes on supports the progressive agenda.  Some of the story I knew, but much I didn’t, including the role of the Ford Foundation.  (Alas, the Ford Foundation was very busy in those days, including doing its part to convince the University of Virginia to trade away two Nobel Prize Economists (Buchanan and Coase) and another who deserves one (Tullock), and not even for a player to be named later).    Not to be missed is the discussion of Harold Koh’s introduction to the entering class of Yale Law students: “Welcome, to the Republic of Conscience.”  They didn’t explicitly say that kind of thing when I was there under Harry Wellington’s deanship, but it was in the drinking water nonetheless.

Originalism in Utah

Mike Ramsey, over at the Originalism Blog, makes reference to originalism for state constitutions.  One state constitution that appears to receive an originalist interpretation is the Utah Constitution.  Over the summer, I gave a talk on originalism, derived from this article, to the Utah Bar Association, and was pleased to discover that the Utah Supreme Court appears to have adopted an originalist methodology for interpreting its Constitution.  Here is an excerpt from the Supreme Court decision in American Bush v. City of South Salt Lake, 140 P.3d 1235 (2006):

The scope of Utah’s constitutional protections “may be broader or narrower than” those offered by the First Amendment, “depending on [our] state constitution’s language, history, and interpretation.” West, 872 P.2d at 1004 n. 4. The interpretation of the protections afforded by the Utah Constitution appropriately commences with a review of the constitutional text. Grand County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148 (explaining that “our starting point in interpreting a constitutional provision is the textual language itself”). While we first look to the text’s plain meaning, State v. Willis, 2004 UT 93, 100 P.3d 1218, we recognize that constitutional “language … is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them.” Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). We thus inform our textual interpretation with historical evidence of the framers’ intent. State v. Betensen, 14 Utah 2d 121, 378 P.2d 669, 669-70 (1963) (“[I]t is proper to look not only to the [constitution] itself, but to the background out of which it arose and its practical application in order to determine the [framers'] intent.”); see also Univ. of Utah v. Bd. of Exam’rs, 4 Utah 2d 408, 295 P.2d 348, 361-62 (1956) (“[I]f the words are ambiguous or their meaning not clear, then it is proper to look outside the instrument itself to ascertain what the framers meant by the language used.”).

In reviewing the history of Utah constitutional provisions protecting the freedom of speech, “we [have] look[ed] for guidance to the common law, our state’s particular … traditions, and the intent of our constitution’s drafters.” West, 872 P.2d at 1013. We also have looked to court  decisions made contemporaneously to the framing of Utah’s constitution in sister states with similar free *1240 speech constitutional provisions. KUTV, Inc. v. Conder, 668 P.2d 513, 518-21 (Utah 1983). In light of the fact that the Utah Constitution was “adopted … against the background of over a century of experience under the United States Constitution,” an understanding of the First Amendment contemporary to its adoption is also instructive. Id. at 521.

In summary, in interpreting the Utah Constitution, prior case law guides us to analyze its text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting. The goal of this analysis is to discern the intent and purpose of both the drafters of our constitution and, more importantly, the citizens who voted it into effect. It is from this latter class of individuals that the Utah Constitution derives its power and effect, and it is to them we must look for its proper interpretation.

What is most interesting here is the Court’s statement that it looks to the following sources at the time of the framing of the Utah Constitution: the common law, the state’s particular traditions, the intent of the constitution’s drafters, court decisions  in sister states with similar free speech constitutional provisions, and understandings of the United States Constitution.  This makes perfect sense from an originalist perspective, since these sources are likely to provide guidance as to the original meaning (under both an original intent and original meaning perspective).   While these sources differ from those considered when determining the original meaning of the United States Constitution, the obvious reason is that the Utah Constitution was adopted at a different time and in different circumstances.

The Upside-Down Constitution

The Upside-Down Constitution

Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com.

What exactly is “upside-down” about our Constitution? Here’s the general idea:

The United States Constitution rests on a handful of closely related premises. (Let’s call them “Madisonian.”) First: the Constitution has to serve the interests of citizens, not politicians and especially not state politicians. For an emphatic statement see Federalist 45 (To appreciate the depth of Madison’s conviction on this point, note that the verbal bombast in 45 is out of character for him. Even his letters to Dolley sound like they were written by her accountant.) Second: the Constitution has to make politics possible and discipline it against factional abuse. For the general theory see Federalist 10. Third, the Constitution has to ensure stability, both in the sense of institutional durability and of preventing political hyperactivity. For the perils of a “mutable government” see Federalist 62.

Now invert the premises. First: the Constitution must protect the “states as states”—that is, their political elites and hangers-on. Second: the Constitution should facilitate interest group politics. Third: the Constitution should be democratic (and since the demos is fickle, the Constitution should be unstable). There you have the actual Constitution, upside-down. Get used to it: it’s the New Deal Constitution under which we live.

Three quick, depressing notes about that mutt:

  • The premises of the New Deal Constitution are deeply entrenched. For the first, see any tribute to federalism’s “balance” from Felix Frankfurter to Anthony Kennedy. For the second, see Carolene Products (1938) and its progeny. For the third, see Justice Breyer’s Active Liberty, or Jeff Rosen’s The Most Democratic Branch, or any Supreme Court effusion on what it deems the country’s “enlightened consensus.”
  • The New Deal Constitution is not an exclusive playpen of left-ish “democratic constitutionalists”: many conservatives have been equally fulsome in embracing it. (Protecting “states as states” and making more room for unconstrained politics are key commitments of originalism and “judicial restraint”—no?)
  • The raw constitutional text doesn’t offer much of a defense against the inversion of the Constitution’s premises. (There’s no federalism clause, anti-faction clause, or stability clause.) So you can’t correct past constitutional error by stomping your feet on sola scriptura.

What one has to do is to recover the political theory behind the text and then try to rebuild the structure in that light, against that backdrop.

Will Wilkinson: Nonlibertarian or Liberal Libertarian

Recently, Will Wilkinson announced on the Bleeding Heart Libertarians Blog that he was no longer willing to call himself a libertarian:

 I’m not interested in identifying myself [as] a libertarian. Ideological labels are mutable, but at any given time they publicly connote a certain syndrome of convictions. What “libertarian” tends to mean to most people, including most people who self-identify as libertarian, is flatly at odds with some of what I believe.

Here are some not-standardly-libertarian things I believe: Non-coercion fails to capture all, maybe even most, of what it means to be free. Taxation is often necessary and legitimate. The modern nation-state has been, on the whole, good for humanity. (See Steven Pinker’s new book.) Democracy is about as good as it gets. The institutions of modern capitalism are contingent arrangements that cannot be justified by an appeal to the value of liberty construed as non-interference. The specification of the legal rights that structure real-world markets have profound distributive consequences, and those are far from irrelevant to the justification of those rights. I could go on.

Given the prevailing public understanding of “libertarianism,” this ain’t it and I’m no libertarian. And it’s not at all clear to me what is to be gained by trying to get people to retrofit the label to fit my idiosyncratic politics. At any rate, that’s not a project I’m interested in. I am interested in what it means to be free, and the role of freedom in flourishing or meaningful or valuable lives.

I can certainly sympathize with Wilkinson’s frustration with the tendency among many to view libertarians as a single monolithic group.  Moreover, I agree entirely with some of the “non-standardly-libertarian things” he lists and agree at least in part with much of the remainder.  Back in the day, I used to be a Nozickian libertarian who fit pretty well with the standard definition of the libertarian position.  But over the years, through the influence of Friedrich Hayek, Richard Epstein, and others, I became a consequentialist, more moderate, and more conservative.  So today I am something of a moderate, conservative libertarian.  But so what?  I still regard myself as a libertarian, although of a different type than the old me.

I think Wilkinson’s response to the monolithic understanding of libertarianism is unproductive.  The better response is two fold.  First, one should feel free to describe oneself as hyphenated libertarian – in Wilkinson’s case, calling himself a liberal libertarian would do just fine (even the less euphonious “liberaltarianism” that Wilkinson previously employed might be ok).   Second, one should insist that “libertarian” is not a monolithic political position.  That there are different kinds of libertarians, just as there are different kinds of conservatives (economic, social, defense hawks) and different kinds of liberals.  There are vigorous libertarians and moderate libertarians; liberal libertarians,  conservative libertarians, and left libertarians; deontological libertarians and consequentialist libertarians.

Not only do I think it would be accurate for Wilkinson to call himself a liberal libertarian,  I also believe there is an important strategic reason for him to do so.  Libertarianism is a minority – perhaps a small minority – position and it can use all the support it can get.  When libertarians are a large minority or a majority, then they may have the luxury of focusing more on their differences.  But for now it is important to place the interests of liberty above having what one regards as the perfect name for one’s position.  No one wants to be in the position of sounding like the People’s Front for Judea.

Introducing Myself

For my first post, I thought I would introduce myself.  I have lived in blue states my whole life – growing up in NYC, living in Washington DC after law school, and then moving to California to teach.  While I had pretty left wing views growing up, I moved to the right before entering college, and have stayed there ever since.

I went to law school at Yale, where I also received another degree in law and political theory.  After law school, I clerked on the Third Circuit, worked in private practice for Ted Olson, and served in the Office of Legal Council of the Justice Department that was headed by Attorney General Meese.

As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law.  In recent years, I have focused mainly on constitutional originalism.  At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.  I have also been blogging at the Center’s Originalism Blog, where I will continue to blog from time to time.

At the Liberty Law Blog, I plan to continue my pursuits, with many posts on originalism, constitutional law, and the moderate version of libertarianism to which I subscribe.  I am looking forward to it.

Hello from Michael Greve

As my children will readily attest, I’m a techno-idiot and a stranger to the internet. It takes a lot to drag me into the blogosphere.  However, Liberty Fund’s proposal to run this blog with my dear buddy Mike Rappaport was too good to pass up.

The point of this enterprise, as I see it, is to revitalize and elevate a constitutional debate that, in my estimation, has gotten bogged down. On the political Left, constitutional theory has to satisfy a vast range of “progressive” policy commitments before it can get a hearing. On the Right, a well-intentioned insistence on interpreting the Constitution one clause at a time has been taken to excess. In the process, it has crowded out a proper and urgent appreciation of the Constitution’s broader purposes—its “genius,” as John Marshall used to say.

Of course: the constitutional text has to count. And of course: judicial flights into untethered, postmodern “values” and aspiration is a constitutional problem. But as to the former, you can’t make sense of the bare-bones text without some deeper theory of what the thing is supposed to do. As to the latter, judicial imperialism isn’t our only constitutional problem.

The nation’s fiscal ruin is a constitutional problem. The relentless march of the rent-seeking society is a constitutional problem. The sprawl of a feckless, meddlesome, poorly monitored administrative state is a constitutional problem. So is the demoralization of our commerce.

I’m not sure what, if anything, can be done about those problems. Plainly, though, they are upon us, and they merit more sustained attention—as constitutional problems—than they have received. Thus, my contributions to this blog are aimed at readers who are interested in (and, if they haven’t spent the past decades in a coma, worried about) our legal and especially our constitutional order at a level beyond interpretation.

As Fred Smith, ingenious President of the Competitive Enterprise Institute, likes to say: “The Constitution isn’t perfect, but it’s a lot better than what we have now.”

Schools for Misrule: Legal Academia and an Overlawyered America


Harold Koh, former Dean of the Yale Law School and current legal adviser to the Department of State, annually exhorted entering Yale Law students with the phrase, “Welcome, to the Republic of Conscience.” Walter Olson, Senior Fellow of the Cato Institute, argues in his new book Schools for Misrule: Legal Academia and an Overlawyered America, that the “Republic of Conscience” Koh believes in is best understood as an ideological educational entity that teaches an unconstrained understanding of the power of law and government. This revolution in legal pedagogy has mightily contributed to the numerous changes that have swept self-governing institutions, Olson argues. American legal education has not for some time understood its mission to be the mere preparation of future lawyers. Instead, primary stock has been placed in inculcating the notion that law and litigation are primary opportunities to advocate for social change according to progressive ideals.

Freedom Betrayed: Herbert Hoover’s Secret History of the Second World War and Its Aftermath


Held within the vault of the Hoover Institution for decades, Freedom Betrayed: Herbert Hoover’s Secret History of the Second World War, presents the former president’s thoughts on America’s involvement in World War II and his reasons for believing that American leadership failed miserably in postwar diplomacy. George Nash, author of a previous biography of Herbert Hoover, is the editor of Freedom Betrayed, and joins Liberty Law Talk for a discussion on the ideas and observations that Hoover made in the book.