The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work for a living. So some time ago, the Mercatus Center nudged me to write up a more digestible version of the federalism argument—the political economy piece, sans the ConLaw and FedCourts jazz—for wider distribution. The product, a sixty-off page essay on “Federalism and the Constitution: Competition versus Cartel,” is now available from Mercatus. It’s a quick, convenient introduction to the subject. The essay contains a few new riffs. Among them: our upside-down cartel federalism has become an executive federalism: increasingly, federal-state relations are shaped in one-off…
Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism in general or the legal formalism with which conservatives have long been associated. The obvious, but shallower reason, for this clash, is that our cultural elites of every kind are overwhelmingly left-liberal. The deeper reason is that much of our culture is so driven by questions of personal identity and authenticity that it has trouble even comprehending the impersonality of the principles that are at the heart of republican constitutionalism.
The Originalist, a play about Antonin Scalia, at the Arena Stage illustrates both of these problems. The conceit of the play is that Scalia has hired a liberal law clerk, Cat, and they argue about different cases. But the author does not spend nearly enough time explicating originalism or for that matter any other jurisprudence to make the play a battle of ideals. As I say in my review for City Journal, the playwright John Strand is no Tom Stoppard and “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”
It almost goes without saying that play trots out the usual stereotypes of conservatives.
With the debate in the Wynn case over the Dormant Commerce Clause, Michael Greve has once again criticized originalists for their views on the matter. Michael likes the Dormant Commerce Clause. As a policy matter, so do I. What’s not to like about a doctrine that prohibits or restricts states from engaging in protectionist and other similar actions?
But I am not so sure how important the doctrine really is as a practical matter. Unlike other constitutional law doctrines, that of the Dormant Commerce Clause does not restrict Congress. If Congress wants to authorize states to engage in protectionist legislation, it can do so. And Congress has, most famously in the case of insurance with the McCarran-Ferguson Act.
Let us, for a moment, imagine someone who breaches the no-fly zone over the U.S. Capitol, calling forth bomb squads, triggering investigations at the FBI and NORAD, to protest perceived violations of the Second Amendment. Could the editorial pages of Washington find a limb high enough from which to hang him?
Probably not. But if a mail carrier pulls the same stunt to advocate restricting the First Amendment in the name of campaign finance reform—as gyrocopter pilot Doug Hughes did in April, for which he was indicted last week—his apologia is printed on the op-ed page of the Washington Post.
I’ve been reading With the Old Breed, Eugene Sledge’s classic account of his experiences in the battles of Peleliu and Okinawa. Many have come to know his story from the successful 2010 HBO Series The Pacific that relied in part on his diary of these two battles. Sledge enlisted for the duration of the war +6 months in 1943 and, owing to his intelligence, was part of a military training program at Georgia Tech. There he could have earned his degree and joined the war effort in a highly skilled position of some kind, remote perhaps from actual fighting. However, he withdrew from the program, as many of his fellow classmates did, and joined the Marines to fight as a rifleman. And so he did. The narrative “Sledgehammer” provides is compelling, horrific, and fascinating.
In Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg drew a sharp contrast between for-profit and religious organizations. Whereas for-profits are “organized to do business in the commercial world,” religious organizations, she said, serve citizens as believers. The strict separation between commerce and other spheres of civic life is also reflected in the common complaint that the Supreme Court in Citizens United wrongly reached out to extend First Amendment protection to for-profit corporations as well as the non-profit corporation actually at issue in the case.
The attempt to deprive for-profit enterprises of the rights to participate in political and civic life is characteristic of modern left-liberalism, which seems to believe that for-profit activity is inherently less civic-minded than not-for-profit endeavors. The distinction is not altogether new. For centuries nobles disdained those in trade and asserted that merchants should have fewer rights than they did. This stance is yet another instance where social democrats want to create a society based on status distinctions rather than on the exercise of equal legal rights.
But the distinction is not a sound one.
I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial. Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.
In my view, it is not clear that a strong civil jury trial right is desirable. My reasons are similar to those that have been voiced by critics over the years. The civil jury is expensive in terms of the time taken from jurors and to the litigating parties. The civil jury is often not sufficiently expert to adjudicate complicated facts. And the civil jury often does not apply the actual law but instead their own views of justice. While the civil jury is a check on judges, I am not sure it is worth it.
This is supposed to be about my job, not the meaning of life.
So you think those things are unrelated?
—Peggy and Don, Mad Men (“The Forecast”)
Now that Mad Men is over, we begin by remembering that it was a deeply political show. The lives of particular people were intertwined with the big events that moved the whole country—elections, assassinations, riots, and the noble national achievement that was the landing on the Moon (then thought to be the first giant step for mankind in the conquest of space). The show engaged in good old-fashioned American self-criticism, displaying the contradiction between our principles and our residual racism, sexism, anti-Semitism, classism, fundamentalism, and homophobia. It also celebrated the genuine meritocracy based on productivity that is American capitalism. Skill and talent were shown triumphing over especially WASPish prejudice, stupidity, and cruelty, even as there was an awareness of the relational costs of our individualistic and self-inventive understanding of freedom.
In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.
Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.
Thus, my criticism of the opinions in Wynne is quite different from Michael’s.