Liberty Law Blog

Reappraising Herbert Hoover

by Stephen A. Schuker / 1 Comment

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Editor’s note: Stephen Schuker, a first-time contributor to Law and Liberty, assesses in this post the lengthy volume Freedom Betrayed: Herbert Hoover’s Secret History of the Second World War. Published in 2011, the book contains  Herbert Hoover’s arguments that America’s commitments to individual and economic liberty and restrained foreign policy were betrayed by the Roosevelt administration and in subsequent postwar domestic and foreign policies. For a conversation with George Nash, editor of Freedom Betrayed and author of the book’s excellent introduction, about Hoover’s political and humanitarian career and his motivations in writing this grand book see this Liberty Law Talk podcast.

 

On 4 March 1933 Herbert Hoover accompanied his successor to the Capitol for the swearing-in ceremony.  The two men maintained a frosty silence.  As the economy spiraled down during the presidential interregnum, Franklin Roosevelt had refused to cooperate with the outgoing chief executive in any way.  Hoover then left for Union Station, rejected by the American people, seemingly a broken man.  Worse was to come.  When Hoover boarded the train, his secret service detail melted away.  A mob assailed him when he reached New York.  Taking up residence at the Waldorf-Astoria, he found his phones tapped, his mail opened.  Several members of his administration would shortly receive unwelcome scrutiny from the IRS.  Even more galling, Roosevelt adopted some of Hoover’s policies, but accorded him no credit.  The Republican Treasury secretary stayed on sub rosa and reopened the banks, but no one appeared to notice who had expertise and who did not.  A lesser man than Hoover would have collapsed.  Instead, Hoover rallied, sustained by his indomitable spirit and iron self-discipline.  Over the next thirty-one years, he published more than thirty books.  When Roosevelt’s biographer inquired about the secret of his productivity, Hoover replied simply: “I outlived the bastards.”

Except when giving speeches or supervising the growing collections of the Hoover Institution at Stanford, the ex-president sat tethered to his desk twelve or thirteen hours a day.  After his wife died, he often rose in the middle of the night to labor two more hours.  He kept six secretaries and a Ph.D. research assistant fully employed.  Having caught the spirit of the age in his 1922 volume, American Individualism, a paean to the country’s exceptionalism and voluntarist tradition, Hoover followed in 1934 and 1936 with trenchant analyses of what he called New Deal collectivism.  As Hoover saw it, the intrusion of the Leviathan state into every corner of American life would lead sooner rather than later to a curtailment of personal liberties and economic freedom.  He thus anticipated the critique of central planning that Friedrich Hayek in ­The Road to Serfdom would later embed in a formal methodology.  Hoover also churned out three thick volumes of memoirs, a four-volume chronicle of his efforts to provide food relief during and following the world wars, two studies of Woodrow Wilson, innumerable collections of speeches, and even a book on fishing.  Continue Reading →

Next on Liberty Law Talk: A Conversation with Gordon Lloyd on the American Founding and Slavery

by Richard Reinsch / 0 Comments

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On the current podcast at Liberty Law Talk, I discuss with Gordon Lloyd the problem of slavery and the ratification of the Constitution. Much of the interview considers the historical scholarship that argues the Constitution is fundamentally compromised because of the protections it afforded slavery. Lloyd, however, provides interesting evidence from the Constitutional Convention and the state constitutional ratifying conventions that disputes the view that the “Constitution is a pact with the devil.” We also consider the underpinnings of the Dred Scott decision and the Missouri Compromise.

Jonathan Mitchell on Stare Decisis and Constitutional Text

by Mike Rappaport / 0 Comments

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Jonathan Mitchell’s recent article on Stare Decisis and Constitutional Text has received some attention.  See here for the article’s abstract and here for a short post on it.  While I have not studied the article carefully, I have digested its basic argument.  Mitchell argues that the Supremacy Clause only establishes that the Constitution, federal statutes, and treaties are supreme law of the land.  While the Clause therefore requires that these sources of law take priority over nonsupreme sources, such as state law, Mitchell maintains that it does not specify any rule of priority as between these supreme types of law.  Mitchell also argues that judicial precedents are conspicuously absent from the listed types of supreme law.  Therefore, such precedents are nonsupreme law that cannot take priority over the Constitution, federal statutes, or federal treaties.

Because Mitchell concludes that the Constitution is silent as to which of the three types of supreme law takes priority, the Courts are entitled to choose to which one to give priority.  When they choose one type over another (such as the Constitution over federal statutes), they are not acting unconstitutionally.  However, they could have chosen a different order of priority (such as federal statutes over the Constitution).

From this, Mitchell reaches some pretty unusual conclusions:

First, the Supreme Court cannot strike down federal statutes as unconstitutional based on a precedent that erroneously interpreted the Constitution.  That would place a nonsupreme law (precedent) over a supreme law (a federal statute).  But the Court can uphold a federal statute based on an erroneous precedent.  The Constitution and federal statute are tied as supreme laws and therefore the Court has discretion to pick which one to enforce.

Thus, the Supreme Court can choose to follow erroneous precedents that expanded the Commerce Power during the New Deal.  But, if the application of the Equal Protection Clause to the federal government is erroneous, the Court cannot follow that precedent, because that would place a nonsupreme law (precedent) over a supreme law (a federal statute).

Second, the Supreme Court cannot uphold as constitutional a state law based on a precedent that erroneously interpreted the Constitution.  But the Court can strike down a state law based on a precedent that erroneously interpreted the Constitution.  Neither the state law or the precedent is supreme law, so they are on a par and the Court can pick to which one to give priority.

Thus, if Home Building and Loan v. Blaisdell is an erroneous precedent that mistakenly allows contract impairments, the Court cannot allow a state law that effects such an impairment.  That would permit a nonsupreme law (state law) to take priority over a supreme law (the Constitution).  But if Roe v. Wade is an erroneous precedent, the Court can strike down a state law that restricts abortion based on Roe.  That would involve two nonsupreme laws (precedent and state law) and the Court could decide to which one to give priority.

Continue Reading →

The Twilight of Administrative Law?

by Michael S. Greve / 2 Comments

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Close to a year ago, Judge Douglas H. Ginsburg delivered a wonderful speech in acceptance of the Georgetown Federalist Society Chapter’s Lifetime Achievement Award and on the occasion of his 25th anniversary on the federal Court of Appeals for the D.C. Circuit. His remarks, recently published in the form of a law review article, reflect the man—not in all respects (the article is short, the judge isn’t) but in most: gracious, erudite, numerate, thoughtful, insightful, witty, generous. Ten minutes worth of anecdotes would have sufficed for the occasion. Instead, Judge Ginsburg conducted serious research on the trajectory of appellate administrative law over a quarter-century and presented his findings in a series of intriguing charts. His summary:

 Looking back over these last twenty-five years, from a statistical point of view several things are apparent. The D.C. Circuit has fewer administrative lawcases and yet a larger share than ever of all the administrative law cases in the federal courts of appeals. The number of rehearings en banc in the Circuit has decreased dramatically over time, and we now have very few; we also have few dissenting opinions, and shorter opinions with far fewer footnotes than in decades past. Consistent with these developments, the level of collegiality has increased steadily over the years and continues to be a robust and pleasant feature of service on the court.

This isn’t just the life and times of the D.C. Circuit; potentially, it’s a very big deal, though perhaps not entirely in the way intended by Judge Ginsburg. Continue Reading →

Competition, Federalism, and the Founders

by Michael S. Greve / 1 Comment

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Mike Rappaport’s April 4 post on “The Founders and Competition Between the States” raises a slew of interesting issues; ditto Hans Eicholz’s thoughtful comment. Some members of the Founding generation, Federalists as well as Antifederalists, had an inkling that federalism (of a certain kind) would entail competition (for productive citizens, taxes, etc.) among the states. But they never discussed the question in any systematic fashion. Modern theorists argue that competition—mobility, exit, and choice—is the principal way in which federalism protects liberty. There is barely a trace of this thought in the Founding debates. Why is this—and what business do we have now to read “competition” into our understanding of the Constitution’s federalism (as I emphatically think we should, see The Upside- Down Constitution)?

I think the Founders were actually very well aware of jurisdictional competition. How could they not be, in a country of refugees, immigrants, and constant westward migration? Madison studied out of state, at a college of a denomination not his own. Hamilton was an immigrant, and his friends traded and invested on a continental scale. And absolutely everyone was aware of state “competition” in the form of protectionist tariffs and extraterritorial taxation. (This is what Publius meant by “competitions of commerce.”) The riddle is not that the Founders somehow ignored mobility and exit; it’s that they never connected that awareness to their federalism theory.

The answer to that perplexity, I think, is that in a very real sense, no one had a fully developed, systematic theory of federalism with which a theory of competition might connect. The Federalist has a very powerful theory of the “extended republic.” Ask, though, what states might be good for in that enlarged sphere (except as administrative subunits of the national government): the only coherent answer is that states will provide a fine platform for armed rebellion—a kind of domestic 1776, should the national government turn tyrannical. Nor did the Antifederalists have a federalism theory; all they had was a theory of small states.

Federalism and competition enter simultaneously, through a second-best backdoor: if we must have (what we now call) federalism as the price of union, Publius insists, let it be a “compound republic,” not an “imperium in imperio.” Make the national and state governments each tax and regulate citizens directly, in separate spheres; organize relations among states on principles of free trade, free ingress and egress, and non-discrimination; and make those rules enforceable by a federal judiciary, armed with a Supremacy Clause and appropriate jurisdiction. Lo and behold, all those rules are right there in the Constitution or (as with limited, enumerated powers) plainly implied by it; lo and behold, they conform in all particulars to the necessary and sufficient conditions of competitive federalism, as expounded by contemporary political economists. The Founders got all the pieces of a competitive federal architecture right; they just lacked a term for it.

More on competition as a constitutional principle later this week.

The State and Race Equality

by Richard Reinsch / 0 Comments

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From Lee Strang’s excellent review of Richard Thompson Ford’s Rights Gone Wrong: How Law Corrupts the Struggle for Equality:

After reading, in the first four chapters, Ford’s relatively detailed description of the civil rights movement’s pathologies, I was surprised by the relative thinness of his recommendations.  Indeed, Ford recognizes that his prescriptions are insubstantial stating that “begin is all I aspire to have done in this book.”  However, Ford’s move toward an administrative solution is open to obvious counter-arguments that he neither raises nor addresses, and Rights Gone Wrong would have been more persuasive had he done so.  Relatedly, Ford’s continual call for greater use of prudential judgment is hard to criticize in the abstract, so one is left wondering what that would concretely entail, and Ford’s failure to engage in detailed recommendations undermines his claim’s power.

Ford also left the libertarian in me wondering why, given his detailed indictment of our current civil rights regime, he did not at least raise the possibility that the way out was a return to the free market.  For Ford, the pathologies he identified are the result of poorly crafted and implemented civil rights legislation.  The solution, according to Ford, is better civil rights legislation and implementation.  For instance, Ford suggests that the field of employment discrimination should utilize “robust administrative regulation in the public interest.”

This lacuna is evidence that Ford’s vision is cabined within the walls of governmental solutions.  Others, including, for instance, Richard Epstein, have prominently argued that competitive free market mechanisms do a better job of eliminating irrational discrimination, at least in some contexts, than federal antidiscrimination laws.  These are powerful claims that, at least at first blush, are not subject to the problems Ford identifies with the current approach, and yet, Ford does not engage them.  This gap is doubly-odd because Ford recognizes that the political process—and hence its legislative product—is subject to malfunction.  He argues, for instance, that the Age Discrimination in Employment Act of 1967 is an example of “interest-group politics,” and that this origin led to the Act’s perverse effects.

More on Judicial Activism

by Mike Rappaport / 2 Comments

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Over at the Originalism Blog, Mike Ramsey responds to my engagement with his prior post on judicial activism.  Mike has two main arguments for his understanding of judicial activism as the strong exercise of judicial review rather than as an unjustified exercise of judicial review: (1) people disagree on what is an unjustified exercise of judicial review, and (2) judicial restraint is the opposite of judicial activism and judicial restraint is not the same as following the law.  In the interests of not excessively prolonging the debate, I will try to keep my reply brief as possible.

My main response is that Mike doesn’t engage with my main prior point, which is that judicial activism has a variety of meanings — as Larry Solum says — and that it would confuse people for me to use the term to describe originalism (since they would seem to think I was criticizing it).  It is better to use a new term, especially because judicial activism is so contested.  I suggested strong and weak exercises of judicial review, but other possibilities may be better.

Mike is correct that judicial restraint, as the opposite of judicial activism, appears to support his understanding of judicial activism, but all that shows is that the judicial activism/judicial restraint dichotomy is part of the understanding of judicial activism that he supports.  That does not mean that it is the best understanding of judicial activism.  But even the support he derives from judicial restraint is not that strong.  People who defined judicial activism as the opposite of judicial restraint favored  judicial restraint and therefore part of their definition of judicial activism was improper judicial action.  If we don’t agree with them about recommending judicial restraint, there is a good reason not to confuse matters by using judicial activism as the opposite of restraint.

Finally, I was curious how the dictionary defined judicial activism.  According to Wikipedia, Black’s law dictionary defines it as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”  The Free Dictionary online defines it as”an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court).”  Other definitions on line are similar.  These are obviously not dispositive as to the proper definition, but they do suggest the confusion that would be created by an originalist describing originalism as judicial activism.

Judicial Activism

by Mike Rappaport / 3 Comments

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Over at the Originalism Blog, Mike Ramsey claims that judicial activism should be defined as “as judges being ‘active’ in the sense of aggressively intervening against the judgments of other branches of government (in contrast to judges being ‘passive’ — or  ’restrained’ – and generally deferring to the constitutional judgments of other branches).”  Under that view, originalism will sometimes require judges to be activists by striking down legislation that violates the Constitution’s original meaning.

I agree that Mike’s proposed meaning is one meaning of judicial activism.  But I don’t agree that this is the only one or the best one.  I (and many others) rountinely use judicial activism to mean “aggressive use of the judicial power that is not justified by the law.”  I don’t know why I cannot continue to use it that way.

Mike might argue, as his post implies, that the term “activism” merely suggests strong action, not illegimate action.  But the words in a legal (or political) term do not necessarily define its meaning.  To take an example from Mike’s scholarship, “to declare war” appears to suggest a statement in words, but its usage at the time of the Constitution indicated that war could be declared by words or actions.  The same holds for judicial activism — usage allows it to be used for illegitimate aggressive action.

Now, Mike is certainly correct that our debates would be better if terms had clearer meanings.  But I don’t know why that means I have to give up my usage of judicial activism, especially because that would harm — rhetorically, at least — the case for originalism.  Many people continue to associate judicial activism with bad action.  If I say, well originalism sometimes involves judicial activism, that would mislead some people to believing that I was criticizing originalism.

If we want to clarify matters, lets use new terms.  That is, after all, why people often come up with new terms.  One possibility would be to borrow the terms “strong” and “weak” from the presidential context, where we refer to a strong President or a weak presidential action.  We could then refer to aggressive judicial action as “strong judicial action” without necessarily praising it or criticizing it. Probably there are better terms that could be found.

In the end, I agree with Mike that clarity in this debate would be an improvement — I just don’t believe that the way of securing such clarity is by defining judicial activism to eliminate my preferred usage of the term.

The Founders and Competition Between the States

by Mike Rappaport / 5 Comments

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At the Originalism Blog, Mike Ramsey discusses the justifications for federalism and how they connect with the protection of individual liberty.  He writes about how the enactors of the Constitution mainly supported limited federal powers on the ground that the states would be closer to the people and would more reflect their local values.  By contrast, he notes that most defenses of federalism today focus on competition between the states and how that places a check on the states from behaving improperly.

I agree with Mike about this, but I should also note that at least some of the people at the time of the framing appreciated something like the competition between the states rationale.  In my article, Reconciling Textualism and Federalism, 93 Nw. U. L. Rev. 819 (1999), I write that “at least some of the Founders believed that competition between local governments would deter them from behaving oppressively.”  I then cite to an Antifederalist, A Maryland Farmer, who wrote: “In small independent States contiguous to each other, the people run away and leave despotism, to reek its vengeance on itself; and thus it is that moderation becomes with them, the law of self-preservation.”  See 5 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 5.1.53. 93:819 (1999).   A Maryland Farmer is normally thought to have been the nonsigning member of the Philadelphia Convention, John Francis Mercer.

Thus, at least some people at the time of the Framing understood the benefits of competition between the states.  In those days, however, relocation from one state to another was relatively rare (although some important framers had done it, such as both Gouverneur Morris and Benjamin Franklin) and therefore it might have seemed like a less important argument.

It is interesting to reflect on how changes in technology interact with constitutional arguments.  That there is more communication and trade between people of different states today is often thought to suggest that more national authority is justified now than at the time of the Framing.  And, depending on the version that one adopts of this argument, that may be true.  But the change in technology also suggests that competition between the states is now a stronger argument for federalism than it used to be.

Freedom of Speech Wanes in Britain

by David Conway / 19 Comments

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When last month during an FA Cup quarter-final, the 23 year old Zaire-born former under-21 England international footballer, Fabrice Muamba, collapsed after a heart attack, a palpable wave of sympathy broke out for him among supporters of both teams at the north London stadium where the match was being played.

Unfortunately, that wave of sympathy did not extend to one inebriated 21 year old British biology undergraduate who had been following the match. He promptly tweeted a disgusting and highly abusive comment about the incident, followed by still more disgusting responses to those who tweeted to him in protest at what he had written.

His original tweet ran: ‘LOL [Laugh out loud) **** Muamba, He’s dead!’ Continue Reading →

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