Liberty Law Blog

Originalism and Judicial Review – Part II: The Textual Arguments

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For the first post in this series, see here.

This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.

It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature? Continue Reading →

Section 4 of the Fourteenth Amendment and Compensation for Emancipation of Slaves

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Today, one of the least-discussed aspects of the Emancipation Proclamation is whether it gave rise to a takings claim. The Proclamation was enacted under Lincoln’s war powers, whereby he seized property (slaves) in the rebel states, and then emancipated them. Apparently, many southerners sought to raise takings claims against the Federal Government. Similar claims were lodged following the ratification of the 13th amendment. At the time, Congress estimated that the cost of compensating the emancipated slaveowners was somewhere between $1.6 billion and $2 billion, roughly half of the total value of all property (real and personal) in the south.

Section 1 of the 14th Amendment would make all slaves born or naturalized in the United States into citizens of the United States, and of the state in which they resided. This would nullify Dred Scott, and vitiate any claims that slaves could still be held as property. But what about any outstanding claims that resulted from the Emancipation Proclamation, or the 13th Amendment?

In direct response to this concern, the framers of the 14th Amendment added this sentence to the end of Section 4.

“[N]either the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave.”

In other words, this provision would have mooted any possible takings claims against the United States, or a state, as a result of emancipation of slaves. At the time, because the states were given an all-or-nothing ultimatum for ratification, this provision received little debate. It recognizes that the framers of the Amendment were concerned about the ramifications of takings claim. Imagine if a single judge found a taking, and that issue would go up to the Supreme Court! The opinion, if it found a taking, would have to reaffirm the principles of Dred Scott that slaves prior to the 14th Amendment were in fact chattel.

As Professor Aynes notes in his article, “Unintended Consequences of the Fourteenth Amendment“:

Even with Salmon P. Chase, a leading antislavery lawyer and the national architect of the antislavery movement’s legal strategy, as its Chief Justice, the memory of Dred Scott was too vivid in the mind of the public to erase the possibility that a suit by even a single former slaveholder might result in a judgment against the United States for taking property without just compensation. Moreover, the perpetual fear of an alliance between former slaveholders and their former allies, northern Democrats, provided a strong incentive to lay this question to rest by a constitutional amendment. The prospects of risking between $1.5 and $2 billion in debt, when weighed against complying with common law jury provisions, would make the latter seem petty. Faced with such a choice, even a ratifier who disdained common law jury provisions would see ratification as a “greater good.”

This is also an example of an Amendment specifically modifying an earlier Amendment, such as how Section 5 of the 14th Amendment impacts the 10th and 11th Amendments. Here Section 4 of the 14th Amendment seems to create a carveout from the 5th Amendment’s takings clause.

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Les Maladies and Le Monde

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When I was a student, my friends and I would stay up all night to discuss such questions as the truth or otherwise of determinism. Was the entire future of the universe immanent in its past, indeed had everything been determined from the very foundation of the universe (if it had one)? If so, what of our supposed freedom? Continue Reading →

Dianne Feinstein: Whose Ox is Being Gored?

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Recently, Senator Dianne Feinstein objected to CIA surveillance of Senate committee staffers who were looking through classifed documents relating to the agency’s previous interrogation and detention practices.  Feinstein, who has generally been supportive of NSA monitoring, has been criticized on the ground that she only objected to government surveillance when it affected her.

Feinstein has now opened herself up to more criticism of this sort.

In an interview with CBS’s “60 Minutes” that aired on Sunday night, the California Democrat said a drone spied into the window of her home during a protest outside her house, and that privacy concerns for the technology were “major.”  Feinstein appeared as a pro-regulation voice in a Morley Safer segment on the legal questions surrounding the commercial drone industry.

“I’m in my home and there’s a demonstration out front, and I go to peek out the window and there’s a drone facing me,” she recalled.  Demonstrators from Code Pink who were protesting government surveillance at the time, said the device was merely a toy helicopter, but Feinstein used the instance to sound off about the importance of controlling the technology through government regulation.

I am sure there are other ways of viewing these events, but they do seem to be an example of a privileged person getting upset only when her privileges are affected.  The most hopeful consequence would be if her responses to these intrusions operate to protect not only her privileges but everyone’s.  Here’s hoping.

The Problem of Bureaucracy

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Bureaucracy helps enable both larger and more left-wing government because that kind of government accords with the preferences of most bureaucrats and makes them better off. Classical liberals and conservatives neglect this problem at their peril. Even when the President leans to the political right, the permanent government of the left provides a powerful counterweight to the realization of his objectives.

The political beliefs of the median federal government employee lie to the left not only of the median Republican, but also the median Democrat. This imbalance should not surprise, because individuals enthusiastic about using government power will self-select to become government regulators. In some departments, like the Environmental Protection Agency or the Civil Rights Division at the Department of Justice, the effect is particularly pronounced. Missions of such intensity often attract those of missionary zeal.

It might be thought that an administration in favor of more limited government could recalibrate  the bureaucracy during their tenure by hiring more conservative government workers. Continue Reading →

Tesla, Christie, and Competition

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A New Jersey regulatory commission, with Chris Christie’s appointees on it, has announced that Tesla may not sell its cars in New Jersey because the company does not use licensed automobile dealers. Tesla argues that the policies underlying the regulation are not applicable to it and plans to fight the ruling.

The notion that automobile companies should be forced to use dealers to sell cars is absurd. Telsa claims, perhaps as a strategic argument, that the law made sense back in the old days. Tesla says that in the past the car companies had attempted to offer bad deals to the dealers, based on the car companies’ leverage (because the dealers had no where else to go). Hence, the state laws that protected car dealers were necessary. But Tesla argues that nothing like this is applies to it, since it has never used dealers.

I am skeptical of this argument. In the middle of the century, vertical arrangements were often misunderstood (as were markets generally). If the car companies sought to treat their dealers unfairly, that would harm their reputation and make it more difficult for them to have future arrangements with dealers. Moreover, if a car company offered too little, then the dealer could attempt to become the dealer of another company. Further, even if the deals were unfair, there were ways in the future to protect the dealerships, such as using long term contracts and other mechanisms to protect dealers from exploitation by car companies. It would not make sense to establish a law that would harm the public in the future by interfering with competition. Continue Reading →

Lawlessness, Small and Large

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A reporter for The Nation magazine looking for a partisan “color” story cornered me at the 2014 Conservative Political Action Conference, asking what I thought of Chris Christie. I took the chance to remind his magazine’s audience that both parties in American politics have been adopting similar habits of lawlessness, and that continuing to confirm those habits has dire consequences. Continue Reading →

Economic Liberty–Part of the Constitution’s DNA

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Previously I praised America’s Unwritten Constitution by Akhil Amar and then offered my first reservation about the book. My second reservation is its treatment of economic liberty. Professor Amar sees the greatness of the Constitution in the unfolding of democracy and equality. But economic liberty is also in the Constitution’s DNA and yet he seems to leave it out of the American story.

I also thought unfounded one historical claim, which itself surprising, because Professor Amar is generally very reliable. In a discussion that attacked theories of interpretation that would justify reasoning striking down economic regulation, as in Lochner v. New York, he wrote: “The 1913 ratification of Federal Income Tax Amendment, one of the most notable populist events of the twentieth century, blessed redistributive economic policy by endorsing a tax that everyone understood would likely feature a progressive structure taxing the wealthy at steeper rates than the poor.” One does not have be a libertarian to wonder whether the proposition that this amendment blessed redistributive economic policy in general is an overstatement. In fact, the 16th amendment can be seen as attempt to find an stable source of revenue other than tariffs, which were not only inefficient but often regressive, rather than a general endorsement of redistribution.

In any event, regulatory powers and taxing powers are different constitutional concepts. Economists then and now almost universally see redistribution through taxation as a superior policy, because it does not lead to as much distortion and loss of innovation as does redistribution through regulation. Thus, the 16th amendment cannot be said to extinguish whatever constitutional restrictions there are on redistribution through regulation.

More generally, our Constitution protects economic freedom in many ways. Continue Reading →

Friday Roundup, March 14th

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  • Hank Clark of the BB&T Center for the Study of Capitalism at Clemson provides our feature Books essay this week on George Smith’s The System of Liberty: Themes in the History of Classical Liberalism.

Might inequality in the United States be less damaging than it is in Europe because the very rich were not born into wealth, but earned their money by creating new products, services and technologies?

Piketty answers:

This is what the winners of the game like to claim. But for the losers this can be the worst of all worlds: They have a diminishing share of income and wealth, and at the same time they are depicted as undeserving.

Henderson notes that Piketty “. . . did not answer what I think was Porter’s implicit point–the large social value of the incentive to innovate–but also Piketty didn’t even answer the narrow question asked: is inequality less damaging because many very rich people earned their money by innovating?”

Judicial Candor and the New Deal Settlement

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One of the interesting aspects of Supreme Court opinions is how much or little candor they exhibit. Put differently, are the justices being honest about the principles that actually govern their views?  Originalists often argue that judicial nonoriginalists fail to acknowledge that they are not conforming to the original meaning (except when such nonoriginalist is justified by precedent or practice). While I think this is largely true, nonoriginalists do signal their views. Justice Brennan or Justice Breyer indicate that they do not feel bound by the original meaning, but still they don’t acknowledge that they are departing from the original meaning in specific cases.

In terms of candor, it is interesting to consider two areas where the New Deal Court stopped enforcing constitutional limits: limits on Congress’s authority under the Commerce Clause and the Necessary and Proper Clause, and limits on Congress’s power to delegate legislative power to the executive.  In both cases, prior to the New Deal, the Constitution was thought to place significant limits on Congress’s authority. But after the New Deal, the Court stopped enforcing these limits. In the case of the Commerce Clause, the Court is now willing to enforce some limits again, but not in the area of the nondelegation doctrine.

Interestingly, though, during the post New Deal era, the Court never announced clearly that it was no longer enforcing the limits. Instead, it simply applied a doctrine that through a variety of devices, such as the rational basis test, always led to the result that Congress had the necessary authority. Sophisticated observers, of course, acknowledged that there were no limits on Congress’s authority. For example, I was taught this in law school. But the Justices never acknowledged it forthrightly.

In a way, this is a bit peculiar. If one wanted to cement the doctrine that Congress was not subject to limits, one way to do so would be to openly announce this doctrine. In that way, it would be harder for future courts to depart from the doctrine. For example, U.S. v. Lopez was able to exploit the fact that the Court had never asserted that there were no limits on the Commerce Power. Yet, the pre-Lopez Court never said so clearly.

One likely explanation for the failure of the Court to acknowledge that there were no limits was that it would too clearly suggest that the Court had rewritten the Constitution. The original meaning plainly placed limits on Congress’s authority in these areas and saying otherwise would have opened the Court to attack. So instead of announcing what they were doing, they misrepresented what they were doing and relied on sophisticated observers to teach new lawyers what was really going on.

If this is what happened, it ain’t pretty. But lots of government isn’t.