Improve Federalism by Rewarding Interstate Movement

Chicago, IL and Toledo, OH interstate highway sign

One of the glories of our constitutional structure is competitive federalism. Under the original Constitution, the states had very substantial powers of regulation. But they were disciplined in large measure because they were forced to compete in a market for governance. If a state imposed too many burdens on their citizens through either taxation or regulation or failed to provide needed public goods, citizens could leave.

For competitive federalism to work well, the federal government, however, does need to facilitate it. Most important are the constitutional rights that ease movement. Article IV of the original Constitution requires each state to extend the privileges and immunities it extends to citizens within its state to citizens of other states. Presumably that right effectively guarantees free movement in, out and, within the state for out-of-state citizens since states universally grant that right to their own citizens.  The self-ownership assured by the Thirteenth Amendment eliminated a legal obstacle that African Americans faced travelling from state to state.   The First Amendment assures that citizens can hear about conditions in other states and compare it to their own.

But it is not only the Constitution but federal statutes that can make a difference to the vibrancy of state competition.

Read More

Ambitious State AGs March On

A few days after Donald Trump’s inauguration on the opposite coast, Xavier Becerra was sworn in as California’s attorney general. Becerra, who had accepted Governor Brown’s offer to replace now-U.S. Senator Kamala Harris, was fresh from Capitol Hill himself, having served in the U.S. House of Representatives since 1993 and rising through the ranks of the Democratic leadership. It might be considered unusual to trade being a mover and shaker in Washington for service in a non-gubernatorial state position. But Becerra understood that being a state AG nowadays affords a prominent voice in national politics. He has since vowed to challenge President Trump at every opportunity, which apparently has already paid dividends for his political future.

Read More

Federalism By Judicial Press Release

I’m a little late with this but why am I always right? Back in February, I commented on the “sanctuary city” litigation: [L]awsuits filed by San Francisco and some other jurisdictions are, at best, wildly premature—“unripe,” as the lawyers say. That doesn’t necessarily mean they are stillborn. The Ninth Circuit’s recent travel ban decision strongly suggests that the ordinary rules governing preliminary injunctions, standing, statutory interpretation, and other lawyerly distractions no longer apply in these sorts of cases—perhaps because immigration is now, like climate change or gay marriage, one of those issues that “arouses the judicial libido,” to purloin a fine phrase of Justice Scalia’s. Or perhaps on…

Read More

The Radical Jefferson: A Conversation with Kevin Gutzman

jefferson-bookIn this edition of Liberty Law Talk historian Kevin Gutzman discusses his latest book, Thomas Jefferson—Revolutionary. We focus on Jefferson's account of federalism, conscience rights, education, and race.

Of Sanctuaries and Sanctimony

There has been a lot of agitation and, predictably, litigation over the President’s firm intent to whip “sanctuary cities” into line. The general tenor of the online commentary has been “Federalism Lives!” exultation, from Left (Jeffrey Rosen) to Libertarian (my colleague Ilya Somin, whose post links to like-minded writers). Courtesy of the Rehnquist-Roberts Court’s constitutional doctrines on federal funding and “commandeering,” the chorus chimes, the President cannot do what he has proposed to do by executive order—yank federal funds from non-cooperative jurisdictions.

For reasons I’ll explain at somewhat painful length, it’s not at all certain he can. The “let’s hear it for federalism” folks may yet be right—but for somewhat different reasons than they think.

Read More

Radical and Moderate Originalism

Here I want to draw a distinction between two types of originalism: between a radical originalism and a more moderate originalism. The radical originalist believes that the Constitution’s original meaning establishes a regime that is extremely different from the current legal regime.  The easiest way to get a radical view is through a strong federalism.  If one believes that the Commerce Clause is narrow, that there is no Spending Power, that the Necessary and Proper Clause is very limited, then one can generate a regime that holds Social Security to be unconstitutional, that places significant limits on paper money, and that…

Read More

The Unjustly Neglected Roger Sherman: A Conversation with Mark David Hall

shermanThis edition of Liberty Law Talk is a discussion with Mark David Hall about American framer Roger Sherman who was the only framer to sign the Articles of Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. At the Constitutional Convention, he spoke more than all but three delegates and helped forge the Connecticut Compromise. Yet his writings remain relatively obscure. To help rectify this is Liberty Fund's new volume entitled Collected Works of Roger Sherman, edited by Hall.

The Decline of Constitutional Morality: A Conversation with Bruce Frohnen

const moralityIs America in a constitutional crisis or is the country already post-constitutional and merely adjusting to a regime of quasi-law? Bruce Frohnen joins this edition of Liberty Law Talk to discuss this question and his latest book, coauthored with the late George Carey, Constitutional Morality and the Rise of Quasi-Law.

Medical Marijuana and Federalism

Last week, I blogged about the DEA’s decision not to change the classification of marijuana as a Schedule I substance.  While the decisions seems to me absurd, not all of the news in this area is bad.  In fact, the movement to legalize marijuana under varying circumstances has never been stronger.

It should not be all that surprising that the DEA – a government agency charged with the mission of enforcing the drug laws – should be so unsympathetic and hostile to the benefits of one of the drugs they regulate.  After all, they would be in essence admitting significant error if they acknowledged that marijuana had important benefits.  Of course, less understandable is why Congress and the executive assign this task to the DEA.  Still, the point here is that who makes the decision is important in a political system.

One of the virtues of the American system is federalism.  While the federal government has been very hostile to marijuana for years, decisions in the U.S. are not only made at the national level.  Thus, the federal government may continue to be strongly against marijuana, while at the state level there is growing support for permitting it under certain circumstances.

The number of states allowing medical marijuana (25) has been expanding as has the number of states allowing recreational use (4).  In 2016, 4 additional states will decide on whether to legalize recreational use of marijuana and another 5 states will decide on medical marijuana.    

Read More

Reviving Pluralism: A Conversation with John Inazu

confident pluralismJohn Inazu has emerged as one of the leading scholars on freedom of association and religious freedom. His earlier book, Liberty's Refuge: The Forgotten Freedom of Assembly revived our understanding of the significance of freedom of association in American constitutional history. He joins us in this episode of Liberty Law Talk to discuss his latest book, Confident Pluralism on why we must rebuild both the legal and civic engagement aspects of a pluralist society.