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.

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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…

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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.    

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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.

A Decentralizing Remedy for the Diseases of a Fractured Republic: A Conversation with Yuval Levin

fractured republic

This edition of Liberty Law Talk welcomes back Yuval Levin to discuss his latest book, The Fractured Republic. Levin notes that our decentralizing republic, as observed in the decades long trends in social, economic, religious, and cultural diffusion, provides both opportunities and difficulties. America's ongoing deconsolidation from a nearly unprecedented period of national cohesion after World War II has led to numerous benefits for individual freedom and economic prosperity. However, if we are more free than ever, we may also be more alone than ever and bereft of the contexts for a responsible freedom and citizenship. And this has sparked a…

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Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution

While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States.  In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution.  Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.

Steve Calabresi has a new article out that ably defends the U.S. Constitution.  Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.

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Living under Executive Federalism

National mall sunset, Washington DC

Last week, I visited Boston College for a discussion of the Supreme Court’s recent decisions. Herewith an abbreviated version of my remarks. Comments etc. most welcome because the thoughts (some old, some new) are embryonic: I’m working on a more serious, grown-up presentation.

We are living in an age of Executive Federalism. That form of government has some deeply disturbing features, including several that should prompt a judicial response. So far, the Court has given no indication that it has a clue.

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Leave It to the States

Six or so out-of-town summer trips down, only four more to go before the start of the Fall semester—at which point I’ll be able to resume regular blogging, and maybe even some actual research and writing. Pending that merciful eventuality, here’s my Wall Street Journal review of Adam Freedman’s recent federalism manifesto, A Less Perfect Union: The Case For States’ Rights. I’ve met Adam occasionally at Manhattan Institute events. He’s a thoroughly good guy; creative thinker; great writer. Obviously I don’t agree with every chord in his federalism riff. Foremost: while Adam does a manful job in defense of “states’ rights,”…

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