The Volokh Conspiracy

Consider each of the following arguments in its historical context:

(1) It’s the 1930s. The Scottsboro Boys are represented by a known Communist Party front, beholden to the agenda Josef Stalin and his minions have dictated to the the C.P., including the creation of a separate country for American blacks in the “Black Belt.” The Supreme Court should rule against the Scottboro Boys because otherwise the Court will be well on its way to adopting the Communist agenda.

(2) It’s the 1980s. The EEOC is before the Supreme Court arguing that Title VII protects women from sexual harassment. The intellectual energy behind this claim comes from radical feminist Catherine MacKinnon, who also supports such things as “comparable worth” and a ban on indecent sexual speech. The Supreme Court should rule against the EEOC, lest it be well on its way to adopting the radical feminist aganda.

(3) It’s the 2000s. Various War on Terror detainees are challenging their detention. While the detainess have some mainstream support, much of the energy behind their challenges comes from elements of the radical left who, for example, want the U.S. Constitution to be subordinated to “international law” as elaborated by left-wing NGOs, and who in some cases adhered to an ideology most would describe as “anti-American.” The Supreme Court should rule against the detainees, lest it be well on its way to adopting the radical left’s aganeda.

Obviously, these arguments are all flawed; the strength and validity of legal arguments before the Court does not depend on who is representing the parties, nor on whether the relevant legal arguments were invented or influenced by “radicals” who have a political agenda that extends well beyond the precise issues before the Court. Nor does adopting one argument supported by “radicals” in any way obligate the Court to adopt the “radicals’” agenda in any future ligitation. Not surprisingly, the Court rejected arguments to the contrary in all of the examples above, which were made especially vociferously in examples 1 & 3.

This has not prevented a meme from developing, led by some prominent Supreme Court commentators who should know better, that if the USSC invalidates the ACA it will somehow be well on its way to adopting a broader libertarian agenda supported by some of those, including some of my co-bloggers, who helped craft the arguments against the ACA currently before the Court.

In fact, if the Court rules against the ACA, the other 90+% of the U.S. government loathed by libertarians will still be going strong.

Those Supreme Court watchers who are pushing the “liberarians are coming” meme are well aware that the Supreme Court has historically never strayed much from mainstream public and elite opinion, both of which remain decidely not libertarian. Nor is there any particular reason to believe that John Roberts, Samuel Alito, et al., are in thrall to libertarian ideology. So all we have left is the disreputable rhetorical technique of trying to asssociate in the public mind sound legal arguments with unpopular “radicals”, and to eke out a victory on the basis of the libertarian equivalent of red-baiting rather than on the merits. To say the least, such arguments do no credit to those advancing them.

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers.

I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of gun rights and gun control in period leading up to the Revolution, and in the remainder of 18th century America, are encouraged to read Stephen Halbrook’s excellent book The Founders’ Second Amendment, which is the result of decades of work by Halbrook in finding primary sources of the period, including newspapers, correspondence, and diaries.

On a related topic, some readers might also be interested in my 2005 article The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, detailing the role of Congregationalist and other ministers in inciting the Revolution, by explaining collective self-defense of natural and civil rights as a moral and religious obligation.

In some previous posts, I’ve made two basic points about child labor and the Constitution in response to liberal commentators who can’t resist raising the issue of child labor any time anyone hints that there may be some constitutional limits to government regulatory authority. First, no one has ever seriously questioned the constitutionality of state child labor laws, and every state in the union passed such laws by the 1930s. Second, to the extent the pre-New Deal Supreme Court did question the constitutionality of federal child labor laws, that was both (a) a reasonable interpretation of the Commerce power and (b) arguably a good thing from a public policy perspective, because there’s no reason to believe that a one-size-fits-all policy with regard to specific child labor rules was appropriate in a country with vast regional differences in wealth.

It was the latter argument, in particular, that raised the hackles of some VC commenters. Only an evil Simon Legree, they suggested, would think that allowing kids under the age of 16 (the federal mandate invalidated by the Supreme Court early in the 20th century) to work in “adult” jobs is proper. Everyone knows that kids that age are too easily exploited by their parents for selfish gain, and allowing them to work would inevitably have deleterious effects on their health, well-being, and school performance and attendance.

I hope these commenters have saved some of their ire for the Obama Administration. I pointed out in one of the comment threads that child labor is, in fact, still permitted in the United States, so long as its agricultural work–and that agricultural work has some of the highest rates of worker injury. After considering a ban on much such work, the Obama Administration has backed down:

The Labor Department withdrew a proposed rule Thursday that would have limited the work that children can perform on farms…. The new regulations would have forbidden children younger than 16 years of age from completing “agricultural work with animals and in pesticide handling, timber operations, manure pits and storage bins.” It would also have barred farm workers under 16 from handling most “power-driven equipment” and from contributing to the “cultivation, harvesting and curing of tobacco.”

It seems to me quite overwrought for critics of the Old Court to denounce the Court for preventing the federal government from forbidding fifteen-year olds to work in factories when, almost one hundred years later, in a much wealthier United States, fifteen-year olds may still handle pesticides, work in timber operations and manure pits, harvest crops and tend livestock, and use power-driven equipment.

UPDATE: Partisan Obamaites are misconstruing this post in the comments as an attack on the Obama administration and/or its supporters. Rather, the point is that “progressive” legal commentators treat tolerance for child (really, young teenage) labor as a defining moral sin of the pre-New Deal Supreme Court. The Court’s decisions prohibiting federal regulation of child labor are deemed a sign of grave moral obtuseness, and any constitutional doctrine that might be deemed to lend support to such decisions is assumed to be obviously unacceptable in modern society, given our revulsion at child labor. But it’s quite difficult to square such outrage with the fact that some forms of child labor, including dangerous and difficult child labor, are still, almost 100 years later and in a much richer society, allowed under federal law, and are sufficiently entrenched in our society that the Obama Administration backed down from its attempt to ban them.

Imagine, for example, if the ghost of Justice William Day, author of Hammer v. Dagenhart, rose from the grave and showed up at Dahlia Lithwick’s door, ready for an interview. Lithwick, in her most outraged tone of voice, asks, “How could you and your colleagues invalidate laws aimed at the odious practice of child labor?” Would Day be out of line in responding, “We were following our best understanding of the Constitution’s limits on federal power, and anyway it didn’t seem to us that impoverished Mississippi needed the same rules as New York with three times the per capita income. But let me ask you something: is it true that even though there are no longer any constitutional restrictions on federal power to regulate labor, and that the U.S. is now wealthy beyond anything we could have dreamed of in the 1910s, that you still allow kids under sixteen year olds to engage in dangerous farm work?”

It seems that liberal commenters on constitutional law just can’t resist bringing of the issue of child labor, regardless of whether what they’re saying is historically accurate. The latest offender is Dahlia Lithwick. In criticizing Judge Janice Brown’s call for a return to pre-New Deal, Lochnerish concern for economic rights Lithwick writes, “Let’s put aside the extraordinary nature of Brown’s substantive argument, which holds so little regard for ‘democratic processes’ and would gladly upend such odious regulatory regimes like child labor laws.”

So let me repeat it one more time. In the middle of the so-called Lochner era, the Supreme Court upheld state regulation of child labor by a 9-0 vote (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913)). I’ve blogged before that I’m not aware of ANY court in any American jurisdiction ever holding that child labor laws violate a constitutional right to economic freedom or “liberty of contract”, and no one has written in to correct me (for examples of state courts upholding child labor laws within a few years of the Lochner decision, see Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)). All fifty (oops, 48) states passed child labor laws before 1937, when Lochner was overruled. Economic liberty concerns were not a barrier to the spread of such legislation.

For the last seventy-plus years most liberal scholars and commentators (and almost all until recently) have refused to take the pre-New Deal Supreme Court constitutional jurisprudence seriously as anything beyond an expression of “reactionary” economic ideology or class warfare. They have therefore have assumed that since the Supreme Court invalidatedfederal child labor laws 5-4 as beyond the scope of the commerce clause, this must have reflected a general “conservative” hostility to such laws, as opposed to a sincere (albeit controversial) interpretation of the Constitution. They therefore further assume, falsely, that the courts must have been hostile to state and local child labor laws, and used “economic freedom” arguments to invalidate such laws.

So let’s repeat. Federal child labor laws before FDR’s appointees took over the Supreme Court: constitutionally questionable as an exercise of the power to regulate interstate commerce. State and local child labor laws: clearly constitutional as within the police power. Doctrine did make a difference, and it’s high time that Lithwick and others stop relying on myths that could be quickly rebutted with a modicum of research.

Meanwhile, I’ve never seen ANY modern conservative or libertarian constitutional scholar argue, as Lithwick implies, that state and local child labor laws would be unconstitutional as violations of economic freedom. So if the historical “Lochner era” courts okayed child labor laws, and there’s no prospect of future Lochnerish holding that such laws violate liberty of contract, raising this particular canard doesn’t exactly inspire confidence.

UPDATE: Even Christopher Tiedeman, who took many radically libertarian positions (for his day) in his late-nineteenth century works on constitutional law–he argued, for example that drug laws and laws banning interracial marriage, upheld 9-0 by the Supreme Court, were unconstitutional–acknowledged that child labor laws were constitutionally valid.

Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.

Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice Sotomayer raised it again, not especially coherently.

Surveying some of the post-oral argument Lochner-related commentary, I hereby present The Lochner Awards in various categories noted below:

Weirdest and most conspiratorial use of Lochner
Breitbart.com “In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision–an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.”

Spookiest Lochner reference
Jamin Raskin, Huffington Post “The ghost of Lochner is alive and well on the Roberts Court” (someone call Bill Murray!)

Smelliest use of Lochner
Daily Kos: “the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law”

Most “challenging” reference to Lochner
Attorney Bryan Caskey: “So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding.”

Most Honest use of Lochner
Jonathan Cohn, New Republic: “But I’m pretty sure both Obama and his administration’s lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago.” (Constitutionally limited government! The very idea is preposterous!)

Most Puzzled reference to Lochner
DailyGreg blog: “Lochner? Who the hell is Lochner?”

Disco Lochner
Allergictobull.com: “Now one thing that comes up several times is what I refer to as the Lochner ‘boogie man.’”

Most judicious comment about Lochner
Damon Root, Reason: “the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents”

Cohn in TNR:

I’ve tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified… It’d be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn’t happened since those early New Deal cases, just as Obama suggested.

Actually, the most important of the New Deal laws invalidated by the Court, the National Industrial Recovery Act, a law far broader than the ACA, went down 9-0. The other two New Deal decisions on “Black Monday” in 1935 were also 9-0. The second most important piece of New Deal Legislation to be invalidated by the Court, the Agricultural Adjustment Act, went down 7-2. The Guffey Coal Act went down 6-3. Offhand, I can think of several major pieces of New Deal legislation that were upheld 5-4, but I’m drawing a blank on ones invalidated by that vote.

And the Court was NOT split along party lines. Justice James McReynolds, who typically voted with the conservatives, was a Democrat, as was Justice Brandeis, who led the Progressive wing of the Court. All of the other seven Justices were Republican appointees, and most of them were loyal Republicans (as opposed to, e.g., Justice Cardozo, who Hoover appointed because he was the most prominent judge of his era, and not for standard “political” reasons).

So in a sense, from Cohn’s perspective, this would make a decision invalidating the ACA even worse. But one can rejoin that never has such an important piece of federal legislation been rammed through on a narrow, partisan vote. And given the Schechter case invalidating the NIRA, it’s also true that the Court has even in times of great economic crisis saw fit to unanimously invalidate the signature piece of legislation of an overreaching president. One difference, today, of course, is that the liberal wing of the Court, led by Justice Breyer, sees NO justiciable limits on the scope of federal power, so there’s no hope of a unanimous, or even bipartisan, vote today.

Finally, as Barry Cushman points out, the biggest reason early New Deal legislation had trouble getting past the Supreme Court is that the Roosevelt Administration didn’t take care to draft the legislation to avoid constitutional objections. Sound familiar?
[post expanded a bit from the original]

UPDATE: Getting the history correct is important not because it necessarily points one way or the other on the ACA challenge. Rather, a mythology has grown up around the New Deal cases suggesting that the constitutional barriers FDR’s legislation faced were due to the efforts of five reactionary, partisan, recalcitrant justices who manipulated doctrine in an effort to defeat the New Deal. FDR, through his appointments, restored the broad interpretation of federal power that had prevailed throughout the nation’s history before the New Deal. When it turns out that major pieces of New Deal legislation were invalidated 9-0, 7-2, etc., it undermines this mythology, and means that the major changes to constitutional doctrine that the Court undertook starting in the late 1930s must be justified on their own terms, not as a restoration of previous doctrine.

Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, “A law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner.”

Of course, this is lots of fun for me, as my formerly obscure (to my relatives and friends) interest in Lochner now has some popular currency. (It shouldn’t hurt book sales, either).

But I wonder if raising Lochner is really helpful to the ACA’s proponents. First, liberals and conservatives mean two different things when they criticize “Lochner“. Barnes quotes me as follows:

“Liberals see the court as unduly interfering with progressive legislation meant to help people who needed it,” Bernstein said. “Conservatives draw a different lesson: They see it as a symbol of judicial activism,” creating a right beyond those enumerated in the Constitution.

The SG and president used Lochner in the former sense, but that doesn’t seem likely to sway the Court’s conservatives. Indeed, CJ Roberts jumped all over the SG when he suggested that the ACA challenge resembled Lochner: “It seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner.” In other words, this is an enumerated powers case, not an unenumerated rights case, and therefore Lochner is irrelevant.

Moreover, to the extent that Justice Kennedy is likely to be the swing vote, he seems perhaps the least likely Justice to be swayed by accusations of “Lochnering.” Kennedy is, I think, the only Justice who has had dissenters from both left and right accuse him of repeating Lochner’s mistakes. Just last term, in Sorrell v. Vermont, Justice Breyer twice raised Lochner in his dissent to Justice Kennedy’s majority opinion. Back in 2003, Justice Scalia, dissenting from Kennedy’s opinion in Lawrence v. Texas, suggested that the Fourteenth Amendment no more protects the right to engage in homosexual sodomy than it does the right to “work[] more than 60 hours per week in a bakery” (alluding to the facts of Lochner).

Kennedy is also the least shy “conservative” Justice about relying on the Fourteenth Amendment to protect economic rights, the underlying “sin” of Lochner for both left and right. Unlike Thomas and Scalia, he happily joins opinions invalidating state punitive awards as violating the due process clause. And then there’s his lone opinion in Eastern Enterprises v. Apfel, in which he wrote, “Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects.” He then proceeded to argue that the legislation in question fails a due process analysis.

So I’m not sure what the strategy of raising Lochner is supposed to accomplish, but it doesn’t seem well designed to get the government five votes in the ACA litigation.

All the talk from the left about how absurd it would be for the Supreme Court to invalidate the ACA on commerce clause grounds has made me think about ridiculous Supreme Court reasoning. And when I say ridiculous reasoning, I mean just that; not that I necessarily even object to the outcome of the case, just that I have a hard time keeping a straight face if I have to explain the reasoning to my students.

The penumbras and emanations line from Justice Willioam O. Douglas in Griswold is a perennial favorite, but I think Douglas outdid himself two years earlier in Gray v. Sanders. This was an extremely important case, because it announced the “one person one vote” rule, which soon led the Court to order virtually every state in the union to redistrict its legislature. Moreover, this was hardly an “apolitical” decision, because it forced states to reduce representation for (conservative) rural areas in favor of (liberal) urban areas, consistent with the political interests of the Court’s majority.

So how did Douglas justify the one-person, one-vote principle, even though no (or maybe almost no) states complied with it previously, and even though the U.S. Senate is obviously not apportioned on that basis? “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote.” I kid you not.

Readers favorite examples of similar addled reasoning are welcome in the comments.

UPDATE: I can’t pick out one or two lines, but I have to admit not being able to follow the “reasoning” of Justice Holmes in Federal Baseball Club v. National League, 259 U.S. 200 (1922), in which he acknowledges that baseball teams cross state lines to play exhibitions for the purposes of making money, but that this nevertheless does not constitute “interstate commerce” for the purposes of federal antitrust law.

Further UPDATE: Judging from the comments, quite a few VC readers don’t understand the distinction between criticizing a ruling’s reasoning, and criticizing a ruling’s outcome. For example, I think Douglas’s Griswold opinion was quite poorly reasoned, but I don’t have any problem with Goldberg or Harlan’s concurrences, which reached the same result.

Andy Koppelman has another essay, this time in the New Republic, analogizing the litigation over the ACA to the Child Labor Cases. Of course, this is a tried and true rhetorical technique: find a case that is widely despised (Dred Scott, Lochner, Plessy), and analogize current litigation to that despised case.

Just a few points:

(1) Koppelman writes, with regard to child labor, “only the federal government could address the issue, since no state would act on its own.” But I pointed out in response to his last article that every single state did in fact pass laws restricting child labor. Koppelman acknowledges the point, but responds, “This, however, ignores the enormous variation in child labor policy: Some laws were weak; others were ineffectively enforced.” But saying that states chose not to have as strict laws as the federal government, or enforce them as vigorously as the federal government might, is quite different from saying that they couldn’t act; rather, they chose not to act as vigorously as the federal government. That’s what happens when you live in a federal system–sometimes you will think that states are being derelict in their legislative responsibilities; sometimes you will praise the states as laboratories of democracy for their innovations. I think I can safely assume, for example, that Koppelman opposes the federal Defense of Marriage Act but supports states that have recognized same-sex marriage. If the Republicans take control of the White House and Senate in 2013, would he want them to set a national policy on gay marriage via the commerce power? Merely pointing out that states don’t always follow one’s policy preferences is hardly a strong argument against federalism.

(2) Professor Logan Sawyer of the University of Georgia Law School coincidentally has an excellent piece out on SSRN about the origins of Court’s holding in Hammer v. Dagenhart, the case in which the Supreme Court invalidated a federal child labor statute as beyond Congress’ commerce power. The gist of the piece is that Hammer wasn’t a battle between laissez-faireists and Progressive supporters of national regulation. Rather, after the Lottery Cases, which seemed to establish the federal police power, there was debate among Progressives as to whether there were any limits to this power. One side said no, while the other side insisted, for good “Progressive” reasons (in particular, that participation in local governance is a key to good citizenship), that Commerce Clause doctrine must put some limits on federal power. So there is, in fact, a parallel to 1918 today, but the parallel is not that the Supreme Court is poised to just make up some new doctrine while ignoring social conditions. Rather, the parallel is that there is sentiment among people who otherwise recognize a strong role for national government–as four of the five conservatives on the current Court surely do–that despite past precedents granting a broad commerce power, a significant role for state and local governance must be preserved.

(3) Koppelman suggests that Jonathan Adler and I think argue that child labor “isn’t so bad.” I won’t speak for Jonathan, but I think child labor is bad, certainly if we’re talking about pre-teens working in factories (which all the states banned in any event). [What I actually wrote was, "as one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system." (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn’t survive without the children pitching in.)] But there’s always the question of “compared to what?” I don’t want to go off on a long digression about child labor, so I’ll leave it at this. Child labor laws were not motivated solely by humanitarian considerations, and depending on context, could have significant anti-humanitarian consequences. Just consider that child labor laws, including the federal laws that came before the Supreme Court, were not typically accompanied by social welfare legislation providing income support to families whose children were working because the alternative was not having adequate food and housing. [So desperate families could either be malnourished or send their kids off to work in the black market; either way, many kids would be worse off, which provides an explanation of why the poorest states had less stringent child labor laws than what the federal government tried to impose.] Consider also that the wave of national sentiment favoring child labor laws corresponded with a wave of sentiment favoring legislation keeping women out of the workplace, and severely restricting immigration. This was not a coincidence. It shouldn’t really come as a surprise that the history of these matters is rather more complicated than the morality tales we learned in civics class.

President Obama said the following today when asked about the constitutional litigation over the ACA:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

In turn, James Taranto took Obama to task for wildly misciting Lochner:

In fact, Lochner–about which more in a moment–was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).

It is true that in subsequent New Deal cases, the court vastly expanded Congress’s power to regulate “interstate commerce,” although it has never done what the administration asks it to do now, namely authorize Congress to force individuals to engage in commerce. Obama seems to have been trying to make the accurate observation that since the ’30s the court has not struck down a federal law that applies to economic activity on the ground that it exceeds Congress’s Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause….

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

When a reader sent me these links, my initial inclination was to defend the president. I wrote to my correspondent, “I think Obama probably meant “Lochner” as in “the Lochner era”, or was using a shorthand, as liberals often do, of “Lochner” as the group of cases in which the Court invalidated economic regulations before the New Deal, regardless of the clause.”

But then I remembered the last time President Obama expressed his views on Lochner v. New York, when he was still a Senator from Illinois, criticizing D.C. Circuit nominee Janice Brown:

For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.

That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation — Social Security, minimum wage, basic zoning laws, and so forth — then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

Back in 2011, I annotated nine separate misstatements in these two paragraphs. So maybe Taranto’s correct, and the president should stick to politicking and stay away from constitutional history. Obama could have avoided all of this by heeding my op-ed noting that Lochner has nothing to do with the health care litigation, except as crude propagandistic rhetoric [update: as in this Huff Post by Prof. Jamin Raskin, which has a breathtakingly ignorant (willful or not?) paragraph about Lochner and the liberty of contract doctrine]. (Not to suggest, of course, that I think the president reads my op-eds!)

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

My friend and sometimes intellectual sparring partner, Andrew Koppelman, writes:

The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: The Court declared that if Congress could do this, “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” The Supreme Court’s invalidation of the law astounded even those who had most strenuously opposed enactment and provoked a wave of national revulsion and the rapid enactment of a second law — a tax on products of child labor — which the Court also struck down, in 1922. The decision was overruled in 1941. The Court did not save America; what it actually accomplished was to thwart democracy – the law passed by 337-46 in the House and 52-12 in the Senate – and consign large numbers of children to the textile mills for two decades.

First, by preserving limitations on the Commerce power, the Court did in a sense save America. In 1935, the Supreme Court unanimously invalidated the National Industrial Recovery Act, surely (along with the first Agricultural Adjustment Act, also invalidated by the Court), the single worst piece of national legislation in the the twentieth century, if not all of American history. (The Act cartelized, with government enforcement, every significant American industry). The Court invalidated the Act both for an overbroad delegation of legislative authority to the present, and because, as in the child labor cases, Congress was purporting to regulate local activity under the authority of its power to regulate interstate commerce. Historians will tell you that the NIRA was already quite unpopular by then. But it’s not at all clear that the law was on its way to repeal any time soon, the NIRA being the centerpiece of the New Deal.

Second, as I’ve noted before, the Supreme Court’s invalidation of federal child labor legislation didn’t mean there were no child labor laws. By the end of the so-called Lochner era in the late 1930s, every one of the forty-eight states had laws banning and regulating child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction. As one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system. (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn’t survive without the children pitching in.)

So I take different lessons from the child labor cases than Koppelman does. First, yes limiting federal power can and has prevented tyranny, as with the NIRA. (Not surprisingly, liberal commentators love to talk about the child labor cases, but not about Schechter Poultry, which invalidated the NIRA, a law I doubt anyone would support today.) And second, the invalidation of federal legislation dealing with what’s perceived as a “national” problem will simply put the ball in the states’ court, and I’m not at all convinced that “race to the bottom” factors outweigh the benefits of interstate competition, the ability of states to tailor laws to local conditions, and the inability of states, unlike the federal government, to bankrupt the entire country through ill-conceived entitlements.

I have an op-ed up at Jurist Forum.  Here’s how it starts:

With the US Supreme Court poised to decide whether the Affordable Care Act’s (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting Lochner, legal briefs supporting the government argue.

Yet the holding in Lochner, which found that the Due Process Clause of the Fourteenth Amendment protects a robust right to “liberty of contract,” was overruled decades ago and is not at issue in the health care litigation. Plaintiffs have challenged the individual mandate primarily as being beyond Congress’s Article I, Section 8 power to regulate interstate commerce. They argue that this power must have substantive limits, or the Constitution would have simply given Congress the power to regulate everything.

So why are defenders of the mandate so eager to talk about Lochner? The answer lies in the peculiar status of Lochner in American constitutional discourse.

Most blogosphericos know Benjamin Wittes as a founding editor of the premiere national security law blogsite, Lawfare (for which I serve as His Serenity, the Book Review Editor).  However, he has a broader role at the Brookings Institution, where he is a senior fellow in Governance Studies.  Most recently, this has led to an exciting new project between Brookings and the Center for the Constitution at James Madison’s Montpelier (which, if you live in the DC-VA area, is well worth a visit).  It is called ConText: An Experiment in Crowd-Sourced Commentary.  Which is to say, what do James Madison, the Constitutional Convention, Wikipedia, and the Talmud have in common?  Wittes explains:

That’s the question behind a new project Brookings has launched in partnership with the Center for the Constitution at James Madison’s Montpelier. The project, about which I am deeply excited, is at one level an attempt to bring to life the most important document in American history that nobody ever reads: Madison’s Notes of the Debates in the Federal Convention of 1787. At another level, however, it is a broader experiment in crowd-sourcing commentary on dense historical texts and in illuminating those texts for the public, for students, and for scholars in new ways.

It also has an interesting story behind it.

For several years now, Brookings and Montpelier have been conducting joint programming on a variety of issues related to the Constitution and contemporary public policy. Montpelier, for those of you who have never visited it, is the plantation of James Madison. The idyllic setting is also the home of the Center for the Constitution, which conducts educational seminars about constitutional thought for a variety of audiences: teachers, police officers, legislators, judges. The Brookings-Montpelier collaboration began as an effort to marry such discussion of Founding Era thought with Brookings work on contemporary public policy. Over time, however, we began talking about ways to expand the collaboration into publications. At one point, I suggested to Sean O’Brien—then the director of the center and now the chief operating officer of the larger Montpelier operation—that perhaps we should jointly publish a new edition of the Notes of the Convention. They are, after all, the best record of the Founding debates we have. And while everyone reads the Federalist Papers, very few lay people touch the Notes, which are dense, written in a kind of shorthand code, and are hundreds of pages long.

When I suggested this, Sean sighed and said that the center had been struggling for some time with what to do about the Notes. Another published volume of them, he thought, was not the answer. Somehow, he wanted to bring the Notes to life—to make it possible for people to be in the room as the delegates in Philadelphia thrashed out what became our system of government. Sean’s spot-on ambition started me thinking: Was there a way to do this using technology, a way that added intellectual value and was not mere kitsch? Could we take a long, impenetrably-difficult text, and tease meaning out of it in a format that people could more easily approach?

There is a model for this sort of thing, but it’s not a model from the American constitutional tradition; it’s the Talmud—the multi-volume exposition of Jewish law that developed after the Romans sacked the Temple in Jerusalem. The Talmud is a series of debates—and commentaries on those debates—on a text called the Mishnah. The rabbis found an ingenious way of commenting on this dry, lengthy text in a language (Ancient Hebrew) which was already in Roman times no longer their vernacular (they spoke and wrote in Aramaic). On a page of Talmud, a passage of Mishnah is physically surrounded by layers of commentary text, more and more of them as the centuries wore on. So in the center of the page is a short passage, by tradition, of course, Divine, but often in practice dry as dust; yet radiating out from that passage is centuries of wisdom and thought. It is not merely a form of crowd-sourced scholarship, but it is a visual means of expressing that scholarship and crowd-sourcing that seemed to me to have broad application to the exposition of lengthy and difficult historical texts like the Notes.

The trouble, of course, was that the Talmud developed over centuries, whereas Sean and I wanted to bring out the Notes now. And that’s where Wikipedia comes in. If the wisdom of crowds can write an encyclopedia, maybe a smaller crowd of scholars and interested lay people could write a commentary on the Notes. Perhaps we could develop a technological architecture that would allow a scholarly community to do over months and years what the rabbis took centuries to do with the Mishnah. This required software development.

The result is ConText, which launched today, Madison’s birthday. Organized like the Talmud, ConText surrounds the Notes with layers of commentary—commentary on the history (what was going on in the room), current events (how these events relate to current politics), theoretical and philosophical issues, and subsequent constitutional interpretation and dispute. Like Wikipedia, that commentary will be written by a scholarly community that develops around ConText: historians, constitutional scholars and practitioners, and interested students and lay people. Both the text and the commentary are fully searchable. And anyone can get an account and begin contributing.

The ConText project is not limited to the Notes, though the Notes represent the core of the experiment. If this platform will support a scholarly community devoted to illuminating this document, there are a great many other Founding Era texts (and texts from other periods), for which it might work as well. I have even flirted with the idea that it might offer a way for the intelligence community to seek analytical input on complicated contemporary unclassified texts from a broad range of scholars from whom it does not normally hear.

So please, check it out. Learn about the Notes, and contribute your knowledge of them and of the later constitutional history that began with them to the project.

Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade oral and anal sex for same-sex couples but not for opposite-sex couples. A similar Georgia law had been upheld in Bowers v. Hardwick (1986), which the Lawrence Court reversed.  Cole notes that it was unusual enough for the Court to recognize its own error:

But for it to happen in a mere seventeen years, the equivalent of a nanosecond in the “Jarndyce and Jarndyce” tempo of constitutional law, is nothing short of extraordinary. The story of how it happened is one of the great success stories of public interest law. It shows what a carefully orchestrated litigation campaign can do when supported by a passionate and growing social movement. At the same time, it offers a cautionary tale for the current controversy over the recognition of same-sex marriage, which may soon be headed, prematurely, to the Supreme Court.

The Supreme Court’s 2003 decision in Lawrence v. Texas devoted a scant paragraph to an anodyne description of the facts of the case, barely mentioned the defendants, and described their alleged conduct only as “a sexual act.” The Court was evidently more at ease with the nuances of constitutional jurisprudence than with the messy details of the case. Dale Carpenter’s Flagrant Conduct fills in the gaps, and provides a rich, meticulous, and fascinating account of the most important constitutional decision so far on the status of gays and lesbians in American society.

Unlike the Court, Carpenter revels in the factual details and the personalities involved in the struggle, as he takes us from the recesses of a private bedroom in a seedy condominium on the outskirts of Houston to the oral argument in the grand chamber of the United States Supreme Court. Along the way, he offers sharp insights into the politics, ironies, and strategies behind the Brown v. Board of Education of the gay rights movement.

RL:

Modern conservative constitutionalists, meanwhile, though dissenters in some ways from the orthodox interpretation of American constitutional history, also want to see themselves as part of a seamless jurisprudential tradition, and they venerate some of the same Progressive heroes as their liberal adversaries do…. In this tale, the good guys are Holmes, Frankfurter, and other Justices who are said to have properly put their political views to one side to enforce the Constitution as written.

From the promotional materials for Judge J. Harvie Wilkinson’s just-released Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism…. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance….

I was actually a bit surprised to see that Wilkinson invokes Holmes and Hand.  When I talk about Holmes and the heroic role he has traditionally played in constitutional history, the usual retort is that Holmes, though he turned a good phrase,  is passe as a role model now that he’s been widely recognized as a misanthrope with Social Darwinist tendencies who cared not a whit about the rights of minorities, or of anyone else for that matter.

As for Hand, true to his Progressive (as in the early 20th century Progressive movement) ideology, his valedictory lectures at Harvard Law School in the late 1950s denounced Brown v. Board of Education, First Amendment protection for Communists, and the use of the Fourteenth Amendment’s Due Process Clause to protect any substantive rights including those “incorporated” from the Bill of Rights. I  would have thought that invoking his legacy would be rather unlikely to inspire 21st century readers.  I”ll report further after  I read the book.

Over the next couple of months I will be on an active speaking tour for my new book, Flagrant Conduct: The Story of Lawrence v. Texas, which has just been published by W.W. Norton & Co. 

Of perhaps greatest interest to readers of this blog are a couple of events coming up soon.  This Friday, March 16, I’ll be in Washington speaking at lunchtime at the Cato Institute, with commentary by Washington Post editor Charles Lane, and moderated by Cato’s David Boaz.   The following Thursday evening , March 22, I’ll be in New York speaking at the Institute for American Values, hosted by Elizabeth Marquardt, Director of the Center for Marriage and Families.

Both events are open to the public and free of charge, but require pre-registration at the links above.

(1) Discussion of SDP continues over at Cato Unbound.   Too many interesting posts there to pick out one, so just start from Tim Sandefur’s lead essay and keep reading.

(2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers.  The article cautions against “resorts to originalism to support modern due process doctrines,” finding that modern due process doctrines bear little similarity to the scope of the requirement of “due process of law” when the Fourteenth Amendment was enacted. On other hand, and contrary to standard originalist critiques emanating of SDP and its antecedents going back to Edward S. Corwin in the 1910s, the authors acknowledge that “due process of law” was understood to protect a (in their view very limited) category of substantive rights, in particular vested property rights.

I don’t agree with everything in this paper–in particular, I think the authors give short shrift to the influence of abolitionist constitutional thought.  The authors correctly note that before the Civil War, the (expansive, rights-oriented) abolitionist understanding of due process of law was not “adopted by more than a fringe,” but they fail to seriously grapple with the extent to which the Radical Republicans who drafted the Fourteenth Amendment after the Civil War were influenced by abolitionist thought. (I’m not sure how great the influence was, but it can’t be dismissed by reference to the state of constitutional law in 1860; the abolitionists were, after all, among the primary ideological victors of the war).

In any event, it’s a very valuable contribution to the debate over the meaning of the Due Process Clause, both in 1868 and today.

Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.

My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.

In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.

In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.

In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:

The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.

The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.

You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.

That’s the spirit of Constitutional Cliffhangers.

I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.

On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument:

By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.

The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.

In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.

Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog.

Two issues ago, the Claremont Review of Books published Richard Epstein’s review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein’s review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here.

My response focuses not on whether Lochner was right or wrong (I take no position on the issue), but on taking issue with some of the statements and assumptions made in the letters–statements and assumptions that reflect longstanding conservative propaganda points in debates over the Fourteenth Amendment, but that rely on myths inherited from Progressive jurists.

I conclude that

there are quite reasonable arguments that liberty of contract, per se, is not protected by the Due Process Clause. Even if it is so protected, one can reasonably argue that the Lochner Court should have followed Justice Harlan’s dissent and exhibited greater deference to the judgment of the New York legislature. For conservative constitutionalists to make such determinations, however, requires a careful study of the relevant historical and legal materials free from the baggage of the tendentious, politically motivated accounts of Progressives, New Dealers, and their successors on the Left and, surprisingly, the Right.

Claremont’s website doesn’t have a comment feature, but you can contribute to the debate in the comments below.

Jed Purdy has posted an interesting (and extremely polite) response to my critique of his article on the Roberts Court and Lochner here.

Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.

The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.

Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.

Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.

The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.