Archive | Constitutional History

Rejoinder to Suzanna Sherry on the Case for “Judicial Activism”

Vanderbilt law professor Suzanna Sherry has written a thoughtful response to my and Orin Kerr’s critiques of her article “Why We Need More Judicial Activism.”

To briefly recap, Suzanna contends that courts should err on the side of excessive “activism” (defined simply as striking down laws or other official actions) rather than excessive restraint, because all of the handful “universally condemned” Supreme Court decisions she identifies fall into the category of cases where the Court upheld laws that it should have struck down. Unlike Orin, I agree with Suzanna’s conclusion, but have objections to her methodology. In particular, I argued that it is a mistake to evaluate 200 years of judicial review based solely on a few of the Courts’ very worst decisions. I also suggest that Suzanna was inconsistent in applying her criteria for determining which cases are “universally condemned.”

Suzanna has responded to my second criticism, though not my first:

Ilya… doesn’t think I’ve picked the right cases. As a general response, I would repeat my response to Orin, and suggest that the trend towards rights-expansion supports my argument whether or not we quarrel over particular cases.

But I probably should be more careful about my definitions. When I talk about universally condemned cases, I mean cases that almost everyone wishes had come out the other way or would want the Court to decide otherwise today.

So I don’t much care whether Korematsu or Bradwell applied precedent correctly or reached a result that seemed dictated by the (then-known) “facts.” We are ashamed of the government’s actions in those cases, and we would be prouder if we could point to some government institution that stood up for what’s right.

As for Justice Scalia, I find it hard to believe that even he would uphold a law banning women from

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Suzanna Sherry on the Case for “Judicial Activism”

Vanderbilt law professor Suzanna Sherry recently posted an interesting article on “Why We Need More Judicial Activism”, which led to a symposium at The Green Bag, and a critique by co-blogger Orin Kerr. I agree with Sherry’s main point: that we need more judicial review, not less, and that historically federal courts have erred more often and more seriously by upholding laws that should have been invalidated than by striking down laws that should have been in place. At the same time, I am dubious about her particular reasoning.

I. How Should We Evaluate the Costs and Benefits of Activism?

In my view, courts tend to err on the side of upholding too many laws because of the incentives created by the political system in which they operate. Federal judges are appointed by the president and confirmed by the Senate. This diminishes the likelihood that they will want to strike down laws that enjoy strong support from these other political elites, or from the general public that elects them. In addition, federal judges depend on the other branches of government to enforce their decisions, and they know that enforcement will be weak or even nonexistent if they make rulings that offend other political elites or public opinion too much. These constraints are particularly likely to deter courts from striking down federal laws; but they also make it less likely that judges will strike down state laws that enjoy substantial support at the federal level. In addition, I think the historical harm caused by decisions that erroneously upheld laws is vastly greater than that caused by mistaken decisions that cut the other way. Obviously, this conclusion (which I won’t try to defend in detail here), rests on contestable judgments about both constitutional interpretation and the real-world effects of various [...]

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My Forthcoming Book Chapter on “The Impact of Judicial Review on American Federalism”

My forthcoming book chapter, “The Impact of Judicial Review on American Federalism: Promoting Centralization More than State Autonomy,” is now available on SSRN. It will be published in Nicholas and Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists? (Oxford University Press, forthcoming). This book examines the effects of judicial review on federal systems in numerous countries around the world, including Australia, Brazil, Canada, Ethiopia, Germany, Mexico, Nigeria, South Africa, Spain, and others. Each chapter is written by a scholar from the nation it covers. My chapter covers the United States, and argues that, on balance, judicial review has promoted centralization more than state autonomy, though it has at various times done both.

Because every chapter had to be of roughly the same length and I had to cover a much longer history of federalism and judicial review than most of the others, there were some difficult choices about what to include or exclude. For example, I largely omitted the federal courts’ preemption jurisprudence in order to spend more time on constitutional decisions. But, for what it’s worth, figuring out how to condense 200 years of legal and political history into a coherent 40 page narrative was a very interesting experience.

Here’s the abstract:

The relative scope of federal and state power under the U.S. Constitution has been a major bone of contention for over 200 years. Courts have sometimes enforced substantial limits on federal authority by striking down federal laws deemed to be outside the scope of Congress’ enumerated powers under Article I of the Constitution. Very often, the judiciary has also constrained state power by invalidating state laws as violations of constitutional rights.

While judicial review has therefore promoted both centralization and state autonomy at different times, on balance it has strengthened the former

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The Fiduciary Foundations of Federal Equal Protection

Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of the general public, but to enrich select interests. President Jackson wrote: “There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.”

This was the first use of the phrase “equal protection” in an American political document. Three and half decades later, the Fourteenth Amendment forbade States to deny to anyone the “equal protection” of the law.

In 1954, the U.S. Supreme Court ruled in Bolling v. Sharpe that the D.C. public schools could not be racially segregated. The Court held that the Fifth Amendment’s Due Process clause makes the principle of equal protection applicable to the federal government. Bolling was a hastily-written opinion, and it shows. Over the years, Bolling has been derided for creating “reverse incorporation”–as a good result that is hard to defend intellectually, other than by conceding the Supreme Court the power to act as Platonic Guardians.

That view is challenged in a new article by Gary Lawson (BU), Guy Seidman (Interdisciplinary Center, Herzliya, Israel) and Rob Natelson (Independence Institute). Their article “The Fiduciary Foundations of Federal Equal Protection” The abstract explains:

that a federal equal protection principle is not only consistent

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Indian Commerce Clause in the Supreme Court

Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.

The majority opinion is about statutory interpretation. Justice Thomas joined the majority opinion, and also wrote a concurrence. His concurrence explained that the doctrine of constitutional avoidance was the reason that he joined the majority on statutory interpretation, thus finding that South Carolina’s adoption laws had not been preempted by the Indian Child Welfare Act. As Justice Thomas’s concurrence points out, the Constitution grants Congress the power “To regulate Commerce…with the Indian tribes.” Some persons have over-read the Indian Commerce Clause as a grant to Congress of plenary authority over anything involving Indians. Justice Thomas points out the error: the Indian Commerce Clause is about commercial relations with tribes. It is a not a grant of plenary congressional power over every Indian anywhere in the United States. Thus, Congress has no constitutional power to displace state adoption laws simply because a child has a drop of Indian blood.

Cited 9 times in the Thomas opinion is The Original Understanding of the Indian Commerce Clause, [...]

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Ice-T, Volokh, and Kopel: Together at last in a feature film

The film is Assaulted: Civil Rights under Fire. It opened Friday in a limited theatrical release. Assaulted tells the modern and historic story of the Second Amendment, with a particular focus on civil rights. The events include Reconstruction, the Deacons for Defense, the Battle of Athens, the post-Katrina gun confiscations, and much more. The narrator is Ice-T. On-screen talking heads include Eugene Volokh, Alan Gura, Adam Winkler, Gary Kleck, Dan Gross (Brady Campaign), Bobbie Ross, and me.

The production values of the film are very high; there is even a recreation of the 1946 Battle of Athens, Tennessee.

I thought it was a very good film, although as with any documentary, there were a few parts with which I did not entirely agree. (And I certainly don’t agree with everything that Ice-T has ever said.) I should point out one correction regarding me: the film identifies me as having a Ph.D., which is incorrect; I have a J.D.

Assaulted is currently showing in 16 theaters around the nation; if you would like it to be screened in your town, the website provides a form to request that. Congratulations to Executive Producer Kris Koenig for creating the first documentary about the Second Amendment to make it the screens of ordinary movie theaters. [...]

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Kens on Rehabilitating Lochner

Paul Kens, a professor of political science at Texas State University, is the author of Lochner v. New York: Economic Regulation on Trial. I described the book in 2011 as “The last major scholarly work on Lochner to propound the traditional view of Lochner–that its origins lie in ‘laissez faire Social Darwinism’ and that its consequences were almost uniformly bad–that has lost favor among historians and that Rehabilitating Lochner tries to discredit once and for all.” I added that “comparing and contrasting the two books would make a great assignment for a constitutional history seminar.”

Given that Kens’s book is the most prominent representative of the traditional perspective on Lochner that I set out to rebut, I was naturally apprehensive when I saw that Kens reviewed my book for H-Law. But as Dan Ernst pointed out on the legal history blog, Kens manages to disagree with some aspects of my work without being disagreeable, and, I would add, he also is pretty careful about only attributing things to me that I actually wrote, which I’ve found is often not the case with book reviewers. Interestingly, and in line with my 2011 post, Kens suggests the following: “I urge any interested reader to lay the two versions side by side, follow the references, and discover a version of the story that is closer to historical truth.” Amen. [...]

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Irony Alert: Michael Lind on Lochner

If you are going to accuse a critic of being “astonishingly ignorant of history,” your response to said critic should not include this:

State and local licensing rules and trade laws governed economic life in detail, down to the size of spigots in wine casks, in some cases.

It was precisely these state and local regulations that the Supreme Court struck down, in Lochner v. New York (1905) and other cases, to promote the goal of creating a single national market.

I’ve seen lots of different interpretations of Lochner over the years, but I’ve never seen anyone claim that underlying Lochner was a desire to create a single national market, and for good reason, because that’s a ridiculous interpretation of Lochner.

Surely someone with even a tenuous grasp of 20th century American constitutional history at least knows that the Justices most sympathetic to Lochnerian reasoning were also generally the most hostile to federal laws that attempted to create a uniform national market. “Astonishingly ignorant of history,” indeed.

(And if this post seems a bit snide, please consider that I’m responding to someone who writes gems such as, “if they were not paid so well to churn out anti-government propaganda by plutocrats like the Koch brothers and various self-interested corporations, libertarians would play no greater role in public debate than do the followers of Lyndon LaRouche or L. Ron Hubbard.”)

UPDATE: Not that it’s worth taking Lind’s “point” reprinted above seriously, but let’s review:

It seems undisputed that the Kochs total spending on political and ideological causes is somewhere around 10-15 million dollars per year. How big a role does this money play in the American political system?

Let’s start with ideological/intellectual causes. The liberal Ford Foundation spends over $400 million a year. The liberal MacArthur Foundation spends about $140 million

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Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is [...]

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Article on Buchanan v. Warley

In 1917, the Supreme Court decided Buchanan v. Warley, holding that it was unconstitutional to ban blacks from buying property on blocks where mostly whites resided, and vice versa. Buchanan was, in my opinion, a very important case, but it has mostly languished in obscurity.

Last week, however, Senator Rand Paul talked about Buchanan on the Senate floor during his filibuster, sparking some curiosity about the case. I therefore decided it would be useful to post my 1998 Vanderbilt Law Review article on the case, which I believe is the most extensive existing treatment of Buchanan. Not surprisingly, I wouldn’t write the article precisely the same way now as I did then, and some of those changes are reflected in a later piece I co-authored with Ilya Somin for the Yale Law Journal and in my discussion of Buchanan in Rehabilitating Lochner. Still, if you’re curious about the case, the Vanderbilt article is very informative and would be the best place to start. [...]

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Ian Millhiser of Think Progress on Paul and Lochner

Attorney Ian Millhiser of the “liberal” Center for American Progress is quite agitated by Sen Paul’s speech yesterday, and not because he is concerned about potential abuses of executive authority. Rather, it’s because Paul had the temerity to refer favorably to Lochner. This provoked Millhiser’s response (h/t Alex Tabarrok), which is full of disingenuous statements:

Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women ‘aren’t discriminated against anymore’, called Lochner an ‘abomination’ that ‘lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.'” Surely Millhiser is aware that (a) Bork’s basic outlook on constitutional law was majoritarian; (b) this perspective was inherited from pre-Brown Progressivism; (c) Bork was, like his Progressive forebears, especially disgusted by an invocation of the due process clauses for substantive purposes; (d) the so-called “right-wing” today contains majoritarian conservatives, natural rights libertarians, and everything in between; and (e) the supposed Bork remark re women (I haven’t researched it) is just a cheap shot that had nothing to do with anything.

In fact, and as I assume Millhiser knows, Bork is actually among the last people you’d ever expect to be favorably inclined to Lochner. Which is precisely why, to address another issue Millhiser raises, Lochner may have something to do with drone strikes: a consistent majoritarian is likely to be, well, consistent, and therefore think that any constraints on executive power have to come from the political process, not from the Constitution. And a consistent constitutionalist is likely to be consistent as well. One can argue that by reading certain rights out of the due process clause, and thus out of the Constitution, the left has tipped the balance toward the majoritarian side, which makes it more, not less, difficult to defend civil liberties. [...]

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Rand Paul on Lochner, Buchanan v. Warley, and Oliver Wendell Holmes

Embedding the video isn’t working, so here’s a link to the relevant remarks (courtesy of

I haven’t had a chance to blog about this, but Sen. Paul and everyone else who complain that defining “due process” for a drone strike as review within the executive branch is completely contrary to what due process has meant throughout American history are correct, and it’s astounding (or maybe all too predictable) that so many critics of Bush Administration policies have been silent about this. UPDATE: Here’s the key point, courtesy of co-blogger Nick Rosenkranz: “As a matter of grammar and structure, the Due Process Clause … is, at least at its core, a conditional check on executive power …. The central function of the clause is to create a check on such deprivations …. Here the check is generally judicial. Due process generally cannot be purely intra-executive …. All executive power is vested in a single person, and so an intra-executive check on executive power is not really any check at all.” [...]

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Is citizen control of taxes and spending unconstitutional?

Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval for tax or spending increases violates Article IV, sect. 4 of the U.S. Constitution, which provides: “The United States shall guarantee to every State a Republican Form of Government. . . .”

In federal district court, the Colorado Attorney General filed a motion to dismiss Kerr v. Hickenlooper, based on the argument that RFOG claims are non-justiciable. That motion was denied, and the case is currently on interlocutory appeal to the 10th Circuit.

On Friday, I filed an amicus brief on behalf of the Independence Institute and the Cato Institute. The brief draws heavily from Rob Natelson’s article, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause. 80 Texas Law Review 807 (2002). Natelson shows that the Founders consistently used the words “republic” or “republican” to refer to governments which had direct democracy. As the brief summarizes an analysis of every known Founding-Era dictionary: “Not one of these sixteen definitions from nine different Founding-Era definitions contained the least suggestion that a republic had to be purely representative.”

Moreover, the Supreme Court, in Luther v. Borden and Minor v. Happersett, has stated that the admission of a State into the Union is a conclusive determination that the State, at the time of admission, had a Republican Form of Government. Significantly:

In 1907, Congress admitted Oklahoma into the Union, although Oklahoma’s Constitution contained very strong provisions for initiative and referendum (Okla. Const., art. V, §§1-7) and provided for a mandatory

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Missouri v. Holland: The Intellectual History That Preceded The Holding

Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread.

I have criticized Justice Holmes for concluding — in one unreasoned sentence — that treaties can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is simply not so, as I demonstrated in my last post — citing a leading treatise, the most important congressional debate, a U.S. Supreme Court opinion, and, for good measure, an editorial in a prominent New York newspaper (which purports to express the general consensus of the time).

Rick seems to have two responses to this contrary evidence. First, he says it tends to support Ilya’s position, not mine. Second, it’s still not enough; Rick would like to see more. These are, I think, unpersuasive responses.

On the first point, it is not so; take a look at the sources and decide for yourself. But even if Rick were right about this, that would be of no help to him. Again, Ilya and I agree (with Justice Scalia) on the fundamental point that a treaty cannot increase the legislative power of Congress. All the sources cited clearly support that general point. They are [...]

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Peace Treaties & the War Power

Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation.

Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes the power to make peace, as Madison noted in the 1790s. Just as war does not need to be formally declared, peace can be established without a treaty. There may be international law advantages to a treaty, but peace could be created simply through a the cessation of hostilities, an executive agreement (such as an armistice), and so forth. Thus legislation dealing with the loose ends of a war would be independently justified, to some extent, by the War Power, as the Supreme Court recognized in Woods & Cloyd v. Miller.

Indeed, aside from the treaty with Britain, the Treaty Power would be an incomplete basis for legislating “peace conditions,” as it would potentially be difficult to exercise in cases of debilitatio, the collapse or disintegration of the enemy government.

The Constitution gives the Federal government numerous express powers for directly regulating transborder phenomenon, including war and foreign commerce. The difficulty with the potentially broad uses of the Treaty power today is that they deal with purely internal phenomenon, which are only of general “concern” to foreign countries. [...]

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