Mike Rappaport /
Federalism and Liberty /4 Comments
At the Originalism Blog, Mike Ramsey discusses the justifications for federalism and how they connect with the protection of individual liberty. He writes about how the enactors of the Constitution mainly supported limited federal powers on the ground that the states would be closer to the people and would more reflect their local values. By contrast, he notes that most defenses of federalism today focus on competition between the states and how that places a check on the states from behaving improperly.
I agree with Mike about this, but I should also note that at least some of the people at the time of the framing appreciated something like the competition between the states rationale. In my article, Reconciling Textualism and Federalism, 93 Nw. U. L. Rev. 819 (1999), I write that “at least some of the Founders believed that competition between local governments would deter them from behaving oppressively.” I then cite to an Antifederalist, A Maryland Farmer, who wrote: “In small independent States contiguous to each other, the people run away and leave despotism, to reek its vengeance on itself; and thus it is that moderation becomes with them, the law of self-preservation.” See 5 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 5.1.53. 93:819 (1999). A Maryland Farmer is normally thought to have been the nonsigning member of the Philadelphia Convention, John Francis Mercer.
Thus, at least some people at the time of the Framing understood the benefits of competition between the states. In those days, however, relocation from one state to another was relatively rare (although some important framers had done it, such as both Gouverneur Morris and Benjamin Franklin) and therefore it might have seemed like a less important argument.
It is interesting to reflect on how changes in technology interact with constitutional arguments. That there is more communication and trade between people of different states today is often thought to suggest that more national authority is justified now than at the time of the Framing. And, depending on the version that one adopts of this argument, that may be true. But the change in technology also suggests that competition between the states is now a stronger argument for federalism than it used to be.
Freedom of Speech Wanes in Britain
David Conway /
Diversity, John Stuart Mill, Mass Immigration, On Liberty /19 Comments
When last month during an FA Cup quarter-final, the 23 year old Zaire-born former under-21 England international footballer, Fabrice Muamba, collapsed after a heart attack, a palpable wave of sympathy broke out for him among supporters of both teams at the north London stadium where the match was being played.
Unfortunately, that wave of sympathy did not extend to one inebriated 21 year old British biology undergraduate who had been following the match. He promptly tweeted a disgusting and highly abusive comment about the incident, followed by still more disgusting responses to those who tweeted to him in protest at what he had written.
His original tweet ran: ‘LOL [Laugh out loud) **** Muamba, He’s dead!’ Continue Reading →
Federalism’s Hope: Analysis and Speculation
Michael S. Greve /
Medicaid, Obamacare, Paul Clement, PPACA /3 Comments
Yesterday’s post described a sharp sectional divide in contemporary American federalism: pro-competitive states versus pro-cartel states. The divide holds across Obamacare/Medicaid, labor, environmental, tax, and cultural issues. Here is the basic map again (the competitive coalition appears in red, the cartel cabal in blue):
Today, as promised, some thoughts on what the sectional divide might mean for American politics and federalism. Continue Reading →
Federalism’s Hope
Michael S. Greve /
Geoffrey Brennan, James Buchanan, PPACA, The Upside-Down Constitution /1 Comment
This post (lengthy, but with lots of pictures) strikes an uncharacteristically cheerful note: there is a chance to revive a sensible, efficient, competitive federalism. That hope does not rest on the libertarian pipedream of a Supreme Court that at long last restores our “lost Constitution” and overrules the New Deal. Nor does it rest on a hankering for a November victory for a GOP that promises to “devolve” power to the states. (The stupid party has no coherent federalism program; and in any event, for federalism purposes, federal election outcomes are epiphenomenal.) Rather, competitive federalism’s hope rests on one of the most resilient forces in American politics: sectionalism.
By “sectionalism,” I mean a division among states that is too deep and profound to be overcome by congressional compromise and techniques to produce state consensus at an administrative level (such as fiscal transfers, bureaucratic discretion, and intergovernmental networks). Sectionalism is essential: it is only if and when the central government cannot generate a consensus or compromise among the states that the federal system adheres or reverts to the constitutional baseline: competition among the states.
“Hope” does not mean “certainty.” Sectionalism, to be effective, must be organized and translated into a viable political strategy and program. It is far too soon to tell when or even whether such a strategy and program will materialize. It’s not too soon, however, to think about the possibility. The potential rewards are too great to be left on the table. Today’s post covers the empirics; tomorrow’s, some casual analytics.
Continue Reading →
Who’s Afraid of the Freedom of Assembly
Richard Reinsch /
Christian Legal Society v. Martinez, Freedom of Assembly, John D. Inazu, Pluralism /0 Comments
You do not want to miss Anthony Deardurff’s excellent analysis of John Inazu’s important new book Liberty’s Refuge: The Forgotten Freedom of Assembly. Deardurff picks up where the Court left off in Christian Legal Society v. Martinez. Here is a snippet of Deardurff on Inazu:
More specifically, a five-Justice majority held that California’s Hastings College of the Law could deny official recognition to a Christian Legal Society group on the grounds that the group’s required “statement of faith” regarding sexual morality was incompatible with the school’s requirement that club leadership positions be open to all students regardless of sexual orientation. Applying its First Amendment “forum analysis” rubric, the majority determined that Hastings’ requirement was a “reasonable, viewpoint-neutral condition on access to the student-organization forum.” Concurring, Justice Kennedy emphasized that Hastings could reasonably consider a belief-affirming or outside conduct requirement to be “divisive for student relations” and inconsistent with an atmosphere of free and open discussion. “The era of loyalty oaths,” he proclaimed, “is behind us.”
Even granting that cases like Martinez may reflect a streak of liberal paternalism, one might nevertheless invert Inazu’s proposal and ask why we should protect group autonomy at the expense of stability, equality, and inclusiveness. He responds with a powerful observation from Yale law professor Stephen Carter: “Democracy advances through dissent, difference, and dialogue. The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic.” (5) Furthermore, Inazu notes, the expressive association analysis is “underwritten by a political theory of consensus liberalism, which purports to be ‘procedural’ or ‘neutral’ but whose espoused tolerance extends only to groups that endorse the fundamental assumptions of liberal democratic theory.” (11) Thus, the associational hermeneutic does not merely sacrifice group autonomy for the sake of stability and social cohesion generally, but rather for the realization of a very particular conception of those goods as envisioned by Rawlsian academic elites. If followed to its natural conclusion, Inazu notes, such a view marginalizes not only all-Christian student groups, but also “all-female sororities, all-female health clubs, and all-gay social clubs. In other words, it leaves us without a meaningful pluralism.” (11)
A Review of Justice Breyer’s Book
Mike Rappaport /
Abortion, Justice Breyer, Roe v. Wade /1 Comment
I thought I would mention Gerald Russello’s review of Justice Stephen Breyer’s book on the Supreme Court and constitutional law, entitled “Making Our Democracy Work: A Judges View.” Breyer published an earlier book on the same subject some years ago that I reviewed here.
Breyer is an opponent of originalism who defends an activist Supreme Court but claims to be in favor of judicial restraint. It is maddening. In the earlier book, Breyer did not say a word about Roe v. Wade or abortion, even though he authored one of the Court’s most aggressive decisions in this area and one might think it was inconsistent with his general approach. In his most recent book, Russello notes that Breyer again “is silent on how a judge would rule” on that issue. Here is an excerpt from my prior review:
Breyer’s focus on general purposes allows judges to select the values that the Constitution furthers and his focus on modern real world consequences allows them to assert how laws will in fact operate. With control over the facts and values, Breyer’s “active” judge has virtually boundless authority over the Constitution’s content. Thus, it is no surprise that Breyer’s tour through the Constitution — from affirmative action, to campaign finance, to federalism, to separation of church and state — only reaches destinations that Breyer appears to endorse politically.
Interestingly, Breyer’s tour fails to make one important stop — his majority opinion for the Court in Stenberg v. Carhart, which struck down a ban on partial birth abortions. One might argue that Stenberg is inconsistent with Breyer’s active liberty — purposivist approach, because the opinion protects what seems to be a personal decision unrelated to political participation.
Breyer’s first book was enough for me; I am not going to spend the time reading his second one. But Russello’s review is well worth reading.
Jonathan Adler on Why Legal Elites Underestimated the Case Against the Mandate
Mike Rappaport /
Legal Elites, The Mandate /0 Comments
Jonathan’s post is a must read. Here is an excerpt:
Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.
What explains this state of affairs? I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.
Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court. So, for instance, it’s easy for Jack Balkin to dismiss an argument premised on Bailey v. Drexel Furniture because it’s a Lochner-era decision, even though Bailey remains good law. A practicing lawyer would have been less likely to make this mistake. Indeed, the SG actually cited Bailey approvingly this week in his argument before the Court.
I agree with Jonathan entirely. It should be noted that this preference for broading overarching theories actually has influenced the right, as originalism as a constitutional approach is one such theory. Still, originalists tend to recognize that the Court is not an originalist court in the main. It appears that constitutional theorists on the left more often forget that the justices’ views are not always to the theorist’s liking.
The Triumph of Constitutional Argument
Michael S. Greve /
Michael Carvin, Obamacare, Paul Clement, PPACA /0 Comments
The legal professoriate and commentariat are completely unhinged over the impending demise of the individual mandate, the conservative justices supposed infatuation with Tea Party nostrums (see, e.g., Charles Fried’s pathetic tut-tut), and General Verrilli’s supposedly incompetent defense. So let’s go to the transcript and try to explain this one more time, in terms that even the Harvard crowd may be able to comprehend. Continue Reading →
Talking with Richard Epstein about the Rule of Law and Private Property
Richard Reinsch /
Administrative State, Constitutionalism, Private Property, Progressivism,
