Archive for the ‘Law’ Category

My friend Damon Linker has a new piece for The Week arguing that George W. Bush, Dick Cheney, and Condoleezza Rice cannot be war criminals, because the laws they are accused of violating are merely “international law,” which is no law at all:

[I]t’s inaccurate to describe these rules and regulations as laws. They are, strictly speaking, bilateral and multilateral treaties between and among governments.

Laws, by contrast, are written, enacted, and executed by governments, and they apply exclusively to those residing within territorially defined political communities (be they city states, nations, or empires). Citizens of liberal democracies hold, moreover, that laws gain legitimacy — and become binding — only with the consent of the governed. And that standard is (tacitly) met only when the laws have been crafted by the people’s democratically elected representatives.

“International law” fulfills none of these requirements.

Treaties among governments are still written and enacted by governments. They enjoy the “consent of the governed” in just as much a sense as national laws do(*): they are created by representatives of the people. International organizations, after all, represent governments, who in theory represent voters.

Let’s look at what the U.S. Constitution says: Treaties are the supreme law of the land (Article 6, clause 2). That means they override laws passed by Congress! The Supreme Court can and should strike down ordinary legislation that conflicts with the U.S. government’s treaty obligations.

Now, international law doesn’t have a coercive enforcement arm (and a good thing too), but it does have enforcement mechanisms that rely on reputation and incentives. When a government violates its treaty obligations, it runs the risk of incurring sanctions, including (for war crimes) the extradition of its leaders to international criminal courts.

The U.S. government should be careful about entering into new international agreements and treaties precisely because international laws do have legal force. Were these instruments merely rhetorical, the Senate could afford to give them merely perfunctory debate, but Senators realize that they do matter, and they do debate them very seriously.

Now, whether Bush Administration officials are war criminals is another matter. It’s a complicated issue, but interested readers can take a look at the debate over how the Rome Statute of the International Criminal Court should define the crime of “aggression.” One can plausibly argue that the U.S. government had not signed up to a particular definition of this crime at the time of the Iraq War and so was not bound by it.

(*) Which is to say: very little. I’m not bound to obey laws simply because someone assigned to represent me voted for them. But this argument undermines the moral force of all kinds of laws, not just international laws.

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The Economist has come out against race-based affirmative action in the United States, a surprising (to me) move given the magazine’s socially left-of-center outlook (e.g., for legalizing drugs and banning handguns). Indeed, the way in which affirmative action as currently practiced discriminates against Asians even more than against whites is difficult to justify. (I argued here that state-sponsored affirmative action is not inherently unjust.) Moreover, the paternalist case against affirmative action cannot be dismissed out of hand:

[After California banned affirmative action, t]he number of blacks and Hispanics enrolled fell, particularly at the flagship schools, Berkeley and UCLA.

What was more surprising was that in the entering class of 2000 a record number of black students graduated on time. Mr Sander and Mr Taylor argue that previously low black graduation rates were a result of the mismatch which occurs when a student granted preferential admission winds up at an institution for which he is not academically suited. He begins at a marked relative disadvantage and falls behind quickly. His grades get lower and lower and in the worst cases he loses confidence and fails to graduate.

Mr Sander and Mr Taylor attribute a host of bad outcomes to mismatch. For example, more black than white high-school seniors aspire to science and engineering careers, but once in college twice as many black students as white abandon those challenging fields.

Note that if you buy this argument against affirmative action, you should also oppose “legacy” preferences in affirmative action (and rational parents would not oppose the move, leaving no apparent constituency on the other side of the question).

Nevertheless, affirmative action in the United States is not as noxious as ethnic and racial preferences in many other parts of the world. In Sri Lanka, ethnic Sinhalese university applicants receive large preferences relative to ethnic Tamils. The reason seems to be nothing other than that Sinhalese are the majority in the country, and they will damned well discriminate against minorities however they please. (Such is the reality of democracy in the developing world.) In Malaysia, Malays and other bumiputera receive wide-ranging preferences in education and business. (For instance, firms must have at least 40% Malay ownership.) Chinese and Indians suffer.

So in most of the world, “affirmative action” just means that politically dominant ethnic groups get to repress the politically subordinate. But in the United States, affirmative action does not mean the translation of the ethnic majority’s political power into other spheres of social life. Blacks in the U.S. remain a small minority of the population and thus suffer from collective political disadvantage (due in part as well to their overwhelming support for one political party, which leads politicians to take their votes for granted). Eliminating all educational and economic advantages for blacks will alienate most of them. Of course, many African-Americans oppose affirmative action — but most still support it and see a role for it. The Supreme Court should be reluctant to impose a judicial solution to a sensitive political problem. A sweeping ruling constitutionally prohibiting virtually all racial preferences in all walks of life is more likely to increase racial tension than diminish it. The justices should apply the law but do so humbly, with the understanding that nine justices cannot foresee all future political contingencies.

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David Friedman provides what I think is the best answer to Landsburg’s provocative question.

I think I have now answered Steve Landsburg’s puzzle. The difference between his example (or mine) of an action that imposes only subjective costs and his example of an activity such as reading pornography, or Bork’s of using contraception, that imposes only subjective costs, is not the nature of the harm. The difference is that in the one case the cost is of a sort that can be measured, the action controlled, via a property rule. In the other, it is not.
More precisely, the property rule under which I have a right to read porn and you can only stop me by offering to pay me not to do so produces its result by ignoring the cost my porn reading imposes on you, since, as with the case of risks imposed by careless driving, including that cost requires an unworkable contract between all of the prudes and all of the would-be consumers of porn. The property rule under which you have a right to forbid me, or anyone else, from reading porn, produces its result by ignoring the cost your ban imposes on me, for the same reason.
Neither property rule gets the cost/benefit calculation correct, but the former rule is a great deal less expensive to enforce than the latter, which is an argument for it.
What about a liability rule? That is the point at which the subjective nature of the harm comes in. It is true that, from the standpoint of economics, all harm is ultimately subjective—having my arm broken or my car dented would not be a cost under sufficiently bizarre assumptions about my preferences. But some subjective costs are a lot easier to measure externally than others. When I claim damages for my wrecked car, there are market prices out there for repairing or replacing it that provide a court with a reasonable basis for estimating the cost. When I announce that your reading of porn, or oil drilling in a wilderness I never plan to visit, inflicts large psychic harm on me, there is no such basis for checking my claim.
In other words, the property rule is more efficient where it is harder to measure the harms of transgression and where it is easier to arrange payment and trade if the default allocation is inefficient.
Steve Landsburg follows up on his initial post. I think Brad DeLong owes him an apology.

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My Twitter feed has been filled with Americans and others expressing outrage about a Saudi court’s sentencing a man to be paralyzed from the waist down. He had stabbed a man in the back, paralyzing him.

I’m not going to defend or oppose the sentence, but I am going to defend a principle here: the violence inherent in the justice system should be obvious rather than hidden.

A couple of years ago, Peter Moskos suggested bringing back flogging as an option for prisoners: a year off your sentence for every stroke of the lash. He wrote eloquently of the horrors of the carceral state. And, so long as judges don’t simply respond by increasing sentence duration, it’s hard to see how the option to choose the lash would make prisoners worse off. As I wrote at the time:

I’m pulled to agree with Moskos. But I worry. I worry that the best evidence seems to suggest that prison deters crime mainly through incapacitation – criminals cannot commit crimes except against other criminals while behind bars. There’s good evidence for deterrent effects through things like California’s three strikes legislation, but incapacitation matters a lot. Longer term crime rates could go down with a switch from prisons to flogging if those committing crimes were better able to maintain a connection to the community and if prisons encourage recidivism. But rates would almost have to increase in the short term: those viewing flogging as much cheaper than a jail term would expect a reduction in the effective expected punishment for a criminal act. I’d hope that Moskos’s prescription would maintain the use of prisons as preventative detention for the really scary crazy dangerous cases.

A decade ago I would have worried that reducing the price of punishment experienced by the state would increase the total amount of punishment. If it’s expensive to keep a prisoner for a year, the state might be reluctant to put marginal offenders in jail. That’s not proven much of a constraint, so I worry rather less about that now.

But I do worry that the mob used to enjoy the spectacle of a public hanging.

When I read about cases like John Horner, (likely) entrapped by the DEA and facing a 25 year mandatory sentence for having sold his leftover prescription pain medicine to another man who had made him believe that he was in desperate pain, I wonder whether it’s the Saudis or the Americans who are really out of line. If you had two young daughters, and were facing 25 years delivered by the American justice system for doing no harm to anyone, wouldn’t you prefer surgical paralysation? I would.

Sometimes I wonder whether the focus on injustices committed abroad are a way of avoiding thinking of the ones at home.

In other news, we now have decent evidence that “tag and release” is more effective in preventing recidivism than incarceration. Here’s the abstract from the newly published paper by Di Tella and Schargrodsky in the Journal of Political Economy:

We study criminal recidivism in Argentina by focusing on the rearrest rates of two groups: individuals released from prison and individuals released from electronic monitoring. Detainees are randomly assigned to judges, and ideological differences across judges translate into large differences in the allocation of electronic monitoring to an otherwise similar population. Using these peculiarities of the Argentine setting, we argue that there is a large, negative causal effect on criminal recidivism of treating individuals with electronic monitoring relative to prison.

Lengthy carceral sentences for drug crimes are arguably behind much American inner-city disfunction. When a reasonable proportion of men of marriageable age are in prison, really bad things start happening to family formation.

Moskos is looking more right all the time.

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Roger Koppl argues this week at ThinkMarkets that “Income inequality matters.” He thinks it matters so much that he says it twice. He believes “Austrian,” pro-market, economic liberals should be speaking up more on this “central issue.” I think Koppl could not be more wrong. The issue deserves all the inattention we can muster for it.

The problem I think is not Koppl’s motives. He rightly says that we should “watch out for ways the state can be used to create unjust privileges for some at the expense of others.” He is certainly right about that. He argues that unjust state policies may be skewing market results in such a way as to increase inequality. He may be right about that. But he is wrong in suggesting that we ought therefore to be paying attention to income inequality. We ought therefore to be paying attention to those policies. Whether they produce greater inequality is neither here nor there.

Koppl gives four examples: (i) policies that privatize profits and socialize losses, (ii) bad regulation, (iii) collapse of the rule of law, and (iv) public schools. I can certainly join Koppl in a hearty wish that we not only attend to these unwarranted policies, programs, and tendencies, but that we do so with a degree of urgency prompted, in part, by their effects on the poorest and most vulnerable among us. But talking about inequality is precisely a distraction from doing so.

In a great paper of a few years ago, Harry Frankfurt argued that “Egalitarianism is harmful because it tends to distract those who are beguiled by it from their real interests.”* Frankfurt thought that focusing on equality was actually pernicious because it distracted us from attention to real harms, of which inequality is at most an indicator. And he was right. It may well be that, for example, the evisceration of the rule of law results in greater income inequality. But it also might not. Whether or not it does so, however, it is unjust, and it deserves our attention. Similarly for the increase in moral hazard and regulation, to say nothing of the deplorable system of public education. All of these need attention, and one prime reason they do so is because of their effects on those least capable of circumventing their evils. If we care about the poor, what we ought to care about is bad policy, not indicators that may or may not have anything to do with policies that are making people worse off. As long as we are worrying about income inequality, we are worrying about the wrong thing.

* In “The Moral Irrelevance of Equality,” Public Affairs Quarterly, April 2000.

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Several of my progressive Facebook friends posted about Gabrielle Giffords’ testimony before Congress about gun legislation, editorializing that we/they should pay close attention because of her personal experience as a victim of violence. Now, I understand why some criminal courts allow victim-impact statements: before deciding what sort of punishment should be meted out, it’s relevant to see how the crime has had an impact on the victim. But Congress isn’t in the business of punishing particular offenders – its function is to create legislation for the good of the country. (Yes, I’m rolling my eyes too, but let’s stipulate this arguendo.) So the relevance of victim-impact statements in this context is…what? This strikes me as legislating the ad misericordiam fallacy, using raw emotion as a substitute for rational analysis. But what’s especially irritating is that the last big example of this was when the other party was in power, and the party in power always has a predictably selective memory. After 9/11, emotions were pretty raw. A lot more pain and suffering that day than after any of the recent mass shootings. What was the result? A decade-long war in Afghanistan. Rampant abuse of executive power. Indefinite detention without trial. Lost privacy rights. The TSA. Kill lists. Mass shootings are to the left what terrorist attacks are to the right: emotional outcry by the public leading to grandstanding by whichever party is in power, and increased erosion of liberty. This is what happens when you legislate based on raw emotions, and disregard both the Constitution and the very idea of rational analysis. Let’s not keep making the same mistake.

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Several commentators have weighed in on President Obama’s decision to stop deporting certain immigrants under 30 who were brought illegally to the country when they were under 16. This morning, Andrew Napolitano and Ilya Somin have come down firmly on opposite sides of this issue.


Along comes the president, and he has decided that he can fix some of our immigration woes by rewriting the laws to his liking. Never mind that the Constitution provides that his job is “to take care that the laws be faithfully executed,” and that “all legislative power” in the federal government has been granted to Congress. He has chosen to bypass Congress and disregard the Constitution. Can he do this?

There is a valid and constitutional argument to be made that the president may refrain from defending and enforcing laws that he believes are palpably and demonstrably unconstitutional. These arguments go back to Thomas Jefferson, who refused to defend or enforce the Alien and Sedition Acts because, by punishing speech, they directly contradicted the First Amendment. Jefferson argued that when a law contradicts the Constitution, the law must give way because the Constitution is the supreme law of the land and all other laws are inferior and must conform to it. This argument is itself now universally accepted jurisprudence — except by President Obama, who recently and inexplicably questioned the jurisdiction of the Supreme Court to invalidate the Affordable Health Care Act on the basis that it is unconstitutional.

Nevertheless, there is no intellectually honest argument to be made that the president can pick and choose which laws to enforce based on his personal preferences. And it is a profound violation of the Constitution for the president to engage in rewriting the laws. That’s what he has done here. He has rewritten federal law. (emphasis original)


Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States – all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally,Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria, that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

This is a tough one. If you adopt the constitutional text as your guide, Obama’s actions seem clearly illegal. On the other hand, the constitutional text, interpreted literally, may demand something that is impossible: perfect enforcement. What say you, Pileus readers?

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When X is Not-X

There have been some wonderful pieces written in the past few weeks trying to make sense of the President’s claim that a SCOTUS decision to overturn the Affordable Care Act would be unprecedented. Of course, the pieces often proceed as follows

  1. The President stated X
  2. The President obviously knows not-X
  3.  Therefore X must have a deeper meaning and significance

The newest installment—and one that may come the closest to providing an accurate interpretation—is written by Jonathan Cohn i(n today’s New Republic).  As you will recall, the Solicitor General made reference to Lochner and Chief Justice Roberts responded by reminding the government’s attorney that the decision involved state regulation rather than federal regulation. Deploying the approach presented above, we can conclude that either (1) the SG was incompetent or (2) the appeal to Lochner had a deeper meaning that must be discerned. Obviously, (1) could not be true.

After a rather enjoyable discussion, Cohn concludes:

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.

Any thoughts?

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In the latest issue, The Economist gives a startling look on the dire situation of courts in America. Budget cuts and, at the federal level, political obstruction have fostered delays and case backlogs. Some of the dire consequences:

  • In California, uncontested divorces now take a year to obtain.
  • One circuit court in Georgia has stopped civil adjudication (traffic offenses, etc.) altogether.
  • Courts in 14 states are closed on some work days.
  • One municipal court in Ohio stopped accepting new cases because it could not afford to buy paper.
  • New York judges’ pay has been frozen for a dozen years, even as their caseload has increased by 30%.
  • In Florida in 2009, according to the Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in GDP a year.

And so on.

As a libertarian, I believe that the judicial function is a core function of government, and that government should fund it properly and do adjudication well. Judges should be highly paid and courthouses well staffed and efficiently run. Private arbitration is all well and good, but arbitration contracts ultimately depend on enforcement by the public courts. States should be increasing, not cutting, judicial budgets, even if they have to raise taxes or cut more severely other programs in order to do so.

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Few in power find it convenient to notice inconsistencies in their own conduct. Alas, but President Madison was no exception. Federalism and decentralization exist precisely because free constitutions should not depend on the good graces of those in office, but on the checks necessary to harry them back under the law.

Seeking the financial means to carry on his war, Madison did not appreciate New England’s opposition to his measures or her refusal to lend. As the enemy bore down from the north at various points along the Canadian border, Madison attempted to impose conditions on the New England militias, not trusting them, as he did the other states, to staff and command their own forces.

In these efforts, the fourth president was roundly rebuffed by the governors and legislatures of Massachusetts, Rhode Island and Connecticut. They correctly pointed out that the Constitution reserved to each state the right of officering her state militias: The president could certainly call those units into service according to the constitutional powers that authorized Congress to declare war, but he could not reorganize those units without a state’s permission. Unable to get his way, Madison refused to mobilize New England’s forces and subsequently refused to pay any expenses for her defense.

Governor Caleb Strong of Massachusetts organized and raised his own force of some 10,000 men at a cost of 1 million dollars, which was a considerable sum in that day. Facing such staggering costs and outraged by what they considered to be the unconstitutional and dangerous manner in which their region had been treated, the New England states elected to protest in the same spirit as they had done against the embargo, but this time they went a step further: Coordinated state action.

Under the inspiration of Harrison Gray Otis and Theodore Dwight (the brother of Timothy Dwight of Yale), Connecticut, Rhode Island, Massachusetts, and several counties of New Hampshire and Vermont sent representatives to meet in Hartford Connecticut between December 15, 1814 and January 4, 1815. There they formed a list of grievances and a call for constitutional amendments, concluding with a threat to organize another convention should these proposals not be taken up by the other states in the Union.

The men who attended this gathering tried to moderate the more extreme elements calling for secession and outright resistance to the national government (see Justin Winsor, Narrative and Critical History of America, vol. VII, Houghton Mifflin, 1888, p. 321 and notes) but the prospect of a convention sent shivers through the administration. It is not difficult to see why.

In “A Short Account of the Hartford Convention to which is Added an Attested Copy of the Secret Journal of that Body” (1823), Theodore Lyman, noted that Massachusetts was quite open about her aims, and “the sense of her citizens was at that time well known, and in relation to the Hartford Convention, she adopted without delay that course of conduct, of which an eminent example had been given less than half a century before, and which, in this juncture of affairs, was especially judicious, from the vast magnitude of the subject and occasion.” (p.8) That example was Madison’s own call at the end of the Annapolis Convention for the convention that followed in Philadelphia, which of course ultimately put an end to the Articles of Confederation.

When the Hartford Convention got down to business on its second day, it considered, according to the Attested Copy of the Secret Journal, the two constitutional grounds of New England’s grievances just mentioned: “The [unconstitutional] powers claimed by the executive of the United States, to determine, conclusively, in respect to calling out the militia of the States into the service of the United States; and the dividing the United States into military districts with an officer of the army in each thereof, with discretionary authority from the executive of the United States, to call for the militia to be under the command of such officer.”

The second grievance followed immediately after: “The refusal of the executive of the United States to supply, or pay the militia of certain States…on the grounds of their not having been called out under the authority of the United States, or not having been…put under the command of the commander over the military district.” These two grievances then formed the basis of the final and more damning constitutional conclusion that the national government had failed to meet its obligation as stated in the preamble “to provide for the common defense.”

In their protest the members stood on solid textual grounds. It was true that Section Eight of the First Article gave Congress the power “To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States,” but it specifically reserved “to the states respectively the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Did this “prescribed” discipline give Madison the right to reorganize the New England militias? It might have, but only if Congress had specifically formed such a policy, and had done so equally for all parts of the Union. The fact that President Madison asserted this as a matter of executive authority, and the fact that he applied that policy unequally to some of the states and not to all of them, violated both the spirit and the letter of the fundamental law. With these arguments before them, the delegates proposed their Constitutional remedies.

They called for consideration on the part of the states for amendments that would permit the state legislatures “some arrangement whereby the States may be enable[d] to retain a portion of the taxes levied by Congress, for purposes of self defence (sic), and for reimbursement of expenses already incurred, on account of the United States.” They then proceeded to request further consideration be given to certain other constitutional issues: To restrict Congress’ power to declare war; to restrain its power “to make new States, and admit them into this Union; to limit Congress’ power to impose embargoes and restrict commerce; to prohibit a president from the same state serving two consecutive terms; and finally, and perhaps most ominously of all, to eliminate the 3/5ths provisions of the Constitution “respecting slave representation, and slave taxation.”

This last provision underscored a growing cultural and political divide already evident between the northern and southern states. New Englanders had always felt aggrieved to some degree by the so-called 3/5ths compromises in the Philadelphia Convention. Already by this time, they saw it as a principal driver of western expansion, and the Southern states made little bones about their desire to move the peculiar institution westward, and to form an alliance with that region in opposition to New England.

Thus the Hartford delegates sought restrictions on admitting new states as well as the elimination of the South’s use of slaves in calculating her population numbers. It is interesting to note that at this point in time, the South’s rising star, J. C. Calhoun of South Carolina, was a strong nationalist defender of the War of 1812 and a proponent of a new national bank so that the general government could more easily finance such military ventures in the future. The irony of ironies is that this situation was about to change yet again.

As reported by Theodore Dwight, the Secretary of the Hartford Convention, in his later history of that meeting, the timing of the delegates’ report to Washington could not have been worse. It arrived just as news from England of the War’s end came along with the report of Andrew Jackson’s victory in New Orleans. While the war had not gone so well for America in general, the popular sense created by this juncture produced a patriotic fervor that was ill disposed to consider of the resolves of the Hartford delegates.

The commission attempted to quietly retire back to New England, but the popular reaction, especially among Madison’s Republican Party was to revile its proceedings as radical secessionism, and the reputation of that convention has labored under such a misapprehension ever since.

Far from secessionism, however, the Hartford Convention presented yet another means of interposition through coordinated state action, and to the degree that such coordination gathered more sustained attention (even if in the negative) from the other states, to that degree it succeeded. With the war’s end, Hartford’s issues became moot, but one could easily imagine what might have developed had the exigencies of war persisted.

The next stage of development in the ideas of interposition, however, would raise the stake higher, actually attempting what Jefferson had contemplated in the Kentucky Resolves: Nullification. Interestingly, the author of this approach was our leading nationalist of the 1810s. Calhoun had been a student of Theodore Dwight’s brother about a decade earlier at Yale. Timothy Dwight shared his brothers’ attachment to the reserved rights and powers of the states. Calhoun had resisted such thinking as his student, but when the issue of tariffs touched his own state’s interests in the next decade, he began to avail himself of Dwight’s understanding, coming to a deeper appreciation of the need to constitutionally restrain centralized power, but he did so with an interesting and novel twist that would have a profound impact on the popular perception of state’s rights.

And Calhoun’s solution would prove perhaps the most difficult and cumbersome of all…

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When tensions with England finally began to degenerate into violent altercations, first on the western frontier in such places as Tippecanoe and later along the Great Lakes, the Madison administration decided the time had come to vindicate America’s claims of offended sovereignty. Unsurprisingly, these claims also happened to coincide with popular desires to expand into the Old Northwest and Canada. Those particular voices were especially powerful in the mid Atlantic and southern states. Two of the leading voices of those regions, Henry Clay and J.C. Calhoun were united at this point in their careers, generally supporting more vigorous forms of nationalism at home and abroad.

But Mr. Madison had let the charter of the first Bank of the United States expire in 1811, and when he turned to finance his war he had of necessity to turn to state banking institutions. These entities were comprised of various private and state banks who were generally quite willing to buy American treasury securities. There was one region, however, that was not quite so willing: the New England states and the banks that operated under their approval.

Already rocked by years of embargo, New Englanders were poised to suffer even more outrages in open war. Popular sentiment ran high against the conflict, and when the treasury presented its notes for sale to New England banks they received a cool reception. The vast majority of such paper was consequently sold to the south and west. Indeed, needing to purchase supplies in the north, the national government found this a particularly galling impediment. To remedy the situation, Madison’s administration not only borrowed from existing banks in the mid-Atlantic states, it actively promoted new ones, even over the existing laws of those states that had tended to restrict private unchartered banks.

From 1811 to 1815 the number of banks more than doubled, from 117 to 247, 35 of which were unincorporated. The result was a massive increase in circulating paper money–nearly three times the amount in circulation at the start of the war. Treasury certificates were used as, and encouraged to be considered backing for notes in the same fashion as gold or silver. But one difficulty was not anticipated. When the District of Columbia was burned by British marines on August 24, 1814, it quickly became apparent that certificates on the U.S. government might not be such a sound investment.

Runs the banks that very month demonstrated the insolvency of most of the new institutions, and in opposition to various state laws, the national government encouraged the mid-Atlantic and southern states to ignore or restrict bankruptcy proceedings against their offending banks, but allowed those very institutions to pursue such proceedings against their own debtors. All this was done, no less, while they continued to make new loans, adding yet even more to the already general inflation.

Only one region did not experience suspension of payments or bank runs: New England. For once in over six years, the New England states could boast a small economic indicator in their favor. In Federalist 10, Madison had argued that federalism might serve to insulate local evils from becoming universal, national ones. In this case, the evils of expansionism had been halted at the gates of Massachusetts, and New England’s representatives left little doubt about their sentiments in this regard.

In words that would later come back to him, a young Daniel Webster, then a representative of New Hampshire, declared in Congress on December 9, 1814, that the “operation of measures unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State Governments exist, and their highest obligations bind them to the preservation of their own rights and the liberties of their people.”

Would it be too much to suspect that Webster both knew and approved of the New York statement of ratification? But even if he hadn’t, and that seems dubious, the words demonstrate just how deeply the sense of the states as checks to central power was engrained in the American mind. At this point in time, Webster was no Jeffersonian. He was a New England Federalist, and the home states were listening. On to Hartford.

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With the war in Europe between France and England intensifying, Americans found their rights as neutral traders regularly violated by both French and British navies, and French and British port restrictions further limited American opportunities for commerce. To make matters worse, on numerous occasions, English vessels had boarded American ships and “impressed” many of their crews into service as if they were British subjects. Such disregard for American sovereignty and rights was taken hard by the public, but America’s naval capacities were far from adequate to enforce a due respect on the high seas. Yet doing nothing was not a popular option.

President Jefferson attempted to draw a lesson from our colonial past and impose an embargo of American trade. The hope was that such an embargo would inconvenience European commerce to such a degree as to bring the powers, especially Britain, to that level of respect which American arms were insufficient to obtain. In 1807, the Embargo Act was imposed, interdicting all vessels from entering or exiting American ports. Trade was the life blood of New England, however, and the Embargo hit them especially hard. As weeks moved to months and months to a year, the suffering in the port cities became nearly unbearable. Numerous calls for lifting the interdiction were heard, but none of the offending powers seemed even remotely ready to bargain. Unwilling to surrender the point of honor or to risk outright war, Jefferson’s administration remained steadfast in its policy.

At a certain point, the states began to question not only the efficacy of the measure, but its justice. Should not the risks of trade be borne by the traders themselves? Why a general restriction? If families and communities are ruined, is this not an indication of a policy gone too far? Indeed, so far that it might conflict with a vital principle of constitutional government? The national authority was to engage in defensive action in support of the states and their communities, not in their strangulation. If it could not live up to its military obligations, this was no excuse for an imposition of a total ban on trade, a power not contemplated in the original design.

In the earliest resolutions of Massachusetts, Connecticut, and Rhode Island the hue and cry was again heard. Massachusetts’ legislature, as Thomas Woods noted in his collection of sources, sought only formal political means, and counseled patience on the part of its citizenry as it pursued these avenues of redress. Rhode Island observed that it was “the duty of this general Assembly, while cautious not to infringe upon the constitution and delegated powers and rights of the General Government, to be vigilant in guarding from usurpation and violation, those powers and rights which the good people of this state have expressly reserved to themselves…” Here were the states as Sentinels calling out their warning.

But Connecticut, first through its governor and then its legislature went further still, openly and officially “declining to designate persons to carry into effect, by the aid of military power, the act of the United States, enforcing the Embargo.” And “that the persons holding executive offices under this state, are restrained by the duties which they owe this State, from affording any official aid or cooperation in the execution of the act aforesaid.”

This action went the further step of embracing the idea of non-cooperation, and its precedent went back to colonial legislatures that had refused to cooperate with the enforcement of the Imperial Stamp Act. No force would be applied directly to interdicting federal officials, but no cooperation would be accorded them either. They could do their work on their own, but in the absence of active assistance or support from state institutions, they would find that task far more difficult. No power of the federal government could compel action on the part of the states in this regard.

And here New England’s civil society operated in yet a further way to exert force against the centralized exercise of power, again, much like what had happened in earlier colonial protests. While not directly engaged in administering smuggling, the governments of New England gave tacit affirmation of private actions through their resolutions. New England’s merchants were long practiced in the arts of running goods around imperial restrictions. Now they would do the same with respect to national ones. And the general government found its resources stretched to the breaking point.

Remarkably, Jefferson himself later reflected on this opposition of local authorities. He recalled this episode as a powerful illustration of why local governance is so critically important to the maintenance of a free society! No longer president, he could reflect with some approval on the nature of the opposition he had then faced. (more…)

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I recently came across this interesting, five-year-old interview with law professor William Ian Miller on “talionic” law in the Middle Ages, which specified literal “eye for an eye” justice. Talionic law developed in societies that lacked stable state institutions, like Iceland and early England. As such, it was embedded in strong extended-family institutions that used tit-for-tat strategies to keep order.

The traditional understanding of “eye for an eye” justice is that it is retributive, that is, that its motivating principle is punishment of the wrongdoer, pure and simple. Miller, however, makes a persuasive case that such systems are actually restitutory, that is, aimed at making the victim whole. In that sense they are much more humane than much contemporary criminal law, which ignores the victim and unproductively locks away criminals. An excerpt that makes the argument in a nutshell:

Your book argues that we often use the term “eye for an eye” to describe a harsh kind of justice from the past. But talionic societies could be said to put a higher value on human life and the human body than we do. They were much more committed to finding the exact worth of body parts and lives. So, let’s say you poke out my eye…

Then, instantly, my eye becomes yours. To get the value exactly right, we say an eye is worth an eye. You have a right to my eye. Now you can say to me, “I’m going to take your eye.” Then I’m going to say, “Hey, what would you be willing to accept instead?” It becomes an initial bargaining position.

If you want victims to be more highly valued and you want real, adequate compensation, this is how to do it. Now if I offer you what some lousy insurance company says your eye is worth — say, $100,000 — you’ll say, “No way! I would never have let you take my eye for that.” Instead, you can be sure I’ll put the same value on not losing my eye that you would have put on yours, and I will pay you that amount to keep my own eye. How about $5 million? Let’s start there. And we’ll bargain it out.

The book mentioned is this.

So how about it – should we return to the lex talionis?

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The Seattle Times, Slate, and other outlets have run interesting stories in the last couple of days discussing a new initiative that will appear on this November’s ballot in San Francisco–and hold onto your privates, gentlemen: It would ban circumcision for all minors (under age 18), rendering it a misdemeanor punishable by up to one year in jail or a $1,000 fine. It would contain no religious exemptions. While this is just a ballot initiative–not yet an approved ordinance–the mere threat of its enactment (and the fact that its supporters managed to get over 7,000 signatures) bothers my libertarian soul.

Media reports obsess about the First Amendment implications of such an ordinance, though honestly, since the Supreme Court’s decision in Employment Division v. Smith (1990), any state or local law of “general applicability” that burdens the free exercise of religion will be subject only to low-level rationality review (federal actions are subject to more rigorous review under the Religious Freedom Restoration Act). Since the supporters of the proposed circumcision ban claim that circumcision is a form of “genital mutilation” that is painful and unnecessary, it would seem to sail easily over the “rational basis” hurdle.

So frankly, I’m not all that interested in the First Amendment implications, though Smith is an intriguing case worthy of reconsideration. Instead, I’m struck by the lack of attention given to the individual liberty (substantive due process) implications of San Francisco’s proposed circumcision ban. I had thought it long settled that parents have a broad (though admittedly not limitless), presumptive liberty to raise their children as they see fit. Circumcision may indeed be painful to an infant, but is it any more so than piercing a little girl’s ears? Or tattooing your child? In either case, there is temporary pain and an extremely low risk of serious harm. In both cases, the procedure is undertaken to satisfy the parents’ own cultural or aesthetic preferences.

Supporters of the ban try to analogize circumcision to female genital mutilation, but I’m just not buying it. Female genital mutilation involves cutting out the clitoris, rendering the girl disfigured and permanently unable to have a normal, healthy sexual life. Circumcision obviously has no such long-term effects, as the 80 percent of U.S. men who’ve undergone the procedure can attest. Moreover, circumcision may actually have health benefits for some– it has been considered a way to lower the risk of AIDS in African communities ravaged by that disease.

On a broader level, I’m bothered by the fact that–particularly in an ultra-progressive city like San Francisco–there’s a decent degree of support for nanny-state restrictions on individual liberty, particularly when it relates (at least tangentially) to an individual’s choice of something so fundamental–”deeply rooted” in our history and tradition–as to what medical or aesthetic procedures to undergo. I know we are talking about minors here, but again–parents are presumptively allowed to make medical and aesthetic decisions for their children all the time. But then again, progressives are just as aggressive about nanny-state intrusions into individual liberty as conservatives, when it suits their agenda–witness progressive-supported bans on foie gras in California beginning in 2012 and the FDA’s recent decision to revoke approval of Avastin as a treatment for breast cancer.

Would love to hear others’ thoughts.

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Not long after the ratification of the Constitution, Madison came to have serious doubts about his former Federalist friends. Particularly, he came to suspect the sincerity of many who had asserted that the new government would possess only those powers specifically delegated to it.

The first disappointment came with Hamilton’s championing of the incorporation of the Bank of the United States in 1791. It sparked the formation of the first party system: Federalists who supported the bank versus Republicans (not the modern party by that name) who opposed it. Madison felt especially sensitive to this issue. He remembered that the power of incorporation had come up at the Philadelphia convention. Indeed, he remembered it so well because he had been the one to move for its approval. He also recalled that it had been roundly voted down.

To Madison’s thinking, the power to incorporate was a very particular and peculiar power. At the time he had proposed its inclusion in the Constitution, he was certain it could serve important national purposes, but having been voted down, he was just as certain that no such power had been given to the general government.

Hamilton took a different view. The bank, he argued, would be of such significant utility to the collection of taxes, the paying of obligations, the administration of finance, both public and private, and of the regulation of commerce and the value of coinage, that it achieved the level of an implied power. Its necessity was established by its usefulness, and as such, it was constitutional.

To Madison that way of thinking amounted to no limits at all. By such an assumption, anything deemed useful could be done by the federal government regardless of whether or not it had been specifically written down. Where then was the promise of reserved and delegated powers?

Madison summarized his concern poignantly on the floor of the House: “With all this evidence of the sense in which the con (more…)

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New York was Hamilton’s great project. So closely divided was the state, that at various moments, he despaired of its coming into the union.

At one point the Antifederalists offered a compromise. They would support a conditional ratification dependent on the passage of certain key amendments, including the all important construction of delegated and reserved powers, or what eventually would become the Tenth Amendment. Hamilton wrote Madison for his opinion of the proposed compromise, and the response was unyielding: New York could “not be received on that plan.” It must be, Madison elaborated, “an adoption in toto, and forever.” Hamilton read the letter aloud to the Convention and it is reputed to have steeled the nerves of the Federalists for resistance. Rather than read, “on condition,” New York’s statement of ratification was amended to say, “in confidence.” The statement ran thus:

“Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration, — We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution.” (Emphasis added)

In his America’s Constitution, A Biography (2005) p. 38, Ahkil Reed Amar concludes that this wording cinched the case against conditional ratification based upon powers reserved to the people of the states. Amar’s particular aim was to put any idea of legal secession to rest, but he also went on to implicate other forms of interposition as well.

Not so fast.

Amar stopped his reading at a point altogether too convenient for his thesis. Here is what the rest of the paragraph said:

“In full confidence, nevertheless, that, until a convention shall be called and convened for proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof; that the Congress will not make or alter any regulation in this state, respecting the times, places, and manner, of holding elections for senators or representatives, unless the legislature of this state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that, in those cases, such power will only be exercised until the legislature of this state shall make provision in the premises; that no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this state, ardent spirits excepted; and the Congress will not lay direct taxes within this state, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this state to assess, levy, and pay, the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner as the legislature of this state shall judge best; but that in such case, if the state shall neglect or refuse to pay its proportion, pursuant to such requisition, then the Congress may assess and levy this state’s proportion, together with interest, at the rate of six per centum per annum, from the time at which the same was required to be paid.”

Here the representatives of the people of the state of New York fairly put the new government on notice in no uncertain terms that they reserved certain powers to their own legislature. (more…)

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Among the defenders of the Constitution, a great deal was said about the states as a check to the power of the national government that informed the first ideas about interposition. 

Madison’s contention in Federalist 39 is well-known. Our union was to be “partly federal and partly national.” Among the premier federal attributes were such provisions as the equal representation of the states in the Senate by senators appointed through state legislatures, portions of the Electoral College, portions of the amendment process, and the very means of ratification through conventions of the sovereign peoples of the various states.

This last attribute is often not given the attention that is due to it, but James Madison made this point repeatedly in other venues as well. He noted it in various letters and in the state ratification convention in Virginia. It is a major part of the argument against the notion put forward by his critics that the Constitution would establish a consolidating government.

Here is what Madison’s Publius said: “[T]his assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state…the authority of the people themselves. The act, therefore, establishing the constitution, will not be a national, but a federal act.”

This point was repeated again in Virginia’s ratifying convention. The reason was to assure the Constitution’s critics that the sovereign power of the people of the states was not being usurped. If a simple national majority, he reasoned, were all that was required to form the union, then the majority of all the people of America could bind Virginia or Rhode Island even if they had voted in the negative. This was not the case he assured his opponents.

But beyond ratification, did this conception of sovereign power have any other constitutional implications for the states? What exactly is the relationship between the people of the states and the national government? What if there is a dispute between them? This is where Publius becomes more ambiguous, and it is from here that much of the controversy concerning Madison himself originates.

In the same essay, Madison went on to argue that national supremacy meant that a national tribunal must determine the legitimacy of national laws, at least “so long as they are objects of lawful government.” Setting aside for a moment what is meant by “lawful,” he asserted, “It is true, that in controversies relating to the boundary between the two jurisdictions [state and national], the tribunal which is ultimately to decide is to be established under the general government.” This is necessary, he believed in order “to prevent an appeal to the sword, and a dissolution of the compact.” Really?

Where then resides the hoped for check to centralization? Here it rests on the impartiality of the judges of the court, for whom “all the usual and most effectual precautions are taken to secure this impartiality.” The difficulty is that the very contest presumes an illegality. A state would not contest a national act unless it thought the act to be unlawful; that is to say, not permitted by the Constitution. Is it then reasonable to conclude that they will rely upon the judgment of a national court? (more…)

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A rumble can be heard emanating from assemblies and governor’s mansions across these fruited plains. It is a sound reminiscent of by-gone days that echo down through centuries of constitutional thought. Prompted by everything from unfunded Congressional mandates to the new omnibus healthcare bill, (See here and here) these reverberations strike cords of distant legal memory that are, for most of us, only imperfectly recalled.

For many, talk of state’s rights, interposition, and even nullification brings forth unsavory recollections of illiberal and tyrannical state and local institutions of chattel slavery, Jim Crow and the color bar. That association is understandable given the prevailing interpretation presented in classrooms, but very unfortunate if we stop there.

One of the most essential roles of states in any federal system is to act as counterweights to centralization. For this reason all power is not assigned to the national authority. In the original constitutional design of the American federation, what was not given was reserved to the states or to the people thereof, and it is from this perspective that the check to central power, the bite of Federalism, was to be derived in its most essential forms.

The idea of states as checks to national concentration pushes the bounds of constitutionalism, but it was understood that however approached, and by whatever means undertaken, this role was not to be pursued for light or transient reasons.

The idea of interposition took many forms. It could embrace official expressions of disapproval by the legislature or governor of a state. It might entail simple, non-cooperation with federal authorities, such as a refusal to enforce a federal law, or acknowledge a mandate. Or, it might take the form of an unofficial understanding on the part of local groups and institutions, usually operating under the tacit approval of the state, not to comply with federal measures.  In its most extreme form, interposition could assert the right to interdict the enforcement of an offending provision through an act of outright nullification. How far a state might go in pursuit of this last line of interposing itself is a question of some delicacy.

Preventing by official policy or action the enforcement of a federal measure stresses the limits of constitutionality. If either of the contending powers moves from peaceful toleration or acquiescence to violence, the episode takes us from the realm of the legal to the revolutionary. For this reason, nullification has always been the most dangerous and the most controversial form of interposition.

The basis for the authority of all these options, however, remains rooted in the constitutional ideal itself. It was not the product of a mean or unnecessary political expediency. On the contrary, the idea of interposition was an attempt to sort out a vital constitutional principle and was first articulated, not to defend slavery, but to support free speech, free trade, peace and the liberty of fugitive slaves.

Federalism in all its various forms can be an instrument for good as well as ill. Like any political order, its quality is determined by the people who compose it. To really understand why the states are again making noises of interposition, we need to understand something of the history of our federal structure of government. The reason new life is breathed into old thoughts has everything to do with what rests at the center of our political existence.

Why do we have states? Lincoln made the claim that the Union preceded the states. What he could not say, however, was that the federal government as constituted in 1787 preceded them, because clearly it had not. The main thrust of Lincoln’s reasoning was that the Revolution and the move for independence began as a united effort. The implications of that claim are still debated and one need only recall the exchanges between Mel Bradford and Harry Jaffa on this point. What is certain, however, is that the federal government did not create the states. What then is the role of states in our federal order?

The authors and advocates of the Constitution, whatever they may have thought privately, were not free to assert any desired construction, but had to contend for the support of the peoples of their various former colonies. They needed to address directly the concerns of liberty that had animated the move to independence, and more specifically they had to allay the fears raised by their critics, the Antifederalists. In this way, whatever hidden motives might have existed, it is the stated intentions of the Federalist advocates that must bear legal weight.

Among the primary objects of the Revolution was to secure the liberty of the colonies to determine the disposition of their own properties, free from arbitrary imperial commands. American anxieties of the late eighteenth century grew in direct proportion to the growth of imperial designs by King and Parliament.

The Antifederalists are often called the old revolutionaries as much for their actual age as for their adherence to older ideas about colonial liberties. The list of such advocates is long and venerable: Brutus, Federal Farmer, Cato and Centinel. My favorite, however, is one not so generally recognized, but to my mind, gave the reasons for decentralization and the existence of states most succinctly and eloquently: Maryland Farmer. He took a long range perspective based on some very ancient precedents.

Edward Gibbon’s first volume of The Decline and Fall of the Roman Empire came out in 1776, and like other important works of its time, Americans were eager to read it. By the time of the Constitution, Maryland Farmer had imbibed its central lessons and recognized how closely its themes complimented American experience. He disputed the charge often heard that the states, if not united under one supreme head, would soon be at each others throats. No, he said, citing Gibbon, real terror is to be found where there is no hope of escape, no exit.

Anticipating the role of competing jurisdictions, Maryland Farmer cautioned against rejecting the Articles of Confederation, observing that “In small independent States contiguous to each other, the people run away and leave despotism to wreak its vengeance on itself; and thus it is that moderation becomes with them the law of self preservation.”

The referenced passages of Gibbon illustrated that understanding nicely. Noting the ease with which a person onerous to power could escape in the Europe of his day to the safety of a rival state, Gibbon pointed to the very different reality of the ancient empire: Rome, he observed, came to fill the world, “and when that empire fell into the hands of a single person, the world became a safe and dreary prison for his enemies.”

Maryland Farmer took that point to heart and asked Americans, who had just fought a war to resist the imperial designs of England, was it all simply to consolidate power in your own hands? He hoped not.

So strong were these sentiments in favor of decentralization, Federalists had no choice but to address them. Some of the most eloquent passages of the Federalist Papers were set out with the explicit aim of refuting the consolidationist claims of the nature of the Constitution. Indeed, more than one of those pieces by Publius was penned by that arch purveyor of centralized authority himself, Alexander Hamilton. In the next part we will examine how Publius attempted to negotiate the question of a federal check to national power, and look at the roots of interposition as they were presented by the supporters of the Constitution.

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The first of a series will begin tomorrow, the Ides of March (the 15th), an appropriate time to initiate an investigation of interposition and federalism in America. On that date in 44 B.C., Julius Caesar was slain for his offences against the Roman Republic. It was a futile act of desperation. The empire was not defeated, but the event remained a symbol for millennia of resistance to tyranny and concentrated power. This series will attempt to investigate the spirit of that resistance as it relates to our federal system of states as counter or makeweights to centralization through the instrument of interposition: what is its history and constitutional forms, and whither should it go now?

 In a recent spate of books, attention has been given to the place of the states in our federal union. More particularly, the subject of nullification has been the focus of Thomas Woods’ latest works, one of which is specifically by that name. In that book, Woods delves into certain key aspects of America’s constitutional history, but quickly focuses on what is a fairly specific subset of a much larger category of constitutional ideas embraced by the term, interposition.

Interposition is where a state or other organs of local governance and/or civil society attempt to intercede between the people and an act of the federal government that is deemed unjust or unconstitutional. This can take many forms, moving from the merely declaratory and/or uncooperative to the more extreme modes of obstruction or even interdiction. Nullification occupies the last of these categories. It is the outer edge of the continuum. It attempts to provide legal grounding for a state to directly obstruct enforcement of an offending federal measure, and is of all the instruments available to a state or people, the most dangerous and problematic. (more…)

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I am quite pleased to announce that Elizabeth Price Foley will be joining Pileus as one of our Authors.  Elizabeth is sure to be a great addition to our lineup, especially given that she has an expertise in health care and constitutional law.  Here is her impressive bio:     

Elizabeth Price Foley is Professor of Law at Florida International University College of Law. Her research centers on the intersection of health care and constitutional law. She is the author of Liberty for All:  Reclaiming Individual Privacy in a New Era of Public Morality (Yale 2006), The Law of Life and Death (Harvard 2011), and is currently working on a book about the tea party for Cambridge University Press. 

Professor Foley clerked for the Honorable Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit and spent several years on Capitol Hill as a health policy advisor, serving as Senior Legislative Aide to U.S. Congressman (now U.S. Senator) Ron Wyden (D-OR), Legislative Aide for the D.C. office of the Health Insurance Plan of Greater New York, and a Legislative Aide for U.S. Congressman Michael Andrews (D-TX). She served as a member of the Committee on Embryonic Stem Cell Guidelines of the Institute of Medicine, National Academy of Sciences, and as a Fulbright Scholar at the College of Law of the National University of Ireland, Galway.

Foley is a converted ex-progressive who now unabashedly embraces classical liberalism. She lives in Key Largo, Florida with her husband, daughter, two cats, and a dog named Thomas Jefferson.

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Police are using regulatory inspections as a pretext for warrantless, apparently racially biased searches. If you’re going to support occupational and business licensing, you’re going to have to accept a hobbled Fourth Amendment.

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Breaking news from Virginia federal district court. Consider this an open thread on the topic. I will try to update with reaction from around the web.


Here’s a link to the decision (PDF). SCOTUSblog has a summary.

Orin Kerr says Judge Hudson’s decision contains a significant, possibly fatal error.


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For the American right, the United States is exceptional for its political commitment to freedom. For the American left, the U.S. is exceptional as an outlier of injustice and inequality relative to other advanced democracies. In a four-part series, I will investigate these claims of American exceptionalism and argue that both have some element of truth but are largely overstated.

In this post I take on the American right. Does the U.S. really stand out as a beacon of individual freedom in the world? We have to distinguish between America’s “core political tradition” and the present-day reality. The Declaration of Independence is a masterful statement of classical liberal principles and citizens’ inalienable right to resist arbitrary power. I also agree with Frederick Douglass’ claim that the U.S. Constitution is overall “a glorious liberty document,” especially when compared with virtually every other constitution in the world. (The problem is that Congress and the courts have colluded to amend the Constitution unconstitutionally over the past 70-odd years.) There is certainly an anti-authoritarian streak in the American political consciousness that dates back to Roger Williams, if not to the libertarian self-governance of most Native tribes. In some sense, that American political spirit has never been more worthy of admiration than it is today, scrubbed clean of the fatal scum of slavery, religious persecution, and Manifest Destiny.

The problem is that hardly anyone believes it anymore, not even the conservatives who pay it lip service. (more…)

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While my fellow Pilei debate the role that moderate Republicans can play in a future return to fiscal sobriety, libertarian law prof Randy Barnett considers whether, with respect to the PPACA, it even matters. What are the chances that the Supreme Court strikes down the individual mandate, including potentially the entire bill, which lacks a severability clause? Barnett argues that the individual mandate contradicts existing Supreme Court thinking on the “necessary and proper” clause, and that the mandate represents a legally unprecedented “commandeering of the people” by the federal government. If the health care bill remains unpopular by the time the case reaches the Supreme Court, he muses, there may well be five votes to strike it down.

HT: Hit & Run.

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So what do we think about the district court ruling overturning California’s same-sex marriage ban? To my knowledge, this is the first time a court has asserted a federal constitutional right to marriage.

As a longtime supporter of getting government out of marriage licensing and of legal equality for same-sex and nonmonogamous relationships, I am nevertheless somewhat ambivalent about the decision, because a nationwide ban on same-sex marriage bans would undercut the meta-ideological argument for decentralization of policy-making on controversial moral issues: majorities in different jurisdictions could have their own policies, leaving more people content with the regime under which they live than they would be with a single nationwide rule. For the same reason, I would be ambivalent about a federal court overturning all state and local gun laws. Some human rights are so basic that there should be a minimum federal standard, but when it comes to same-sex relationships, civil unions afford exactly the same rights without the terminology.


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The release of the terminally ill Abdelbaset al-Megrahi, convicted of involvement in the Lockerbie airplane bombing, is in the news again, due to the oil spill, of all things. The U.S. Congress wants to know whether there was a quid pro quo: whether BP lobbied the Scottish government to release Megrahi so that Libya would conclude a deal allowing BP to drill in its offshore waters. Having followed the Megrahi situation since 2008 because of its relevance to the Nationalist government in Scotland, whose policies and performance I have been following, I have some little expertise on this question. In my view, the posited quid pro quo is the least likely explanation for Megrahi’s release. Consider the following facts:

1) The evidence against Megrahi is less than rock solid. The case against him was built on the testimony of a single witness, later found to be unreliable. Later allegations of prosecutorial misconduct provided a foundation for appeal. In the event, his illness allowed the Scottish government to release him on compassionate grounds instead.

2) Releasing Megrahi allowed the Nationalist government of Scotland, which favors independence for Scotland, to flex its powers on the international stage. Scotland has less autonomy than an American state, but the current government has been trying to make the most of it.

3) Releasing Megrahi allowed the Scottish National Party to burnish its left-wing, peacenik credentials, important given that they have seen an electoral challenge on their left flank from far-left nationalists Solidarity and the Scottish Socialist Party, and given that the SNP’s main electoral rivals are the Labour Party. The SNP has consistently tried to make inroads into the vote-rich Labour constituencies of Scotland’s Central Belt.

4) There was no reason for the SNP or the Scottish government to want to please BP or the British government, who did engage in diplomacy with Libya over the Megrahi issue. If anything, the British Labour government’s desire to release Megrahi would have given the Scottish government some opportunity to twist their tail over the issue and do the reverse.

Unfortunately, media coverage here in the U.S. has done little to elucidate the context behind the decision, which is likely to leave Americans to conclude that skullduggery was involved.


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As an American, I owe a tremendous debt of gratitude to many, many people who have risked and given their lives to defend our liberty. But as I reflect on the recent Supreme Court decision in McDonald v. City of Chicago, I thought I should take a moment to mention four Americans who have made a relatively uncelebrated contribution to the freedom I cherish and enjoy. I owe a special debt to four black men, and one gun.

The most important of these men, to me, was my father. When I was a boy, he and my mother moved our family of six from the Terrace Village public housing projects in Pittsburgh’s Hill District to a predominantly white neighborhood. While many of our neighbors welcomed us, we were not welcomed by all. I recall a brick through the front window, and other incidents. But burned into my memory is the Sunday evening when my father was beaten with a tire iron on the street in front of our home, and in front of us, his four little children. Those three young white men were never caught.

When my father, with his surgically reconstructed eye socket and jaw, was released from the hospital, he did something he never once considered when we lived in the projects. He bought a gun.

Every evening after that, before going to bed, I and my siblings would go out onto the front porch to say goodnight to my father as he sat in his chair, shotgun across his lap, with its black barrel glistening under the porch light. I never once felt unsafe. I never once had trouble sleeping. My sense of security did not come from the Pittsburgh Police, or from the law. My sense of security came from my father, and his gun.

There were no more incidents, at least not any that I can recall, after my father exercised his Second Amendment right.  It was his contribution to “non-violence” in our neighborhood.

Just like the millions of children of our nation’s police officers, we were instructed to never touch my father’s gun. And like those millions of children, we did not touch it. My father believed that it was his first responsibility to protect his family, and that it was reasonable for him to avail himself of a firearm to do so. But so many black men before him have been denied this basic right, and it is important to thank the other black men who have made important contributions in preserving it.

Foremost among these, in my mind, is Frederick Douglass. The self-educated runaway slave turned abolitionist newspaper editor and orator, Douglass was alarmed at the unaddressed violence unleashed on black people in the wake of the Civil War. As Douglass pointed out in his autobiography, black Americans could not count on the government to protect them; they had to defend themselves against the rash of lynchings committed by the Ku Klux Klan and even state and local authorities. Citizenship, according to Douglass, rested upon three boxes: “the ballot box, the jury box, and the cartridge box.”

As Tim Sandefur of the Pacific Legal Foundation recently pointed out, Douglass was wise to realize that black Americans needed to rely on themselves for their own safety and security. Douglass argued that the post-Civil War Amendments, the Thirteenth, Fourteenth, and Fifteenth, were written to protect the freed slaves from a backlash by the Southern states. The 14th Amendment’s Privileges or Immunities Clause says that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Douglass urged the federal government to enforce the Constitution as written, to secure for black Americans, indeed for all Americans, the “privileges or immunities” of full citizenship.

Douglass’s plea fell on deaf ears. In 1873, the Fourteenth Amendment’s “privileges or immunities” clause was gutted in The Slaughterhouse Cases, where the Supreme Court upheld the State of Louisiana’s decision to close down butchers competing with a politically-well-connected private monopoly. The Court ruled that this clause only protected rights of national scope, such as the right to access foreign embassies or the right to protection while traveling the high seas. This was, as Georgetown Law Professor Randy Barnett recently noted, “a preposterous interpretation — these were hardly the rights congressional Republicans in the aftermath of the Civil War were most concerned to protect in the wake of the terrible abuses of free blacks and white unionists by Southern states.”

Nevertheless, the “privileges or immunities” clause was dead. Moribund, as the constitutional law scholars like to put it. It has been dead for one hundred and thirty two years.

But the “privileges or immunities” clause is still there in the Fourteenth Amendment to the Constitution, still in the actual document. A handful of scholars have kept up the fight to get these words noticed again. These scholars are not ones you will have heard of, especially if you have a law degree from a top law school. Most of these scholars toil away in think tanks, since the doors of many law schools have been shut to them. In fact, if you have attended a top law school, your first reaction is likely to have been, “don’t you mean ‘privileges and immunities’ clause?” While you may have been exposed to the “privileges and immunities” clause of Article IV, your con law professor is unlikely to have mentioned the “privileges or immunities” clause of the 14th Amendment.

This reaction is understandable, because constitutional law scholarship in most law schools has become a closed, insular conversation among both liberal and conservative law professors who have, in their own ways, become completely at ease with the sweeping scope of government power in a world devoid of the “privileges or immunities” clause.  Liberals dislike the “privileges or immunities” clause for fear that it might legitimate the kinds of unenumerated rights they hold in contempt, like the rights to property and freedom of contract.  It is not a coincidence that these are precisely the rights that the Reconstruction Congress sought to protect with the Civil Rights Act of 1866.  Likewise, conservatives, including the plurality in McDonald, are uncomfortable with the “privileges or immunities” clause because it legitimates unenumerated rights, like the right to privacy recognized in Griswold v. Connecticut and Roe v. Wade.  Justice Alito demonstrated his discomfort with economic liberty too, when he asked in oral argument whether the “privileges or immunities” clause included the right to contract, clearly hoping that the answer was “no.”

The top constitutional law scholars were completely caught off guard when a third black man, Justice Clarence Thomas, reinvigorated the “privileges or immunities” of citizenship in McDonald v. City of Chicago two weeks ago. In McDonald, the court struck down a Chicago ordinance banning handguns. Justice Thomas had been reading the scholarship on the “privileges or immunities” clause over the last several decades. He read it and understood it. And while this scholarship did not matter in the opinion of many of our nation’s top constitutional law professors, it did matter in an opinion that, itself, matters a lot.

In his concurrence to the four other justices in the 5-4 majority, Justice Thomas refused to stretch the 14th amendment’s “due process” clause to guard the right to bear arms. Instead, he bravely read the constitution the way it was written, with little regard for how his opinion would be attacked from both the left and the right. His opinion acknowledged that the right to bear arms was clearly one contemplated by the framers of the “privileges or immunities” clause. Justice Thomas stood with Fredrick Douglass, and stood up for a black man trying to protect himself and his family in a city where the police admittedly cannot.

Otis McDonald is that black man, the fourth to whom I owe so much. As I attempt to raise my two sons to be strong, confident and secure Christian men, I am grateful that this 76-year-old grandfather fought for my right to protect them from those who might try to do them harm.

I purchased a gun several years ago, when I became concerned for the safety of my young family after receiving a verbal racial assault in our 21st century Northern California neighborhood. Perhaps I am the only Stanford Law professor who owns guns, including the one that once graced my father’s lap on that porch forty years ago. As an American, I am grateful for that gun. I am also grateful for the four black men who have made it possible for my sons to sleep at night, secure in the knowledge that I, and it, will do what is necessary to protect them.

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Is Network Neutrality a racist policy?  At least one prominent Chicago politician seems to think so. Cook County Commissioner Robert Steele recently voiced his objections to the FCC’s proposed regulatory attempts to achieve Net Neutrality. The principle of network neutrality asserts that broadband providers should not be able to block or limit use of their networks in order to impose a tiered service model of access, or to hinder competitors.

Steele sees net neutrality as furthering the interests of an “elitist agenda.” In his Huffington Post piece, Steele argues:

[T]here is very real concern among communities of color that the FCC’s planned “third way” for new regulations would discourage investment in sorely needed broadband infrastructure, stifle innovation, and kill job growth that stems from the wide availability of broadband services. Anyone can tell you that the current Internet we enjoy today was built on the investment of private companies, companies that provide jobs and companies that continue to build out the needed access to broadband infrastructure, both wireless and wired. While I would love to be able to tell you that the public sector has been able to invest just as much, that is unfortunately not the reality. Furthermore, we need to ask what do these government regulations really do for us in terms of increasing adoption of broadband technology, and also accessibility across America.

Steele goes on to argue that proponents of net neutrality rely

. . . on the assumption that without FCC oversight the internet providers would have “free rein to prioritize, block or slow access to content on the web.” These claims are boldly passed off as fact without recognizing the record on these matters — since the original four net neutrality principles were enacted in 2005, there have been only three instances that required intervention, and these isolated incidents were handled quickly and without much fanfare. As a matter of fact, in a decision by liberal Judge David Tatel, a three-judge panel of the D.C. Circuit of the U.S. Court of Appeals has come down on the side of those against further Net Neutrality regulations in the Comcast v. FCC case.

What is interesting about Steele’s position is that it recognizes the role of private investment in internet infrastructure. He also makes the connection between the regulatory barriers and the incentives for private investors to expand broadband access.

Proponents of ever more regulation often assume quiet compliance from minority and underprivileged communities, whose interests they either ignore or simply do not bother to understand. It is refreshing to see a grass roots politician thoughtfully question the benefits of regulation.


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My Pileus colleague Marcus Cole argued a few weeks ago that conservatives and libertarians should not be so unhappy with Supreme Court Justice nominee Elena Kagan, since it could have been “much worse.” With a left-liberal Democrat in the White House and a Congress controlled by the Democrats, who knows, Marcus asked, what enormity we could have gotten.

I take his point, but with all due respect to my esteemed colleague, that is not exactly setting the bar high. There are, after all, indefinitely many worse choices for almost any office. It does not follow from that that the candidate before us is the best one, or even a good one—all that follows is that she is less bad than some others we might imagine.

It is true that, as many have lamented, we do not possess much direct evidence about what Kagan’s judicial philosophy would be. She has no experience as a judge, after all, and has very little by way of scholarly publications. Indeed, this has led some to ask whether she is even qualified to sit on the highest court in the land.

The confirmation hearings thus far have also revealed little. Some have suggested that her wiliness at not giving very much information in her answers intimates a duplicitousness in her character. Perhaps. It might also intimate a cleverness: She was, after all, a student of the Bork hearings—she said in 1997 that they were “great,” the “best thing that ever happened to constitutional democracy”—so she well knows how important it is not to give ammunition to the other side.

But there is some indirect evidence. She has served as Dean of Harvard Law School. One does not become dean of the law school at Harvard without possessing at least these three characteristics: one must be very smart, one must be very clever, and one must be very liberal. All three of those characteristics are overrepresented in academia, and the more prestigious an institution is, the more likely its members are to be (a) politically homogeneous and (b) clustered ever further leftward on the political spectrum.

I think it is safe to assume that Kagan has all three of those characteristics in spades. Her smarts got her foot in the door in the high echelons of academia, and her cleverness allowed her to climb the ladder quickly while managing to offend few. Given the rarefied political environment in which she has ascended, however, I think the reasonable assumption is that she will not have been able to succeed as she has unless she also shares political sensibilities that are significantly further left than where the center in the United States is.

While it is no doubt true, then, that there are yet more radical left-wing academics that President Obama might have chosen, I think it is a mistake to think that Kagan herself will not be quite liberal, and indeed one of the most liberal justices on the Supreme Court for the next several decades.


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Secretary of State Hillary Clinton announced in Ecuador last week that the Obama Administration plans to commence legal proceedings against the State of Arizona to invalidate its recently enacted SB 1070. The new law directs state and local law enforcement officers and agencies to enforce federal immigration law by detaining or reporting persons giving rise to a “reasonable suspicion” of being in violation of it. The announcement was a surprise, not only because of who made it and where she made it, but also because of when she made it. Since Arizona SB 1070 becomes effective on July 29, any lawsuit announced now against implementation is premature or, as we lawyers put it, not “ripe.” Unless the Justice Department can envision no constitutional manner by which the law can be implemented, the contemplated lawsuit must be one that challenges the constitutionality of the law on its face. In other words, the Justice Department must be asserting that the statute is unconstitutional as written, rather than unconstitutional as implemented or enforced. But is there a legal basis for a facial challenge to the law?

A review of the statute leaves little reason to believe that a facial challenge to the law stands much chance of success. Federal law specifically empowers state and local law enforcement officials to enforce it; indeed, it often mandates enforcement of federal law by state and local officials. SB 1070 merely directs state and local officials to enforce federal immigration law when they have a “reasonable suspicion” that a person might be in violation of federal immigration law. It might be fashionable to imagine the horror scenarios of police officers asking anyone with Hispanic or Native American features or surnames to produce their “papers.” The law, however, does not, on its face, direct police to do so. Nor does it confer upon them unfettered discretion in its enforcement.

What the law does require is the application of a standard with which law enforcement is intimately familiar, namely, the “reasonable suspicion” standard. It is the same standard applied in numerous settings. Police are experienced at having to articulate the basis upon which they formed a reasonable suspicion. They have to be, because any proceeding flowing from their reasonable suspicion will require them to recite the facts upon which it was formed. The test of reasonableness is a “third-party,” objective standard; it does not reside within the subjective control of the officer applying it. In other words, a judge or magistrate will determine whether the suspicion was indeed reasonable, and the officer making the determination must persuade the judge that, given the facts of the case, it was.

While one can imagine a “parade of horribles” in the application of this law, it is much easier to envision the patently constitutional implementation of it. Consider, for example, what is likely to be the most common way in which the law will be administered. An Arizona law enforcement officer notices a traffic violation and conducts a traffic stop. When, as is standard, the officer requests the driver’s license and vehicle registration, the failure to produce these documents could give rise to a “reasonable suspicion” that the driver is without legal authorization to be in the United States.

To be sure, there may be many reasons why someone may be without a driver’s license. Dispositive proof beyond a reasonable doubt is not, however, required for a police officer to form a reasonable suspicion. Nor should it be. As a society, we want police to investigate when they suspect a crime. We want police to be able to search for evidence of surreptitious criminal activity when they have reason to suspect it, not merely to escort criminals who brazenly offer proof of open and notorious crimes. Indeed, a reading of the statute appears to direct otherwise unwilling officers and agencies to cease turning a “blind eye” toward the presence of illegal aliens when encountered. SB 1070 effectively outlaws “sanctuary cities” in Arizona.

Arizona law enforcement officials are reportedly undergoing training on how to constitutionally implement the law. It is quite possible that the Justice Department has monitored the substance of this training, and is anticipatorily crafting a lawsuit to challenge the law’s implementation. If the announcement now, before the law has taken effect, is indicative of the intention to mount a facial challenge, it may be more of a political move than a legal one. But would it be considered a good political move if such a lawsuit fails? Would a successful defense of the statute encourage Texas, Colorado, California, or other states to follow Arizona’s lead?

There may be many reasons to disagree with the policy choices underlying SB 1070, including, for example, the fact that the statute appears to criminalize the “day labor markets” that form in the parking lots of home improvement centers. However imprudent the policy underlying SB 1070 might be, a politically motivated lawsuit might prove more imprudent.


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Antonym Contest!

There appears to be no widely accepted antonym for “civil libertarian.” So how about a contest? Please post your suggestions for a new coinage in the comments, and I will select a winner at the end of the day. The winner will receive a free Pileus t-shirt the approbation of the impartial spectator and one’s peers.

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Conservative and libertarian opposition to the appointment of Solicitor General and Supreme Court nominee Elena Kagan has been lackluster at best, and for good reason: President Obama’s choice to fill the seat of retiring Justice John Paul Stevens could be much worse. Indeed, there is some reason to believe that conservatives ought to breathe a collective (pun intended) sigh of relief.

Much of the opposition to General Kagan has been channeled to her treatment of military recruiters while Dean of Harvard Law School. In this regard, Kagan is completely without distinction among her peers. All AALS accredited law schools maintain an anti-discrimination policy that prohibits discrimination on the basis of, among other things, sexual orientation. Schools with such policies have refused to permit employers maintaining employment practices inconsistent with them to recruit on their campuses. The Justice Department, under President Bush, determined this to be a violation of the Solomon Amendment and threatened to remove all government funding from those institutions unwilling to abide by the law. Kagan, like many other law professors around the country, joined in a court challenge to the government’s interpretation.

That challenge suffered a unanimous 9-0 defeat in the Supreme Court, and forced Kagan, like all other law school deans across the nation, to choose between permitting military recruitment on campus or expose her university to the risk of losing millions of dollars in government funding.

The court challenge to the Solomon Amendment said much more about the state of American legal and higher education than it did about Kagan. It is difficult to refute the fact that large public research universities, like the rest of higher education in the United States, are within the capture and control of the left. As a 2005 study (McGinnes, Schwartz, and Tisdell) of political campaign contributions made by law professors has demonstrated, law faculties are overwhelmingly composed of and run by people with political sympathies similar to the ones held by the President and his nominee. The Justice Department’s interpretation of the Solomon Amendment forced university administrators, deans, and faculties to choose between two of the left’s most frequently articulated values, namely, nondiscrimination (over which they hold no demonstrable monopoly) and public funding of everything. When this choice between these values was put to them, we saw which one they held more sacred.

What does distinguish Kagan, however, is her track record as Dean at Harvard Law School, particularly with respect to the recruitment of conservative faculty. Contrary to popular understanding, law school deans do not hire faculty; law school faculties do. Nevertheless, few law school deans could (or would) boast of surpassing her efforts to introduce a sprinkling of conservative or libertarian scholars to the monolith of the left that is elite legal education. Some conservatives have argued that Kagan should not get credit for her efforts, since Jack Goldsmith, Adrian Vermuele, and John Manning could be hired anywhere. It is true that they should be hired anywhere, but is it really true that they would be?

I do not mean to imply that simply listening to an argument or two from the right qualifies one for the Supreme Court. It does, I think, distinguish General Kagan from many in the legal academy. It also suggests a measure of basic decency and a genuine interest in intellectual exchange that is becoming increasingly scarce. Would Kagan be the choice of a conservative or libertarian president? Of course not. The President is not likely to mimic the preferences of a conservative or libertarian. He is, however, a politician, and (in the wistful revisionist recollections of some at the University of Chicago) a legal academic. It is understandable that the President would admire someone evincing the qualities of both, and in this way, Elena Kagan permits him to replicate himself. Were the President to choose another from the legal academy, we could do far, far worse.

Examples? Don’t ask; I won’t tell.


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