Archive | Constitutional History

A private little Slaughter-House Cases

The Slaughter-House Cases was a shocking reactionary retreat from what had been accomplished with the ratification of the Fourteenth Amendment. But it was not the first such case. Three years earlier, the California Supreme Court decided a similar case called People v. Brady, in which it declared that if the Justices thought the Amendment had been designed to provide federal protection for civil rights, then they would “regard [the Amendment] as we would a law apparently legalizing murder or robbery”! [...]

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Jeremiah Black And The Wrecking of The Fourteenth Amendment

The first Supreme Court case to interpret the Fourteenth Amendment was the 1873 Slaughter-House Cases, in which a group of Louisiana butchers challenged the constitutionality of a state law requiring that all slaughtering be done at a single, privately-owned abattoir. They argued that this law deprived them of the right to earn a living without the interference of government-created monopolies—a right recognized by English and American courts since the early seventeenth century, and that was among the “privileges or immunities” the new Amendment secured against state infringement. Unfortunately, the Court ruled against them, and essentially erased the Privileges or Immunities Clause from the Constitution.

Much has been written on the various things Slaughter-House got wrong. But my focus in chapter 2 of The Conscience of The Constitution is on how that decision ignored the central purpose of the Fourteenth Amendment. The Amendment was designed to implement the anti-slavery constitutional vision of paramount national citizenship. That conception, derived from the principles of the Declaration of Independence, held that national citizenship took priority over state citizenship; that natural and common-law rights of all Americans were secured to them by virtue of their national, not their state, citizenship; that all deserved federal protection against interference by state governments. The Amendment would deal the death-blow—so its authors hoped—to the antebellum States Rights ideology which held that state governments were sovereign; that their sovereignty was not bound by the principles of the Declaration; that states possessed, in William Blackstone’s words, “supreme, irresistible, absolute” power to do “anything that is not naturally impossible.” The anti-slavery constitutionalists believed this States Rights model had always been an incorrect reading of the Constitution; their new Amendment would settle the question once and for all.

One of the leading spokesmen for the States Rights model was a prominent “doughface” Democrat [...]

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The Recess Appointments clause: Amicus brief on original meaning based on State practices

As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early practice. (The VC co-authors were William Baude, Dale Carpenter, and Eugene Kontorovich, plus former VC writer Michael McConnell.)

Another amicus brief in the case address the contemporary legal meaning of the words and phrases in the Recess Appointments Clause. The main sources for information about this are the records of the state legislatures during and before the ratification period. These sources clearly show that a “recess” took place only between the formal sessions of a legislative body. For a vacancy to “happen” during the recess, the vacancy must first arise during the recess. If a vacancy arises while a legislature in session, and the office is still vacant when the legislature goes into recess, the vacancy did not “happen” during the recess.

This originalist amicus brief was filed on behalf of the Independence Institute. The brief is based on the research contained in the article The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause, by my Independence Institute colleague Rob Natelson. [Harvard Journal of Law and Public Policy, Vol. 37, No. 1 (2014), forthcoming.]

Thanks to the Polsinelli firm, and to attorneys Sean R. Gallagher, Bennett L. Cohen, and Jon R. Dedon for writing the brief. The Independence Institute also worked with the Polsinelli firm this summer, in an amicus brief for a cert. petition in Bakoss v. Certain Underwriters at Lloyd’s of London (arguing state law, rather than federal common law, should supply the definition of “arbitration” in the [...]

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New Book: Toward an American Conservatism: Constitutional Conservatism during the Progressive Era

I contributed one chapter to this collection of essays. Not surprisingly, I wrote about Lochner and liberty of contract jurisprudence, and its uneasy relationship to constitutional conservatism.

It’s an excellent book on an understudied topic. The one major impression I get from studying this general topic is that while the Progressives knew to a large extent where they wanted to take the country and the Constitution, conservatives of the day didn’t have their own positive ideology, but were simply trying to preserve what they saw as traditional American values of federalism and individual liberty against the Progressive wave. Not surprisingly, they failed, just as the Burger Court and (especially) the (early) Rehnquist Court, products of a defensive conservatism with little positive agenda, failed to roll back the liberal tide.

Unfortunately, the book costs $82.00, so few readers are going to add it to their personal collections, at least until a paperback (hopefully) arrives. But if the subject matter interests you, you should check it out at your local academic library, and ask the librarian to order it if they don’t already have it.

UPDATE: Here is a Table of Contents:

Introduction: Johnathan O’Neill and Joseph Postell
1. Constitutional Conservatism During the Progressive Era: The National Association for Constitutional Government and Constitutional Review; Johnathan O’Neill
2. The Progressive Origins of Conservative Hostility to Lochner v. New York; David E. Bernstein
3. William Howard Taft and the Struggle for the Soul of the Constitution; Sidney M. Milkis
4. The Election of 1912 and the Origins of Constitutional Conservatism; William Schambra
5. William Howard Taft on America and the Philippines: Equality, Natural Rights, and Imperialism; John Grant
6. Civilization versus Modernity: The League of Nations in the Crisis of World Civilization; W. Taylor Reveley
7. ‘Roaring’ against Progressivism: Calvin Coolidge’s Principled Conservatism; [...]

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Knives and the Second Amendment

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

  • Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.
  • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
  • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate scrutiny), [...]

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Ian Millhiser on Conservatism and the Judiciary

Over at ThinkProgress, Ian Millhiser has a piece on conservative and the judiciary that ranges over many decades and many topics. Unfortunately, much of it is very tendentious and sometimes just wrong. It’s too much to do a detailed critique, so I’ll be brief and limit myself to his general historical perspective. [DB: Sentences in original post deleted after colleagues pointed out that I likely misconstrued a poorly written sentence.]

Millhiser provides a rather standard progressive critique of constitutional history from the 1890s until today, with no cliche unrepeated, no matter how inaccurate. “Laissez faire Social Darwinism!” “Union busters”! “Judges stood with industrialists against their workers, with unreconstructed racists against African Americans, and with the wealthy against nearly any effort to diminish their fortunes.” Judges struck down child labor laws! And of course, “LOCHNER!” Regular readers of this blog will recognize that these assertions range from blatantly false to distinctly unnuanced. (Just for example on the unnuanced front, the Court invalidated federal child labor laws as beyond the Commerce and Taxing powers, but upheld state child labor laws which then spread to every state).

No matter, says Millhiser, at some point there were pleasant surprises as Justices appointed by FDR and beyond protected the rights of African Americans in cases like Brown v. Board of Education and “ushered in modern free speech doctrine,” moving the Court in a “progressive” direction.

Millhiser closes his article with a quotation from Learned Hand, who “offered a different assessment of how he should behave if he wishes to honor the framers’ commitment to freedom. ‘The spirit of liberty,’ said Hand, ‘is the spirit which is not too sure that it is right.’” The irony, which Millhiser apparently doesn’t appreciate, is that Hand opposed Brown and modern free speech doctrine (which he in [...]

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Posner on Lochner (UPDATED: Posner versus Posner?)

While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example.

Posner writes in the California Law Review:

The majority opinion in Lochner is easily forgettable yet well worth rereading in this connection. I quote a typical paragraph:

It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to and no such substantial effect upon the health of the employé, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employé (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employés. Under such circumstances the freedom of master and employé to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.

This is naked policy analysis; nothing in the Constitution, or in precedents that commanded respect, suggests that states can’t be allowed to place a ceiling on hours worked unless justified by a concern with workers’ health. The opinion, which I am tempted to quote in full, is so shallow that Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.[End

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Richard Posner on the Rise and Fall of Judicial Deference

At the JOTWELL site, Emory law professor Charles Shanor reviews an important article by Judge Richard Posner on the rise and fall of “Thayerian” judicial deference to legislatures. Posner traces the history of James Bradley Thayer’s famous argument (first developed in the 1890s) that judges should only strike down a statute if its unconstitutionality is “so clear that it is not open to rational question.” In practice, this would mean that virtually any controversial law would be upheld, since it is almost always possible to raise a “rational question” about the matter, especially in a world where we have multiple, widely divergent theories of constitutional interpretation.

As Posner explains, Thayerian deference enjoyed considerable popularity among Progressive and New Deal jurists from the 1910s to the 1940s, but gradually waned thereafter, for a variety of reasons. Today, it has very little support among either liberal or conservative jurists and constitutional theorists, to say nothing of libertarians. I think Posner is also right to argue that Thayerian deference lost popularity at least in part because it is an intellectually weak theory.

One implication of the decline of Thayerianism is that it makes little sense for today’s overwhelmingly non-Thayerian jurists and legal scholars to hurl accusations of “judicial activism” at each other. In most such debates, neither side actually favors across-the-board deference to the legislature. When they denounce decisions they dislike as “activist,” they usually just mean that the decisions are unsound – not because they are striking down a law, but because they rely on incorrect reasoning. In such a situation, “judicial activism” is not an analytically useful concept. If “activist” means that the decision in question struck down a law, that tells us very little about its correctness. If “activist” is just a synonym for “wrong,” it is superfluous.

Instead [...]

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More on African Americans Voting with Their Feet

Below, Ilya discusses the Great Migration of African Americans from the South to the North in the 1940s and 50s as an example of poor people “voting with their feet.” It’s that, though it’s a bit more complicated than that, too, because federal New Deal policies set out to limit acreage farmed in the South (and thus a prime source of employment for African Americans) just as mechanization was started to also substantially affect southern agricultural employment. Meanwhile, New Deal policies also sought to undermine low wage southern industrial employment, which is why the federal minimum wage was set at a national scale even though wages (and cost of living) in the Deep South were one-third of those in the North. So there was a “push” and a “pull.” The pull was more freedom and economic opportunity in the North, the push being political and economic factors that left millions of southern blacks unemployed.

Ironically, given that Ilya’s interlocutor suggests that African Americans left the South for “good union jobs,” in fact those good union jobs, especially for unskilled workers, were beginning to disappear thanks to international competition just as black migration kicked into high gear, leaving many newly arrived residents without good employment prospects–though still far better off than in the South, where public assistance was scant and an unemployed black male could find himself harassed and arrested by the authorities. (And the unions, besides in many cases having a track record of discrimination, were harmful in another way–thanks to strict union seniority policies, newly arrived blacks were the first laid-off when layoffs occurred.) In a cruel twist of historical fate, however, the South soon became an economic boom region, while the inner cities to which blacks had fled went into severe decline.

Anyway, none of that’s to deny [...]

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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. [...]

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Why the Obamacare Case May not be “Settled Law”

Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law”:

The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of its provisions have gone into effect. As Democrats have taken to saying, it is the law of the land.

But contrary to what the president suggested in the Rose Garden this past week, that does not mean Obamacare is “settled, and it is here to stay.” And it is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way…

Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.

A statute or court opinion becomes settled law when there is a broad consensus that it is just.

Gerard enumerates a wide range of reasons why the Supreme Court’s ruling in NFIB v. Sebelius falls short of being fully settled. But the core insight is that there is no bipartisan [...]

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Curious Cases at the Supreme Court

That’s the title of my magazine-length article for the Phi Kappa Phi Forum. It begins:

Every first-year law student learns that the United States Supreme Court only presides over real “cases” and “controversies,” according to the Constitution in Article III, Section 2. No matter how pressing the concern, the Supreme Court must wait for a properly litigated case involving adverse parties disputing a live issue to wind its way through the lower courts up to what is the highest court in the land. Because Supreme Court decisions are binding throughout the nation, it’s important that the cases involve competing camps with a bona fide stake in winning, a scenario that helps ensure all points are properly argued. Also, given the extraordinary powers granted to this unelected branch of government, it’s important that the Supreme Court adheres to protocol by not proactively inserting itself into the legislative or executive processes. But sometimes funny business happens. This article explores two historical cases: Barbier v. Connolly, which rigged the proceedings, and Lochner v. New York, which launched a notorious preemptive strike against a law.

The article is written for non-lawyers and non-historians, so if legal history appeals to you but you find the stuff written for scholarly articles too jargony, you might want to check this one out. [...]

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Brief Review of “The Great Dissent” by Thomas Healy (UPDATED)

I’ve just finished reading “The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America” by law professor Thomas Healy. The book has received sterling views, and happens to be directly related to something I’m writing about now, so I was looking forward to reading it.

On the plus side, the book is a lively read, and provides a good amount of interesting information about Holmes in general, and how he came to be (rather suddenly, after having not been at all) a champion of judicial protection of freedom of speech.

But having known a fair amount about the subject matter previously, I was disappointed for several reasons. First, I’ve been curious for some time as to the extent that Brandeis’s views on freedom of speech influenced Holmes. After all, Holmes’s adoption of pro-free speech views correlated with Brandeis’s appointment to the Supreme Court, and I’ve seen occasional hints that Brandeis substantially influenced Holmes. But while Brandeis makes a few cameos in the book, his influence on Holmes’s First Amendment jurisprudence goes unexplored. I was also surprised to find no mention of the “House of Truth,” which Brad Snyder has shown was a significant influence on Holmes.

Second, I would have liked to have seen some discussion about why Holmes’s turnabout on freedom of speech wasn’t accompanied by a turnabout on other civil liberties issues, where Holmes remained largely opposed to judicial protection of individual rights (see, e.g., his dissent in Bartels v. Iowa and his notorious opinion in Buck v. Bell).

Third, while those issues went unexplored, Healy went into great detail about some aspects of Holmes’s personal life that while certainly interesting (and sometimes scandalous) didn’t seem to me to have anything to do with Holmes’s jurisprudence. As long-time readers [...]

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Originalism and the Constitutionality of Military Intervention in Syria

At the Originalism Blog, Prof. Michael Ramsey, a leading academic expert on constitutional war powers, has an excellent post on the implications of the original meaning for the constitutionality of an attack on Syria without congressional authorization (quoting, in part, from a 2011 post he wrote during the debate over the Libya conflict):

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war….”

The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks….

Thus the founding generation thought the Constitution reserved war-initiation power to Congress. How could this be, though, if Congress has only the power

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Suzanna Sherry on “Universally Condemned” Supreme Court Decisions

In her latest rejoinder in our debate about “judicial activism,” Prof. Suzanna Sherry helpfully clarifies her view on what qualifies as a “universally condemned” Supreme Court decision. This is important, because Sherry claims that we have more reason to fear excessive judicial passivity than excessive “activism” (which she defines as striking down laws or official actions) because all of the “universally condemned” decisions of the past have been ones that upheld laws that should have been struck down. For my previous post and links to earlier posts by Sherry, myself and Orin Kerr, see here).

Unfortunately, Suzanna to some degree vacillates between two different definitions of “universally condemned.” Initially, she describes these rulings as “cases that everybody today would decide the other way, whether or not they were writing on a blank precedential slate.” By that definition, as I argued in previous posts, such cases on her list as Bradwell v. State (1873) and Korematsu would not qualify, because leading jurists such as Richard Posner (who argues that Korematsu was right), and Antonin Scalia (whose logic suggests Bradwell should go the other way today only because intervening precedent he thinks is wrong) are willing to defend them. Later in the post, Suzanna suggests that “A universally condemned case… is one that is, in Ilya’s terms, universally viewed as morally abhorrent. It doesn’t matter that it has its legal defenders, because the opposite decision is also legally defensible.”

Notice that there is an important difference between Suzanna’s first definition and her second. A decision that some view as legally correct (and therefore would decide the same way today), might be universally denounced as “morally abhorrent” in the sense that virtually everyone today agrees that it upheld a deeply unjust law or policy. Bradwell (which upheld a state law excluding women [...]

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