Unreliable Assurances:

I'm looking for examples where (1) the opponents of some proposed law, constitutional amendment, or judicial decision argued "this action will be interpreted in this particular bad way" or "this action will set a precedent that will be used to reach this particular bad result," (2) the supporters assured the public that no, of course this won't happen, and (3) some time down the line — preferably no more than 50 years, just to avoid especially hard questions of causation — the foretold result did take place, despite the supporters' reassurances. (It doesn't matter whether you like the ultimate result or not; and it also doesn't matter whether you think the assurances were sincere or not.)

Here are three examples, from a forthcoming article of mine:

  1. In Griswold v. Connecticut (1965), the Supreme Court struck down a ban on the use of contraceptives. A three-Justice concurrence (joined by Justice Brennan) seemed to dismiss the argument that this would lead to slippage to a broader sexual autonomy right (presumably because others had been arguing about the risk of such slippage):

    [T]he Court’s holding today ... in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in [an earlier case in which he argued for a right of married couples to use contraceptives], “Adultery, homosexuality and the like are sexual intimacies which the State forbids ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the in-stitution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality ... or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”

    Yet in the recent Lawrence v. Texas, the Court used Griswold as "the most pertinent beginning point" for its decision to strike down laws banning homosexual conduct.

  2. From the 1960s on, many states decriminalized same-sex sexual conduct. Some states then banned sexual orientation discrimination in employment, housing, education, or public accommodations. Some added crimes based on sexual orientation to the list of offenses that are treated as hate crimes. Some allowed same-sex couples to adopt.

    When some such liberalizations were proposed, some people warned that these laws were steps down a slippery slope to broader rejection of traditional sexual rules, including towards same-sex marriages. These slippery slopes arguments were dismissed, sometimes contemptuously. The claim that a hate crime law “would lead to acceptance of gay marriages” was called “arrant nonsense.” A proposed antidiscrimination law, people were assured, does not “put Massachusetts on a ‘slippery slope’ toward” “legaliz[ing] ‘gay marriage.’” “Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the ‘slippery slope’ [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little.” Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A; Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30; Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1 (quoting Riverside Human Relations Commission member Kay Smith).

    Yet when the Massachusetts Supreme Judicial Court held that the state constitution requires the legislature to recognize same-sex marriages, part of its reasoning rested on the legislature’s decision to ban sexual orientation discrimination: This decision, the Court reasoned, undermined the asserted government interest in condemning homosexuality as immoral, and thus helped strip away any rational basis the law might have had. Likewise, when the Vermont Supreme Court held that the state constitution requires the legislature to recognize same-sex civil unions (marriages in all but name), a large part of its argument rested precisely on the legislature’s past enactment of various gay rights laws, including the enactment of antidiscrimination laws and hate crimes laws that refer to sexual orientation. Goodridge v. Department of Public Health, 440 Mass. 309, 312 (Mass. 2003); Baker v. State, 744 A.2d 864, 885-86 (Vt. 1999)

  3. When the Equal Rights Amendment was being debated in the 1970s and 1980s (both at the state and federal levels), and the ERA’s foes argued that the sex discrimination ban might lead to legalization of gay marriage, such arguments were derided as “emotional scare tactics,” “hysterical,” and “canards.” Yet one Justice who provided the necessary fourth vote for the Massachusetts decision relied in part on the Massachusetts Constitution’s Equal Rights Amendment, which banned sex discrimination: Sexual orientation discrimination in marriage laws, he concluded, was sex discrimination. Patricia Avery & Patrick Oster, Equal Rights for Women – Doomed?, U.S. NEWS & WORLD REP., Apr. 28, 1975, at 45; Betty Friedan, Feminism’s Next Step, N.Y. TIMES, July 5, 1981, § 6, at 14; Judy Mann, Obstruction, WASH. POST, Feb. 19, 1982, at B1; Goodridge, 440 Mass. at 344-49 (Greaney, J., concurring).

I'm pretty sure the same happened with assurances that the Civil Rights Act of 1964 would never lead to, or even authorize, race-based preferences for nonwhites; likewise, as David Bernstein coincidentally posted this morning, this happened with assurances that the Civil Rights Act of 1964 would never lead to speech restrictions, or interferences with certain kinds of discriminatory practices. I've also heard the same about assurances that the income tax would never go above 10 or 20%, and that the social security number would never be used as a national identification, but I haven't seen specific quotes on this, and I like to have specific quotes.

So if you have specific quotes and specific citations that fit these conditions — (1) when a proposal was made, opponents argue that it would by its terms yield a certain bad result, or would set a precedent for a bad result, (2) supporters assured the public that this wouldn't happen, but (3) the opponents' predictions ultimately came true (or very nearly true), and the supporters' assurances proved wrong, please post them in the comments.

I'd like the comments thread to be a useful resource for this, so please keep posts within these criteria. In particular, please don't argue about whether race-based preferences in employment, hostile work enivornment law, high income taxes, national identification numbers, or a constitutional right of sexual autonomy or same-sex marriage are a good idea. That's not what this post is about. Also, please limit yourself to specific quotes and specific citations. Please avoid general conjectures about when such unreliable assurances must doubtless have been made.

David E. Bernstein (mail):
McColloch again, from the Alpert papers: "The Bill does not permit the Federal Government to transfer students among schools to create 'racial balancing.'"

The Bill does not permit the Federal government to require an employer orunion to hire or accept for a membership a quota of employees from any particular minority group.

"The Bill does not permit the Fedearl Government to tell a lawyer, doctor, banker or other professional man whom he must serve."

"The Bill does not permit the Federal Government to tell a barbershop or beauty shop own whom he must serve."

This seems to be in response to material written by one John C. Satterfield, past president of the ABA, which I have if you'd like to see it, Eugene.
8.17.2005 2:24pm
JSullivan (mail):
Clinton v. Jones, 520 U.S. 681 (1997) ("As a factual matter, petitioner contends that this particular case—as well as the potential additional litigation that an affirmance of the Court of Appeals judgment might spawn—may impose an unacceptable burden on the President's time and energy, and thereby impair the effective performance of his office. Petitioner's predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case. . . . [I]f properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner's time.").
8.17.2005 3:14pm
Bruce Lagasse (mail):
Dilan Esper: "To establish the "not for identification" Social Security rule, all you need to do is get ahold of some older Social Security cards. I have seen the cards that were issued in the 1940's, and they say right on the card that the number is not for identification."

I'm looking at my own card right now, issued in 1956, which says at the bottom, "For Social Security Purposes. Not For Identification." QED
8.17.2005 3:23pm
Eugene Volokh (www):
Sorry to be a martinet, but I removed several comments that did not fit within the call of the question.
8.17.2005 3:25pm
Stuart Buck (mail):
Your judge's article on legislative history that used the famous Hubert Humphrey/affirmative action example:

The most famous counterexample here involves many statements made by Senator Hubert Humphrey during the debate on the part of the 1964 Civil Rights Act which eventually became Title VII. n35 Strong opposition to the bill arose from senators who suggested it would be interpreted so as to call for quotas and preferences, and that it would be used to upturn union seniority systems. n36 Senator Humphrey, the bill's principal sponsor, made numerous statements flatly contradicting those suggestions: "Title VII prohibits discrimination. In effect, it says that race, religion, and national origin are not to be used as the basis for hiring and firing. Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion." n37 "Race shall not be a basis for making personnel decisions." n38 Fifteen years later, after Senator Humphrey was dead, his words played a pivotal role in the Supreme Court's decision in United Steelworkers of America v. Weber. n39 The Weber court examined whether Title VII prohibits private employers from implementing affirmative action plans; the majority, per Justice Brennan, said it does not. n40 In a strongly-worded dissent, Justice Rehnquist cited Senator Humphrey's floor statements extensively n41 and concluded that the majority was not faithful to Senator Humphrey's representations as to what Title VII means. n42

n35 See 110 Cong. Rec. 5092, 5094, 5423, 6547, 6548, 6549, 6552, 6553, 7204, 11,848 (1964) (statements by Senator Humphrey).

n36 See id. at 5094.

n37 Id. at 6549.

n38 Id. at 6553.

n39 443 U.S. 193 (1979).

n40 See id. at 208 (holding Title VII "does not condemn all private, voluntary, race-conscious affirmative action plans."); id. at 202, 203, 204 &n.4, 207 n.7, 208 (citing statements of Senator Humphrey).

n41 See id. at 228, 236 &n.15, 237 &n.17, 238, 242 n.20, 243, 248 n.28 (Rehnquist, J., dissenting).

n42 See id. at 254-55 (Rehnquist, J., dissenting).
8.17.2005 3:33pm
BC (mail):
This is the "official explanation" on the SS website:

The first Social Security cards were issued starting in 1936 and did not have this language.

SSA's policy is that the Social Security card is not an identity document. The card only verifies that the SSN on the card is assigned to an individual whose name is on the card. It does not verify that the person presenting the card is the person named on the card.

Therefore, the January 1946 version of the card first contained the language at the bottom of the card reading "FOR SOCIAL SECURITY PURPOSES -- NOT FOR IDENTIFICATION." Then the language was changed beginning with the September 1961 version of the card to read: FOR SOCIAL SECURITY AND TAX PURPOSES -- NOT FOR IDENTIFICATION". However, the language was removed beginning with the January 1972 version of the card because it was confusing to employers and others who viewed it because they were not sure whether to accept it as evidence of the individual's SSN. The language has not been on subsequent versions of the card.
8.17.2005 3:33pm
Jonathan M (mail):
I know this may be out of scope, but if it counts, there is a judicial trail in Canada of same-sex marriage, where the government and the judiciary at refused, then ceded to give benefits to same-sex couples - even while saying that it had nothing to do with marriage. Meanwhile, sexual orientation was added to the Charter of rights by an Ontario court as grounds of equality, all the while saying marriage was still in tact.

A few years later, same-sex marriage was defacto in Canada via the judiciary deciding based on the grounds in the "benefits" case.

Right now, there is a very interesting case of Polygamy going on in British Columbia. Proponents of same-sex marriage have argued all along that same-sex marriage will not interfere with polygamy laws in the criminal code. However, now that same-sex marriage is de facto, there is a very reluctant attorney general in BC that has received legal opinions saying that there is no way the polygamy law in the criminal code will hold up. All the while, same-sex advocates say their cause does not lead to a slippory slope to allowing polygamy. But the de facto example is that it does.
8.17.2005 3:40pm
Arthur (mail):
The legislative history of the civil RICO statute, passed in 1970, contained assurances by supporters that the cause of aciton would be used only against "real racketeers," not legitimate businesses that may have indulged in two improper interstate phone calls. However, no one could satisfacorily define what a racketeer was. Representative Abner Mikva (later appointed to the DC Circuit) opposed the bill becasue of his fear that it would be used agaisnt legitimate businesses. The Supreme Court found that the plain language of the statute meant the supporters of the bill were wrong about its consequences.

see outline for cites.
8.17.2005 3:42pm
AppSocRes (mail):
Let us not forget the slippery slope that led in the UK, Australia, New Zealand, and Canada from quite mild restrictions/control over firearms ownership to the current situation where each of these countries has essentially outlawed private firearms ownership and confiscated most privately owned firearms (there is now a movement to outlaw/control kitchen knives). Every stage of this process was accompanied by guarantees that the process would go no further and anyone suggesting the contrary was a hysterical right-wing nutcase. I'm sure the NRA can provide detailed documentation.
8.17.2005 3:51pm
chris (mail):
I'm sorry that I can't give specific cites, but during the 1960's Civil Rights debates, there were aired concerns by Goldwater and others about the dilution of freedom of association regarding forcing private business owners such as restaurants, hotels, and landlords to serve blacks or employers to hire blacks. The response was, generally, that this was a one issue thing. Freedom of association is still in place, except when it comes to race, the argument being that race based discrimination is so damaging to the social fabric that an exception to freedom of association holds.

But, of course, Goldwater and others were right on this specific point. The civil rights era was followed by a large decrease in the perceived validity of freedom of association as the proper way of organizing society. Why is it not ok to discriminate against blacks, but is ok to discriminate against women, gays, disabled people, old people, young people, fat people, ugly people ...?
8.17.2005 3:57pm
T. Gracchus (mail):
Amedment 3 in Utah. Supporters argued that the Amendment would have no effect on decisions to extend (or maintain) benefits to same-sex couples. Subsequent to passage it has been offered as legally precluding such benefits. (Amendment 3 says, in general langugage, that the state may not recognize as like marriage any relationship other than between a man and a woman.)
8.17.2005 4:21pm
Been There, Done That:
The Sixteenth Amendment was not supposed to have passed. The idea was to agree to an income tax only if it were adopted by constitutional amendment, which the states, of course, would never ratify. The congressman who introduced the amendment actually denounced it when it appeared the tactic would backfire.

a history, with quotes, is here:

Note also that it was only aimed at "the rich." Nobody expected the income tax to apply to ordinary people. From the linked history:

When the first income tax was sent out to the people, the Congress chortled confidently that "all good citizen will willingly and cheerfully support and sustain this, the fairest and cheapest of all taxes." . . . After all, the first tax ranged from merely 1% on the first $20,000 of taxable income and was only 7% on incomes above $500,000. Who could complain? (Ed. note: Expressed in 1994 dollars this sentence would read, "the first tax ranged from merely 1% on the first $298,000 of taxable income and was only 7% on incomes above $7,460,000.")
house sponsor denounced the
8.17.2005 4:23pm
SearchlightCrusade (mail) (www):
Sixteenth Amendment I cannot find the cite for the specific thing I was looking for but here is a cite to various things that were warned about (starting on about page six), the majority of which have in fact, to greater extent or lesser, come to pass. I was looking for a cite on the proposed cap rate which was belittled and defeated because "we're talking about pennies here, nobody will let it get as high as that and allowing that high of a cap will cause it to go there". I recall this rate as being ten percent, but am unable to document it. I was also looking for documents on the original debate about extending AFDC to unwed mothers, and potential effects on illegitimacy rates, but if this exists on the web, I missed it or couldn't find it.
8.17.2005 4:27pm
Duncan Frissell (mail):
Today's WSJ has a piece with a specific example by two retired Senators concerning the use of a 1993 Apology Resolution passed by Congress and signed by President Clinton directed to native Hawaiians to back up current legislation to declare native Hawaiians a quasi indian tribe.

8.17.2005 4:45pm
Perseus (mail):
How about smoking bans, which went from airplanes to indoor public/work spaces to outdoor public spaces (beaches, parks, etc.) and now possibly to indoor private places, namely, automobiles:

"Assemblyman John F. McKeon, D-Essex, said his bill would promote safety. He did not cite any studies linking smoking to a heightened risk of car accidents...
McKeon, 47, who also is mayor of West Orange, acknowledged that his primary goal is to bring focus to the ravages of tobacco.

'This is just another in a series of legislation to see what we can do to curtail the use of tobacco,' said McKeon, whose father died of smoking-related emphysema two years ago."
8.17.2005 4:56pm
I think some of the comments are missing the distinction between a single piece of legislation which is subsequently applied to greater effect than what the enacters promised, and multiple pieces of legislation imposing successively greater restrictions in the same area. Perhaps I misunderstood the terms of Prof. Volokh's challenge, but I understood him to only be discussing the former category.
8.17.2005 4:59pm
John Frazer (www):
New York City's 1967 rifle and shotgun registration, with the registration data later used to enforce a possession ban on certain guns:

8.17.2005 5:13pm
Perseus (mail):
Steve: What about Prof. Volokh's 2nd example?:

"When some such liberalizations were proposed, some people warned that these laws were steps down a slippery slope to broader rejection of traditional sexual rules, including towards same-sex marriages. These slippery slopes arguments were dismissed, sometimes contemptuously...Likewise, when the Vermont Supreme Court held that the state constitution requires the legislature to recognize same-sex civil unions (marriages in all but name), a large part of its argument rested precisely on the legislature's past enactment of various gay rights laws, including the enactment of antidiscrimination laws and hate crimes laws that refer to sexual orientation."

8.17.2005 5:13pm
John Frazer (www):
Sorry, the link didn't appear:
8.17.2005 5:16pm
chris (mail):
Above, I apologized for no specific example or citation regarding the Civil Rights act not diluting the concept of freedom of association. Here's one. I found this in the Bakke opinion regarding Title VI of the 1964 Civil Rights act

For example, Representative Celler, the Chairman of the House Judiciary Committee and floor manager of the legislation in the House, emphasized this in introducing the bill:
"The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food [438 U.S. 265, 286] surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association." 110 Cong. Rec. 1519 (1964) (emphasis added).
8.17.2005 5:27pm
Perseus: That's exactly how I framed my first category: a court interpreting a single piece of legislation to support a result the framers of the statute expressly said they did not intend. Examples involving successive pieces of legislation, such as creeping encroachments on gun rights, are a different animal.
8.17.2005 5:29pm
Perseus (mail):
Ok, I interpreted the phrase "this action will set a precedent that will be used to reach this particular bad result" as including something along the lines of successive pieces of legislation. Maybe I'm wrong.
8.17.2005 5:49pm
Troy H:
"...the power reserved for the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state."

James Madison -- Federalist #45

Not quite. Mr. Madison's federal government has seen to that.
8.17.2005 7:03pm
James Moyer (mail) (www):
In January 1974 Ohio switched from non-photo licenses to mandatory photo licenses (per the requirements of a law passed in September 1967 that Ohio licenses shall have a color photograph on them.) The law only required that a color photo appear on the license, and there was no requirement for photograph retention.

There must have been concern about photograph retention by law enforcement or the BMV. In an article from the Columbus Dispatch from December 30, 1973, discussing the new photo based licenses, the last paragraph reads:

"Only one picture will be taken of each license holder, and there will be no central file, the BMV has promised." (Bolding my own.)

The "promise" was broken in May 1995 when the BMV began issuance of the digital license, and quietly began archiving the photographs (the fact that they do so is not widely discussed, at least, on paper.) Today nearly every Ohioan over the age of 16 has a photograph in the BMV computer (making for at least 7 million license photograph.)

On a side note, while the legislature did approve photograph archival in the form of negatives for Commercial (CDL) licenses, they did not do so for regular licenses. The only mention of it in revised code is that photographs are only available to law enforcement.

Ohio is likely not unusual in this regards, all states archive digital photographs today, but not all have codified language (it's a practice which may become unpopular if discussed in a certain context.) I suspect many promised not to collect the photographs, much like Ohio promised not to do so. On this note, I believe that some states are ripe for some interesting legal action.
8.17.2005 7:10pm
smc (mail):
With apologies for the lack of citations (I'll supplement when I find them), I would think that it would be possible to find examples of (1) opponents of the anti-slavery movement/Emancipation Proclamation/13th Amendment proclaiming that those things would lead to greater freedom for Blacks (such as political and social equality), (2) supporters claiming that no such thing would happen (I recall some of Lincoln's statements both before and during his Presidency saying something like that). Of course the subsequent events would be the 14th and 15th Amendments, and, later (perhaps outside the 50-year cutoff you posit), decisions such as Brown and Loving and the civil rights and voting rights statutes of the 1960's. I would imagine that the same could be done with (1) opponents of women's suffrage in the 1900s and early 1910s saying that the vote would lead to other forms of equality deemed "unthinkable" at the time, (2) supporters of suffrage denying same, and (3) examples of the removal of other bars to women's equality (e.g., the ability to own property in their own name).
8.17.2005 7:58pm
nk (mail) (www):
In 1985 my state passed its seatbelt law. Our governor assured us that no police officer could stop us simply for not wearing our seatbelts but that we could get a $50.00 ticket if we were stopped for another traffic offense and not wearing our seatbelts. Now we have seatbelt enforcement zones where drivers not wearing seatbelts are pulled over, ticketed and checked out for everything including excessive tire wear. And have you heard of the case of Atwater v. City of Lago Vista?
8.17.2005 10:54pm
Justin (mail):
Being a straight white man not as fun as it used to be, Eugene? So much less fun to support their rights "in theory". :)
8.17.2005 11:41pm
I'd be interested in examples where (1) the opponents of some proposed law, constitutional amendment, or judicial decision argued "this action will be interpreted in this particular bad way" or "this action will set a precedent that will be used to reach this particular bad result," (2) the supporters assured the public that no, of course this won't happen, and (3) by 50 years down the line, the foretold result still has not taken place, validating the supporters' reassurances. In addition to the initial project.

This would amount to an intellectually interesting and useful comparison that would assist us in determining when supporters are likely to be right or wrong. The initial project would simply show that humans in power are sometimes wrong and/or humans in power sometimes lie, which doesn't really add much we don't already know.
8.17.2005 11:51pm
Addendum. While my previous comment did not fit within the precise criteria EV gave, I hope it will be accepted as fitting within the broader scope of this inquiry. I apologize if it does not.
8.17.2005 11:53pm
Lynxx Pherrett (mail) (www):
I suspect this portion of second day of oral argument in Griswold v. Connecticut fits the bill, and the "foretold result" arrived a lot sooner than 50 years:
THE COURT: Would your argument concerning these things you've been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?

MR. EMERSON: No, I think it would not cover the abortion laws Or the sterilization laws, Your Honor. Those--that conduct does not occur in the privacy of the home.

THE COURT: There is some privacy, as a rule, and the individual doesn't generally want it made known.

MR. EMERSON: Well, that aspect of it is true, Your Honor. But those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this--

THE COURT: Part of it goes on in the home, undoubtedly.

MR. EMERSON: Part of it does, Your Honor. But the conduct that is being prohibited in the abortion cases [t]akes place outside of the home, normally. There is no violation of the sanctity of the home.
Of course, slightly less than eight years later, it was the penumbrally emanated privacy right discovered by the Griswold court that was used to "invalidate all laws that punish people for bringing about abortions" in Roe v. Wade (1973).

According to this article by Professor Jerry Goldman, the initial question above came from Justice Hugo Black (the rest may have as well). Justices Black and Stewart joined each others dissents. Nowhere in the Griswold decision does "abortion" appear.]
8.18.2005 4:19am
Perseus (mail):
The Virginia and Kentucky Resolutions, authored by Madison and Jefferson, respectively.

"the tendency of the doctrines advanced by Virginia and Kentucky [will be] to destroy the Constitution of the United States..." Alexander Hamilton, Letter to Theodore Sedgwick, 2 Feb. 1799, PAH 22:452.

An original framer who would become known as "the father of the Constitution" author a resolution that would lead to the destruction of the Constitution? Impossible! Why in his Report on the Alien and Sedition Acts, Madison denied anything of the sort.

Sen. Hayne (SC), cites the Virginia Resolutions in support of S. Carolina's nullification doctrine:

The proposition which I laid down, and from which the gentleman dissents, is taken from the Virginia resolutions of '98, and is in these words--"that, in case of a deliberate, palpable, and dangerous exercise, by the federal government, of powers not granted by the compact, (the Constitution,) the states who are parties thereto have a right to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them..."

See also the South Carolina Exposition and Protest.

James Madison replies to S. Carolina's nullification doctrine. The Nullifying Convention would try to rebut the contemporaneous Madison with the Madison of 1798.

S. Carolina eventually secedes from the Union, causing the Civil War. As usual, Hamilton was right on target.
8.18.2005 9:42am
Simon (391563) (mail) (www):
Don Herzog posted something a while ago about a bait-and-switch in Michigan similar to that friend Tiberius mentions re Utah.

Perhaps it is off-topic (and if so, I apologize, please ignore it) but I wonder if we can make distinctions among these examples given between those who were genuinely mistaken about the consequences of the contested law and those who were, shall we say, less than fully honest about the consequences they foresaw.

(For the record, I think that both categories cross-cut any political/ideological categories.)
8.18.2005 10:05am
Sorry for lack of specific citations, however a good number of the anti-samesex-marriage laws past during the last major election cycle were marketed as "won't affect civil union/domestic partnership". However, shortly after passing, the groups that passed them and/or groups with similar ideologies began using the law to limit these types of benefits.

For an "in process" example, have a look at Florida's anti-marriage movement. The organization organizing the petition drive is at: They quite plainly say it will not affect the ability to get civil unions or domestic partnerships (not that you can at this time anyway) but the language of the proposed law clearly states "no other union". I don't know if these people are intentionally misleading or what.

I also don't know if this meets the professor's criteria as they may not see the limits on civil unions as a "bad effect". My personal opinion is that they find it a desireable but politically unpopular effect and so resort to trickery to get it passed.

Also, I've heard Virginia's anti-marriage law goes beyond marriage and actually prohibits things like medical powers of attorney and such between gay couples. (But that's a rumor so take that for what little it's worth.)
8.18.2005 10:20am
SimonD (mail):
I do'nt know if this counts, but following the ruling in Kelo, the City of New London has decided to charge back rent to the Kelos and their fellow, uh, squatters, as it turns out.
The U.S. Supreme Court recently found that the city's original seizure of private property was constitutional under the principal of eminent domain, and now New London is claiming that the affected homeowners were living on city land for the duration of the lawsuit and owe back rent. It's a new definition of chutzpah: Confiscate land and charge back rent for the years the owners fought confiscation. In some cases, their debt could amount to hundreds of thousands of dollars. Moreover, the homeowners are being offered buyouts based on the market rate as it was in 2000 .
This isn't exactly what the Kelo dissents warned of, but it is a terifying example of the real-world consequences of gravely flawed decisions. Remind me again how that "living constitution" can only ever grant us more, newer and shinier freedoms?

If the purpose of the thread is unreliable assurances, it seems to me that he founders placed limitations on government because they didn't trust governments. They limited emminent domain with the public use clause; the Kelo court eliminated that protection, and immediately having been loosed from that restraint, the New London government lived down in every way to the expectations of the framers.
8.18.2005 4:33pm
P Duggan (mail) (www):
Here is one.

In Wickard vs Filburn, the case that allowed that a man producing farm products for the use of his own farm fell under the commerce clause and could be regulated. The court begins by citing Gibbons vs. Ogden, saying that Marhsall "described the Federal commerce power with a breadth never yet exceeded."

But Gibbons vs. Ogden says

"The subject to which the power is next applied, is to commerce 'among the several States.' The word 'among' means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary."

This is an interesting case, but maybe has more to say about Jackson than Marshall, who I suppose would argue that it is an expansion of the idea of 'commerce' rather than the change of the idea of 'among'.

Its also more than 50 years].
8.18.2005 4:47pm
Perseus (mail):
Here's a working link (I hope) for Sen. Hayne's second speech in his debate with Sen. Webster: "The South Carolina doctrine, that is to say, the doctrine contained in an exposition reported by a committee of the legislature in December, 1828, and published by their authority, is the good old republican doctrine of '98 -- the doctrine of the celebrated 'Virginia Resolutions' of that year, and of 'Madison's Report' of '99."
8.18.2005 4:51pm
Lee Moore (mail):
I hope you don't mind an English example. Being too stupid to understand your instructions on how to post urls over over 60 characters I've had to leave those out. But it's easy enough to google for "joanna jepson" "john finnis" "cleft palate" and "abortion"

The story is simple enough, In 1990 there was a proposal to change the abortion law to allow abortions after 24 weeks in the case of "serious handicap". Anti-abortion legal academics said this was such a borderless expression that some doctors would interpret to include things like a cleft palate. The promoters of the legislation said this was an outrageous calumny on the medical profession. The law change went through.

Ten years later later, as predicted, abortions were being performed for cleft palates. An anti-abortion campaigner took a case to force the prosecuting authorities to consider prosecuting two doctors who had perfomed a late abortion in these circumstances. She won her case, but when the authorities reviewed the case they concluded that the doctors had "acted in good faith" and that there was no case to answer.

They can have found no evidence of any genuinely serious handicap of which the cleft palate was merely a symptom (other than the doctors' opinion) or otherwise the prosecuting authorities would have said so, the better to exonerate the doctors (and their own previous inactivity.) So the inevitable conclusion is that there was no case to answer because there was no evidence that the doctors had not acted in good faith. Which is pretty much what the anti-abortion campaigners had said in 1990 - some doctors will interpret serious handicap in a very relaxed fashion, including things like cleft palates, and it will not be possible to gainsay them.
8.18.2005 5:36pm
Terry v. Ohio and the cases that followed it are another example. Terry provided that the police could search people for weapons even if they lacked probable cause (they only needed "reasonable suspicion"). This article from The New Republic follows the history of Terry stops. I've bolded the caveats which were later abandoned:

Fifteen years later in Michigan v. Long, the Court extended its logic... the Court stressed that "the sole justification of the search ... is the protection of the police officer and others nearby. One year later, in Berkemer v. McCarty, the Court wrote that an officer conducting a "Terry stop" without probable cause was not limited to searching for weapons and could "ask the detainee a moderate number of questions to determine his identity." The Court added the caveat, "but the detainee is not obliged to respond." INS v. Delgado, Florida v. Royer, and another family of Fourth Amendment cases all rest on the notion that brief stops are permissible because they are non-coercive and the suspect is "free to leave." But most recently, in 2000 the Court ruled in Illinois v. Wardlow that "outright flight" from officers was suspicious behavior that could be pursued--though the Court added that officers still could not hold a suspect's mere refusal to answer questions against him.

Now in Hiibel, 36 years after Terry created the original Fourth Amendment exception, we are told that officers can not only search a suspect for weapons but can also compel him to answer questions about his identity--with the caveat that suspects cannot necessarily be forced to produce documentation to support their responses."

Hiibel requires someone to give a name, but the decision says that ID is not required, and the article points out that if someone responds "I'm Micky Mouse," the police will want ID. So the powers originally justified by Terry will continue to expand.

The net result of all of this is that "reasonable suspicion" expanded dramatically despite the assurances that it would be limited to weapons, then to safety in general, then to identifying a person generally, then to names, and soon (presumably) to identification. Caveats that the detainee is not compelled to answer were later rejected.
8.18.2005 8:49pm
wave maker (mail) (www):
This is a fascinating thread -- most useful and I look forward to the resulting article.

Since you use MA same-sex marriage issue as the defining example, I wish to report that I was one of a handful of legislators in MA who vocally opposed the so-called "gay rights" (advocates' term, not mine) legislation (in committee and on the House floor), in part for the very reason that it would lead to same sex marriage. Advocates angrily and sanctimoniously condemned this concern. WGBH TV was then responsible for televising all House of Representatives proceedings, and perhaps they have archived the old video of the floor debate -- I am guessing that it took place sometime during 1988.
8.19.2005 9:17am
Jon Rowe (mail) (www):
I think one could argue that Loving v. Virginia case sent us down the slippery slope that is leading to gay marriage (To make it clear: I support both the right of interracial marriage AND same-sex marriage).

The rhetoric condemning both on grounds of "naturalness," "tradition," and "religion" are uncanny in their similarities.

And certainly, gay rights advocates use Loving as justification for same-sex marriage. Therefore if a court or public policy argument successfully uses Loving as part of the justification for same sex marriage, we will have "slipped" from interracial marriage to same-sex marriage.

What I'm looking for now is rhetoric from Loving's opponents predicting this would happen.
8.19.2005 10:56am

The phrase in the Constitution that says Congress shall have the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States'' was regarded as a dangerous wildcard -- something that would give Congress the power anything it likes -- by the "Anti-federalists". Madison pooh-poohed that claim in Federalist #41. Madison said there that "General Welfare" is not a separate power of Congress at all; the phrase is just a shorthand referring to the powers of Congress enumerated elsewhere in the same Constitution. Thus, the Constitution was ratified based on this reassurance given by Madison.

But in 1936 (U.S. v. BUTLER, 297 U.S. 1), the Supreme Court said Madison was wrong, and that "General Welfare" is after all a distinct power of Congress.

Hamilton had argued that "General Welfare" is a separate power of Congress, but he said that after ratification. (It's good to know these things before you sign on the dotted line.) Hamilton didn't discuss "General Welfare" in the Federalist Papers (i.e., before ratification).

After the Supreme Court decided that "General Welfare" is a power of Congress, important ramifications followed. The Supreme Court later decided that Congress had a legitimate power to pass the Social Security Act based on its "General Welfare" power.

From Federalist #41, by Madison (ca. 1788):

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power ``to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ``to raise money for the general welfare.'' But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are ``their common defense, security of their liberties, and mutual and general welfare. '' The terms of article eighth are still more identical: ``All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,'' etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!


Alexander Hamilton, Report on Manufactures (5 Dec. 1791):

A Question has been made concerning the Constitutional right of the Government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority "To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare" with no other qualifications than that "all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that "no tax or duty shall be laid on articles exported from any state." These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and "general Welfare." The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues should have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.


U.S. Supreme Court, U.S. v. BUTLER, 297 U.S. 1 (1936):

Since the foundation of the nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position.12 We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.
8.20.2005 12:41am
Perseus (mail):
DDR: Here is a citation from the Anti-Federalist "Brutus," Essay VI (12/27/1787) to satisfy Prof. Volokh's first requirement that "the opponents of some proposed law, constitutional amendment, or judicial decision argued 'this action will be interpreted in this particular bad way'":

"It will then be a matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views."

Also Madison from his Report on the Alien and Sedition Acts cited above:

Now, whether the phrases in question be construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude, which, in its exercise, does not involve or admit an application of money. The government, therefore, which possesses power in either one or other of these extents, is a government without the limitations formed by a particular enumeration of powers; and consequently, the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.

This conclusion will not be affected by an attempt to qualify the power over the "general welfare," by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual states; and leaving to these their jurisdictions, in cases to which their separate provisions may be competent. For, as the authority of the individual states must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare, which might, by any possibility, be provided for by the general authority. This qualifying construction, therefore, would have little, if any tendency, to circumscribe the power claimed under the latitude of the terms "general welfare."

8.20.2005 3:47am