St. Louis, Missouri with the Thomas F. Eagleton U.S. Courthouse in foreground (A.G. Baxter/Shutterstock.com).Hamilton the Lawyer
Give Me Madison, Please!
Gordon Lloyd and Steve Ealy provide considerable material to ponder. The gist of their argument seems to be that rather than a Progressive political culture centered on quadrennial presidential elections and a governmental system featuring a considerable policy-making authority for both the president and the Supreme Court, we ought to prefer a “Madisonian” system. While sympathetic toward, and indeed enthusiastic for, their criticisms of our current political culture, I demur from their ascription of their views to James Madison. Their Madison is not Madison as I understand him, and I prefer the real thing. Consider the Lloyd/Ealy account of Madison’s response…
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It is subtle, or at least ironic, to use a term—“liquidate”—that has lost its original meaning to initiate a discussion of constitutional interpretation. Today the word still has a legal usage, referring to the payment and settlement of debts. The OED finds that meaning in English publications at the time that Madison and Hamilton employed…
Gordon Lloyd and Steve Ealy make a compelling case for liquidation, what they call “Originalism for the Living Generation,” as the most Madisonian means of settling constitutional meaning. Grounded as it is in Madisonian text and example, from The Federalist to the bank veto, the superb account Lloyd and Ealy offer is difficult to assail…
Getting to the Essence of the 1787 Document
Gary Lawson and Guy Seidman’s important new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, seeks to explain what the Constitution of the United States is. While that might appear to be a goal that could only be achieved with a massive tome (or perhaps several of them), the book runs about 200 pages and is focused narrowly on the question of what kind of document “We the People” ratified in 1788. The Constitution has been called a contract, a compact, a covenant, a charter, and (by one of the coauthors in a previous writing) a recipe—all of which…
State Bankruptcy and the Federal Order
In response to: Extending Bankruptcy Law to States: Is It Constitutional?
Illinois State LegislatureWhile a federal bankruptcy law for states might be a desirable policy, its constitutionality is doubtful. Now, I am not a constitutional lawyer and cannot speak to the details of United States case law, but I do study fiscal federalism in comparative context: its conditions, operations, and consequences. Accordingly, I will analyze how a federal law for state bankruptcy would tend either to support or to undermine the values one might seek to protect by means of the federal, constitutional order in the United States. The main points of the argument are as follows. First, federal bankruptcy law for cities reaches…
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In his illuminating and timely Liberty Forum essay on the constitutional impediments to a state-level bankruptcy procedure, Michael McConnell emphasizes the importance of the sovereignty of the states in the framework of American federalism. Unlike Detroit and San Bernardino, and perhaps unlike Puerto Rico, the states are considered fully sovereign with respect to taxation, expenditures,…
Michael McConnell’s Liberty Forum essay does an excellent job of outlining the legal case that enabling states to declare bankruptcy is not necessarily inconsistent with constitutional principles or with existing case law. From the perspective of a public choice economist, however, there is another salient issue. What those who study the outcomes of institutional arrangements and…
The 1840s approach of letting insolvent states default in their own juices is unlikely to withstand political pressures for bailouts today.
Politicizing the Constitution Is Necessary and Proper
George Caleb Bingham, "The County Election"“The notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government. Chris, the Supreme Court is not the supreme branch. And for God’s sake, it isn’t the Supreme Being. It is the Supreme Court.” –Mike Huckabee, Fox News Sunday, May 24 As superintendent of a national conversation on the Supreme Court’s hegemony over constitutional questions, former Governor Mike Huckabee (R-AR) is less than ideal. He implicitly but indefensibly denies the Supremacy Clause, more on which presently. Even by way of…
The Dormant Commerce Clause
Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause. Here are my views:
1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak. That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.
2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.
3. I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.
4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).” But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”
The Taxman Cometh, Twice
Without Deference: The Courts Must Independently Interpret the 14th Amendment
In most circumstances, the Constitution does not oblige the courts to give any deference to the legal judgments made by legislative or executive actors in the performance of their legislative or executive functions. The enforcement powers of the Reconstruction amendments are like most congressional powers in that respect. Those amendments give Congress substantial law-making power, and the courts may be obliged or permitted to defer to Congress’ judgment about the suitability of its chosen means to the Constitution’s ends. The ends Congress may pursue, however, are specified by the Constitution. For the Reconstruction amendments, those ends are found in the…
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My thanks to the folks at Law & Liberty for inviting me to respond to Josh Hawley's provocative essay on the need for the Supreme Court of the United States to defer to reasonable congressional interpretations of the Constitution. Professor Hawley nicely tees up an issue of inter-branch cooperation in the proper enforcement of the…
The Fallacies of Marshallian Nationalism
In this spirited polemic, Prof. Sotirios Barber defends the American nationalist constitutional tradition, particularly the thought of John Marshall, from the attacks of both states’ rights advocates (who he calls “dual federalists) and process federalists, those who believe national power should be used in expansive ways to protect individual rights without working to establish one specific American society. Barber uses Marshall’s 1819 decision in McCulloch v. Maryland as the starting point for nationalist analysis. Hence, he mentions only briefly the important clashes between nationalists and their opponents during the first three decades of the Early Republic. In explaining the rationale…
