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July 18, 2019|Electoral College, Interstate Compact, National Popular Vote compact, Supremacy Clause

The Plot to Undermine the Electoral College

by Ian Drake|

Protesters demonstrate against Donald Trump in Washington DC in anticipation of the certification of the Electoral College vote. Rena Schild (shutterstock.com)
The National Popular Vote compact is a poor alternative to the Electoral College and is manifestly unconstitutional. 

April 4, 2017|Donald Trump, Hugh Hewitt, Immigration, New Deal, public works, Supremacy Clause, tax reform

Hewitt’s Mostly Wrong Way

by Donald Devine|

AdobeStock_94710548

The latest venture to confront the new Donald Trump era is what Hugh Hewitt calls his “conservative playbook for a lasting GOP majority.” This is the subtitle of The Fourth Way, his new book. Hewitt, the Chapman University Law School professor, former Reagan administration official, and talk radio host, is everyone’s favorite nice guy—a charming media personality, fair-minded debate moderator, and the author, so far, of 17 books. This one is his most ambitious.

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June 4, 2015|Chief Justice Warren Burger, McCulloch v. Maryland, Mike Huckabee, Richard Nixon, Separation of Powers, Supremacy Clause

Politicizing the Constitution Is Necessary and Proper

by Greg Weiner|

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…

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March 18, 2014|Judicial Review, Originalism, Supremacy Clause

Originalism and Judicial Review – Part II: The Textual Arguments

by Mike Rappaport|

For the first post in this series, see here.

This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.

It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature?

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February 18, 2014|Constitution, Due Process Clause, Fifth Amendment, Magna Carta, Substantive Due Process, Supremacy Clause, The Federalist

The “Law of the Land” Clause of Magna Carta, the Supremacy Clause, and Judicial Review

by Josh Blackman|

During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:

No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.

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April 11, 2012|Stare Decisis, Supremacy Clause

Jonathan Mitchell on Stare Decisis and Constitutional Text

by Mike Rappaport|

Jonathan Mitchell’s recent article on Stare Decisis and Constitutional Text has received some attention.  See here for the article’s abstract and here for a short post on it.  While I have not studied the article carefully, I have digested its basic argument.  Mitchell argues that the Supremacy Clause only establishes that the Constitution, federal statutes, and treaties are supreme law of the land.  While the Clause therefore requires that these sources of law take priority over nonsupreme sources, such as state law, Mitchell maintains that it does not specify any rule of priority as between these supreme types of law.  Mitchell also argues that judicial precedents are conspicuously absent from the listed types of supreme law.  Therefore, such precedents are nonsupreme law that cannot take priority over the Constitution, federal statutes, or federal treaties.

Because Mitchell concludes that the Constitution is silent as to which of the three types of supreme law takes priority, the Courts are entitled to choose to which one to give priority.  When they choose one type over another (such as the Constitution over federal statutes), they are not acting unconstitutionally.  However, they could have chosen a different order of priority (such as federal statutes over the Constitution).

From this, Mitchell reaches some pretty unusual conclusions:

First, the Supreme Court cannot strike down federal statutes as unconstitutional based on a precedent that erroneously interpreted the Constitution.  That would place a nonsupreme law (precedent) over a supreme law (a federal statute).  But the Court can uphold a federal statute based on an erroneous precedent.  The Constitution and federal statute are tied as supreme laws and therefore the Court has discretion to pick which one to enforce.

Thus, the Supreme Court can choose to follow erroneous precedents that expanded the Commerce Power during the New Deal.  But, if the application of the Equal Protection Clause to the federal government is erroneous, the Court cannot follow that precedent, because that would place a nonsupreme law (precedent) over a supreme law (a federal statute).

Second, the Supreme Court cannot uphold as constitutional a state law based on a precedent that erroneously interpreted the Constitution.  But the Court can strike down a state law based on a precedent that erroneously interpreted the Constitution.  Neither the state law or the precedent is supreme law, so they are on a par and the Court can pick to which one to give priority.

Thus, if Home Building and Loan v. Blaisdell is an erroneous precedent that mistakenly allows contract impairments, the Court cannot allow a state law that effects such an impairment.  That would permit a nonsupreme law (state law) to take priority over a supreme law (the Constitution).  But if Roe v. Wade is an erroneous precedent, the Court can strike down a state law that restricts abortion based on Roe.  That would involve two nonsupreme laws (precedent and state law) and the Court could decide to which one to give priority.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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