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May 17, 2017|Federalism, First Amendment, Privileges and Immunities Clause, state and local tax deductions, Thirteenth Amendment, Tyler Cowen

Improve Federalism by Rewarding Interstate Movement

by John O. McGinnis|

Chicago, IL and Toledo, OH interstate highway sign

One of the glories of our constitutional structure is competitive federalism. Under the original Constitution, the states had very substantial powers of regulation. But they were disciplined in large measure because they were forced to compete in a market for governance. If a state imposed too many burdens on their citizens through either taxation or regulation or failed to provide needed public goods, citizens could leave.

For competitive federalism to work well, the federal government, however, does need to facilitate it. Most important are the constitutional rights that ease movement. Article IV of the original Constitution requires each state to extend the privileges and immunities it extends to citizens within its state to citizens of other states. Presumably that right effectively guarantees free movement in, out and, within the state for out-of-state citizens since states universally grant that right to their own citizens.  The self-ownership assured by the Thirteenth Amendment eliminated a legal obstacle that African Americans faced travelling from state to state.   The First Amendment assures that citizens can hear about conditions in other states and compare it to their own.

But it is not only the Constitution but federal statutes that can make a difference to the vibrancy of state competition.

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March 14, 2016|Abraham Lincoln, border state of Kentucky, Corwin Amendment, James Mitchell Ashley, judicial oligarchy, Leonard L. Richards, Thirteenth Amendment, Who Freed the Slaves?

Lucky 13

by Ken Masugi|

The short answer to the question posed in this book’s title is the Thirteenth Amendment to the Constitution, whose early and chief congressional proponent was Ohio Republican James Mitchell Ashley (1824-1896), a Representative from the district around Toledo. This readable book, published on the sesquicentennial of the amendment’s adoption, spurs us to know more about this remarkable American as well as the other liberators—the antislavery politicians and other public figures, and members of the Union Army, from freedmen soldiers in the ranks to generals. It also depicts their opponents, especially the Democratic Party factions and Kentuckians, and their concerns, both…

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July 13, 2015|Abraham Lincoln, Fourteenth Amendment, John Bingham, Philip B. Lyons, President Andrew Johnson, Radical Republicans, Thirteenth Amendment

The Reconstruction Statesmen

by Herman Belz|

In his last public address, April 11, 1865, President Abraham Lincoln defined the problem of Reconstruction as how to end the war, re-inaugurate the national authority, and get the seceded states back into “their proper practical relation with the Union.” No provision in the Constitution explained how this should be done. There was no government to make a treaty with as in a war between independent nations. Lincoln observed: “No one man can give up the rebellion for any other man. We must simply begin with, and mould from, disorganized and discordant elements.” In Statesmanship and Reconstruction: Moderate Versus Radical Republicans…

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July 23, 2014|civil rights, Civil Rights Cases of 1883, Declaration of Independence, Fourteenth Amendment, John Harlan, Plessy v. Ferguson, Slavery, Thirteenth Amendment

The Thirteenth Amendment as a Conservative Counterrevolution

by Ken Masugi|

  In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…

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January 1, 2013|

A Complicated and Constitutional Act of Liberty and Justice

by Allen Guelzo|

In response to: The Emancipation Proclamation: Abraham Lincoln’s Constitutionally Modest Proposal

David Nichols’ comment on Abraham Lincoln’s decision to issue an Emancipation Proclamation on January 1st, 1863, is a perceptive and nuanced appraisal of Lincoln’s path to the proclamation. The principal question with which Nichols has had to deal is how to characterize that decision, and there are at least four ways Nichols could have done this: (a) The Proclamation was an act of justice but had no constitutional legitimacy, and therefore was an unconstitutional usurpation which we all ought to regret; (b)   The Proclamation was an act of justice but had no constitutional legitimacy, and shows that the Constitution is a limited…

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More Responses

So Much Power in So Few Hands: Reevaluating Abraham Lincoln’s Emancipation Proclamation

by Marshall DeRosa

Professor Nichols urges us to revisit the arguments surrounding the Emancipation Proclamation (EP) for two reasons. The second reason noted is that the “constitutional issues at stake  . . .  are relevant to contemporary American politics.” That’s true enough, especially in light of the ever-expanding powers of the US presidency, the corresponding demise of the…

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January 1, 2013|

The Emancipation Proclamation: Abraham Lincoln’s Constitutionally Modest Proposal

by David Nichols|

On July 22, 1862 President Abraham Lincoln presented a plan to his cabinet to issue a proclamation emancipating slaves in all states that remained in rebellion as of January 1, 1863. At the urging of Secretary of State William Seward he decided to wait until the Union could claim a significant military victory before issuing the proclamation.  After the battle of Antietam, on September 22, 1863, he issued his preliminary proclamation which gave the states in rebellion one hundred days to return to the Union or face the permanent loss of their slaves. On January 1, 1863, he followed through…

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Responses

So Much Power in So Few Hands: Reevaluating Abraham Lincoln’s Emancipation Proclamation

by Marshall DeRosa

Professor Nichols urges us to revisit the arguments surrounding the Emancipation Proclamation (EP) for two reasons. The second reason noted is that the “constitutional issues at stake  . . .  are relevant to contemporary American politics.” That’s true enough, especially in light of the ever-expanding powers of the US presidency, the corresponding demise of the…

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A Complicated and Constitutional Act of Liberty and Justice

by Allen Guelzo

David Nichols’ comment on Abraham Lincoln’s decision to issue an Emancipation Proclamation on January 1st, 1863, is a perceptive and nuanced appraisal of Lincoln’s path to the proclamation. The principal question with which Nichols has had to deal is how to characterize that decision, and there are at least four ways Nichols could have done…

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November 26, 2012|Abraham Lincoln, Emancipation Proclamation, Gettysburg Address, Lincoln's Second Inaugural Address, Statesmanship, Thirteenth Amendment, War Powers

“Clothed with immense power”

by Ken Masugi|

Director Steven Spielberg and screenwriter Tony Kushner’s Lincoln opens with a chaotic battle in a river, black and white soldiers struggling to kill each other in hand-to-hand combat.  We then see pairs of black and white soldiers reciting from memory the Gettysburg Address back to the President.

Lincoln concludes the movie by delivering the Second Inaugural. Most of the time in between is an elaboration of his wartime and Reconstruction strategy and thus a commentary on the purposes of the First Inaugural and the Emancipation Proclamation. These occasions are the rhetorical high points of Lincoln’s presidency, though most of the movie is focused on events in early 1865.

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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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