Freespace

State constitutional law, week 5--

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Readings:

Sandefur, A Private Little Bush v. Gore, 9 Tex. Rev. L. & Pol. 105 (2004)
Guinn v. Legislature, 119 Nev. 277 (2003) and 119 Nev. 460 (2003)
Bush v. Gore, 531 U.S. 98 (2000)
New York v. United States, 505 U.S. 144 (1992)
Pacific States Telephone, 223 U.S. 118 (1912)

Things to consider while reading--

While reading Guinn, keep in mind how many layers of our previous discussions are involved here. The state is autonomous in interpreting its own law, and here the state supreme court is dramatically changing how state law can be made. Is there any federal route for the losing litigants in this case? What is the jurisdictional basis for the Supreme Court's intervention in the Florida election procedures in Gore? Can you think of another possible basis for federal intervention in this case? In other cases in which states are interpreting their own laws? Are there any implicit limits on state court's interpretation of their own laws? What do you think the republican guarantee clause is meant to do? In Luther v. Borden, the Court suggested that this clause is a non-justiciable political matter. What does this mean? If it is justiciable, what sort of standards apply? That is, what's the difference between a republican and a non-republican form of government?

A brief follow up on my critique of Hayek

The new issue of The Independent Review has an exchange between me and Gus diZerega regarding my summer 2009 article, "Some Problems With Spontaneous Order."

Barbarians

No other word for it, no matter how much we hedge, or pretend otherwise. If only this sort of thing got the same reaction from our media as that moron wanting to burn the Koran (also, of course, barbaric).

Incidentally, my favorite definition of barbarian comes from Will Durant: a barbarian is one content to live without freedom and believe without reason.

Why the pre-New Deal Supreme Court was right

National Review has posted my article "Comes A Horseman" this morning, and you can read it here. In it, I discuss how and why the U.S. Supreme Court resisted the New Deal initially, and came in the end to acquiesce in Roosevelt's tremendous expansion of federal power.

Talks in San Diego on Monday, Sep. 13

I'll be speaking on Monday at two events in San Diego: at noon, I'll be at Cal Western Law School, Room 2G, and at 2:30, I'll be speaking at the University of San Diego law school, in the Grace Moot Court Room. Both events will be on the topic of "The Constitution's Role in American Exceptionalism." Both events are free, and lunch is provided.... (Perhaps we should do an event on "Free Pizza's Role in American Exceptionalism"...)

For more information on the Cal Western event, contact sirusjr@gmail.com, and for more information on the USD event, contact lthompson-11@sandiego.edu.

(In a previous post, I accidentally said these talks were on Tuesday.)

Richard Wilbur's new book

This is great news. Richard Wilbur, America's greatest living poet, has a new book of poems coming in November. Not bad for a man almost in his nineties. Here he is talking last year at the 92Y.

State Constitutional law week 5

Readings:

Prigg v. Pennsylvania, 41 U.S. 539 (1842)
Gonzalez v. Raich, 545 U.S. 1 (2005)
Emerald Steel Fabricators v. Bureau of Labor, 348 Ore. 159 (2010)
State v. Lupo, 984 So. 2d 395 (2007) (concurring opinion)
Wayne County v. Hathcock, 684 N.W.2d 765 (2004)

Things to keep in mind while reading—

Prigg, Raich, and Emerald Steel Fabricators, like Dred Scott and Lemmon, deal with states wanting to resist federal policies. In a speech given shortly after the Dred Scott decision was announced, Abraham Lincoln charged that the decision would force free states to allow slavery. Do you agree with that interpretation? How does the Lemmon case conflict with Dred Scott? In reaction to the Fugitive Slave Law, northern states enacted laws designed to prevent the seizure of free blacks on their soil. In Prigg, the Supreme Court strikes down such a policy. But does it leave open the door? Many abolitionists thought so, and enacted Personal Liberty Laws to impose procedural protections for free blacks. In what ways are these laws similar to the Montana sheriff’s refusal to enforce the Brady Law in Printz? In Raich, the Court upholds the constitutionality of the Controlled Substances Act, which overrides California’s medical marijuana law. How is the medical marijuana law nevertheless constitutional? What about Oregon’s medical marijuana law? Does Emerald Steel Fabricators strike it down as unconstitutional?

With Lupo and Hathcock, we start a new subject: how state courts’ interpretation of their own constitutions can differ from that of the federal courts’ interpretation of state constitutions. The concurring opinion in Lupo interprets the Alabama Constitution as including greater protection for freedom of contract than the federal Constitution. Why?

In Hathcock, the Michigan Supreme Court holds that condemnations for private development are unconstitutional. Why? Given that Berman v. Parker was decided by the U.S. Supreme Court in 1954, and that the Michigan Constitution was written not long after that, what do you say to the argument that the Michigan Constitution’s “public use” language should incorporate the Berman decision—that is, that it should allow for development condemnations? In Lupo, the concurrence uses contemporary court decisions (including federal decisions) to interpret the state constitution; but in Hathcock, is the court ignoring that? What do you think of the dispute between the majority and the concurrence in Hathcock? Who was Thomas Cooley, and why should the court care about him?

My National Review article

The latest issue of National Review (Sept. 20, 2010) features my long feature article, "Comes A Horseman," about the pre-New Deal Supreme Court. Excerpt:

...it’s clear that, however dramatic, the era’s constitutional transformation was not unforeseen. Nor was it simply the pragmatic resolution of a political tussle between compassionate liberals and heartless conservatives. The Four Horsemen drew from a long line of precedent—some quite fresh—that correctly restrained government power and protected economic freedom in ways incompatible with Roosevelt’s plans. Moreover, their forebodings proved justified: The theories the Court embraced in 1937 sapped state autonomy, fostered a federal bureaucracy totally alien to the Founders’ vision, and abandoned individual liberty to the arbitrary will of legislatures. Today, government limits economic freedom in countless anti-competitive ways—requiring even florists and interior decorators to undergo years of expensive education and confiscating property virtually without restraint. Indeed, when the Court ruled in 2005 that states could condemn homes and give the land to private developers, it drew straight from the New Deal cases: Courts review eminent domain under a “deferential standard,” wrote Justice Anthony Kennedy, that “echoes the rational-basis test used to review economic regulation.”

Justice Sutherland and colleagues warned that, while ignoring or loosening constitutional limits might seem profitable in the short run, every lapse furnished a precedent for further expansion, and that the bureaucratic machinery created during the 1930s would eventually entangle every aspect of economic life. It’s sad their warnings went unheeded.

Saturday cat

Library of America publishes Mencken

This is delightful--the Library of America has published a two volume edition of H.L. Mencken's Prejudices. Add that to the forthcoming Twain autobiography and Hitchens' memoir, and this is a great year for books!

The reviewer, by the way, is right to focus on "In Memoriam, W.J.B.," which may be the finest of all Mencken's essays.