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Epstein, Richard A.. <i>The Classical Liberal Constitution : The Uncertain Quest for Limited Government</i>, Harvard University Press, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=3301367. Created from liberty on 2019-10-19 16:05:38.

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The Classical Liberal Constitution

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T H E

CLASSICAL LIBERAL CONSTITUTION

The Uncertain Quest

for Limited Government

R I C H A R D A . E P S T E I N

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts

London, England

2014

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Printed in the United States of America

Publication of this book has been supported through the generous provisions of the Maurice and Lula Bradley Smith Memorial Fund.

Library of Congress Cataloging-in-Publication Data Epstein, Richard Allen, 1943–

The classical liberal constitution : the uncertain quest for limited government / Richard A. Epstein.

pages cm Includes bibliographical references and index.

ISBN 978-0-674-72489-1 1. Constitutional law—United States. 2. Liberalism. I. Title.

KF4550.E69 2013 342.73—dc23 2013015767

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To Eileen again, for everything,

and

To the Memory of David Currie (1936–2007) constitutionalist extraordinaire

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Contents

Preface: My Constitutional Odyssey ix

P A R T O N E : P R E L I M I N A R I E S Introduction: Our Two Constitutions 3

1. The Classical Liberal Synthesis 17

2. The Progressive Response 34

3. Constitutional Interpretation: The Original and the

Prescriptive Constitutions 45

P A R T T W O : C O N S T I T U T I O N A L S T R U C T U R E S Section I: The Judicial Power

4. The Origins of Judicial Review 77

5. Marbury and Martin 86

6. Standing: Background and Origins 101

7. Modern Standing Law 119

8. The Political Question Doctrine 133

Section II: The Legislative Power

9. The Commerce Power: Theory and Practice, 1787–1865 147

10. The Commerce Clause in Transition: 1865–1937 158

11. The Commerce Clause: Transformation to Consolidation,

1937–1995 168

12. Constitutional Pushback: 1995 to Present, from Lopez to NFIB 183

13. Enumerated Powers: Taxing and Spending 194

14. The Necessary and Proper Clause 210

15. The Dormant Commerce Clause 227

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viii Contents

Section III: The Executive Power

16. Basic Principles and Domestic Powers 247

17. Delegation and the Rise of Independent Agencies 267

18. Foreign and Military Affairs 285

P A R T T H R E E : I N D I V I D U A L R I G H T S Section I: Property, Contract, and Liberty

19. From Structural Protections to Individual Rights 303

20. Procedural Due Process: Implementing the Classical

Liberal Ideal 314

21. Freedom of Contract 337

22. Takings, Physical and Regulatory 347

23. Personal Liberties and the Morals Head of the Police Power 367

Section II: Speech

24. Freedom of Speech and Religion: Preliminary Considerations 383

25. Force, Threats, and Inducements 395

26. Fraud, Defamation, Emotional Distress, and Invasion

of Privacy 406

27. Government Regulation of the Speech Commons 423

28. Progressive Regulation of Freedom of Speech: Labor,

Communications, and Campaign Finance 437

Section III: Religion

29. Free Exercise 461

30. The Establishment Clause: Theoretical Foundations 481

31. Regulation and Subsidy under the Establishment Clause 492

32. The Commons 503

Section IV: Equal Protection

33. Race and the Fourteenth Amendment 521

34. Citizenship and the Fourteenth Amendment 541

35. Equal Protection and Sex Discrimination 554

P A R T F O U R : C O N C L U S I O N Conclusion: The Classical Liberal Alternative 569

Notes 585

Index of Cases 653

General Index 665

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Preface: My Constitutional Odyssey

The Classical Liberal Constitution represents the culmination of my lifetime

project of developing a distinctive synthesis of constitutional law that

does not fall squarely within either the conservative or progressive camp.

I started work on this volume in 2006, fi nished a fi rst draft in 2010, and

have done extensive revision and expansion of the book to prepare it

for publication in late 2013. At one level, my ambition has been to give

a comprehensive account of how the various provisions of the United

States Constitution, dealing as they do with both structural issues and

individual rights, can best be explained in light of classical liberal theory.

That theory in turn starts from the twin pillars of private property and

limited government, and seeks to make sure that each and every govern-

ment action improves the overall welfare of the individuals in the society

it governs. It is no part of the theory to extol any version of philosophical

egoism that allows any individual to do what he or she will no matter

what the consequences to others. Classical liberalism is a social theory,

not the magic paean of radical individualism with which it has often been

confl ated, especially by its detractors on all sides of the political spectrum.

In the course of my thinking on this subject, it became increasingly

clear that an examination of constitutional law principles must start

with the text of the Constitution. But that truism is not a full-throated

endorsement of the strong modern defenses of constitutional original-

ism. The harder one probes, the more apparent it becomes that analysis

must go quickly beyond that starting point in order to fi ll in the details

of the larger picture of which the text is an indispensable part. In partic-

ular, the Constitution makes liberal use of such terms, taken in alpha-

betical order, as “citizen,” “commerce,” “contract,” “cruel and unusual

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x Preface

punishments,” “due process,” “freedom,” “general welfare of the United

States,” “judicial power,” “law and equity,” “necessary and proper,” “pri-

vate property,” “religion,” and many more. Yet at the same time the

document, self-consciously, does not contain a glossary of what these

vital terms mean. We know, however, that their use long antedates their

inclusion in the Constitution, so that in a deep sense no one can under-

stand how these terms operate without understanding their historical

context in relation to both institutional arrangements and private trans-

actions. Many of these terms have received extensive elaboration in pri-

vate law disputes between ordinary persons. Others were in constant

use in public law contexts prior to the drafting of the Constitution. A full

analysis must take both these developments into account.

At the same time, the Constitution does not contain such vital

terms as “police power,” “privacy,” “race,” “sex,” and “standing” that

have become critical to complement the exposition of those provisions

found in the Constitution. Any constitutional analysis must explain why

and how these additional elements play an essential role in constitu-

tional interpretation. A general theory of constitutional interpretation

therefore deals with at least two levels of integration: fi rst, public and

private law, and second, the written and implied provisions in the con-

stitutional structure.

Constitutional interpretation also contains a third organizing princi-

ple—what I call constitutional prescription. In ordinary private disputes,

notions like prescription, statutes of limitation, and the doctrine of laches

play an essential role in legitimating through the passage of time actions

and behaviors that were regarded as wrongful when committed. Thus

long use allows a party to obtain a prescriptive easement over the lands

of a neighbor even though that right originates in a wrongful trespass

against the original owner. Constitutional law has its own doctrine of

prescription whereby some (but not all) doctrines that have been in play

for long periods of time become part of the constitutional culture even

though they were incorrect constructions of the original text under the

fi rst two interpretative principles dealing with textual interpretation and

implication respectively. The issue is of immense importance because

many of our most entrenched constitutional doctrines, including that of

judicial supremacy, are incorrect under normal interpretive principles.

In working through these puzzles, I should state at the outset that

in a conventional sense I am not a teacher of constitutional law, having

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Preface xi

taught the structural course and the First Amendment course once each,

and over a decade ago. But by the same token I count as a constitutional

lawyer because I have taught a wide range of courses in which constitu-

tional issues play an integral role. These include basic fi rst-year courses in

civil procedure, contracts, property, and torts. These also include upper-

level courses in subjects like antitrust law, confl icts of law, employment

discrimination law, environmental law, food and drug law, labor law,

land use planning, political theory, taxation, telecommunications law,

and especially jurisprudence, legal history, political theory, and Roman

law. All of these courses shed light on topics that are normally over-

looked or disparaged by more conventional constitutional scholars who

have scant interest or knowledge in many of these areas. It is also sig-

nifi cant that my initial legal education was at Oxford in the mid-1960s,

where my common law education contained no serious discussion of

either federalism or the basic structure of the United States Constitution.

The consequences of my distinctive intellectual background should

be evident in this book, which defends with a passionate intensity the

classical liberal vision of the Constitution against its rival, and ascen-

dant, progressive alternative. Any close reading of the historical mate-

rials shows that the Constitution is grounded in the work of such great

Enlightenment thinkers as Hobbes, Locke, Hume, Madison, and Mon-

tesquieu. There is always slippage between the world of ideas and the

world of practical politics, so that it would be a mistake to posit any per-

fect correspondence between what the original Constitution prescribes

and what a classical liberal theory demands. In part this is due to the

fact that the standard social contract theory that undergirds the classical

liberal approach thinks of compacts among individuals that form a state,

and not compacts between states to form a federal nation. In part this

is because of the inability of the Founders to deal decisively with slav-

ery, which introduced major blemishes into the original structure that

only a blood-soaked Civil War could remove. And it is in part because

the Founders, in sailing uncharted waters, made many serious errors,

both of omission and commission, in designing the Electoral College,

the structure of federal courts, the institution of judicial review, and the

relations between dual state and federal sovereigns.

But what is striking about the whole package is this fi rm propo-

sition. Whenever the Supreme Court takes any constitutional claim

seriously, it reverts back to classical liberal principles, often without

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xii Preface

acknowledging the close resemblance between that theory and its own

judicial decisions. Basic rights are defi ned broadly to prevent political

evasion; police power justifi cations for the use of state or federal power

tend to be narrowly confi ned to such objects as the control of force and

monopoly. That trend of classical liberalism is equally evident in deal-

ing with judicial efforts to maintain open trade across state borders in

connection with the dormant Commerce Clause and to protect political

dissent through freedom of speech under the First Amendment. The dif-

ference in subject matters should never be allowed to conceal the unity

of approach.

The tenor of judicial decisions, however, changes rapidly once spe-

cifi c constitutional protections are watered down by a low “rational basis”

standard of review. In this new environment, rights are narrowly con-

structed; state justifi cations for the limitation of these rights are broadly

stated. The relentless application of the lax “rational basis” test in the

treatment of contract, property, the commerce power, and the power to

tax and spend has left such rights and powers twisted from their original

meanings. There is, to be sure, a critical place in the overall analysis for

some deference to government, but it should—to use the appropriate

corporate law analogy—involve the acceptance of a business judgment

rule. To the extent that the government runs major social institutions,

including the military, the courts, and the schools, it receives the benefi t

of the doubt in making hard choices so long as it acts reasonably and in

good faith. But by the same token, no government should receive that

level of deference when it uses its political muscle to tax, to regulate, or

to change liability rules in ways that limit the protection of both liberty

and property. At that point, deference is an open invitation to the faction

and intrigue that have done so much in recent years to sap the strength

and the focus of the nation, so much so that all too many people today

rightly see the United States as a great power in decline.

In taking this position, I know that my outspoken views run

against the grain of both conservative and progressive constitutional

approaches. But in light of the massive disarray of modern American

culture, I regard this conscious departure from conventional wisdom as

a point of strength and not of weakness. I leave it to the reader to judge

whether I have made the right choice.

I have spent a long time pursuing this unorthodox path in my legal

writings. My engagement with constitutional law took explicit form in

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Preface xiii

the mid-1980s with the publication of my 1985 book, Takings: Private

Property and the Power of Eminent Domain (Harvard), which took dead

aim at the New Deal jurisprudence on the Takings Clause. Two years

later I wrote an article in the Virginia Law Review, “The Proper Scope of

the Commerce Power,” that defended the pre-1937 view of that power

against the modern synthesis. In 1993, I wrote a book entitled Bargain-

ing with the State (Princeton). In it, I articulated the doctrine of uncon-

stitutional conditions, which imposes principled limitations on how the

government uses its monopoly power to restrict private parties who

receive grants or licenses from the government. In 2006, I wrote a short

book entitled How Progressives Rewrote the Constitution (Cato Institute),

which took that movement to task for its views on private property and

the federal commerce power. And most recently in 2011, I wrote a short

book, Design for Liberty: Private Property, Public Administration, and the Rule

of Law (Harvard), which sought to explain why systems of private prop-

erty and limited government are, as an empirical matter, best able to

preserve the level of independence and evenhandedness associated with

the rule of law. In some sense, The Classical Liberal Constitution should be

regarded as both a summation and an expansion of these earlier works

on constitutional law.

I owe thanks to the many colleagues and institutions that have,

over the past several years, and often with disbelief, heard me present

the main arguments of this book. On countless occasions, I have ben-

efi ted from both casual encounters and detailed conversations on vari-

ous issues discussed in this book with Larry Alexander, Rachel Barkow,

Randy Barnett, Paul Brest, Gerhard Casper, Adam Cox, Barry Friedman,

Jacob Gersen, Michael Greve, Don Herzog, Samuel Issacharoff, Andrew

Koppelman, Larry Kramer, John Manning, Michael McConnell, John

McGinnis, Frank Michelman, Trevor Morrison, Richard Pildes, Sai

Prakash, Michael Rappaport, Adam Samaha, Geoffrey Stone, Cass Sun-

stein, and surely others. Many of these eminent scholars were doubtless

unaware of their unwitting role in the evolution and formulation of the

ideas that eventually came to fruition in this book, but their infl uence is

evident throughout this work.

In addition, this book is markedly stronger than it would ever have

been without the comprehensive and insightful comments of my good

friend Steven Calabresi, who went far beyond the requirements of a ref-

eree in giving a detailed account of arguments that I had overlooked or

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xiv Preface

misunderstood, or cases that I had ignored. I have also benefi ted greatly

from some comments on particular texts of the book from Aziz Huq at

the University of Chicago and Daniel Ho of Stanford University, on the

First Amendment and standing, respectively.

I have lost track of all the institutions that have hosted me for talks

on one or another part of this volume, but they include at the very

least both the University of Chicago, where I was a regular member

of the faculty from 1972 to 2010, and New York University School of

Law, where I have been a member of the full-time faculty since 2010.

They also include Berkeley Law School, Boston University Law School,

Columbia Law School, DePaul Law School, Duke Law School, Harvard

Law School, Michigan Law School, Northwestern Law School, Stanford

Law School, and Yale Law School. I have also benefi ted from the ability

to present various arguments at many meetings of the Federalist Society,

the American Constitution Society, the Southern Economics Associa-

tion, and the Canadian Law and Economics Association, as well as from

speeches and events at the Cato Institute, the Manhattan Institute, the

American Enterprise Institute, and other gracious hosts both inside and

outside the academy.

The actual preparation of this book was a huge effort, which could

not have been done without the incredible assistance, devotion, and

excellence of my research assistants who spanned several generations

of law students at NYU Law School: Melissa Berger, Jean Bisnar, Mika-

lya Consalvo, Thomas Coyle, Jordana Haviv, Matthew Holbreich, Peter

Horn, Benjamin Margo, Hannah Menda, Amber Rudolphi, Daniel

Schwartz, and Joshua Stanton, and also Graham Safty of the Univer-

sity of Chicago. The constant iterations of the manuscript; their detailed

comments on each word and phrase; the endless marginal questions

forced me time and again to expand the basic text to respond to their

objections as best I could. They spared me many errors and infelicities.

They are obviously not responsible for those that remain.

In addition, I owe a debt of special thanks to the unwavering insti-

tutional support that I have received from the University of Chicago

under Deans Saul Levmore and Michael Schill; from the Hoover Insti-

tution, whose Director John Raisian welcomed me into the ranks of the

Hoover Scholars in 2000 and has provided me with generous support

ever since; and of course from Richard Revesz, who recruited me to NYU

after I took emeritus status at Chicago and has been a strong supporter

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Preface xv

of my work ever since. All three institutions have prospered under their

able leadership. I have also received invaluable help from my longtime

personal assistant, Kathryn Kepchar, and from Marjorie Holme, who

often ventured beyond her work administering the Law and Economics

Program at the University of Chicago to help out in a pinch. The Uni-

versity of Chicago reference librarian, Margaret Schilt, never failed to

fi nd obscure historical information in record time. I owe a debt of grati-

tude to my two NYU assistants, fi rst Jeremy Heilman and then Jennifer

Canose, who guided the traffi c from the New York end. In addition, I

am thankful for the support that I received from the Hoover Institution’s

John and Jean De Nault Task Force on Property Rights, Freedom, and

Prosperity. It was at an early meeting of that group that I was prompted

to write a short and snappy introduction to constitutional law. Somehow

that venture spun out of control to morph into this far more ambitious

project that I hope does indeed show how property rights, freedom, and

prosperity are inextricably linked together in deep and profound ways

that our Founders understood, but which our modern lawyers, thinkers,

and judges all too often have forgotten.

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P A R T O N E

PRELIMINARIES

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Introduction

Our Two Constitutions

THE UNITED STATES CONSTITUTION must, on any neutral evaluation, count as the greatest triumph of political statecraft in the history of the world. That achievement is all the more remarkable because it

came in the face of immense practical and theoretical diffi culties. The

Constitutional Convention in Philadelphia was called together to remedy

the manifest ills of the Articles of Confederation that had governed the

United States since 1781. But the Founders quickly went beyond their

original mandate, with obvious misgivings, after concluding that the basic

structure of the Articles, with its ineffectual national government, was

beyond repair. Their self-imposed task of nation-building, moreover, did

not align itself neatly with the major classical political theory teachings of

Thomas Hobbes, John Locke, Montesquieu, or David Hume. The Fram-

ers did not seek to forge a government for individuals living together in

uneasy harmony in the state of nature. Rather, they sought to form a

federal government consisting of individual states, which were already

full-fl edged sovereigns and signatories to the now-imperiled Articles.

The obstacles encountered in Philadelphia were suffi cient to ward off

any utopian beliefs in the perfectibility of man or civil society. The Articles

of Confederation had achieved some major triumphs, including the pas-

sage of the Northwest Ordinance in 1787. But the structure had proved

weak insofar as it did not provide for any executive authority or give the

national government the direct power to tax. Both of these structural

features touched a sensitive historical nerve, for the former raised the

specter of arbitrary royal power, while the latter recalled fi erce colonial

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4 Preliminaries

objections to British taxes in the run-up to the Revolutionary War. Work-

ing their way through these diffi culties required the Framers to correct

the disadvantages of weak central government, while heeding the som-

ber warnings of their intellectual heroes who, for all their differences,

agreed with Thomas Paine when he wrote: “[G]overnment even in its

best state is but a necessary evil in its worst state, an intolerable one.”1

The point is worth some explication. The basic dilemma in the-

ory and constitutional design was, and is, just this: to maintain order

without destroying liberty. A government that is too strong can become

tyrannical and oppress its citizens; yet a government that is too weak

cannot withstand a succession of internal upheavals or external attacks,

which eventually take their toll on the well-being of its citizens, with

catastrophic loss of liberty and destruction of property. The key chal-

lenge was to determine how best to navigate between these two per-

ils. Michael McConnell has succinctly summarized the Framers’ basic

position: “The classical liberal tradition emphasizes limited government,

checks and balances, and strong protection of individual rights.”2 What

rights? Strangely enough, that probing question had, for the Framers,

clear answers: their conception of rights embraced the liberty of action,

the ownership of private property, and the freedom from arbitrary arrest

and prosecution. A right to housing, health care, or a decent income—or

indeed any positive entitlement against government—was not on their

list, or even a distant image on their intellectual horizon.

Implementing their middle road was no easy matter given the Fram-

ers’ precarious legal position. It is no wonder that their deliberations

produced awkward compromises, omissions, and redundancies—not to

mention major blunders of historical proportion, some of which became

painfully evident shortly after the ink on the Constitution was dry. Still,

the Constitution has survived these bumpy patches—and one deadly

Civil War—because of its core commitment to a coherent set of polit-

ical principles. Even so, the tread-wear is obvious because more than

two centuries of continuous pounding has inevitably led to major revi-

sions. Some of these were conscious efforts to fi x glitches in the original

structure, such as the Twelfth Amendment, which radically altered the

rules for selecting the vice president. Other changes, like the removal

of the odious and oblique acceptance of slavery (a word not used in the

Constitution) and the extension of suffrage to women, became irresist-

ible with time. These major modifi cations came by two constitutional

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Introduction 5

amendments: the Thirteenth Amendment (1865) abolished slavery in

the United States and the Nineteenth Amendment (1920) guaranteed

women the right to vote. The Constitution has also been transformed by

judicial reasoning through sensible analogies that have preserved and

extended the original classical liberal position. Freedom of the press,

reasonably enough, covers the broadcast media that were unknown in

1791. The commerce power covers all modern modes of transportation,

not just horses and buggies.

The greatest challenge to the original constitutional plan comes

not from these inevitable and salutary historical adaptations, but from

a conscious reversal of philosophical outlook on the proper role of gov-

ernment. It is often tempting to paper over the depth of these philosoph-

ical confl icts by claiming various kinds of ongoing disputes are amenable

to “incompletely theorized agreements”3 that allow people with funda-

mentally different views to fi nd common ground in deciding concrete

cases. That argument may work when supporters of abortion cannot

decide whether to rest their case on a woman’s right to privacy or on

a theory of sex discrimination. But that benign compromise does not

work to broker the difference between pro-choice and pro-life groups.

The people who think that life begins at conception will not take kindly

to their opponents who are hard-pressed to see or respect any difference

in ontological status between an embryo and a lock of hair.

The more accurate description of the present impasse is that the

recurrent and sharp splits on constitutional law come from what are

more accurately described as “completely theorized disagreements” on

all fundamental legal questions. These current disputes start with basic

disagreements about human nature, language, knowledge, and insti-

tutions. On this score, the differences between the Federalists and the

Anti-Federalists were less important than their shared assumptions.

Their entire debate rested on a sober and shared appreciation of the

potentially corrosive effects of self-interest on human affairs, a modest

confi dence that our collective capacities with language and cooperation

allow us to devise institutions capable of coping with these ever-present

risks without bringing government to a standstill, and a deep suspicion of

government monopolies of all sorts and descriptions. At root, the classi-

cal view of American constitutionalism examined all legal interventions

under a presumption of error. The structural protections of the separa-

tion of powers, checks and balances, federalism and the individual rights

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6 Preliminaries

guarantees built into the basic constitutional structure were all part of

combined efforts to slow down the political process that, left to its own

devices, could easily overheat.

Starting with the rise of industrialization in the post–Civil War

period and gaining traction after 1900, the pendulum on political phi-

losophy and constitutional theory swung sharply away from these twin

verities of private rights and limited government. In their place arose a

different understanding of the relationship of the individual to the state.

That new vision rested on an intellectual worldview that dominated the

Progressive Era, which ran from about 1900 to 1932. Under President

Franklin Delano Roosevelt, that philosophy quickly formed the foun-

dation for the modern New Deal constitutional order, which received

its whole-hearted judicial blessing during the momentous October

1936 Term of the United States Supreme Court. In that Term, a sharply

divided Court decisively repudiated what remained of the classical lib-

eral synthesis, which prized both federalism and the strong protection

of economic liberties. The progressives did not view government as a

necessary evil, but rather as a positive force for good in a wide range

of social situations where the comparatively minimalist classical liberal

view was said to have faltered.

The central thesis of this book is that the older view of the Consti-

tution was correct, not only for the conditions of 1787 but also, most

emphatically, for vastly more complex conditions today. The book is

offered in the spirit of explaining how matters should have evolved and

why the original classical liberal constitutional order would have served

this nation better than the progressive order that remains ascendant

today. The analysis covers both halves of the constitutional enterprise—

its structural safeguards and its account of individual rights.

In order to make out this case, I shall compare the classical liberal

and the modern progressive, or social democratic, accounts along two

parallel tracks. The fi rst of these deals with the political presuppositions

used to justify the modern social democratic state that the progressives

championed, and the second deals with the thorny issue of textual

interpretation.

On the philosophical level, the shift to a social democratic model

during the New Deal period was anchored in two central premises. The

fi rst is that individual rights are not just protected by state power, but

are in some deep sense created by the very government agencies whose

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Introduction 7

power our Constitution is intended to limit. Any theory of natural law

in the tradition of John Locke’s Second Treatise of Government4 that posits

rights of liberty and property antecedent to the state had to be rejected

as philosophical mumbo-jumbo or political naiveté. The second is that

the benevolent force of state power, exercised by dedicated and impartial

administrative experts, can eliminate the chronic economic imbalances

wrought by the unprecedented scale of industrialization that untamed

market forces had driven. These new historical imbalances were said to

falsify the premises of laissez-faire, which one of the prime defenders of

the modern administrative state, James M. Landis, defi ned in 1938 as

“the simple belief that only good could come by giving economic forces

free play.”5 The progressive spirit of the early twentieth century sought

to keep the Constitution in tune with the times. It did not believe, as

Walter Berns once famously quipped, that the proper social goal is not

“to keep the Constitution in tune with the times but, rather, to keep the

times, to the extent possible, in tune with the Constitution.”6

Put otherwise, to the progressive mindset, the traditional safeguards

against excessive state power that animated early constitutional theory

on both structural issues and property rights were perceived as point-

less roadblocks that the modern technological state should overcome

through a greater concentration and use of government power at all

levels. The progressive prescription called for expert modern planners

to exercise this power through administrative agencies that derive their

authority from the legislature and typically displace the ordinary courts

of justice as the major arena for dispute resolution. In effect, the giant

social exchange wrought by the administrative state requires all persons

to cede a large portion of their common law property rights (especially

as they relate to the ability to enter and exit markets) in exchange for

the rights, fi rst, to participate in the democratic procedures that set the

rules of the game and, second, to appear before the administrative agen-

cies that carry out the legislative mandate. The Administrative Proce-

dure Act of 1946 represented the solidifi cation of this view in the decade

after the New Deal.7

Once the progressives laid out their views on the proper social role

for government action, their second challenge was to square that vision

with a constitutional text that on its face did not cede all control over

major economic and social issues to the legislature. That attack on the

Constitution took place on multiple levels simultaneously. The fi rst of

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8 Preliminaries

these was their claim that the key terms of the Constitution—legisla-

tive, executive, and judicial power, or commerce, property, freedom of

speech, and so on—were subject to deep and inescapable defi nitional

ambiguities. These uncertainties sapped key constitutional terms of the

intellectual clarity and power needed to block the changes in gover-

nance structure that modern thinkers thought desirable on substantive

grounds.8 There is no deviation from the rule of law and no usurpa-

tion of power if all constitutional commands are clouded by cognitive

or linguistic defi cits that wise progressive justices could overcome with

astute textual interpretation. It is as though the progressives thought

they exposed some deep conceptual incoherence in an effort to draft

a Constitution that was faithful to the classical liberal ideals. Second,

modern interpretivists have tirelessly trumpeted the claim that it is not

now, and probably never was, possible to develop a coherent “original-

ist” interpretation of any constitutional text. No one can achieve the

thankless task of sifting through the manifold intentions of the many

individuals who participated in drafting or ratifying particular consti-

tutional provisions. Third, the modern progressives insist that the huge

changes in social circumstances from the time of the original Constitu-

tion to the present require a fresh solution that depends on expanded

governments, both federal and state, to manage the constant individ-

ual and group confl icts that necessarily arise in an ever more complex

and interdependent social environment. Fourth and fi nally, they claim

that major issues concerning the public welfare should not be decided

by unelected judges, but instead by the people acting collectively and

responsibly through their elected offi cials, under the systems as they

now exist at both the federal and state levels. The bottom line is that

the progressives thought, and their contemporary disciples continue to

think, that the plasticity of the constitutional text in the face of a radi-

cally new social environment leaves far greater running room for gov-

ernment action than any classical liberal conception could ever tolerate.9

I believe that this alluring constellation of theoretical and linguistic

arguments is wrong at every point. Any counterattack, however, must

guard against the risk of overclaiming in favor of the earlier classical

liberal position. Most emphatically, there is no perfect correspondence

between the classical liberal theory and the constitutional text: its back-

handed acceptance of slavery alone is a devastating refutation of that

position. Nonetheless, the constitutional provisions with the longest

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Introduction 9

staying power have consistently drawn their strength from classical lib-

eral theory. Surely the protection of freedom of speech, religion, and

contract (in no particular order) have greater appeal than the reviled

provisions dealing with the Three-Fifths Rule10 and the Fugitive Slave

Clause,11 both of which were introduced as a matter of political com-

promise, not political principle. To be sure, in any normative inquiry the

political theory should dominate, even as it is informed by the constitu-

tional text. On the other hand, in judicial contexts, the interpretive issues

should dominate, at least in relatively clear cases. Yet legitimate ambigu-

ity is sometimes unavoidable, and on those matters constitutional text

and political theory no longer fall into watertight compartments. At this

juncture our basic conception of the proper scope of government action

will, and should, infl uence the resolution of key interpretive disputes.

Filling in those lacunae fully reveals the profound differences in attitude

between the classical liberal and the modern progressive.12 The classical

liberal is far more likely to undertake a detailed textual analysis before

making appeals to changed circumstances or contemporary mores. The

modern progressive is much more likely to adopt the opposite strategy.

These differences matter, for my full-throated defense of classical

liberal positions leads me to conclusions on many issues that are at sharp

variance from those of both modern liberals and conservatives. For all

their differences on social policy, the two dominant groups gravitate

toward a shared progressive outlook on key constitutional questions.

Thus, on the question of government regulation of economic liberties,

including such hot button topics as wages and hours laws, all of the

conservative justices, with the possible exception of Justice Clarence

Thomas, think that the courts should show extreme deference to legisla-

tive judgments on the proper way to regulate the economy. Similarly, on

questions of federalism, it is only Justice Thomas, again, who rejects the

modern synthesis that gives the federal government, under the Com-

merce Clause, the full power to regulate all economic activities within

as well as among the several states.13 The cleavages between large and

small government types are not only confi ned to these economic issues,

but also embrace matters that deal with executive power and individual

rights. On the former issue, my small government instincts place me in

the company of the opponents of presidential power. Yet the alliances

shift again on questions such as freedom of speech, where the small

government position is often taken by liberals on some matters, such

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10 Preliminaries

as political protest, but not on others, like campaign fi nance, which is

often viewed more as a matter of economic power and less as one of free

speech. Many conservatives would fl ip-fl op on these issues. My view

deviates from both camps to the extent that it adopts a consistently small

government approach.

Fully aware of the many bends in the road, this book explores the

tension between these two outlooks in successive chapters. Part One,

dealing with Preliminaries, opens in Chapters 1 and 2 by explicating

and contrasting the classical constitutional synthesis with the modern

progressive or social democratic alternative that came of age in the New

Deal. That vision moves in a grand arc that starts with a conception of

human nature and ends with a constitutional design intended to con-

trol its excesses. Chapter 3, dealing with constitutional interpretation,

then asks how best to interpret an iconic but laconic document that, as

noted, contains its fair measure of undefi ned terms. Even if courts could

derive unambiguous meanings for each of these terms, they still face

the daunting task of breathing life into a document, many of whose key

principles are left unmentioned in the text: preservation of the union,

judicial review, sovereign immunity, the police power, and the creation

of administrative agencies head an incomplete list. The joinder of these

two challenges requires an integration of text with context in light of

background political theory and overall constitutional structure. Nor do

these two questions exhaust the challenges, for a third question looms

ominously behind them. Interpretive mistakes are easy to make but

hard to correct. Yet once error creeps in, should further interpretation

continue down the same dubious path, abruptly turn back, or map out

some intermediate, if unprincipled, course?

Part Two then deals with Constitutional Structures. That initial task

of how to interpret our Constitution is necessarily paired with the ques-

tion of who, if anyone, has the last word on interpretation, which is the

subject of Section I dealing with the judicial power. That Section explores

the excruciating tension that arises when commentators fi rst lament

the excesses of democratic majorities, only to bemoan the arrogance of

unelected justices. Both criticisms are true, but neither can be honored

in full. We must understand how our collective unhappiness with all

branches of government guides, or frustrates, constitutional interpreta-

tion. That question sets up a discussion of the alternative conceptions

of judicial review that vacillate between imposing exacting standards of

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Introduction 11

review to avoid political unrest and using technical doctrines of standing

and ripeness to impose self-limitations on any claim to judicial suprem-

acy. That analysis always reads particular texts in light of the original

classical liberal theory of government, given the unavoidable overlap

between the normative efforts to articulate the law as it should be and

the positive efforts to explain what the law is, whether one likes it or not.

The divisions on this issue are deep. The classical liberals are strong

supporters of a system of judicial supremacy on all areas touched by

the Constitution. The modern defenders of the progressive tradition,

wholly apart from their massive disenchantment with the Rehnquist

and Roberts Courts, are deeply suspicious of this settled practice and

tend strongly in the opposite direction. Thus, Mark Tushnet would junk

the doctrine of judicial review entirely and replace it with a version of

“populist constitutional law,” in which the courts are bystanders to the

true business of constitutional interpretation via a populist manifesto in

which “the” people take over the business of government, “whether we

act in the streets, in the voting booths, or in the legislatures as represen-

tatives of others.”14 A similar theme is echoed (with far more empha-

sis on the historical materials) by Larry Kramer, whose deep distrust of

judicial review is found in the title of his book The People Themselves.15

The same theme is taken up by two individuals who are somewhat more

receptive of judicial review: Justice Stephen Breyer, writing in defense

of “active liberty,” sees only a limited role for judicial review.16 Cass

Sunstein has waded into the fray on multiple occasions, insisting on a

brand of “judicial minimalism,”17 which at its core follows James Brad-

ley Thayer’s original insight that the Courts “follow a rule of administra-

tion” under which a court can “only disregard the Act when those who

have the right to make laws have not merely made a mistake, but have

made a very clear one, — so clear that it is not open to rational ques-

tion.”18 In other words, judicial invalidation should be reserved for cases

where there is an extreme breakdown in democratic politics. The lack of

specifi city as to when this approach might work, and when it might not,

is in itself reason to doubt whether any mileage can be obtained from

a theory that necessarily works only at a high level of abstraction. For

all their political differences, Sunstein’s minimalist approach is largely

anticipated—albeit with a very different political valence—in the writ-

ings of Robert Bork, who offers a strong defense of modern democratic

politics against judicial activism of all political stripes.19 In fact, however,

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12 Preliminaries

all these positions founder for one common reason: their excessive faith

in democratic politics, which is inconsistent with the Framers’ guarded

view of the subject and which offers, on its own terms, an overly opti-

mistic account of the political performance of legislative bodies that fi nd

it diffi cult to withstand the temptations of factional intrigue.

After these preliminaries, Section II deals with the legislative power

addressing the full range of questions that surround our federalist enter-

prise that divvies up power between the federal and state governments.

That inquiry has three essential components. The fi rst examines those

issues that are properly subject to congressional control. In 1787, the

state delegates to the Constitutional Convention knew that they had to

surrender more power to the central government to make the revised

Articles of Confederation work. Hence, Article I, Section 1 of the Consti-

tution starts by saying that all legislative powers “herein granted” shall

be vested in the Congress20—without telling the reader who that grantor

is. Relative to the Articles of Confederation, the powers located in the

new national government were vast even under their narrowest read-

ing. Nonetheless, more power at the national level is not tantamount to

inexhaustible power at the center. In keeping with the classical liberal

desire to fragment power, the basic constitutional plan limited the leg-

islative power of Congress to certain listed or “enumerated” categories.

Consistent with this scheme, Article I, Section 8 lists powers that by no

stretch of the imagination are suffi cient to cover the entire waterfront,

even though Congress is given the power to tax, borrow, and regulate

commerce with foreign nations, among the states, and with the Indian

tribes. Control over naturalization clearly works better at the national

than at the state level, and the same can be said for a uniform mone-

tary system and the power to prevent counterfeiting. The national con-

trol over bankruptcy has a less clear rationalization and in practice was

shared with the states, which retained power to regulate insolvency.

The enumerated list also includes the power to establish post offi ces

and post roads, which could either mean the ability to build them or

to designate existing facilities to fulfi ll that function. Yet, as intellectual

property knows no physical boundaries, it made sense to put patents

and copyrights under national control. Congress also receives extensive

powers to regulate both military and foreign affairs, including the power

to declare war, support the army and navy, and regulate the operations

of the armed forces. The residual power of the “police,” however, was

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Introduction 13

left to the states to exercise as they saw fi t, subject, of course, to their

own constitutional limitations, which at the Founding typically showed

a real solicitude for the rights of life, liberty, and property that lay at the

core of the natural rights tradition.

In light of the peculiar history of American constitutionalism, vir-

tually all of the huge movement from the classical liberal to the social

democratic Constitution took place under the Commerce Clause, which

is important not only for the direct power that it gives Congress over

the economy, but also in connection with what is commonly called the

dormant Commerce Clause. When Congress does not act pursuant to

its Commerce Clause powers, to what extent does the Constitution by

its own force limit the power of individual states to disrupt commerce?

Today’s answer is questionable on textual grounds, given that the grant

of power to the federal government does not in and of itself exclude

operations of the states in the same area. It could be argued, therefore,

that state protectionism of local economic interests should be given free

rein in the absence of congressional action to the contrary. On this issue,

however, the Supreme Court has for the most part adhered to a regime

that is consistent with the original classical liberal synthesis by knocking

down anticompetitive state barriers in order to preserve a national com-

mon market (in which Congress can regulate at will). More than any

other judicial creation, the dormant Commerce Clause has resisted state

parochialism to the immense benefi t of us all.

The federal control over state laws is also addressed by a specialized

doctrine that is now called “preemption,” a term that entered the legal

lexicon only in 1917.21 Our Constitution states that it and the laws and

treaties enacted pursuant to it are the supreme law of the land, no state

law withstanding.22 Under this rule, any lofty state constitutional com-

mand has to give way to the lowliest federal regulation. How should

preemption be understood in the classical constitution? How should it

be understood today in a world with vastly expanded federal power?23

Section III then deals with the executive power, which starts with

an examination of the role of the president in domestic affairs. It then

covers the doctrine of delegation and the rise of the administrative state,

and concludes with a discussion of the role of the executive in foreign

and military affairs. This Section fi rst examines the role of the execu-

tive in the American system of checks and balances. It then turns to

the many issues raised by the creation of independent administrative

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14 Preliminaries

agencies, often called the “fourth branch” of government, that exercise

in varying proportions all the functions that the original Constitution

uniquely assigns to one of the three branches. As before, it is critical to

assess these agencies under both classical liberal theories, where they

are found sorely wanting, and modern social democratic theories, where

they are viewed as an indispensable fount of government power. Last, in

a problem of ever greater contemporary importance, it is critical to look

at the relationship among the three branches of government in connec-

tion with both foreign affairs and war, where the major struggle takes

place between Congress and the executive, with the courts playing an

important but subordinate role. The issues here affect everything from

the question of who controls the military and the ability of the nation to

make war, to the power of Congress or the president to suspend tradi-

tional individual rights, including, most critically, the ability of persons

detained under presidential order to bring the ancient writ of habeas

corpus, which allows them to challenge the legality of their detention

before an independent tribunal. On this point, many individuals who

champion the rise of the New Deal state embrace the classical liberal

vision of limited government with multiple checks and balances. How-

ever, let us be clear that even with this notable example of ideological

convergence, it is the progressives who have reverted to classical liberal

principles of political theory and constitutional interpretation, not the

classical liberals who have accepted the progressives’ expansionist view

of government power. Meanwhile, many conservatives with only weak

libertarian sympathies have tended to champion what I regard as an

extravagant vision of presidential power.

Once the structural issues are analyzed, I shall turn our attention

in Part Three to matters of the individual rights that the Constitution

secures to various persons against both the national government and

the states. The original Constitution contained some limited protection

of these individual rights, including prohibitions against ex post facto

laws, bills of attainder, and, most notably, the impairment of obligation

of contracts. None of these protections was spelled out with any partic-

ularity, and this set of prohibitions was directed solely at the states and

not at the federal government. The sentiment at the time of ratifi cation

was divided on the question of whether the federal Constitution should

be amended to include a Bill of Rights similar to those prominently fea-

tured in state constitutions. The dispute did not turn on which rights

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Introduction 15

were worthy of protection but instead on matters of approach and tech-

nique. On the former, Alexander Hamilton’s position was that a sub-

stantive bill of rights was apt to do more mischief than good because

structural protections were suffi cient to protect against major invasions

of individual rights—an overoptimistic conclusion that ignored how fac-

tional politics could, and often do, overwhelm democratic deliberation.

On the latter, many defenders of a bill of rights were troubled by the

technical objection that the enumeration of any fi nite set of rights could

be read to exclude other rights that were not specifi cally enumerated. In

the end, the structural objections failed to persuade, and the incorpora-

tion of the Ninth Amendment—largely a dead letter in American con-

stitutional law—was introduced to meet the technical objection, which

turned out to be overstated in any event.24 The Bill of Rights, ratifi ed in

1791, supplied, albeit in bare-bones fashion, comprehensive protections

for both liberty and property. Some of these protections dealt with crim-

inal prosecutions and others concerned speech, the press, religion, and

private property. A second layer of protection, now against the states,

was added to the Constitution in the aftermath of the Civil War and

included, most notably, the three major guarantees of the Fourteenth

Amendment. The fi rst of these provided to all citizens of the United States

an unspecifi ed set of privileges and immunities against state interfer-

ence. The last two offered all persons protections against the deprivation

of life, liberty, or property without due process of law and a guarantee

of the equal protection of the laws. The protections against government

action are outlined in skeletal form, with no indication of the limitations

that might be properly placed on their exercise.

Sorting out this tangle is not easy, especially since the Supreme

Court has not maintained a uniform attitude over time regarding the

various rights that receive explicit constitutional protection. The classical

liberal period gave rise to relatively strong property and contract rights

but recognized several broad exceptions, all of which are to some degree

consistent with the classical liberal vision of good government. Thus,

the “police power”—a term nowhere found in the text of the Consti-

tution—limits the guarantees of liberty and property on matters cus-

tomarily defi ned as touching the “safety, health, morals and the general

welfare.”25 At the very least, this conception of the police power allows

the state to deal with the problems that call for government intervention

even under the classical liberal view: the use and threat of force; fraud

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16 Preliminaries

in all its manifold forms; incompetence, as from infancy and insanity;

the regulation of monopoly; and the creation and maintenance of public

infrastructure. The modern social democratic outlook does not reject

any of these uses of the police power but in some, though not all, cases

its reach extends to matters that lie far beyond the original classical

liberal framework, such as the equalization of wealth and the elimi-

nation of private forms of (invidious) discrimination. In those areas in

which the strong progressive presumption of constitutionality has not

overwhelmed the judicial system, such as political protest and dissent,

the case law to this day conforms closely to the classical liberal pattern.

But on matters of contract and property rights, the police power (now

expansively renamed a “legitimate” state interest) has largely eviscer-

ated the underlying constitutional guarantees. In an odd reversal of fate,

the older and narrower account of the police power has seen a strong

resurgence in such areas as race, privacy, abortion, and sexual prefer-

ences. The verdict on religion has been mixed, as courts have struggled

to protect the free exercise of religion on the one hand, without giving

religious activities the undue protection that might count as a forbidden

establishment on the other. The last section of the book addresses these

questions, both as a matter of textual interpretation and as a matter of

principle, as seen through the classical liberal lens of strong private rights

and limited government. Thus Section I turns to the many issues that

deal with property, contract, and liberty, chiefl y in the economic sphere.

It starts with the extent to which the constitution’s structural features

offer protection for individual rights, and it then turns to key issues of

procedural due process, the protection of freedom of contract and eco-

nomic liberties, the issue of takings, both physical and regulatory, and

concludes with a discussion of the role of the police power as it relates

to questions of public morals. Section II then turns to the many issues

relating to the protection of freedom of speech. Section III covers the

issues that arise in dealing with both the free exercise and establishment

provisions of the First Amendment. Section IV then concludes with a

discussion of the Equal Protection Clause as it relates to race, citizenship,

and sex. Part Four concludes with fi nal observations.

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The Classical Liberal Synthesis

THE CLASSICAL LIBERAL TRADITION of the founding generation prized the protection of liberty and private property under a system of limited government. That tradition also rejected the optimistic view that self-

interested individuals could through an ingenious array of private volun-

tary agreements preserve public order against civil strife. The determined

aggressor had to be suppressed by fi nes, imprisonment, exile, or even

death, if he could not be persuaded to cooperate by lesser means. Gov-

ernments, moreover, needed at the very least the powers of taxation and

eminent domain to obtain both fi nancial resources and particular assets

in order to maintain both liberty and political order against random vio-

lence and unregulated militias. Anarchy is not a viable option in the long

term. Power always enters to fi ll a void. The people who fail to form a

government, whether by custom, as under the British constitution, or

conscious deliberation, as with ours, will have rulers thrust upon them

who will not be to their liking. The preemptive strike by decent people in

search of what Justice Benjamin Cardozo once termed “ordered liberty”

offers the only path for beating back the obnoxious intruder.1

Yet by the same token, organized governments can easily turn, as

they all too frequently have done, into instruments of evil, precisely

because no ordinary person can stand up to government offi cials backed

by public force. Contemporary Americans tend not to worry about the

threat of insurrection or turmoil because our nation has happily mas-

tered the orderly succession of political power, a matter that was very

much on the minds of the Framers in Philadelphia who devoted much

effort to coordinating the actions of state militias and federal power to

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18 Preliminaries

guard against invasion, insurrection, disunion, and rebellion.2 Virtually

no one remembers this constitutional provision: “No State shall, with-

out the consent of Congress, . . . engage in war, unless actually invaded,

or in such imminent danger as will not admit of delay.”3 Note that the

clause does not specify, invaded by whom? But the best efforts of the

Framers’ all-star cast could not prevent a destructive Civil War over

the issue of slavery that was fi nessed but not resolved at the Constitu-

tional Convention.4 Our constant preoccupation with current events,

moreover, obscures the dismal record over most of recorded history of

the “simple” task of maintaining the security of the person and prop-

erty against private aggression, without inviting state-sponsored death,

imprisonment, and expropriation. Truth be told, most political efforts

to run the gauntlet between anarchy and tyranny have ended in disap-

pointment and disaster. The societies best able to navigate that narrow

channel are ever conscious of the lurking perils on both sides. Their odds

of success improve greatly if they greet warily any extension of govern-

ment power. Gerald Ford pithily explained why political power is always

a double-edged sword: “A government big enough to give you every-

thing you want is a government big enough to take from you everything

you have.”5 The Founders would have agreed.

This deep ambivalence toward state power is evident in the classical

liberal tradition. Its central Lockean premise, the evils of slavery not-

withstanding, was that governments were created by individuals who

were free, equal, and independent in the state of nature. The opening

passage in the Massachusetts Constitution of 1780 faithfully tracks this

synthesis:

Article I: All men are born free and equal, and have certain, natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquir- ing, possessing, and protecting property; in fi ne, that of seeking and obtaining their safety and happiness.6

The protection of these rights was said to rest in the words of the

Declaration of Independence. The basic message is, oddly enough, a

positive one. It assumes, correctly, that an institutional framework that

allows most people to act in ways that benefi t themselves and the larger

society through enterprise, loyalty, cooperation, charities, and thrift will

develop those positive personal characteristics that lead to fruitful social

interactions on matters political, social, and commercial. The classical

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The Classical Liberal Synthesis 19

writers assumed that this class of sociable behaviors was embedded in

human nature. Thus, “[one] recent review suggests that similarities

result from the existence of four basic sets of intuitions involving: (a)

suffering, harm, and violence; (b) reciprocity and fairness (including

revenge); (c) hierarchy, duty, respect, and related intuitions about the

social order and one’s place in it; and (d) purity and related intuitions

about chastity and piety.”7

This naturalist approach boosts the case for thinking that all social

organizations face much the same problems. Modern moral psychology

has given that point of view a big boost by stressing the dual norms

against the infl iction of harm and the reciprocity of exchange, as aug-

mented by a respect for authority and concerns with disgust. Thus, the

fi rst of these elements explains the persistence of the law of tort, and the

second the law of contract. The concerns about hierarchy make families,

private associations, and governments plausible, and the concern with

purity and chastity tie into what is commonly called the morals head of

the police power, in which the state was given, at least in the nineteenth

century, extraordinary latitude to regulate sexual behavior, gambling,

and other forms of sinful behaviors.

It should not, of course, be assumed that all individuals share all

these propensities in the same degree. Some have more of one trait

than another. Indeed it is precisely because enough people act on these

four intuitions that some form of durable social organization, while not

guaranteed, is at least possible. The stress on these four factors, more-

over, also serves as a useful reminder of the fragility of social relations,

which in turn makes it clear why, generally speaking, political theory

does not worry about the good guys. Rather, in its most accurate form,

it assumes a natural variation in the moral qualities and temperaments

of individuals. Its concern is how best to deal with the bottom tail of

the distribution—that minority of individuals, often tiny, who exhibit

powerful antisocial tendencies. Unfortunately, buying them off is worse

than useless, for rewarding bad actors surely encourages a long line of

fence-sitters to follow in their path. So political theory, not economics,

becomes the true dismal science as it works to fi nd some way to protect

the many from the aggression of the few.

Yet how is that mission justifi ed? One appeal that fi nds voice in the

Declaration of Independence is the “consent of the governed,” which

could not, of course, be individually and freely given. There are too

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many people, some unborn, separated by time, place, and sentiment, to

fi nd any historical contract worthy of its name. But that obvious and oft-

repeated objection does not make social contract theory either empty or

idle. The unifying vision of classical liberal theory insists that all individ-

uals must somehow leave the state of nature, in which all rights of life,

liberty, and property are perpetually at risk. But how? Voluntary coor-

dination will not work when antisocial defectors could bring down the

entire structure. The fatal weakness of the modern hard-line libertarian

views, such as those advanced by the late Robert Nozick,8 is that they

cannot explain how states rightly gain the legitimacy and the resources

needed to prevent violence, enforce contractual promises, and supply

needed social infrastructure. The key to solving these problems lies in

the domestication of coercion. Government works best when it forces

each individual to surrender some of his or her own liberty and property

to government in exchange for greater security for those rights that are

retained. The grand social contract is no actual agreement, which is why

it is called “social.” But at every stage it is meant to produce the same

win/win outcomes, just like ordinary contracts, and to do so in settings

where huge numbers of individuals are forced to participate in this joint

social venture.

Given this conception, any individual who seeks unilaterally to

deviate from the sound social contract is either a menace or a freeloader.

He is the former if he is willing to use force. He is the latter if he refuses

to contribute his share to the joint defense, thereby forcing it on others.

On controlling force, consistency is key. Allow one to deviate, and all

will follow until the state unravels. State coercion for one’s own good is

not some code word for misguided paternalism. Nor is it a contradiction

in terms. Rather, it is the minimum condition for the public provision of

certain collective goods.

Fear of Faction

The ability to create a government that meets this objective is driven

by the need to control the dangerous human tendencies that do not

disappear even after civil society is formed. To the contrary, the anti-

social individuals in a state of nature can rely on guile, intrigue, and

coercion within the new political order. The modern rubric for analyzing

these problems is public choice theory,9 which asks how self-interested

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The Classical Liberal Synthesis 21

behaviors of both individuals and groups undermine public welfare

while playing within the imperfect rules of the political game. In the

crudest terms, each individual or faction will work overtime for a larger

slice of a smaller pie—leaving a smaller share of a smaller pie for every-

one else.

One constant danger is that the political structure may easily

unravel, even though all individuals do not fi t this selfi sh description.

Once some people work the political process for partisan advantage,

others will follow suit, if only in self-defense. The worst actors within

the system can dictate the tempo for all through rhetoric, coalition

building, committee hearings, horse-trading, agenda setting, and smear

campaigns. This rough-and-tumble process will yield some public-

regarding legislation, but frequently it will generate outcomes that sat-

isfy only narrowly partisan interests. James Madison used the term

“faction” to describe these risks in Federalist No. 10:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.10

The breadth of Madison’s defi nition tracks the magnitude and per-

sistence of the problem. As Madison recognized, factions come in all

shapes and sizes, which is why either “a majority or a minority of the

whole” can be the dominant, i.e. prevailing, faction. These factions,

moreover, can organize along any natural fault lines: occupation, region,

race, religion, or sex. They can coalesce around any issue: war, tariffs,

or national expansion. Suffi ciently emboldened, adroit politicians can

broker deals across coalitions over unrelated questions by invoking the

time-honored principle “if you scratch my back, I will scratch yours.” In

the absence of any strong social or institutional constraints, a dominant

faction could use its voting power or political clout to confi scate the

wealth of the political losers, or, more subtly, to hobble their economic

activities with legal restrictions. Nor will the propertied classes, often a

minority in number, necessarily come out on top, especially if the vast

majority of the population is allowed to vote transfer payments to itself

from, as they are now called, the top 1 percent. That is why Madison

declaimed that people were “weary” of the “long chain of repetitions,”

in particular, of debtor relief statutes that necessarily compromised

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“personal security and private right.”11 That problem has not dissipated

in today’s modern mortgage crisis, where we have seen repeated gov-

ernment efforts to prevent, without visible success, the foreclosure of

home mortgages in default, which undermines long-term credit mar-

kets by creating an involuntary wealth transfer from creditors to debtors

while simultaneously reducing the value of real estate once it is under-

water.12 The Federalist Papers knew how to accentuate the negative.

Unfortunately, this problem cannot be cured by requiring unani-

mous consent for political action. Let every political actor have a veto

right, and political paralysis will follow. The challenge, therefore, is to

develop some way to avoid the twin perils of paralysis and exploitation.

Madison’s own proposal, as outlined in Federalist No. 10, was woefully

inadequate. His optimistic claim was that the “extended republic”—i.e.,

the national government—provided adequate protection against the

operation of factions. Either he or Alexander Hamilton put the point

baldly in Federalist No. 51: “In the extended republic of the United States,

and among the great variety of interests, parties, and sects which it

embraces, a coalition of a majority of the whole society could seldom

take place on any other principles than those of justice and the general

good. . . .”13

This passage suggests that national governments with built-in

checks and balances are more impervious to factions for two reasons.

First, a national government attracts a higher caliber of men to run for

public offi ce, who in turn would be willing to resist factional temptation.

Second, the cost of organizing factions at a distance is higher than it is

at the state level. But Madison was unduly optimistic on both counts,

as he himself subsequently recognized. No political body is immune to

the risk of political intrigue. The relative performance at different gov-

ernment levels depends on such evanescent factors as the mix of people

and issues at any given time. Thus, once power migrates to the national

government, the political hacks will follow the scent to its new abode,

urged on by local electors who want their representatives in Congress

to look after the interests of the home state. (Back in 1787, state legisla-

tures wanted their appointed senators to take their cues from the local

politicians.) On the second point, the greater costs of organizing national

coalitions are often offset by the greater gains to be obtained. That said,

important questions over the proper division between national and state

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The Classical Liberal Synthesis 23

authority remain: uniform national laws work better for trade, but local

governments are better able to respond to variations in local conditions,

as with land use regulation. In the end, no single strategy can deal with

this hydra-headed problem. Redundancy and multiple safeguards are

needed at all levels of government, and the Constitution provides them.

Anti-Federalists and Republicans

The drafters of the Constitution, rightly then, did not take a sunny view

of political man. Their classical liberal concerns, moreover, forged the

common link between the Federalists who supported the new Consti-

tution and the Anti-Federalists who were united in opposition to it. As

the late Herbert Storing accurately stressed, theirs was a family squabble

“of men agreed that the purpose of government is the regulation and

thereby the protection of individual rights and that the best instrument

for this purpose is some form of limited, republican government.”14 That

agreement over ends, with disagreement on means, led the two sides

to join on the issue of the desirability of what Madison called in Feder-

alist No. 10 “the extended republic,” which embraced the entire United

States. The Anti-Federalists’ opposition to the Constitution depended on

their own paean to the small republic, which they thought was more

in touch with local interests, and thus more likely to inculcate the civic

virtue that allows citizens to resist factional temptations.15 They made

the same mistake as the Federalists in reverse, by underestimating the

possibility that local majorities could exploit local minorities for whom

the exit option is too expensive—a problem that plagues local land use

regulation to this day. Quite bluntly, no matter how the Constitution

parcels out tasks between state and national governments, the risk of

faction remains endemic. Both the Federalists and the Anti-Federalists

overclaimed for their respective national and local preferences. Their

disputes over system design do not square with modern political con-

ceptions. All sides of the debate couched their arguments in terms of

natural rights to liberty and property, and structural protections against

government abuse. None of the participants in this historical intellectual

fray were social democrats or progressives, let alone socialists.

Storing also notes that the Anti-Federalists shared the Federalists’

affection for limited and republican government.16 In his formulation,

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24 Preliminaries

the word “limited” is evident enough: the powers that are given to the

government are limited, so that it could not extend its reach into all

areas of human life. That understanding was part of Hamilton’s defense

of judicial review in Federalist No. 78: “The complete independence of

the courts of justice is peculiarly essential in a limited Constitution. By a

limited Constitution, I understand one which contains certain specifi ed

exceptions to the legislative authority; such, for instance, as that it shall

pass no bills of attainder, no ex post facto laws, and the like.”17 On this

issue, again, there was no intellectual divide between the Federalists and

their opponents.

The term “republican” requires more explication in light of per-

sistent confusion about its meaning. Historically, “republican” was a

sensible, if imperfect, response to the purifi ed and restrained form of

popular government, the sort against which Madison inveighed in Fed-

eralist No. 10: “The instability, injustice, and confusion introduced into

the public councils, have, in truth, been the mortal diseases under

which popular governments have everywhere perished.”18 Manifestly,

republicans opposed the monarchical, English-style regime. Historically,

however, a republic was also defi ned in opposition to a democracy, in par-

ticular a popular democracy, which to them connoted demagogic rule

by the masses, whose political power could easily trample on the very

rights of liberty and property that government was sworn to preserve.

Indeed, on this issue, Madison was far from alone, as other writers of

the time also chimed in on the dangers of wayward state governments.

At the Constitutional Convention, Hamilton was explicit: “The members

most tenacious of republicanism,” he observed, “were as loud as any in

declaiming agst. the vices of democracy.”19 Similarly, Elbridge Gerry from

Massachusetts spoke at the Constitutional Convention of “The evils we

experience from the excess of democracy.”20 As early as the 1800 presi-

dential election, earlier meanings had been transformed when Thomas

Jefferson defeated the Federalist John Adams as the candidate of the

Democratic-Republican Party.21 But in 1787 the terms “democracy” and

“republicanism” were used as opposites, not synonyms.

These concerns with popular democracy date back at least to Aris-

totle’s Politics, which lists democracy, along with tyranny and oligarchy,

as one of the three “perversions” of governments, whose “right”22 forms

are Polity (or the Republic), Kingship, and Aristocracy. The same fear

of popular majorities is also evident in much of the English historical

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The Classical Liberal Synthesis 25

writing in the pre-revolutionary period, when authors who opposed

monarchy were equally troubled with the dominant patterns of demo-

cratic politics.23

Historically, therefore, it is not just for stylistic reasons that the

Constitution says that the “United States” (not just one branch of it)

“guarantees to each state a republican form of government.”24 The fear

was that state governments could become monarchies or degenerate

into popular democracies, which the United States was duty-bound

to forestall, by the use of force if necessary. The risk of monarchy is

of course easier to guard against than the risk of democracy, for the

line between a desired republic and its degenerate democratic twin

is hard to draw in the face of the countless permutations of govern-

ment structures. But the Guarantee Clause does (or at least should)

call into question the use of popular initiatives and referenda on par-

ticular issues—the former allows individuals to propose legislation and

the latter allows them to vote on it—precisely because the classical the-

ory regarded reliance on direct popular decisions as the hallmark of

unsound democratic practice. Nonetheless, the point was lost on the

Supreme Court, which has deemed the Guarantee Clause nonjusticia-

ble,25 even though it obligates the United States and not just Congress

to make good on this guarantee.26

But whatever the historical ambiguities on this matter, the

Anti-Federalists did not embrace the now fashionable “republicanism”

that allows the government to demand personal sacrifi ce or even indi-

vidual valor in the service of some higher, overriding vision of com-

munity good.27 Apart from the fi rst three words of the Preamble—“We

the People”—the Constitution is utterly devoid of stirring aspirational

rhetoric. Rather, the term “republican” had a more modest offi ce in the

historical debates. Under a republican regime, only a legislature—one

whose members were always selected by complex procedures—could

pass laws. An important correlative was that deliberation was limited to

“res publicae”—literally, “public affairs.” Matters of war and peace fi t that

bill, as do the creation of systems of public roads and courts. But there

is nothing in the republican view of political deliberation that treated

individual decisions on what property to own, food to buy, jobs to offer

or accept, or wages to pay or receive as matters properly falling into the

public domain. Finally, the Constitution consciously refused to allow the

direct election of key public offi cials, as discussed further on.

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Deliberation, Incentives, and Votes

None of these structural concerns meant that the Founders were

opposed to deliberation and debate among public offi cials or the public

at large. Deliberation is the hallmark of every private board of directors

for businesses and nonprofi t organizations alike. Without deliberation,

public bodies would be forced into making uninformed collective deci-

sions on matters of life and death that bind even dissenters. No nation

can declare war for only some of its people. The inability of a collective

body to fi rst ascertain and then express the often divergent desires of its

constituent members drives the need for extended deliberative processes

in corporations and other private bodies. The same requirements are

even more imperative in public bodies, where dissenters can no longer

exit the project by selling their individual shares. It would be inconceiv-

able for any effective system of political governance to function in its

absence. Never forget that the Constitution itself is the quintessential

deliberative doctrine. Hamilton opens Federalist No. 1 with a reminder

that the people of the United States had to ask themselves “whether

societies of men are really capable or not of establishing good govern-

ment from refl ection and choice, or whether they are forever destined

to depend for their political constitutions on accident and force.”28 (He

conveniently omitted the customary, but stable, English constitution,

which relies on neither.)

Nonetheless, the Framers did not think that participation and delib-

eration, either alone or together, were suffi cient to counteract the dan-

gers of faction, as many modern republicans are inclined to believe.29

The Framers’ skepticism was not misplaced. In political institutions, the

quality of leadership and deliberation is never constant. Hence Madison’s

famous observation in Federalist No. 10: “Enlightened statesmen will not

always be at the helm.”30 And even if they were, they must make hard

life and death decisions even under ideal institutional circumstances.

But it would be a mistake to assume that the only obstacles to effec-

tive deliberation are the inevitable fl uctuations in the quality of elected

offi cials or the inherent diffi culties of key policy choices. Now as then,

political speech is always a double-edged sword, which can be used to

infl ame as well as inform. Astute politicians will choose to infl ame when

it paves the path to their own electoral success. The IQ of public offi cials

of all persuasions always rises when they speak in private.

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The Classical Liberal Synthesis 27

Powerful forces account for the behavioral shifts. Political deliber-

ation never takes place in a vacuum. Private incentives thus infl uence

rhetoric. If confi scation and arbitrary imprisonment are permissible

options, deliberation could easily muster support for those ends. Witness

the recent (and indefensible) suspension of habeas corpus under the

Military Commissions Act of 2006, notwithstanding the serious doubts

about the constitutionality of the act entertained by its supporters.31 It

is false optimism to assume that public deliberation will routinely purify

discourse no matter what the rules of the game. That point became clear

to Madison in his role as Thomas Jefferson’s incoming secretary of state.

Madison was caught up in the venomous political dispute between the

outgoing Federalists and the incoming Republicans over the passage of

the Judiciary Act of 1801, which enabled the departing President John

Adams to appoint sixteen Federalist circuit judges and forty-two justices

of the peace two days before his term ended. That blatant court-packing

plan precipitated the litigation in Marbury v. Madison,32 which established

the power of judicial review, but not before much political blood was

spilled. “[O]verwrought Federalists ranted,” and “Republicans shrieked”

in a knock-down brawl that exhibited none of the elegance, restraint,

and decorum that Madison hoped to fi nd in an extended republic just

fourteen years before.33

This attitude toward deliberation had profound infl uences on

the Framers’ attitude toward voting. They consciously adopted highly

restrictive rules for selecting offi cials for various public positions. Today

we regard universal suffrage as one of the unquestioned pillars of dem-

ocratic theory. The Framers, however, rejected any such moral imper-

ative, as they sharply limited the opportunities for ordinary people to

participate in public elections. Only the House of Representatives had

direct elections, and in these elections the Framers did not insist on uni-

versal suffrage or indeed any uniform set of rules. Instead, fearful of

discord, they prudentially punted that question back to the states such

that the electors in each state “shall have the Qualifi cations requisite for

Electors of the most numerous Branch of the State Legislature.”34 No

aspiration for eternal justice here. State citizens who were shut out of

the franchise by a maze of local requirements—property requirements

and poll taxes, for example—found no helping hand at the federal level.

Similarly, our patrician Senate was chosen by the state legislatures, as

their check against national power, and its members sat for six-year

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28 Preliminaries

terms, as a check against their political accountability. Next, the presi-

dent was chosen by an Electoral College, whose members were chosen

in state elections. As the name suggests, at the time the College was

supposed to be a deliberative body, much like the College of Cardinals is

today. As Hamilton put the matter, the process had two stages, whereby

the “general mass” chooses the electors on the understanding that “the

immediate election should be made by men most capable of analyz-

ing the qualities adapted to the station, and acting under circumstances

favorable to deliberation, and to a judicious combination of all the rea-

sons and inducements which were proper to govern their choice.”35 Evi-

dently, the entire purpose of that indirect form of election was to mute

popular control over the selection of the nation’s most powerful offi cer.

Finally, members of the judicial branch were not elected at all. They

were nominated by the president and had to be confi rmed by a majority

of the Senate. The Framers consciously cut the House of Representatives

out of the loop when it came to choosing the judges and key offi cials to

whom the constitutional Framers looked to protect individual liberty

and private property.

On these matters of institutional structures, the Founders were pris-

oners of their own age. Their overt hostility to democratic institutions

has not stood the test of time in all of its particulars. The movement

toward near universal suffrage (prisoners and incompetents excepted,

for example) has proved inexorable. In 1870, the Fifteenth Amendment

prevented both the national and state governments from denying the

right to vote on account of “race, color, or previous condition of servi-

tude.”36 In 1920, the Nineteenth Amendment did the same “on account

of sex.”37 And last (and surely less consequential), the Twenty-Sixth

Amendment of 1971 did the same on account of age, for all persons

eighteen and over.38 In addition, the Seventeenth Amendment in 1913

shifted power toward the federal government by requiring the direct

election of senators, subject to a rule that stipulated: “The electors in

each State shall have the qualifi cations requisite for electors of the most

numerous branch of the State legislature.”39 Finally, in 1964, the Twen-

ty-Fourth Amendment abolished the poll tax in primaries and federal

elections only, in an obvious reaction to its sorry history in excluding

African-Americans from the electoral process.40

One worthwhile inquiry asks whether any of the constitutional lim-

itations imposed on the franchise should be regarded as proper today

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The Classical Liberal Synthesis 29

in light of the Framers’ widespread concern with the excesses of pop-

ular democracy. There are, of course, many reasons to impose serious

constitutional limitations on what citizens and their representatives may

do by simple majority. Nonetheless, the problem of faction is not solved

but only exacerbated if some citizens are wholly excluded from electoral

politics, even if they remain free to speak openly about those questions.

The exclusion of women (let alone slaves) from the franchise is wholly

indefensible on either republican or democratic principles, especially to

anyone who accepts the classical liberal baseline that all individuals are

free and equal in the state of nature. So much of what government does

affects the lives and liberty of all persons that it takes heroic arguments to

argue for the total exclusion of any group from the processes that deter-

mine the rules of the game. To be sure, keeping propertyless individuals

out of government may reduce the risk of debtor relief laws or outright

confi scation. However, it simultaneously increases the risk of petty leg-

islation that could explicitly block the ability of vulnerable people to

enter into various trades and professions. Universal suffrage helps mend

that diffi culty. At the same time, however, the broad franchise increases

the majoritarian pressures on the existing constitutional protections for

property and contract, both of which found their way into the United

States Constitution. So long as people tend to vote in their interest, the

few are at the mercy of the many within any electoral process.

This same cautious attitude toward voting is refl ected in the con-

scious obstacles that any bill must negotiate before it can become law.

One of those obstacles is that any new law must secure the approval

of both houses of Congress, whose members were selected in different

ways. The clear opposition featured even representation of states in the

Senate, whose members are chosen for longer periods of time, against the

more numerous House, whose members are elected for shorter terms.

The driving force behind this view was that errors of too much legislation

were of graver consequence than those of too little. This institutional

design made sure that the two houses could not easily get into sync on

the great matters of the day. Thereafter, legislation has to be signed by the

president, whose interests are often at loggerheads with the Congress,

which of course has the right to override the veto, but only if it can mus-

ter two-thirds of the vote of both houses, starting with the one in which

the bill originated.41 This complex process tends to reduce the volatility of

government decisions below that of the swings in public opinion.

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30 Preliminaries

Why Did Our Constitution Succeed?

This recital of the well-understood vagaries of the political process gives

rise to this question: how do we account for the Constitutional Conven-

tion at Philadelphia? Part of it was fortuitous. Enlightened men, none

of whom were chosen by direct election, were for the most part at the

helm. Indeed, it is highly doubtful that this nation of over 300 million

people could assemble a roster for a constitutional convention that could

come close to matching the one that met in Philadelphia over 220 years

ago. Proposals to redo the Constitution in order to bring it in tune with

the times would likely produce a grotesque and faddish document whose

half-life would be measured in years, not decades.42 But the confl uence

of two fortunate factors also helped make the Constitution the success

that it was. First, the Founders’ common political philosophy meant that

much of their deliberations were about means and not ends. Second, on

most issues, they operated behind a veil of ignorance, which, as John

Rawls so famously argued,43 sets up background conditions that make it

more diffi cult for anyone to act on parochial motivations.

Rawls’s basic theory is simplicity itself. Take any choice in which

all persons are similarly situated, such that everyone can win or lose

50 percent of the time. On those assumptions, the only way to advance

your narrowest interest is to pick that alternative offering the maxi-

mum social gain. By way of example, think of a potential trader who

has no knowledge whether he will be a buyer or seller in some market.

If selective restrictions on imports reduce the value to future buyers by

twenty but increase those of future sellers only by ten, then any person

(ignorant of his role) who votes for the restriction suffers a twenty-unit

loss half of the time and receives a ten-unit gain half of the time, for a

net loss of fi ve. So situated, that person’s private interest is to vote for the

socially desirable solution that rejects the import restriction. But once

future sellers can peek out from behind that veil at their own actual

prospects, they are likely not only to vote for the restriction, but also

to campaign on its behalf, as happened with the 1930 Smoot-Hawley

Tariff44 or the recent disgraceful ethanol subsidies, which at long last

are being challenged.45 The situation is still more diffi cult because the

defenders of trade subsidies and restrictions often fail to perceive that

they will lose on net, once indirect effects are taken into account, as

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The Classical Liberal Synthesis 31

surely happened with Smoot-Hawley. Within politics, both greed and

incomplete knowledge are hard to avoid. But a constitutional conven-

tion reduces both risks because delegates cannot tailor their views on

general provisions to suit their own perceived interests. At this point,

the incentives are better (though not perfectly aligned).

In this setting, the fi rmer the knowledge of history and general

social theory, the further back in time it is possible to go to attain the

ideal governance structure. It was therefore most fortunate that few

particular matters were before the Constitutional Convention, forcing

delegates to make more decisions from behind the veil. It is thus wrong

to condemn the Framers of favoritism to their own class, as Charles A.

Beard did in 1913, arguing for that mistaken position in his well-known

Economic Interpretation of the Constitution,46 which saw in the Constitution

a concerted effort of landholders to protect their own provincial inter-

ests. The Constitution contains little, if any, textual evidence of special

interest provisions that are tied to particular groups. The strongest evi-

dence, perhaps, of the Beard position was the willingness of the Fram-

ers to allow Congress to introduce economic protection against foreign

commerce and trade, but that regrettable position does not consistently

favor any particular interest group. Any effort to read into the Consti-

tution a simple confl ict between landowners and commercial traders

seriously underestimates the complexity of that relationship, for then as

now, it is as common to fi nd deep divisions on such large issues within

economic groups as across them.47 Steel producers may well favor tar-

iffs on steel imports, but such tariffs will be opposed by manufacturing

fi rms for which steel is an input in production. The most that can be said

against the Constitution is that it did not block the risks of economic pro-

tectionism, at least in the area of international trade. But it can hardly

be said to have fostered it for partisan advantage. And that mercantilist

attitude is in marked contrast to the strong efforts to create an internal

common market that operates free of various trade restraints, which is

refl ected in the tightly worded prohibition against state taxes on imports

or exports48 and the guarantees to citizens of one state of the privileges

and immunities, chiefl y related to trading, of another.49

To that general rule, there was one glaring exception. The impend-

ing struggle over slavery could not be circumvented in this fashion, as the

delegates from free and slave states alike knew of the gulf that separated

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32 Preliminaries

them going in, given that the abolitionist movement had gained steam

fi rst in England and later in the United States. But on this question,

their need to make a deal forced a regrettable three-fi fths compromise

whereby black slaves, who were denied the franchise, were each counted

as three-fi fths of a person for the purposes of allocating direct taxes and

members of Congress across the several states.50 Fittingly enough, Madi-

son, who knew better, did not seek to defend that awkward compromise

in his own words in The Federalist Papers. Coyly, he used the indirect

voice, as “might one of our Southern brethren observe”—who, being

only hypothetical, could not be forced to atone for his sins.51 The same

of course must be said about the delicately worded provision dealing

with slaves who escaped from their home states. The Fugitive Slave pro-

vision, which followed on the heels of the Northwest Ordinance, deli-

cately provided for the return at the insistence of his owner any person

“held to service or labour in one state” who escaped to another state.52

It is painfully clear that this provision cannot be reconciled with general

classical liberal principles.

On a more principled level, the veil of ignorance was fully removed

in the confl ict between large and small states over their respective pow-

ers in Congress. That dispute led to that most political of compromises

between the Virginia Plan, which contemplated two houses of Congress,

both based on population, but selected by different means (one by the

legislature and the other by vote),53 and the New Jersey Plan, patterned

on the Articles of Confederation, which had a Congress with a single

house where all states had an equal vote.54 The upshot was the Con-

necticut Compromise,55 which introduced the current set-up in which

Senate representation is by state56 and House representation by popu-

lation,57 with representation in the Electoral College equal to the sum

of both.58 There is no veil of ignorance here because the delegates from

each state knew their own interest and acted accordingly. But the com-

promise was in fact a victory for the small states, whose equal power

in the Senate on average means that specifi c appropriations tend to

redistribute wealth generated in populous states to programs benefi ting

smaller states.59 The result here is consistent with the general theory of

bargaining among coalitions. The smaller units who sign on to the deal

can extract a disproportionate fraction of the gains.

The remaining structural responses to the demands of government

were mentioned in the Introduction. These include the creation of a

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The Classical Liberal Synthesis 33

federal structure, the systematic development of checks and balances,

and the protection of individual rights. The structural limitations and

the protection of individual rights served a common end: to slow down

the response of government where the errors of moving too fast seem to

dominate those of moving too slowly.

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The Progressive Response

THE CLASSICAL LIBERAL CONCEPTION of the Constitution had a long his-torical run of about 150 years, but in the end it was vanquished by the progressive counterrevolution that culminated in critical Supreme

Court decisions, on issues of both federalism and individual rights,

during the tumultuous 1930s. It should not be supposed, however, that

the progressive mindset in constitutional law has vanished from the cur-

rent intellectual scene simply because many New Deal Depression-era

short-term public works and relief programs no longer form a part of the

modern American political fabric. The progressive constitutional mind-

set continues to thrive today with increased urgency. It undergirds both

old and new legislative initiatives at the state and federal level, including

the post–New Deal expansion of progressive programs during the 1960s,

which included not only the civil rights explosion, but also the rise of

Medicare and Medicaid, and the full range of expansive new federal

enactments during the Nixon years: the Endangered Species Act,1 the

Environmental Protection Agency,2 the Occupational Safety and Health

Act,3 pension reform,4 and many more. The term “progressive” has also

made a conspicuous comeback since 2000 in the face of the challenges

posed by slow growth and economic inequality, which have engendered

support for contemporary versions of earlier New Deal programs, deal-

ing with such critical issues as labor, energy, and the environment.

Over this full range of issues, the progressives and their contempo-

rary defenders reject the classical liberal position on two key premises.

First, the progressives accept the intrinsic virtues of deliberative democ-

racy and the administrative state, unchecked by strong protections of

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The Progressive Response 35

property and contract. Second, they offer a pessimistic assessment of the

performance and even the possibility of unregulated markets in post-

industrial society.

Popular Democracy

The fi rst point is well captured in Justice Stephen Breyer’s 2005 short

book with an instructive title: Active Liberty: Interpreting Our Democratic

Constitution.5 That title offers two strong clues as to how Breyer reads the

relevance of the progressive revolution to contemporary American con-

stitutional law and practice. The term “active liberty” is used in self-con-

scious opposition to the classical liberal ideal of negative liberty. Negative

liberty is concerned with individuals having freedom from various forms

of public impositions, including of course all tyrannical demands by the

state. Positive liberties necessarily involve specifi c commitments to a

democratic process that allows the state to consciously create what are

commonly termed “positive rights”—entitlements (as opposed to mere

rights) to housing, health care, education, or jobs, for example. Lest

there be any mistake on the matter, Active Liberty does not disparage neg-

ative liberties, but it necessarily limits their scope by making the claim

that “the Constitution [is] centrally focused upon active liberty, upon

the right of individuals to participate in democratic self-government.”6

It thus follows, Breyer argues, that “the original Constitution’s primary

objective” was to “creat[e] a form of government in which all citizens

share the government’s authority, participating in the creation of public

policy.”7 It is therefore no accident that Breyer lays repeated stress on

“We the People” in the Constitution’s Preamble,8 precisely because of its

hortatory edge.

In similar fashion, Breyer’s reference to a “democratic constitution”

elides the historical distinction between republican and democratic

forms of government. Historically that difference was marked by the

danger of a majority vote under a system of universal suffrage with-

out special property protections. Indeed, any expansion in the scope

of the franchise strengthens the case for the constitutional entrench-

ment of individual rights of property and contract. These two elements

are of course the key components of any program of negative liberties.

Breyer’s claim that the Constitution sought to involve “all citizens” in

forming public policy is fl atly inconsistent with the Constitution’s initial

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36 Preliminaries

preference for restricted franchise and indirect elections. To maintain

this position, Breyer is forced to minimize the concern with faction that

drove Madison, treating it as a minor obstacle for deliberative democ-

racies. Yet nowhere in his slim volume does Breyer mention, let alone

explain away, any of the numerous provisions in the Constitution that

limit political participation. Nor does he grapple with any of the endless

external commentary, which indicates that the Founders meant what

they said and said what they meant when they expressed their uneasi-

ness with popular government.

To make out his expanded case for active liberty, Justice Breyer

resorts to an interpretive view that stresses “the likely consequences of

the interpretive alternatives, valued in terms of the phrase’s purposes.”9

Taken at face value, that approach should not change the balance of

interpretation. If any particular phrase of a provision has a classical lib-

eral purpose that tracks the text, then the two approaches should rein-

force, not undermine, each other. Yet Breyer’s switch in emphasis from

text to purpose is meant to exploit a perceived slippage between the two

conceptions, so as to let the justices play fast and loose with text. More

striking, Breyer’s appeal to this supposed interpretive norm does not

rest on any overarching normative framework that justifi es the endless

succession of government interventions in ordinary private transactions.

Specifi cally, at no point does Breyer cash out the fundamental differ-

ence in attitude between the classical liberals and the modern progres-

sives toward state-created monopoly. The progressive approach was well

articulated by Robert Stern, one of the Roosevelt administration’s ablest

lawyers and constitutional architects, who summarized the state of play

at the end of the New Deal period.10 Stern emphatically asserted that

federal power under the Commerce Clause “was now recognized as a

grant of authority permitting Congress to allow interstate commerce to

take place on whatever terms it may consider in the interest of national

well-being, subject only to other limitations, such as the Due Process

Clause.”11 The range of schemes that Stern endorsed makes it clear that if

he had been pressed he would show no preference for competition over

monopoly, which refl ected a principle consistently embodied in New

Deal policies.12 And his caveat about the importance of the Due Process

Clause was not meant to revive the substantive protections of liberty and

property that had likewise been whittled away in the decade following

the 1937 constitutional revolution. Instead, his legitimate concern was

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The Progressive Response 37

with a nascent constitutional revolution that brought increased scrutiny

to laws that discriminated against racial and other “discrete and insular

minorities,” to use Justice Harlan Fiske Stone’s phrase from his famous

footnote 4 in United States v. Carolene Products.13

Progressive Economics

This pervasive skepticism on matters of market structure dovetails with

the entire substantive progressive program, which often found itself

on both sides of the question of how to best respond to the challenge

of monopoly power. On the one hand, many progressives were strong

defenders of the antitrust laws, which were all to the good when they

restricted various territorial and price-fi xing arrangements. But the anti-

trust program had decidedly different results when invoked in service

of a populist tradition that equated bigness with badness. Of greater

importance, perhaps, the progressives championed wholesale exemp-

tion from the antitrust laws for labor and agricultural cartels, as well as a

raft of other restrictive practices that tended to block competition.14 Zon-

ing15 and rent control statutes16 are paradigmatic examples for local real

estate markets. But the impulse covered a wide range of dubious trade

practices, including, for example, a provision of the National Industrial

Recovery Act (NIRA), struck down by the Supreme Court in A.L.A.

Schechter Poultry Corp. v. United States, that required butchers to purchase

entire runs of poultry, including sick chickens.17

It is therefore easy to identify a strange but persistent cleavage

in the progressive worldview, the great constitutional victories which

almost without exception offered protection for its favored, entrenched

monopolies, especially in the labor and agricultural markets. For exam-

ple, the basic structure of the NLRB was intended to force employers

to bargain with a single union that represented all workers, including

dissenters. Likewise, the Agricultural Adjustment Acts18 systematically

controlled the production of various crops on a comprehensive national

basis, thus blocking all efforts of individual farmers to erode its power

by intrastate sales or internal consumption of their output on their own

farms. These conscious designs received some lofty justifi cations, often

based on notions of democratic participation. The progressives clung to

their constitutional view because of their passionate belief that Adam

Smith’s naïve view of competitive markets was hopelessly out of date

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38 Preliminaries

now that the Industrial Revolution of the late nineteenth century had

transformed the means of production. In their view, these irreversible

technological changes required equally permanent changes in the con-

stitutional order. Any naïve optimism that unregulated market forces

could bring about some desirable social equilibrium was rejected.

The new champions of the modern administrative state were not

content with the narrow point that competitive processes did not work

well in certain well-defi ned market niches. The critique of laissez-faire

offered by James Landis and other notables, such as Justice Louis D.

Brandeis and Justice Felix Frankfurter, was not confi ned to railroads,

telecommunications, and other network industries in which it was widely

understood then, as now, that competitive solutions could not carry the

day. Rather, the more fundamental critique was that large organizations

necessarily took the same hierarchical form in both government and the

private sector. Their approach has been rightly described as corporatism,

of which the NIRA scheme struck down in Schechter was perhaps the

most notable example. Michael Wachter has described the phenome-

non, which he notes was by no means buried after Schechter, as follows:

Corporatism views free competition as a destructive force that has to be both controlled and channeled through institutions that practice fair— but not free—competition under the watchful, mediating power of the government. In corporatism, fair competition means the “stabilization of business, with prices at levels that support fair union wages, and eco- nomic policy responds to institutional actors such as unions and corpo- rations rather than to individuals.”19

It is no intellectual coincidence that one of the noted academic

champions of the NIRA was Adolf Berle, who also championed the

view that the corporation should be a bastion of shareholder democ-

racy, subjecting both directors and offi cers to external popular pressure

through means such as proxy fi ghts and annual meetings. Writing with

Gardner Means in The Modern Corporation and Private Property in 1932,

Berle predicted that “the future might see . . . the corporation, not only

on an equal plane with the state, but possibly even superseding it as the

dominant form of social organization.”20 Elsewhere he hinted darkly:

“Unchecked by present legal balances, a social-economic absolutism of

corporate administrators, even if benevolent, might be unsafe.”21 Berle

and Means thus devoutly believed that the separation of ownership

from management in the public corporation necessarily led to deep

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The Progressive Response 39

and abiding confl icts of interest that only government intervention

could solve.

Strong medicine, such as that imposed by the securities acts of 1933

and 1934, was the only way to generate suffi cient pushback against the

dominance of private fi rms. Yet this move, and others like it, exposed a

second deep cleavage in the modern progressive program that is pain-

fully evident in the writing of Justice Breyer. The implementation of any

complex administrative system of regulation can be demanded but not

executed by public deliberation. What is needed in all cases is a perma-

nent administrative apparatus staffed by elites whose supposed expertise

allows them to make complex judgments on industrial policy. The new

generation of experts had to paint on a canvas far more extensive than

that needed under the earlier classical liberal model, which, truth be

told, could never satisfactorily resolve the nettlesome question of how to

best regulate natural monopolies, such as railroads and public utilities.

That technical expertise operates on a delegated authority that receives

only scant guidance from legislators, who have little specifi c knowl-

edge of the manifold areas of public regulation: drugs, securities, labor

relations, the environment, telecommunications, and pensions. Each

area has spawned complex legislative schemes with immense amounts

of delegated authority under statutes that allow, and indeed require,

unelected administrators to make major policy decisions about the reach

of federal programs.

Yet ironically, the Constitution itself says absolutely nothing about

the existence, let alone the organization and regulation, of these admin-

istrative agencies. Their most conspicuous feature is their combined

powers to fi rst make and then enforce rules before their own internal

tribunals. That organization represents a conscious and complete inver-

sion of the principle of separation of powers, which Woodrow Wilson

dismissed as a “grievous mistake” because its halting action blocks the

application of technical knowledge as a force for good.22 James Landis

echoed that theme at the height of the New Deal infatuation with the

administrative state, when he argued that separation of powers did

not work when the government was concerned “with the stability of

an industry.”23 But in that statement, Landis reveals his own misun-

derstanding of the problem by confusing stability in a legal framework

of voluntary exchange, which was the concern of the classical liberals,

with the price stabilization program of the New Deal, which destroyed

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40 Preliminaries

the ability of economic actors to communicate information about the

relative scarcity of goods through the price system. Yet his view of sta-

bility was consistent with the rules of the era, which listed wage stability

in labor markets and parity in agricultural markets as legitimate gov-

ernment objectives and not as a looming peril to all forms of success-

ful commercial innovation and exchange. Daryl Levinson and Richard

Pildes have carried the theme forward to modern times: “By virtue of

its very success, American democracy ran roughshod over the Madiso-

nian design of separation of powers almost from the outset, preempting

the political dynamics that were supposed to provide each branch with

a ‘will of its own’ so that departmental ‘ambition’ could ‘be made to

counteract ambition.’”24 And they administer the coup de grace by con-

tinuing, “Few aspects of the Founding generation’s political theory are

now more clearly anachronistic than their vision of legislative-executive

separation of powers.”25 But again, it is critical to ask what makes the

theory “anachronistic.” The common view today is that the system can-

not work in modern times. But the more accurate response is that the

entrenched administrative state, especially on issues of fair competition

and price stability, causes real economic loss and social dislocation pre-

cisely because it hobbles the dynamic elements of markets.

The confusion is not accidental. The rise of the administrative state

hardly eliminates the problem of factional intrigue. Quite the opposite,

it often intensifi es factional struggles during the appointment process.

Administrative agencies do not staff themselves. Therefore the president

and his allies in Congress will seek to convert tenuous political majori-

ties into powerful administrative ones. Notwithstanding protestations to

the contrary, value judgments remain critical in all administrative law

settings no matter how technical the issues.

In contrast, markets are more immune to factional intrigue than

either legislatures or administrative agencies. Traders only prosper when

their trading partners also profi t. No self-interested trader, supplier, or

customer, whether rich or poor, ordinarily enters voluntarily into losing

deals. That one condition alone means that voluntary transactions, no

matter how numerous, complex, or diverse, produce expected mutual

gains for all involved parties. Hence, the higher the velocity of business

transactions in goods and services, the higher the level of human satis-

faction, for the parties who win in one transaction have greater resources

for new transactions that expand opportunities for third persons. The

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The Progressive Response 41

political confl icts of interest in majority rule are normally obviated in

markets by the requirement of mutual consent to voluntary exchange.

Likewise with the blockades that necessarily arise when administrative

agencies are given the (implicit) monopoly power to license: there may

be a thousand parties from whom you can buy computer services, but

there are not 999 regulators to whom a party can turn if a single regu-

lator denies a permit—a problem that is only intensifi ed when multiple

permits are needed to undertake a single project. If the common law

lawyers were right to worry about the dominant position of a common

carrier, modern scholars, both within and beyond the legal profession,

should not be indifferent to the still greater power that lies in the hands

of state regulators in the modern administrative state.

Misunderstanding these different institutional environments has

real consequences. In working out the effects of administrative control

over business activity, writers in the progressive tradition uniformly

missed the profound differences between large corporations that operate

in competitive environments and administrative institutions that exert

monopoly power at all levels of government. In private businesses, share-

holders come together selectively and voluntarily for a common venture.

They can work quite well without worrying about the element of terri-

torial inclusion that brings unrelated, or even hostile persons together

in political bodies. Corporations can make rules that govern sharehold-

ers solely for their investments in the business. In so doing, they can—

indeed must—address, and control, the key confl icts of interest to which

Berle and Means refer. If they fail to counter the risk of misappropriation,

they will not be able to persuade others to trust them with their capital.

The competitive pressures are everywhere, for invested capital is not tied

to any particular line of business. Working in this environment, corpo-

rations will adopt rules by charter for selecting directors and offi cers in

order to counteract the vaunted separation between management and

control. These rules cannot eliminate the confl icts of interest—nothing

could—but they will nonetheless moderate them so that the gains for the

venture are worth the residual costs incurred.

Yet no matter what they do, corporations do not have control over

the lives and fortunes of either their investors or employees, who can

invest or work elsewhere. But individuals do not have this luxury when

they are forced to entrust their fortunes to the offi cials of the modern

administrative state. Corporations, both large and small, face sharp

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42 Preliminaries

competition from other fi rms, both large and small, that can woo away

their customers with a combination of lower prices and superior prod-

ucts. Their size does not limit in any way, shape, or form the choices

available to their potential customers, suppliers, or employees, unless

these fi rms obtain monopoly power, for which the antitrust laws, not

the laws of corporate governance, supply the proper response. The rela-

tionship between the state and citizen is wholly different. Individuals

face a monopoly of power in the hands of the state. If they do not like

its commands, they cannot just sell their shares and invest elsewhere. In

politics, exit means more than the sale of particular assets. Corporations

don’t control territories; governments do. Exit from government power

therefore necessarily requires emigration outside the power of the state.

Exercising that exit right comes at the far higher cost of giving up all of

the associations with one’s home base. Federalism of course facilitates

exit rights by allowing fi rms that do not like how business is regulated in

New Jersey to slide over to Delaware. Corporations did just that en masse

after 1913, when Governor Woodrow Wilson’s onerous and misguided

reforms of New Jersey corporate law propelled the mass exodus to Del-

aware,26 precisely because Wilson did not understand that the control

of market power does not require upsetting the internal relationships

within the fi rm. The progressives thought that government was right to

curb business excesses, so they championed the large government move-

ment in order to curb the exit right and force fi rms to submit to greater

reliance on political control through administrative expertise. But their

confusion of business size with market power led to the chronic mistake

of preferring supposedly intelligent regulation to individual choice.

But what about the changed circumstances from industrialization

on which progressives waxed eloquent? Quite simply, writ large these

changes strengthen the case for classical liberal solutions that allow for

state regulation of monopoly and state provision of infrastructure, but

otherwise keep public hands off voluntary transactions in labor, capital,

goods, or services. The explanation for this critical inversion does not

lie in the increased size of fi rms. It depends on the increased size of

the market. In the Founding period, sharp limitations on transporta-

tion and communication necessarily limited the number of fi rms that

could participate in any geographical market. Make the goods in Mas-

sachusetts and it is hard to sell them in Alabama if they have to be car-

ried by stagecoach or shipped for hundreds of miles. But introduce the

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The Progressive Response 43

railroad, and the telegraph, and the truck, and the telephone, and all of

a sudden competition at a distance can overcome all physical obstacles.

What remains of course are legal obstacles to foreign trade, which could

either be goods and services from outside the United States or goods and

services from outside any particular state. Move to regional, national,

and global markets, and competition increases because of the number of

fi rms with strong brands that can sell their wares anywhere. In today’s

market, the ability of states to cut off transportation and communication

becomes even more important than it was in earlier times, which means

that federal action, typically by courts, is necessary to prevent individual

states from severing the arteries of commerce through unilateral actions.

It is one of the great achievements of the Supreme Court, on both its

liberal and conservative sides, that it has worked hard, and with much

success, to keep these arteries of commerce open27 by adhering to classi-

cal liberal principles in connection with these interstate activities. Com-

petition, which receives such inconsistent, and often shabby, treatment

in the hands of the administrative state, now becomes the highest good.

And the grounds for its limitation are two that were as well recognized

in 1787 as they are today. One is the prevention of serious externalities

like pollution and contaminated goods. The second is the need to make

outsiders pay their fair share toward maintaining local infrastructure.

But all the fancy forms of protectionism that dominate the administra-

tive state are decisively rejected, and cannot be introduced under the

frequent pretext that the exclusion of foreign goods is necessary to pro-

tect domestic health and safety. No state can impose clever taxes on

agricultural goods and dairy products from outside the jurisdiction that

are not paid by local producers by, for example, using differential taxes

to eliminate the price advantage of out-of-state milk suppliers28 or, alter-

natively, by offering rebates to local producers on uniform taxes that

are denied to their out-of-state competitors.29 The bottom line seems

to be as follows. Once Congress speaks, it can rig the price of agricul-

tural foodstuffs in domestic markets in whatever way it sees fi t. But if it

remains silent, then the states cannot rig these markets in favor of their

domestic producers. The striking success of the pro-competitive judicial

approach to commerce, even at the height of the Depression, shows

that the older classical principles survive only insofar as they block state

interference with interstate commerce, but they exert little or no infl u-

ence in restricting the ability of Congress to impose at the federal level

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44 Preliminaries

economic restrictions on all sectors of the economy. So the die is now

cast. The chief attack against the progressive movement is that its uncrit-

ical praise of popular democracy leads it to understate the pervasive risks

of faction and to throw its lot into an administrative state that does far

better in creating needless monopolies than in controlling them. The

question that remains is what tools of interpretation, if any, should lead

us to prefer the modern to the classical synthesis in the interpretation of

our Constitution. We turn now to the classical liberal and modern views

of interpretation and judicial review to fi nd answers to that question.

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Constitutional Interpretation

The Original and the Prescriptive Constitutions

ANY ACCOUNT of the specifi cs of constitutional law begins with a disarmingly simple question. What rules and techniques of inter- pretation are necessary and proper to grasp the meaning of any constitu-

tional text? In fact, this inquiry has two parts. Each demands a different

approach. The fi rst portion of the inquiry writes on a blank slate, and asks

about the proper understanding of the text when presented in its original

written form, unadorned by any previous interpretive efforts. Only mat-

ters of principle should be invoked to decide this question, which itself is

a vast inquiry that requires, as will become evident, the integration of the

particular text with the appropriate background norms of interpretation.

The second part of the interpretive enterprise then asks: how should a

text be interpreted in light of its previous authoritative renderings?

These basic points are stated with a level of abstraction that needs

specifi c content. The purpose of this chapter is to trace through these

multiple themes. I start with interpretive questions that arise as a matter

of fi rst principle in order to show that these can be achieved only if they

are seen through the lens of the same classical liberal theory that ani-

mated the drafting of the original text— a position that incorporates but

goes beyond in critical ways the most common form of original mean-

ing as explicated by Justice Antonin Scalia. I then contrast this guarded

originalist view with that of the “living constitution,” which has gained

a strong foothold in current constitutional thought. Next I illustrate the

dangers of the newer position in connection with two constitutional

issues, the proper interpretation of the “cruel and unusual punishments”

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46 Preliminaries

clause of the Eighth Amendment and the Second Amendment right to

keep and bear arms. Finally, I take the analysis one step further to ask a

persistent question: how should judges respond to perceived mistakes in

the prior decisional law?

Starting from First Principles

The proper way to read a constitutional provision scarcely differs from

the proper way to interpret other documents with legal effect: statutes,

regulations, and contracts. In each case, there are two necessary tasks.

The fi rst is to fi gure out the meaning of the written text in light of its

standard usage at the time of its adoption. On this matter, at least, it is

wise to follow Justice Antonin Scalia’s famous line that the best fi rst

cut—the qualifi cations will become clear in a moment—at interpreting

the Constitution follows “the original meaning of the text, not what the

original draftsmen intended.”1 The great advantage of this approach is

that the interpreter is far more likely to fi nd a single standard meaning

from reading the text than from attempting to reconcile the various sep-

arate understandings of draftsmen in the plural. In effect the rule is sim-

ilar to the objective theory of contract, which relies largely on the public

meaning of ordinary contract language as the guide to interpretation for

much the same reason.

Performing constitutional interpretation, however, presents differ-

ent challenges in different contexts. The Constitution gives Congress the

power to “grant letters of Marque and Reprisal.”2 But the process of

interpretation is futile for anyone who does not know that these let-

ters include orders from Congress to private parties to seize merchant

ships from other nations on the high seas. Other constitutional provi-

sions present quite different interpretive problems. When the Consti-

tution speaks of “freedom of speech, or of the press,” it is incumbent

to give an account of “freedom” as well as “speech, or the press,” and

the former quickly touches grand abstractions that often do not have a

single settled public meaning. The effort to fi nd a single meaning often

requires an explicit resort to the dominant political theory, which need

not yield a univocal answer. Different constitutional terms require dif-

ferent approaches for their correct explication.

Nor is this inquiry solved simply by looking at a single term or pro-

vision in isolation from the remainder. Clearly issues of structure matter

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Constitutional Interpretation 47

as well. These require a close look at how the various constitutional

provisions line up with each other, both within and across the Articles

of the Constitution. It also requires a strong sense of the underlying nor-

mative framework that animates the provisions of particular sections or

entire Articles. As with ordinary contracts, there is always the possibility

that particular contexts require some deviation from ordinary meaning.

Comparing and contrasting each usage of a particular term in a single

document is often instructive.

Once the initial inquiry into the meaning of the stated terms is com-

pleted, the second interpretive task asks whether the text as written is

subject to a set of unspoken qualifi cations that either supplement or

restrict its application. Both possibilities—as we shall see—are strictly

necessary, in order to ensure that constitutional interpretation produces

workable and sensible results in light of the overall design and purpose

of the contested provision. There is no guarantee that this elaborate gloss

has to be interposed in all cases; for example, there are few qualifi cations

that would allow someone under the age of 35 to become a President.

But many jurisdictional commands, such as those under the Commerce

Clause, and many substantive protections, such as those in the Bill of

Rights, offer what can only be termed open invitations to courts, and

indeed everyone else, to fl esh out the meanings of the key terms in the

basic constitutional norm. To give but one simple example, the provi-

sion that says that no person shall be deprived of property without “due

process of law” does not answer the question of what sort of process is

due in any individual case.3 But by the same token it does not leave the

inquiry into levels of process protections solely to the unfettered judi-

cial imagination. It would be an indefensible reading of the Due Process

Clause to hold that greater levels of procedural protection are needed for

petty offenses than for serious ones. But even if we get the gradient in

the right direction, that task does not pair off particular levels of protec-

tion with particular forms of government action.4 It is idle to argue that

this task can be avoided because of the latent indeterminacy. It is equally

idle to argue that serious justices acting in good faith will all agree on the

types of protection needed in particular contexts. In cases of this sort,

even the strongest commitment to an originalist method of interpreta-

tion requires judges to engage in subsequent elaboration. It is as if the

original command requires judges to use their best judgment, given the

inability to specify any unique set of procedures for all different cases.

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The situation is, moreover, not unique to constitutions. Codes of

contract law often specify default provisions to govern questions such

as whether the buyer or seller bears the risk of loss for goods shipped

in transit. But there is no default provision that requires that when the

price is left unspecifi ed it shall be $9.99 whether the item purchased

is a second-hand radio or a new diamond ring. “Reasonable price” is

the standard, which is by design not rigid but fl exible, and necessarily

requires some empirical inquiry at the very least into the type of good

about which there is a dispute on price. And as with key constitutional

terms, the range of correct answers is large but not unlimited. Commer-

cial law has learned to live with such ambiguity. Constitutional law must

do so as well.

The role of interpretation, however, does not extend solely to cases

of purposive ambiguity. Many legal commands, such as “Congress shall

make no law . . . abridging the freedom of speech” cry out not to be

taken literally. Rather, the basic norm is read subject to implicit excep-

tions and background social understandings. Unlike the interpretation

of the word “due,” these qualifi cations do not alter or clarify the seman-

tic meanings of the written terms, but they do fi ll the indispensable role

of fl eshing out the implied qualifi cations on the basic doctrine. No mat-

ter how carefully one parses the words “freedom of speech,” they will

not answer three fundamental nontextual commitments: the anticircum-

vention principle, police power justifi cations, and remedial choices, all

of which have their precise common law analogs.5

The anticircumvention norm expands the basic scope of constitu-

tional protections by preventing Congress or the states from skirting

a constitutional norm without violating its literal meaning. The police

power cuts in the opposite direction by recognizing that both Congress

and the states may rely on substantive justifi cations to limit basic liber-

ties in exactly the same fashion as the common law.6 Both these ques-

tions were raised in the 1827 case of Brown v. Maryland,7 which asked

whether a Maryland tax of $50 on each importer should be regarded as

a tax on imports that violated the constitutional prohibition that forbade

the states “to lay any imposts or duties on imports or exports.” In strik-

ing down the tax, Chief Justice Marshall denounced any effort at con-

stitutional circumvention by imposing the tax on importers instead of

imports. Rhetorically, he asked whether the Congress could “shield itself

from the just censure to which this attempt to evade the prohibitions

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of the constitution would expose it, by saying, that this was a tax on

the person, not on the article, and that the legislature had a right to tax

occupations?”8 His answer was no.

While the anticircumvention principle broadens the reach of the

constitutional provision, the police power narrows it. Traditionally,

these potential justifi cations for government action have been exam-

ined under the general rubric of the “police power,” which, to list the

common categories, examines the limitations on liberty and property

that “relate to the safety, health, morals, and general welfare of the pub-

lic.”9 The entire process that starts with the basic text is expanded in

timeless fashion by implication that derives from the normative classi-

cal liberal theory that underlies the constitutional prohibition. To take

but one example, the First Amendment protection of freedom of speech

contains no hint of a police power. Yet just those issues arise when the

case law is forced to address the permissible limitations that Congress

may place on the freedom of speech, whether we speak of libel, assault,

fraud, street riots, national security, political protest, and many more.

Ironically, the phrase “police power” was (at least until modern

times) the most ubiquitous phrase in the constitutional lexicon, even

though it does not appear in the constitutional text. As noted, that

phrase fi rst entered federal constitutional discourse in Brown. Thereaf-

ter, it quickly spread to cover a wide range of other cases, until it became

the centerpiece of all the great nineteenth-century treatises on consti-

tutional law, by Thomas Cooley,10 Christopher Tiedeman,11 and Ernst

Freund.12 These words are not inserted to evoke in some oblique way

modern notions of the living constitution. Rather they are there because

whether we deal with constitutional law or private law, the only way

that the law can piece together an entire system is with a method of

successive approximations that works through a system of alternating

presumptions where the parties in turn seek to introduce new infor-

mation that restores the balance in their favor. For example, if the basic

presumption is in favor of freedom of speech, the standard libertarian

prohibitions against the use of force (including the threat of force) and

fraud are profound limitations on any claim of freedom of speech that

have to be respected as much in the public law as in the private law. Yet

the document that sets the basic stage for the analysis is silent on the set

of permissible justifi cations, which means that they can only be added

in by way of interpretation.

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Finally, the First Amendment does not contain a word about rem-

edies in those instances when Congress violates the freedom of speech

of any individual or group. But the courts must decide at a minimum

whether to award damages or injunctions. If the former, they must

decide on the measure of losses. If the latter, they must decide whether

the injunction is subject to time limits or conditions. One simple illus-

tration of the problem is that no court will enjoin the publication of a

libel.13 Nor, as in the famous example of the Pentagon Papers, will it

enjoin the publication of classifi ed government documents, unless they

are closely tied to national security, like plans for troop movements.14

This twofold approach toward constitutional interpretation is not

unique to legal argumentation. Indeed it draws its strength from ordi-

nary life. Wittgenstein, for example, gives this provocative example in

his Philosophical Investigations.15 Someone asks you to teach a game to

a child and you teach the child how to play dice. “I didn’t mean that

sort of game,” the original speaker protests. Is that protest legitimate,

Wittgenstein asks, only if he had the objection in mind at the time he

made the request? The answer to that question is an emphatic no, given

the way language works in ordinary life. His objection to your choice

of games does not rest on the defi nitional point that you somehow did

not understand the meaning of the term “game.” Rather, the argument

is that you ignored one implicit limitation on the request, namely that

one does not teach young children how to gamble without some spe-

cifi c authorization. The force of Wittgenstein’s example cannot be met

by refusing to accept any implied conditions on ordinary requests or

orders. Thus, if the speaker mentioned gambling games, it would hardly

be taken by implication to authorize games like dueling that expose chil-

dren to serious risk of physical injury, or games that are blasphemous

or obscene. These unstated qualifi cations refl ect some widely shared

background norms that allow people to economize on scarce linguistic

resources in ordinary communication. The risk that the process will be

abused does not allow us to dispense with it altogether.

The stakes are far higher in legislative and constitutional interpre-

tation, but the processes used to read statutory or constitutional com-

mands frequently follow the same two-track process. The table stakes

only show that the costs of error are higher. They do not suggest or

imply that the techniques that minimize communication error in private

conversation and contracts do not work as well for public commands.

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My favorite example of how this process works out in a serious inter-

pretive culture comes from the Lex Aquila of around 287 B.C., whose

central text stated, quite simply, that “whosoever unlawfully kills a slave

of either sex or a herd animal”16 is responsible in damages. Each word

in this spare provision has received intensive elaboration. Does kill-

ing only cover the case of strangling the animal or killing it with bows

and arrows, or does it cover luring it into traps? Is it unlawful to kill

in self-defense or with the consent of the victim? Each of these points

in turn opens the argument up to further elaboration. Just what limits

apply to either self-defense or consent? The full explication of the text

covers many points dealing with scope, excuses, and justifi cation, which

require a process of implication that is, notwithstanding differences in

subject matter, culture, time, and space, an exact replica of the best tra-

dition of constitutional interpretation.17 But this statute, like so many

others, only makes sense in light of its general purpose (the prevention

of violence) when it is read against its background interpretive tradition.

This necessarily raises many questions to which the words of the text

supply no answer. None of this concern with implied qualifi cations of

basic text makes what is written arbitrary and indeterminate. But it does

require an extensive apparatus for its elucidation.

This pressing need for systematic elaboration of basic commands

does not negate the possibility of the rule of law, but rather shows how

imperative it is that the implicit qualifi cations be developed in confor-

mity with the basic tenor of the underlying statute. In constitutional set-

tings, for example, no one can understand what is covered by freedom

of speech in total ignorance of its intellectual setting: are writings com-

prehended by speech? Is all speech—including assault, fraud, defama-

tion, and invasion of privacy, for starters—fully protected? Once again,

the high stakes in constitutional interpretation may force greater care in

analysis, but they do not suggest any way to avoid the two-stage inquiry

that is used in contextualizing language in all other social settings:

once the meaning of the words spoken is established, the two inquiries

that remain involve, fi rst, analogical extension and, second, principled

exceptions to the basic norm. These are not fashionable literary moves.

They are embedded as part and parcel of every sound interpretive strat-

egy, whether originalist or modern.

The next question is: what does the classical liberal perspective say

about the process of interpretation, and why should its vision matter?

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52 Preliminaries

The fi rst response involves the commitment to the rule of law as a

means to control the arbitrary use of state power, which is one of the

essential missions of any constitutional system, regardless of its substan-

tive ends. That rule-of-law ideal is unattainable if the promulgation of

any constitutional or statutory command leaves political actors with as

much discretion after its publication as they had before. The asserted

inability to fi nd clear meanings for any constitutional text renders lim-

ited government impossible. It is of course easy to claim that someone

else’s rules suffer from all that ails ordinary language. But no one can

maintain that position when it is his or her commands that are subject

to that same relentless form of skepticism. Anyone, regardless of politi-

cal persuasion, who wishes to advance his own substantive claims must

perforce use this methodology. Global claims of skepticism thus stop all

political discourse in its tracks.

It is, therefore, not only philosophically unwise to insist on the

necessity of linguistic uncertainty, but also practically mischievous. If

this claim were true, then it becomes impossible for people to know in

advance what is expected of them, so that they can alter their conduct

to avoid the sting of the criminal and civil law. Any effort to explain a

particular text will be infected with the same fatal fl aw as the original,

so long as painful elaborations, however well intentioned, are inevitably

(since the defect here is linguistic) no clearer than the constitutional

texts that they purport to explicate. There are of course all sorts of texts

or provisions that are badly drafted, on which interpretation is diffi -

cult. But it should not be supposed that these fl aws are inherent in all

texts, regardless of content, but only in those that fail to exhaust the full

potential of language.

No one should foolishly claim, of course, that all texts are neces-

sarily free of ambiguity, given that bad drafting is as possible in consti-

tutions as it is in ordinary contexts. But those ambiguities have to be

isolated and demonstrated by showing the two (or more) alternative

meanings that a particular text may bear, not by a more ambitious claim

that all texts are inherently ambiguous. Key provisions in our Constitu-

tion were subject to meticulous debate and draftsmanship, but always

against the backdrop of this interpretive tradition, which was familiar

to the Founders from their study of both Roman and common law. The

Constitution contains many cases of studied ambiguity that necessarily

give rise to interpretive tangles. But that is far from any universal norm.

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Constitutional Interpretation 53

We should, therefore, start from the opposite pole and begin with the

conviction that interpretive enterprises are capable of success, and then

do our level best to make good on that promise by using the process of

explication to draw forth fair implications from any given text.

This basic commitment to the integrity of language is only a mini-

mum condition for successful constitutional interpretation in the clas-

sical liberal mode. But it is hardly distinctive to it. The administrative

state does not rely only on vague general commands, although those

are often part of its repertoire. In addition, it often issues rules that

specify in minute detail what can and cannot be done. Of the many

and sensible objections to zoning ordinances, the lack of detail and

specifi city in the relevant ordinances is the last point that comes to

mind. No conception of the rule of law will work if it only relies on

formal commitments of notice and clarity. Of greater importance is an

insistence that the constitutional text must be interpreted in light of

supplemental norms that arise from within that classical liberal tradi-

tion. We should not doubt that it is possible to give some faithful tex-

tual interpretation of the Soviet or Iranian constitution, even though

they subordinate all individual liberties to the whim of the state. Closer

to home, when the rules of interpretation are applied to the National

Labor Relations Act of 1935 and to Title VII the Civil Rights Act of 1964,

they cannot yield results consistent with the classical liberal tradition.

Both statutes reject the essential principle of freedom of association in

competitive labor markets in favor of rules that require employers to

deal with employees under the terms specifi ed within the statute. The

accurate rendition of those statutes depends on making sure that their

basic visions are not compromised by artful exceptions that convert

them back into classical liberal doctrines. There is no more warrant for

using the rules of interpretation to convert a social democratic statute

into a classical liberal one than there is for the opposite. Interpretation,

properly understood, explains and illustrates the substantive implica-

tions of any given worldview. But interpretation can never transform

one view into its rival. No amount of ingenuity or exegesis can make

Marx’s The Communist Manifesto into a defense of the institution of pri-

vate property.

In its enduring provisions, our Constitution is most emphatically

a classical liberal document. Its successful interpretation on all points

dealing with text and its surrounding norms should be read in sync

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54 Preliminaries

with the tradition of strong property rights, voluntary association, and

limited government. Only because differing worldviews drive partic-

ular questions of interpretation at every level are the debates on tex-

tual interpretations so intense. In modern discussions of constitutional

interpretation, the creation of an initial presumption, say, in favor of

freedom of speech, thus invites examination of the cases in which that

presumption can be displaced. In the end any substantive constitu-

tional command is no different from any ordinary proposition that peo-

ple should (prima facie) keep their promises or (prima facie) not use

force and fraud against another. The acceptance of that presumption

thus necessarily leads to a constant balancing of interests to take into

account the justifi cations that might be offered for an admitted restric-

tion on a constitutional right. What is much less commonly observed is

that, originalist or not, at least one of the interests in the balance has no

textual foundation, but must be derived from sources that lie outside

the doctrine, even though they are consistent with its basic tenor. It is

a dangerous mistake to confl ate any form of originalism, which asks

how texts were understood when written, with strict textualism, which

ignores these necessary but implied exceptions.

A Living Constitution?

This classical approach to constitutional interpretation is at odds with

the now fashionable and expansive notion of a “living Constitution,”

which envisions far more fundamental changes in constitutional inter-

pretation. In its most extreme form, Louis Michael Seidman denounces

originalism as an approach that gives undue credit to “a group of white

propertied men who have been dead for two centuries, [who] knew

nothing of our present situation.”18 Jack Balkin’s more modest approach

of “Living Originalism” views the “Constitution as an initial framework

for governance that sets politics in motion, and that Americans must

fi ll out over time through constitutional construction.”19 The common

thread in both these approaches is that modern politics, not classical

norms of interpretation, drive the contemporary analysis, which leads

where it may. That shift in power locus makes it, of course, far easier

to change the basic norms of interpretation in ways that are more con-

genial to modern progressive notions that both Seidman and Balkin

champion.

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Constitutional Interpretation 55

In taking up this controversial theme, Justice Scalia struck just the

right note in the title of his well-known William Howard Taft Con-

stitutional Law Lecture: “Originalism: The Lesser Evil.”20 It is indeed

the case that any system of interpretation will fall short in some cases,

so that the only inquiry worth asking, with perfection unattainable, is

which system has fewer fl aws. In Scalia’s view, the “living Constitu-

tion” comes out second best for the simple reason that once the task of

interpretation is unmoored from the text and structure of the Consti-

tution, it becomes virtually impossible to offer a principled account of

what new substitute should displace the best (even if uneasy) original

reading. In consequence, the arbitrariness of the enterprise necessarily

undermines the legitimacy of the courts as forming to an institution

outside of politics, and it muddies the line between constitutional prin-

ciple and democratic politics.

Indeed, the stakes are higher than even his brief but elegant account

might suggest because battles over the living constitution become the

forum in which to carry out the ongoing debates between the classi-

cal liberal and modern progressive positions. The resolution of these

debates matters a great deal, for they help to select the background

understandings used to frame and explicate the written text. Classical

liberals always think fi rst of countering force, fraud, and monopoly. The

modern progressives have a much larger list of alleged state interests to

work into the question, including the provision of minimum standards

of wealth or happiness for all citizens, restraints on the distribution of

wealth more generally, and often a full array of positive entitlements,

some of which may even have constitutional weight.

In dealing with the unwritten elements of our written Constitu-

tion, it is important to be aware of how changed circumstances fi t into

the question. It is one thing to ask how the traditional visions of lim-

ited government and strong property rights can survive in changed cir-

cumstances. Thus one could ask whether—and, if so, how—commerce

among the several states covers transportation by rail or communication

on the web. It is quite another thing to argue that the progressive vision

of the world requires jettisoning the older worldview in favor of one

that expands the power of the federal government at the expense of the

states.21 Hence, it is not proper to say that changed circumstances make

it impossible to fi nd any areas of local commerce or manufacture that lie

outside the reach of the federal government. The correct approach is to

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56 Preliminaries

preserve the balance between national and local regulation as applied to

these technological changes. The wrong approach is to argue that these

changes make the boundary lines unintelligible or unworkable. Stated

otherwise, there is nothing inherent in the notion of a living consti-

tution—that is, one whose interpretation responds to changed circum-

stances—that drives us inexorably toward more extensive government

at the national and state level.

Nonetheless, many modern writers of all political persuasions see

in the Constitution a kind of Burkean evolution whereby the text itself

becomes modifi ed through repeated usage—usually towards big gov-

ernment.22 This analogy works well for the English constitution, which

functions by slow evolution. But it fails with the American Constitu-

tion, which contains specifi c provisions for constitutional amendment

that are intended to make sure the proposed changes satisfy superma-

jorities at every stage of the process, both federal and state, over an

extended period of time, and not at a single instant. Requiring sharp

changes rather than the incremental evolution of the common law lets

people know where they stand at any given moment, so that they will

not be left to speculate on the legal position at any one time. In dealing

with these issues, it is tempting to say that a living constitution keeps

matters in tune with the times. But often the layers of interpretive con-

fusion are so great that much harm is done by the use of this interpretive

mode. Throughout much of this book the argument against the living

constitution is that it systematically erodes individual liberty and prop-

erty protections under the original Constitution. But in some contexts,

the greatest danger from the living constitution comes from the oppo-

site direction: the insertion of judicial control over matters that have

long been regarded as properly falling within the province of the leg-

islatures—such as the control over the criminal sentences that may be

meted out in connection with certain offenses. The Constitution imposes

some extrinsic limitations on the process, but the key element in dealing

with the issue is how much. On this issue, there is no necessary liberal or

conservative direction to any sensible originalist critique of recent con-

stitutional decisions. Just as decisions embracing the living constitution

can be erroneous, so too can those that explicitly follow an originalist

program. The point is made by comparing the readings of the Eighth

Amendment prohibition against cruel and unusual punishments with

the Second Amendment’s protection of the right to keep and bear arms.

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Constitutional Interpretation 57

Cruel and Unusual Punishment(s)

On this score, it is instructive how badly the living constitution plays

out in the Supreme Court case law on the Eighth Amendment, which

reads in full:

Excessive bail shall not be required, nor excessive fi nes imposed, nor cruel and unusual punishments infl icted.

Like so much in the Constitution, this provision was not invented

out of whole cloth. It was obviously lifted from the 1689 English Bill

of Rights promulgated by Parliament in order to pave the accession of

William of Orange to the English throne. That document fi rst notes that

the Lords Spiritual and Temporal and Commons jointly “declare” a list

of “illegal actions,” including the suspension of the laws of Parliament.

Tucked into this list is the declaration:

That excessive bail ought not to be required, nor excessive fi nes imposed, nor cruel and unusual punishments infl icted.23

It is noteworthy that the statute is “declaratory,” which leaves open

the question of whether it should be treated in the same fashion as ordi-

nary legislation. Note that the “ought not” does not have the same coer-

cive pop as “shall not,” which is closer to the language of a command.

Against this backdrop, what is the correct interpretation of this provi-

sion, once it is incorporated into the Bill of Rights? One point of con-

tention involves the question of whether the list of cruel and unusual

punishments is closed as of the time of the Bill of Rights. That topic

is one to which Justice Scalia has uneasily returned on several occa-

sions. In hedging his bets on “faint-hearted originalism,” he observes,

“I am confi dent that public fl ogging and handbranding would not be

sustained by our courts, and any espousal of originalism as a practical

theory of exegesis must somehow come to terms with that reality.”24 He

also knows the prohibition cannot be limited to cruel devices in use at

the time of the Founding, for it makes no sense to say that it is permis-

sible for the state to use electroshock therapy or waterboarding, simply

because these devices were unknown at the time of the Founding. The

Founders had a good sense of what medieval torture could do and it

would be pointless to close the general category of punishments to those

in use as of the time. But this view does not require an acceptance of

a living constitution. It just recognizes that the text itself is phrased in

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general terms that themselves are not limited to the forms of punish-

ment that were extant at the time of its promulgation. It would indeed

be a dereliction of constitutional duty to refuse to ask whether electro-

shock therapy, unknown during the Founding period, counted as a cruel

and unusual punishment.

Two points, however, do not follow from that sensible accommoda-

tion of the historical words to changes in social circumstances. The fi rst

is that nothing about this evolutionary strategy allows for a living con-

stitutional judgment of the sort that makes capital punishment uncon-

stitutional under some advanced theory of social morality or some

recent empirical studies that capital punishment (as may well be the

case) does not further deter crime or murder. Various versions of that

position were advanced in Furman v. Georgia,25 where one major source

of cleavage within the liberal bloc was whether a per se ban on capital

punishment was required, as urged by Justices Brennan and Marshall,

or whether the Eighth Amendment prohibition rested on the arbitrary

administration of justice, as urged by Justices Douglas, Stewart, and

White. That tough line did not last after Gregg v. Georgia26 came down in

1976, nor should it have.

The short answer to that question is that the institution of capital

punishment is included with the explicit references in the same Bill

of Rights to the fact that no person should be put twice in jeopardy

of life and limb; that all capital offenses require presentment by a

grand jury; and that no person shall be deprived of life, liberty, or

property without due process of law, all of which are found in the

Fifth Amendment.27 Those statements make it clear that capital pun-

ishment is outside the realm of cruel and unusual punishment, so that

its elimination becomes a question of legislative choice, not constitu-

tional imperative.

The second point is, if anything, of greater importance to the debate

about the living constitution. Much of the recent Supreme Court case

law on the Eighth Amendment has two central premises: As Justice

Elena Kagan wrote recently in Miller v. Alabama,

[T]he Eighth Amendment’s prohibition of cruel and unusual punish- ment guarantees individuals the right not to be subjected to excessive sanctions. That right, we have explained, fl ows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense. And we view that concept less

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through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society.28

The correlative principle is “the requirement of individualized sentenc-

ing for defendants facing the most serious penalties.”29

Justice Kagan thus governs her inquiry by three principles. The

fi rst is that crimes and punishment should be seen in proportion to

each other. The second is that this proportionality should be judged not

historically, but in light of evolving standards of decency. The third is

that individual sentencing is required in cases that call for serious pen-

alties. Unfortunately, the combination of these three principles allows

for an extensive reconstruction of the criminal code of both state and

federal governments for, at the very least, all cases that call for death

or life imprisonment. That is a striking statement, because it presup-

poses a level of confi dence about the operation of the criminal system

that is just not available to anyone. Unlike the relative desirability of

competition compared to monopoly—which turns out to be the cen-

tral issue in many questions of government structure and individual

rights—setting and administering a set of criminal sanctions becomes

the quintessential legislative function precisely because criminal theory

has never produced a defi nitive answer to any of the questions raised in

this short quotation. There is little understanding as to how a principle

of proportionality works given the diffi culties in measuring the severity

of offenses, whether by class or by case. Nor is there any credible con-

stitutional peg for having judicial oversight of these functions based on

some judicial reading of public morality and the appropriate standards

for judging criminal conduct.

Nor does this modest text give any hook on which to conduct

so ambitious an inquiry. The diffi culty here is the words “cruel and

unusual punishments.” The “s” is caught once in Justice Kagan’s quota-

tion, dropped in a second quote, and ignored without notice in the pas-

sage quoted above. That elision is not by accident. It is just much easier

to conduct a free-ranging inquiry under a timeless principle against

cruel and unusual punishment than it is to work an inquiry with the

pesky “s,” which points more clearly to an enumeration of the types

of punishments that are off-limits, as addressed by Justice Scalia in his

academic writing on the topic. And nothing about the English origins

of the clause hints that the great settlement that brought William of

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60 Preliminaries

Orange to the throne was intended to crimp the ordinary operation

of the criminal justice system in defi ning criminal offenses and setting

punishments for them.

Indeed what is so disconcerting about this entire judicial edifi ce is

the number of debatable categorical judgments that come from on high.

Thus Roper v. Simmons30 held that the Eighth Amendment imposed a cat-

egorical prohibition against the use of capital punishment for persons

under eighteen years of age. In Graham v. Florida,31 a divided Supreme

Court held that the Cruel and Unusual Punishments Clause forbade the

imposition of a mandatory life sentence without parole against juve-

niles for nonhomicide offenses. Miller v. Alabama held that mandatory

life sentences without parole also violated the Eighth Amendment for

homicide offenses committed by juveniles. The evident tension in these

cases is how the Supreme Court is able to use the same clause to fash-

ion per se rules for capital offenses and ad hoc rules for lesser offenses

out of the same clauses. It is equally puzzling how confi dent the Court

is in its selective invocation of evolving standards of decency when the

morality and effi ciency of capital punishment remains a hot button topic

and large numbers of states have resisted efforts to repeal their statutes.

The issue gets no easier when the matter turns to rape, where once

again categorical determinations have carried the day. Thus in 1977, a

divided Supreme Court in Coker v. Georgia32 ruled out the death penalty

in all cases of rape that did not involve death, with the clear implica-

tion that the imposition of the death penalty was necessarily confi ned

to (a subclass of) murder cases. That inference became inescapable in

Kennedy v. Louisiana,33 which applied the rule to child rape. In Kennedy,

Justice Anthony Kennedy relied on the broad consensus of states that

have removed the death penalty in rape cases, without noting that such

consensus in fact counts as an argument for legislative control over the

process. His affection for evolving standards of decency produced some-

thing of a recent uproar when fi ve members of the Supreme Court struck

down the death penalty in cases of child rape—before they learned that

Congress had called for just that penalty in its 2006 amendments to the

Military Code of Justice.34 All too often those supposed shifts in public

morality result in one-way ratchets, such that the death penalty could

never be reimposed if popular sentiment changed on the subject. It

is diffi cult enough to fi gure out how to make sense of a given text in

light of its written context and unwritten background norms. It is most

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unwise to add yet another degree of freedom into the interpretive pro-

cess, especially one that allows courts to adopt any substantive principle

on any issue that they are called upon to decide.

In my view, the line of cases on cruel and unusual punishments

represents a complete breakdown in constitutional interpretation for one

class of cases. As constituted, there appear to be no serious limitations on

what could be done through this clause to alter the content of state law.

One of the uneasy features of Miller was that the state conviction rested

in part on the application of the doctrines of accomplice liability and

felony murder, which hold persons who are part of a criminal operation

responsible for deaths caused by others in the course of that activity, even

if the individual accused did not know of the action or was not in a posi-

tion to do anything to stop it. There are obvious strict liability elements

in this case. Does it follow that the entire doctrine is cruel and unusual

punishment under some principle of proportionality, given that there is

clear moral daylight between the actual perpetrator and the second-tier

defendant? In addition, does the prohibition on cruel and unusual pun-

ishments impose serious limitations on the level of punishment that can

be imposed in cases of pure fi nancial loss, especially on senior offi cials

and corporations held liable under a vicarious liability doctrine where

they did not control or know about the unlawful activities?

There should in fact be no reason to speculate on these issues. The

weaknesses in any theory of criminal punishment make it diffi cult for

the Supreme Court to fi nd any hook on which to tie its own ad hoc juris-

prudence, especially in interpreting a clause for which a narrower read-

ing, relating to types of offenses, comports better with the text, history,

and structure of the clause. In this instance, no strong reliance interest

has emerged that justifi es keeping the current doctrine in place. This

sorry line of cases makes good the originalist critique of willful Supreme

Court justices imposing their views on a defenseless text that is incapa-

ble of speaking for itself. The point here is not to take any stand on the

merits of legislative reform that deals with the levels of responsibility

that could attach at all ages, which may well have much to commend

them. But the Eighth Amendment is a poor vehicle to achieve that end,

and judicial bodies are ill equipped to measure the changes in popular

sentiment to which they purport to fi nd allegiance. The public is, for

better or worse, more retributivist in its judgments than the justices of

the Supreme Court.

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The Right to Keep and Bear Arms

The great vice in Miller v. Alabama35 lay in its eagerness to rip the Cruel

and Unusual Punishments Clause from its roots by resort to modern

principles of criminology inconsistent with both its text and purpose.

The excesses in Miller point towards a return to a more nuanced origi-

nalist view of constitutional interpretation. But any such originalist ven-

ture is hardly risk-free. Indeed, it goes astray if it looks at the meaning of

particular words and phrases in isolation from the key structural features

of the Constitution. This methodological caveat gains special urgency in

properly construing the right to keep and bear arms found in the Second

Amendment to the Constitution. That amendment was before the Court

in District of Columbia v. Heller.36 The perfect plaintiff, Dick Heller, “a D.C.

special police offi cer authorized to carry a handgun while on duty at the

Federal Judicial Center,” claimed that the D.C. statute37 denied him his

basic Second Amendment right to keep an operable gun for self-defense

in his own home. In a fi ve-to-four decision, Justice Scalia held that “the

District’s ban on handgun possession in the home violates the Second

Amendment, as does its prohibition against rendering any lawful fi re-

arm in the home operable for the purpose of immediate self-defense.”38

Yet for all its meticulous care and erudition, Scalia’s analysis misfi res if

only for the simplest of reasons: the Second Amendment does not apply

to the District of Columbia, which by defi nition does not, and cannot,

have its own state militia.

Start with the Second Amendment to the Constitution, which reads

in its entirety:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.39

The 1939 decision in United States v. Miller40 had previously upheld against

a Second Amendment challenge the National Firearms Act of 1934

(NFA),41 which required written government approval for the transfer of

certain classes of fi rearms across state lines. In upholding the NFA, Jus-

tice James McReynolds consciously juxtaposed the Second Amendment

to Article I of the Constitution. Article I divides authority over the militia

between the national government and the states as follows:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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Constitutional Interpretation 63

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Offi cers, and the Authority of training the Militia according to the discipline prescribed by Congress.42

McReynolds offered no systematic analysis of the interrelationships

of these three provisions, but leapt straight to his conclusion: “With

obvious purpose [these provisions were] to assure the continuation and

render possible the effectiveness of such forces the declaration and guar-

antee of the Second Amendment were made. It must be interpreted and

applied with that end in view.”43

McReynolds’s brief account of the structure and role of the Sec-

ond Amendment is truer to the structure and function of the Second

Amendment than Scalia’s more expansive reading in Heller. The National

Firearms Act of 1934 was enacted before the enormous expansion of

the federal commerce power in 1937.44 Consistent with the earlier, and

narrower, view of the Commerce Clause, the Act only allowed Con-

gress to regulate the transportation of certain guns in interstate com-

merce. The legislation had nothing whatsoever to do with the use of

these guns within any state, let alone any home, which then lay well

outside Congress’s power to regulate. Only the two Militia Clauses in

Article I touched activities within the state. The simplest way to read

the Second Amendment is as an additional assurance that the specifi ed

federal powers over the Militia should not be used to allow the federal

government to run roughshod of private individuals who were subject

to state power.

It follows therefore that the Second Amendment does not apply to

the District of Columbia for the simple reason that it is not a state, and

thus has no militia of its own. Congress did not exert its powers over the

District through the Commerce Clause, but instead through its direct

grant “To exercise exclusive Legislation over” the District of Columbia,45

which gave it all the police powers over the District that were reserved

to the states when acting within their boundaries as of 1934. Nothing

that the federal government did in its governance of the District could

signal the abolition of the state militia or undermine its effectiveness.

The Second Amendment thus reads best as a simple declaration that the

federal government has no business regulating what happens within

state lines. The best way to reach that result is to demystify the passive

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64 Preliminaries

voice by adding the words “by the United States” after the words “shall

not be infringed,” which parallels the approach of the Court in Barron

v. Baltimore,46 which refused to extend the Takings Clause (also writ-

ten in the passive voice) to the states. Justice Stevens was more alert

to this federalism dimension, but he overstepped the line in claiming

that “[n]o new evidence has surfaced since 1980 supporting the view

that the Amendment was intended to curtail the power of Congress to

regulate civilian use or misuse of weapons.”47 The simpler and more

powerful point is that Congress did not have this supposed power to

regulate the use of fi rearms within the states before the 1937 constitu-

tional revolution.

The federalism focus of the Second Amendment also casts doubts

on Justice Scalia’s other interpretive moves. To be sure, he is correct

to insist that “the right of the people” does indeed refer to the right of

ordinary citizens, acting individually, to deal with the use of guns.48 The

threat against which they need protection is federal regulation in the

states, an issue that has nothing to do with the ordinary people who live

in the District of Columbia. It is therefore a mistake to dismiss the pref-

atory language as mere surplusage when it sharpens the meaning of the

Amendment as a whole. In defense of this view, Scalia notes that sev-

eral states passed constitutional provisions that protected the individual

right to keep and bear arms. In particular, “Pennsylvania’s Declaration

of Rights of 1776 said: ‘That the people have a right to bear arms for

the defence of themselves, and the state. . . .”49 This and similar clauses

make no reference to the militia, but for good reason. They are dealing

only with the relationship of the states to their citizens, not the relation-

ship of the federal government to the states. The Second Amendment

adds in this reference precisely because it is directed to the federalism

issues that were introduced in Article I.

For just these reasons, it seems equally clear that the term “Militia”

in the opening phrase of the Second Amendment should carry the same

meaning that it has in Article I, where the entire set of state and fed-

eral functions are directed to the operation of the organized militia and

not to unorganized individuals. That is why the Second Amendment

refers to a “well regulated” militia in each state that can operate under

standard protocols so that they can be integrated into a single fi ghting

force when called into the active service of the United States. It is for

just this reason that McReynolds was correct in noting that the Second

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Constitutional Interpretation 65

Amendment was needed “to assure the continuation and render possi-

ble the effectiveness of such forces.”50

Justice Scalia’s inattention to the federalism issues implicit in the

Second Amendment is also apparent in his inaccurate claims that “[t]he

phrase ‘security of a free state’ meant ‘security of a free polity,’51 not

security of each of the several States as the dissent below argued.”52 He

is also wrong to insist that “the phrase ‘security of a free state’ and close

variations seem to have been terms of art in 18th-century political dis-

course, meaning a ‘free country’’ or free polity.”53 To the contrary, the

Second Amendment is not a disquisition on general political theory; nor

does it deal with the relationship of the United States to foreign coun-

tries. It addresses a concrete problem of great practical importance for

the ambitious exercise of conscious cooperative federalism at the time

when the militia was a central part of the overall military apparatus of

the nation. More specifi cally, the Second Amendment addresses a par-

ticular problem of federalism that was thought to be untouched by the

provisions in Article I, namely whether the national government in its

guise of regulating the militia could clamp down on the ability of states

to allow their own citizens to carry weapons for whatever purpose they

saw fi t. Once again, the Second Amendment has no application to the

District of Columbia.

The Scalia interpretation is subject to one fi nal major diffi culty.

Once he strips the prefatory clause from the operative clause of the Sec-

ond Amendment, the Clause sweeps too broadly as an absolute protec-

tion of the right to keep and bear arms. But Justice Scalia acknowledges

that “the right secured by the Second Amendment is not unlimited.”54

Consistent with his general view, he notes the need for these limita-

tions, while making clear that the level of scrutiny needed is more “a

freestanding ‘interest-balancing’ approach,”55 which he rightly regards

as insuffi cient for any enumerated right of the Constitution. But the

concern here is not the diffi cult balancing test that has been applied in

the many lower court decisions since Heller that have sought to fi gure

out what restrictions may be imposed to prevent the improper use of

guns. On remand, and consistent with the tenor of Justice Scalia’s opin-

ion, the District of Columbia Circuit jettisoned the low-level rational

basis review and applied a relatively muscular intermediate scrutiny

to gun registration requirements imposed by a D.C. law enacted in the

wake of Heller.56 But there is still much disorder in the house. In United

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66 Preliminaries

States v. Masciandaro,57 the court feared that gun litigation over the limits

of self-defense would be governed by some “sliding scale” that might

play out differently “in litigation over schools, airports, parks, public

thoroughfares, and various additional government facilities.”58 That

prediction has already proved true. In Kachalsky v. County of Westches-

ter,59 the Second Circuit upheld under this standard a New York State

law that required all individuals to demonstrate “proper cause”—that

is, a need for special protection—in order to carry a concealed handgun

in public.60 In contrast, the Seventh Circuit in Moore v. Madigan61 took

issue with Kachalsky62 in what seems to be the more accurate reading of

Heller, by holding that the right to bear arms under the Second Amend-

ment required the invalidation of Illinois laws63 that made it illegal to

carry in public a loaded gun ready for use on their person, subject to

some narrow exceptions.64

It is clearly necessary for the Supreme Court to iron out these evi-

dent differences. But no amount of attention to the police power stan-

dard going forward answers the antecedent question in Heller: why in

this context do we need to add in a police power exception to the Second

Amendment at all? Keep the prefatory clause in place, and the Amend-

ment protects individual rights by keeping the federal government from

meddling with the possession and use of guns within the states. There is

no need for any police power analysis at all. The federal government is

just out of that business altogether.

Once the Heller Court decided to create individual rights against the

federal government in the District of Columbia, the next question was

whether under its new reading, complete with its police power limita-

tion, it should be extended to the states. This topic was raised in con-

nection with the strict Chicago gun ordinance challenged in McDonald v.

City of Chicago.65 Justice Samuel Alito, writing for a fi ve member major-

ity, struck down a Chicago gun law that was similar in strictness to the

one enacted in Washington, D.C. The question before the Court was

whether Heller applied to the states by virtue of the Fourteenth Amend-

ment.66 Doctrinally, that task was complicated because the great decision

in the Slaughter-House Cases67 limited the Privileges or Immunities Clause

to the protection of a narrow class of distinctly federal rights, such as the

ability to use navigable waters and to petition Congress for the redress

of grievances. Justice Alito did not wish to upend this narrow read-

ing of Slaughter-House.68 Even if he had, the traditional list of protected

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Constitutional Interpretation 67

privileges did not include the right to bear arms that was listed in the

Second Amendment. Undeterred, he routed the argument through the

language of the Due Process Clause of the Fourteenth Amendment,

where the right to keep and bear arms counted as a protected form of

liberty.69 He noted that the great tide of Supreme Court cases favored

the doctrine of “incorporation” whereby most of the specifi c guarantees

in the fi rst eight amendments of the Bill of Rights were carried over to

the states. Owing to the fundamental status of the right of self-defense

in the home, Justice Alito concluded that the same rationale applied to

a right “deeply rooted in this Nation’s history and tradition,”70 which he

then carries forward with detailed analysis from the founding period to

the ratifi cation of the Fourteenth Amendment in 1868. Some of that his-

tory, but not all of it, make explicit the right to use guns in self-defense

in the home.71

As a matter of legal history, it is hard to dispute the substantive

contention that the right to keep and bear arms had a deep historical

resonance. But the overall decision in this case only makes sense by

following Heller insofar as it completely disregards the intrinsic feder-

alism component in the Second Amendment, whose central purpose

is to prevent the federal government from dictating gun control laws

to the states to limit their capacity to arm and organize militias. That

threat simply does not arise when the state decides on its own initia-

tive to limit the use of guns inside its own borders. The passage of the

Fourteenth Amendment was, without question, intended to impose

greater limits on state power. But that conclusion cannot be reached

by incorporation of the Second Amendment. It can only be reached

through the direct application of either the Privileges or Immunities

Clause or the Due Process Clause of the Fourteenth Amendment. As to

the former, the Supreme Court’s highly dubious decision in United States

v. Cruikshank72 refused incorporation under the Slaughter-House Cases’

impossibly narrow construction of the Privileges or Immunities Clause.

As it explained curtly, “The second amendment declares that it shall

not be infringed; but this, as has been seen, means no more than that

it shall not be infringed by Congress.”73 But even if that Clause were

given a more sensible reading, it is not clear that the right to keep and

bear arms would be on the list, given that it was not included on the

list of privileges and immunities set out in Corfi eld v. Coryell.74 Nor does

incorporation through the Due Process Clause make sense either. The

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Second Amendment speaks of “the right of the people” to keep and

bear arms, where these people are not all persons, but only citizens of

the United States. Any effort to read this protection against the states

through the Fourteenth Amendment makes it broader as against the

states than it does against the federal government.

All in all, then, it does not look as though the bodily incorporation

of the Second Amendment nor the effort to shoehorn the right to keep

and bear arms directly into the Fourteenth Amendment make sense,

especially on originalist grounds. This is not, however, to utter a kind

word on behalf of either the D.C. or Chicago statutes, or for that matter

to criticize them. In both cases there are credible arguments that strict

limitations on the ownership and use of guns tilts the balance of advan-

tage to lawless individuals who are happy to fl out the law at the expense

of honorable people who feel obliged to comply with it. Getting the right

resolution of these empirical issues is vital for the implementation of an

intelligent gun policy, but wholly irrelevant to the accurate interpreta-

tion of the Second Amendment.

The Second Tier: The Prescriptive Constitution

The major diffi culty with the living constitution is that its application

leads all too easily, as with the issue of cruel and unusual punishments,

to the creation of new law out of whole cloth. The rejection of that

position, however, does not necessarily mean that any strong originalist

conception has to rule the day in the end, for it is also critical to take

into account the notion of a prescriptive constitution that is not intended

to confer, at least with any enthusiasm, additional powers on the pres-

ent generation of judges to make law in ways that consciously deviate

from past precedents. Rather, the term suggests a more limited judi-

cial role recognizing that certain changes, even of systemic importance,

were made by previous judges and should not be undone by the present

generation of judges precisely because they have become deeply embed-

ded in the political fabric of the nation. The conscious parallel here is to

the common law doctrine of prescription, which allows an individual

who has made long use of another’s land to claim full title in that ease-

ment, so long as his use has been open, notorious, and continuous. The

doctrine of prescription converts a set of common law trespasses into a

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Constitutional Interpretation 69

vested right that with time is superior to the claim of the original owner.

No sitting judge could grant an easement of this sort to someone who

started to trespass yesterday. But by the same token, no judge could

deny the validity of an easement that started in a series of trespasses

that began years ago. This position splits the difference between a view

of unacceptable rigidity that is associated with some originalist positions,

while also denying judges the power to initiate, as it were, constitutional

error in their own time. This problem does not arise whenever there is

good reason to believe that judicial precedent is correct; this question

of incremental adjustment to past cases is easy. Now the second court is

less likely to fall into error because it can follow both precedent and the

original constitutional meaning. But deciding that next case is far more

diffi cult where it is widely believed that the initial interpretation of a

text has fallen into error. At this point there is no dominant approach.

In some instances, it may well make sense to continue on the path given

the accumulated reliance on the earlier precedents. In other cases, it

could well be that the weaknesses of the dominant approach are so clear

that reversion to a more principled approach is indicated. Yet even here,

it is unclear whether courts should adopt an incremental approach in

order to ease the case law back in line with sound principle, or should

take a more decisive step by making more extensive changes up to and

including overruling the previous precedent. Worse still, the problem of

mistake is often infectious. Let one clause receive a settled interpreta-

tion that is too narrow, and a broader interpretation of another provi-

sion could easily take up some of the slack. But rarely will that second

measure just neutralize the original mistake. It could go too far or not

far enough. Either way it can easily introduce new errors, perhaps of

greater severity, of its own. Often the interpretive diffi culties snowball

out of control, for it is all too common for genuine disputes to arise on

both halves of the argument: judges frequently disagree on both the

pristine meaning of a text and the appropriate response to error, if any

exists, in subsequent interpretation. The problem does not necessarily

sort itself out easily with time, for subsequent courts may disagree with

one another and generate unresolved confusion, not political or intel-

lectual consensus.

This entire process, however, requires a major adjustment to any

originalist program, because the ultimate choices depend less on the text

and more on the maintenance of a sound constitutional order. Deciding

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70 Preliminaries

which questionable interpretations ought to be preserved and extended,

and which ought to be cut back, does not admit any standard interpre-

tive answer. At the very least, powerful value judgments have to work

themselves into the system, to ask whether the rejection of well-estab-

lished doctrine will advance or harm the position of the nation as a

whole. This inquiry differs from that posed by the living constitution. It

does not seek to create new conscious deviations from accepted consti-

tutionality in the text. Rather, it most unhappily requires that the jus-

tices of the Supreme Court make judgments about the way in which the

rules fi t into the overall system.

In dealing with this issue, mistaken judgments cover the full range

of constitutional topics, both good and bad. Thus on the positive side of

the ledger, it is hard to see why anyone would reject the long-established

interpretations of judicial review embodied in Marbury v. Madison75 and

Martin v. Hunter’s Lessee,76 which establish the institution of judicial review

with respect to both federal and state laws. By the same token, should the

well-established limitations on standing, fi rst articulated in Frothingham

v. Mellon,77 be retained, given the threat that they pose to judicial review

under both Marbury and Martin? In the same vein, it would be most

unwise to undo the traditional doctrines associated with the dormant

Commerce Clause, which help preserve the operation of competitive

markets across state lines even in the absence of specifi c congressional

action under its commerce power. Yet on the other end of the scale, it

would have been dangerously foolish to let the doctrines of stare decisis

protect the “separate but equal doctrine” of Plessy v. Ferguson,78 which

gave legal strength to the institutions of the segregated South, or the

narrow reading of the Privileges or Immunities Clause of the Fourteenth

Amendment in the Slaughter-House Cases79 and United States v. Cruikshank,80

which limited the power of the federal government to protect the newly

recognized black citizens against depredations by state governments.

In all too many cases, the art of interpretation must go beyond the

originalist program to deal with these issues. The particular judgments

are regrettably ad hoc, but unavoidable. The want of a clean theory is

no excuse to bury our collective heads in the sand in the face of major

diffi culties. The chapters that follow illustrate some of these ambigu-

ities. I start with the judicial power because of the distinct position of

judicial review within the American system. But the story carries over

to countless other issues of constitutional law, in which it is impossible

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Constitutional Interpretation 71

to escape the weight of the past. The great challenge of constitutional

interpretation is to marry together two warring conceptions. A sensible

form of originalism (which goes far beyond the “original meaning”) can

and should be matched with a deep appreciation of how diffi cult it is

to deal with systematic errors in interpretation that perforce creep into

all interpretive efforts with the passage of time. In my view, the answer

often turns on this simple question: does the original version of the Con-

stitution or its subsequent interpretation do a better job in advancing

the ideals of a classical liberal constitution? In all the cases where the

doctrines should be kept, a credible claim can be made to that effect. In

the sorry cases of racial domination, that position becomes utterly inde-

fensible. Ultimately, the inquiry becomes more nuanced than this simple

proposition states, but the basic orientation remains largely unchanged.

This dual inquiry starts with the question of judicial review, taken up in

the next chapter.

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P A R T T W O

CONSTITUTIONAL

STRUCTURES

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S E C T I O N I

THE JUDICIAL POWER

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The Origins of Judicial Review

IN ONE SENSE, any study of our structural Constitution should be as easy as counting from one to three. Start with the legislative power, which is set out in Article I, then move on to the executive power set out in

Article II, and follow this with an examination of the judicial power that

is found in Article III. The logic behind this simple progression is that laws

must be made before they can be enforced, and enforced before they

can be applied or challenged in court. Yet almost invariably the study of

American constitutional law does not proceed in that direction. Rather,

judicial power comes fi rst on the list, followed by the Congress and then

the president. The explanation for this deviation from the expected order

lies in one historical development that was, for its time, distinctive to the

United States: the adoption of the doctrine of judicial review. In its mod-

ern formulation, judicial review allows the Supreme Court—and, subject

to its oversight, all lower federal and state courts—to strike down laws

or block executive actions that exceed constitutional powers or offend

one of the individual guarantees that the Constitution creates. Justice

John Marshall’s masterful, if slippery, decision in Marbury v. Madison1 is

commonly held to solidify the power of the Court to declare void and of

no effect certain actions by the other two branches of government. This

defense of judicial supremacy makes the Court the ultimate arbiter of

whether laws satisfy the numerous limitations found in the Constitution.

Judicial Parity versus Judicial Supremacy

In principle, and on balance, I believe that Marbury represents a clear

victory for the theory of limited government, because its doctrine of

judicial supremacy places yet another check on the power of the two

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78 Constitutional Structures: The Judicial Power

political branches. The implicit background assumption is that the initial

presumption should be set against new legislation, which is more likely

to do harm than good. The overall analysis is, of course, deeply compli-

cated by the erratic nature of Supreme Court decisions, which makes

it impossible to give a uniform generalization in favor of either aggres-

sive or minimal judicial review. The opponents of judicial review have

a list of horror stories to which they can point. That list would include

decisions like Dred Scott v. Sandford2 and Plessy v. Ferguson3 on matters of

race. In more modern times it would embrace Korematsu v. United States,4

on Japanese internment during World War II, and, depending on one’s

view, would also include Wickard v. Filburn,5 Roe v. Wade,6 and Kelo v. City

of New London.7

It is of course just here that the diffi culties begin. The simplest way

to see the problem is that in Plessy, Korematsu, Wickard, and Kelo, the

great vice was the failure of the Supreme Court to impose limitations on

the political branches of government. Quite simply, the broad defi nition

of the “police power” greased the skids in Plessy, Korematsu, and Kelo, all

of which represent serious intrusions into individual rights on matters

of race, ethnicity, and private property (keeping it away from the urban

renewal bulldozer). The vice in these cases is too little judicial interven-

tion, not too much.

The one case that appears to involve too much judicial intervention

is Roe, but the explanation, as I have long insisted, cuts exactly in the

opposite direction. Any use of a classical liberal theory would recog-

nize that the police power exceptions dealing with health and safety,

in this instance of (to use what some would regard as a loaded term)

the unborn child, make abortion an area in which legal protection is

imperative under a classical liberal theory that starts with a narrow defi -

nition of harm.8 It is that reason, rather than for any supposed reason

of limited institutional competence, that makes Roe’s qualifi ed defense

of abortion on demand so suspect. The correct response is, of course,

that the state can refuse to enforce its police powers if it fi nds it too dif-

fi cult to do so, but even that concession does not justify a total repeal

of all legal protection for unborn children. Dred Scott is also a complex

case because Chief Justice Roger Taney could have created all his insti-

tutional mischief even under the narrow version of judicial review by

saying that the courts have to determine who counts as a “citizen” for

the purposes of diversity jurisdiction.

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The Origins of Judicial Review 79

At this point, therefore, it looks like something of a draw as to

whether too much or too little judicial review is appropriate. But that

balance is vitally altered in favor of strong judicial review so long as the

justices remember that it is a classical liberal constitution, with strong

property rights and limited government, that they are asked to construe.

The horrifi c decisions all come from the unwillingness to respect the

equal rights of all persons or the limitations on federal powers. In the

current situation, where the Supreme Court has all too often lost its

way, the overall balance is hard to calibrate. But it becomes easier to

make the judgment when it is recalled that the judicial decisions fol-

lowing classical liberal positions on the dormant Commerce Clause9 and

freedom of speech (which does not include the latest generation of lim-

itations on campaign fi nance expenditures) are great achievements that

could never be sustained under a diffi dent model of judicial review.

These are, ideally, some of the long-term institutional reasons why

Marbury survives, as Alexander Bickel wrote,10 more for Marshall’s ver-

bal mastery than for its internal logic; more for its responsiveness to the

needs of a new nation than for its fi delity to text.11 But that expansive

reading of judicial supremacy is not the only view of the subject. An

alternative conception, which Bickel fl eetingly examines,12 is one that

starts from the assumption of a rough parity among the three branches

of government. This conception allows no branch to nullify the inde-

pendent sphere of action of the others, but leaves each the arbiter of

its own constitutional power, within very broad boundaries. That posi-

tion has had its powerful supporters. President Jefferson thought that

the judiciary would become a “despotic branch” if allowed to determine

which laws were constitutional not only for its own operation but also

for the legislature and the executive.13 President Abraham Lincoln, for

his part, saw judicial review as a means whereby “the people will have

ceased to be their own rulers,” if they allowed the outcomes of litigation

to chart the course of a nation.14

Any assertion of parity among the branches should not, however,

be read to replicate the relationship that exists among sovereign nations

under international law, where each is required to respect the auton-

omous actions of the others undertaken within their own territories.15

Nations can be autonomous and independent, but the three branches of

government must cooperate with each other, so at a minimum, each can

be subject to some specifi c and explicit duties with respect to the other

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80 Constitutional Structures: The Judicial Power

two, without necessarily, however, taking the more drastic step of autho-

rizing the federal courts to override all legislative and executive actions.

Even these requirements of limited cooperation are a risky adventure

because while the Constitution sets out some detailed requirements of

what should be done, it offers not even a glimmer of remedial structure

to deal with a breakdown in the system of interlocking prerogatives and

obligations that it creates. An element of irreducible political risk nec-

essarily remains no matter whether the claim of judicial supremacy is

accepted or rejected.

The obvious questions about Marbury and its progeny are whether

the strong sense of judicial review is sustainable as a matter of consti-

tutional interpretation and desirable as a matter of fi rst principle. It is

here that the troubles begin. I have little doubt, as a matter of norma-

tive constitutional theory, about the intrinsic worth of the strong doc-

trine of judicial review. But that conviction does not permit us to escape

the manifest tension between the constitutional text and constitutional

theory. Start with this simple observation. It is child’s play to draft a

constitutional provision that states in no uncertain terms: “The judicial

power shall confer on the Supreme Court, and all other state and fed-

eral courts, subject to the Supreme Court’s fi nal and binding review,

the power to invalidate any statute, administrative action, or execu-

tive decision, federal or state, that contravenes this Constitution.” The

United States Constitution contains no provision that remotely resem-

bles this one, which means that this unprecedented judicial power has

to be derived by inference from those provisions that are found in the

Constitution and the political and intellectual history that formed their

background. The decision in Marbury, while correct on its own facts,

does not support an aggressive reading of judicial review that gives the

Court pride of place over the political branches. Instead, it only allows

the Court to refuse to hear cases that the Constitution states should be

decided elsewhere.

The Historical Background

A dispassionate originalist account—one that is indifferent to the merits

of the two positions—shows quite conclusively that judicial supremacy

comes off second best in light of the two major historical antecedents

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The Origins of Judicial Review 81

to the Constitution: political theory and historical practice. The bottom

line is this: our Framers contemplated an independent judiciary with

strong institutional protections that stood between political branches of

government and the ordinary individual. Judicial supremacy, wisely or

not, was not part of that scheme.

In order to understand the advances in political statecraft under

the United States Constitution, it is important to set the text against the

intellectual temper of the times. For starters, the drafting of the United

States Constitution did break new ground in the way it entrenched

the independence of the judiciary. But far from allowing the Supreme

Court the power to negate and oversee the actions of the Congress and

the executive, it had the more modest function of making sure that

the Congress and the executive could not treat the judicial branch as

a pawn subject to their joint or separate machinations. Put otherwise,

the distinctive and unambiguous contribution of the Constitution was

to assure fi rst, that all cases of individual punishment had to be meted

out through the judiciary, and second, that its judges were independent

from the political branches.

The Due Process Clause of the Fifth Amendment, binding against

the federal government, provides that “no person shall be deprived of

life, liberty, or property, without due process of law.”16 Even in its most

modest form, this sweeping provision guarantees that all persons shall

have individualized adjudication before they can be subject to any pen-

alties that result in the loss of any of the three entitlements (life, liberty,

or property), which are understood to set out a comprehensive list of

the essential individual interests within a classical liberal theory. And,

in a way that is most timely today, access to the courts is guaranteed, at

least in part, not in some mystical and indirect way, but through the use

of habeas corpus: “The Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in Cases of Rebellion or Invasion the public

Safety may require it.”17 Habeas is the means whereby due process is

secured, then as now. On this matter at least, the executive must answer

to the writ, so within this space the primacy of the judiciary is secure,

which is as it should be, given the magnitude of the liberty interests

subject to the exercise of political or executive power. And, as Hamil-

ton recognized in Federalist No. 78,18 the executive was duty-bound to

enforce such judgments—even if the courts could not compel it to do so.

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82 Constitutional Structures: The Judicial Power

The independence of the judiciary is likewise protected: “The

Judges, both of the supreme and inferior Courts, shall hold their Offi ces

during good Behaviour, and shall, at stated Times, receive for their Ser-

vices, a Compensation, which shall not be diminished during their Con-

tinuance in Offi ce.”19 If anything, the absence of term limits creates a

geriatric problem of the fi rst order, but otherwise the provision ensures

that the Congress and the executive cannot suck the lifeblood out of the

Court by denying the judges their salaries. The clause requires Congress

to act affi rmatively by making particular appropriations for the opera-

tion of the judicial branch, which is the kind of explicit duty of support

that never applies as between sovereign nations.

These protections should not be disparaged for, if respected, they

help to prevent the emergence of a police state, which is no mean

achievement in a world littered with political disasters. But note what

they do not do—which is to place any limitations on the content of the

substantive offenses that trigger the use of state power against the indi-

vidual. That point should come as no surprise, for this view is consistent

with all the early thinking on separation of powers, which admitted no

place for a strong version of judicial review. Judicial review makes no

appearance in Locke’s magisterial Second Treatise of Government, where

the remedy for tyrannical government is the right of revolution, to be

exercised with restraint and only in instances of extreme provocation.20

That system requires the people to throw out the baby with the bathwa-

ter insofar as the system knocks out all laws from the earlier sovereign.

The selective attack on bad laws through judicial review was not part of

Locke’s equation.

The same picture emerges with Montesquieu’s Spirit of Laws, which

likewise is silent on any question of judicial review, but insistent on the

separation of powers and the independence of the judiciary:

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. . . .

Of the three powers above mentioned, the judiciary is in some measure next to nothing: there remain, therefore, only two; and as these have need of a regulating power to moderate them, the part of the legislative body composed of the nobility is extremely proper for this purpose. . . .

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The Origins of Judicial Review 83

[I]n general, the legislative power cannot try causes: and much less can it try this particular case, where it represents the party aggrieved, which is the people. . . .

Here then is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.21

The point here is that the principle of separation of powers does

allow the judiciary to place a limitation on executive and legisla-

tive power. But the key division of power is between the two polit-

ical branches, without any distinctive role for the courts other than

adjudication of individual cases under the laws set down and enforced

by the two other branches. To be sure, this situation got cloudier in

England where the House of Lords of the time was both part of the leg-

islative system and, through the law lords, the ultimate source of judi-

cial power. Judicial review is redundant if the highest judicial body is

embedded, as at that time, in the upper legislative chamber.22 The check

against tyranny thus depended on checks on royal power through the

two Houses of Parliament.

For the most part those checks lay within the political realm. His-

torically, however, one interesting diversion was in Dr. Bonham’s Case,23

which asked whether Parliament could authorize the Royal College of

Physicians to impose a fi ne on a doctor for the practice of medicine with-

out a license, when the Royal College was entitled to keep the proceeds

thereof. The judgment of Edward Coke echoed some very familiar prop-

ositions about the interaction of the criminal and natural law, which

could address either or both of two questions: does the Parliament have

the legal power to act in certain ways; and if it does not, how should its

various enactments be overturned or construed when they appear to

violate the principles of natural law? Coke answered the second ques-

tion by construing the statute narrowly when the question was whether

conviction for the illegal practice of medicine allowed for the defen-

dant’s incarceration. This “principle of lenity” stems from the propo-

sition that the criminal law should be read to favor the subject, owing

to the seriousness of the punishment handed down for committing the

offense. In its modern incarnation, the principle is associated with a clear

statement rule, which indicates that the loss of traditional common law

rights should be only cautiously inferred in cases of ambiguity. But an

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84 Constitutional Structures: The Judicial Power

unambiguous statement of the punishments that may be imposed and

the procedures that are used to impose them can defeat both of these

rules of construction.

The fi rst question raises more momentous considerations, because

Coke holds that the Parliament (or Congress) has no power to pass these

laws at all. In Dr. Bonham’s Case, Coke advanced the proposition with

these words:

And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will con- troul it, and adjudge such Act to be void.24

These words appear to carry a very broad sweep and could easily make

the courts a roving commission to invalidate any law that does not meet

the test of “common right and reason.” But in fact they ring true in

the narrow context of this confl ict of interests case, for the prohibition

against bias is regarded as an essential component of “natural law” in the

English administrative law tradition, which applies in virtually all cases.

The decision does not venture to address the underlying substantive

issue of whether the Royal College should have the power to license at

all. But political constraints often mediate this crisis. Even if the British

constitution, unlike our own, offers no protection against biased pro-

cesses, in stable times the blatant illustrations of this practice will rarely

persist, even if protection against the practice is not guaranteed.

Dr. Bonham’s Case, however, did not survive in its narrowest sense.

The greatest English legal authority before the formation of the United

States was William Blackstone, whose views on this subject refl ected the

dominant position of many of the thorniest issues of his day. Among

the many theoretical tensions in Blackstone’s work is that which arises

between his strong commitment to the common law institutions of pri-

vate property, resting on a theory of natural law, and his insistence on

the total dominance of Parliament, from whose laws there is no escape,

even by the exercise of some supposed Lockean right of revolution.

Blackstone is candid, almost to a fault, about the proposition that “if

the parliament will positively enact a thing to be done which is unrea-

sonable, I know of no power . . . [that] control[s] it;” for “to set the

judicial power above that of the legislature . . . would be subversive

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The Origins of Judicial Review 85

of all government.”25 And later on when he speaks of the “jurisdiction

of parliament” as “transcendent and absolute,” he cites Edward Coke,

ironically, and Montesquieu to back him up.26 There is then no evidence

in the work of the legal theorists who infl uenced our Constitution that

speaks of judicial supremacy. So, quite simply, what happened?

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Marbury and Martin

THE PRE-1787 historical materials supply vital clues to the original constitutional arrangements on judicial review, but they give little insight to the path of its eventual evolution. Quite simply, the Ameri-

can Constitution entrenches the judicial power against both the legis-

lature and the executive. But that entrenchment only makes sure that

neither the Congress nor the president can contract the Court’s juris-

diction. Neither separation of powers nor checks and balances neces-

sarily allows the Court to rule over either the two political branches

of the federal government or over the states. They merely protect the

judiciary’s distinctive institutional competence from political incur-

sions. Nor should this be a surprise: separation of powers calls for the

division of power between two or more branches, but does not specify

exactly what that division should be or why. There is, as John Manning

has observed, no “freestanding” principle of separation of powers that

can be read onto the Constitution.1 There is no Separation of Powers

Clause, nor was there a detailed public understanding of what the con-

cept required at the time of the Founding. It takes a far more specifi c

examination to determine how the principle has been instantiated in

the Constitution.

To this point it can be added that the principles of separation of pow-

ers, on the one hand, and checks and balances on the other, are always

in tension with each other, for each check diminishes how separate each

sphere of action is from another branch. There is no specifi c balance of

these twin principles that clearly produces some uniquely right result.

The only thing that can be said with confi dence is that some mix of the

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Marbury and Martin 87

two principles is better than a monolithic government, or even a gov-

ernment that rejected checks and balances as it embraced separation

of powers. The best reading is that the Constitution balanced the two

principles, providing for judicial parity, but not for judicial supremacy.

Read in the spirit in which it was written, the scope of judicial

power seems easy to delineate, no matter how unwise parts of the basic

scheme seem in retrospect. The provisions that establish the Supreme

and inferior federal courts are brief and to the point:

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. . . .

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; . . .

In all cases affecting ambassadors, other public ministers and con- suls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.2

These precise technical provisions raise several points that bear

prominent notice. The fi rst is that the creation of the inferior federal

courts is subject to the will of Congress, which thus enjoys an obvious

check on the power of the judiciary. It can now abolish much of the

judiciary on a wholesale basis, without any showing of cause. All the

excess work thus moves into state courts, which have plenary juris-

diction to hear any and all types of cases. The second point is that the

Constitution expressly imposes a broad and explicit limitation on the

appellate jurisdiction of the Supreme Court—that is, the right to hear

an appeal from the inferior courts. (The term “District Court” for a court

of fi rst instance is not in Article III. It is introduced only in the Judi-

ciary Act of 1789.) The natural meaning of the text is that Congress, if

it chooses, may impose any exceptions and regulations to the Court’s

jurisdiction, whether based on the type of party or the type of cause that

is involved. The only portion of the Supreme Court’s jurisdiction that is

secure is its original jurisdiction over the limited class of disputes that

involve sovereign parties and their offi cial representatives. The obvious

explanation for that allocation is that the Founders wanted to create a

credible forum in which the United States could litigate its international

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88 Constitutional Structures: The Judicial Power

disputes, which is not possible if the Congress could just withdraw that

jurisdiction in its desire to avoid its obligations to foreign sovereigns. The

basic structure may not make the Supreme Court look puny, but it does

suggest that it is on a short congressional leash. The length of that leash

was lengthened, however, in the two important cases decided by the

Marshall Court mentioned below, Marbury and Martin.

Marbury v. Madison

Like most great cases, Marbury arose out a simple legal dispute, albeit

one with great political import at the time.3 In the tumultuous fi nal days

of the administration of John Adams, he appointed William Marbury as

a justice of the peace for Washington, D.C. Although Marbury’s papers

were signed and sealed, they were not delivered. Once the change in

administration took place, William Marbury brought suit against James

Madison, the new secretary of state, under Section 13 of the Judiciary

Act of 1789, demanding delivery of the commission. In order for Mar-

bury to win his case, he had to show that he was entitled to receive the

written confi rmation of his offi ce, which therefore had to vest when the

commission was signed and sealed by the president, even if delivery had

not taken place. That conclusion is subject to some controversy because

the rule with respect to ordinary sealed writings is that the gift is only

effective once the delivery is made, so there is good reason to think that

the vesting occurs only when the commission is out of the hands of the

president. If so, Marbury should have lost for the most prosaic of rea-

sons: his appointment had not taken effect in time.

For Chief Justice John Marshall’s purposes, however, it would have

never suffi ced to decide the case on such narrow grounds. Instead, the

case only gains urgency when the commission is valid, so that the ques-

tion is whether Marbury may seek to obtain his commission by a suit in

the United States Supreme Court. The relevant provision was Section 13

of the Judiciary Act, which reads in part:

The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding offi ce, under the authority of the United States.

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Marshall began the discussion by noting the difference between

original and appellate jurisdiction, explaining that in its latter capacity

the Court “revises and corrects” the proceedings in a cause already insti-

tuted. One way to decide the case was to hold that the entire section

refers only to appellate jurisdiction so that the statute did not confer

original jurisdiction on the Supreme Court at all, thus making the case

go away without reaching any constitutional question. The contrary

argument is that after the words “provided for,” the remainder of the

section dealt with a mix of appellate and original jurisdiction, where

in some cases the Supreme Court would address other courts (“to any

courts”) and in others directly to those “persons holding offi ce, under

the authority of the United States.”

The question of whether Section 13 confers original jurisdiction

could go either way. Yet Marshall was spoiling for a fi ght, so this prosaic

statutory ground would not do. For his long-term institutional agenda,

it was more important how Marbury lost, rather than whether he lost. So

Marshall went forward on the assumption that the statute allows this

valid cause of action to be brought as an original matter in the Supreme

Court, only to strike that law down as unconstitutional.

But why? Marshall began with a long disquisition on the relative

hierarchy between mere statutory law and constitutional law. He held

virtually as a matter of iron logic that in cases of confl ict the statute

must yield to the Constitution, so that the action had to be dismissed on

this ground since Congress could not confer original jurisdiction on the

United States Supreme Court in the Judiciary Act. Under the Constitu-

tion, that original jurisdiction covered “all cases affecting Ambassadors,

other public Ministers and Consuls, and those to which a state shall be

a Party.”4 Lowly justices of the peace fall into none of these exalted cat-

egories, so that the Supreme Court cannot be forced to hear them any

more than it can be forced to take original jurisdiction in cases involving

land title in United States territory. The interpretive issues presented in

this case are black and white.

This form of limited judicial control was not novel when Marbury

was decided. As Philip Hamburger shows in detail in Law and Judicial

Duty,5 decisions of this sort were well established in the Thirteen Col-

onies. One example of this pattern is found in the so-called Ten Pound

Cases from New Hampshire.6 As in Marbury, lower court judges pro-

tected their own jurisdiction from the state legislature by refusing to

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90 Constitutional Structures: The Judicial Power

allow the question of release from debtor’s prison to be decided with-

out a trial by jury.7 The underlying New Hampshire statute stipulated

that lawsuits asking for less than ten pounds were to be tried without a

jury, in contravention of a New Hampshire constitutional guarantee of

a jury trial for over forty shillings, or two pounds. As in Marbury, this

state claim of unconstitutional legislative power involved the courts

only in their defensive posture. The legislature could not order them

to use statutory procedures to try cases when the state constitution

provides otherwise.

Marbury shared key characteristics with that decision. Since the

Court refused to take jurisdiction over the case, it did not have to sup-

ply any remedy to Marbury and his coplaintiffs, thereby avoiding any

political confrontation with the new administration of Thomas Jeffer-

son. This course of action had the delicious irony that Marshall (who

had been an offi cial in the Adams administration) ruled against his own

former administration. But dismissing the action did not require him

to enlist the cooperation of either the legislative or executive branch

because there was nothing for them to do once Marbury just lost. The

case therefore did not present an explicit clash between the branches

to the point of requiring the enforcement of a judgment against the

defendant.

But just how did Marshall get there? For openers, he lifted an

argument straight out of Hamilton’s Federalist No. 78, that any actions

of Congress inconsistent with the Constitution were “void” and thus

of no effect: “[A] law repugnant to the Constitution is void, and that

courts, as well as other departments, are bound by that instrument.”8

Shortly before, Marshall uttered the now famous sentence as to why “It

is emphatically the province and duty of the judicial department to say

what the law is.”9 He did not present himself as an interloper, but merely

as a slave to duty. These two bold statements undergird a strong claim

to judicial supremacy over the other branches by virtue of the Court’s

ability to strike down all laws in confl ict with the Constitution. But the

next sentence is far wimpier, by suggesting that, when all is said and

done, the judiciary’s power to say what the law is must be confi ned to

the cases directly before it, or to those laws, such as the Judiciary Act,

that deal with judicial administration more generally: “Those who apply

the rule to particular cases, must of necessity expound and interpret

that rule.”10 Marshall’s retreat echoes Hamilton’s argument in Federalist

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Marbury and Martin 91

No. 78, where he fi rst acknowledges that the courts “must ultimately

depend upon the aid of the executive arm even for the effi cacy of its

judgments.”11 And then, citing Montesquieu, Hamilton endorses the

view that the inability to control either the purse or the sword “proves

incontestably that the judiciary is beyond comparison the weakest of

the three departments of power; that it can never attack with success

either of the other two; and that all possible care is requisite to enable

it to defend itself against their attacks.”12 The reason the judiciary is the

weakest of the three branches is that it only possesses the defensive

powers that the theory of parity confers upon it.

Marshall’s equivocation in Marbury consciously replicates Ham-

ilton’s, whose passages read as if the executive, except when execut-

ing judgments, stands in parity with the judiciary in the interpretation

of the laws. Likewise, the Congress has a like duty to determine the

constitutionality of its own measures. Marshall’s own account of the

Court’s power does not quite accord it pride of place over the other

branches except insofar as it relates to the adjudication and enforcement

of individual cases, where judicial independence, a la Montesquieu, is

imperative. Nor do Marshall’s examples support any proposition that

the legislature and executive must in all cases bend to the Court’s will.

So what if the Constitution provides that conviction for treason requires

the testimony of two witnesses, not just one?13 Or that no court shall

convict under a bill of attainder (that singles out a single person) or

under an ex post facto law, in the teeth of constitutional prohibitions

to the contrary?14 So what if judges ought not “close their eyes on the

constitution” if the states seek to collect prohibited taxes on “articles

exported from any state”?15 These are all situations that deal with the

judicial administration of various constitutional provisions that do noth-

ing to make good on a claim of judicial supremacy.

These instructive examples are subject to two implicit limitations.

First, the claim of constitutional priority over statutes is stated only in

cases where the confl ict between laws is too apparent to deny in good

faith. Yet it is more diffi cult to claim a confl ict between the Constitution

and a particular law when the Court must decide whether a particular

regulation, advanced to prevent, say, fraud, constitutes an unconstitu-

tional restriction of the freedom of speech. Now no simple comparison

between two texts is able to resolve the confl ict. Even more critical is the

sneaky way that Marshall, following Hamilton, chose his examples. Like

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92 Constitutional Structures: The Judicial Power

the Ten Pound Cases,16 all of them involve situations where the legislature

or the executive seeks to force courts to take cases that are not theirs

to decide, or to decide cases under rules that contravene the Constitu-

tion. At this point, there is no need to claim the superiority of the Court

over its two parallel institutions. All that is needed is an assertion of

judicial parity within a system that requires some cooperation between

the branches on the judicial control over individual cases in ways that

respects the Court’s independence.

Indeed there is more. The Exceptions Clause,17 which allows Con-

gress to strip the Supreme Court of its appellate jurisdiction when it

pleases, is jarringly out of place in a regime of judicial supremacy. But

it makes perfectly good sense as written if judicial review only allows

courts to ward off demands that they hear cases beyond their purview.

Yet defenders of the modern sense of judicial review turn cartwheels to

make this clause mean anything but what it says. Thus Henry Hart, its

most infl uential exponent, claims that the basic proposition here is that

Congress cannot “destroy the essential role of the Supreme Court in the

constitutional plan,” which neatly sidesteps the question of what that

plan is.18 The judicial ability to repel inappropriate cases does not allow

courts to reach out and take the appellate cases they want to hear. So

whatever the desirability of Hart’s vision of a strong system of judicial

review, the Constitution looks as though it just updated Locke and Mon-

tesquieu to preserve the independence of the judges in a system that

features the strong separation of powers.

It is important to keep this in perspective. Measured against past

practices, the Court’s ability to hunker down against the combined might

of the Congress and the president should not be deprecated as a puny

achievement. Indeed, it would be a major mistake to assume that Mar-

bury’s logic extends only to disputes that go to the original or appellate

jurisdiction of the Supreme Court. Rightly read, Marbury’s implications

are more profound. The decision necessarily preserves for the Supreme

Court—and by implication, all lower federal courts and all state courts—

the right to determine the constitutionality of any substantive law that is

relevant to any case that comes before it. Thus, if the president seeks to

imprison someone for subversive libel—remember the Alien and Sedi-

tion Acts of 179819—he must bring that case before some court which

then has the constitutional duty to see whether the government’s action

is in conformity with the Constitution. The same result applies in cases

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Marbury and Martin 93

of habeas corpus. In similar fashion, any seizures of property must also

be routed through an entrenched independent judiciary.

Andrew Jackson therefore overreacted when uttering his famous

remark that “John Marshall has made his decision: now let him enforce

it!”20 That element of executive cooperation through enforcement of

particular judgments is required by the basic structure of the Constitu-

tion. But Jackson was on fi rmer ground when, in vetoing the recharter-

ing of the Second Bank of the United States, he said that “the opinion

of the judges has no more authority over Congress than the opinion of

Congress has over the judges, and on that point the President is inde-

pendent of both.”21 The entrenched judiciary does not mean that the

courts can override a presidential veto that is based on constitutional

arguments that the courts rejected. Nor does it allow the courts to enjoin

the activities of the president to set up a bank or to conduct wiretaps

even when the Court has found these activities unconstitutional. The

judicial-centered reading of Marbury offers individuals protection only

against arbitrary executive action in cases where they have sought and

obtained judicial relief. Any broader conception of the judicial role is at

odds with the English regime of parliamentary supremacy. However,

even the narrow conception of judicial review implements every safe-

guard for individual liberty that Locke and Montesquieu thought would

come from an independent judiciary.

It was for good reason, then, that Hamilton called the courts “the

least dangerous” branch, because they possessed neither the power of

the purse nor the sword.22 He was working under the more restrictive

tradition in which courts could not stop independent legislative or exec-

utive action. Habeas corpus only kicked in after a person was placed in

detention; it gave the individual no way to contest the legality of legis-

lation or executive action before detention was imposed. So this system

was far from ideal even in individual cases. And therein lies Marshall’s

genius. He played consciously on the ambiguity of the historical record

in order to create the impression that, in the words of David Currie,

“the courts were intended to enforce constitutional limits on legislative

power,” a far broader proposition.23 And in time, but without real argu-

ment, that is just what happened. But it took 155 years, for only in Coo-

per v. Aaron24 did the Supreme Court for the fi rst time clearly articulate

that its power let it order the president to call out the National Guard to

quell the resistance against its desegregation order.

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94 Constitutional Structures: The Judicial Power

In Cooper v. Aaron, all the nuances about the scope of original juris-

diction were forgotten. Instead, the Court relied on two propositions that

now carry the day: fi rst, that the Constitution is higher than any state

law and second, Marshall’s earlier statement, now skillfully wrenched

out of its historical context, that “It is emphatically the province and

duty of the judicial department to say what the law is.”25 As an origi-

nalist matter, at least, all this is clearly wrong. There is no question that

President Eisenhower had the power to call out the National Guard to

enforce any desegregation order, even if the courts could not require

him to do so. What the decision did was to give Eisenhower political

cover against southern charges that he intervened on his own accord.

But make no mistake that the long-term battle with segregation was not

solely a judicial function. Indeed the Fourteenth Amendment’s enforce-

ment provision is not judge-centered, but in fact Section 5 states quite

the opposite: “The Congress shall have the power to enforce, by appro-

priate legislation, the provisions of this article.” The amendment makes

no mention of the independent judicial enforcement that marks the

major developments under the Court’s Fourteenth Amendment juris-

prudence, including, notably, Brown v. Board of Education.26 Any complete

transformation cannot, of course, be justifi ed on originalist grounds. But

these epochal decisions have now lasted for three generations. With the

passage of time, who would ever want to undo their outcome?

Martin v. Hunter’s Lessee

The second of the great early constitutional cases on the scope of judi-

cial power was Martin v. Hunter’s Lessee.27 The dispute revolved around

the ownership of extensive Virginia lands (in which John Marshall

claimed an interest and thus recused himself). Martin claimed that the

anti-confi scation treaties with Great Britain protected his title against

Hunter’s claim, which derived from the Virginia state legislature. After

much wrangling, the Virginia courts favored Hunter’s Virginia title. The

Supreme Court denied that title by giving full weight to the Treaty of

Paris that ended the Revolutionary War and the Jay Treaty of 1794,

which protected the property of British sympathizers.28 Accordingly, it

ordered the Virginia courts to transfer the land to Martin. No way, came

the Virginia court’s response, arguing that the Supreme Court cannot

exercise appellate jurisdiction over the state courts, even when a state

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Marbury and Martin 95

court denies the validity of a federal claim. In Virginia’s view, Section 25

of the Judiciary Act, which purported to give the Supreme Court appel-

late power over state court judgments, was therefore void. However,

Justice Story (writing because Marshall had recused himself) rejected

that view and held that appellate jurisdiction existed. And once again,

as a textual and originalist matter, it looks as though he was wrong, per-

haps even clearly so.

Justice Story’s initial sally was that the words of Article III, “the

Judicial power of the United States shall extend to all cases in law and

equity,” not only conferred the right on the Supreme Court to hear

cases that implicated federal questions, but under certain circumstances,

including the circumstances of this case, imposed on the Court the duty

to hear such cases. As an initial matter, any claim that the word “power”

connotes “duty” seems clearly erroneous. The commerce power may

give the Congress the power to regulate commerce, but it hardly com-

pels Congress to exercise that power to its full extent. And it hardly

follows that any articulation of the judicial power means that Congress

must provide at least one avenue whereby any federal question can be

subject to review by a federal court. Rather, the scope of the judicial

power is determined by the cases that Article III brings within the pur-

view of the courts.

Yet Story sought in large measure to combat this conclusion by

invoking the Supremacy Clause, which reads as follows:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.29

There is no doubt that this provision is intended to create a degree of

uniformity across the states by holding that the lowliest federal regu-

lation trumps even the highest state law that is in confl ict with it. But

in this different context, Story repeats Marshall’s mistake by confus-

ing the question of hierarchy of legal norms with the question of who

gets to make the decision of how that hierarchy is constructed. The

Supremacy Clause here does not refer to any federal review of state

courts. Rather, consistent with the general principle of constitutional

decentralization, it charges the judges in every state with the duty to fol-

low the Constitution. Ironically, if all constitutional questions had the

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96 Constitutional Structures: The Judicial Power

clarity of those posed by Marshall in his account of original jurisdiction,

this remedy would be perfectly adequate. No honest judge trained in

the law could confuse two witnesses with one, enforce a bill of attain-

der, or collect a tax on exports. But the complexity of the legal issues

in Martin clearly invited principled disagreement. So long, therefore,

as the state court judges discharged their duty, the Supremacy Clause

did not offer the necessary path to uniformity that Story demanded.

To Story, the persistence of these “jarring and discordant judgments”

could not have been contemplated by the “enlightened convention.”30

He conveniently ignores the possibility that the Framers marched to a

more cautious drummer when they provided that the interposition of

state court judges would supply a useful check on the nationalist ambi-

tions of federal judges like Story.

The Supremacy Clause then offers no support for the omnipres-

ent claims of federal judicial power. The same is true with respect to

the language in Article III, quoted above, that sets out the scope of the

appellate power of the Supreme Court. Recall that after setting out the

cases in which the United States Supreme Court exercises original juris-

diction, the Constitution offers a concise list of cases in which the Court

has appellate jurisdiction. And in so doing, it limits appellate jurisdic-

tion to “all the other Cases before mentioned,” all of which arise in the

lower federal courts, assuming of course that Congress chose to create

them. Indeed, there could not be “appeals” from state courts because

they operate in a separate legal system. Nor can it be inferred that the

Constitution’s list of cases is not exhaustive, for it covers every single

case of federal jurisdiction. It is only the Supremacy Clause that covers

decisions made in state courts.

It looks therefore as though there are some cases in which the

Supreme Court cannot hear a constitutional matter. Story is right to

say that the Congress could both create lower courts and pass statutes

allowing defendants sued in state court to remove their cases to federal

courts. More crucially, however, he did not factor into the analysis the

simple point that Congress had no obligation to exercise its power under

the Exceptions Clause to block an appeal from the lower federal courts

to the Supreme Court. By design, these two checks on the federal judi-

cial power were placed solely within the control of Congress. It there-

fore becomes incongruous to argue that since some cases can run the

gauntlet to reach the Supreme Court if Congress lets them, all cases must

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Marbury and Martin 97

make it to the Court even if Congress explicitly blocks either removal

or appeals, or both. Once again, putting all the pieces together, we see a

Constitution that is wary of federal judicial power and (all too) solicitous

of state judges. This second experiment with federalism gave Congress

far more power than it had under the Articles of Confederation. But it

did not guarantee that the Supreme Court had the last word on all mat-

ters of judicial interpretation.

The Prescriptive Approach to Judicial Power

What then should be made of the situation that strips the Supreme

Court of its distinctive powers to invalidate both federal and state leg-

islation? Viewed with the benefi t of hindsight, these changes have to

be regarded as unassailable under our prescriptive constitution, born

of long and successful usage. Now that we have some distance on the

issue, we can see these early decisions neutralized some serious errors

in the original constitutional design. Historically, the Framers were so

intent on compromise that they did not clearly see the transformations

that were needed in order to make Montesquieu’s vision of separation

of powers work in the context of a presidential system within a federal

nation. No longer could “the” legislature act as the single arbitrator of

all disputes. Now there was competition from self-interested political

parties at both the federal and state levels that made it impossible for the

system to articulate any uniform conception of law. It was not only that

the president could veto the Second National Bank when the Court held

it constitutional, but also that the president and Congress could set up

a Second National Bank that the Court had held unconstitutional. After

all, the business of government goes far beyond litigation, even if the

power of judicial review was confi ned to it.

As a policy matter, it seems clear that once the new nation was put

in place, those two gaps in the original structure had to be plugged, and

fast. The system could not run without lower federal courts or without

some judicial check on the powers of state courts to strike down federal

legislation. Clearly that judgment was made by the Congress when it

enacted the Judiciary Act of 1789 before the ink had fully dried on the

original Constitution. All the equivocations and compromises needed to

get the Constitution through the ratifi cation process no longer seemed

to make any sense once the national government was up and running. Is

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98 Constitutional Structures: The Judicial Power

it really possible to think that a great nation could ever operate without

the existence of lower federal courts, so that all trials would have to take

place within the states? Clearly any such notion was gone from day one,

never to return. And once those courts are in place, does it make sense

to tolerate a stalemate between the Congress and the executive, while

leaving the courts powerless to make sure that the president and the

Congress stay within their proper spheres? Inconsistent policies could

then take hold at the federal level, and the states could stray from the

original constitutional plan. In addition, federal actions could encroach

on the domain of the states with no common arbiter. Likewise, the states

could adopt inconsistent interpretations of key constitutional provisions,

with no independent decider to act as tiebreaker. Both Marshall and

Story had the right constitutional instinct that the fl uid and indetermi-

nate nature of the situation was untenable, even if they did not have, as

it were, the right constitutional text to fi x the problem.

It is unclear in retrospect whether either or both of these towering

fi gures had some awareness of the extent to which their novel judg-

ments remade the original constitutional plan. But it is equally clear

that, as a political matter, they made the right call on both questions,

which is why the prescriptive strength of both these decisions, resting

on long usage, is so unassailable. Under the conventional modern view,

it is manifestly better for the nation as a whole that the Supreme Court

has the power of judicial review over any and all legislation, whether

state or federal, even though that concentration of power has to make

anyone nervous. But this judgment is far more sound if we reject the

modern progressive synthesis that goes out of its way, even after Mar-

bury and Martin, to ensure that no structural or individual rights claim

stands in the way of the ability of the federal government—and failing

that, the states—to regulate general economic and social activities under

the highly forgiving rational basis standard of review.

To put this matter in perspective, the classical liberal conception

of government starts from very different premises. All proposals that

deviate from the basic common law protections of life, liberty, and prop-

erty should reach the legislature under a presumption of error. Accord-

ingly, the appropriate attitude toward government is one that seeks to

slow down, not speed up, the pace of new legislation on these matters.

In their own deliberations, it would be absurd for either the Congress

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Marbury and Martin 99

or the president to adopt the stance of the rational basis test, which

allows them the luxury of their own mistakes. There is no coherent way

in which a judicial standard that calls out for deference to the political

branches can counsel either of those branches to be deferential to the

judiciary in exercising its own powers. Rather, their internal delibera-

tions should be conducted on a strict scrutiny standard, where they do

their level best to make sure that their own actions conform with the

Constitution. And if they take that duty seriously, then the question

of judicial review would be of little consequence because the members

of Congress would likely refuse to pass and the president would likely

refuse to sign any purported legislation that expanded the scope of their

powers beyond their constitutional limits. Conscientious behavior in the

political branches could easily undermine the need for judicial review.

Unfortunately, political actors are loath to enforce against them-

selves any limits on their legal power. It is, to take one recent exam-

ple, inconceivable that anyone could vote with a clear conscience, as

did Senator Arlen Specter, in favor of giving detainees at Guantanamo

Bay, in lieu of habeas corpus, highly restrictive rights of access that

he believed, rightly, to be wholly unconstitutional.31 But it becomes

easier to vote in favor of unconstitutional laws with the courts there

to guard against these political lapses at both the federal and state lev-

els. Given this utter want of self-control, it makes perfectly good sense

for the courts to ride herd over the political branches. The prescriptive

constitution thus has its greatest force on these questions. The imper-

fections of the original design were ironed out by powerful decisions

whose internal logic nonetheless looks attractive within the constitu-

tional design. That transformation, while welcome on balance, comes,

of course, at a price. The judiciary is no longer the least dangerous

branch, with neither the purse nor the sword, when it has a huge veto

power. Now the least dangerous claim rests instead on the view that the

power of judicial review only allows the courts to block legislation, not

to implement it. And that, in turn, means that uneasy cases arise when

courts seek to order legislatures to appropriate funds to prisons, schools,

welfare, or health care. This increased license for judicial intervention

becomes more problematic when the courts more eagerly accept the

progressive mandate to enforce these positive rights, which are alien

to our original constitutional plan.32 Viewed in this light, many of the

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100 Constitutional Structures: The Judicial Power

more recent developments in constitutional law amount to a retreat

from the strong version of Marbury v. Madison; some of these modern

decisions are, in any event, inconsistent with Marbury’s court-centered

view. The following chapters turn to the modern legacy of Marbury

through an analysis of the law governing standing, ripeness, and the

political question doctrine.

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Standing

Background and Origins

THE AGGRESSIVE REACH of judicial review fi rst articulated in Marbury v. Madison frequently puts courts at loggerheads with the political branches of government. In some cases, their relationships follow the

predictable course, as each branch seeks to expand its own power at the

expense of its rivals. But the diverse range of constitutional confl icts,

ancient and modern, make it perilous, even in retrospect, to offer any

generalizations about these power struggles. Indeed, courts often seek to

rid themselves of matters dumped into their lap. Marbury itself sounded

that cautionary trope. It is therefore appropriate to start with Marbury

before turning to the historical evolution of standing.

After Marbury

Chief Justice Marshall was willing to wade where courts could fi nd

demonstrable standards to resolve concrete questions—such as whether

Marbury’s commission had to be delivered to take effect—but quickly

backed off matters that required an exercise of political discretion—such

as whether Marbury should have been appointed in the fi rst place.1 In

making this distinction, Marshall followed the venerable British practice

that reserved the writ of mandamus (“we command”) for nondiscretion-

ary acts. Marshall well understood that courts had no power to initiate

cases. Their province was to decide cases that others initiated, not to

be roving commissions that injected themselves into political disputes.

That was the province of the legislature. Nor could any court exercise

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102 Constitutional Structures: The Judicial Power

the continuous oversight needed to organize national defense. That was

the job of the president. The division of labor undergirds separation of

powers. One inherent limitation on the power of judicial review is that

the courts cannot perform the work of all three branches on their own.

Explicit textual provisions also cordon off certain actions from judi-

cial review. The Constitution provides for a distinct system of impeach-

ment, which involves the cooperative efforts of the House as prosecutor

and the Senate as judge.2 In presidential impeachments, the chief jus-

tice of the Supreme Court presides.3 But no independent judicial review

overrides the fi nal vote of the Senate, for courts cannot interpose their

own view of what types of actions constitute high crimes or misdemean-

ors. Some measure of judicial diffi dence is compelled when the Consti-

tution states, “Each House shall be the Judge of the Elections, Returns,

and Qualifi cations of its Own Members.”4 Likewise, limitation on judi-

cial review follows from the constitutional provision providing that “for

any Speech or Debate in either House, they [the members] shall not be

questioned in any other Place.”5 Similarly, Article IV leaves the Congress

to decide whether new states shall be admitted to the union, subject to

certain limitations against the forced merger of two states.6 And Article

V on constitutional amendments has been read to let Congress, not the

courts, decide whether a state can ratify an amendment that it initially

rejected, thirteen years after it was proposed.7

These provisions are unexceptionable in a world of narrow judicial

review, previously explicated and now discarded, that lets courts superin-

tend their own jurisdiction but does not permit them to oversee the work-

ings of a coordinate branch of government. But asking courts to carve out

further exceptions to their power of judicial review is more problematic in

the absence of any such strict prohibition on their general powers.

From a limited government perspective, a broad conception of judi-

cial review, as sanctifi ed by long usage, is desirable precisely because it

places additional obstacles in the path of new legislation. To be sure, if

all branches of government were equally scrupulous, the endless debate

over who enjoys the last word would be inconsequential because all

public offi cials would act as one in single-minded devotion to the Con-

stitution. But on this side of heaven that type of institutional self-abne-

gation is not in the cards. So the extra hurdle of judicial review is one

way to vindicate the presumption against unbridled state power, which

is one reason why classical liberals speak of its virtues while modern

social democrats put (undue) confi dence in political deliberation.8 But

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Standing 103

what limitations on judicial review are consistent with the expansive

reading of Marbury? This chapter examines one such limitation on judi-

cial review whose very function is to undermine that broad conception:

the doctrine of standing.

Constitutional Pedigree

The power of judicial review under Marbury is subject to one key lim-

itation. The Supreme Court has no power to initiate litigation. It can

only strike down laws in the context of legal disputes. One clear con-

sequence of this view is that the Supreme Court, unlike, for example,

the Massachusetts Supreme Judicial Court, is not in a position to issue

advisory opinions. That point became well established as early as 1793

when the then chief justice, John Jay, in correspondence with Presi-

dent George Washington, refused to issue an advisory opinion on United

States treaty obligations with Great Britain and France. In this instance,

he did not appeal to the doctrine of standing, but instead relied on the

notion of separation of powers when he wrote:

The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.9

A similar issue arose in Hayburn’s Case,10 where congressional legis-

lation sought to charge federal courts with nonjudicial duties in allowing

Revolutionary War veterans to apply for pensions. Three circuit courts

refused to perform this task, and the case was eventually bucked up

to the Supreme Court, which took the position that the Court could

not, consistent with Article III, exercise “any power not in its nature

judicial, or, if judicial, not provided for upon the terms the Constitution

requires.”11 The Congress then avoided a head-to-head confrontation

by amending the statute before it went into effect. Yet once again the

objection to the statute was that it asked courts to perform legislative

tasks. No thought was given to the proposition that the applicants lacked

standing to prosecute their cases, which they surely had even under

today’s rules.

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104 Constitutional Structures: The Judicial Power

These early exercises of judicial restraint therefore do not represent

the kinds of cases and controversies to which the standing requirement

is routinely applied. The idea of standing rests on independent grounds

that can be captured in plain English, wholly without regard to any

distinctive limitation found in Article III. The basic problem is inherent

in all litigation. A complains to B about B’s shabby treatment of C. The

response to A comes back, “You don’t have standing to raise that issue.

Let C speak for herself if she wants to.” The popular response is under-

stood by all not to be a judgment on the merits of the case. It only indi-

cates that the issue was voiced by the wrong person and should thus be

ignored until the right person comes forward.

There is, of course, no reason why a refi ned version of standing

cannot have a critical role in a judicial context, wholly apart from any

doctrine of judicial review, and indeed wholly apart from any refer-

ence to the United States Supreme Court. Indeed, the standing doc-

trine gives rise to such legal knots precisely because its humble origins

are systematically ignored. At the very least, the standing doctrine

blunts, often unnecessarily, the application of Marbury v. Madison, even

in those cases where the Constitution does not assign (as in cases of

impeachment) fi nal authority to either the Congress or the president.

In addition, it spreads so broadly that it is invoked to resolve questions

involving the joinder of proper parties and the choice of remedies that

have little to do with the doctrine in the fi rst place. How this odd state

of affairs came to pass is an object lesson in the pitfalls of constitu-

tional interpretation.

The explanation must begin with the prosaic observation that the

doctrine of standing is one of the most venerable staples of modern con-

stitutional law. The term “standing,” however, makes no appearance in

the text of Article III, where the opening words of Section 2 contem-

plate an expansive vision of the judicial power: “The judicial power shall

extend to all cases, in Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made, or which shall be

made, under their Authority.”12 Following this is a long list of cases and

controversies organized by party (states, citizens, ambassadors) or kind

of case (admiralty or marine jurisdiction). How then did the Supreme

Court create by implication a doctrine to unceremoniously throw cer-

tain parties out of court, not because their cases are defi cient on the

merits, but because they are not in the proper position to sue at all?

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Standing 105

The debate over standing has modest institutional importance so

long as other parties are in a position to take up the battle against spe-

cifi c legislative enactments or executive actions. But the doctrine is so

pernicious because, in some cases, no one counts as a proper party to

press the case forward. And those cases arise far more frequently than

one supposes. For example, the United States Treasury recently paid out

money to Chrysler and General Motors under its Troubled Asset Relief

(TARP) program, which in turn was funneled to pension funds con-

trolled by the United Auto Workers union.13 There was a real statutory

question as to whether these payments were made to “fi nancial institu-

tions,” as required under the TARP legislation. Yet no citizen or taxpayer

was found to have standing to challenge the disbursement under the

odd logic that harm to everyone counts as harm to no one at all.14

The origins of this potent standing doctrine date from two compan-

ion decisions issued in 1923: Massachusetts v. Mellon and Frothingham v.

Mellon.15 At issue was whether Congress could pay United States funds

to the states in order to promote maternal and infant health under

the Maternity Act.16 The two suits sought to enjoin Andrew Mellon,

then treasury secretary, from distributing funds pursuant to his man-

date. But according to the Court, neither the private nor state party

was in a position to protest the illegality. Nor, as it turned out, did any-

one else have the concrete and particularized interest that would allow

the litigation to go forward. In consequence, a program that required a

major transformation of government power under the spending power17

escaped review under Marbury. The implicit shift in power to the politi-

cal branches needs no further comment.

Standing outside Constitutional Law

Before explaining why this decision makes no sense as a matter of either

constitutional law or political theory, it is necessary to take a step back to

examine a question posed earlier: does a standing doctrine make sense

for all courts, not just the federal courts under Article III, which have

limited jurisdiction and a peculiar constitutional pedigree? It does, but

not in the way that Frothingham envisioned.

To see why, start with some history. The English courts have long

adopted a standing doctrine, even though they exercise the type of

unlimited jurisdiction that Article III denies to federal courts. The result

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106 Constitutional Structures: The Judicial Power

is sensible enough. A runs down B with a truck: who should sue for B’s

injury? The right answer is surely B, not some stranger who has wit-

nessed the accident from afar. A more delicate question is whether B’s

spouse or children may sue for any injuries stemming from the disrup-

tion of the family relationship. But the countless persons who knew and

liked B are normally so numerous and far removed from the accident

that it is easier to keep them out of the loop altogether.

So why is standing thought to be an essential part of the constitu-

tional system, as opposed to a practical doctrine? One answer comes

from Judge William Fletcher:

The essence of a true standing question is the following: Does the plain- tiff have a legal right to judicial enforcement of an asserted legal duty? This question should be seen as a question of substantive law, answer- able by reference to the statutory or constitutional provision whose pro- tection is invoked.18

In a similar vein, David Currie writes: “Whether the answer is labeled

‘standing’ or ‘cause of action’, the question is whether the statute or

Constitution implicitly authorizes the plaintiff to sue.”19

Neither position is correct. Saying that B has standing does not

mean that B has a valid claim against A, let alone one based on a statute

or the Constitution. B could lose on the facts if she cannot prove the

negligence that state tort law requires for recovery, or if A shows that C

hit B instead. B could also lose on the law if she tries to rely on a strict

liability theory. Standing only determines who gets to complain about

the loss in the fi rst place, on grounds that could be either wise or foolish.

The merits of the case, both as a matter of fact and law, raise entirely

different issues. Accordingly, standing is best understood from a practical

perspective: the best candidate for standing is a person who is exposed

to a disproportionate fraction of the adverse consequences that allegedly

fl ow from the action of the defendant. In principle that result is so intu-

itive, so utterly unrelated to the esoteric jurisprudence of Article III, that

no one bothers to think about it in routine torts and contracts cases.

A Tripartite Test

The requirement of the disproportionate injury—whereby the individ-

ual plaintiff must show that his harm is greater than and different from

that of the rest of the population—has worked itself into the fabric of the

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Standing 107

federal law of standing, which in its canonical form requires an aggrieved

party to satisfy a tripartite test to press a claim in federal courts. Lujan v.

Defenders of Wildlife20 states the conventional wisdom:

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly trace[able] to the challenged action of the defendant, and not th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”21

A moment’s refl ection will show that each of these three require-

ments is satisfi ed in the simple accident case where A drives his car into

B. Nor does the Constitution have any special defi nition of what counts

as an injury in fact. The ordinary tort system has to decide whether

spouses or other family members suffer disproportionate injuries, which

is generally held to be true for spouses, but not for children.22 In other

contexts, it is necessary to ask whether the destruction of a processing

plant causes disproportionate harm to its major customers, where in

general the law is ambivalent on when to supply a remedy.23 There is no

constitutional magic in dealing with these questions.

And therein lies the rub. A sensible doctrine of standing in cases of

discrete injuries has nothing to do with the language of Article III or the

distinctive role of the federal courts in Frothingham. Nor does it depend,

as Justice Scalia elaborated in Lujan, on the principle of separation of

powers that assigns the enactment of legislation to the Congress and its

enforcement to the president.24 All courts, domestic and foreign, federal

and state, confer control over claims to the party with the largest stake

in them.

Yet the standing doctrine in this form works in only one direction.

For serious isolated injuries, it channels litigation so that the right people

are the only ones with keys to the courthouse. But endowing this stand-

ing rule with a constitutional pedigree is wholly inconsistent with the

language and structure of Article III, on the one hand, and the principle

of judicial review, so critical for maintaining limited government, under

Marbury, on the other. It is yet another instance of misguided original-

ism in the service of a mistaken version of judicial restraint. Article III,

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108 Constitutional Structures: The Judicial Power

Section 2 starts out with a bang: “The judicial power shall extend to

all cases, in Law and Equity.”25 The words “extend” and “all” are not

suitable vehicles for smuggling in a standing limitation. The conven-

tional wisdom then locates Article III’s supposed limitation on the power

of the federal courts in the words “case” and/or “controversy.” These

words have some real pop in cases where either Congress or the presi-

dent seek an advisory opinion from the Court (asking whether a certain

act is constitutional)26 or where the Court is asked to adjudicate a case

that is “moot” because it is already settled. No confl ict, no case, and no

controversy.

The Supreme Court has developed a modest body of law on moot-

ness and ripeness that requires some brief comment. The doctrine of

mootness means just what it says. At the time of decision the case no

longer involves an actual controversy between the two parties because

the issue between them has been mooted or rendered irrelevant because

of a change in events.27 Yet that basic rule does not work well in those

situations where it is said that the matter is “capable of repetition, yet

evading review.”28 Those words were fi rst uttered in connection with a

rate regulation proceeding against a railroad, which raised issues that

were sure to come up again as the Interstate Commerce Commission

exercised its continuing jurisdiction. Thereafter, these words received

their most famous articulation in Roe v. Wade,29 where the Supreme

Court decided to tackle the constitutionality of abortion even though

Roe could not still be carrying a child conceived in 1970. On this point

at least Roe surely seems correct, because the litigation is unnecessary

until there is some prosecution of the operators of an abortion clinic; yet

the litigation is sure to outlast the pregnancy. As a partial solution, the

Supreme Court held that the correct procedure is to raise the constitu-

tional question as a defense in the criminal case, and not by a declar-

atory judgment. Accordingly, the Court refused to hear the request for

declaratory judgment by Dr. Halford, an intervenor in this case who was

subject to criminal prosecution under Texas law.30

The ripeness cases typically follow similar lines, as the Supreme

Court has held that if a case is not “ripe,” there is no standing to bring

it. Thus in United Public Workers v. Mitchell,31 the Court refused to hear

challenges to the Hatch Act, which forbade key federal employees from

participating in political campaigns, that were brought by parties who

desired some guidance on the scope of permissible activities long before

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Standing 109

any criminal case was brought. Once again the decision seems cor-

rect, because it would surely undermine the prohibition against advi-

sory opinions to allow the expedient of joining in the present lawsuit a

potential defendant in some future litigation as a way to secure a judicial

decision. These cases show that the line between advisory opinions and

actual controversies gives rise to some intermediate cases. But it does

nothing to undermine the simple insight that where there is no actual

confl ict, there is no case and no controversy, and hence no federal juris-

diction under Article III.

The Conceptual Problem: Standing in Law and Equity

The big-league confrontation in Frothingham involved neither an effort

to seek an advisory opinion nor a case or controversy that was moot.

In light of the intensity of the dispute, there was controversy galore.

The real question here is how to construe the phrase “cases in law and

equity,” which historically covers the dual system of courts in England

and the United States. It is to ignore history to claim that the “law” side

of the judicial system is the only one that matters. Thus Cass Sunstein

wrongly writes:

In the context of standing, the reluctance to take this step [to expand standing] has been embodied in a private law model of standing—that is, in the idea that standing should be reserved principally to people with common law interests and denied to people without such interests.32

In making this misguided assertion, Sunstein assumes that the com-

mon law model only covers tort-like actions, such as suits against pub-

lic offi cials who seize property in order to foreclose on a tax lien. But

that position confuses one kind of common law action—that for tortious

harm—with the universe of common law actions, which for example

always allowed actions for breach of contract and restitution as well. On

Sunstein’s view, the common law gave “statutory benefi ciaries seeking

judicial relief” short shrift on the ground that their interests were “legal

gratuities.” Yet that remarkable position was never, and could never

have been, the common law. The parity between benefi ts withheld and

harms caused was clearly articulated by Chief Justice Holt in a short

opinion that states: “For wherever a statute enacts anything, or prohib-

its anything, for the advantage of any person, that person shall have a

remedy to recover the advantage given him, or to have satisfaction for

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110 Constitutional Structures: The Judicial Power

the injury done him.”33 There is no reason why standing is any more

problematic when it is the government that refuses to perform its statu-

tory obligation to a private party, like the payment of a contractual debt

or even the payment of a tax refund.

The errors in Sunstein’s position of equating the common law

actions with tort actions is compounded by his failure (not unique to

him) to take into account the profound role of courts of equity in the

judicial system in both the United States and England at the time of the

Founding. A short historical digression sets the background for under-

standing the situation.34 Under the English practice (which carried over

to the United States), the law courts (the King’s Bench, the Exchequer,

and the Court of Common Pleas) shared one feature in common: a

sharply restricted set of remedies. Law courts could order the payment

of damages or the return of property the defendant had taken from the

plaintiff, but virtually nothing else. A complex legal system needs, how-

ever, additional remedies in order to operate effectively. Historically,

equity courts evolved as the Lord Chancellor (the king’s chief legal offi -

cer) fi rst gave relief on an ad hoc basis to aggrieved parties by requiring

defendants to perform certain acts on pain of being held in contempt—

that is, jailed until certain actions were carried out. Later interventions

systematized these remedial rules so that new forms of relief beyond

damages were granted as a matter of course. One was an order of specifi c

performance for a seller to convey land; another was to foreclose a mort-

gage when the underlying debt was unpaid; a third was an injunction to

prohibit the sale of property to third parties. In many cases, both mon-

etary damages from law courts and equitable relief from the chancellor

were available. Indeed, one reason why today’s federal and state judicial

systems have unifi ed the courts of law and equity is to permit judges to

supply both kinds of relief in a single proceeding.35 That reorganization

of judicial business, of course, does nothing to expand or limit the scope

of judicial power under Article III, which always covered both.

For our purposes, however, the key innovations of equity jurispru-

dence did not relate to sales and mortgages, but to the need for fl exible

remedies involving complex organizations such as partnerships, corpo-

rations, and charitable associations. Initially, these organizations were

constituted like limited governments. Their charters permitted them to

perform activities related to their core business, but prohibited them

from performing acts ultra vires, or beyond their powers. The key legal

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Standing 111

challenge was how courts should respond when the offi cers or boards

of directors exceeded their delegated powers under the charter. In

response, courts of equity developed a system of derivative actions that

allowed partners, shareholders, and members of charitable organiza-

tions to block the performance of proposed illegal transactions and undo

the effects of completed illegal transactions. Thus, the Supreme Court

itself has held that stockholders are entitled to relief in equity against

members of a board of directors who refuse to resist the collection of a

tax that might be challenged on constitutional grounds.36

These equitable lawsuits proceeded on assumptions that were dia-

metrically opposed to the damages actions in collision cases. Standing in

cases “at law” required allowing only the aggrieved party in a dispute

with concentrated harms to call the shots. But the great innovations by

courts of equity involved allowing suits by large numbers of dispersed

individuals with identical small stakes—partners of a fi rm, members of

a church, or shareholders in a corporation—none of whom stand out

from the others. If the courts of equity followed the common law rules

on standing, no one could bring the board of directors or the chief execu-

tive offi cer to heel. A wrong to everyone would be a wrong to no person

in particular. The old maxim ubi jus, ibi remedium—where there is a right,

there must be a remedy—would be systematically fl outed in any dispute

involving a broad class of individuals.

The courts of equity invoked their fl exible remedial powers to avoid

this absurd result. Any single partner, shareholder, or member could

institute a class action on behalf of the others to enjoin future ultra vires

acts or to undo (by seeking a return of property) completed ones. A

second set of rules consolidated suits to prevent wasteful duplicative

proceedings that could lead to inconsistent results. To deter frivolous

litigation, the compensation for the class representative was contingent

upon (and increased because of) successful prosecution of the case. That

compensation was collected either from the defendants or from a fund

to which all members of the partnership, corporation, or association

contributed pro rata. This elegant system countered the serious free rid-

ing problems that would arise if the named plaintiff received no reward

for initiating litigation from which all class members gained.

The equitable model of litigation has framed the modern develop-

ment of class action litigation where many diffuse parties have small

but common interests. In line with the basic classical liberal position, it

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112 Constitutional Structures: The Judicial Power

is imperative therefore to look to these class arrangements to see how

governments, like partnerships, corporations, and associations, can be

forced to abide by the limits of their charters. The parallels here are easy

enough to state. Partners, members, and shareholders are like citizens

or taxpayers—persons who have a stake in the overall operation of a

business. The offi cers of these bodies are like members of the executive

branch. The board of directors functions like a legislative body.

So powerful are the analogies that they have been used with great

success at the state level in dealing with abuses of power by local gov-

ernments. The United States Supreme Court, for example, in Crampton v.

Zabriskie,37 let a local taxpayer sue to enjoin illegal government expendi-

tures. Justice Stephen Field concluded emphatically that “it would seem

eminently proper for courts of equity to interfere upon the application

of the tax-payers of a county to prevent the consummation of a wrong,

when the offi cers of those corporations assume, in excess of their pow-

ers, to create burdens upon property-holders.”38 Field found copious

support for that proposition in John F. Dillon’s well-known treatise on

municipal corporations.39 Note that this proposition did not say that

anyone in the world had standing. It was limited to taxpayers, and thus

did not include persons in the next town who might have opposed the

particular expenditure on the ground of the economic inconvenience

that it caused them. After all, it is no concern of theirs that another town

has misapplied its own funds to an unlawful project. So understood,

the broader doctrines of standing did not allow anyone who claimed to

be harmed by actions to sue for that reason alone. The transition from

public to private law was made without a hitch. The only ambiguous

question is whether the right of suit should be limited to taxpayers or

extend to all residents of the town. No big deal, for anyone determined

to challenge government power can surely fi nd someone who falls into

the former category.

The Formative Period: 1920–1940

Taxpayer and Citizen Standing

In light of this history, why does the standing doctrine make suits “at

law” off-limits against executive offi cers who go beyond their powers

under the Constitution? The situation has greater urgency given the

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Standing 113

expanded scope of government activity in the wake of the progressive

revolution. Yet on this issue the law headed off in the wrong direction—

when a unanimous Supreme Court in Frothingham refused, in a decision

written by the conservative Justice George Sutherland, to enjoin the

Treasury’s expenditures under the Maternity Act.

The merits of the dispute turned on the proper reading of the Spend-

ing Clause in Article I: “The Congress shall have Power To lay and collect

Taxes, Duties, Imposts and Excises, and to pay the Debts and to provide

for the common Defence and general Welfare of the United States.”40 The

gist of Frothingham’s challenge was that Congress should not be able to

accomplish through grants under the Spending Clause what it could not

accomplish through direct regulation under the Commerce Clause (as it

was construed in 1923, before the Supreme Court’s 1937 revolution).

The correct reading of “general Welfare of the United States” ensures

that the same goal could not be achieved through the use of tax and/or

spending policies. Permissible expenditures under the Constitution are

tied to the use of public goods, which must be provided to all alike. To

push hard on the corporate analogy, no one would ever say that a trans-

fer payment from one shareholder to another would count as an expen-

diture for the general welfare of the corporation. That label would be

properly reserved for expenditures that the corporation made to lift up

the position of all shareholders simultaneously. The standard business

judgment rule gives the directors much leeway in deciding which pro-

grams achieve that role—at least in the absence of their having entered

into transactions where they stood on both sides of the deal, at which

point the higher “fair value” standard would generally apply. At this

point, the payments under the Maternity Act could not fall within the

business judgment rule for government offi cials because their explicit

purpose was to authorize transfer payments to discrete citizens.

The Maternity Act is thus doubly infi rm under the Spending Clause.

The fi rst constraint is that actions that could not be done by direct regu-

lation under the commerce power cannot be done through taxation and

spending policies. The second constraint, wholly apart from the Com-

merce Clause, is that the internal logic of the Spending Clause blocks

these transfer payments. A correct perception of the interconnection

between regulation and taxation carried the day in another 1923 deci-

sion, the Child Labor Tax Case,41 which held that Congress could not tax

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114 Constitutional Structures: The Judicial Power

fi rms using child labor before they were allowed to send goods (whether

or not made with child labor) into interstate commerce.

The only difference between Frothingham and the Child Labor Tax

Case was that in the latter, the tax was challenged by the party whose

operations were undermined, while in Frothingham the tax was chal-

lenged by a party who protested the way the money would be spent.

That difference in procedural posture became decisive, because Froth-

ingham did not have the same distinct pocketbook interest as the fi rms

in the Child Labor Tax Case. But why should this procedural fi ne point

matter to the larger question of constitutional structure? Sutherland

raised the separation of powers issue—a total nonstarter—that has been

repeatedly invoked to explain the doctrine. But the courts here are not

asked to administer the Maternity Act; they are asked only to decide

whether Congress can make those payments, which it cannot do if the

expenditures are not authorized by the Constitution.

Why, it might be asked, should either Frothingham or Massachu-

setts care if any state can always take the high road and refuse to accept

any tainted federal money? Note the shortcomings of that alternative.

The revenues that the federal government spends are collected from

the citizens of all states, Massachusetts included. Refusing to take the

money does not put those tax dollars back into the hands of Massa-

chusetts taxpayers. It only allows the Congress to increase the program

expenditures to other states. And at this point, the principle of propor-

tionality between income and expenditures is violated, as Massachusetts

citizens are forced to subsidize citizens in states that will take the money.

Unless, therefore, the state or its citizens can enjoin the program, they

will fi nd themselves on the horns of a prisoner’s dilemma. To stay out of

the program is to lose out fi nancially. To participate is to abandon their

constitutional principles.

Letting both citizens and states sue offers a much-needed escape

from that dilemma. Absent standing to enjoin the program, every citizen

and every state will prefer to sup at the federal trough instead of doing

without the benefi ts once the tax has been imposed. Given the standing

barrier, a program that could (and indeed does) fail on constitutional

grounds now succeeds because neither state nor citizen can stop it in its

tracks.

What about the precedents that let citizens and taxpayers enjoin

local programs that are beyond the power of the municipal government?

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Sutherland defl ected that challenge by concluding that Massachusetts

did not raise a “justiciable controversy, either in its own behalf or as

the representative of its citizens.”42 In ordinary English, he thought that

there was nothing to litigate. Thereafter, he brushed aside Crampton v.

Zabriskie and the view articulated in Dillon’s treatise:

But the relation of a taxpayer of the United States to the Federal Gov- ernment is very different [from a local taxpayer to the municipal gov- ernment]. His interest in the moneys of the treasury—partly realized from taxation and partly from other sources—is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fl uctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.43

Sutherland blithely ignores the entire theory of equitable jurisdiction,

where citizen or taxpayer standing becomes ever more imperative pre-

cisely because of the increase in the number of affected parties. So we

have an unusual double. The so-called originalist position ignores the

key words “in equity” to develop an erroneous theory of standing that

lets no one attack a program violating the key structural provision of

limited government.

That misunderstanding of the two heads of federal law had profound

political consequences by narrowing the reach of the federal courts in

dealing with constitutional challenges at the dawn of the administrative

state. Sunstein takes the odd position that these early decisions all count

as part of a conservative plot hatched by judges who were so enam-

ored of the common law rights protected in Lochner v. New York44 and so

invested in the common law system of private rights (which Sunstein

mischaracterizations), that they sought to thwart the expansion of the

administrative state. Thus, Sunstein writes: “The interests of regulated

industries could be protected through the courts, whereas the interests

of regulatory benefi ciaries were to be vindicated through politics or not

at all.”45 His statement, as noted, was wrong with respect to regulatory

benefi ciaries so long as that class is confi ned to the individuals who were

the recipients of statutory rights. But even if that error is put aside, it

is hard to see any conservative drift in the early standing cases. These

cases were decided by unanimous opinions and gave a chilly reception

to novel claims brought by those individuals, like the plaintiffs in Froth-

ingham and Massachusetts, who sought to stop the march of the welfare

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116 Constitutional Structures: The Judicial Power

state. By conventional understanding, Sutherland was a judicial con-

servative from whom the decision read like a technical exercise in pro-

cedural law, not a covert political statement. Today many conservatives

preach the gospel of judicial restraint even with respect to laws that they

oppose on substantive grounds. Just that result may explain the una-

nimity in Frothingham.

Competitor Standing

The desire to challenge legislation on constitutional grounds did not

suddenly disappear when the most obvious class of parties was denied

access to the courts. If the taxpayers cannot protest a grant, how about

a competitor to a fi rm that receives payments from the public treasury?

Here the competitive injury is substantial, and the number of potential

payments is small. By allowing these suits, the number of challenges

to federal programs could be increased, thus closing the standing gap

on judicial review. Yet that avenue was also foreclosed when Justice

Sutherland held in Alabama Power Co. v. Ickes46 that the Alabama Power

Company had no standing to challenge decisions by local governments

to enter into competition with it, even when they were backed by fed-

eral fi nancial support that was beyond the power of the United States

to grant. The payment of state subsidies to private businesses is a key

danger under classical liberal theory. The fear is that public subsidies will

distort competition by driving out private fi rms, which will in time lead

to a government monopoly—think of the regulation of private health

care. But the rival fi rm cannot mount a valid constitutional challenge

that these subsidies are beyond the power of Congress to give. Justice

Sutherland invoked the venerable private law principle of damnum

absque iniuria (harm without legal injury) to deny standing.

Unfortunately, that decision was not a fl uke. The next year, in

Tennessee Electric Power Co. v. Tennessee Valley Authority, eighteen power

companies that supplied hydroelectric power in nine southeastern

states sought to intervene in public utility hearings at which the Ten-

nessee Valley Authority (TVA) sought to attack the constitutionality of

the elaborate government-created regional network for the distribution

of electrical power.47 Once again, that challenge was rebuffed on the

grounds of damnum absque iniuria.48 Similarly, in Ashwander v. Tennessee

Valley Authority,49 Justice Brandeis invoked equitable principles to allow

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standing to challenge a particular contract that a given corporation made

with the TVA, but did not allow the corporation standing to challenge

the constitutionality of the act as a whole. So the attacks are sealed off

from both ends. If citizens and taxpayers cannot protest, and competi-

tors are left silent, a large class of controversial legislation escapes judi-

cial review under Marbury.

Administrative Standing

The overall legal situation becomes clearer, moreover, by noting the

way in which the principle of standing is transformed once the consti-

tutionality of the administrative state is accepted. At this point, the only

viable challenges are to particular decisions that government agencies

have made within the new constitutional order. These challenges are

not meant to upset the apple cart, but to change the owners of partic-

ular apples. As such, each decision, no matter how it comes out, adds

additional legitimacy to the overall framework. In this regard, it is use-

ful to contrast Alabama Power with FCC v. Sanders Brothers Radio Station,50

which arose under the Federal Communications Act of 1934.51 That

statute detailed a procedure that called for comparative hearings to

decide whether a particular applicant was entitled to a license to broad-

cast over a particular frequency.52 The question in Sanders was whether

to grant standing to an incumbent broadcaster who claimed that he

would be harmed because his broadcast area could not support a sec-

ond frequency. So stated, this claim for competitive harm is precisely

the sort that did not give the plaintiff standing in Alabama Power. None-

theless, the court held that under the FCA, the incumbent counted as

a “person aggrieved” whose interests were “adversely affected” by the

grant of the license.

The main purpose for allowing competitive standing was to curb

administrative abuse. But note the political dynamics of that situation.

Challenging a license within the administrative framework explicitly

accepts the constitutionality of the basic scheme. So Congress has no

problem authorizing a suit to ensure that the administrative agency

plays by the rules of the congressional game. Indeed, the Administra-

tive Procedure Act of 1946,53 which consolidated the work of the New

Deal, explicitly stated that any person “adversely affected or aggrieved

by agency action” had standing to seek judicial review.54 Yet at the same

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118 Constitutional Structures: The Judicial Power

time, Congress never authorizes standing on this ground to parties that

seek to challenge the constitutionality of the underlying statute. The

rationale is clear: standing works within the administrative state, but

Congress will never go out of its way to let anyone challenge a statute’s

overall validity.

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Modern Standing Law

THE ORIGINAL CONTOURS of the standing doctrine were articulated in an environment in which the Supreme Court thought that its main function was to insulate the large administrative state from

constitutional challenge, while subjecting decisions made within that

framework to judicial review. After the passage of the Administrative

Procedure Act of 1946 (APA), however, the constitutional landscape

changed radically, for the key constitutional challenges were no lon-

ger based on classical liberal claims for economic liberty (typically dead

losers on the merits in any case after the New Deal and the correspond-

ing shift in the Court’s approach to these claims beginning in 1937).

Instead, a wider range of novel claims upset the initial sharp contrast

between classical liberalism and its modern progressive alternative.1 In

consequence, the relative unanimity of decision found in the formative

period gave way to higher levels of confusion across a wide range of

disparate substantive areas.

Citizen Standing

Frothingham’s restrictive view of standing continues to insulate ques-

tionable government practices from judicial review. In United States v.

Richardson,2 the question was whether a law that required CIA expen-

ditures not be made public violated Article I, Section 9, clause 7 of the

Constitution, which provides that “a regular Statement and Account of

the Receipts and Expenditures of all public Money shall be published

from time to time.” On the merits, it is hard to determine, fi rst, what

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120 Constitutional Structures: The Judicial Power

level of disclosure is required generally under this provision and, sec-

ond, whether exceptions to any such general rule might be applicable

for covert operations. But the fact that the suit is classifi ed as merely a

“generalized citizen grievance” cuts off review of these issues on their

merits by making it impossible to bring them into court—which neces-

sarily undercuts Marbury’s punch on critical matters of judicial review.

The same wrong analysis (without the secrecy overlay) dominated

Schlesinger v. Reservists Committee to Stop the War,3 where the plaintiffs

could not challenge the membership of several members of Congress in

the military reserves under the incompatibility clause of Article I, Sec-

tion 6, clause 2, which states that “no Person holding any Offi ce under

the United States shall be a Member of either House during his Contin-

uance in Offi ce.” Once again, the observation that a “generalized citizen

interest” is not suffi cient to guarantee standing misses the simple point

that if these parties are not allowed to challenge the government action,

then no one can ask whether key practices of government comport with

the Constitution.

Competitive Harm Again

A similar form of the bifurcated treatment of the standing requirement

remains in constitutional cases. To be sure, there are virtually no consti-

tutional challenges to modern economic and social legislation; no one

tries to bring suits to attack the minimum wage, which would instantly

fall apart on the merits. But the second half of the overall picture—

standing in cases of competitive harm—remains an essential part of

the administrative state. These monopoly-preserving suits are typically

a modest application of the Court’s earlier decision in Sanders Brothers,

now put forward under the banner that asks whether the plaintiff suf-

fered “injury in fact” (which disappointed competitors always do) and

whether that injury was “arguably within the zone of protected inter-

ests,” which also tends to be the case.4 To be sure, Congress continues

to hold the whip hand in cases of this sort insofar as it can, by statute,

deny standing to parties that might otherwise meet the injury in fact

and zone of danger requirements. Nonetheless, so long as these lawsuits

do not challenge the constitutionality of the underlying statutes, there

is little reason to block standing in cases where it might improve the

administrative process.

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Naturally enough, the reversal of the broad standing doctrine in

the administrative law context is also intended to protect state-created

monopolies, namely congressionally-blessed agricultural cartels that

divide monopoly rents between producers and distributors. In Block v.

Community Nutrition Institute,5 Justice O’Connor upheld a congressional

prohibition on consumer standing on the grounds that the distributors

would function as the virtual agents for the consumers, an economic

impossibility when distributors share with producers the desire to main-

tain high prices while only consumers desire low ones. The denial of

standing to sue can be used to insulate progressive programs from judi-

cial review, and can do the same for state-run cartels.

Reapportionment

The veritable explosion of new rights since the Warren Court, however,

has tended to direct attention away from traditional cases dealing with

economic liberties. For example, the question of citizen (or at least voter)

standing came to the fore in the reapportionment cases. These cases

challenged corrupt districting practices, maintained by small but domi-

nant political factions, which systematically allowed less populous rural

districts to have ten or twenty times the political clout of more heavily

populated urban ones. This system gave these less populous districts the

ability to redistribute local expenditures, such as roads and public works

projects, in their direction. The obvious challenge was that the political

power of voters in more populous districts had been willfully “debased”

or “diluted” by corrupt state districting practices.

In Baker v. Carr6—a case better known for its treatment of the polit-

ical question doctrine—the question was whether the plaintiff voters

from disadvantaged districts had standing to challenge the system. In

any sane system of standing, these diffuse claims should be ripe for

judicial review if any impacted party wishes to bring them. But under

Frothingham, it appears that since all voters in populous districts were

aggrieved, none should have had standing. After all, the outcome in

Frothingham would not have changed if the named plaintiff brought

her challenge as a representative of a large class of disaffected Massa-

chusetts citizens.

But in Baker, Justice Brennan (with a clear eye to the bottom line)

concluded that all citizens have “a plain, direct and adequate interest in

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122 Constitutional Structures: The Judicial Power

maintaining the effectiveness of their votes,” which was not “merely a

claim of the right possessed by every citizen to require that the govern-

ment be administered according to law. . . .”7 Frothingham was never

mentioned. Why all citizens have standing was left unexplained, except

in a general appeal to Marbury for the proposition that “the very essence

of civil liberty certainly consists in the right of every individual to claim

the protection of the laws, whenever he receives an injury.”8 That sen-

tence should have been followed by the question of whether the same

diffi culties that stood in the way of citizen and taxpayer standing applied

here, given that each vote is necessarily only a small part of the larger

picture. But all these questions about whether the individual claims had

reached a suffi cient magnitude were ignored. An opinion that should

have overturned Frothingham allowed that issue to pass by in silence.

Establishment Clause

The legacy of Frothingham has also generated confusion over challenges

to government programs under the Establishment Clause of the First

Amendment (“Congress shall make no law respecting an establishment

of religion. . . .”). Any sensible reading surely contemplates a wide range

of diffuse public injuries for which injunctive relief seems appropriate.

No one may suffer tangible harm if the Congress designates an offi cial

religion for the United States, yet surely someone should be able to chal-

lenge that designation. The same must be said of those potential Estab-

lishment Clause violations where the federal government gives some

improper preference or support to certain religious activities.

The Establishment Clause has been applied against the states, where

challenges are not constrained by the Article III standing doctrine. That

difference in forum matters. The fi rst of the modern Establishment

Clause cases, Everson v. Board of Education of the Township of Ewing,9 arose

in state court when a local taxpayer challenged local expenditures used

for busing children to parochial school. Freed of the shackles of federal

standing, fi rst the New Jersey Supreme Court and then the United States

Supreme Court went directly to the merits of the program. Ultimately,

the Supreme Court, by a fi ve-to-four vote, found that the expenditures

on religious activities were permissible so long as they were part of a

comprehensive program also involving nonreligious institutions. The

question was interesting and the decision close on the merits, and the

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noticeable absence of procedural hurdles added clarity to the process,

without creating unexpected procedural or doctrinal complications.

Unfortunately, that clarity has not been replicated at the federal

level. Flast v. Cohen10 involved a challenge in federal court under the

Establishment Clause to federal aid supplied to religious educational

institutions under the Elementary and Secondary Education Act of

1965.11 Flast looks like a rerun of Frothingham. The plaintiff emerged

victorious, but not on any general theory of taxpayer or citizen stand-

ing. Instead, Chief Justice Earl Warren crafted an ad hoc exception to

Frothingham because of a supposed “logical link” or “nexus” between

taxpayers and these religion-bound dollars, which rendered their losses

more than “incidental.”12 Indeed, the Establishment Clause addressed

the fear “that the taxing and spending power would be used to favor one

religion over another or to support religion in general.”13 But Warren

offered no explanation as to why the Spending Clause did not address a

similar transfer of wealth across states under the Maternity Act at issue

in Frothingham.14

Flast now reads like a historical curiosity, as its authority has been

eroded, albeit for all the wrong reasons. Two cases mark its erratic decline.

First, in Valley Forge Christian College v. Americans United for separation of

Church & State,15 the Defense Department gave away excess property to

Valley Forge, claiming that this transfer created an indirect public ben-

efi t. The plaintiff group sought taxpayer standing to block the transfer

under the Establishment Clause. Why, in a word, is the gift of prop-

erty different from the gift of cash that allows its purchase? Apparently

because this action took place pursuant to Congress’s power to dispose

of excess property under Article IV, Section 3, clause 2, the Property

Clause—“The Congress shall have [the] Power to dispose of . . . Property

belonging to the United States.” But Justice Rehnquist never explained

why the Establishment Clause did not apply equally to all exercises of

congressional power. Instead, in denying standing to the respondents, he

resorted to an empirically dubious claim: that the direct injury require-

ment of the standing doctrine “tends to assure that the legal questions

presented to the court will be resolved, not in the rarefi ed atmosphere

of a debating society, but in a concrete factual context conducive to a

realistic appreciation of the consequences of judicial action.”16 Hollow

words, for what element of concreteness was missing here, or for that

matter in Frothingham, where all the facts were of public record? And

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124 Constitutional Structures: The Judicial Power

who better to attack a government giveaway program than an activist

institution fully devoted to the separation of church and state, willing

to litigate the standing issue clear up to the Supreme Court? Certainly

not a disappointed applicant for government property, suffering a loss of

only a few dollars as a consequence of not receiving the property.

The next chapter in this unfortunate progression was the Court’s

2007 capitulation in Hein v. Freedom from Religion Foundation.17 Hein asked

whether the Flast exception allowed taxpayers to challenge executive

branch expenditures in support of faith-based initiatives pursuant to

general statutory guidelines. The justices divided into three camps—all of

which were mistaken. Justice Samuel Alito, writing for the chief justice

and Justice Kennedy, refused to extend Flast to these discretionary exec-

utive acts, but never explained why they pose a smaller risk of wealth

transfer than the legislation pursuant to which these transfers were

made. The position is an indefensible form of minimalism that refuses

to address fi rst principles. Justices Scalia and Thomas rightly rejected

the distinction between legislative and executive action, but wanted to

overrule Flast, only after belittling serious concerns about constitutional

structure by treating them, wrongly, as a form of “mental displeasure.”18

Third, an uneasy coalition led by Justice Souter, speaking for Justices

Stevens, Ginsburg, and Breyer, argued that Flast governed, but refused

to jettison the limitation on taxpayer standing across the board.

More recently, in Arizona Christian School Tuition Organization v.

Winn,19 yet another fi ve-to-four decision, the Supreme Court contin-

ued the evisceration of what was left of Flast. In Winn, a group of civil

liberties organizations challenged an Arizona statute that supplied tax

credits to private individuals who made contributions to school tuition

organizations, or STOs, which were worth an estimated $50 million per

annum. The plaintiffs argued that Flast permitted no meaningful distinc-

tion between government expenditures and STOs, even though both

are mechanisms by which public funds are funneled to designated secu-

lar and religious organizations. The fi ve-member conservative majority

distinguished Flast and refused to allow the challenge to go forward on

embarrassingly thin standing grounds. Justice Kennedy fi rst repeated

the common mistake that purports to link standing with separation of

powers,20 even though a sensible standing doctrine has a vital role to

play in courts of unlimited jurisdiction. He then backed up that fl awed

institutional rationale with this novel economic reasoning: “tax credits

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and governmental expenditures do not both implicate individual tax-

payers in sectarian activities. A dissenter whose tax dollars are ‘extracted

and spent’ knows that he has in some small measure been made to con-

tribute to an establishment in violation of conscience.”21

This passage misses the basic point that the plaintiffs’ objection is

not to the method of transfer but to the fact of transfer. The very fact

that these plaintiffs mounted this suit shows that Justice Kagan in dis-

sent had to be right in concluding that “[t]axpayers who oppose state aid

of religion have equal reason to protest whether that aid fl ows from the

one form of subsidy or the other.”22 On this score the predictable dissent

of Justices Scalia and Thomas calling for overruling Flast has the virtue

of consistency. But it also has the greater vice of blocking the coherent

application of judicial review. There is no need to preserve an inexcus-

able doctrinal muddle that compares unfavorably with the universal

state taxpayer standing rule in Everson.

Environmental Harms

Other strands of modern standing doctrine are no tidier. The early envi-

ronmental cases quickly applied the “zone of interest” test that originated

in the economic harm cases to environmental harms. The only wrinkle

in this context was to fi nd the “injury in fact” infl icted on the party who

sought to enjoin government offi cials from approving various projects.

In Sierra Club v. Morton,23 the Sierra Club objected to the decision

of the United States Forest Service to allow roads and power lines to

be built over Sequoia National Park for the benefi t of the Walt Disney

Company’s Mineral King Ski Resort. The decision did not contest the

proposition that anyone who used the national park could object to

the project because of its impact on aesthetic or recreational interests.

But the Court refused to allow standing to any person who was simply

concerned with whether the park was used to enable nearby develop-

ment without using the park himself. The entire distinction seems idle

because so long as we know that many people will use the park, why

should we think that the Sierra Club will not represent their interests

given its own enormous institutional stake in environmental issues? The

standing decision reached by the Court was pointlessly persnickety.

None of the ostensible standing barriers mentioned in Sierra Club

place a real dent in the ability of fringe groups to enjoin public projects.

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126 Constitutional Structures: The Judicial Power

The key diffi culty is not with standing per se, but with the set of admin-

istrative procedures used to make decisions about the use of public lands.

Here, all segments of the public have a legitimate interest, so that no

single faction can demand the whip hand as of right. Any sensible legal

regime for the development of public property must, accordingly, allow

these individuals and interest groups to have some input into the process.

Participation dominates ownership entitlements. But it hardly follows

from this point that the parties who have a right to appear before the rele-

vant government body should be granted an automatic right to challenge

its decision in court when they disagree with the outcome, a topic that I

shall address in Chapter 20 in connection with procedural due process.

But the political dynamics of unrestricted challenges do require special

mention. Broad standing rules necessarily will give a systematic advan-

tage to those outliers who oppose the project. Quite simply, a protected

right of appeal gives them a free option of imposing time and money costs

on those parties who succeeded in the administrative process.

These crosscurrents are all too evident in litigation under the Endan-

gered Species Act. Thus in Lujan v. Defenders of Wildlife,24 Justice Antonin

Scalia was faced with deciding whether individual plaintiffs could chal-

lenge a determination by the secretary of the interior holding that Sec-

tion 7 of the 1973 Endangered Species Act25 (ESA) was “applicable only

to actions within the United States or on the high seas,”26 but not to proj-

ects funded by the United States on foreign soil. The statutory language

did not specify the territorial reach of the ESA. The plaintiff environmen-

tal groups sought to enforce the broader reading of the statute, under

which American agencies doing business in foreign nations or on the

high seas had to consult with either the secretary of the interior or the

secretary of commerce to address the position of endangered or threat-

ened species. The case raises no substantive constitutional issues, for no

one doubts that the legislation could have been drafted either to compel

or prohibit the use of this consultation mechanism for overseas ventures.

In principle, then, some person should be able to challenge the

refusal of the government to implement the law. Without Frothingham,

there is no obstacle to standing. With it in place, Lujan gave rise to an

effort to “fi nd” a private interest that allows for the case to be decided

on the merits. To meet the supposed constitutional standard of a protect-

able interest, the plaintiffs mounted a two-pronged attack. First, one of

the named plaintiffs indicated that she had visited Sri Lanka, one of the

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Modern Standing Law 127

places where the disputed projects had been undertaken, and that she

would be prepared to return there in the future. Second, the plaintiffs

insisted that citizen suits were authorized by Congress under an explicit

statutory provision that allowed “any person” to bring suit on his own

behalf “to enjoin” the activities of the United States.27

Justice Scalia then applied this conventional wisdom in ways that

drained the requirement of individualized personal injury of all substan-

tive content. He emphatically rejected “as beyond all reason” the view

that an individual could claim standing by proving that he habitually

goes to the Bronx Zoo to see an endangered species that lives overseas.

But surprisingly, Scalia allowed standing for anyone who “observes or

works with” a particular endangered species. At this point, the entire

exercise becomes a shell game, for an organization need only rummage

through its Rolodex to fi nd a suitable plaintiff who has purchased the

right airplane ticket. Yet even when that is done, a question remains

whether the consultation procedures required are limited only to that

species or whether they apply to all others as well. Allow one person to

trigger the entire statute, and the requirement of standing is reduced

to a pitiable formality. Limit the inquiry to the harms alleged, and the

ESA becomes an administrative jumble. So why not make life simple?

Just say the following: any citizen has standing to challenge regulations

that exceed the permissible scope of statutory authority. If the claim is

rejected on the ground that the statute has no extraterritorial reach,

the inquiry is at an end. But if it is determined that the ESA has extra-

territorial reach, the only remedy that need be granted at the time is a

requirement that the regulations be altered to say so. All individual dis-

putes about elephants in Sri Lanka could wait until another day when

the matter is ripe for that dispute.

Congress took steps in that sensible direction with Section 7(a)(2)

of the ESA, which conferred standing on any citizen to enjoin actions

that were inconsistent with the ESA. But in Lujan, Justice Scalia took

the view that standing was not merely a prudential feature in litigation

brought under Article III, but a structural one as well, which meant that

Congress could not constitutionally alter the supposed rules governing

separation of powers by instructing courts to hear these cases.28 Scalia’s

major premise is one correct application of the rule in Marbury that the

Congress cannot force the courts to assume jurisdiction over types of

cases that are outside the scope of Article III. But this rule is applied

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128 Constitutional Structures: The Judicial Power

in the wrong context. Using the correct doctrine of standing, Congress

need not authorize actions that already fall within the scope of Arti-

cle III. The Court’s jurisdiction exists unless some independent reason

removes these cases from the fold.

It is at just this juncture that issues of redressability enter into the

equation, not as part of the doctrine of standing, but as a standard that

any court should entertain whenever it considers the provision of equi-

table relief, where it is always an open question whether the proper

relief can be given if certain necessary or indispensable parties are not

joined.29 Lujan is of course framed as a request for equitable relief—to

require certain government actions. On this issue the same principles

of equity apply to all cases regardless of whether they are brought in

state or federal court. At this point, the paramount question is whether

courts of equity have suffi cient remedial powers to undertake the reme-

dial function demanded of them. The problem of continuing oversight

of compliance with a potential injunction that was so critical in Lujan

did not surface in Frothingham, where the plaintiffs only sought to shut

down a public program once and for all.

These monitoring issues do not go to the issue of standing, but they

do shape the exercise of equitable jurisdiction in any court. Tradition-

ally, for example, courts of equity were reluctant to order specifi c perfor-

mance of employment contracts on the ground that they did not wish to

incur the burdens of constant oversight of private decisions.30 But in the

employment context, actions for damages, and even injunctions against

third persons who interfere with existing employment contracts can fi ll

in that enforcement gap by reducing the incentives of any employee to

breach his or her contract.31 No such luxury remains, however, when-

ever a judicial refusal to resolve the issue of statutory scope leaves the

disappointed party with no recourse at all. In addition, since the ques-

tion here is simply one of law, no court should defer to the supposed

expertise of administrative agencies, as is commonly done under today’s

Chevron doctrine.32 The proper attitude is found in Section 706 of the

APA, which rightly reserves interpretive questions of law to the courts.33

Accordingly, the “redressability” prong of the general standing test

is relevant to the outcome of the case, not because it goes to some sup-

posed constitutional issue of standing, but because it goes to the general

question that plagues all courts of equity—can they administer the sort

of relief that they think is required? Courts should face this question

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head-on with sound judicial discretion without converting it into a con-

stitutional issue. Accordingly, in the absence of congressional direction,

they can act within their power like any other court of equity, by declin-

ing to exercise their jurisdiction if they think that the task of supervision

is untenable.

In the end, therefore, Lujan would be correct in its outcome only if

a court of equity should dismiss the case because all the parties who may

be bound or hurt by the decision are not present—a result which makes

it proper not to allow, for example, a civil rights organization to question

a tax exemption for a racially segregated institution that is not party to

the proceedings. Standing should be denied, as it has been, because the

targeted institution is not made a party to the case even though its rights

are obviously affected.34 The same is true of citizen suits to remove a

hospital’s tax exemption for the failure to provide suffi cient charitable

services.35 And both of these suits should be tossed out in state courts

as well.

An important recent Supreme Court standing decision, Massachu-

setts v. Environmental Protection Agency,36 evidences a more generous spirit

on the question of standing, without any serious recalibration of the

basic approach. The Clean Air Act requires the EPA to prescribe stan-

dards applicable to emissions of “any air pollutant” from any class of

new motor vehicles which—in the EPA administrator’s judgment—have

caused or contributed to air pollution reasonably anticipated to endan-

ger public health or welfare.37 The question in the case was whether

individual states could force the EPA to conduct rulemaking proceedings

with regard to the emission of six “greenhouse gases” on the ground that

these were “air pollutants” under the act.

The question whether carbon dioxide counts as a pollutant plays

no role in framing the standing question. At fi rst look, Massachusetts v.

Mellon38 seems to control on the issues of both citizen and state stand-

ing. Nonetheless, Justice Stevens artfully found that Massachusetts suf-

fered a concrete injury from the potential further erosion of its coastal

land, much of which was state owned, due to rising sea levels caused by

climate change. Putting the claim in this fashion fi nessed Massachusetts

v. Mellon, because here the state alleged damage to its property or its

“dominion over physical domain,” rather than raising just a generalized

objection to a federal spending program.39 On this view, a private owner

of coastal land should be in the same position as the state.

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130 Constitutional Structures: The Judicial Power

Yet ironically, this case is less amenable to judicial resolution than

Frothingham, even if standing is conceded. The only relief sought in

Frothingham was an injunction of the expenditures under the Shep-

pard-Towner Maternity Act of 1921.40 In Massachusetts v. EPA, the form

of relief sought was far more complex, because the court order required

the EPA to undertake a complex substantive review that (at the time

at least) it did not want to do, without any clear sense of what would

happen if that review did not meet federal standards. Under the Clean

Air Act, this looks like a reach: the EPA’s statutory duty is not categori-

cal. Quite the opposite—it kicks in only if “in the [EPA] Administrator’s

judgment,”41 carbon dioxide emissions pose a signifi cant threat to global

warming. Wading into that dispute taxes the institutional capabilities of

the Court far more than Frothingham’s simple claim that the legislation

was ultra vires. It is therefore at least reasonable to read the jurisdictional

mandate in the Clean Air Act to require at most the administrator’s

good faith preliminary review of the matter, but not a full-scale hearing.

Standing or no, therefore, the plaintiffs should lose on the merits unless

they could establish that the EPA was acting in bad faith, which does not

seem credible in light of its exhaustive review of the matter.

Justice Stevens was sensitive to those concerns, but held that the

only grounds to decline to regulate had to relate to the scientifi c ques-

tions surrounding carbon dioxide emissions and global warming. Pru-

dential matters that inform a full consideration of such issues, including

the harmonization of the United States with global governance, were

not suffi cient. Justice Stevens’s view cuts the administrator very little

slack in an area where Congress seems to have given him a great deal

more: nothing seems to prevent the administrator from making a deci-

sion on the merits that a further comprehensive investigation is not

required on scientifi c grounds. In the end, therefore, the real objection

to Massachusetts v. EPA is not over its standing decision. Rather, it goes

to the critical question of whether carbon dioxide, when produced in

excessive quantities, counts as a pollutant under the Clean Air Act. In

my view, the answer is no.42 The key objection to the extension of the

CAA would only go to matters of redressability, which is commonly if

mistakenly treated as one of the three prongs of modern standing law.

Yet in this context, the point, even if relevant to the exercise of judicial

power under Article III, is not diffi cult because the EPA is only ordered

to consider the matter further, not to change the rules. With the shift

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Modern Standing Law 131

in political administration, the standing issue was of little consequence.

Not so with the decision to label carbon dioxide a pollutant, which has

worked a major expansion of the CAA that will doubtless raise many

collateral challenges of its own, unconnected to the standing question.

These issues of social control become even more acute where the

effort is not to regulate some common feature of the environment, but

rather to regulate ordinary development on private lands. This open-

ended standing requirement goes hand in hand with the progressive

vision that treats broad community veto rights over all new real estate

development as essential to sound land planning in both urban and rural

settings. The broad defi nition of standing allows people who cannot stop

a new project for its smells and discharges to get a new lease on life in

the administrative process. Now a welter of aesthetic interests, dealing

with size, mass, color, location, access, and design, are properly before

the government. I am uneasy, to say the least, to allow any administra-

tive agency these powers. The proper course of action is for government

bodies to condemn a restrictive covenant over property if they are so

concerned with these matters. But the liberal standing rules compound

the dangers of excessive administrative oversight. No longer is it just the

median voter who can veto land use development. Now the most ardent

opponent of the project gets the whip hand. The fringes take over.

In sum, the historical evolution of standing from a constitutional doc-

trine to an administrative law doctrine reveals a deep connection to

the choice between classical liberal and modern social democratic the-

ories of government. Within the classical liberal model, any one person

should be able to enjoin the operation of an unconstitutional statute,

even if everyone else is in favor of it. That proposition follows from the

antimajoritarian theory of government and the integrity of structural

limitations. Rejecting that position at the dawn of the modern adminis-

trative state thus removed one obstacle to the expansion of the overall

size of government.

The game changes, however, when the relevant inquiry only con-

cerns who gets to determine how to implement a statute that passes

constitutional muster. In Lujan, environmental groups sought to force

the government to expand its activities by challenging its narrow read-

ing on a question of law. In other environmental cases, the power

of Congress to expand citizen standing has had, paradoxically, the

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132 Constitutional Structures: The Judicial Power

unfortunate effect of undermining politically responsible institutions

even when there is no constitutional defect in their actions. Thus many

modern environmental statutes give citizens direct enforcement rights

when government administrators choose not to act.43 These are exactly

the sorts of cases where standing ought not to be conferred on private

groups because of the risk of creating a one-way ratchet. Any system of

civil or criminal prosecution involves irreducible elements of discretion.

The effect of an unlimited standing rule is to invite parties on the polit-

ical fringe to displace the judgment of political actors who are likely to

be more closely aligned with general public sentiment. How ironic that

current law stops private litigation on standing when it is strictly neces-

sary to preserve limited government but allows those suits that tend to

undermine the stability of the median voter on matters that are better

left to democratic choice.

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The Political Question Doctrine

STANDING POSES the initial procedural barrier to all litigants who seek to have their cases heard on the merits. Once it is overcome, the second constitutional obstacle to an adjudication on the merits is the

political question doctrine. That doctrine asks whether a court should

deem the case “nonjusticiable” (incapable of judicial resolution) on the

ground that its resolution properly falls within the province of the Con-

gress or the president.

Origins

The political question doctrine made an early debut in American consti-

tutional law even under the restrictive version of the federal judicial role

articulated in Marbury v. Madison, which only allows the Supreme Court

to protect itself from having to take on cases that do not fall within its

appellate or original jurisdiction.1 Thus even though many cases meet

all of the jurisdictional elements of Article III, the Court is not obligated

to decide them. As Chief Justice Marshall concluded, these particular

controversies are not amenable to judicial resolution because “the Pres-

ident is invested with certain important political powers, in the exercise

of which he is to use his own discretion, and is accountable only to his

country in his political character, and to his own conscience.”2 Powers

are treated as “political” when “[t]hey respect the nation, not individual

rights, and being entrusted to the executive, the decision of the execu-

tive is conclusive.”3 It turns out that this line between collective goods

(with respect to the nation) and individual rights is an excellent fi rst cut

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134 Constitutional Structures: The Judicial Power

at the larger question of which questions are amenable to resolution in

the judicial forum.

One obvious political question was whether to nominate Marbury

or anyone else to a judicial position; a weightier political power is the

authority to negotiate treaties on matters of war and peace, where it is

for the executive to make decisions that bind the entire nation, includ-

ing its passionate dissenters. Another such political question is how and

when to declare and wage war, where the responsibilities are divided

between the president and the Congress. In one sense, these political

actions supply the classic public goods of economic theory, which—like

military defense—if provided to one are necessarily provided to all. But

they are also the classical political mixed goods (which people want)

and bads (which they would rather not have) because dissenters are

required to pay tax dollars for collective endeavors that they oppose.

In politics, losers abound no matter the outcome: no decision of any

court can ease the pain of this visible downside of public deliberation.

Nonetheless, given the collective nature of the decision, the correct

solution does not give the minority a veto power, but only the right to

participate in public deliberations in Congress and elsewhere before the

decision is made.

That situation is hardly novel, for it represents the identical solu-

tion used in corporate contexts where collective decisions by majority

vote follow deliberations under a standard practice that never allows the

majority to shut off debate before all points of view have been heard.

It is for just this reason that it is mistaken to use a broad defi nition of

public good that covers, for example, private decisions by employers and

employees, simply because this relationship is all pervasive. So long as

each pair of parties can form its own private understandings in ways that

allow others to do the same with respect to their own relationship, those

numerous relationships are private, not public, and should be treated as

such. The Supreme Court went down the wrong track when it intimated

its happiness with a broader defi nition. As Justice Joseph McKenna once

sagely noted, “In some degree, the public interest is concerned in every

transaction between men, the sum of the transactions constituting the

activities of life.”4

Given the differences in possible view, the stakes are high in any

effort to delineate the boundary line between individual rights and

national political affairs. The most comprehensive statement of the

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The Political Question Doctrine 135

appropriate test comes from Justice Brennan’s opinion in Baker v. Carr—

which dealt with malapportionment in districting for state elections. His

formulation, which has achieved canonical status, holds that this doc-

trine applies when there is

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent res- olution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a polit- ical decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.5

The reference to “the respect due coordinate branches” shows

that the defensive conception of judicial review deriving from Marbury

remains very much alive. Indeed Brennan’s standards bite with special

force in the foreign policy arena, where judicial intervention could easily

complicate executive branch decisions. Those issues can be so important

that it is unwise to have courts render any decision that could compro-

mise general treaty obligations—which can only be negotiated with a

keen appreciation of the relevant set of trade-offs. For example, courts

have held that domestic antitrust laws do not apply to the OPEC oil

cartel because the United States government has to engage constantly

with its members on a sovereign-to-sovereign basis.6 It is just too risky

to attack cartels when the international community is so bitterly divided

on the issue of their legality.

Yet it hardly follows that the political branches should be afforded

the same level of deference regarding domestic issues where both federal

and state governments are subject to a single constitution. The constitu-

tional provision that most reveals the delicate relationship between the

federal and state governments is the Guarantee Clause, which reads as

follows: “The United States shall guarantee to every State in this Union a

Republican Form of Government, and shall protect each of them against

Invasion; and on Application of the Legislature, or of the Executive

(when the Legislature cannot be convened) against domestic Violence.”7

The section contains strong classical liberal themes in its preferred form

of government. It also speaks about both foreign invasion and domestic

violence as the chief threats to that government. On matters of foreign

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136 Constitutional Structures: The Judicial Power

invasion, it is taken for granted that the United States will intervene mil-

itarily, given the common threat. On matters of domestic violence, the

response is more nuanced because the state has to apply for assistance,

which in some cases it may not want or need. To be sure, the second

clause is maddeningly vague as to whether the state’s application for pro-

tection—through either its legislature or governor—should be addressed

to the president or the Congress. But since invasions and violence can

erupt at any time, Marshall’s instinct in Marbury looks right: the applica-

tion “to suppress insurrections” should be made to the president in his

role as commander-in-chief, but—revealing shades of checks and bal-

ances—only pursuant to the authority vested in him by Congress.8 The

political branches control at both levels of government, and at fi rst blush

it looks as if there is no sensible role for judicial involvement. The polit-

ical question doctrine thus seems to have a natural home in these cases.

This judgment, however, leaves open the delicate question of how

the fi rst part of the Guarantee Clause is applied once the risks of violence

and invasion have given way to claims for the vindication of individual

rights—where Marshall did see a judicial role—that arose out of past

confl icts. The issue came to a head in the 1849 case Luther v. Borden.9

That matter arose out of “traitor” Thomas Wilson Dorr’s rebellion of

1842, after which he was made governor for a short time before being

repulsed, captured, and prosecuted by the prior state government. The

plaintiff, a citizen of Massachusetts and a collaborator of Dorr’s, brought

an action for trespass against the defendants, all citizens of Rhode Island,

seeking recovery for property damage caused by breaking and entering.

Personal jurisdiction over the case was therefore established on grounds

of diversity—those cases that arise between citizens of different states.

Standing was established by the evident property damage. The defen-

dants could not credibly deny the charge of deliberate trespass, but they

could justify it by claiming that they acted as the lawful sovereign to

quell the incipient rebellion, which sought to extend the franchise more

broadly than was allowed under the established or “chartered” govern-

ment—in continuous power since the Charter of 1663. The United States

did not intervene with military force, but it did make a public statement

favoring the chartered government, which prevailed in the confl ict.

Once the confl ict was over, neither executive nor legislative action

was possible or appropriate. Thus the only issue before the United

States Supreme Court, like the lower federal court, was which faction

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The Political Question Doctrine 137

governed in the aftermath of a failed insurrection against an incumbent

government. Unfortunately, the failure to sharpen the issue means that

Luther is commonly read to stand for the proposition that the adjudica-

tion of any question pertaining to sovereignty is a political question that

should be left to the political branches of government—here, Congress

and the president—even though the Court had unquestioned (diversity)

jurisdiction over the case. There are passages in the decision that point

in this direction,10 but a more accurate account of the decision is that the

federal courts should not decide that question because it was better left

to the state tribunals that had already ruled against Dorr and in favor of

the charter government.11

In such situations, however, there is no reason to assume that the

Supreme Court is unable to handle the question of who is in charge if

the state courts are silent or have issued confl icting opinions. The con-

cern here is about the untoward consequences of judicial intervention.

There was, of course, no special impact of the litigation on the parties to

the suit, for the damages requested of the defendant, if granted, could

have been collected in the standard way, or by judgment lien if neces-

sary. Administrability was not an issue, as it is with equitable decrees

that require continuous judicial supervision. The real issue, therefore,

is only with collateral consequences on third parties and public institu-

tions. Yet even these could cut in either direction.

Justice Taney was surely correct to note the huge dislocations that

take place whenever the decisions of any legislature (including the brief

Dorr interlude) are dismissed as “nullities,” for it draws into question the

legality of both taxes collected and salaries paid, and thus can precipitate

a veritable barrage of litigation over tax refunds and unpaid salaries.12

Yet those uncertainties persist even if the Court refuses to decide the

case, and without an authoritative determination, no one knows the

legal rights of the parties. Does the political question doctrine only strike

the defense, in which case the damages should be awarded? Or does it

lead, as it did in Luther, to the dismissal of the entire case, which has the

same immediate effect as allowing the judgment?

But why rejoice in this ambiguity? Disagreements over the sharing

of power are common in disputes when churches or corporations break

up. If the parties cannot resolve their differences among themselves,

their only recourse is to a court of general jurisdiction, which has to

sort out the claims as best as it can. Rarely is it done perfectly; but it

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138 Constitutional Structures: The Judicial Power

is done. And Luther is a factually easy case. The case does not involve

two rival claimants who enter an unoccupied territory at the same time.

The established government was under attack, and its legislature had

received the presidential vote of confi dence. The equities would be more

delicate if the insurgents had retained power, backed by the support of

the president or Congress. The operative principle here is that the courts,

in resolving individual disputes over property rights, should not oppose

the president, who has primary responsibility for the execution of fed-

eral policy. But there is no reason why a judicial decision on the merits

should not rely on the federal determination to support the incumbent,

given the general legal presumption in favor of the legitimate sover-

eign status of incumbent governments. Certainly there is no reason to

support the insurgents because they sought a broader franchise, given

that republican principles place powerful limitations on the universal

franchise. The central question is not whether the new government is

better than the old. Rather it is which government had temporal prior-

ity, which is clearly answered in accordance with the familiar principle

that prior in time is higher in right.

Accepting that Luther should have rejected a political question

defense does not resolve all questions about the scope of the Guarantee

Clause. After all, the fi rst half of the clause dealing with the republican

form of government has some bite even in the absence of invasion or

domestic violence. It looks as if the “United States” must ensure that the

state, by internal political machinations, does not deprive its citizens of

the benefi t of republican institutions, as by the formation of a military

dictatorship by popular consent.

However, in Pacifi c States Telephone & Telegraph Co. v. Oregon,13 the

Court took the opposite tack and refused to decide that state referenda

offended republican principles because they allowed people to make laws

while bypassing the legislature. Yet why decline to answer this ques-

tion, for surely it is no more diffi cult than countless others that arise

under the Constitution? It cannot be for remedial reasons, as the inval-

idation of a procedure that is the embodiment of direct democracy does

not require the kind of continuous supervision needed in other contexts.

For this decision to make sense, it must rest on some reasoned argument

that referenda, in at least some forms and at some times, are consis-

tent with republican principles. The appropriate line of argument would

have to show that the distortions in referenda are smaller than those

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The Political Question Doctrine 139

in legislation, an issue on which no one can speak with confi dence—

for so much depends on performance levels that can vary from state to

state—and one about which views can and do differ sharply.14 In the end,

therefore, the case against judicial intervention rests on the diffi culty of

coming up with norms for intervention that work across all states.

Modern Applications

The passive decision in Pacifi c States marked the end of an era of judi-

cial passivity. The high costs of that approach, however, became vividly

apparent a half century later in the key reapportionment decision of

Baker v. Carr.15 Once the Court overcame the standing hurdle, the sub-

stantive question was whether Tennessee could be required to reform

its unit voting system, which resulted in huge imbalances in electoral

power that favored small counties (with a minimum of one represen-

tative each) against the large, and growing, metropolitan areas whose

populations were systematically and grievously underrepresented. The

entrenched power of the small counties resisted any reapportionment

in violation of state law for over sixty years, and all previous efforts to

resolve the matter through local litigation also ended in utter failure.

In this situation, how could there be any doubt that republican

principles were violated? Unlike in Pacifi c Telephone States, direct partici-

pation of voters was not an issue. The only question was whether repre-

sentatives should be allocated by district or under some at-large system.

Here again it is useful to resort to the analogy of citizens as shareholders.

Ideally each citizen should have one share, or one vote, no matter what

decision rule is used to aggregate those shares. Yet it was as if the corpo-

ration decided to give additional shares of stock to some individuals, but

not to others, so that the minority interest exercised full control to the

exclusion of the majority. It is the kind of public choice nightmare that

recalls the ancient English system of rotten boroughs, whose abuse fed

the fi res for the British Reform Act of 1832, which took the fi rst steps

toward dismantling that system.16 It is hard to imagine any republican

theory of government (including a democratic one) that could mount

even a feeble defense of so outrageous a system. Clearly, the United

States Congress should be able to do something to deal with this under

the Guarantee Clause. After all, by defi nition, neither Congress nor the

president can be bound by a political question doctrine that requires

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140 Constitutional Structures: The Judicial Power

courts to defer to either or to both. In addition, the United States also

includes the federal courts. If Marbury v. Madison gives the Court the last

word on constitutional interpretation, why can the Supreme Court not

resolve a constitutional challenge to the legality of the Tennessee sys-

tem? Indeed, so long as violence and insurrection do not put the matter

in the political realm, the Court’s views on the constitutionality of the

Tennessee system should, if anything, trump those of the Congress.

What is ironic about Baker v. Carr is that its entire heated debate over

the political question doctrine starts from the premise that Luther was

rightly decided. Justice Brennan rested that conclusion on two grounds.

The fi rst, which does not follow from the Constitution’s text, was that

the matter was committed to the discretion of the president. The sec-

ond ground was, incredibly, “the lack of criteria by which a court could

determine which form of government was republican.”17 This last point

was of course not in issue in Luther, which only required a decision as to

whether the chartered government had been displaced. But forget the

factual dispute. The key question is why these twin diffi culties of admin-

istration and defi nition magically disappear when the case is decided,

as it was, under the Equal Protection Clause. Justice Brennan held that

there was no confl ict with the executive branch of the government and

its need for fi nality, and that there were discernible principles under the

Equal Protection Clause that allowed the Court to use “judicially man-

ageable standards” to decide whether “discrimination [between groups]

refl ects no policy, but simply arbitrary and capricious action.”18

Setting aside the question of whether the Equal Protection Clause

reaches these structural claims (which, as an originalist matter, it does

not), it is evident that neither point makes the slightest bit of sense.

Section 5 of the Equal Protection Clause states that Congress shall have

the power to enforce the provisions of the amendment by “appropriate

legislation.”19 In Luther, the president had already spoken so that any

confl ict could have been easily avoided. In Baker, the Congress had not

spoken on a long-standing political grievance, which suggests a latent

confl ict between its attitude and the Court’s. Yet on this point, any anxi-

eties over a clash with a “coequal” branch of government do not amount

to much, given that the federal political branches had remained silent

and could not in any event mount a sensible defense of the state practice.

Likewise, there is nothing to Justice Brennan’s point that the Equal

Protection Clause offers clear principles that the Guarantee Clause

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The Political Question Doctrine 141

somehow lacks. Ironically, the one justice who clearly saw the prob-

lem was Justice Frankfurter, who in his dissent noted both Madison’s

concern with faction and the British travail with rotten boroughs.20 He

introduced the point to shred Justice Brennan’s claim that the insti-

tutional issues under the Equal Protection Clause were different from

those raised under the Guarantee Clause—which is right as far as it goes.

But Frankfurter set the equivalence in the wrong direction by denying

the claims under both clauses instead of neither. In principle, the correct

response in Baker v. Carr would have been to overrule Luther v. Borden.

Any claim that the principles of republican government are unintelligi-

ble makes the Constitution itself largely unintelligible and weakens the

protections otherwise offered against the dangers of faction and self-in-

terest, dangers that were disturbingly realized by the grisly facts in Baker.

Any defense of Justice Brennan’s handiwork rests on its correct

outcome, not its shabby reasoning. Constitutional law after Luther was a

question of the second best. Justice Brennan took the path of least resis-

tance to correct an appalling level of political disrepair. In this instance,

however, second-best constitutionalism comes at a heavy price. Recall

that at the time of the 1787 Founding the term “republican” was used

consciously in opposition to democratic government. The institutional

arrangements under the republican form of government are eminently

compatible with different rules of selection for members of the two

houses of state government. Think of the structure of the Senate in

the Congress, with its explicit reference to the patrician branch in the

Roman Republic. It is therefore very doubtful that any republican theory

could endorse the relentless jurisprudence that emerged two years after

Baker in Reynolds v. Sims.21 There the Court took the hard-line remedial

position of “one man, one vote,” on the ground that “[l]egislators rep-

resent people, not trees or acres.”22 It followed that any effort to inject

other matters—at least for the state upper house—on grounds of history,

tradition, access, group identity, or the like was systematically excluded

from consideration, so that a close numerical equality became a consti-

tutional imperative no matter what Congress might say on the matter.

By contrast, an analysis under the Guarantee Clause should be

more receptive to these variations, given that the electoral provisions

consciously deviate from any simple “one man, one vote” principle. Yet,

ironically, it is unclear just what adjustments that analysis would require

relative to the Reynolds approach, even if the Court adopted a lower level

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142 Constitutional Structures: The Judicial Power

of scrutiny. The particular scheme in Reynolds, for example, allocated

seats by county, where a county with fewer than 45,000 persons got one

seat, and any county with a population over 600,000, no matter how

large, was restricted to twelve seats, greatly disadvantaging city dwellers.

I know of no republican theory that would countenance those kinds of

differences, which bear no relationship to the special rules for choosing

senators at the federal level (originally by, it must be recalled, appoint-

ment by the state legislatures). But it does not necessarily follow that

a districting system that tracks natural geographical divisions within a

state should not tolerate some modest numerical imbalance.

The Reynolds standard precluded any such maneuver. Yet the sober-

ing lesson from the reapportionment cases is not how well the judiciary

administered its hard numerical standard, but rather the extent of the

gerrymandering that local politicians can still get away with under the

Reynolds standard in the absence of further restrictions on state skull-

duggery. These stalwart defenders of democracy routinely deploy com-

puters that refl ect partisan preference. It only takes irregular districts

that let the opposition win handsomely in one or two districts while

the dominant party wins the clear majority of districts by far closer, but

still predictable margins. No republican theory could countenance this

result either. Yet here the Supreme Court has largely washed its hands of

these second-order questions. In Justice Byron White’s words, the Court

has dismissed the entire enterprise as “inevitable” or “unavoidable,”

which led him to conclude that the case for judicial intervention, given

rough proportionality, is now “at its lowest ebb.”23 The erratic case law

that follows is further convoluted when the gerrymandering in ques-

tion is designed to either prop up or reduce the infl uence of “majority

minority districts”—those in which the majority of voters are from racial

minorities.24

The standard of review lurches from high to low, and the new rules

look as though they offend republican and Equal Protection principles

after all. The sad conclusion is that the inability to organize the remedial

side of the issue can undo much of the good that judicial intervention is

supposed to achieve in the fi rst place. Ironically, the best answer might

well be a more powerful form of judicial intervention, under either the

Guarantee or Equal Protection analysis. Let the courts run reappor-

tionment by technical criteria—pretty much any criteria, in fact—that

ignore the dominant political ties of voters in the crafting district. There

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The Political Question Doctrine 143

is no good voting theory that tells us how many voters it takes to choose

a legislative majority. Uneven distributions of population could on occa-

sion allow a minority party in a districting system to gain control of

either or both state houses, or gain a disproportionate membership in

the state’s delegation to the House of Representatives.

There are two larger lessons here. First, the voting cases are vivid

testimony to the pervasive power of individual and group interests,

which confi rms Madison’s original judgment about the corrosive effects

of faction. Second, these cases show how diffi cult it is for courts to fash-

ion remedies to counteract those tendencies. In these circumstances, no

one really thinks that the Court should immerse itself in controversies

over the conduct of war or on many matters of foreign relations. But it

is important to be careful not to push this good insight too far. There are

many situations where, perhaps, the wise court will abandon the search

for perfection and settle for grabbing the low-hanging fruit—regardless

of whether that approach requires more intervention than even the

Warren Court could stomach.

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S E C T I O N I I

THE LEGISLATIVE POWER

THIS NEXT SECTION of the book explores the scope of the legislative power set out in Article I of the Constitution. The central contrast between the classical liberal and progressive visions dominates this area

as well. In all relevant cases, the classical liberal view was intent on

preserving the key elements of limited government. At the same time,

the progressive alternative was dismissive of each of these limitations

on federal power, to which it responded in two fashions. First, it tended

to soften any of the constitutional limitations on the organization of

power at the federal level. Second, it adopted simultaneously a view

that the broad reading of federal power necessarily allowed for concur-

rent federal and state control over virtually all productive activities in

which, when the two clashed, federal power took precedence over state

power. Yet at the same time, in connection with the so-called dormant

Commerce Clause, the progressive worldview moved toward the clas-

sical liberal ideal by refusing to let any single state stand in the path of

a national market. The differences between these two positions can be

briefl y summarized as follows: the classical liberal view saw the dangers

of both excessive national powers and the fragmentation of the national

economy by excessive assertion of state control over a full range of busi-

ness activities. The progressive view was alert to the dangers of excessive

fragmentation but indifferent to those of excessive concentration.

This section thus proceeds as follows. Chapter 9 starts with an

account of the theory and early practice of the Commerce Clause from

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146 Constitutional Structures: The Legislative Power

the founding through the Civil War insofar as it authorizes the exercise

of federal power. Chapter 10 traces this historical development from the

end of the Civil War in 1865 to the pivotal New Deal October Term of

1936. Chapters 11 and 12 deal with the progressive transformation of

the early doctrine. Chapter 13 then turns to the complementary issues

raised in connection with the congressional powers to tax and spend.

Chapter 14 discusses the role of the “necessary and proper clause” as

a source of additional federal power. And Chapter 15 rounds out the

discussion with an examination of the dormant Commerce Clause. This

role of these constitutional limits on legislative power has received ever-

greater urgency in light of the divided verdict on the Patient Protection

and Affordable Care Act, which dealt extensively with the materials cov-

ered in these chapters.

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The Commerce Power

Theory and Practice, 1787–1865

THE HISTORY of the legislative power under the Constitution is inti-mately tied to the Commerce Clause, which states simply: “The Congress shall have power . . . to regulate commerce with foreign

nations, and among the several states, and with the Indian Tribes.”1 As

will become evident, there is an enormous tension between the classical

liberal and progressive views on how this clause should be interpreted.

The determined progressive efforts to expand the reach of federal power

were funneled through the Commerce Clause for one simple reason.

It was strictly required to allow progressive principles to deal with the

massive dislocations of the Great Depression during a time when it was

assumed without argument that national problems required national

solutions that only a robust federal government could provide.

Background and Theory

It is, however, possible, indeed imperative, to reject this expansionist

view by giving a sensible meaning to this clause that comports with a

sound federalist system. “Commerce” should take the meaning that it

has in ordinary language. As with zoning law, the term “commerce”

is used in opposition to the term “manufacturing.” As with commer-

cial law, it covers the sale, lease, hire, transportation, and payment

for goods and services. It also covers all aspects of the transportation

of people and goods and services. The Constitution does not allocate

power over all commercial transactions to the national government.

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148 Constitutional Structures: The Legislative Power

Local commercial transactions—a grocery store sale, a cab ride across

town—do not fall within the scope of the Commerce Clause because

they are not conducted with foreign nations, among the several states,

or with the Indian tribes. Nor does the Commerce Clause cover the

common activities that are internal to a state, including agriculture,

manufacture, and mining, each of which can be regulated by the state

where the activity is located. This interpretation is far too narrow to

support most of the modern regulatory efforts of the federal govern-

ment. But that classical view should not be rejected solely because it

is at striking variance with the current constitutional structure. The

defense of this earlier, narrower view rests on the relationship between

the text of Article I, dealing with the legislative power, and the key

structural elements of our original constitutional plan. That article’s

opening salvo states that the legislative power “herein granted” shall

be vested in Congress, which suggests that at least some powers had

been retained by the states. Article I then outlines the organization

of the two houses of Congress, before defi ning Congress’s enumerated

powers under Article I, Section 8. The common public understanding

of the term “enumerated” suggests that some activities must necessar-

ily lie outside the enumeration, organized in a way to enable a national

government to run without undermining the position of the states.

The power to borrow money, to set uniform rules for naturalization

and bankruptcy, to coin money, to establish post roads, and to reg-

ulate patents and copyrights are all key powers whose allocation to

the national government could be sensibly justifi ed on particularistic

grounds. No one wants fi fty separate patent systems. But none of these

powers contains the latent capability for expansion found in the sim-

ple text of the Commerce Clause. Yet it was not so at the beginning.

In describing this enumeration, James Madison wrote as follows in

Federalist No. 45:

The powers delegated by the proposed Constitution to the federal gov- ernment, are few and defi ned. Those which are to remain in the State governments are numerous and indefi nite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to 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, improve- ment, and prosperity of the State.2

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The Commerce Power 149

Two points are worth noticing. First, his description of the federal

power refers only to foreign commerce, without reference to either com-

merce among the states or with the Indian tribes. At the very least that

rendering is inconsistent with any massive expansion of federal power

over interstate commerce. Second, his use of the phrase “lives, liberties,

and properties” of the people was no casual reference. It clearly referred

back to the parallel phrase in John Locke’s Second Treatise of Government,

which explained that individuals form governments “for the mutual

preservation of their lives, liberties and estates, which I call by the gen-

eral name, property.”3 Madison chose his words wisely when he sug-

gested that the states’ authority would continue to cover all the legitimate

ends of government along Lockean lines under what would become

known as their general police power. It is not a credible construction of

the basic text to assume that the powers “reserved to the several States”

were concurrently granted to the federal government on the ground that

commerce among the several states included all productive activities like

manufacture, mining, and agriculture within each of the separate states.

This enumeration of federal congressional powers has to be read

in conjunction with Section 9 of Article I, which lists the prohibitions

on congressional action, two of which bear special note: a prohibition

on capitation or direct taxes and a prohibition against imposing a tax or

duty on articles exported from any state. Thereafter, Article I, Section

10 lists the prohibitions on the states. Some of these, like the prohibi-

tion on coining money, are absolute, but others, like laying duties on

imports and exports, are prohibited only when done without the con-

sent of Congress.

The key task of a theory of federalism is to integrate these three

types of provisions—limited grants of power to Congress, coupled

with limitations on both Congress and the states—into one coherent

whole. That integration in turn depends on developing an ideal vision

of a federal system against which to compare the original constitutional

design and its subsequent transformation. The place to start is the sov-

ereign (that is, irreducibly political) risk of excessive regulation of eco-

nomic activity inherent in governments at all levels. Governments have

monopoly power within their territories that changes in technology do

not erode over time. A federalist system counters that risk by creating

competition between state governments, which in turn requires open

borders between the states that allow for the movement of people and

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150 Constitutional Structures: The Legislative Power

resources. Accordingly, it is critical to create and maintain the national

(and international) market for the sales of goods and services. In line

with Adam Smith’s theory of the division of labor,4 the effi ciency of

any market increases with its geographic scope. Larger markets permit

greater degrees of specialization, which in turn generates higher levels of

social output from any set of initial resource endowments. An adequate

federal system therefore must aggressively combat state balkanization of

the national market by ensuring the free movement of goods and ser-

vices across state lines. The desired mobility must also include the ability

of individuals and fi rms to relocate freely across state lines.

In this case, text and function are in perfect alignment, for the sen-

sible functional interpretation of the clause gives power to Congress to

regulate the various cross-border transactions of this sort so as to prevent

their disruption by state actors. In effect, the commerce power creates a

national trade zone. It is not a national free trade zone, but rather a zone

whose characteristics are subject to congressional determination. On the

other side of this boundary lie all other forms of productive economic

activity within the states, including manufacture, agriculture, and min-

ing. Each of these is local, and each is subject only to state regulation

until the goods in question are prepared for shipment into commerce

destined for foreign nations, other states, or the Indian tribes. Once they

reach their fi nal destination, these goods are no longer subject to federal

regulation, but become subject to regulation by the nation, state, or tribe

into whose territory they have been sent. The channels of commerce

may be kept open and uniform by congressional activity. The individ-

ual states, acting in competition with each other, are responsible for all

activities that antedate or follow on these interstate transactions. So long

as the basic framework holds fi rm, the commerce power can remain

in peaceful coexistence with the other enumerated powers, which are

today rendered largely superfl uous because the commerce power has

been interpreted so expansively.

Jack Balkin (who ignores the above passage from Madison) has

recently challenged this narrow rendering of the Commerce Clause by

claiming that it is somehow inconsistent with earlier understandings.

Balkin insists that it is a mistake to think of commerce as embracing

only trade, and argues that the defi nition of the term should also “focus

on the ideas of interaction, exchange, sociability, and the movement

of persons that business (in its older sense of being busy or engaged in

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The Commerce Power 151

affairs) exemplifi es.”5 There is no doubt that the Commerce Clause was

intended to promote these interests of general sociability, but it did so

solely by indirection. The opening of borders to trade always results in

a liberalization of local markets, even in the absence of any ability to

regulate what goes on in those markets.

The basic analysis of our federal system, therefore, should start from

the proposition that the simplest and most reliable protection against

excessive state regulation is the power of persons to exit one state in

order to fi nd a more congenial home elsewhere.6 Exercising an exit right

is always costly, even in the absence of legal prohibition or regulation,

because it is not easy to simply pick up and leave a long-time home

or established business, thereby sacrifi cing all favorable connections

already in place. To be sure, developers can escape excessive regulation

by moving elsewhere or threatening to do so by playing off one state or

local government against another. But that exit option is of little help

to landowners whose wealth is tied up in immobile assets. Nonetheless,

a limited but imperfect remedy is better than no remedy at all. Any

constitutional scheme that gives local government free rein in regula-

tion is subject to needed discipline through this one method of indirect

control. Without exit control, astute state and local governments can

tax and regulate only up to the point that individual fi rms are unwilling

to give up their state and local advantages—a constraint that bites more

severely on smaller state subunits. At some point the balance shifts to

make the exit threat credible. This system of individual self-help thus

offers a powerful fi rst line of defense against arbitrary state rule. It is

no accident that totalitarian governments work overtime to snuff out

exit rights; think of the Berlin Wall. Constitutional government helps

counter that form of repression by breaking the monopoly of force that

state governments can exercise over individuals.

The concern with government monopoly also has profound impli-

cations for the structure of federal power. Exit rights are more diffi cult to

exercise between nations than between states. It is easier to pick up shop

in New York and relocate to New Jersey than it is to relocate to Canada

or the West Indies. Nor is there any need for any national government

to take on the routine tasks of day-to-day governance that state and

local governments can already do. Dual sovereignty makes the distri-

bution of power more ticklish, not easier. In light of these common-

sense observations, a system of enumerated powers draws its inspiration

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152 Constitutional Structures: The Legislative Power

from the observation that the increased geographical reach of a national

government has modest gains for the effective protection of liberty and

property, but it sharply increases the risk of the excessive use of federal

power. The burden of justifi cation for the expansion of federal regula-

tory reach thus lies on those who think that the federal government

should duplicate the functions already discharged by the states.

But why have any federal power at all over economic matters? The

theoretical answer lies in the structure of “network industries,” such as

transportation and communication. Start with some simple geometrical

observations. Manufacture, agriculture, and mining by and large take

place on squarish-type plots—that is, those with a high area to perim-

eter ratio. Production does not work well on skinny slivers of land. By

the same token, no one can organize transportation and communica-

tions networks in squares. The necessary roads, rails, and wires, which

are long and slender, invariably have huge perimeter to area ratios as

they snake their way across state boundaries. Accordingly, state reg-

ulation of network industries poses a real risk of snipping the system

into multiple useless segments, thereby gutting its value or shutting it

down altogether. On any interstate route—be it for stagecoach, railcar,

automobile, or jet plane—it was evident from the outset that, in princi-

ple, exit rights could not offer any counterweight against the ability of

multiple states to sever these vital networks and create gridlock.7 The

network could only survive if carriers from any state could reach any

other state at any time, without interference by any of the states that

lay in between. The modern terminology of network industries was not

known to the Framers, but the gravity of the problem was. One of the

great achievements of the 1648 Peace Treaty of Westphalia8 was to open

up traffi c along the Rhine River by prohibiting each small principality

from imposing tolls on ships that passed through its waters. State gov-

ernments acting unilaterally impose the same risk.

This fundamental difference between production and communica-

tion has profound implications for the ideal federalist structure. Network

industries often, but not inevitably, exhibit monopoly traits, against

which some form of rate and access regulation has been regarded as

an appropriate antidote since long before the adoption of the Constitu-

tion.9 It is therefore unwise to devise any system that contains a regu-

latory void such that neither the federal government nor the states are

in a position to regulate. Where the risk of regulation at the level of

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The Commerce Power 153

the states is pronounced, moreover, regulation must take place at the

national level. For network industries, the risks of federal monopoly

exaction are very large, but they are far smaller than the grim possibility

of multiple state regulators dismembering what should be operated as

a single system. So at the very least, Congress needs to have the power

to exclude all forms of state regulation, such that a single hand lies at

the tiller. The judgment is that a single federal monopoly poses a smaller

risk than multiple state monopolies, which can easily create deadlock by

acting at cross purposes with each other. The optimal strategy to offset

the risk of federal monopoly that follows from the suppression of state

power will require imposing substantive limitations on how the federal

government exercises its power. Consider, for example, the constitu-

tional limitations on ratemaking, which asserted themselves in the last

third of the nineteenth century as the railroads surged toward economic

dominance.10 Some exercise of federal power is an indispensable ele-

ment of a sound federal system, but unlimited federal power is not.

These preliminaries allow us to identify the essentials of a sound fed-

eral system of regulation: local regulation of productive industries, cou-

pled with prohibitions on the ability of either the states or the national

government to inhibit the movement of either people or goods across

state lines. Federal regulation is needed to make sure that no states can

disrupt the operation of a national network for parochial reasons. These

essential features are, moreover, technology independent. We do not have

to embrace Balkin’s expansive notion of “living originalism” to explain

how the structure is put together. The basic structure works as well for a

world of handicrafts transported by stagecoach and ships as for a world

of high-tech manufacturing with high-speed modes of transportation by

cars, trucks, railroads, steamships, and airplanes, and high-speed com-

munications by radio, telephone, and the Internet. Indeed, the more

effi cient the modes of transportation and communication, the lower the

costs of linking disparate locations together. The expanded scope of the

market in goods and services reduces the risk that any local businesses

can exercise monopoly power, given the ability to import goods and

services from elsewhere. Put otherwise, modern conditions require less

regulation than earlier ones so long as entry and exit rights are kept in

working order. There is no depreciation in the soundness of the basic

model over time that justifi es a claim for a fundamental reordering of

the basic system simply because of the inexorable march of technology.

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154 Constitutional Structures: The Legislative Power

The Initial Foray: 1797–1865

The early decisions dealing with the Commerce Clause concentrated on

policing the border between the national power on the one hand and

the reserved power of the states on the other. There was little judicial

activity on the scope of the Commerce Clause until the key decision

of Chief Justice Marshall in Gibbons v. Ogden,11 which has set the terms

of debate until the present day. Gibbons asked whether the commerce

power allowed the United States to regulate a single continuous jour-

ney by boat from Elizabethtown, New Jersey to New York City. The nar-

rower view of the Commerce Clause, as articulated in 1812 by the New

York state court in Livingston v. Van Ingen,12 took the position that the

clause itself only allowed for a federal presence at the border between

two states, thereby denying that interstate commerce extended to navi-

gation after the vessel reached the interior of the state. In rejecting that

contention, Chief Justice Marshall insisted that the great clauses of the

Constitution had to receive a capacious construction in order to meet

the exigencies of the day. It therefore followed from his view that com-

merce comprehended navigation from one end of the journey to the

other, even within the “interior” of a state,13 or was “confi ned to pre-

scribing rules for the conduct of individuals in the actual employment

of buying and selling or of barter.”14

But it is simply historical mythmaking to think that his broad con-

ception of the Commerce Clause bears even a faint resemblance to the

modern interpretation of the clause that leaves virtually no domain of

exclusive jurisdiction of the states.

In one famous passage, he wrote: “Comprehensive as the word

‘among’ is, it may very properly be restricted to that commerce which

concerns more States than one.”15 The restrictions here matter. Thus

Marshall emphatically stated that inspection laws for goods coming into

a state were not part of interstate commerce, for, in line with the tripar-

tite division set out above, they “act upon the subject before it becomes

an article of foreign commerce or of commerce among the States, and

prepare it for that purpose.” Accordingly, “they form a portion of that

immense mass of legislation” that is “advantageously exercised by

the States themselves. Inspection laws, quarantine laws, health laws

of every description, as well as laws for regulating the internal com-

merce of a State, and those which respect turnpike roads, ferries, &c.,

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The Commerce Power 155

are component parts of this mass.”16 There is not so much as a verbal

hint that agriculture, manufacture, or mining could be subject to fed-

eral power given the long list of activities that are excluded from it. To

forestall just that conclusion, Marshall was careful to stress that all three

heads of the Commerce Clause had to be read in unison, which can

easily be done if commerce means, as he insisted, trade or intercourse

between two places.17 The term “commerce,” however, becomes totally

otiose if the words “manufacture” and “agriculture” are subsumed in the

phrase “Congress shall have power . . . to regulate [agriculture, mining,

and manufacture] with foreign nations, among the several states, and

with the Indian tribes.” Such a construction is a grammatical absurdity.

Indeed, even the stalwart defendants of the power of Congress to regu-

late activities within the several states do not make the same claim with

respect to either the Foreign Commerce or Indian Commerce Clauses.

They recognize that any congressional effort to regulate grain produc-

tion in the European Union because it infl uences the price of grain in the

United States or on the world market would precipitate huge interna-

tional repercussions. Furthermore, any effort to regulate each and every

aspect of Indian tribal life would wreck any notion of tribal sovereignty,

which is fully preserved under the accurate reading that Marshall gave

of the Commerce Clause, which he rightly reads as one unifi ed clause,

not as three separate ones.

Marshall had powerful political motivations not to run hog wild

in his reading of the Commerce Clause. In particular, he was obviously

unwilling in the antebellum period to precipitate a constitutional war

by intimating that Congress could regulate slavery within the states,

even though it was abundantly clear that it could regulate the move-

ment of slaves across state lines and national boundaries. Yet at the same

time it was equally well understood that the Congress could not use

its power over interstate commerce to regulate the operation of slavery

within the several states. As Hamilton wrote: “An unrestrained inter-

course between the States themselves will advance the trade of each by

an interchange of their respective productions, not only for the supply

of reciprocal wants at home, but for exportation to foreign markets.”18

Justice Joseph Story echoed the same sentiment in his Commentaries on

the Constitution of the United States, when he answered in the negative

the questions “whether, under the pretence of an exercise of the power

to regulate commerce, congress may in fact impose duties for objects

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156 Constitutional Structures: The Legislative Power

wholly distinct from commerce.” And further, “whether a power, exclu-

sively for the regulation of commerce, is a power for the regulation of

manufactures?”19 The interaction between what was then termed the

residual state police power and the narrow federal power was bound

to generate some diffi cult confl icts, but these were resolved in a way

consistent with Marshall’s general approach in Gibbons. That conclusion

is evident in the 1823 decision in Corfi eld v. Coryell,20 which summarizes

the principle: “Commerce with foreign nations, and among the several

states, can mean nothing more than intercourse with those nations, and

among those states, for purposes of trade, be the object of the trade what

it may; . . .”21 Everything else was left to state control. The words “noth-

ing more” were taken literally; under this formulation, Justice Bush-

rod Washington held that Congress did not have the power under the

Commerce Clause to regulate the dredging of oysters in Maurice River

Cove, New Jersey, unless one of two conditions were satisfi ed: either

the removal of oysters from the shore interfered with the movement of

ships in interstate commerce, which it did not, or the oysters themselves

became objects of interstate trade after they were harvested.

To be sure, Marshall’s conception of the commerce power in Gib-

bons raised its own diffi culties. The fi rst concerns the extent to which

his interpretation advances or retards the creation of a national com-

petitive market. In practice it clearly does both. The short-term result of

Gibbons looks procompetitive, for it allowed steam engine competition

to take place on interstate runs, even though New York had granted an

exclusive franchise for using steam power in New York waters to Robert

Fulton, who had in turn assigned it to Ogden. Yet even this conclusion is

debatable because Marshall could easily have said, in line with modern

cases under the dormant Commerce Clause,22 that even though Gibbons

could not be kept out of New York, he had no right to go there free of

charge, and so he could be required to pay the same fees that local ship-

pers had to pay for the use of Fulton’s invention in New York waters.

That proposition was not discussed, however, and the clear implication

of Gibbons was that the federal Constitution could trump local monop-

olies with respect to interstate transactions. However, nothing requires

that federal power be exercised in a procompetitive fashion. Indeed,

one illustration that Marshall gave of an admittedly valid application

of the commerce power was the ability to require that boats in United

States waters have American crews, which is of course a quintessential

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protectionist policy.23 No state could counter federal anticompetitive

efforts. Any effort to restore the competitive ideal did not come from the

Commerce Clause itself, but necessarily relied on independent substan-

tive rights found elsewhere in the Constitution.

Yet by the same token, the well-defi ned scope of the commerce

power made it feasible for the Supreme Court in the 1849 Passenger

Cases24 to assert that the commerce power was “exclusively vested in

Congress”25 and that it included, as Marshall had intimated earlier, the

power to regulate passenger traffi c in all its aspects. Accordingly, the

Court struck down state taxes that were imposed on all passengers,

including aliens, who arrived at a state port by vessel from some foreign

port. The movement of persons into the United States was exclusively

governed by the federal Constitution. The question of whether com-

merce was restricted to goods was clearly and correctly answered in the

negative. To be sure, there remains some necessary tension between

state and federal power, for it seems to follow from the logic of the Pas-

senger Cases that state inspection laws for persons could not be used to

block the entry of aliens into the United States. Indeed the constant use

of the term “concurrent” in both the counsel argument and opinions

shows that a watertight division between the two areas is not possible.

It is equally clear that the decision is instructive in yet another way, for

it indicates the ability of the United States to control immigration (in

opposition to naturalization) rests in the federal government under the

foreign commerce power, in part because the specifi c prohibition against

“[t]he Migration or Importation of such Persons as any of the States now

existing shall think proper to admit” (e.g., slaves) was carved out from

the general scope of the Commerce Clause until 1808,26 from which it

is a fair inference that they are subject to the foreign commerce power

after that date, as was concluded in the Passenger Cases. But for our pur-

poses, the ambiguities over the scope of the Commerce Clause have

nothing to do with the conspicuous expansions of the New Deal period.

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The Commerce Clause in Transition

1865–1937

THE EXPANSION of the commerce power after the Civil War came about through a set of incremental adjustments, some of which respected the approach of Gibbons and others which did not. To see how the law

progressed, it is useful to divide the cases into two periods. The fi rst deals

with the extent to which the defi nition of commerce can be expanded to

deal with agriculture, manufacture, or mining, where the original line in

Gibbons largely held fi rm. The second deals with the complex question

of whether the direct regulation or, in some cases, prohibition of people

and goods in interstate commerce could be leveraged to limit or override

the power of states to exercise their exclusive police power jurisdiction.

Let us take these problems up in order.

Commerce versus Manufacture

The basic message that is derived from reading the key cases in this

period is how faithfully they adhered to the general outlines of Mar-

shall’s approach until the progressive constitutional revolution of 1937.

In an unbroken line of cases the tripartite division between activities

prior to, during, and after the movement of goods in interstate com-

merce was uniformly observed, without any apparent worries over dif-

fi culties of drawing the line between “direct” and “indirect” effects on

interstate commerce. It is of course easy to deride the use of terms like

“direct” and “indirect” in this context, by endowing them with a level of

ambiguity that they in fact do not contain. To see how this works, read

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The Commerce Clause in Transition 159

in tandem two passages from the 1888 decision Kidd v. Pearson,1 in which

the Court unanimously upheld an Iowa statute that prohibited the man-

ufacture of intoxicating liquors within its borders. The statute was chal-

lenged on the ground that it was barred by the Commerce Clause given

that the banned products were intended for sale in the interstate mar-

ket. A unanimous Supreme Court rejected this challenge on the simple

ground that Congress had no power over local manufacturing. In the

most general form, the Court wrote:

As has been often said, legislation [by a State] may in a great variety of ways affect commerce and persons engaged in it, without constituting a regulation of it within the meaning of the Constitution, unless, under the guise of police regulations, it imposes a direct burden upon interstate commerce, or interferes directly with its freedom.2

But the Court in Kidd made it crystal clear how this distinction

between direct and indirect regulation applied to the context at hand:

If it be held that the term [commerce] includes the regulation of all such manufactures as are intended to be the subject of commercial transac- tions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horti- culture, stock raising, domestic fi sheries, mining—in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market?3

This passage was quoted in full in the more famous decision of

United States v. E. C. Knight, which held that the antitrust laws did not

apply to manufacture within the states. In so doing it urged this general

proposition that comes straight out of Marshall’s playbook in Gibbons:

“Commerce succeeds to manufacture and is not a part of it.”4 The Court

in E. C. Knight went on to note:

It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the pres- ervation of the autonomy of the States as required by our dual form of government. . . .5

In one sense, the E. C. Knight decision was dubious because the

antitrust claim there involved the creation of the sugar trust through

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160 Constitutional Structures: The Legislative Power

a merger of fi rms located in different states, an issue that does not fall

obviously into the category of local manufacture or interstate business

transaction. Yet the doubts about this application of the antitrust law

were generally put aside shortly after E. C. Knight, in Addyston Pipe & Steel

Co. v. United States.6 Yet none of these disputes about borderline transac-

tions had anything to do with the basic understanding of the reach of

the Commerce Clause. One telling piece of evidence on this point comes

from the passage of the Pure Food and Drug Act of 1906,7 a reformist

statute if there were ever one. That law forbade the shipment of certain

drugs in interstate commerce and allowed Congress to regulate their

manufacture in the territories, but not in the states. That restriction

was promptly removed in 1938 after the transformation in Commerce

Clause jurisprudence in the October 1936 term.

The same understanding is refl ected in the text of the Twenty-First

Amendment, which was drafted in the shadow of cases like Kidd and

Knight. Its key provision reads:

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

This provision sought to return to the status quo ante embodied

in such cases as Kidd before the passage of the Eighteenth Amendment

introducing prohibition into the United States. Its repeal by the Twen-

ty-First Amendment sought to return the position to the status quo

ante, and toward that end was directed to the transportation or impor-

tation of intoxicating liquors by making it clear that, as in the pre-prohi-

bition era, Congress had no power to regulate either the production or

consumption of intoxicating liquors in the several states. That provision

would never have been drafted in this fashion if manufacture of all

commodities were subject to federal power. To be sure, there were cases

in which the direct/indirect line was challenged, of which perhaps the

most notable instance is the highly controversial application of antitrust

law to the activities of labor unions. Thus United Mine Workers v. Coro-

nado Coal8 involved an antitrust action brought by an open shop miner

whose property was destroyed by the district union that exercised its

jurisdiction over the relevant territory. In dealing with this decision,

Chief Justice Taft added a refi nement to the direct and indirect test,

which ran as follows:

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The Commerce Clause in Transition 161

The mere reduction in the supply of an article to be shipped in inter- state commerce by the illegal or tortious prevention of its manufacture or production is ordinarily an indirect and remote obstruction to that commerce. But when the intent of those unlawfully preventing the manufacture or production is shown to be to restrain or control the sup- ply entering and moving in interstate commerce, or the price of it in interstate markets, their action is a direct violation of the Anti-Trust Act.9

Taft had no intention of upsetting the basic distinction between

direct and indirect. But it is an open question whether his qualifi cation

to the basic doctrine is correct. The unlawful actions of the miners were

manifestly actionable under state law, and it is odd to think that the anti-

trust laws that normally deal with pricing and other business practices

should be pressed into service as a substitute for the state law concern-

ing the willful destruction of property, even if done by parties intent on

making sure that nonunion coal did not reach the marketplace. Indeed,

after the 1937 constitutional revolution, the Supreme Court adopted

just that narrower view in Apex Hosiery v. Leader,10 by refusing to apply

the Sherman Act to sit-in strikes. But even if this decision is given its

full weight, its specifi c intent requirement would block its application

to virtually all local regulations. In the cases where it mattered most

the line between direct and indirect application did not invite practical

uncertainty or philosophical speculation. On the ground, the test raised

little or no doubt about either its clarity or its good common sense.

Notwithstanding this basic historical pattern, there were some

instructive disputes over the reach and scope of the federal power that

had this feature. How did one defi ne an “interstate journey,” and, more

critically, could the federal government use its power over interstate

commerce to infl uence patterns of behavior in manufacturing, agricul-

ture, and mining, which were in theory subject to exclusive regulation

by the states?

The fi rst pressure point in an unavoidable line of expansion had

to do with the defi nition of an interstate journey. Just that result was

found in The Daniel Ball,11 concerning either goods or people moved on

a single journey across state lines, subject to this caveat: “of course that

commerce which is carried on entirely within the limits of a state and

does not extend to or affect other states.”12 As the context makes clear,

all journeys that start in one state do not necessarily “affect” what goes

on in another, for the term received here the same narrow reading that

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162 Constitutional Structures: The Legislative Power

it had in Gibbons, Kidd, and Coronado Coal. But other interpretive ques-

tions turned out to be more elusive. In dealing with the Federal Employ-

er’s Liability Act, for example, the Court struggled before it concluded

that Congress had the power to regulate the movement of trains, whose

cars sometimes moved in interstate commerce and sometimes did not.13

The point here was that the safety issues in question arose when and

because the trains moved in interstate commerce. A decade later in Staf-

ford v. Wallace,14 the Court held that Congress had the power under the

Commerce Clause to regulate rates and safety conditions for stockyards

housing livestock that were held for sale or shipment in interstate com-

merce, on the shaky ground that these pens “are but a throat through

which the current fl ows” and thus “incident” to an interstate journey.

The equivocation shows how tricky these judgments can become, for

should a different result apply to livestock stored in those same stock-

yards that had yet to enter interstate commerce? Or if some of the live-

stock remained in-state while others were sent to different states?

Yet larger issues were waiting in the wings. The fi rst set of maneu-

vers led to the conclusion that all transportation, whether local or inter-

state, was subject to federal regulation. The stage was set in Wabash, St.

Louis & Pacifi c Railway Co. v. Illinois,15 where the Supreme Court held that

Illinois could not set rates for railroads that were shipping goods into Illi-

nois from other states or out of Illinois into other states. Of course, set-

ting interstate rates falls within the core of the federal commerce power,

which Congress had not exercised at all. No matter. Wabash soundly

guaranteed that no one state could balkanize the transportation grid.

Yet at the same time, Wabash necessarily created a regulatory void that

the Interstate Commerce Act of 1887 (ICA) fi lled the next year. The ICA

covered all routes except those that began and ended within the same

state.16 The ICA cleverly attacked the long-haul/short-haul inversion,

whereby the rates in the competitive Chicago to San Francisco mar-

ket were far lower than the rates on any monopoly segment of that

market, such as Kansas City to Omaha. The reason for the inversion is

that there were four railroad companies competing for business on the

long-haul and only one on most short-haul segments of long-haul lines.

The rates were thus adjusted to force those parties who could not fi nd

substitute transportation arrangements to bear most of the fi xed costs

of running the trains, to the immense frustration of the short-haul cus-

tomers who could not understand why they had to pay more than the

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The Commerce Clause in Transition 163

long-haul customers who were more costly to serve. Of course, in the

absence of regulation it is only by raising prices on the inelastic portion

of the demand curve (i.e., price-insensitive customers) that the railroads

can recover the fi xed costs of their investments. To counteract this price

inversion, the 1887 ICA treated the long-haul rates as an upper bound

on any short-haul rates. Its effect was to raise long-haul rates and lower

short-haul ones in ways that more sensibly distributed the burden across

different trips.

It was only a matter of time, however, before all local transportation

was swallowed up under the commerce power. That outcome stemmed

from two other developments, both of which marked the erosion of

classical liberal principles in the defi nition of federal power, in areas

where no one would have expected that substantive concerns with the

distinction between force and competition could play a large role in

explicating the structural provisions of the Constitution. The fi rst pivotal

move occurred in the Shreveport Rate Cases,17 in which Justice Charles

Evans Hughes expanded the conception of interstate commerce to allow

the federal government to regulate the rates on intrastate carriers in

direct competition with interstate carriers, even though local carriers

never ventured into interstate commerce. Justice Hughes insisted that

Congress had the right to “protect” interstate commerce so that it “may

be conducted upon fair terms and without molestation or hindrance.”18

These evocative terms were not chosen by accident. They con-

sciously evoked powerful images of protecting interstate commerce

from force and fraud. Just that result had been achieved long ago in the

1838 decision of United States v. Coombs,19 which recognized the power

of the federal government to protect maritime commerce from criminal

attacks launched from within a state, in that case for the theft of mer-

chandise from a ship ground off the coast of New York. Congress could

make sure that the use of force did not imperil interstate commerce. But

no such risk was involved in Shreveport, where the “protective” principle

was extended to cover competition from local lines, thereby creating,

at least in transportation, false equivalence between force (a negative

sum game) and competition (a positive sum game) in contravention of

classical liberal theory, which condemns the former and blesses the lat-

ter. The ability to subject different networks to different regulators rep-

resents a useful division of power, not an inconvenient obstacle to sound

economic development. A decade later, the Court held that Congress

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164 Constitutional Structures: The Legislative Power

could also regulate intrastate routes that were not in competition with

interstate lines, allowing the ICA to create a comprehensive rate base for

general railroad regulation.20 Note the transformation. The initial sys-

tem of rate regulation sought, however imperfectly, to curb the evils of

monopoly. Comprehensive rate regulation inverted the process by set-

ting minimum rates to protect railroads against competition.

Leveraging Legislation over Interstate Commerce

The second assault on the original federalist design took a different tack,

which did not bear fruit until the rise of the New Deal. Before 1900 or

so, the federal power over interstate commerce was intended to regulate

interstate commerce. But even before the rise of the New Deal, Congress

imposed regulation on interstate commerce for a different reason: to

get at local activities within states that were beyond the direct control

of Congress. The fi rst foray in this direction was in 1903 in Champion v.

Ames, where the Court upheld by a fi ve-to-four vote the power of Con-

gress to prohibit the shipment of lottery tickets in interstate commerce,

even if their sale—a subject of intense dispute during the late nineteenth

century—was legal in the states from which, and to which, the tick-

ets were shipped.21 Historically this decision could have come only after

the Civil War, for if Champion was correct then Congress could have

launched (which no one believed at the time) a direct assault on slavery

in 1840 by, say, refusing to let cotton made by slave labor into interstate

or international markets.

The reason for this result rests on the (former) truism of American

constitutional law that the federal government did not have under such

cases as Kidd and E. C. Knight a general police power over local activities

that were contrary to health and morals. That was part of the “immense

mass” of legislation Marshall reserved to the states. The shipment of

these lottery tickets in interstate commerce did not pose any threat to

interstate commerce, as, for example, arises from the shipment of toxic

substances, the kidnapping of innocent persons, or the transportation of

prostitutes. Rather, the federal effort was meant to stamp out the lotter-

ies themselves under a broad account of the police power that allowed

the government to prevent immorality, dishonesty, or the spread of any

evil or harm.22 Of course, the local lotteries could still operate within

the confi nes of their own states, but shrunken markets could easily lead

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The Commerce Clause in Transition 165

to their economic demise. It was a genuinely puzzling question as to

whether the power of the federal government should be used to alter

private conduct that was subject to the police power of the states.

In my view, the answer to that question should be no. As noted ear-

lier, classical liberal theory allows the government to impose limitations

on those common carriers that enjoy monopoly positions. They must

take all comers on reasonable and nondiscriminatory terms. However,

in this context, the monopolist is the federal government, with its exclu-

sive control over the interstate network. The United States in this capac-

ity should be subject to the same scrutiny given to private monopolists

and thus denied the ability, as antitrust lawyers like to say, to “lever-

age” its position over the interstate aspects of transactions to dictate the

course of intrastate conduct that lies outside the sphere of its direct con-

trol.23 Quite simply, the loss of access to national markets dwarfs any

increase in the costs of production across an entire group of fi rms. The

exercise of federal monopoly power over the transportation grid should

thus be restricted to activities that do not alter the initial structural bal-

ance that the Constitution set out between the federal government and

the states. Preventing or regulating the shipment of toxic materials in

interstate commerce poses no threat to areas of exclusive state control.

Prohibiting sales of lottery tickets is a different matter. Indeed, if

Champion had been decided the other way, it is likely that the Food and

Drug Act of 1906 would have fallen as well, given that the shipment of

drugs through interstate commerce posed no threat to the instrumen-

talities of interstate commerce. Intermediate cases, like the shipment of

spoiled food24 or the transportation of prostitutes across state lines for

immoral purposes,25 are closer cases, where the federal power should

be sustained, because federal actions are meant to bolster, not counter-

mand, state policies, which have never supported either activity. The

risk of federal overreaching, however, is far greater when the federal

policy is inconsistent with the policies of the state. On this view, the

federal government can only restrict the shipment into interstate com-

merce of people and goods that pose a threat to the safety and health of

people engaged in that commerce. It would not be permissible for Con-

gress to use its power of regulation, for example, to pass a statute that

says, “The shipment of all goods and the transportation of all persons

in interstate commerce is strictly prohibited.” The same condemnation

would seem therefore to attach to a statute that provided that no person

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166 Constitutional Structures: The Legislative Power

could ship dairy products, meat, or grain in interstate commerce, even if

the federal government was not exercising that power as a way to con-

trol internal production within the state. Nor could it use that power to

set quotas on the quantity of goods or the number of people shipped in

interstate commerce. The Constitution sought to make the United States

into one national trade zone, not a no-trade zone. The kinds of police

power protections at issue here are those that are standardly incorpo-

rated in the international free trade agreements under the aegis of the

World Trade Organization, which is equally insistent that public safety

and health measures should not be used as a disguise for protectionist

legislation.26 There is no reason to impute a different, hidden agenda

here. The clear lesson is that regulation, in the form of “making regular,”

gives Congress far more scope than prohibitions, for which the federal

government faces a far greater burden. The regulation of commerce does

allow for the prohibition of some goods from interstate commerce by

congressional fi at, but only for cause.

The question was how far Congress could be allowed to put pres-

sure on the arteries of interstate commerce in order to clamp down on

production or consumption. The issue came to a boil of in the 1918 deci-

sion in Hammer v. Dagenhart,27 where the articles shipped in interstate

commerce were standard goods, made by fi rms that employed child

labor. The fi rms had complied with the North Carolina twelve-year-old

minimum child-labor law, but violated the United States’ fourteen-year

minimum employment age. The controversy over child-labor statutes

marked one of the bitterest chapters in nineteenth-century politics, but

general economic improvement meant that the use of child labor was on

the wane in the fi rst decades of the twentieth century. Indeed there is all

too much economic evidence to the effect that, far from protecting chil-

dren from industrial abuse, child-labor laws drive them into prostitution,

begging, and worse.28 That said, no one doubted that either the federal

or state government could impose some child-labor law as a health or

safety regulation under the police power. The key question is which

should prevail when their policies confl ict. On this score it was settled

that the United States could not regulate child labor directly. But could

Congress achieve that result indirectly—by putting restrictions on goods

that were shipped into interstate commerce? A great lawyer, John W.

Davis (who later was a founding partner of the distinguished fi rm Davis

Polk & Wardwell), argued for the United States that the federal standard

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The Commerce Clause in Transition 167

was needed in order to prevent state competition from creating a race

to the bottom. In effect he held that there was a prisoner’s dilemma that

no state could beat of its own accord, for no state would dare raise the

minimum age for child labor so long as other states kept some lower age.

But his position seems overwrought because it requires, contrary to fact,

that no state will enact one of these statutes at any age unless all other

states go along. In addition, his position mistakenly presupposes that

the higher federal standard better balanced the relevant interests, which

was far from self-evident, given that in many instances work by younger

children could, on average, improve overall family welfare in light of the

greater perils to which children could be exposed in the black market. In

any case, if allowed, the regulatory tactic could be used to support just

about any federal regulation of state labor markets, including minimum

wage and maximum hours requirements—areas within the exclusive

province of the states at the time.

At this point a bit of economic realism is in order. The ability to sell

in national markets will surely exceed whatever cost savings come from

using child labor. The fi ve-member majority in Hammer was therefore

correct to strike down this effort to regulate local matters in order to pre-

serve the original structural division of responsibility between the fed-

eral and state governments against unilateral federal regulation intent

on undermining it. Indeed, at a time when taxation and regulation were

close substitutes, the Court was correct fi ve years later in the Child Labor

Tax Case to strike down a tax on goods shipped in interstate commerce

by fi rms that had used child labor.29 As will become clear in the dis-

cussion of the taxing power, the key element of sound constitutional

construction requires that the taxing power be exercised in parallel with

the commerce power, as these cases demanded. For the moment, how-

ever, with the approach of the October 1936 Term most of the original

constitutional structure is intact, where it fueled the rise of the mightiest

nation on the globe. What became of that structure is the topic of the

next chapter.

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The Commerce Clause

Transformation to Consolidation, 1937–1995

THE PROGRESSIVE political ideals that had commanded so much atten-tion in the fi rst third of the twentieth century were fi nally put into action during the fi rst two terms of Franklin Roosevelt’s New Deal pres-

idency, and have been elaborated and expanded ever since. This chap-

ter takes up the consolidation of the progressive worldview from the

tumultuous New Deal period up until 1995, when the counteraction set

in. Chapter 12 picks up the narrative with United States v. Lopez, which

it then carries through to the contentious debates over the individual

mandate under the Patient Protection and Affordable Care Act. The pur-

pose of these chapters is to show that the modern attack against the

earlier synthesis fails in two ways. It is not faithful to the constitutional

text or constitutional history, and it is disastrous in its relentless efforts

to cartelize industry after industry through a set of legal devices that

have only served to stymie the economic prosperity and social stability

of the United States.

The Progressive Onslaught

When the progressives were swept into power during the New Deal,

they brought all of their prior beliefs with them. The basic intellec-

tual framework is clear. The progressives remained suspicious of state

solutions and thus insisted on national programs. They remained hos-

tile to free markets and thus favored direct regulation in a wide range

of areas. Historically, the transition was less dramatic than these stark

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The Commerce Clause 169

statements make it appear. No one could claim that the fi rst major plan-

ning schemes originated in the Roosevelt administration. There was, for

example, the creation of the Federal Trade Commission1 during the Wil-

son administration and the major overhaul of the Federal Radio Act2

during the Coolidge administration. In addition, during the 1920s there

were also major progressive initiatives in real estate markets, including

the Washington, D.C., rent control laws upheld in 1921 in Block v. Hirsh3

and the Ohio zoning ordinance sustained in 1926 in Village of Euclid v.

Ambler Realty Co.4 That same year, the then-noted progressive, Secretary

of Commerce Herbert Hoover, issued a revised edition of the Standard

State Zoning Enabling Act,5 which was based on New York City’s pio-

neering zoning ordinance of 1916.6

But none of these initiatives put the same type of pressure on the

Commerce Clause as the Roosevelt legislation. The National Industrial

Relations Act (NIRA)7 was the fi rst major foray in this direction, and in

1935 it was soundly and unanimously rebuffed by the Supreme Court

in A.L.A. Schechter Poultry Corp. v. United States.8 The codes of “fair com-

petition” rules under the act required butchers to purchase entire runs

of poultry, including sick chickens. Chief Justice Hughes fi rst noted

that NIRA’s “codes of fair competition” went far beyond the common

law rules and thus created space for an unconstitutional delegation of

power.9 On the commerce power question, the decision echoed Gibbons,

as Chief Justice Hughes wrote: “In determining how far the federal gov-

ernment may go in controlling intrastate transactions upon the ground

that they ‘affect’ interstate commerce, there is a necessary and well

established distinction between direct and indirect effects.”10 Kidd11 was

duly cited, and the Shreveport Rate Case12 and Coronado Coal13 were duly

distinguished. “[P]ersons employed in slaughtering and selling in local

trade are not employed in interstate commerce.”14 End of case.

Nonetheless, Schechter proved to be only the opening battle in a lon-

ger war.15 The subsequent battles took place over the National Labor Rela-

tions Act passed in 1935,16 which was upheld in NLRB v. Jones & Laughlin

Steel (J&L),17 the various Agricultural Adjustment Acts passed between

1933 and 1938,18 which were upheld in Wickard v. Filburn,19 and the Fair

Labor Standard Act of 1938 (FLSA),20 which was in turn upheld in United

States v. Darby.21 Each of these cases generated signifi cant constitutional

challenges that resulted in a victory for the United States government—

and a radical reorientation of Commerce Clause jurisprudence.

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170 Constitutional Structures: The Legislative Power

Starting with J&L, the major function of the National Labor Rela-

tions Act (NLRA)22 was to prop up union monopolies in labor relations.

Its basic structure allowed a union to organize an employer’s labor force

by majority vote in a secret ballot representation election, after which a

victorious union spoke with a single voice for all its members. The stat-

ute created labor cartels that contain some involuntary members. In so

doing, its overall characteristics are less effi cient than those of a single

monopolist because for the cartel to survive, each of its members must

receive some share of the gains, which means that (as with OPEC and

its oil quotas) some portion of the overall output must be transferred

from more effi cient to less effi cient workers. To make the management

system work, the NLRA, by design, has to limit the power of internal dis-

senters in order to allow for the creation of a unifi ed front that shifts the

bargaining advantage to the union side. New entry was barred because

the union that received the majority position of control was to be the

exclusive representative of the workers. Competitive labor markets were

therefore put on hold. In their place was introduced a bilateral monop-

oly where the consequences of bargaining breakdown were lockouts

and strikes. The deviations that the NLRA works from competitive mar-

kets are large and enduring.

But how did Congress make this scheme work within the frame-

work of enumerated powers? The key doctrinal move at this stage was to

note that J&L was a complex business entity with operations throughout

the nation. Of course, that position is consistent with state regulation of

local facilities and national regulation with respect to their cross-bor-

der transactions. But note the switch. The NLRA states: “The Board

is empowered . . . to prevent any person from engaging in any unfair

labor practice . . . affecting commerce,”23 which Chief Justice Hughes

promptly recast to say that the act “purports to reach only what may be

deemed to burden or obstruct that commerce.”24 The language evokes

the ghost of the former classical liberal view that allowed Congress to

intervene to prevent the forcible blocking or obstruction of access to

interstate commerce. But in practice, J&L was no simple rerun of a situ-

ation similar to the theft of goods covered by 1838 Supreme Court deci-

sion in United States v. Coombs,25 for the NLRA was not directed to cases

where either the union or management uses force to block trains from

moving in interstate commerce. From day one, the act was construed to

cover all actions that “affect” the levels of goods that are manufactured,

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up or down, within the states, which includes of course any regulation

of any workplace behavior. Hughes’s earlier expansive, albeit misguided

logic in the Shreveport Rate Case was carried over from transportation to

manufacturing without missing a beat—act one of the New Deal gambit

was over.

The second key case was Darby, in which a unanimous Supreme

Court overruled26 the earlier decision in Hammer v. Dagenhart.27 Darby

rested on two erroneous pillars. It assumed that the Congress could.

under the FLSA. impose hour and wage restrictions on local fi rms

whether or not they were engaged in interstate transactions. Second, for

good measure, in overruling Hammer it further explicitly held that the

Congress “is free to exclude from the commerce articles whose use in the

states for which they are destined it may conceive to be injurious to the

public health, morals or welfare, even though the state has not sought

to regulate their use.”28 The anticompetitive impact of this account of

federal power is not avoided, but celebrated on the grounds that there

is a “suppression of nationwide competition in interstate commerce by

goods produced under substandard labor conditions,”29 without fi rst

establishing that the federal standards are in any way superior to those

of the states. The thought that this new federal initiative might deviate

from the original constitutional design was similarly dismissed. Justice

Stone acknowledged that the Bill of Rights does contain a Tenth Amend-

ment, which reads: “The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.” But he concludes that this major

structural provision is a “truism that all is retained which has not been

surrendered,”30 without ever asking how this formulation makes sense

in this context. Under his logic, all economic control has effectively been

surrendered. His reasoning is backwards. Given that there is a Tenth

Amendment, some area of activity must be reserved to the states. Under

Justice Stone’s account, that class of activities is an empty set.

The same fast and loose arguments made in connection with labor

regulation carry over to agricultural production. Once again, the moti-

vation for regulation is the stabilization of prices through cartel forma-

tion. But how can this be done? The answer is through a comprehensive

administrative scheme that, of necessity, has to be all-inclusive through-

out the United States. More specifi cally, the cartelization of the agri-

cultural business presents special challenges because of the need to

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172 Constitutional Structures: The Legislative Power

organize large numbers of relatively small farmers into a single cohesive

whole that is capable of keeping prices above the competitive level. That

task therefore requires the system to solve two tasks simultaneously in

ways that are well described in Wickard v. Filburn.31 The fi rst is to deter-

mine an overall level of output for each particular crop. This outcome

was in fact achieved by having the Department of Agriculture conduct

national referenda elections that helped it to determine total nationwide

output. The second step is to allocate the total production down to the

farm level, which required successive allocations from states to counties

to individual farms. Roscoe Filburn ran afoul of this system when he

exceeded his allotment of 11.1 acres for wheat, for which he was duly

fi ned $117.11, or 49 cents per bushel for that excess production, which

Filburn used to feed his own farm animals.

It should be quite clear that this allocation system was big business

and that the regulation of channels of interstate and foreign commerce

could not effectively restrict output so long as parties were free to sell

their produce within their home states. To redirect produce was thereby

to expand total supply at some modest loss of overall effi ciency, espe-

cially since much of the grain was used for animals that lived in the same

states. Closing that avenue of escape from cartel restrictions received its

approval in United States v. Wrightwood Dairy Co.32 There, the Supreme

Court invoked the protective principle to hold that the United States

could regulate the intrastate sale of dairy products in order to preserve

the price control system that it wanted to create for interstate sales.

Once Congress plugged the hole of intrastate sales, it had to deal

with the next effort by individual farmers to outwit the cartel. It is here

that Wickard comes into play. If farmers could not sell their wheat to

local cattle ranchers, the two fi rms could still vertically integrate their

business in order to evade the federal regulation. By merging wheat

and cattle farms, their owners could feed wheat grown on their own

farms to their own cattle without engaging in any sale at all. The actions

of any one farmer might not amount to much, but the device could

easily spread, marking the demise of the cartel. But since the Supreme

Court wanted the allocation scheme to work, it allowed for the “aggre-

gation” of individual sales in order to show that the activities in ques-

tion had a substantial effect on interstate commerce, which it surely

did on the price and quantities of goods shipped across borders. Indeed,

Justice Jackson put the “consumption of home-grown wheat” at over

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20 percent of total output, which meets the substantial effect standard

in anyone’s book.33 The sole reason to expand the commerce power,

however, was not to stabilize the rules for organizing interstate trans-

actions, which would have been consistent with classical liberal ends.

Rather, it was to stabilize the prices of commodities sold throughout the

United States, which decidedly runs up against those principles. Yet in

Wickard, as in Wrightwood, the Supreme Court was benignly indifferent

to whether the legislation sought, like the Sherman Act,34 to encourage

competition or, like the Agricultural Adjustment Acts,35 to throttle it.

To make the appropriate doctrinal transition, it was key to show

that both Gibbons and the Shreveport Rate Cases supported the extension

of federal power so that neither Darby, Wrightwood, nor Wickard would

read like they were conscious departures from earlier precedent. This

meant rejecting the earlier views on the appropriateness and workabil-

ity of the distinction between “direct” and “indirect” effects on interstate

commerce.

Here is how it worked. Key sentences were quoted in a fashion that

made them seem as if they supported a proposition that was the oppo-

site of that for which they stood. First, in Darby, Justice Stone wrote that

Gibbons stands for the proposition that “[t]he power of Congress over

interstate commerce ‘is complete in itself, may be exercised to its utmost

extent, and acknowledges no limitations other than are prescribed in

the Constitution.’” But his quotation omits the prior sentence, which

says that the federal power “is the power to regulate, that is, to prescribe

the rule by which commerce is to be governed.”36 The domain of com-

merce for Marshall was limited to cross-border transactions and explic-

itly excluded the local transactions that Stone subjects to its control.

A similar tactic was used in Wrightwood Dairy. In Gibbons, Chief Jus-

tice Marshall wrote: “Comprehensive as the word ‘among’ is, it may

very properly be restricted to that commerce which concerns more States

than one.”37 That sentiment was magically transformed in Wrightwood

Dairy so that the applicable test now read that commerce “extends to

those activities intrastate which so affect interstate commerce,”38 or a

version that says, “Congress could legislate with respect to all ‘commerce

which concerns more states than one.’”39 “Restrict” and “extend” are

opposites. “With respect to” conceals the obvious limitations on federal

power. Yet such gross mischaracterizations were a key element of the

New Deal evolution.

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174 Constitutional Structures: The Legislative Power

Not to be outdone, in Wickard v. Filburn, Justice Jackson wrote as

if the law were emerging from a dark intellectual age that inexplicably

followed the death of Chief Justice Marshall. “At the beginning, Chief

Justice Marshall described the Federal commerce power with a breadth

never yet exceeded,” he said,40 citing Marshall’s decision in Gibbons v.

Ogden.41 Later on he added that it was now necessary “to bring about

a return to the principles fi rst enunciated by Chief Justice Marshall in

Gibbons v. Ogden. . . .”42

To do so, Justice Jackson found it expedient to rely on a truncated

version of the Shreveport Rate Cases. Lest there be any doubt on the issue,

look closely at the textual makeover. The key quotation from the Hughes

opinion in the Shreveport Rate Cases is the following:

[Congress’s] authority, extending to these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control their operations in all matters having such a close and substantial relation to interstate traffi c that the control is essential or appropriate to the security of that traffi c, to the effi ciency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.43

The italicized words were removed from the quotation in Wickard.

In their place was an introductory sentence penned by Justice Jackson

that began, “The opinion of Mr. Justice Hughes found federal interven-

tion constitutionally authorized because of. . . .” He then sets off the rest

of the quotation beginning with “matters.” If that truncated rendition

were correct, no one could explain what the shouting was about. But

the blunt truth is that Jackson consciously excluded the italicized words

“extending to these interstate carriers as instruments of interstate com-

merce,” which had been inserted by Justice Hughes for the sole purpose

of explaining how the Shreveport Rate Cases coexisted with E. C. Knight

(an unquestioned authority at the time). “Naughty” is the kindest word

that comes to mind for these self-conscious elisions.

The implications of these cases cannot be understated, given their

importance to arguments about the size of government. In dealing with

this issue, it is striking that both on and off the Court, the defend-

ers of the broader views of the commerce power take a strongly orig-

inalist approach by belittling the opposite conception. For example,

in his standard treatise on the matter, Laurence Tribe heaps scorn on

the traditional categories, which he dismisses as a “formal and wooden

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The Commerce Clause 175

segmentation of economic activity” and a “narrow, and quite abstract,

construction.”44

Tribe not only ignores the economics but also rests his misconceived

objection on the improper equation of formal structures with aridity

and sterility, when in many legal contexts the reality is anything but

that. The key task of any federalist system is to draw workable bound-

aries of authority between national and state governments. Boundary

lines between neighboring states are sharp and clear, so that we know

where one begins and the other ends. No jurisdictional lines can be that

clear when two sovereigns exert separate domains of control over the

same territory. Nonetheless, to make sure that their respective spheres

of authority are well understood and respected, the effort should be to

achieve the same hard-edged texture of boundaries between different

levels of government as exists between neighboring states.

This position is, moreover, fully defensible on modern function-

alist grounds. In modern economic theory, it is understood that there

can be no competitive equilibrium in a network industry, which is why

the passage of the Interstate Commerce Act was such a big deal. But a

competitive equilibrium is possible with agriculture, manufacture, and

mining, which is why local regulation is preferred, precisely because it is

less likely to tend toward monopoly. Indeed, the larger the transporta-

tion and communication grid, the stronger the case in modern economic

terms for the Founders’ original scheme.

It is, therefore, critical to understand the intellectual knots that

any so-called economic, practical, or empirical approach can generate.

Indeed, what is both notable and regrettable is the extent to which mod-

ern scholars turn cartwheels to defend the indefensible proposition that

ties J&L, Darby, and Wickard to some updated, or living, version of the

original constitutional design. Exhibit A is a short passage from the nor-

mally tough-minded Michael Greve, which argues that the Commerce

Clause, at least when read in connection with the Necessary and Proper

Clause, affords some justifi cation for the New Deal results—much as he

recoils from the intellectual banality of the legislative schemes under

scrutiny. Thus at one point, he rightly notes: “Far from attempting to

govern the world as a global commons, the New Deal attempted to man-

age it as a collection of cartels; and it was that purpose that drove the

New Deal’s take on the Commerce Clause.”45 Later on, Greve unwisely

acquiesces in the inevitable when he writes:

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176 Constitutional Structures: The Legislative Power

[T]he New Deal cases prove to be rightly decided or at least well within the constitutional ball park. Jones & Laughlin is surely right, so long as one grants its premise that unionization helps to prevent industrial strife. Wickard, despite its preposterous analysis, was rightly decided: grant Congress the power to limit the interstate supply of wheat and other commodities, and the power to suppress local evasion follows directly.46

Both parts of his analysis are wrong. Empirically, there is no reason

to believe that the passage of the Wagner Act47 did anything to curb

industrial strife—quite the opposite. The level of industrial unrest, riv-

eted with costly strikes, reached record heights after the enforced peace

(through compulsory arbitration) ended in the aftermath of World War

II.48 It could hardly have been otherwise, because the balky institution of

collective bargaining cannot make the same kinds of incremental adjust-

ments to changes in external conditions that fi rms operating in competi-

tive markets routinely do. So it is not possible to grant any premise about

how unions prevent industrial strife. Nor is the point relevant because a

determination of a statute’s constitutionality has to be made long before

it is possible to collect or assess the empirical data as to its purported,

and often disputed, economic consequences. That point itself explains

yet another of the many hidden advantages of the formal approach. The

line between manufacture and interstate sales is clear on the day the

statute is passed, so that these contentious empirical issues need not play

any part in the overall analysis.

Greve is even more off base on Wickard, for the simple reason,

explained above,49 that Congress could not in 1787 or anytime thereafter

pass a statute that says no grain shall be shipped in interstate commerce.

The power to regulate, as governed by classical liberal principles, requires

a showing of cause to keep those goods out of commerce. A feared glut

of wheat does not count as one of those reasons, given that it is unre-

lated to the traditional police power objectives of health and safety. And

even if suppressing the sale of wheat across borders were to count as a

reason, home consumption would reduce the level of cross-border traffi c,

and is thus consistent with this supposed constitutional objective. In the

end, therefore, Greve’s novel arguments are more nuanced but no better

than the “preposterous” reasoning that he rejects.

If Greve surrenders to the cynicism that drives Wickard, Jack Balkin

is guilty of excessive optimism in offering, as a living originalist, an

unapologetic defense of Wickard as “a fairly easy case,” which requires

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The Commerce Clause 177

some federal solution.50 In dealing with these issues, Balkin does not

begin with (or even mention) Madison’s observation in Federalist No. 45

that “[t]he powers delegated by the proposed Constitution to the federal

government, are few and defi ned.”51 Instead he prefers to start with a

well-known passage from James Wilson delivered to the Pennsylvania

ratifying convention in November 1787, which reads:

Whatever object of government is confi ned, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operations or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States.52

Standing alone, his claim rings false because it states that these mat-

ters fall to either the states or the federal government. Wickard, for its

part, is written on the premise that there is concurrent power at both

levels of government. That perception is strikingly confi rmed by the

next passage that Balkin quotes, which shows that Wilson sensed that

this broad formulation could be diffi cult to apply, so he then states how

the Framers resolved that problem:

In order to lessen or remove the diffi culty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care.53

Balkin reads the second passage as supporting Wickard on the

ground that “the purpose of the enumeration was not to displace the

principle but to enact it.”54 And so it was. But the stress on “particular

instances” shows that its enactment did not embrace any of the major

concerns that led to Wickard, all of which were rejected prior to the New

Deal period. It is therefore not possible to draw any broad inference

that renders the entire system of enumerated powers nugatory as a fair

implication of the original position. Note too that in making this general

observation, Wilson puts forward a general approach without mention-

ing the Commerce Clause specifi cally, let alone endowing it with super-

human powers. Indeed, later on, Wilson (who ran on interminably)

explicitly rejected the argument that the Necessary and Proper Clause

“gives to Congress a power of legislating generally.”55 Read in context,

Wilson sounds more like Madison in Federalist No. 45 than the Justice

Jackson of Wickard.

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178 Constitutional Structures: The Legislative Power

Balkin’s expansive reading, then, is inconsistent with Wilson’s own

words. But even if it were not, how could this one passage, quoted in

isolation, be leveraged to defend the outcome in Wickard? For Balkin,

the key functional point starts with the correct observation that farmers

face two problems. The fi rst is dealing with the uncertainties in natu-

ral conditions that make it diffi cult to project the supply of agricultural

produce, and hence the price of any given commodity. That variability

is the reason why agricultural commodities are routinely exempt from

price control statutes. The second problem is that the large number of

small farmers makes it very diffi cult for farmers to coordinate their out-

put to reach what Balkin candidly acknowledges to be a cartel price.

Accordingly, he notes correctly that “states are separately incompetent

to limit agricultural production”56—a misleading phrase that I shall

examine later in more detail57—which of course means that only some-

thing like the Agricultural Adjustment Acts could facilitate those output

restrictions.

His argument fails under any classical liberal constitution because

the state-run cartel is the problem, not the solution, to the general

question of agricultural production, which suggests that a better out-

come is achieved by leaving the issue to the states. Yet at the same time,

individual farmers can handle the vagaries of future production with-

out federal intervention, for an active competitive market does exist,

which allows farmers to control these risks through forward sales or

a variety of fi nancial hedges. It is important to recognize that Balkin’s

incantation of “spillover effects and collective action problems”58 is

vice’s homage to virtue.

Here’s why. In the standard economic literature, each of these terms

addresses private actions that drive an economy further from a compet-

itive solution. Regulation is thus needed to protect against the pollu-

tion that arises from agricultural production. A collective action problem

arises when a necessary public good cannot be provided for voluntarily,

so that some coercion is needed to make the social system more effi cient

than before. But it remains a good thing for competition to undermine

cartels, not a bad one. The commerce power should never be extended

beyond its original meaning to give voice to such antisocial programs as

crop supports. Nor does that same incantation of spillover effects and

collective action problems support the FLSA, whose minimum wage

and overtime provisions threw huge distortions into all labor markets.

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The Commerce Clause 179

Leaving these issues to the state always improves social welfare because

the exit right can then operate as a powerful constraint against abusive

government behavior. The deifi cation of government monopolies, with-

out any awareness of their dislocations, is thus complete.

The Post–New Deal Period: 1942–1995

The Supreme Court decisions between Wickard and Lopez followed a pre-

dictable course, yielding many outcomes—some of which were mun-

dane, and others of which were momentous in their social importance.

Doctrinally, these extensions of federal power have often relied on the

“cumulative effect” principle, which indicates that the operative ques-

tion is never whether a single act of a given class has an effect on inter-

state commerce, but whether all the acts within that class will. Less than

momentous was Perez v. United States,59 which allowed for the successful

criminal prosecution of small-time credit extortion. However, the same

principle was used with far greater effect in Heart of Atlanta Motel, Inc. v.

United States,60 which upheld the application of the Civil Rights Act of

1964 to hotels and motels whose customers often came from across state

lines, and in Katzenbach v. McClung,61 in which the sole interstate con-

nection was that the food served at some restaurants came from sources

outside the state. The former of these decisions is surely closer to the line

if one perceives hotels and motels as part of the transportation grid that

was comfortably subject to federal power under Gibbons. But it tracks

very poorly with efforts to apply that logic to destination hotels and lux-

ury resorts, which are hardly midpoints in continuous journeys. Katzen-

bach, meanwhile, does not make any pretense that the services supplied

in local restaurants are in interstate commerce, but only that the food

served is acquired through interstate commerce, which applies to hotels

and motels as well. For those who think that an antidiscrimination law

dealing with private businesses is a good thing, these decisions will not

raise a ripple of concern, given how they necessarily follow from the

earlier cases dealing with labor relations and agriculture. And there is no

doubt that the federal intervention was welcome insofar as it broke the

ghastly state monopoly under Jim Crow, which resulted in a breakdown

of the protection of basic political and civil rights, which themselves

had collapsed dramatically after the Civil War.62 But make no mistake

about it: in the long run, the 1964 Civil Rights Act, especially in the area

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180 Constitutional Structures: The Legislative Power

of employment, did little or nothing to open markets. To the contrary,

it stifl ed innovation by new competitors who did not meet some pre-

conceived government conception of fair labor markets. The 1964 act,

however, did wonders in sweeping away the residue of state-enforced

segregation in the late 1960s. But after that time, it is hard to detect any

net benefi t for its aggressive application of disparate impact tests and

other devices.63 Government powers are rigid. They do not allow people

who dissent from the social consensus to express their own preferences

in private activities. Ironically, the 1964 statute adopted a color-blind

principle that slowed down the rise of affi rmative action programs that

were much in demand after the massive racial unrest in the late 1960s.

The civil rights cases did not, however, mark any major change in

principle from earlier decisions. The one major doctrinal development

in this area arose from the extension of the Fair Labor Standards Act of

193864 whose constitutionality was upheld in Darby65 as applied to state

and local employees. Such employees were exempted from the origi-

nal statute, but the political forces in favor of expanded federal power

slowly chipped away at these exemptions. In 1961, the exemption from

the FLSA was lifted for the activities of state and local governments for

“enterprises” that engaged in commerce or the production of goods for

commerce.66 In 1966, employees at state hospitals, schools, and other

institutions were brought under the umbrella of the act.67 Finally, in

1974, the FLSA was amended to cover essentially all state and local

employees.68 The Supreme Court happily ratifi ed the initial extensions of

the statute in its 1968 decision in Maryland v. Wirtz,69 over the dissent of

Justices William O. Douglas and Potter Stewart, who did not pitch their

opposition to these developments under the Commerce Clause. Instead,

they saw, rightly in my view, a major interference with coequal state

sovereignty that was inconsistent with the Tenth Amendment’s reser-

vation of powers to the states, which Darby had effectively gutted. That

objection picked up steam in National League of Cities v. Usery,70 which

struck down the extension of the FLSA to the activities of state and local

governments that fell within “areas of traditional government function.”

A host of lower court decisions followed, with determinations that

licensing drivers and operating ambulances, waste disposal activities,

and municipal airports were traditional government functions, while

issuing industrial development bonds, making rules for intrastate nat-

ural gas sales, and regulating air and traffi c were not. Nine years later,

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The Commerce Clause 181

Justice Blackmun, who originally had gone along with the majority in

National League of Cities, found these classifi cation problems intractable in

Garcia v. San Antonio Metropolitan Transit Authority,71 where the question

was whether the minimum wage and overtime provisions of the FLSA

applied to a public mass transit authority, thus permitting the federal

government to set hours and wages for all municipal employees. The

concern with independent state sovereignty was regarded as a relevant

issue, but one which was taken care of through the political and not the

constitutional process.

The entire debate has a surreal air, owing to the original wrong turn

on the Commerce Clause itself. At no point in this line of cases did any-

one cast any doubt on the soundness of the Darby decision. The simple

view that most of these activities of local governments fell outside the

scope of the Commerce Clause was thus never applied. Taken seriously,

that would allow the federal government to regulate local and state gov-

ernments only in those cases in which they operated municipal airports

that served interstate runs, and little else. At that point, the question

of whether hospital workers could be distinguished from police offi cers

disappears from view.

The decision in Garcia, moreover, draws sharply into question the

modern extension of constitutional federalism insofar as it assumes that

political checks will save the states from federal regulation that they do

not want, as has been elegantly urged, fi rst by Herbert Wechsler and

later by Jesse Choper.72 Obviously, these forces did not work to protect

state and local governments from the major extensions of the FLSA.

The major check that the states once had over the Congress—their

power to appoint senators—had been stripped away by the Seventeenth

Amendment in 1913, and the powerful forces arrayed in favor of mini-

mum wage coverage had achieved their ends. It was incomprehensible

in 1787 that the national government could override the judgment of

the individual states in how they organized their internal administrative

operations. The list of prohibitions on state conduct that were set out in

Article I, Section 8, clause 10 referred to the capacity of the states to enact

certain kinds of laws. None so much as hinted that this ability to force

changes in labor laws would necessarily infl uence how state and local

governments allocated work within their respective bureaucracies. Nor

did they discuss how this would necessarily impose on them the hard

choices about whether to borrow funds, raise taxes, or curtail services. It

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182 Constitutional Structures: The Legislative Power

was almost as if the adoption of the minimum wage and overtime rules

could work a simple cash transfer from taxpayers to employees, with-

out any collateral consequences on how the state hired and assigned

these workers their duties. The ability of one sovereign to shape the

operational decisions of others constitutes a huge infringement on state

sovereignty that is apparent to anyone who is not committed to the New

Deal dogma of comprehensive federal regulation.

Moreover, the decision here is not saved by the view that the

requirements imposed on the states are no more onerous than those

that are imposed on other actors. That argument was made in Fry v.

United States,73 which held, in good Wickard fashion, that a wage and

price control system could be imposed on state governments in order to

prevent the erosion of a regulatory scheme that was yet another disas-

ter—constitutionally and economically—from the outset.

The lessons that are learned from the sorry episode of endless fed-

eral regulation is that one bad turn begets another. Start down the road

where enumerated powers look like an archaic principle, and quickly,

the entire system of federalism is stood on its head. That result is not

a necessary consequence of modernity. It stems from a deep commit-

ment in the progressive approach that fi nds all legislative interferences

in labor and product markets to fall within the purview of Congress.

Under that view of the world, nothing stands in the path of federal reg-

ulation. What is most amazing about the story is that it did not replicate

itself in connection with the state powers of regulation and taxation that

are subject to a far stricter regime under the dormant Commerce Clause,

which is the subject of Chapter 15.

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Constitutional Pushback

1995 to Present, from Lopez to NFIB

THE LAST STAGE of constitutional development started in 1995 with United States v. Lopez,1 where Chief Justice Rehnquist, writing for a narrow fi ve-to-four majority, struck down the Gun-Free School Zones

Act, which forbade carrying a gun within 1,000 feet of a school.2 In

one sense, the opinion reads as a sea change insofar as it indicated that

there was at least some outer limit on the scope of federal power, if only

because a federal statute was actually struck down for exceeding the

bounds of the Commerce Clause. But at root, the opinions in Lopez do

nothing to unpack the deep contradictions in Commerce Clause inter-

pretation. Chief Justice Rehnquist uneasily embraced both James Mad-

ison and Wickard simultaneously in his highly infl uential account of the

three strands of the commerce power.3 Thus, after a quick review of all

the familiar precedents from Gibbons through Perez, he writes as if these

cases rest on a single harmonious vision of the commerce power:

Consistent with this structure, we have identifi ed three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce [Darby]. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in inter- state commerce, even though the threat may come only from intrastate activities [Shreveport]. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce [Jones & Laughlin].4

At no point does he trouble himself with the deep ironies in his posi-

tion. Thus his brief account of the fi rst category does not explain why

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184 Constitutional Structures: The Legislative Power

Darby was right to overrule Hammer v. Dagenhart. The simple reference to

the power to regulate the channels of interstate commerce, which stems

from Gibbons, is therefore restated in a conceptual void. Likewise, Rehn-

quist writes as if he is blissfully unaware of either the internal diffi culties

of that case or the way in which Justice Jackson in Wickard expanded it

from transportation and communication to agriculture and manufactur-

ing. Thus, his matter-of-fact acceptance of Wickard meant that his view

ratifi ed from the conservative side of the Court the enormous expansion

of federal power.5 The overall situation was not improved by the con-

currence of Justice Anthony Kennedy, whose linguistic skepticism led

to the dubious conclusion that “semantic or formalistic categories” can’t

be used to defi ne commerce.6 But his philosophical point gets it exactly

backwards for, as noted, jurisdictional questions should be settled by the

kind of clear boundaries used to separate landowners, delineate lanes on

public roads, or defi ne the basic rules of virtually all sports.

A Constitutional Sea Change?

At this point, the only question is just what did the chief justice see as

his mission. The answer is more doctrinal than institutional. What he did

was decide to show that the principle of enumerated powers was alive

even within the Wickard framework, because he could be clever enough

to beat Justice Jackson at his own game, by demonstrating that federal

enforcement of the gun law did not substantially infl uence either the

quantity of goods shipped in interstate commerce or the price at which

they were shipped. So there are limits on the commerce power after

all. But the cleverness that drove this rationale ensured that his excep-

tions would look like parched fruit on the vine—incapable of any further

growth. To be sure, the usual fi ve-to-four split in United States v. Morrison7

struck down that portion of the Violence against Women Act of 19948

that purported to make a dormitory rape a federal offense on the ground

that its indirect economic consequences were not suffi cient to support

federal power. But that decision had little practical effect, for here, as in

Lopez, the challenged conduct was long held criminal under state law.

What really matters is how the Lopez synthesis plays out when there

is a serious policy confl ict between the federal government and the

states. That issue came to the fore with Gonzales v. Raich,9 in which the

clash between the California Compassionate Use Act,10 which legalized

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Constitutional Pushback 185

the use of marijuana for medical purposes, and the federal Controlled

Substances Act,11 which rendered illegal the private possession and use

of marijuana, is too plain to dispute. The private parties structured their

transactions so as to eliminate all possible interstate economic transac-

tions. Respondent Monson grew her own marijuana; respondent Raich

received hers as a gift from two friends. Both used it under medical

supervision. Neither could fi nd any other substitute. But for a six-mem-

ber Supreme Court majority, all this fi ne-tuning was to no avail. The

one-two punch of Wickard and Perez allowed for the needed aggrega-

tion that allowed the federal policy to prevail. The uniform national

response squashed out this program of state experiment. And thus the

Lopez boomlet came to an end.

The Conservative Attack on Health Care Legislation

It is an open question whether this boomlet was revived by the Supreme

Court’s recent decision on the Patient Protection and Affordable Care

Act (ACA), known everywhere as “ObamaCare.” It is impossible in a

short compass to describe fully all of the complex provisions of this stat-

ute.12 Nor would it be necessary to do so, as the ACA would be dead-

on-arrival, if the pre–New Deal understandings of the Commerce Clause

held. But in this new environment, it is critical to lay out a few key

provisions to set the context for the now-famous debate over the indi-

vidual mandate. The crux of this discussion begins with the key differ-

ence between market insurance and social insurance. Under the former,

the market operates because each individual pays a premium that is

in subjective terms less costly than the set of health care benefi ts that

he or she gets from the private insurer. Under this system, no particu-

lar individual worries about who else is in his or her pool because the

pressure of market forces eliminates any cross-subsidization among par-

ties. The good news is that these insurance pools will prove stable over

time because rational insurers have no incentive to incur large losses by

undercharging their unprofi table customers who will happily stay. Nor

do they have an incentive to overcharge their profi table customers, lest

they will drive them into the arms of rival insurers offering lower rates.

That pressure also gives an incentive for maintaining good health to

individual insureds, who can then cash out in the form of lower health

insurance premiums. The downside to this market solution is that in a

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186 Constitutional Structures: The Legislative Power

voluntary market, individuals who are known to be high risk will only

be able to get insurance at high rates that refl ect their risk—rates that

may be beyond their capacity to pay. This problem has been acknowl-

edged on all sides of the political spectrum for years, because no one

wants to take the position that it is just fi ne to let a baby die on the door-

steps of a hospital because of the inability to pay.13 The question becomes

what is the best institutional response to the problem, which before the

rise of government included all sorts of extensive private and charita-

ble activities in that direction, and, of course, public funding of hospi-

tals and wards for the indigent. There have been occasional charges of

neglect and abandonment, but in practice these turned out to be few

and far between, and were often overstated for political advantage.14

The explicit assumption behind the ACA is that these lesser means

all fail. The key evidence for this proposition has been said to be the inex-

orable increase in the numbers of uninsured individuals. The defenders

of ACA do not have a clear explanation as to why with greater pros-

perity the number of individuals who need insurance should be on the

increase, and they certainly do not accept the proposition that it could

be attributable to current regulations on the books that require employ-

ers to meet certain health care minimum mandates if they wish to

cover their employees. These mandates are costly, and their cumulative

impact could easily make employer-based insurance an unappetizing

proposition for employers and employees alike. A catalogue of mandates

produced by the Council for Affordable Health Insurance (CAHI) listed

some 2,262 separate state mandates as of 2011, an increase of more than

300 since 2009.15 The percentage of persons with employer-based insur-

ance dropped from about 65 to 45 percent between 2007 and 2012.16

This is not a small problem.

The solution reached under the ACA was to double down on coer-

cion. Instead of removing licensing and other barriers to entry, Congress

decided to impose a set of extensive requirements that all insurance

fi rms had to meet in order to remain in the health insurance business.

Among these were guaranteed issue rules that prevented fi rms from

picking their own clients or setting prices based on preexisting condi-

tions. These in turn were matched with rules that allowed individu-

als to opt out of any insurance coverage at any time. The obvious risk

here is one of customer opportunism, whereby coverage is purchased by

individuals who know that they need surgery or other treatment. That

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Constitutional Pushback 187

coverage is promptly dropped when the treatment runs its course. Ordi-

nary insurance policies have dealt with this risk by requiring waiting

periods before receiving coverage on preexisting conditions. They have

also required that policies be taken for fi xed terms, both of which do

much to stop opportunism, but little to deter coverage. Other provisions

of the ACA require a system of community rating whereby young peo-

ple with low risks are charged premiums in excess of the amount needed

to supply coverage, with the explicit purpose of cross-subsidizing older

individuals with higher risk profi les. Again the risk is clear. Young peo-

ple will fl ee from policies that charge them prices in excess of value.

The system that demands cross-subsidization is thus unstable. In

order to counter that instability, the ACA added a requirement under

which many persons who do not have private insurance have to pay a

fee to the Internal Revenue Service. The stated purpose of the fee is that

it is part of the system to block private abuse. In one sense, its greatest

defect is that the number in question could prove too low to achieve its

stated end. But in the constitutional setting, the question was whether

the mandate gave an opening to challenge this portion of the ACA on

constitutional grounds, even with the Wickard line of cases on the books.

In one sense, defending the statute against a Commerce Clause challenge

could be easy given the huge size of the integrated health care market.

The point was not lost on Justice Ginsburg in her concurring opinion,

which insisted that Wickard controlled: “Collectively, Americans spent

$2.5 trillion on health care in 2009, accounting for 17.6% of our Nation’s

economy.”17 Other commentators have had the same impatience with

what they see as the entire Commerce Clause fi asco. Harvard professor

Charles Fried, a former solicitor general in the Reagan administration,

thinks that the entire issue can be made in staccato like fashion. “Health

care is interstate commerce. Is this a regulation of it? Yes. End of story.”18

Unfortunately, it is not. There are counterarguments. Heath care is

not a form of commerce. There are fi rms that supply health care services

whose local activities are in interstate commerce under the modern defi -

nition of that term. The regulation of their practices was extensive long

before Wickard, but only at the state level under the 1869 decision in

Paul v. Virginia,19 which survived until it was overruled by the 1944 deci-

sion in United States v. South-Eastern Underwriting.20 But the regulation

of customers takes a different arc from the regulation of fi rms. Surely,

they can be prevented from submitting fraudulent applications. But for

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188 Constitutional Structures: The Legislative Power

people who are neither customers nor prospective customers, I know of

no precedent seeking to require coverage unless they wish to participate

in some activity like driving on public highways. It follows therefore that

under the current regime, Justice Kennedy’s pointed question in oral

argument—“Can you create commerce in order to regulate it?”—at the

very least requires an answer.

That question quickly gives rise to an immense debate over whether

it is possible to regulate “pure inactivity,” where it poses at least these

puzzles: At any given time, I am not engaged in millions of activities;

can I be taxed or penalized for not cutting wood, not cycling, not eating

pancakes, or not playing croquet? It was just this line of argument that

led the swing vote in this case, Chief Justice Roberts, to conclude, not

unreasonably, that even under Wickard and its progeny, the individual

mandate fell outside the scope of congressional power. “The power to

regulate commerce presupposes the existence of commercial activity to

be regulated. If the power to ‘regulate’ included the power to create it,

many of the provisions in the Constitution [relating to other enumer-

ated powers] would be superfl uous.”21 This position is defensible in the

second-best world that takes Wickard as its baseline, for it is doubtful

that any of its New Deal defenders would have put any stock in the

action/inaction line that came to dominate the constitutional debate.

But at this point the case rests on the prescriptive claim that it is not

possible seventy years after Wickard to undo the huge network of federal

regulations whose constitutionality rests on its soundness. But precisely

because the defense of Wickard rests only on prescriptive grounds, it sup-

plies no justifi cation for the extension of federal power into new areas. I

would therefore vote to strike the individual mandate down on just this

limited ground.22 There is no reliance interest based on long usage that

constitutionally justifi es a program that has yet to go into effect.

The Liberal Response

On this point, of course, others might wish to differ. But what is so dis-

tressing about the current defenses of the individual mandate is that its

supporters shun the modest proposition that it is too late in the day to

challenge Wickard’s pedigree. Instead the defense of the individual man-

date is placed on originalist grounds, namely rationales that track Balkin’s

fl awed reading of earlier texts, in which the cut-and-paste method turns

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Constitutional Pushback 189

both the historical record and economic logic upside down. Here is one

critical analysis of how Justice Ginsburg’s opinion does precisely that.

Her argument starts with the view that “States cannot resolve the

problem of the uninsured on their own.”23 That statement is made with-

out the slightest recognition of the many unwise state and federal reg-

ulatory initiatives that have made matters worse. She posits a collective

action problem that requires the federal government to step in where

the states have failed to act in order to avoid the race to the bottom

when generous states fi nd themselves at a competitive disadvantage

with their neighbors.24 There is not the slightest recognition of the vir-

tues of competitive federalism, whose central tenet stems from Justice

Brandeis’s famous observation that states act as laboratories, offering

room for experimentation that can avoid many of the huge structural

mistakes that are built into the warp and woof of the ACA. She then

compounds this mistake by positing a market failure because markets

do not tolerate, let alone generate, the kind of cross-subsidies that she

thinks a sound health care system should put in place. And she furthers

the confusion by making it appear as though there is some market fail-

ure because some people are unwilling to purchase health insurance in,

we must not forget, a market that is rigged against their interests.

She then segues from her threadbare economic account of the

health insurance market to the constitutional challenges under the

Commerce Clause:

The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.” 2 Records of the Federal Convention of 1787, pp. 131–132, ¶8 (M. Farrand rev. 1966).25

These records say no such thing. The italicized words are a judicial

invention. The full text of the original reads as follows:

That the Legislature of the United States ought to possess the legislative Rights vested in Congress by the Confederation; and moreover to legis- late in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted.

Compare the italicized words in the two texts to see how the history is

twisted. The original text does not refer to the Commerce Clause at all.

Indeed there is nothing in the passages surrounding this text that make

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190 Constitutional Structures: The Legislative Power

any reference to the Commerce Clause either. The original textual refer-

ence is to “the Legislature,” which has all sorts of enumerated powers to

which the rest of the paragraph could apply: the power to tax and spend,

the power to establish post roads, the power to raise an army and navy,

and to organize the militia—all fi t the general description of the “gen-

eral Interests of the Union.” But adding the gloss that the Constitution

“granted Congress the authority to enact economic legislation” lends a

misleading specifi city to this provision that is utterly inconsistent with

the original context, which is in search of much larger themes. Indeed

the sentence before the passage quoted above reads: “Resolved That in

the second Branch of the Legislature of the United States each State shall

have an equal Vote.”

The most that can be said is that the Commerce Clause is one posi-

tion among many that helps this issue. But it gives no reason to think

that Justice Ginsburg’s vision had any traction with a group of Federal-

ists and Anti-Federalists, all of whom were champions of limited gov-

ernment in a world that had no place whatsoever for positive rights and

forced transfer payments instituted by a dominant national government.

It is perfectly sensible to say that the commerce power allowed Congress

to counteract the threat of local regulations to interstate trade, defi ned

as Chief Justice Marshall stated in Gibbons. Nor can Justice Ginsburg dis-

place these considerations by invoking the words “general Interests of

the Union,” which refer to those matters that concern the United States

as a whole, not the welfare of individual citizens within it. That concern

is evident in the account of the power of Congress under the Spending

Clause, which is related to “the general welfare of the United States,”

not the health care of any individual.26

Likewise, the question of where states are “separately incompetent”

does raise important issues that the Commerce Clause was supposed to

solve. On the one hand, it allowed for Congress to specify rules of inter-

state trade to expand the scope of the market. Regrettably, it also, in

connection with foreign commerce, allowed the use of protective tariffs

to reduce trade. But at no point in the early accounts of the Commerce

Clause is there any embrace of a positive right to health care guaranteed

by government; the states are not “separately incompetent” to provide

these services if they so choose.

Finally, Justice Ginsburg’s effort to bring in collective action and pris-

oner’s dilemma games misunderstands how those operations work.27 The

standard prisoner’s dilemma game presupposes two prisoners who have

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Constitutional Pushback 191

identical preference functions: each would rather go free than be con-

victed of a crime. Both know if each remains silent they will achieve their

common end. But so long as they cannot communicate each will pursue

his “dominant strategy,” which is to speak, such that no matter what the

other does he is better off speaking. But that does not begin to remotely

describe the situation here, where there are profound policy disagree-

ments about which collective solutions work, including fi erce opposition

on the substance to the ACA’s basic policy choices. Nor is there any reason

to think that state plans will fail unless all other states fall into line. The

Massachusetts universal health care program, which faces acute health

care pressures of its own, is not the only exemplar. The Healthy Indiana

Plan28 is a more successful approach to dealing with the uninsured that

does not look like a Rube Goldberg contraption; yet the Ginsburg deci-

sion makes no mention of this counterexample to the supposed prisoner’s

dilemma. More generally, it would be wrong to think that the Framers,

or anyone else, think that the greatest risk to sound policy decisions is

decentralized control. The greater risk in the rough and tumble environ-

ment of national politics is that a willful majority will impose its prefer-

ences on a vulnerable minority that vehemently resists all proposals for

centralization. Federal legislation allows states like Texas and Indiana to

join in the federal plan without fear of competition, if only they thought

it did any good. But of course they do not. The opposition of twenty-six

Republican governors to the Medicaid extension highlights the deep

ideological divide. There is no reason to think that they are wrong, any

more than there is good reason to think that the strict federal child labor

law struck down in Hammer was superior socially to North Carolina’s own

child labor law. To a classical liberal, centralization poses far greater risks

than decentralized decisions that place states in competition with each

other. It is only the progressive love affair with national monopolies that

treats competitive federalism as a destructive prisoner’s dilemma game.

The weaknesses in Justice Ginsburg’s opinion are not cured by

the academic defense of her position. I cannot recall a single pro-ACA

account of Gibbons that ever bothered to state its facts or to distinguish

away the restrictive language that Chief Justice Marshall inserted to

limit its language. Instead, Einer Elhauge excitedly questions, “If Health

Insurance Mandates Are Unconstitutional, Why Did the Founding

Fathers Back Them?”29 The clincher was that “[Congress] enacted a

federal law requiring the seamen to buy hospital insurance for them-

selves. That’s right, Congress enacted an individual mandate requiring

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192 Constitutional Structures: The Legislative Power

the purchase of health insurance.”30 All that is missing is a more precise

account of the circumstances. The 1798 statute was entitled “An Act

for the relief of sick and disabled Seamen.”31 Its core provision required

the master or owner of every foreign vessel coming into United States

ports to take (out of seamen’s wages no less) a fi xed sum which was to

be spent “to provide for the temporary relief and maintenance of sick or

disabled seamen, in the hospitals or other proper institutions now estab-

lished in the several ports of the United States,” where the president

had the discretion “to cause buildings, when necessary, to be erected as

hospitals for the accommodation of sick and disabled seamen.”

There is no doubt that this statute imposes duties on foreign vessels,

but the circumstances are wholly different from the ones at hand. The

mandate was not imposed on persons who were not engaged in any form

of commerce. Instead, it was imposed on foreign ships entering into the

United States, which lies of course at the core of the foreign commerce

power. The conditions in question were not imposed on some mysteri-

ous form of inactivity, but rather they were designed to make sure that

the seamen who came into the United States did not impose a burden

on the rest of the population. These conditions were thus intended to

prevent, not to create, cross-subsidies between different groups of per-

sons. Indeed the use of excess funds to construct hospitals for the care

of these seamen explains why this statute is utterly unproblematic even

under the narrowest reading of the Commerce Clause, which is why it

was passed by in silence for so many years.

Elhauge is on no stronger ground when he cites to the Militia Acts

of 1792.32 The respective titles of these two acts were “An Act to pro-

vide for calling forth the Militia to execute the laws of the Union, sup-

press insurrections and repel invasions” and “An Act more effectually

to provide for the National Defence by establishing an Uniform Militia

throughout the United States.” One requirement of these laws was that

every able-bodied white male between the ages of eighteen and for-

ty-fi ve “provide himself with a good musket or fi relock” and other forms

of equipment. But as is evident from the titles of the two statutes, this

action proceeded under the Militia Clauses, which envisioned explicit

cooperation between state and federal government under a provision

that gave Congress the power

[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the

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Constitutional Pushback 193

United States, reserving to the States respectively, the Appointment of the Offi cers, and the Authority of training the Militia according to the discipline prescribed by Congress.33

What this provision has to do with the Commerce Clause Elhauge never

explains.

In addition to these highly specifi c attacks, there are endless broad-

sides that vilify the critics of the individual mandate in harsh but unin-

formed terms. Andrew Koppelman thinks that any criticism of the

ACA must necessarily rest on “tough luck” libertarianism, undergirded

by a system of “absolute” property rights, by which people have not

only the right, but also the duty, to let other individuals suffer.34 But

the framers of the current challenge (of which I am not one) crafted

their view so that it would leave the existing versions of Medicare and

Medicaid intact. Nor at any point would it be credible to base an attack

on any government program on this hard-line libertarian view, for the

simple reason that the Constitution is not a libertarian document. Most

emphatically, it is a classical liberal document that allows for both taxa-

tion and eminent domain. Nor is the issue of wealth distribution at the

core of this debate, which is only over whether the federal government

can regulate this activity. What the attack surely does is call into ques-

tion the growth of government power, which thus far has been subject

to no intellectual opposition among the fashionable political elites. On

this score, it is notable that most judicial conservatives are not willing

to take up the cudgels themselves. Indeed the current political reality

is such that in the lower courts prominent judges like Jeffrey Sutton

on the Sixth Circuit and Laurence Silberman on the District of Colum-

bia Circuit both voted to sustain the individual mandate. As Silberman

put the point in Seven-Sky v. Holder,35 “The right to be free from federal

regulation is not absolute, and yields to the imperative that Congress

be free to forge national solutions to national problems, no matter how

local—or seemingly passive—their individual origins.” No one has ever

disputed the fi rst half of that sentence. But the second half encapsu-

lates the fundamental mistake of the modern progressive mindset. In

this instance the “national problem” is Congress, for which there is only

a constitutional, not a political, solution. That insight has been lost not

only with respect to the commerce power, but also with respect to the

congressional power to tax and spend, which the next chapter addresses.

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Enumerated Powers

Taxing and Spending

THE COMPREHENSIVE DISCUSSION of the Commerce Clause addresses the question of when and how Congress may regulate. But that clause cannot be read in isolation from other key powers afforded to the fed-

eral government, which may be exercised in tandem with it. The most

important of these for general purposes is the spending power, whose

history has followed a path parallel to that of the commerce power. At

the beginning, the restrictions found in the clause were respected at

the legislative and presidential levels, so that the functions exercised by

the federal government, consistent with the theory of limited govern-

ment, were tightly restrained to those expenditures which, to the extent

that was institutionally feasible, benefi ted the United States as a whole,

and not just one particular segment of it. But as the constitutional con-

straints on congressional power were eroded, the same pattern took

place with the Spending Clause. Thus the same progressive desire for

a large administrative state and extensive transfer programs reshaped

the Spending Clause to what it is today: only a modest restraint on the

power of Congress to regulate ordinary individuals. Yet at the same time,

restrictions contained in the Spending Clause have been subject to an

uncertain revival in National Federation of Independent Business v. Sebelius

(NFIB)1 with respect to the exercise of federal power against the states.

The Original Plan

In order to set the stage, it is necessary to set out the full text of the

Spending Clause:

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Enumerated Powers 195

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.2

Most critically, this provision allows the national government by

its own actions to raise all revenues needed to discharge its own obli-

gations. With one stroke, the Constitution eliminates the need for the

United States to beg for funds from the states, as it had to do under the

Articles of Confederation. But any system of limited government must

impose some limits on the proper objects of taxation, just as it must

place restrictions on its close substitute, the power to regulate.3 Accord-

ingly, Article I, Section 8 covers both domestic transactions, for which

the excise tax is relevant, and international transactions subject to duties

and imposts.

The inquiry thus becomes: to what ends may these taxing powers

be exercised? The key phrases are “to pay the Debts and provide for the

common Defence and general Welfare of the United States,” where it

should be understood that references to both the common defense and

the general welfare are “of the United States.” In most discussions of the

clause, those last four words are left out, so that the power now relates

to the “general Welfare,” which leads to such incautious statements by

Supreme Court justices who ordinarily take opposite positions in par-

ticular cases. Both sides of this misconceived debate are evident in the

NFIB decision, which upheld the individual health insurance mandate

under this clause. Justice Ginsburg, speaking for that expansive reading,

wrote, “Congress has broad authority to construct or adjust spending

programs to meet its contemporary understanding of ‘the general Wel-

fare.’”4 The four conservative dissenting justices essentially conceded the

point when they wrote “[t]he power to make any expenditure that fur-

thers ‘the general welfare’ is obviously very broad.”5

Both sides are clearly wrong. As was mentioned in connection with

Frothingham v. Mellon,6 the Spending Clause should be read to refer only

to public goods—benefi ts that can be supplied to one person only if they

are similarly extended to others.7 That inference is supportable even

without the words “of the United States,” for all three elements in the

sequence refer to collective actions. The debts in question are those of

the United States, not of random citizens. National defense is a classic

public good. The correct stress on the word “general” is in opposition

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196 Constitutional Structures: The Legislative Power

to particularized or local. The addition of the four words “of the United

States” only fortifi es the inference by showing that the expenditures

must be for the overall benefi t of the United States as a whole. A pro-

vision of this sort is absolutely essential to combat the well-understood

risks of faction, which can thrive when transfers between parties are

possible through the combined operation of the taxing and spending

powers. The point here can be made by thinking about the United States

as a public corporation, where it is hornbook law that corporate expen-

ditures by the directors and offi cers should be for the benefi t of the cor-

poration, which is the antithesis of coerced transfer payments from one

class of shareholders to another.

This accurate textual reading serves two essential functions. First,

it imposes an effective limit on the ability of the United States to use

taxation as a disguised system of wealth transfer—with its usual neg-

ative social consequences—either between individuals or between

states. Yet just that result happens once “general Welfare” has been

read to encompass transfer programs on an unimagined scale, all on

the dubious ground that everyone indirectly benefi ts when wealth is

taken from A and given to B. Second, this reading makes the spending

power congruent with the other limitations on the power to tax that

are found in Article I, including the requirement in Section 9, Clause

4, which provides:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

That provision, which covers not only head taxes but also taxes

levied on the ownership of land, was introduced to prevent a redistribu-

tion of wealth from rich to poor states because apportionment by pop-

ulation imposes high effective rates of taxation on the poorer states for

the maintenance of national collective ends.8 The same general obser-

vation can be made about the uniformity requirement, which likewise

was designed to prevent redistribution of wealth among states. Story put

the point as follows:

It [the requirement of uniform taxes] was to cut off all undue prefer- ences of one state over another in the regulation of subjects affecting their common interests. Unless duties, imposts, and excises were uni- form, the grossest and most oppressive inequalities, vitally affecting the pursuits and employments of the people of different states, might exist.9

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Enumerated Powers 197

Story’s objection is not to a general prohibition against systems of wealth

transfer from rich to poor individuals, for those could be done by the

states individually, each in accordance with its own policies.

Finally, any broad reading of the spending power makes the scope

of taxation no broader than the power of direct regulation, such that

Congress does not have any strong institutional incentive to funnel its

government programs through one channel or the other. It would be

passing strange that the Founders would have attached no substantive

limitations to the powers to tax and spend, when all the other enumer-

ated powers are carefully delimited. Allowing those powers at the center

to go beyond what the Articles of Confederation conferred on Congress

was bold enough. To throw caution to the wind by making the powers

to tax and spend unlimited would have been inconceivably reckless for

individuals with such cautious attitudes toward government. The “broad”

reading of the Spending Clause is antithetical to its text, structure, and

history. It suffers from the same defects as efforts to expand the meaning

of the Commerce Clause by giving a broad reading to the phrase “national

interest”10 in connection with treatment of the individual mandate.

The early interpretations of the Spending Clause bear out this nar-

row interpretation. James Madison understood the close substitutability

of taxation and regulation and thus argued that the proper objects of

taxation under Article I, Section 1 were limited to the activities that

Congress could regulate elsewhere under Article I, Section 8.11 Alex-

ander Hamilton, by contrast, took pains to insist that the term “general

Welfare” should be given a “comprehensive” reading such that “there

seems to be no room for doubt that whatever concerns the general inter-

ests of learning of agriculture of manufactures and of commerce is within

the sphere of the national councils, as far as regards an application of

money.”12 For Hamilton, the only limitation on the power was that rev-

enues be spent for national, not local, purposes. The political branches

of government followed this rendition more or less faithfully for well

over a century.13 Madison himself vetoed an internal improvements bill

devoted to the construction of roads and canals on the ground that it

invoked a broad reading that would render the list of enumerated pow-

ers “nugatory and improper.”14 James Buchanan took the same position

when he vetoed a college land grant bill on similar grounds.15 Michael

Greve expresses some caution about this view by noting the ambitious

scale of public works, which included “lighthouses, harbors and sundry

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198 Constitutional Structures: The Legislative Power

other local projects, with nary a peep of opposition from presidents.”16

It is indeed the case that no public good, from streetlights to defense,

provides uniform benefi ts to all persons. Indeed many people have long

protested the completion of particular roads and government structures.

But that test for uniform benefi ts is too restrictive for dealing with pub-

lic goods. One key feature with lighthouses and harbors is that they are

widely distributed across the country so that taken as a package, their

benefi ts are likely to be diffuse as well. In addition, each local project is

itself a public good, which, if available to one person, must be open to

all others. To be sure, the rate of utilization among individuals is likely

to differ, but that objection will be true in every case, and thus should

be given weight in none. The only requirement for a public good is open

access at the general, or national level. These early historical practices

of allowing some public improvements and not others to be subject to

federal fi nancing therefore lend no support for thinking that transfer

payments between parties are consonant with the general welfare.

The New Deal Response

These interpretive questions did not reach the courts until the tumultu-

ous days of the New Deal, which brought the issue to a head in United

States v. Butler.17 Butler purported to adopt Hamilton’s broader reading of

the clause for programs that bore no relationship to the various pub-

lic works programs just considered. The case arose out of Congress’s

ill-conceived efforts under the Agricultural Adjustment Act of 193318

(AAA) to “stabilize” agricultural payments by paying farmers money not

to grow certain types of crops. The scheme was classic cartel-like behav-

ior to restrict output in order to raise prices. Cheating by cartel members

always threatens their cohesion, such that legislators who want to uti-

lize cartels have to devise ways to secure compliance. Under the AAA

scheme, this was done by imposing processing fees on farmers as their

crops moved toward consumer markets. Individual farmers could not

escape the tax on the produce sold by turning down the programmatic

benefi ts. So each rational farmer had an unshakeable incentive to com-

ply with the output restrictions. The question in Butler, which relied

on the extended principles dealing with courts of equity developed in

Chapter 7, was whether a corporation in receivership could resist the tax

on the ground that it did not advance the general welfare.

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Enumerated Powers 199

The case resulted in a split decision. As a formal matter, the Court

in Butler rejected the Madisonian conception that tethered general wel-

fare to the other regulatory powers of Congress. On the alternative

view, which Hamilton articulated, only the inherent limitations found

in the clause itself mattered, all of which Hamilton wrongly ignored. So

it looked as if the tax should be sustained given Hamilton’s framework

that treated control of agriculture as a permissible government end. But

in a sharp reversal at the eleventh hour, Justice Owen Roberts found

that since Congress did not have the direct power to regulate agricul-

ture, it did not have the power to do so indirectly by its combined taxing

and spending program. Roberts thus honored the original constitutional

scheme by precluding taxation where direct regulation was forbidden.

The issue quickly became moot, however, after the inexorable New Deal

expansion of Congress’s commerce power to cover all economic transac-

tions, however located and situated. At that point, the argument about

substitution fl ips over. The intrinsic limitations in the three stated ends

of the Spending Clause may now receive a broad reading. With a newly

bulked up Commerce Clause, everything is allowed by direct regulation.

And it becomes impossible to resist any taxation scheme toward the

same end. One part of the original bulwark against large government

was thus overrun.

The ambiguities found in Butler were elaborated in the next of the

great Spending Clause cases, Steward Machine Co. v. Davis,19 which involved

a very different form of integration between the federal government and

the state. Title IX of the Social Security Act of 193520 imposed a fed-

eral payroll tax on employers, with this caveat: if the employer chose to

pay funds into a qualifi ed state plan that met certain minimum federal

standards, the federal government would credit it with 90 percent of

the funds otherwise owing to the federal government. The structure of

this program bears a close relationship to that of Butler, in that in both

cases Congress sought to use its taxation powers in order to overcome

the then-regnant limitations of the Commerce Clause. The key differ-

ence, however, was that the decision in Steward Machine came down

just weeks after Jones & Laughlin Steel21 had unshackled the Commerce

Clause from 150 years of precedent. Under that brave new world order,

Title IX should be regarded as unquestionably constitutional. Now, if

not in 1935, the federal government is in a position to take over the

operation of the unemployment program; the tax and return strategy

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200 Constitutional Structures: The Legislative Power

no longer counts as an evasion of the constitutional limits found under

the commerce power.

None of this was apparent to any of the justices in Steward Machine,

which does not mention the Commerce Clause at all. Instead, the exer-

cise under the Spending Clause was treated as if the constitutional land-

scape remained unchanged since 1935. Starting from that premise, the

legislation was sustained by a fi ve-to-four vote. Justice James McReyn-

olds, writing for the conservative minority, would have struck the law

down for fl outing a doctrine once “fi rmly established” that “the States

remained really free to exercise governmental powers, not delegated or

prohibited, without interference by the Federal Government through

threats of punitive measures or offers of seductive favors.”22 His man-

ifest fear was that through these conditional grants, the United States

could thus “assume all that duty of either public philanthropy or public

necessity to the dependent, the orphan, the sick, or the needy which is

now discharged by the States themselves or by corporate institutions

or private endowments existing under the legislation of the States.”23

Under the old order, his position is correct because this combination

of sticks (taxes) and carrots (rebates) necessarily alters the balance of

power between the federal government and the states. Put the federal

program in place, and states have the option as to whether to run this

program, but they no longer have the option to run no program at all,

or to run a program different from the one that meets federal standards.

The circumvention risk is the same as it was in Butler. The purpose of this

scheme is to foreclose even sensible types of local experimentation of the

kind Justice Brandeis lauded in New State Ice Co. v. Liebmann: “It is one of

the happy incidents of the federal system that a single courageous State

may, if its citizens choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the country.”24 Steward

Machine shut those laboratories down.

Seeing the world through a pre-1937 lens, Justice Cardozo, writing

for the fi ve-member progressive majority, adopted a different strategy

that preserved some, but not all, limits on the scope of federal power.

Cardozo did not seek to overturn Butler, but he scrupulously sought to

distinguish it, chiefl y on the ground that money taken from state citizens

was returned in large measure to those same states, so that there was

little risk that the program would massively redistribute wealth across

states. The loss in state sovereignty was measured by the (presumed)

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Enumerated Powers 201

modest gap between the state’s own preferred unemployment program

and that of the federal government. Having taken that position, Cardozo

was then forced to treat the line between coercion and temptation ulti-

mately as a matter of degree. With one eye on the McReynolds dissent,

he wrote as follows:

In like manner, every rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless diffi culties. The outcome of such a doctrine is the acceptance of a philosophical deter- minism by which choice becomes impossible. Till now, the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems. The wisdom of the hypothesis has illustration in this case. Nothing in the case suggests the exertion of a power akin to undue infl uence, if we assume that such a concept can ever be applied with fi tness to the relations between state and nation. Even on that assumption, the location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree—at times, perhaps, of fact.25

This extended passage “plunges” the law into the very conceptual

diffi culties that Cardozo sought to avoid. First of all, it is clear that the

notion of coercion can apply to entities as well as persons, to corporations

as well as governments. In this case, the complication arises because the

tax is imposed on individuals within the state, and the money is then

returned to the state government. But the only sensible way to see this

relationship is to treat each state as if it were linked to its citizens. After

all, the system would break if the revenues collected from the citizens of

state A were paid into the coffers of state B.

With that settled, Cardozo well understood that if the distinction

between coercion and temptation is a matter of degree, no one will know

exactly where to draw the line. The want of strong conceptual tools will

then by default place that decision in the hands of the Congress, whose

discretion will be challenged rarely, if at all. But Cardozo’s “robust com-

mon sense” does reduce fundamental distinctions to squishy questions

of degree. The consequences of coercion and temptation differ dramat-

ically. We use boundary lines to determine fair and foul balls. The same

is true here. Accordingly, the correct analysis draws a hard-edged line

between the two whenever (which is most always) the property rights

involved in any dispute are well defi ned. Put an individual to a choice

between his money and his life, and he has been coerced even though

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202 Constitutional Structures: The Legislative Power

the element of choice remains. This threat works because the victim pre-

fers his life and the assailant prefers the money, so that the resulting deal

works to the benefi t of both. But step back from the antecedent threat

and the coercion becomes clear, because each person is entitled to both

his money and his life, and thus should not be forced to choose between

them. Yet the landscape changes completely with the ordinary bargain

in those cases where one person refuses to sell his goods or render his

services to another unless she agrees to meet his price. It is in general

permissible to put people to a choice between your property and mine.

By way of example, suppose one person goes up to a stranger and

puts a gun to his head in order to get $10 to buy a train ticket. He

refuses to take any additional money. The act is still one of coercion

whether the person subjected to the threat has $10 or $1,000 in his

pocket. It is the kind of choice that is offered, not the amount taken,

that matters to the offer/threat distinction. The question of the degree

only goes to the extent, not the fact of coercion. Title IX is thus coercive

and survives post-1937 only because the weak constitutional protection

of property rights places a huge wedge between the public law and its

private analogies.

This omnipresent problem of coercion is subject to yet another

complication in its relationship to monopoly power of the sort pos-

sessed by a common carrier that runs, by assumption, the only train or

inn to which travelers may turn. These carriers have long been required

to deal with everyone on reasonable and nondiscriminatory (or RAND)

terms. The libertarian account of coercion as the use or threat of force

is not implicated by this refusal to deal, which is the only position that

allows competitive markets to operate. But in the monopoly setting,

the consequences of refusal are no longer service by someone else at

roughly the same price and terms, but no service at all. From the ear-

liest times, therefore, the common carrier has the correlative duty to

serve. Most notably, Sir Matthew Hale fi rst announced the principle

that some services were “affected with the public interest” in the late

seventeenth century in his treatise De Portis Maribus (Concerning the

Gates to the Sea).26 His account was then turned into law in the great

English case of Allnutt v. Inglis,27 which held that any party that holds

either a legal or natural monopoly must deal with all comers on rea-

sonable and nondiscriminatory terms. Lord Ellenborough thus put the

point as follows:

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Enumerated Powers 203

There is no doubt that the general principle is favored, both in law and justice, that every man may fi x what price he pleases upon his own property, or the use of it; but if for a particular purpose the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefi t of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms.28

Allnutt v. Inglis made its way fi rmly into the American constitu-

tional law of rate regulation in Munn v. Illinois,29 where this passage

was quoted in full. Its basic point is that no one who enjoys a monop-

oly position is allowed to give prospective customers take-it-or-leave-it

offers that deviate from the competitive equilibrium, but must instead

supply the relevant goods on reasonable and nondiscriminatory terms.

The term “coercion” is often used, somewhat uncritically to cover this

effort to remove the specter of monopoly profi ts. But the existence

of this duty, which gives rise to an immense literature of its own on

matters of rate regulation, is a necessary component of any analysis

of coercion.

Modern Developments

These interlocking themes surfaced some fi fty years after Butler and

Steward Machine when the Court revisited the limits on Congress’s pow-

ers to tax and spend in South Dakota v. Dole.30 The question before the

Court in Dole had to do with the interaction between the Commerce

Clause and the Twenty-First Amendment repealing prohibition, which

was adopted in 1933, before the 1937 expansion of the commerce

power. Specifi cally at issue was a 1984 federal statute31 that authorized

the secretary of transportation, then Elizabeth Dole, to withhold 5 per-

cent of federal highway funds otherwise payable to states “in which the

purchase or public possession . . . of any alcoholic beverage by a person

who is less than twenty-one years of age is lawful.” The moneys were

withheld from South Dakota because it permitted persons nineteen

years or older to purchase beer containing 3.2 percent alcohol. Section

2 of the Twenty-First Amendment provides:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

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204 Constitutional Structures: The Legislative Power

The purpose of this amendment was to turn the constitutional clock

back to the situation that existed prior to the adoption of the Eighteenth

Amendment imposing prohibition, when cases like Kidd v. Pearson32 allo-

cated the regulation of the consumption and production of alcohol to

the states. An earlier Supreme Court decision reached just that con-

clusion by holding that the “Twenty-fi rst Amendment grants the States

virtually complete control over whether to permit importation or sale of

liquor and how to structure the liquor distribution system.”33 The key

question therefore was whether the power to condition federal spend-

ing allowed the federal government to work around that limitation by

imposing this threat. The two dissenters in the decision, Justices Bren-

nan and O’Connor, applied the basic anticircumvention rule in voting

to strike down this scheme. Justice Brennan’s brief opinion held that

“Congress cannot condition a federal grant in a fashion that abridges this

right,”34 i.e., those powers reserved to the states under the Twenty-First

Amendment. Justice O’Connor wrote a more extended version of the

argument that tracked the position set out above. Without mentioning

Hammer v. Dagenhart35 or the Child Labor Tax Case36 (doubtless because of

their bad constitutional odor), she concluded that the powers to tax and

spend had to be read in parallel with the scope of the commerce power.

Since the 1937 general transformation did not displace the Twenty-First

Amendment, the effort to use the spending power to alter the distribu-

tion of federal-state relationships failed.

Implicit in this argument is an acceptance that the doctrine of

unconstitutional conditions attaches to each and every exercise of fed-

eral power. Chief Justice Rehnquist rejected the proposition that any

condition could be attached to the federal spending power, but declined

to take the categorical approach of Justices Brennan and O’Connor.

Instead, he consciously built on Cardozo’s earlier decision in Steward

Machine in ways that softened the general application of the doctrine.

His four conditions were as follows:

The fi rst of these limitations is derived from the language of the Con- stitution itself: the exercise of the spending power must be in pursuit of “the general Welfare.” In considering whether a particular expenditure is intended to serve general public purposes, courts should defer sub- stantially to the judgment of Congress. Second, we have required that, if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously . . . enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Third,

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Enumerated Powers 205

our cases have suggested (without signifi cant elaboration) that condi- tions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs.” Finally, we have noted that other constitutional provisions may provide an indepen- dent bar to the conditional grant of federal funds.37

There are serious diffi culties with each of these components. The

fi rst condition overreads the extent of the term “general Welfare” and

thus confers unwarranted discretion on Congress. The second limitation,

dealing with clear notice, imposes at most a weak drafting constraint

on Congress that was easily satisfi ed in Dole. The third requirement, on

relatedness, imposes a “germaneness” requirement,38 demanding some

connection between the grant and a legitimate public purpose. On this

score, the outcome is sketchy because the federal prohibition against

drinking is in no way tethered to driving on public highways, but covers

all activities. The fourth condition is clearly sensible, but comes into play

only in a few cases.

The frailness of these constraints becomes evident when Rehnquist

turns to his analysis of the recurrent coercion question. Placing heavy

reliance on Steward Machine, Rehnquist writes:

Our decisions have recognized that, in some circumstances, the fi nancial inducement offered by Congress might be so coercive as to pass the point at which “pressure turns into compulsion.” Steward Machine Co. v. Davis . . . Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective.

When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specifi ed highway grant programs, the argument as to coercion is shown to be more rhetoric than fact. . . .

Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory, but in fact.39

Rehnquist has swallowed whole every intellectual confusion found

in Steward Machine. The analytic question that remains is to fi nd, under

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206 Constitutional Structures: The Legislative Power

his formulation, the point where pressure turns into compulsion. There is

of course no such point, so all the subsequent cases fell short of coercion,

even when withholding as much as 95 percent of the expenditures.40

Thus stands the unsatisfactory state of play until the recent decision

in NFIB, where the use of the power to tax and spend came up both

in connection with the individual mandate and the so-called Medicaid

extension program. Dealing with the former, the decisive vote in this

case belonged to Chief Justice Roberts, who held that the ACA could

not be sustained under the Commerce Clause because the government

could not force individuals to engage in conduct that it could then reg-

ulate. But there is a correlative inference that Roberts refuses to draw.

Just as Congress cannot regulate inactivity, there is no general theory

of taxation that taxes economic inactivity. Taxes are imposed on earned

and investment income; on engaging in specifi c transactions, like sales

and leases; and on the ownership of real property and other assets. No

tax has ever been imposed for not dancing, eating, or thinking. That

point alone should have cautioned him against sustaining this mandate,

but to no avail. After his torturous explanation of why what Congress

called a penalty should now be viewed as a tax, he compounds the dif-

fi culty by refusing to read the taxing power in harmony with the com-

merce power. To be sure, he dutifully cites both the Child Labor Tax Case41

and Butler,42 even though these cut the opposite way. Both cases stand

for parity between powers to regulate commerce and to tax and spend.

Once the inactivity limitation precludes federal power under the Com-

merce Clause, the infi rmity under the Spending Clause should follow as

a matter of course. The mandate should fall. The argument rejected by

every court below sprouted wings in the Supreme Court.

The received wisdom on these issues does not rest on this discus-

sion of parity but on the ground that the rational basis test imposes no

serious limitations on the way in which Congress decides to use the

tax code. It is thus commonplace today to speak of the tax expenditure

budget, which counts as a departure from the normal tax budget that

is intended to provide particular benefi ts in order to favor some partic-

ular industry, activity, or class of persons.43 These benefi ts could cover

everything from benefi ts to married couples that fi le joint returns to

benefi ts to individuals who install extra insulation in their windows.

Under current law, the great challenge is to explain why the individual

mandate should suffer a different fate from all these provisions, when it

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Enumerated Powers 207

could be recast as a forgiveness of a tax liability for those who procure

the required level of health care insurance. There is no neat answer to

this question under the rational basis test of the modern law. But this

contention is easily rejected on the originalist view that the Spending

Clause prohibits all transfer payments between ordinary individuals. At

this point, the anticircumvention principle comes into play, so that the

test bans the use of tax expenditures where direct payments to a given

person with respect to a given activity would run afoul of the limitations

built into the clause. It is precisely because the strong view of the taxing

and spending power is rejected that it becomes diffi cult to use Roberts’s

inconclusive discussion of the tax-versus-penalty debate to strike down

this new use of the taxing power.44

Chief Justice Roberts thus may well be right after all on the taxing

power. But if so, what was so odd about this performance was Roberts’s

profound shift in gears in striking down portions of Title II of the ACA,

whose Medicaid extension provision required states to forfeit all their

Medicaid revenues if they refused to supply Medicaid benefi ts to all indi-

viduals who earned less than 133 percent of poverty-level income and

to freeze their Medicaid benefi ts at current levels to existing recipients.45

In exchange for compliance, the government offered to cover the full

costs of the extra payments up to 2016, and no less than 90 percent

thereafter.46 The program also required the states to pick up the admin-

istrative expenditures for a program that could add about seventeen mil-

lion people to the rolls.47

Many states with Democratic governors and legislatures liked the

terms of the deal, which they accepted without complaint. But twen-

ty-six states with Republican governors, headed by Florida and Texas,

did not wish to accept the deal, and thus sought to invalidate either the

condition, or indeed all of Title II, on the grounds that the rest of the title

could not be severed from this condition. Following the analysis in South

Dakota v. Dole, the case looks like a loser. Indeed no federal court that

reviewed the issue was prepared to strike down the Medicaid extension,

which only made it to the Supreme Court because it ordered the issue

to be briefed on both sides.48 Once there, the coercion arguments made

a comeback suffi cient to attract not only the four conservative justices,

but Justices Breyer and Kagan as well.

The chief justice starts by noting that the conditions attached were

like “a gun to the head” of the states.49 That rather misplaced use of the

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208 Constitutional Structures: The Legislative Power

force language turns attention away from the only issue in the case,

which is whether it is permissible for the federal government to attach

this condition to its monopoly power of taxing and spending. On that

point, Chief Justice Roberts begins by noting that Spending Clause leg-

islation is “much in the nature of a contract,”50 and thus carries with it

the standard limitations that attach to freedom of contract. Such limita-

tions should in principle include the familiar restrictions of reasonable

and nondiscriminatory service. Chief Justice Roberts of course does not

utter the word “monopoly” in his opinion. Yet just as with the law of

antitrust and common carriers he is, perforce, in the constitutional busi-

ness of trying to sort out the difference between illicit conditions that

leverage monopoly power and effi cient conditions that rationalize the

way in which the grants should be spent, which include conditions that

let the federal government insist that Medicaid funds be spent on Med-

icaid purposes. Yet on the opposite side of the line are those conditions

that are likely to run afoul of common carrier and antitrust restrictions

on exclusive dealing or tying arrangements.51 At this point, the Medic-

aid restrictions fall on the opposite side of the line. “Conditions that do

not here govern the use of the funds, however, cannot be justifi ed on

that basis. When, for example, such conditions take the form of threats

to terminate other signifi cant independent grants, the conditions are

properly viewed as a means of pressuring the States to accept policy

changes.”52 The logic behind this position is this: the citizens of each of

the states have to be considered, as noted earlier, as being equivalent to

the state itself. The threat in question therefore is not one that just says,

“Don’t like our conditions? Don’t play.” It is one that says that if you

don’t like our conditions, you can avoid them only if you forfeit all the

taxes paid to the federal government, where they can then be spent to

help other states.

To be sure, this case is in a sense weaker than both Butler and Stew-

ard Machinery because the federal government today has unquestioned

power to create and administer a Medicaid program. But at the same

time, the explicit linkage means that dropping out of the program comes

only at prohibitive costs. No common carrier could say, by way of com-

parison, that it will only carry people who agree to give them all their

business whenever possible, or have an exclusive dealing provision that

says if you want to advertise in my dominant newspaper, you cannot

advertise on local radio stations as well.53 In none of these cases would it

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Enumerated Powers 209

be a defense for the aggrieved party to have consented to the transaction

in question. That principle, which was not mentioned in the Roberts

decision, lends strength to his view that the power “to alter, amend, or

repeal” the statute did not exempt the government from the general

strictures associated with judicial review.54

At this point, all that remains is for the chief justice to fi nesse the

language from Steward Machine, which asked whether pressure had

turned to compulsion. Without mentioning the four Dole factors, he dis-

tinguishes the case both on the size of the sacrifi ce required and on its

discontinuous nature, which made it a new program instead of an old

one. Descriptively, no one ever contested that the Medicaid extension

was such a new program. But it was also possible, at least in theory, for

Congress to repeal the whole statute, lock, stock, and barrel, and put a

new one in its place. That course of action could not be done in practice.

Any effort to repeal and repass the legislation in the same bill looks like

a sham intended to evade the application of the doctrine of unconsti-

tutional conditions. Worse still, that huge sea change could disrupt all

sorts of private arrangements whose validity was predicated on the con-

tinued operation of the older statute. Once it is recognized that freedom

of contract cannot be the operative principle in dealing with conditional

spending cases, the inability to fi nd a strong effi ciency justifi cation for

the extension makes the decision to strike down this option acceptable.

The federal government could not have said that if you turn down the

Medicaid extension, you lose all federal aid to education. This case is

close enough to that to require the same result. Ironically, the chief jus-

tice’s opinion leaves uncertain whether the Dole line between coercion

and encouragement is still viable at all. Correctly understood, Dole is an

easy case in which the condition was wrongly allowed to stand, while

NFIB is a more diffi cult case in which the offending principle was struck

down. The one point that does shine through is this: the outcome in

Spending Clause cases, as everywhere else, turns on the willingness to

accept the rational basis test. In NFIB, Justice Roberts stiffened his spine

with respect to the Medicaid extension, but not the individual mandate,

which explains the discordant results for the two provisions. The ulti-

mate direction of this saga has yet to play itself out.

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The Necessary and Proper Clause

NO DISCUSSION of the legislative power is complete without some examination of the Necessary and Proper Clause, the fi nal clause in Article I, Section 8, which gives Congress the following power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Depart- ment or Offi cer thereof.1

Stated in this form, the clause not only gives an added boost to the

specifi c powers conferred upon Congress, but it also allows Congress to

augment the powers of any government actor, including those in the

executive and judicial branches. In one sense, it is an open question

whether the inclusion of this clause in the Constitution was necessary

or proper, given that the types of ancillary powers it addresses, under

orthodox interpretive principles, would likely be read into the docu-

ment anyway. It was just that view that prompted both Madison and

Hamilton to treat the clause as largely redundant—which, whatever

that means, does not mean transformative.2 Their opinion may be too

restrictive, for the clause does introduce some play in the joints, so as to

allow each branch of government to carry into execution its enumerated

powers. One common way of putting the point is that the clause allows

for the use of “incidental” powers needed to effectuate the enumerated

powers, but does not allow Congress to set out for itself new substantive

powers that were not set out in the earlier enumeration.3 Ample means

are made available to achieve stated ends. But, as John Marshall recog-

nized—fi rst in McCulloch v. Maryland4 and then in Gibbons v. Ogden5—the

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The Necessary and Proper Clause 211

clause does not expand the permissible set of powers that the Constitu-

tion confers on Congress.

The Final Piece of the Legislative Puzzle

Within this general functional approach, just what do the terms “neces-

sary” and “proper” mean? The secret of sound constitutional interpreta-

tion is to take it one word at a time, by asking fi rst what is “necessary”

and then what is “proper.”6 In dealing with this issue, the fi rst of these

terms expresses some close means/ends connection, which is impossible

to specify exactly, but which lies somewhere between “appropriate” and

“indispensable,” both of which appear elsewhere in the Constitution.

The term “proper” implies that the action in addition meet some norma-

tive standard of propriety, which is also diffi cult to pin down with great

exactitude.

Nonetheless, recent research by Gary Lawson, Geoffrey Miller, Rob-

ert Natalson, and Guy Seidman has shown that by 1787 there were

enough well-developed private law analogies to the use of these terms

that no court needed to fl y blind in interpreting them. Thus phrases of

this import appear commonly enough in corporate charters, real estate

deeds, and trust instruments to give some sense as to their purpose. They

are to make sure that parties entrusted with the care of other individuals

have suffi cient power to discharge their duties, but not so much as to

abuse that relationship. Indeed, it is worth noting that the Necessary

and Proper Clause of 1787 antedates the adoption of the Bill of Rights

in 1791. But it is not too great a leap to indicate that it seeks to capture

in three words many of those key concepts. It is hard to think that any

actions of a judiciary could be regarded as proper if they showed partial-

ity to one side or failed to allow for a hearing, or that any government

offi cial given power to discharge public funds could systematically favor

those allied with him. Put otherwise, as with all the other provisions in a

charter dedicated to limited government, the selfsame clause both gives

and restrains the use of power by, as the clause itself makes evident, all

branches or departments of government. It is for just this reason that

the clause “required delegated power to be exercised with impartiality,

effi cacy, proportionality, and regard for people’s rights.”7

In addition, there is good reason to believe on the strength of recent

research by William Baude that the clause contained an important

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212 Constitutional Structures: The Legislative Power

federalism dimension.8 Baude has shown by an exhaustive analysis of

the early evidence that the Necessary and Proper Clause did not, at least

in accordance with established practice, allow the federal government to

exercise the power of eminent domain within the states, even though

it could exercise that power in the territories. Indeed, he notes that the

fi rst federal acceptance of this general power within the states dates to

the case of Kohl v. United States in 1875, which treated that power as

“essential to its independent existence and perpetuity”9—as it surely is.

There is no linguistic permutation of the phrase “necessary and proper”

that appears to prevent Congress from condemning land to build a post

offi ce or to extend a post road if it so chose, in connection with its power

“To establish Post Offi ces and post Roads.”10

To see why, it is clear that the voluntary acquisition of land for these

purposes is surely covered by any account of the clause. Given the risk

that private landowners could hold out for exorbitant sums if the federal

government could not condemn their land for roads, how could it not be

“necessary” for the United States to have the power of condemnation for

this evident “public use”? For such condemnation to be made “proper,”

one might simply add that “just compensation” be provided; with only

a small dollop of imagination, “proper” here reads like a full-blown Tak-

ings Clause.

This textual appearance is deceptive, however, when placed in his-

torical context. Baude’s core observation is that “proper” in this context

requires a respect for the system of dual sovereignty that the Constitu-

tion creates.11 Eminent domain is an extraordinary power of the sover-

eign to take property that is denied to ordinary people acting on their

own initiative. There can therefore be only one sovereign in any ter-

ritory capable of exercising that supreme power. It would be unthink-

able to strip the states of that power, so it was a federal government

of enumerated and limited power that was deprived of the eminent

domain power. Eminent domain is not on the list of distinct enumerated

powers that the Constitution gives to the federal government over the

states, so the federal government may exercise this power only in the

District of Columbia and the territories (which was a much bigger issue

then than it is now).12 Of course, the federal government did require

land located within the states, which it obtained, apparently without

diffi culty, through cooperative arrangements with the states, who con-

demned land on behalf of the federal government. Baude points out

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The Necessary and Proper Clause 213

several examples, involving, for example, New York and New Jersey

statutes that authorized the taking of property to outfi t a federal light-

house at Sandy Hook.13

Indeed it is only this federalist construction that explains other key

provisions of the Constitution. Article I, Section 8, clause 17 provides

that the Congress may “exercise like Authority over all Places purchased

by the Consent of the Legislature of the State in which the Same shall

be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other

needful Buildings.” This clause appears just before the Necessary and

Proper Clause, and this narrow list of public projects is repeated seriatim

in a Massachusetts statute that authorized the United States to take land

on Governor’s Island in Boston Harbor.14 The word “needful,” more-

over, is found only in one other place in the Constitution, namely in

Article IV, Section 3, clause 2, which most instructively states that “The

Congress shall have Power to dispose of and make all needful Rules

and Regulations respecting the Territory or other Property belonging

to the United States; . . .” The word “needful” in this provision cov-

ers not only the power to dispose of property but also the power to

condemn it for the very same type of facilities for which cooperative

arrangements are introduced in Article I, Section 8, clause 17. In addi-

tion, the instructive words “like authority” confer the same powers over

this very restricted class of what today are called “essential facilities” that

the Congress has over the District of Columbia, whose creation is also

authorized in clause 17. The need to obtain the consent of the state to

acquire these facilities tends strongly to confi rm the Baude hypothesis,

and to explain the restrictive interpretation that should be given to the

Necessary and Proper Clause as it deals both with individual rights and

federalism issues.

Both these dimensions are important to tracing the history of the

Necessary and Proper Clause after its adoption, where it becomes evi-

dent that nothing insulated the clause from the continuous pressure to

expand the scope of federal powers beyond their original confi nes. It is

instructive to follow its course over the same historical arc that has been

traversed already, chiefl y in connection with the spending and com-

merce powers, taking special note of how these have evolved both before

and after the constitutional watershed of the Court’s 1936–1937 term.

Accordingly, I shall cover the creation of the national banks, the use of

greenbacks as legal tender, and the rise of the modern administrative

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214 Constitutional Structures: The Legislative Power

state. In this instance, the great expansion of the clause occurred prior

to the Progressive Era. Indeed, in modern times, with the expansion of

Congress’s powers over commerce, taxing, and spending, the Necessary

and Proper Clause has, if anything, retreated in its scope and infl uence.

The Saga of the Two National Banks

The Supreme Court’s initial foray into the Necessary and Proper Clause

came in the famous 1819 case of McCulloch v. Maryland,15 where Chief

Justice Marshall concluded that the clause had enough running room

to confer on Congress the power to establish a national bank, a private

corporation in which the United States had a 20 percent equity stake.

The enumerated powers in Article I, Section 8 allow Congress to bor-

row money on the credit of the United States, to coin money, and to

punish counterfeiting. Surely the Necessary and Proper Clause allows

Congress to establish a mint to do the coinage, just as the power to tax

allows Congress to move revenues it collects from place to place. From

the earliest times, howls of protest were raised against the thought that

legislation had to bog itself down on these small matters of managerial

detail that were not proper objects of legislation. Congress’s power to

establish post roads did not require it to map out the details of each

route.16 Or as Justice Strong stated in the Legal Tender Cases: “Under the

power to establish post-offi ces and post-roads Congress has provided

for carrying the mails, punishing theft of letters and mail robberies, and

even for transporting the mails to foreign countries.”17 Condemnation of

land is, however, not mentioned.

All these cases have a goodness of fi t—neither too broad nor too

narrow—that makes the inference irresistible no matter how rigorous

the judicial scrutiny. The chosen activities only cover areas where Con-

gress is authorized to act, without trenching on areas off-limits to it. But

a national bank enters into many types of transactions, such as private

loans that are unrelated to any enumerated governmental function. The

classical liberal presumption in favor of limited government militates

against extending Congress’s power to charter a bank.

Nonetheless, Chief Justice Marshall upheld the charter for a unani-

mous Court. In reaching his conclusion, he had the weight of history on

his side, given that Congress had chartered a First National Bank in 1791,

which lasted for twenty years. The initial authorization of the bank was

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The Necessary and Proper Clause 215

itself contested between Hamilton and Madison (who had also differed

on the scope of the spending power),18 when Madison, joined by Jeffer-

son, took the position that all of the enumerated powers of the federal

government, including the power to borrow money or to regulate com-

merce, “can all be carried into execution without a bank. A bank there-

fore is not necessary, and consequently not authorized by this phrase.”19

But at that time, at least, Hamilton prevailed by insisting that by both the

“grammatical and popular” senses of the term, “necessary often means no

more than needful, requisite, incidental, useful, or conductive to.”20

As a legal matter, the question of constitutional power to establish a

national bank must be resolved independent of any view of the success

of the bank in its commercial operations, which in this instance were

substantial. Nonetheless, the relative success of the First National Bank

made it easier for Marshall to follow Hamilton and sustain the creation

of the Second National Bank under the Necessary and Proper Clause.21

He opened that defense of the bank by noting the “embarrassments”

under the Articles of Confederation,22 and with the emotively powerful

observation that “we must never forget, that it is a constitution we are

expounding.”23 But which way does this nostrum cut? The classical lib-

eral reads that stirring proposition as a two-sided warning: it is necessary

to be sure that Congress has the powers it needs; it is equally necessary

to make sure that Congress does not overstep the limits on its power.

Marshall, however, paid heed only to the fi rst when he read the clause

also to confer large “discretion” on Congress to adapt means to ends,

concluding with this oft-quoted fl ourish:

We admit, as all must admit, that the powers of the government are lim- ited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most benefi cial to the peo- ple. Let the end be legitimate, let it be within the scope of the constitu- tion, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.24

Any fears of abusive faction get short shrift in McCulloch by the

undefended assertion that Congress, on this or any other matter, will

act “in the manner most benefi cial to the people.” More critically, note

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216 Constitutional Structures: The Legislative Power

Marshall’s conscious and crafty transformation of the textual question:

if the means chosen are “necessary” and “proper” for the task at hand,

actions that are unnecessary or improper should not cut it. But Mar-

shall bundled these two separate requirements into a single pallid word:

“appropriate.” Introducing a word that is not in the constitutional text

necessarily expanded the scope of government power. It is more diffi cult

to sustain the bank as “necessary” if government operations could well

run without it. On this matter, it has been pointed out that the First

Bank of the United States had helped raise credit for the United States,

which was lacking during the War of 1812 after the First Bank’s charter

had not been renewed.25 But there remains the question of whether,

in the absence of a national bank, more state-chartered banks would

have been available to fi ll that gap—given that their number doubled

between 1811 and 1816.26 And other institutions handled fi nancial mat-

ters once the Second National Bank went out of business in 1836. So it

is fair to ask why the United States must do its business through a bank

in which it has a minority stake when so many state-chartered banks

are already in business. Unfortunately, Marshall did not outline any

specifi c inconveniences of not having the national bank, which might

have made out his case under a narrower reading of the Necessary and

Proper Clause. Indeed he chose this abstract path precisely because he

was intent on defending Hamilton’s broader view. It is also worth noting

that a decision that keeps the United States from engaging in ordinary

banking functions does not necessarily doom the specialized Federal

Reserve Bank, which operates as the bank of banks, with obvious regu-

latory functions.

But what about the term “proper,” which disappears under Mar-

shall’s deft reinterpretation? Try this: means are proper if they do not

trench unduly into areas that are off-limits to the federal government,

including participation in ordinary banking activities. Taking both halves

of the clause seriously does not yield any simple mechanical test. But

it does rule out Marshall’s expansive reading in favor of a more cir-

cumspect view that compares two types of error: blocking the bank and

denying Congress some legitimate powers, relative to allowing the bank

and granting Congress unauthorized powers. That choice seems quite

easy: the bank should not be allowed. Although the First Bank had per-

formed well, the administration of the Second Bank was marred with

corruption and incompetence before Andrew Jackson let it die, which

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The Necessary and Proper Clause 217

it did without any visible inconvenience to the public whose interests it

was said to serve.27

One additional textualist argument Chief Justice Marshall used to

justify his more capacious reading of the Necessary and Proper Clause

was to compare the word “necessary” with the words “absolutely neces-

sary” in Article I, Section 10, clause 2:

No State shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

This carefully wrought structure provides inspired defense of free

trade in multiple layers: fi rst Congress must consent to the imposition;

then it must be absolutely necessary; then the net proceeds over the

cost of collection are remitted to Congress. Finally, once the process is

in place, the entire scheme is subject to a second round of congressional

control. If one thing is clear from this series of obstacles, it is that the

Constitution took strong measures to create an internal free trade zone

consistent with classical liberal principles in a way in which the evident

willingness to tolerate external tariffs was not.

But focus solely on the use of the words “absolutely necessary.”

Do they support the transformation of “necessary and proper” into

“appropriate”? Not really, because the two clauses are distinguishable

even if the narrower reading of “necessary and proper,” urged above,

is accepted. Any effort to create a free trade zone among states has

to combat the risks of contagion and infection that count as obvious

harms. Every free trade regime has to allow for that protective exercise

of domestic sovereign power. But by the same token, the Constitution,

alert to the risk of circumvention, did not permit states to transform

these inspection laws into disguised tariff or trade barriers, which

explains the use of the words “absolutely necessary” and the transfer of

net proceeds to the U.S. Treasury. Hence, applying two kinds of error

analysis in dealing with the Import/Export Clause has a very different

valence than it does for the Necessary and Proper Clause. The Constitu-

tion guards against the risks of over-inspection, not under-inspection.

But with necessary and proper, both over- and under-regulation are

risks to be reckoned on.

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218 Constitutional Structures: The Legislative Power

It is therefore a mistake to assume that there is no middle ground

between strict scrutiny of imposts on imports and exports and broad

discretion for Congress to create a bank. Stated in the now-canonical

terms of modern constitutional theory, the law offers three, not two,

standards of judicial scrutiny for any piece of legislation. The fi rst of

these, exemplifi ed in the Import/Export Clause, is strict scrutiny. At

the opposite end lies what is termed, misleadingly, a “rational basis”

approach, which sustains legislation so long as any barely respectable

reason can be given in its favor, no matter how strong the arguments

against it. Marshall adopted this approach in McCulloch. In so doing he

skipped over all forms of intermediate scrutiny that weigh equally the

risk of too much and too little government. By gravitating to the ratio-

nal basis test, Marshall set the groundwork for the latest progressive

movement, which is why the two major architects of limited judicial

review—James Bradley Thayer and Felix Frankfurter—adored Mar-

shall’s tour-de-force in McCulloch.28

The Legal Tender Cases

Marshall’s choice of language shaped the judicial debates in the Legal

Tender Cases, now largely neglected, which arose after the turmoil of the

Civil War. The simple question was whether the Congress had the power

to substitute greenbacks for gold and silver coin in the payment of debts.

On this matter, the Supreme Court did one of its famous fl ip-fl ops, so

that it fi rst struck down the law, and then upheld it shortly thereafter.

The issue fi rst arose in the most prosaic of circumstances. In Hepburn v.

Griswold,29 Hepburn gave Griswold in 1860 a note for 11,250 “dollars,”

which Hepburn sought to repay in greenbacks. He relied on an 1862

federal statute, passed at the height of the Civil War, authorizing the

issuance of paper money, which it then declared should be “a legal ten-

der in payment of all debts, public or private.” Justice Chase held that

the Necessary and Proper Clause did not give Congress either power. His

decision was promptly overruled the next year in the Legal Tender Cases,30

which is why paper money is still with us.

Notwithstanding his historical defeat, Chase’s view is closer to

the constitutional text and understandable, if not entirely defensible,

on classical liberal principles. First, the statute retroactively altered the

terms of many contracts to shift wealth from the creditor to the debtor

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The Necessary and Proper Clause 219

by allowing payment of the debt with cheaper dollars. How does this

differ from allowing a party who borrowed a gold chalice to return a

brass chalice of the same type? In both cases there are forced exchanges

on unequal terms, which is yet another form of taking that should be

caught by the anticircumvention principle. On this point at least, the

condemnation should be unequivocal. No system of limited government

looks with favor on retroactive legislation. And the Constitution provides

that “No State shall . . . make any Thing but gold and silver Coin a

Tender in the Payment of Debts; pass any . . . ex post facto Law, or Law

impairing the Obligation of Contracts.”31 But these provisions only bind

the states, and not the federal government.

How to fi ll the void? Start with matters of federal power and then

move on to individual rights. Congress has no general powers, so there

is no need to include a prohibition against paper money parallel to that

found against the states, which otherwise have plenary jurisdiction. So

the inquiry must ask: pursuant to which enumerated power did Con-

gress pass the Legal Tender Act? The Necessary and Proper Clause offers

its ancillary boost only if we can identify the enumerated power to which

it attaches. Note that Congress has power “to coin money, regulate the

value thereof, and of foreign coin. . . .”32 But a clause that authorizes

coining money seems to prohibit printing greenbacks, which cannot be

circumvented by making $100 coins out of worthless metal. The words

“coin money” must be read to mean “coin money out of gold and silver”

so as to put it in harmony with the provisions of Article I, Section 10.

That power to coin money, of course, does not prevent the circulation

of paper receipts that can be redeemed no questions asked for gold or

silver: here the mandatory redemption feature prevents any debasing of

the currency. So read, the “coin money” clause complements the inabil-

ity of the state to make anything other than gold or silver legal tender.

Therefore, the Necessary and Proper Clause does not advance the federal

government’s case. Paper money backed by no fi xed assets (so-called fi at

money) is not needed to coin gold and silver. Nor is it proper for Con-

gress to adopt any strategy that subverts a stated limitation on its own

powers. So far, it’s a no go.

Perhaps, however, Congress may issue greenbacks under its power

to regulate commerce among the states, with foreign nations, and the

Indian tribes.33 But moving in this direction makes it unnecessary to give

Congress the more limited power to coin money. So “commerce” must

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220 Constitutional Structures: The Legislative Power

be read narrowly enough so that it does not render superfl uous every

other congressional power—a lesson long forgotten today. If commerce

is confi ned to interstate transactions, why is it necessary to print fi at

currency? Commerce has long operated on negotiable instruments and

bills of exchange with little need for greenbacks. Any action that sub-

verts the basic structure of the fi scal Constitution is hardly necessary.

Nor is it proper to upset the balance between the federal and state gov-

ernments by allowing Congress to regulate purely internal debt trans-

actions within the states, including many that have little or nothing to

do with commerce (as understood in its pre-1937 sense). As a matter of

constitutional principle, therefore, the Legal Tender laws should fall by

the wayside, thereby preserving both the rule of law and the stability of

private expectations.

Historically, these arguments against greenbacks came out second

best because intermediate scrutiny under the Necessary and Proper

Clause gave way to a far more lax standard. Justice Strong trumped

McCulloch by holding that the weight of historical tradition conferred

“a very wide discretion . . . in the selection of the necessary and proper

means to carry into effect the great objects for which the government

was framed, and this discretion has generally been unquestioned, or, if

questioned, sanctioned by this court.”34 The rational basis standard gut-

ted the Necessary and Proper Clause. The 1871 Legal Tender Cases thus

gave to Congress the power to issue paper currency on the ground that

it was held by virtually all other sovereigns—none of which operated

under constitutional restrictions remotely similar to our own.

But suppose the power to coin money did carry with it the ability

to issue greenbacks. The Legal Tender Act is still invalid. Classical liberal

theory is rightly suspicious of state monopolies over all sorts of goods

and services, including the supply of money. That suspicion, so evident

in The Federalist Papers with its denunciation of “the pestilent effects of

paper money on the necessary confi dence between man and man,”35

rightly carries over to the state control of currency, given the arbitrary

power to either infl ate or defl ate the currency. One way to counteract

this risk is to let the government print whatever (cheap) currency it

will, but to discipline its behavior by allowing other banks to issue their

own currency (whether or not backed by gold) in competition with the

federal government. It seems neither necessary nor proper to confer a

monopoly on the printing press in the federal government.

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The Necessary and Proper Clause 221

The Federal Reserve Bank

The broad construction of the Necessary and Proper Clause in the Legal

Tender Cases was instrumental in allowing Congress to create the Fed-

eral Reserve Bank System of 1913.36 Indeed, when the constitutional-

ity of that bank was challenged in Raichle v. Federal Reserve Bank, the

Second Circuit swatted down the objectors.37 Bad timing. Raichle was

decided in July of 1929. With erring prescience, Judge Augustus N.

Hand praised the Federal Reserve System as a “great improvement over

what went before”—two months before the October 1929 crash. Indeed,

the present Federal Reserve differs in both structure and function from

Marshall’s Second Bank of the United States because it is limited to orga-

nizing transactions among its member banks, without making loans to

the general public in competition with those banks. The Fed uses many

devices to keep the currency on an even keel. These include the setting

of reserve requirements for member banks and engaging in open mar-

ket transactions, whereby its decision to buy or sell money and treasury

notes infl uences the market rate of interest for loans that private depos-

itory institutions make to other member banks. The Federal Reserve is

also allowed to issue legal tender, called Federal Reserve notes.

There is, however, no safe haven from the risks of state monopoly

power, because when the Fed makes an error, it can easily have vast

repercussions. During the Great Depression, the Fed’s contraction of the

money supply led to a major defl ation—fewer dollars chasing the same

amount of goods—that denied the market much-needed liquidity. The

steep defl ation of the 1930s fueled mass foreclosures, as farmers were

unable to pay back loans denominated in dollars that rose in value, so

that what appeared to be a $100 debt was in real terms, say, $150. The

disruption on one side of the loan cycle impacted the other, for with

mortgage loans in default the banks, in their role as middleman, could

not honor their deposits. And the runs on banks led to bank holidays.

Futile efforts to break the spiral of mortgage foreclosure only shifted the

losses back and forth between innocent parties, but did nothing to undo

the damage of the rapid defl ation, which altered in dramatic and unfore-

seen ways the fi nancial terms of every private and public transaction in

the United States. In modern times, the relentless Federal Reserve cheap

money policy also contributed to the real estate bubble that burst in

2007 and has yet to heal.38

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222 Constitutional Structures: The Legislative Power

Private currencies could fall prey to these risks as well. But do not

underestimate the virtues of diversifi cation, even in currency markets.

Let one currency depreciate, and individuals can switch to other curren-

cies that hold their value, substituting competitive discipline for a rigid

government regime. It is therefore tempting to ask whether today’s mass

of foreclosures would have occurred if the government did not subsi-

dize the mischievous activities of its two mortgage banks, Fannie Mae

and Freddie Mac. I sympathize with Ron Paul’s position that the Fed-

eral Reserve is unconstitutional because the Congress lacks the power

to create any bank: “The United States Constitution grants to Congress

the authority to coin money and regulate the value of the currency. The

Constitution does not give Congress the authority to delegate control

over monetary policy to a central bank.”39

But how sound is this constitutional structure, which implicitly

imposes a gold standard? It does have the advantage of preventing

actions that debase the currency. But it also ties the money supply to the

amount of certain scarce commodities, which can fl uctuate with new

discoveries that expand supply or new industrial uses that reduce it. For

all its apparent virtue to Madison, the gold standard offers no insulation

from the vicissitudes of economic activity. In principle, the monetarist

approach of Milton Friedman that ties the money supply to the amount

of goods and services in the economy represents a coherent effort to keep

the discipline that the gold standard supplies without tying the fortunes

of the economic system to the unpredictable price movements of a single

commodity.40 The constitutional implications of that shift, however, are

profound. Under the original constitutional scheme, the ban on the use

of fi at currency at both the state and federal levels is a discrete command

that is enforceable under the traditional doctrines of judicial review.

There are discrete acts that violate the standard, and others that comply

with it. But once monetarism becomes entrenched as the dominant pol-

icy, no coherent form of judicial oversight is possible, so that the entire

fi scal constitution now becomes at best aspirational, and the real work

becomes political. In this instance, the shift has to be viewed with mixed

emotion. The monetarist policies did much to supply a stable currency

and curb infl ation from the early Reagan years to the present time. But

only time will tell whether the system can withstand the twists and turns

of the current cheap money policy that will eventually stoke up infl ation.

But for our purposes, the constitutional transformation of the Necessary

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The Necessary and Proper Clause 223

and Proper Clause has ushered in a revolution that no one can reverse

today, even if one wanted to. The prescriptive constitution has taken

over on these monetary matters. The originalist solution has been put to

one side. Given its infi rmities, no one should seek to revive it.

The Necessary and Proper Clause in the Progressive Era

As the earlier chapters have documented, the chief transformation of

the progressives has been the expansion of federal powers chiefl y under

broad renderings of the spending, taxing, and commerce powers. At

root, both of these transformations have expanded the mission of the

federal government far beyond the creation of public goods on the one

hand or creating an internal free trade zone on the other. Instead, with

the use of the rational basis test, the class of permissible government

ends has increased. Necessarily, the set of means to meet those ends has

to expand as well under any reading of the Necessary and Proper Clause.

At this point a paradox arises. The clause can be read broadly to expand

the use of federal power. Yet at the same time, its role could easily be

reduced because the vast expansion of the explicit enumerated powers

leaves less for that clause to do. On balance, the second option seems

more plausible.

Much of the use of the Necessary and Proper Clause relates to the

expansion of the commerce power. Even before 1937, the pivotal case of

Champion v. Ames41 invoked the Necessary and Proper Clause to give Con-

gress the power to regulate the shipment of lottery tickets in interstate

commerce, despite their legality both in the producing and the receiv-

ing states, because their use “has grown into disrepute and has become

offensive to the entire people of the nation.”42 Yet there was no showing

that the states wanting to prevent their manufacture or use were unable

to do so. Justice Harlan’s reference to “an entire people” is thus a con-

scious exaggeration that took a hotly contested issue at the state level

and granted one point of view national approval, thereby undermining

all the virtues of competitive federalism on matters of morals. But with

the rise of the 1937 revolution, the Necessary and Proper Clause lost its

critical role, as the production and use of lottery tickets within the states

thereafter fell under Congress’s commerce power.

In the post-1937 period, moreover, the Necessary and Proper

Clause itself did not drive the huge transformation of the commerce

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224 Constitutional Structures: The Legislative Power

power. But it was instrumental in shaping the textual arguments.43 Thus

in NLRB v. Jones & Laughlin Steel,44 the government defended the NLRA

on its statutory fi ndings that the control of production prior to the entry

of goods into interstate commerce was needed to prevent “strikes and

other forms of industrial strife or unrest, which have the intent or the

necessary effect of burdening or obstructing commerce.”45 In Jones &

Laughlin, Chief Justice Hughes endorsed just this view by insisting that

Congress could fi nd that collective bargaining is “necessary to protect

interstate commerce from the paralyzing consequences of industrial

war. . . . Experience has abundantly demonstrated that the recognition

of the right of employees to self-organization and to have representa-

tives of their own choosing for the purpose of collective bargaining is

often an essential condition of industrial peace.”46 But at that point he

did not invoke the clause itself to carry the day.

The subsequent history taught the opposite lesson about the impact

of the NLRA on industrial peace. To be sure, with this huge statutory

assist, union membership surged from about three million to fi fteen

million workers in little over a decade. Within months after the adop-

tion of the NLRA, the Committee for Industrial Organization (which

morphed into the Congress of Industrial Organizations in 1938) was

formed, and some of its member unions were involved in sit-down

strikes, which arose out of poisoned management-labor relationships

that the NLRA did little to ease.47 Indeed, the instability of labor rela-

tions turned sour after the temporary truce during World War II, as the

nation experienced a succession of long and crippling strikes “which

involved over three million workers in 1945 and which affected many

important industries including coal electrical manufacturing, oil refi n-

ing, longshoring, railroads and steel.”48 One response was the passage of

the Taft-Hartley Act of 1947,49 which congressional Republicans enacted

over President Harry Truman’s veto. It is only by the grace of the rational

basis test that the NLRA passed constitutional muster, for, whatever its

lofty aspirations, the collective bargaining process replaced competitive

markets with a bilateral monopoly scheme that was in the 1940s espe-

cially prone to catastrophic breakdowns, often leading to strikes, lock-

outs, and violence. The correct way to ensure industrial peace involves

the determination to punish and enjoin violence by either side, wher-

ever and whenever it occurs, which involves only the straightforward

application of classical liberal principles. By any objective standard, the

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The Necessary and Proper Clause 225

NLRA was neither necessary nor proper. But historically, the driver that

secured its constitutionality was the transformed understanding of the

Commerce Clause, not any supposed add-on through the Necessary and

Proper Clause.

The same overall conclusion applies to subsequent invocations of

the Necessary and Proper Clause as an adjunct to the Commerce Clause.

One notable example of that power is Gonzalez v. Raich,50 in which Jus-

tice Stevens squarely invoked the Necessary and Proper Clause to allow

Congress to prohibit the cultivation and use of marijuana in California

for medical purposes in two carefully constructed test cases where none

of the marijuana in question was either transported in interstate com-

merce or sold in local commerce. But the Necessary and Proper Clause

functioned largely as fi ller, as all the heavy emphasis was on Wickard’s

insistence that any change in local production or consumption neces-

sarily infl uenced the fl ow of traffi c in interstate commerce. Allowing its

use even in these few cases would leave a “gaping hole,” or so Justice

Stevens concluded, in the Controlled Substances Act, which itself makes

no exception for medical uses of marijuana.51 The Necessary and Proper

Clause again looks like a decidedly second-tier player.

Just that same attitude carried over to NFIB v. Sebelius,52 where Chief

Justice Roberts refused to use that clause to fi ll in the gaps left by the

Commerce Clause, which on his view did not give Congress the power

to force people to enter into business transactions. Refusing to let “def-

erence in matters of policy . . . become abdication in matters of law,”53

he concluded that the Necessary and Proper Clause was only “derivative

of, and in service to, a granted power.”54

That carefully limited phrase does not return the law to an original

view that the Necessary and Proper Clause applies only to means, and

does not expand the legitimate ends of federal power. But it represents a

sharp move in that direction. Indeed the three cases that the chief justice

cites confi rm that narrowish reading of the clause. Thus he noted that in

United States v. Comstock,55 the Court had “upheld provisions permitting

continued confi nement of those already in federal custody when they could

not be safely released.”56 That determination, moreover, was hedged in

by the key limitation that the statute was “narrow in scope”57 and did

not confer on Congress a general police power, which is reserved to the

states. Similarly, it seems hardly a stretch to allow federal legislation

to toll the operation of state statutes of limitations while, as he noted,

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226 Constitutional Structures: The Legislative Power

“cases are pending in federal court,”58 which is just the kind of house-

keeping arrangement that is always needed to coordinate overlapping

litigation in federal and state courts. Finally, in Sabri v. United States, the

Court unanimously sustained under the Necessary and Proper Clause

legislation “criminalizing bribes involving organizations receiving federal

funds.”59 Once again the broad jurisprudence of the Spending Clause did

all the heavy work, by expanding the class of permissible expenditures.

It makes no sense to say that the United States does not have power

under the Necessary and Proper Clause to prevent these funds from

being misspent, and there is no doubt that this statute would have been

easily sustained if it had been passed in 1790. It is equally telling that

when Chief Justice Roberts addressed the power of Congress to justify

the individual mandate as a tax, the Necessary and Proper Clause played

no part in his analysis, which in his view turned entirely on the distinc-

tion between taxes and penalties.

The overall message on this point is clear. The true damage to the

classical liberal Constitution came with the huge expansions of the

Commerce Clause and the taxing and spending power. With these

achieved, the Necessary and Proper Clause recedes in importance. The

italicized passages in Justice Roberts’s NFIB opinion tell the whole story.

In modern times, the Necessary and Proper Clause in and of itself has

not proved to be the driving force in the progressive reinterpretation of

the Constitution.

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The Dormant Commerce Clause

OUR EXAMINATION of the commerce power has thus far been limited to cases where Congress has explicitly exercised its regulatory power over certain activities. The question left untouched is whether

Congress’s simple power to regulate interstate commerce in and of

itself blocks state legislation over those same areas. That is the ques-

tion of the dormant Commerce Clause. Before 1937, the scope of this

problem was necessarily limited by the then-recognized limitations on

the scope of the commerce power. Thus the issue could arise in con-

nection with transportation and communication across state lines, but

it could not normally emerge in connection with agriculture, manu-

facture, and mining, which were understood to fall outside the sphere

of Congress’s authority. But once the scope of the commerce power

was expanded to cover all productive activities, the potential scope

of the dormant Commerce Clause could have expanded to subject all

traditional forms of state regulation to an implicit federal constitu-

tional override, even in the face of federal inaction. Yet movements

in that direction have been halting because any aggressive reading

of the dormant Commerce Clause could pose sharp limitations on

states’ exercise of their normal police powers, whose preservation was

an essential part of the progressive’s constitutional plan. The dormant

Commerce Clause thus operates with considerable power on matters

of interstate trade, or issues closely related to it, but with far less power

in the newer regions of federal power.

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228 Constitutional Structures: The Legislative Power

The Origins of the Dormant Commerce Power

Yet where does this dormant power come from in the fi rst place? In one

sense, there is clearly some textual effort in the Constitution to delin-

eate certain areas that are prohibited to the states. Thus just as Article

I, Section 8 delineates the federal powers, Article I, Section 10 contains

a complex list of prohibitions on the activities that states can under-

take. Article I, Section 10, clause 1 has a categorical prohibition on the

ability of states to grant Letters of Marque and Reprisal or coin money,

which means that both these powers are within the exclusive power

of the federal government. It also contains a critical provision that says

“No State . . . shall . . . pass . . . any . . . Law impairing the Obligation

of Contracts.” One possible way to read this is to say that the federal

government has exclusive control over all contracts, perhaps through

the Commerce Clause. Yet that expansive reading seems implausible, if

only because the Commerce Clause as then understood only regulated

interstate transactions, and not those local contracts dealing with the full

range of activities that had nothing to do with commerce at all. At this

point, the two pieces do not fi t together like hand and glove, a point that

was explicitly acknowledged by Justice Bushrod Washington in Ogden v.

Saunders,1 in a decision that held that the Contracts Clause offered no

protection from discharge in bankruptcy to contracts as yet not made.

This inconclusive textual discussion helps explain the constant

debates over whether the extent to which any power vested in Congress

is exclusive or concurrent. There is in general a clear preference in the

original design to clearly demarcate federal and state spheres. Nonethe-

less, as a matter of textual interpretation, this pedigree of the dormant

Commerce Clause is shaky at best. Unlike the provisions in Article I,

Section 10, clause 1, there is no clause that provides: “No state shall

regulate commerce with foreign nations, among the several states, or

with the Indian tribes.” The Commerce Clause, which is found in Article

I, Section 8, does not read as though it should be treated as a limitation

on the power of the states. The sensible textual interpretation postpones

consideration of any clash between federal and state powers until Con-

gress has passed a particular law, to which states must give way under

the Supremacy Clause2 in the event of confl ict. State governments are

free in the zone of overlap to exercise their traditional police powers so

long as Congress has not spoken.

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The Dormant Commerce Clause 229

Chief Justice Marshall implicitly accepted that textual position

in Gibbons v. Ogden when he ruled, dubiously, that a federal licensing

statute displaced the state franchise law governing navigation rights

between Elizabethtown, New Jersey, and New York City.3 Justice

Johnson, however, launched the dormant Commerce Clause jurispru-

dence by holding that the state law had to be displaced even if no

federal law had been on the books.4 In his view, only that tough pos-

ture could keep state waters open to interstate commerce. The obvious

objection to his position is that Congress could displace state law by

passing a law that explicitly allowed the use of steam power on all

interstate journeys. But under the Johnson formulation the default

position is fl ipped over in good classical liberal fashion to support a

presumption of free trade unless and until Congress declares other-

wise. Since federal legislation of that sort is never easy to pass, the

dormant commerce power tends to be a formidable obstacle to many

actual or potential barriers to interstate trade. The assertion of the dor-

mant commerce power in this context is all the more striking because

there need not be any obvious discrimination against interstate com-

merce, given that all local voyages by New Yorkers were governed by

the franchise that Ogden exercised in New York waters. Gibbons just

represents the odd conclusion that ships engaged in interstate journeys

need not pay the same licensee fees that Ogden could charge for intra-

state journeys, which under Gibbons were “purely interior” journeys

that Congress could not regulate.

Despite its confused beginnings, make no mistake about it: free com-

petition and the free movement of goods and services across state lines

are the driving forces behind the Supreme Court’s take on the dormant

Commerce Clause. It is a judicial invention that is not easily defensible

on narrow originalist grounds. But under the prescriptive constitution,

the dormant Commerce Clause should nonetheless be incorporated into

modern constitutional law, given that the enormous boost it supplies

to free trade is eminently consistent with classical liberal principles.

Moreover, the recognition of the dormant Commerce Clause is further

strengthened by the presence of the Privileges and Immunities Clause of

Article IV, Section 2, clause 1: “The Citizens of each State shall be enti-

tled to all Privileges and Immunities of Citizens in the several States.”

That clause also embodies an antidiscrimination norm, with freedom

of cross-border trade for citizens as one of its core commitments. The

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230 Constitutional Structures: The Legislative Power

clause thus covers much, but by no means all the territory associated

with the dormant Commerce Clause doctrine.

The split between the two clauses derives from the Court’s 1869

decision in Paul v. Virginia,5 which held that corporations did not count

as citizens, so that only individuals received the protections of the Priv-

ileges and Immunities Clause. However, that view is not immune from

challenge. A partnership consisting solely of citizens should be protected.

Why then deny those individuals that same protection when their home

state endows them with limited liability in the corporate form? It is easy

enough to require them to register for service of process in all states in

which they do business, just like home-grown corporations. Further-

more, corporations are already treated as citizens for the purposes of

diversity jurisdiction—that is, in disputes between citizens of different

states, which can be litigated in federal court—even in the absence of a

federal constitutional or statutory claim.6 So why not adopt that same

concept for privileges and immunities when that reading so clearly

serves the constitutional end of creating a national free trade zone?

The benefi ts of this free trade doctrine were well articulated in H. P.

Hood & Sons, Inc. v. Du Mond,7 where Justice Jackson took a 180-degree

turn from his statist decision in Wickard v. Filburn.8 In Wickard he read

the affi rmative commerce power broadly enough to allow Congress to

organize nationwide agricultural cartels. In Hood, he championed the

exact opposite response to state efforts to cartelize by striking down a

decision of New York State’s commissioner of agriculture and markets

to block construction of a new plant in New York for a Massachusetts

milk company serving the Boston market. The commissioner reasoned

that to build the plant would be the source of “destructive competi-

tion” to incumbent local businesses that he believed were already ade-

quate to serve the market. Speaking for a bare fi ve-member majority,

Jackson responded:

Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embar- goes will withhold his export, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality.9

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The Dormant Commerce Clause 231

There is little to quarrel with in this vision. What remains is the

issue of its implementation. One key component is simply a question of

whether the restrictions imposed on the free fl ow of interstate commerce

are justifi ed by the local benefi ts that it supplies, even in the absence of

discrimination against interstate commerce. The standard articulation

of that view is that an evenhanded regulation of local activities will

normally escape constitutional challenge unless the burden it imposes

on interstate commerce “is clearly excessive in relation to the puta-

tive local benefi ts.”10 This standard in turn requires some inquiry into

whether a less restrictive regulation could achieve the same legitimate

local end. Just that test was used to strike down an agricultural statute

that required an Arizona grower of cantaloupes to build an expensive

in-state plant to package them instead of shipping them for crating to a

nearby California facility that could do the job more cheaply.11

A second component of the overall strategy avoids the need to make

this kind of balance by invoking an ingenious compromise—a nondis-

crimination rule—for both international and domestic trade. That rule in

clever fashion both respects and limits the power of any governments to

regulate outsiders. In one sense, the level of judicial oversight in apply-

ing the nondiscrimination principle is less than it is in the balancing

cases, in which the state law may be struck down even if it treats local

and foreign commerce evenhandedly. However, the nondiscrimination

rule works well precisely for that reason: the Court does not have to

make a direct assessment of the relationship between the federal interest

in the free fl ow of commerce and the state police power interest in the

protection of the health and safety of persons and property. Rather than

attack the state’s pursuit of its own objectives, the Court just tells each

state that it cannot discriminate against commerce from outside the state

in the exercise of its customary legal powers.

This antidiscrimination norm works best in those cases where no

strong political theory points to a unique answer about what norm

counts as the proper exercise of state power in the context of the case’s

particularized facts. For example, no one can be sure that the ideal sales

tax is 1 percent or 5 percent, but it is clear that the taxes in question

should be the same for in-state and out-of-state parties if competitive

balance is to be maintained. Furthermore, the anticircumvention norm

means that this prohibition cannot be evaded by collecting equal taxes

from local and out-of-state producers, only to provide a subsidy for

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the former out of the revenues collected from the latter.12 That same

approach also covers tax deductions, rendering unconstitutional a

Maine statute that offered a charitable exemption on local property used

primarily by in-state residents but denied the same privilege for a camp

that primarily benefi ted out-of-state children.13 On matters of regula-

tion, we could debate endlessly whether the minimum age for driving

a taxicab should be twenty-one or twenty-fi ve. However, what is fl atly

unacceptable without powerful explanation is a statute that imposes

an age limit of twenty-fi ve on the outsider while allowing insiders to

drive cabs at age twenty-one. The use of the antidiscrimination rule is

a powerful tool that ordinarily forces dominant in-state political forces

to recognize that their efforts to cripple their out-of-state competitors

comes at the price of imposing like limitations on domestic fi rms that

engage in parallel activities. This norm thus tends to drive parties toward

sensible political accommodations without injecting the Supreme Court

into the middle of struggles over the substantive merits of particular

taxes and regulations. At the same time, the antidiscrimination norm

prevents abuse in the opposite direction: no outsider may demand to be

freed from regulations that bind its domestic competitors. To return to

Gibbons, New Jersey steamboats on the interstate route cannot ask to be

freed of a local license fee that is charged to New York steamboats mak-

ing the same interstate runs.

It is now necessary to look at these two classes of cases—those apply-

ing a balancing test and those applying an antidiscrimination norm—in

some greater detail.

The Balance of National and State Interests

The origin of the balancing test dates back to early cases that examined

the trade-off between the free fl ow of navigation and a state’s need to

exercise its police power control over health and safety issues. In the ear-

liest case on this confl ict, Willson v. Black Bird Creek Marsh Co.,14 the Court

refused to fi nd a dormant Commerce Clause violation when Delaware

authorized a dam blocking a navigable interstate creek, given the local

improvements that the dam created for nearby land. The case differs

from Corfi eld, where the prohibition on collecting oysters did not inter-

fere with interstate navigation at all.15 But the trade-offs involved with

this added interference to both local and interstate navigation seems

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close enough that some explicit exercise of federal commerce power

should be required to stop its construction. The situation worked out

quite differently in Cooley v. Board of Wardens,16 which wrongly upheld on

safety grounds a statute that appeared to require all ships entering the

Philadelphia port to use a local pilot in aid of navigation. This law looks

like a safety statute until one detail is added: The requirement of a local

pilot did not apply for ships that paid a penalty equal to half the pilot’s

fee, which funds were transferred into the local pilots’ pension fund.

Compliance with a safety provision is usually not made optional for the

regulated party. In contrast, protectionist statutes are quite content to

extract either the work or the profi t that would have been obtained had

the work been done.

Later cases are built of sterner stuff. Safety justifi cations carried the

day in South Carolina State Highway Department v. Barnwell Bros.,17 where

the curvy in-state roads were held to justify a rule requiring that all

trucks, both local and out-of-state, comply with length and weight

restrictions that were lower than those recommended by national stan-

dards. In an evenly balanced case, Justice Stone held that the state pro-

prietary claim over the roads coupled with the evenhanded nature of

the restriction saved the regulation. But seven years later, he promptly

and properly distinguished Barnwell in Southern Pacifi c Ry. v. Arizona,18

where the state requirement that all trains be of shorter length in Ari-

zona than elsewhere imposed real inconvenience on interstate traffi c.

Here, again, local and interstate traffi c were both subject to identical

rules. Nonetheless Arizona’s justifi cation for the burden on interstate

commerce could not carry the day because of the utter absence of any

distinctive topological feature of its railroad tracks that required Arizona

to deviate unilaterally from the national standard, when in fact the extra

hooking and unhooking of cars could only increase the risk of accidents.

In effect, the Court adopted a focal-point solution that worked for the

benefi t of all states even when they could not coordinate their behavior.

These confl icts between state policies could easily give rise to many dif-

fi cult issues where the terrain is irregular, but should not do so for mod-

ern interstate highways that are engineered to uniform standards.19 That

is not the kind of issue that should routinely make it up to the Supreme

Court. It is therefore not surprising that by the early 1980s Congress

empowered the Department of Transportation (DOT), through the Tan-

dem Truck Safety Act, to make the same trade-offs administratively that

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234 Constitutional Structures: The Legislative Power

were previously required under the case law, which displaced the Kassel

line of cases by allowing states to petition the Department of Transpor-

tation to block the use of larger trucks and tandem trailers on select por-

tions of the interstate highway system that they considered unsafe for

such vehicles.20 In effect, that statute facilitated the resolution of these

claims by taking into account the same issues that arose in the litigated

cases, a strong indication that the Supreme Court’s judicial rules had

accurately identifi ed the relevant confl icts.

The Nondiscrimination Rule

The nondiscrimination rule has also given rise to diffi cult interpretive

questions that are best explicable within the classical liberal framework.

The fi rst critical question is whether discrimination is measured by the

words of the statute or by the intended or probable effect of its policy.

The trade-offs here are familiar. The rule that requires explicit discrim-

ination is applied easily: the cases that are struck down are relatively

clear, and there are few cases in which the court will unduly invade

the province of the state legislature. However, the limitations of that

approach are of greater weight, for the state governments that are aware

of the limitations of federal intervention will work overtime to craft for-

mally neutral rules with devastating anticompetitive effects. The key

question is how diffi cult it is for courts to peel away the pretext to get to

the pith. In many cases, this can be done with relative aplomb.

One early case that pierced purported police power regulations arose

in the dairy industry, which has long been a hotbed of protectionist reg-

ulation. In Dean Milk Co. v. Madison,21 the City of Madison passed an ordi-

nance that required all milk sold within the city to be processed at plants

located within fi ve miles of the city limits. The ostensible justifi cation

was to facilitate its inspection of milk meant for local consumption. Its

obvious economic effect, however, was to create a huge local monopoly

for the fortunate local pasteurizers. Madison defended the bill against

the charge of discrimination on the ground that it hit just as hard at

Wisconsin processors outside the protected zone, so that the ordinance

could not be condemned for being directed solely at out-of-state fi rms.

Yet this riff on the nondiscrimination argument misses the central point

of the principle, which is that courts should look with greater favor on

legislation that hits its proponents as hard as its targets. That is just not

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the case when fi rms elsewhere in Wisconsin have no say in the passage

of the local ordinance, so that discrimination against them compounds,

rather than diminishes, the fl aws in the legislation. So the issue boils

down to the protection of health, and on that score Madison failed to

show that the standards adopted elsewhere were slack relative to those

imposed locally. So long as the citizens of other states and locales had no

diffi culties with the safety of their processing plants, the correct appli-

cation of the nondiscrimination principle did not leave people in Mad-

ison unprotected against health hazards. The Court rightly dismissed

the entire statute as a protectionist law masquerading as a police power

measure. State discrimination against out-of-state commerce cannot

survive when nondiscriminatory alternatives are available.22

Health is, of course, not the only legitimate objective of a sensible

police power. The prevention of fraud regarding the quality of prod-

ucts and confusion with respect to proper branding are also within the

police powers. But once again, courts have to examine whether the

purported regulation of fraud or confusion is just a pretext for anticom-

petitive regulation. Hunt v. Washington State Apple Advertising Commission23

illustrates the danger. North Carolina required all in- and out-of-state

apple producers to ship apples only in closed containers that bore “no

grade other than the applicable U.S. grade or standard.” The statute is

neutral on its face. But its disparate impact is evident from the institu-

tional background. Washington State, which produces superior apples,

developed a grading system more precise, and thus more informative,

than the federal standard. To require Washington growers to use only

standard USDA labels puts its sellers to the unacceptable choice of hav-

ing to devise special labels for apples destined for North Carolina, to

reduce the average quality of the produce sent into North Carolina,

or to abandon that market altogether. Within any competitive frame-

work, the last thing that government ought to do is reduce the amount

of true information available to consumers. So the Court rightly put to

North Carolina the task of fi nding some normative justifi cation for its

objections. The state weakly suggested its statute was intended to guard

against confusion and fraud. Those ends are surely legitimate, but the

means chosen had the precise opposite effect. The Court’s decision to

strike down the statute in Hunt shows in picture-perfect fashion how a

classical liberal theory infuses the understanding of the dormant Com-

merce Clause.

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236 Constitutional Structures: The Legislative Power

In other cases, however, the justifi cation for state intervention has

more clout. Thus in Maine v. Taylor,24 the question was whether to sus-

tain a criminal conviction for importing baitfi sh from outside the state.

The discrimination against foreign commerce was explicit, and any justi-

fi cation was subject to “the strictest scrutiny.”25 The dormant Commerce

Clause thus rejects the rational basis mentality that allows any state

action so long as there is some conceivable public justifi cation that the

statutory scheme advances. Nonetheless, that burden was met by justi-

fi cations that track precisely classical liberal principles. The importation

of baitfi sh carried with it the risk of parasites to local marine life and the

danger of driving native species from their habitat. The total ban was in

some sense excessive, but no technology existed for separating danger-

ous from benign baitfi sh, and the Supreme Court upheld the statute as

it should have.

Trade Regulation and Taxation

The application of the dormant Commerce Clause to many systems of

trade regulation and taxation has been far more cautious. In these cases

the tax is imposed not only on cross-border transactions, but also on the

domestic activities that take place solely within one state. The statutes

themselves are usually facially neutral, but they are also statutes passed

with an explicit redistributive agenda that is usually apparent from facts

in the public domain at the time of passage. To get at the anticompeti-

tive consequences of these statutes requires a little digging, which, on

balance, the Supreme Court has not been prepared to do, at a real social

cost. Here are a few representative cases.

In Exxon Corp. v. Maryland,26 Maryland banned all gasoline producers

and refi ners from operating retail outlets within the state. To its knowl-

edge, Exxon was the only producer caught by the prohibition. Several

other refi ners were also caught, but there were no Maryland producers

or refi ners. Clearly, the statute would meet a constitutional standard

that requires proof of formal discrimination to strike down state eco-

nomic regulations. But the test for disparate impact runs up against this

puzzle: How effective can the antidiscrimination law be when only out-

siders are caught by the prohibition? At this point warning bells should

go off because of the known certainty in the Maryland legislature that

the statute would only hit a feared outsider.

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The Dormant Commerce Clause 237

The proper theory thus would strike down this prohibition unless

and until it were shown that blocking the mode of distribution of Exxon

and the out-of-state refi ners had some legitimate justifi cation. Maryland

claimed that it was acting in response to the shortage of supply owing

to the 1973 decrease in petroleum after the Arab boycott of the United

States. But a change in economic conditions is hardly a reason to ditch

a competitive model unless the business practices violate some principle

of antitrust law, which was not the case here. The statute thus looks

like straightforward protectionism in favor of its local retail outlets that

should be caught by the statute, but Justice Stevens held, wrongly, that

objections to the statute related only “to the wisdom of the statute, not to

its burdens on commerce.”27 That line of argument could work in areas

where the level of constitutional scrutiny is low, but the entire thrust of

Justice Jackson’s remarks in H. P. Hood show that this distinction is not

maintainable in the face of the strong substantive commitment to open

competition under the dormant Commerce Clause.

The same diffi culties arise with respect to taxes that are neutral in

form but disparate in impact. In Commonwealth Edison Co. v. Montana,28

Montana imposed an excise tax on low-sulfur coal mined within the

state, over 90 percent of which was destined for sale in other states. The

passage of this tax was accompanied by a reduction in the income tax

and property taxes that fell exclusively on Montana residents. Owing

to the huge concentrations of low-sulfur coal in the state, huge chunks

of the tax were passed on to out-of-state parties who did not, of course,

share in the reductions on property and income taxes within the state.

As a formal matter, the tax applied before the coal entered into com-

merce. But the Supreme Court rightly held that this fact alone did not

insulate the tax from scrutiny under the dormant Commerce Clause.

The issue then turned to whether, in sorting out the effects of the tax, it

met the following four-part test, which upholds the tax if it “is applied to

an activity with a substantial nexus with the taxing State, is fairly appor-

tioned, does not discriminate against interstate commerce, and is fairly

related to the services provided by the State.”29 One way to read this test

is to insist that it blocks any tax, which when taken in context, results

in a redistribution of wealth from out-of-state to in-state individuals,

which this tax surely does. But, as ever, the level of scrutiny is decisive,

and here Justice Thurgood Marshall took the position that this test only

required that there be some nexus between the property and the state

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238 Constitutional Structures: The Legislative Power

that taxes it, but there need be no showing that the amount of tax bore

any relationship to the services received. Put otherwise, the traditional

Lockean justifi cation for taxation—to increase government services that

increase to each person the value of the liberty and property that he

retains—formed no part of his analysis.

The tension between this case and the subsequent decision in West

Lynn Creamery, Inc. v. Healy30 should be evident. In that case, a tax on

sales to Massachusetts dairy retailers was directly linked to a rebate for

Massachusetts dairy farmers, thus exposing only out-of-state farmers to

the tax. In this case, the tax in question was linked to the overall reduc-

tion in exclusive in-state taxes. Justice Stevens struck down the dual

combination because of its obvious differential impact on in-state and

out-of-state producers. The subsidy provided by the state could not be

looked at in isolation from the tax, when both were executed as part of

a single scheme. The anticircumvention principle was thus deployed to

backstop the antiredistributive attitude of the classical liberal approach

that had been rejected in Commonwealth Edison.31 This is in sharp contrast

to the general New Deal acceptance of a rational basis test that shields all

government taxation schemes from constitutional challenge so long as

peace and good order is retained.32

Unfortunately, however, the Court has been unable to develop a

consistent view on the question of competition between local and inter-

state businesses. In General Motors Corp. v. Tracy33 the general tax regime

subjected sales of natural gas to a 5 percent tax if purchased from an

in-state supplier and a 5 percent compensating use tax if purchased from

an out-of-state supplier. Ohio law also exempted from the 5 percent

local sales tax any sales by an in-state “local distribution company” or

LDC operated by a local regulated public utility. GM purchased all of its

needs for the tax years in question from an out-of-state supplier subject

to the tax, and Tracy, the Ohio tax commissioner, rebuffed its demand

for a tax refund.

In the Supreme Court, Justice Souter held that GM was not entitled

to the refund on the ground that the natural gas that GM had purchased

was not “substantially similar” to that which was locally supplied. In his

view, the source of the difference was that GM purchased natural gas in

an unregulated market without any special protections, while the LDCs

were required to sell the gas “bundled” with a variety of protections,

including the need to sell their natural gas at just and reasonable and

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nondiscriminatory rates, and to meet a variety of disclosure and record-

ing requirements.34 At that point, Justice Souter concluded that “con-

ceptually” the nondiscrimination obligation could not apply because

“the difference in products may mean that the different entities serve

different markets, and would continue to do so even if the supposedly

discriminatory burden were removed.”35

Unfortunately, this argument that what “may” happen need not

happen misses the point. There is no question that if the LDCs and the

interstate suppliers chose to collude on prices, they would run afoul of

the antitrust laws precisely because their products are close enough sub-

stitutes that they count as part of the same market. It is surely not the

case that all buyers from the LDC are completely unresponsive to the

relative tax rates between the two kinds of natural gas in the market.

Narrow the price differential by the elimination of the tax, and some

buyers would surely shift suppliers. It is not as though the two markets

were separated by any explicit legal barrier. At this point, the same tax

rate eliminates one key distortion in the market, such that consumers

can then decide with accurate pricing information whether they prefer

to take the bundled or unbundled product.

The danger in the Court’s decision is that there are countless situ-

ations in which different competitors offer a different mix of goods and

services, and the artifi cially narrow defi nition of the relevant market in

Tracy thus invites all forms of local protection. One recent illustration of

this problem arose in National Association of Optometrists & Opticians v. Har-

ris36 where the California Business and Professions Code prevents opti-

cians and optical companies from offering for sale prescription eyeglasses

at any location that performs eye examinations. These companies cannot

co-locate by renting space on their premises with licensed optometrists

and ophthalmologists. But those same optometrists and ophthalmolo-

gists who conduct these eye examinations may offer one-stop shopping

by selling eyeglasses to their customers. In principle it might be possible

to distinguish this case from Tracy, but the Ninth Circuit declined that

invitation. But there is no reason to require that determination at all.

Here the differential treatment cuts far more deeply than the 5 percent

tax rate. Rather than getting into these esoteric distinctions, the correct

response is to apply the nondiscrimination rule to any situation where

there is some respectable overlap between customers, and then let the

market adjust by setting prices and the terms of sale and services in an

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240 Constitutional Structures: The Legislative Power

effi cient way. The artifi cially narrow defi nition of what counts as the rel-

evant market in Tracy can only work to undermine the good work that is

otherwise done through the dormant Commerce Clause.

Market Participant

Thus far I have considered the dormant Commerce Clause as it relates

to state regulation of private activities. But once property is under state

control, does its ownership position give a state additional power to dis-

criminate in favor of its citizens in disposing and using those resources?

That favoritism is allowed for governments under the “market participa-

tion” exception to the dormant Commerce Clause, wherein the owner-

ship claim adds to state powers. Just that position was taken as early as

Corfi eld v. Coryell,37 which in addition to its discussion of the commerce

power, also held that the state, as owner of the oysters in the riverbeds,

could exclude out-of-state parties from their capture. The question then

arises as to why the state should be allowed to act as if that wildlife were

its own. The strongest explanation deals with the dangers of overhunt-

ing and overfi shing common pool assets to their extinction. Controlling

those risks obviously raises extra diffi culties for wildlife that can cross

state borders, unlike public lands and mineral deposits. However, the

question still arises whether the state in this quasi-ownership position

should be able to so restrict the capture and sale of wildlife, to which

the answer appears to be no. The duty of the state as a public owner is

to maximize the value of resources under its command for the citizens

of the state. The best mechanism to achieve that end is to auction the

rights to the highest bidder. Those bids will in turn be higher if outsiders

are entitled to bid. In this context, the case against protectionism applies

with equal force to goods that are held in state hands and to those which

are not.

The modern cases tend to give too much leeway to the states under

the so-called market participant doctrine. For example, Hughes v. Alex-

andria Scrap Corp.38 wrongly allowed Maryland to conduct a program

wherein it purchased scrapped automobiles from both in-state and out-

of-state processors, but required less extensive documentation from

in-state companies than from out-of-state fi rms. What possible advan-

tage accrues to the citizens of the state as a whole from subsidizing

ineffi cient local companies? The situation was no better in Reeves, Inc. v.

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The Dormant Commerce Clause 241

Stake,39 which allowed a state-owned cement plant in South Dakota to

restrict sales of its entire output to preferentially supply local fi rms fi rst.

Once again, why should out-of-state citizens incur the loss in revenue in

order to favor a few fi rms?

The bad decision in Reeves forced the Court to use fancy footwork

in South-Central Timber Development, Inc. v. Wunnicke40 to invalidate an

Alaska law that required purchasers of state-owned timber to process

it in local sawmills. The obvious objection to this rule is that the price

that Alaska generates for the timber will be reduced by the increase in

the cost of the complementary service it imposes. That favoritism hurts

the public at large in order to give a benefi t for the sheltered buyers. The

Court struck down the scheme by invoking a rule that the seller of goods

could not impose restraints on the way in which its purchaser utilizes or

deals that property to others. Yet nowhere does it explain why only local

persons should be allowed to bid in the fi rst place. This decision would

have been far easier if it had never gone down the wrong “market par-

ticipant” path of Alexandria Scrap in the fi rst place. It is vain to argue, as

some have, that the market participant doctrine is less “coercive” than

the direct regulation of private affairs.41 The invocation of coercion in

this case diverts us from the central task of sound government, namely

the maximization of social welfare, which requires expunging all protec-

tionist doctrines. In a real sense, the rules here are only a replay of the

analytical considerations that govern the use of the doctrine of unconsti-

tutional conditions: in all cases the state’s powers as an owner are limited

to the pursuit of the same limited objectives that the state may properly

pursue as a regulator.42

The last issue that requires special attention under the dormant

Commerce Clause deals with the recurrent question of whether any

state or local government can give preference to local waste at local

waste disposal facilities. The orthodox response in American constitu-

tional law is that the disposal of bads—waste products with negative

value—is subject to the same nondiscrimination rules as the disposal of

goods—ordinary products with positive value. If the two types of things

are the same, no explicit discrimination between in- and out-of-state

commerce is allowed. In City of Philadelphia v. New Jersey,43 the question

was whether a New Jersey law that prohibited the importation of most

“solid or liquid waste which originated or was collected outside the ter-

ritorial limits of the State” could survive challenge under the dormant

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242 Constitutional Structures: The Legislative Power

Commerce Clause. Justice Stewart recited the usual evils of protec-

tionism to which the clause was directed and concluded that the state

had failed to make out a legitimate claim that the statute was required

to prevent environmental deterioration within state boundaries, be it

to reduce the cost of waste disposal or to preserve open lands. In the

Court’s view, New Jersey failed because it could not show “some reason

apart from their origin, to treat [the articles of commerce] differently.”44

This line of argument takes too narrow a view of the issue, because

the key question deals not only with the allocation of space in existing

waste dumps, but with the willingness of the state to create these dump-

sites in the fi rst place. If the restriction to in-state waste is allowed, the

state will have an incentive to expand its local capacity to meet the local

demand. The state gains as its locally situated waste moves from less to

more secure sites within the state. The state in effect swaps out a larger

externality of uncontained waste for the smaller one of contained waste.

Under the equal access rule, however, states will have an incentive to

limit the opening of new local dumpsites, since the acceptance of waste

from elsewhere creates an additional small risk, without offsetting the

larger one of uncontained waste. Ironically, therefore, the more restric-

tive policy of reserving local dumpsites for local waste should expand

the nationwide capacity for storing waste.

We have some real evidence of this phenomenon from the well-

known decision in New York v. United States,45 which dealt with a statutory

scheme for nuclear waste. Consistent with the argument made above,

the number of waste sites in the United States had been dwindling in the

1970s, as states reduced capacity across the board on a nondiscrimina-

tory basis. The Low-Level Radioactive Waste Policy Amendments Act of

198546 took note of this stubborn fact and deliberately ousted the non-

discrimination rule adopted in Philadelphia by authorizing state govern-

ments to impose surtaxes on waste from out-of-state sources. The state

keeps a fraction of the revenue for itself and turns another fraction over

to the Department of Energy, which uses it to reward states that have

achieved certain set milestones in the distribution of the waste in ques-

tion. In addition, the statute authorized states and regional compacts

to increase gradually the charges that they place on noncooperating

states that don’t expand their local capacity. And fi nally (in a provi-

sion that was struck down as “commandeering” state governments), the

statute sought to require states to take title to orphan nuclear waste.

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The Dormant Commerce Clause 243

This elaborate framework is not needed to encourage states to accept

goods from outside their borders. But even with the program in place

the disposal of nuclear waste suffers from a huge “Not in My Backyard”

(NIMBY) problem. For some time it appeared as though Yucca Moun-

tain in Nevada would be the disposal site of choice, but that was stoutly

rebuffed by Senator Harry Reid and, after years of fruitless struggle, was

fi nally abandoned by executive order on January 30, 2010.47 Naturally,

no new site has yet been selected, so that dicey temporary sites now

look to be permanent, until a special blue ribbon panel recommends yet

another site, which in turn will be subject to a new set of local reactions.

Waste presents distinct problems of its own.

In contrast to Philadelphia, the shoe was on the other foot in C & A

Carbone, Inc. v. Town of Clarkstown,48 where the question was whether the

township could require local producers of waste to obey a local “fl ow con-

trol” ordinance. The ordinance required all fi rms within Clarkstown to

dispose of their waste through its subsidized station that separated recy-

clable from nonrecyclable items. Carbone was required to use that facility

even after it did its own sorting, which meant that it had to forgo the

cheaper option of processing its own waste and disposing it in out-of-state

landfi lls. The Supreme Court held that Dean Milk controlled and struck

down the ordinance. That result is, moreover, correct even if Philadelphia

was wrong. The downward cycle in disposing of waste plays no role in a

case where the local government wishes to monopolize a business. At this

point the case deals with competition in services, not with negative exter-

nalities, so the usual presumption against preferential treatment holds.

To sum up, the dormant Commerce Clause represents a welcome depar-

ture from the rules of strict constitutional construction. There are mis-

takes in this area, but they do not stem from any excessive form of

judicial intervention. Rather, these errors stem from a willingness to take

antiprotectionist rationales to their logical conclusion in all realms of

taxation and regulation. These cases, moreover, present a larger concep-

tual puzzle. Why is it that justices, like Robert Jackson, who champion

aggressive federal regulation that stifl es competition are so alert, with

less textual justifi cation, to pounce on state laws that have exactly those

undesirable effects? The answer appears to be that these justices fear

balkanization by the states more than they fear monopolization by the

federal government. In a sense, their position makes some crude sense

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244 Constitutional Structures: The Legislative Power

because the adverse consequences of balkanization result in a cycle of

commercial disruption too evident to ignore. In contrast, the evils of

monopolization and cartelization are harder to detect because they do

not involve overt disruption in the marketplace, but subtler changes in

the quantity and price of goods sold in interstate commerce. And there

is a naïve sense that Congress as a national body can transcend the petty

localisms that drive the dormant Commerce Clause analysis.

Unfortunately, there is a good deal of conceptual blindness in these

purported distinctions. The antitrust laws have no diffi culty in dealing

with the problems of monopolization and cartelization, and indeed rec-

ognize cases—like check-clearing services and telecommunications—

where cooperation between competitors on certain business issues does

not give carte blanche to fi x prices. The various justifi cations that do

allow some local regulations to survive antitrust scrutiny could be trans-

ported over to the congressional exercise of power if only the justices

were willing to engage in the same sensible presumption of distrust for

federal regulation that they do for state regulation. States may well be

provincial in their motivations. However, it hardly follows that Congress

looks at these issues from a perch that immunizes it from the same kind

of preferential failings that are so evident in much state regulation, as

its sorry record in labor and agriculture so clearly shows. In the end, the

classical liberal accounts of government that have done tolerably well

in controlling the states should be brought once again to bear on the

federal government.

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S E C T I O N I I I

THE EXECUTIVE POWER

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Basic Principles and Domestic Powers

THE LAST KEY PIECE of our constitutional architecture is the executive branch. As a matter of institutional design, the Founders chose a unitary executive, with a single president perched on top of a complex

pyramid of lesser offi cials in the executive branch (or, as they called it,

“department”). The central challenge in understanding how the presi-

dent fi ts into the overall constitutional structure is found in the tension

between two key clauses, which highlight the tension in any system

of limited government. Section 1 leads off with a pop: “The executive

power shall be vested in a President of the United States of America.”

The verb “vest” conveys a powerful image, for the term “vested,” as in

fully clothed, has long been used to indicate a fully protected right, not

one that is either contingent or inchoate. The president thus has the

whip hand.

Any such power, if left untrammeled, carries with it the danger

of abuse, if not tyranny. No trustee who is put in charge of an oper-

ation can treat his trust as though it were a fi efdom that he and he

alone owns. All trustees of private wealth, all guardians of children and

incompetent individuals are subject to correlative duties to their ben-

efi ciaries precisely to negate the inference that vested powers are akin

to strong ownership of trust assets. The president is not the owner of a

nation, but a fi duciary, who is subject to the same type of constraints.

The counterweight to the vesting clause in Article II therefore comes

in the critical clause in Article II, Section 3, which simply says that “he

shall take care that the laws be faithfully executed.” The use of the verb

“be” is no accident. His duties extend not only to the duties that fall

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248 Constitutional Structures: The Executive Power

upon him personally in his offi cial capacity, but also impose on him

a duty of oversight to see that all lesser offi cials within the executive

branch respect the same set of fi duciary duties that are imposed on the

president. In addition to these two benchmarks, Article II also contains

specifi c provisions that deal with such critical issues as his position as

commander-in-chief, his responsibility to appoint inferior offi cers who

will be accountable to him, his power to issue pardons, and his right

to receive ambassadors and other public ministers. These are extensive

powers, and the central structural question is whether Article II sets the

right balance between the powers conferred on him and the restraints

to which he is subject.

A Delicate Balance

In thinking about this issue, it is critical to note that the Framers could

have opted for other institutional designs. Many state governments

“unbundle” the executive power1 so that, for example, the attorney gen-

eral is elected independently of the governor. Global judgments on these

matters are always hard to make. Nonetheless, the split between offi ces

has some pluses and minuses: the effi ciency of the offi ce is likely to be

reduced by divided authority, but the check against executive aggran-

dizement is strengthened. The attorney general could investigate the

president and other offi cers in the executive branch for misconduct, but

could also do so for political reasons, especially if the two political lead-

ers are from different parties. Wholly apart from any risk of abuse, the

creation of the separate offi ce could result in a greater fragmentation of

executive power, which could easily hamper law enforcement efforts.

A brief experiment with this divided power was tried at the federal

level by the statutory creation of “special prosecutors” under the Inde-

pendent Counsel Act,2 passed in 1978 in the aftermath of the Nixon

Watergate scandal. The law was intended to better control the risk of

misconduct by high offi cials in the executive branch. The theory behind

the statute was that confl icts of interest made it unlikely that anyone

in the attorney general’s offi ce would take a hard look at presidential

misconduct after what came to be called “the Saturday Night Massacre”

in which Robert H. Bork, as the acting attorney general, fi red Archibald

Cox, the special prosecutor assigned to the case, under orders from Pres-

ident Nixon.3 No one quarrels with the fact that massive abuses then

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Basic Principles and Domestic Powers 249

led less than a year later to Richard Nixon’s resignation under threat

of impeachment. But the great vice of the Independent Counsel Act

is that in the aftermath of Watergate it refought the last war, when in

subsequent cases the lack of institutional control over the special prose-

cutor led to overzealous prosecutors unchecked by any institution. The

Supreme Court sustained this statutory scheme over the passionate and

prescient dissent of Justice Scalia in Morrison v. Olson.4 Yet, ironically,

the consistent overreaching by these independent “special prosecutors”

meant that this legislation was allowed to lapse in 1999.5 The simple

point is that it is exceedingly diffi cult to get the right institutional bal-

ances even when views on the relevant trade-offs are widely shared

across the political spectrum.

Our current constitutional position thus embodies a “unitary” exec-

utive power, vested in a single person, with the necessary risks that

entails. The details of that unitary system are complicated by the exis-

tence of heads of departments who have a power base that is not fully

dependent on the president. The exact determination of these powers,

as well as other details of the executive branch, has left many issues

for disputation. That said, however, the basic constitutional structure

remains tolerably clear. Unlike the prime minister in a parliamentary

system, the president is chosen for a term of four years6 and he may

be removed from offi ce earlier only by impeachment by the House and

conviction by the Senate for some high crime or misdemeanor.7 In order

to further protect his independence in offi ce, the president’s compensa-

tion shall be neither increased nor decreased during his term in offi ce,8

but that constitutional provision does not protect him from the rav-

ages of infl ation that strike all persons, public or private. Nor can the

president receive any other “Emolument” while in offi ce.9 Entrenching

the president is thus the opening gambit in an elaborate system replete

with separate powers for the executive branch and checks and balances

among the several branches.

Regardless of the confi guration of executive power, one nagging

question remains. What is there that keeps the president, be his powers

large or small, acting in ways that conform to the basic constitutional

dictates? One answer is that there is really nothing in the Constitution

or laws that achieves that particular result, such that compliance relies

on an uneasy combination of political pushback from other branches of

government and some diffuse sense of public opinion. Just that realist

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250 Constitutional Structures: The Executive Power

view has been advanced with much force and confi dence in a recent

book, The Executive Unbound: After the Madisonian Republic,10 by Eric Pos-

ner and Adrian Vermeule, who write, more or less categorically, that

“law does little to constrain the modern executive.”11 There is of course

much historical evidence of constitutions that have failed to hold nations

together. Their breakdown is always attributable to some ill-fated mix

of institutional design and the people who run them. But, by the same

token, it is important to ask why some constitutional forms have on

balance succeeded. On this point, it is critical to note that the Posner/

Vermeule thesis overstates two grounds for skepticism: linguistic and

moral. There are of course gaps in any system of rules, but it is a serious

mistake to assume that all language is so plastic that any willful person

can defend any interpretation against all comers. That is certainly true

even for the modern executive: his term of offi ce lasts four years; he

needs Senate confi rmation of senior appointments; he is vested with the

power of commander-in-chief; and he has the absolute power to grant

or deny pardons12 and to make recess appointments.13

Since so few cases result in litigation, moreover, it is hard to explain

why the president seems to stay within appropriate bounds even when

clear boundaries are not evident: is it that the social sanctions of which

Posner and Vermeule speak are exceedingly potent, or that the internal-

ized sense of legal obligation on key offi cials is so great? The president

has lots of lawyers at his disposal, but their sole job is not to fi nd clever

ways for him to beat the system. Often it is to instruct him on what the

norm is so that he can do the right thing unilaterally, without compul-

sion. The entire pardon offi ce is set up to encourage some cohesive law-

like consistency on an issue where the president’s power is concededly

absolute, so strong is the impulse to create rule of law practices even

when they are not required.

This set of practices gives rise to the following methodological puz-

zle. Since legal, political, and social forces are always present, and usu-

ally cut in the same way, it becomes hard in practice to tease out their

separate infl uences. The basic ambiguity in all these cases is captured

in the phrase “virtue is its own reward,” which has two meanings. It

can refer to the sensation of self-respect that one gets from compliance

with legal norms. Or it can refer to the prudential wisdom of complying

with legal norms as the best way to keep out of trouble. As Richard Pil-

des writes in his review of The Executive Unbound, the matter is to some

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Basic Principles and Domestic Powers 251

extent overdetermined in “that the single most powerful signal of that

willingness to be constrained, particularly in American political culture,

is probably the President’s willingness to comply with law.”14 Unless that

attitude of willingness to work within the law is on constant public dis-

play, the president will drive away other political actors whose coopera-

tion is necessary for his success.

By way of comparison, it is clear that the CEO of a business fi rm

or charitable institution cannot just rule by decree but must consider

how to coordinate his activities with other players in the organization,

on whose long-term cooperation his own success depends. Presidents

are really no different from business types in their need to worry about

what everyone else worries about, namely, to follow Daryl Levinson’s

list, “coordination, reputation, repeat-play, reciprocity, asset-specifi c

investment, and positive political feedback mechanisms.”15 Indeed,

these issues are endemic to all forms of social cooperation, so it is likely

that psychological dispositions will evolve to make people comfortable

most of the time with discharging their fi duciary duties, without looking

over their shoulders at the law. They do very well by trying to do the

right thing. That want of introspection and calculation turns out to be a

powerful way to secure compliance, and the dangerous implication of

the Posner/Vermeule position is that their descriptive account will be

taken by some as a reason to weaken the complex, albeit fragile, set of

legal and social constraints that attach to people in high offi ce. Surely

sanctions, like impeachment, are needed to deal with major deviations

from rules, but in most cases the mix of internal obligation and external

enforcement mechanisms seems to work tolerably well.

At this point, therefore, the inquiry turns from the existential mat-

ters of compliance to the key design choices of how the United States

Constitution puts these pieces together. The topics here form a hetero-

geneous mass, whose contours are determined in part by the particular

provisions of Article II of the Constitution and in part by some underly-

ing notion of executive power. Historically, our constitutional structure

starts off with a refl ection of the Lockean concerns with limited govern-

ment. Locke himself derived the separation of the executive from the

legislative by an appeal to their different functions:

But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power

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252 Constitutional Structures: The Executive Power

always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.16

That separation has, like all institutional arrangements, its positives

and negatives. On the negative side, strict separation allows, as noted,

for the improper concentration of executive power in the hands of a

single individual. Yet simultaneously, the Founders feared that dividing

power within the executive branch—think of the Roman system of two

consuls—could lead to paralysis, with devastating consequences, espe-

cially when facing foreign threats or domestic unrest, where the latter

was a far greater concern in the Founding Era than it is today. The basic

design thus walks the fi ne line between these two extremes, by ensuring

that the president has the suffi cient “energy” that Hamilton regarded as

“essential” for responding to foreign attacks, for setting out the “steady

administration of the laws,” and for guarding against legislative combi-

nations and factions.17 Hamilton also thought that the four-year term

was needed to give the president a permanent stake in the performance

of his offi ce,18 without creating the risk of a de facto monarchy. Without

that term length protection, the president could be subject to being “at

the absolute devotion of the legislative” branch.19 By way of offset, the

Constitution imposes on the president the obligation to “take Care that

the Laws be faithfully executed”20 and subjects his senior appointments

to senatorial confi rmation.21

In the section preceding the Take Care Clause, the president was

given the absolute power to grant reprieves and pardons for offenses

against the United States.22 He also enjoys other prerogatives, includ-

ing the right to receive ambassadors.23 Most critically, the president is

also the commander-in-chief of our military forces,24 which raises a key

question regarding his “inherent” power to deal with foreign nations

and with individuals charged with being enemy combatants.

In order to see how this system works, I shall attack all of these issues

regarding executive power in the following order. This chapter deals with

domestic matters. The fi rst section addresses the thorny issue of who has

the power to make appointments to and removals from various offi ces

both within and outside of the executive branch. The second section of

this chapter deals with delegation of power to the president by Congress.

Chapter 17 will examine the interactions between the rise and fall

of the delegation doctrine, both as it applies to traditional functions

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Basic Principles and Domestic Powers 253

lodged in the executive branch, and those that take advantage of the

peculiar status of independent agencies under the Constitution. Chapter

18 will then deal with the role of the president in foreign affairs gener-

ally. That inquiry has two separate parts. The fi rst examines the inter-

action between the president and Congress with respect to Congress’s

legislative powers, to legislation that must be approved by both houses

of Congress, and also to the Senate in relation to treaties (which must be

approved by two-thirds of the senators present).25 The second part ana-

lyzes the position of the president in his role as “Commander in Chief of

the Army and Navy of the United States, and the Militia of the several

States, when called into the actual Service of the United States.”26 Each

of these topics has profound implications for both the structural success

of the American Constitution and its ability to balance the vexed trade-

offs between individual claims of liberty and collective claims of national

security. It is therefore necessary to consider the scope of the writ of

habeas corpus insofar as it relates to the conduct of foreign affairs.

The Appointment and Removal of Federal Offi cials

No chief executive can discharge all of the obligations of any major

offi ce without the assistance of agents who are subordinate to his will.

With respect to the offi ce of the president, the question of who these

agents are and how they might operate is refl ected in the Appointments

Clause and its complex structure, which refl ects the Framers’ deep com-

mitment to both the separation of powers and checks and balances. The

relevant portions of that clause read:

He . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Con- suls, Judges of the supreme Court, and all other Offi cers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Offi cers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.27

The initial question is why does the president not have the sole

power to appoint senior government offi cials without having to fi rst

obtain a majority of votes in the United States Senate? This puzzle arises

because both corporate and parliamentary systems typically give the

head offi cer exclusive power to appoint his team. The key difference,

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254 Constitutional Structures: The Executive Power

however, is that in both corporate and parliamentary systems, that head

serves at the pleasure of a board of directors who can dismiss the exec-

utive offi cials at will. The political equivalent in a parliamentary system

is a vote of no confi dence, after which the government falls and a new

election must be held. Given that reserved power, little is gained by the

executive with respect to his appointive powers. Note that the power

of Congress to dismiss the executive at will would signal the end of

separation of powers, which the president’s four-year term preserves.

Having another body pass on his key appointments is thus a substitute

safeguard given the unqualifi ed power of dismissal that he retains.

The desire to curb executive power over appointments is even

stronger for persons, like judges, who are not part of the executive

branch. Left unchecked, the president could stack the judicial branch

with his own lackeys. Since federal judicial offi ces are held “during good

Behaviour,”28 which typically means for life, the president’s nominees

will outlast his term of offi ce, which supplies an additional incentive

for denying the president any plenary appointment power. Life ten-

ure for judges has turned out to be one of the great structural mistakes

of the Constitution,29 with profound implications for the durability of

the original tripartite structure. A long term of years, say eighteen for

the Supreme Court, would preserve judicial independence, reduce the

stakes on each new appointment, and secure the orderly rotation in

offi ce that could prevent the formation of a Supreme Court gerontoc-

racy. But that mistaken choice to grant life tenure makes the senatorial

constraints even more important.

It is signifi cant to note that this power to turn down presidential

judicial nominees or other executive appointments is vested not in

the House of Representatives or even in both houses in combination.

Requiring approval in both houses surely would be too cumbersome

to enable appointments to take effect within a sensible time frame.

The creative tension between the Senate and the House makes good

sense in slowing down legislation, but not appointments, especially

since delays would surely be routine, as many qualifi ed candidates may

not meet the approval of both houses of Congress, given that they are

selected on different time cycles and for different reasons. So the need

for expedition leaves the choice of either the House or the Senate, act-

ing alone. The implicit elitism of the Founders’ republican model prob-

ably explains why they lodged this power with the smaller of the two

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Basic Principles and Domestic Powers 255

houses, the Senate, whose members were all appointed by state legis-

latures at the time.

The structure of the Appointments Clause makes it clear that the

initial nomination is the president’s alone to make; the reference to “by

and with the Advice and Consent of the Senate”30 is triggered only after

the nomination is made. Unfortunately, no one can offer a coherent

account of the “advice” portion of this provision. What matters therefore

is consent to key nominations and the complex politics that it generates.

Doubtful senators can always threaten to vote against an appointment

unless the president makes some suitable concession, including perhaps

a “package deal” that includes some nominees desired by those senators

as the price for getting presidential nominations through. That ability

to bargain, however, necessarily depends on the creation of a blocking

Senate coalition, which is never easy to form. The opponents know that

only a bare majority is needed for Senate confi rmation, and there are

strong political pressures against leaving major positions open indefi -

nitely. Maneuvers to block cloture may be effective in some situations,

but so long as the president is prepared to move toward the center some

nominee is likely to get through. The vociferous opposition of a few

cannot block the decision of a solid majority.

Most importantly, the Senate must exercise its power of consent on

an up-or-down, all-or-nothing basis only; either the nominee gets the

job or he does not. The nomination cannot be approved subject to any

ad hoc restrictions or limitations on powers of the nominee in public

offi ce, all of which will necessarily alter the system of constitutional bal-

ance. Thus the attorney general cannot be approved so long as he agrees

to recuse himself from all antitrust or civil rights cases. At no point,

moreover, does the Senate have to give public reasons for its decision,

although individual senators are surely entitled to have their public say.

Quite simply, any “for cause” standard is no more administrable in this

context than for the College of Cardinals in Rome. Any other alternative

would have horrible institutional consequences. Imagine, for example,

how the judiciary would look if judges, particularly on the Supreme

Court, could decide in advance to recuse themselves from, say, con-

stitutional cases or antitrust matters, or if they were forced to do so by

limitations imposed on their nomination approval by the Senate. If we

let different judges cut unique deals, no one would be able to fi gure

out what the term “one” Supreme Court means.31 Imagine, too, how

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256 Constitutional Structures: The Executive Power

awkward it would be to assemble a cabinet whose appointments were

hedged about by different substantive limitations on the matters they

could deal with. Of course, many departments set out duties for their

occupants pursuant to some statutory scheme. But that is a far cry from

telling a department head that he cannot speak to others about his work

or that he must take his offi ce without having the same set of powers as

his predecessor. Up-or-down and all-or-nothing rules of decision-mak-

ing are best understood as structural constraints, which cannot be waived

even with the blessing of the president and a unanimous Senate.

Recess Appointments

The basic structure of the Appointments Clause for those offi cers who

need Senate approval gives guidance as to the appropriate interpretation

of the president’s power to issue recess appointments:32

The President shall have Power to fi ll up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.33

Wholly apart from any historical practice, one key phrase in this

clause refers to vacancies that “may happen” when the Senate is not

in session. The clear cases to which this applies are those where the

offi ce falls vacant when the Senate is not in a position to confi rm the

substitute and the president needs to perform his executive function.

To allow the appointment to last only until the Senate comes back into

session could create a tenure of offi ce in which no useful work could be

done. To allow the appointment to last indefi nitely or for a long term

is in effect to undercut the role of the Senate confi rmation process. The

compromise position allows the appointment to go for the remainder of

a session, which in no case is more than two years. The original interpre-

tation of this document in 1792 by the fi rst attorney general, Edmund

Randolph, gave a narrow scope to recess appointments,34 given that they

were an exception to the basic power of the Senate in the overall con-

stitutional scheme.

Two other textualist arguments bolster the position that the pres-

ident’s power to make recess appointments should be narrowly con-

strued. First, the term “vacancy” is best read as requiring that the offi ce

be up and running before any recess appointment can be made. Accord-

ingly, the historical evidence suggests that the president cannot use his

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Basic Principles and Domestic Powers 257

power to make recess appointments that are in fact initial appointments

to fi ll a newly created position,35 because it would have “deprived the

Senate of its ability to infl uence the direction of a newly created agency

at a critical time.”36 Second, in Noel Canning v. NLRB,37 the Circuit Court

for the District of Columbia held that the term “the Recess” only “refers

to the intersession recess of the Senate”38 when the Senate is not avail-

able to consider the matter. That does not include, as the NLRB had

argued, the shorter periods of adjournment when the Senate is open

for business, including on August 5, 2011, for such legislation as the

Airport and Airway Extension Act of 201139 or, more signifi cantly, on

December 23, 2011, when the Senate passed the Temporary Payroll Tax

Cut Continuation Act of 2011,40 which was during the same adjourn-

ment order that was in place when the President made his disputed

“recess” appointments. Both laws were signed by the president in the

ordinary course of business. The case is not destined for review to the

Supreme Court.41

What is striking about the modern process is that the use of recess

appointments has become so far more extensive today that they have

come to serve a very different function, chiefl y to allow the president to

appoint controversial nominees to key administrative positions, such as

John Bolton as ambassador to the United Nations,42 Craig Becker to the

National Labor Relations Board,43 and Richard Cordray as the head of

the newly created Consumer Financial Protection Bureau created under

the Dodd-Frank fi nancial reform statute.44 Under these circumstances,

both the spirit and letter of the constitutional text dealing with recess

appointments are manifestly violated. Textually, the president is not

even allowed to fi ll up offi ces that remain open during vacancies because

they did not happen during the recess, which was Randolph’s view of

the matter. Nor does the text of the Constitution allow the president to

make recess appointments for newly created offi ces, even if these vacan-

cies emerged when the Senate was in recess. The Framers’ decisions on

these key points to deny the president any power to fi ll up the offi ce and

amount to an invitation to the Senate, especially when in the control of

the opposite party, to stonewall nominations. In and of itself, this might

well be a good thing because it would force the president to nominate

candidates who would not inspire that level of opposition, there is much

to be said for giving the word “happen” its literal interpretation. The

balance of convenience is so close that there is no case for deviating

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258 Constitutional Structures: The Executive Power

from a clear textual command. But if the broader version of the presi-

dent’s power to make recess appointments is accepted, as an awkward

constitutional compromise, the only person who should never be con-

sidered for the position is the nominee who could not gain approval

through the regular process. It is always an open question whether a

fresh nominee would have inspired Senate ire. But there is no doubt

on that score about the nominee whose nomination has been stalled, or

even rejected, by the Senate.

The historical practice has long been the opposite direction, so the

question is whether that practice should be incorporated as part of the

prescriptive constitution. The correct answer in this context is in the

negative. The textual violation is clear; the new practice introduces seri-

ous institutional dangers; and no reliance interest protects the old prac-

tice so long as sitting appointments are not upended before the end of

the current session. It is far better to accept the original design. Of equal

importance, moreover, the respect for separation of powers should con-

demn yet another novel practice in the recent disputes, where President

Obama refused to respect the Senate practice of avoiding a recess by

keeping itself in pro forma session for three-day periods in order to fore-

stall the application of these recess appointments. The Senate should be

regarded as the controller of its own actions. Even so stout a defender

of presidential power as John Yoo has taken the position that “[i]t is up

to the Senate to decide when it is in session or not,” such that “[t]he

President cannot decide the legitimacy of the activities of the Senate any

more than he could for the other branches, and vice versa.”45 It is hard

to quarrel with this position, which raises the unhappy point that many

actions of the NLRB and the Consumer Financial Protection Bureau may

themselves be thrown into unnecessary doubt.

Who Appoints Whom and to What?

The next set of appointment issues concerns the extent to which Con-

gress can alter the basic process of presidential appointments with Sen-

ate confi rmation. With respect to “Ambassadors, other public Ministers

and Consuls, Judges of the supreme Court, and all other Offi cers of the

United States” who are not inferior offi cers, the process is etched in

stone.46 Only the president may make these appointments. It was there-

fore an easy and correct decision for the unanimous Supreme Court

in Buckley v. Valeo47 to strike down provisions of the Federal Election

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Campaign Act of 197148 on the ground that neither the House nor Sen-

ate could have any role in appointing four of the six voting members of

the Federal Election Commission (FEC), given its vast regulatory, inves-

tigative, and enforcement powers. In this instance, there was no need

to decide whether the members of the board were merely inferior offi -

cers who could be appointed by the president alone, the courts of law,

or the heads of departments, for none of those categories include Con-

gress. Nor was it possible to justify a departure from strict text in order

to stop the president from loading the FEC with people who would

work overtime to ensure his reelection. In this instance, FEC members

with their extensive powers do not by any stretch of the imagination

look to be inferior.

The relative fi xity in dealing with offi cers generally contrasts with

the legal thicket that surrounds the nomination and appointment of

“inferior” offi cers,49 who presumably work for some “principal” or at

least “superior” offi cer. It is a sign of serious textual diffi culties that the

Constitution does not use either term. The common term today is “prin-

cipal” offi cer, which suggests an individual at the top of the hierarchy.

But the more accurate term is “superior” offi cer, which suggests a chain

of command from top to bottom. The use of that term invites a constitu-

tional stalemate, however, because there are often three or more offi cers

in the chain of command. Yet the Constitution only has places for two

classes, not three or more. Some persons located in the middle of com-

plex hierarchies have to be assigned to one side of the line or the other,

without the slightest guidance as to how this is to be done.

The point has profound implications for all constitutional gover-

nance issues. In any organizational pyramid, that cluster of interme-

diate offi cers—to coin a phrase—will necessarily grow with time, for

by defi nition both the number and fraction of positions in the middle

of the pyramid will necessarily increase as more tiers are added to the

basic structure. At this point, the Constitution does open up some stra-

tegic choices for Congress, which may be tempted to enact legislation—if

need be over a presidential veto—that bypasses the president by vesting

the power of appointment of key inferior offi cials in the head of some

executive department in order to undercut the power of the president.

And since Congress may, as they (a “they” that is consistent with British

but not standard American usage) think proper, these choices remain

largely in the political domain.50 In most instances, this compromise

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260 Constitutional Structures: The Executive Power

would be modest because, by defi nition, inferior offi cers are those who

must defer to superior offi cers, including the president, who retain most

of the authority over policy choices. But the wavy line between princi-

pal and inferior offi cers is not defi ned in the Constitution, and Congress

surely has at least some incentive to push the envelope by entrenching

key persons outside of presidential control. To make matters yet more

complex, there are, of necessity, many government employees who, like

enlisted service members, are neither kind of offi cer. Yet the Appoint-

ments Clause makes no reference to this third class of individuals, and

thus assigns no way in which they are to be appointed.

All in all, this is no pretty situation. No matter how well one thinks

of the Framers, it is clear that the clunky processes specifi ed under the

Appointments Clause are not easily scalable even in a world where the

activities of Congress are limited by the doctrine of enumerated pow-

ers.51 They are even less so in the current legal environment, with its far

more ambitious government interventions, which requires a far more

complex apparatus than any that could have been envisioned by the

Framers. It should therefore come as no surprise that there has been a

sharp rise in litigation over the scope of this clause driven by the need

to staff these critical positions. To treat all these appointments as dealing

with principal offi cers requires extensive confi rmation hearings before a

Senate not of thirty members but of one hundred members, who are all

distracted by a range of committees and tasks not imaginable in 1787. In

most instances the threat of an inundation of time-consuming appoint-

ments will therefore move both the president and the Congress in the

direction of turning principal offi cers into inferior ones in order to vest

their appointment in, as the case may be, “the President, the Courts

of Law, or in the Heads of Departments.” Similarly, there will be equal

pressures to convert some inferior offi cers into ordinary employees in

order to allow for their appointment by persons who are themselves

inferior offi cers and therefore unable under the current constitutional

scheme to appoint any inferior offi cers.

Theoretically, the rigid structure of the Appointments Clause is

surely informed by the theory of limited government with its stress on

the twin principles of separation of powers and checks and balances.

But I can think of no devotee of limited government who would treat

the current constitutional structure as ideal. Indeed, on these struc-

tural issues, devotees of limited government are likely to have spirited

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Basic Principles and Domestic Powers 261

disagreements among themselves as to the preferred structure. Indeed,

on this issue thinkers on all sides of the political spectrum are likely to

have a high degree of tolerance for the new schemes of appointment

introduced for dealing with the large cast of intermediate offi cers that

lies between principal offi cers and low-level employees. But that una-

nimity is likely to diminish with certain high-level appointments of key

offi cers or commissions who bear scant resemblance to the mass of dep-

uty undersecretaries, assistant secretaries, and deputy assistant secretar-

ies who are commonly found in every government department today.

It is important to take these two different types of cases up in sequence.

The fi rst notable controversy over a government offi cial with

unique powers was Morrison v. Olson,52 a dispute over whether the “inde-

pendent counsel” under the 1978 Ethics in Government Act53 could be

treated as an inferior offi cer subject to appointment by the attorney

general without Senate confi rmation. Chief Justice Rehnquist wrote a

long and unpersuasive opinion that he was an inferior offi cer under a

three-part test: subject to removal by a superior offi cer, with limited

duties, and in a limited jurisdiction. The fi rst point is something of a

sham because removal is possible only under a narrow defi nition of

cause, which imposes few operational limits on the offi ce. The latter

two points taken together would make, as Justice Scalia acidly noted in

his dissent, the ambassador to Luxembourg an inferior offi cer “simply

because Luxembourg is small.” Indeed the real tip-off in this case is that

the label “independent counsel” carries with it no badge of inferiority.

Requiring Senate confi rmation on this singular occasion would hardly

slow the confi rmation process to a crawl and would impose a needed

institutional check on what has always been litigation with profound

political implications.

The landscape changes once the question concerns the appoint-

ments process put into place for members of the Coast Guard Court of

Criminal Appeals, a specialized body with multiple members. At this

point, the balance of convenience runs the other way, for there seems

to be little functional reason to require the Senate to pass on multiple

appointments for courts of limited jurisdiction that look to be entirely

insulated from politics. It is therefore no surprise that Justice Scalia,

writing in Edmond v. United States,54 found these judges to be inferior offi -

cers by invoking with complete comfort the same three factors that he

railed against in Morrison, because their work is “directed and supervised

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262 Constitutional Structures: The Executive Power

at some level by others who were appointed by presidential nomination

with advice and consent of the Senate.”55 To be sure, these judges pass

on death sentences, dishonorable discharges, and prison sentences of

more than one year. Their overall work is subject to supervision by both

the judge advocate general and the secretary of transportation, neither

of whom can intervene in individual cases. Justice Scalia did think that

these variables mattered, but only to establish their status as inferior offi -

cers, not mere employees outside the Appointments Clause altogether.

In principle, the case should come out the other way on the ground

that any appellate judge is no more inferior within her own domain

than the appellate judges on the various circuit courts of appeal. But at

this point, pragmatic impulses trump formal considerations. That sense

was evident in Freytag v. Commissioner,56 which took the same general

approach in fi nding the special trial court judges assisting Tax Court

judges (who are subject to Senate confi rmation) to be inferior offi cers

who could therefore be appointed by the chief judge of the Tax Court,

an eminently sensible determination given their numbers and their gen-

eral place in the institutional hierarchy, even if the Court divided on

the question of whether the chief of the Tax Court (which itself is an

Article I court whose members serve only for a limited term) should be

considered as the leader of a court of law or the head of a department,

given that it was surely one or the other. Freytag in turn set the stage for

a dispute over the status of the administrative law judges (ALJs) who

hear cases brought by the Federal Deposit Insurance Corporation (FDIC)

to remove senior bank offi cials from their posts because of misconduct.

In Landry v. FDIC57 Judge Steven Williams concluded that these judges

are only employees of the United States who can therefore be appointed

by the FDIC from its own pool of administrative judges. Their decisions

are not fi nal, but have to be approved by the FDIC’s board of directors,

whom Landry did not consider to be heads of departments under the

Appointments Clause. Judge Williams relied on the fact that the ALJs do

not have fi nal authority over cases, which seems odd since the decisions

of all inferior offi cers are routinely subject to review by superior offi cers.

ALJs also have powers that are not vested in the FDIC board, including,

as the dissent of Judge Randolph observed, the ability to “issue subpoe-

nas, rule on proffers of evidence, regulate the course of a hearing, and

make or recommend decisions.”58 In Landry, Senate confi rmation was

not at issue, such that there would seem to be no reason to shrink the

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Basic Principles and Domestic Powers 263

defi nition of an inferior offi cer so that it excludes those persons with

genuine discretion in offi ce who were appointed by departmental heads.

Removal of Federal Offi cers

The Appointments Clause also contains another gaping hole: the

detailed provisions on presidential appointments are not matched with

a single word that deals with the question of the president’s power to

remove subordinate offi cials from offi ce. The question thus arises as to

how that issue should be treated. One possibility is that the Senate’s

initial approval could specify that its consent is required for removal

from offi ce. Another is that the Constitution should be read as imposing

a like requirement of the Senate’s consent for removal to bookend its

consent for appointment. By and large, however, these proposals have

been solidly rejected by consistent presidential practice, across all major

political parties, of having all senior appointees in the executive branch

serve at the pleasure of the president and thus be removable at will.59

The (weak) textual basis for this policy is that any other system would

be inconsistent with the president’s obligation “to take Care that the

Laws be faithfully executed,”60 which he could hardly do with individ-

uals in offi ce who would not do his bidding. That argument, standing

alone, is less than persuasive, especially in light of the counterargument

that appointing strong, independent subordinates serves as a safeguard

against presidential misconduct.

Nonetheless, on balance, this position seems correct for functional

reasons that are not inconsistent with the text. In a world in which the

secretary of state or defense could not be removed from offi ce by the

president, there would be no way for anyone to know whether they

speak authoritatively for the president. It is not feasible for a president

to countermand each and every order by the head of a department.

And it surely leaves everyone in a lurch to have the president issue a

blanket statement that any and all orders of the secretary of state, for

example, should be ignored when the secretary of state is free to ignore

the president’s wishes. The result is not divided authority as with the

unbundled executive, where at least the roles are clear. It is warring

factions within the executive, which, if occurring on multiple occasions,

could threaten to reduce the president to a bit player in his own admin-

istration. In the end, therefore, the effective operation of the system

depends on the ability of the president to place in key offi ces those loyal

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264 Constitutional Structures: The Executive Power

to his vision of the job. His decision to fi re any offi cial for insubordina-

tion is, moreover, subject to a strong indirect check because the Senate

still has to consent to the appointment of a replacement, which will not

be easily accomplished if the previous dismissal raises senatorial ire. It

has therefore been settled since Chief Justice William Taft, himself a for-

mer president, wrote in Myers v. United States61 that, for executive branch

employees, even as low as a postmaster of the fi rst class in Portland,

Oregon, it would be intolerable to saddle the president with subordinate

executive offi cers “who by their ineffi cient service under him, by their

lack of loyalty to the service, or by their different views of policy might

make his taking care that the laws be faithfully executed most diffi cult

or impossible.”62

The Myers decision had some real heft, for it overturned the 1867

Tenure of Offi ce Act,63 which provided that the president could not

remove from offi ce anyone whose appointment had been subject to

Senate approval until the Senate had confi rmed the nomination of his

successor. In effect, that statute deprived the president of the power of

removal without the consent of the Senate. The act was a big deal. In

fact, it was for a violation of this provision that President Andrew John-

son was impeached and almost removed from offi ce in 1868.64

Myers did not, however, seek to upset two earlier rules that did

limit presidential removal power. First, Chief Justice Taft went out of

his way to distinguish the Pendleton Civil Service Act,65 which replaced

the spoils system with a merit system under which covered inferior civil

servants could not be removed at the whim of the president.66 The tex-

tual foundation for the position taken in that act was tenuous, to say the

least. The Congress may “vest” inferior appointments in either the pres-

ident, the courts, or the heads of departments.67 But the use of the term

“vest” suggests that Congress has authority over assigning control of the

appointment decision, not that these appointment decisions could then

be subject to oversight and nullifi cation by a Civil Service Commission

that is not answerable to the president, as set out in that statute. But

rather than presupposing that low-level functionaries count as inferior

offi cers covered by the Appointments Clause, perhaps the better reading

is that they are just simple employees who are not covered in any way,

shape, or form by anything in Article II. At this point, it looks as though

the Necessary and Proper Clause ought to kick in to allow Congress to

augment the power of the heads of department to make these hires for

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Basic Principles and Domestic Powers 265

“carrying into Execution the foregoing Powers, and all other Powers

vested by this Constitution in the Government of the United States, or

in any Department or Offi cer thereof.”68

It would be very odd, however, if Congress could prohibit the pres-

ident or heads of departments from making any such appointments

because they were not covered by the Appointments Clause. Rather

than wade into this thicket, Taft wisely did not seek to ground his con-

clusion in text, but rather appealed to the prescriptive constitution when

he wrote that “a contemporaneous legislative exposition of the Consti-

tution when the founders of our Government and framers of our Con-

stitution were actively participating in public affairs, acquiesced in for a

long term of years, fi xes the construction to be given its provisions.”69

The second precedent was judicial. Taft’s views on the Civil Ser-

vice Act, however, are in evident tension with the earlier questionable

Supreme Court decision in United States v. Perkins,70 which held that

when Congress vests the appointment of inferior offi cers in the heads

of departments, “it may limit and restrict the power of removal as it

deems best for the public interest.”71 Putting any limitations into that

broad phrase was not possible within the context of the case. There a

naval cadet-engineer was honorably discharged against his will by the

secretary of the navy. The applicable statutes only allowed for dismissal

for cause. In this action for back pay, the navel cadet was treated as an

inferior offi cer of the United States who did not therefore serve at the

pleasure of the president or of any of his senior offi cers, of whom the

secretary of the navy was presumably one. Left unsettled by this deci-

sion, however, are three key issues.

The fi rst is whether the Congress may give itself some say in the

dismissal of inferior offi cers, given that the Appointments Clause speaks

only to the distribution of the appointments power among “the Presi-

dent alone, in the Courts of Law, or in the heads of Departments.” The

Congress is not on this list, because of genuine separation of powers

concerns. The second is whether the naval cadet was also entitled to

reinstatement in the face of a general rule that normally refuses to allow

any court to award specifi c performance of an employment contract.

Given the silence on removal of inferior offi cers and the use of the judi-

cial rule applicable in the courts of equity, the answer should be no.

The third is whether the “public interest” allows the Congress to go one

step further by requiring the consent of either the Senate, the House

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266 Constitutional Structures: The Executive Power

of Representatives, both houses together, or even the courts of law, to

secure a dismissal of an inferior offi cer. Again the answer should be no,

on the same separation of powers concerns that keep the Congress out

of making appointments altogether.

Read in context of the larger question of removal, Perkins fl ips the

term “vests” on its head by stripping away most of the power from the

president or department head and taking the odd position that a cadre

of lower-level functionaries could block the president from the orderly

discharge of his duties. The suggestion that a removal could be blocked

by a branch of government in which the offi cer did not work seems

equally absurd because the blocking power here could easily let one

branch of government frustrate the routine operations of another. The

sensible way to fi ll this gap is to give the responsible persons in each

branch of government authority over their own staffs. Indeed, the entire

question is whether that form of job protection should be given to infe-

rior personnel who do not exercise real control over policy. The tangle

that emerges on this simple issue suggests looming complications in the

supposed inability of the president to dismiss, at will, members of inde-

pendent agencies, which can only be addressed (and will be in Chapter

17) once the general doctrine of delegation is understood.

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Delegation and the Rise of Independent Agencies

THE ANALYSIS of executive power has thus far been conducted in con-nection with issues of structure that long predated the New Deal. The implicit assumption in that model is a tripartite division of functions

that denies any overlap between legislative and executive powers. The

Congress fi rst does its job in creating law and then turns the matter over

to the executive for implementation and enforcement. But this com-

partmentalization can never be made airtight. Accordingly, this chapter

starts with a theoretical explanation of the administrative inevitability of

delegation and then discusses the patterns of what I call “trusted delega-

tions,” followed by an analysis of recurrent issues on delegation includ-

ing the legislative veto, the balanced budget amendment, and, fi nally,

delegation to independent agencies, which is one of the cardinal fea-

tures of the New Deal transformation.

The Inevitability of Delegation

Virtually all laws require some degree of discretion and intelligence in

their execution, especially if they are to be faithfully executed. Often,

Congress, in the passage of legislation, quite explicitly delegates power

to the president for making future decisions that are better made quickly

in light of circumstances that cannot be known at the time of the initial

delegation. That effort to allow the president to make sensible decisions

based on updated information should not create any institutional angst.

These arrangements parallel the division of responsibility between a

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268 Constitutional Structures: The Executive Power

board of directors and the chief executive offi cer in the standard large

corporation whose ultimate “citizens” are its shareholders. As Locke

noted, the executive is always on call even if the legislature is not in ses-

sion or the corporation is not open for business.1 Decisions that require

this form of discretion should be regarded as an indispensable part of the

overall job of an executive offi cer. Thus, Congress’s exercise of its power

to delegate in these circumstances is not inconsistent with either the

rule of law or the particular strictures of the United States Constitution.

Accordingly, the background norm of interpretation must guard

against excessive literalism. As with corporate situations, legislation con-

tains both implied powers and implied prohibitions. Actions of uncertain

legality are often subject to retroactive approval or retroactive condem-

nation. When truly unanticipated circumstances arise, it is always a fair

question whether the claimed necessity should activate the “inherent”

powers of the president or require that he seek congressional approval

lest he stray unilaterally from the chosen line. Thus, the broad stric-

tures of the Constitution create a “relational contract” between the pres-

ident and the Congress, the precise contours of which cannot be set out

exhaustively in advance. Where Congress wishes to put tighter binds on

the president, it can often to do so by legislation, but even here there

must be some outer, if undefi ned, limit beyond which further action by

the Congress would unconstitutionally strip the president of his power

to see that the laws be faithfully executed. Any president who is placed

into a congressional straitjacket cannot exercise that duty.

Just this approach explains the early disputes over how to choose

the locations of post offi ces and post roads.2 One important, if neglected,

power given to Congress in the Constitution is the power to “establish

Post Offi ces and post Roads,”3 which appears in the same list in Article

I of congressional enumerated powers as the Commerce Clause.4 Con-

gress has done its work if it identifi es the cities that need post offi ces and

post roads, leaving it to the president and his postmaster general (ini-

tially a much bigger job in the administrative hierarchy than it is today)

to determine their precise locations and to negotiate leases or construc-

tion. However, designating sites for these offi ces and roads offered hand-

some advantages for nearby businesses, which Congress sought to claw

back for itself by preparing a specifi c list of structures and locations for

the president to establish.5 But that level of detail is not usually sustain-

able once the scope of a business has expanded, as the United States

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Delegation and the Rise of Independent Agencies 269

Postal Service has, especially since Congress is preoccupied with many

other tasks. So, sooner or later, Congress must delegate to the president

the power to select and implement particular projects that fi t the overall

business plan set out in the enabling legislation.

Trusted Delegations

Nonetheless, eventually there has to be some line that cannot be crossed

if the separation of powers is to be maintained. Congress, for example,

could not simply tell the president to just design a post offi ce system,

a securities and exchange act, a tax code, or a military. Some respect

has to be paid to the old maxim, delegatus non potest delegare: the one to

whom power is delegated cannot himself further delegate that power. In

this instance, Congress itself should be treated as a legislative body that

receives delegated authority from either the states or the people: the

artful use of the passive voice in Article I speaks only of “all legislative

Powers herein granted,”6 without saying by whom. But either way, the

obvious risk of delegation is that the new delegatee may hold prefer-

ences at odds with those of Congress.

The political question, however, is how often this breakdown in

relations is likely to happen. The answer is, less often than might be

expected. Any full appreciation of the fault lines in the United States

Constitution must recognize that the two dominant considerations run

in opposite directions. The fi rst is the long-term institutional differences

among the branches, which lead each to defend its prerogatives against

the others. The second is that political alliances can cross the departmen-

tal divide. While some analysts think that the branch differences always

yield to party differences,7 on some issues, institutional arrangements

actually matter more. For example, with executive privilege before con-

gressional committees, the clashing institutional prerogatives of the two

branches could easily take precedence over political alliances. In most

instances, moreover, give the devil his due: congressionally delegated

power to the executive branch will usually take into account any future

differences in their political views. The dangers of a runaway execu-

tive are something that the Congress could easily anticipate and guard

against if it chooses to do so.

To all appearances, permanent, or life tenure delegations raise a

tricky veil of ignorance problem. The dominant political party today

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270 Constitutional Structures: The Executive Power

may lose its power in years to come. The real danger with those dele-

gations is thus the opposite of what is commonly expected. Most com-

monly, the delegation will initially take place between a president and

Congress who share a common end. They seal the deal by limiting the

delegation to the short time periods during which both the president

and the present Congress remain in power. Those cooperative actions

across the branches thus work to increase the size of government, which

in turn allows it to complete novel tasks that the principle of separation

of powers, if it were stronger, could block.

This approach helps to explain the political forces at work in the

two well-known 1935 nondelegation decisions of Panama Refi ning Co.

v. Ryan8 and A.L.A. Schechter Poultry Corp. v. United States.9 Both of these

decisions rejected President Roosevelt’s actions pursuant to the National

Industrial Recovery Act of 1933 (NIRA)10 on grounds that the actions

were a result of excessive delegation to the executive branch. At issue in

Panama Refi ning was a provision of the NIRA that authorized the pres-

ident to prohibit the fl ow of “hot oil”—i.e., oil produced in excess of

quantities allowed under applicable state law—in interstate commerce.

Oversupply and market destabilization were the fears of the moment.11

The purpose of the prohibition was to constrain output in an effort to

prop up prices. The actual economics of the transaction are quite com-

plicated because the case involved the interaction of an ordinary cartel

and a conservation-based need to keep wells open that would otherwise

have lost productive capacity if shut down prematurely. None of this

mattered to the Court, however, which found an ostensible abuse of del-

egation because the NIRA did not specify the circumstances or grounds

that triggered the president’s exercise of his statutory power.12

For its part, Schechter Poultry had a far broader signifi cance because it

struck down the large number of codes of fair competition that the pres-

ident used to organize cartels in various industries. This was no small

operation. In the eighteen months between August 1933 and February

1935, the frenzied activities of the Roosevelt administration generated

some 546 codes, 185 supplemental codes, 685 amendments, and over

11,000 administrative orders.13 The congressional marching orders spec-

ifi ed “that such code or codes are not designed to promote monopolies

or to eliminate or oppress small enterprises and will not operate to dis-

criminate against them. . . .”14 This noble sentiment sounds great until

one realizes that the opposition to monopoly is not meant to promote

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Delegation and the Rise of Independent Agencies 271

competition. Instead, federal power is used to create and protect

multi-member cartels, with their larger voting bases, even though these

cartels, which have to set aside production quotas for ineffi cient mem-

bers, perform less well on average than the monopolies they displace.

Given their objectives, it should come as no surprise that no one

in the heavily Democratic Congress in 1933 had ever expressed any

qualms about the president’s performance under either program. The

challenges in both Schechter Poultry and Panama Refi ning were mounted

by regulated fi rms that chafed under the various NIRA regulations.

It was therefore misplaced, in Schechter Poultry, for a politically clue-

less Justice Cardozo to attack these schemes as a form of “delegation

running riot,”15 in the absence of any evidence of even the slightest

discrepancy between the grand congressional plan and its administra-

tive implementation, at a time when both the president and Congress

shared the same aspirations. Both cases went off the rails because they

ignored the one key feature of these delegations: that their structural

features kept the president in line with Congress. The NIRA had a two-

year statutory window that ran from June 1933 to June 1935. The

Democratic majorities in Congress knew that during this short period

of time, a Democratic president would remain in offi ce. The expansive

grant of delegation therefore was to friend, not foe. Congress solved

its delegation doctrine problem by a simple technique that minimized

political risk by keeping the president on a short two-year leash. The

key vice of this delegation was exactly what proponents of separation

of powers should fear. This effective interbranch cooperation led to the

illicit creation of cartels, with only a momentary disruption in the wake

of the Court’s decisions.16

Once the New Deal mindset was fi rmly in place, however, it was just

a matter of time before all teeth were taken out of the delegation doc-

trine. At the same time, the Supreme Court undercut the constitutional

protection of economic liberties and rejected well-established limits on

Congress’s commerce power as useless artifacts of an earlier age of lim-

ited government. By 1944, it was clear, especially in wartime, that the

president had free rein over the economy. More concretely, the Court

sustained the Emergency Price Control Act of 1942,17 which set up the

Offi ce of Price Administration, whose administrator was appointed by

President Franklin Roosevelt. The standard of delegation under the stat-

ute called for the prices to be “fair and equitable,”18 which in some sense

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272 Constitutional Structures: The Executive Power

is equivalent to “reasonable under the circumstances.” That phrase has

been used in rate regulation where its offi ce is to fi nd ways to reduce

monopoly profi ts to competitive levels at reasonable cost. But a gen-

eral price control statute applies with equal force to competitive and

monopolistic industries, and thus cannot perform that task. The delega-

tion therefore invites a problematic effort to rely on historical prices to

deal with shortages, while historical prices become more and more irrel-

evant as months go by and conditions change. Post-1937, this particular

economic scheme no longer offended constitutional values. And at that

point, the decision to sustain the delegation looked well-nigh inexorable

because no one could conjure up legislative language that was more spe-

cifi c, yet also broad enough to enable the executive to administer such a

vast economic program.

As such, the judicial decision in Schechter Poultry rescued a short-

term, wartime emergency statute. The same result, alas, was true for the

ill-fated Nixon price controls, which could not hide behind the fi g leaf of

wartime necessity. But Congress only authorized that scheme for ninety

days, after which it expired.19 And so the delegation doctrine survives

when Congress and the president speak with one voice in rejecting the

classical liberal vision that prefers competition to regulation. But in all

these cases, the damage is self-limiting as long as Congress can keep the

relevant time period short. Trust matters, but it is only doled out in small

quantities.

The Legislative Veto

The political landscape between the executive branch and Congress

changes when the latter distrusts the actions taken by the former. In

such cases, Congress takes a far more active role. The issue, for example,

of the routine administration of our byzantine former Immigration and

Naturalization Service (INS) posed this dilemma. There was no way that

Congress could limit the executive branch to a short time period, analo-

gous to the two-year time window for the NIRA. So, in its effort to con-

trol executive discretion, Congress moved to the opposite extreme and

micromanaged the executive branch in ways that cut out the president

to the greatest extent possible. Just these calculations accounted for the

rise in one- or two-house legislative vetoes to countermand executive

decisions that set off warning bells. As a formal matter, this practice was

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Delegation and the Rise of Independent Agencies 273

negated by the Supreme Court in Immigration & Naturalization Service v.

Chadha,20 which arose from a one-house veto of the attorney general’s

decision to suspend Chadha’s deportation. Under the statute, only sus-

pensions of deportation, and not an attorney general decision to deport,

were subject to reversal by either house. Most people would surmise

that if Congress intervened, it would be to protect the liberty of the indi-

vidual and prevent deportation, but it was just the opposite.

At fi rst look, this odd (but common) scheme does not look like leg-

islation at all. The case looks like a one-sided form of adjudication that

should not come before Congress, which was the sensible position of

Justice Lewis Powell.21 And yet Chief Justice Warren Burger regarded

this peculiar exercise of government power as purported legislation

that failed to meet the formal requirements of legislation, namely that

it fi rst be approved by both houses (“Bicameralism”)22 and then by the

president (“Presentment”).23 Invoking fait iustitia, ruat coelum—“let jus-

tice reign, even if the heavens fall”—the chief justice wrote that “the

fact that a given law or procedure is effi cient, convenient, and useful

in facilitating functions of government, standing alone, will not save

it if it is contrary to the Constitution. Convenience and effi ciency are

not the primary objectives—or the hallmarks—of democratic govern-

ment. . . .”24 Justice Byron White in dissent saw in this an attack on the

sensible distribution of powers in Congress, given that this particular

mode of doing business was authorized by prior overarching legislation

that fully met those two requirements.25

These formal issues, however, miss the key point of this debate.

Immigration was a hot button issue then, just as it is now. Congress

saw no reason to interfere when deportation was ordered because the

immigrant himself had every incentive to fi ght those charges through

the courts. But Congress, driven by anti-immigrant sentiment, feared

that the attorney general would enter into a collusive settlement with

the immigrant that would take the case out of the courts, hence justify-

ing congressional intervention. As Justice White pointed out in dissent,

these one- and two-house vetoes dominate in an age of distrust—and

these provisions have continued to be inserted into new legislation in

the quarter-century since Chadha.26 The episode points out one key

advantage that Congress enjoys in its ongoing battle with the Court:

Congress has continuous power of action, while the Court can only

intervene episodically.

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274 Constitutional Structures: The Executive Power

As a matter of fi rst principle, however, it is hard to get too agitated

about Chadha’s deviation from the original constitutional plan. In prac-

tice, the doctrine of separation of powers is conceptually underpowered.

It only requires some division of authority to slow down the pace of reg-

ulation. Other schemes with very different properties could also work

in the same direction, even if they do not meet current constitutional

standards. It is therefore diffi cult to see the structural risks in incorporat-

ing the one-house veto into the separation of powers system. However,

as is so often the case, textualism and functionalism lead to somewhat

different outcomes. This is also true with respect to executive power.

And matters get no easier with the introduction of independent admin-

istrative agencies, discussed later in this chapter.

Balanced Budget Amendment

The theme of congressional distrust of executive power also explains

the passage of the Balanced Budget and Emergency Defi cit Control Act

of 198527 (Gramm-Rudman-Hollings), by which Congress sought to

enlist the services of the comptroller general to rein in public spend-

ing. Far from indicating distaste for the separation of powers, the act

sought to create a complex divided structure that fi t in with the general

philosophy. The president was to appoint a comptroller general from

a list prepared by the Speaker of the House and the Senate president

pro tem.28 Once selected, that individual had to be confi rmed by the

Senate, after which he could be removed from offi ce “at any time” by

the way in which legislation is usually passed: approval in both houses

and acceptance by the president or by two-thirds of each house over-

riding a presidential veto.29 This convoluted procedure was animated

by the same suspicion of government that drives the basic doctrine of

separation of powers. Nonetheless, its variance from the constitutional

scheme proved fatal because the “Constitution does not contemplate

an active role for Congress in the supervision of offi cers charged with

the execution of the laws it enacts.”30 In this instance, Chief Justice

Burger referred back to the formalist view of matters, holding that the

effi ciency or convenience of a given procedure will not spare it from

constitutional scrutiny. This objection has greater force here than it

does with Chadha precisely because no one could dispute the simple

fact that this comprehensive reorganization realigned government

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Delegation and the Rise of Independent Agencies 275

powers for the long-term basis in a way in which Chadha’s veto over-

ride did not.

At that point, the case for making out some supposed effi ciency

was suffi ciently speculative that it would have been unwise to take the

same hands-off attitude that the Court has adopted, for example, in

dealing with the appointment of inferior offi cers. The original constitu-

tional structure should stand against this new challenge, which cannot

of course be counted from birth as part of the prescriptive constitution,

as developed in Chapter 3.

Delegation to Independent Agencies

The analysis thus far has looked at removal and nondelegation as sep-

arate constraints on executive power. The full effect of these doctrines,

however, comes from their combined effect as manifested in the cre-

ation of independent agencies that receive extensive powers delegated

to them by Congress. These agencies, which include the Federal Trade

Commission (FTC), the Federal Communications Commission (FCC),

the Securities and Exchange Commission (SEC), and the National Labor

Relations Board (NLRB), all share two characteristics. First, they are

classifi ed as “independent” of the president because he does not have

the power to remove their members at will, but can do so only for the

reasons set out by Congress in the statute creating the relevant agency,

usually requiring a showing of “cause.”31 These administrators typically

have terms, also set out by statute, that are longer than a presidential

four-year term: FTC commissioners are appointed for seven-year terms;32

FCC commissioners,33 SEC commissioners,34 and NLRB members35 are

all appointed for fi ve-year terms. Second, these agencies often exercise

extensive congressionally delegated powers. Thus, for example, the FCC

may make rules and decisions that serve the “public convenience, inter-

est, or necessity” in allocating rights along the radio spectrum.36

There is little dispute that the growth of independent agencies

depended on gutting the president’s inherent removal power and the

nondelegation doctrine, which accordingly was done during the Pro-

gressive and New Deal eras. The fi rst independent agency to be created

was the Interstate Commerce Commission, which went into operation

in 1887 to regulate railroad rates. It was run by an expert board whose

fi rst chairman was the great judge Thomas M. Cooley, who resigned

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276 Constitutional Structures: The Executive Power

his position as chief justice of the Michigan Supreme Court to head

this bold new venture.37 But the precise legal status of the members

of these various commissions was only settled forty-seven years later,

when the Supreme Court in Humphrey’s Executor v. United States38 held

that the president did not possess the power to dismiss commission

members because of policy differences.39 The Court’s explanation, how-

ever, can inspire no confi dence: FTC members were executive branch

members beyond the scope of the president’s removal power, the Court

said, because the Commission “acts in part quasi-legislatively and in part

quasi-judicially.”40

Oh. The Constitution does not contain any mention of one, let alone

two, quasi branches. Where, then, is the textual warrant for creating

these distinct commissions that have no legislative, executive, or judicial

pedigree, but in fact contain a complex amalgam of all three powers,

including the ability to adjudicate disputes that the agency’s own prose-

cutors bring before that agency? The purported justifi cation for this odd

institutional arrangement rests on an aggressive reading of the Neces-

sary and Proper Clause already considered in Chapter 14.41 Recall that

the normative key for interpreting this clause is faithful adherence to an

intelligent literalism: stress its two key terms, “necessary” and “proper,”

in order to decide whether any proposed structural innovation meets

constitutional standards. After much learned academic debate,42 the tex-

tual answer is in the negative. In this context, “necessary” means much

needed to effectuate a particular program. There is no requirement

under the clause that the actions must be indispensable. “Proper” still

covers actions done consistently with all other binding legal constraints.

In this context, it is not necessary to create complex independent enti-

ties when the powers of the president and the heads of departments can

be supplemented by additional powers as needed. Nor is it proper to

introduce a new system of governance that undermines both the safe-

guards of separation of powers and of checks and balances found in the

Constitution. The president still enjoys his power of removal over heads

of departments even if he cannot give them a direct order to perform a

certain action. Hence, it is neither necessary nor proper to create a new

set of institutions for which there is no explicit constitutional roadmap.

Thus we now come face to face with the role of the prescriptive

constitution, in which the creation of independent agencies has become

well entrenched over time. Is there any reason to undo this fait accompli,

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Delegation and the Rise of Independent Agencies 277

in whole or in part, in the light of hindsight? The ardent defenders of

the modern administrative state frequently laud the creation of this

“fourth branch of government.”43 And to an extent they have a point,

given the erosion of the nondelegation doctrine. Independent agencies

became necessary when Congress could not develop a detailed statutory

rule to implement regulation that the progressives thought was an indis-

pensable response to the new industrial age. Ratemaking and industrial

accidents were at the top of that agenda. Rates had to be set to prevent

monopoly railroads from gaining excessive profi ts,44 and industrial acci-

dents required displacing the older common law rules of negligence and

contributory negligence with a statutory workers’ compensation system

that provided limited damage awards for accidents that arise out of and

in the course of employment, unless brought about by the willful neglect

of the injured worker.45 The states entrusted both jobs to specialized

commissions that operated outside of the judicial system. The complex

calculations for ratemaking were assigned to public utility commissions,

not courts;46 workers’ compensation commissions heard the huge run of

industrial accident cases.47 The challenge for the progressives was, quite

simply, to ensure that these good practices in the states were not stymied

by bad constitutional law when carried over to the federal system, not-

withstanding the textual commitment to a separation of powers.

The diffi culty at the federal level was still more acute because all

federal judges served during good behavior, i.e., with de facto life ten-

ure. That level of protection, however, did not seem appropriate for

judges working in specialized tribunals, including the bankruptcy and

tax courts. Over time, these specialized bodies evolved such that “ref-

erees” in bankruptcy and “members” of the tax court became Article

I “judges” who, while subject to Senate confi rmation, serve for terms

of fourteen and fi fteen years, respectively.48 On this occasion, at least,

prudent Supreme Court decisions overcame the excessive rigidities of

original constitutional structure that were ill adapted even to a modest

expansion of the administrative state. The Court eventually allowed the

Article I bankruptcy courts to continue operating,49 the EPA to resolve

contract disputes regarding compensation that one pesticide company

had to pay another for the use of the latter’s trade secrets,50 and the

Commodities Futures Trading Commission to adjudicate ordinary

state law contract disputes that arose as counterclaims in disputes that

unquestionably fell within the CFTC’s jurisdiction.51

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278 Constitutional Structures: The Executive Power

In critiquing this development, recall that the original constitutional

decision to afford federal judges life tenure rested on the mistaken belief

that only this extreme measure could preserve judicial independence.52

In everyday practice, however, the long terms of offi ce granted to Arti-

cle I judges mark a major improvement over the original constitutional

design. The fi nite term still guards against arbitrary removal from offi ce.

Plus, any orderly rotation in offi ce has the additional advantage of mak-

ing it more diffi cult for a few judges to wield an extraordinary degree

of power, as too often occurs on the Supreme Court. In many cases,

term limits obviate the need for painful efforts to remove for cause any

judges who have grown lazy or even senile while in offi ce. The classical

liberal belief in both a separation of powers and checks and balances is

in no way compromised by this welcome switch in orientation. Only the

purist could protest the verbal gymnastics of the Supreme Court that

brought about the legitimation of Article I courts in Humphrey’s Exec-

utor. The restrained functionalist happily looks the other way on these

doctrinal maneuvers and wishes the same limits could be imposed on

Supreme Court justices. Now that Article I judges have been in offi ce for

seventy-fi ve years, we should not try to turn back the clock on a modest

reform that makes good institutional sense.

The same, however, cannot be said of much of the work that is done

by the independent agencies that do not set rates, administer the bank-

ruptcy code, decide tax cases, or resolve accident claims. Independent

agencies with broader authorities set, either by rulemaking or decision,

the long-term policies of the United States on deeply divisive issues.

Indeed, it was in just these hot button areas, such as transportation,

labor, and telecommunications, that the progressives abandoned their

own ostensible conviction that neutral experts, left to their own devices,

could transcend partisan politics. The following examples demonstrate

how these agencies have played out in practice.

When Congress delegated extensive powers to the president to

form cartels under the NIRA, the short duration of the program allowed

Congress to prevent these delegated powers from falling into enemy

hands, i.e., a president in the opposite party.53 However, implementing

a progressive labor or telecommunications policy can never be done in

a short compass of time. Congress, therefore, had to fi nd other tech-

niques to control the risk of presidential capture of the agencies imple-

menting these policies. This particular task could not be done by using

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Delegation and the Rise of Independent Agencies 279

precise terms of delegation. The number and nature of the unknowns

were suffi ciently large that tight mandates would cripple an agency’s

efforts to create any ambitious progressive vision. The broad mandates

needed, however, would only make sense if the president could not

stack the deck, which explains why the independence of agency mem-

bers becomes the key. Establishing independent agencies allows for leg-

islative deals that remain stable over time. That power is not needed,

however, to enforce common law rules, which becomes evident from

a brief account of the evolution of three important agencies: the FCC,

the NLRB, and the Public Corporation Accounting Oversight Board

(PCAOB).

FCC

Let us turn fi rst to the FCC, which is charged under statute with the allo-

cation of spectrum for broadcast use. In principle it is possible to take two

alternative approaches to the question of how frequencies are assigned.

The fi rst rests on the standard common law property rule that allocates

a portion of the spectrum to the party who makes fi rst use of it.54 This

system gained some traction in the early 1920s, most notably in the Oak

Leaves case,55 when commercial radio fi rst became viable and a system

of property rights was adopted to take into account the peculiar features

of the spectrum. The key element in this system is to create an exclu-

sive band of rights, some frequency over a certain geographical territory

that can be turned over in perpetuity to a single person having all the

attributes of a common law owner. That person could exclude all other

persons from broadcasting on that frequency and from interfering with

his use of the frequency. So long as broadcast stations were few and far

between, new entrants situated themselves along the spectrum in ways

that avoided serious signal interference. Technical advances allowed the

fi rst commercial station, KDKA, to go on the air in Pittsburgh in 1920.

By 1923, the strains of this fi rst possession system became evident when

several hundred stations were in operation throughout the country on

a narrow slice of spectrum that commerce reserved for that purpose.

The situation became “chaotic” in 1926 when several key lower court

decisions denied Secretary of Commerce Herbert Hoover the power

to exclude individual applicants from frequencies allocated to civilian

use.56 Matters got even worse on April 16, 1926, when an Illinois federal

district court held that the secretary of commerce was wholly without

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280 Constitutional Structures: The Executive Power

power to restrict the power, frequency, or hours of operation of any

given station.57

Side by side with this common law system lay the demands of the

administrative state.58 In 1912, federal legislation gave the United States

control over the spectrum, much of which was turned over to the navy

for maritime operations.59 With one stroke, the federal government

bypassed the traditional common law rules of fi rst possession. At the

time of the passage of the Radio Act of 1927,60 the government could

have defi ned a system of property rights both in terms of frequency and

territory and sold the frequencies to the highest bidder at an auction.

Once those initial rights were defi ned, the new owner could use, sell,

lease, or mortgage that spectrum interest as he saw fi t. Owners could

even leave part of their spectrum unused for a time, without fear that a

new user would slip in to claim ownership. Private decisions would thus

respond to prices and market incentives in deciding who owned what

portion of the spectrum and how it was used. Common law rules, as

administered in either federal or state court, could have easily handled

all of the issues of implementation that might have occurred without

having to create the FCC. Only three things would be required: fi rst, a

system to record spectrum rights; second, a set of actions to enjoin inter-

ference across spectrum bands; and third, a system to allow for the sale

and licensing of these frequencies on whatever terms and conditions its

owner chose to adopt.

The last thing, however, that any progressive wanted was private

ownership of the spectrum free from political control. The progressives’

main mission was to displace “barbaric” common law rules with “sen-

sible” legislation.61 Delegation under the banner of public interest, con-

venience, and necessity played into the grander aspirations of those like

progressive Justice Felix Frankfurter, who wrote:

The Act itself establishes that the Commission’s powers are not limited to the engineering and technical aspects of regulation of radio communica- tion. Yet we are asked to regard the Commission as a kind of traffi c offi cer, policing the wave lengths to prevent stations from interfering with each other. But the Act does not restrict the Commission merely to supervision of the traffi c. It puts upon the Commission the burden of determining the composition of that traffi c. The facilities of radio are not large enough to accommodate all who wish to use them. Methods must be devised for choosing from among the many who apply. And since Congress itself could not do this, it committed the task to the Commission.62

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Delegation and the Rise of Independent Agencies 281

Unfortunately, this ambitious goal has proved resistant to orderly

application after decades of futile regulatory initiatives. The control of

interference is of course a valid government function, but that could

be done by allowing private rights of action against those who inter-

fere. Why must the government determine the composition of the traf-

fi c when a bidding system could put that function in private hands?

Would anyone say the same with respect to the use of a public high-

way? Scarcity is hardly the explanation, for that is the reason that prices

are used in any market—to isolate high-value users. And the methods

to be used by government regulators were, and are, largely unknown.

Quite simply, the FCC, in its almost seventy years, has yet to develop

any consistent methodology to determine what makes a good applicant

for broadcast ownership. It develops odd tests that deal with composi-

tion of ownership, local connections, and past experience, which give

no insight into whether the prospective owners actually know how to

run a radio station that satisfi es consumers. The FCC makes the curious

assumption that targeting broad audiences is preferable to niche pro-

gramming. In its misguided moment of glory, it removed the license of

the Cosmopolitan Broadcasting Company when the CBC had the sensi-

ble idea of leasing out blocks of time to customers so as to allow market

forces to permit minority voices to speak on the airwaves even though

they are not large enough to own a station of their own.63 This system is

expensive and unresponsive. Granting perpetual and alienable licenses

would have eased much of the pain in this area.

NLRB

The NLRB, our second example, operates in a different fashion. It makes

few rules, but decides many cases. The division in board membership

along party lines shows no signs of disinterested expertise based on scien-

tifi c principles. The Democratic members tend to favor unions on all key

issues. The Republicans tend to favor management. The courts would be

hard pressed to discharge the NLRB’s statutory responsibilities to super-

vise bitter union elections in which employers and unions inveigh at

each other under complex rules that require NLRB enforcement. The

passage of the NLRA extended the earlier exemption of unions from

the antitrust laws by denying an employer the right to refuse to bar-

gain with a union. This system of forced interactions requires constant

government oversight because employers have a strong incentive to try

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282 Constitutional Structures: The Executive Power

to get out from under union dominion, while union leaders simultane-

ously work to preserve their dominant position. The system, however,

is clearly failing in the private sector, as the latest numbers indicate that

only about 6.9 percent of private employees are union members.64 It

can only survive if protected by an administrative body with constant

oversight.

Ironically, the NLRA statutory scheme too is now in danger of fail-

ing. For several years, the NLRB tried to operate with only two of its

fi ve positions fi lled, a maneuver that was rightly slapped down by the

United States Supreme Court in New Process Steel, L.P. v. National Labor

Relations Board, albeit by only a fi ve-to-four majority.65 More recently,

in Noel Canning v. NLRB, the Circuit Court for the District of Columbia

rightly struck down President Obama’s effort to fi ll the vacant seats by

recess appointment.66

An important lesson about administrative law emerges from the

recent travails of the NLRB. Whatever one might think about the ambig-

uous status of Article I judges, there should be unifi ed and fi rm opposi-

tion to any system that vests any judicial power whatsoever in a board

that builds in on the ground fl oor sharp political division and deep

mutual distrust. Adjudication of individual disputes, including all trial

and appellate work, should be done within the judicial system, period.

As to the independent agencies themselves, reconstituting them in the

executive branch would probably not make all that much difference

in their day-to-day operations. So on this issue, the correct response,

which is so urgent in the context of labor relations, is to return to the

substantive common law rules on property, contract, and tort. The rejec-

tion of these common law rules was the major, if regrettable, develop-

ment of the Progressive Era. Returning to them would reduce the level

of discretion placed in political hands.67

PCAOB

The rise of the administrative state also brings back to the fore many of

the Appointments Clause issues already considered in connection with

traditional government offi cers. Political jousting between the president

and the Congress gave rise to important issues about the structure of

independent administrative agencies that were inconclusively resolved

in Free Enterprise Fund (FEF) v. Public Corporation Accounting Oversight Board

(PCAOB).68 In that case, the FEF challenged the constitutionality of the

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Delegation and the Rise of Independent Agencies 283

portion of the Sarbanes-Oxley Act (Sarbox)69 that created the PCAOB to

oversee the implementation of a wide range of accounting reforms for

publicly held corporations. The members of the PCAOB were appointed

by the Securities and Exchange Commission (SEC) commissioners and,

under Sarbox, were removable by the SEC commissioners only for cause,

narrowly defi ned. The SEC commissioners in turn could be removed

from offi ce by the president, but again, only for cause, narrowly defi ned

as covering “ineffi ciency, neglect of duty, or malfeasance in offi ce,” all

rare events. The fi nal decisions of the PCAOB were subject to review by

the SEC, but the PCAOB could use its extensive powers to investigate

cases and initiate proceedings against individual fi rms without receiving

prior approval from the SEC.

As might be expected, the four liberal members of the Supreme

Court were comfortable with the procedures as they stood, but the fi ve

conservative members of the Court were troubled by the use of a com-

plex dual system of appointments that interposed the SEC between

the president and the PCAOB, when the SEC is itself an independent

agency. Chief Justice Roberts found the case troublesome because the

dual level of insulation that Sarbox afforded the members of the PCAOB

was inconsistent with the constitutional requirement that all the execu-

tive power be “vested” in the president. But his remedy for the problem

can best be described as cosmetic. He fi rst severed from the statute all the

for-cause requirements that limited the ability of the SEC commission-

ers to fi re members of the PCAOB, which was probably incorrect given

that the decision materially changes an integral portion of the law that

Congress passed.70 That maneuver meant that there was only one layer

of “for-cause” insulation between the PCAOB and the president. But

the difference is surely cosmetic, for one layer of for-cause protection is

quite suffi cient to keep the president from having any role in the deci-

sion. Thus the odds are less than one in a thousand that any SEC com-

missioner could be removed for cause, even assuming that this removal

would alter the balance of power in the commission. The addition of

the second layer increases the level of insulation from about 99.9 per-

cent to about 99.999 percent. Many new digits added to the calculation,

but they are all on the wrong side of the decimal point. The battle with

respect to independent agencies is over, but the battle over the rights

of individuals before these agencies has just begun. The true danger in

PCAOB lies in the power of the board to initiate investigations of fi rms in

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284 Constitutional Structures: The Executive Power

the securities industry, where the whiff of scandal is enough to lead state

agencies to pull their licenses and cause customers to fl ee—as evidenced

by the rapid, and unjustifi ed, downfall of Arthur Andersen, the alleged

indiscretions of which were the impetus for the drafting of Sarbox.71 It is

the want of that form of protection that matters, as I shall argue in con-

nection with the discussion of procedural and substantive due process

in Chapter 20.

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Foreign and Military Affairs

THE PREVIOUS CHAPTERS played out the connections between execu-tive, legislative, and judicial affairs in domestic situations, where it is diffi cult to make any global assessment over their relative strengths.

The balance of power plays out quite differently in the area of foreign

affairs, where presidential expedition in the face of crisis becomes the

focal point of the constitutional design. The role of the Congress remains

important, but it has unmistakably yielded ground to the president rela-

tive to the original constitutional structure since the earliest days of the

nation. The judicial branch beats a hasty retreat from these issues except

in those matters that involve the individual rights of those in govern-

ment custody. The role of independent administrative agencies, which

are never built for speed, comes up, at most, in peripheral ways.

Foreign Affairs and Congressional–Executive Interaction

The most obvious source of difference found in foreign affairs is that

Congress, like all lumbering, deliberative bodies, is not suitable for dis-

charging two key functions of government. First, Congress necessarily

lacks internal cohesion that would allow it to negotiate with foreign

nations in an effective fashion. This is why the Constitution vests in

the president the power to make treaties with foreign nations, with the

advice and consent of two-thirds of the senators present.1 Note that

here, as with key presidential nominations of executive branch offi cials,

the House of Representatives is completely cut out of the process, doubt-

less because of the added diffi culty and delay of securing approval from

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286 Constitutional Structures: The Executive Power

a second house of Congress. Another problem is Congress’s inability

to move nimbly and quickly in response to changes in conditions that

could infl uence the use of force or diplomatic suasion. The lion’s share

of these tasks therefore necessarily falls to the president.

It hardly follows from these considerations, however, that Congress

should have no role to play in foreign affairs. There are many matters

on which it is possible to both form and implement coherent long-term

legislative policies of the type entrusted to Congress. Indeed, a good frac-

tion of the enumerated powers contained in Article I, Section 8 relate

to some cross between foreign and military affairs. Exhibit A is the

power that Congress has to regulate commerce with foreign nations.2

The direct regulation of tariffs and trade forms a key portion of foreign

policy, both inside the World Trade Organization and independently of

it. For example, the Webb-Pomerene Act of 19183—itself a testament

to trade folly—exempts from the sanctions of antitrust laws American

cartels that sell goods for the export market. The Foreign Commerce

Clause4 also impacts national security by allowing the United States

Congress to prohibit the sales of sensitive technologies overseas. Both

issues are amenable to long-term legislative solutions that should, and

do, bind the president in the execution of his offi cial duties.

In addition, many of the explicit powers afforded Congress under

Article I necessarily deal with war and thus with foreign affairs. For

example, the power to establish tribunals inferior to the Supreme Court5

surely encompasses not only the creation of permanent Article III courts,

but also of military and other tribunals of a shorter duration.6 The con-

gressional power “to defi ne and punish Piracies and Felonies committed

on the high Seas, and Offenses against the Law of Nations”7 has obvious

international implications, as does the power “To declare War, grant Let-

ters of Marque and Reprisal,”8 the power to “raise and support Armies,”9

to “provide and maintain a Navy,”10 to “make Rules for the Government

and Regulation of the land and naval Forces,”11 and, as will become

clear, to govern and organize the militia.12

The hard issue across the board is how to organize the distribution

of powers in foreign and military affairs in a way that respects the divi-

sion between the legislative and executive branches. This inquiry is not

made any easier by the sensible decision of the judiciary to stay out of

the disputes resulting from those two branches’ internecine quarrels,

by deciding cases on the grounds that the claimants lack standing13 or

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Foreign and Military Affairs 287

because these cases necessarily raise nonjusticiable political questions.14

On this issue, the level of success depends on many of the same ingredi-

ents as in the domestic context, such that it is critical to know whether

any particular assertion of executive authority arises out of a trust rela-

tionship between the two branches or, alternatively, in an atmosphere of

abiding distrust. Unlike many of the questions that deal with the scope of

legislative and judicial powers, the object here is to expect as much dis-

agreement as one fi nds in corporate disputes between a board of direc-

tors and the CEO. The basic approach to American constitutionalism

talks endlessly about the need for checks and balances between separate

branches of government. But in this area, as in others, the constitutional

strictures do not dictate exactly what these boundary lines should be.

In addressing these issues, the Supreme Court got off on the wrong

foot in its key 1936 decision in United States v. Curtiss-Wright Export Corp.15

That case arose out of a criminal prosecution of a defendant for the

sale of fi fteen machine guns to Bolivia, which was then engaged in the

bloody Chaco War with Paraguay. This sale was in violation of an arms

embargo proclaimed by President Franklin Roosevelt on the same day

that Congress had authorized him to act if he thought that the situ-

ation merited United States intervention.16 Congress had also allowed

him the power to rescind that proclamation unilaterally,17 which in fact

he did some six months later. The defense to the prosecution rested on

the claim of excessive congressional delegation to the president, under

which a proclamation was to be made only “if” the president found

that imposing the embargo would contribute to peace in the region.18

As with the delegations under the NIRA, Congress was not squawking

about the president’s actions, for there was no slippage between its joint

resolution and his proclamation.

Justice Sutherland’s majority opinion in Curtiss-Wright could have

stressed the continuity of purpose between the two branches of gov-

ernment, without venturing into the more turbulent waters of defi n-

ing the respective spheres of presidential and congressional infl uence

in the absence of confl ict between the two branches. Nonetheless, he

rose to the bait in an opinion that surely overstated the dominance of

the president in foreign relations. Sutherland insisted that the authority

of the federal government in domestic issues derived from the enumer-

ated grants in the Constitution19—note this opinion was penned before

the huge 1937 transformation in the scope of the Commerce Clause

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288 Constitutional Structures: The Executive Power

from which Sutherland dissented.20 In contrast, the powers of the fed-

eral government in foreign affairs, he said, were not derived from the

Constitution itself, but were directly passed from the English Crown to

the United States, qua nation, prior to the adoption of the Constitu-

tion and independently of its ratifi cation.21 That huge chunk of implied

or inherent powers within the federal government, in his view, existed

because “[t]he powers to declare and wage war, to conclude peace, to

make treaties, to maintain diplomatic relations with other sovereign-

ties, if they had never been mentioned in the Constitution, would have

vested in the federal government as necessary concomitants of nation-

ality.”22 That proposition, which fl ies in the face of the ratifi cation pro-

cess, does not actually determine the distribution of powers between

the two branches of the federal government. But Sutherland went fur-

ther to make just that leap when he concluded: “In this vast external

realm, with its important, complicated, delicate and manifold problems,

the President alone has the power to speak or listen as a representative

of the nation.”23 But why allow such potential lawlessness? There is a

perfectly respectable model already in place that gives the president the

power to act, but only within the limitations that Congress imposes on

him. The inability to have perfect sanctions against presidential miscon-

duct hardly seems to be a reason to celebrate its occurrence. It would

have been far better to say that the tight connection between the autho-

rization by Congress and its implementation by the president in this

situation simply went as both bodies had wished. Sutherland did not

have to speak on a question of executive power that was not before him.

The President as Commander-in-Chief

In addition to his general powers to regulate foreign affairs, the presi-

dent also “shall be Commander in Chief of the Army and Navy of the

United States, and of the Militia of the several States, when called into

the actual Service of the United States.”24 The basic structure of this pro-

vision is made evident from Federalist No. 69, which is the key primary

source that deals with this question. That paper states that the presi-

dent’s powers in this regard are “inferior to that of either the monarch

or the governor,”25 referring to the king of England and the governor of

New York. That conclusion is confi rmed by the text of Articles I and II,

which make the president the commander-in-chief of the militia when

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Foreign and Military Affairs 289

called—note the passive voice—into the active service of the United

States, which the president can do only pursuant to an explicit delega-

tion of power from Congress.26 These structural provisions alone offer

additional confi rmation that the president ordinarily cannot do just

what he wants, even on foreign affairs issues.

Nor is this conclusion disrupted by a wholly wrongheaded appeal

to Federalist No. 64, which contains the selective tidbit that says the pres-

ident “will be able to manage the business of intelligence in such man-

ner as prudence may suggest.”27 This quotation, which arose concerning

the relationship between the president and the Senate in connection

with treaty ratifi cation, only specifi ed that “intelligence,” in the sense

of advice that the president receives about the treaty, did not have to be

revealed to the Senate unless the president chose to do so.

The obvious purpose of this provision is to ensure that there is

civilian control over the military. But its exact contours in relation to

the president’s control over foreign affairs are somewhat indefi nite.

That fuzziness came to the fore in the Steel Seizure Case,28 in which the

Supreme Court held that President Truman had acted outside of his

exclusive executive powers when he ordered, without congressional

authorization, the seizure of steel mills in order to avert a strike that he

feared would paralyze the wartime production of munitions. The fi rst

point is that the Steel Seizure Case embarrasses the hard-and-fast distinc-

tion between domestic and foreign affairs that lay at the root of Cur-

tiss-Wright. It is equally clear that the action itself did not relate to the

day-to-day conduct of the war. The Steel Seizure Case generated a great

diversity of views on second-tier issues dealing with the fi ne points of

executive power, but on its facts, the case was not close: the president

had clearly exceeded his constitutional powers, including those as com-

mander-in-chief. Utterly missing was anything like the congressional

resolution that supported Roosevelt’s actions in Curtiss-Wright. The pres-

ident was, at best, acting on his own authority, with no law to execute

faithfully and no instantaneous threat to respond to. There was a strong

argument that his actions were precluded by the various provisions of

labor law, dating from 1947, that were intended to deal with strikes dis-

ruptive to the economy.29

In this case, it hardly matters whether we think of constitutional

powers as rigid and formal or as fl uid and functional. Justice Jackson

developed a three-part test of presidential powers. The president is at

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290 Constitutional Structures: The Executive Power

his zenith when he acts pursuant to authorization from Congress; in

uncertain territory when he acts on his own initiative; and “at his lowest

ebb” when he acts, as in this case, on his own authority as command-

er-in-chief in the face of contrary legislation.30 Put simply, there were no

laws for Truman as executive to faithfully execute and no army or naval

forces to supervise in his role as commander-in-chief.

The Steel Seizure Case set up a level of distrust about the scope of

presidential power that has infl uenced subsequent events. For example,

the 1964 Gulf of Tonkin Resolution made it clear that Congress was

“prepared” to follow the president’s decision on whether to commit

troops to Southeast Asia, without insisting on further actions on their

part before hostilities commenced.31 The obvious and unresolved ques-

tion is whether this action constitutes an impermissible delegation of

Congress’s power to declare war when no imminent necessity required

its abnegation of authority.32 The rocky course of the Vietnam War in

turn produced the War Powers Act of 1973,33 which passed over Presi-

dent Nixon’s veto. Although the procedures addressed in this act cannot

easily be crammed into a nutshell, everyone nevertheless concedes that

the president has to act with defensive force to repel an attack against

the United States, and may do so in his capacity as commander-in-chief

without explicit congressional command.34 What starts as a defensive

effort, however, could easily expand to embrace other objectives. So the

War Powers Act sought to claw back for Congress some of its power by

requiring the issuance of a set of presidential reports on the status of a

confl ict. The fi rst of these reports would be due forty-eight hours after

a confl ict begins and requires some explanation for the circumstances

leading to the use of force, the constitutional justifi cation for its use, and

the prospects of any greater war.35 By day sixty—sooner if Congress so

decides—the president’s power to act unilaterally is said to come to an

end, so that he must either receive a declaration of war from Congress

or further authorization for the continued use of force.36

What happens, however, if the president does not comply is never

made quite clear, for the status of defensive wars receives no satisfactory

textual answer. Indeed, whether the War Powers Act covers the initiation

of some kind of hostilities is itself a subject on which no consensus exists.37

The indeterminacy of this delicate process should come as no surprise.

The question of what counts as a declaration of war is itself far from

clear once formal declarations of war are put to one side. John Yoo,

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Foreign and Military Affairs 291

former Department of Justice, Offi ce of Legal Counsel attorney and

author of the highly controversial (to say the least) Torture Memoran-

dum,38 has taken what I regard as an implausible position that the pres-

ident may wage an offensive war even if the Congress has not declared

war, or even if it explicitly refuses to declare one.39 This position reduces

the congressional power to declare war to a bookkeeping operation

that may trigger certain domestic obligations, but it shreds the system

of divided powers on which the Constitution necessarily rests. Letting

Congress declare and the president wage (as he must) the war seems to

be the far better reading of the basic text, and it avoids even the appear-

ance of open confusion on matters of primary importance to the nation.

Even this emphatic rejection of Yoo’s position does not resolve all

open questions on this matter. It appears that the declaration of war

need not be only in formal terms, but could easily involve those actions,

such as the authorization of funds for particular struggles, that are inco-

herent unless some state of war exists.40 Avoiding formal declarations of

war could easily allow the United States to escape getting boxed in by

various statutory or treaty obligations that could be triggered by a formal

declaration. As this ever-increasing level of friction between Congress

and the president shows, the Constitution does not have the requisite

level of precision to resolve the huge range of day-to-day disputes. All

that can be said with some degree of confi dence is that the president’s

power to act unilaterally gives him a persistent tactical advantage over

the disorganized coalitions that occupy the halls of Congress. As a nor-

mative matter, the classical liberal approach praises the effort to divide

powers, but it has little to say (which is no different from any rival the-

ory) as to how these powers are to be divided. Once the aura of distrust

arises, the complications are sure to follow.

The level of distrust that drove the adoption of the War Powers Act

is evident in the subsequent skirmishes between Congress and the pres-

ident. One of the most recent of these disputes involved the power of

President George W. Bush to order domestic wiretaps of foreign nations

for the purposes of gathering intelligence that he (and many others)

thought necessary to fi ght the War on Terror. The key obstacle to the

Bush Administration’s decision was that the Foreign Intelligence Sur-

veillance Act (FISA),41 which had been passed after major intelligence

abuses during the 1970s came to light, limited the power of President

Bush to gather information on his own. The issue was further clouded

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292 Constitutional Structures: The Executive Power

by the passage, in the wake of the tragic events of 9/11/2001, of the

Authorization of the Use of Military Force Act (AUMF),42 which gave

the president the authority

to use all necessary and appropriate force against those nations, orga- nizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.43

On the question of statutory authority, it would be strange if the

AUMF either suspended or repealed the detailed structures set out

under FISA. Repeals by implication are rightly disfavored, especially

when there is no plausible confl ict between the two statutes. It is doubt-

less the case that the FISA procedures are pokey and inadequate, but if

so, that is a matter for Congress to change, not for the president to alter

unilaterally. The risks of excessive concentrations of power are every-

where to be found.

Nor is there anything to the claim that some “inherent powers” of

the president as commander-in-chief alter the balance set out in the

Constitution. It is instructive that the word “power,” which is used in

Article II, Section 2, does not appear in the clause that defi nes the pres-

ident’s role as commander-in-chief, even though it is used to defi ne the

president’s power to grant reprieves and pardons.44 It is thus not appro-

priate to pit the president’s powers in this context against the explicit

powers that Congress has “[t]o make Rules for the Government and

Regulation of the land and naval Forces,”45 which are in no way thought

to be incompatible with the president’s job as commander-in-chief. The

key point of this designation is to give the president control over the mil-

itary, which poses less of a threat to the nation when it operates under

civilian control. But, in and of itself, that key institutional arrangement

does nothing to expand the powers of the president vis-à-vis Congress.

The key challenge is to determine the sphere of presidential discretion

when Congress has been silent. Clearly, some action has to be taken,

and it is right to assume that the Necessary and Proper Clause gives the

president discretion on these matters when Congress is silent.46

As might be expected, John Yoo is again the leading defender of an

absolutist account of presidential power here. In his well-known Tor-

ture Memorandum, Yoo claims without any textual evidence that “The

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Foreign and Military Affairs 293

Framers understood the Commander-in-Chief Clause to grant the Presi-

dent the fullest range of power recognized at the time of the ratifi cation

as belonging to the military commander.”47 That statement, standing

alone, does not indicate what should happen when Congress passes a

law that seeks to restrain presidential authority. But later passages in this

same memo make clear Yoo’s views on that, as well: “Congress cannot

interfere with the President’s exercise of his authority as Commander in

Chief to control the conduct of operations during a war.”48 At no point,

however, does Yoo explain what, if anything, is left for Congress after

this provision is carved out, nor does he discuss the account of the com-

mander-in-chief found in Federalist No. 69, or give so much as a single

word of attention to the extensive discussion of the commander-in-chief

“power” found in the Steel Seizure Case.49 As for the ability to set rules

to regulate the operations of the military forces, his memo baldly con-

cludes, again without authority: “Our Offi ce has determined that Con-

gress cannot exercise its authority to make rules for the Armed Forces

to regulate military commissions.”50 Again, no independent authority is

provided for these conclusions.

There are real costs to this overclaiming of power for the president,

for the question of inherent power needs a sensitive treatment on a num-

ber of hard borderline questions dealing with the relationship between

the president and Congress. These questions include, for example, the

extent to which Congress can limit or direct operations in the fi eld with

its declaration of war. For instance, could Congress have insisted that

the president not conduct land or air operations against North Vietnam

in its own territory? Or that the president not use nuclear weapons in

Iraq? At some level, these issues cannot be resolved effectively either

by textual or functional analysis. In the end, a political accommodation

has to be reached, informed by the relative spheres of authority. On

operational matters, the nod would go to the president, at least as to

matters of tactics within a given theater of war, but not, at a guess, on

the expansion of war to a new theater.51 On the use of nuclear arms in

the Middle East, the betting here is that the president would, in the end,

yield to a congressional prohibition. It is a sad but true commentary

that the harder one pushes on these constitutional provisions, the less

they reveal about the diffi cult cases at the margin. This part of the Con-

stitution is therefore best understood more as a framework for future

elaborations than as a perfect contingent state contract. Classical liberal

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294 Constitutional Structures: The Executive Power

theory cannot pull rabbits out of hats. The choice of structural divisions

of power is always harder to articulate than the theory of rights that

these constitutional structures are intended to correct.

Habeas Corpus

The assertion of presidential power also has an intimate connection

with the venerable Great Writ of Habeas Corpus. Of English origin, this

writ—meaning “may you present the body”—required those holding a

prisoner in custody to bring that person before a court so that it could

determine the legality of the prisoner’s detention and order release if

the conditions justifying continued detention were not found. This writ

represents an obvious use of judicial power to limit the forces of either

presidential or congressional power, or some combination of both. The

writ comes into play in modern times because the bloated assertions of

President Bush’s commander-in-chief powers led to his unilateral deci-

sion to deny the writ of habeas corpus to any person held in detention

on an executive determination that the person was an “unlawful enemy

combatant.”52

The constitutional story starts with the Suspension Clause, which in

its entirety reads: “The Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in Cases of Rebellion or Invasion the pub-

lic Safety may require it.”53 Not atypically, this clause begins in medias

res. Far from offering any succinct statement of when habeas corpus is

normally available, it only places strong limitations on any government

effort to curtail or suspend its use.

The clause itself is drafted in the passive voice, which leaves unan-

swered the question as to just who can suspend the writ when these

conditions are said to be satisfi ed—which is itself far from evident. Since

the clause is located in Article I, it looks as though Congress, and not the

president, should enjoy the power. In fact, while riding circuit,54 Chief

Justice Roger Taney concluded in Ex parte Merryman55 that only Con-

gress, and not President Lincoln, could suspend the writ. This decision

seems to take it as settled that any condition for “Rebellion or Invasion”

was amply satisfi ed, whether or not Maryland was about to secede from

the Union, so that deciding who could suspend the writ was the only

problem. But on refl ection, Chief Justice Taney seems wrong to have

placed so much weight on the location of the clause in determining how

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Foreign and Military Affairs 295

it should be triggered. If the authority is divided between Congress and

the president, neither Article I nor Article II gives this provision a good

home. The best analogy in this case is to the Guaranty Clause located in

Article IV, Section 4, which allows states to petition the United States for

assistance, fi rst from the legislature, but then from the executive if the

legislature cannot be convened.56 Dividing authority in cases of necessity

seems sensible. Ordinarily, Congress should do the work, but in times of

necessity, the president can often act fi rst, subject to congressional rati-

fi cation, which Congress eventually supplied to Lincoln.57 This division

is always messy, but it in no way extended to the days and weeks after

9/11, when order was no longer subject to any imminent threat.

But what about the larger question that lurks just beneath the sur-

face? When is habeas required in the fi rst place? The initial response

to this question necessarily requires some historical account of the cir-

cumstances under which the writ was available in 1789, diffi cult as that

might be.58 Perhaps the most fundamental principle, with unquestion-

able relevance today, is that habeas applies with equal force to citizens

and aliens, such that the latter cannot be denied the benefi ts of the writ

solely by virtue of their status.59 By the same token, the writ does not

ordinarily apply to individual members of enemy armed services who

are captured on the battlefi eld, when there is no doubt that their lawful

combatant status makes them prisoners of war subject, usually, to the

Geneva Conventions. In such cases, there is, as it were, no available writ

to suspend. The trouble starts when individuals are taken into custody

under circumstances in which their legal status, and thus their eligibility

for habeas, is unclear, as with individuals who are turned in by bounty

hunters or seized based on tips by informants far away from any battle-

fi eld.60 Should they receive a hearing on the jurisdictional question of

whether they are entitled to request the writ in the fi rst place?

Notwithstanding presidential claims of exclusive control, that ques-

tion does, and should, receive an emphatic yes, especially for persons

seized overseas and detained at Guantanamo Bay Naval Base, over

which the United States exercises indefi nite control by treaty, even

though Cuba retains “ultimate sovereignty.”61 In one sense, this conclu-

sion could potentially be undermined by the modern habeas statute, to

which Justice Scalia appealed in his dissent in Rasul v. Bush.62 The stat-

ute provides: “Writs of habeas corpus may be granted by the Supreme

Court, any justice thereof, the district courts and any circuit judge within

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296 Constitutional Structures: The Executive Power

their respective jurisdictions.”63 But this decidedly puts the jurisdictional

cart before the constitutional horse. If the writ is available, then the

United States system must fi nd a place to accommodate it. The right to

habeas corpus would not have become a dead letter even if Congress

had decided in 1789 not to set up any district courts. If the Supreme

Court did not have original jurisdiction, some state court would have to

step forward and hear the case of foreign detentions. But so long as the

federal courts are in session, at least one must step forward to hear the

case, for Congress cannot deny a constitutional right by simply refusing

to designate a court in which it might be heard.

There is also a larger lesson here: No system of limited government

can allow an interested administrator to determine unilaterally the con-

tested status of a person subject to an indefi nite incarceration. Indeed,

the diffi cult question with this analysis is why some people believe that

a detainee must be located on American territory in order for the writ

to apply. It has long been settled that American citizens detained on

foreign soil are entitled to the writ,64 so that necessarily means that no

set of logistical or jurisdictional issues should block the availability of the

writ for noncitizen persons held outside of the United States. Citizens

and aliens are entitled to a parity of treatment within our borders. Why

not overseas? The Suspension Clause contains no territorial component,

save insofar as it is a domestic invasion or rebellion that allows for its

suspension, not activities elsewhere. So the correct solution is to pre-

serve parity between citizens and aliens outside of the United States, just

as the clause does for citizens and aliens within the United States.

Doctrinally, alas, it is well settled that aliens detained overseas do

not receive constitutional protection against the actions of agents of

the United States.65 For example, the Fourth Amendment prohibition

against unreasonable searches and seizures does not reach aliens over-

seas whose rights are violated by American agents.66 But, at least in those

cases, the American offi cials are subject to the restrictions that other

nations impose for the protection of their citizens. However, detainees

under American custody outside of the territorial limits of the United

States are kept on military bases to which the protections of local laws

do not run.

The adverse consequences of elevating territory over control are

evident in a recent decision, Al-Maqaleh v. Gates,67 where the Court of

Appeals for the District of Columbia held that detainees shipped from

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Foreign and Military Affairs 297

various points across the globe to Bagram Air Force Base in Afghanistan

have fewer (if any) procedural rights than they would have had if sent

by the United States to Guantanamo Bay. One can concede that the

diffi culties of confi nement under battle conditions postpone the need

for habeas, but Chief Judge David Sentelle, along with Judges Harry

Edwards and David Tatel, missed the obvious point that District Court

Judge John Bates understood: this diffi culty of administration was

“largely of the Executive’s own choosing.”68 It makes a mockery of con-

stitutional law to nullify someone’s constitutional protections by sim-

ply whisking him or her out of the United States. Furthermore, as will

become clear, while there are many issues on which citizenship is and

should be a critical issue, detention in facilities without due process and

constitutional rights should not be one of them.

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P A R T T H R E E

INDIVIDUAL RIGHTS

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S E C T I O N I

PROPERTY, CONTRACT,

AND LIBERTY

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From Structural Protections to Individual Rights

THE PREVIOUS PORTIONS of this book have explained the classical liberal approach to critical issues of constitutional structure. At fi rst blush, it seems unlikely that any examination of substantive rights should be

related to these structural matters. But historically and analytically,

constitutional structure and substantive rights have in fact always been

intimately connected. Adopt a restrictive account of standing, and it

becomes far easier for Congress to create legal monopolies and cartels.

Permit permanent independent administrative agencies, and it becomes

far easier for Congress and the executive to displace traditional property

rights. Or, develop a sensible version of the dormant Commerce Clause,

and it becomes much harder for states to limit free commerce in goods

and services through protectionist trade barriers. Every sound structural

limitation tracks classical liberal theory by limiting government inter-

vention, either at the federal or state level, to cases of force, fraud, and

monopoly. On the other hand, adopt the progressive vision, and an

expanded view of government regulation will facilitate the creation of

monopoly institutions.

The Police Power

The framework for analyzing structural matters revolves around two

issues: scope and justifi cation. Scope defi nes the breadth of the original

constitutional structure. The early constitutional doctrine limited the

scope of the Commerce Clause to cross-border transactions, while the

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304 Individual Rights: Property, Contract, and Liberty

modern doctrine goes much further. The expansion of Congress’s power

to regulate in so many spheres necessarily increases the likelihood that

a broader reading of the dormant Commerce Clause could invalidate

some additional state regulation. Yet by the same token it would be a

mistake to think of the dormant Commerce Clause in absolutist terms.

The most ardent free trader still supports restrictions on poisonous goods

and foreign spies entering the country. But what is the free trader to do

when the authority to impose regulation on various economic activities

is not explicitly contained in the Constitution? Judges must search for

justifi cations that allow public authorities to regulate in areas that are

presumptively off-limits. The customary head for this second inquiry

was the “police power,” a phrase that once had the virtue of meaning

what it said. The police must use force to enforce the law, so the ques-

tion is: under what circumstances is it appropriate for them to exercise

that power? Traditionally, the power covered matters of safety, health,

general welfare, and morals of the community.

It is here the interpretive diffi culties begin. The Constitution con-

tains not a single textual reference to this central organizing concept.

Obviously then, judges cannot parse the semantic or original meaning

(either public or private) of particular words not present in the text of

the Constitution. Instead, they necessarily imply substantive limitations

in the scope of particular constitutional doctrines. But why must some

conception of the police power be read into the Constitution, and why

associate it only with those four traditional heads mentioned above? Are

they all necessary? Should additional ones be added?

The only way to evaluate the proposed heads of police power is to test

them against the underlying normative theory that animated the inclu-

sion of the basic guarantees into the constitutional text. That approach

meshes perfectly with the classical liberal proposition that all state action

should be examined under a presumption of error, which has led in turn

to a broad recognition of individual rights that can be limited only by a

strong showing of a state interest in regulation. The dominant assump-

tion in progressive thought runs in the opposite direction. It follows two

imperatives. One is to narrow or reduce the scope of substantive pro-

tections of individual rights. The other is to allow the state the benefi t

of broad new justifi cations for regulation that go beyond those found in

the original police power quartet. The key exceptions to this rule refl ect

one important overlap between modern progressive and classical liberal

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From Structural Protections to Individual Rights 305

theory. Thus, in areas of speech, religion, and privacy, progressives often,

but not uniformly, support a broad reading of the basic protection and

a narrow reading of the police power in order to promote a regime that

allows for full participation in the political process. Ironically, many nine-

teenth-century judges were far more statist on matters of morality and

religion than on economic and property rights issues, and thus took the

opposite position. The correct approach, I believe, is to apply the same

small government framework to all individual interests, whether they

are classifi ed as economic, expressive, or intimate.1

At this juncture we again have to address the theory of individual

rights. Across the broad spectrum of cases, the inquiry is: what analyti-

cal tool allows us to decide whether to opt for the classical liberal or the

progressive agenda? What approach should be adopted in order to har-

monize the scope of basic protection of liberty and property with state

police power justifi cation? Once again the clashing progressive and clas-

sical liberal answers are illustrative of the basic tension. In dealing with

the affi rmative grant of power to Congress under the Commerce Clause,

the progressives saw little danger in expanding federal power, which

led to a rational basis test and an all-inclusive account of the commerce

power. Under the progressive worldview, the operative terminology asks

whether the government could advance some “conceivable” justifi cation

for the program that it puts forward. If it can, the Court will not second

guess the state either on the soundness of the ends or on the appropri-

ateness of the means, because it does not “sit as a super legislature” on

the wisdom of particular statutes and ordinances, all of which are left

to the political branches.2 That same rational basis test has also led to a

narrow construction of the permissible limitations on that power, so that

state and local governments cannot even invoke the indubitable histor-

ical claim of equal sovereignty to block federal labor legislation, which

today governs states’ relationships with their own employees.3

But switch over to the dormant Commerce Clause, and the opera-

tive test is now strict scrutiny. The same Court that sees little danger in

government-sponsored nationwide cartels sees great danger in the bal-

kanization of the common trade zone. Given that perception, dormant

commerce cases attract strict scrutiny, which quickly translates into a

broad basic protection coupled with narrow public justifi cations that

must, to use the standard language, refl ect some “compelling state inter-

est.” Consistent with this general theme, the Court worries fi rst about

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306 Individual Rights: Property, Contract, and Liberty

the stated ends the legislation is meant to serve, which are narrowly

defi ned, usually in ways that refl ect the classical liberal concerns about

such key questions as force and fraud or the protection of minors. Its

second step is to examine closely the “fi t” between these legitimate ends

and the means chosen to achieve them. “Narrow tailoring” to reduce the

risks of over- and under-inclusion is the order of the day.

In the middle lies the appropriately named test of “intermediate

scrutiny,” which in its typical verbal formulation asks whether a par-

ticular piece of legislation advances important government interests by

means that are reasonably adapted or substantially related to the ends

in question. Some choice in the statement of ends, or slippage in the

choice of means, is surely tolerated. Thus, Craig v. Boren struck down

different minimum drinking ages—twenty-one for men and eighteen

for women—for 3.2 percent beer on the ground that “classifi cations

by gender must serve important governmental objectives and must be

substantially related to achievement of those objectives.”4 Functionally

speaking, as a fi rst approximation, intermediate scrutiny treats the dan-

gers of over- and under-regulation as having equal weight, and thus

sets no initial presumption either way. In these cases the usual verbal

formulation speaks about requiring the government to show an import-

ant social end that it seeks to achieve by appropriate means. There is in

effect more give on both parts of the analysis than under strict scrutiny.

In most cases, the Court tends to run to either strict scrutiny or rational

basis review, with relatively few cases dealing with intermediate scru-

tiny. Cases involving sex discrimination or the status of illegitimate chil-

dren often fi t into the middle category.5

These three standards of review—strict scrutiny, intermediate scru-

tiny, and rational basis—can be expressed as competing attitudes toward

the two forms of error. Here is a way to put numbers to the different ver-

bal formulations. Strict scrutiny weighs over-regulation as, say, ten times

more serious than under-regulation. Rational basis goes in the opposite

direction, so that under-regulation is rated as ten times more danger-

ous than over-regulation. That combined ratio is a one hundred to one

difference, which neatly explains why strict scrutiny is usually a death

sentence while rational basis is invariably toothless. Anyone can quarrel

with the choice of numbers, but they cannot dispute either the direction

or the power of the coeffi cients. Thus, let “a” (with a value of 10) be

the differential for strict scrutiny against government regulation and “b”

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From Structural Protections to Individual Rights 307

(with a value of .1) be the differential for rational basis in favor of reg-

ulation, where “a/b” (10/0.1), their ratio, represents the hundred-fold

difference in odds as one moves from one standard of review to the

other. Intermediate scrutiny could be modeled as a situation where both

these coeffi cients are equal to one, so that there is no initial bias either

way. In practice, however, it tends to lie somewhat closer to strict scru-

tiny than to rational basis. In light of these realities, it is useful to recall

the late Gerald Gunther’s famous quip about two-tier scrutiny: “Some

situations evoked the aggressive ‘new’ equal protection, with scrutiny

that was ‘strict’ in theory and fatal in fact; in other contexts, the deferen-

tial ‘old’ equal protection reigned, with minimal scrutiny in theory and

virtually none in fact.”6 What he says about equal protection applies to

all other constitutional provisions as well.

Fundamental Rights and Suspect Classifi cations

All these tests carry over to treatment of individual rights under the

Constitution. The collection of individual rights under the Constitution

is impressive and it comes from multiple sources. In this book, I confi ne

myself to an examination of individual rights that have nothing to do

with criminal law. Thus, the First Amendment states that Congress shall

make no law “respecting an establishment of religion, or prohibiting the

free exercise thereof.” Moreover, Congress shall make no law “abridg-

ing the freedom of speech, or of the press.” In similar form, the Second

Amendment declares: “A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep and bear Arms,

shall not be infringed.” The Fifth Amendment protection afforded to

private property is equally categorical: “[N]or shall private property be

taken for public use, without just compensation.” That categorical form

tracks the Contracts Clause in Article I, stating: “No state shall . . . pass

any . . . Law impairing the Obligation of Contracts.” The question of

individual rights was complicated by the passage in 1868 of the Four-

teenth Amendment during the Reconstruction Era. And while Section 1

of the Fourteenth Amendment does not contain individual substantive

guarantees, the protections that it affords to privileges and immunities,

to due process, and to equal protection of the laws are again stated as

invariant rules. It is helpful to set out its fi rst provision in full to organize

much of this discussion.

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308 Individual Rights: Property, Contract, and Liberty

Amendment XIV Section 1: All persons born or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with- out due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Quickly summarized, the fi rst sentence of that amendment over-

turns the decision in Dred Scott v. Sanford,7 by making all former slaves

citizens. The payoff to citizenship is found in the Privileges or Immuni-

ties Clause, which looks as though it offers a full menu of privileges and

immunities, none of which are set out in the Fourteenth Amendment or

in the closely related provision in Article IV, Section 2, Clause 1, which

states, “The Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States.” The one clear inference

that can be drawn from the location of the Privileges or Immunities

Clause is that it appears to provide more expansive rights to the more

limited class of “citizens” than do the Due Process and Equal Protection

Clauses, which appear to give a smaller set of rights to a broader class

of “person[s].” On its face—and the point is hotly contested—it appears

that the Privileges or Immunities Clause offers individual substantive

protection of these rights, and not just the protection against improper

discrimination between groups, such as racial groups.

None of these provisions is self-explanatory and each of them

requires an extensive interpretive apparatus to be put into sensible per-

spective. One constant theme that arises is whether any of these par-

ticular provisions incorporate the various protections, both civil and

criminal, for individuals found in the Bill of Rights. The Privileges or

Immunities Clause looks to be the most plausible candidate for that task,

but it was given so narrow an interpretation in the Slaughter-House Cases

in 18738 that the link between the Bill of Rights (which applied to the

federal government) and the states had to be forged, if at all, through

the Due Process Clause whose procedural orientation looks ill-suited for

that task.

Wholly apart from incorporation, the Fourteenth Amendment

poses another set of interpretive challenges. First, what is the appropri-

ate standard of review for applying each of these provisions? Second,

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From Structural Protections to Individual Rights 309

how does that standard of review play out in connection with the two

central challenges of interpretation? The fi rst of these risks is that of

circumvention of basic guarantees by strategic legislative behavior. The

second involves the set of permissible justifi cations for various govern-

ment actions. These questions were also relevant in understanding the

varied treatment of the Commerce Clause—strict scrutiny in some cases

and rational basis in others.

Most critically, the Constitution contains not a single word of text

that points in any direction on any of these questions. So the explana-

tion has to come from nontextual sources. The most appealing expla-

nation for differential levels of scrutiny on matters of individual rights

stems from the famous Footnote 4 in United States v. Carolene Products

Co.9—another of the dreary succession of dairy cases in which the Court

turned a blind eye to special interest legislation—which was decided

one year after the triumph of the progressives on matters of federalism

and economic liberties. Thus the 1937 decision of the Supreme Court

in West Coast Hotel v. Parrish,10 overruling its 1923 decision in Adkins v.

Children’s Hospital,11 sustained a minimum wage law that extended only

to women. At this point in time, the attention was shifting sharply from

these issues to questions of civil liberties and race, where the corrupt

political institutions in the South had gone a long way to entrenching

segregationist institutions (with which no classical liberal has the slight-

est patience).

In his effort to explain why stepped-up scrutiny was needed to

counter government failure in the race cases, Justice Stone in his famous

Footnote 4 adopted a theory of constitutional interpretation that asked,

in the explicit context of race, “whether prejudice against discrete and

insular minorities may be a special condition, which tends seriously to

curtail the operation of those political processes ordinarily to be relied

upon to protect minorities, and which may call for a correspondingly

more searching judicial inquiry.”12 The argument, which is extensively

elaborated in John Hart Ely’s Democracy and Distrust,13 contains strong

echoes of the earlier concern with factions that animated James Madi-

son in The Federalist Papers.14 Indeed, rightly understood, the protection

of beleaguered minorities is a powerful instantiation of that theory, espe-

cially when those so prejudiced are formally excluded from the polls.

Yet if Justice Stone is right to mount the judicial charge in the race

cases involving “discrete and insular” minorities, he is surely wrong to

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310 Individual Rights: Property, Contract, and Liberty

retreat from the basic insight everywhere else. It was easy in the race

cases to identify the fatal misalignment of power. And it is easy to show

the loss of both property rights and economic liberties that followed

from excluding particular groups from the political process or margin-

alizing their infl uence. But, in line with Madison, it hardly follows that

property owners and employers cannot on occasion fi nd themselves

in the same vulnerable position. Is a landowner who wants to develop

property a member of a discrete and insular minority if all his neighbors

don’t want him to build? Is an out-of-town landlord a member of a

discrete and insular minority when the resident tenants push hard for a

rent control statute? Are employers an embattled minority when large

numbers of workers demand strong labor unions whose organizational

activities are protected by the state?

The answer to these questions differs from the race cases in one

important way. In 1938, there was no need to run a detailed inquiry

to discover that the political game was shamelessly rigged. In contrast,

in fl uid modern environments, when voting rights are secure, no one

can simply posit that members of any group have been stripped of their

ability to participate effectively in the political process. In all cases, we

get more information once the political process has run its course in any

particular dispute. At that time it should be possible across the board to

examine the outcomes of a particular process to determine whether they

bring about major wealth transfers between persons or groups.

As with structural issues, any full analysis of rights manifests itself in

two dimensions. The fi rst involves particular protection of some desig-

nated activity or institution, such as speech, religion, contract, property,

and, most recently, guns. The second involves nondiscrimination rules,

often found in free trade contexts, which fi nd explicit expression in the

Equal Protection Clause of the Constitution. The interplay between indi-

vidual rights and nondiscrimination rules often proves elusive, for many

complex claims contain both dimensions. The matter is further compli-

cated because procedural rights often require an amalgam of both dis-

crete protections and safeguards against preferential treatment.

Predictably, the analysis of the proffered state justifi cations for lim-

iting individual constitutional guarantees follows the path that it took

on structural matters. The classical liberal position gives narrow weight

to purported justifi cations both as to the ends the state chooses and

the means it uses to achieve them. The progressive mindset takes the

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From Structural Protections to Individual Rights 311

opposite view on both questions. And as the difference between strict

scrutiny and rational basis approaches the one-hundred-to-one ratio

mentioned above, the choice of worldview exerts a profound effect on

the size of government. As an ardent defender of the classical liberal

conception across the board, it is no secret where I come out: there are

some cases (e.g., monopoly issues) in which intermediate scrutiny is the

correct approach. But there are virtually no cases, except perhaps on

some narrow national security questions, where rational basis sets the

right standard of review.

This section examines this interplay of basic rights and state justifi -

cation in the context of explicit constitutional guarantees of individual

rights, all of which are articulated in categorical form. All forms of indi-

vidual protection are broken into two halves. The fi rst of these defi nes

an individual right worthy of government protection. The second justi-

fi es the use of police power to enforce the right. That complex interplay

between basic rights and state justifi cation determines the shape of our

modern institutions. The following section highlights some of the key

features.

Negative and Positive Liberties

The initial substantive inquiry thus concerns the content of the discrete

constitutional guarantee. Our Constitution phrases all individual entitle-

ments in negative form, refl ecting the social objective to prevent govern-

ment from trenching on vested rights. Nowhere does the text state that

either the federal or state government owes anyone a job, a home, a car,

health care, a minimum standard of living, or a free trip to the Bahamas.

To be sure, negative liberties protect jobs, homes, cars, health care, stan-

dards of living, and vacations, but only in a restricted sense. While there

is no affi rmative duty on the state to supply jobs, there is a requirement

that government not block or burden employment—be it by taxes or

regulation—except under some narrow police power justifi cation.

The system-wide difference between positive and negative rights is

palpable. Positive rights always carry correlative duties to supply some

bundle of goods or services, whose content cannot be determined with

any generality. Even after the appropriate bundle is identifi ed, it must

then be funded by the government, which must raise the needed reve-

nues from some fraction of the population through taxation. Answers to

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312 Individual Rights: Property, Contract, and Liberty

the questions of how much support, what levels of taxation, and against

what groups, all depend heavily on resource constraints and particular

institutional details that no constitutional regime could hope to antici-

pate in advance. Those modern constitutions that espouse positive rights

to jobs, housing, and health care never put strong duties on government

to supply particular jobs or houses. Those constitutional norms operate

only in the world of aspirations, as precatory norms that the legislature

has to deal with in good faith, often under the prodding of the courts.

Positive rights thus require a much more complicated institutional sys-

tem than negative ones.

The rejection of positive rights in the American system rules out the

possibility that anyone could exert a strong constitutional entitlement

claim against the government. It follows that there is no occasion to

address the justifi cations for denying provision of nonexistent positive

rights. Modern American constitutional law, however, virtually invites

the legislature at both the federal and state levels to adopt schemes of

redistribution that the Constitution itself is powerless to impose. Medi-

care, Medicaid, and Social Security all have the capacity to bankrupt the

nation. Yet the bewildering cross-subsidies embedded into their basic

design are not subject to any fundamental constitutional challenges,

except at the edges. It is therefore quite unlikely as of this writing that

the extensive health care legislation passed during the Obama adminis-

tration will be constitutionally undermined, notwithstanding the heavy

duties of cross-subsidization that it places on individuals and fi rms alike.

The soothing balm of rational basis review will likely allow some court

to craft a suitable justifi cation for the massive state intervention, which

would not be viable if a higher level of scrutiny were invoked.

The classical liberal worldview does not accept this compromise

position whereby the Constitution allows but does not require massive

forms of wealth redistribution. Rather, it starts from the assumption that

the basic system of negative liberties limits the use of taxes and regula-

tions to overcoming coordination problems for public goods—e.g., infra-

structure—that generate across-the-board benefi ts, without requiring

huge transfer programs among citizens. That position runs into fi erce

objection from those who regard the redistribution from rich to poor as

a moral imperative in light of the diminishing marginal utility of wealth.

Yet even that justifi cation offers no comfort for the countless redistrib-

utive programs that often work at cross-purposes with that objective,

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From Structural Protections to Individual Rights 313

including the huge number of industry-specifi c subsidies for agriculture,

transportation, or real estate development, which do nothing to allevi-

ate rich/poor differentials.

Attacking these practices without taking down comprehensive and

systematic government redistribution is theoretically possible. But a

piecemeal approach offers small benefi ts to the average member of the

public, yet poses a huge threat to those who benefi t from each particular

subsidy. The task of unraveling the complex network of taxes and subsi-

dies is doomed to founder. Virtually all modern judges, both liberal and

conservative, will not touch this fundamental problem with a ten-foot

pole. So it will have to suffi ce to register a principled objection. This Part

does just that by comparing the classical liberal and progressive views.

The task that remains is to organize the particular topics that are

guided by these general principles. In so doing, I take a guarded histor-

ical approach. I begin in Chapter 20 with a discussion of the procedural

due process issues explicitly set out in the Due Process Clauses of both

the Fifth and the Fourteenth Amendments. In Chapter 21, I take up

the question of economic liberties and freedom of contract, which was

the fi rst of the individual guarantees to come into constitutional prom-

inence, especially after the Civil War. Next I attack the issues relating

to the taking and regulation of real property in Chapter 22. Chapter

23 then addresses key issues of personal liberties, including such hot

button issues as contraception, abortion, homosexual sodomy, and gay

marriage. Once I am done with these traditional issues, I turn next in

Chapters 24 to 28 to the complex issues raised in connection with the

guarantees of freedom of speech, and in Chapters 29 to 32 to those issues

that concern both the establishment of religion and the free exercise

thereof. Once that is fi nished, in Chapters 33 to 35 I examine the various

classifi cation issues that are raised in connection with the guarantees of

equal protection of the laws, relating to race, sex, alienage, and other

potentially suspect classifi cations.

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Procedural Due Process

Implementing the Classical Liberal Ideal

IN DEALING WITH the transition from structural protections to individual rights, it is appropriate to begin with an analysis of the one protection that explicitly limits both the national and state governments: the Due

Process Clause. As its name suggests, it offers a set of procedural safe-

guards against the loss of any substantive entitlement. The Fifth Amend-

ment of the Constitution, part of the Bill of Rights, states “nor [shall any

person] be deprived of life, liberty, or property, without due process of

law”—by the United States. The analogous provision of the Fourteenth

Amendment reads “nor shall any state deprive any person of life, liberty,

or property, without due process of law.” It should go without saying

that some provisions of this sort form a necessary component to a classi-

cal liberal constitution, for nowhere is the need for limited government

stronger than in controlling the potential abuses of government when

it exerts its political power. These procedural guarantees come into play

whenever the state exercises its monopoly power over the life, liberty,

or property of persons subject to its jurisdiction.

A Universal Guarantee

The origins of these clauses go back to the English Magna Carta of 1215

whose key provisions, Clauses 39 and 40, read as follows:

39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

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40. To no one will we sell, to no one will we refuse or delay, right or justice.

A comparison between the Magna Carta and the two Due Process

Clauses reveals some instructive textual differences. First, the term

“freeman” in the Magna Carta is narrower than the term “person” in

the two Due Process Clauses, and it applies only to that limited class of

individual persons not tied as serfs to the land. The subsequent general-

ization to all persons in the Due Process Clauses represents a powerful

evolution of the law such that differences in personal status that once

mattered are no longer relevant. Indeed, this welcome simplifi cation of

the law of persons counts as one of the great advances in the cause of

liberty, because on its face (even when slavery was entrenched) it covers

all persons regardless of sex, race, religion, ethnicity, or prior condition

of servitude. Second, and in similar fashion, the words “taken, impris-

oned or disseised [technically, dispossessed from a freehold interest], or

exiled or in any way destroyed” offer a broad but specifi c list of sanctions

that could well be narrower than the single word “deprived,” which

covers not only the above actions, but also sanctions such as fi nes or loss

of license, which do not seem to be covered by the phrase “go upon him

nor send upon him.” Third, the Magna Carta refers to loss only through

adjudication, with its emphasis on the words “lawful judgment.” This

leaves open the question of whether its protection applies (as it should)

to individuals who are subject to individual sanctions by administrative

or legislative actions. Bills of attainder were, for example, commonplace

in England, but it is doubtful that the Magna Carta imposes restraints

on that parliamentary strategy. The United States Constitution closes

that gap when it explicitly provides fi rst that “no Bill of Attainder . . .

shall be passed”1 at the federal level, and further that “no state shall . . .

pass any Bill of Attainder.”2 Fourth, the peculiar disjunction between

“of his peers” and “by the law of the land” suggests a procedural limita-

tion—namely the jury process—in the fi rst phrase that contrasts with

the greater universality of the second. The words “by the law of the

land” require procedural rules be general and well established, but they

fail to specify any independent minimum set of required procedural

safeguards. Finally, the basic guarantees under the Magna Carta are

strengthened by the general language in Clause 40, which guarantees all

persons (not just freemen) access to the basic system of justice. The state

cannot employ its monopoly over the use of force to “refuse or delay”

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316 Individual Rights: Property, Contract, and Liberty

the disposition of judgment, but (like all private monopolists) is subject

to render reasonable and nondiscriminatory service to the people whom

it governs.

The words of the Magna Carta were altered as its guarantees made

their way into American law through the Due Process Clauses. The rea-

sons for the terminological switch from “the law of the land” to “due

process of law” are not entirely clear. Nonetheless, in 1856, the Supreme

Court, in its fi rst foray into the issue in Murray’s Lessee v. Hoboken Land &

Improvement Co.,3 held that the two phrases “were undoubtedly intended

to convey the same meaning”4—only to reject, on the strength of a uni-

form English practice, the claim that the Due Process Clause required the

federal government to give its tax collectors a hearing before determining

what sums they owed to the state. On a recurrent theme, the Court held

that a hearing for disputed claims held after collection suffi ced, since

interest payments could make the tax collectors fi nancially whole. The

amalgam of customary practice makes sense in an area where the tex-

tual commitments are far from clear. But by the same token, it would be

overhasty to ignore the subtle transformation in approach that emerges

by replacing the phrase “due process of law” with the phrase “by the law

of the land.” The words “due process” still require uniformity across like

cases, but they also make explicit some guarantee of minimum process,

as hard as it is to specify in advance the content of those guarantees. All

of this falls far short of the modern developments of substantive due

process. But it does make clear that in the antebellum period, the Fifth

Amendment’s Due Process Clause did touch some forms of regulation

that impacted the operation of the judicial system in particular cases.

One way of stating the prevailing accommodation is offered by Nathan

Chapman and Michael McConnell: “Legislative acts violated due process

not because they were unreasonable or in violation of higher law, but

because they exercised judicial power or abrogated common law proce-

dural protections.”5 But even this formulation is not quite right because

it glosses over the driving forces that generated these common law rules,

which, as will become clear, were embodied in the natural law tradition

of due process.

This short historical tour helps reject the cynic’s protest that the

phrase “due process of law” offers no real protection because it has no

discernible content.6 Indeed, the universality of the two Due Process

Clauses is ultimately the source of their strength. The cynic’s case is

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disproved not by some knockdown doctrinal argument, but by the sim-

ple fact that no known system of law has ever turned its back on the

view that some degree of process is necessarily required before the state

deprives individuals of their lives, liberties, or property. The essential

components of this position long antedate the Magna Carta, for they

are captured in the early Roman maxims audi alteram partem (hear the

other side) and nemo judex in causa sua (no person should be a judge in

his own cause).

It takes little imagination to tease out some essential components

of due process from these bare commands. “Hear the other side” means

that no judge should be able to make a decision adverse to a party who

has not had his say in court. From that simple requirement, it is a short

journey to hold that any hearing will give the needed chance to speak

only if the individual has clear notice of the charges that are raised

against him, both as to the particulars of the case and their legal basis.

That notice requirement in turn will meet minimum standards only if

an indictment or other charge is couched in language intelligible to the

accused or other defendant, which is not possible if the underlying law

is vague, opaque, confused, or internally contradictory. The ability to

receive notice of potential public penalty prior to undertaking private

action is critically dependent on the simple proposition that all laws be

prospective in their application. Hence, by the conventional wisdom no

person can be bound retroactively by a rule that is promulgated after

particular actions are taken.

For its part, the requirement that no person be a judge in his own

cause is in fact a particularized version of a more general requirement,

namely that the decider of any particular case cannot have an interest in

its outcome, where that interest covers, in addition to himself, all per-

sons and groups with whom he is aligned or is seen to be aligned. The

broad position was explicitly adopted in Dr. Bonham’s Case,7 which held

that the members of the College of Physicians could not pass on Dr. Bon-

ham’s license to practice medicine in London when it stood to gain from

any fi nes imposed on him. Edward Coke, C.J., elevated this prohibition

against bias into a principle that arguably trumped the commands of

Parliament, with his famous statement “the common law will controul

acts of parliament, and sometimes adjudge them to be utterly void.”8

James R. Stoner made a credible argument that Coke did not intend

this statement to reject the principle of parliamentary supremacy, but

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318 Individual Rights: Property, Contract, and Liberty

instead thought only that the presumption against bias should hold

under principles of “natural justice”—the instructive modern English

term for the procedural protections that fall under due process in the

American context.9 But whatever the correct historical view, the pro-

jected constitutional status of rules against bias was rejected in England,

most decisively on the authority of William Blackstone, who champi-

oned an unlimited version of parliamentary supremacy on the ground

that “no power” under English law was “with authority to control [an

act of Parliament]” on the sole ground that it was “contrary to reason.”10

Nonetheless, just that basic position found constitutional roots in the

United States through the Due Process Clause of the Fifth Amendment,

which includes a general constitutional prohibition against bias.

Analytically, there is a tight connection between procedural bias

and the substantive protection of life, liberty, and property, which is one

reason why the ostensible oxymoron “substantive due process”—John

Hart Ely famously compared it to “green pastel redness”11—has persisted

historically. One reason we care about procedure is because we know

that it affects substance. For example, suppose that one side wins with a

single die if it comes up odd and loses if it comes up even. Loading the die

so that the odd numbers are now three times as likely to come up as the

even ones switches the odds of winning from 50/50 to 75/25. If there is

$100 at stake, the loaded die is tantamount to an illicit wealth transfer of

$25 from one side to the other. Procedural devices thus always interact

with substance, which is why historically takings and due process are

so closely linked. Similar arguments apply to all the other guarantees

bundled into due process. Bad procedures generate bad outcomes that

necessarily lead to unprincipled deviations from the ideals chosen by the

substantive law. These fl ip-fl ops not only lead to inconsistent results in

parallel cases, but they also create massive uncertainties that can desta-

bilize markets and undermine the rule of law.

From these simple observations, it becomes clear that the due pro-

cess guarantee has succeeded because its essential ingredients map onto

the requirements for the rule of law, precisely because its procedural

requirements are not tethered to any particular view of substantive

law.12 In principle at least, the requirements of due process are applied to

all substantive regimes, from the small government classical liberal state

to the modern progressive state, with its very different objectives. None-

theless, in practice it turns out that it is easier to adhere to these rule of

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Procedural Due Process 319

law guarantees in the smaller classical liberal state with its well-defi ned

conceptions of property, in vogue at the time of the Founding.13 Quite

simply, the vast amounts of discretion conferred in the modern progres-

sive state are in practice in constant tension with the traditional guaran-

tees of procedural due process.

To see how these various issues play out, I shall examine some of

the major interpretive problems that appear in connection with the

Due Process Clause. First, what government actions trigger the due pro-

cess guarantees? Second, to whom are the protections of due process

extended? Third, what is the scope of life, liberty, and property under

the two Due Process Clauses? Fourth, what process is due to various

parties in various situations?

The Internal Operation of the Due Process Clause

State Action

The potential scope of both Due Process Clauses depends intimately on

the kinds of government action that they cover. Clause 39 of the Magna

Carta only applies to lawful judgments, which are always the product

of litigation, but applies far less clearly to other forms of government

action, including general legislation that prescribes the substantive rules

that govern litigation in particular disputes. There is little doubt that the

standard trial is in fact a central focus of the protection of any Due Pro-

cess Clause, given the consequences of an adverse judgment against the

defendant, which allows the sheriff to seize any of the defendant’s prop-

erty located within the jurisdiction. That same judgment, moreover, can

also form the basis of action to seize property located in another state

whose government under our constitutional scheme has to give “full

faith and credit” to any judgment of a sister state.14 It is, of course, only

possible to give automatic enforcement to prior judgments from other

states if there is some collective confi dence that those earlier adjudica-

tions were done under proper procedures.

The situation becomes more diffi cult because courts are not the

only bodies whose decisions can deprive any person of life, liberty, or

property. Any number of administrative tribunals can, for example,

determine whether a person owes taxes, has become a citizen, receives

a driver’s or broadcast license, or is eligible for the draft. The rise of

the administrative state means that governments today must grapple

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320 Individual Rights: Property, Contract, and Liberty

with many different types of disputes, calibrating their procedures to

deal with them appropriately. Accordingly, under the American system

a party can raise two challenges in any given case. The fi rst asks whether

the procedures promised were given; the second uses a constitutional

lens to examine the soundness of those procedures.

Under the English practice of parliamentary supremacy, only the

fi rst issue is in play. In contrast, under the American system, the Due

Process Clause controls all exercises of sovereign power. In Yick Wo v.

Hopkins,15 it was held that both the Equal Protection Clause and the two

Due Process Clauses are “universal in their application, to all persons

within the territorial jurisdiction, without regard to any differences of

race, of color, or of nationality.”16 The expansive “universal” suggests

that the guarantees in question are comprehensive. In contrast, the

phrase “within the territorial jurisdiction” suggests that the due process

guarantees (and the writ of habeas corpus which is closely allied with

it), do not apply with respect to aliens (not citizens) who are detained

outside of the territory of the United States on the simple ground that

the United States does not exert sovereign power over them.17 The bor-

derline case on this view asks whether due process guarantees run to

persons held at the naval base in Guantanamo Bay: notwithstanding

Cuba’s “ultimate sovereignty” over the territory, the United States exer-

cises “complete jurisdiction and control” over the base given our exten-

sive treaty rights with Cuba. In contrast, the United States does not exert

such control over places like Landsberg Prison in Germany, where in the

aftermath of the Second World War it was held that the standard proce-

dural protections do not apply.18

This entire line of Supreme Court cases cuts against any sensible

reading of the Due Process Clause by refusing to allow it any extrater-

ritorial application, even though the clause itself contains no territorial

limitation. Why then imply one into the text? The key question should

not be whether the United States has control over the territory in which

the alien is located, but whether it has effective control over the prisoner

who claims rights against the United States. Imposing these protections,

whether by statute or constitutional mandate, is an internal matter for

the United States, to which the Germans, for example, were supremely

indifferent at the end of World War II. There are many reasons why

ordinary prisoners of war should not receive any special procedural pro-

tections, but all of those are related to their status as enemy combatants

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Procedural Due Process 321

and not to the place of their incarceration. Where genuine questions

arise as to whether a given individual is in fact an enemy combatant, it

is no more diffi cult to give voice to those concerns in Germany than it

is in the United States. If we can extend that procedural protection to

citizens held outside the United States, we can extend it to aliens outside

the United States, even if they are not citizens, so long as they are in the

custody of American offi cials. It is therefore hard to see why this mas-

sive deprivation of personal liberty should fall outside the constitutional

protections of due process. The simple solution is that the level of pro-

tection required should be the same regardless of where the government

decides the incarceration takes place, which is a standard that is as easy

to administer as any other.

Persons Protected

The basic observation that follows from the above discussion is that the

due process protections found in both amendments cover not only cit-

izens, but all persons—without question a more inclusive term. At the

very least that broader defi nition reaches aliens who are natural per-

sons, a point that was clearly accepted in Yick Wo, which extended the

Due Process Clauses to Chinese subjects residing in the United States. It

is a somewhat more diffi cult question to ask whether these provisions

should apply to partnerships, associations, and corporations that are

assemblages of persons who often receive the benefi t of special protec-

tions, such as limited liability, that can only be conferred by operation of

law. In one sense, that extension makes no sense because abstract enti-

ties cannot lose either their lives to execution or their liberties to impris-

onment. Nonetheless these entities are empowered to acquire, hold, and

dispose of property, and there is an extensive body of law today that

deals with criminal punishment of corporations for the wrongs vicari-

ously charged to them for the acts of their various senior offi cials and

employees. It seems very odd to say that the extensive set of due pro-

cess protections should apply to the property that individuals hold as

common owners, but only so long as that common ownership is not

put behind some limited liability corporation. Recall that limited liabil-

ity allows for businesses to expand by permitting individuals to commit

some, but not all of their wealth to a venture that they do not run. These

corporations get the procedural protections afforded to other persons,

because the property that they hold in corporate solution necessarily

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322 Individual Rights: Property, Contract, and Liberty

redounds to the benefi t of the individual shareholders. All other areas of

the law have special rules to deal with the status of corporations, includ-

ing rules that govern the service of process on corporations or, ironically,

their status as citizens for the purpose of diversity jurisdiction, which

allows them to sue or be sued in federal court.19 That broader protection

seems fully warranted, lest corporate assets be seized with impunity.

Life, Liberty, or Property

The scope of protection under both Due Process Clauses is limited to

“life, liberty or property.” The obvious rights included under this rubric

are those which are protected under classical liberal theories of govern-

ment. But the scope of the Due Process Clause can also extend to various

rights that are created by government as part and parcel of the modern

administrative state. I shall take these up in order.

Private Rights. The initial question is how far life, liberty, and property

extend, by asking what other interests might prove worthy of legal

protection. The phrase itself occupies an honorable niche in political

theory as a modernized version of John Locke’s famous trio of “lives,

liberties, and estates,” the preservation of which explains why men

quit the state of nature and put themselves under government.20 The

three elements received an early explication in Blackstone, which cov-

ers, most critically, those interests that under his natural law theory

individuals enjoy prior to and independent of any form of government

action. Thus Blackstone famously notes that the right to life, or in his

terms the “right of personal security,” consists of “a person’s legal and

uninterrupted enjoyment of his life, his limbs, his body, his health, and

his reputation.”21 As a matter of general construction, it would be odd

indeed if a person were protected from execution but not from the loss

of limb or deliberate exposure to various diseases, so that the protection

of the fi rst easily covers all the others by analogical extension. By the

same token, including reputation under personal security is termino-

logically problematic. The law of defamation protects that interest as

a way to ensure that individuals do not lose the capacity to enter into

gainful relationships, both business and social, with some third person

or persons.22 In some cases, defamation can lead to death, as with false

charges of treason to the sovereign. But most cases involve only rela-

tional interests. Yet the point is not of ultimate concern in the American

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Procedural Due Process 323

context, for despite the failure to treat the protection from defamation

as part of life, that judgment does not exclude its protection under both

liberty and property.

The notion of liberty in the state of nature included at a minimum

“the power of locomotion, of changing one’s direction and removing

one’s person to whatsoever place one’s own inclination may direct.”23 As

stated, it looks as though this freedom of motion cannot be constrained

by the private lands owned by others. But it seems quite clear that Black-

stone by this enumeration did not mean to eviscerate the institution of

private property, but only to ensure that individuals received protection

against false imprisonment and against others blocking their rights of

way on public highways, waterways, and beaches. Left out of this state-

ment of individual liberty is the ability of any one person to dispose of

either his labor or tangible property to others, that is, an interest in the

liberty of contract that later plays so large a role in American history. But

the logic for inclusion of this right is compelling if one takes the limiting

case and assumes that a government decrees that no individual is enti-

tled as of right to enter into any transactions from a common purchase

of food, to an employment contract, to a contract of marriage. And once

the larger claim to liberty is extended, it becomes an impossible to insist

that partial losses of liberty—e.g., you cannot buy some foods, work for

some persons, or marry others—do not fall into the same class of pro-

tected liberties. By the same token the protection of property covered,

in Blackstone’s famous formulation, of “that sole and despotic dominion

which one man claims and exercises over the external things of the

world, in total exclusion of the right of any other individual in the uni-

verse,”24 at the very least all “the estates” to which Locke made reference

in his trio of “lives, liberties, and estates.”

This argument from analogy, and the need to prevent government

at all levels from overreaching its authority, makes it imperative that the

liberty under the Due Process Clause cover all those interests that were

mentioned in Blackstone, and many others in addition. And so it has

come to pass. In Meyer v. Nebraska,25 the Court struck down a statute that

forbade the instruction of foreign language—in that case, specifi cally

German—for students who had not attained an eighth-grade education.

The case was decided on substantive due process grounds, but surely

the catalogue of interests set out by Justice James McReynolds also is

deserving of procedural protections:

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324 Individual Rights: Property, Contract, and Liberty

Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those priv- ileges long recognized at common law as essential to the orderly pursuit of happiness by free men.26

Quite simply, it is the full set of liberties that one has in the state of

nature, not just some arbitrarily selected subset, that receive protection

under the clause. In addition, a credible case can be made to include rep-

utation on this list in light of the standard defi nition from Locke, quoted

above.27 It is widely accepted that no person can use force to deter third

persons from associating or dealing with the plaintiff.28 The use of false

words has just that effect, which explains why the tort of defamation

goes back at least to Roman times: it falls squarely within the libertarian

prohibition against the use of force and fraud. In Joint Anti-Fascist Refugee

Committee v. McGrath29 the United States listed the Refugee Committee

as a Communist organization, which in the heated atmosphere of the

1950s was unquestionably a defamatory communication. The Supreme

Court granted the plaintiff’s request for delisting on the ground that

their inclusion was an arbitrary and unauthorized act that was not enti-

tled to judicial deference.30 This view of the matter is consistent with

the law of defamation, which has long given remedies to plaintiffs who

cannot identify the third persons who were driven away from them by

the defendant’s statements.31 It is not diffi cult to conclude that any such

offi cial determination should have been made only after the Refugee

League had a chance to contest it, precisely because, as Justice Frank-

furter urged, a wide range of parties may use the designation “as ground

for rejection of applications for commissions in the armed forces or for

permits for meetings in the auditoriums of public housing projects,”32

and lots of private business opportunities as well.

The last element in this list is property. The use of the broader term

surely covers private property, so that the deprivation of land, or of any

interest in land like a mortgage or a life estate, is protected against depri-

vation under the Due Process Clauses. The same argument would be

made with respect to goods and animals that a person owns, and the

same process of analogy surely extends to cover various forms of intel-

lectual property, including patents, copyrights, trade names, and trade

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Procedural Due Process 325

secrets already created under the terms of the applicable patent and

and facilities is not a form of private property, but is a form of common

property to which parties all have access in the state of nature. These

interests too seem to count as a protected form of property, so that the

state cannot strip a person of those access and use rights without going

through the same procedures applicable in other cases. Likewise, the dis-

paragement of a person’s goods, itself a species of defamation, should be

subject to constitutional protection as a form of general damages, which

should have controlled in Joint Anti-Fascist Refugee Committee. The tort of

defamation only depends on knowing that third persons have avoided

the plaintiff. It does not depend on knowing exactly who they are.

This catalog of interests includes (with the exception of patents

and copyrights) all the property interests that one brings into society

under a Lockean theory, which makes it clear that property interests are

acquired by individual actions—typically occupation of land, chattels,

and animals—that are in no way dependent for their validity on the

actions of any government.33 But that pristine view of property cannot

survive the creation of the state when it exercises its undeniable powers,

which include its power to dispose of property, to enter into contracts,

to run prisons, or to issue various kinds of permits and licenses allowing

individuals and fi rms to engage in certain activities, sometimes on their

own property and other times on public property. Licenses to practice

medicine or law fall into the fi rst category. Licenses to drive on public

roads fall into the second category. The power of the state seems greater

in those cases where the interests of any individual are shared with oth-

ers, for the state necessarily must be able to exercise extensive manage-

ment prerogatives to keep the system going. The obvious question here

is how to apply the requirements of due process that emerged in a sim-

ple state of nature in a complex society in which government offi cials

perform all sorts of different functions, some of which are distinctive to

government and others that are not.

At this point, the older conception of judgments rendered in accor-

dance with the law of the land has nothing to say about the way in which

the state structures or restructures entitlements. The only protection that

it offers, and it is one of huge importance, is protection against extraor-

dinary procedures of the sort that can lead to Star Chamber proceedings

and summary executions. The reason that this requirement has bite is

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326 Individual Rights: Property, Contract, and Liberty

that it formally imposes a nondiscrimination rule of sorts that means for

any given class of substantive wrongs, the people who make the laws

have to live by the laws they make for others. No one can claim that this

impartiality will be routinely observed in practice. But it is clear that any

ideal of equal justice under law will fail if those who govern can impose

restraints on their rivals that do not apply to themselves. Under any con-

stitutional regime of due process, the nondiscrimination provision must

supplement a powerful set of property-like norms in order to provide

comprehensive protection against the excesses of government power.

Government Grants, Contracts, and Licenses. The next question is how far

the two Due Process Clauses extend to government grants and govern-

ment licenses. The issue received its most famous academic articulation

in Charles A. Reich’s The New Property,34 which noted that modern gov-

ernment does more than protect the traditional form of private property

insofar as it “pours forth wealth: money benefi ts, services, contracts,

franchises, and licenses.”35 The deprivation of any of these interests must

be tested against the requirements, which can differ across different

types. In this section, I begin with government conveyances, which can

often be tested by traditional property principles, and then move on to

examine how these rules play out in dealing with government employ-

ment contracts, welfare payments, and social security benefi ts. In some

cases, the point of tension comes in the defi nition of the property right

that is protected under the Due Process Clauses, and others in which the

issue relates to the procedures that must be afforded to see that these

are protected. Although this distinction between government grants and

government employment contracts may blur at the margins, it offers an

instructive way to organize the overall analysis.

In tackling this question, the easiest cases are those that deal with

the government disposition of publicly owned property, which, once

conveyed, has the same status as any other piece of private property. The

government may have explicitly reserved a right to reclaim the prop-

erty, just as other property owners may do. But if the conveyance is out-

right and unconditional, the property is protected to the same degree,

both substantively and procedurally, as any other common law interest.

Accordingly, the government can retake it, but only if it provides the

same just compensation that is needed in any other case.36 The situa-

tion with respect to government contracts is the same. Contracts for the

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performance of work are often complex arrangements that contain all

sorts of conditions and stipulations that refl ect the joint decisions of the

parties on how best to conduct their combined venture. Where the gov-

ernment acts within the scope of its stated contract rights, it does not face

any due process claims. Thus if a particular grant allows the government

to recoup property at will from its donor, there is no due process (or just

compensation) claim when the government exercises its reserved rights.

The following examples show a few key elements in the basic struc-

ture of the underlying contract and property rights driving the due

process analysis. In United States v. Fuller,37 the government condemned

ranchland the owners of which had been allowed to access public grazing

lands under government licenses terminable at will. The Court, through

Justice William Rehnquist, concluded that no compensation was owed

for the lost grazing rights when these were revoked before the land was

condemned. In Bailey v. Richardson,38 the Court of Appeals in a national

security case stated that “[i]t has been held repeatedly and consistently

that Government employ is not ‘property’” so that the presumption is

that “in the absence of statute or ancient custom,” the offi ce is “held at

will of the appointing authority,” just like an ordinary contract in the

private sector.39

The same logic about the contract at will has been applied in

other cases as well. In Cafeteria and Restaurant Workers, Local 473, AFL-

CIO v. McElroy,40 a short-order cook on a military base was held to be

an employee-at-will who could not protest her dismissal on grounds

that she had not satisfi ed the government’s requirements for a security

clearance. The case had an odd posture because the commanding offi cer

purported to fi nd cause for her dismissal when under the contract none

was needed because “it has become a settled principle that government

employment, in the absence of legislation, can be revoked at the will of

the appointing offi cer.”41 From this premise, it appears that any govern-

ment factual determination was an optional safeguard to the employee

that did not harden into a fi xed constitutional right, which is probably

a good thing lest such dismissals be made without any explanation at

all. But if the determination of the appropriate security risk is neces-

sary by statute, a hearing is in fact required to establish that statutory

cause for dismissal. Optional procedures that are customarily invoked,

but not legally required, generally fall outside the scope of the Due Pro-

cess Clause.

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328 Individual Rights: Property, Contract, and Liberty

The procedures in question deal not only with security interests but

with other employment contexts, where the distinction between con-

tracts that can be terminated (or not renewed) at will and term contracts

can rise to constitutional signifi cance. Thus, in Board of Regents of State

Colleges v. Roth,42 the Court denied any property interest to a nontenured

professor whose one-year contract was not renewed on its expiration.

Tenured professors with binding contracts at public universities can be

dismissed only with cause, and in these instances the Due Process Clause

applies.43

The question then arises whether the existence of some property

interest is necessary in all cases to invoke traditional due process protec-

tions. On this point, the answer seems to be in the negative, for reasons

that relate not to the protection of property as such, but to the ubiqui-

tous doctrine of unconstitutional conditions, which says that even when

the government may decide at will whether to grant a benefi t or not,

it cannot do so for reasons that allow it to distort the political process.44

Thus, to give a simple example, the government by virtue of its own-

ership of the public roads cannot exclude Republicans when it admits

Democrats, even though it can in many instances exclude both. The use

of public power is scrutinized not because individuals have guaranteed

rights of access, but because without that constraint the government of

all the people can use its power to shift benefi ts to its favored clientele,

with obvious dangers to the integrity and stability of the political pro-

cess. That same concern applies in employment contexts as well, such

that it has been uniformly held that once a government employee45 or

a teacher on a term or at-will contract46 alleges that his dismissal was

based on political speech, a hearing of some sort is required to resolve

the dispute. Even though the individual in question “has no ‘right’ to a

valuable governmental benefi t, and even though the government may

deny him the benefi t for any number of reasons, there are some reasons

upon which the government may not rely.”47

The hard question in this area of grants and employment contracts

is the degree to which the government can adopt a strategy that fi rst

designates that the relationship may be terminated for cause, and then

insists that it can specify whatever procedures it chooses to see whether

that cause has been made out. As a general matter, private employ-

ers are in exactly that position. There is no requirement, for example,

that private employers must give the employee a hearing before an

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Procedural Due Process 329

independent party prior to invoking their power to dismiss. It is per-

fectly appropriate for the dismissal to take place at the discretion of a

single supervisory employee if the procedures so call for it. At that point,

the for-cause determination cannot be challenged on its merits solely

because the procedures invoked do not meet some independent stan-

dard. In these cases, the level of protection afforded is a function of some

combination of market conditions and individual bargaining. The fi rm

that gives little protection will have to offer some extra compensation to

employees, especially if they are asked to make front-end investments in

their new jobs. In competitive labor markets, the “greater” right to fi re at

will allows the fi rm to condition employment rights as it pleases, unless

some statutory requirement intervenes.

In the early case of Arnett v. Kennedy,48 Justice Rehnquist applied this

general view of the world to a nonprobationary civil service employee

in the Offi ce of Economic Opportunity who was dismissed for falsely

and recklessly accusing his superior of bribery. The applicable provisions

of the Lloyd-La Follette Act49 gave him a right to reply to the charges

against him and to inspect the record on which those charges were

based, but it did not afford him a full trial-type hearing before his dis-

missal from offi ce could be put into effect. The statute also provided

Kennedy with the right to a post-dismissal hearing, with back pay in

the event that the earlier dismissal was in error. The decision of the

three-member district court panel found that the omission of the prior

hearing counted as a failure to afford the needed level of due process

protection.50 That decision was reversed in the Supreme Court by a frac-

tured majority that relied on two different approaches. Justice Rehn-

quist, whose position commanded only two other votes, insisted that the

substantive and procedural elements of the employment contract could

not be disentangled. The procedures were bound up in the defi nition of

the substantive property right, such that the employee “must take the

bitter with the sweet.”51 The more cautious view of Justices Powell and

Blackmun was that the full package of benefi ts passed muster, not on

this freedom of contract ground, but for the simple reason that the full

mixture of pre- and post-termination protections suffi ced “by provid-

ing a reasonable accommodation of the competing interests.”52 Justice

White dissented on the ground that the Due Process Clause did indeed

require a pre-termination hearing. His views came to dominate a decade

later in Cleveland Board of Education v. Loudermill,53 which held that the

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330 Individual Rights: Property, Contract, and Liberty

pre-termination process was indeed required for teachers who could

only be dismissed for cause, insisting that the substance and procedures

had to be kept distinct, for “[w]ere the rule otherwise, the Clause would

be reduced to a mere tautology.”54

In these public employment cases, the disfavored Rehnquist posi-

tion is in principle correct. The initial point is that the Due Process Clause

is not reduced to a tautology in all cases so long as it provides standard

protections for preexisting property that the state does not create by its

own contracts. In this latter setting, there is ample evidence that the

political process already provides some forms of protection, such as the

statutory protections made available in Arnett, so that the central chal-

lenge is to fi gure out why those fall short. In this regard, one touchstone

is the level of protection that is afforded teachers under contracts that

they enter into with private employers in competitive markets, where

the legal norm typically tolerates arrangements under which employ-

ees may be dismissed at will. In those contexts, a well-drafted contract

seamlessly covers both substantive and procedural issues. Wholly apart

from union contracts, most employers fi nd it in their interest to extend

additional protections against arbitrary dismissal in order to attract qual-

ifi ed teachers into their ranks. I see no reason why public bodies should

be encumbered by heavy protections against dismissal, when these are

capable of imposing major dislocations on the operation of the system

as a whole. The teaching market remains competitive, so much is lost by

imposing a straitjacket—indeed the wrong straitjacket—on school dis-

tricts which should presumptively be allowed the same level of discre-

tion on their administrative affairs as private institutions. Neither Arnett

nor Loudermill raised any issue of the abuse of government power that

might trigger the application of the unconstitutional conditions doc-

trine, so the decision should be regarded as an unfortunate ossifi cation

of public employment law, and not a wise protection of individual con-

stitutional rights.

What Process Is Due

In light of the previous discussion, there is often a complex relationship

between the defi nition of property rights and the procedural protec-

tions that the state should offer against their deprivation. Yet, as the

earlier discussion indicates, the level of protection required should vary

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Procedural Due Process 331

as a function of whether the rights claims are individual rights in the

Lockean tradition versus those which are created by contract with or

grant from the state. In dealing with the former category, the most dan-

gerous application of state power lies in the imposition of criminal sanc-

tions that can result in the loss of life, liberty, or property, and at this

point the level of protections is at its zenith. Thus in an endless array

of cases, the Supreme Court has aggressively applied the Due Process

Clause guarantees. Thus due process requires proof beyond a reason-

able doubt in juvenile delinquency proceedings in all instances where

a juvenile is charged with an act that would be a crime if committed

by an adult,55 and in cases of hate crimes, all aggravating elements are

subject to a similar high standard of proof.56 There is no dispute that the

most extensive protections should be conferred on individuals charged

with serious crimes that could result in death, imprisonment, or forfei-

ture of property.

The situation differs once the government seeks to deprive individ-

uals of rights that they receive from the government by way of contract

or grant. The arguments above about Arnett and Loudermill make the

case that loss of employment in competitive markets should not be sub-

ject to special protections. The question is whether the mix of pre-ter-

mination and post-termination protections that a government agency

is prepared to give should apply in other contexts. The early decision in

Murray’s Lessee takes the sensible position that ex ante protections can

be constitutionally reduced where ex post relief can correct the imbal-

ances in question by the payment of money with interest. Applying this

principle to the public context, the question of whether someone is enti-

tled to a pre-termination hearing is tantamount to asking whether the

government can be enjoined from taking away those benefi ts fi rst. That

inquiry closely resembles the balancing of equities in the private law.

That inquiry is commonly undertaken to determine whether a private

party should receive an injunction against either a private or public body

by asking this one deceptively simple question of “the requirements of

equity practice with a background of several hundred years of history.”57

A court “must balance the competing claims of injury and must consider

the effect on each party of the granting or withholding of the requested

relief.”58 That choice is often said to reduce to four factors under which

the plaintiff who seeks a permanent injunction must demonstrate:

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332 Individual Rights: Property, Contract, and Liberty

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.59

In dealing with these factors, the fi rst and second are best under-

stood as mirror images of each other. The third addresses many of the

issues relevant here, because it poses directly the question of the costs of

two kinds of error, which in Murray’s Lessee was resolved in favor of the

government. The last factor is suffi ciently pliable that it often has little

infl uence at all once the other factors have been taken into account. On

this score, the logic in favor of the government’s position in Murray’s

Lessee is that it minimizes on the sum of error and transaction costs,

which is the prime objective of any system that seeks to balance equities

between the parties. So long as the government knows that its deci-

sions can be challenged after the fact, it should take steps to reduce the

likelihood of costly review. Accordingly, that heightened level of care

should reduce the fraction of cases that require more extensive post-ter-

mination procedures. The after-the-fact hearing should cut down on the

error rate in pre-termination hearings.

That same logic applies, perhaps with greater force, in North Amer-

ican Cold Storage Co. v. City of Chicago,60 where Justice Rufus Peckham (of

fame for his defense of liberty of contract in Lochner v. New York)61 took

the position that Chicago could seize and destroy food that it found

“putrid, decayed, poisonous or infected” on the grounds that a post-sei-

zure hearing at which compensation for goods improperly seized could

be supplied, precisely because the city’s exercise of its police power

responsibilities could easily be compromised by delay. The decision

involves, in the case of private right, the correct balancing under the

Due Process Clause of two kinds of errors. The harms caused by the dis-

tribution of these dangerous products are widespread and irreversible.

The harms caused by their incorrect seizure can be corrected by money.

The general principles for balancing equities thus offer a roadmap as to

what process is “due” in this class of cases. The same rule applies also,

albeit with somewhat less urgency, to the summary collection of back

taxes sustained in Phillips v. Commissioner of Internal Revenue,62 for here

the risk of insolvency of the taxpayer is greater than that of the United

States Treasury. Yet ironically, when the issue comes to the question of

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Procedural Due Process 333

whether private parties should be entitled to ex parte relief, the Court

showed a great hostility to those procedures in Sniadach v. Family Finance

Corp.,63 when a majority of the Supreme Court invalidated a Wisconsin

garnishment procedure under which the creditor was allowed to attach

the assets before giving notice to the garnishee. In a consumer case, Jus-

tice Douglas held that even same-day notice did not meet the require-

ments of due process, a conclusion that seems both overwrought and

wrong so long as the debtor has a chance to contest the lien before it

is foreclosed. The risk that the moneys will disappear before they are

attached is at least as great as it is in the tax cases, and the protections

to the debtor far stronger. The balance of error clearly allows, even if it

does not compel, the Wisconsin procedure, so that in this case at least

Justice Black’s protest that the Court acted as if it “had been granted a

super-legislative power” has some real traction.64

The question of the appropriate balance carries over as well to the

issuance by governments of various permits and licenses. Only here

the balance shifts because, given the central role of the state, the indi-

vidual in question no longer has the benefi t of multiple options in the

competitive market but has to deal with the monopoly power of the

state which, as noted earlier, imposes general duties on it to deal with

all persons in a reasonable and nondiscriminatory matter, such that on

any correct balance of interests the case for a pre-termination hearing

becomes stronger than might otherwise prove the case. Thus in Bell v.

Burson,65 Georgia law provided that the license of an uninsured driver

had to be suspended if he did not have suffi cient funds to serve as secu-

rity against the pending claim. The Supreme Court, speaking through

Justice Brennan, held that this determination required a pre-termina-

tion hearing for answering that question. Unlike Loudermill, the gov-

ernment licensee acted as a monopoly regulator, not as a participant in

a competitive market. These proceedings had nothing to do with the

potential safety risk that the driver posed to third parties, so the balance

of equities seems to favor the pre-termination hearing, especially in the

case of a clergyman who needed to drive his car to perform his duties

in several rural counties. Suspending the license does not put any cash

into the hands of a potential tort victim, but it could easily deprive the

driver of his livelihood. Other cases may present a different balance of

equities, but a per se rule in favor of the hearings should be adopted for

its ease of administration.

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334 Individual Rights: Property, Contract, and Liberty

The role of monopoly power is evident in Wisconsin v. Constantin-

eau,66 when state law forbade the sale of intoxicating liquors to any per-

son who “by excessive drinking” exposed himself or his family “to want”

or to becoming “dangerous to the peace.”67 The case is a rerun of the def-

amation issues raised in Joint Anti-Fascist Refugee Committee, with the fol-

lowing twist. The defamation in question was caused by posted notices

in all liquor stores in town, instructing them not to sell to the plaintiffs,

which lent a degree of specifi city to the government regulation that was

not present in the earlier case. But either way, so long as defamation

does invade a liberty interest, the hearing is required because of the

blanket effect of the regulation. Those governed by it have no other

market alternative.

The most diffi cult cases perhaps are those that involve the distribu-

tion of government benefi ts, of which the two most common types deal

with welfare and social security. In neither case is the government the

only party that can supply this form of protection. Yet by the same token,

the vulnerability of the target population makes the “bitter with the

sweet” argument from Arnett more diffi cult to swallow. Fortunately, the

cases that challenge various termination schemes have never adopted

the position that they may be cut off at will, so that the only question

is whether the constitutional concerns with procedural due process are

suffi cient to overrule state decisions that allow the cancellation of ben-

efi ts only after an elaborate pre-termination examination of the record.

That procedure included notifi cation in writing of the reasons for the

determination and allowed the welfare recipient to present in writing

objections, alone or with the aid of a lawyer, to a unit supervisor within

seven days of that notifi cation. But the procedures did not call for a full-

blown pre-termination hearing. In Goldberg v. Kelly,68 Justice Brennan

led a six-member majority of the Court to hold that the pre-termination

hearing was strictly necessary in this case, in light of the severe disloca-

tion that the loss of welfare benefi ts can cause. Even if we assume that

welfare benefi ts should be treated as a “right” and not a “privilege,” it

hardly follows that the extra layer of protection is needed. Not only is

there the additional expense of multiple hearings, but there is also the

risk that the delay in removing some individuals from the welfare rolls

will reduce the rate at which new individuals can be enrolled. Unless

therefore there is some reason to think that the error rate of those

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Procedural Due Process 335

pre-termination procedures is high, these measures seem to satisfy all

constitutional standards, especially since it is unclear exactly how the

proposed hearing should take place. Quite simply, the calipers used to

determine the balance of equities does not drive toward this result.

The parallel situation under social security involves the termination

of social security disability payments, where once again the adminis-

trative procedures involved had elaborate pre-termination procedures

without benefi t of a full pre-termination hearing. It is an open question

whether the loss of benefi ts counts more for a welfare recipient than a

disabled person, but in Mathews v. Eldridge,69 the Court used a three-part

balancing test which resembles the balancing of equities in private law:

[F]irst, the private interest that will be affected by the offi cial action; sec- ond, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, fi nally, the Government’s interest, including the function involved and the fi scal and administrative burdens that the additional or substitute procedural requirement would entail.70

In the end, Mathews isolated Goldberg, by holding that welfare termi-

nation proceedings are more draconian than the loss of disability bene-

fi ts, because the former termination is based on “fi nancial need” while

disability benefi ts are not. Yet the entire distinction seems fragile beyond

belief given that most people with disabilities have fi nancial needs as

well. Therefore, Mathews should be read as a gentle repudiation of Gold-

berg, which itself does not seem deserving of continued support even in

the restricted area of welfare benefi ts.

Taken as a whole, this brief survey of procedural due process by and

large shows the retention of classical liberal principles throughout an

area in which the dangers of the use of state power are greatest. Consis-

tent with that theory, the procedural protections should be the strongest

when the state seeks to deprive individuals of life, liberty, or property,

which it is the purpose of the government to protect. That protection is

also greatest in those cases, as with the issuance of permits and licenses,

where the state in the exercise of its monopoly power is obliged to treat

all persons in a reasonable and nondiscriminatory fashion. The claims

for constitutional protection are weakest when the government func-

tions in a competitive market or supplies benefi ts to individuals that it is

not obliged to do, as in cases of welfare and social security benefi ts. The

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336 Individual Rights: Property, Contract, and Liberty

correspondence between general theory and legal results holds quite

strong in this area, with the notable exception being Goldberg v. Kelly,

which is one case in which the progressive mindset has infl uenced for

the worse the overall direction of the law. That progressive infl uence has

had far greater effects in many substantive areas that involve traditional

concerns with liberty and property, as the next chapter suggests.

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Freedom of Contract

IN THE DOMAIN of negative rights, the initial constitutional forays had to do with property rights and economic liberties. Historically, the mag- nitude of the shift in political and constitutional orientation between the

(largely) classical liberal and the (largely) progressive view is captured

in one critical fl ip-fl op. Roughly speaking, economic liberties, and to

a lesser extent property rights, received strong protection in the pre-

1937 era and far weaker protection thereafter. Personal rights travel the

reverse track from weak protection before the New Deal transformation

to stronger protection thereafter. In both settings, the interplay between

the scope of the basic right and the scope of the justifi cation tells the tale.

It is worth tracing the journeys in broad outline. This chapter looks at

freedom of contract; the next chapter looks at takings of private property.

Freedom of Contract, Then and Now

Classical liberal theory contains no limiting principle that accounts for a

categorical difference between economic and personal rights. The basic

rules speak of strong autonomy and property rights alike, which form

the bases for voluntary transactions initiated for mutual gain. Subjec-

tive estimations of value are what drive voluntary exchange. The stan-

dard contract theory leaves it for the parties to decide on the goods or

services that constitute part of the exchange, and thereafter the price,

terms, and conditions on which the exchange takes place. That theory

takes the same view toward noneconomic associational matters dealing

with the formation of families, partnerships, churches, and the like. The

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338 Individual Rights: Property, Contract, and Liberty

subdivisions within the grand theory—sales, mortgages, partnerships,

leases, employment—only mark out specialized areas to aid in setting

default provisions to fi ll in the terms of contracts, some of which have

been left unstated (e.g., implied warranties on the quality of goods sold).

Freedom of contract in classical liberal theory thus becomes a uni-

versal ideal that does not turn on content-based norms. The only limita-

tions that matter deal with two issues, both of which afford police power

justifi cations for regulation: fi rst, fraud and other misconduct in forming

the agreement and second, adverse effects on third parties, as with con-

spiracies to commit crimes, raise prices, or organize cartels. Otherwise,

to the classical liberal, the terms of the contract were left for the parties

to devise.

Historically, however, matters were never so tidy. Economic liberty

was strongly (if imperfectly) protected until the 1937 Supreme Court

transformation. Thus, the old Supreme Court cases supported competi-

tion over both government and private monopolies, even if they could

not formally explain why. Health and safety were construed narrowly

to strike down anticompetitive legislation that often bore heaviest on

persons with little political power. Under this paradigm, a maximum

hours law for bakers was rejected as an infringement of basic liberty in

the (in)famous 1905 decision of Lochner v. New York.1

The old Court was right and the modern critics are wrong. Doctrin-

ally, two moves drove the Lochner invalidation of the New York maxi-

mum hours law. The fi rst was a broad reading of liberty under the Due

Process Clause of the Fourteenth Amendment.2 That move was fi rst

accomplished by Justice Rufus Peckham in the 1897 decision in Allgeyer

v. Louisiana:

The liberty mentioned in that [Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.3

The second stage of the Lochner argument treated the New York

law as a “labor” statute intended to disrupt competition outside the

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Freedom of Contract 339

legitimate police power interest in safety and health. That conclusion

has been strongly attacked, but Justice Peckham surely had the better

argument. The hour restrictions in question were limited only to those

types of bakers who were directly competing with union bakers, not

those in other lines that might be subject to the same health and safety

risks. In Lochner, the union bakers worked a night and a morning shift,

both of which could meet the ten-hour restrictions. Lochner’s bakers

worked longer hours, but slept in separate quarters on the premises

between their evening and morning shifts, which accounted for their

long hours. None of the bakers complained about the arrangement in

what was, after all, a criminal prosecution.

This facially neutral statute thus had a disparate impact on two

competitive forms of production. The World Trade Organization today

is on the lookout for protectionist legislation or administrative actions

that masquerade as health statutes.4 Justice Peckham anticipated that

approach when courts had trouble getting hard evidence on the slip-

pery question of legislative motivation. Justice John Marshall Harlan’s

dissent stressed genuine health issues in bakeries over time and around

the world, but did not examine either the structure of this statute or

the institutional context that surrounded the legislation. Justice Oliver

Wendell Holmes’s lone dissent merely asserted that the law could be

justifi ed on grounds of health.

The rival progressive view attacked both halves of the classical lib-

eral synthesis. Under the progressive view, “liberty” in the Fourteenth

Amendment only applied to incarceration and other restrictions on an

individual’s physical movement.5 That view also gave a broad read-

ing to the police power by rejecting Justice Peckham’s four-part test in

favor of a position that allowed the state to interfere with market forces

to equalize the vast disparities of wealth between corporate employ-

ers and their individual employees. Within the classical legal tradition,

the subsequent decisions in Adair v. United States6 and Coppage v. Kansas,7

which both involved striking down statutes that required employers to

bargain collectively with workers, were easy results, however contrary

they are to modern U.S. labor policy. At this point, the lurking health

issues in Lochner were gone, removing any police power counterweight

to freedom of contract. Justice Mahlon Pitney in Coppage did not treat

the rejection of collective bargaining as a matter of partisan advantage,

but rightly concluded that in all regimes of private property and freedom

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340 Individual Rights: Property, Contract, and Liberty

of contract, “the contract is made to the very end that each may gain

something that he needs or desires more urgently than that which he

proposes to give in exchange.”8 These exchanges for mutual gain often

lead to greater disparities in wealth, while at the same time generating

an overall social improvement in which the gains are shared by all par-

ties to the transaction.

Justice Pitney’s position was far preferable to Justice Holmes’s view

in dissent. Justice Holmes was evidently ambivalent about the wisdom

of this labor legislation, but thought that the question was not for him

to decide. He therefore would have sustained the statutes because work-

men could think the new arrangement “fair,” whether or not it led to

mutual gains. He thus insisted that the scheme “may be enforced by

law in order to establish the equality of position between the parties in

which liberty of contract begins.”9 But this elegant formulation conceals

an economic blunder by ignoring the simple point that mutual benefi ts

arise from voluntary exchanges no matter how great the initial wealth

differentials may be. Socially, why would we say that the only contracts

that are allowed are those that give workers suffi cient benefi ts to over-

come some disparity? Individually, why would a poor person enter into

any agreement that left him systematically worse off? Nor, of course, can

any labor statute equalize either wealth or bargaining power. A labor

statute can, however, give a union a monopoly position by imposing a

duty to bargain on the company, only to compound the social losses by

imposing higher administrative costs, yielding lower output overall. All

too often the greatest union victories turn out to be the seeds of their

long-term decline. The United Auto Workers secured hugely favorable

contracts with Chrysler, Ford, and General Motors in 1979, only to lose

over 75 percent of its membership—1.53 million members in 1979 to

701,818 in 2001, to 382,500 members in 2012—after reaching a low of

355,000 members in 2009.10

Justice Holmes’s argument encapsulated the fundamental confusion

of all progressive thinkers who equate large fi rm size with market power

(which, if present, could be handled under the antitrust laws that the

classical liberal judges, including Justice Peckham, sustained).11 Large

corporations that offer lower salaries and inferior working conditions

won’t be able to compete against more effi cient, smaller competitors.

But large corporations, with their extensive demand for labor, will tend

to push the demand curves outward, thereby raising overall wages. The

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Freedom of Contract 341

historical movement of wages and hours tracked this neoclassical view.

Wages moved up and hours moved downward throughout this period

as productivity improved and income rose. The picture was wholly con-

sistent with the simple rules of supply and demand.12

Nonetheless, the progressive juggernaut counted among its suc-

cesses the unanimous 1908 Supreme Court decision in Muller v. Ore-

gon,13 written by the infl uential conservative justice, David J. Brewer.

Muller upheld a maximum hours statute that applied only to women, on

the grounds that the delicate condition of women required specialized

treatment.14 The result may well have been attributed to the so-called

Brandeis brief that offered a “scientifi c” survey of the existing literature

on the subject. In actuality, the brief was little more than a disorganized

recitation of countless public reports in support of the position, offered

without a shred of independent analysis.15 The result of this form of pro-

tectionism was of course to drive women out of markets in which they

had previously been able to successfully compete. Kurt Muller “appar-

ently fi red” all of his female workers, only to replace them with Chi-

nese males.16 The passage of time has this irony. The Brandeis position

on the need for special legislative protection for women has few sup-

porters today. These statutes do not protect women, but exclude them

from gainful occupations. What passed as advanced science in 1908 now

counts as a per se form of sex discrimination that fails under modern

readings of the Equal Protection Clause.17

Nonetheless, the die was cast. By the 1930s, the classical liberal

position was in disarray. The Railway Labor Act of 1926,18 the Norris-

LaGuardia Act of 1932,19 the National Labor Relations Act of 1935, and

the Fair Labor Standards Act of 193820 all represented massive interfer-

ences in labor markets that received the blessing of the Supreme Court,

on grounds similar to those stated in the early Justice Holmes dissents.

The Fair Labor Standards Act of 1938 deals with minimum wage, maxi-

mum hours, and overtime. In addressing its constitutionality under the

Commerce Clause in United States v. Darby,21 Justice Stone took at face

value the congressional claim that the FLSA was needed “to prevent the

use of interstate commerce as the means of competition in the distribu-

tion of goods so produced, and as the means of spreading and perpetuat-

ing such substandard labor conditions among the workers of the several

states.” Just how competition among fi rms could decrease the standard

of working conditions—when just the opposite is the expected economic

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342 Individual Rights: Property, Contract, and Liberty

result—has never been explained, then or now. The narrow defi nition

of liberty and the broad account of the police power had done their

jobs. The higher unemployment and disastrous breakdowns in heavily

unionized industries—such as with automobiles and steel—were a leg-

acy for another day.

Rate Regulation

It is also possible to trace out a similar arc for the protection of pri-

vate property against confi scation under both the Takings and the Due

Process Clauses of the Constitution. The basic problem with a so-called

natural monopoly is that over the relevant portion of the supply curve,

a single fi rm can add on additional units of output at a lower cost than

a new entrant could supply them. This declining average-cost model

means that a single fi rm is the most effi cient producer. Yet at the same

time, that producer has a strong incentive to raise its prices to monopoly

levels. The regulation of natural monopolies could, in the short run,

tend to reduce these costs to a competitive level, even at the risk of sac-

rifi cing innovation in the long run.22

The situation seemed to cry out for regulation, but the issue was

how the new rates were to be set. Rate regulation is justifi ed (uneasily)

in classical liberal terms as a means to protect consumers against monop-

olistic expropriation. Yet unlimited rate regulation exposed railroads to

the confi scation of the capital they had to invest before beginning oper-

ations. Low rates that covered the incremental cost of services would

mean that it benefi ted a railroad to stay in business even if it could not

recover its capital over the life of the investment. The various formulas

for counteracting that risk were varied and complex. Sometimes pub-

lic utility commissions scrutinized expenditures to see that they were

necessary for operations; if so, under the rule in the 1898 decision in

Smyth v. Ames, the rate of return had to be higher to compensate for the

additional risks.23 In dealing with this issue, the Court in Board of Public

Utility Commissioners v. New York Telephone24 insisted that all the accounts

be balanced on an annualized basis, to prevent the ruse of cutting rates

in one period on the dubious promise that they could be made up in the

next. “Profi ts of the past cannot be used to sustain confi scatory rates for

the future.”25

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Freedom of Contract 343

In choosing rates, however, the Court by 1944 was prepared to

allow the use of an alternative methodology that required the ratepay-

ers to bear the risk of unwise investments. But that relaxation came only

at the price of a lower rate of return, but one which was still suffi cient

to allow, in Justice Douglas’s famous formulation in Federal Power Com-

mission v. Hope Natural Gas, the regulated utility to “maintain its credit”

and “attract capital” needed for it to remain in business.26 So long there-

fore as the utility can maintain its bottom line, the Court should not

scrutinize the calculations line by line to correct any errors made in the

overall calculations.

In dealing with this issue, the justices before 1937 were aware that

more was at stake in setting rates than the overall rate of return to the

regulated industry. Also at stake were the relative prices charged to dif-

ferent customer groups, where the risk was that favorable rates to one

group of customers could result in a dangerous form of cross-subsidi-

zation, which would allow various interest groups to foist the costs of

their businesses onto others. The adverse economic consequence of that

political intrigue is the distortion of the relative price of goods subject

to state regulation. Thus in 1899 the Court through Justice Peckham

struck down a Michigan statute that required the railroad to issue below

market price one-thousand-mile tickets to preferred customers. “If the

general power [to regulate] exist[s], then the legislature can direct the

company to charge smaller rates for clergymen or doctors, for lawyers

or farmers or school teachers, for excursions, for church conventions,

political conventions, or for [anyone else].”27 That theme was echoed in

1915. The Court, in Northern Pacifi c Railway Co. v. North Dakota,28 made

clear the limits of regulation: “But, broad as is the power of regulation,

the State does not enjoy the freedom of an owner. . . . If [a common

carrier] has held itself out as a carrier of passengers only, it cannot be

compelled to carry freight. . . . In such a case, it would be no answer to

say that the carrier obtains from its entire intrastate business a return

as to the suffi ciency of which in the aggregate it is not entitled to com-

plain.”29 In the companion case of Norfolk & Western v. Conley,30 the Court

found that to subsidize rates for passengers’ freight with unduly high

rates on other freight was beyond the permissible limits of regulation by

the state, given the distortions that take place between the two services.

In all these cases, the ideal is to make sure that each line of business

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344 Individual Rights: Property, Contract, and Liberty

stands on its own bottom, so that it becomes impermissible, for example,

to lower rates in a regulated industry on the ground that the fi rm could

make up its losses on unregulated but profi table businesses. As Justice

Holmes wrote in Brooks-Scanlon Co. v. Railroad Commission, “The plaintiff

may be making money from its sawmill and lumber business, but it no

more can be compelled to spend that than it can be compelled to spend

any other money to maintain a railroad for the benefi t of others who do

not care to pay for it.”31

This model of rate regulation has been compromised in the years

since the Second World War. Thus in the 1953 decision in Baltimore &

Ohio Railway, railroad rates set by the Interstate Commerce Commission

were challenged on the ground that they required the B & O Railroad

to carry fresh vegetables from Texas at reduced rates that did not allow

them to recover their costs. The majority of the Court followed Jus-

tice Black when he threw up his hands saying that the matter of rate

regulation over a complex network is so multifaceted that it becomes

improper to look at a single rate in isolation. Justice Douglas, who had

written the Court’s decision in Hope Natural Gas, refused to rest content

with the bottom-line formula of that case. Instead, he cited back to Nor-

folk & Western for the correct proposition that excessive discretion in the

choice of rates could lead to a distortion of competition between rival

markets, which indeed happened in this case under a rate structure that

subsidized Texas produce at the expense of rivals in Arizona, Califor-

nia, and New Mexico. It was critical to allow the railroads to challenge

those rates, moreover, because under settled rate regulation law, the

disadvantaged producers had no standing to deal with the matter, as

only the direct subjects of the rate regulation had standing to challenge

the rates.32

Most of the rate cases in-between tended to move toward the ratio-

nal basis side of the spectrum, by allowing rates to be set in the aggregate

in ways that did not pay suffi cient attention to the risks of cross-subsi-

dies. Thus in the Permian Basin Area Rate Cases,33 the Court upheld the

Federal Power Commission’s extensive discretion over the way in which

rates were allocated across different fi rms operating in different por-

tions of the market. For the most part, however, the Court in the mod-

ern era has waded only infrequently into matters of rate regulation.

Most signifi cantly in Duquesne Light Co. v. Barasch, Chief Justice Rehn-

quist adopted a defensible synthesis by letting public utility commissions

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Freedom of Contract 345

adopt the Smyth v. Ames or the Hope Natural Gas Standard, so long as it

followed a consistent methodology.34 The cracks in that synthesis were

evident, however, insofar as Duquesne Light allowed a retroactive disal-

lowance of previously approved rates when there was a change in legis-

lative policy.35 Retroactivity is the sign of an unprincipled expansion of

government power, which Rehnquist justifi ed on the ground that the

overall allowable rate of return under Hope Natural Gas was above the

permissible level. But that logic misses the key importance of getting

each regulatory decision right, so as to avoid rate instability that opens

administrative agencies to political intrigue by introducing the kind of

cross-subsidies that cannot survive in a competitive market. Indeed that

logic, if extended, would allow a court to reduce the gains that a seller

has on a contract of sale so long as the money paid gives a reasonable

rate of return. It is easy to police retroactivity and wise to do so.

The far larger deviation from classical liberal principles arose in the

ratemaking cases under the Telecommunications Act of 1996,36 which

imposed an elaborate regime of forced cooperation to allow new carriers

to enter into competition with the incumbent Bell Operating Compa-

nies. Under the act, each of the new carriers had an exclusive franchise

in its own territory under the litigation that broke up AT&T in 1982.37

The statute was then intended to force the incumbent carriers either to

interconnect with new entrants or to sell off pieces of their network to

the newcomers at prices determined by the Federal Communications

Commission (FCC). Those prices were based solely on “forward-look-

ing” costs—technically called Total Element Long-Run Incremental Cost

(TELRIC). That formulation assumed, however, that the network in

place had adopted the best technology at that moment. In effect, the

inevitable risk of technical deterioration in system value, from its incep-

tion to the time of ratemaking, fell on the incumbent carrier. Thus, if

all the elements were sold off to new carriers, the incumbent carrier

could never recover its costs of putting the system into place over its

useful life. The propriety of the cost recovery rule never faced the con-

stitutional challenge it deserved because the Supreme Court showed

complete deference to the FCC regulations as a matter of administrative

law. Thus, the FCC did not have to set rates based on these “historical”

costs in the absence of a clear legislative mandate.38 That same deference

would surely have been given under the rational basis test if a constitu-

tional challenge had been raised.

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346 Individual Rights: Property, Contract, and Liberty

Here, the deviation from classical liberal principles is far more pro-

found than it was in the earlier decisions, which paired a large rate

base with a low rate of return and a small rate base with a high rate

of return. In this context, the FCC imposed on the incumbent carriers

the worst of both worlds by setting a narrow rate base with a low rate

of return—the one impermissible combination. There is no argument

for administrative deference in the face of clear conceptual error, even

if it should be allowed in those issues on which it is hard to get clear

answers, such as the allocation of joint costs between two different ser-

vices that operate off a common platform. All too often, however, the

Supreme Court treats all regulatory judgments as if they were cut from

the same cloth. It is regrettable how easy it is to stray from sound con-

stitutional principles by an indifference to technical issues of lasting

importance—a problem that is repeated yet again in the takings cases

considered in the next chapter.

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Takings, Physical and Regulatory

THE DIFFERENCES between the classical liberal and progressive positions are also evident whenever government takes or regulates private property, most notably, but not exclusively, in the context of land use.

The operative constitutional provision provides, simply enough: “nor

shall private property be taken for public use, without just compen-

sation.”1 It should come as no surprise that this provision lies at the

heart of the dispute between the classical liberal and progressive views

of government. Strong property rights operate as a constraint against

government power, for so long as the government must compensate

when property is taken, its distinctive government power of eminent

domain is hedged in by a price constraint that forces governments at

all levels to compare the value of the property taken with the public

resources needed to acquire it. As the price for condemnations goes up,

the frequency of these condemnations goes down as well. Indeed, with

takings, as with torts, the chief gain from strong sanctions lies not in the

compensation that government must supply after the fact, but in the

incentive that the just compensation imposes on both federal and state

governments not to condemn or regulate at all.

The Original Understanding of the Takings Clause

This system will only work well if the courts articulate clear and pow-

erful rules to govern this critical use of government power. Once again,

it is no accident that the choice of the constitutional standard of review

largely determines the effectiveness of this sanction on ineffi cient or

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348 Individual Rights: Property, Contract, and Liberty

excessive takings. It is therefore no surprise that when the Supreme

Court invalidates a government initiative, it typically starts with a confi -

dent reiteration of this proposition from Armstrong v. United States:2

The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Govern- ment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Justice Hugo Black applied this principle to require the government

to compensate a subcontractor when it dissolved its valid lien that was

given under Maine law for materials provided by a subcontractor for

construction of navy personnel boats. The United States dissolved the

lien by moving the unfi nished boats to out-of-state naval shipyards.

Why should the subcontractor foot the bill for assisting national defense

that supplies him no special benefi t? The Armstrong principle has strong

constitutional legs. Virtually every property-protective decision cites the

Armstrong proposition without qualifi cation. In contrast, every decision

that rejects property rights claims soft soaps the Armstrong principle by

announcing, regrettably, that fi xed rules must yield to “ad hoc” deter-

minations that require the exercise of sound political discretion, which

is then insulated from judicial review under the rational basis test.3 In

many cases, the line drawn is between those takings that involve a phys-

ical occupation of land and those that involve a regulation of how a

property owner may use or dispose of that property. Under current law,

the former are subject to examination under a strict scrutiny standard,

while the latter are subject to the far more forgiving rational basis test.

The key question in this area of law is how this distinction maps

onto the takings law proper. One historical reading of the Takings Clause,

long championed by William Michael Treanor, insists that a close study

of the historical record shows that the Takings Clause “required com-

pensation when the government physically took private property, but

not when government regulations limited the ways in which property

could be used.”4 Before 1787, the books contained many statutory provi-

sions that offer limited protection against the taking of certain protected

types of tangible property. Thus a provision of the Massachusetts Body

of Liberties from 1641 applies only to “Cattel or goods of what kinde

soever.”5 Similarly a provision drafted by John Locke for the South Car-

olina Constitution only provided for protection against the seizure of

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Takings, Physical and Regulatory 349

“real property.”6 But as is the case with the Due Process Clause,7 the

Takings Clause replaces references to specifi c types of property with the

broader protection of “private property”—which generally covers prop-

erty interests of all types. On this score, the broader account of property

offered in John Locke’s Second Treatise, embracing “lives, liberties and

estates,” maps far better onto the Takings Clause than these earlier more

asset-specifi c provisions.

One strength of the broader provision is that it maps onto a central

feature of the Anglo-American property system, which recognizes par-

tial interests in private property that fall short of outright, permanent,

and perpetual ownership. Accordingly, the standard account of private

property has both a physical and legal dimension. On the former, the

boundaries of land go from the center of the earth to the top of the

heavens, so no physical element is left without an owner. The incidents

of ownership over that land include the right to exclude all others from

its use, the right to use the land consistent with the like rights of neigh-

bors, and the right to dispose of the land in whole or in part to any

other person on whatever terms and conditions seem fi t—subject, of

course, to the same limitations on freedom of contract developed in the

previous chapter. More critically, the system also recognizes that it is

possible to create lesser interests in land, some of which are possessory,

like life estates and leases, and others of which can only vest in the

future, like reversions and remainders of different types. In addition, the

property system develops extensive rules to govern servitudes, including

easements, which make permissible entry into the land of others that

would otherwise be a trespass, and covenants which force individuals

to abstain from some particular use or development of land that they

hold as a matter of ordinary common law property (e.g., covenants to

prevent the obstruction of a view).

Conceptually the great vice of the Treanor position is that it assumes

that none of the divided interests long protected under the private law

receive any constitutional protection. Indeed, it is not clear that the

materialman’s lien that was dissolved in Armstrong counts as property

under Treanor’s defi nition. Rather, under Treanor’s view, it appears that

the government does not take property in cases where it forbids the

owner from entering the property without choosing to enter that same

property itself, because such aggressive regulation does not count as a

case where the government “physically took” property. Yet that result

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350 Individual Rights: Property, Contract, and Liberty

is wholly inconsistent with the general anticircumvention principle,

whereby close substitutes for takings should be treated as such in order

to make sure that government actors do not break free of the fetters

designed to bind them.8 Absolute exclusion is “tantamount” to a physi-

cal taking, even if the government never sets foot on the property.

Treanor is aware that the historical evidence offers no single provi-

sion that has the breadth of the coverage found in the Takings Clause.

He therefore seeks to shrink the gap between the historical record and

his own narrow defi nition of physical takings by resort to two promi-

nent strands of constitutional theory. The fi rst is the “political process”

theories of John Ely, developed in his well-known 1980 constitutional

masterpiece, Democracy and Distrust: A Theory of Judicial Review. The sec-

ond is found in the “fi delity in translation theories” of Lawrence Lessig.9

Ely’s basic claim is that judicial review is most appropriate when

breakdowns of the political process are most likely. Treanor claims that

this is far greater in cases of actual occupation of property rather than in

cases where only legal restrictions are imposed on its use or disposition.

Under this approach, the target is the skewed substantive outcomes that

are typically the products of skewed processes, which result in implicit

or explicit wealth transfers from one group to another.10 A simple mod-

ern example is a general master development plan that zones one parcel

industrial and the one across the highway agricultural, thereby increas-

ing the value of the fi rst plot at the expense of the second. Actions of that

sort are a constant peril to good government, and classical liberal theory

seeks to rein them in without destroying the power of government to

discharge its essential functions. But why is the likelihood of the break-

down of the political process confi ned to the occupation of property, and

not cases of regulation? To be sure, there may be fewer cases in which

the permanent occupation of private property can be justifi ed under the

sound rules of limited government. But there are surely some. It was

commonplace during colonial times, as Treanor notes, for governments

to take land without paying any cash compensation to its owner.11 But

the land taken was vacant, and the purpose was the construction of

public works, such as building a public highway. The explanation for

the practice was supplied by Treanor: “As historian Forrest McDonald

has observed of this practice, ‘New England colonial governments com-

pensated landowners for taking part of their land by letting them keep

the remainder of their land.’”12 There is nothing in the Constitution

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Takings, Physical and Regulatory 351

requiring that all compensation be in cash. In-kind compensation does

the job as well. Access to markets was key for farmers and miners. The

surrender of some land increased the value of the retained land, so that

the landowner was better off with smaller holdings made more valu-

able by their connection to the highway system. Why require explicit

compensation when the in-kind compensation has made the landowner

better off than before?

An identical conceptual frame can be used to deal with the land use

regulations of modern times that Treanor does not discuss. In this con-

text, the elaborate system of reciprocal covenants over a common may

also provide the in-kind compensation that makes the payment of cash

unnecessary and wasteful. But by the same token, the takings analysis

of regulation also fl ips over for regulations that impose large losses on

particular owners who receive only limited benefi ts in return. The ques-

tion of whether these regulations work for mutual advantage depends

critically on the level of judicial oversight supplied. Let that be lax and

political forces will result in massive wealth transfers. Let it be assiduous,

and the land regulations are far more likely to produce balanced gains

across the board. There is, in principle, no reason why the taking of a

restrictive covenant, worth millions, should be allowed without com-

pensation when the related form of servitude, the possessory easement,

requires full compensation from the state. Unfortunately, Treanor offers

no explanation as to how Ely’s political process story fails to map onto

the distinction between physical and regulatory takings, but applies to

both equally.

The translation approach from Lessig fares no better. The object of

this inquiry is whether changed political circumstances allow the updat-

ing of original understandings to extend the scope of a particular clause.

Treanor, following Lessig, notes, “contemporary takings jurisprudence

means that courts today should protect those whose property interests

are, given modern political realities, particularly unlikely to receive fair

consideration from majoritarian decisionmakers.”13 But at this point,

Lessig’s effort to explain why legal norms should evolve is redundant

because it covers the precise ground of the anticircumvention principle,

which deals with just that risk. Indeed, Lessig’s translation line is likely to

yield inferior results because it purportedly depends on a global under-

standing of “modern political realities,” which could easily vary from time

to time and place to place. Again that ex ante evaluation of generalized

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352 Individual Rights: Property, Contract, and Liberty

probabilities and tendencies serves no useful purpose when it is possible,

after the fact in any individual case, to make an assessment of whether a

particular taking has been met with compensation, express or implied, or

justifi ed under some conception of the police power. I have long cham-

pioned a consciously ahistorical application of the Takings Clause to reg-

ulatory issues. Oddly enough that approach makes more sense of the

historical record than Treanor’s self-conscious appeal to history.

The Classical Liberal Account of the Takings Clause

Philosophical Foundations

At this point, the key challenge is to give a sound explication of the

clause that takes into account both the issues of circumvention on the

one hand and police power justifi cations on the other. I have already

conducted two extensive analyses of these problems in my books Tak-

ings14 and Supreme Neglect,15 so that it is not necessary to cite chapter and

verse for each of the arguments developed in this section. In undertaking

this task, the key insight is never to dismiss the insights of the Lockean

tradition as an exercise in “possessive individualism” that ignores the

effects of property rights on the larger fabric of society.16 Classical lib-

eralism is not a theory that glorifi es private claims of personal or politi-

cal advantage at the expense of others. To the contrary, it always seeks

to channel government action where it is likely to do more good than

harm, in part by aligning incentives so that the only way that political

actors can advance their own self-interest is by undertaking actions that

on balance improve the overall level of social welfare.

Nuisances and Land Use Regulation

This awareness of social consequence bears heavily on the use rights

incident to private property. No system of private property lets a person

do whatever he will with his land, come hell or high water. From Roman

times forward, it has been recognized that limits on land use, uniformly

applied, can improve the overall value of all parcels.17 Clearly, allowing

people to enter and use the land of others makes all private property

collectively owned. Equally important, any system of private property

necessarily restrains the commission of nuisances—usually non-trespas-

sory invasions of waste, pollution, noise, and odors—that emanate from

one person’s land onto another’s. The principle of long-run reciprocal

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advantage is best satisfi ed if all owners are presumptively prohibited

from engaging in these activities. Here is how we know: when any

single owner creates a subdivision, his optimal strategy is to attach a

set of rights and duties to each parcel in ways that maximize the total

sale value from all purchasers. You can examine a million subdivision

agreements, all of which will vary in their restrictions on size, height,

setbacks, and exterior design. But not one subdivision agreement will

relax the common law prohibition against nuisance, so powerful is its

contribution to effective land use regulation. All individuals in a state of

nature are better off if they relinquish these rights to damage others in

exchange for like protection for themselves.

The major function of the police power is to give the state the

means to control these abuses by taking or regulating property without

paying any compensation at all. Just that result is proper in disarming a

criminal who threatens repeated violence or in abating a nuisance that

threatens by fi lth and odors to invade the property of his neighbor’s land.

Reading the same ubiquitous police power into the Takings Clause is a

sound interpretive step that adds yet another essential piece to the over-

all picture, by allowing the government to adopt programs that aid in

the effective enforcement of private rights when the high costs of private

actions make them insuffi cient to deter or eliminate wrongful behavior.

Many nuisances have multiple sources and/or multiple victims—think

of emissions of exhaust from cars or methane gas from animals. Private

rights of action often prove too cumbersome relative to direct control

of these various forms of pollution by administrative regulation. At this

point, the constitutional analysis has both means and ends dimensions.

The proper ends under the police power are those of the private law

of nuisance, no more and no less. The means are regulations that fi t

well with the chosen ends, by being neither overbroad nor underinclu-

sive. It is not acceptable, either politically or constitutionally, to limit the

pollution from one factory while allowing its next-door competitor to

operate free of legal restraint. It is instead necessary to make sure that

differential systems of enforcement do not result in the hidden wealth

transfers that are prohibited under the Takings Clause. The evenhanded

enforcement of the nuisance law is an essential ingredient of the proper

constitutional plan.

It is mistaken, however, to think that the controls on these nuisances

constitute the sole restrictions that improve real estate values across the

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354 Individual Rights: Property, Contract, and Liberty

board. In addition, the common law has developed a second class of

restrictions dealing with what can be called noninvasive nuisances.18

For example, no one can dig out his land to remove the lateral support

of neighboring lands. In some instances, spite fences, erected solely to

block a neighbor’s view, are subject to action. But these cases are excep-

tional. For the most part, any additional restrictions needed to maximize

land values are so varied that no one-size-fi ts-all prescription solves all

problems. Accordingly, the standard solution allows, especially in the

case of lands slated for subdivision, additional restrictive covenants that

take into account the particular features of topography and design for

each given parcel. These restrictions are usually made reciprocal across

all owners. They also “run” with the land so that all successive owners

are bound and benefi ted by the same covenants. One key element is to

make sure that the value of the various holdings is constant regardless of

the time that any particular owner acquires his or her interest.

What makes land use so diffi cult is that virtually every act done

by one owner has some impact, positive or negative, on others. The

common law rules had to be alert, therefore, to the risk that restrictions

preventing small external harms could, on average, block land uses with

high value to the owner. Hence, wisely missing from the common law

list of nuisances are certain common activities: blocking views of neigh-

bors, casting shadows, using bad design, or running a small business in

a residential neighborhood. It hardly makes sense to impose uniform

restrictions that cost each landowner $1,000 while providing only $100

in benefi ts to all neighbors. At that point, any uniform imposition only

magnifi es the social losses stemming from each individual application

of the general rule. In the aggregate, these massive prohibitions cost far

more than they are worth. If I cannot build to block your view, you can-

not build to block mine. To be sure, the two views may not be of equal

value, but, even when that is true, it only establishes that the gains that

each party has in the original position are not equal. It does not make

out a case for transfer payments between us. In both cases, each of us is

better off with equal rights of land development than with none. So the

original use rights remain. Any two (or more) parties that wish to alter

the balance between them are free to do so by entering into restrictive

covenants, which again run with the land, to pick up the slack.

This basic principle, moreover, applies to various instances protect-

ing habitat and wetlands from private development. There is little doubt

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Takings, Physical and Regulatory 355

that dedicating lands to these activities counts as a taking of land for a

public use. But it does not justify, as is commonly asserted, the regula-

tion of these lands under the police power such that no compensation

is provided to offset the losses that its restrictions impose on land use.

The basic test that drives this result asks whether all the neighbors of

a particular plot of land could employ the common law of nuisance to

enjoin the use of a wetland or sensitive habitat, to which the answer

has always been no. If not then the state cannot wield its power to force

this change in land use unless it is prepared to pay its way. The failure

to observe this distinction has led to serious mistakes, for example, in

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,19 which

expanded the meaning of “take,” defi ned in the Endangered Species Act

to include actions that harass, harm, pursue, wound, or kill.20 The most

protean term on that list is “harm,” which the regulations of the secre-

tary of the interior defi ned to include “signifi cant habitat modifi cation or

degradation where it actually kills or injures wildlife.”21

Unfortunately, this defi nition tortures the meaning of “harm,” by

treating the failure to supply a benefi t—prevention of “degradation” of

habitat—as the equivalent of infl icting a harm. That equation is hope-

lessly broad. By its lights, I now harm all individuals to whom I do not

at this instant lend a helping hand. By the same token, I also benefi t

all those individuals whom I now choose not to attack. The broad defi -

nitions attached to both harms and benefi ts are operative in all cases

against all persons. The number of potential actions that it implies is

beyond reckoning. The terms “harm” and “benefi t” only have currency

when it is possible at any given time to be in a situation where people

are in a state of repose where they neither harm nor benefi t each other.

Cases of tort or restitution damages cannot be inevitable regardless of

what people do.

More generally, our property baselines have to be defi ned, as they

have always been defi ned, to make the necessity for legal intervention

the exception and not the rule. The notions of harms and benefi ts make

sense therefore only when defi ned in reference to our well-understood

system of property rights. It is easy to say that any person who develops

his own land may “harm” the environment, just as those actions may

under a different understanding “benefi t” others. Yet that conception

of environmental harm is beside the point. Just as I do not harm any

other person when I exclude him from my land, thus I do not harm the

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local environmental group when I prohibit it from using my garden for

housing or feeding its animals, any more than I do from prohibiting it

from using my phone for organizing its fundraising campaign. The core

notion of harm relevant to legal disputes involves the use of force or

fraud against others, and that notion does not include using my property

for my own benefi t. Private owners have done no wrong so there is no

reason for them to be burdened with an obligation to “minimize and

mitigate” their “impact” on endangered species,22 as the law commonly

requires, whenever they seek to use or develop their own land without

creating a nuisance to others in the senses already developed. In these

cases, the major political risk is that the government will overclaim pri-

vate resources that have far less value in public hands than they do in

private ones. Imposing a general environmental easement, which sub-

jects all development to a potential mitigation obligation, lets the gov-

ernment operate as if there were no budget or scarcity restraints on their

behavior. It also encourages perverse behavior by individuals that do pos-

sess valuable habitat, which it is in their interest to destroy if they can

do so without government knowledge—“shoot, shovel and shut up.”23

Keep the traditional system of property rights in place, and these same

landowners will develop the habitat so that they can sell it off to any

government agency or private environmental group that is interested in

preservation. Follow these rules, and the well-defi ned and exhaustive

property rights are fl exible enough to allow one piece of property to be

used for development and the next to be used as a nature conservancy.

Coordination, Public Use, and Just Compensation

Any protean and cooperative development can only take place, more-

over, if cooperation is possible among individuals, which is why the

right to dispose of property—by sale, mortgage, lease, or joint tenancy—

is an essential part of the overall system. Modern legal systems rely on

a current version of the Statute of Frauds to put key transactions in

writing, which can then be recorded in a centralized database, now

commonly online, open to all to keep track of the various interests cre-

ated such that potential buyers, tenants, and lenders can identify the

proper person with whom to deal. With the law of nuisance to protect

neighbors, a high velocity of voluntary exchanges produces contractual

gains between the parties without creating dislocations among strang-

ers. What’s not to like?

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Takings, Physical and Regulatory 357

To this question, the correct answer points to adverse neighbor-

hood effects that share two characteristics. First, some activities are on

net disadvantageous to the members of the community. Second, the

huge transactional problems of organizing multiple owners may make

it impossible in practice to correct the errors these activities impose by

voluntary means. The relevant situations could easily involve diffi culties

of coordination that respond to the ordinary prisoner’s dilemma game.

It is in the interest of all landowners in a given area to limit their signs

to a certain size and to mount them fl at against the wall. But if each

landowner knows that all the others follow those restrictions, it is in

his interest to erect a larger sign perpendicular to his building. Once

one person deviates from the ideal collective solution, others will follow.

Restrictive covenants between these parties are too diffi cult to negotiate,

so that a state regulation that replicates the result of the ideal contractual

system leaves everyone better off. One example is in placing signs fl ush

on building walls for all to see. Strong libertarians often have an exag-

gerated faith that human ingenuity can always overcome bargaining dif-

fi culties with clever contractual ploys. But in fact bargaining breakdown

is a pervasive feature of complex social situations. In some of these cases

the state imposes a collective solution that supplies each person with

compensation equal or greater in value to the rights surrendered. But

that outcome cannot be presumed; it must be demonstrated in particular

cases. Nothing says that implicit in-kind compensation is present when-

ever public solutions are imposed on private parties. Indeed just this

form of compensation is missing in the habitat preservation restrictions

imposed under the Endangered Species Act, which impose a concen-

trated burden on some property owners for the benefi t of everyone in

society. In these cases, the rule in Armstrong requires compensation in

order to make good on the claim that the state takes property for public

use only on the payment of just compensation.

This overall account of taking must next ask what counts as a tak-

ing for a public use. Clearly any publicly run facility like a government

building or military facility counts. Much the same can be said of private

facilities like railroads that are open to public use by all comers and

that must charge nondiscriminatory rates. Indeed, the classical concep-

tion of public use also permitted a restricted class of takings for private

use in order to overcome a serious holdout problem that could arise if,

for example, a newly discovered mine was cut off from the only rail

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358 Individual Rights: Property, Contract, and Liberty

connection by a tract of scrubland.24 In essence, state power was allowed

when high transaction costs of reassigning property rights blocked the

sensible use or assembly of land resources. That defi nition, however,

precludes the dangerous extension of that term in other situations.

The more ambitious systems of land planning cannot coexist with

any sensible public use limitation. Thus in Poletown Neighborhood Council

v. City of Detroit,25 an entire community was ripped down to make way

for a General Motors plant that never created the number of jobs that its

backers had promised. Likewise, in Hawaii Housing Association v. Midkiff,26

there was no serious holdout problem between landlord and tenant

to justify a scheme whose sole purpose was to allow sitting tenants to

use state force to require their landlords to sell, allowing the tenants to

become outright owners of the property they lived on. The test used

in that case was an extreme version of the rational basis test, holding

that any “conceivable public purpose” was suffi cient, which virtually

any government action could satisfy. That decision raised little attention

if only because the public at large does not identify with the expropria-

tion of a landlord’s interest. But in Kelo v. City of New London,27 the public

backlash was furious because the expropriation was of small individ-

ual homeowners to provide sites for a large urban renewal project that

never got off the ground. Unfortunately, New London had no clue as to

what use to make of the vacant land after the homes were razed: the

property still sits vacant today in mute testimony to the hubris of land

planners whose eyes are bigger than their stomachs.

It is examples like these then that make it imperative to keep a tight

rein on public uses lest government power be used to move resources

from A to B in ways that heighten the level of political intrigue, as par-

ticular groups vie to have the state exercise its condemnation power

in their own direction. The situation is made worse when large pub-

lic subsidies, such as the over $70 million that Connecticut showered

on the City of New London, encourage wasteful public expenditures.

These abuses remain even if full compensation is provided to landown-

ers, which did not happen in Kelo where no weight was given to the

subjective value of property to individuals who had made it clear that

they would under no circumstances place their property on the market.

Quite simply, the just compensation requirement is not a suffi cient

check on political abuse. But once a forced exchange is found to meet the

public use requirement, what form of compensation is constitutionally

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Takings, Physical and Regulatory 359

required? Sometimes that compensation is in cash, as when land is

bought to construct a post offi ce or a road. In other cases, however, the

compensation supplied is in kind, as in the cases mentioned above: the

acquisition of raw lands for highways or the imposition of some land

use restrictions, like the sign ordinance just mentioned. The older law of

trespass allowed one landowner to prevent all airplane fl ights overhead.

A rule that recognizes that every landowner will be far better off with

the benefi ts of air transportation than without it dispenses with cash

compensation, except in those cases of low overhead fl ights that create

disproportionate noise and inconvenience—where cash compensation

is, and should be, paid. Likewise, large oil and gas pools often lie under

the surface of many lands. Pooling production and guarding against

waste can leave all owners better off than they would have been if each

had drilled separately under his own land in ways that disrupted the

integrity of the oil and gas fi eld. Hence, a unitization scheme that places

a large oil fi eld under single management reduces the costs of produc-

tion while increasing overall output, generating revenues to compensate

each landowner for the loss or curtailment of drilling rights.

In sum, this system seeks to balance all the key components of a

comprehensive system of land use regulation. It succeeds in ways that a

hard-line libertarian system could not, because of that system’s refusal

to ever allow forced takings for public use, even when needed to over-

come serious holdout problems. The Constitution does not say that pri-

vate property may be taken for public use only with the consent of its

owner. It says that it may be so taken when just compensation is pro-

vided. The classical liberal theory thus invites and requires a practice of

forced exchanges, such as that developed above, which is out of place in

a pure libertarian system.

The Modern Progressive Synthesis

Modern progressive theory, of course, gives little truck to libertarian

qualms about the exercise of state power. Indeed, it lurches sharply to

the other extreme because it harbors deep suspicions about the institu-

tion of private property, whose scope it seeks to sharply truncate. The

fi rst move in the progressive counterattack narrows the defi nition of

private property, so that maximal constitutional protection is applied

only to the right to exclude, not to the rights to use, develop, or dispose

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360 Individual Rights: Property, Contract, and Liberty

of land. The second is to expand the scope of public justifi cations far

beyond the contours of the common law of nuisance. In working out its

synthesis the key distinction lies between permanent physical occupa-

tions and regulatory takings. Let the government occupy land and there

is in most instances a per se duty to compensate.28 Limit the rights to use

and dispose, and the more forgiving doctrines of rational basis take over.

There are diffi culties on both counts.

The Permanent Possession of Land

The scope of the per se compensation rule depends critically on what is

meant by the permanent possession of land. The defi nition of “perma-

nence” can operate as a powerful restriction on the rights of compen-

sation when the state takes or damages land. The equivalence of taking

by occupation and damaging by physical invasion is not one that should

resonate even on Treanor’s account of the Takings Clause. Indeed in

dealing with this issue many state constitutions make clear the equiva-

lence between the two. The Georgia Constitution speaks of the right of

persons to “take or damage [private property] upon paying or tendering

to the owner thereof just and adequate compensation.”29 The purported

equivalence rests on two simple propositions. The fi rst is that the indi-

vidual landowner scarcely worries whether he is wiped out by occu-

pation or destruction of property. Second, it should not matter to the

state whether its gains come from the destruction of the land of others

or from its occupation, which in many cases it does not care to exploit.

The issue comes to a head in the many cases in which the govern-

ment releases water in its dam control operations and causes down-

stream damage. The supposed distinction between the tort of destruction

and the permanent taking of land rests on the view that the venerable

doctrine of sovereign immunity protects against the former but not the

latter,30 such that to allow recovery, “it is at least necessary that the over-

fl ow be the direct result of the structure, and constitute an actual, per-

manent invasion of the land, amounting to an appropriation of and not

merely an injury to the property.”31

The unprincipled line between permanent occupation and tort

injury is being tested in Arkansas Game & Fish Commission v. United States,

recently decided by the Supreme Court,32 where the fl ood waters of the

United States, before they retreated, caused permanent damage to the

root systems of trees owned by the Arkansas Commission. A divided

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Takings, Physical and Regulatory 361

federal circuit panel, speaking through Judge Dyk, found that the “tem-

porary” nature of the fl ooding eliminated any case for compensation

under the established authorities.33 The Supreme Court unanimously

rejected that bright line rule on the ground that “most takings claims

turn on situation-specifi c factual inquiries,”34 without giving any real

guidance on how that inquiry should be undertaken. Sadly, both the

Federal Circuit and the Supreme Court misfi red.35 The Federal Circuit

did not explain how the distinction between permanent and temporary

takings rises to constitutional proportions. The Supreme Court remanded

the case for further hearings without offering any direction on how the

various factors should be weighed. What is needed is a third approach

under which the key test proposition is that the government should

never be able to do without compensation actions that are tortious

when done by private parties. In this context, it means that the govern-

ment cannot be enjoined from fl ooding other lands for what it regards

as a public use, but it hardly follows that it should be able to fl ood lands

of another with impunity so long as they are regarded as periodic or

episodic. It is dangerous to accept any justifi cation that the state needs

discretion to manage public resources in ways that allow it to cause

actionable harm to third parties. The whole point of the Takings Clause

is to impose limits so that the external costs of government actions are

incorporated in the decision-making calculus of public offi cials. Good

government requires a rejection of the progressive view that dams and

other public works should be free of judicial control, lest there be an

excessive level of government action. The correct approach therefore

does not seek to massage an untenable distinction. It rejects that distinc-

tion totally.

Regulatory Takings

The second half of the modern judicial synthesis grants large deference

to government actors in cases of regulatory takings. In this area, the

general skepticism about a rule-bound jurisprudence led Justice Bren-

nan to note that the broad proposition in Armstrong did not prevent the

need for “ad hoc” judgments in particular cases36 of the sort extolled

in Arkansas Game & Fish. That form of rule skepticism allowed Justice

Brennan, in Penn Central Transportation Co. v. City of New York,37 to sustain

a landmark preservation statute that prevented Penn Central from using

its air rights, a recognized property interest under New York law, for

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362 Individual Rights: Property, Contract, and Liberty

constructing a new, elegant residential and offi ce tower. Justice Bren-

nan’s position was that in most instances any diminution in land value

attributable to regulation should be treated as noncompensable under

his ad hoc balancing test, just as if it had been caused by the operation

of market forces.

The fi rst diffi culty in this analysis is that it does not explain why the

taking of air rights, by which the landowner is prohibited from building

on top of his structure, does not count as a physical taking of property

the surface owner is no longer able to enter. The situation in effect is the

exact duplicate of the hypothetical given above in which the govern-

ment does not take property but refuses to allow its owner to enter. This

is not, moreover, the fi rst case of divided interests in property where it is

often diffi cult to know whether a particular action amounts to a physical

or regulatory taking. The much-mooted 1922 takings case of Pennsylva-

nia Coal Co. v. Mahon38 involved a simple situation in which the state’s

Kohler Act decreed that the coal company had to transfer to surface

owners the “support estate” that it had retained when it fi rst conveyed

out the surface interest some forty years earlier.39 In effect the landown-

ers took the land knowing they assumed the risk that mining operations

could lead to the collapse of their homes. Justice Holmes held that the

regulation went “too far,” but never bothered to explain why the case

only involved a regulation at all. The change in rules required a transfer

of a support interest that could be described as well as a physical interest

in land, especially as it required the coal company to keep pillars of coal

in place to support the surface and the structures on it. It was clear that

the transfer benefi ted all surface owners and hurt all mine owners so

that Pennsylvania could not identify any implicit in-kind compensation

for the transfer, let alone the “average reciprocity of advantage,” that

Holmes in a famous aphorism thought insulated certain forms of gov-

ernment action from constitutional invalidation.

The distinction between regulation and occupation, then, is far

from watertight. Even if the distinction between occupation and regu-

lation could be established, it would not have altered Brennan’s analy-

sis in Penn Central, where he showed not the slightest recognition that

market and regulatory forces always operate in opposite fashion. Gov-

ernment regulation reduces the size of the social pie that competition

expands. It is therefore a mistake to treat them as though they are in

any sense constitutional or social equivalents. Justice Brennan’s stunted

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Takings, Physical and Regulatory 363

approach, however, downgrades the protection of all rights to use and

dispose of property except in cases of physical occupation. To make mat-

ters worse, in the ensuing decades the ability to protest a regulatory

taking has become even more diffi cult because astute regulators are now

able to interpose endless procedural obstacles to slow down real estate

development. One such rule, holding that all landowners must exhaust

local administrative procedures before they can go to court, gives local

governments every incentive to extend administrative procedures ad

infi nitum.40 Another rule says that issues that could be raised in state

courts must be raised there, making it virtually impossible to have a fed-

eral court examine the merits of a federal constitutional takings claim.41

At the same time, the new synthesis mightily expands the justifi -

cations for state action. As already noted, “harm” goes far beyond the

common law nuisance cases, so that the state may, but need not, impose

restrictions dealing with views, height, density, setbacks, exterior design,

wetlands, endangered species, and access to public ways. The initial

thrust came in the 1926 zoning case of Village of Euclid, Ohio v. Ambler

Realty Co.,42 which upheld a zoning ordinance that prohibited industrial

development on a large, integrated plot of land unwisely zoned for resi-

dential use. Potential adverse neighborhood effects were declared suffi -

cient to justify an 80 percent loss in the parcel’s value, while any positive

effects of development on nearby businesses and residences were studi-

ously ignored.

This indefi nite system of property rights excites the worst fears of

classical liberals. Neighbors with mixed motives are often in a position

to veto or burden the development, sale, rental, or use of particular par-

cels. The ostensible minimum requirement that some viable economic

use remain is easily circumvented. Let it be decreed, as in Lucas v. South

Carolina Coastal Council,43 that full compensation is required if, but only

if, regulation prevents any new construction, and the regulators move

into high gear to slip away from that restriction. Sensing constitutional

oblivion, the regulators’ next iteration imposes large-lot zoning. Once in

place, all architectural designs have to be approved by multiple commit-

tees that can take months to meet. Nature studies have to be done on

fl ora and fauna; height and setback restrictions may be imposed. Mid-

way through the process, the permit requirements can be changed at

will, and so on down the line. Each of these maneuvers eats away at

the project’s value, even if none is suffi cient to sink the project by itself.

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Meanwhile, the Supreme Court has yet to explain how the combined

effect of these multiple regulations should be treated.

The passivity from the top leads to bolder community initiatives,

including “deals” whereby the project will be approved only if the

developer kicks in $10 million to help fund a new art club or after-

school facility for children already in the neighborhood. These endless

negotiations between developers, local governments, and community

activists delay construction; they create large amounts of community

animosity that yield marked reductions in land value without gener-

ating any offsetting social benefi ts. The strong territorial basis of local

political systems lets anxious neighbors veto rights over projects that

could provide housing or jobs for dozens or even hundreds of individ-

uals whose voices are rarely if ever heard. Here is one example: the

efforts of Related Realty to redevelop the large Kingsbridge Armory in

the Bronx were vetoed by the New York City Council because Related

Realty was not willing to require its tenants, including large retail

companies, to pay “a living wage” to their employees.44 Why land use

restrictions should be used to support union demands in a devastated

community was never explained.

Rent Control

The weak defi nition of property rights and the broad set of justifi ca-

tions have also kept in place too many rent control schemes. The state

keeps the tenant in possession after the lease expires at a price that it

thinks the tenant can afford, but far below the current price. The trans-

action should be stopped in its tracks by a sensible public use require-

ment, given that the transaction involves a transfer, piece by piece, to

the tenant of the landlord’s interest in his own property. The huge gap

between the controlled and market rents encourages landlords to make

nonstop efforts to pry out tenants who use their political clout to remain

in possession. And all the while the courts claim that the tenants are not

in physical occupation of the property, at which point the per se takings

rule would apply. Instead, it is held, incorrectly, that it is permissible for

a tenant to remain forever in possession because the original lease was

“voluntary,” even if only for a fi xed term.45 Current takings law reduces

the critical temporal division of property to a matter of no signifi cance.

Similarly the distinction between permanent and temporary takings,

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Takings, Physical and Regulatory 365

which proved of no use in the fl ooding cases, has come to the rescue

of various rent stabilization programs, since Justice Holmes in Block v.

Hirsh46 held that temporary rent control regimes could be justifi ed in

times of emergency when permanent ones might not be. But the line

becomes an art form in New York City where since 1969 there has been

a succession of three-year stabilization laws in which the “emergency”

justifi cation relates only to the shortage of rental vacancies, itself attrib-

utable to the rent stabilization laws rather than the dislocation of fl oods,

plagues, or wars.47 In effect, every known principle of landlord-tenant

law is turned on its head to sustain a system whose economic disloca-

tions and political costs are too well known to require extensive com-

ment. This system would collapse instantly if the local government that

championed the rent control had to make up in cash to the landlord the

gap between market and regulated rent—which is precisely why that

does not happen. For regulations and for land acquisition, the quantity

demanded decreases as the price increases.

And Now?

As a matter of fi rst principle, theories of limited government play no

role whatsoever in the progressive view of economic liberty and land

use regulation. Yet the question arises whether these practices are so

entrenched that it becomes foolish to summon the justices to perform

their constitutional duties. On this question I am of two minds, given

the mountains of political and judicial support for the current consen-

sus. Short of an economic meltdown, which may be coming, the sta-

tus quo will persist no matter what a voice from the classical liberal

fringe says. A monumental sea change in constitutional approach is not

in the cards. Still, it is best to push hard, not only in the real property

issues of this chapter but also on the labor market issues of the previ-

ous one. These are the two primary markets that must function well

in any successful society. Yet both are hedged in with restrictions that

create massive dislocations that have become more entrenched by the

day. It may be impossible to return to a strong regime of property and

contract rights, but the efforts have to be made, for otherwise we run

the near certain risk of a prolonged social decline, as the government is

authorized to enter into negative-sum transactions, where the gain to

the state from either taking or regulating private property is smaller than

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366 Individual Rights: Property, Contract, and Liberty

the losses that it imposes on private owners. It is not enough in the cur-

rent downturn for any classical liberal to say “don’t blame me” for the

current debacle. It is imperative to push hard for a restoration of the lost

classical liberal synthesis. That classical liberal synthesis has, however,

shown more staying power in dealing with various forms of personal

liberties, to which the next chapter turns.

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Personal Liberties and the Morals Head of the Police Power

THE PREVIOUS TWO CHAPTERS have examined all claims for economic liberties and property rights through a two-step analysis that fi rst examines the scope of the underlying constitutional right, and then

turns to the reasons the state advances to justify limiting that right. On

economic liberties and property rights, the manifest trend has been to

narrow the scope of the basic rights and to expand the scope of public

justifi cations for their limitation in ways inconsistent with both the con-

stitutional text and the classical liberal theory that undergirds it. This

same two-step process of analysis also applies to a range of personal

activities that, during the nineteenth century, were said to fall under the

“morals” head of the police power.1 These cases involved a wide range

of activities that were thought to be sinful, most notably sexual prac-

tices such as adultery, prostitution, sodomy, homosexuality, abortion,

and contraception. It also covered activities like gambling, cockfi ghting,

and perhaps even bowling.

The Transformation of the Morals Regulation

In all these areas, the nineteenth-century justices had little or no

patience at the constitutional level with freedom of contract arguments

brought by individuals subject to various forms of criminal prosecution.

To be sure, states could always decide to legalize certain activities, and in

the case of lotteries, even run those activities themselves.2 Yet the dom-

inant, but not quite uniform attitudes of the time harshly condemned

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368 Individual Rights: Property, Contract, and Liberty

many of these practices. The critics often made explicit reference to an

insistent social norm of disgust that works at cross-purposes with any

theory of individual liberty.3 State regulations could extend broadly to

cover, for example, the full range of extramarital practices, allowing the

state to exert extensive control over marriage. Thus Reynolds v. United

States4 upheld the ban on polygamy (leading to extensive forfeiture of

property), as once practiced by some Mormons, on the ground that it

offended common moral standards. The Court added, moreover, that it

was appropriate for the jury to consider the consequences of polygamy

to its “innocent victims,” without mentioning who those might be.5 In

economic terms, it counts as an anticompetitive restriction that protects

some religions at the expense of others.

Reynolds’s strict moral judgment of sexual and marital practices

became anachronistic in the last half of the twentieth century. In recent

times, if anything, traditional judicial attitudes have fl ipped. Any ques-

tions of morality are regarded as matters of highly valued personal lib-

erty, which the state can limit only upon a strong showing of interests

that are narrowly crafted to deal with particular externalities of the sort

that, ironically enough, are valid within the framework of a classical

liberal theory. The spread of contagion, for example, falls within that

category, for here the physical harm is one against which self-help mea-

sures often prove hopeless. It is therefore perfectly appropriate to allow

for quarantines of infectious individuals, killing of diseased cattle, or

withholding of contaminated goods from the stream of commerce—so

long as these are not pretexts for anticompetitive activities, which is the

underlying motivation in many cases. One early example of the poten-

tial for abuse was Jew Ho v. Williamson,6 in which a purported quarantine

applied only to the Chinese quarter of San Francisco. While Anglos were

allowed to go in and out of the quarantined district at will, the local

Chinese, who had borne the brunt of many a discriminatory law,7 were

required to stay put. On the other hand, consistent with classical liberal

theory, taking personal offense at the knowledge that others may be

engaged in some (by the observers’ own lights) sordid practice is decid-

edly not a suffi cient ground to stop the activity. Offense is self-gener-

ated, and whipping one’s friends into a frenzy should never become the

source of legal rights.

It is possible, therefore, to reconceptualize the understanding of

the morals power so that its application becomes more consistent with

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Personal Liberties and the Morals Head of the Police Power 369

classical liberal theory. But the historical evolution of the doctrine took

quite a different path and was often justifi ed for ad hoc reasons that

resisted incorporation into the classical liberal approach. This chapter

deals with four episodes in the theory of morals: contraception, abor-

tion, homosexual sodomy, and gay marriage, all of which document the

stunning transformation of the meaning of liberty under the Due Pro-

cess Clause from constitutional pariah to constitutional darling.

Contraception

The customary judicial deference to traditional morals regulation fi rst

broke in an area where there was the least public resistance to the reg-

ulated practice—the use and sale of contraceptives. The decision illus-

trates a real tension for defenders of the classical liberal tradition. On the

one hand, it seems as though there is no originalist support for the posi-

tion that any portion of the Fourteenth Amendment is directed to the

protection of these rights. The Privileges or Immunities Clause comes

closest, but there is no historical source that regards freedom in mat-

ters of sexual relations as one of the traditional liberties that this clause

protects. Indeed, the issue is not just one of noninclusion in the basic

text. It is also a case in which the long historical reference to the morals

head of the police power speaks in the opposite direction. Yet at the

same time, so long as the use of contraceptive devices causes no harm

to strangers, it looks like an activity that should be insulated from any

government regulation, given that the mere offense that others take to

practices contrary to their own moral and religious beliefs has no weight

in the calculus.

As a matter of constitutional interpretation, it seems here that the

authoritative history trumps the philosophical opposition to the state

regulation of morals. Yet with the fl agging faith in originalist-type argu-

ments, it is no surprise that the constitutional dam on matters of morals

broke in an area in which the Court was catching up with established

mores, not blazing new paths of its own. In most states, the sale and

use of contraceptives were legal, as legal rules keep up pretty well with

changes in dominant social attitudes. Those who did not approve did

not have to use them and could limit their access by their own chil-

dren. But to every social consensus there is at least one outlier. In this

instance, it was the Connecticut law that imposed punishment by fi ne or

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370 Individual Rights: Property, Contract, and Liberty

imprisonment on “[a]ny person who uses any drug, medicinal article or

instrument for the purpose of preventing conception.”8 The statute then

doubled down on the original prohibition by imposing like sanctions

against “[a]ny person who assists, abets, counsels, causes, hires or com-

mands another to commit any offense,” which included persons who

either sold or administered the devices in question.9

The controversial decision in Griswold v. Connecticut10 struck down

these statutes by an appeal to—take your pick—the penumbra and ema-

nations of specifi c provisions of the Bill of Rights (Justice Douglas),11 the

Ninth Amendment (Justice Goldberg),12 or old-fashioned substantive

due process (Justice Harlan).13 These judicial adventures were stoutly

resisted by Justices Black and Stewart in dissent on the ground that Gris-

wold simply brought the ghost of Lochner back to life. But this was not

the case; nothing in Lochner purported to address the morals head of the

police power. Lochner insisted only that the labor statute at issue was jus-

tifi ed as a means to protect either the safety or health of the individual.

The many theories used to defend Griswold raised eyebrows, espe-

cially with the sudden revival of the Ninth Amendment, which simply

provides: “The enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by the people.”14

This amendment contains no internal substantive theory, but presup-

poses that some rights not covered in the other amendments of the Bill

of Rights were, in good Lockean fashion, “retained” by the people at the

formation of the original social contract.

Unfortunately, this amendment does not easily mesh with the spe-

cifi c constitutional guarantees on such matters as speech and property.

But that point is of little consequence if the other substantive provisions

directed to those areas are given a sensible reading. Thus, an alternative

account of Griswold defends its outcome as a simple matter of freedom

of contract under Lochner, but only if that decision is read narrowly to

exclude the traditional broad references to the morals head of the police

power. What justifi cation can the state offer for restricting contractual

arrangements, be they to purchase goods or advice, that do not pose

any threat to the life or property of third parties, or even to the users of

those contraceptives (which, in some instances at least, help prevent the

transmission of sexual diseases)?

Unfortunately, that straightforward libertarian approach was

blocked by what every member of the Warren Court perceived to be

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Personal Liberties and the Morals Head of the Police Power 371

Lochner’s bad constitutional odor. Instead of a general appeal to personal

freedom writ large, the case rummaged through the set of personal lib-

erties until it defended its interventionist approach by a localized appeal

to the notion of marital privacy: “Would we allow the police to search

the sacred precincts of marital bedrooms for telltale signs of the use of

contraceptives? The very idea is repulsive to the notions of privacy sur-

rounding the marriage relationship.”15 But the argument fails for two

reasons. First, many portions of this statute could still be enforced,

including the prohibitions on sale and on third-party assistance in the

use of contraceptive devices. Second, there is no apparent reason why

the privacy argument, so construed, should be limited to marital cou-

ples, even if it includes them. Thus the marital limitation disappears

as the toleration for what used to be called fornication increases, as it

surely has, so that within a matter of years the Supreme Court no longer

imposed the marriage limitation on sexual freedom.16 The morals head

thus shrunk as the classical liberal theory gained strength. And done

properly, the Ninth Amendment could have remained a sideshow to the

main event, as explicit constitutional provisions took over the space that

it sought to occupy.

Abortion

Most of the extensive constitutional debate over Griswold stemmed from

the collective astonishment over its bold rationales, not its substantive

conclusion. Yet once exotic constitutional interpretation caught on, it

took little imagination to see that it could spread to other, more con-

troversial areas. As late as 1968, there was puzzlement in Hubert Hum-

phrey’s eyes when he was asked, as a Democratic nominee, to state his

views on abortion. His reply, as I recall, was that it was a question for

the states, not the federal government. The constitutional challenge to

the practice was widely regarded as inconceivable. At least, that is, until

the hyperactive 1972 Supreme Court Term, when Roe v. Wade17 rudely

shattered those complacent expectations.

As a political matter, one could not take comfort in the modest

view that the Roe Court was just nudging the last recalcitrant state into

conformity with the modern social consensus. Abortion was then, and

remains now, a divisive social issue. Every state in the Union applied

some criminal statutes to abortion, justifi ed by what was perceived as

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372 Individual Rights: Property, Contract, and Liberty

the need to protect unborn life against material attack. The law on this

subject was not always rigid, and it was common to make exceptions for

abortion when it was necessary to save the life of the mother or when

the child was conceived by rape or incest. Questions on the propriety of

the abortion of offspring with known birth defects were hotly debated

as well.

The public division over abortion existed for three good reasons.

First, like in Griswold, the Court could offer no credible originalist argu-

ment for a practice that was universally illegal. Second, unlike in Gris-

wold, there was no popular consensus in favor of a right to abortion, and

much organized opposition to it. And third, the classical liberal position

did not point in favor of a woman’s right to have an abortion. As a very

young legal scholar, I wrote an article on Roe in 1973 that the late Pro-

fessor Philip Kurland of the Supreme Court Review entitled “Substantive

Due Process by Any Other Name: The Abortion Cases.”18 Kurland chose

a fi ne title for the article that he might have written, but only after it

was published did I realize that the title did not accurately represent the

views I had taken in the article. I did not share the same legal process

concerns as the late John Hart Ely, who, in a far more famous article,

“The Wages of Crying Wolf: A Comment on Roe v. Wade,”19 stressed the

real institutional risks to the Supreme Court of moving into such con-

troversial waters when Justice Harry Blackmun manufactured a consti-

tutional right to an abortion (at least in the fi rst trimester). It was easy

for conservatives to insist that the same liberals who despised Lochner

on economic affairs were hypocritical to embrace its allegedly free-form

logic on abortion.

Yet that line of attack ignores the key role that the police power

played in the Lochner analysis, for there is good reason to believe that Roe

is wrongly decided even if Lochner is right. To take the analysis from the

top, a woman’s choice to have an abortion implicates the now-rejected

theory of freedom of contract the moment she hires a doctor, nurse, or

anyone else to perform that operation. That one point surely counts in

Roe’s favor. Yet at the same time, Lochner’s health and safety heads of the

police power have real purchase in the context of abortion. Recall that

during the so-called Lochner era, the state could abrogate the assumption

of risk defense for industrial accidents under the Employer Liability Acts

or impose a mandatory scheme of workers’ compensation statutes that

undid the entire negligence system.20

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Personal Liberties and the Morals Head of the Police Power 373

In this context, the thrust of my 1973 article was that protection of

any right to abortion was suspect even under the narrow Millian “harm

principle” articulated in his 1859 classic, On Liberty: “That the only pur-

pose for which power can be rightfully exercised over any member of

a civilized community, against his will, is to prevent harm to others.”21

The Supreme Court did not appreciate the scope of this police power

argument when it insisted that abortions had to be constitutionally pro-

tected because the use of the term “person” in the Constitution did not

include unborn persons in dealing with such issues as protection against

unreasonable search and seizures, reapportionment of election districts,

emoluments for public service, and a number of like provisions.22 Trans-

lated to the abortion context, this argument, if correct, helps explain

why a fertilized egg does not get explicit constitutional protection under

the Fourteenth Amendment.

Yet conception is the only sharp break in the continuous process

of reproduction. No later point, including the three trimesters, has that

quality. If the verbal evasions in Roe are rejected, this sets up a per-

son-against-person confl ict which instantly highlights the distinction

between Griswold and Roe and undermines the constitutional case for

Roe on both moral and legal grounds. Indeed, it is possible to go further

and insist that the case against abortion rights does not depend on such

a strong fi nding about the status of the fetus. Even if the only person

whose liberty is at stake is the mother’s, the police power inquiry asks

this follow-up question: does some combination of health, safety, and

morals limit the mother’s prima facie right, much as it does in other cases?

The key point is that the termination of a pregnancy is not a close cousin

to removing a wart, which even abortion proponents concede when

they recognize the moral gravity of the abortion question. Hence, on

this modifi ed view, the ultimate constitutional question is whether the

imperfect status of the fetus, which will in the ordinary course become a

person, is in and of itself a suffi cient reason for state intervention.

At this point, one response is to say that the key question is the level

of scrutiny that is brought to the case. The state’s interest in the protec-

tion of the fetus could survive rational basis review, but not any form of

strict scrutiny. Yet why? The fetus is closer to a person than to a wart,

which can never evolve into a person. It is for that reason, for example,

that the government will appoint a guardian to protect the property

interests of an unborn child, and indeed, in property matters, a future

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374 Individual Rights: Property, Contract, and Liberty

child who is not yet conceived. And it is surely telling that the deliberate

killing of a fetus by a stranger who attacks the mother could be treated

as an independent form of homicide, even if one short of murder, and

not just part of the parental assault. It is worth noting, of course, that the

state’s interest in maternal care shows the special weight given to assist-

ing the mother in protecting the fetus, which strengthens the case for

allowing the state to protect the fetus against the mother as well. There

could be an extended discussion about other hard cases: children born

of rape or children suffering from serious genetic diseases such as Tay-

Sachs or even spina bifi da. Yet just the effort to carve out limited justifi -

cations for some abortions undermines the moral and legal grounds for

Roe’s categorical right of abortion. Once health and safety are introduced

into the mix, the shoe is now on the other foot. Why ignore the strong

historical spread of abortion laws starting in the nineteenth century?

To be sure, these arguments do not clinch the case for making the

state adopt a ban on abortion. The complications of seeking to enforce

prohibitions on abortion, including (to consider health and safety from

the other side) the risks of back-alley abortions and the increased crim-

inal activity that might accompany a ban, probably lead to the conclu-

sion that the state is under no duty to criminalize abortion the way it

is probably under a duty to criminalize murder. Put the whole picture

together and abortion does not present a real tension between a (sup-

posed) claim of liberty on the one hand and a long set of historical prac-

tices on the other. Quite simply, abortion, unlike honest labor, did not

count as a traditional liberty. Thus it is no great stretch to say that even

a relatively narrow conception of the police power covers abortions, so

that the widespread historical practice of criminalizing abortion (chiefl y

to punish those who perform abortions) does amount to a legitimate

state function.

This view holds even if one treats the case, as writers like Catha-

rine MacKinnon do, as one of sex discrimination,23 not personal liberty.

The concern here is not only with the want of any textual basis for this

claim. It is also that any nondiscrimination principle, as we saw in con-

nection with the dormant Commerce Clause and the economic liberties

cases, is not absolute. Like any other constitutional claim, it must be

rejected if it meets valid state justifi cations. At that point, the new home

for Roe leads it to run into the same police power objections as before. It

is not credible to suppose that men should be subject to a prohibition on

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Personal Liberties and the Morals Head of the Police Power 375

having abortions. It is also easy to see why the prohibitions on perform-

ing an abortion on others can be sex-neutral. But if the protection of the

life of the unborn child suffi ces to block a liberty claim, then it suffi ces to

block the antidiscrimination claim as well. So in the end, the argument

for abortion comes up short within the classical liberal framework.

What of the simple fact that abortion has been entrenched for over

thirty-nine years, now with a clear majority of public support for the

view that abortion is legally protected but morally complex? The issues

here involve the vexing problems of the prescriptive constitution, dis-

cussed in Chapter 3, where a key question is how long usage affects a

decision that was wrong at its inception. My own sense is that this awk-

ward current accommodation has it about right today. The costs of legal

enforcement of a prohibition on abortion are very high, and thus are

eliminated in a world where no Supreme Court (especially the one that

wrote Roe) could persuade the dissenters, both in and out of the Roman

Catholic Church, that abortion is morally unproblematic. Women should

be instructed on the grave issues of abortion but not told that they can-

not have one on demand, at least early in pregnancy. There can be a

large set of litigated cases as to whether the state may burden the right to

an abortion by insisting that people receive counseling before having an

abortion, or in requiring parental consent and the like. We can live with

those disputes, fi erce as they are, but it is risky to tamper with Roe itself

in light of the enormous disruption of settled practice. Indeed, if the

constitutional decision were reversed, legislation would reestablish the

right for an abortion in at least one state, which then opens up a huge

avenue for pro-abortion forces. It therefore makes sense to preserve (but

not extend) the status quo. The situation is surely inelegant, but that is

always what happens when text and history collide.

Homosexual Sodomy

A generation after Roe, the traditional morals head of the police power

was under attack in the domain of homosexual behavior, where the

change in social mores had led to a rapid reduction in the level of crim-

inal punishment. However, in this instance, the political resistance to

the legalization of the practice and the social disapproval of it were far

greater than with contraception, although eventually becoming less

than to abortion. It was only a matter of time, therefore, before the clash

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376 Individual Rights: Property, Contract, and Liberty

between confl icted modern mores and the Constitution would fi nd its

way into the courts. That confl ict came to a head in the 1986 decision

of Bowers v. Hardwick.24 Here, tradition took precedence over liberty as

Justice Byron White wrote for a fi ve-to-four majority that, over a fi erce

dissent by Justice Harry Blackmun, upheld the prohibition on sodomy

out of an uneasy respect for this dying tradition.25 Justice White’s major-

ity opinion worked by a process of analogy and comparison to fi nd some

“fundamental” constitutional right, but quickly distinguished other

claims that had been recognized under that rubric, including both mari-

tal privacy and the right to contraception. Correctly applying traditional

doctrine, he concluded that “the proposition that any kind of private

sexual conduct between consenting adults is constitutionally insulated

from state proscription [by precedent] is unsupportable.”26 And so it was

in light of the fact that the criminal prohibition against sodomy had an

unbroken line of support from ancient times until the early 1960s, when

the legislative bans started to loosen. Every original colony banned sod-

omy; when the Fourteenth Amendment was ratifi ed, all but fi ve of the

thirty-seven states made the action criminal.27

Justice White’s history was pretty solid. However inconsistent this

historical record may be with libertarian theory, there are no credible

grounds to believe that any portion of the Fourteenth Amendment was

intended to remove the power of the state to enact and enforce such

bans. As a matter of political theory, logic beats tradition; but as a mat-

ter of constitutional law, the opposite is equally true. At least it was,

until the 2003 decision of the Supreme Court in Lawrence v. Texas,28 at

which point an overt libertarian streak on what are now termed “inti-

mate” personal relationships toppled Bowers from its historically precar-

ious perch. Justice Anthony Kennedy sought to redo Justice White’s

social history on morals regulation at and before the adoption of the

Fourteenth Amendment. Much of that history shows that anti-sodomy

laws were often applied to both men and women, or were not enforced

except against children, or were repealed and reenacted. But none of

this erratic practice undermines the central historical claim in Bowers,

which was that the state’s police power allowed (but did not require)

states to control this form of behavior.

At heart, however, Justice Kennedy cared less about the history

and more about the presumption of liberty that he believed should

govern the case. Thus, he embraced the exact proposition that Justice

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Personal Liberties and the Morals Head of the Police Power 377

White had rejected seventeen years before: “[A]dults may choose to

enter upon this relationship in the confi nes of their homes and their

own private lives and still retain their dignity as free persons. . . .

The liberty protected by the Constitution allows homosexual persons

the right to make this choice.”29 Indeed, “[t]he instant case involves

liberty of the person both in its spatial and in its more transcendent

dimensions.”30 That liberty, of course, fi nds its home in the Due Process

Clause of the Fourteenth Amendment.31 At this point, the persistent

conceptual reservations about substantive due process were cast deci-

sively to one side. The thought that liberty should be limited only to

acts of imprisonment was likewise never on the radar. Instead, the Due

Process Clause covers “liberty of the person both in its spatial and more

transcendent dimensions.”32 Cases for economic liberty need not apply

for reconsideration.

With an introduction like that, there was no chance that the abstract

category of state power to regulate morals could survive. Since the case

was based on liberty, Justice Kennedy did not rely on a puny equal

protection argument (embraced by Justice Sandra Day O’Connor, who

had gone along with the Bowers majority)33 that the statute should be

struck down because sodomy between people of the opposite sex was

allowed when sodomy between persons of the same sex was prohibited.

Try that fi x, and in the next iteration the Texas statute might prohibit

both kinds of sodomy, which in a real sense makes the problem worse

than ever. At this point the statute had to go down in fl ames once Texas

conceded that its law did not address (morals to one side) any of the tra-

ditional concerns of the police power that fi t under a libertarian theory:

the protection of minors, the protection of people against coercion, or

even public conduct or prostitution.34 The key feature was that “full and

mutual consent” eliminated all grounds for state intervention. Hence

Lawrence, with its occasional hyperbole to individual rights and a narrow

approach to possible defenses, tracks the standard libertarian arguments

to a tee, even though written and endorsed by judges who had little

patience with that basic approach in other contexts. In one sense, the

inversion of logic between economic liberties and matters of intimate

personal association is complete. The irony here is that Justice Kennedy

took refuge not in classical liberal theory, but in his own view of a living

constitution. “As the Constitution endures, persons in every generation

can invoke its principles in their own search for greater freedom.”35 Lord

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378 Individual Rights: Property, Contract, and Liberty

knows what happens when the next generation of social conservatives

takes over.

Gay Marriage

One question left open by Lawrence is whether Justice Kennedy’s con-

stitutional evolution had reached its end. In a sense, he thought it did

when he basically drew, albeit not quite explicitly, the line between

the criminalization of sodomy and the line against constitutional pro-

tection for gay marriage. After all, Lawrence “does not involve whether

the government must give formal recognition to any relationship that

homosexual persons seek to enter.”36 But why not? The decision against

criminalization rested on an exalted view of all sexual relations that

self-consciously held that those relations found in marriage could be

duplicated by gay individuals who lived outside its protective sphere.

The Kennedy argument did not rest on the need for an extensive state

apparatus to enforce the criminal law in ways that necessarily intruded

on personal privacy. If he had taken that position, he might have held

the line of gay marriage on the view that the state faces no adminis-

trative or enforcement diffi culties when it denies a couple a marriage

license. But those administrative arguments ring hollow when set up

against a liberty claim which has “transcendent dimensions.”

No one can be sure as of this writing how the constitutional chal-

lenge to Prop 8—“Only marriage between a man and a woman is valid or

recognized in California”37—now before the Supreme Court in Hollings-

worth v. Perry38 will shake out, assuming that the Supreme Court decides

to hear it on the merits. And there are additional layers of complexity

raised in the companion decision in United States v. Windsor39 which chal-

lenges the federal defi nition of marriage as a union between one man

and one woman in the Defense of Marriage Act. Nonetheless, as a mat-

ter of fi rst principle, the logic of individual choice stressed in Lawrence

surely permits individuals to decide to have sexual relationships outside

as well as inside the institution of marriage. But by what logic can it be

said that same-sex couples could be denied the same status before the

law when it refuses to give them “formal recognition” of their relation-

ship? It does not take an evolving view of the Constitution to see that

this issue is ripe for the application of the general doctrine of unconsti-

tutional conditions, which holds that the state cannot use its licensing

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Personal Liberties and the Morals Head of the Police Power 379

power to favor one type of social arrangement relative to another unless

it can posit some distinct justifi cation for doing so.

This argument generalizes to the conclusion that the state licensing

power has to be exercised in favor of all if it is done in favor of any. That

position could easily be resisted by the traditionalists who used the word

“meretricious” to describe the same conduct that Justice Kennedy found

“transcendental” in Lawrence.40 But he has forfeited the use of that argu-

ment, and thus runs into the buzzsaw that courts have taken it upon

themselves to be arbiters of social values, which indeed they have to do

once they treat strong classical liberal theory as a guide to their position.

But once the historical barricades to constitutional interpretation are

overrun, what possible grounds are there to stop with decriminalization

when equal rights to marriage still beckon? At this point, all the argu-

ments are prudential. We know from the successful passage of Proposi-

tion 8 in California that public opinion is deeply divided on the question

of gay marriage. Indeed, all the political ugliness took place precisely

because the California Supreme Court ignored the bounds of judicial

prudence when it mandated recognition of gay marriage on state equal

protection grounds.41

We thus stand again at the crossroads between the historical and

prescriptive constitutions. Once the historically correct reading in Bowers

is disregarded, the justices live in the world of the constitutional sec-

ond-best, where they must decide whether to extend a dubious prec-

edent to its next logical conclusion or to pull in their horns in order to

avoid provoking a political melee. My own cowardly instincts are fully

on display here. I would have voted with the majority in Bowers and

with the dissent in Lawrence. But ten years later, I would keep the status

quo because even in that short time I think that the outcome has been

legitimated. But I would not make the constitutional leap on gay mar-

riage in the face of divided public sentiment on a question that goes to

the heart of the morals head of the police power.

I make this last point with some obvious reluctance because the

case for gay marriage is far more powerful than the more popular cause

of having the antidiscrimination laws cover sexual orientation as they

do the well-accepted grounds of race, sex, age, and national origin. And

why this inversion? Because labor markets are competitive, so there is

no need for the state to intrude when thousands of employers com-

pete vigorously to hire gay employees. Yet the state exerts its monopoly

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380 Individual Rights: Property, Contract, and Liberty

position when it either grants or denies a marriage license. That is real

power. The key lesson to take away from this discussion of morals is that

the same political dynamics that govern economic affairs are ultimately

at work in social matters as well. The lesson—trust competition, and

fear state monopoly—works well as a constitutional template, albeit one

that was missed by the drafters of the Fourteenth Amendment, who had

enough other issues to worry about in the aftermath of the Civil War.

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S E C T I O N I I

SPEECH

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Freedom of Speech and Religion

Preliminary Considerations

THE DIVISION between classical liberal and progressive thought also shapes the constitutional debates over the First Amendment rights relating to both speech and religion. As usual, the interpretive inquiry

begins with the choice of the standard of review applicable to the partic-

ular cases. The fi rst judicial instinct is to think (wrongly) that speech and

religion deserve special protections that property rights and economic

liberties do not. That approach seems misconceived from the get-go

because the most reliable protections for speech and religion come from

the security of a sound basic system of law unrelated to particular issues

of either speech or religion. It is virtually impossible to envision how

the state could interfere with, let alone terrorize, religious and political

institutions if in all cases it systematically and unfl inchingly protected

property rights and economic liberties for its citizens and for other per-

sons and institutions subject to its jurisdiction.

A Return to Classical Liberalism?

Most critically, the protection of freedom of speech and religion becomes

more diffi cult to organize in any regime in which rights related to prop-

erty and contract are systematically underprotected. Under these weaker

constitutional regimes, it becomes necessary to demand special protec-

tions for religion or speech that are systematically denied for property

and contract in everyday affairs. For example, it is easier for a church to

resist an order from the state that it must, or must not, hire women or

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384 Individual Rights: Speech

gays as priests if all organizations have the right to associate, or not asso-

ciate, with others in ways that they see fi t. Put in the general prohibition

against discrimination, and any exemption from that norm is vulnera-

ble to attack as an establishment of religion. Deny that exemption, and

the statute is exposed to the charge that it infringes the free exercise of

religion. The confl icts become acute if both protections are read broadly.

They become largely useless if watered down from face value. Neither of

these problems need arise if the two clauses are read consistently as part

of a classical liberal scheme, whose coherent theory of property rights

necessarily undergirds any claim of freedom, be it of speech or religion.

For interpretive purposes, however, it is important to accept the

differential mindset at face value, for it leads to the quick conclusion

that the rational basis test dominating the constitutional treatment

of property and contract does not take pride of place in dealing with

speech or religion. Deference is no longer the refl exive trope of choice

in dealing with such matters because modern courts strongly identify

with the underlying concerns addressed in the First Amendment but

not with rights of property and contract. The moment courts decide to

strengthen the constitutional guarantees, the classical liberal framework

that was rejected in property and contract cases supplies the roadmap

for constitutional discourse with its two key functions: broad defi nitions

of the basic rights and narrow treatment of state efforts to limit them.

These tendencies are of course not uniform in the cases, and progres-

sive anxieties surface most clearly in cases where the speech in question

deals with corporate or business behavior on such key matters as labor

relations and participation in political activities, be it by corporations

or other political action committees (PACs). In this section, I shall trace

these crosscurrents, fi rst in speech and then in religion.

The text of the First Amendment is short in length but categorical in

tone. In its entirety it states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.1

One of the great defenders of that amendment, Justice Hugo Black,

took the position that the First Amendment, in dealing with speech, said

“what it meant and meant what it said,” so that its protection should be

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Freedom of Speech and Religion 385

treated as well-nigh absolute in the domains to which it applied.2 It is

easy to take the same approach with respect to the even broader phrase

“free exercise” in the Religion Clauses. But this approach misgauges the

meaning of the constitutional text. In this instance, the term “freedom”

calls to mind the classical liberal position that a person is free to do or say

what he will so long as the exercise of his freedom does not systemati-

cally infringe on the like freedoms of others. The most obvious of these

exceptions deal with trespass, fraud, defamation, monopoly, insults,

bribery, the use and threat of force, and the protection of minors.

To protect freedom of speech or religion does not require the law to

protect all forms of speech or religious activities regardless of context or

content. It only requires that the protection of these freedoms be incor-

porated into a larger system in which the relationship of private to com-

mon property is essential to the overall enterprise. These freedoms are

strongest when exercised by individuals on their own property, so long

as they do not commit (like any other landowner) a nuisance against

their neighbors. They are necessarily modulated in public commons to

which all individuals have equal but limited access. And they are at

their lowest ebb when individuals try to exercise the rights of speech or

religion by trespassing on the lands of others.3 Any use of the term “free-

dom” analytically links to the general classical liberal theory, and devi-

ations from that theory in either direction will necessarily be fl awed.

There is no free pass for one kind of error relative to another. Any mis-

guided constitutional protection of fraud is as much a violation of the

rights of others as is a government suppression of true speech. Both

need special justifi cations to overcome the general libertarian presump-

tions that make force and fraud the fi rst limitations on private conduct.

In light of this basic connection, any discussion of speech and reli-

gion necessarily invites the two-part inquiry that was so essential in deal-

ing with rights relating to contract and property: fi rst, identify the scope

of the right; then, examine the possible justifi cations for limitations on

that right. Since the protection of speech and religion commands greater

esteem and affection among judges and academics, we should expect

that the overall analysis will, in many cases, refl ect the classical liberal

synthesis. But in those areas where progressive infl uences are more pro-

nounced—union elections, campaign fi nancing, and hate speech, for

example—we should expect the case law to gravitate back to the older

paradigm of narrow basic protection subject to broad exceptions.

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386 Individual Rights: Speech

Modern Approaches to Religion and Speech

Modern theories about freedom of speech tend to concentrate on a

number of variables. Holmes’s famous statement that “the best test of

truth is the power of the thought to get itself accepted in the com-

petition of the market”4 shows an affection for market arrangements

that was far from evident in Holmes’s Lochner dissent5 on maximum

hour laws some fourteen years before. Just as the uncoordinated offers

from many buyers and sellers allow prices and goods to be effi ciently

exchanged, so the presentation of different views in both private and

public fora is more likely to pave the way for discussion and debate.

Such discourse tends, on average, to move any society toward the best

collective choice in any given situation in settings dealing with such

critical matters as war and peace, where individuals who disagree can-

not go their separate ways.

Yet there is a deserved element of caution. There are no guarantees

in dealing with such a broad topic: competition in the marketplace of

ideas is just “the best test of truth.” But it is hard to fi nd any other sin-

gle general test that performs better, unless we know in advance which

Solons should control matters necessarily in the public domain even

in a regime of limited (but not zero) government. Even the best tests

yield both false negatives and false positives. Although the marketplace

of ideas is imperfect, it is far better than any alternative arrangement

human institutions can devise. We know this from the way that free-

dom of speech is guarded in private associations that have to make col-

lective decisions. Whether we are dealing with commercial, charitable,

social, or religious organizations, all of them construct their boards and

committees in ways that give everyone a right to speak before a vote is

taken. How that speech is rationed, moreover, is usually decided by an

appeal to pre-agreed-upon house rules of order. The bidding structures

that operate in many markets usually do not apply, if only because the

speech has value not only to the speaker but also to his or her audience.

A bidding system for ordinary commodities works because it can safely

ignore this interactive component. But in cases where deliberation mat-

ters, concentrating on the speaker to the exclusion of the audience fails

to take into account these positive deliberative externalities. Hence, all

rules are devised to take into account gains on both sides of an inter-

change. This system of internal ordering is not confi ned to deliberation

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Freedom of Speech and Religion 387

or speech in private settings. The same two-sided relationship governs

speech in all contexts, so that the models at work in private institutions

are equally instructive when examining public discourse.

As some of these last refi nements suggest, Holmes’s marketplace

image is incomplete. The notion of freedom of speech, linguistically,

covers far more than these kinds of competitive exchanges. Quite sim-

ply, there is a lot of important nonmarket, noncompetitive talk. So why

narrow the interpretation of an elusive word in a constitution so that it

covers one, and only one, form of interaction? Is reading poetry, sing-

ing, acting, preaching, or praying any less a form of speech than politics

or other deliberative forms of activity? Does one rule apply if the poem

is a hymn to springtime and another if the poem is a veiled attack on

some major political fi gure? Any consistent classical liberal is reluctant

to anchor the protection of speech, including speech on religion, to any

fl imsy content-based ground that unduly constricts the scope of the con-

stitutional guarantee.

Fortunately, modern writers both on and off the Court are sensi-

tive to this risk. When Robert Bork wrote in 1971 that the constitu-

tional function of speech was to protect political exchanges only,6 his

reward was an incessant and undignifi ed political barrage that helped

derail his Supreme Court nomination in the Senate. Apart from politi-

cal atmospherics, the outcome was ironic because Bork—who eventu-

ally abandoned his earlier position in favor of a broader reading—was

largely following the earlier work of Alexander Meiklejohn, who had

famously proclaimed a close connection between freedom of speech and

participation in the processes of political self-governance.7 Clearly all

this speech matters, and so too does the speech of outsiders designed to

call attention to their abuse, in the exercise of what Vince Blasi has ele-

gantly called the “checking” function.8 The connection between this use

of the term “checking” and the system of checks and balances is an apt

reminder that both notions are cut from the same cloth.

None of these political participation defenses of freedom of speech

should be understood to romanticize the issue. Freedom of speech is not

part of a glorious script that always leads to positive deliberative out-

comes. This point is especially salient under modern law because the

perverse economic incentives set up by today’s feeble protections of

property and contract invite the formation of coalitions to gain unde-

served political capital by browbeating—with constitutionally protected

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388 Individual Rights: Speech

speech—any vulnerable opposition. Unfortunately, there is no sec-

ond-best solution that cancels out the persistent grievous constitutional

errors that have drained protection away from property and contract.

However fractious and uninformative the meetings that take place in

zoning boards across the land may be, preventing people—some people?

which people? what times? what topics?—from having their say only

makes matters worse. The only way to improve the public discourse is

to correct the initial structural error by strengthening the rules of prop-

erty and contract in ways that neutralize brazen appeals for partisan

advantage in the political arena. In this sense, strong property rights and

strong speech and religion rights should be understood as complements

in a coherent whole.

One effort to combat narrow arguments that tie freedom of speech

to political processes stresses the role that speech plays in individual

self-realization of natural talents and abilities.9 These theories of speech

resonate with more general principles of individual autonomy, which

are often used to limit the power of government to coerce individuals

to take voluntary actions that are meant to assist other individuals. The

no-duty-to-rescue doctrine in the general tort law is a refl ection of that

typical reluctance to interfere. Such theories are by no means limited to

dealing with matters of speech. They surely apply to religious convic-

tions, and they can easily be extended to all forms of human conduct,

including the realization of self through honest labor. In each and every

one of these guises, this notion of self-determination tends to support a

uniform conception of limited government. The theory of self-realiza-

tion must therefore explain why speech is a distinctive element in this

particular program relative to other human endeavors, which it fails to

do. The theory also runs the risk that some groups will invoke it in order

to impose all sorts of affi rmative obligations on other individuals or soci-

ety at-large to supply the material support necessary for the former to

reach self-realization—without sensing the limitations it imposes on the

independence and, yes, autonomy of those individuals who bear that

burden through either regulation or taxation. It will not be the fi rst, or

the last time that the refusal to extend that support will be characterized

as harming those who are denied the requested subsidy. In addition, the

theory of self-realization offers no clue as to the limitations that should

be imposed on the exercise of the right of speech and, by extension,

religion, and thus is incomplete at its very core.

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Freedom of Speech and Religion 389

There is a larger truth buried here. For the classical liberal, using

these ungainly theoretical constructs to justify freedom of speech or

freedom of religion makes no more sense than asking for a unifi ed jus-

tifi cation for any individual’s basic freedom of action. What public-re-

garding justifi cation could you offer for scratching your nose, drinking a

cup of coffee, or playing a round of golf? None, really. The conventional

wisdom on freedom of speech goes astray precisely because it places

the burden of justifi cation on the wrong party: the speaker. Conversely,

under a consistent classical liberal position, the inquiry fl ips over so

now we ask: what justifi cation must the government advance to limit

that speech in ways that disrupt the voluntary relationship between the

speaker and his audience? The same types of arguments apply to the

freedom of religion. It is instructive to follow the interpretive responses

in both areas.

Free Speech and Free Exercise: Twins or Opposites?

The modern law eventually comes to a largely sensible resting place,

in part by adopting a clever linguistic strategy that expands the reach

of the Free Speech Clause by substituting for “speech” a broader term,

“communication or expression.” The late Thomas Emerson, who helped

popularize the shift, made no bones about his constitutional orientation

when he opened his book The System of Freedom of Expression with this

salvo:

A Libertarian approach to the First Amendment Freedom of Expres- sion includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses whether by traditional means, oral or press, or by other means, music and art . . . [and i]ncludes the right to hear the opinions of others, the right to inquire, reasonable access to information, and the right of assembly and association.10

The words “expression” and “communication” are aimed at protect-

ing all the close substitutes to speech that are not caught by the literal

meaning of the term, including forms of symbolic speech like burning

draft cards11 and fl ags,12 wearing black armbands to protest the Viet-

nam War,13 and smearing paint all over one’s face.14 In dealing with

these issues, the Court has taken the view that the conduct in question

was closely akin to “pure speech,” which “is entitled to comprehensive

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390 Individual Rights: Speech

protection under the First Amendment.”15 To employ the copyright

analogy, it would be foolish for anyone to say that the Intellectual Prop-

erty Clause that gives protection to “authors” for their “writings”16 does

not cover art, movies, dance, and all the other activities that routinely

receive copyright protection today. In the area of copyright, the same

arguments that lead to the protection of writings lead to the protection

of these other forms of creative expression. With speech, acceptance of

the anticircumvention principle, articulated in Chapter 3, is needed to

prevent the erosion of constitutional freedoms by legislative actions.

After all, writing is a substitute for speech, gesticulation substitutes for

both, and other physical actions (like wearing armbands) pick up the

slack. Accordingly, ordinarily there is no good reason for limiting these

collateral forms of communication, except on grounds that are appro-

priate for limiting speech itself under a restrained version of the police

power. Hence, it is correct to treat actors (or nude dancers for that mat-

ter)17 as engaged in speech. It is not possible to protect the speech of

anyone who waves the fl ag, without protecting the fl ag-waving as well.

A similar line of argument applies to expression, or more accurately,

“exercise” in religion. That term cannot be limited only to matters of

ritual, when all aspects of human life can easily be subjected to religious

creeds. The constitutional protection has to follow the underlying prac-

tices, lest there be yet another violation of the anticircumvention norm

of constitutional interpretation. But in this context, all the pressure is

moving in the opposite direction, so that there are constant attempts to

limit the free exercise of religion to matters of ritual and not to more gen-

eral matters of behavior that members of given faiths regard as essential

to their own religious activities. Whenever, for example, there is a clash

between religious liberty and the antidiscrimination laws, the govern-

ment position has sought to limit constitutional protection to “a minis-

terial exception,” narrowly construed.18 It should be possible, consistent

with classical liberal principles, to protect religious liberty to its full extent

while also guarding against the risk of conferring state monopoly to

given groups on religious matters. Competition among churches for the

loyalty of present and prospective members is thus a given component of

the free exercise of religion. The robust protection of religion, moreover,

covers more than organized churches, so that individuals are entitled to

act on the strength of whatever religious beliefs they have. Deists do not

belong to any church, and they rely on reason and experience, not faith,

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Freedom of Speech and Religion 391

to justify their positions. In secular terms, they are allowed to compete

for members with other religions and thus their practices, like those of

other religions, are protected against state regulation to the same degree

as other religions. This injunction to respect all religions is, however,

more diffi cult to honor than it seems, for in ordinary usage the term

commonly includes those individuals who believe in some higher moral

code without having any belief in God at all, as in the ethical or natural

religions.19 Fortunately, most of these questions lie at the fringe and not

the core of the discussion on religions. But the concerns are clear. It is

always dangerous to place a state thumb on the side of any substantive

religious vision, which in a sense makes it more or less imperative to use

the protection of religious freedom to protect atheists as well as deists.

The fi rst interpretive step thus broadens the defi nitions of speech

and religion and is consistent with the general classical liberal orienta-

tion. It shows that the constitutional law governing speech and religion

is on a very different trajectory from the law governing property—

where one common interpretive blunder equates private ownership

with one of its constituent parts: the right to exclude. The differences

remain even when the discussion turns to the potential justifi cations for

state regulation.

Justifi cations for Limiting Free Speech and Religious Actions

In dealing with these justifi cations for the assertion of state power, the

contrast between speech and religion on the one hand and property and

contract on the other becomes still more pronounced. The core of the

police power lies in the ability of the state to prevent the actions of indi-

viduals that cause harm to others. In working this defi nition, the fi rst

critical junction turns on the scope of the word “harm” as it is used in

the standard formulation of the principle found in John Stuart Mill’s On

Liberty: “the only purpose for which power can be rightfully exercised

over any member of a civilized community, against his will, is to prevent

harm to others.”20 As became clear when discussing the regulation of pri-

vate property and economic liberty, it is easy to drain the harm principle

of all content by allowing it to embrace a broad class of supposed inter-

ests that advance overall social welfare even if they hurt the economic

positions of some individuals, as all productive activity always does. It is

possible, for example, to claim that the failure to rescue results in harms

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392 Individual Rights: Speech

to others, at which point everyone could in principle be under a legal

duty to assist all others, even in the absence of a special relationship

or statutory duty.21 Competitive harm could justify government regula-

tion to control against “ruinous” forms of price competition in such key

areas as agriculture and transportation. Similarly, land use regulations

designed to deal with the protection of views or with aesthetic claims

going to the character of a neighborhood have also been routinely held

to fall within the defi nition. The question with both speech and religion

is whether similarly broad accounts of the police power could be used

to swallow the initial protection by including, for example, the offense

that other individuals take to the message of speech or the content of

religious beliefs.

A moment’s refl ection should indicate that the use of these broad

accounts of harm spells the end of these fundamental protections,

which would easily permit barriers to entry in both these markets. Thus

with nude dancing or fl ag burning, the offense that other individuals

take toward individuals engaging in these activities cannot count as a

form of harm that allows these activities to be stopped, certainly when

done on private places, and, with fl ags, in public places as well. By the

same token, a broad defi nition of the “morals” head of the police power

cannot be used toward that end. Thus in Barnes v. Glen Theatre, which

upheld a prohibition against nude dancing, Justice Scalia stated that “[t]

he purpose of Indiana’s nudity law would be violated, I think, if 60,000

fully consenting adults crowded into the Hoosier Dome to display their

genitals to one another, even if there were not an offended innocent in

the crowd.”22 Clearly the rejection of the defense of consent is meant

to go outside the traditional domains of police and safety to include, as

Scalia himself notes, those acts which are found “‘contra bonos mores,’

i.e., immoral. In American society, such prohibitions have included,

for example, sadomasochism, cockfi ghting, bestiality, suicide, drug use,

prostitution, and sodomy.”23

It is worth noting the highly diverse list of practices that are

included on this list. Prohibition of cockfi ghting is for the protection

of animals. Bestiality deals with degrading human practices as well as

animal abuse. Sadomasochism and suicide prohibitions deal with the

protection of self. Prostitution and sodomy involve consensual arrange-

ments. It should be clear that all these forms of protection raise serious

problems of their own, for some of them at least can be justifi ed in part

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Freedom of Speech and Religion 393

as health or safety measures. With regard to at least one practice, sod-

omy, the Supreme Court has backed off the precedent set in Bowers v.

Hardwick,24 so that any regulation dealing with sexual conduct is now

in play precisely because it has at most a partial overlap with the tradi-

tional police power justifi cations, as Justice Blackmun’s Bowers dissent

vigorously protested.25 These same morals justifi cations have an obvi-

ous role to play given the strong religious objections to homosexuality

in general. But, here again, the classical liberal approach has to look

with suspicion on any efforts to carry these generalizations into the sec-

ular sphere. The strong protection of religious rights necessarily must

curtail the scope of the police power as well.

All this is not to say that the class of potential justifi cations in speech

and religion cases is inconsequential, any more than this could be said

in other areas. Private land use, for example, has long organized around

the tort of nuisance, which is a complex but limited branch of the law

dealing chiefl y with non-trespassory invasions of one person’s property

on the land of another, but occasionally touching other kinds of non-

invasive conduct, such as spite fences.26 Just how do these rules apply

in cases where zoning laws, for example, prevent the use of advertise-

ments or for sale signs,27 or the building of churches in certain neigh-

borhoods?28 The potential classical liberal justifi cations available to the

state in speech cases can likewise run broadly. At a minimum, virtually

every argument that could raise a valid claim against a speaker under

the private law (including appeals to the law of nuisance and fraud) can

in principle afford a parallel justifi cation to the state. This list of defenses

is larger than commonly supposed in both speech and religion cases.

At the top of the list, of course, are justifi cations that are intended to

counter the private use of force and fraud, including defamation, inva-

sion of privacy, and intentional infl iction of emotional distress. These

can prove exceedingly diffi cult to apply in religion cases where the line

between true belief and religious hucksterism is hard to police.29 Sec-

ond, common law and equity courts also recognize a cause of action

for the inducement of breach of contract, including bribes, but only

in those cases where the inducer is on notice of the existence of the

contract or the status of the public offi cial. Third, there are all sorts of

actions brought against persons who enter into contracts in restraint of

trade. Fourth, there are the rules in place to govern the use of the com-

mons—meaning any area that is open to the public, be it on a general or

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394 Individual Rights: Speech

restricted basis. Fifth, there are rules that protect against the exploitation

of infants. Finally, it is necessary to address the amorphous set of “mor-

als” defenses which include, as noted, key questions such as marriage,

prostitution, gambling, and the like. The subsequent chapters in the next

two sections take up these topics, fi rst for speech and then for religion.

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Force, Threats, and Inducements

THE INITIAL ROUND of First Amendment litigation arose in the after-math of World War I, where the central issue on the table related to the interconnections of force, threats of force, and inducement. Fre-

quently, force and persuasion lie at opposite poles in political discourse,

as the former short-circuits the public debate that the latter fosters. In

a deep sense, the First Amendment offers protection against the dan-

gers of industrial policy in the domain of public discourse. It is not the

function of government to pick winners and losers in political debate.

Rather, it is to let all speak, no matter what the content of their message

or its popularity with the public at large. A society needs its gadfl ies

just as it needs its heroes. Letting all speak allows everyone to say their

piece, no matter how fi erce the level of objection. Indeed, the more

potent or outlandish the argument, the greater the need for it to be

made—no matter how much it hurts the feelings of those on the los-

ing side of the debate. Entry into political debate does not require the

majority’s consent, let alone its blessing. Consistent with the narrow

version of the harm principle, the offense or hurt that people expe-

rience from the publication of adverse sentiment should be regarded

as “noncognizable” in the sense that no legal liabilities of any sort are

generated. No one should take these private harms into account in any

social cost-benefi t analysis of political discourse.

There is, however, a second cut. That persuasion which is used to

ask people to step up to their political or civic obligations is welcome.

But the use or threat of force, which is banned in all other areas of life,

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396 Individual Rights: Speech

receives no comfort or protection from the First Amendment. It is well

understood that these actions are inconsistent with the operation of any

voluntary market. Those markets depend on true information in order

to guide exchanges that work for the benefi t of both parties. Introduce

force or the threat thereof, and its target no longer compares the value

of what is surrendered to that which is received. He compares the value

of what is surrendered to the threat of greater loss if he does not comply

with the demands of others. All political and expressive markets are

subject to the same constraint, so that it becomes necessary to police the

delicate line between force in all its manifestations on the one side and

persuasion on the other.

Nor do force and fraud mark the limits of the proper state control of

speech. The same can be said of that limited form of persuasion which

asks any person to breach his or her preexisting obligations. The closest

private analogy to the constitutional issue is the tort of inducement of

breach of contract, with special emphasis on the word “breach.”1 For

example, inducing an employee to leave his job when he is free to do so

has the positive result of fostering competition, a critical component of

sound market operations. But urging an employee to leave his job when

doing so would breach a contract has the negative result of undermining

the entire system of voluntary association.

Unexpected Synergies

On this view, inducement of a breach of duty goes hand in hand with

the use of force and fraud in order to achieve any set of ends. In fact,

both analytically and historically, it is impossible to treat them sepa-

rately since they are typically used in tandem. Any person who is intent

on having his way will usually resort to both tactics. Even the most

hardened gangster will mix carrots and sticks to gain compliance. The

inexorably self-interested logic is that the fi rst carrot is far more likely to

have its desired impact of bending a target to the persuader’s will than

the hundredth stick. The rational agent therefore will use whatever mix

of sticks and carrots maximizes the expected return from his efforts to

secure his objective. This unifi ed strategy causes genuine complications

for the First Amendment because it shows how diffi cult it is to draw

any sharp and principled line between action and speech. The problem

is acute precisely because everyone agrees that the use of force should

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Force, Threats, and Inducements 397

not be afforded the same First Amendment protection as speech, even

if that force is meant to issue a warning to others, and thus has some

expressive content: hanging a hated rival from the lamppost to express

indignation at his political beliefs does not immunize the killer from lia-

bility for murder. Tort law calls this form of expression “actual malice”

which, if anything, aggravates the wrong. No one would dare defend

the opposite result, even one reluctant to embrace the general classical

liberal theory on other matters.

That same classical liberal theory makes it impossible to adopt any

truncated account of what it means to use force as once again the anti-

circumvention principle comes into play. The need to guard against

private abuses of power has always led everyone, everywhere, to treat

the threat of force as a form of force, even if threats necessarily involve

speech, gestures, or other forms of communicative conduct. Think of

what the world would look like if that position were rejected. A robber

goes to someone and says, “Your money or your life.” Prudently, the

victim surrenders the money to save his life, and in so doing obviates the

actual use of force. No one would dare argue that this threat to use force

should receive constitutional protection under the guarantee of freedom

of speech just because no force has actually been used.

This set of examples raises the question of what circumstances and

what threats are beyond the protection of the First Amendment. Just

looking at coercion in isolation, this question gives rise to immense dif-

fi culties that pervade the criminal law of assault and battery and self-de-

fense. It is delusive to think that any constitutional analysis could sidestep

the necessary ambiguities that defi ne this problem as a matter of fi rst

principle. The problem is acute because there is nothing in the logic of

threats that makes them credible only if the threat of force is imminent.

Threatening to use force next week if a check is not received in the mail

tomorrow is the essence of the tort of intentional infl iction of emotional

distress,2 which does not receive immunity from legal sanction solely

because of its delayed consequences. To be sure, the immediacy of the

threat is always relevant, but never dispositive: most extortionists are

quite happy to give their target some time to raise the money.

This problem with threats—their immediacy and their severity—

is compounded by positive inducements to secure compliance. These

inducements, moreover, need not be combined with the threat of force

but often work quite well without it, as in cases of bribery of public or

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398 Individual Rights: Speech

private offi cials, or indeed any (tangible) inducement intended to make

public or private offi cials disregard their duties to citizens in the fi rst

case or shareholders in the second. The potential range of police power

justifi cations for state intervention therefore is quite large even if we

seek to confi ne the analysis to those that make sense under any small

government theory of constitutional law.

National Security in Wartime

All of these elements have surfaced in somewhat chaotic fashion in the

fi rst generation of freedom of speech cases that arose during and after

World War I. Reduced to a sentence, these were all concerned with one

constellation of issues: how much running room do you give individuals

to urge and cajole before the state can pounce on them with a criminal

prosecution?3 The focal point of much of this litigation was the Espio-

nage Act of 1917, passed during President Woodrow Wilson’s second

term, which made it a crime to willfully “make or convey false reports

or false statements with an intent to interfere” with the military success

of the United States, or “to promote the success of its enemies.” It also

made it criminal to willfully “cause or attempt to cause insubordination,

disloyalty, mutiny, or refusal of duty, in the military or naval forces of

the United States,” and fi nally, to willfully “obstruct the recruiting or

enlistment service of the United States.”4

Here is the nub of the problem. No one can credibly claim that the

statutory ends are illegitimate. Nor can they credibly claim that all forms

of inducement—whether mixed with threats of force, as they often

are (think picket lines)—are, or should be, categorically insulated from

criminal prosecution. So, in the end, the entire matter necessarily boils

down to one of the extent and degree of the government prohibition.

The ultimate determinants of that calculation always bring the inquiry

back to a choice between two kinds of error: overenforcement on the

one hand and underenforcement on the other. In making that choice,

all the traditional rules about anticipatory relief that arise, for exam-

ple, in connection with issuing preliminary injunctions in nuisance and

pollution cases involving threatened emissions, necessarily arise here

as well. The likelihood of allowing serious harm lies on one side of the

scale, and the dangers of attacking legitimate speech sit on the opposite

side. The ever-present fi xation on immediacy always cuts in favor of the

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Force, Threats, and Inducements 399

accused: if there is a later stage at which dangerous activities could be

stopped, with the possibility of damage actions or criminal sanctions,

the balance of convenience shifts against immediate enforcement. Every

one of the relevant First Amendment inquiries relates to using remedial

choices for future and uncertain harms that arise daily in nonconstitu-

tional settings. Yet the high stakes of constitutional adjudication give

us no novel tools to put in the judicial tool kit. Carrying the traditional

analysis of remedial uncertainty over to the First Amendment context

does not bias or inform that inquiry.

So how do we draw the line on timing, and why? An earlier 1907

Holmes decision held that the publication of a cartoon and articles

attacking the probity of the Colorado Supreme Court was not protected

under the First Amendment because it “tend[ed]” to interfere with the

administration of justice.5 That “bad tendency” test helped shape the

subsequent litigation under the Espionage Act, but it did not clinch

the argument for state power. No ardent government prosecutor ever

argued that simple disapproval of American involvement in foreign

wars was criminal under the Espionage Act, even though it could lead

thoughtful or impressionable individuals to resist induction into the mil-

itary. But once the anti-government talk got so nasty and bellicose that

participants in the war were branded agents of Satan and patriotism was

equated to murder, the mood changed. At least one early lower court

decision, Shaffer v. United States,6 left the question of criminal incitement

to the jury, which could vote to convict even though it was not obliged

to do so.

The most famous case in this line was Schenck v. United States,7 in

which Justice Holmes also sustained a criminal conviction under the

Espionage Act for mailing an infl ammatory socialist leafl et denounc-

ing American participation in the First World War. Two portions of this

opinion deserve special attention.

First, Justice Holmes noted that “[t]he question in every case is

whether the words used are used in such circumstances and are of such

a nature as to create a clear and present danger that they will bring

about the substantive evils that Congress has a right to prevent. It is a

question of proximity and degree.”8 Note that he does not, nor should

he, restrict those “substantive evils” to the use of force or fraud, which

would ignore all cases of improper inducement. Nor is this test as tol-

erant of government action as the earlier bad tendency test in Patterson.

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400 Individual Rights: Speech

Holmes then utters in Schenck the famous line: “The most stringent pro-

tection of free speech would not protect a man in falsely shouting fi re

in a theatre and causing a panic.”9 Yet even though this sentence proves

that the First Amendment is not absolute, it hardly proves that the broad

exception to it accepted in Schenck makes any sense. The shouting of

“fi re” will cause panic precisely because no other actions are needed for

it to have its desired effect. Yet the contribution to any discourse on any

topic is negligible.

Neither of those propositions is true about the speech in Schenck.

Holmes gets a bit closer to the line in his previous sentence, which is

usually not quoted: “[The First Amendment] does not even protect a

man from an injunction against uttering words that may have all the

effect of force.”10 For that proposition he cites a labor injunction case,

Gompers v. Buck’s Stove & Range Co.,11 which held in principle that agree-

ments to conduct boycotts through “verbal acts” may be “as much sub-

ject to injunction as the use of any other force whereby property is

unlawfully damaged,”12 while undoing the contempt citation in the par-

ticular case for overbreadth. Those labor boycott cases are also stronger

against the defendants, all of whom had agreed to act in concert with

one another in pursuit of what was at the time an unlawful boycott.

Neither Holmes’s hypothetical nor Buck’s Stove supports his principled

exception to the First Amendment.

Holmes also pounces on what may have been a fatal concession

of the defense: “if an actual obstruction of the recruiting service were

proved, liability for words that produced that effect might be enforced.”13

But Holmes misses on the causation and timing issues. The verb “pro-

duced” does not attach any weight to the set of decisions that must be

made by other individuals after they receive the leafl et through the mail.

This case therefore hardly looks like one that is covered by the common

law of attempts given the multiple decisions and actions by others that

must intervene—each of which offers a potential target for government

intervention that has far less adverse effects on political speech. The tim-

ing of the remedy is thus critical, and on that issue the First Amendment

cautions against resorting to overlong chains of causation to ground a

criminal conviction.

Holmes’s decision in Schenck should be contrasted with Learned

Hand’s famous 1917 opinion in Masses Publishing Co. v. Patten which re-

vealed a visceral reluctance to punish actions of generalized incitement.14

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Force, Threats, and Inducements 401

Hand had previously considered the similar question (but not with crim-

inal prosecutions) of whether the postmaster general could keep out of

the mail periodicals that published lurid and vigorous attacks against

U.S. military efforts. The case was diffi cult in principle because of two

factors. The Masses (a revolutionary outfi t as its name suggests) intended

to disrupt the military effort and likely would have had some success.

Learned Hand refused to grant the postmaster an injunction because he

did not want to construe the term “cause” that broadly, lest he suppress

too much criticism of the war effort. What is troublesome and perhaps

wrong about his opinion is not the refusal to let the postmaster have

his way, but his seizing the occasion for a metaphysical disquisition on

causation when in fact it raises the same hard question that arises in all

cases of anticipatory bans: which type of error produces greater harm,

overenforcement or underenforcement?

The correct analysis, therefore, is not to parse, as Hand did, the

words of the statute, or to put quotation marks around the word “cause,”

but to be candid in the overbreadth analysis. Two points cut that way.

First, there is no particular person to whom this message is directed, so

there is no way to be sure which of a thousand such infl uences impelled

the action of, say, any draft resistor. Second, a more focused remedy is

available against anyone who violates the law, or, perhaps anyone who

counsels illegal activity in a more direct way. The simple linguistic ploys

do not get at the hard issues.

The same year that gave us Schenck, 1919, also gave us Debs v. United

States.15 The still unrepentant Justice Holmes wrote for a unanimous

court in upholding a conviction of the noted socialist presidential candi-

date Eugene V. Debs for a fi ery speech that he made at the Ohio conven-

tion of the Socialist Party in June 1918, before the First World War had

come to an end. Note the risks just from the trial itself: even an acquittal

after prosecution is a harrowing experience, so that the defenders of free

speech cannot rest easy with this result. What they want is immunity

from suit under a doctrine too clear to admit exception.

So matters stood until Abrams v. United States, also decided in 1919,16

which resulted in yet another conviction of Jewish socialist supporters

of the Bolsheviks, who distributed incendiary leafl ets supporting their

cause. The views that Learned Hand had expressed in Masses did not,

evidently, wean the Supreme Court off the pro-prosecution sentiment

that Holmes had voiced in Schenck. So once again, the majority of the

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402 Individual Rights: Speech

Court sustained the jury verdict on the simple ground that nothing in

the record could upset it. But Learned Hand did win over Justice Holmes,

who wrote a memorable dissent that has since become a landmark of

the law of free speech.

His analysis deserves close attention. As a matter of criminal law,

the Court is surely correct to say that no one can defeat an allegation

of criminal intent by alleging virtuous motive. An accused cannot

escape the clutches of the Espionage Act by insisting that he wanted

to save Russia, not hurt the United States. Holmes is wrong in contest-

ing this point by claiming that the adverse consequence targeted by

the government has to be “the proximate motive of the specifi c act.”17

That standard has never applied in other contexts, and it should not

apply here.

Where Holmes reaches his rhetorical genius is on making the crit-

ical second-order judgment on questions of degree. He starts modestly

enough by summarizing his earlier view in Schenck: “the United States

constitutionally may punish speech that produces or is intended to pro-

duce a clear and imminent danger that it will bring about forthwith cer-

tain substantive evils that the United States constitutionally may seek to

prevent.”18 Quite simply, he concludes that publication of pamphlets is

never “forthwith” enough to justify the imposition of this punishment,

given the First Amendment commitment to freedom of speech. That

result should, however, apply as a matter of general criminal law wholly

apart from the First Amendment, which shows the extent to which ordi-

nary criminal law, when rightly construed, is respectful of the claims

of freedom of speech. With the underbrush cleared away, Holmes then

displays the full extent of his rhetorical genius by penning the following

memorable passage:

But when men have realized that time has upset many fi ghting faiths, they may come to believe even more than they believe the very foun- dations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression

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Force, Threats, and Inducements 403

of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.19

In time, Holmes’s insistence that the publication of general manifes-

tos did not warrant criminal prosecution gained ground. That position

led him in 1925 to join Justice Brandeis in protesting the “Red Scare”

prosecutions for criminal anarchy in Gitlow v. New York,20 given that the

“Left Wing Manifesto” was not targeted to any particular audience. A

similar state conviction was sustained in Whitney v. California21 over the

fi erce, principled objections of Justices Holmes and Brandeis, who con-

curred on narrow technical grounds only.

The issues that were in full heat in the aftermath of World War I

returned to prominence with the Red Scare during the 1950s, when

once again the Communist threat gave rise to genuine concerns as to

whether the First Amendment protected speech directed against the

security and safety of the United States. At issue was the application

of the Smith Act, which made it a crime “to knowingly or willfully

advocate, abet, advise, or teach the duty, necessity or propriety of over-

throwing or destroying any government in the United States by force

or violence. . . .”22 Additional provisions prohibited the publication or

printing of materials that tended toward that end and organizing or

helping groups achieve those ends.23

In Dennis v. United States,24 the issue came to a head when the United

States charged that the defendant had, during the period from April 1,

1945, to July 20, 1948, published pamphlets and otherwise engaged in

instruction that incited individuals to take steps to overthrow the United

States by force and violence. The district court charges took pains to note,

“it is not the abstract doctrine of overthrowing or destroying organized

government by unlawful means which is denounced by this law, but the

teaching and advocacy of action for the accomplishment of that purpose,

by language reasonably and ordinarily calculated to incite persons to

such action.”25 In the Second Circuit, an older, but not necessarily wiser

Learned Hand—author of the defense of free speech in Masses—affi rmed

the decision by making this inroad to the clear and present danger test

derived from Schenck: “In each case, [courts] must ask whether the grav-

ity of the ‘evil,’ discounted by its improbability, justifi es such invasion

of free speech as is necessary to avoid the danger.”26 That approach was

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404 Individual Rights: Speech

explicitly endorsed by the Supreme Court, which placed ample reliance

on the cautionary instructions given to the jury.

On balance, the case for this particular position seems thin, espe-

cially when the discounting is done correctly. The very length of the

instructional period suggests that nothing serious was afoot. A pro-

longed immersion in such standards as the Communist Manifesto of

1848 should not provoke those dire predictions. Indeed, as Justice Black

pointed out in his Dennis dissent,27 this particular prosecution did not

even charge the parties with an attempt to overthrow the government,

precisely because no such attempt existed. Nor did they even say or

write anything that in itself was designed to overthrow the government.

All their speculations were to take effect, if at all, at some later date that

in fact never came. The majority decision of Chief Justice Fred Vinson,

and the concurrence of Justice Frankfurter, can be commended for their

awareness of how close this case came to the line. No dictatorship could

long fl ourish under their view. But that said, it seems as though they put

the line in the wrong place, given that the traditional criminal law doc-

trines of conspiracy and attempt remain in force against defendants who

shift their activities from the openness of the classroom to the secrecy of

the criminal cell.

It is therefore no surprise that these criminal prosecutions petered

out. In Yates v. United States,28 the Court—speaking through Justice John

Marshall Harlan—threw out a similar Smith Act prosecution by a six-to-

one vote, by giving only lip service to Dennis and its distinction between

teaching the forcible overthrow of government as an “abstract principle”

and its concrete instantiation in an actual plot. In time, the whole bad

tendency doctrine came clattering down as tolerance for contentious

speech rose during the 1960s. In Edwards v. South Carolina29 and Cox v.

Louisiana,30 the Court paid no attention to any version of the bad ten-

dency doctrine when it invalidated the convictions of civil rights protest

marchers before the statehouse and the courthouse respectively, even

though the risk of force loomed larger in these cases than in the pam-

phleting cases that arose during and after World War I. Finally, the entire

World War I edifi ce was dismantled in Brandenburg v. Ohio,31 which arose

from protests to the Vietnam War. No longer would “abstract objections”

about the merits of the Vietnam War give rise to any criminal prosecu-

tions. The verbal distinctions that had sustained conviction in Dennis

were now put in service of the First Amendment. The willingness to stay

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Force, Threats, and Inducements 405

the hand of government prosecutors against publications was a great

victory in the battle for freedom of speech.

Yet in the midst of this self-congratulation, it is important to under-

stand not only the importance of this line of free speech cases, but also

its sensible narrowness. If some shadowy group meets in secret planning

to bomb a military installation, the law of conspiracy will nail it every

time. If it trains operatives to tackle recruits as they are entering a mili-

tary facility, it will face the same fate. If one bribes a public offi cial, the

First Amendment offers no get-out-of-jail-free card. Once public dis-

course is no longer part of the equation, the law comes down hard (as it

should) against intrigue and conspiracy.

This basic question about the threat and use of force arises not only

in the area of national security but also bears on other diffi cult questions,

such as whether picketing by labor unions in support of their bargaining

demands should count as a disguised use of force or as a high-minded

appeal to public sympathies. This question does not relate to whether

one supports or opposes labor unions, but rather whether it is possible

to disentangle exhortation and threats by strikers who have little or no

sympathy with scabs.

The issues are so fact-intensive that there is no single principle that

explains how these cases should be decided under common law, the

labor statute, or the Constitution.32 The correct approach in this and

similar cases—pickets at abortion clinics offer another example—is to

split the difference in the framing of the injunction. Ban the bullhorns

and baseball bats; keep the picketers twenty feet from the entrance; let

them use signs; watch over them with police. Intermediate cases need

intermediate solutions, all of which begin with the recognition that

preventing both the use of the threat of force and the inducement of

breaches of public obligations are legitimate ends. Scrutiny on means

is thus the order of the day. In the end it is not always possible to have

clear remedial solutions. But once the ends are clear, the means can be

adjusted. The Court’s belated adoption of classical liberal principles has

helped prevent the law from going too far astray. It is important that,

going forward, it be kept on that straight if narrow path.

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy

ONE OF THE CENTRAL DIFFICULTIES in First Amendment law results from its collision with the ordinary law of tort, which is, to say the least, of ancient vintage. When courts chiefl y focus on physical injuries, they

necessarily explore the limitations on freedom of action, starting with

the unwavering judicial commitment against the use of force.1 But just

as the tort law limits the freedom of action, so it also limits the freedom

of speech, and for the same reason—that the harm some speech can gen-

erate outweighs its social value. The parallel between the two positions

is well captured by the general prohibition against the use of force and

fraud in libertarian thought—where the former regulates conduct and

the latter regulates speech. In this regard, a strong presumption should

be made in favor of the proposition that the freedom of speech does not

extend to tortious actions, which include the four potential heads of lia-

bility raised in this chapter: fraud, defamation, intentional infl iction of

emotional distress, and, more haltingly, the invasion of privacy.

Fraud—Commercial and Social

There are strong social reasons to impose limitations on the use of fraud

in human affairs. At a minimum it is clear that deliberately giving mis-

information undermines the voluntary quality of individual actions,

contracts, and relationships. The problem is not limited to commercial

contexts, for fraud is a way in which to achieve advancements in a wide

variety of other social settings as well. In some cases, fraud can be the

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 407

source of physical injuries, as when a man goes over a cliff because he

has been falsely told that a barrier will protect him from the fall. In

commercial contexts fraud can take a variety of forms, including false

statements designed to induce individuals to buy worthless shares of

stock at high prices or to sell valuable assets at low prices. Resume fraud

is a critical issue in employment contexts. In some instances, fraud is an

avenue for social advancement or higher prestige by carefully cultivat-

ing a false, but attractive social image. The First Amendment has rarely,

if ever, been invoked in connection to physical injury, but its relevance

to personal and social interactions is indisputable. The clear line is that

truthful statements should usually escape legal sanction, but fraudulent

ones should not. All too often, however, First Amendment law takes a

too suspicious view toward certain truthful statements, and a too sym-

pathetic a view to false ones. This chapter traces out those developments

in both commercial and social settings.

Fraud in commerce poses a grave threat to the operation of vol-

untary markets. In the normal case, the contracting mechanism works

because each side makes its own valuation of the goods and services

exchanged, so that both parties benefi t from their gains from trade.

Their joint gains open up new opportunities to third parties, so that the

result of most business transactions is win/win both for the transacting

parties and the public at large. When the incorrect estimations of value

derive solely from the misleading acts of one party to the agreement,

the willingness in common law to allow damages or rescission makes

sense both as a commercial matter and within the framework of the First

Amendment.

Indeed, the problem of fraud is so pervasive that private rights of

action given to aggrieved parties after the fraud has taken place are

generally regarded as insuffi cient. That scheme of remedies in com-

mercial cases is therefore supplemented, and often replaced, by two

additional systems of social control. In the fi rst instance, extensive dis-

closure requirements are often imposed on institutional players. Most

credit card and other loans are subject to extensive disclosure devices,

of which the annual percentage rate is the simplest. Most sales of secu-

rities in public markets are made by prospectus whose contents are sub-

ject to oversight by the Securities and Exchange Commission. Fines and

criminal sanctions make up the second supplementary system to combat

fraud. After the fact, individual lawsuits are often diffi cult to maintain

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408 Individual Rights: Speech

in dealing with, say, claims of fraud in the issuance of home mortgages.

Here a system of fi nes and criminal sanctions are a helpful deterrent to

supplement any additional private right of action that may be diffi cult

to maintain. This grand question on the adequacy of private rights of

action takes exactly the same form with fraud as it does with various

forms of physical injury, as elaborate statutes such as the Clean Water

Act2 and the Clean Air Act3 are an essential feature of any rational pro-

gram of environmental protection. The key point in this analysis is that

the same basic strictures that apply to other forms of activities carry over

to speech and other forms of expression. The classical liberal theory thus

supplies a seamless system that governs both the articulation of individ-

ual entitlements and social remedies.

The fl ip side to this concern with fraud is the proposition that peo-

ple are allowed to say what they want so long as their statements do not

mislead others (notwithstanding various proscribed threats, obscenities,

and defamatory remarks). That general proposition applies to all forms of

speech—political, commercial, and social. The key to understanding the

First Amendment in these contexts is to show that its application rests

on these private law conceptions, just as it did in dealing with various

forms of speech that could be construed as threats to use force against

private persons or to overthrow the government of the United States.

In light of this general orientation, the older view that commercial

transactions should be outside the scope of the First Amendment4 is not

defensible in the long run. Unless it runs afoul of the standard prohibi-

tions on speech, commercial speech is entitled to as much protection as

any other. In practice, of course, there is at least one difference between

political and commercial speech that can be understood and policed. No

one should say that all speech in newspapers is commercial because it is

funded by advertisements. But if push comes to shove, it is clearly more

important to keep political and artistic speech alive than commercial

speech, if only because the former holds open a greater possibility of

checking government abuse than the latter. Hence, for structural rea-

sons, it should not matter that many individuals would quite happily

sacrifi ce their rights to political participation in order to buy an adver-

tised fl at-screen television at a bargain price. Systematic concerns have

greater salience than individual purchasing decisions.

By the same token, however, it seems a mistake to demote com-

mercial speech into some nether region along with defamation, fi ghting

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 409

words, obscenity, and the like. Those forms of speech receive low lev-

els of protection precisely because they fall into the traditional police

power categories dealing with the control of force and fraud or, in the

case of obscenity, with moral matters (especially when directed toward

children). It is, however, unwise to consign commercial speech to this

“low-value” category solely because it lacks the social punch found

in many forms of political and artistic expression. Rather, in light of

the substantial benefi ts that advertisement contributes to the smooth

operation of competitive markets, it should be welcomed, not spurned,

and thus afforded an intermediate level of protection, which attaches

roughly equal weight to the risks of over- and under-inclusion.5

Even with that framework, the differences between commercial

and political speech matter. The concrete nature of this speech makes

it easier to identify claims that should be condemned on one of four

traditional grounds: fraud, misrepresentation, concealment, or nondis-

closure. Put otherwise, the class of protected opinion, which is broad in

political and artistic contexts, is far narrower in commercial cases. To

give but one example, trade disparagement and passing off have long

been recognized as a commercial wrong, either by understating the

value of a rival’s goods or pretending that one’s own goods are really

those of a superior competitor.6 Indeed, the Lanham Act, which deals

with “the deceptive and misleading use of marks,” is of unquestionable

constitutionality,7 notwithstanding the inevitable marginal cases that fall

close to the line on both sides. Courts are well cognizant of the poten-

tial confl ict in this area, as in copyright, between free expression and

protected interests; it would be overkill to eliminate on constitutional

grounds all protection of well-established intellectual property rights.

Therefore it did not take any bold judicial initiative to hold that the fair

use exception to the Copyright Act8—so essential to allowing criticism

of published works—did not allow The Nation to publish huge extracts

from the unpublished manuscript of ex-president Gerald Ford’s mem-

oirs.9 When powerful interests lie on both sides of the scale, some rule

of reason is needed govern the tension between them.

In light of these developments, the mixed emotions about commer-

cial speech are best captured by an intermediate scrutiny standard on

both the question of means and ends. The applicable inquiry typically

boils down to a test derived from Central Hudson Gas & Electric Corp. v.

Public Service Commission,10 where the Public Service Commission (PSC)

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410 Individual Rights: Speech

sought to prevent promotional advertising intended to stimulate demand

for electricity in times of acute shortage. In dealing with this question,

the Court in Central Hudson asked whether the expression was covered

by the First Amendment, which it was, and whether it was misleading,

which it wasn’t.11 That second prong makes it clear that fraud, or indeed

any misrepresentation is, at the very least, subject to heightened scru-

tiny. Once that is done the question shifts to justifi cation, so that the PSC

had to show a “substantial” government interest.12 Then the test goes

to means, by asking “whether the regulation directly advances the gov-

ernmental interest asserted, and whether it is not more extensive than

is necessary to serve that interest.”13 The reach of the First Amendment

allows only for tailored restrictions against force and fraud. Thus, it fol-

lowed that the PSC could not block the company’s speech to advance

its business interest in energy conservation.14 That conclusion seems

appropriate given that rate regulators may still set the right prices for

electricity under various conditions. For example, rate regulators could

allow utilities to charge customers higher prices for consumption during

peak periods.

A similar analysis applies to ordinary commercial advertisements

on such key elements as price. The more accurate the information, the

better the public decisions on key issues of the day. But the question of

truth or falsity does not depend on how the advertisement is distributed.

Therefore, one tell-tale sign that state regulation has gone overboard is

any selective limitation on the mode of information distribution. Thus,

the Supreme Court rightly struck down a Rhode Island statute that

banned the use of off-premise advertisements for liquor in the absence

of any credible showing of how this might pose a safety or health haz-

ard.15 Meanwhile, concerns with particular types of transactions can be

addressed through more direct regulation. Any fears dealing with sales

to minors, for example, may be better addressed through direct restric-

tions on sale or consumption, or even by tax increases that tend to have

greater impact on teenagers who have limited income. The various per-

mutations are endless, but a sensible classical liberal framework supplies

the proper analytical approach.

The use of fraudulent behavior in social settings has generally not

been subject to legal sanctions. But the issue received a most unsatisfac-

tory resolution in United States v. Alvarez,16 where the operative provision

of the 2005 Stolen Valor Act (SVA) reads as follows:

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 411

Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States . . . shall be fi ned under this title, imprisoned not more than six months, or both.17

The SVA increased the statutory penalty to one year when the

fraudulent representation involved the false claim of the receipt of

the Medal of Honor, of the sort that Xavier Alvarez made in his fi rst

public meeting as a member of the Three Valley Water District Board

in Southern California. At one level the claim could be treated as a

“pathetic attempt” to gain personal respect, as Justice Kennedy claimed

for a six-member majority.18 But on this issue Justice Alito seemed to

have the better argument by showing that large numbers of individ-

uals had made these claims to the Veterans History Project and Who’s

Who.19 In this setting, the use of a collective social sanction to pick up

the slack where private rights of action leave off seems to be a sensible

legal accommodation similar to that in cases of credit and security fraud.

But the set of social sanctions against this form of fraudulent behavior

broke down, so that the personal exposure of fraudulent speakers had

not been able to stem the increasing tide of these misstatements. Yet

Justice Kennedy went badly off the rails when he noted, “government

has no power to restrict expression because of its message, its ideas, [or]

its subject matter,”20 but instead “demands that content-based restric-

tions on speech be presumed invalid” unless and until the government

can justify those restrictions.21

The statement represents a complete inversion of sound constitu-

tional principles. The notion of content-based laws has an honorable

place to play in First Amendment law, where it is clear, for example, that

time, place, and manner restrictions on expression must apply equally

to persons on the opposite side of a political issue, lest one get an unfair

advantage over another. The whole point of an antifraud regime is to

destroy the undeserved parity between those who tell lies and those

who do not. Indeed, the common position that fraudulent statements

constitute a form of unfair competition that can be enjoined at the

request of their victims makes clear that only by preventing fraud is it

possible to get the correct parity between parties. Justices Breyer and

Kagan thought that they could split the difference by drafting a nar-

rower statute than the SVA, but offered no language that could do the

job better than that which was found in the SVA.22 At this point we see

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412 Individual Rights: Speech

how the First Amendment can be turned on its head, given that false

statements are not part of the freedom of speech that it protects. The

problem here is not confi ned to these fraud cases, for the great criticism

of the Supreme Court’s treatment of defamation under the First Amend-

ment is that it is also subject to this vice.

Defamation

The question of truth or falsity in public debate also plays a signifi cant

role in defamation cases, particularly in actions brought by public offi -

cials and public fi gures against media defendants—print, broadcast, and

Internet—for defamation. The logic of the basic tort of defamation fi ts

securely within the framework of classical liberal theory. The tort of def-

amation involves a minimum of three parties: the defendant makes a

false statement of fact about the plaintiff to a third party, who in con-

sequence of the false information alters his or her relationships in ways

that deprive the plaintiff of benefi cial commercial or social relationships.

The action often gains real force because publications in media cases are

directed toward third parties, all of whom may be persuaded to alter

their behavior in ways that hurt the plaintiff’s business or social pros-

pects. In most situations, therefore, a plaintiff is entitled to sue for gen-

eral damages, whereby she does not have to track down the individual

perceptions of every person who could have voted for her in an elec-

tion, watched a movie in which she starred, or avoided some business

product that she promoted. Such cases are always fact-intensive inso-

far as the loss of business or friendship could have arisen from other

causes, which a defendant may always introduce at trial to cut down on

awarded damages.

However, if the abstract logic of defamation cases fi ts within the

classical liberal framework, its implementation does not. Blackstone’s

infl uential early statement gave much shape to this area:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matters when published. Every free man has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.23

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 413

The fi rst half of this proposition has remained rock-solid. The early

restraint runs the risk of vast overbreadth. Applied consistently, it could

also bankrupt newspapers and individuals who are subjected to these

injunctions. The second half of the proposition is, however, far more

problematic. On the plus side, it is just the availability of damage reme-

dies that eases the sting where defamation has worked its harm. On the

negative side, the woolly defi nition of matters “improper, mischievous,

or illegal”24 makes it all too likely that, in some instances at least, law-

makers and judges can and will use heavy damage judgments to cudgel

unwelcome critics into submission.

Common law judges who worked on the subject before it came under

First Amendment restraints in New York Times Co. v. Sullivan25 acknowl-

edged these twin risks.26 Their ingenious accommodation allowed false

statements of fact to generate liability wholly without proof that the

defendant meant to harm the plaintiff or failed to take reasonable steps

to avoid such harm. In this instance, private parties, public offi cials, and

public fi gures (entertainers, authors, movie stars, magnates, and the

like) were all subject to the same rule. The question in each case was

whom the false statement harmed, not whom the defendant meant to

hit.27 This tough standard, however, was offset by rules that gave exten-

sive protection to any defendant who presented a reasonably complete

view of the facts of a case, or who relied on facts in common knowledge

to back up their opinion about whether the plaintiff was a thief or an

unscrupulous opportunist. That privilege of fair comment was absolute,

and again it applied indifferently to all classes of plaintiffs.28 And fi nally,

the Supreme Court in Near v. Minnesota29 adhered to the prohibition

against prior restraints, i.e., those that prevent publication, in defama-

tion cases, without committing itself to an examination of the state law

rules in defamation cases.

In general, these rules worked well until they ran smack into the

civil rights turmoil of the late 1950s and early 1960s.30 In the landmark

case of New York Times Co. v. Sullivan,31 a Montgomery public safety com-

missioner claimed that an advertisement published in the Times by var-

ious civil rights groups had defamed him. Only about 394 copies of the

Times were sold in Alabama, and the Alabama Supreme Court sustained

an award of $500,000 in general damages, without any proof of mal-

ice—with prospects of still more adverse judgments against the Times

as other southern offi cials in the nebulous class of potential plaintiffs

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414 Individual Rights: Speech

lined up for blood. The simplest way to attack this miscarriage of jus-

tice was to dispose of the damage award on the ground that a local folk

hero could hardly have suffered any damages at all. (It also would have

helped if the Times could have removed the case to federal court, which

was not possible because of the strategic naming of four Alabama clergy-

men whose names had appeared in the allegedly defamatory advertise-

ment.)32 That simple decision would have ended the threat to the Times

and made it clear that the First Amendment (when applied to the states)

limited the ability of legislatures and courts to work their judicial magic.

Nonetheless, all the justices of the Supreme Court were troubled

with the strict liability standard used in common law defamation cases.

Justice Black, joined by Justice Douglas, took a misshapen absolutist

view, which would have undone a huge chunk of state defamation law,

by affording the defendants an absolute privilege against any suit by

public offi cials. But that view would tolerate the worst of frauds. Thus,

Justice Brennan’s view—requiring a showing of “actual malice”33 on

the part of the defendant in suits against public offi cials (soon extended

to public fi gures like actors and athletes,34 but not private fi gures, for

whom a negligence standard was used for no particular advantage, but

with far less controversy)35—backed off the absolutist position of Justice

Black and Justice Douglas. “Actual malice” is something of a term of art

because it is defi ned not as bad motive—e.g., race hatred—but exclu-

sively as making a statement knowing that it was false, or in reckless

disregard of its truth or falsity.36 It is at this point that “First Amendment

exceptionalism” creates constitutional protections for false statements

that go beyond those afforded under classical liberal theory, which does

not slight the role of individual reputation as an interest worthy of legal

protection. It is incumbent therefore to ask whether this striking depar-

ture from the older rules improves the overall situation.

On balance, the old synthesis did better. One risk of the new rule

is that weak protections for public offi cials against defamation could

easily deter some able individuals from entering the political arena in

either administrative or electoral roles. Another is that the extraordinary

diffi culty of fi guring out which actors in a complex production process

had what knowledge, or harbored what intention, adds to the costs of

resolving disputes, even when the falsity of the statement is evident from

facts clearly on the public record. One possible compromise would deny

recovery of damages but force the media defendant to acknowledge and

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 415

correct its false statement of fact in a manner, and with the same level of

publicity, with which it had been originally imported. Under the retrac-

tion laws of many states, the publication of this corrected statement will

be suffi cient to negate any action for punitive damages, and the com-

mon practice is for most litigation to cease with that publication.37

But if the defendant remains adamant, as often happens, the plaintiff

cannot typically get a declaration of truth even if he or she is prepared

to waive claims to all damages. The press is more concerned with the

(deserved) hit to its reputation, which is exactly why correction should

be allowed as a remedy for ordinary individuals whose reputations have

been grievously injured by the press. Just that result has been approxi-

mated in at least one decision. In the famous struggle between the then

Israeli general Ariel Sharon and Time, Inc., Judge Abraham Sofaer ruled:

“In New York, a plaintiff entitled only to nominal damages of one dollar is

entitled to the vindication which a jury verdict can bring.”38 The cleaner

solution would allow the fi nding of falsity without worrying about either

nominal or punitive damages.39 This model allows the truth to prevail.

However, media defendants have resisted this approach fi ercely because

they do not wish to take the reputational hit similar to that which their

stories often infl ict on private parties who do not have the ability to fi ght

back. It is also worth noting that large corporate parties are often mortally

afraid to pursue any remedy against a media defendant for fear of being

fl ayed in the public eye by the party whom they have sued.

The combined effect of the various defenses open under the New

York Times solution has reduced suits against media defendants to a mere

trickle in the last twenty years. Yet losses to individual plaintiffs’ repu-

tations matter, and a careful scrutiny of all aspects of the defamation

suit under the older common law rules seems to set the better balance

between the plaintiff’s interest in reputation (i.e., the relational interests

she has or hopes to acquire) and freedom of speech than the Supreme

Court’s current solution, which offers ordinary people too little, not too

much legal protection. Sometimes government gets too small.

Intentional Infl iction of Emotional Distress

From the earliest times, the common law has offered protection against

assaults,40 which by common account amount to direct offers of force

against the person or property of another. More recently, both in

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416 Individual Rights: Speech

England and the United States, the common law has come to recognize

that the intentional infl iction of emotional distress, often by extreme

and outrageous conduct, is wrongful even though it does not threaten

the direct use of force.41 In most situations, these childish pranks or

worse involve no effort at publication communication, and hence raise

no First Amendment concern. But in some cases, at least, the mixture

of the profane and the macabre has just that effect by a mixture of def-

amation and poor taste.

This issue has come before the Supreme Court in a number of cases.

Thus in Hustler Magazine v. Falwell,42 Hustler Magazine ran a mock inter-

view with Reverend Jerry Falwell in which he had his “fi rst time” in

a “drunken incestuous rendezvous with his mother in an outhouse,”

splashed over a small disclaimer announcing that the ad was just a par-

ody.43 Speaking through Chief Justice Rehnquist, the Supreme Court

held that given the need for “breathing space” under the First Amend-

ment, the suit could not proceed either under a theory of defamation or

of intentional infl iction of emotional distress.44

The argument for the fi rst conclusion was that no one could believe

that the statement was true—which is not to say that it could not, even

if known to be false, cause others to avoid a particular party out of an

abundance of caution or distaste, which was the common law rule.45

The claim for intentional infl iction of emotional distress was likewise dis-

missed on the ground that First Amendment values often require “public

fi gures” to toughen their hides against malicious assaults.46 More specifi -

cally, Rehnquist feared that the allowance of this action would open the

doors toward lawsuits against political commentators such as the car-

toonist Thomas Nast—even though he cited no case demonstrating that

awful eventuality. The decision in Hustler may have been correct for the

simple reason that Falwell used the Hustler story in his own fundraising

efforts.47 But it is surely incorrect insofar as it relies on the slippery slope

argument to make a case. Slippery slope arguments have some traction

when it is still unsettled whether a narrow decision imposing liability will

lead to ever more aggressive applications of the basic rule. But in Hustler

that risk has been negated by extensive experience, because the common

law courts and juries have always been alert to the possible dangers. The

only way to guard totally against overbreadth is to curtail the relief that

is otherwise warranted. The breathing space argument thus fails to give

equal weight to the second form of error—that individuals will be need-

lessly harmed by extreme and outrageous conduct.

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 417

The role of intentional infl iction of emotional distress as a com-

panion to defamation arose in more poignant circumstances in Snyder

v. Phelps,48 where once again the Supreme Court’s overambitious First

Amendment exceptionalism pushed free speech to its outer limits. The

Westboro Baptist Church mounted a tasteless demonstration on public

lands on the day of the funeral of Lance Corporal Matthew Snyder, in

Westminster, Maryland. Out of sight and at a distance of about 1,000

feet, the demonstration falsely (and irrelevantly) accused him of being

gay. As in Hustler, the defamation case was (wrongly) dismissed on the

ground that no one would believe that rant, but the case for intentional

infl iction of emotional distress did reach the jury, which awarded very

substantial damages: $2.9 million in actual and $8 million in punitive,

which the district court trimmed to $2.1 million while leaving the ver-

dict and actual damages intact. Relying on Hustler, the Supreme Court

threw out the entire case.

On the facts of the case, the dismissal should have been cautiously,

not eagerly embraced. The defendant’s demonstration was out of sight

of the funeral, and thus was in a sense no more offensive there than at

Westboro’s headquarters in Topeka, Kansas. Even tort law is reluctant

to allow for these actions in the absence of any direct sensory obser-

vation.49 But, whether as a matter of tort or First Amendment law, the

case surely should have come out the other way if the demonstrators

and its chants were done to harass individual attendees to their faces,

or otherwise disrupt the funeral services. Let those lines be crossed and

the balance no longer favors the supposed political message that is used

as an excuse for infl icting gratuitous pain on people who are entitled

to a moment of quietness. Snyder is not an occasion to celebrate the

robustness of the First Amendment. It is a moment to lament the bad

taste of those who push its protection to the limits. In a world where

some form of balancing is inescapable, the Supreme Court missed the

useful opportunity to set some limits on boorish behavior, just as the

case should have induced the Court to retreat from its overly restrictive

actual malice rule in defamation cases.

Invasion of Privacy

The uncertain fate of actions for invasion of privacy offers a different

glimpse of the unity of the classical liberal conception with its dual

emphasis on the twin wrongs of falsity and the breach of contract. In this

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418 Individual Rights: Speech

connection, the key issue is whether the publication of truthful informa-

tion acquired in lawful ways should be regarded as an actionable inva-

sion of privacy that can allow its victims a right of action for damages or

an injunction against future publication. The original impetus for a tort of

invasion of privacy stemmed from the famous article that Samuel War-

ren and Louis Brandeis penned in the Harvard Law Review in 189050 to

keep the press from prying into private affairs—in that instance, to curb

the sensationalist coverage of Warren’s daughter’s wedding. This tort has

some traction, as it should, when the invasion of privacy comes from one

of two sources. The fi rst is where the information is obtained in confi -

dence from a plaintiff, at which point the common law rules on contract

and trade secrets set the stage for their enforcement. The second is where

a defendant enters the plaintiff’s property or otherwise snoops on private

conversations. This can occur even in the absence of a formal trespass,

when the defendant goes where he knows that he is not wanted and

when he publishes the materials in the paper51 or worse, on YouTube.

The initial presumption in these cases, therefore, cuts against the

Warren and Brandeis position, on the ground that no persons should

be entitled to the same protection against the publication of truthful

information as against false information. It is for that reason that over

the years, the Warren and Brandeis position has been eviscerated by the

creation of an extensive First Amendment “newsworthiness” exception.

The fi rst espousal of the “newsworthiness” exception in 1940 allowed

a merciless dissection of the life of William James Sidis, a child prodigy

turned eccentric genius, by James Thurber in a well-known New Yorker

piece, the publication of which contributed to Sidis’s early death.52

The initial libertarian impulse is to challenge this entire branch of

the law of privacy. The hard question in this context is whether it is

possible to carve out any narrow exceptions to the right to publish true

facts in those few cases where the deleterious effects to the private indi-

vidual far exceed any gains to public discourse. The presumption at fi rst

should be set against allowing these exceptions, but the one case that

might well overcome that presumption is the public disclosure of embar-

rassing private facts, which receives some limited endorsement in the

Restatement (Second) of Torts, Section 652D, as articulated by the late torts

scholar William L. Prosser.53 One attractive test of that position arose

in Briscoe v. Reader’s Digest Association,54 where the California Supreme

Court rejected Reader’s Digest’s First Amendment claim of privilege for

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 419

publishing the name of a rehabilitated truck hijacker some eleven years

after the event, thereby causing his family to leave him. Briscoe was to

fi nd that there was no public interest in this disclosure, but it remains

an open question as to whether this privilege should be granted in light

of claims that the concealment of this information allows the plaintiff to

continuously misrepresent his past to his family. I therefore have more

sympathy for this case if the family already knew of the information, so

that the public disclosure just subjected them to external abuse that they

could not tolerate.

Whatever the soundness of this uneasy judgment, the nascent pri-

vacy privilege in Briscoe came to a crashing halt in Cox Broadcasting Corp.

v. Cohn,55 where the U.S. Supreme Court held that a Georgia law that

prevented the publication of a rape victim’s name fell before the First

Amendment. In this case, keeping the information quiet is by no stretch

of the imagination part of a scheme by any person to conceal her past

from strangers, and the protection goes a long way to ease the reen-

try of these rape victims back into society. It is worth noting that most

newspapers tend not to publish the names of rape victims, who in litiga-

tion are often called “Doe” or “Roe” (as in Roe v. Wade56 on abortion, for

example). It seems a bit odd that the Supreme Court has upheld a First

Amendment privilege on these matters, as most newspapers protect the

name of the rape victim, even when published elsewhere; many advo-

cacy groups beg the victim to tell her story in public in order to increase

awareness of the crime. It thus looks as though the private responses

in the press have, except perhaps in celebrity cases, smoothed over the

rough edges of the classical liberal conceptions.

The analysis in question has to change when the published infor-

mation has been stolen by the defendant or knowingly received by him

as stolen information. The most conspicuous case of this sort was the

Pentagon Papers Case,57 which denied a government injunction against

the publication of the “History of U.S. Decision-Making Process on Viet

Nam Policy”58 that was released to the New York Times and Washington

Post in violation of government policy. The Court denied the injunction

by invoking the strong historical prohibition against the prior judicial

restraint of publication. As is common in these matters, this approach

downplays the difference between the critic who publishes his own

statements and the receiver of stolen documents who publishes infor-

mation that he knows has been taken illegally from others.

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420 Individual Rights: Speech

The closest analogy to these situations involves individuals who

take from a third party property that they know has been stolen from

the plaintiff. The good faith purchaser often receives protection against

the true owner, but the bad faith purchaser, who has knowledge of the

wrongful acquisition of the property, does not.59 Why use a different

rule in dealing with stolen information, including trade secrets, in which

the original owner has a proprietary interest? The diffi culties in the First

Amendment arise with respect to the interests of third parties, which are

at their highest when the publication is of stolen materials that pertain

to matters of public interest.

In dealing with this case, the trade-off is clearly between national

security on the one hand and the integrity of government secrets on

the other. The case recently came to the fore in connection with former

Justice David Souter’s well-publicized 2011 commencement address at

Harvard Law School, which purported to demonstrate the need to incor-

porate extratextual values into constitutional discourse to resolve con-

fl icts internal to the text. Yet, given the existence of the police power, the

only question here is how this task ought to best be done, not whether it

has to be done at all. On that score, Justice Souter writes that the abso-

lutist approach of Justice Black

fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential confl ict with an unfettered right to publish, the value of security for the nation and the value of the presi- dent’s authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a confl ict of approved values, and the explicit terms of the Constitution do not resolve that confl ict when it arises.60

Justice Souter is surely correct to pinpoint the confl ict between the

freedom to publish and the demands of national security, but it takes

more than his general appeal to “values” to resolve the confl ict he iden-

tifi es. Ironically, Justice Souter’s supposed slap at conservative originalist

thinkers is beside the mark, for, as repeatedly stressed, any intelligent

form of originalism has to incorporate the police power into its frame-

work. The real question is just how far the police power’s derogation of

what might otherwise be a plenary right to publish goes and why.

That said, how well does Justice Souter pull off this originalist

inquiry? Well enough, but not fl awlessly. Justice Souter is within reason

to defend the judicial line drawn in the Pentagon Papers Case between

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Fraud, Defamation, Emotional Distress, and Invasion of Privacy 421

matters that merely embarrass the government and those (like publi-

cation of departure times for military vessels) that disclose government

secrets that could imperil military operations. To claim that the presump-

tion against prior restraint covers these cases is to turn the Constitution

into some kind of suicide pact.

Perhaps the right answer to this question rests on nothing more

than the simple observation that the illegal release of documents by

government offi cials should be tolerated whenever government offi cials

have improperly classifi ed these documents as government secrets—

at best a ticklish proposition that might often require ex parte and in

camera judicial review, as in hearings under the Foreign Intelligence

Surveillance Act (FISA).61 This privilege, however, should not extend to

those cases where the parties have not exhausted their efforts to obtain

proper release through these conventional means. At this point, the

desirable institutional strategy is to force the claim of privilege into rec-

ognized legal challenges, such as those under the Freedom of Informa-

tion Act.62 The advantage of this approach is that it does not allow the

wrongful, unilateral actions of some parties to force public disclosure

before the government has a chance to make its case before a neutral

judicial fi gure. Occasionally, the issue of delay may well compromise

some serious public interest when only immediate release can check

government abuse. Yet that does not appear to be the case with the Pen-

tagon Papers, whose general account of government actions contained

no time-sensitive information. This process-based approach requires

courts to develop rules for deciding when such challenges are appropri-

ate, given that any unquestioned claim for total government secrecy is

no more defensible in a constitutional setting than is a claim that gov-

ernment ownership of the roads allows the state the unfettered right to

control the composition of traffi c. The government never has the luxury

of claims of outright ownership.

Whatever the diffi culties in these cases, the balance in values should

be quite the other way when it comes to the publication of stolen busi-

ness trade secrets. Thus in Ford Motor Co. v. Lane,63 the defendant blogger

knowingly received trade secrets stolen from the Ford Motor Company

that related to such vital features as the design of its new models and the

details of its manufacturing operations. He then duly published those

secrets on the web.64 The district court held that the precedent in Penta-

gon Papers prevented it from enjoining publication of those documents

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422 Individual Rights: Speech

unless the defendant breached some confi dentiality agreement or fi du-

ciary duty.65 But the point makes no sense at all. Any third person that

takes these documents should be held bound by the restrictions that

he knew bound the party from which they came. The public interest

supports efforts to keep those trade secrets secret in order that fi rms will

invest the capital needed to generate them. Even where there might

be some indication that the documents in question contain evidence of

some private misconduct, the correct response is to turn those papers

over to government offi cials for examination, not to release them pub-

licly before any such fi nding has been made. It takes a peculiarly dog-

matic mind to equate these business interests with those found in the

Pentagon Papers.

In sum, the analysis of the First Amendment in connection with fraud,

defamation, emotional distress, and privacy is consistent with the gen-

eral theme of this book. There is no special set of tools in the constitu-

tional arsenal that goes beyond those already available in private law for

these same problems. The protection of freedom of speech should never

be twisted to the strange proposition that all speech should be protected.

Rather, the correct line of analysis understands that the presumption of

liberty in the area of speech should be preserved as it is in the area of

action, but that this presumption can be overridden in those cases where

fraud, defamation, emotional harm, or breach of confi dential arrange-

ments enter into the equation. To the extent that modern constitutional

law deviates from these principles, its conclusions lack strong justifi ca-

tion, which results in erratic judicial performance in each of the substan-

tive areas of law addressed in this chapter.

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Government Regulation of the Speech Commons

THE PREVIOUS CHAPTER linked the ordinary conceptions of fraud, defa-mation, emotional distress, and privacy to First Amendment theo- ries of freedom of speech. Since the earliest of historical times, however,

no legal system has ever confi ned itself to regulation of speech or other

activities that take place between private individuals exclusively on pri-

vate property. In addition, the law has had to undertake the diffi cult

and extensive task of regulating the use and operation of common prop-

erty under some amalgam of customary and statutory rules.1 The rise of

these public institutions often reverses the fundamental presumptions of

the private law. Now exclusivity gives way to equal access.

From the Economic Commons to the Public Forum

A common law system of private property, for example, specifi es that

the ownership of land, chattels, and animals is established by the uni-

lateral actions of individuals who are fortunate enough to fi rst occupy

land, grab chattels, or capture animals. The common thread that links

these three cases together is the fi rst possession rule. In sharp contrast,

the basic regimes of common property, dating back to Roman law, never

tolerate these claims for exclusive use, all of which would necessarily

destroy a commons that achieves its greatest value when open to all. The

early arrivals to a river or a highway thus obtain no long-term advan-

tage over later arrivals, with whom they must share the river or road

on fair, reasonable, and nondiscriminatory terms. In addition, when

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424 Individual Rights: Speech

governments create new forms of common property by, for example,

the exercise of their eminent domain power, these too are in general

held in common.

The explanation for this role reversal from private to common prop-

erty is not hard to see, particularly for streets and rivers, which operate

as links between privately owned properties. The great risk of having a

single owner control a highway or river is that he will exert his monop-

oly power to raise prices and to exclude disfavored rivals. In virtue of

that power, the law has long imposed correlative duties of service on

common carriers, namely those operating in monopoly positions under

which they are required to take all customers on reasonable and non-

discriminatory terms.2 The former term is intended to make sure that

the holder of that monopoly power does not receive a supracompetitive

rate of return. The latter term is intended to make sure that no group is

charged with a disproportionate share of the common costs. The same

rules carry over to government when it exercises its monopoly position

over public rivers and roads.

All private common carriers must take all comers, subject to capac-

ity restraints, unless there is some good reason to decline to offer ser-

vices, such as nonpayment of fees or misbehavior. The basic instinct

here is that freedom of association is not the dominant concern in set-

tings where customers do not have any deep or personal interconnec-

tions. Thus this common carrier restriction applies to the operation of a

highway, but not to a private automobile that rides the public highways.

The common carrier has to allow access to all individuals who in the

exercise of their rights of association may choose not to associate with

others. The equal access regime carries over to relatively modern tech-

nologies like railroads and telecommunications in an effort to counter

those powerful tendencies.

One aspect of this doctrine’s historical development in connection

with access to public roads was that the state could not require a private

carrier to take all customers. Instead, in Frost v. Railroad Commission,

the Supreme Court held that the state could only impose on private

carriers various rules that were necessary to preserve the competitive

character of the roads in question.3 Justice Sutherland struck down a

protectionist statutory scheme mandating that “a private carrier may

avail himself of the use of the highways only upon condition that

he dedicate his property to the business of public transportation and

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Government Regulation of the Speech Commons 425

subject himself to all the duties and burdens imposed by the Act upon

common carriers.”4 In so doing he followed a unanimous decision the

year before that the express statutory conversion of a private carrier

into a common carrier “would be taking private property for public use

without just compensation, which no state can do consistently with

the Due Process Clause of the Fourteenth Amendment.”5 That position

did not survive as a constitutional norm, as Justice Sutherland himself

reversed course six years later by taking a rational basis approach to

the same problem.6

The forces that infl uence the governance of common property may

no longer raise constitutional issues in key economic matters, but these

forces are still very much in play in the context of First Amendment

issues, which have never been resolved under a rational basis standard.

Indeed, in this area the history runs in the exact opposite direction. The

nineteenth-century First Amendment cases, chiefl y, had little patience

with the historical differences between private and common property.

But as the level of scrutiny rose, the modern First Amendment cases

came increasingly to rely, often without explicit acknowledgment, on

the basic distinctions developed in connection with common carriers.

For these purposes, the story begins with two 1890s Massachusetts

decisions of Oliver Wendell Holmes, one dealing with employment law

and the other with public streets and parks. In McAuliffe v. City of New

Bedford,7 the plaintiff was dismissed from his job for soliciting contri-

butions for political purposes in violation of a categorical prohibition

in the political code. Justice Holmes noted that under his employment

contract, the plaintiff served at the pleasure of the town, which could

dismiss him for good reason, bad reason, or no reason at all. That rule

works well for private employers who almost always work without sub-

sidies in competitive markets. But the transfer of that rule to the public

realm is both pithy and unsatisfactory:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitu- tional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offi ces within its con- trol. This condition seems to us reasonable, if that be a question open to revision here.8

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426 Individual Rights: Speech

Note that in his opening salvo Holmes equated idleness with speech

as grounds for potential dismissal, in ways that do not square with the

elevated place that speech holds in the constitutional fi rmament. Per-

haps that is why he blinked in the last sentence, smuggling in a reference

to the reasonableness of the terms, which, strictly speaking, is never rele-

vant to the employer’s rights to fi re under a contract at will. And well he

should. Is it really the case that the mayor could require the converse of

what the local ordinance said, namely, require the employee to contrib-

ute to the mayor’s reelection campaign in order to keep his job?

In Massachusetts v. Davis,9 the local ordinance provided that no one

shall make any public address on any public grounds without a permit

supplied by the mayor. No grounds were specifi ed for issuing or deny-

ing a permit. Justice Holmes affi rmed the conviction of a minister who

preached a sermon by treating the case as if it were a rerun of McAuliffe.

For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary rights interfere, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses.10

The Supreme Court then affi rmed by taking refuge in a “right/priv-

ilege” distinction which was intended to cement political control over

resources subject to public ownership: “The right to absolutely exclude

all right to use necessarily includes the authority to determine under

what circumstances such use may be availed of, as the greater power

contains the lesser.”11 The Court also rejected the view that the state

overstepped its proprietary position solely because preaching the gos-

pel has been allowed “from time immemorial” on public property, thus

adhering to the standard common law position against inferring ease-

ments from the state based on common practice.

The supposed inference that the “greater power contains the lesser”

represents one of the great structural fallacies of constitutional law, which

arises from its failure to incorporate the distinction between private and

common property found everywhere else in the law. The maxim that

the greater entails the lesser is in fact indispensable in competitive mar-

kets where multiple parties operate simultaneously on both sides of the

market. In those settings, prices tend to converge with time. These mar-

kets could never effi ciently determine those prices if either side were

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Government Regulation of the Speech Commons 427

placed under a legal duty to deal with all other persons at prices set by

government command. Just which buyers would be required to deal

with which sellers, and why? The presence of numerous alternatives

means that no party has the power to raise or lower prices, so that the

competitive system works just fi ne without additional constraints on

either side.

Yet once monopoly power is introduced in the provision of goods

and services, the refusal to deal has far greater power, which is why the

party who holds that power is now under the duty to deal with its cus-

tomers on reasonable and nondiscriminatory terms. These concerns do

not disappear solely because that extra power is vested in the state. Quite

the contrary, these distinctive state powers introduce two complicating

factors that run through all the cases. The fi rst is monopoly power and

the second is tax subsidy. The question of monopoly power is not unique

to government. Nor is its ability to raise revenues by force from all mem-

bers of society. Every person subject to any form of government coercion

therefore has at least some stake in how government agencies operate. It

is necessary therefore to combat the omnipresent risk that tax revenues

will be used to hire workers on selective bases, which can skew wealth,

privilege, and opportunity from one political faction to a second.

Some movement away from the contract at will model therefore

seems virtually inescapable. Yet imposing a straitjacket on government

employment comes with a heavy price tag, because many key govern-

ment positions necessarily require making political choices to allow for

implementation of general policies adopted by democratic procedures.

A civil service regime cannot work for high-level employees, as noted

in the discussion of the right of the president to remove senior offi cials

from offi ce.12 But designing some substitute regime is, if anything, more

diffi cult than in the case of public rivers and roads, where the risk of sys-

tematic exclusion also spells disaster to those who need access on a rou-

tine basis. The modern “public forum” cases, which make public spaces

open to all comers on reasonable and nondiscriminatory terms, derive

their strength from the common law rules developed in other contexts.

The proper objective is to fi nd legal mechanisms to control against

the favoritism and extortion that the powers to exclude and to tax nec-

essarily create. The key question therefore is how to limit the discre-

tion of public offi cials in ways that do not unduly impede their ability

to discharge public functions. One way to control that discretion is to

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428 Individual Rights: Speech

subject public offi cials to a set of all-or-nothing choices. By so doing,

the state has less fl exibility to burden some individuals for their political

beliefs while granting favors to others on those same grounds. On this

view, it is the exercise of a selective power to exclude that raises red fl ags.

Should the incumbent mayor be able to exclude from the public square

only speakers opposed to his reelection? Under the greater-includes-

the-lesser argument, that should be permissible so long as the mayor

is able to exclude all people from the public sphere. Yet this is exactly

where Holmes goes wrong. The limits on state power are not tied only

to cases where individuals have “proprietary” claims. It also extends to

cases where they have limited rights to a share in the commons. The

same with a decision to hire members of only one political party for rou-

tine service jobs or to require that they contribute handsomely to party

coffers in order to keep their positions.

Manifestly, the correct analysis goes in the opposite direction. The

ability to select some and exclude others is in practice the greater power,

not the lesser one, which is why it is so rightly feared. Permit selective

exclusions and some individuals can be denied driver’s licenses on pub-

lic roads that are routinely allowed to their political opponents. Yet once

this prohibition is in place, the mayor will be tempted to conceal his

political objectives by crafting neutral restrictions on the use of public

property or on hiring city workers that to his knowledge will have a

disparate impact that favors his particular cause. Facially neutral restric-

tions, made with foreknowledge of partisan advantage, also have the

power to distort political power. Obviously, some discretion is needed

to run any complex operation. It is necessary therefore to examine the

reasons why these restrictions are imposed—such examination would

bar spurious justifi cations for hiring persons who cannot pass well-de-

signed competence evaluations, especially when there is clear opportu-

nity to hire individuals from the opposite side of the political fence who

do perform well. The strict scrutiny regime, which prevents states from

excluding competitive rivals in dormant Commerce Clause cases, has

strong parallels here.

In the end, therefore, any high level of judicial scrutiny will cabin

the levels of public discretion that the greater/lesser principle appears to

allow. That trend is visible in the government regulation of public spaces

and, to a lesser extent, in employment markets. It is important briefl y to

examine both in turn.

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Government Regulation of the Speech Commons 429

Public Fora—The Modern Response

The break from the past in dealing with public fora took place in Hague

v. Committee for Industrial Organization,13 where Justice Owen J. Roberts,

writing only for himself and Justice Black, took dead aim at Davis by

writing: “Wherever the title of streets and parks may rest, they have

immemorially been held in trust for the use of the public and, time

out of mind, have been used for purposes of assembly, communicating

thoughts between citizens, and discussing public questions. Such use

of the streets and public places has, from ancient times, been a part of

the privileges, immunities, rights, and liberties of citizens.”14 He cites

no authority for the proposition that in the end carries the day, as it

should have, given that a boss mayor overran the union headquarters

with police, “searching individuals and confi scating circulars and hand-

bills relating to CIO union activities.”15 Not a tough decision on the facts.

From this point forward it is just a matter of technique to decide

what reasons for controlling the use of the commons pass muster and

which do not. At this point, classical liberal principles help shape the

inquiry. The fi rst point is that “time, place, and manner” regulations,

which balance legitimate government interests with rights of free

assembly and speech,16 usually can pass muster because they are not

directed toward the content of a message, and thus are more diffi cult

to press into the service of improper or partisan ends. In essence, this

modern formulation traces the common law of nuisance insofar as it

regulates or prohibits loudspeakers mounted on sound trucks17 or the

loud performances of a rock band, so long of course as the imposition

of these restrictions is done in a fair and evenhanded way so as not to

tilt the political scales in one direction or another.18 And, as in all cases

asking for private injunctions, the remedy has to be proportionate to the

wrong. Thus, in Schneider v. State,19 the Court held that the government

could not issue a blanket prohibition against leafl eting on public streets

even with the admitted risk that this morning’s leafl ets can become this

afternoon’s trash. Sanctions for those who litter may be less than com-

plete, but they avoid the risk of dangerous overbreadth, which matters

in a regime in which both communication and cleanliness count as legit-

imate interests.

The situation gets more complicated of course when the use or

occupation of a public facility by one individual or group could preclude

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430 Individual Rights: Speech

its simultaneous use or occupation by another, and in these situations,

the fi rst-come, fi rst-serve rules are also put in abeyance. Thus, in City of

Cincinnati v. Discovery Network,20 the question was how the city could allo-

cate the space for news racks on public streets. The Court held that the

legitimate state interest in controlling clutter and appearance on public

roads did not justify an explicit preference in the placement of news

racks on public property, or for larger papers at the expense of smaller

commercial publications, just because the city thought that these mar-

ginal publications had lower speech value. Instead, the older common

carrier model was applied to this case, so that the city was forced to

adopt some neutral system of allocation—bids, lotteries, rotation—that

did not afford the initial occupants priority over latecomers to public

resources. Economically speaking, a bid system for the available spots

does have the advantage of maximizing revenues from public sources

in ways that a lottery or a rotation cannot. But the lottery is easier to

run, and the rotation ensures that everyone has a shot of getting at least

some fraction of the available spaces.

This analysis is the same that should be applied to the broader

spectrum of governmental regulation of public spaces. Indeed a general

solution need not, and should not, be limited to cases where the only

interest at stake is private speech. Exactly the same systems of allocation

of public space should apply as well in nonspeech contexts, as they did

under Frost. Treating the speech issues as a subset of a larger problem

means that evenhanded treatment between rival participants is only the

fi rst step in the process. The second step tries to maximize overall value

of all common resources, whether or not speech related, by prevent-

ing public giveaways to private parties under the inverse of the Takings

Clause: “nor shall public property be given to private parties, without

just compensation.”21

The same logic applies to issuing parade permits for use of public

facilities. As a matter of fi rst principle, these should be granted to all

groups on equal grounds, leaving it to those groups to decide whom

to admit into their ranks and whom to exclude. The application of the

modern antidiscrimination laws to these activities was given short shrift,

notwithstanding their widespread use in ordinary employment markets.

Thus, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group,22 the

issue was whether the South Boston Allied War Veterans Council had

to let the GLIB march under its own banner in the Veterans Council’s

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Government Regulation of the Speech Commons 431

larger St. Patrick’s Day celebration. The Massachusetts Supreme Judi-

cial Court held that the state antidiscrimination law23 could require the

council to include the GLIB contingent’s fl oat to express solidarity with

other gay, lesbian, and bisexual groups.24 That argument is wrong for

the reasons noted in Frost: wholly apart from the free speech issue, state

control of public roads does not allow it to turn a private fl oat into a

quasi-public institution.

The Supreme Court unanimously reversed the decision, making

only passing reference to the common carrier arguments that are the

strongest foundation for the result. Justice Souter’s decision contains no

discussion of Frost and no reference to the doctrine of unconstitutional

conditions. But he does note that cable companies have “a monopolist

opportunity to shut out some speakers,” which in turn “gives rise to the

Government’s interest in limiting monopolistic autonomy.”25 But consis-

tent with this basic model, he stressed that the operators of the parade

had discretion in deciding whom to include and whom to exclude, with

an eye to making all the fl oats part of an ensemble, so that “each is

understood to contribute something to a common theme.”26 The state

works as a common carrier even if the Veterans Council does not. Con-

sistent therefore with the basic structure of unconstitutional conditions,

Massachusetts in Hurley could not use its monopoly power over the state

highways to overcome the rights of association guaranteed to all groups

under the First Amendment, so long as the parade was both “peaceful

and orderly.”27 “[A] speaker has the autonomy to choose the content

of his own message,” which the state power could not overcome,28 no

matter what its own views of political morality. The forms of forced asso-

ciation that apply to labor relations on private property do not apply to

expressive organizations that conduct their activities on public property.

The same rules have been extended on numerous occasions to

efforts of universities and other institutions to close their facilities to

students who represent views that the majority fi nd unacceptable. At

this point, the exquisite First Amendment scales treat these operating

institutions as “limited public forums” that can exclude these groups

from the classroom during class time, but must follow a strict nondis-

crimination policy in allocating general facilities to other organizations.

So long as other groups are allowed on campus, no state college could

exclude the Students for a Democratic Society from using its premises,

unless SDS was committing some independently illegal act.29

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432 Individual Rights: Speech

That same legal principle fared less well in Christian Legal Society Chap-

ter of California, Hastings College of Law v. Martinez,30 where by a fi ve-to-four

vote, the Supreme Court sustained Hastings Law School in its refusal to

treat CLS as a “Registered Student Organization” because of its unwill-

ingness to adhere to Hastings policy prohibiting discrimination “on the

basis of race, color, religion, national origin, ancestry, disabilities, age, sex

or sexual orientation.”31 CLS offended that policy by insisting that mem-

bers and offi cers abstain from extramarital sexual relations. It also barred

from membership any person who engaged in “unrepentant homosexual

conduct.”32 Its meetings were open to all comers. The upshot was that

Hastings was held entitled to bar CLS from sharing on equal terms with

sixty other student groups the use of the Hastings name, logo, bulletin

boards, email systems, and campus offi ces, or receive funding for activi-

ties and travel. The case raises complications not present in Hurley, where

there was no doubt that any individual group of students could displace

the faculty on academic decisions. Rather than any such demands, CLS

sought only to take advantage of the same benefi ts that were accorded

other groups in the use of Hastings facilities. Nonetheless, Justice Gins-

burg wrote as if the unconstitutional conditions doctrine did not exist, by

taking the view that Hastings only withheld a benefi t, but did not require

CLS to admit any students. But it is exactly that use of state monopoly

power that the doctrine of unconstitutional conditions is meant to coun-

teract, given that no monopolist has, or should have, the power to refuse

to deal without cause. Accordingly, the case should have been treated

as one in which all the facilities in question counted as a “limited public

forum” when not dedicated to academic uses. Hastings, as the decider in

this case, can surely exclude all outsiders from its buildings, but it can-

not discriminate against insiders solely on the grounds of their religious

views, let alone require that CLS admit into its membership and leader-

ship positions individuals strongly opposed to its worldview.

Employment Relations

As one might predict, the rules governing employment relations are

more tolerant of employer discretion given the massive complexities in

running any public offi ce. To point out just three landmarks along the

road, in Pickering v. Board of Education,33 the Court held that a board of

education could not dismiss a teacher who criticized the board’s handling

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Government Regulation of the Speech Commons 433

of fi nancial matters in a newspaper letter. The role of “citizen” was suffi -

ciently distinct from that of employee. There was no obvious connection

between the protest in the papers and the performance in the schools.

At the other extreme, the Supreme Court addressed an issue that had

received cavalier treatment in their earlier case of United Public Workers

of America v. Mitchell.34 Mitchell upheld the 1939 Hatch Act,35 which on a

categorical basis prohibits government civil servants from holding public

offi ce, participating in elections, or otherwise engaging in political cam-

paigns. The statute is a bulwark against the pervasive risk of partisan

politics taking over the civil service, and thus in fact meets the test of

reasonableness that Holmes alluded to in McAuliffe. From there it was

but a short step to uphold various remedial strategies, with extensive

judicial oversight, intended to limit the City of Chicago (during the fi rst

Richard Daley administration, no less) from exerting undue infl uence

over rank and fi le employees.36

The landscape gets a lot clearer when no issues of political speech

are involved in a dispute. The First Amendment quickly yielded to the

management needs of a district attorney’s offi ce in Connick v. Meyers,37

holding that a lawyer who did not like her reassignment could not send

the offi ce into turmoil by attempting to rally her coworkers to the cause.

And on a fi ve-to-four vote, the Supreme Court held in Garcetti v. Cebal-

los38 that a Los Angeles County attorney could not in that work-related

context claim the benefi t of the First Amendment. On multiple occa-

sions, both in private to his superiors and publicly in court, Ceballos had

protested what he considered to be police misconduct in a controversial

case. The Court held that disciplinary action against Ceballos for speech

made as part of his offi cial duties was not subject to First Amendment

protection.39

In all these borderline cases, the line between offi cial duties and

public protest seems to get the situation about right. Any dual capacity

situation is diffi cult. So greater scrutiny is needed than the at-will rule

supplies. That additional oversight, moreover, is supplied by a metric

that allows the employer to do what others do on discipline issues, so

long as there is no covert form of favoritism. The case law on this topic

can literally fi ll volumes, and there may be mistakes on points of detail.

But the overall structure has endured with high levels of judicial over-

sight precisely because it started from a set of sound premises, all of

which have been rejected in ordinary cases of property and contract.

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434 Individual Rights: Speech

Taxation and Other Burdens

The concerns with discretion in the exercise of government power also

extend to that largest of social commons—the entire public. The basic

theory of classical liberal taxation, which has been decisively rejected

in economic areas, is that the state should seek to raise revenues to

discharge its public functions in ways that require the lowest exercise

of discretion in imposing the tax. A fl at tax on either income or invest-

ment, with no special exemptions or exclusions, is the best way to

achieve that ideal.40 That position has been decisively rejected in all tax

cases, where a takings challenge to progressive taxation has been cast

aside under some variation of the rational basis test.41 But owing to the

higher level of scrutiny of government under the First Amendment, the

classical liberal vision now fi nds a limited home in dealing with the First

Amendment issues related to the taxation of newspapers.

In Minneapolis Star & Tribune Co. v Minnesota Commissioner of Reve-

nue,42 the change in context from property to speech led to a sea change

in constitutional approach. At issue in the case was a progressive use tax

on the cost of ink and paper for newspaper production, where higher

rates were charged to larger papers. The Minneapolis Star was one of 16

out of 374 paid circulation papers in the state subjected to the higher

taxes, which required it to pay over $600,000 in 1974. The Supreme

Court recognized that Minnesota’s tax did not single out particular

newspapers for their political views, which had happened in the ear-

lier Louisiana case of Grosjean v. American Press Co.,43 where the allies

of Huey Long imposed a 2 percent license tax on a group of Louisiana

newspapers whose circulation exceeded 20,000. Clearly, the effort to

use selective taxes to target these abuses is a per se violation of any

sound tax theory, notwithstanding any principle that the greater power

comprehends the lesser.

The harder question raised by Minnesota Star is whether to target

any tax, regardless of legislative intention, that has just this divisive

effect. Minneapolis Star contained no perceptible evidence that the fl at

tax generated any negatives in the overall operation of the economic

system. As Justice O’Connor stressed in her opinion, the fl at tax makes

it far harder, if not impossible, to exact selective retribution of your

enemies in the press, because of the need to impose a like tax on your

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Government Regulation of the Speech Commons 435

friends. The insistence on this single form, however, imposes no rev-

enue constraint on the state, which can set the tax as high or low as

it chooses, without having differential rates or selective exemptions.

Nor does this solution put courts in a position where they have to

make speculative estimations of the incidence of a given tax, for those

calculations don’t matter given the simplifi ed form. That same logic

could of course apply to the taxation of all income from all goods and

services. It is only the current low level of scrutiny courts apply to

taxation that allows the creation of today’s steeply progressive tax that

now exempts close to half the population from any income tax at all,

thereby creating a vocal built-in constituency for the expansion of all

public entitlement programs.

The basic logic on selective exemptions does not only apply to the

press, but to any cases in which either a selective tax subsidy or a selec-

tive tax penalty distorts the relative preferences between different polit-

ical outlooks. Thus, in Speiser v. Randall,44 Justice Brennan held that real

estate property taxation exemptions could not be given to those World

War II veterans who signed an oath swearing allegiance to the United

States. This kind of direct loyalty oath, based on the political viewpoint

of the speaker, ran into even heavier resistance as the “Red Scare” started

to recede. To allow its operation created genuine splits in the population

along political lines. By this logic, a tax exemption for all veterans has

no such political punch and thus would survive in a world where only

restrictions based on speech were forbidden. A broader classical liberal

theory would, however, reject even that distinction.

Next, in less dramatic form, the challenged scheme in Arkansas Writ-

ers’ Project, Inc. v. Ragland45 exempted from the regular sales tax only

certain types of publications—“general circulation” magazines were

not excluded. As a matter of ordinary taxation theory, the exemptions

should be allowed to all sales transactions or none. But once again, the

unconstitutional conditions doctrine only applied to distinctions that

were speech related. Here it was hard to fi nd any animus against a broad

category of general purpose publications. But once again, so what?

There is no danger from a uniform rule that simplifi es administration by

reducing discretion while also keeping the tax base intact.

The use of classical liberal theory produces, when the standard of

scrutiny is high, a hard-fought synthesis that covers both regulation and

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436 Individual Rights: Speech

taxation, albeit only in the sphere of speech. Yet the moment the worm

turns and the progressive conceptions of good government take over,

the law moves in exactly the opposite direction, as is evident in the First

Amendment treatment of both labor laws and campaign fi nance, which

are the topics of the next chapter.

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Progressive Regulation of Freedom of Speech

Labor, Communications, and Campaign Finance

MOST FIRST AMENDMENT LAW applies in contexts that are broadly con-sistent with classical liberal principles. Nonetheless, First Amend- ment law is not somehow insulated from the progressive critique that

exerts so much infl uence on issues dealing with separation of powers,

federalism, property rights, and economic liberties. This chapter system-

atically explores three important areas where traditional First Amend-

ment principles have come into confl ict with major progressive reforms.

These include the application of antitrust and labor laws to speech activ-

ities, the licensing procedures followed by the Federal Communications

Commission, and campaign fi nance regulation.

The Progressive Infl uence on Free Speech

In each of the three areas discussed above, the expansion of government

regulation necessarily imposes further restrictions on speech rights, not

only for the media, but also for ordinary businesses and associations.

But the current legal trend all too often makes light of these restrictions

by insisting that they are somehow only “incidental” to some legitimate

form of economic regulation that does not single out speech generally,

or the press in particular, for unduly severe regulation.1 That part of the

law is widely regarded as noncontroversial, but in fact presents constitu-

tional diffi culties that are much more acute than the current sunny view

of the topic suggests.

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438 Individual Rights: Speech

The risk in all of these cases is that the low standard of review courts

use today in cases involving taxation, commerce, private property, and

other economic liberties will carry over to speech-related issues. Courts

have treated economic liberties this way since the New Deal era because

of a deep conviction that government regulatory power is justifi ed by

the abundance of the neutral scientifi c and technical expertise needed

to implement a political vision adopted after extensive public participa-

tion. Generalized judicial fears about inequality of bargaining power in

the private sphere and the undue infl uence of wealth in public affairs

have led to a persistent progressive effort to limit the infl uence of money

on politics. There is much to be said about using a uniform standard of

review in connection with speech and religion on the one hand, and

private property and economic liberties on the other. To the progres-

sive mindset, that involves lowering the level of scrutiny for speech

restrictions on large organizations to the same level as scrutiny used for

regulation of such organizations in economic areas. This move gets the

situation backwards, however, for the proper equivalence runs in the

opposite direction. Standards should be toughened for these economic

rights, not reduced for matters of public political speech.

Antitrust and Labor

One central challenge in First Amendment law is the extent to which

organizations that engage in various speech activities, broadly conceived,

should be subject to the general law of the land. This is clearly unprob-

lematic in connection with the general rules against force and fraud,

for which speech acts are used as evidence of intent in such crimes as

murder, rape, arson, and theft. The legal system could not operate if

the external evidence of these mental states was systematically excluded

from evidence, which of course it is not.2 By the same logic, the usual

antitrust prohibitions against various monopoly practices should not be

derailed because they rely on speech acts to prove the mental elements

when parties collude to raise prices, restrict output, divide territories,

and take other steps that reduce overall social welfare. Thus in Associ-

ated Press v. United States,3 the question was whether the Associated Press

engaged in illegal exclusive dealing practices, in violation of the Sher-

man Act, when it gave existing members rights to determine whether

their direct competitors could be admitted as AP members. There are

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Progressive Regulation of Freedom of Speech 439

respectable antitrust arguments that cut in both directions. The exclu-

sion of direct competitors has the advantage of inducing higher levels of

participation by existing members who do not have to share their ben-

efi ts with newcomers. But as the size of the association becomes larger,

further exclusion runs the risk of excessively concentrating the control

of news fi rms in local markets to the detriment of the overall economy.

It is no part of this constitutional inquiry to resolve the underly-

ing antitrust dispute on its merits. But it is noteworthy that its correct

resolution is wholly consistent with the First Amendment objective of

pursuing competition in the marketplace of ideas. So long, therefore, as

the antitrust laws make sense (especially in their horizontal application,

i.e., to fi rms at the same level of production within the industry) in the

general case of all businesses, nothing in the logic of freedom under the

First Amendment forces courts to apply a hard-line libertarian view of

antitrust law to the press—one that fi nds cartelization entirely proper so

long as it involves neither force nor fraud. The preference of competition

to monopoly is suffi cient to insulate the antitrust laws from charges that

their reliance on speech and intent evidence to detect monopoly violates

the First Amendment. Just as there is no blanket freedom of action or

contract, there is no blanket freedom of speech. All are subject to justifi -

cations that pass muster under the police power.

The analysis takes a different direction with respect to the earlier

1937 Supreme Court decision in Associated Press v. NLRB,4 which asked

whether the NLRB’s prohibition against the dismissal of workers for their

union activities under the NLRA was inconsistent with the press’s guar-

antee of freedom of speech. In rejecting this contention, the Supreme

Court stressed bluntly: “The publisher of a newspaper has no special

immunity from the application of general laws. He has no special privi-

lege to invade the rights and liberties of others. He must answer for libel.

He may be punished for contempt of court. He is subject to the anti-trust

laws.”5 Unfortunately the two halves of the proposition do not cohere.

The fi rst, which is correct, is that the First Amendment protection of

freedom of the press gives the press no license to violate the rights and

liberties of others. But the defi nition of protected constitutional rights

cannot be left for the legislature to determine as it pleases by application

of “general laws.” Instead the laws that govern must conform to the

proper extrinsic standard. The rules dealing with libel, contempt of court,

and, as we have just seen, antitrust laws, are all comfortably housed in a

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440 Individual Rights: Speech

classical liberal regime. Their enforcement only brings the common law

and the constitutional law into a welcome and closer alignment.

From start to fi nish, the NLRA is a fi sh of a different stripe. Its basic

rules on collective bargaining were routinely justifi ed at the time as an

advancement of the principle of freedom of association by, among oth-

ers, its key backer, Senator Robert Wagner of New York. The senator

sought to clothe the act in libertarian garments: “It is the next step in

the logical unfolding of man’s eternal quest for freedom. . . . Only 150

years ago did this country cast off the shackles of political despotism.

And today, with economic problems occupying the center of the stage,

we strive to liberate the common man. . . .”6 But his contention turns

the defi nition of freedom upside down, as is all too common in labor

analysis of freedom of association.7

A system of freedom of association is not specifi c to one group of

individuals in one set of roles. It is a principle that applies to all persons

at all times and gives to each of them the right to choose to associate or

not with others. Justice Brennan, in Roberts v. United States Jaycees, wrote,

“Freedom of association . . . plainly presupposes a freedom not to asso-

ciate.”8 But this principle does not apply with full force only to intimate

associations, as Justice Brennan insisted. Rather, it applies indifferently

to all types of associations for all purposes. In this regard, the earlier

cases that struck down federal and state precursors of the NLRA on free-

dom of contract and association grounds had it about right.9 Employers

could not be forced to negotiate with workers against their own will and

their rights of association deemed forfeited, given that the workplace is

a voluntary association of its own members. The only basic exception

to the rule of freedom of association applies to groups, like common

carriers, that can exert some degree of monopoly power. In this context,

however, Congress expanded this exception when it granted immunity

from the antitrust laws to unions in 1914 in sections 6 and 20 of the

Clayton Act.10 From that date on, the risk of monopoly lay not with

the fi rms that were subject to unionization efforts, but with the unions.

Under the NLRA, unions gained additional powers—most notably, the

ability, once recognized, to force management against its will to the bar-

gaining table.

From these basic principles it follows that the imposition of the

NLRA, or for that matter, the Fair Labor Standards Act, which is sub-

ject to the same analysis,11 requires a wholly different analysis from the

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Progressive Regulation of Freedom of Speech 441

antitrust laws to which it has too often been falsely compared. In this

instance, the imposition of unionization on press employers will nec-

essarily limit their ability to deploy resources as they see fi t. They must

bear the expense of negotiation with unions; they must pay monopoly

premium wages; they must face the risk of strikes; and they have to

yield to work rules that can inhibit the fl exibility of their workforce or

prevent the purchase and use of new equipment.

It hardly answers the challenge of these major economic impedi-

ments to say that they impose only an “incidental” burden on the free-

dom of speech. It is perfectly well understood that the only way for

unions to succeed is to limit the options of the fi rms they target. A

generation before the approval of the NLRA, no question could arise as

to whether the press needed special protection under the First Amend-

ment. These organizations would get all the protection they needed

under the general law. But once the general law fumbled the issue

of freedom of association in basic business contexts, the question of

whether the First Amendment carved out speech-related institutions

for special treatment became insistent. Yet the current law does not

even begin to address this question.

Nor, it turns out, does national labor law deal effectively with other

issues relating to freedom of speech—in this instance, of the employers

who are subject to extensive obligations under the collective bargaining

process. The process operates to make the union and its employees a part

owner of the employer’s fi rm. This fundamental reversal of entitlements

makes it impossible to follow ordinary common law rules with respect to

other aspects of their tripartite employer-employee-union relationship.

Employers, for example, no longer have the absolute right to exclude

union organizers during organizational campaigns, but are forced to

allow them at least limited access to the covered employees.12 In simi-

lar fashion, the usual rules that allow each side in any disagreement to

engage in free and uninhibited speech no longer apply to labor, where

the entire matter of employer speech is regulated by Section 8(c):13

Expression of views without threat of reprisal or force or promise of benefi t. The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefi t.

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442 Individual Rights: Speech

By design, the fi nal clause of this statutory provision places gentle

handcuffs on employer speech. Outside the labor context, a threat of

reprisal constitutes bad action if it involves the threat of force. But in

this context, the threat of reprisal clearly refers either to the fi ring of—or

other such actions—taken against pro-union workers during the orga-

nization drive. That is exactly what should happen in any free-market

setting where employment is terminable at will by either party: The only

contracts that should be formed are those that work to the mutual ben-

efi t of both sides, and neither is under the duty to bargain.

But once the duty to bargain is recognized, this provision has to

be included for that labor scheme to survive. Similarly, normally the

promise of a benefi t is a good thing, but in the labor context, collec-

tive bargaining cannot survive if at the fi rst sign of trouble an employer

can offer workers benefi ts suffi cient to undermine the union’s organi-

zational efforts. Hence such offers are regarded as unfair labor practices

under the law.14 Yet by the same token, it is equally well accepted that

predictions of what will happen if a union is chosen are neither prom-

ises nor threats and thus remain legal under the NLRA. The fi ne line

between threats and predictions is a grammarian’s paradise, at which

point all well-tutored employers necessarily speak in the passive voice

about what will happen to the fi rm if unionized—not what they will

choose to do. More to the point, it does not count as a threat to let work-

ers know the fate of other unionized plants. Such information often

leads to worker opposition to unionization from those employees who

think that the risk of closure or downsizing from collective bargaining

or strikes does not justify the gamble for a wage premium. The counter-

speech that meets the requirements of Section 8(c) has given manage-

ment enough running room so as to contribute to the sharp erosion of

union membership.

But from a conceptual point of view, the key point remains: Once

the NLRA is thought justifi ed for whatever reasons, all these comple-

mentary adjustments have to be put in place for the system to go into

effect, including those that allow the employer to speak to its employee

in choreographed opposition to any union organization drive. It is for

just this reason that Craig Becker, now co-general counsel for the AFL-

CIO, ran into such a fi restorm of opposition when President Barack

Obama nominated him to the NLRB in 2010.15 In his well-known arti-

cle on the subject, Becker advocated removing employer speech rights

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Progressive Regulation of Freedom of Speech 443

during organization campaigns.16 That proposal makes perfect sense

so long as employers are free to refuse to deal with unions. But once

unions have the right to force bargaining in good faith, they become in

effect part owners of the fi rm, and that assertion of power justifi es let-

ting employers seek to persuade workers to stay out of the union orbit.

The entire matter would be handled far more effi ciently by return-

ing to the earlier rule that allowed employers, with the much-maligned

Yellow Dog contract, to tell workers they could not remain members

of a union so long as they worked for the fi rm. At that point the inter-

dependence is over, so that employers should truly have no say over

unionization drives. But that simple solution could not survive the pro-

gressive reforms that in the end have introduced so much unnecessary

brinksmanship into labor relations. No system of unionization is con-

sistent with orthodox conceptions of freedom of speech that have long

worked well in other political or social contexts. The current legal solu-

tion shows all too well that the ability to protect speech is effectively

compromised when other property rights are overridden, which is what

happens when employers (both individual and corporate) are forced

to bargain with unions against their will. That whole process puts an

inchoate lien on the assets of the fi rm, which only confi rms a central

tenet of classical liberal theory that in labor relations as elsewhere, as the

old refrain goes, private property is the guardian of every other liberty.17

Telecommunications Law

The tension between government regulation and the First Amend-

ment also took an unfortunate turn in modern communications law.

In this particular area, the general law governing speech should apply

to broadcasts over the airwaves, cable, or Internet, just as it applied to

newspapers, pamphlets, and books in days of old. The anticircumven-

tion principle does not lose its bite in the modern technological age. But

these earlier systems of regulation all were directed to the private pro-

duction of information, so that government offi cials could not point to

the state ownership of the means of production as an additional source

of their own powers.

Nonetheless, the same structural defects that have rendered the

FCC unable to give a proper response to the property rights issue have

also dogged its efforts to develop as a licensor a coherent account of free

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444 Individual Rights: Speech

speech.18 The basic diffi culty starts with the broad delegation of authority

as it applies to speech. In addressing this issue, Justice Frankfurter was

confi dent that the FCC’s broad delegation standard could accommodate

all the demands of free speech. Writing in National Broadcasting Co. v. United

States, he stated: “The standard it provided for the licensing of stations was

the ‘public interest, convenience, or necessity.’ Denial of a station license

on that ground, if valid under the Act, is not a denial of free speech.”19

Frankfurter’s bold and confi dent progressive rejection of the “traffi c

offi cer” model20 does not mesh well with traditional protections for free-

dom of speech. Here are just two examples of the problem. One basic

legal norm is that government may not force the press to give equal

time to its opposition. Thus in Miami Herald Publication Co. v. Tornillo,21

the Supreme Court had no trouble in dispensing with a Florida “right

to reply” statute that required writers of editorials to publish letters dis-

agreeing with their point of view, noting the risk that this rule could

encourage editors to “conclude that the safe course is to avoid contro-

versy.”22 The conclusion did not depend on the additional costs, if any, of

publishing these letters, because a newspaper is no “passive receptacle”

of the opinions of others, but an expression of its own editorial views.

Any legal duty to publish replies operates as a tax on the freedom of

speech. The correct response is to encourage the new entry of outlets for

rival views. It was, as the Court rightly concluded, ultimately pointless

to compare the cost considerations for new entry in 1971 to those in

1791.23 Government-mandated cross-subsidies are a form of disguised

taxation that is inconsistent with the freedom of speech.

Tornillo, however, makes no reference to the 1969 Supreme Court

decision in Red Lion Broadcasting Co. v. Federal Communications Commis-

sion,24 in which the Supreme Court upheld the so-called “fairness doc-

trine,” which gave (before its repeal by the FCC in 1987)25 dissenting

voices in broadcast the same right of reply that was denied in Tornillo.

Justice Frankfurter’s rhetoric about the spectrum in NBC resonated

clearly in Red Lion:

Because of the scarcity of radio frequencies, the Government is permit- ted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.26

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Progressive Regulation of Freedom of Speech 445

This two-step argument misses the central point. Scarcity is endemic

to all social institutions, which is why we create and protect property

rights in the fi rst place: development by the designated owner can-

not take place without the systematic exclusion of others. In this key

respect, the FCC rules retard entry by imposing a nondelegable duty on

each broadcast operator to determine its broadcast content. By that one

stroke, the law introduces a strong quasi-monopoly element into speech

law that makes it impossible for any government licensee to behave like

a prudent owner—by leasing out time segments on its station to persons

or organizations with different points of view. When the Cosmopoli-

tan Broadcasting Corporation opted for this sensible business model, it

promptly lost its license because of its failure to discharge its statutory

obligation to determine content on its assigned frequency.27 The owner-

ship model blocks any such government imposition.

Thus the larger question: Why stifl e any system of property rights

allocation that brings more voices to the public sphere by allowing the

owner of a frequency to let others express their own views as lessees

or assignees of particular frequencies? The technological transformation

between 1969 and the present makes it all too clear that the dominant

constraint today is good content, not available bandwidth. Any First

Amendment doctrine that lashes itself to some perceived levels of scar-

city is too rigid to work well over time. The property rights system that

creates incentives for open entry and technical innovation across a wide

range of unregulated areas having little to do with speech can work its

magic by decentralizing the control over broadcast speech. The progres-

sive approach does not work because its central planning model reduces

the number of independent voices on political and similar cultural issues.

The second major error of Frankfurter’s formulation deals with pub-

lic morals and decency. Currently the FCC does not regulate the Internet

and cable, and these media are replete with all sorts of vulgar speech

that some people, a shrinking fraction, believe offends every social norm

of decent behavior, which is a good reason to change the channel or

turn off the set. It is inconceivable that the government today could

ban the use of four-letter words on cable and the Internet, which have

thrived in large measure because of their greater artistic freedom. As if in

a time warp, the 1934 Communications Act allows the FCC to construe

“indecent language” in broadcasting in ways that are consistent with the

mores of 1934. That extra FCC power over broadcasts follows from the

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446 Individual Rights: Speech

federal ownership of the spectrum, so that when a licensee “accepts that

franchise it is burdened by enforceable public obligations.”28 One such

condition makes it illegal to “utter[] any obscene, indecent, or profane

language by means of radio communication,” which was added into the

law by a 1948 amendment.29 It is therefore little short of amazing that

as late as 2009 in Federal Communications Commission v. Fox Television Sta-

tions, Inc.,30 the Supreme Court undertook an extensive investigation to

decide whether “fl eeting expletives, the use of ‘F- and S-Words,’” are

subject to government regulation. How this prohibition makes sense

when just about every sentient being is glued to hit shows that fl out

every grim Victorian prohibition is never explained. The obvious dis-

tinction between Tornillo and Red Lion goes utterly unexplored. Justice

Frankfurter’s optimism in NBC on the compatibility of free speech with

government licensure has proved erroneous, but appears to be immune

to political or constitutional correction.

Campaign Finance Regulation

General Considerations

The third topic that demonstrates the distinct infl uence of progressive

policies on First Amendment law is the highly contentious issue of cam-

paign fi nance reform, the centerpiece of which, the Court’s fi ve-to-four

defense of corporate speech in Citizens United v. Federal Election Commis-

sion,31 has generated a fi restorm of popular resentment.32 The standard

progressive position on campaign fi nance leaves the government with

broad powers to regulate how money is raised and spent in political

campaigns. These activities are regarded less like the traditional stump

speech, which deserves protection, and more like the standard forms of

corporate misbehavior, which must be checked by decisive government

action. As the “sober-minded” Elihu Root stressed, the grand objective

is to keep money out of public life,33 so that corporate dollars do not

infl uence legislators to “vote for their protection and the advancement

of their interests as against those of the public.” This bipolar worldview

ignores the common situation in which clashing corporations fall on

both sides of any issue. It also warps an understanding of the central

concerns in this area.

To attack this issue correctly, it is essential to identify the condi-

tions under which it makes sense for businesses to contribute to political

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Progressive Regulation of Freedom of Speech 447

causes. The simple self-interested calculus states that individuals and

fi rms alike will invest in political activities only to the extent that their

expected return will exceed their expected costs. Under this test, the

level of expenditures—whether to infl uence legislative or administrative

activities, or for the election of particular candidates—will increase as

the power of political bodies increases. One prime objective of a classical

liberal system is to constrain unneeded political discretion at every point,

by its strong preference for fl at taxes on a single tax base and by subject-

ing all legislative and administrative action to constitutional oversight

that supplies just compensation for government-imposed limitations

on private property and economic liberties, unless they fall within the

well-defi ned categories of police power justifi cation. The comprehensive

combination of tax and compensation rules helps align the incentives of

political actors with overall social welfare by shrinking the opportunity

for factional gains. As individuals and fi rms have less to gain, and less to

lose, through the political process, they will reduce their levels of parti-

san investments.

In that highly constrained world, there is little need for anxiety

about giving extensive protection to political speech under the First

Amendment. Even in a classical liberal regime, people will continue to

have decided preferences over war-and-peace and a raft of other issues

that of necessity require collective deliberation. They should be able to

voice their views as they think appropriate, which they can only do if

they are allowed to cooperate through ordinary contractual means with

other individuals and groups to make their views known. Any speaker

is allowed to rent out a private hall for political activities and should be

able to hire independent contractors and employees to aid in that ven-

ture, just as he or she is allowed to do so for all of his or her commercial

ventures. Put otherwise, a right of association is part and parcel of the

right to speech for all individuals and groups, regardless of their size and

power. There is no teleological theory that says that only self-appointed

members of the press (of which Citizens United was apparently not one)

are entitled to participate in political debate with an added advantage

over proprietary fi rms that have multiple objectives.

Again the key point is that incumbents who specialize in speech

should not be allowed to erect barriers against potential competition no

matter where it comes from. Indeed these collateral rights of association

are required under the anticircumvention principle which is an essential

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448 Individual Rights: Speech

part of the ordinary rules of constitutional construction, subject to the

standard caveats about monopolization, which in this context is a risk

associated with specialty business, whether or not in corporate form.34

On this view, there is no need to torture the constitutional guarantee

of “the right of the people peaceably to assemble,” which in general is

better reserved for public meetings by way of protest or demonstration.35

Similarly, any persons should be able to solicit contributions from others

to support legislation or to elect political candidates by use of the same

contractual devices.

The constant threat of favoritism and corruption is best addressed

indirectly by limiting the powers of public offi cials once elected. But

that basic structural safeguard cannot prevent corruption by itself. Even

a classical liberal state has to provide for defense, public records, infra-

structure, and a wide range of similar functions. Corruption in the bid-

ding process for obtaining work in these activities is a constant threat,

which is why it may well be necessary in a small government to adopt

anticorruption statutes such as the Tillman Act,36 which (before Citizens

United) prohibited all contributions by corporations to candidates, and

the comparable provisions of the National Labor Relations Act, which

does the same for unions.37 Both of these statutes are supplemented

by the prohibitions on political contributions by civil service federal

employees in the Hatch Act of 1939,38 whose constitutionality was sus-

tained in Oklahoma v. United States Civil Service Commission.39 This legisla-

tion, which is itself not beyond criticism, is directed toward low-hanging

fruit. Its general effectiveness thereby places the burden on the next

generation of reformers to show that the marginal benefi ts of the new

statutory prohibitions exceed their marginal cost.

Weak private property rights in the modern progressive state and

the corresponding power of government to license public property

increase the total level of rent-seeking political activity. But prohibi-

tions on these speech activities cannot undo the fundamental mistake

of building a legal system that offers weak constitutional protection for

property rights and economic liberties. More specifi cally, no respectable

constitutional theory should accord pride of place to corporate contri-

butions over union contributions, or the reverse. In corporate contexts,

there is no clear correlation between the source of the funds and the

position taken on legislation. Many of the protracted political strug-

gles are business versus business, and take place, for example, between

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Progressive Regulation of Freedom of Speech 449

tobacco companies and health care organizations, or content providers

and telecommunications carriers, or coal and natural gas companies. In

other contexts, there are many situations in which the interests of large

corporations diverge from those of small ones. But no sound account of

freedom of speech tries to draw inferences from the particular lineup of

players on particular issues. Wholly apart from these differences, indi-

vidual corporations are wise to hedge their bets by giving some support

to both major political parties. To complicate the system further, corpo-

rate/union alliances are common on both sides of such sensitive issues

as international trade and immigration. There is therefore no reason to

believe that any effort to restrict some forms of campaign contribution

will have a desirable systematic skew against “the” corporate interest.

Against this complex background, the Supreme Court has swayed

to and fro in its attitude toward political contributions. The Court’s fi rst

major foray into the matter resulted in its 1976 decision in Buckley v.

Valeo,40 which sought to split the baby by allowing any individual to

spend as much money as he or she wished on political campaigns, but

accepted sharp limits on the amount of contributions that political can-

didates themselves could accept and further validated statutory require-

ments for the disclosure of campaign contributions.

A general theory of freedom surely allows any person to spend his

or her own money on gaining election, subject to the usual restraints

against force, fraud, bribery, and corruption. It is very diffi cult to fi nd

a strong justifi cation for the limits on campaign contributions, which

are the lifeblood of most campaigns. Oddly enough, the strongest ratio-

nale for contribution limitations may be to protect potential donors from

implied threats of political retribution, which are ever more credible in

a state that affords the legislature extensive powers.

Finally, the use of disclosure legislation is decidedly a double-edged

sword. It surely allows informed voters to judge a potential candidate

by his or her associates. But it also exposes both candidates and their

supporters to threats of harassment by their political opponents. How to

balance these considerations admits no easy categorical answer, which

is why the Supreme Court was right in John Doe No. 1 v. Reed41 to reject

a facial challenge to a Washington State statute that imposed disclosure

requirements on those who signed petitions for a ballot referendum.

But the risk of abuse and retaliation could well be deserving of consti-

tutional protection in some contexts, including the “Preserve Marriage,

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450 Individual Rights: Speech

Protect Children” petition at issue in that case. Again the point here

is not viewpoint specifi c. The as-applied challenge could easily succeed

when brought by supporters of gay marriage, where parties on both

sides of the debate could be entitled to the protection of anonymity. As

one appellate court put the issue: “Campaign fi nance disclosure laws

must strike a balance between protecting individual speakers from inva-

sions of privacy and harassment on the one hand, and enabling transpar-

ency and accountability in political campaigns on the other.”42 On this

point, nothing about the First Amendment allows courts or legislatures

to escape the chronic problems of over- and underinclusive legislation.

These general principles also counsel against adopting the ever

more convoluted schemes of campaign fi nance regulation that have

sprouted up in recent years. The classical liberal tradition starts from

the premise that it is not the role of government to redress inequalities

of wealth that were achieved by honest means. Attacking those gains

reduces the incentive to create them in the fi rst place and could eas-

ily lead to the adoption of substantive rules that favor massive wealth

transfers by allowing the political majority to fund its own campaigns

out of resources taken from the same persons whom it purports to tax.

Majoritarian politics are necessary to allow full participation by all per-

sons who have an immense stake in the system even if they have no

wealth of which to speak.

But unbridled majoritarianism will overstep its bounds, as Madison

predicted in his analysis of faction in The Federalist No. 10, if majorities

are allowed to discharge debtors from their obligations or to confi scate

wealth through political action, which is why protection of both con-

tracts and property from majorities is part and parcel of the overall politi-

cal system. Any effort to force the rich to subsidize the poor increases the

risk. Indeed, legislative action to redress the inequality of wealth creates

its own distortion by allowing one candidate running off public funds to

be better off than wealthier candidates who have to diminish their own

personal wealth to pursue public offi ce. That subsidy distorts elections by

allowing marginal candidates who cannot raise support from their own

base to feast off the wealth of supporters and opponents alike to run their

own campaigns. It would surely be a mistake, for example, to assume

that the base of individuals supporting transfer payments to the poor and

lower middle class consists only of members of those groups when these

causes rank high in the fi rmament of progressive causes everywhere.

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Progressive Regulation of Freedom of Speech 451

Yet it is striking that recent Supreme Court discussions of the issue

tend to ignore the warnings of The Federalist No. 10 on the risks of faction

in examining legislation that imposes government controls over cam-

paign fi nances. It is for good reason that the general anticircumvention

principle should block the legislature from diluting the advantages that

personal wealth lets certain people bring to political campaigns—often

on both sides of a controversial issue. If the government cannot block

the rich from speaking publicly in their defense, it cannot tax or other-

wise burden their speech when they wish to speak in their own defense

by diverting public funds into the coffers of their opponents (some of

whom may be rich as well). It therefore follows that First Amendment

protection properly limits legislation that either burdens or taxes indi-

vidual wealth by giving subsidies to those individuals’ competitors.

These principles help shape the basic argument about both federal

and state efforts to redress fi nancial disparities among candidates. Thus

in Davis v. Federal Election Commission43 the Court struck down that por-

tion of the McCain-Feingold Act that allows any candidate whose oppo-

nent expends over $350,000 of his or her personal funds to triple his

or her normal contribution amount, while the high spender remains

subject to the original contribution limitation. The Supreme Court was

right to treat the relaxation of the fi nancial burden on opponents as an

implicit tax on one’s own contribution.

The candidate has to make personal fi nancial sacrifi ces while the

public, including those citizens who favor the burdened candidate, must

subsidize the rival. In light of the risks that this program of cross-subsidy

could easily reduce the willingness of some people to enter the political

campaign circuit by offering support to their rivals, there is no reason to

think that this proposal will even nudge public campaigns in the right

direction. Rich people who are campaigning, for example, against pro-

gressive taxation are not seeking to twist the political system improperly

in their favor. What they are trying to do is to prevent majoritarian pol-

icies from moving in the opposite direction, in an age in which the total

amounts of transfer payments away from the rich have increased.44 To

be sure, some rich candidates could seek special subsidies for their own

preferred industries, which run quite in the opposite direction. But the

burden here is on the proponents of new legislation to show a compel-

ling state interest—which cannot be done for proposals whose benefi ts

are unproven.

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452 Individual Rights: Speech

Similarly in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,45

the Supreme Court struck down the Arizona Citizens Clean Elections

Act,46 which imposed a complex fi nancing regime for all state primary

and general elections. Under the scheme, candidates received a lump

sum payment from the state, which was augmented by additional mon-

eys from the state to the extent that expenditures made by or on behalf

of private candidates exceeded the base amount received by the publicly

fi nanced candidate. The basic purpose of this scheme, as in Davis, was to

neutralize private expenditures by providing countervailing payments

to those candidates who took public support. Thus the fi rst part of the

system made it clear that it made no sense for any candidate to use

private funds if he or she intended to spend any sum less than the state

authorized amount. Why spend your own money when the state will

pay you an equivalent sum? Any private expenditure therefore could

only give an added advantage of amounts in excess of that base sum.

Yet each additional dollar of private expenditure triggered an equivalent

increase in the public funding for rivals, so that the added dollars pro-

vided no comparative advantage over publicly funded candidates.

A divided Supreme Court struck down this scheme on the grounds

that the state desire to equalize wealth was not a compelling state inter-

est. Justice Kagan’s dissent insisted that the Arizona statute results in

“more speech and thereby broadens public debate”47 which insulated

it from constitutional challenge. But the Constitution does not protect

“more speech” or “more public debate.” It protects freedom of speech,

which is as much offended by government cross-subsidies as by direct

prohibitions on speech. As in all economic settings, the key question is

one of relative prices, which are distorted whether the speech of one

party is suppressed or that of a direct opponent is subsidized. This prin-

cipled fear of the distortive effects of cross-subsidies is as powerful with

speech as it is with international trade.

Given the danger of these interventions, Justice Kagan’s appeal

to the ubiquitous but undefi ned fear of political corruption justifying

these restrictions falls fl at. In particular, she overstates her case when

she insists that when “candidates for public offi ce accept large campaign

contributions in exchange for the promise that, after assuming offi ce,

they will rank the donors’ interests ahead of all others. As a result of

these bargains, politicians ignore the public interest, sound public pol-

icy languishes, and the citizens lose confi dence in their government.”48

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Progressive Regulation of Freedom of Speech 453

But this chain of inference is comprised of missing links. The point of

having political platforms is to commit a candidate to a program that

will be followed in offi ce. It cannot be corruption to keep to those cam-

paign pledges, whether made to voters at large or to political donors

more specifi cally. Nor does the commitment to the program amount to a

vague “promise to put donor’s interests ahead of all others.” There is no

promise, express or implied, to put donors fi rst. There is only a political

promise to follow the program, which is needed for politicians to make

credible commitments to voters as well as their fi nancial backers. If the

program is in fact sound, it should garner support. If it is not, there are

at least no surprises and unexplained reversals of position. But however

it comes out, the last thing that any court can do is to posit the unsound-

ness of political programs that have achieved support from a donor base.

Other means remain available to deal with quid pro quo corruption or

infl uence peddling. Nor is there any reason to believe political candi-

dates who receive public funding will operate under any constraints

that will mythically lead them to support the public good. Defenders of

campaign fi nance regulation cannot make their case by conjuring up

horror stories from unregulated campaign contributions while ignoring

the alternative perils that lurk in their own publicly run systems. These

restrictions on individual expenditures and contributions should there-

fore be struck down in the absence of a clear justifi cation.

Corporate Speech

The puzzles of individual campaign contributions present major prob-

lems on which it is impossible to dispel some core honest disagreement.

It is possible, however, to be more confi dent that it is unwise to direct

specifi c regulations to corporate speech. As a matter of general legal the-

ory, a corporation is often characterized as though it were a creature of

the state. That attitude dates back to Chief Justice Marshall’s famous

words in Dartmouth College v. Woodward:49

A corporation is an artifi cial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.

That language seems to suggest that the state’s unlimited powers

in establishing corporations eliminate any First Amendment objection

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454 Individual Rights: Speech

to the regulation of corporate speech. Indeed Justice Rehnquist cited

just this passage in his lonely dissent in First National Bank of Boston v.

Bellotti,50 to support the astonishing proposition that “[i]t cannot be so

readily concluded that the right of political expression is equally neces-

sary to carry out the functions of a corporation organized for commercial

purposes,”51 from which he claimed that political activities should not be

treated “as necessarily incidental” to the essential business functions of

a corporation.52

Rehnquist’s hasty dismissal of the doctrine of unconstitutional con-

ditions is wrong for two reasons. First, it misstates the issue in Dartmouth

College. Marshall held that Dartmouth College was entitled under the

Contracts Clause—“No State shall . . . pass any . . . Law impairing the

Obligation of Contracts”53—to use its corporate charter to shield it from a

takeover attempt by New Hampshire, which wanted to turn the college

into a public institution. The case thus holds that the Contracts Clause

binds the state to its own contracts. Dartmouth College did not, however,

ask whether, as the quoted passage suggests, a state can impose any con-

ditions it likes on the formation of new corporations. Marshall’s dictum

on this point rests on an erroneous view of a corporation, which is better

understood not as some disembodied entity, but as a “nexus of con-

tracts” that allows individuals to coordinate their business activities.54

Limited liability then shields the private wealth of shareholders from the

debts of the corporation, which increases their willingness to contribute.

The key inquiry is what price, if any, the state can exact for the

privilege. Surely the state cannot condition the receipt or retention of a

corporate charter on the willingness to maintain separate campuses for

its white and black students, as the Supreme Court mistakenly held in

Berea College v. Kentucky.55 More precisely, the only conditions that the

state should be allowed to attach to the privilege of incorporation are

those that improve the effi ciency of the overall system. States can ask

corporations to take out liability insurance when necessary to protect

strangers against the wrongful conduct of corporate agents, to register

in all states in which they wish to do business, and to submit to local

jurisdictions for their activities within the state. But nothing whatsoever

says that the shareholders and employees of a corporation should forfeit

their right to freedom of association—or, more to the point, to partici-

pate in political action that protects them as ordinary individuals. Nor

does anyone believe that the constitutional protections of freedom of

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Progressive Regulation of Freedom of Speech 455

the press apply to newspapers and periodicals only to the extent they

operate in individual or partnership form. The constitutional protections

of freedom of speech apply independent of form to individuals, partner-

ships, and corporations alike.

At this point, the argument should proceed in the usual two-step

fashion. First, what is the value of the individual or group interest that

the regulation places at risk? Second, what are the justifi cations for the

regulation? Thus in Bellotti, the Supreme Court struck down a Massa-

chusetts law that prohibited corporations from contributing funds to a

group dedicated to blocking a Massachusetts referendum to authorize

a graduated state personal income tax. Progressive taxation is a con-

stitutional nonstarter in a classical liberal system, but is a fair proposal

under modern constitutional principles. Surely opposition, or support,

for that proposal counts as high-value political speech. Yet what compel-

ling interest justifi es their deprivation? Preventing corruption is highly

implausible in any referendum that involves no payments to any public

offi cial. Silencing corporate speech by government fi at should never be

allowed. Bank shareholders protect their individual interests against the

corporate board through their own internal procedures. If individuals

cannot be barred from contributing to these campaigns, neither can cor-

porations. Bellotti was correctly decided.

The Supreme Court took a very different tack in Austin v. Michi-

gan Chamber of Commerce,56 by upholding Michigan’s Campaign Finance

Act,57 which allowed corporations to support political candidates only by

using funds designated for that purpose. Once again, the statute imposes

an explicit limitation on speech that would not be tolerated against indi-

viduals who are never required to use only segregated funds for politi-

cal purposes. Nonetheless, Justice Thurgood Marshall (who dissented in

Bellotti) justifi ed the law by appealing to two considerations:

The fi rst is the State’s interest in sustaining the active role of the indi- vidual citizen in the electoral process, and thereby preventing diminu- tion of the citizen’s confi dence in government. The second is the interest in protecting the rights of shareholders whose views differ from those expressed by management on behalf of the corporation.

Both arguments are fatally fl awed. Corporations are not citizens, but

their shareholders are often citizens of the state, or citizens of other

states who themselves are entitled to support candidates for public offi ce

in states where they do not reside. Nor is it clear that a broader base of

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456 Individual Rights: Speech

political participation somehow reduces citizen confi dence, when it is

equally plausible to insist that political confi dence diminishes when the

state muzzles potential speakers. Therefore, as long as the mechanisms

of corporate governance can address minority shareholder rights, both

arguments in Austin fail. Nor does the equation shift by making any

special claim of corporate “corruption,” or worse, “the appearance of

corruption.”58 The applicable constitutional standard for political speech

calls for an “exacting scrutiny,” under which a restriction is upheld “only

if it is narrowly tailored to serve an overriding state interest.”59 Gener-

alized suspicions of corporate irregularity do not come close to meeting

that standard.

Unfortunately, Austin paved the way for the Supreme Court’s deci-

sion in McConnell v. Federal Election Commission,60 which upheld the com-

plex set of limitations on corporate speech contained in the Bipartisan

Campaign Reform Act (BRCA) (often called “McCain-Feingold”).61 That

act fi rst limits the amount of “soft-money contributions,” covering gen-

eral expenditures for party activities that fall short of specifi c endorse-

ments for a particular candidate. These were largely left unregulated

under the Federal Election Campaign Act of 1976. McCain-Feingold

also limits the amount of advertising that may be done, both by and on

behalf of political parties, within thirty or sixty days of an election.62

These are substantial limitations on freedom of speech that would,

without question, be struck down if imposed on individuals. Yet the jus-

tifi cations offered by both Justices Stevens and O’Connor, like those in

Austin, fall far short of making out any “exacting” claim of a compelling

state interest. The two justices were content to assert that the record is

“replete” with instances in which money purchases access to political

actors.63 But their one specifi c illustration was a clever ruse that the

milk industry used to amass hefty sums to aid Richard Nixon’s reelec-

tion campaign in order to protect their minimum price supports.64 They

might have noted that the issue would have dissipated if in 1934, in

Nebbia v. New York,65 the Supreme Court had not allowed the state to set

minimum prices for milk, backed by criminal sanctions.

As this one example shows, Justices Stevens and O’Connor were

unable to reach any general conclusion whether corporate contributions

count as good or bad from any neutral social perspective. Nor is it pos-

sible to develop one, so long as the current constitutional framework is

indifferent to the legislative choice between competition and monopoly,

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Progressive Regulation of Freedom of Speech 457

which creates the inexcusable levels of political discretion. But in today’s

environment, it cannot be the case that every popular effort on matters

of taxation, employment, regulation, or free trade should receive assis-

tance from the Supreme Court, which refuses to take any constitutional

stand against the risks of faction which itself moves the country ever

further from a sustainable competitive equilibrium. The same progres-

sive naiveté on the dangers of partisan politics drove the unfortunate

dilution of First Amendment rights in Austin and McConnell.

This house of intellectual cards came under attack in Federal Election

Commission v. Wisconsin Right to Life.66 WRTL ran advertisements urging

viewers to contact their United States senators to let them know where

they stood on the issue of abortion. One could call this abstract speech,

or perhaps disguised electioneering efforts that fall within the scope of

McCain-Feingold. But it is just those ad hoc determinations that make

it unwise to let the act chill speech that is directed to one of the major

social issues of our time. A conservative fi ve-to-four majority did some

high-stepping to hold that McConnell did not preclude an “as-applied”

challenge to the prohibition of an “electioneering communication” and

advertisements that were “the ‘functional equivalent’ of express cam-

paign speech.”67 The court reasoned that strict scrutiny (honored only

in name in McConnell) placed the burden of proof on the government to

show that this mixed form of speech fell within the statutory prohibition.

After WRTL, the relevant law was in an evident state of disarray, for

that case’s evasive and ad hoc techniques offered, at most, inadequate

and erratic constitutional protection of corporate speech. It was there-

fore no surprise that WRTL’s middle position disintegrated in Citizens

United, which held that McCain-Feingold could not block an airing of

the fi lm Hillary: The Movie within thirty days of a Democratic primary in

which she was running for the Democratic presidential nomination. The

fi lm represents political speech that lies at the core of the First Amend-

ment, so it should attract the exacting scrutiny so obviously missing in

McConnell. But the coalition that carried WRTL took the case one step

further by overruling McConnell.

On the doctrinal side, the First Amendment protects the freedom of

speech in general terms that do not exclude corporations from its cover-

age. In his dissent, Justice Stevens made the narrow historical argument

that corporations did not achieve full legal personhood at the time of

the nation’s founding,68 but he would never invoke that argument to

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458 Individual Rights: Speech

suggest that corporations are not citizens of the state in which they are

incorporated or where they have their principal place of business. Nor

would it make the slightest sense to admit that large partnerships (let

alone large limited partnership) are entitled to speech protection that is

systematically denied to corporations because of the unrelated feature

of limited liability.

The corruption rationales are, moreover, as weak in this case as

in Austin and McConnell. And what has become still clearer is that all

too often the political constraints on corporations that were belittled by

Justice Marshall have an enormous impact on corporations. The simple

point here is that corporations that sell in consumer markets run the

risk of instant retribution for taking high-profi le stands that cut against

their customer base. John McKay, the CEO of Whole Foods, learned that

lesson the hard way when his critique of the Obama health care plan

created an instant consumer backlash. Here is one brutal assessment

of the overall position: “While the word ‘corporation’ may conjure up

images of Microsoft and British Petroleum, the truth is that the vast

majority of corporations in the United States are small business corpo-

rations or ideological corporations.” In addition, it should come as no

surprise that “[m]ost corporations also are in business to make a profi t,

and therefore cannot afford to alienate customers or encounter negative

press.”69 Corporations that have the right to take political stands are all

too often buffeted by demands from activist groups on all sides to take

up their causes. This is a right that most businesses do not value or want

to exercise. The only groups that really want the power to take political

positions as corporations are labor unions, chambers of commerce, and

advocacy groups like WRTL and Citizens United that do not run the risk

of alienating consumers.70 If corporations want to brave that backlash, by

all means let them if the alternative requires a huge administrative appa-

ratus that imposes high compliance costs on pain of criminal liability.

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S E C T I O N I I I

RELIGION

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Free Exercise

THE TWO RELIGION CLAUSES of the First Amendment read as follows: “Congress shall make no law respecting an establishment of reli- gion, or prohibiting the free exercise thereof.”1 As noted in Chapter 24,

those two commands cut in opposite directions. The constant danger

runs as follows. Any protection of religious liberty above and beyond

the protection given to other activities could be read as an establish-

ment of religion, while any restriction on activity of religious institu-

tions could be read as limiting the free exercise of its members. Each

clause always lurks in the wings when the other is under consideration.

Indeed, many cases raise diffi cult interpretive questions under both at

the same time. Nonetheless, it is necessary to break down the larger

issue into its component parts, and on this score it is better to begin

with the Free Exercise Clause2 than with the Establishment Clause.3

The simple reason is that the Free Exercise Clause deals with the issue

of individual liberty, which, rightly understood, rests on a view of indi-

vidual entitlements that precedes the creation of the state. In contrast,

for its part, the Establishment Clause necessarily presupposes public

institutions that have as their function, among others, the protection of

religious liberty by fi rst collecting tax revenues that are then spent on a

wide range of public goods.

Neutrality versus Accommodation

The basic insight in dealing with the Free Exercise Clause is that the free-

dom of religion it protects is a subset of a larger conception of individual

freedom, which works off a bottom-up Lockean theory with no explicit

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462 Individual Rights: Religion

religious agenda. Authoritative pronouncements from on high are per-

fectly appropriate within a religion, but they are useless to resolve the

claims between members of that religion and other individuals or groups

in society. Many faiths have accounts of religious freedom that privilege

their own position against all outsiders. But for constitutional purposes,

these deeply held preferences must be disregarded to fi nd a theory of

religious freedom that covers all instances of its free exercise. The only

workable account of religious freedom suitable for doctrinal purposes

must be indifferent to the truth or falsity of any given set of religious

beliefs. After all, inconsistent religious views of the world can all be

wrong, but they cannot all be right. At this point, the focus turns to

the standard libertarian justifi cations, developed elsewhere, that can be

invoked for limiting the free exercise of religion, which again turns the

inquiry back to the use of force and fraud. Only after these questions of

religious liberties among strangers are resolved is it possible to examine

how the Free Exercise Clause operates in settings with more pervasive

state control, including fi rst the public commons and thereafter matters

of education and employment.

It is also important to recognize that today this inquiry takes place

in a second-best world in which it is already conceded that restrictions

on private property and economic liberty receive only a low rational

basis review, which tolerates large amounts of redistribution through

taxation and regulation. The ordinary rights of an earlier era become

extraordinary rights today, so that any distinctive exercise of rights of

association, for example, could be attacked as a religious preference

and hence an establishment of religion. Think of a rule that exempts

the clergy from sex discrimination prohibitions. Conversely, whenever

religious individuals are subjected to norms that limit their freedom of

association, is there a denial of the free exercise of religion? Think of

a rule that subjects religious organizations to the same restrictions on

sex discrimination as all other employers. Put in other words, the chal-

lenge is to mesh any heightened standard of protection for religious lib-

erty in a world that affords only weak protection for private property,

as under zoning laws, and associational freedom, as with employment

discrimination laws. The tension between special exemptions and uni-

form rules runs throughout this area.4 The central choice, as it turns

out, is whether the neutral application of some general law to religious

institutions is permissible regardless of its disparate impact on religious

groups—which, as with dietary restrictions, is almost always known to

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Free Exercise 463

the legislature. Or must there be some accommodation to special reli-

gious beliefs, so that parity need not be achieved when there is need to

counteract the known disparate impacts of general legal regulation. The

best way to sort out these issues is to start with the government’s regu-

lation of private behavior, after which it is possible to ask what changes

when the government acts not only as regulator, but also as employer,

educator, or property owner. This approach favors analytic clarity over

historical continuity by stressing distinctions that Supreme Court case

law sometimes overlooks, downplays, or rejects.

The Government as Regulator

The Supreme Court’s initial foray into the Free Exercise Clause was its

1879 decision in Reynolds v. United States.5 A unanimous Court upheld

a bigamy prosecution of Mormons in Utah, though the Free Exercise

Clause, by binding Congress which administered the territory, neces-

sarily applied. Thus Chief Justice Morrison Waite construed the clause

by adopting a narrow defi nition of the basic right and a broad account

of the permissible state justifi cations—the antithesis of a classical liberal

position. Put otherwise, a strong dosage of judicial deference was thus

built into the ground fl oor. Waite wrote:

[T]he only question which remains is, whether those who make polyg- amy a part of their religion are excepted from the operation of the stat- ute. . . . [W]hile [the laws] cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifi ces were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifi ce? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead hus- band; would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.6

The various arguments and analogies that Chief Justice Waite

packed into this short passage have set the law on free exercise on

the wrong course from the beginning, from which it has never fully

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464 Individual Rights: Religion

recovered. Waite’s initial query was whether any individuals should

be “excepted” or “excuse[d]” from a law of general applicability.7 That

presumption, however, is at its peak with respect to those norms that

are designed to serve classical liberal ends of stopping the use of force

and fraud. But the moment the laws in question interfere with basic

freedoms of association, that presumption no longer retains the power

that it has with respect to the core applications of the criminal law.

As noted in Chapter 23, that presumption has shifted in connection

with morals offenses, most notably on such issues as prostitution and

fornication, which involve sexual activities outside of marriage. But

there is a real question as to whether the Utah legislation falls within

that category, or whether it is better understood as the effort of one

religious group to block practices that are inconsistent with its own

beliefs. Unlike gay marriage, which until late has never been sanc-

tioned, polygamous marriages date back to Biblical times—Jacob fi rst

married Leah and then Rachel. In total Jacob had four wives.8 Health

and safety regulation is always open to challenge as a disguised form

of anticompetitive labor regulation. The same principle should apply to

marriage restrictions.

Chief Justice Waite therefore erred in setting the initial presump-

tion not in favor of liberty, but in favor of the overall use of state power.

He then compounds that error by insisting that although laws “cannot

interfere with mere religious belief and opinions, they may with prac-

tices.”9 That narrow reading confl icts with the textual commitment to

the free exercise of religion, in which religious practices are necessarily

included. To make his position credible, Waite then appeals to the exam-

ple of human sacrifi ce. This case is, however, easily distinguishable from

polygamy, for constraints against human sacrifi ce are manifestly consis-

tent with the general classical prohibition on force and fraud. Waite then

adds a second case that is far closer to the line—the prohibition of suicide

in connection with discharging religious duty. It is worth noting that

classical liberal writers condemned suicide because, although individu-

als were custodians of their own bodies, one’s body was itself a gift from

God that could not be used to violate fundamental norms of humanity.

John Locke wrote “[man] has not liberty to destroy himself,”10 to which

Immanuel Kant added that suicide violates the categorical imperative

because no person should be used “merely as means, but must in all his

actions be always considered as an end in himself.”11

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Free Exercise 465

More modern discussions on this same topic often reach the same

conclusion on the more functional ground that no rational person would

take his own life, so that the fact of suicide itself is evidence of some

underlying incapacity or external coercion—a presumption that loses

some, perhaps much, of its power in cases of voluntary euthanasia at

the end of life.12 Recent Supreme Court cases have continued to uphold

the prohibition in recognition of these practical concerns.13 Clearly

some measure of constitutional deference on this issue is required given

the serious cross-currents over the prospect of diminished capacity and

undue infl uence. Nor do these interests exhaust the realm of justifi -

cations for social control. There is little doubt that the state can stop

religious sacrifi ce of animals to the extent that these cause pollution to

public waterways, for the antinuisance rationale applies to all liberties.

But here state efforts to control these externalities have to be justifi ed

by showing at the very least the existence of such harm. It is not suffi -

cient to do so because of a dislike of religious slaughter for its own sake,

especially if it is engaged in by an unpopular sect.14

The leap, therefore, from murder and suicide, or from the creation

of common law nuisances to plural marriage is a non sequitur, for it

offers no independent moral theory to explain why the state’s judg-

ment should be dispositive against a constitutional challenge, except

for the fact that the opposition to plural marriage is accepted by all

dominant religions. There is no harm to others here, or even harm to

self. Whether the topic is religion or speech, any collective disapproval

about the desirability of particular practices should carry no weight,

unless it is tied to harms to the parties involved, as measured by their

own lights. Thus, it is permissible to show that polygamy is abusive to

some, or indeed all, women. It would also be relatively simple to justify

a prohibition against plural marriages for young girls. But even here,

the age prohibition is sensible whenever young girls under parental

control are shipped off to husbands against their will in monogamous

relationships, so the case against polygamy collapses down into the

usual and proper concern with the protection of minors. In the end,

Waite’s chilling conclusion is that any uniform and general law made

by the majority can be imposed on a minority, on whose members

alone it has a substantial negative impact. In this instance, the denial

of the free exercise claim does look like a violation of the Establish-

ment Clause.

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466 Individual Rights: Religion

That evident tension between the free exercise of religion and neu-

tral laws surfaced again in Prince v. Massachusetts,15 where the Court,

speaking through Justice Wiley Rutledge, upheld the application of a

child labor law against a woman who was the guardian of her nine-

year-old niece. The aunt violated those laws by taking the child with her

to help sell copies of two Jehovah’s Witnesses publications—The Watch-

tower and Consolation—on the public streets. This child labor statute was

not directed to long hours in factories; it instead prohibited girls under

eighteen and boys under twelve from selling any wares on the street.

The stated justifi cation for this prohibition was that this child labor law

served its stated end “that children be both safeguarded from abuses and

given opportunities for growth into free and independent well devel-

oped men and citizens.”16 In addition, the fi ve-member majority of the

Court held, citing Reynolds, that her religious motivations did not trigger

an equal protection claim since all children were subject to the same

regulations prohibiting them from selling religious tracts on public high-

ways. The absence of a suspect classifi cation led again to a deferential

standard of review. In contrast with the Equal Protection Clause, how-

ever, the Free Exercise Clause is not a simple demand for parity. It is an

explicit substantive constitutional guarantee, which was held to apply

against the states. On that question, warning bells should ring when the

state conveniently exempts from the general child labor law altar boys

and youthful choristers who ply their efforts inside religious “edifi ces”17

and not “on the public streets.”18

Unfortunately, Prince made no effort to explain why the Jehovah’s

Witnesses’ religious activities were less deserving of protection than oth-

ers simply because they operated only on the public highways. Of course

the police power can apply to the religious activities of children, but

not under some rational basis review. The specifi c religious guarantee

calls for a higher level of scrutiny that in turn demands some particu-

larized showing of a likelihood of child abuse or neglect, which is not

likely on the facts in Prince. It surely does not do for the Supreme Court

to cite a case that found the state to be acting within its police power

when it prohibited child labor in “hazardous employment”19 working

on machine tools with no hint of any religious issue. Even if the Jeho-

vah’s Witnesses were not singled out for special treatment, the disparate

impact of the child labor law, which may well have been its design,

operates as an indefensible burden on religious liberty, for the simple

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Free Exercise 467

reason that it puts Massachusetts’s thumb on the scale in favor of some

religions and against others. The simple requirement of formal equality

in the application of any law is never suffi cient to protect against state

abuse. Disparate impact matters as well.

The majority in Prince entertained no doubt about the ability of the

state to require children to receive some schooling, notwithstanding

any confl ict between religious belief and state programs.20 That position

coexisted uneasily with the earlier Supreme Court decision in Pierce v.

Society of Sisters, which allowed parents (under the Due Process Clause,

which had teeth before its modern evisceration) to provide for a religious

education of their children outside the public school system.21 Nonethe-

less, Prince held that parents could be required to supply some form of

education for children. Prince in turn was limited in Wisconsin v. Yoder,22

which held that Amish parents could refuse, on religious grounds, to

send their children to public school without providing some alternative

education. Once again, the case presents a square claim of the free exer-

cise of religion against the state, which claims to protect all minors from

parental misconduct. But for formal education and similar issues, the

correct constitutional framework is easier than commonly supposed. For

a long time, the state required no child to have an education.23 Yet there

was no evidence that this gap in state activity resulted in either stunted

children or an ignorant populace, given the strong desire of parents to

provide education for their own children. The Amish practice is not the

result of an isolated decision by quirky parents. It was made as part of

an overall system of faith, which in the years of its operation probably

has produced fewer casualties than the public education system in many

an inner-city locale. As with the child labor cases, citizenship and civic

responsibility sound like lofty ideals, but the correct standard through-

out always looks for some particularized form of abuse directed against

the individual children, just as should have been done in Prince. The

basic presumption in favor of religious autonomy can never be displaced

by diffuse and unsubstantiated police power claims.

Reynolds and Prince also infl uenced the misguided Supreme Court

decision in United States v. Lee,24 once again in connection with the

Amish. Social Security law exempts from taxation all self-employed

persons whose well-established religious tenets make them “conscien-

tiously opposed to acceptance of the benefi ts” from any private or public

retirement or disability system.25 The statutory exemption is narrowly

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468 Individual Rights: Religion

drafted to prevent opportunism and abuse. No one disputed that the

Amish qualifi ed. The exemption, however, did not allow Lee to opt out

of the Social Security system for his Amish employees. He refused to pay

the payroll tax because the Amish treat it as “sinful” not to take care of

their own “elderly and needy.”26 A unanimous Court accepted that the

collection of the tax burdened the Amish. It also expressed no doubt as

to the sincerity of Lee’s belief and explicitly acknowledged that “com-

pulsory participation in the social security system interferes with their

free exercise rights.”27

At this point, the issue concerns the justifi cation for the burdens

so imposed. Chief Justice Warren Burger put the point as follows: “The

social security system in the United States serves the public interest by

providing a comprehensive insurance system with a variety of ben-

efi ts available to all participants, with costs shared by employers and

employees.”28 As with the comparisons to human sacrifi ce and suicide

in Reynolds, however, the argument proceeded by a fl awed analogy from

paying taxes to support wars regarded as sinful to paying money into the

Social Security system. Somehow the government could not function

“if denominations were allowed to challenge the tax system because tax

payments were spent in a manner that violates their religious belief.”29

Once again, basic economic theory exposes the fl aw. In this instance,

the appeal to the “public interest” is not invoked to control the dangers

of monopoly power, as it is in the ratemaking cases. Nor is there a state

interest in supplying public goods, namely those which, when supplied

to one person, must necessarily be supplied to all.30 Public goods must

be funded by coercive taxes, for otherwise everyone has a temptation

to free-ride on the payments of their fellow citizens. But the Social

Security system is not concerned with paying for public goods, such as

street lights, the court system, or national defense. It is a different beast

entirely because its payments go into individual bank accounts, which

are as exclusive as property rights possibly can be. Social Security can

exempt all the Amish, whether self-employed or not, from both contri-

butions and payments without worrying about any free-rider problems.

After all, the Amish are not insisting on their right to collect benefi ts

without paying taxes—a claim that the Court rightly rejected in Bowen

v. Roy31 where the Roys claimed that their Native American religious

beliefs prevented them from supplying the Social Security numbers of

their family members who received benefi ts under the Aid to Families

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Free Exercise 469

with Dependent Children and Food Stamp programs. With the Amish

entirely removed from the system, progressive social policies may

determine how the remainder is divvied up under the weak standard

of rational basis review. But the protection of religious liberties need

not be consigned to the same fate. Given Amish beliefs, Lee’s confused

account of the public interest leads to a forced wealth transfer from the

Amish to the individuals receiving Social Security benefi ts. This out-

come is not correct.

Nor did the Court do better in the subsequent decision in Bob Jones

University v. United States,32 which allowed the Internal Revenue Ser-

vice (IRS) to deny Bob Jones University tax-exempt status because of

its decision on religious grounds to ban interracial dating among its

students. In a world without taxation, Bob Jones is within its rights

to have such a mandate under classical liberal principles of freedom

of association, given the wealth of other educational choices available

to students who fi nd the policy morally unacceptable. But the state

cannot lead them to shut the program down because of the offen-

sive premises on which it rests. All things considered, the country is

healthier when more options are made available. Whether the program

lives or dies should depend on whether students wish to enroll, not

on whether the IRS disapproves of their behavior. The imposition of

a tax regime, therefore, should not alter the relative balance between

Bob Jones and other universities that take a different view on interra-

cial dating. Unfortunately, the IRS’s redefi nition of “charitable” distorts

that balance in favor of Bob Jones’s many rivals. When the question is

instead whether the state can fund programs for maternal health but

not for abortion, the forceful liberal response attacks the state-induced

distortion between two alternatives with equal constitutional status.33

Yet in Bob Jones, the Supreme Court held that the state had a “com-

pelling” state interest in barring discrimination—a holding on which it

relied in its prior decisions in Reynolds, Prince, and Lee—cases for which

no kind words should be uttered.34 Yet how can the interest be com-

pelling for tax purposes given the evident constitutional diffi culties of

any direct effort to prohibit religious institutions from refusing to allow

their students to engage in interracial marriage, or for that matter from

allowing only men to serve as priests? The parallels here to the protec-

tion of freedom of speech are strong, where the government cannot

condition the receipt of government benefi ts on signing loyalty oaths.35

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470 Individual Rights: Religion

The issue in this instance is not which set of restrictions we dislike most.

It is whether either set should be allowed when the state has a duty to

remain neutral across different ideological beliefs.

The same fl awed logic that runs from Reynolds to Bob Jones led to the

1990 watershed decision of Employment Division, Department of Human

Resources v. Smith,36 which asked whether Oregon could deny unemploy-

ment benefi ts to members of the Native American Church who used

peyote for religious purposes. At fi rst look, the case did not seem to deal

with the regulation of private conduct, but rather with the withhold-

ing of state benefi ts. However, the decision to withhold benefi ts turned

on whether Oregon could apply its general criminal ban to this reli-

gious subgroup, consistent with the Free Exercise Clause. So the Court

returns to Reynolds’s insistence that valid general laws preclude the need

for granting accommodations for actions that look more like polygamy

than ritual slaughter or spousal suicide. Where, then, is the tangible risk

of harm in this highly regimented use of peyote in controlled settings?

Is there any evidence that ingesting peyote functions as a precursor to

violent or other antisocial activities?

In upholding the ban, Justice Scalia retreated from the broad claim

in Reynolds that all forms of conduct fell outside the protection of the

First Amendment. He acknowledged that “[i]t would doubtless be

unconstitutional, for example, to ban the casting of ‘statues that are to

be used for worship purposes,’ or to prohibit bowing down before a

golden calf.”37 But in his view, this case went one step further because

Smith sought to escape the application of “a generally applicable law”

against the use of peyote, without examining the weight of the counter-

vailing religious interest.38 In so doing he ignored the disparate impact

of the law on Smith whose religion both commanded and restrained his

use of peyote.

Scalia then distinguished Yoder, which had evinced a more liberal

spirit, as falling in a class of cases best understood as offering greater

constitutional protection for conduct that combined the exercise of reli-

gion with other constitutionally protected activities such as freedom of

speech and of the press.39 He thus pointed to cases like as Cantwell v.

Connecticut,40 which invalidated a state law that gave the local adminis-

trator of a licensing system complete discretion to forbid any religious

or charitable solicitations. But this point too lacks any theoretical heft.

Both speech and free exercise are embodiments of the same classical

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Free Exercise 471

liberal approach to freedom. Each has the same internal conceptual

integrity. There are no cases in which two supposed half violations

equal one whole. Instead, there are cases where some practices violate

both the Free Exercise and the Free Speech Clauses, instead of just one.

Nor should it change the case if smoking peyote for religious purposes

becomes expressive conduct in this select group of religious devotees.

Smith provoked a sharp bipartisan outcry for failing to make a

modest accommodation to satisfy religious beliefs. A unifi ed Congress

fi rst passed the Religious Freedom Restoration Act,41 which purported

to undo the rigid tests in Smith, only to have it struck down by the

Supreme Court in City of Boerne v. Flores.42 Boerne took it as a given that

Smith established the outer limit of individual protections under the

Free Exercise Clause. At this point, the issue concerned the simple ques-

tion of whether the Congress could expand the substantive scope of

the Equal Protection Clause beyond the contours laid out in Smith. If

it could, then Congress would have the power to act under Section 5

of the Fourteenth Amendment that reads simply: “The Congress shall

have the power to enforce by appropriate legislation, the provisions of

this article.” Yet once the Court’s interpretation of the Equal Protec-

tion Clause is dispositive, it is no longer appropriate for the Congress to

impose limitations on the states that the Equal Protection Clause does

not require. Stated otherwise, it is easy for Congress to impose limits on

its own powers if it believes that the Court’s interpretation of any clause

supplies anyone with insuffi cient protection against its own actions. But

the Congress cannot adopt the strategy to impose additional restrictions

on the behavior of the states, which are coordinate sovereigns within

the system.

Once rebuffed in Boerne, Congress responded with the Religious

Land Use and Institutionalized Persons Act (RLUIPA),43 which in effect

applied, in defi ance of Smith, a far higher level of scrutiny to general laws

in two designated areas of concern. One prong of RLUIPA stipulates: “No

government shall impose a substantial burden on the religious exercise

of a person residing in or confi ned to an institution. . . .”44 It then requires

strict scrutiny of such legislation through its means and ends provisions:

the law shall not be sustained unless the burden furthers “a compelling

governmental interest” and does so by “the least restrictive means.”45 In

Cutter v. Wilkinson46 the Supreme Court upheld that portion of RLUIPA

on the ground that an accommodation of religious practices does not

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472 Individual Rights: Religion

necessarily run afoul of the Establishment Clause—a clear retreat from

Smith. That same formula—compelling state interest coupled with least

restrictive means—also controls the land use provisions of RLUIPA and

has yet to be reviewed by the United States Supreme Court. However, in

the lower court decisions on the subject, the constitutionality of the stat-

ute has been presumed,47 leaving open the issue of statutory construc-

tion of whether the religious land use provisions of the statute apply to

eminent domain proceedings, to which the correct answer seems to be

no, given that land use regulation does not cover the taking of property.

The authority of Smith was further shaken in Hosanna-Tabor Evan-

gelical Lutheran Church & School v. EEOC,48 which asked whether to read

in a statutory “ministerial exception” to insulate the church from the

Americans with Disabilities Act of 1990 (ADA).49 The case arose when

the Lutheran Church chose to dismiss Cheryl Perich, a “called” teacher,

rather than return her to the classroom after a medical leave for narco-

lepsy. “Called teachers” are called by God. Unlike “lay” teachers, they

must be Lutherans and go through special training before assuming

their positions. A unanimous Supreme Court held that a ministerial

exception was indeed necessary to save the ADA from an attack under

the Free Exercise Clause, and thus blocked the application of the ADA

to this case. The Court held that it was for the church, and not the ADA,

to determine who counted as a minister under its own internal rules.

This case could never arise under a classical liberal theory because

the principles of freedom of contract would require the repeal of the ADA

in all cases of private employers,50 thereby obviating the need to create

ad hoc accommodations in some. But under the prevailing principle of

Smith, it might have appeared that a neutral rule of general application

could survive constitutional challenge. Nonetheless, Chief Justice Rob-

erts made short shrift of Smith by claiming that “a church’s selection of

its ministers is unlike an individual’s ingestion of peyote. Smith involved

government regulation of only outward physical acts. The present case,

in contrast, concerns government interference with an internal church

decision that affects the faith and mission of the church itself.”51

His purported distinction makes no sense at all. First, Hosanna Tabor

appears to apply only to called teachers, not lay teachers. Yet the ability

of a church to control its own internal deliberations depends as much

on controlling the second as it does on controlling the fi rst. In the 1979

case of NLRB v. Catholic Bishop of Chicago,52 the Supreme Court held that

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Free Exercise 473

the National Labor Relations Act does not apply to teachers in church

schools in the absence of a clear congressional statement that it does

so. Chicago Bishop made no reference to the ministerial exception that

loomed so large in Hosanna Tabor. Yet now it is unclear whether on

the applicable balance of interest that the ADA applies to lay teachers.

There is no need for that guarded caution in an otherwise commend-

able decision.

Second, Smith should not survive Hosanna Tabor. The inhalation of

peyote in Smith was described by the chief justice as dealing with “only

outward physical acts.”53 That is an odd way, to say the least, to describe

conduct that is an essential part of a religious ritual. If that core religious

practice lies outside constitutional protection, why then protect instruc-

tional activities that are at least one step further removed from core

religious practices? It is as though the United States could ban, under

some general law, the use of religious wafers in Catholic Communion,

but could not require them to permit unions to organize the nuns, and

perhaps the lay teachers, in parochial schools. All these distinctions are

beside the point. The only defensible line is that the internal affairs of

religious institutions are beyond the scope of the government’s power to

regulate employment relations.

Whether the law will continue to move toward that position

remains to be seen. The current fl ashpoint is the massive litigation efforts

brought by the Roman Catholic Archbishop of Washington and the Uni-

versity of Notre Dame54 for a declaration that the Patient Protection

and Affordable Care Act is unconstitutional insofar as it mandates that

these institutions, as employers, supply contraception to their employ-

ees, or ensure that their insurers do so at no extra expense.55 The scope

of these limited protections is further truncated by the narrow defi ni-

tion of a “religious employer” under the regulations, so that it covers

only nonprofi t organizations for whom inculcation of religious values is

their purpose, and then, furthermore, only if they serve or employ “pri-

marily” persons who share in their religious tenets. By this defi nition,

most Roman Catholic hospitals, shelters, schools, and universities are

not covered. It is particularly odious that the price for gaining the con-

traceptive exemption is denying services to non-Catholic individuals.

To the extent that principles of institutional autonomy apply in the reli-

gious context, the contraception mandate should be dead on arrival on

constitutional grounds, even for cases of “lay” as opposed to the “called”

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474 Individual Rights: Religion

employees, who alone fi t within the ministerial exception read into the

ADA. At least so I thought until I read an open letter signed by well over

a hundred prominent law professors who think that one of the many

virtues of the contraceptive mandate is to advance religious liberty. At

the beginning of their letter, the signatories write:

Nothing in our nation’s history or laws permits a boss to impose his or her religious views on non-consenting employees. Indeed, this nation was founded upon the basic principle that every individual—whether company president or assistant janitor—has an equal claim to religious freedom.56

In a footnote, the signatories insist that Hosanna Tabor “is easily dis-

tinguishable, because the case merely held that a house of worship is

exempt from certain employment laws when hiring and fi ring ministers.

In contrast, the no-copay contraception rule exempts houses of worship

altogether, and affects the rights of all employees, including those who

do not share the faith of their employers.”57

They then conclude with this message:

Religious freedom must not provide a justifi cation to deprive women of legal rights they should enjoy as employees and citizens. To the contrary, the First Amendment specifi cally preserves space for their religious lib- erty, and secures their right to act as individuals who exercise their own conscience on matters pertaining to their faith, body, and health.58

The letter is wrong in its analysis of both the Free Exercise Clause

and the applicable precedent. On the former, the “boss cannot just

impose his or her religious views on non-consenting employees.” The

word “impose” suggests that any employer can tell workers what to do,

which is never the case so long as they have the right to quit their jobs.

In this case, moreover, that issue does not even arise, because there

is nothing that any religious employer has done to prevent its work-

ers from obtaining contraception from other providers at their own

expense. Workers are not coerced, moreover, when an employer fails

to supply a benefi t that some workers want. The term “coercion” is,

however, correctly used to describe a mandate to supply workers with

benefi ts that violate an employer’s faith. The principle of freedom of

association only makes sense when both sides are free to associate on

whatever terms they both see fi t. The coercion here is on the behalf of

the dissident employees, not against them.

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Free Exercise 475

Nor do the precedents help salvage the contraceptive mandate.

Smith is clearly in disarray after Hosanna Tabor, which deals not only

with the hiring and fi ring of ministers, but also with the management

of the internal affairs of a church. How Hosanna Tabor can be limited to

hiring and fi ring, when the ADA applies to all employer decisions, seems

odd indeed. Any government action covered by the ADA appears to be

covered by Hosanna Tabor. To be sure, the conceptual equivocations in

Hosanna Tabor make the outcome of future litigation on the mandate

uncertain, which only confi rms the uneasy position of religious liberty

under our current constitutional order.

Free Exercise and the Exercise of Government Powers

In free exercise cases thus far considered, the government acted solely

pursuant to its general power to regulate. In those cases, its power is at

low ebb, given that it seeks to interfere in private relationships that are

entered into for mutual gain. But the situation becomes more compli-

cated in religion cases, as it was in speech cases, when the government

can also properly rely on some independent relationship that it has with

the parties whose conduct it regulates—such as when using its power

as a landowner, educator or employer. The key question asks how these

additional powers change the balance of advantage in dealing with free

exercise cases in a number of discrete contexts.

Religious Qualifi cations for Public Offi ce. Part of this question is addressed

by explicit constitutional guarantees, such as Article VI, clause 3, which

says fl atly that “no religious Test shall ever be required as a Qualifi cation

to any Offi ce or public Trust under the United States.”59 The clause was

a conscious break from the then current English policy, directed toward

Roman Catholics and nonconformists, which allowed for such practices

until the passage of the Test Act of 182860 and the Catholic Relief Act of

1829.61 It is therefore no surprise that the Supreme Court has, for exam-

ple, struck down a Maryland law requiring that a person have a belief

in God in order to “hold public offi ce.”62 Even though Article VI, clause

3 could not apply to state offi cials, the provision was struck down under

the Free Exercise Clause as applied to the states in yet another applica-

tion of the ubiquitous doctrine of unconstitutional conditions. In the

same vein, a plurality of the Supreme Court held that Tennessee could

not exclude any priest or minister from seeking to become a delegate at

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476 Individual Rights: Religion

a state constitutional convention, again as an impermissible burden on

the free exercise of religion.63 That question is, of course, not resolved by

the Test Act cases, for what is at stake is not the need of a nonbeliever to

swear a religious oath, but the converse situation: can the state show a

suffi cient risk that religious offi cials will put their religious duties before

their secular ones to disqualify them on confl ict of interests grounds?

Here again choosing the right level of scrutiny resolves the problem. Pol-

itics is never a pristine business, so in the absence of any demonstrable

connection in an individual case, the generalized police power justifi ca-

tion should be emphatically rejected.

Public Lands and Roads. Generally speaking, the power over public lands

cannot be exercised in ways that force individuals to forsake their reli-

gious liberties any more than it can require them to relinquish their

rights to political speech—no matter how much individual citizens might

prefer personal mobility to either political participation or religious con-

viction. For all the mistakes in Prince v. Massachusetts,64 the fi ve-member

majority did not think the government’s case became stronger because

the defendant and her niece proselytized on the public highway. Simi-

larly, an anti-littering ordinance that could not stop leafl et distribution

on private property could not stop it on public highways either, whether

done by Jehovah’s Witnesses (again) or labor picketers.65 A similarly

tough attitude applies to ordinances prohibiting the posting of signs on

public property for fear of visual clutter.66 The proper response is to pros-

ecute those who litter or to wait until some localized situation justifi es

action against the party who litters.

This situation, however, becomes more complex in cases of gov-

ernment lands, not highways, to which no one has a guaranteed right

of access. In Lyng v. Northwest Indian Cemetery Protective Association,67 the

United States Forest Service sought to build roads on public lands that

were the burial grounds of the Yurok, Karok, and Tolawa Indians. Yet

the tribes’ effort to block construction under a free exercise claim failed

on the simple ground that the government could do what it wanted with

“what is, after all, its land.”68 That result presumes that the Indian use

rights had no protected status against the state, which is in line with the

strong positive streak of general American law,69 which does not allow

one to use prescriptive rights against the government.70 However, those

prescriptive rights would apply to private owners and should defeat the

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Free Exercise 477

government’s claims to exceptional status, as that claim is inconsistent

with basic classical liberal principles. There is simply no reason to carve

out a different rule on the odd ground that established burial grounds

go unnoticed by public authorities. The road could simply be relocated.

Education

It is also important to ask what additional powers the government has

when it takes on the role of an educational provider. The heavy mana-

gerial responsibilities that the government must bear favor the granting

of those powers. But two reasons fall on the other side of the balance.

First, the government has real market power, given that for most chil-

dren public schools are often the only option. Second, the government

raises tax revenues from the very parties whose options it seeks to limit.

Once again, the Jehovah’s Witnesses provide the litmus test for both

speech and religion claims on the simple question of whether the state

can require children to recite the Pledge of Allegiance in school when it

violates their good faith belief that such behavior is a form of idolatry.

In Minersville School District v. Gobitis,71 Justice Felix Frankfurter invoked

a broad police power claim that “national cohesion” was necessary to

“national security.”72 Citing Schneider v. State, he concluded oddly that

littering “presents a totally different order of problem from that of the

propriety of subordinating the possible ugliness of littered streets to the

free expression of opinion through distribution of handbills.”73 He was

right that the stakes are higher, but wrong to conclude that coercing

schoolchildren to violate their religious norms best combats the intol-

erance of the Nazis and Fascists with whom we would soon be at war.

It is not surprising, then, that three years later West Virginia State

Board of Education v. Barnette,74 with Frankfurter now in dissent, over-

turned Gobitis by reading into the Constitution, as Frankfurter protested,

“the general libertarian views in the Court’s opinion,” with which as

a matter of personal conviction “I should whole heartedly associate

myself.”75 Fortunate it was that Justice Robert Jackson writing for the

majority did follow Frankfurter’s personal views. Never did the narrow

accounts of the police power look so good. Private schools, which do not

have the power of the state behind them and which in any event face

competition from other schools, do have the power to either require

the Pledge or to prohibit its use. Once again, the public trump card of

ownership and management of the schools does not fl ip the balance for

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478 Individual Rights: Religion

either speech or religion claims. What remains is to decide what lesser

restrictions on religious dress and symbols are appropriate. It is doubtful

that any school could prohibit a student from wearing a cross or star

around his neck, for “[i]n the absence of a specifi c showing of constitu-

tionally valid reasons to regulate their speech, students are entitled to

freedom of expression of their views.”76 But the class of valid reasons

is often quite broad: thus it is equally clear that it could prevent stu-

dents from asserting the right to say prayers out loud during the middle

of a fi nal examination; the formula adopted that asks for “reasonable

accommodations without undue hardship,”77 which derives from the

civil rights laws, appears to be the best solution at any high level of gen-

eralization. That is the implicit norm of most secular schools, and it is for

all its evident weaknesses the best guideline for public action.

Employment

Sherbert v. Verner78 presents, in stark form, the legal tangles that arise

with the unemployment benefi ts of the modern welfare state. To guard

against abuse, these statutes usually deny compensation to any indi-

vidual who refuses suitable work without good cause. Ms. Sherbert, a

Seventh-Day Adventist, was dismissed from her previous job because of

her refusal to work on the Sabbath. She claimed that she was entitled

to unemployment benefi ts because she was unable to fi nd a suitable job

that did not require Saturday work. Her stark choice: abandon her faith

to keep her job or forgo a job to keep the faith. Justice Brennan found

this choice intolerable because it “puts the same kind of burden upon

the free exercise of religion as would a fi ne imposed against appellant for

her Saturday worship.”79

This is not so. To see why, consider the position of Sherbert vis-à-vis

her employer. Sherbert arose before the passage of the modern antidis-

crimination law, when her employer had no legal duty to accommodate

her religious preferences, whether or not it compromised either the

fi rm’s profi tability or the comfort level of other workers. Why, then,

make other unemployment insurance participants pay higher premi-

ums to subsidize Ms. Sherbert’s religious preferences? This issue would

have disappeared if she could have paid a higher premium or received

a lower wage to cover her increased risk of joblessness. Or the sys-

tem could have equalized the risk by letting her only receive benefi ts

when she couldn’t work for other reasons. Needless to say, a fi ne on all

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Free Exercise 479

Saturday worship is not needed to prevent some cross-subsidy of her

religion by others.

It is also instructive to look at Sherbert’s case after the passage of the

Civil Rights Act of 1964, with its ban against discrimination “because of

such individual’s . . . religion.”80 In its original form, it did not address

“cost-justifi ed” discrimination based on religion. But it is one thing not

to hire Sherbert for a Monday-through-Friday job because of her reli-

gion, and quite another not to hire her because, unlike all other employ-

ees, she refuses to work on Saturdays. That hole was plugged by the

act’s 1972 amendment that covered “all aspects of religious observance

and practice, as well as belief, unless an employer demonstrates that he

is unable to reasonably accommodate to an employee’s or prospective

employee’s religious observance or practice without undue hardship on

the conduct of the employer’s business.”81 Surprisingly, the Supreme

Court has construed this reasonable accommodation and undue hard-

ship tandem narrowly so that anything more than a “de minimis cost”

is today treated as an “undue hardship,”82 which makes sense for an

employer that has to revise its workforce without running afoul of col-

lective bargaining agreements and a host of other employment laws. The

obvious tension with Sherbert was left unexplored: if the antidiscrimina-

tion law doesn’t require the cross-subsidy, why does the Constitution?

Sherbert looks wrongly decided. Perhaps it ought not be overruled, but

neither should its reach be extended. In an age of fl ex-time employ-

ment, few people face Sherbert’s alleged dilemma.

Sherbert sets the stage for the controversial decision in Goldman v.

Weinberger,83 which asked whether an Orthodox Jew who worked as a

clinical psychologist in the Air Force could be disciplined for wearing a

yarmulke that did not conform to the military’s uniform dress code. Jus-

tice Rehnquist rejected the strict scrutiny standard in favor of granting

hands-off discretion to the military, fearing the slippery slope argument

that allowing yarmulkes today means accepting turbans and dreadlocks

tomorrow. Should the military be required to engage in the unappetiz-

ing task of having to make exceptions for the dress of one religion but

not another, or may it avoid that line-drawing problem by imposing

an overbroad ban on Goldman’s yarmulke that imposes only a trivial

burden on the military? Unlike Sherbert, no reassignment of workers

will obviate the problem. But in thinking about the military setting, it is

instructive that most private employers are willing to make this kind of

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480 Individual Rights: Religion

routine accommodation, which in all likelihood is required under cur-

rent law. Yet there are limits: no Roman Catholic may, as a right, insist

on wearing at work a large anti-abortion button with a picture of an

unborn fetus that causes massive workplace disruptions and productiv-

ity losses.84 The dress codes will clearly differ for combat, and could be

revised here in the face of problems of performance or morale. But the

basic presumption in favor of free exercise should apply in the absence

of a particularized showing of a substantial government burden. Some

might argue that to give Goldman this break is to establish his religion.

The next chapter looks at the other side of the problem: does any special

accommodation offend the Establishment Clause by giving a preference

to members of some religions that is denied to others?

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The Establishment Clause

Theoretical Foundations

IN THIS CHAPTER, we leave the question of free exercise to tackle the daunting interpretive problems surrounding the Establishment Clause. Per usual, the written portion of the clause covers only a frac-

tion of the relevant issues, because it says nothing about either the reach

of the clause or the possible justifi cations for limiting its scope. As a

brute historical matter, the Establishment Clause was intended to place a

ban on the ability of Congress (to whom the First Amendment is exclu-

sively directed) to establish a national church, based on the model of the

Anglican Church in England. Such an offi cial church would have a priv-

ileged position that would allow it to rely on tax revenues collected from

believers and nonbelievers alike. A national church would also have

the exclusive right to perform special state functions in which no rival

church could participate. Further, establishing a national church would

necessarily override the free exercise of religion whenever it mandated

church attendance by nonbelievers.1

Given these obvious evils, it is worth noting that the text of the

Establishment Clause does not read like a universal condemnation of

established churches. Rather, the Establishment Clause reads like an

anticompetitive provision: Congress may not establish a church that

horns in on a well-recognized state prerogative. At the time of the

founding, many states had established churches. Proposals, most nota-

bly in Virginia, to transfer general taxes to a favored religious insti-

tution gave rise to impassioned and successful opposition from both

James Madison and Thomas Jefferson.2 With the abolition of the last

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482 Individual Rights: Religion

remaining established church in Massachusetts in 1833, the views of

Madison and Jefferson had gained universal acceptance,3 without any

judicial intervention.

The abolition of state churches appears at fi rst blush to make moot

any dispute over the incorporation of the Establishment Clause so that

it binds the states. But that is not the case. Thus, the issue of incorpo-

ration fi rst proved salient in Everson v. Board of Education4 and thereafter

in the vast tangle of law that followed the case. Incorporation was of

concern because of the wide range of unresolved collateral issues raised

by government activities that fell short of a formal designation of one

established church. On the one side, there is what might be termed the

problem of “partial” or “limited” establishment, whereby the state con-

fers on one or more churches some preference or advantage over others.

Everson itself, for example, dealt with state support for busing school

students to parochial schools,5 but the larger basic issue clearly extends

far beyond that one context. In addition, there are all sorts of historical

practices—both symbolic and fi nancial—that acknowledge the central

role of religion in private and public life. Any tough look at religious

preferences has to be squared with the inverse concern that certain state

practices could easily put some or all religious individuals and organi-

zations at a disadvantage, relative to other secular groups that are freed

of such impediments. The full range of justifi cations for state interac-

tion are thus in place. Now that the Establishment Clause has been read

through the Fourteenth Amendment to apply to the states, these issues

are constantly on the federal judicial agenda.

The key question, therefore, is how to organize the inquiry. In this

instance, the best approach is to follow the line of organization that

was used in connection with the Free Exercise Clause. The fi rst order

of business is to select the proper overarching intellectual framework,

which involves understanding what is at stake in the recurrent choice

between the strict separation of church and state, on the one hand, and

reasonable accommodations between church and state, on the other.

Once that relationship is developed, it is instructive to see how these

two views play out.

In this chapter, I examine the philosophical bases for the long-stand-

ing debate between two approaches to establishment: separation and

accommodation. Once those preliminaries are completed, I shall look

at the different types of government actions to which they could apply.

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The Establishment Clause 483

Accordingly, I shall fi rst examine direct forms of regulation that have

been challenged as Establishment Clause violations. Next, I shall look

at the various government tax and subsidy programs that have been

challenged on the same grounds. Lastly, I shall analyze the Establish-

ment Clause challenges to various uses of public or common property.

In this instance, it is best to start with the standard public forums such

as streets and parks and then move to limited public forums such as

schools and government bases. The margin for error in these cases

is often much smaller than it is in such areas as freedom of speech

because of the profound tension between the Free Exercise and the

Establishment Clauses, both of which exert strong pressures, albeit in

opposite directions.

Separation versus Accommodation

The initial inquiry asks whether Establishment Clause cases should be

viewed through the lens of separation or the lens of accommodation.

In their ideal formulations, separation means that religious and secu-

lar institutions should have nothing to do with each other, a position

that, taken literally, no one defends. Accommodation takes the view

that cooperation between religious and nonreligious institutions can be

sources of mutual gain. One simple example is the separationist demand

to keep all religious symbols off of public property, while accommoda-

tionists want to allow all to enter on roughly even terms.

It is easy for people to run the two together in ways that make this

debate appear unduly abstract or conceptual. In Zorach v. Clauson,6 Jus-

tice William O. Douglas upheld a New York law that allowed students to

have released time from regular classes to receive religious instruction

on off-school premises. In so doing, he distinguished the earlier case

of McCollum v. Board of Education,7 which had found an establishment

of religion when the state used its power to permit students to attend

classes taught by parochial school instructors on public school premises

during the school day. In his view, “we cannot expand [McCollum] to

cover the present released time program unless separation of Church

and State means that public institutions can make no adjustments of

their schedules to accommodate the religious needs of the people.”8 But

Justice Douglas never explained how the two strands, separation and

accommodation, work together.

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484 Individual Rights: Religion

Just how do they mesh? On this issue, the correct analysis begins

in what today is regarded as an improbable location—at the points of

overlap and confl ict between a libertarian theory that treats individ-

ual autonomy as the ultimate good and a classical liberal theory that

also starts with a baseline of individual autonomy, but allows devia-

tions from that baseline to the extent that they work to the universal

advantage of all players subject to a common legal regime. To make that

analogy relevant, it is necessary to decompose both church and state

into the individuals who are situated on either or both sides of the line.

The approach is parallel to one that examines partnerships and corpora-

tions to evaluate the consequences of legal rules by looking not at these

entities as such, but at their fl esh and blood members. It then becomes

painfully obvious that all members of any given church are members of

the larger society. But at the same time, not all members of society are

members of a particular church, just as the members of one church are

surely not members of a second.

This imperfect overlap of benefi ts and burdens generates a wide

range of confl icts of interest among these various constituent groups,

with serious implications for analyzing both legislative enactments and

their executive implementation. Thus, a measure that improves the wel-

fare of all church members could easily result in losses to all citizens

who were not church members. That imbalance could occur whether

the gains to church members were, in the aggregate, larger or smaller

than the losses to the common citizens. Similarly, other measures could

benefi t the members of one church at the expense of another, with little

consequence on individuals who are not members of either. Think of

a shift of a government contract from Church A to Church B. Or con-

sider that the ratio of benefi ts and burdens could change, with religious

groups coming out the losers compared to nonreligious individuals.

This array of possibilities restates the simple point that both leg-

islative and executive action often lead to all sorts of wealth trans-

fers between groups: some explicit, but more implicit. The difference

between explicit and implicit is important because the former are easier

to identify and to eliminate. But, by the same token, a doctrine that

looks only to explicit forms of transfer is systematically underinclusive.

That is the case with rules that ignore disparate impact, often intention-

ally, in connection with the dormant Commerce Clause doctrine, the

Takings Clause, and the Free Exercise Clause. It is also the case here.

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The Establishment Clause 485

Sniffi ng out implicit transfers of wealth or opportunities may avoid the

underinclusion question, but only at the cost of reducing the reliability

of the overall system. This, in turn, could lead to sweeping condemna-

tion of practices that should be regarded as proper. The expansion of the

doctrine to cover these cases must, therefore, be precise enough to avoid

introducing new levels of error. And it must unearth implicit transfers

that are worth correcting.

I believe that it is worthwhile to make that effort in virtually all

areas of constitutional endeavor. Those transfers that generate negative

sum games should not be allowed in principle, because the gains to the

winning faction are smaller than the losses its political prowess infl icts

on others. In contrast, positive sum games should be encouraged, taking

care to distinguish between two types. First, in some cases the winners

receive enough in benefi ts that they could, in principle (in ways that

track the Kaldor-Hicks standard of social welfare), compensate the los-

ers and still be left better off than before. Yet for logistical reasons that

often involve the number of parties, that payment of compensation does

not take place. Alternatively, these good measures could generate strong

social improvements (in ways that track the standard Pareto measures of

social utility), which produce benefi ts to all concerned so that the com-

pensation, be it in cash or in kind, makes all parties better off.

In outlining these possibilities, I have stressed both the transfers

that take place from one church to another and the transfers that take

place between churches as a group and nonreligious individuals or orga-

nizations. This view is at odds with a minority position that sees the

Establishment Clause as limiting preferences between churches, but

having nothing to say about the preferences that churches as a group

receive relative to nonchurch groups. Thus, Professor Robert Cord notes

that Madison thought it appropriate to set aside a day to allow people to

offer praise to “their Heavenly benefactor.”9 Madison was also part of a

congressional committee in favor of setting up the chaplaincy system in

the United States Senate,10 rightly upheld in Marsh v. Chambers,11 which

noted that the program was put into place at the very time that the First

Amendment was adopted.12 And Joseph Story gave the Establishment

Clause a narrow reading by claiming that the purpose of the clause was

to protect against “all rivalry among Christian sects.”13 That view would

leave all non-Christian religions out in the cold, with no textual war-

rant for the exclusion. Elsewhere, Story wrote more broadly that the

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486 Individual Rights: Religion

Free Exercise Clause was not offended “by aiding with equal attention

the votaries of every sect to perform their own religious duties, or by

establishing funds for the support of ministers, for public charities, for

the endowment of churches, or for the sepulture of the dead.”14 He did

not, however, write in a context where the claims of nonbelievers were

at issue, so he did not have to address any broader claim of the reach of

the Establishment Clause.

As an overarching issue, the narrow view of the Establishment

Clause is vulnerable to attack for two reasons. First, as a textual matter,

the word “church” does not appear in the First Amendment. What is at

stake is a law “respecting an establishment of religion,”15 which looks

textually as if it rejects both the favoritism of one religion over another

and the favoritism of all religious institutions over their nonreligious

rivals. The word “respecting” suggests no need to establish any church

or engage in religious practice proper to trigger potential application of

the Establishment Clause. The word “an” is an effort to protect all per-

mutations and possibilities. The drafting looks as though it treats the

explicit subsidy of a religion as the core wrong, only to guard thereaf-

ter against its circumvention by measures that give differential benefi ts

to religion, without endowing them with formal titles or special char-

ters. The analogy to the Takings Clause is the destruction of property to

which the government does not take title.

Second, as a functional matter, the broader coverage is critical

because the political process risks of illicit transfers are present with equal

force in dealing with either direct regulation or hidden subsidy. It may

well be that particular measures fall into a class of “justifi ed establish-

ments,” as it were. But it seems hard to infer that these precedents would

justify massive transfers from the congressional coffers to all religions,

much less only to Christian religions. The effort to stabilize relationships

among religious factions is in line with Madison’s concern with political

factions. But this only addresses one line of cleavage. The larger problem

is all variations on the theme, to which the limited reach of the Establish-

ment Clause cannot apply. Whatever the real doubts on original position,

the prescriptive constitutional interpretation has taken hold. Thus, the

narrower reading is not likely to resurface after decades in which the

broader defi nition has reshaped our law. That variation on original inten-

tion, if it were, is fully justifi ed because it gives ample voice to the theory

of limited government that animates the entire Bill of Rights.

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The Establishment Clause 487

The Libertarian versus the Classical Liberal

Once that broad range of the Establishment Clause is accepted, it is pos-

sible to state the tension between the libertarian and classical liberal

positions with greater clarity, both generally and as it applies to religious

activities. The strong libertarian sees the many virtues of a separationist

position, but remains deeply suspicious of allowing any further legisla-

tive or executive matter that might pass for social improvement. That

concern stems from two related philosophical commitments. The fi rst is

analytical: many libertarians of the Kantian persuasion reject any formal

analytical apparatus that invokes a notion of positive and negative sum

games. They think that any effort to introduce consequentialism into

the analysis of social problems detracts from the strong, indeed bedrock,

moral sense of right and wrong, which alone can guide these inquiries.

The second, softer version of this position is that, whatever the the-

oretical virtues of that expanded inquiry, any effort to enter some ver-

sion of a cost/benefi t universe is so fraught with error and confusion that

the game is not worth the candle. The supposed social improvements

will turn out to be illusory, and the inevitable valuation diffi culties and

administrative tangles will make a bad situation worse. Therefore, even

if the theoretical case can be made out, it is best to avoid the siren call of

marching down that road.

This debate ranges over all areas of law. A strong libertarian, for

example, is deeply suspicious of using the constitutional takings power

to condemn real property for government use. “Purchase what you

want in the voluntary market!” is his response. Similarly, the stout lib-

ertarian is more suspicious of a wide range of regulations, e.g., zoning,

that transfer wealth from A to B.16 As a basic theoretical matter, this

position is untenable because it does not attach any systematic weight to

powerful holdout positions that have routinely led to forced exchanges

in such key areas as private necessity (e.g., I may dock my boat at your

pier without your consent in times of necessity) and the standard com-

mon law doctrine that denies to any common carrier the right to refuse

to deal with ordinary customers without cause—a doctrine that has

immense application to government control over a wide variety of legal

commons. That disregard of the holdout issue is, moreover, not tenable

as a constitutional position, given that the Takings Clause authorizes

takings, at least for public use, upon payment of just compensation. In

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488 Individual Rights: Religion

my view, however, that constitutional position can be made to work in

practice precisely because it is possible to develop rules of valuation for

all sorts of settings that undermine the indeterminacy argument raised

against a wide array of taxes and regulations.

Indeed, just that view carries over to the Religion Clauses, but with

limited focus. The current two-tier system of American constitutional

law has essentially given up the ghost of trying to fi ght any generalized

redistribution from any well-defi ned person of group A to any well-de-

fi ned person of group B through state coercion. Doctrinally, that conclu-

sion is buttressed by a minimum rational basis standard that permits any

weak justifi cation to carry the day. To the extent that decisions over the

Religion Clauses retreat to “rational basis” analysis, there are, in effect,

no functional restraints on what a legislature or administrative agency

can do to transfer income or wealth to and from religious groups as a

class. But note that there is no explicit just compensation component in

either of the Religion Clauses; nonetheless, their explicit, deeper, and

narrower commitment to free exercise and against establishment is not

so easily bypassed or whittled away. It becomes critical to look at these

matters more closely.

Within this context, the current appeal of the strong autonomy

position under the Establishment Clause fi nds voice in the separationist

tradition. In particular, there is Jefferson’s “wall of separation” between

church and state, which he put thusly:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.17

It should quickly be apparent that even if the powers of government

reach “actions only, not opinions,” religious behavior necessarily covers

both actions and opinions, so that the boundary line between the two

spheres of authority is a good deal more diffi cult to draw than Jeffer-

son’s cryptic account suggests. It is instructive to take the “wall” analogy

seriously. The success of the operation lies in the sphere of autonomous

control that church and state alike exert over their jurisdictions. At this

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The Establishment Clause 489

point, the analysis is surely more complex because even if state is accu-

rately in the singular (i.e., without considering federalism), church must

be plural in an age that accepts established churches that are, of course,

never exclusive. But, oddly enough, the strict rule of separation gener-

alizes to multiple churches, none of which, alone or in combination, can

turn to the state for some special advantage, either unique or collective.

Likewise, on the other side, those who are hostile to religion cannot

turn to the state in order to impose special limitations on religion. This

strong view helps to illuminate both the free exercise and the establish-

ment pieces of the puzzle. The fi rst keeps the state at bay. The second

keeps churches at bay. The simplicity of the rule becomes a cardinal vir-

tue of the system: the lower the levels of discretion, the more likely it is

that the ideal division will be achieved.

However attractive this vision is as a fi rst step to the overall anal-

ysis, it does not tell the whole story. It is easy to point to cases where

the rules on individual autonomy work, as well as to cases where the

rules break down. Take the “wall” analogy, for example, in the context

of real property from which it derives. An owner’s development of his

real estate and his enforcement of contracts for the sale of property and

services are applications of the autonomy principle without which the

entire economy grinds to a halt. Yet at the same time, these rigid bound-

aries create in every known society a regime of live-and-let-live, such

that reciprocal, low-level interferences are tolerated precisely because

these accommodations work, in the long term, to the mutual advantage

of both sides.18 This is a case where the measurement and valuation

issues seem trivial relative to the observed gains. The rule works for two

parties, and it works well for n parties in complex real estate confi gu-

rations where the transaction costs of a sensible renegotiation become

ever greater.

Under the Religion Clauses, this generalized analysis of property

rights applies only to transfers across religious lines, either between

churches or between all churches and all nonchurch institutions in what-

ever form or confi guration appears to make sense. Once implicit wealth

transfers across religious lines become the proper target of the Establish-

ment Clause, all the elements of the puzzle fi t into place without giving

undue weight to any one particular element. In some instances, the case

law takes the view that no public institution should coerce individuals

to engage in religious activities; in the eyes of others, coercion is not

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490 Individual Rights: Religion

suffi cient to capture the entire fi eld. The question of allocating govern-

ment subsidies from tax dollars to religious or nonreligious activities is

also in the mix. But government involvement need not be limited to

coercion and subsidy: a third strand stresses that the endorsement or

discouragement of religious activities in a wide number of places could

affect the ultimate distribution of benefi ts and burdens. This should alert

us to the opposite risk of complex legislative schemes that require reli-

gious individuals to subsidize their nonreligious brethren. In principle,

the correct result is that none of these elements alone is the trigger to

the analysis. What matters is how these operate in particular contexts,

either alone or in tandem, to work the transfer of wealth or personal

opportunities along the forbidden axes within or across religions.

The Lemon Test

Some effort to grasp the nettle is found in the highly criticized but oft-

quoted test that the United States Supreme Court announced in Lemon

v. Kurtzman,19 which invalidated both a Rhode Island and a Pennsylvania

statute that purported to give block grants equal to a fi xed percentage of

salary to reimburse nonpublic elementary and secondary schools for the

cost of “teachers’ salaries, textbooks, and instructional materials in spec-

ifi ed secular subjects.”20 At this point, the Court announced a three-part

test that has been honored as much in the breach as in the observance:

First, the statute must have a secular legislative purpose; second, its prin- cipal or primary effect must be one that neither advances nor inhibits religion; fi nally, the statute must not foster an “excessive government entanglement with religion.”21

For the moment, put aside the soundness of the particular decision

to see how the test might fi t into the debate between separationists and

accommodationists. The words “redistribution of wealth or opportunity

across religious lines” do not appear in this text, but the test nonethe-

less contains some hints of the many relevant factors. The need for a

secular purpose is defi cient insofar as it remains unclear whether that

purpose must be exclusive, dominant, primary, or just one of multiple

purposes. Yet for all that ambiguity, it remains likely that any legislation

lacking any secular legislative purpose is likely to skew matters heavily

toward religious groups in ways that are inconsistent with the anti-re-

distributive purpose of the Establishment Clause. Treat it, therefore, as

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The Establishment Clause 491

a piece of evidence rather than some invariable truth. Any examina-

tion of its “principal” or “primary” effect looks less at intention and

more at the skew. The reference here to “neither advances nor inhibits

religion” is once again suggestive of a concern to prevent redistribu-

tions of wealth or opportunities in either direction, so that there is an

establishment of sorts whenever nonreligious institutions are required,

expressly or implicitly, to subsidize religious ones, or the reverse. And

the last requirement about excessive entanglement is best understood

as an effort to keep some degree of separation of church from state in

order to reduce the odds of any unintended redistribution. If, however,

the ultimate test that remains is redistribution, then this formula surely

fails to capture all the elements, even if it is suggestive of some. In addi-

tion, it tends to lead to highly particularized inquiries that make the law

unworkable in practice, thereby encouraging an artifi cial segregation of

parochial school activities into permitted and prohibited categories. It

is no wonder that the Lemon test is extolled in one case and ignored in

the next.22

To get this analysis correct, however, no shortcuts will do. It is

necessary to do what in management circles is called an (intellectual)

360-degree review, which is intended to evaluate the program as a

whole to see its overall effects. When the dust settles, relatively simple

rules calling for block grants, tax deductions, or vouchers dominate the

vagaries of the Lemon test. In order to handle the matter, the next chap-

ter looks at two sides of the establishment problem: direct regulation of

religion and government subsidies. Chapter 32 then looks at the appli-

cation of the Establishment Clause in connection with the commons.

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Regulation and Subsidy under the Establishment Clause

IN VIRTUALLY ALL AREAS of law, the Constitution has to deal with the twin questions of takings and givings. The fi rst of these topics includes direct government regulation of private activities, and the second covers

the use of government grants, subsidies, or licenses that either allow or

promote those activities on which the government chooses to shower its

largess. The direct regulation of religious activities covers a wide range of

possible situations, of which perhaps the most instructive are the Sun-

day Closing or Sunday Blue Laws.

Direct Regulation

The initial foray in the regulatory arena was the 1961 decision of the

Supreme Court in McGowan v. Maryland,1 which upheld a criminal con-

viction of a department store for sales of various articles in violation of

the Maryland Sunday Closing Laws. Those laws forbade the sale of many

(but not all) articles of commerce on Sunday, or the Sabbath Day. On

the same day, in Braunfi eld v. Brown,2 the Court also rejected a free exer-

cise challenge to Pennsylvania’s Sunday Closing Law in a case brought

by Orthodox Jewish merchants. In principle, either plaintiff could have

brought the other case, but, without question, the claim made by the

Jewish merchants had more potency than that made by the all-purpose

department store. The Jewish merchants claimed their religious beliefs

required they close on Saturday, to keep the Jewish Sabbath, while rival

merchants prepared to stay open on Saturday had to close only one

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Regulation and Subsidy under the Establishment Clause 493

day, and not two. The mainline merchants in McGowan wished to stay

open on all seven days, but suffered from no added burden from the law

because of any religious beliefs.

As a matter of general theory, a free exercise claim raises the ques-

tion of whether a special exemption should be given to a law of general

applicability. In McGowan, with a Christian twist, the law in question

forbade persons to “profane the Lord’s day” by engaging in “Sabbath

Breaking”3 and scheduled its exemptions in the statute in the afternoon

and late evening when Christian services were not in session. The hodge-

podge provisions of the Maryland law thus sought to create a universal

day of rest for all persons, including those who had already rested on a

Sabbath day of their own choosing. As a commercial actor, McGowan

was in no position to raise the free exercise claim, but could raise the

Establishment Clause claim. Yet even the latter was more forcefully pre-

sented by the Jewish merchants who suffered a distinctive harm by hav-

ing to remain closed for two days instead of one. Indeed, in principle,

it is possible to craft a ruling that restores the interreligious balance by

allowing any religious individuals to close on either Saturday or Sunday

as they see fi t, thereby losing some perceived benefi t of social solidar-

ity by having all businesses closed on the same day. Taken as a whole,

the Sunday Closing Laws indisputably manifest an effort by believers to

impose their views on members of other faiths as well as nonbelievers.

To be sure, nothing in either statute requires Jews or nonbelievers to

practice the Christian faith. Much in the statutes, however, prevents

them from exercising their own personal beliefs without imposing like

burdens on statutory benefi ciaries. The statutes, therefore, operate dif-

ferently from a scheme that requires all businesses to close every Tues-

day for a day of rest, or even one that prohibits all persons from working

more than six days per week. In both those cases the generalized prohi-

bition, much like maximum hour laws, might well be attacked under a

more robust doctrine of freedom of contract. But neither proposed stat-

ute would generate the differential impact along religious lines in ways

that trigger both free exercise and establishment challenges. In McGowan

and Braunfi eld, the identifi cation of the Sabbath as an essential portion

of the program brings the cases within the ambit of both the Free Exer-

cise Clause and the Establishment Clause.

At this point, the analysis turns to the state justifi cation for the Sun-

day Closing Laws, recognizing that no proposal could come close to the

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494 Individual Rights: Religion

kinds properly regarded as acceptable under a classical liberal theory.

The Court in both McGowan and Braunfi eld identifi ed the appropriate

state interest as the need to have a

uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular signifi cance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because cen- turies ago such laws had their genesis in religion would give a constitu- tional interpretation of hostility to the public welfare rather than one of mere separation of church and State.4

But why give this collectivist justifi cation the slightest weight at all?

Clearly these statutes are not designed to control force or fraud. The

cases involve a hopelessly wide defi nition of a negative externality. The

statutes here have nothing to do with the law of nuisance. Instead, they

presuppose that, in Maryland or Pennsylvania, people on one side of

town are unable to rest when they choose because people on the other

side of town have chosen to shop. The statutes, of course, do not pre-

vent people from doing heavy work around the house, even if they

cannot engage in commercial activity. In essence, the Court conjures up

an indefensibly broad defi nition of a negative externality that levers an

enormous wealth transfer to Christians who keep the Sunday Sabbath

from everyone else. The obvious and intended disparate impact of the

legislation needs no comment. It was well known and understood by all

parties in question. Because the legislation does not force individuals to

pray on a day that is set aside for rest, one element of indefensible coer-

cion is removed from the equation, but nothing eliminates the implicit

cross-subsidy from Orthodox Jewish merchants to their competitive

rivals. The Free Exercise and Establishment Clauses should work in tan-

dem to invalidate the statute.

Ironically, the repeal of the Sunday Closing Laws has given rise to

a strict reading of the Establishment Clause. The Estate of Thornton arose

under a Connecticut provision, which, after the liberalization of that

state’s Sunday Closing Law, provided that no employer could dismiss a

worker who refused to work on his or her Sabbath Day.5 The law func-

tioned alongside the Civil Rights Act of 1964, which forbids employ-

ment discrimination on grounds of religion (including dismissal over

religious beliefs for which reasonable accommodations may be made).

The problem arose because the repeal of the Sunday Closing Law now

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Regulation and Subsidy under the Establishment Clause 495

exposed Sabbatarians to the risk of being forced to choose between their

jobs and their religious beliefs. At this point, the balance of interests

is much closer than it was in McGowan, which resulted in huge sys-

tem-wide wealth transfers among groups. Nonetheless, in an opinion

mentioning neither McGowan nor Braunfi eld, the Court held, probably

correctly, that the statute offended the Establishment Clause. Chief Jus-

tice Warren Burger observed that the law “arms Sabbath observers with

an absolute and unqualifi ed right not to work on whatever day they

designate as their Sabbath” and “thus commands that Sabbath religious

concerns automatically control over all secular interests at the work-

place,” including those of the employer and co-employees.6 In a classical

liberal regime of freedom of contract, that result is surely correct. It is for

the parties to decide on a decentralized basis how to trade off religious

beliefs with economic success, so long as the state has nothing to do with

it. But the case is at least a bit closer than Chief Justice Burger suggests

given that the Civil Rights Act has truncated the freedom of contract by

making religion a forbidden ground of dismissal, at least in those cases

where reasonable accommodations are possible. At this point, the Civil

Rights Law has compromised the employer interest that Connecticut

invoked in Estate of Thornton. Once that interest has been limited, it is at

most only a second-best judgment as to whether Connecticut’s putting

its statutory thumb on the employee’s scale should be regarded as an

unacceptable preference. Second-best choices are always diffi cult, but it

is doubtful that this type of statute would ever be passed in a state that

did not have a Sunday Closing Law to begin with; thus, the decision in

Estate of Thornton is barely correct. The larger lesson, of course, is that the

application of the Establishment Clause is always more tricky in a highly

regulated environment than it is in a market-driven one.

Subsidies

Theoretical Complications

The operation of subsidies is always more diffi cult to deal with than

direct regulation. Subsidies can come in all sizes and forms, making it

diffi cult to fi gure out their incidence and effect. Imagine that a town

decides to repair a public road on which a church is located along with

other business establishments. If the church is the largest landowner

along that stretch of road, does this count as a subsidy? What result if

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496 Individual Rights: Religion

the road is paid for out of general revenues charged to all residents in the

city? And what if church lobbying efforts were instrumental in securing

the repairs? Questions like these arise in a wide range of trade contexts,

dealing with such matters as whether the United States, in violation of

its international trade agreements, had provided a subsidy to Boeing

Aircraft by footing the cost of infrastructure, reimbursing research costs,

or providing research grants.7

Rather than start in a netherworld from which there is no escape,

it is easiest to begin with those cases that involve direct benefi ts to reli-

gious organizations. Such direct benefi ts could be either in the form of

direct payments or tax benefi ts, such as exemptions from real estate

taxation. As ever, the key element in this normative analysis is to deter-

mine from all available evidence whether there is an implicit transfer of

wealth, either between religious and nonreligious persons, or between

members of different religious groups. There is no shortcut to this anal-

ysis, for the existence of an implicit transfer depends both on the source

of the funds and on the identifi cation of the transferees. In dealing with

taxes outside the area of religion, the correct rule with special assess-

ments is to use a matching system of benefi ts to costs in the absence of

a precise dollar measurement of various in-kind benefi ts. By giving each

person the same fraction of the total benefi ts as cost, everyone, even if

acting solely out of self-interest, will vote only for those programs that

provide net social benefi ts.

In the context of religion, transfers across individuals on grounds

of wealth no longer matter, but this same matching principle applies

with transfers across religious and nonreligious groups alike. Thus, the

danger of an imbalance can result from an overtaxation, on the one

side, or a reduction of benefi ts on the other. The words “coercion” and

“endorsement” do not quite capture the full range of the inquiry. What

is needed is a serious effort at exposing the hidden transfers.

Public Aid to Religious Education

The fi rst modern case that raised the matter of government benefi ts was

Everson, which asked whether New Jersey could pay for the transpor-

tation of all schoolchildren to public and private schools alike, by reim-

bursing parents for their transportation expenses.8 In examining this

provision, Justice Hugo Black stressed that these children were entitled

to ordinary police and fi re protection, as well as the usual set of sewer

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Regulation and Subsidy under the Establishment Clause 497

connections for their schools.9 In one sense, these services illustrate the

reason why an ardent separationist position cannot prevail. There is no

possible separability for the state provision of public goods, which under

the standard economic defi nition must be supplied to all people when-

ever they are supplied to some. The state, which exercises a monop-

oly of force within the jurisdiction, cannot create a protective void by

refusing to extend those needed public services to religious persons and

institutions.

Oddly enough, however, the provision of these services is more dif-

fi cult to grasp than the reimbursement of transportation expenses. As

to the latter, we can make the safe assumption that the parents of both

religious and nonreligious schoolchildren contributed to the public trea-

suries in rough proportion to the money that they receive back from

the state for their transportation expenditures. The constant pressure

for public aid to parochial schools stems from the irrefutable fact that

tax dollars from parochial school parents support public school students.

Without the state’s aid, there is a heavy tax on the one side and the

receipt of a subsidy on the other. The parochial school supports should

be viewed with presumptive validity to the extent that they seek to

redress, but not to reverse, this initial fi nancial imbalance. Allowing the

state to pay for these transportation expenses for both classes of stu-

dents has that restorative feature. In dissenting from this arrangement,

Justice Jackson insisted that “[t]he prohibition against establishment of

religion cannot be circumvented by a subsidy, bonus or reimbursement

of expense to individuals for receiving religious instruction and indoctri-

nation.”10 He was right in his concern with circumvention, but wrong on

the particulars, given that without the reimbursement, the only wealth

transfer is a subsidy that moves from parochial school families to public

school ones, not the other way.

To turn to the other side of the equation, classic public goods like

police and fi re protection or sewer hookups are more diffi cult to ana-

lyze, because the extensive joint and common costs of providing classic

economic public goods are not uniquely allocable to any one person.

Nonetheless, that complication does not need to derail the Everson result.

At this point, the proper procedure is to ask whether the same group of

persons who pay the taxes are recipients of the nonexclusive state ben-

efi ts. This question can be answered in the affi rmative, because these

public services are routinely applied to churches and other religious

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498 Individual Rights: Religion

institutions. It is just too expensive and impractical to ask churches and

other charities to set up parallel networks when they have neither the

power of taxation nor eminent domain. So including the costs of paro-

chial school transportation is permitted, as long as the parents of reli-

gious school students are also taxpayers.

Not surprisingly, in the years since Everson, the Supreme Court has

vacillated in the types of benefi ts that the state can provide to students

in parochial schools. Lemon itself illustrates the problem.11 Recall that

in Lemon the Court invalidated Rhode Island and Pennsylvania stat-

utes that paid grants equal to a fi xed percentage of salary to reimburse

nonpublic elementary and secondary schools for “the cost of teachers’

salaries, textbooks, and instructional materials in specifi ed secular sub-

jects.”12 The obvious concern was with entanglement. But the solution,

which was to invalidate what are in essence block grants, gets the insti-

tutional analysis exactly backwards. If it is well understood that some

equalization is needed, the simplest way to provide it is on a matching

fund basis, without any attempt to tie any given expenditure to any

given outcome. That approach reduces the level of state administrative

oversight and increases local fl exibility in using the funds received. The

huge battle could then be over the size of the transfer payment, not the

terms and conditions that create such high levels of state intrusion and

lead to such odd decisions.

Once this simple principle is abandoned, the cases are sure to turn

out discordant. Thus, it has been held that states can lend books to paro-

chial students,13 but not maps, magazines, or tape recorders.14 Similarly,

notwithstanding Everson, the Supreme Court has held that the state can-

not reimburse parochial schools for the transportation expenses incurred

on fi eld trips, given that these are administered by the school district.15

The key element of distinction derives from the third, or entanglement,

factor of the Lemon test, which starts from the premise that excessive

parochial teacher involvement opens up the possibility of hijacking pub-

lic funds for religious purposes.

Block grants do much to remove government entanglement in the

operation of all schools, both secular and parochial. They also avoid all

the endless borderline cases that arise when public moneys allow, in line

with Everson’s parity principle, both public school and parochial school

teachers to offer additional instruction on such matters as remedial read-

ing in parochial school classrooms, including those shorn of all religious

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Regulation and Subsidy under the Establishment Clause 499

symbols.16 In School District of Grand Rapids and Aguilar, Justice William

Brennan thought that the school environment itself created powerful,

if subtle cues to students that could impermissibly promote religion

in a way inconsistent with the entanglement prong of the Lemon test.

These decisions represent a low point in general Establishment Clause

jurisprudence. The evidence of subtle coercion was based exclusively

on a priori grounds, without any documented instances of overt abuse

over the many years that both programs had been in effect. Yet many

non–Roman Catholic parents send their children to parochial schools,

and they do not show lasting scars from standing in silence while other

students recite their prayers. No one assumes that incurable student fra-

gility in examining students’ First Amendment rights of speech and the

press. Why, then, assume their vulnerability and naiveté in dealing with

the analogous First Amendment issue?

At a more general level, the Lemon test, with its preoccupation on

motive and entanglement, forces courts to micromanage too many rela-

tionships between church and state. With such a heavy level of scrutiny,

it becomes diffi cult to equalize the imbalance except at prohibitive cost,

loss of time, and social disruption—i.e., removing the students from

their religious classroom environment into alien and confusing settings

to avoid an Establishment Clause violation. In similar fashion, any sup-

posed constitutional insistence that cash go directly to students, and not

to schools, again forces the ineffi cient distribution of funds, without

addressing the fundamental cash transfers from religious students who

do not use the public school system to nonreligious students who do.

Direct payment to schools results in a vast administrative simplifi cation,

so long as the size of the check depends on the ability of the parochial

school to attract enrollees. The great vice comes from paying money

directly to schools independent of their performance.

In this environment, the real source of anxiety is not in the name of

the payee on the check, but in the risk of the cross-subsidy of religious

education by nonreligious parents, which could happen when parochial

schools attempt to do two tasks instead of just one. But it is both futile

and foolish to impose a constitutional safeguard that looks at each item-

ized expenditure separately to decide whether it meets constitutional

standards. If states do not use block grants, they alternatively could pre-

serve the requisite level of fl exibility by allowing parents a tax deduc-

tion for certain expenses arising from sending students to parochial

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500 Individual Rights: Religion

schools. In Mueller v. Allen,17 the four liberal dissenters (Marshall, Bren-

nan, Blackmun, and Stevens) rejected this approach by denouncing

these tax deductions as an illicit subsidy to religious institutions, without

taking into account the equalization issue. Justice Rehnquist had the

better argument in treating these payments (95 percent of which went

to parochial school students) as corrective measures against a preexist-

ing cross-subsidy in favor of public school parents. The large number

of parochial school children also leads to a large reduction in requisite

public school expenditures, further exacerbating the overtax on parents

who send their children to parochial schools while supporting, through

direct taxes, parents of public school children.

This same set of issues arose a generation later in Zelman v. Sim-

mons-Harris18 where, unlike in Mueller, vouchers (not tax deductions)

were provided for students to attend any private school of their own

choice. As with Mueller, 96 percent of the students (and 82 percent of

the schools) were parochial. The direct nature of the grant to the student

(which is then paid to the school) neutralizes the entanglement issue

and corrects the cross-subsidy that would otherwise exist in favor of

public school students. Programs of this sort are, of course, vastly supe-

rior to any system whereby the state pays parochial (or indeed any char-

ter) schools some lump sum regardless of their ability to attract students,

for any program that gives payments without regard to performance is

subject to all sorts of potential abuse. The combination of public fund-

ing—which removes expenditures from the public school system—and

private choice has benefi ts far beyond the elimination of cross-subsidies.

It also introduces a measure of competition into education, which is

otherwise dominated by a public school monopoly, run all too often for

the benefi t of unionized teachers rather than students. Indeed, the dif-

fi cult theoretical question with Zelman is not whether vouchers should

be allowed, but whether they should be required in order to offset the

powerful redistributive tendencies in favor of public school students

under the current regime. In principle, the answer is yes, and for good

reason: the introduction of competitive forces at an earlier date would

have helped stem the decline of public education, which exhibits all the

sluggish features of any state monopoly.

Overall, the bottom line seems clear, and it calls for an extensive

revision of the Lemon rule. The sound prescription covers block grants,

tax deductions, or vouchers to all private schools, parochial schools

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Regulation and Subsidy under the Establishment Clause 501

included. These techniques share the simplicity of a charitable deduction

and do a far better job of righting the balance between church and state

than any futile attempt to trace individual expenditures to some proper

source under the complex Lemon formula.

Tax Exemptions for Religious Institutions

The diffi culties with lump sum grants to private schools have their ana-

logue with tax exemptions that the federal and state governments con-

fer on religious institutions. In Walz v. Tax Commission of New York,19 the

issue came to a head when a local real estate owner challenged a New

York City practice of granting property tax exemptions to properties

solely used for religious purposes. The obvious criticism of this position

is that so long as these institutions receive public services, the fatal mis-

match between the properties taxed and the properties benefi ted creates

the illicit wealth transfer that runs afoul of the cross-subsidy test under

the Establishment Clause. The actual impact of the exemption is, how-

ever, impossible to determine without some knowledge of the religious

composition of the city’s taxpayers. If all city residents, without excep-

tion, belong to one church, the issue would be wholly academic. These

residents could pay for their church services either by direct taxes on

their own property or by increasing their dues to cover the direct levies

imposed on the church. The same dollars from the same people apply

to all expenses. That result holds with multiple churches, so long as the

proportion of city residents in each church tracks their proportion in the

general population. The pro rata distribution precludes wealth transfers

across groups.

Unfortunately, these restrictive assumptions hold in only a few

cases. Commonly, different ethnic and social groups have different

attachments to religious and nonreligious institutions, giving rise to mas-

sive cross-subsidies. The situation becomes still more muddied, because

the New York City code provision afforded the same exemption to all

sorts of other groups, including hospitals, playgrounds, libraries, and

medical associations—all of which had secular purposes. But drowning

religious subsidies in a sea of other transfer payments is a diversion from

the central question, for the creation of other legitimate cross-subsidies

does not negate the explicit subsidy that religious groups receive from

nonbelievers. In Walz, Chief Justice Burger ignored the entire literature

on the “tax expenditure” budget, the central thesis of which is that a

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502 Individual Rights: Religion

specialized form of tax relief is on par with a direct transfer payment in

its economic effect.20 Denying that proposition ignores the major risk

of the circumvention of basic constitutional protections. The distinction

between “mere passive state involvement” and “the affi rmative involve-

ment characteristic of outright governmental subsidy” is at best arid.21

The government that collects the taxes is the one that “actively” grants

the tax subsidy.

Yet beneath all the linguistic fog lie real concerns, including a

reversal of the subsidy’s direction. The usual real estate bill itemizes the

purposes for which the taxes are to be used, of which educational expen-

ditures are by far the largest. Why should churches be forced to support

their competitors by making expenditures from which they receive no

return benefi ts? A sounder approach, therefore, might be prepared to

split the difference: churches continue to pay for those services, such

as trash removal and police protection, that they receive on the same

basis as everyone else, but they are exempt from taxes that support their

rivals, and perhaps for those services from which they gain no benefi t at

all. The blithe attitude taken toward this topic in Walz prevents consid-

eration of these intermediate solutions, which could reduce the massive

dislocations that would surely arise by eliminating the exemption with-

out inserting any substitution. Right now, many other institutions with

charitable exemptions—such as large universities in small towns—often

pay voluntary fees in lieu of taxes to ease the municipal burden for their

direct services on such mundane matters as fi xing potholes and remov-

ing trash.22 Religious organizations could be asked to do the same. Much

of the reluctance to overturn the exemption rests on the reliance inter-

est that these institutions place on the old order insulating them from

any and all burdens. Taking a middle position that seeks to match the

benefi ts and burdens of any tax regime is consistent with classical liberal

theory. It should also make for a smoother transition towards a more

equitable division of the burdens of public services. An explicit analysis

trumps a set of verbal generalizations.

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The Commons

THE ESTABLISHMENT CLAUSE also presents major issues in connection with the proper utilization of the commons, that is, those places to which all have access but are allowed only limited use. Here, again, the

ultimate objective is to prevent skewed uses of these public spaces that

do not refl ect a user’s contribution to the creation and maintenance of

these spaces. The commons, of course, did not start with religious activ-

ities, but in connection with the manifold activities of everyday life. The

widespread presence of public beaches, buildings, squares, parks, and

athletic fi elds shows the futility of a hard-line separationist position that

seeks to exclude all religious persons from using these places. It is not

feasible (or correct) to prevent a church outing, including one sponsored

by the Boy Scouts, from having a picnic in Central Park. The simple

solution for the common facility is to allow religious persons access on

the same terms and conditions as everyone else. Accommodation is not

an option—it is an inevitability.

Theoretical Framework

Management becomes far more diffi cult with demands for dispropor-

tionate use of the commons of the sort that necessarily displace every-

one else; parades, as opposed to beach outings, are one such example.

Similar issues come with special demands to structures or exhibits that

hog more than their fair share of public lands. Should these public spaces

be available for religious displays, including everything from the Ten

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504 Individual Rights: Religion

Commandments, to a crèche, to a picture of the Reverend Martin Luther

King? Do these rules for open fi elds then apply to a public building with

a particular use, such as a courthouse or military base? The diversity of

common property, along with the inherent diffi culty in managing it,

counsels a level of caution before making constitutional judgments. As

anyone who lives as a joint-tenant or tenant-in-common with family,

friends, and roommates knows, these collective operations rarely admit

unique solutions, even if no issue of religious preference raises its head.

The lack of unique solutions should not force the law to adopt the per se

rule of the separationist model. But neither should it lead to a rule of total

judicial deference to whatever decisions a government body chooses to

make. The search for the middle ground is tenable, again by seeking to

prevent the redistribution of common resources between groups. The

key principle is to prevent mismatches between the resources that one

group commits to the common venture and the benefi ts (tangible and

symbolic) that the group derives from that venture.

To see how the inquiry can be narrowed, consider what should be

done when two religious groups seek to make use of the same public

square for a religious display, either temporary or permanent. Imme-

diately, we can eliminate two of the four possibilities. Neither religious

group may use the commons for its displays or activities to the exclusion

of the other; to allow such would be an unacceptable implicit wealth

transfer from religious group A to religious group B, or vice versa.

Accordingly, there are only two permissible permutations: one that

allows both groups to use the facility in some equal, shared way, while

the other is one that keeps both parties from using the public space—

leading to what Richard John Neuhaus condemned as the “naked pub-

lic square.”1 The question is how to choose between them. The same

principles can then apply on a pro rata basis when multiple groups seek

access to common resources.

In dealing with all these variations, two methods present themselves.

The fi rst method relies on naked intuition to decide which of these two

choices seems preferable. Invoking Lemon v. Kurtzman,2 a separationist

could easily desire a rule that keeps all explicit religious activities off

the public square in order to prevent any unwanted entanglement or

excessive administrative burden. Let private parties provide the space

for various services or displays as the owners of these various resources

choose. The alternative—the accommodationist position—claims that

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The Commons 505

the joint gains from higher utilization of public spaces, which are, of

course, supported in large measure by taxes paid by religious individu-

als, generates suffi cient gains across the board to justify incurring these

greater administrative costs.

Choosing between these two alternatives is not easy, if only because

many public sites—e.g., highway medians—should be kept off-limits to

religious activities for all sorts of logistical reasons. Other locations might

be suitable only for a narrow class of uses. But rather than generalize

from these cases, it is useful to address this problem by asking fi rst how

private institutions manage their private commons. A private commons

issue arises whenever the owner of private property creates a common

space for use by its customers or tenants. Stores, schools, and apartment

houses all create lobbies, hallways, and recreational areas, indoors and

outside, which are open equally to all persons invited to use the prem-

ises. These organizations face the question of what religious and secular

symbols to place in the building and around the grounds on a perma-

nent basis and, during the holiday season, what displays to erect and

which activities to permit. If two rival religious groups make requests

in this private setting, what rule is the conscientious proprietor likely to

follow in response to their expressed wishes?

There is no uniform answer to this wide set of interrelated ques-

tions. But there are pronounced tendencies. In most settings and most

of the time, the presumption is that the facility will be offered up to

both groups on something that approaches even terms. Whether that

elusive evenness is measured by the number of groups that use the facil-

ity, the size of their respective memberships, or the nature of their pro-

posed activities or displays varies across cases, and is usually a subject

of intense, often heated, negotiations. However, for the most desirable

locations, high utilization by all groups, with a healthy dose of compro-

mise, is generally the equilibrium position. Private schools have lobby

sings in which representatives from all religious groups participate.

Religious themes are part of the overall system. For balance, they sing

holiday songs without any religious signifi cance at all. There is a full

understanding that this decision does not rest on unanimous consent,

for some minority groups oppose all special uses. But in private settings,

rarely will minority groups hold a veto position, though they will almost

always be granted an exit position if they choose not to participate in all

or part of the activities. In some instances, the opposition becomes so

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506 Individual Rights: Religion

fi erce that some people would rather leave the organization than abide

by its decisions. But the same is true with respect to collective decisions

to stop the celebrations. Collective decisions in private settings always

produce losers. The same must be expected, only more so, in public

spaces, where the numbers of persons are greater and their tastes more

heterogeneous than the self-selected members of a school or a club.

With these preliminaries in mind, it is possible now to analyze cases in

order to determine whether, and if so when, the established decisions

go wrong.

Parks and Streets

The leading case on the use of parks and roads is Lynch v. Donnelly,3 which

presents the simple question of whether the city of Pawtucket, Rhode

Island, in conjunction with the local merchants, could erect a Christmas

display in a park owned by a nonprofi t organization in the middle of the

downtown area. The display contained a wide range of seasonal objects,

including Santa Claus, reindeer, candy-striped poles, a Christmas tree,

and a crèche portraying the birth of Christ.4 The modest cost of putting

up the display was borne by the city.5 A highly fractured Court allowed

the display of the crèche.6

Each of the opinions issued in Lynch is unsatisfactory in some way.

Writing for the Court, Chief Justice Burger mounted a two-pronged

attack. He fi rst insisted that it would be “ironic” to place undue weight

on the crèche “at the very time people are taking note of the season

with Christmas hymns and carols in public schools and other public

places.”7 Thereafter he sought to minimize the problem by noting that

the crèche was embedded in a larger display of other seasonal objects so

that it need not be regarded as religious, at least in this context.8 What

a peculiar form of social blindness to a depiction of one of the holiest

events in the Christian religion! The display may have had a modest sec-

ular purpose, but it also had a dominant religious one, which it seemed

to advance with explicit cooperation between the government and the

local merchants. Under Lemon, the crèche seemed to be a sure loser,

which explains why Chief Justice Burger downgraded its religious sig-

nifi cance. It was no wonder that he also embraced the part of Lemon that

turned the wall of separation into a “blurred, indistinct, and variable

barrier depending on all the circumstances of a particular relationship.”9

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The Commons 507

Justice O’Connor, for her part, did no better. In her view, entangle-

ment was not the only way for governments to run afoul of the Estab-

lishment Clause; either the endorsement or disparagement of religion

could do this as well. At this point, she reversed course by fi nding that

“Pawtucket did not intend to convey any message of endorsement of

Christianity or disapproval of non-Christian religions.”10 The last half

of the proposition is more likely to be correct than the former, but both

were contested by Justice Brennan’s dissent, which found that all ele-

ments of the Lemon test were satisfi ed.11 Yet by the same token, he surely

exaggerated the negative effect that this display would have on most

persons who used the public square. These same displays are common

in the lobbies of shopping centers and in store windows. No one makes

that big of a deal about these displays until they are litigated. Perhaps, as

Justice Brennan suggested, Pawtucket had endorsed the display because

it did nothing to “disclaim” it.12 But if so, this suggestion trivializes the

entire operation because next year a boilerplate disclaimer, satisfying

no one, could be displayed at the base of the crèche, which would have

about the same effect as government warnings about the dangers of

smoking that are placed on cigarette packages.

The simplest way to resolve this case is for the nonprofi t organiza-

tion not to use city funds to erect the crèche, at which point the con-

troversy would be resolved, though not necessarily for the thousands of

other crèches erected in public spaces. As to them, as usual, the villain of

the piece stems from the futile effort to force this case into the unworthy

clutches of the Lemon test. A better approach is to return to the funda-

mentals of the commons. The case takes on one posture if the city gives

the merchants a lock on the site for its Christmas display, considering

that no single group should ever have exclusive of use of the commons.

In this case, if some other group wished to come forward, the Christmas

display would have to yield ground, and the two groups should work

toward a common solution. At this point, the entanglement question

could be avoided by asking the city to determine the size of any particu-

lar exhibit, after which it could devise some allocation of available space

for the various entrants.

That solution is not unlike the decision the Court reached in City of

Cincinnati v. Discovery Network, Inc.,13 involving the allocation of newspaper

kiosks on public streets. The common thread is that the initial incumbent

does not have a perpetual right of renewal. When done correctly, the city

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508 Individual Rights: Religion

can then simply state that it is operating like a common carrier, which no

more commits itself to the viewpoints it expresses than it does when it

opens up a soapbox for political oratory in the public park. On this view,

if one group wants to put up a purely religious display, let it. And then let

someone else do the same for their religious or ethical cause. The Court,

however, veered away from this solution when it banned a freestanding

display of the crèche, but bent back in the proper direction by allowing

a Christmas tree to stand next to a menorah,14 leaving one to wonder

what it would do if a nativity scene was paired with a depiction of Moses

receiving the Ten Commandments at Mount Sinai. Some discretion has

to be given to governments in the management of common spaces. So

long as they do not use their power to shift the balance of power between

religious groups, they should be insulated from searching judicial review.

Hypersensitivity is never allowed to shut down raucous speech in public

places. Likewise, it should not be used to remove signs depicting the full

richness of our religious and social traditions from the public square.

That same theme surged to the forefront in the subsequent case of Van

Orden v. Perry,15 where the question was whether the placement in 1961

of a Ten Commandments monument, six feet high and three and one-

half feet wide, on the Texas State Capitol grounds constituted an estab-

lishment of religion. In line with the basic theory, the key question should

be whether the parties who sponsored that monument had monopoly

power with respect to these grounds. With seventeen monuments and

twenty-one historical markers,16 the safe answer to that question is no,

but the reasons given by the Court were elusive. A bare and fractured

Court was right to give short shrift to the Lemon test. The Court was also

right, on balance, to let the status quo remain in place on an implicit the-

ory of constitutional prescription. But by the same token, it was wrong

to rely on the unsatisfactory ground that this monument was “passive,”17

as if any of the other seventeen monuments could have been active. At

least, however, that was more persuasive than Justice O’Connor’s dis-

sent, which found this particular setting to be offensive even though the

inclusion of the Ten Commandments on a Supreme Court frieze is not.18

The tides of war changed in McCreary County v. ACLU,19 and for good

reason. In that instance, the Ten Commandments stood along with sev-

eral other documents inside two Kentucky courthouses where they

were treated as part of the “precedent legal code.”20 Here, the dissenters

in Van Orden became the majority, rehabilitating the Lemon test one more

time to fi nd that these displays violated the Establishment Clause. Their

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The Commons 509

decision was correct, but not on those grounds.21 The key point is that a

single state hand placed all the relevant documents, so that the diversity

of views that counters state monopoly power was conspicuously absent.

Citing the code as legal authority in courthouses across the state gave it

an authoritative position with a lot more pop than that for monuments

located in various parks. Surely no one could think that the two cases

had to come out the opposite way: that Texas should have lost and Ken-

tucky should have won. The area is obscure and its relevant distinctions

are not perfect, but the classical liberal concern with state monopoly

power shows that, in this instance, the line was drawn in the right place.

The law in this area next took a turn for the worse in Pleasant Grove

City, Utah v. Summum,22 in refusing to come to grips with the commons

problem at law. Pleasant City maintained a 2.5-acre public park, which

was home to about fi fteen public displays, eleven of which were donated

by private parties. Most of the monuments bore some thematic relation-

ship to city history including the historic granary, a wishing well, and

a fi re station. Another included the Ten Commandments. Summum,

a Utah religious organization, sought to add its own monument, “the

Seven Aphorisms of Summan,” to the collection, on a scale similar

to that of the Ten Commandments. At this point, the correct analysis

should ask why the city could exclude this monument so long as there

was space on the grounds, when it is diffi cult to fi nd a reason for exclu-

sion unless some alternative applicant came forward when space was

constrained. Thus, the city should be required to accept this monument

unless it could show cause as to why it should be excluded as inappro-

priate for the venue, which it never attempted to do.

Instead, Justice Alito, writing for a unanimous court, took a wrong

turn by insisting that the permanent monuments, unlike temporary dis-

plays, “represent government speech,”23 to which the First Amendment

rights of freedom of speech do not attach.24 That position does not seem

credible in connection with the Ten Commandments, which the gov-

ernment could not endorse on its own. Nor does it seem to represent

some immutable state of affairs, for, although the Washington Monu-

ment is “closely identifi ed” with the government,25 no one would make

that mistake with a private monument when its donor’s name is perma-

nently affi xed to the base of the display. If the government can distance

itself from temporary speakers on public property, it can do so with per-

manent speech by making a single, permanent disclaimer. Treating this

as a case of government speech thus short-circuits the question of how

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Pleasant Grove can be squared with Van Orden, where the decentralized

mode of ownership and display helps neutralize the risks of monopoly

power. Yet the issue is never faced in Justice Alito’s opinion and is men-

tioned only in passing in Justice Scalia’s brief concurring opinion.26

The lack of a forthright approach to the commons issue shows how

the important distinction between public commons and a government

building can matter in understanding the interaction between religious

symbols and government actions. What makes those issues so diffi cult

is that this nation has long survived ceremonial invocations such as “In

God we Trust” (when many of us do not) or “God Save this Honorable

Court” (even by those who think that it is beyond redemption). As Jus-

tice Douglas wrote in Zorach v. Clauson,27

Prayers in our legislative halls; the appeals to the Almighty in the mes- sages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; “so help me God” in our courtroom oaths—these and all other references to the Almighty that run through our laws, our pub- lic rituals, our ceremonies would be fl outing the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: “God save the United States and this Honorable Court.”28

Any aggressive application of the endorsement test would render

these expressions vulnerable, which is one reason why those like Justice

O’Connor, who relied on the test, are determined not to put real teeth

in it. These modest statements are such a part of the conventional social

background that they fl y beneath the constitutional radar. A second

argument, and one with greater purchase, is that they have been around

so long and have done so little demonstrable harm that it is not worth a

major public battle to remove them. Whatever the textual arguments, in

these contexts at least, the prescriptive constitution should prevail. The

costs of transition back to some unrealized past are simply too high. The

status quo is once again king.

Schools and Universities

Limited Public Fora

The discussion of ceremonial functions is just the tip of a larger iceberg,

because like all other portions of the First Amendment, the Establish-

ment Clause raises knotty questions in organizing the use of limited

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public fora—that is, locations that are open to all but over which the state

exerts a strong management function. As in speech cases, the operative

distinction is this: for those management and instructional activities that

are at the core of teaching functions, the doctrine of unconstitutional

conditions does not have much traction. The state is given a larger, but

by no means absolute level of discretion in these cases. But universities

and schools also operate as facilities managers whose role more closely

mirrors the control that the state has over public highways. These facil-

ities can be kept off-limits to nonstudents or opened to them as the

institution sees fi t. They cannot, however, limit the use of these facil-

ities or operations to nonreligious institutions and must, as in speech

cases, convert themselves into a common carrier whose duty is to treat

all entrants equally. Thus, in Widmar v. Vincent,29 the Court refused to

allow the University of Missouri at Kansas City to deny religious groups

access to its facilities after hours when these same facilities were open

to nonreligious groups. The state could not appeal to its interest in pro-

moting the greater separation of church and state, but had to accommo-

date both groups equally. Likewise, in Lamb’s Chapel v. Center Moriches

Union Free School District,30 the Court treated the Central Moriches school

district as a limited public forum that, once it opened its door to other

groups, could not refuse to let Lamb’s Chapel use its facilities after hours

to run a religiously oriented fi lm series that stressed the importance of

family values. Finally, in Rosenberger v. Rector and Visitors of the University

of Virginia,31 a majority of the Court concluded that the university had to

defray the printing costs to third-party contractors for a Christian maga-

zine, just as it did for all other campus publications. The issue here was

funding, not editorial content, which made the case resemble Everson v.

Board of Education,32 albeit at the university level. Once again, fees col-

lected from all students could not be denied to some solely because of

the viewpoints expressed.

School Prayer

The role of the Establishment Clause shifts in dealing with universities

and schools insofar as they have distinctive management functions that

to some extent must refl ect the preferences of the communities of which

they are a part. That difference becomes most apparent in connection

with Engel v. Vitale,33 in which Justice Black (who had written Everson)

struck down, on Establishment Clause grounds, an offi cial prayer in

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512 Individual Rights: Religion

New York schools. The prayer read, “Almighty God, we acknowledge

our dependence upon Thee, and we beg Thy blessings upon us, our par-

ents, our teachers and our country.”34 Striking the strong separationist

theme, he wrote:

[T]he constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose offi cial prayers for any group of the American people to recite as a part of a religious program carried on by government.35

To reinforce that notion, he referred back to the contentious dis-

putes in England over the Book of Common Prayer, which each religious

sect in turn sought to turn to its own advantage.36 But the differences

between the two cases are more instructive than the similarities. The

English Book of Common Prayer was a centralized command that all

had to obey. The bland New York prayer was recommended by the state,

but could be rejected or altered by individual districts,37 which intro-

duced a key element of decentralization into the process. In addition,

after West Virginia State Board of Education v. Barnette,38 opt-out rights for

individual students were fully respected. Justice Black had many sug-

gestions as to how prayer could be conducted before school hours, or in

separate rooms, to avoid constitutional challenges.39 But in this instance

these incomplete logistical proposals seem largely beside the point, for

the political checks, both then and now, look to be strong enough to

guard against serious abuse. Ironically, working through these manage-

ment proposals could be counterproductive if they further enmesh the

courts in the operation of local schools.

There are always differences between saying prayers in schools and

saying them in Congress, but it is never clear which way they cut. Chil-

dren may benefi t more from them, or their parents may be more zealous

in guarding them against evil. But whatever the distinctions, it seems

that some deference should be owed to the sentiments of the major-

ity on matters like these, for we are dealing not with state regulation

of private fi rms, but state management of public institutions. The lone

dissent of Justice Potter Stewart40 returned to the same set of everyday

occurrences that motivated Justice Douglas to strike a more accommo-

dationist note in Zorach.41 In the fi restorm of controversy that followed,

the School Prayer Amendment was introduced, fi rst in 1962 and then

on multiple occasions between 1973 and 1997. Its text reads:

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Constitutional Amendment—Declares that: (1) to secure the people’s right to acknowledge God according to the dictates of conscience, nei- ther the United States nor any State shall establish any offi cial religion, but the people’s right to pray and to recognize their religious beliefs, heritage, or traditions on public property, including schools, shall not be infringed; and (2) neither the United States nor any State shall require any person to join in prayer or other religious activity, prescribe school prayers, discriminate against religion, or deny equal access to a benefi t on account of religion.42

Whether this effort to balance competing interests would allow

teachers to lead students in prayer is ironically not decided by the School

Prayer Amendment, which leaves open the critical question of whether

the “people’s right” to engage in prayer allows the state to orchestrate

the service—a most unwise idea if it goes beyond the well-defi ned insti-

tutional arrangements in place in Engel.

Whatever the ultimate merits of this untested amendment, the

decisions after Engel reveal how closely contested these cases are on the

merits. Thus, the level of state control was raised a notch in Abington

School District v. Schempp,43 where the law required that certain passages

from the “Holy Bible” be read aloud each day in school, along with

the Lord’s Prayer—both without comment.44 That practice was rightly

struck down since it lacks the broad base of support that was present in

Engel. It is not clear whether it would survive under the now dormant

School Prayer Amendment, given that it injects school personnel in the

performance of religious tasks. Subsequently, the Supreme Court ven-

tured onto thinner ice in Wallace v. Jaffree,45 when the Court refused to

allow schools to set aside one minute at the start of each day for silent

refl ection and prayer—a practice that has no explicit link to any religion

and is congenial with a wide range of ethical beliefs. Christian groups

that were still stewing over their defeat in Engel46 supported the moment

of silence. The key point in Jaffree was that prayer was controlled from

below and not above. It seems consistent with the most sensible aspects

of the School Prayer Amendment.47 In striking down this law, Justice

Stevens overemphasized the motivation behind the statute, at least in

the absence of any evidence that teachers systematically urged students

to use this occasion for school prayer.48 Ordinary instruction in both

public and private schools offers so many open avenues for the infusion

of religious content that it seems unwise to block this one while permit-

ting others to go unattended.

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514 Individual Rights: Religion

The real dangers of this aggressive brand of judicial oversight are

most manifest in Lee v. Weisman,49 which again shows the authoritar-

ian overlay in an aggressive reading of the Establishment Clause. By

long-established and inclusive custom, middle schools in Providence,

Rhode Island, asked a rotation of religious leaders of different faiths to

give nondenominational prayers at graduation ceremonies, which refer

to God as a free spirit but not as the representative of any religion.50

Rotation in offi ce (not feasible for permanent religious displays) is a sen-

sible way to attack this problem when it is impossible, as with crèche

displays, to accommodate all parties in the same space at the same time.

When faced with these generalized prayers, not many people choose to

leave the premises or sit in silent protest. There seems little doubt that

to avoid this litigation, the school board would have been quite happy

to let Deborah Weisman refuse to stand during the ceremony or to leave

the premises, both of which (as accommodations do) leave her in a less

than ideal position.

Any comprehensive analysis, however, has to look at both sides of

the coin, including the accumulated preferences of all the other parents

and children who were pleased with an arrangement that seems to have

worked well for years. In one sense, Lee could be viewed as a less dra-

matic rerun of the fl ag-salute cases such as Barnette,51 where, of course,

the stakes were far higher. But the Establishment Clause claim is both

far stronger and far more problematic than the Free Exercise Clause.

In Barnette, the Court rightly secured the opt-out rights of one person

under the banner of free exercise.52 In Lee it unwisely accepted the far

stronger establishment claim that once a single person objects, everyone

has to follow her command—even on ceremonial occasions that seem

clearly distinguishable from the daily prayers at issue in cases like Engel,

Schempp, and Wallace. All the efforts to develop compromises, to create

sensible rotations, and to follow speech guidelines count for nothing,

even when public schools imitate principles that are commonly and

uneventfully applied in private school settings. At this point, the law

moves far beyond the limited public forum issues in cases like Widmar,

Lamb’s Chapel, and Rosenberger.

It does not do, as Justice Kennedy wrote for the majority in Lee,

to hold that special protection is needed for individual members of

minority groups because attendance at public school is compulsory and

attendance at graduation highly desired.53 That same “psychological”

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coercion is present for the majority of the school populations whose

wishes are systematically ignored so that a single outlier can determine

the overall policy. Lee is a poignant reminder of the dangers of using a

strict separationist policy for public institutions when all private institu-

tions show a greater measure of fl exibility.

Another troublesome implication of Lee is that it sets up a credible

challenge against the use of the words “under God” in the Pledge of

Allegiance, at least to the extent they are used in school contexts. The

Court averted that challenge in Elk Grove Unifi ed School District. v. New-

dow,54 where the Supreme Court, on narrow standing grounds, vacated

the decision of the Court of Appeals for the Ninth Circuit, which had

held that the inclusion of the words “under God,” added to the pledge in

1954, was inconsistent with the Establishment Clause.55 At the Supreme

Court, the case was sidetracked on the correct ground that Mr. New-

dow did not have standing to raise this issue since the child’s mother

had exclusive custodial rights over the daughter via a decree entered in

California.56 As someone who wrote (with Neal Katyal, a former acting

solicitor general) a brief urging just that position,57 I believe that the

procedural disposition prevented a major culture war.

Under current law, using the words “under God” in an offi cial pro-

nouncement could well violate the Establishment Clause. If the issue

had been raised in 1954, perhaps it would have been worth fi ghting,

for the great danger in this initiative is in turning over the control of

national symbols to a small minority of the population. Thus, the Estab-

lishment Clause claim differs fundamentally from the free exercise

claim that was accepted in Barnette, which allowed Jehovah’s Witnesses

not to recite the Pledge against their conscience. But with the Establish-

ment Clause claim, a single dissident parent, as in Lee, shuts down the

operation for everyone else, which creates much more serious issues.

The state has, after all, essential management functions in the opera-

tion of public schools, which should surely be responsive to the collec-

tive wishes of the students who attend these schools and the parents

who pay for them. Just how far one goes is always an issue. In support

of his own case, Newdow went so far as to insist that the words “under

God” were little different from the words “under Jesus.”58 His implicit

subtext was that if using the word “Jesus” violates the Establishment

Clause, then so do the words “under God,” with their theistic bent.

But small differences again matter, just as they do between Engel and

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516 Individual Rights: Religion

Schempp. The looser term “God” covers a wider social consensus, with

a more apparent compromise; conversely, the term “Jesus” indicates

the control of a dominant religious faction that belies the claim of an

“indivisible” nation.59 The line is again far from perfect. But whatever

doubts may have existed in 1954, too much water has passed over the

dam and the words should remain part of the Pledge under our pre-

scriptive constitution. It is preferable that Newdow be removed without

an opinion that, in upholding the Pledge of Allegiance, could go too far.

The issue has remained inert now for nearly ten years. May it continue

to rest in obscurity.

Curricular Decisions

The shift from ceremonial to curricular issues raises still more diffi cult

questions. It is at this point that it seems virtually impossible to present

a “neutral” educational curriculum in virtually any substantive area that

does not divide people along religious lines. The only systematic way to

avoid this problem is to get rid of public education in its entirety—noting

it was not a common practice at the Founding—so that private organi-

zations (including those funded by vouchers) could decide on the cur-

riculum they choose for the students who attend. The inevitable specter

of state coercion is diffused by the decentralization of educational deci-

sions, which is in line with the classical liberal condemnation of govern-

ment monopoly in the realm of ideas, as well as in the markets for goods

and services. With voluntary sorting not being possible, deliberation is

the fallback position, where cooler heads will not always prevail.

At this point, it is imperative to ask how to treat government com-

mands to follow certain educational practices. Contrary to the prevail-

ing practices, these are situations in which the decisions of local school

boards should receive far greater deference than those of states them-

selves. The state yields centralized commands. Local governments create

diversity and competition, which increase the likelihood that disgruntled

parents who dislike some decisions can vote with their feet by moving to

some other school district.60 In the absence of some strong substantive

theory of what the right answer is in particular cases, the correct judicial

response is, in general, to “defer” to the decisions of political branches

on matters of curriculum.

The few cases that deal with this matter usually address the question

of evolution, where the oversimplifi ed proposition that man descends

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from apes is in mortal confl ict with biblical views on the creation of the

earth and the origin of man. Substantively, the achievements of Dar-

winian theories of evolution stand as one of the great monuments to

human intelligence, to which theories of creationism offer only feeble

responses. Therefore, it seems almost too easy to conclude that any state

that uses legislation to ban the teaching of evolution for religious reasons

no longer deserves the deference accorded to curricula and, accordingly,

that the ban should be struck down, as it was in Epperson v. Arkansas.61

The case was only marginally closer when, in Edwards v. Aguillard,62

Louisiana decided that any school teaching evolution had to also teach

creationism; it then made its preferences clear by requiring schools to

create curriculum guides for creationism, but not evolution.63 Justice

Scalia sought to defend this statute in the name of academic freedom,64

which is odd because no individual teacher could opt out of the general

state command.65 He also treats the question of the validity of evolu-

tionary theory as more contested than it actually is.66 The decision to

override this legislative preference does not, of course, prevent private

schools from teaching creationism and excluding evolution. But market

forces operate quietly, but effectively, when these opinions are shown to

have no validity or infl uence in the wider world outside religious circles.

Over a wide range of issues, the Supreme Court has not maintained a

consistent path in Establishment Clause cases, chiefl y because liberals

and conservatives cannot agree on the fundamentals. For the most part,

on this question, the conservatives show more classical liberal tenden-

cies than the liberals, and thus have the better of the argument. But the

tortuous path of decisions leaves much to be desired. Improvements,

moreover, are only likely to come from courts that explicitly embrace

classical liberal theory. Amid all the complexity of the constitutional

doctrine, a resolution depends on an outlook developed elsewhere in

the law. The legal doctrine should encourage those accommodations

that work for mutual gain to all parties. By the same token it must be

always on the alert for implicit wealth transfers that warring factions

generate through either legislative or administrative action. It may seem

odd, but should also seem inevitable, that the key to unlocking the law

of religious freedom and state establishment ultimately depends on fash-

ioning legal rules to encourage positive sum games and to clamp down

on negative sum games. But that in fact is just how it is.

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S E C T I O N I V

EQUAL PROTECTION

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Race and the Fourteenth Amendment

BY NO STRETCH of the imagination does the Constitution of 1787 represent the last word on race, sex, and citizenship. This chapter traces the law of race through modern times, chiefl y through the lens of

the multiple layers of interpretation of the Fourteenth Amendment. The

law as it relates to both citizenship and sex will be discussed in that order

in the following two chapters.

The Early History: Privileges and Immunities

The treatment of race in the 1787 Constitution was, in any point of view,

both limited and decidedly negative. The Fugitive Slave Clause did not

use the word “slave,” but it did require all persons in free states to return

to their owners any person “held in Service or Labour” in another state.1

Next, the elaborate compromise around the Three-Fifths Clause settled

key issues of taxation and representation between free and slave states

by counting slaves as three-fi fths of a person for these purposes.2 Arti-

cle I, Section 9 made it impossible for states to stop “[t]he Migration or

Importation of such Persons as any of the States now existing shall think

proper to admit,”3 which meant that the international slave trade could

operate for twenty years, in a provision that was, for good measure, not

subject to amendment under Article V. The conscious limitation of fed-

eral power under the Commerce Clause was in part designed to make

sure that Congress could not tamper with slavery in those states where

it was allowed. And even the Privileges and Immunities Clause of Arti-

cle IV, Section 2 was intended in part to prevent discrimination against

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522 Individual Rights: Equal Protection

citizens of slave states by free states. The simple explanation is that, at

the time, the Constitution could not have secured consent without these

short-term compromises.

These provisions did not represent anything close to a moral con-

sensus on the question of slavery. The intellectual attack on slavery

dates back to at least Justinian’s Institutes, which treated the institution

of slavery as one of the regrettable consequences of political power. Thus

Justinian wrote these three brief but compelling passages:

[W]ars arose, and then followed captivity and slavery, which are con- trary to the law of nature; for by the law of nature all men from the beginning were born free.4

[S]lavery is an institution of the law of nations, against nature subjecting one man to the dominion of another.5

All this originated in the law of nations; for by natural law all men were born free—slavery, and by consequence manumission, being unknown.6

The Romans of course then developed a highly sophisticated law of

slavery.7 Yet by 1772, Lord Mansfi eld (William Murray) handed down

his short decision in Somersett’s Case deciding that slavery had been abol-

ished in England,8 even as it survived until 1833 in the rest of the British

Empire.9 It is worth noting that James Madison of Virginia, writing in The

Federalist Papers, did not have the heart to defend the Three-Fifths Clause,

but detached himself from the compromise by the rhetorical device of

introducing some fi ctional “Southern brethren” to provide the required

explanation.10 That transparent rhetorical strategy could not conceal the

affront that the Constitution infl icted on the fundamental libertarian

premise that all persons have equal and full rights before the law.

The intellectual attacks on slavery took their toll on the institution.

But riches and power of this sort are not often voluntarily surrendered.

So it took a bloody Civil War to undo the fatal decision to legitimize slav-

ery under the 1787 Constitution. The legal and social course of race rela-

tions took many an odd turn in the post–Civil War period. At root, the

evolution of the law regarding race represents a hard-fought struggle to

reach an ideal state in which all natural persons became legal persons

with full and equal rights, such as those that they were said to enjoy in

the state of nature. Achieving that objective meant removing the total

disabilities on slaves and the partial disabilities on women (respecting

their capacity to vote, to hold property, and to enter into contracts) that

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Race and the Fourteenth Amendment 523

historically marked every legal system. The highly visible abolitionist

movement of the antebellum period was one manifestation of the trend

insofar as it demanded what its name suggested—the abolition of slav-

ery. But rhetoric matters. One standard move of the abolitionists was to

insist that the end of slavery need not, indeed did not confer on former

slaves the full panoply of political and civil rights held by members of

the white race.11 Those political rights included the right to vote and to

hold public offi ce, while civil rights (at least in the original meaning)

covered those rights to own and dispose of real and personal property.

Dred Scott v. Sandford held that freed slaves could never become citizens

of the United States within the meaning of the Constitution.12 That deci-

sion was oddly consistent with the stated abolitionist view. It also helped

precipitate the Civil War.

During the war, the ambiguous position of former slaves was

not resolved in Lincoln’s Emancipation Proclamation, which likewise

fi nessed the point of full rights for slaves by announcing without clar-

ifi cation that they should be “forever free.”13 In a controversial use of

his power as Commander-in-Chief, Lincoln freed the slaves held in the

Confederate States, but only in those which did not rejoin the Union as

of January 1, 1863. “Emancipation,” which derives from the Latin word

mancipatio—a formal method to transfer ownership of slaves—literally

means a conveyance out of slavery. Because it only eliminated the ser-

vile status, emancipation does not (and could not) confer either citizen-

ship or full civil or political rights on ex-slaves.

Emancipation thus left slaves in limbo, but not for long. The polit-

ical environment in the post–Civil War years bore no relationship to

what it was in the antebellum years. In December, 1865, eight months

after the South surrendered, the Thirteenth Amendment abolished the

status of slavery and involuntary servitude in the United States: “Section

1. Neither slavery nor involuntary servitude, except as a punishment

for crime whereof the party shall have been duly convicted, shall exist

within the United States, or any place subject to their jurisdiction.”14 But

in and of itself, the Thirteenth Amendment did not confer citizenship

on freed slaves. That development required the ratifi cation of the Four-

teenth Amendment in 1868:

Section 1. All persons born or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which

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524 Individual Rights: Equal Protection

shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with- out due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.15

It was a constitutional revolution for both individual rights and fed-

eral structure. The fi rst sentence overrules Dred Scott.16 It goes beyond

the limited objectives of the pre–Civil War abolitionists. With one bold

stroke, the Fourteenth Amendment makes all individuals who were

born in the United States citizens, notwithstanding their inferior status

at the time of their birth. That one sentence then connects to all the

scattered constitutional provisions that enumerate the advantages and

obligations of citizenship. The Fourteenth Amendment thus renders for-

mer slaves eligible to run for public offi ce and, by overruling Dred Scott,17

establishes that former slaves can sue or be sued in federal court under

Article III, subject to the same jurisdictional limitations applicable to all

other citizens.18 Former slaves were thus protected under the Privileges

and Immunities Clause of Article IV, which ensures that “[t]he Citizens

of each State shall be entitled to all Privileges and Immunities of Citizens

in the several States,”19 such that former slave states had to give equal

treatment to former slaves living in other states.

In most contexts, however, the Citizenship Clause is essential for

determining the rights that citizens in good standing have against the

United States and the states. In solving that question, the key interpre-

tive point is that of the three substantive protections that follow the

defi nition, only the fi rst, the Privileges or Immunities Clause, applies

exclusively to citizens. The Due Process Clause and the Equal Protec-

tion Clause both extend to all persons, which includes aliens as well as

citizens. The insistent question, then, is how to account for that differ-

ence in language. One possibility is to argue that the choice of language

carries no signifi cance, but only refl ects the usual political confl ict sur-

rounding the drafting of a constitutional amendment, and the resulting

confusion of language. That argument can never be discounted in its

entirety, but it does not appear to be true to a text that draws the same

distinction elsewhere in the document. It seems odd, therefore, that two

words would be used without importance if either of them would have

suffi ced for all three guarantees.

Any effort to understand the progression of the Fourteenth Amend-

ment is fraught with diffi culty. Yet on this score the simplest observation

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Race and the Fourteenth Amendment 525

is, in the end, the most compelling. The only sensible reading of the

amendment begins with the recognition that the smaller set of citizens

receives rights more extensive than those rights accorded to the larger

set of aliens. Accordingly, it becomes necessary to develop a two-tier the-

ory of rights that meets this structural imperative. The best explanation

for this difference hearkens back to the broad and narrow accounts of

liberty in the Due Process Clauses of the Fifth and Fourteenth Amend-

ments, as discussed earlier in Chapter 21. The basic tier given to every-

one covers freedom from imprisonment, except when convicted through

those processes that were due. That reading puts no strain whatsoever

on the Due Process Clause of the Fourteenth Amendment, which, as

its natural meaning suggests, deals chiefl y with a range of procedural

protections against imprisonment, fi nes, and the death penalty. It does

not ask whether certain economic liberties are conferred on all persons.

Those liberties are restricted to citizens protected under the Privileges or

Immunities Clause. Stated otherwise, this view avoids the diffi culty in

explicating the arguably oxymoronic phrase “substantive due process.”

As a natural law matter, this inelegant solution fl ies in the face of

the universality of natural rights. But within a particular state, the abil-

ity of the sovereign to dictate the rules of the game explains the slippage

that takes place between a general normative theory and a system of

positive rights against a given sovereign. That same troubled relation-

ship between sovereign power (and the widespread application of sov-

ereign immunity) and the defense of natural rights is found everywhere

in the law today.

At this point, what reading should be given to the phrase “privi-

leges or immunities,” which lacks an obvious analogue in plain English?

On this question, the key task is to situate the term historically, largely

outside the racial context, by looking at its use in early English charters,

the Privileges and Immunities provision in Article IV of the Articles of

Confederation, and the Privileges and Immunities Clause of Article IV of

the Constitution. Thus, the Virginia Charter of 1606 states that “all . . .

Persons being our Subjects, which shall dwell and inhabit within every

or any of the said several Colonies and Plantations, . . . shall have and

enjoy all Liberties, Franchises, and Immunities . . . as if they had been

abiding and born, within this our Realm of England. . . .”20 The template

of the Privileges and Immunities Clause of Article IV of the United States

Constitution was Article IV of the Articles of Confederation which states

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526 Individual Rights: Equal Protection

that “the free inhabitants of each of these States, paupers, vagabonds,

and fugitives from justice excepted, shall be entitled to all privileges and

immunities of free citizens in the several States; . . .”21

Yet just what does the phrase comprehend? The most salient pre-

vious account was offered in 1823 by Justice Bushrod Washington, rid-

ing on circuit in Corfi eld v. Coryell.22 The precise substantive question in

Corfi eld was whether an out-of-state plaintiff could dredge for oysters in

the coastal waters of New Jersey. The particular answer to that question

was no—the out-of-state person did not share in the common resources

of the state. But in rejecting that claim, Washington outlined key “fun-

damental” rights that the Privileges and Immunities Clause did reach:

Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefi t of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; . . . to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.23

Washington’s formulation in effect duplicates the basic constitu-

tional approach—strong rights of property and contract, subject to gen-

eral police power that allows for the regulation of these activities for the

benefi t of the population as a whole. Indeed there is also evidence that

the scope of the Privileges or Immunities Clause was meant to incorpo-

rate all the substantive guarantees contained in the fi rst eight amend-

ments of the Bill of Rights. Thus, during the ratifi cation debates over the

Fourteenth Amendment, Senator Jacob Howard fi rst read the quoted

passage from Corfi eld, only to say that “to these should be added the

personal rights guaranteed and secured by the fi rst eight amendments

of the Constitution,” which he then enumerated.24 Read in combina-

tion, the broad defi nitional scope of privileges and immunities necessar-

ily imposes a massive limitation on state powers, because no state may

“make or enforce any law” that limits this capacious list. This robust

provision thus limits the role of the Due Process and Equal Protection

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Race and the Fourteenth Amendment 527

Clauses, which must not be read to extend to aliens all the enumerated

rights that the Privileges or Immunities Clause confers on citizens. The

Due Process Clause focuses on key procedural protections. Similarly, the

Equal Protection Clause—“nor shall any state . . . deny to any person

within its jurisdiction the equal protection of the laws”—normalizes the

protection that all persons “within its jurisdiction”—that is, subject to

the exercise of its sovereign power—receive in the application of civil

and criminal law.25 The guarantee against favoritism in public admin-

istration was an enormous issue in the South during Reconstruction.

Rightly understood, it should cover both cases of improper prosecution

and failure to prosecute.

Offering any complete capsule account of the permissible grounds

of distinction is never easy, for surely nothing in the Equal Protection

Clause was meant to upset well-established patterns of substantive crim-

inal law, with its distinction by sex (in case of rape) and by age (in dealing

with juvenile offenders). But the fi rst cut ignores the loose ends and gets

to the core concerns of the perceived breakdown in the regularity of the

criminal process. Differential prosecution based on race, or indeed any

other similar characteristic such as religion or origin, or, alternatively,

the failure to prosecute crimes similarly based are forbidden under the

Equal Protection Clause. Of course the government can limit the prose-

cution of bank fraud to participants in the banking system. But they can-

not make the imposition of liability turn on any personal characteristic

unrelated to the substantive offense.

On this account the denial of equal protection does not depend

on some expansive modern vision of “state action” or the performance

of some particular action. The differential enforcement of the civil and

criminal code counts as a denial of rights, then as now, even if such

differentiation arises only from some omission. The Equal Protection

Clause is not limited to race, for it would not do to subject Protestants,

women, or persons with disabilities to double the fi nes for burglaries

given to everyone else.

All generalized protections of property and contract therefore are

confi ned to citizens. But the question then is how should we interpret

these protections? The congressional debates over the meaning of the

terms “privileges and immunities” did not so much dispute the views

of Bushrod Washington. Rather, they focused on whether that provi-

sion should be read narrowly as a nondiscrimination clause. On that

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528 Individual Rights: Equal Protection

view, the Privileges or Immunities Clause did not enshrine any explicit

substantive rights, but only operated like the Privileges and Immunities

Clause of Article IV in preventing any state from discriminating between

whites and blacks under its own laws. The diffi culty with that reading

is that the Privileges or Immunities Clause of the Fourteenth Amend-

ment is not worded as a nondiscrimination provision tied to race or any

other classifi cation of persons. Nor, for that matter, are the fi rst eight

amendments of the United States. Rather, the text of the Privileges or

Immunities Clause reads as a substantive guarantee of the full panoply

of rights, including those relating to liberty and property. In particular,

the language of the Fourteenth Amendment stands in stark contrast to

the Civil Rights Act of 186626 which, inter alia, makes just that move

when it guarantees to all persons born in the United States the right

“to make and enforce contracts, to sue, be parties, and give evidence, to

inherit, purchase, lease, sell, hold, and convey real and personal prop-

erty, and to full and equal benefi t of all laws and proceedings for the

security of person and property, as is enjoyed by white citizens. . . .” The

phrase “as is enjoyed by white citizens” clearly imposes a nondiscrimina-

tion constraint that operates for the benefi t of nonwhite citizens, which

clearly targets the recently freed slaves. That statute of course moves

one step beyond the abolition of slavery accomplished by the Thirteenth

Amendment in 1865. Many of the speeches at the time took just this

view,27 despite the view’s failure to line up with either the text or the

context of the Fourteenth Amendment, adopted in 1868. But as matters

turned out, neither of these two readings was accepted by the Supreme

Court when the issue arose in the epic decision of Slaughter-House Cases.28

On their face, the Slaughter-House Cases had nothing to do with race.

The question was whether Louisiana violated the privileges or immuni-

ties of its citizens when the Louisiana legislature created a legal monop-

oly for the slaughtering of all animals within Orleans Parish. Did those

butchers who were excluded from the state-approved facility face a loss

of their privileges to enter into that trade? The substantive issue would

require the Court to decide whether the facility was meant to exclude

nonfavored parties or whether it was set up as a health measure to pre-

vent the spread of waste. That question, however, was never answered,

as the Slaughter-House decision was sidetracked on an issue that no one

had debated at all: did any traditional account of privileges or immuni-

ties apply at all? Justice Samuel Freeman Miller held that it did not. He

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Race and the Fourteenth Amendment 529

also held that the words “citizens of the United States” did not refer to

all the rights of the persons made citizens in the fi rst clause of the Four-

teenth Amendment, but only protected the distinctive rights of these

persons in their role as citizens of the United States asserting federal

rights. This narrow class of federal rights prevented the states from block-

ing ordinary citizens from petitioning the United States government for

grievances, as protected under the First Amendment, or using navigable

waters for interstate travel.29 Bushrod Washington’s famous enumera-

tion was quoted in full only to be dismissed as rights “which the State

governments were created to establish and secure.”30 Unceremoniously,

the federal government was shunted aside from protecting citizens from

fl agrant abuse of the criminal justice process, notwithstanding the lan-

guage in Section 5 of the Fourteenth Amendment that gives Congress

the power “to enforce, by appropriate legislation, the provisions of this

article.” Justice Miller defended his decision on the structural ground

that the Fourteenth Amendment was not intended to make the United

States the “perpetual censor” of the states on all matters great and small,

including those unrelated to the emancipation of the slaves.31

To many modern progressives, withdrawing the Privileges or

Immunities Clause from economic issues was a godsend, and they pro-

tested the subsequent decisions of the Supreme Court that smuggled

them back in through the newly discovered doctrine of substantive due

process, which raised, under a different clause, the same issues that had

been mishandled in the Slaughter-House Cases. Thus, when the same gov-

ernment grant came back to the Supreme Court a dozen years later,

the dissenting justices in Slaughter-House, led by Justice Joseph Bradley,

insisted that Bushrod Washington’s list of privileges and immunities had

its proper home in the Due Process Clause of the Fourteenth Amend-

ment, but, with an instructive slip of the pen, only as it applied to cit-

izens, as per the Privileges or Immunities Clause.32 This is a classical

illustration of how one error in dealing with a clause of the Constitution

is introduced, albeit imperfectly, to offset a prior mistake.

The Rise of Separate but Equal

For these purposes, however, the real signifi cance of Slaughter-House lies

not in how it was circumvented in the economic liberty cases, but how

it was applied in the area of race. The key decision for this purpose is

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530 Individual Rights: Equal Protection

United States v Cruikshank,33 in which, three years after Slaughter-House,

the Supreme Court blocked federal prosecution of a group of whites

charged with conspiracy in the murder of more than a hundred black

citizens during the Colfax Massacre in Louisiana.34 The opinion is replete

with references to the limited scope of national citizenship under Slaugh-

ter-House. Cruikshank held that the prosecutions were beyond the power

of the federal government, thereby liberating the killers. In the domain

of race relations, Slaughter-House sharply curtailed federal criminal over-

sight of local governments. Ironically, one of its fi ndings was that no

part of the Bill of Rights, including the Second Amendment right to bear

arms, was binding on the states.35 Since the Court found there were no

federal rights at stake, it necessarily followed that the federal govern-

ment had no “appropriate” role to play in dealing with state activities.

The original design of the Fourteenth Amendment that had contem-

plated active federal oversight of state activities was reduced to a dead

letter, and there was effectively no federal oversight over state enforce-

ment of criminal laws in the South, ushering in the disasters of a segre-

gated South that lasted at the very least until Brown v. Board of Education

in 1954.

The next major step in insulating Jim Crow laws from federal over-

sight took place in Plessy v. Ferguson, which in one grand pronounce-

ment upheld three separate pillars of the old South: segregation in

transportation, segregation in schools, and a prohibition of racial inter-

marriage.36 In so doing, the eight-member majority, speaking through

Justice Henry Billings Brown, a Republican from Detroit who was born

in New England, rejected the equal protection challenge on the ground

that the states had broad authority to organize their internal affairs as

they wished under their extensive police power.37 The most important

point here is that the Court’s approach fl ew in the face of the ordinary

views of liberty and property, which would allow a railroad to integrate

its cars without regard to race. Indeed the standard view was that all

common carriers had to take their customers on reasonable and nondis-

criminatory terms, so that if there was any legal pressure on the system

it was toward integration, not segregation. Furthermore, the prohibi-

tion against racial intermarriage cuts to the core of freedom to contract

where it counts the most—on matters of personal association.

The treatment of segregated schools poses a greater challenge in

light of the historical evolution of the Equal Protection Clause. The list

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Race and the Fourteenth Amendment 531

of privileges and immunities as of 1823 involved a list that was com-

piled before the rise of public schools in the immediate post–Civil War

years. As a general matter, the distribution of all public benefi ts and

burdens was not captured by the Privileges or Immunities Clause or for

that matter by the individual guarantees in the fi rst eight amendments

of the Bill of Rights. This is why, in 1865, the Reconstruction Con-

gress could contemplate “forty acres and a mule” for freed slaves in the

Confederacy and debate the desirability of a race-specifi c benefi ts pro-

gram before segregated galleries.38 These programs could be legislatively

enacted, but were not thought to be either required or prohibited under

the Constitution. Therefore, as a textual matter, it was inconceivable

under the original understanding of the Equal Protection Clause that its

terms, which applied to all persons, could nevertheless be used to create

these highly specifi c rights against the government for some targeted

group of citizens.

The implicit assumption that the Equal Protection Clause did not

apply to the distribution of government benefi ts shaped the doctrine in

the post–Civil War period. Thus, as Jim Crow set in, Justice Brown in

Plessy could rely comfortably on the pre–Civil War decision of Justice

Lemuel Shaw of the Massachusetts Supreme Judicial Court in Roberts

v. City of Boston,39 which exhibited exceptional deference to the school

committee, even in the face of an explicit Massachusetts constitutional

guarantee that “all persons without distinction of age or sex, birth or

color, origin or condition, are equal before the law.”40 The presumption

of judicial deference doomed the case. But in all likelihood, Justice Shaw

had a different agenda in Massachusetts, as Boston schools were in fact

desegregated by the school committee in 1855, six years after the case

was decided.

The situation in the South was far different, and it is worth recall-

ing that the Louisiana legislation upheld in Plessy was the latest step in

a backsliding in the states that had started in the aftermath of Slaugh-

ter-House. Regrettably enough, one person who did not see this pattern

was former Supreme Court justice David Souter, who was so committed

to his defense of the “living constitution” that he wanted to celebrate the

bold shift from Plessy to Brown, some fi fty-eight years later.41 Yet to make

that case, the before-and-after differences have to be highlighted. In his

view, Plessy was to be expected: “the members of the Court in Plessy

remembered the day when human slavery was the law in much of the

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532 Individual Rights: Equal Protection

land. To that generation, the formal equality of an identical railroad car

meant progress.”42 But that apologia ignores the path of history, not to

mention Justice John Marshall Harlan’s stirring dissent that embraced

a “color-blind constitution” and predicted, correctly, that in time Plessy

would come to be regarded as “pernicious” as the Dred Scott decision.43

Nor does Souter’s account acknowledge the internal confusion

between coercion and freedom that undergirded Justice Brown’s opin-

ion. To make his case, Brown relied on the Civil Rights Cases of 1883,

which struck down a statute that mandated integration of private facili-

ties on the ground that the statute did not address any state action under

the Fourteenth Amendment. To Brown, freedom of association was the

ideal: “If the two races are to meet upon terms of social equality, it must

be the result of natural affi nities, a mutual appreciation of each other’s

merits and a voluntary consent of individuals.”44 True enough. How that

statement supports a state mandate that separates the races, however,

was never explained.

Justice Souter’s misuse of social history invites a cautionary note

regarding constitutional interpretation. At times, justices are so anx-

ious to prove the necessity of a “living constitution” that they are pre-

pared to excuse horrifi c decisions in order to explain why only evolving

social perceptions, not textual interpretation or objective facts, lead to

advancement in constitutional law. This is dangerous talk. There are in

fact strong, powerful principles that are lasting, of which freedom of vol-

untary association is surely one. I shall outline what I think is the proper

defense of Brown v. Board of Education shortly. But for the moment, it is

suffi cient to stress that this brief excursion into historical relativism only

makes it easier for the next generation of illiberal judges to fi nd other

excuses to limit associational freedom.

Notwithstanding its threadbare intellectual foundations, Plessy

proved to be no aberration. In 1908, in Berea College v. Kentucky,45 the

Supreme Court upheld the state of Kentucky’s right to require a private

institution wanting to practice integration to teach its black and white

students on separate campuses located miles from each other. Again, it

is critical to recognize the antilibertarian doctrinal weapons the Supreme

Court utilized to achieve this result. First, it accepted a broad defi ni-

tion of the state’s police power (which had been relied on in the Ken-

tucky courts) to justify this limitation on personal freedom and private

property rights. Second, it concluded that the state could condition the

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Race and the Fourteenth Amendment 533

incorporation of the college on its willingness to comply with whatever

conditions it sought to impose, including those that related to separa-

tion. This refl ected the then common view that the doctrine of uncon-

stitutional conditions had no strength, under the prevailing doctrine

that the greater power to issue corporate charters included the lesser

power to condition them on teaching black and white students on sep-

arate campuses.46 If we can deny you the charter, we can condition it

on racial separation. To the objection that Berea College had been char-

tered before the Kentucky law was passed came the answer that any

prior grant from the state is subject to the state’s implied power to “alter,

amend or repeal” the private charter.47 Once again, the lone dissenter in

the case was Justice John Marshall Harlan, who saw the evident tension

between the narrow defi nition of the liberty that the majority adopted

in Berea College and the broader defi nition that Justice Peckham had

adopted in Allgeyer v. Louisiana48 prior to his opinion in Lochner.49 Harlan

also bolstered his argument by reference to Adair v. United States,50 which

held that the principle of liberty of contract precluded the use of manda-

tory collective bargaining on interstate rails. Justice Peckham joined the

majority in Berea College for the simplest of reasons—he was a northern

Copperhead (i.e., sympathizer to the South) and a lifelong racist, who

deserted his classical liberal principles when they mattered most.51

The Road to Brown v. Board of Education

The question that remained was how to get out of the constitutional

hole the early cases and doctrine had dug for the nation. The fi rst step

took place in McCabe v. Atchison, Topeka & Santa Fe Railway Co.,52 which

put modest teeth in the separate but equal doctrine announced in Plessy

by holding that facilities offered to blacks must be equal in quality to

those offered to whites. That case enshrined the doctrine while limit-

ing its application. And there is no evidence that it had much effect on

the segregated South. The next step took place in Buchanan v. Warley,53

which struck down a Kentucky ordinance under which black persons

were forbidden to buy homes in blocks that had a majority of white

owners, just as it forbade white persons from purchasing land in blocks

the majority of whose residents were black. Clearly the ordinance was

designed to meet the equal protection objection by building in a for-

mal parity of these restrictions between the races. But any belief in the

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534 Individual Rights: Equal Protection

ability to dispose of property as a fundamental right would brush off that

objection. The dual restriction only compounds the injustice, for the one

error does not offset the other.

These decisions of course fall a long way short of the greatest of the

decisions, Brown v. Board of Education,54 which held, under the Equal Pro-

tection Clause, that segregated schools had “no place” under the Consti-

tution.55 In its immediate aftermath, Brown generated a legion of uneasy

supporters who worried about the weakness of its analytical founda-

tions. And as a textual matter it is manifestly, if regrettably, incorrect

under the original understanding of the Fourteenth Amendment. Pub-

lic education was not treated as one of the privileges or immunities of

citizens of the United States, and the issue of the public administration

involved in the equal protection of laws, devoted as it was largely to

criminal protection, had nothing to do with the operation of the educa-

tional system. But clearly that rigid historical and textual view turns a

blind eye to all of the other major constitutional errors that allowed the

segregated system as a whole to take the monstrous form it did.

It may well have been analytically inappropriate for Chief Justice

Earl Warren to write an opinion that glossed over all the serious doctri-

nal pitfalls in the most ambitious Supreme Court decision ever written.

But what choice did he have? The only viable alternative would have

been to write a candid opinion which said that this mode of correction

was needed to undo the errors of the previous case law. He even could

have sought to update the original conception of privileges and immu-

nities to cover public educational institutions. In retrospect that line

of argument seems stronger today than it was at the time. It is highly

doubtful that any system of pernicious segregation could have survived

if the earlier fl awed constitutional decisions had not excluded all blacks

from the polls, had not gutted federal intervention to prevent massive

abuse of state power, and had not refused to enforce faithfully the con-

tract and property rights of all black citizens. That history was water

over the dam even in 1954. On balance, candor would not have been a

virtue, but would have been an open admission of weakness that would

have delegitimized the decision and posed even greater diffi culties in

the painful campaign of constitutional self-correction that took place in

the aftermath of Brown. Perhaps, therefore, by summoning a fi rm moral

tone that appealed to empty generalities, Chief Justice Warren took the

prudent course of action.

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Race and the Fourteenth Amendment 535

Yet the unwillingness of Warren to be candid about his ground

for intervention has not been without costs in both the short and long

runs. In the immediate aftermath of Brown, the Supreme Court wrote its

brief and doctrinally suspect 1955 decision in Bolling v. Sharpe,56 which

ordered desegregation in the District of Columbia School District under

the Due Process Clause of the Fifth Amendment. Because the Equal

Protection Clause only binds the states, the Court in Bolling was driven

to the odd doctrinal position of reverse incorporation by reading the

equal protection guarantee back into the Due Process Clause of the Fifth

Amendment. The Court then backtracked on Brown I in Brown II, when

it only stated delphically that the pace of desegregation should proceed

at “all deliberate speed,”57 so that most of the real support behind inte-

gration came from the active intervention of the Department of Justice,

which was able to withhold federal funds from school districts that did

not comply with the desegregation mandate.58 For its part, the Supreme

Court became restive with the slow pace of integration and thus held in

1968 that freedom-of-choice plans were insuffi cient to meet the man-

dates of Brown.59 Yet its own efforts to impose strong mandatory busing

remedies in the 1970s had, at most, limited effect.60 The constraints on

judicial coercion over local school decisions became all too evident.

Affi rmative Action in Modern Times

Fortunately, the social situation regarding affi rmative action, however

confused and divided, is improved today. Now that the political system

has been largely nursed back to health, the color-blind principle should

be restricted to the equal enforcement of criminal and civil law in the

judicial setting, which were its original objects. As for the public deliber-

ation over how school systems should operate, the color-blind principle

is far too restrictive in light of the huge forces of identity politics, which

exert great pressure below the surface in all communities and among

all groups. Those race-conscious programs do not represent some per

se political evil. Often they are hard-fought compromises wrought by

individuals who are only trying to work their way through a complex

social thicket in which a purposeful policy of inclusion has displaced

the strong separatist tendencies of a bygone generation. Here, as with

so many other state-run programs, the deferential business judgment

rule of corporate law that insulates directors from liability to unhappy

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536 Individual Rights: Equal Protection

shareholders offers a suitable private law analogy. School boards and

the local parents who interact with them are not saints, but they should

be left with suffi cient fl exibility so that their decisions are not subject to

any per se rule of invalidation, but rather are sustained if made in good

faith and supported by reasonable investigation on reasonable grounds.

That same position applies to the larger question of whether the gov-

ernment ought to be allowed to engage in conscious affi rmative action

programs. On this score, the key point to note is that, in theory, the ideal

of freedom of association should apply in all private settings, including

the employment relationship covered by Title VII of the Civil Rights Act.

It is perfectly understandable why the drafters of the 1964 act sought to

impose a color-blind norm in this area in response to the rampant dis-

crimination in the South and elsewhere in labor relationships. But once

again, that justifi cation did not rest on a sound set of abstract fi rst princi-

ples, all of which point in the opposite direction, except in the odd situ-

ations where some employer might be said to exert monopoly power in

the labor market. Rather, the need for some color-blind rule was driven

by the historical necessity to combat the vicious combination of pub-

lic and private forces that created segregated institutions backed by the

barrel of a gun. But unlike the situation with public accommodations,

where the color-blind standard has worked without diffi culty, labor mar-

kets are more complicated. Under the original plan of the 1964 act, the

dominant view was that the effects of past discrimination should work

themselves out naturally over time. As then Professor Michael Sovern

wrote in 1966: “To violate Title VII, one must treat differently because

of race itself and not merely because of an applicant’s lack of qualifi ca-

tions which he was prevented from acquiring because of his race.”61 But

before the ink could dry on the page, it became clear that the original and

aloof stance of letting time heal all wounds would not work in the face

of massive civil unrest, as full-scale race riots hit Detroit, Los Angeles,

New York, and Washington, D.C., in the years after the passage of the

Civil Rights Act.62 Stronger medicine was needed, and, on that question,

the color-blind principle had as its major consequence the slowing down

of private and public affi rmative action programs until the ingenious (if

textually indefensible) decision of Justice Brennan, in United Steelworkers

of America v. Weber,63 opened up the possibilities for affi rmative action in

the teeth of a color-blind textual provision that repeatedly extends its

protection to “any individual”64—without reference to race or sex.65 At

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Race and the Fourteenth Amendment 537

present, the two-tiered situation in which Title VII continues to apply to

discrimination against minorities and women, but not to discrimination

in their favor, remains the law of the land—with the blessing of most

businesses who need the freedom of action that Weber’s broad exception

to the Civil Rights Act of 1964 supplies. Without it, a dual standard of

strict scrutiny would strangle labor markets, as every hiring decision

would be subject to judicial challenge.

The great damage Justice Brennan did in this area was to devise an

opinion stating that strict judicial scrutiny of the then standard forms

of occupational testing that had a disparate impact against members of

minority groups held fi rm even for public and private employers that

had active and bona fi de affi rmative action programs.66 In so doing, he

gave too much weight to coercive action and made it more diffi cult to

unleash broad business support for corrective race-conscious action to

take place in the workplace. The carrot of affi rmative action has been

effective. The stick of disparate impact cases has not. Those two prongs

have made it diffi cult for decades to work sensible political compromises

on the testing of public employees in a race-conscious environment.

In this heated context everything gets turned upside down. One

area of extreme contention concerns the application of race-conscious

tests for public employment. Thus in Ricci v. DeStefano,67 the New Haven

fi refi ghters case, the conservatives were willing to accept the detailed

compromises in tests when shown that they have been prepared with

wide community input and extensive expert assistance. Liberals invoke

the misguided disparate impact standard and thus remain convinced,

wrongly, that a civil rights violation lurks behind every testing situa-

tion, including those in which affi rmative action programs are strongly

in place. The same good faith standard that should apply to the efforts

spent on working school assignments should apply to these testing rules,

in cooperative deliberations that seem wholly untainted by illegitimate

racial attitudes.

A larger issue looms with respect to various race-conscious pro-

grams in both K-12 and higher education. With respect to the former,

traditional segregation is no longer in the picture. The current battles

regarding primary schools are not over keeping formal segregation, but

over whether local school districts can adopt various race-conscious

techniques to facilitate integration in the face of housing patterns that

push toward de facto segregation. In dealing with these issues, it is

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538 Individual Rights: Equal Protection

troublesome to note that just as segregation has been vanquished, inte-

gration has not been secured. It is far easier to remove a legal barrier

than it is to reconstruct a just society by dictates from either the Con-

gress or the courts. At this point, we have witnessed a profound role

reversal. The aggressive intervention of the Equal Protection Clause has

now become the rearguard weapon of choice of conservatives who still

believe in the color-blind principle. At this same time, liberal groups

almost wish, at least silently, that Brown were no longer on the books.

Thus in Parents Involved in Community Schools v. Seattle School District No.

1,68 Chief Justice Roberts invoked Brown’s color-blind principle to thwart

efforts at conscious community building in both Seattle and Louisville.

The liberals rightly complained that this wooden application of the ear-

lier decision ignored all the underlying social and political realities in

both communities. To make out that case, of course, it is necessary in

retrospect to stress the breakdown of the proper political order in the

South under Jim Crow, which cried out for a color-blind remedy. The

short-term cost of taking the color-blind position was low, because as of

1954 there was little danger that southern school districts would show

excessive preference for black students or affi rmative action programs.

The advocates of the 1964 civil rights legislation were right to keep the

affi rmative action option off the table, given the risk that it could spark

major resistance to the civil rights cause. But the stakes were much dif-

ferent fi fty years later, in Seattle School District No. 1, when affi rmative

action remedies were thought by many to be a key component to any

system of education in primary and secondary schools.

Similar issues of changed expectations also have arisen in higher

education. In the 2003 litigation in Grutter v. Bollinger,69 the Court upheld

a program that treated race as one signifi cant factor among others in

determining admission to the University of Michigan Law School. The

view was that thoughtful administration of the admissions system could

lead to strengthening an entering class of students one person at a time.

In the companion case of Gratz v. Bollinger,70 the Court struck down the

admissions program to the Arts and Sciences program at the University

of Michigan because of its rigid formula giving preference points to Afri-

can-American applicants based on race. In an important sense, these

decisions are exactly backwards, for the use of discretion opens up the

system to intrigue that admissions systems helped to control by using

numerical criteria as a key part of the admissions process. The bottom

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Race and the Fourteenth Amendment 539

line is that these affi rmative action programs survived, albeit in less than

ideal form.

At present, affi rmative action is now heading back to the Supreme

Court because of disputes over the affi rmative action program in the

University of Texas system. Before Brown v. Board, Texas was at the

forefront of state segregationist activities, so much so that in the 1950

decision in Sweatt v. Painter,71 the Supreme Court had little trouble in

exposing the fi g leaf of separate but equal in law school education. In

response to its earlier history, Texas adopted an aggressive affi rmative

action program, justifi ed, uneasily as ever, on the twin pillars of the

correction of past discrimination and the need for greater diversity going

forward. That program was struck down in Hopwood v. Texas,72 which

prompted Texas to go into high gear to get around the judicial system. Its

preferred approach was to pass legislation making it mandatory for cam-

puses in the University of Texas system to admit, automatically, all Texas

high school seniors who fi nished in the top 10 percent of their class, in

order to boost minority representation, by tapping a larger fraction of

entering students from heavily minority school districts. As a result, 90

percent of all seats were fi lled by this practice, and the remaining 10 per-

cent were fi lled by what has been called in Fisher v. University of Texas,73

“Academic and Personal Achievement Indices,” which let the schools

make “a holistic, fl exible, and individualized”74 evaluation of any appli-

cant who did not secure admission under the 10 percent plan.

The Texas legislative scheme can be attacked from both sides. For

those who take the color-blind injunction seriously for higher educa-

tion, the Texas program should be dead-on-arrival, given its transparent

race-conscious justifi cation, which could never survive the searching

inquiry required under an orthodox strict scrutiny standard. The larger

holistic approach is driven by the same set of social imperatives that

were found in Grutter. Yet by the same token, anyone who thinks that

the system requires fl exibility will prefer the current Texas system if they

cannot go back to the pre-Hopwood program. Knocking out the pres-

ent system in favor of a strictly enforced color-blind norm would cause

a huge upheaval in a system that surely needs marginal adjustments,

which are better supplied by administrators on campus.

Overall, the twisted history and multiple rationales offered for both

diversity and affi rmative action should create massive uneasiness on all

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540 Individual Rights: Equal Protection

sides of the political spectrum. To regain our social bearings, as a nation,

we should hope to return to classical liberal principles. These princi-

ples point out one fundamental distinction in government arrangements

that should carry the day: management and regulation work in different

ways. When the state is exercising its managerial functions, it should

get the benefi t of a relatively relaxed standard of oversight that other-

wise should be denied to it in its regulatory function. The classical lib-

eral approach on these matters may restrict the domain of government

activities, but it does not impose a stranglehold on the brave individu-

als who have the thankless and controversial task of balancing compet-

ing interests. As has often been said, the sign of a good contract is that

everyone is happy, and the sign of a good settlement is that everyone is

sad. Unfortunately, on race relations we cannot write on a blank slate

and thus are typically in settlement mode. We therefore must remain

context-sensitive. The strong doctrinaire fl avor of Brown served well in

its time, but its rigid color-blind formulas were a second-best default rule

that does not work as well in modern times where governments must

be given some discretion in sorting out competing claims. Racial suc-

cess going forward depends on fi nding the right social balance between

classical liberal theory and a social history that at every turn fl outed its

fundamental principles.

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Citizenship and the Fourteenth Amendment

AS THE LAST CHAPTER revealed, the Citizenship Clause of the Four-teenth Amendment was truly transformative on the issue of race. Two other major substantive areas remain: the role of citizenship in

American constitutional law and the role of sex discrimination under

the Equal Protection Clause. This chapter tackles the question of cit-

izenship, which raises three separate issues. The fi rst issue deals with

the simple question of how citizenship is acquired and lost. The second

deals with the troubled distinction between citizenship and alienage in

the aftermath of the decline of the Privileges or Immunities Clause of

the Fourteenth Amendment. The third deals with the efforts of modern

progressives to impress their notions of positive rights on both the Cit-

izenship and Equal Protection Clauses of the Fourteenth Amendment.

The Acquisition and Loss of Citizenship

The Citizenship Clause of the Fourteenth Amendment makes it clear

that both natural born and naturalized persons can become citizens of

the United States. The Citizenship Clause, however, is not the exclu-

sive source of citizenship. Sensibly enough, Congress also has the power

to confer citizenship on individuals who do not meet these conditions,

including individuals born overseas to one or two American parents.1 Yet

the Citizenship Clause is silent on the processes by which citizenship is

acquired or, once validly acquired by birth or naturalization, how it is lost.

The decision whether to permit aliens entry into the United States

and the terms on which they are admitted is a political and not a

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542 Individual Rights: Equal Protection

constitutional decision, to be decided at the federal and not the state

level.2 So too is the decision whether to confer citizenship on those who

have been allowed to enter. The situation could scarcely be otherwise,

either for entry or citizenship, for this nation, like all others, could not

maintain its internal integrity if the United States were treated as a large

common carrier whose borders were open to all persons as of right,

except when good cause is shown to keep them out. The boundary lines

between nations are more rigid than those between neighboring land-

owners. Thus, in upholding the right of Congress to deny citizenship to a

person who refuses to declare in advance that he would bear arms in the

defense of the United States, the Supreme Court stated in no uncertain

terms, “[n]aturalization is a privilege, to be given, qualifi ed, or withheld

as Congress may determine, and which the alien may claim as of right

only upon compliance with the terms which Congress imposes.”3 That

power is not only tied to conditions that might go to the loyalty of poten-

tial citizens, but under current law, Congress’s power to apply any kind

of conditions it chooses. Specifi cally, this includes the power to admit or

exclude aliens on the basis of their race and national origin. Today the

doctrine of unconstitutional conditions imposes no constraints on the

discretion conferred on Congress.

More concretely, the power of Congress “[t]o establish an uniform

Rule of Naturalization”4 does not impose a moral imperative on the

United States to develop a naturalization regime that treats all like cases

alike, under some expansive but fi ctive Equal Protection Clause made

applicable to the federal government. It only means that any rule touch-

ing this subject should have geographic uniformity so that the same set

of rules applies to all entrants to the United States, regardless of where

they gain access to the country. The substantive freedom on eligibility

for citizenship is revealed by its historical progression. Citizenship was

limited to “free white persons” in 1790, extended to persons of African

descent in 1870, to indigenous people of the Western Hemisphere in

1940, and to persons of Chinese descent in 1943.5 Other categories have

been added since. Clearly there can be no right of outsiders to enter at

will, for that would render sovereign boundaries ineffectual. But who

should be permitted entry, and whether they shall be granted citizen-

ship, raises profound questions of national policy that are not touched by

the Fourteenth Amendment, which relates only to the activities of the

states and thus does not limit Congress on the issue, that is, at least until

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Citizenship and the Fourteenth Amendment 543

the Supreme Court in Bolling v. Sharpe found an equal protection com-

ponent in the Due Process Clause of the Fifth Amendment in order to

outlaw segregation in the District of Columbia.6 In exercising this power,

Congress has adopted elaborate rules for revoking citizenship based on

incomplete or misleading disclosures on applications. Open or closed

borders are thus a policy matter only, as are the conditions that can be

attached by agreement to the naturalization of any alien. The natural

law ideal of unlimited movement of all individuals across open borders

cannot be preserved in any system composed of sovereign nation states.

All of these developments should be a source of genuine intellectual

unease. The basic premise of any classical liberal system, or indeed any

system that stresses the natural rights of all peoples, has no place for ter-

ritorial limitations on what can be acquired.7 But in this context, those

principles form the basis of unattainable ideals. Nations are not simply

private property writ large, but because they act in that manner on the

international stage, the privileges and immunities afforded to citizens

are broader than the basic rights given to all persons.

The constitutional issues become more serious when the question

turns to the grounds on which citizenship can be revoked for persons

born in the United States or those who have been properly natural-

ized. Although the Constitution specifi es how citizenship is acquired,

except for congressionally imposed conditions, it says nothing about

how it can be lost. At one time, the dominant legal view was that any

citizen by birth or naturalization could lose that status by committing

actions inconsistent with allegiance to the United States. These notably

included voting in foreign elections and serving in the armed forces of

a foreign nation.8 In Perez v. Brownell, Justice Felix Frankfurter, writing

for a fi ve-member majority, held that Congress had the power to make

these adjustments to prevent “embarrassments in the conduct of foreign

relations. . . .”9 His rationale seems patently overbroad if it allows Con-

gress to strip any person of his or her citizenship by a simple declaration.

Surely, in the teeth of the Citizenship Clause of the Fourteenth Amend-

ment, a Jim Crow Congress could not forfeit the citizenship of all former

slaves by issuing such a declaration.

Given this serious problem, Perez was overruled by a fi ve-four deci-

sion in Afroyim v. Rusk.10 In Afroyim, Justice Hugo Black (who had dis-

sented in Perez) promptly lurched too far toward the opposite extreme

when he wrote:

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544 Individual Rights: Equal Protection

[T]he Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.11

Yet why should any citizen who engages in hostile actions toward the

United States keep any purported benefi ts of citizenship simply by refus-

ing to renounce his status?12 These actions are inconsistent with the obli-

gations of citizenship and should give the government the added option

to try those individuals for treason. Once someone has engaged in such

conduct and is given an option to return to the United States for trial,

which for good reason is never accepted, the government should be able

to treat them as enemy combatants. As such, they would be subject to

trial by a military tribunal if in custody, or exposed to efforts to capture

or kill if outside custody.

Once again, think of the private analogies. In ordinary partnerships

and associations, forfeiture of membership is never fl atly prohibited, but is

always allowable for cause. That option should be the case for citizenship

as well. The Citizenship Clause thus raises thorny questions that it does

not resolve. But hardcore criminal attacks against the lives and property

of American citizens on behalf of foreign governments or other outlaw

organizations surely justify a forfeiture of citizenship, without doing vio-

lence to the basic constitutional structure, even if ordinary crimes, how-

ever horrendous, do not. In effect, it seems quite pointless to argue that

an individual such as Anwar al-Awlaki should be able to plot against the

United States from a remote post in Yemen, but then be able to protect

himself from physical attack because he is a naturalized citizen. Whether

naturalized or not, all citizens should be subject to the risk of excom-

munication when they engage in dangerous activities that amount not

merely to voting in a foreign election, but to prosecuting mayhem against

the United States. There is of course a deep sense in which citizenship is

a privilege. But it should never be an irrevocable one.

Alienage and Equal Protection

The second question is how the Citizenship Clause relates to the Priv-

ileges or Immunities Clause. As a matter of original design, limiting

strong constitutional rights to citizens makes perfect structural sense in

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Citizenship and the Fourteenth Amendment 545

light of the vast powers that the national government has over aliens

admitted within the borders. Nonetheless, on the issue of government

powers over aliens, it has long been settled that even though nations

can deny aliens citizenship, they cannot strip them of all personal rights

to liberty and property. One standard formulation of international law

states the proposition as follows:

Every State is by the Law of Nations compelled to grant to aliens at least equality before the law with its citizens, as far as safety of person and property is concerned. An alien must in particular not be wronged in person or property by the offi cials and courts of a State. Thus the police must not arrest him without just cause. . . .13

The obligation of nations under international law, of course, carries over

to states within the nation, which is why both the Due Process and

Equal Protection Clauses of the Fourteenth Amendment fi t so well into

the basic scheme. They are written in ways that preserve these very

rights against arbitrary arrest and arbitrary seizure of property. But priv-

ileges and immunities raise very different questions. There are no such

rights to economic liberties or to acquire property against the federal

government. It therefore makes sense that these rights, which are pro-

tected by the Privileges or Immunities Clause, only apply to citizens.

The basic logic of the Fourteenth Amendment thus squares with the

structure of the United States Constitution and the standard norms of

international law.

Slaughter-House changed all that. Once the Privileges or Immuni-

ties Clause disappeared from view, the slack was taken up by broader

readings of the Due Process Clause and, especially, the Equal Protection

Clause. The simple pragmatic reason for this turnabout is that states do

not have the power to admit or exclude aliens into the United States.

The fact that this power remains securely lodged in the hands of the

federal government allows the courts to extend aliens additional pro-

tection without fear of opening the fl oodgates to foreigners. Within this

national cocoon, the question that then arises is, what rights should be

afforded to aliens and why? The classical liberal vision of universal rights

eventually takes over this corner of the law.

Ironically, the evisceration of the Privileges or Immunities Clause in

Slaughter-House14 led to an increase in the level of protection that is now

afforded to aliens. Without privileges and immunities in the picture, the

only question is whether the decisions of state and local governments

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546 Individual Rights: Equal Protection

to place aliens into a special class turns on whether we think there is

a sensible normative basis for this distinction in the particular context

to which it applies. Often none is available. Thus in an era when eco-

nomic liberties received extensive protection, the Supreme Court in

Truax v. Raich15 struck down a statute that required private employers

to maintain a workforce of at least 80 percent American citizens. If the

Privileges or Immunities Clause governed, aliens would be outside the

scope of constitutional protection, so the diffi cult interpretive question

would have been whether a restriction on the ability of aliens to work

for citizens abridged the privileges of the citizen employers, even if it

did protect the aliens they wished to hire. The correlative nature of the

rights and duties would present a real obstacle to constructing any con-

sistent protection of the economic liberties of citizens without extending

that protection to aliens as well, given the frequent prospect of trade

and cooperation between citizens and aliens. We cannot be sure how

those connections would have been worked out because the question

was treated as moot once the oversight of economic liberties switched

to some combination of the Equal Protection and Due Process Clauses.16

Once the switch is made, the remainder of the analysis turns on the

traditional police power question of whether these restrictions relate to

matters of safety or health or, more improbably, to the general welfare

or the preservation of morals. In principle, it might be possible to make

such an argument under the fi rst two heads of the police power. How-

ever, the evident protectionist purpose of the statute—never acceptable

under serious judicial scrutiny—makes clear it should be struck down

within the traditional classical liberal framework.

The 1937 New Deal transformation of the law, moreover, does not

change that particular concern even as the focal point shifts from com-

petitive processes to the protection of politically vulnerable minority

groups from unfair discrimination. Put otherwise, the “discrete and

insular minorities” focus fi rst articulated in United States v. Carolene Prod-

ucts Company17 exerts a powerful infl uence. The confl uence of these vari-

ous strands is evident in Takahashi,18 where the question was phrased as

whether the Equal Protection Clause rendered unconstitutional a Cal-

ifornia law passed at the height of the anti-Japanese sentiment during

the Second World War in 1943 that barred a Japanese alien from work-

ing as a commercial fi sherman in public waters off the California coast

solely because his race made him ineligible for citizenship. Justice Black,

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Citizenship and the Fourteenth Amendment 547

who had upheld the internment of American citizens of Japanese ori-

gins in Korematsu v. United States,19 did a complete turnaround regarding

Japanese aliens faced with state law restrictions of the same vintage. He

placed heavy reliance on Truax when he insisted that the plenary power

of naturalization at the federal level did not allow states to engage in like

forms of discrimination in the teeth of both the Equal Protection Clause

and the 1866 Civil Rights Act.20

Historically, his decision was demonstrably incorrect. Truax took

great pains to insist that it extended its protection only to private busi-

nesses, but did not touch either public property or public employment.21

The fi rst of these points, public property, was nothing more than a con-

tinuation of earlier doctrine that the ability to fi sh in state waters was

a common right that Justice Washington had excluded from the list of

privileges and immunities in Corfi eld v. Coryell.22 That theme was adopted

in Truax: “the regulation or distribution of the public domain, or of the

common property or resources of the people of the state, the enjoyment

of which may be limited to its citizens as against both aliens and the

citizens of other states.”23 No qualifi cations. The constitutional claim in

Truax arose solely because the discrimination in question was directed to

“the conduct of ordinary private enterprise.”24 The nineteenth-century

synthesis that denied constitutional protections against the government

distribution of benefi ts continued to hold sway.

The same categorical approach ruled out any constitutional protec-

tion for aliens seeking any and all types of public employment. Less than

a month after Truax, the Court in Heim v. McCall25 sustained (in a tax-

payer standing suit, no less) a provision of the New York labor law that

gave an employment preference to “citizens over aliens,” including, in

this instance, workers who constructed key elements of New York City’s

subway system.26 In light of the expenditure of government revenues on

a public project, it followed early precedent that held “it belongs to the

state, as the guardian and trustee for its people, and having control of its

affairs, to prescribe the conditions upon which it will permit public work

to be done on its behalf, or on behalf of its municipalities.”27 Again, no

qualifi cations or subtleties.

Yet once Takahashi used equal protection arguments to pry open

state common property to aliens, it was only a matter of time before that

same approach carried over to the distribution of government benefi ts

that heretofore fell outside the scope of the Fourteenth Amendment.

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548 Individual Rights: Equal Protection

Thus in Graham v. Richardson,28 the question was whether Arizona and

Pennsylvania could condition the payment of welfare benefi ts to aliens

on residency within the United States for some particular number of

years. Justice Blackmun held that Takahashi and Truax governed so

that discrimination against aliens now was treated as “inherently sus-

pect and subject to close judicial scrutiny.”29 Claims of a “special pub-

lic-interest doctrine” intended “to preserve limited welfare benefi ts

for its own citizens” failed to pass constitutional muster.30 This stun-

ning reversal in judicial sentiment was evident, because now aliens

were regarded as a “discrete and insular” minority entitled to special

protection under Carolene Products.31 With one effortless step, the basic

distinction between citizen and alien built into the fabric of the Four-

teenth Amendment suddenly became vulnerable under its Equal Pro-

tection Clause.

Needless to say, the purported insulation of public hiring decisions

regarding aliens from all constitutional scrutiny could not survive once

welfare benefi ts were subject to equal protection review. Like clock-

work, two years after Graham the other shoe fell in Sugarman v. Dou-

gall,32 which involved a challenge to hiring restrictions that New York

City imposed on aliens. Carolene Products was again invoked to justify a

high level of judicial scrutiny where none before had existed.33 At this

point the Court concluded that there was at best a poor fi t between the

alienage classifi cation and New York City’s legitimate objectives, chiefl y

that of exploiting some close “identity between a government and the

members, or citizens, of the state,”34 for “[t]he civil servant participates

directly in the formulation and execution of government policy,”35

which is limited to “state elective or important nonelective executive,

legislative, and judicial positions.”36 Once again, both the constitutional

text and its underlying theory were ignored. To his credit, Justice Rehn-

quist in his dissent takes the history more seriously. But in so doing

he only rejects Justice Blackmun’s majority decision to employ the de

facto strict scrutiny standard37 without acknowledging how deeply the

citizen/person distinction is built into the structure of the Fourteenth

Amendment. Rather than retain the historical carte blanche position,

Justice Rehnquist applied a rational basis analysis to the public employ-

ment of aliens.38 He did not want to unravel recent history by accepting

that the deeper reach of the Privileges or Immunities Clause renders the

Equal Protection Clause inapplicable to public employment.

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Citizenship and the Fourteenth Amendment 549

The standard of review in alienage cases raised its most vexing ques-

tions in connection with K-12 education. In Plyler v. Doe,39 the question

was whether Texas could deny its illegal (“undocumented”) children

the same education it provides to children who are either citizens of the

United States or aliens who are legally within the state. The clear textual

argument is that the citizen/alien classifi cation cannot be regarded as

arbitrary when it is built into the very fabric of the Fourteenth Amend-

ment. But against the background of Takahashi and Sugarman, Justice

Brennan, writing for the majority in a fi ve-four decision, resorted to

an acontextual equal protection analysis. Alienage was not a suspect

classifi cation, like race, nor was education a fundamental right like

speech or, more to the point, voting.40 Nonetheless alienage could be

treated as a disfavored classifi cation, and education an important inter-

est. By cobbling the two together, he could overturn the Texas decision

to exclude aliens from the educational system, while recognizing that

these same children could be unceremoniously deported by the federal

government.41

Having reached this point in his analysis, it was simple for Justice

Brennan to dismiss Texas’s supposed fi nancial and institutional justifi -

cations as short-sighted, given his deeply held conviction that many of

these alien children become a greater burden on the American system

if allowed to reach maturity without a useful education.42 The cost of

educating undocumented alien children need not be greater than the

cost of educating legal aliens—at least if special education programs are

kept out of the mix. Of course, the probability of illegal alien children

remaining in the United States as adults is surely lower than it is for legal

aliens, but no one knows by how much.43

The dissent by Chief Justice Warren Burger raised all these points.44

But since the Equal Protection Clause was unmoored from the rest of

the Fourteenth Amendment, the underlying empirical concerns remain

uncertain. However, as a juridical matter, how Texas should govern

appears to be a classic question of state management of public resources,

where the case for judicial deference to legislative action is strong no

matter how foolish their decisions. The federal courts that embellish

equal protection law rights do not have to raise funds or administer

complex government systems. Once again, creating positive rights

through judicial manipulation of the Fourteenth Amendment is not the

correct approach.

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550 Individual Rights: Equal Protection

In sum, it is critical to take stock of these developments in light of

the originalist claims to constitutional interpretation. On this score, the

history points to a position at total variance with the common prac-

tice. Yet it is hard to gainsay the proposition that the types of protec-

tion offered in recent decisions refl ect a highly desirable normative

framework. Before the adoption of the Fourteenth Amendment, aliens

received many types of local benefi ts as a matter of common practice.

There is no reason why those protections could not also be given after its

passage. This demonstrates a situation where the explicit constitution-

alization of the citizen/alien distinction moves the overall legal system

away from an implicit universalism of rights particularly characteristic

of the classical liberal constitution. Viewed as a question of how to apply

the prescriptive constitution, the modern view that treats seriously

claims of aliens against state and local governments has much to com-

mend it. The near-strict scrutiny standard goes perhaps one step too far.

But enter the prescriptive constitution: it is better that we stick with the

modern view than return to the historically correct, but intellectually

impoverished and socially deleterious view that denied aliens the use of

common property, the ability to acquire private property, and all access

to employment in either the public or the private sector.

The Progressive View of Citizenship and Equal Protection

This account of both citizenship and equal protection carefully seeks to

limit constitutional benefi ts to the core rights protected under classical

liberal systems. The progressive vision of citizenship and equal protec-

tion does not reject any of these considerations, but takes the argument

one step further. In the judicial arena, the early action occurred through

the Equal Protection Clause, where there was a brief but powerful fl urry

of action to treat wealth, like race, as a suspect classifi cation. Thus in

McDonald v. Board of Election Commissioners,45 Chief Justice Warren hinted

that higher judicial scrutiny is warranted “where lines are drawn on the

basis of wealth or race, two factors which would independently render a

classifi cation highly suspect and thereby demand a more exacting judi-

cial scrutiny.”46 It takes no imagination to see that this position either

trivializes the sorry history about race or exaggerates the role of wealth.

But either way, this bold and uninformed pronouncement is light years

away from the concern of the Equal Protection Clause, which is to

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Citizenship and the Fourteenth Amendment 551

prevent inconsistent enforcement of the criminal law by prosecuting

some but not others on the basis of race. Differences in wealth always

emerge from the operation of voluntary transactions, for nowhere does

it say that transactions that work for mutual gain always generate equal

increments in wealth for the parties. Nor need it follow that all individ-

uals will enter into the same number of wealth enhancing transactions.

The effort to impose some general “patterned principle” of ideal wealth

distribution through constitutional means would generate, at the state

level no less, a continual requirement of judicial oversight that would

ultimately frustrate the essential function of wealth creation. It is hard

enough for any classical liberal to accept a state that allows the govern-

ment to engage in forced redistribution. But it defi es comprehension

to convert a clause intended to limit state power into one that compels

the redistribution of wealth on a nonstop basis. Few propositions are

less informed than Chief Justice Warren’s remarks. Indeed the perverse

enormity of his vision quickly chased away both liberal and conservative

writers.47 How the states acting unilaterally could achieve redistribution

was an open question, given that many of the greatest wealth disparities

lay across state lines.

In the end, however, judicial developments did not follow a single

path. Even if the equalization of wealth were confi ned to individual

states, the logistical diffi culties of judicial enforcement and the unan-

ticipated consequences of policing these wealth differentials led the

Supreme Court to retreat from this mission in San Antonio Independent

School District v. Rodriguez,48 albeit only by a fi ve-to-four vote. There, the

Court refused to order an equalization of the property tax to overcome

income disparities among districts, including those that involved poorer

districts with a majority of Mexican-American students, by refusing to

allow wealth transfers across school district lines.49

The wisdom of that decision seems beyond question. A program of

district equalization had been adopted on a state level, most notably in

California two years before Rodriguez was decided.50 In practice its pro-

found transformations in educational policy have done little to calm the

fears of those opposed to massive forms of wealth transfer.51 Yet by the

same token, most people sense that a perpetuation of wealth differences

across class and race over time could contribute to higher levels of social

instability. Ironically, of course, nearly a decade after Rodriguez the Court

decided Plyler, where it refused to allow discrimination against alien

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552 Individual Rights: Equal Protection

school children. This counteracted some of the adverse effects of Rodri-

guez, but was on balance far less disruptive to overall system operation.

What then can be done for education without resorting to this high

level of constitutional adventurism? At this point, the best answer is

not further regulation, but deregulation. The many private individuals

and foundations that seek to address these inequalities have met only

scant success. Additionally, efforts to use fi nancial sticks and carrots to

deal with these inequalities offer no guarantees whatsoever that the

transfer of funds will work to benefi t students if strong teachers’ unions

can expropriate those budget increments. Irrespective of the theoretical

appeal of major wealth transfers, the surer path to overall improvement

rests on tough-minded steps that most legislatures and courts are reluc-

tant to take. The fi rst step is to make it offi cial government policy that

all teachers are hired on competitive contracts and must agree to work

without union representation. The willing acceptance of any monopoly

union is tantamount to a violation of the public trust by infl ating wages

above a fair, competitive, and sustainable level. The state should never

tolerate monopoly unions when competitive conditions are available, to

which the majority of state budgets offer ample testimony.52 The second

step is to remove all the barriers to entry for both charter schools and

voucher programs to create strong competitive pressures on public insti-

tutions. The third and fi nal step is to not allow public school districts to

collude in setting wages for teachers.

Now that the equal protection arguments for mandated redistribu-

tion have faltered, a similar fate likely awaits the parallel efforts to build

a case for wealth redistribution under the Citizenship Clause. Nonethe-

less, progressive writers have seized upon this clause to implement a

program of massive state intervention. For example, Bruce Ackerman

offers a “Citizenship Agenda” that does far more with the Privileges or

Immunities Clause than Bushrod Washington ever dreamed of doing in

Corfi eld.53 In contrast to Washington, Ackerman’s urgent message is for

the courts to “expand and deepen the privileges of national citizenship.

Women’s suffrage during the Progressive Era, Social Security during

the New Deal, the antidiscrimination laws of the civil rights era—all

provide notable examples.”54 Similarly, Professor Goodwin Liu (now a

justice on the California Supreme Court) thinks that some distinctive

notion of national citizenship is the engine for implementing an agenda

of educational equality in the United States, chiefl y by forcing major

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Citizenship and the Fourteenth Amendment 553

federal expenditures to more needy communities.55 In this vision, it is

not enough to make slaves free and citizens equal. It becomes imper-

ative to use the Citizenship Clause of the Fourteenth Amendment as

the tool to make “national citizenship meaningful and effective.”56 Liu

argues “the grant of congressional power to enforce citizenship rights

implies a constitutional duty of enforcement.”57

This last proposal turns the Fourteenth Amendment upside down

by converting a constitutional provision that limits the use of state

power into one that drives federal expenditures in the area of educa-

tion. How much more could be done, given the all-pervasive federal

involvement in the area, is an open question. The current state pro-

grams, with at most mixed success, already aim to redirect wealth to

many districts that need it; further constitutional intervention is at best

pointless.58 Nor is there any sense that the transfer of wealth could

by any measurable standard improve the situation. Liu’s program is

the classic illustration of the effort to create an aggressive regime of

positive rights from afar, which simply cannot work in any govern-

ment with limited resources—including our own. The overall lesson

should be clear. Citizenship rights are critical; the protection of aliens

is critical as well. The classical liberal framework does, in this as in all

other areas, a better job at reaching the right results than the modern

progressive maneuvers, which use the label as a covert way to create

another unsustainable system of positive rights.

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Equal Protection and Sex Discrimination

THE PREVIOUS ANALYSIS of race and citizenship sets the stage for deal-ing with the third major classifi cation under the Equal Protection Clause—that states may classify individuals on account of sex or, as is

more commonly said today, gender. This choice of terms is not without

consequences for the shape of equal protection law. Traditionally, “gen-

der” was used to classify nouns in foreign languages. That classifi cation

process often looks inherently arbitrary, which in turn suggests, perhaps

indirectly, that sex differences relevant to human reproduction do not

carry over to other areas of life. The use of the term “sex,” in contrast,

suggests that these human differences are not only immutable (at least

in the overwhelming number of cases), but also shape the entire range

of social behaviors for all men and women alike. Taken as a whole, the

use of the term “sex” tends to legitimate classifi cations that the term

“gender” tends to brand as suspect. As I think that biological infl uences

are pervasive in all areas of human life, I shall use the earlier term “sex”

throughout this chapter.1

Sex Differences and Classical Liberal Theory

Paradoxically, the terminological dispute described above should, in

principle, have little to do with the analysis of the Equal Protection

Clause. Confi ne that clause to the ordinary enforcement of criminal and

civil law, and (with the key exception of sex-based offenses, such as

statutory rape)2 the same rules should apply to men as to women, just as

they do to aliens as to citizens, or to blacks as to whites. That limited (but

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Equal Protection and Sex Discrimination 555

vital) role for equal protection principles is to make sure that state legis-

lation does not deviate from these bedrock principles. It is not a charter

for the creation of positive rights againt the government.

Accordingly, any distinction based on sex is easily handled within

classical liberal theory, which regards sex as wholly irrelevant to the

basic private law fi elds of property, contract, and tort, and similarly

to any political right such as participation in public affairs. Those key

issues surely could have had traction under the Privileges or Immuni-

ties Clause, but historically, all the nineteenth-century liberalization of

women’s rights in both private and public law were regarded as exclu-

sively legislative endeavors—changes that took place with great rapidity

and imperfect execution in the years following the Civil War.3

The initial entry of sex into constitutional law came from the oppo-

site direction. The early twentieth-century expansion of state regulation

in economic areas consciously appealed to sex differences. As already

noted, cases like Muller v. Oregon4 in 1908 justifi ed imposing a minimum

wage law precisely because it worked exclusively to protect women.

Only later generations rightly perceived this “protection” as a denial to

women of the freedom of contract that the law left undisturbed for men,

which thus posed a serious threat to equality of opportunity under the

law.5 Thus it was no surprise that in 1948—the same year that Takahashi

v. Fish and Game Commission6 was decided—Justice Felix Frankfurter in

Goesaert v. Cleary allowed Michigan to ban a woman from tending a bar,

unless she was “the wife or daughter of the male owner,” by indicating

that “the Constitution does not require legislatures to refl ect sociological

insight.”7 No classical liberal could ever accept that limitation on occu-

pational freedom without a strong showing of danger to women’s health

and safety not shared by men, so that the issue would be regarded more

as a freedom of contract issue and less as an equal protection one. But

within a generation the modern transformation of equal protection law

took place with respect to sex classifi cations. The following are some

benchmarks along the way.

Estate Administration

As the sociological pressures mounted, the legal tide began to turn

against Frankfurter. By 1971 in Reed v. Reed,8 the Supreme Court wrote

a short opinion that ignored Goesaert and concluded, simply, that the

Equal Protection Clause “does . . . deny to States the power to legislate

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556 Individual Rights: Equal Protection

that different treatment be accorded to persons placed by a statute into

different classes on the basis of criteria wholly unrelated to the objec-

tive of that statute.”9 With those words it struck down an Idaho statute

providing that, in choosing the administrator of an estate, the probate

court should categorically prefer men to women if both stood in the

same relationship to the deceased (e.g., as children of parents). Idaho’s

purported justifi cation of administrative simplicity was dismissed out of

hand: “To give a mandatory preference to members of either sex over

members of the other, merely to accomplish the elimination of hearings

on the merits, is to make the very kind of arbitrary legislative choice

forbidden by the Equal Protection Clause.”10 Move the Equal Protection

Clause beyond the protection of the criminal law, and it is hard to resist

this conclusion. If any arbitrary choice is needed, it could be made at a

very low cost by lot.

Spousal Benefi ts for Military Personnel

Reed is of little practical consequence in the area of estate administra-

tion. Legislatures at that time were busy removing all male preferences

from those statutes dealing with community property by allowing, for

example, either spouse, acting alone, to enter into transactions with a

third party.11 Nonetheless, the case had immense importance in launch-

ing a new category of equal protection inquiry that quickly went beyond

the relatively mundane task of setting default rules for choosing estate

administrators. Within two years, the level of scrutiny was ratcheted up

in Frontiero v. Richardson.12 Writing for a plurality of four, Justice Brennan

struck down a federal statutory presumption that permitted the wives

of military men to receive automatically a dependency allowance, but

required the husbands of military women to prove dependence by show-

ing that they received at least one-half of their support from their service

member wives.13 At the time, there were approximately 1,500,000 mar-

ried men in the armed services, but only about 4,000 married service

women.14 The case came to the Supreme Court without any precise sta-

tistics of the percentage of female service members who had dependent

husbands, but the government did note in its Supreme Court brief that

“97.7 percent of married men between the ages of 25 and 44, whose

wives were present, were in the civilian labor force.”15 The clear infer-

ence was that of these 4,000 married servicewomen, over 3,900 women

were likely to have independent husbands. Yet at the same time, the

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Equal Protection and Sex Discrimination 557

percentage of servicemen with independent wives was likely to be far

lower. Based on this information, a divided three-judge panel held that

if it required parity,

[t]he Court would be faced with a Hobson-like choice in fashioning a remedy: either strike down the conclusive presumption in favor of married service men, forcing the services to invest the added time and expense necessary to administer the law accurately, or require the pre- sumption to be applied to both male and female married members, thereby abandoning completely the concept of dependency in fact upon which Congress intended to base the extension of benefi ts.16

Right on! Essentially what the majority held was that the rule

adopted by Congress minimized the sum of decision and error costs,

which is generally regarded as the best procedure to use in making deci-

sions under conditions of uncertainty. At the time, it would have been

too costly to wade through the hundreds of thousands of dependency

claims by females when the background rate of dependency was quite

high. On the other hand, it would be unwise to set a presumption in

favor of dependency for husbands that would likely be wrong well over

95 percent of the time. As a matter of sheer technique, it is not possible

to fault the statutory design. Drawing lots may work in Reed, but not

here. The administrative and error costs of any parallel rule for male and

female military personnel are far higher. The techniques adopted show

no sign of bias and should satisfy the strictest standard of judicial scrutiny.

In reversing the decision below, Justice Brennan had no interest in

the statistical techniques used to evaluate these critical ratios. He knew

that the only way to achieve equalization was to extend the benefi t of

the presumption to a few husbands of service women so as not to wreck

the lives of thousands of women whose husbands were in the military.

To reach that result, he engineered yet another doctrinal tour-de-force.

It had already been established that an Equal Protection Clause analy-

sis applied to the federal government through the medium of the Due

Process Clause in cases of egregious violations, such as with racial segre-

gation in District of Columbia schools.17 To exploit that sentiment, Bren-

nan referenced the infamous statement of Justice Bradley in Bradwell v.

State,18 which sustained the Illinois statute that banned women from the

practice of law on these grounds:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfi ts it for many of the occupations of civil life.

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558 Individual Rights: Equal Protection

The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domes- tic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.19

This passage has of course been criticized countless times. But silly

as its characterization of women may be, it is a simple non sequitur to

take the next step of insisting that “stereotyped distinctions between the

sexes” reduced women during the nineteenth century to a social posi-

tion that was, “in many respects, comparable to that of blacks under the

pre-Civil War slave codes,”20 or to pay little respect to the political pro-

cess that had done so much to erase earlier inequalities by, for example,

actively recruiting women into military service. To Justice Brennan (and

Justices Douglas, White, and Marshall), the upshot of this history was

that the strict scrutiny standard applied to race should carry over to sex,

albeit in a somewhat attenuated form given the obvious diffi culties that

stood in the way of treating them identically for all purposes. “Separate

but equal” was a catchphrase for Jim Crow segregation on matters of

race. But on matters of sex, the once odious “separate but equal” stan-

dard, when properly applied, becomes the gold standard in dealing with

such issues as single-sex bathroom facilities and college athletic teams.

In essence, the strict scrutiny approach of the Frontiero plurality

quickly morphed into a (tough) intermediate scrutiny standard that had

more strength than the rational basis standard in Reed, but less perhaps

than the anticipated strict scrutiny standard of the Equal Rights Amend-

ment that looked at the time on its way to adoption. The defender of a

sex-based classifi cation bears the heavy burden of “exceedingly persua-

sive justifi cation for the classifi cation.”21 Accordingly, a statute’s propo-

nent must show that “the classifi cation serves important governmental

objectives, and that the discriminatory means employed are substantially

related to the achievement of those objectives.”22 But even that standard

should never make it appropriate to strike down a statutory framework

that actually gets the economics right. Unlike so many forms of eco-

nomic regulation, there is no convincing story in Frontiero of untoward

political infl uence that warps the statutory scheme. There is in effect

no reason for bad judicial economics to correct a sound political process

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Equal Protection and Sex Discrimination 559

that has moved light years away from Bradwell. Allow the social patterns

on dependency or enlistment to change, and the law could change as

well. On matters of sex as well as race, a higher level of discretion should

be afforded to government in the operation of its own benefi t programs

than in its regulation of private businesses.

One question is just how far this development should go. The lan-

guage quoted above comes from Mississippi University for Women v. Hogan23

where the Court by a fi ve-to-four vote required Mississippi to open its

all-female nursing school to otherwise qualifi ed men. With the benefi t

of hindsight, many men have entered the nursing profession, making it

clear that sex differences pose no insuperable obstacle to its operation.

The only real question is whether the state should be granted defer-

ence in the organization of its own institutions, so long as a respectable

number of private institutions maintain that distinction. The case is a

far cry from race discrimination with invidious animus, given, as Justice

Powell’s dissent notes, that all of the state’s twenty-four other univer-

sity and junior colleges were coeducational, including two that offered

nursing curricula.24 The decision to make this institution coed therefore

reduces the diversity of the types of educational institutions offered by

the state, without offering any compelling explanation for a result that

might well have been introduced politically if the case had come out

the other way. Yet the rationale offered here clearly must fall under the

standard derived from Reed and Frontiero.

This line of cases explains the many diffi culties with the Equal

Rights Amendment that were lurking in the background when Frontiero

was decided. That amendment removed the pesky term “protection” to

read: “Equality of rights under the law shall not be denied or abridged by

the United States or by any State on account of sex.”25 But the proposed

amendment (which uses the now-unfashionable term “sex”) was silent

on two key, interrelated questions. What standard of review should

apply to sex classifi cations? And what police power exceptions are con-

sistent with the ERA’s basic structure? Following the near-strict scrutiny

approach of Brennan in Frontiero necessarily requires some understand-

ing of the systematic differences between men and women on mea-

sures concerning physique, attitudes, and aptitudes across and within

fi elds, which could easily infl uence the distribution of occupational

choices. Men may be more likely to become construction workers than

women, and female doctors more likely to become pediatricians than

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560 Individual Rights: Equal Protection

male doctors, but less likely to become neurosurgeons.26 And of course

male/female differences in the military, which I shall address presently,

are both large and persistent.

Within a market setting, these differences count as a social advan-

tage because they increase the prospective gains from trade through

specialization. The correct classical liberal response is to remove all bans

on women in practicing law or tending bar and allow voluntary sorting

to give voice to any differential preferences and abilities between men

and women. If Justice Bradley’s dire evaluation had proven correct,

few women would have succeeded at the practice of law. But even

if he were dead right on sex differences, he offered no reason for not

letting women decide for themselves whether to compete with men in

the practice of law. The same result applies to any occupational restric-

tion directed only toward men. The verdict of history offers the best

falsifi cation of Bradley’s cramped worldview. Yet by the same token, it

is useful to recall Robert Nozick’s injunction against using “patterned

principles” to test for the justice of certain social arrangements.27 In

any voluntary market with open entry, we should expect to see differ-

ences in occupational choices by subgroups, even if we cannot always

predict what they might be. Indeed, the one sure sign that markets are

not operating well is lockstep percentages of men and women across

occupational fi elds with widely different qualifi cations. While the state

should not prohibit women from entering into any profession, neither

should it insist on parity of representation in any fi eld, nor bar any pri-

vate program of affi rmative action by imposing a misguided sex-blind

norm on private institutions.

Safety and Insurance Regulation

There is still the question of how this position plays out with regard

to other forms of sex-based regulation, where the appropriate level of

judicial scrutiny is higher than it is for the government acting in its man-

agement function. In Craig v. Boren,28 an Oklahoma statute prohibited

the sale of “non-intoxicating” 3.2 percent beer to men under the age of

twenty-one and to women under the age of eighteen. Justice Brennan

struck the statute down under his near-strict scrutiny standard. Obvi-

ously, the historical discrimination against women played no part in this

statutory scheme. The statute is best understood as a health and safety

measure justifi ed in large measure by the fact that the arrest rate for

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Equal Protection and Sex Discrimination 561

eighteen-to-twenty-year-olds driving under the infl uence of alcohol for

men was about 2.0 percent, while for women of the same age, it was

0.18 percent—an eleven-fold difference.29 As a fi rst approximation, 98

percent of good male drivers in the eighteen-to-twenty age range are

subject to limitations that do not apply to female drivers of the same

age. Yet that is exactly how it should be, so long as there is any correla-

tion between arrest rates and injury or death rates. The state interest

in safety is very strong. To ignore this correlation is to needlessly keep

women in that age group from drinking when it does no harm or allow

men to drink at an age when it could cause great harm. It is not possible

to determine ex ante which men fall within the dangerous class, and

to enforce a prohibition on male drivers only after they have commit-

ted a drinking and driving offense could easily be too little, too late. As

Justice Brennan noted, the Oklahoma statute could be criticized for not

going far enough, because it allows men between the ages of eighteen

and twenty to consume alcohol that they did not purchase.30 But from

the tenor of his decision, that broader statute could also fail under his

extended equal protection analysis, as it involves a greater intrusion on

the activities of these men.

Indeed, the analysis could go further. Many states have statutes that

require prior government approval of insurance rates.31 If one such state

took into account the aggregate experience of male and female driv-

ers, it would have to permit differential premium rates that Craig seems

to prohibit. The consequence would be that as a group, female drivers

would have to subsidize male drivers, resulting in an excess number

of accidents from having too many men on the road. So long as there

are differences between men and women, as well as differences within

the classes of men and women, it is unwise to use the Equal Protection

Clause as a club to block the rational pricing of insurance products. This

is exactly what happens if the epithet “stereotypical” is hurled against

sound insurance practices, that is, those that accurately price the under-

lying risk. The great irony here is that the usual rational basis test in

such cases as Williamson v. Lee Optical, Inc.,32 used in that case to sustain

anticompetitive regulations, has never treated either under- or overin-

clusiveness as a reason for striking down a law. In Craig, the state inter-

est in saving lives was considered far stronger than the state interest in

Lee Optical, which was protecting ophthalmologists or optometrists from

competition with opticians in grinding lenses and fi tting glasses. Think

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562 Individual Rights: Equal Protection

of it this way: even under the older Lochner33 rules congenial to classical

liberals, this statute would pass constitutional muster with fl ying colors.

It should have done so here. Rational basis still imposes some limita-

tions: if Oklahoma had decided to prevent eighteen-to-twenty-year-old

women from drinking 3.2 percent beer while allowing men at that age

bracket to do so, then by all means it should have been struck down. But

Craig v. Boren is a country mile from that reversed outcome. The inver-

sion is thus complete in that the modern liberal tradition now strikes

down laws that easily pass muster under a classical liberal account of the

police power.

Statutory Rape

The strong effort of the Brennan wing of the Supreme Court did eventu-

ally run into resistance. In Michael M. v. Superior Court,34 a bare majority

of the Supreme Court fi nessed the heightened scrutiny standard in Craig

to uphold the traditional application of statutory rape statutes only to

males when both parties were under the age of consent. In this context,

the sensible approach to the Equal Protection Clause is to treat like cases

alike. But in sexual matters, the entire pattern of social interaction has a

deep asymmetry whereby it is more costly, if only from the risk of preg-

nancy, for an underaged female to engage in sexual intercourse than it

is for an underaged male. No classical liberal theory could ignore these

deeply-entrenched differences in determining an acceptable legal code.

One can argue whether the deepest fears relate to unwanted pregnancy

and the complications of an unwanted abortion or from social, or even

the possible, but unproved physical pressures that boys and young men

can impose on underaged females. But the exact balance does not mat-

ter. It is very diffi cult to identify any dislocation in the political process

that results from the continued use of widespread historical norms and

practices, which legislatures can modify if they so choose.

Many have praised Edmund Burke for his view that gradual changes

are preferable to sharp discontinuities in various areas of life.35 His views

have real punch in this context, especially as a constitutional matter. But

as a legislator, I would think long and hard before removing the protec-

tions for young girls or imposing like sanctions on older women with

respect to younger men, who are not likely to have the same adverse

psychological response to sexual relations. Sexual dimorphisms—i.e.,

systematic differences between the sexes on matters of either structure

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Equal Protection and Sex Discrimination 563

or behavior—are most decisive on matters related to sex and reproduc-

tion. It seems foolish to mandate that legislatures ignore basic facts that

ordinary people understand about the asymmetrical roles of males and

females. The female imperative is to be selective in her choice of mates,

given her investment in producing a single offspring at a time. On the

other hand, males have less incentive to be selective, given their ability

to father many offspring at the same time. So long as human behaviors

are infl uenced by these biological dynamics, the traditional laws are not

just a matter of “outmoded sexual stereotypes,”36 but profound behav-

ioral adaptations to the requirements of natural selection. Durability is a

good test of social soundness that should be disregarded only with cau-

tion. There are profound sexual differences that attentive and respon-

sible parents address in raising their children, and these easily could be

refl ected in law. These differences could lead many sensible persons to

retain the current differential set of sanctions for statutory rape. Once

again, on the matter of criminal regulation, a classical liberal approach

is more fl exible, and less dogmatic, than the modern liberal alternative.

Military Operations

These concerns with custom, continuity, and the soundness of the polit-

ical process apply with equal force to military matters where the issue

refers not to the organization of the state criminal code, but to the man-

agement and operation of federal and state military operations. As a

general matter, neither judges nor legislatures are skilled in organizing

and running armies. Legislative interference in military operations, how-

ever, is virtually impossible to stop. But the strongest possible presump-

tion should be set against judicial interference in military affairs. Indeed

that strong presumption especially should be in effect to guard against

the Court using equal protection arguments to address the deployment

or organization of military forces. Very few, if any, would want to sug-

gest that women have no place in modern military services. Women fi ll,

for example, vital positions in the Israeli army, taking key noncombat

roles providing intelligence, legal, and supply services. That specializa-

tion increases the overall power of the military for a nation that does not

have the luxury of making logistical sacrifi ces in support of the abstract

ideal of gender parity.

The same logic surely applies within the American military force,

albeit with less urgency. In battle, our enemies and our friends worry

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564 Individual Rights: Equal Protection

about the size and strength of our battalions, not the internal sex-spe-

cifi c distributional requirements we impose on ourselves. It was for

that reason that race segregation within the military made so little

sense: the army works better with cohesive units. Thus, Harry Truman

ended the practice of racial segregation in 1948 by executive order, not

litigation, when reform was long overdue.37 But sex discrimination is

another issue altogether. The common wisdom of all militaries, our

own included, builds in that distinction on the ground fl oor. Even

the champions of women in the military never demand strict par-

ity. Their claim is always for greater participation, which in particular

cases may be fully justifi ed. But an equal protection argument is sim-

ply unable to calibrate the distinctions that should and should not be

drawn between men and women in the service. It is for this reason

that highly dubious policies like “Don’t ask, don’t tell”38 for gay and

lesbian soldiers should not have been undone by constitutional decree,

no matter how explicit and inexcusable the policy was. It is far better

to get rid of it by nonconstitutional means, which happened in Sep-

tember, 2011.39 Indeed, even here it is clear that the legislative change

of policy, even if sorely overdue, required some careful and thoughtful

management to ensure a successful transition. Judicial intervention

from on high was the last thing needed.

It is also necessary to consider other activities that relate indirectly

to the organization of military operations. Here the same line has held,

but uneasily. In Rostker v. Goldberg,40 a judicial majority upheld the Mili-

tary Selective Service Act41 insofar as it authorized the president to estab-

lish a draft registration system for males but not females. Unfortunately,

both the majority and the minority started from the wrong premise by

assuming that a “heightened level” of scrutiny should be brought to the

uniform practice of military recruitment. But why? Everyone concedes

that the military does not have to be sex-blind in the persons whom it

drafts. Why then must the military waste resources on activities with a

low rate of return in order to engage in a draft registration system that

yields a high rate of return? There seems to be little or no reason to

abandon the draft insofar as it helps with the deployment of men, or to

add in a draft that is little more than a nuisance for the deployment of

women. A high level of scrutiny is, I believe, inappropriate for cases in

which the government is trying to operate an essential service that can-

not be delegated to private industry.

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Equal Protection and Sex Discrimination 565

That general approach should transfer to the operation of state acad-

emies, one of whose missions is to train individuals for military service.

Yet when put to the test, Justice Ginsburg in United States v. Virginia42

again demanded an “exceedingly persuasive justifi cation”43 for allowing

the state to continue to operate the Virginia Military Institute as a sin-

gle-sex facility, as it had done since its founding in 1839. Tradition did

not matter; nor was any deference given to the decisions of democratic

institutions; nor did Justice Ginsburg point to any breakdown in the

political process in the state of Virginia, all of whose other institutions

were coed. As a political and business judgment, Virginia could have

decided that the gains from admitting a few female students into its

military academy did not justify the disruption of its own established

practices. But in this complex administrative area, judicial deference was

nowhere in evidence. Instead, armed with the heightened scrutiny test

derived from such decisions as Mississippi University for Women,44 a far

more straightforward equal protection challenge, Justice Ginsburg eas-

ily mowed down the (true) assertion that VMI’s “adversative method”45

worked best in an all-male environment. In seeking to evaluate this

collective institution, Ginsburg lapsed back into an individualistic model

for collective decision-making that should shame even the most ardent

libertarian. In her view, the only fact of relevance was that admission

may have been “desirable to some women,”46 no matter how few. But in

a social calculus, any gains to a small fraction of individuals, regardless

of sex, must be offset by the losses to other individuals, including men

whose education may be less effective in a coed environment, especially

one organized under judicial oversight.

With her partial social calculus in play, it was easy to order that

some women be admitted to the school. But at this point, the equal pro-

tection claim dissolves. Heightened scrutiny does not require 50 percent

female admissions, nor does it determine how women shall be taught or

integrated with the rest of the force. It would be impossible, for example,

to require all women to meet the traditional physical standards required

of men in training or on maneuvers. Nor can they all be required to use

the same caliber of fi rearms with equal effectiveness. If those issues are

left untouched, then why break down the entry barrier? Usually decrees

of specifi c performance are limited to cases like the transfer of the own-

ership of land where the court need not engage in continuous supervi-

sion of activities. But in these intense environments, judicial oversight

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566 Individual Rights: Equal Protection

is not possible on such operational details. One virtue of legislation in

contexts of this sort is that it sets the framework for making the inele-

gant compromises necessary to make complex interventions succeed.

If United States service academies can make coed education work, so

might VMI. Yet on the other hand, a single all-male institution increases

the systemic level of diversity in the United States and affords a measur-

ing rod against which the performance of the coed academies could be

benchmarked. Forced homogeneity is no social virtue.

In sum, it is critical to stress just how far the new equal protection juris-

prudence of sex discrimination in the public sphere deviates from sound

classical liberal principles. But there is no other conclusion once we

recall that across all categories and all systems, the administration in

corporate, charitable, and religious organizations is tested by some vari-

ation of the business judgment rule that leaves scope for the good faith

decisions of those in charge. We do not have here, as in key cases dealing

with race, a total breakdown in political institutions that cries out for

judicial remediation. Rather, we have a system in which the unwilling-

ness of the justices to understand the uses and limits of their powers

pays disrespect to democratic values in those fi elds where they should

be the highest. The Court’s current jurisprudence is truly a regrettable

reversal of sound principles. The willingness of the justices to curb mas-

sive forms of economic favoritism and abuse that legislatures impose on

private individuals is negligible. Yet their willingness to take over the

operation of public institutions is subject to few binding limitations. It

is all backwards under any sound classical liberal theory of governance.

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P A R T F O U R

CONCLUSION

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Conclusion

The Classical Liberal Alternative

THE CENTRAL MISSION of The Classical Liberal Constitution is to go against the grain of modern Supreme Court jurisprudence and much of the legal scholarship that has grown up around that body of work. The moti-

vation for this argument should be apparent from the major disarray that

infects every area of modern American life: steady decline in the aver-

age standard of living; constant battles over debt limits and fi scal cliffs;

uncertainty over key elements of the tax structure; massive overregu-

lation of the most productive sources in society (health care and fi nan-

cial services); government-inspired brinksmanship in labor negotiations;

and runaway redistribution programs that undercut the economic pro-

duction that makes these programs viable. All of these major programs

could not have happened under the original constitutional structure,

faithfully interpreted in light of changed circumstances. The confl uence

of these events cannot be dismissed as the result of random noise or sim-

ple mistakes. Rather, they are the ultimate consequence of the profound

progressive break with the classical liberal tradition that was the guiding

genius in the drafting and interpretation of the Constitution.

These errors originate with both traditions that dominate modern

American constitutional law—one conservative and the other progres-

sive. The purpose of this book has been to demonstrate that in most

major areas of modern constitutional law, the classical liberal approach

offers a coherent third alternative that avoids the pitfalls of these two

worldviews, while incorporating the best of each. The need for this third

approach should be evident from the deep conceptual fl aws of both

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570 Conclusion

modern approaches. I shall begin with a discussion of conservative orig-

inalism, and then move on to modern progressivism.

Conservative Originalism

The Positive Case

The conservative side begins with a strong attachment to constitutional

originalism that stresses the importance of keeping true to the original

public meaning of key constitutional texts. It is easy to identify the

strong and sensible motivation behind this general view. What judges

say is of great signifi cance, especially in a system that operates under an

invariant rule of judicial supremacy. Without demonstrated fi delity to

constitutional text, nothing whatsoever in the American constitutional

system prevents insulated and unelected justices from invoking the

“living constitution” to impose their personal, usually politically liberal,

preferences on the United States in ways that short-circuit the mecha-

nisms of democratic accountability that lie at the heart of our system of

government. This criticism is dead on with respect to much of modern

progressive thought both on and off the Supreme Court. For example,

reading the Cruel and Unusual Punishment Clause to impose a uniform

code of criminal sentencing on the states and federal government for

the most serious offenses has exactly that feel.1 That same form of judi-

cial adventurism can also alter the fundamental power relationships

between the national and state governments, as through the inexorable

expansion of the commerce power to cover all productive activities, no

matter how local. Faithful adherence to the “original public meaning”

of a document preserves legitimacy by removing the justices from polit-

ical temptation.

The initial diffi culty with this broad account starts from the sim-

ple proposition that conservative originalists cannot remain faithful to

the twin commitments of fi delity to text on the one hand and judicial

restraint on the other. It is therefore a hopeful sign that on many key

issues, including federalism, campaign fi nance regulation, and takings

for public use, conservative originalists have begun to move away from

the mantra of judicial restraint. That move is strictly necessary because

the Constitution is written in broad bold strokes, which at some points

confer vast powers on government and at others impose major limita-

tions on their exercise. That general proposition applies with equal force

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Conclusion 571

to the key features of both constitutional structure and the articulation

of individual rights. The last thing therefore that the Constitution rep-

resents is a full-throated endorsement of popular democracy. No faithful

construction of the Constitution should water down its various pro-

tections in order to achieve that result under the dubious, all-purpose

banner of judicial restraint. The true test is to fi nd the proper balance

between legislative choice and constitutional constraint.

That Manichean approach to law is not the sign of intellectual con-

fusion, but of an acute awareness that government has to be strong

enough to discharge the limited tasks assigned to it, but not so strong

as to wipe out the individual rights of the people whom it has been

entrusted to protect. It is often too easy today to forget that the cen-

tral function of government is to deal with what the ancients called

“self-preservation,” or the right to be free from both the use and threat

of force. It is for that reason that the original defenders of the social

contract started with the fundamental proposition that society depends

upon the mutual renunciation of force, which cannot be achieved in

any stable way by a complex web of bilateral or multilateral agreements.

The Two Sides of Judicial Restraint

From this simple observation, it becomes clear that the very origins of

government do not lie in individual consent, but in that form of con-

structive consent that imposes on all individuals that master bargain,

which government then must enforce by creating public institutions

with suffi cient resources and authority to enforce that bargain. The con-

sistent application of a nontextual norm of judicial restraint allows the

key political actors in that system too much discretion for the system to

operate at maximum effi ciency. On the structural side, the willingness

not to enforce the explicit limitations on the powers to tax and spend,

or on federal power dealing with commerce, has led to an intolerable

expansion of government power. By the same token, ingenious efforts

to limit the guarantees of private property and economic liberties have

compounded that diffi culty at both the state and federal levels.

Here then is the nub of the organizational diffi culty. The govern-

ment that must be strong enough to control violence should not be

made so strong that its powers are directed to preserve and protect a

wide range of private monopolies in such key markets as agriculture,

labor, and real property. The advocates of judicial restraint should not

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572 Conclusion

acquiesce by twisting the words “commerce among the several states”

to permeate all local activities ranging from local commerce to agricul-

ture, manufacture, and mining. The expansion of federal regulation

vastly increases the risk of monopoly institutions with no countervail-

ing benefi t in maintaining social order or the enforcement of voluntary

transactions. By the same token, the constant effort to water down the

meaning of private property so that it covers, at most, the exclusive

right of possession (and with rent control, no less) create undue state

power over rights of use and disposition that turn sensible zoning laws

into instruments of local monopoly control. Fidelity to text should block

both these moves that have fl ourished under the misguided banner of

judicial restraint.

All of this is not to say that there is no place for judicial restraint.

Indeed, in my view, the critical distinction is that which derives from

corporate law, which allows the directors and offi cers of a corporation

broad discretion in the operation of their business under the business

judgment rule, which is suspended only when there is some clear con-

fl ict of interest between these individuals and the shareholders that justi-

fi es some higher level of scrutiny. At that point, a higher level of scrutiny

is needed to see whether the corporation has dealt fairly with the parties

who trade with it and whether those parties have received fair value for

their contribution to the exchange.2 Likewise, when the government

engages in taking or regulation, it should be subject to that “fair value”

limitation which embodies a high level of scrutiny insisting that the state

show a strong justifi cation for its action or otherwise supply just com-

pensation for what it has taken. But when the government is engaged in

running its many enterprises, it must have at least some of the discretion

that is afforded the directors and offi cers of corporations, a position that

is refl ected in the “discretionary function” exception that is so central

to the Federal Torts Claims Act.3 It is this line between takings by way

of occupation or regulation and everyday management operations—not

any distinction between preferred freedoms and ordinary rights—that

should drive the analysis. On this view, therefore, the conservative

hostility to affi rmative action in public schools and universities, which

translates into a strict scrutiny test, is a mistake4—just as the liberal insis-

tence that sex differences do not matter in the organization of military

academies gives rise to the opposite answer.5 This lower level of scrutiny

along the lines of the business judgment rule is not entirely toothless

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Conclusion 573

and would not allow overt and invidious discrimination. Indeed, the

necessity of lowering scrutiny levels is a good reason to prefer the devo-

lution of government management responsibilities onto private parties,

so that vouchers and charter schools become preferable to public schools

in the K-12 space, and private universities become preferable to state

ones. But once these issues are locked into the public sphere, the strict

scrutiny that should be applied to taxation and regulation can no longer

be used to decide cases where business judgment determinations are the

very actions in which government offi cials are required to engage.

Implied Terms: Anticircumvention and the Police Power

The diffi culties with conservative originalism do not rest on its overre-

liance on the institutional norm of judicial restraint in some cases and

the aggressive assertion of judicial power in others. These institutional

errors stem in large measure from the questionable methods of interpre-

tation that conservative originalists too often bring to diffi cult texts. The

motivation to avoid arbitrary exercises of judicial power does not justify

its cramped mode of interpretation which, ironically, is not faithful to

the dominant interpretive norms of the Founding period. The simple

point here is that in no legal system at any time could the question

of construction be reduced to a search for original public meaning of

terms that are found in the constitutional text. To be sure, fi nding that

meaning is an important part of the overall inquiry, where the insistence

on public meaning short-circuits the appeals to subjective understand-

ings of constitutional text by individual judges. The subjective theory

of interpretation is widely regarded as inappropriate for dealing with

ordinary contract questions, because it provides no answer to the chal-

lenge of what should be done when two sets of intention are at variance

with each other. The situation does not become any easier on that score

when the relevant parties are not only the drafters of the original con-

stitutional texts, but members of the state conventions (that ratifi ed the

original Constitution) and the state legislatures that have approved the

various amendments.

But solving one problem, even imperfectly, is not to solve them

all. As indicated earlier, three additional problems have to be addressed

to get a fuller understanding. The fi rst one deals with the problem of

circumvention of particular text by clever legislative strategies. This

problem arises constantly in ordinary litigation. If the law prohibits an

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574 Conclusion

individual from forcing poison down the throat of another person, it

cannot be that the killer can conceal the poison in a drink he sets before

his victim. It will not do to say that the victim was the author of his own

doom because he drank the poison. So too that if there is a prohibition

on the taxation of exports, it cannot be permissible to tax the exporter

based on the value of the goods moved through interstate commerce.

This principle is not imposed solely as a matter of ordinary linguistic

interpretation. It is imposed because of the full knowledge that persons

who are constrained by law will do what they can to evade its operation.

Unless countermeasures are taken to prevent the adoption of these close

substitutes, the entire scheme will fall to pieces. It is for that reason that

freedom of speech covers not just speech, but writing and all other forms

of expression. It is for that reason that the government that cannot ban

trade or speech also cannot subject it to special taxation. The scope of

the guarantee makes sense only if it applies indifferently to all forms of

communications.

The second gap in the originalist view is that it offers no basis for

the implication of additional constitutional terms that are dependent

on either government structure or the nature of individual rights. The

Constitution does not once mention sovereign immunity, yet the main-

tenance of the federal/state system depends in large measure on the

view that the adoption of a federalist system did not strip the states

of their previous immunities. Similarly, the entire edifi ce of the police

power does not have a single word of textual support, yet it must be

read into the Constitution in order to place its individual guarantees into

perspective. Here again the analysis starts with analogous provisions of

private law. “Thou shalt not kill” is one of the fundamental propositions

of civilized rights. But unless one allows an exception in cases of self-de-

fense—if need be through interpretation—the rule will be hopelessly

overbroad. Similarly, it cannot be that the government must pay com-

pensation for property taken when it disarms a violent criminal.

Yet once even a single justifi cation is allowed to qualify the con-

stitutional text, it is off to the races. Self-defense is not the only way to

defeat or undermine a charge of murder; provocation has to be consid-

ered. Nor is self-defense absolute; the question of retreat and excessive

or disproportionate force must be considered as well. The key lesson on

interpretation is that a bare text raises more questions than it answers,

which makes it imperative to isolate the general theory that animates

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Conclusion 575

the text—usually the protection of personal autonomy, liberty, and

property—and then construct the defenses that are consistent with that

worldview. Admitting self-defense into the system does not allow A to

kill B because of the color of his tie—or his skin. It is only through the

use of a general theory that these questions can be answered, and that

theory requires an understanding of how the private law deals with

ordinary disputes as one essential guide to fi guring out what the gov-

ernment can do as of right, and what it may do only if it provides just

compensation.

The Prescriptive Constitution

Finally, there is the nasty question of prescriptive transformation of the

Constitution by long usage. This notion also depends on the parallel uses

of prescription in the law of easements, whereby long usage of a right of

way translates what began as a trespass into a vested right. The doctrine

always has pitfalls along the way, but in the end, no system of interpre-

tation can do without this notion. An erroneous element is built into the

system at an early stage. Other institutions are built up around it. Slowly

it becomes both diffi cult and dangerous to disentangle them. In the face

of these transformations, a slavish emphasis on original public meaning

tends to reduce the case of prescriptive adjustments to zero.

More specifi cally, the case in favor of judicial supremacy is weak

even if it is clear that the legislature and the executive cannot force the

federal courts to hear issues that are not within their original constitu-

tional mandate. Similarly, the ability of the Supreme Court to review

state law judgments that call into question provisions of the United

States Constitution may be essential to keep the union intact. The origi-

nal Constitution was too wary of judicial power to allow the fi rst and too

wary of federal power to allow the second. Quite simply, the designers

of the original system were bold experimentalists who worked from past

historical precedents that did not give a good indication of the strains

that would emerge once the federal system was up and running. But

unless we have some doctrine of provision, the devout originalist has to

abandon both Marbury v. Madison6 and Martin v. Hunter’s Lessee,7 notwith-

standing the essential role that they play in organizing our collective

life. Similarly, the entire edifi ce of the dormant Commerce Clause is a

judicial invention that allows courts to work in a constructive fashion to

create a national common market free of obstructive state interference,

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576 Conclusion

a risk that would have rated low at the time of the Founding. Yet no

one, I hope, would urge that it be dismantled on the ground that only

the Commerce Clause properly authorizes actions by Congress without

imposing any limitations on the power of the states.

The use of the prescriptive constitution is necessarily tricky because

the long passage of judicial decisions is not a suffi cient condition for their

continued adoption. The Court was right to overrule Plessy v. Ferguson8

and its separate but equal doctrine in Brown v. Board of Education.9 And in

my view one should do everything possible to curb or to at least cut back

the affi rmative scope of the federal government under the Commerce

Clause on the ground that the new powers are chiefl y used to create

national cartels through state power that are also antithetical to the basic

provisions of classical liberal theory. It is quite impossible to ignore the

normative questions implicit in any challenge to a long-standing rule.

And it is equally critical to make those judgments within the one norma-

tive theory that drives the original constitutional structure, namely the

protection of private property and economic liberties within a frame-

work of limited government. One risk of modern originalism is that it

becomes so text-bound that it ignores the relationships between text,

structure, and basic normative theory.

Modern Progressivism

Linguistic Ambiguity and Judicial Deference

The list of serious shortfalls of conservative originalism does not, how-

ever, legitimate the powerful strands of progressive thought that have

dominated much of American constitutional law since the New Deal.

The progressives have launched many misguided attacks on originalism

to show how diffi cult it is to fi nd shared meanings in ordinary texts or to

anticipate the many changes in technology and political theory since the

Founding period. In making ambiguity the interpretive norm, they do

serious danger to the rule of law, which can only function if words are

clear enough so that they can receive the same meaning by the authors

of the text and the multiple and diverse parties who are bound by it.

Ambiguity in some cases is to be expected, but usually only in com-

plicated cases with mixed motives and uncertain extent. It is always a

dangerous move to fi nd that certain directives are so uncertain that it

is necessary to defer to legislative and administrative bodies for their

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Conclusion 577

elaboration. A substantial degree of deference is appropriate where the

government is running a business. But far less is required when the gov-

ernment takes it upon itself to tell other people how to run their own

businesses.

Too often progressives show an uncritical affection for administra-

tive expertise and impartiality in cases where both are hard to come

by. They are clearly wrong on both accounts. One reason why some

progressives will say that “Originalism is Bunk,” to use the infelicitous

title of Mitchell Berman’s article,10 is that for all its weakness as a general

theory, originalism reaches powerful conclusions that are at war with

the progressive vision of strong government at every level coupled with

sharp limitations on private property and economic liberties.

In some instances, the effort is made to ease that stark confl ict by

appealing to a notion of “Living Originalism,” made popular by Jack

Balkin,11 that seeks to subvert the doctrine while paying homage to it.

To be sure, no one quarrels with any constitutional claim that the Com-

merce Clause allows the regulation of the telegraph, the telephone, the

railroad, the automobile, and the airplane, even though none were

in existence at the time the Constitution was ratifi ed. But there is no

sleight of hand in that conclusion. Defi ning the scope of the power as

“Commerce . . . among the several States”12 does not limit the federal

power to the forms of interstate commerce in use at the time of the

Founding.

But by the same token, however, these changes in technology,

large or small, should not be allowed to mask a fundamental shift in

constitutional theory when two additional moves are made. The fi rst

says that local commerce is necessarily entwined with interstate com-

merce, without explaining why it is not possible to distinguish between

the local subways that lead to the Port Authority Terminal on Eighth

Avenue and Forty-Second Street and the interstate buses that depart

hourly from it to distant points. If interstate commerce reaches new

technologies that cross state lines, it also excludes those new technol-

ogies that stay within state lines. Second, there is nothing about the

transformation of technology that makes manufacturing, mining, or

agriculture part of interstate commerce solely because they rely on

inputs that could come from out of state or ship fi nished products to

buyers who exist out of state. The relationship of manufacture to trade

is the same now as it always has been.

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578 Conclusion

Monopoly versus Competition

Nor is this conclusion upset by any pragmatic considerations that arise

from any real or supposed increase in the value of interstate trade. In

this regard, the removal of barriers to trade increases the effi ciency of

markets by allowing competition in places where it was once diffi cult

or impossible to achieve. The real driver of the doctrinal transformation

stems not from the fact of that increased competition, but from the fear

of that competition. The progressive movement can fi nd many ways

to gild the lily, by pointing to higher purposes—certainly higher than

any lowly consideration of economic effi ciency—to justify its multiple

interferences with market behavior. But it is all window dressing for the

single constant that marks all of its legislative innovations at the federal

and state levels: the unspoken but persistent preference for government

monopolies over private competition. It does not matter whether one

looks to the various Agricultural Adjustment Acts or to the manifold

restrictions on labor markets running through the 1914 Clayton Act,

the 1926 Railway Labor Act, the 1935 National Labor Relations Act, and

the 1938 Fair Labor Standards Act.13 They are all designed to restrict free

entry and to empower certain preferred groups to gain monopoly profi ts

in their relative market niches. State laws, such as endless zoning and

occupational restrictions, tend to move strongly in the same direction.

Of course there are exceptions to this rule in some small fraction of

cases. But the unwillingness to require the state to justify its limitations

makes it impossible to challenge the manifold restrictions that prefer

less output to more, so long as the preferred clientele gets a larger share

of that smaller pie. Done once, it produces some lucky winners. Done

repeatedly, it produces only losers, and a general decline in levels of

income and wealth on a nationwide scale.

The Rise of Rational Basis

It takes a certain degree of intellectual ingenuity to convert the Consti-

tution into a doctrine that tolerates all these monopoly interventions.

But through two words—rational basis—the progressives have intro-

duced a battering ram that too many conservative judges are prepared

to use as well. The United States has the “Power To lay and collect Taxes,

Duties, Imposts and Excises, to pay the Debts and provide for the com-

mon Defence and general Welfare of the United States.”14 The purposes

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Conclusion 579

stated are meant to impose limitations on what Congress may do. There

are, for example, all sorts of close cases on what counts as “general Wel-

fare of the United States.” But the right answer to hard questions will be

beyond reach if the entire clause is enveloped in an interpretive gauze

that transforms the three specifi c heads of legitimate purposes into an

open-ended list simply because it is just too hard to police these catego-

ries. Nor does the Takings Clause provide that a taking for “public use”15

means a taking for any “conceivable public purpose”16 that tickles the

fancy of a state legislature or administrative body.

Private Law and Political Faction

One reason for this evisceration, moreover, is the conscious departures

of progressive justices from the private law notions that are the essen-

tial building blocks of any constitutional order. In misunderstanding or

mocking these foundations, they are all too often joined by conservative

justices, who also suffer from an overexposure to public law and an

attention defi cit with respect to private law. Here, the basic point is that

the elaborate set of private law institutions that create multiple interests

in land is a highly effi cient device that leads to its effective articulation.

The willingness of the system to encourage voluntary transfer and the

creation of divided interests in real property is accompanied by a set of

institutions—a writing requirement under the Statute of Frauds and a

recordation system—that maximize the gains from trade by facilitating

voluntary transactions. The well-defi ned rights created by this system

reduce the risk of their expropriation by clever government action. But

once the public law conceptions of property are allowed to displace these

norms, the door is opened wide to all sorts of factional intrigue as polit-

ical actors fi nd it easier to block productive use and voluntary exchange

by a set of insufferable land use regulations whose cumulative impact is

to shrink the size of these resources. The exact strategies hardly matter.

What matters is that a detailed knowledge of private transactions is no

part of public law before the United States Supreme Court.

The issues involved do not only deal with property cases, but with

all sorts of institutional arrangements. The doctrine of standing is in

such disarray today, because the judges who articulate it have from the

beginning had no solid understanding of the role of the principles of

equitable jurisdiction that were consciously built into the defi nition of

judicial power under Article III.17 Thus all structural issues are stripped

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580 Conclusion

from the Supreme Court because the justices insist on some particular-

ized injuries that are the hallmark of actions at law and the antithesis of

those numerous equitable devices that are used to allow for the effective

aggregation of individual claims. Nor does it help if the original errors

on standing are compounded by the misuse of notions of damnum absque

iniuria (harm without legal injury) that also derive from the private law,

where they insulate ordinary competition from judicial sanction. Finally,

no court could hope to correctly interpret the law of takings by equating

private ownership with the right of exclusive possession, and by ignor-

ing every doctrinal development dealing with divided interests in land

and with easements and servitudes over the rights of other parcels. Yet

all of these errors are repeated time after time in cases dealing with the

protection of air rights, mineral rights, easements, and covenants, which

all too often are articulated in an unrecognizable form of dealing with

constitutional issues.

From Limited Government to Positive Rights

The last of the major progressive sins is the constant willingness to let

the legislature create an endless stream of positive rights as part of the

modern social democratic state. The original notion of negative rights

cannot cover the entire waterfront, but it does set the stage for a proper

appreciation of the role of government. The protections against force

and fraud create norms that function well among all persons. Their pro-

tection does not depend on any particular level of social wealth, and

it applies to all persons equally. The rights work in small and in large

societies. Once the issue turns to Social Security, Medicare, Medicaid,

unemployment benefi ts, food stamps, and other programs, the rights

become harder to defi ne in rational and sustainable ways. The levels of

payment are highly contingent on wealth, and the principles that might

work in smaller societies cannot work in larger ones. Confi ning these

tasks to the state level places an effective brake on their size because

of the threat of exit. Placing them at the federal level guarantees their

expansion to higher levels.

It is therefore nothing short of amazing how willing progressive

judges and scholars are to read positive rights into a Constitution

drafted with the opposite ends in mind. The Privileges and Immu-

nities Clause no longer is intended to guarantee rights of trade and

occupational liberties across state boundaries. Justices instead become

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Conclusion 581

concerned with the extension of welfare benefi ts. The Equal Protection

Clause is no longer focused on ensuring that the criminal justice sys-

tem is fair for both future victims and future offenders. It now becomes

the all-purpose provision to attack traditional forms of classifi cation as

invidious discrimination. It has even been argued that the Thirteenth

Amendment, whose fi rst section reads, “Neither slavery nor involun-

tary servitude, except as a punishment for crime whereof the party

shall have been duly convicted, shall exist within the United States,

or any place subject to their jurisdiction,”18 should be interpreted as a

platform for positive rights on the ground that those who do not have

certain minimum levels of wealth are in a condition of involuntary

servitude, which now “exists” for millions of people.19 To be sure, the

progressive movement has not been able to fi nd positive rights in the

Constitution. But it has been able to remove any and all constitutional

barriers to their legislative creation, which results in a huge expan-

sion of the size of government. In a word, the progressive synthesis is

unsustainable: there are too many positive rights on a productive base

whose size is shrunk by progressive legislation.

To the Future

It should be clear then that both the progressives and conservatives work

on models that are too divorced from constitutional text, constitutional

theory, and private law. The consequences of these repeated errors are

not just judicial curiosities. These epic mistakes in constitutional and

political judgment have long-term adverse effects on the power of a

nation to regenerate and recreate itself. So long as conservative justices

cloak themselves in the language of judicial restraint on structural and

economic issues, they will not address the legislative and administrative

excesses at both the federal and state levels. So long as progressives con-

tinue to embrace policies that fi rst tolerate and then encourage the mas-

sive expansion of transfer payments off an ever-decreasing productive

base, they will also reinforce the economic and political risks.

The political forces in favor of the current situation are living proof

of the Madisonian fear of factions. Its intellectual origins are best sum-

marized in words that have heroic signifi cance to modern progressives

in the pithy but ill-chosen words of Oliver Wendell Holmes in his pow-

erful but misguided dissent in Lochner v. New York:

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582 Conclusion

The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. . . . [A] Constitution is not intended to embody a particular eco- nomic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.20

Holmes is partly correct to insist that the Constitution does not follow

Mr. Herbert Spencer’s Social Statics. But in its crucial provisions that

have survived to the present day, the Constitution was intended to

embody the theory of classical liberal thought. Holmes therefore com-

mits a constitutional blunder of epic proportions when he claims that

“a” constitution is not intended to embody a particular economic theory.

No constitution could hope to survive if not driven by some general

guiding theory. One can look to the length and breadth of the doctrine

and fi nd not a single syllable that is conducive to thinking that our Con-

stitution (which is not just “a” constitution) embodies paternalism and

the organic relation of the citizen to the state.

Whether our Constitution embraces a theory of laissez-faire depends

on how that doctrine is defi ned. If it is meant to take, as Holmes seems

to address, the extreme libertarian position that rules out taxation, emi-

nent domain, and the provision of public goods, then ours surely is not a

laissez-faire constitution. But that caricature gives far too much running

room to the critics of laissez-faire. In a historical account of the doctrine,

the late Jacob Viner offered this more astute version of laissez-faire:

I will carefully avoid using the term laissez faire to mean what only unscrupulous or ignorant opponents of it and never its exponents make it mean, namely, philosophical anarchism, or opposition to any govern- mental power or activity whatsoever. I will in general use the term to mean what the pioneer systematic exponents of it, the Physiocrats and Adam Smith, argued for, namely, the limitation of governmental activity to the enforcement of peace and of “justice” in the restricted sense of “commutative justice,” to the defense against foreign enemies, and to public works regarded as essential and as impossible or highly improba- ble of establishment by private enterprise or, for special reasons, unsuit- able to be left to private operation.21

Viner goes on to note that both Smith and the Physiocrats were pre-

pared to extend the role of government somewhat beyond these lim-

its, but the reference to “commutative” justice was meant to exclude

wholesale programs of income redistribution through government

action, actions that Viner defended, at least on the far smaller scale of

1960.22 But otherwise, Viner’s account of laissez-faire squares with the

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Conclusion 583

classical liberal position defended throughout this book. He makes it

crystal clear that the defenders of laissez-faire, both before and after

Adam Smith, harbored a deep distrust of all forms of monopoly behav-

ior, a view that was shared by the old guard justices before the progres-

sive revolution took hold.

To be sure, this account does not discuss separation of powers, fed-

eralism, or the pervasive role of the doctrine of unconstitutional condi-

tions. But Viner and his ilk were not lawyers charged with putting the

system into play. They were general theorists who sought to outline its

basic functions. But on that level their positions are far more coherent

than the received dogmas of modern American constitutional law. They

well understood that classical liberal theory stood or fell as an intellectual

whole. Toward that end, Viner quotes an 1843 passage from the Edin-

burgh Review which is prescient in its rejection of the modern distinction

between preferred freedoms and ordinary rights: “Be assured that free-

dom of trade, freedom of thought, freedom of speech, and freedom of

action, are but modifi cations of one great fundamental truth, and that

all must be maintained or all risked; they stand and fall together.”23 This

entire sweep of intellectual history is rejected in Holmes’s famous quip.

We are all the losers of Holmes’s fundamental misunderstanding of the

classical liberal constitution. We will all be losers if we continue to think

that progressive and conservative thought are the only available choices.

The blunt truth is that a strong embrace of the classical liberal constitu-

tion offers the only sure path to rejuvenation of America’s constitutional

and political institutions.

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Notes

Introduction

1. Thomas Paine, Common Sense (1776). The words appear at the outset of the second full paragraph of this work, available online at http://www.early- america.com/earlyamerica/milestones/commonsense/text.html.

2. Michael W. McConnell, “Active Liberty: A Progressive Alternative to Tex- tualism and Originalism?,” 119 Harv. L. Rev. 2387, 2391 (2006) (reviewing Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005)).

3. Cass R. Sunstein, “Incompletely Theorized Agreements,” 108 Harv. L. Rev. 1733 (1995).

4. John Locke, The Second Treatise of Government (C. B. Macpherson ed., 1980) (1690).

5. See, e.g., James M. Landis, The Administrative Process 8 (1938). 6. See Walter Berns, Freedom, Virtue, and the First Amendment (1957). One lead

is here: http://www.citizenship-aei.org/2011/09/event-re-cap-walter-berns- and-the-constitution.

7. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codifi ed as amended at 5 U.S.C. §§ 551–559, 701–706 (2006)).

8. For a modern version, see Peter L. Strauss, “Formal and Functional Ap- proaches to Separation-of-Powers Questions—A Foolish Consistency,” 72 Cornell L. Rev. 488 (1987).

9. For the leading early exposition of these views, see James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harv. L. Rev. 129 (1893).

10. U.S. Const. art. I, § 2, cl. 3: “Representatives and direct Taxes shall be appor- tioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those found to Service for a Term of Years and excluding Indians not taxed, three fi fths of all other Persons.”

11. Id. art. IV, § 2, cl. 3: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or

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586 Notes to Pages 9–18

regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

12. Lon L. Fuller, The Morality of Law (1964). 13. See United States v. Lopez, 514 U.S. 549 (1995), subject now to the strictures in

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2012), with sharply divided views on the power of Congress to regulate economic “inactivity,” discussed infra Chapter 12 (“Constitutional Pushback: 1995 to Present, From Lopez to NFIB”). For Justice Thomas’s originalist position, see United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J. concurring) (urging the Court to be “more faithful to the original understanding of that Clause.”): United States v. Morrison, 529 U.S. 598, 627 (2000) (Thomas, J. concurring) (same).

14. See Mark Tushnet, Taking the Constitution Away from the Courts 181 (1999). 15. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial

Review (2004). 16. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005). 17. See Cass R. Sunstein, One Case at a Time (1999); Cass R. Sunstein, “Burkean

Minimalism,” 105 Mich. L. Rev. 353 (2006). For his latest views on the ques- tion, see Cass R. Sunstein, Beyond Judicial Minimalism (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1274200.

18. James B. Thayer, “The Origin and Scope of the American Doctrine of Consti- tutional Law,” 7 Harv. L. Rev. 129, 144 (1893).

19. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990). 20. U.S. Const. art. I, § 1. 21. New York Central R.R. v. Winfeld, 244 U.S. 147, 169 (1917) (Brandeis, J., dis-

senting) (“The contention that Congress has, by legislating on one branch of a subject relative to interstate commerce, pre-empted the whole fi eld, has been made often in this court.”). Note the sentence itself recognizes that the issue itself had long predated the invocation of the term, which it had. See, e.g., Stephen Gardbaum, “The Breadth vs. the Depth of Congress’s Com- merce Power: The Curious History of Preemption during the Lochner Era,” in Federal Preemption: States’ Powers, National Interests 48 (Richard A. Epstein & Michael S. Greve eds., 2007).

22. U.S. Const. art. VI, cl. 2. 23. For an exhaustive account of the complexities of the new federalism, see

Michael S. Greve, The Upside Down Constitution (2012). 24. On which see Daniel A. Farber, Retained by the People (2007). 25. Lochner v. New York, 198 U.S. 45, 53 (1905).

1. The Classical Liberal Synthesis

1. See Palko v. Connecticut, 302 U.S. 319, 325 (1937). 2. See U.S. Const. art. I, § 8, cl. 15–16; id. art. II, § 2, cl. 1. 3. Id. art. I, § 10, cl. 3.

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Notes to Pages 18–25 587

4. Id. art. IV, § 2, cl. 3 (the Fugitive Slave Clause). 5. President Gerald Ford, Address to a Joint Session of Congress (Aug. 12,

1974), available at http://www.fordlibrarymuseum.gov/grf/quotes.asp. 6. Mass. Const. art. I (annulled by Amendments, art. VCI). 7. See Jonathan Haidt, et al., “Group Report: What Is the Role of Heuristics in

Making Law?” in Heuristics and the Law 141 (Gerd Gigerenzer & Christoph Engel eds., 2006). For a more general statement of Haidt’s view, see Jona- than Haidt, The Happiness Hypothesis (2006).

8. See, e.g., Robert Nozick, Anarchy, State, and Utopia (1974). 9. See James Buchanan & Gordon Tullock, The Calculus of Consent (1962). 10. Federalist No. 10, at 46 (James Madison) (Clinton Rossiter ed., 1999). 11. See Federalist No. 44, at 250–251 (James Madison) (Clinton Rossiter ed.,

1999). 12. For a list of such options, see the Home Affordable Modifi cation Program

(HAMP), available at http://www.freddiemac.com/singlefamily/service/ mha_modifi cation.html, which has largely failed. See also Jon Prior, “SIG- TARP: HAMP’s Failure ‘Devastating,’ Permanent Mods Flat in December,” Housing Wire (Jan. 11, 2011), available at http://www.housingwire.com/ news/sigtarp-hamps-failure-devastating-permanent-mods-fl at-december.

13. Federalist No. 51, at 293 (James Madison) (Clinton Rossiter ed., 1999). 14. Herbert Storing, What the Antifederalists Were For 5 (1981). 15. See id. at ch. 3. 16. Id. at 53. 17. Federalist No. 78, at 434 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 18. Federalist No. 10, supra note 10, at 45 (James Madison). 19. Alexander Hamilton, Federal Convention, June 18, 1787, in 1 Farrand,

Records 282–283, reproduced in The Founder’s Constitution ch. 8, n.10 (Philip Kurland & Ralph Lerner eds., 1987).

20. James Madison, Notes of Debates 39; for this and other sources, see Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 34–38 (2003).

21. For discussion, see Noble E. Cunningham, Jr., The Jeffersonian Republicans: The Formation of Party Organization, 1789–1801 (1953).

22. See Aristotle, The Politics of Aristotle 157, at IV.2.1289a (Ernest Barker trans., 1952); for explication, see “Aristotle’s Political Theory,” in Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/ aristotle-politics/#return1-supplement1.

23. See, e.g., Quentin Skinner, Liberty before Liberalism 28–31 (1998) (discussing the views of Harrington, Milton, Nedham, and Sydney).

24. U.S. Const. art. IV, § 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

25. Pacifi c States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912). For a defense of referenda, see Robert D. Cooter, The Strategic Constitution (2000).

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588 Notes to Pages 25–31

26. For a critique, see David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888, at 252–257 (1985).

27. Storing, supra note 14, at 83 n.7. For two leading defenses of republicanism, see Cass R. Sunstein, “Beyond the Republican Revival,” 98 Yale L.J. 1539 (1987); Frank I. Michelman, “Law’s Republic,” 97 Yale L.J. 1493 (1988). For a historical account of republican liberty, see Mortimer Sellers, The Sacred Fire of Liberty: Republicanism, Liberalism and the Law (1998).

28. Federalist No. 1, at 1 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 29. See, Sunstein, supra note 27. 30. Federalist No. 10, supra note 10, at 80 (James Madison). 31. Senator Arlen Specter, Remarks at the Federalist Society National Conven-

tion, Washington D.C. (Nov. 17, 2006) (audio available at http://www.fed- soc.org/audio/2006lawcon/SpecterAddress-11-17-06.mp3).

32. 5 U.S. 137 (1803). 33. For an account of the brutal and near hysterical political squabble, see Larry

D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 114–121 (2004).

34. U.S. Const. art. I, § 2, cl. 1. 35. Federalist No. 68, at 380 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 36. U.S. Const. amend. XV. 37. Id. amend. XIX. 38. Id. amend XXVI. 39. Id. amend. XVII. 40. Id. amend. XXIV. 41. Id. art. I., § 7, cl. 2. 42. The chief exponent of this unwise proposal is Sanford Levinson, Framed:

America’s 51 Constitutions and the Crisis of Governance (2012). 43. John Rawls, A Theory of Justice (1971); this theme occurs before the Founding

as well in, for example, Adam Smith, A Theory of Moral Sentiments 134 (D. D. Raphael & A. L. Macfi e eds., 1976) (1759), which stresses the critical role for the “impartial observer.”

44. Tariff Act of 1930 (Smoot-Hawley Tariff), Pub. L. No. 71-361, 46 Stat. 590 (codifi ed as amended at 19 U.S.C. §§ 1202–1683g (2006)). “The Econ- omists’ Tariff Protest of 1930” can be found at 4(3) Econ. Journal Watch 345 (Sept. 2007), available at http://econjwatch.org/articles/economists- against-smoot-hawley. The lead authors of that letter included Paul H. Douglas, then at the University of Chicago, and Irving Fisher, then at Yale University. For a balanced modern appraisal of its harm, see “The Battle of Smoot-Hawley: A Cautionary Tale about How a Protectionist Measure Opposed by All Right-Thinking People Was Passed,” The Economist (Dec. 18, 2008), available at http://www.economist.com/node/12798595.

45. Tom Doggett, “Senate Vote Marks Start of End for Ethanol Subsidies,” Reuters (Jan. 16, 2011), available at http://www.reuters.com/article/2011/06/16/ us-usa-senate-ethanol-idUSTRE75F5IN20110616.

46. Charles Beard, An Economic Interpretation of the Constitution (1913).

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Notes to Pages 31–36 589

47. For discussion, see Forrest McDonald, We the People, The Economic Origins of the Constitution (1958).

48. U.S. Const. art. I, § 10, cl. 2. 49. Id. art. IV, § 2, cl. 1. 50. Id. art. I, § 2, cl. 3. 51. Federalist No. 54, at 304 (James Madison) (Clinton Rossiter ed., 1999). 52. U.S. Const. art. IV, § 2, cl. 3: “No person held to service or labour in one

state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

53. See John R. Vile, The Constitutional Convention of 1787: A Comprehensive Encyclo- pedia of America’s Founding 180–181 (2005).

54. See id. 55. See id. Alexander Hamilton also had a plan that included two houses, one

whose members were elected for three-year terms and the second whose members served for life or at least on good behavior. Hamilton, supra note 19, at 282–83.

56. U.S. Const. art. I, § 2. 57. Id. art. I, § 3. 58. Id. art. II, § 1. 59. See Lynn Baker, “The Spending Power and the Federalist Revival,” 4 Chap-

man L. Rev. 195 (2001).

2. The Progressive Response

1. Pub. L. No. 93-205, 87 Stat. 884 (codifi ed as amended at 16 U.S.C. §§ 1531– 1544 (2006)).

2. Created in 1970 by executive order. Reorganization Plan No. 3 of 1970, 3 C.F.R. § 199 (1970), reprinted as amended in 42 U.S.C. § 4321 (2006).

3. Pub. L. No. 91-596, 84 Stat. 1590 (codifi ed as amended at 29 U.S.C. §§ 651– 678 (2006)).

4. Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829 (codifi ed as amended in scattered sections of 26 and 29 U.S.C.).

5. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005). 6. Id. at 19–20. 7. Id. at 33. 8. Id. at 20, 25. 9. Id. at 7–8. 10. Robert Stern, “The Commerce Clause and the National Economy, 1933–

1946,” 59 Harv. L. Rev. 645 (1946) (part 2 at 883). 11. Id. at 946. 12. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) (allowing

treble damages under the Sherman Act against oil company practices that the government had previously urged Socony to undertake). For a fuller

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590 Notes to Pages 37–47

account, see Daniel Crane, “The Story of United States v. Socony-Vacuum: Hot Oil and Antitrust in the Two New Deals” in Antitrust Stories (Daniel Crane & Eleanor Fox eds., 2007).

13. 304 U.S. 144, 152 n.4 (1938). 14. See Clayton Act, ch. 323, § 6, 38 Stat. 730, 731 (1914) (codifi ed at 15 U.S.C.

§ 17 (2001)). 15. See Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 16. Block v. Hirsh, 256 U.S. 135 (1921). 17. 295 U.S. 495 (1935). For an exhaustive account of the Schechters’ travails,

see Amity Shlaes, The Forgotten Man (2007). To his credit, Justice Brandeis was a member of the unanimous court that struck this statute down.

18. E.g., Agricultural Adjustment Act of 1933, ch. 25, Title I, 48 Stat. 31 (codifi ed at 7 U.S.C. §§ 601–27).

19. Michael Wachter, “Labor Unions: A Corporatist Institution in a Competitive World,” 155 U. Pa. L. Rev. 581, 583 (2007).

20. Adolf Berle & Gardner Means, The Modern Corporation and Private Property 357 (1932).

21. Adolf A. Berle, Jr., “For Whom Corporate Managers Are Trustees: A Note,” 45 Harv. L. Rev. 1365, 1372 (1932).

22. Woodrow Wilson, Congressional Government: A Study in American Politics 187 (1956) (fi rst published in 1885).

23. James Landis, The Administrative Process 11–12 (1938). 24. Daryl J. Levinson & Richard H. Pildes, “Separation of Parties, Not Powers,”

119 Harv. L. Rev. 2311 (2006). 25. See Federalist No. 51 (James Madison) (Clinton Rossiter ed., 1999). 26. For the move, see Joseph F. Mahoney, “Backsliding Convert: Woodrow Wil-

son and the ‘Seven Sisters,’” 18 Am. Q. 71 (1966). The “seven sisters” refers to the large oil companies of the time.

27. See infra Chapter 15 (“The Dormant Commerce Clause”). 28. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935). 29. W. Lynn Creamery v. Healy, 512 U.S. 186 (1994).

3. Constitutional Interpretation

1. Antonin Scalia, “Common Law Courts in a Civil Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws,” in A Matter of Interpretation: Federal Courts and the Law 17, 38 (Amy Gutmann ed., 1997).

2. U.S. Const. art. 1, § 8, cl. 11. See generally Theodore M. Cooperstein, “Let- ters of Marque and Reprisal: The Constitutional Law and Practice of Priva- teering,“ 40 J. Maritime L. & Commerce 221 (2009).

3. For further discussion, see infra Chapter 20 (“Procedural Due Process: Imple- menting the Classical Liberal Ideal”).

4. See, Chapter 20 infra.

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Notes to Pages 48–59 591

5. For discussion, see Richard A. Epstein & Michael S. Greve, “Conclusion: Pre- emption Doctrine and its Limits,” 309, 312–315, in R. Epstein & M. Greve eds. Federal Preemption: States’ Powers, National Interests (2007).

6. For the parallels, with references to Roman law, see Richard A. Epstein, “A Common Lawyer Looks at Constitutional Interpretation,” 72 Bost U. L. Rev. 699 (1992).

7. 25 U.S. 419 (1827). 8. Id. at 445. 9. Lochner v. New York, 198 U.S. 45, 53 (1905). 10. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon

the Legislative Power of the States of the American Union (1868). He does not use the words “police power” but the interaction between legislative power and constitutional limitations lies at the center of his inquiry.

11. Christopher G. Tiedeman, A Treatise on the Limitations of the Police Power in the United States (1886).

12. Ernst Freud, The Police Power, Public Policy and Constitutional Rights (1904). 13. Near v. Minnesota, 283 U.S. 697 (1931). 14. New York Times v. United States, 403 U.S. 713, 734 (1971). 15. Ludwig Wittgenstein, Philosophical Investigations, ¶ 70 (G. E. M. Anscombe

trans., 1958): “Someone says to me ‘Shew the children a game.’ I teach them gaming with dice, and the other says ‘I didn’t mean that sort of game.’ Must the exclusion of a game with dice come before his mind when he gave me the order.”

16. Justinian Digest, IX, 2, which can be found in F. H. Lawson, Negligence in the Civil Law (1950).

17. Richard A. Epstein, “A Common Lawyer Looks at Constitutional Interpreta- tion,” 72 B.U. L. Rev. 699 (1992) (developing the parallels in detail).

18. Louis Michael Seidman, “Let’s Give Up on the Constitution,” New York Times, December 30, 2013. For a more complete statement of Seidman’s views, see Louis Michael Seidman, On Constitutional Disobedience (2013).

19. Jack M. Balkin, Living Originalism 3 (2011). 20. Antonin Scalia, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849 (1988). 21. For more detailed discussion, see infra at Chapters 9 through 13. 22. For discussion, see, e.g., Thomas W. Merrill, “Bork v. Burke,” 19 Harvard J.L.

& Pub. Pol. 509 (1996); Cass R. Sunstein, “Burkean Minimalism,” 105 Mich. L. Rev. 353 (2006).

23. “English Bill of Rights: An Act Declaring the Rights and Liberties of the Sub- ject and Settling the Succession of the Crown,” available at http://15.law. yale.edu/17th_century/england.asp.

24. Scalia, supra note 20, at 862. 25. 408 U.S. 238 (1932). 26. 428 U.S. 153 (1976). 27. U.S. Const. amend. V. 28. 132 S. Ct. 2455, 2463 (2012) (internal quotation marks omitted).

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592 Notes to Pages 59–66

29. Id. at 2460 (internal citations and quotation marks omitted). 30. 543 U.S. 551 (2005). 31. 130 S. Ct. 2011 (2010). 32. 433 U.S. 584 (1977). 33. 554 U.S. 407 (2008). 34. The point was missed by everyone involved in the case until it was discovered

by Dwight Sullivan, who summarized the situation as follows: “Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides ‘[u]ntil the President otherwise provides pursuant to’ UCMJ [Uniform Code of Military Justice] article 56, ‘the punishment which a court-martial may direct for an offense under’ the amended UCMJ article 120 ‘may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.’” Dwight Sullivan, “The Supremes Dis the Military Justice System,” CAAFlog (Jun. 28, 2008), available at http://caafl og.blogspot. com/2008/06/supremes-dis-military-justice-system.html.

35. 132 S. Ct. 2455 (2012). 36. 128 S. Ct. 2783 (2008). 37. D.C. Code § 7-2507.02 (2012). 38. 128 S. Ct. 2821–2822. 39. U.S. Const. amend. II. 40. 307 U.S. 174 (1939). 41. Ch. 757, 48 Stat. 1236 (1934). 42. U.S. Const. art. I, § 8, cl. 16, 17. 43. Miller, 307 U.S. at 178. 44. See Chapter 11 (“The Commerce Clause: Transformation and Consolidation:

1937 to 1995”). 45. U.S. Const. art. I, § 8, cl. 18. 46. 32 U.S. 243 (1833). 47. Heller, 128 S. Ct. at 2823. 48. Id. at 2790. 49. § XIII, in 5 Thorpe 3082, 3083 (emphasis added), quoted in Heller, 128 S. Ct.

at 2802. 50. Miller, 307 U.S. at 178 51. Heller, at 2800. 52. Id. 53. Heller, 128 S. Ct. at 2800, citing Eugene Volokh, “Necessary to the Security

of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007). 54. Id at 2816. 55. Id. at 2621. 56. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011). 57. 638 F.3d 458, 475 (4th Cir. 2011). 58. Id. 475. 59. 701 F.3d 81 (2d Cir. 2012) (Wesley, J.).

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Notes to Pages 66–79 593

60. N.Y. Penal Law § 400.00(2)(f) (McKinney 2013). 61. 702 F.3d 933 (7th Cir. 2012) (Posner, J.). 62. Id. at 941. 63. 720 Ill. Comp. 5/24-1, 5/24-1.6 (West 2013). 64. 702 F.3d 941. 65. 130 S. Ct. 3020. 66. For more detailed accounts of the Fourteenth Amendment, see infra Chap-

ters 33 (“Race and the Fourteenth Amendment”) and 34 (“Citizenship and the Fourteenth Amendment”).

67. 83 U.S. 36 (1873). 68. 130 S. Ct. 3028–3031. 69. Id. at 3031–3036. 70. Id. at 3036. 71. Id. at 3036–3042. 72. 92 U.S. 542 (1876). 73. Id. at 553. 74. 6 F. Cas. 546 (C.C.E.D.Pa. 1823) (No. 3,230). 75. 5 U.S. 137 (1803), discussed infra Chapter 4 (“The Origins of Judicial

Review”). 76. 14 U.S. 304 (1816), discussed infra Chapter 4 (“The Origins of Judicial

Review”). 77. 262 U.S. 447 (1923). 78. 163 U.S. 537 (1896), discussed infra Chapter 33 (“Race and the Fourteenth

Amendment”). 79. 83 U.S. 36 (1873). 80. 92 U.S. 542 (1876).

4. The Origins of Judicial Review

1. 5 U.S. 137 (1803). 2. 60 U.S. 393 (1857). 3. 163 U.S. 537 (1896). 4. 323 U.S. 214 (1944). 5. 317 U.S. 111 (1942). 6. 410 U.S. 113 (1973). 7. 545 U.S. 469 (2005). 8. For an earlier statement of this position, see Richard A. Epstein, “Substantive

Due Process by Any Other Name: The Abortion Cases,” 1973 Sup. Ct. Rev. 159.

9. See infra Chapter 15 (“The Dormant Commerce Clause”). 10. For the canonical critique of the decision, see Alexander M. Bickel, The Least

Dangerous Branch 1–14 (1962). 11. Id. at 12–14. 12. Id. at 7–10.

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594 Notes to Pages 79–91

13. Thomas Jefferson, Letter to Abigail Adams, Sept. 11, 1804, 8 Writings of Thomas Jefferson 310 (M. Ford ed., 1897).

14. Lincoln First Inaugural Address, Mar. 4, 1861, in 6 Messages and Papers of the Presidents 5 (J. Richard ed., 1900).

15. See, e.g., Underhill v. Hernandez, 168 U.S. 250, 252 (1897) (“[T]he courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”).

16. U.S. Const. amend. V. 17. Id. art. I, § 9, cl. 2. 18. See Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 19. U.S. Const. art. III, § 1. 20. John Locke, Second Treatise of Government, §§ 149, 227 (1690), available at

http://www.ilt.columbia.edu/academic/digitexts/locke/second/locke2nd. txt.

21. Baron de Montesquieu, The Spirit of Laws (J. V. Prichard ed., Thomas Nugent trans., 1914), available at http://www.constitution.org/cm/sol.txt.

22. For discussion of this and other similar issues, see Philip Hamburger, “Law and Judicial Duty,” 72 Geo. Wash. L. Rev. 1, 22–23 (2003).

23. 77 Eng. Rep. 638 (C.P. 1610). 24. Id. at 652. 25. 1 William Blackstone, Commentaries of the Law of England 91 (1965). 26. Id. at 160.

5. Marbury and Martin

1. John Manning, “Separation of Powers as Ordinary Interpretation,” 124 Harv. L. Rev. 1939, 1944 (2011).

2. U.S. Const. art. III, §§ 1–2. 3. Marbury v. Madison, 5 U.S. 137 (1803). 4. U.S. Const. art. III, § 1, cl. 2. It was later held that the grant of original juris-

diction in these cases did not preclude appellate jurisdiction over persons regarding whom the Supreme Court had original jurisdiction. See United States v. Ravara, 2 U.S. 297, 298–299 (1793).

5. Philip Hamburger, Law and Judicial Duty ch. 13 (2008). 6. See William W. Crosskey, 2 Politics and the Constitution in the History of the

United States 969–971 (1953). 7. Id.; Hamburger, supra note 5, at 422–435. 8. Marbury, 5 U.S. at 180. 9. Id. at 177. 10. Id. 11. Federalist No. 78, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 12. Id. at 433–434 (Alexander Hamilton), citing Montesquieu, The Spirit of Laws

156 (Thomas Nugent trans., 1899), available at http://archive.org/details/ spiritofl aws01montuoft.

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Notes to Pages 91–102 595

13. U.S. Const. art. III, § 3. 14. Id. art. I, § 9, cl. 3. 15. Id. at cl. 5. 16. See Crosskey, supra note 6, at 969–971. 17. U.S. Const. art. III, § 2, cl. 2. 18. See, e.g., Henry Hart, “The Power of Congress to Limit the Jurisdiction of

Federal Courts: An Exercise in Dialectic,” 66 Harv. L. Rev. 1362, 1365 (1953). But see Herbert Wechsler, “The Courts and the Constitution,” 65 Colum. L. Rev. 1001, 1005–1007 (1965) (arguing that the federal courts, including the Supreme Court, “do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police the other agencies of government. They do so rather for the reason that they must decide a litigated case that is otherwise within their jurisdiction and in so doing must give effect to the supreme law of the land. That is, at least, what Marbury v. Madison was all about.”).

19. 1 Stat. 577, ch. 66. The act expired on March 3, 1801, the last day of the John Adams administration.

20. As reported by 1 Horace Greeley, The American Confl ict, A History of the Great Rebellion in the United States of America 106 (1864).

21. 2 Messages and Papers of the Presidents 582 (J. Richardson ed., 1896). 22. Federalist No. 78, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 23. David P. Currie, “The Constitution in the Supreme Court: The Powers of the

Federal Courts, 1801–1835,” 49 U. Chi. L. Rev. 646, 686 (1982). 24. 358 U.S. 1 (1958). 25. Marbury, 5 U.S. at 177. 26. 347 U.S. 483 (1954), discussed infra Chapter 33 (“Race and the Fourteenth

Amendment”). 27. 14 U.S. (1 Wheat.) 304 (1816). 28. Treaty of Paris art. 5, U.S.-Gr. Brit., Sep. 13, 1783, 8 Stat. 80. 29. U.S. Const. art. VI, § 2. 30. Martin, 14 U.S. at 348. 31. See, e.g., Brief for Senator Arlen Specter, as Amicus Curiae Supporting Peti-

tioners at 4, Boumediene. v. Bush, 553 U.S. 723, 128 S. Ct. 2229 (2008) (Nos. 06-1195 and 06-1196) (the “[Supreme] Court should hold that the MCA’s attempt to curtail the Guantanamo detainees’ access to habeas corpus is con- stitutionally infi rm”).

32. See, for an attack on these aggressive uses of constitutional law to redistrib- ute wealth, Ralph K. Winter, Jr., “Poverty, Economic Equality, and the Equal Protection Clause,” 1972 Sup. Ct. Rev. 41 (1972).

6. Standing

1. Marbury v. Madison, 5 U.S. 137 (1803). 2. U.S. Const. art. I, § 3, cl. 6.

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596 Notes to Pages 102–108

3. Id. 4. Id. art. I, § 5, cl. 1. 5. Id. art. I, § 6, cl. 1. 6. Id. art. IV, § 3. 7. Coleman v. Miller, 307 U.S. 433 (1939). 8. For an example of the modern view, see Jeremy Waldron, “The Core of the

Case against Judicial Review,” 115 Yale L.J. 1346 (2006). 9. Letter of the Supreme Court to President George Washington (1793), Docu-

ments in Early American History, available at http://courses.missouristate.edu/ ftmiller/letteradvisoryopin.htm.

10. 2 U.S. 402 (1792). 11. Id. at 413. 12. U.S. Const. art. III, § 2, cl. 1. 13. In re Chrysler LLC, 576 F.3d 108 (2d Cir. 2009). This decision was later dis-

missed as moot for reasons that were never explained. Ind. State Police Pension Trust v. Chrysler LLC, 130 S. Ct. 1015 (mem) (2009).

14. For an account of the tangled history, see Lyle Denniston, “U.S. Says TARP Issue Out of Court’s Reach,” SCOTUSblog (Jun. 8, 2009), available at http:// www.scotusblog.com/2009/06/us-says-tarp-issue-out-of-courts-reach.

15. 262 U.S. 447 (1923) (consolidated actions). 16. 67 Pub. L. No. 97, 42 Stat. 224 (1921), ch. 135. 17. U.S. Const art. I, § 8, cl. 1, discussed infra Chapter 13 (“Enumerated Powers:

Taxing and Spending”). 18. William A. Fletcher, “The Structure of Standing,” 98 Yale L.J. 221, 229

(1988). 19. David P. Currie, “Misunderstanding Standing,” 1981 Sup. Ct. Rev. 41, 43

(1981). 20. 504 U.S. 555 (1992). 21. Id. at 560–561 (alterations in original) (internal citations omitted). There are

some doubts whether the word “legally” belongs before “protected” in this formulation. See Judicial Watch, Inc. v. U.S. Senate, 432 F.3d 359, 363 (D.C. Cir. 2005) (refusing to allow a challenge to the three-fi fths fi libuster rule in the Senate on the ground that there was no connection between delays in fi lling seats and delays in deciding cases). The simpler ground on the merits is that these rules are matters for the Senate to decide for itself.

22. See, e.g., Restatement (Second) of Torts § 693. 23. Pruitt v. Allied Chem. Corp., 523 F. Supp. 975 (E.D. Va. 1981) (allowing suits

by marina, boat, tackle, and bait shop owners, but not their wholesalers and retailers, for kepone spill in James River and Chesapeake Bay).

24. Lujan, 504 U.S. at 559. 25. U.S. Const. art. III, § 2, cl. 1. 26. For the early history of advisory opinions in England and the United States,

see Philip Hamburger, Law and Judicial Duty 151–154, 371–377, 522–526, 597–600 (2008).

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Notes to Pages 108–116 597

27. See generally, Note, “The Mootness Doctrine in the Supreme Court,” 88 Harv. L. Rev. 373 (1974).

28. S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). 29. 410 U.S. 113 (1973). 30. Id. at 125–127. 31. 330 U.S. 75 (1947). 32. Cass R. Sunstein, “What’s Standing after Lujan? Of Citizen Suits, “Injuries,”

and Article III,” 91 Mich. L. Rev. 163, 187 (1992) (emphasis added). For sim- ilar work in this vein, see Cass R. Sunstein, “Standing and the Privatization of Public Law,” 88 Colum. L. Rev. 1432 (1988). See also Steven L. Winter, “The Metaphor of Standing and the Problem of Self-Governance,” 40 Stan. L. Rev. 1371 (1988).

33. Anon. 87 Eng. Rep. 791 (K.B. 1703). For a discussion of these private rights of action in modern times, see Cort v. Ash, 422 U.S. 66 (1975).

34. For the canonical account of the English history, see F. W. Maitland, Equity: A Course of Lectures (A. H. Chaytor & W. J. Whittaker eds., 1909). For the ultimate American acceptance of the need for equity courts, see Hamburger, discussed supra Chapter 5 (“Marbury and Martin”).

35. For discussion, see id. 36. See, e.g., Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916) (suit against board of

trustees to enjoin income tax proper). 37. 101 U.S. 601 (1879). 38. Id. at 609; see also Miller v. Grandy, 13 Mich. 540, 550 (1865). 39. See John F. Dillon, Municipal Corporations § 1580 et seq. (5th ed., 1911), for

the relevant authorities. 40. U.S. Const. art. I, § 8, cl. 1. 41. 259 U.S. 20 (1922). 42. Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 480 (1923). 43. Id. at 487. 44. 198 U.S. 45 (1905), discussed infra Chapter 21 (“Freedom of Contract”). 45. For the thesis, see Sunstein, “Standing and the Privatization of American

Law,” supra note 32, at 1433. At other times Sunstein appears to back off this thesis in favor of a view that attributes the success of standing to an uneasy alliance between conservative and liberal judges, where the former tend to reify a narrow version of common law rights, and the latter want to insulate political decisions from judicial oversight. See also Steven L. Winter, “The Metaphor of Standing and the Problem of Self-Governance,” 40 Stan. L. Rev. 1371 (1988). For the critique of the “fragile” empirical foundations of the thesis, see Daniel E. Ho & Erica L. Ross, “Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921–2006,” 62 Stan. L. Rev. 1, 1–2 (2010). Note that Ho and Ross do not sys- tematically separate out constitutional from administrative standing cases.

46. See 302 U.S. 464, 479 (1938); see also Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118 (1939); Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936).

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598 Notes to Pages 116–123

47. 306 U.S. 118 (1939). 48. Id. at 140. 49. 297 U.S. 288, 320–322 (1936). 50. 309 U.S. 470 (1940). 51. 73 Pub. L. No. 416, ch. 652, 48 Stat. 1064 (1934). 52. This entire system of FCC licensing has massive substantive drawbacks when

measured against a system of private property rights over the spectrum. For the classic exposition, see Ronald H. Coase, “The Federal Communications Commission,” 2 J. Law & Econ. 1 (1959). The diffi culties include the want of standards to decide who should get the license and the inability to switch uses of the bandwidth without government approval.

53. Administrative Procedure Act, 79 Pub. L. No. 404, 60 Stat. 237 (1946). 54. APA, 5 U.S.C. § 702.

7. Modern Standing Law

1. See Daniel E. Ho & Erica L. Ross, “Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921–2006,” 62 Stan. L. Rev. 1, 2–3 (2010).

2. 418 U.S. 166 (1974). 3. 418 U.S. 208 (1974). 4. See, for elaboration, Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S.

150, 153 (1970); for application, Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) (allowing security industry to protest bank entry into the brokerage business).

5. 467 U.S. 340 (1984). 6. 369 U.S. 186 (1962). For the discussion of the political question doctrine, see

infra Chapter 8 (“The Political Question Doctrine”). 7. Baker, 369 U.S. at 208. 8. Marbury v. Madison, 5 U.S. 137, 163 (1803). 9. 330 U.S. 1 (1947). 10. 392 U.S. 83 (1968). 11. Pub. L. 89-10, 79 Stat. 27, 20 U.S.C. ch. 70. 12. Flast, 392 U.S. at 102–103. 13. Id. at 103. 14. See supra Chapter 6 (“Standing: Background and Origins”). The now-dis-

carded limitations on direct taxes were put into the original Constitution precisely to prevent Congress from imposing taxes that transferred wealth from rich to poor states. See Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 601 (1895) (holding that the income tax on property was a direct tax that had to be apportioned among the states under U.S. Const. art. I, § 9, cl. 4). That decision was overturned by the Sixteenth Amendment. Note that Pollock was a suit, like Brushaber, that allowed shareholders of a corporation to sue its directors to demand that they resist the imposition of an illegal tax.

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Notes to Pages 123–129 599

15. 454 U.S. 464 (1982). 16. Id. at 472. See, for a defense of this position, R. Lea Brilmayer, “The Juris-

prudence of Article III: Perspectives on the ‘Case or Controversy’ Require- ment,” 93 Harv. L. Rev. 297 (1979), and, for a response, Mark H. Tushnet, “The Sociology of Article III: A Response to Professor Brilmayer,” 93 Harv. L. Rev. 698 (1980). My sympathies lie with Tushnet, notwithstanding the major differences in our substantive views of constitutional law.

17. 551 U.S. 587 (2007). 18. Id. at 619. 19. 131 S. Ct. 1436 (2011). 20. Id. at 1441. 21. Id. at 1447 (quoting Flast, 392 U.S. at 106). 22. Id. at 1450. 23. 405 U.S. 727 (1972). 24. 504 U.S. 555, 560 (1992). For discussion, see Cass R. Sunstein, “What’s

Standing after Lujan? Of Citizen Suits, Injuries, and Article III,” 91 Mich. L. Rev. 163 (1992).

25. Endangered Species Act of 1973, 93 Pub. L. No. 205, 87 Stat. 884, as amended 16 U.S.C. § 1531 et seq.

26. Id. § 1536. 27. “Any person may commence a civil suit on his own behalf (A) to enjoin any

person, including the United States and any other governmental instrumen- tality or agency . . . who is alleged to be in violation of any provision of this chapter.” 16 U.S.C. § 1540(g).

28. Lujan, 504 U.S. at 560–562. 29. For the modern framework, see, e.g., Fed. R. Civ. P. 19(a). For a general dis-

cussion, see Fleming James, Jr., et al., Civil Procedure § 10.11 (5th ed. 2001). 30. See e.g., Lumley v. Wagner, 42 Eng. Rep. 687 (Ex. 1852) (denying specifi c

performance but allowing an injunction against working for third parties). 31. See, Lumley v. Gye, 118 Eng. Rep. 749 (K.B. 1853). For the modern formula-

tion, see Restatement Second of Torts, § 766 (1977). 32. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)

(announcing rule of deference without citing or discussing § 706 of the APA).

33. APA 5 U.S.C. § 706: “To the extent necessary to decision and when pre- sented, the reviewing court shall decide all relevant questions of law, inter- pret constitutional and statutory provisions, and determine the meaning or applicability of the terms of agency action.”

34. See Allen v. Wright, 468 U.S. 737 (1984) (in which standing was denied on the ground that the claimed decline in educational advantage could not be traced to the racial exclusion of these schools—i.e., the causation prong).

35. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) (indigent organizations lack standing to challenge hospital charitable exemptions).

36. 549 U.S. 497 (2007).

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600 Notes to Pages 129–140

37. 42 U.S.C. § 202. 38. 262 U.S. 447 (1923). 39. 549 U.S. at 520 n.17. 40. Pub. L. No. 67-97, 42 Stat. 224 (1921). 41. 42 U.S.C. § 7521(a)(1) (2006) (emphasis added). 42. Richard A. Epstein, “Carbon Dioxide: Our Newest Pollutant,” 43 Suffolk L.

Rev. 797 (2010). 43. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (deal-

ing with provisions for citizen suits under the Emergency Planning and Community Right-To-Know Act).

8. The Political Question Doctrine

1. 5 U.S. 137 (1803). 2. Id. at 166. 3. Id. 4. German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 406 (1915). 5. Baker v. Carr, 369 U.S. 186, 217 (1962). For similar sentiments, see Japan

Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 330 (1986) (“exclud[ing] from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confi nes of the Executive Branch”). The interpreta- tion of treaties did not fall into that class.

6. Int’l Ass’n of Machinists and Aerospace Workers (IAM) v. OPEC, 649 F.2d 1354 (9th Cir. 1981). Then Professor Antonin Scalia was counsel for OPEC in this case.

7. U.S. Const. art. IV, § 4. 8. Id. art. II, § 2, cl. 1. “The President shall be Commander in Chief of the Army

and Navy of the United States, and of the Militia of the several States, when called into the active Service of the United States.” See also art. I, § 8, cl. 15: “Congress shall have the Power . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel invasions.”

9. 48 U.S. 1 (1849). 10. E.g., id. at 39: “Certainly, the question which the plaintiff proposed to raise

by the testimony he offered has not heretofore been recognized as a judicial one in any of the State courts.”

11. Id. at 40. For some of the complexities, see David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888 at 252–257 (1985).

12. 48 U.S. at 38–39. 13. 223 U.S. 118 (1912). 14. For one review, see Robert Cooter, The Strategic Constitution (2000). 15. 369 U.S. 186 (1962). 16. 2 Will. 4, c. 45 (1832). 17. 369 U.S. at 222. 18. Id. at 226.

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Notes to Pages 140–155 601

19. U.S. Const. amend 14, § 5. 20. 369 U.S. at 302–303. 21. 377 U.S. 533 (1964). 22. Id. at 562. 23. Gaffney v. Cummings, 412 U.S. 735, 754 (1973). 24. See, for example, Veith v. Jubelirer, 541 U.S. 267 (2004), with a sharp division

of opinion on the justiciability of these cases.

9. The Commerce Power

1. U.S. Const. art. 1, § 8, cl. 3. 2. Federalist No. 45 (James Madison) (Clinton Rossiter ed., 2009). 3. John Locke, The Second Treatise of Government ¶ 123, at 67 (C. B. McPherson

ed., 1980) (1690). 4. 1–3 Adam Smith, The Wealth of Nations 109 (Andrew S. Skinner ed., Penguin

Classics, 1986 [1776]). 5. Jack Balkin, Living Originalism 151 (2011). 6. See Vicki Been, “‘Exit’ as a Constraint on Land Use Exactions: Rethinking

the Unconstitutional Conditions Doctrine,” 91 Colum. L. Rev. 473 (1991). For comments on the limits of the exit power, see Richard A. Epstein, “Exit Rights under Federalism,” 55 Law & Contemp. Prob. 147 (1992).

7. See Michael Heller, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (2008).

8. Treaty of Westphalia, Holy Rom. Emp.-Fr., art. LXIX, LXXXIX (Oct. 14, 1648), available at http://avalon.law.yale.edu/17th_century/westphal.asp.

9. One early reference is to Sir Matthew Hale, De Portibus Maris (Concerning the Gates of the Sea). Hale lived from 1609 to 1676 and was published post- humously in the 1780s. Hale’s views on regulation were adopted in Allnutt v. Inglis, 104 Eng. Rep. 206 (K.B. 1810), from which they were incorporated into American constitutional law in Munn v. Illinois, 94 U.S. 113, 126–129 (1876). For a discussion, see Richard A. Epstein, Principles for a Free Society: Reconciling Individual Liberty with the Common Good 282–285 (1998).

10. See infra Chapter 10 (“The Commerce Clause in Transition: 1865–1937”). 11. 22 U.S. 1 (1824). 12. 9 Johns. 507 (N.Y. 1812). 13. Gibbons, 22 U.S. at 194. 14. Id. at 190. 15. Id. at 194. 16. Id. at 203. 17. Id. at 193–194. 18. Federalist No. 11 (Alexander Hamilton) (Clinton Rossiter ed., 1999). For elab-

oration, see Richard A. Epstein, “A Most Improbable 1787 Constitution: A Mostly Originalist Critique of the Constitutionality of the ACA” 28, 32–37, in The Health Care Case: The Supreme Court’s Decision and Its Implications (Nathaniel

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602 Notes to Pages 156–165

Persily, Gillian E. Metzger & Trevor Morrison eds., 2013). See also, the dis- cussion of Hammer v. Dagenhart, 247 U.S. 251 (1918), which is discussed further in ch. 10, infra.

19. Joseph Story, Commentaries on the Constitution of the United States (Ronald D. Rotunda & John E. Nowak eds., abridged ed., 1987) (1833) [hereinafter Story, Commentaries].

20. Corfi eld v. Coryell, 6 F. Cas. 546 (E.D. Pa. 1823). 21. Id. at 550. 22. See infra Chapter 15 (“The Dormant Commerce Clause”). 23. Gibbons, 22 U.S. at 190. 24. 48 U.S. 283 (1849). 25. Id. at 400. 26. U.S. Const. art. I, § 9, cl. 1.

10. The Commerce Clause in Transition

1. 128 U.S. 1 (1888). 2. Id. at 21–23. 3. Id at 21. 4. 156 U.S. 1, 14 (1895). 5. Id. at 13. 6. 175 U.S. 211 (1899). 7. 21 U.S.C. §§ 1–15. 8. 268 U.S. 295 (1925). 9. Coronado Coal, 268 U.S. at 310. 10. 310 U.S. 469 (1940). 11. The Daniel Ball, 77 U.S. 557 (1870). 12. Id. at 565. 13. See Second Employer’s Liability Cases (Mondou v. N.Y., New Haven, & Hartford

R.R.), 223 U.S. 1 (1912). See also, in the same vein, S. Ry. Co. v. United States, 222 U.S. 20 (1911), upholding the Safety Appliance Act.

14. 258 U.S. 495 (1922). 15. 118 U.S. 557 (1886). 16. Ch. 104, 24 Stat. 379 (1887). 17. Houston E. & W. Tex. Ry. Co. v. United States (Shreveport Rate Cases), 234 U.S. 342

(1914) (consolidating several appeals). 18. Id. at 351–352. 19. 37 U.S. 72 (1838). 20. See Wis. R.R. Comm’n v. Chicago, Burlington & Quincy R.R., 257 U.S. 563

(1922). 21. 188 U.S. 321 (1903). 22. Brooks v. United States, 267 U.S. 432, 436 (1925). 23. See, e.g., Louis Kaplow, “Extension of Monopoly Power through Leverage,”

85 Colum. L. Rev. 515 (1985), and for a recent guide, Warren S. Grimes, Tying:

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Notes to Pages 165–169 603

Requirements Ties, Effi ciency and Innovation, Testimony on Single-Firm Conduct and Antitrust Law, before Department of Justice and Federal Trade Commis- sion (2006), available at http://www.justice.gov/atr/public/hearings/single _fi rm/comments/219982.htm.

24. See Hipolite Egg Co. v. United States, 220 U.S. 45 (1911). 25. Hoke v. United States, 227 U.S. 308 (1913). 26. Without going into exhaustive detail, the basic position is this: “The WTO’s

agreements permit members to take measures to protect not only the envi- ronment but also public health, animal health and plant health. However, these measures must be applied in the same way to both national and foreign businesses. In other words, members must not use environmental protection measures as a means of disguising protectionist policies.” World Trade Orga- nization, What We Stand For, available at http://wto.org/english/thewto_e/ whatis_e/what_stand_for_e.htm.

27. 247 U.S. 251 (1918). 28. See Benjamin Powell, No Sweat: How Sweatshops Improve Lives and Economic

Growth (2011), for the frightening and gory details. 29. Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922).

11. The Commerce Clause

1. Federal Trade Commission Act of 1914, 15 U.S.C. § 41 (2006). 2. Radio Act of 1927, Pub. L. No. 632, 44 Stat. 1172. 3. 256 U.S. 135 (1921). 4. 272 U.S. 365 (1926). 5. See Department of Commerce, Standard State Zoning Enabling Act; Depart-

ment of Commerce, Standard City Planning Enabling Act. Both acts are available at http://www.planning.org/growingsmart/enablingacts.htm.

6. New York 1916 Zoning Resolution, discussed in New York City Department of City Planning, About Zoning, available at http://www.nyc.gov/html/dcp/ html/zone/zonehis.shtml.

7. Pub. L. No. 73-90, 48 Stat. 195 (1933). 8. 295 U.S. 495 (1935). For an exhaustive account of the Schechters’ travails,

see Amity Shlaes, The Forgotten Man: A New History of the Great Depression (2007). To his credit, Justice Brandeis was one member of the unanimous court that struck this statute down.

9. 295 U.S. at 521–523. 10. Id. at 546. 11. Kidd v. Pearson, 128 U.S. 1 (1888). 12. Houston E. & W. Tex. Ry. Co. v. United States, 234 U.S. 342 (1914). 13. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 (1925). 14. Schechter Poultry, 295 U.S. at 548. 15. For a sympathetic account of the Supreme Court’s action to give guidance to

the Roosevelt Administration, see Barry Friedman, The Will of the People (2009).

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604 Notes to Pages 169–176

16. Pub. L. No. 74-198, 49 Stat. 449 (codifi ed as amended at 29 U.S.C. §§ 151– 169 (2006)).

17. 301 U.S. 1 (1937). 18. Agricultural Adjustment Act of 1933 (Emergency Agricultural Relief Act),

ch. 25, Pub. L. No. 73-10, 48 Stat. 31; Agricultural Adjustment Act of 1935, §§ 1–62, 49 Stat. 750; Agricultural Adjustment Act of 1937, ch. 296, 50 Stat. 246; Agricultural Adjustment Act of 1938 (Cooley Tobacco Act), ch. 30, Pub. L. No. 75-430, 52 Stat. 31.

19. 317 U.S. 111 (1942). 20. Pub. L. No. 75-718, 52 Stat. 1060 (codifi ed as amended at 29 U.S.C. § 201). 21. 312 U.S. 100 (1941). 22. Ch. 372, 49 Stat. 449 (1935). 23. 29 U.S.C. § 160. 24. Jones & Laughlin, 301 U.S. at 31. 25. 37 U.S. 72 (1838), discussed in chapter 10, supra. 26. 312 U.S. at 116. 27. 247 U.S. 251 (1918). 28. 312 U.S. at 114. 29. Id. at 123. 30. Id. at 124. 31. 317 U.S. at 114–116. 32. 315 U.S. 110 (1942). 33. Wickard, 317 U.S. at 127. 34. Sherman Antitrust Act, ch. 647, 26 Stat. 209 (1890) (codifi ed as amended at

15 U.S.C. §§ 1–7 (2006)). 35. See supra note 18. 36. Gibbons v. Ogden, 22 U.S. 1, 196 (1824). 37. Id. at 194 (emphasis added). 38. Wrightwood Dairy Co., 315 U.S. at 119. 39. Laurence H. Tribe, American Constitutional Law § 5-4, at 808 (3d ed., 2000),

quoting Gibbons, 22 U.S. at 194. 40. 317 U.S. at 120. 41. 22 U.S. at 194–95. 42. Wickard, 317 U.S. at 122 (emphasis added). 43. Shreveport Rate Cases, 234 U.S. at 351 (emphasis added). 44. See Tribe, supra note 39, at 810. 45. Michael S. Greve, The Upside-Down Constitution 203 (2012). 46. Id. at 346. 47. Wagner Act of 1935, Pub. L. No. 74-198, 49 Stat. 449 (codifi ed as amended

at 29 U.S.C. §§ 151–169 (2006)). 48. See Richard E. Schumann, Compensation from World War II through the Great

Society (Bureau of Labor Statistics, Jan. 30, 2003), available at http://www.bls. gov/opub/cwc/cm20030124ar04p1.htm. Schumann explains, “[T]he transi- tion to a peacetime economy was complicated by a number of problems,

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Notes to Pages 176–182 605

including providing economic opportunity for both returning servicemen and the current workforce. . . . The result was a wave of strikes precisely when the public was anxious to see more consumer goods in stores and showrooms. Congress reacted to the wave of strikes in 1946–1947 by passing the Labor-Management Relations (Taft-Hartley) Act in 1947.”

49. See supra Chapter 10 (“The Commerce Clause in Transition: 1865–1937”) for discussion of Hammer.

50. See Jack Balkin, Living Originalism 164 (2011). 51. Federalist No. 45 (James Madison) (Clinton Rossiter ed., 1998). 52. 2 The Debates in the Several State Conventions on the Adoption of the Federal Consti-

tution as Recommended by the General Convention at Philadelphia 424 (Jonathan Elliot ed., 2d ed., 1836), quoted in Balkin, supra note 50, at 143.

53. Id. at 424–425. 54. Balkin, supra note 50, at 145. 55. The Debates, supra note 52, at 448. 56. Balkin, supra note 50, at 165. 57. See Chapter 12’s discussion of the Patient Protection and Affordable Care

Act. 58. Balkin, supra note 50, at 165. 59. 402 U.S. 146 (1971). 60. 379 U.S. 241 (1964). 61. 379 U.S. 294 (1964). 62. See infra Chapter 33 (“Race and the Fourteenth Amendment”). 63. For one careful analysis of the post-1975 effects, see John J. Donohue III &

James J. Heckman, “Continuous versus Episodic Change: The Effect of Fed- eral Civil Rights Policy on the Economic Status of Blacks,” 29 J. Econ. Litera- ture 1603 (1991). See also Richard A. Epstein, “The Paradox of Civil Rights,” 8 Yale L. & Pol’y Rev. 299 (1990). For an earlier empirical study, see James J. Heckman & Brook S. Payner, “Determining the Impact of Federal Anti- discrimination Policy on the Economic Status of Blacks: A Study of South Carolina,” 79 Am. Econ. Rev. 138, 140–142 (1989).

64. Pub. L. No. 75-718, ch. 676, 52 Stat. 1060. 65. 312 U.S. 100 (1941). 66. FLSA Amendments of 1961, Pub. L. No. 87-30, 75 Stat. 65. 67. FLSA Amendments of 1966, Pub. L. No. 89-601, 80 Stat. 830. 68. FLSA Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 68. 69. 392 U.S. 183 (1968). 70. 426 U.S. 833 (1976). 71. 469 U.S. 528, 538–539 (1985). 72. For the canonical works, see Herbert Wechsler, “The Political Safeguards of

Federalism: The Role of the States in the Composition and Selection of the National Government,” 54 Colum. L. Rev. 543 (1954); Jesse H. Choper, Judi- cial Review and the National Political Process (1980).

73. 421 U.S. 542 (1975).

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606 Notes to Pages 183–187

12. Constitutional Pushback

1. 514 U.S. 549 (1995). 2. Id. at 551–552, 567–568. 3. See id. at 552–559. 4. Id. at 558–559 (citations omitted). 5. See Laurence H. Tribe, American Constitutional Law 831–832 (3d ed., 2000)

(discussing the signifi cance of Lopez). 6. Lopez, 514 U.S. at 569 (Kennedy, J., concurring). 7. 529 U.S. 598 (2000). 8. Pub. L. No. 103-322, 108 Stat. 1902 (1994) (codifi ed as amended in scattered

sections of 16, 18, and 42 U.S.C.). 9. 545 U.S. 1 (2005). 10. Cal. Health & Safety Code § 11362.5 (2005). 11. 21 U.S.C. § 801 (2006). 12. On which see Richard A. Epstein & Paula Stannard, “Constitutional Rate-

making and the Affordable Care Act: A New Source of Vulnerability,” 38 Am. J.L. & Med. 243 (2012).

13. For discussion, see Richard A. Epstein, Mortal Peril: Our Inalienable Right to Health Care? 27–41 (1997).

14. For an expose of one such incident, see David A. Hyman, “Lies, Damned Lies, and Narrative,” 73 Ind. L.J., 797, 813–832 (1998) (detailing the differ- ence between the events and the public story in the death of Terry Takewell in relation to the passage of The Emergency Medical Treatment and Active Labor Act).

15. Victoria Craig Bunce, Health Insurance Mandates in the States 2011—Executive Summary (Council for Affordable Health Insurance, 2011), available at http:// www.cahi.org/cahi_contents/resources/pdf/MandatesintheStates2011Ex- ecSumm.pdf. For updates, see Trends in State Mandated Benefi ts, available at http://www.cahi.org.

16. Elise Gould, The Erosion of Employment-Based Insurance (Economic Policy Institute, Nov. 1, 2007), available at http://www.epi.org/page/-/old/briefi ng papers/203/bp203.pdf; Elizabeth Mendes, Fewer Americans Have Employer- Based Health Insurance (Gallup Wellbeing, Feb. 14, 2012), available at http:// www.gallup.com/poll/152621/fewer-americans-employer-based-health- insurance.aspx.

17. Nat’l Fed. of Ind. Bus. (NFIB) v. Sibelius, 132 S. Ct. 2566, 2609 (2012). 18. Ezra Klein, “Reagan’s Solicitor General: ‘Health Care Is Interstate Commerce.

Is This a Regulation of It? Yes. End of Story,’” Wonkblog (Wash. Post, Mar. 28, 2012), available at http://www.washingtonpost.com/blogs/wonkblog/ post/reagans-solicitor-general-health-care-is-interstate-commerce-is-this-a- regulation-of-it-yes-end-of-story/2011/08/25/gIQAmaQigS_blog.html.

19. 95 U.S. 168 (1869). 20. 322 U.S. 533 (1944).

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Notes to Pages 188–196 607

21. NFIB, 132 S. Ct. at 2586. 22. See Richard A. Epstein, “Judicial Engagement with the Affordable Care Act:

Why Rational Basis Analysis Falls Short,” 19 Geo. Mason L. Rev. 931, 936–949 (2012).

23. NFIB, 132 S. Ct. at 2612. 24. Id. 25. Id. at 2615 (emphasis added). 26. For further discussion, see infra Chapter 13 (“Enumerated Powers: Taxing

and Spending”). 27. For an academic version of the same argument that also overstates the prison-

er’s dilemma component in this case, see Leslie Meltzer Henry & Maxwell Stea- rns, “Commerce Games and the Individual Mandate,” 100 Geo. L.J. 1117 (2012).

28. For details, see Health Indiana Plan—Health Insurance for Adults (City of Bloomington) (2013), available at http://bloomington.in.gov/documents/ viewDocument.php?document_id=2334.

29. Einer Elhauge, “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?,” The New Republic (Apr. 13, 2012), available at http://www.tnr.com/article/politics/102620/individual-mandate-history- affordable-care-act.

30. Id. 31. 1 Stat. 605 (1798), available at http://history.nih.gov/research/downloads/

1StatL605.pdf. 32. Militia Acts of 1792, ch. 28 & 3, 1 Stat. 271. 33. U.S. Const. art. I, § 8, cl. 16. 34. See Andrew Koppelman, “‘Tough Luck’ Becomes Law,” Salon (Jun. 27, 2012),

available at http://www.salon.com/2012/06/27/tough_luck_becomes_law. 35. 661 F.3d 1, 21 (D.C. Cir. 2011).

13. Enumerated Powers

1. 132 S. Ct. 2566 (2012). 2. U.S. Const. art. I, § 8, cl. 1. For a lengthier treatment of these issues, see

Richard A. Epstein, “Standing and Spending—The Role of Legal and Equita- ble Principles,” 4 Chap. L. Rev. 1 (2001).

3. See, e.g., Richard A. Posner, “Taxation by Regulation,” 2 Bell J. Econ. & Mgmt. Sci. 22 (1971); George J. Stigler, “The Theory of Economic Regulation,” 2 Bell J. Econ. & Mgmt. Sci. 3 (1971).

4. NFIB, 132 S. Ct. at 2636. 5. Id. at 2658. 6. 262 U.S. 447 (1923). For discussion, see supra Chapter 6 (“Standing: Back-

ground and Origins”). 7. See Mancur Olson, The Logic of Collective Action 14–15 (1965), for the standard

early account. 8. For an early discussion, see Story, Commentaries 337–341.

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608 Notes to Pages 196–206

9. Story, Commentaries 479. 10. See supra Chapter 12 (“Constitutional Pushback: 1995 to Present, from Lopez

to NFIB”). 11. Federalist No. 41, at 211–213 (James Madison) (Clifton Rossiter ed., 1999). 12. See Alexander Hamilton, Report on Manufactures, Communicated to the

House of Representatives, Dec. 5, 1791, at 40 (Gov’t. Print. Off., 1913). 13. For an account, see John C. Eastman, “Restoring the ‘General’ Welfare

Clause,” 4 Chap. L. Rev. 63 (2001), which offers a narrow reading without noting the relevance of the phrase “of the United States.”

14. 30 Annals of Cong., Senate, 14th Cong. 2nd Sess. 211 (1817), discussed in Eastman, supra note 13, at 69.

15. President James Buchanan to House of Representatives (Feb. 24, 1859), in 7 A Compilation of the Messages and Papers of the Presidents 1789–1897, at 3079 (James D. Richardson ed., 1897), discussed in Eastman, supra note 13, at 70.

16. Michael Greve, The Upside-Down Constitution 163 (2012). 17. 297 U.S. 1 (1936). 18. Pub. L. No. 73-10, 48 Stat. 31. 19. 301 U.S. 548 (1937). 20. Pub. L. No. 74-271, 49 Stat. 620 (codifi ed as amended at 42 U.S.C. § 1101). 21. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 22. Steward Machine, 301 U.S. at 599. 23. Id. at 602 (quoting Franklin Pierce, Veto Message (May 3, 1854)), reprinted

in 5 A Compilation of the Messages and Papers of the Presidents 1789–1897, at 248– 249 (James D. Richardson ed., 1897), which followed the same cautious view on the spending power as Madison and Buchanan, supra note 13.

24. 285 U.S. 262, 311 (1932). 25. Steward Machine, 301 U.S. at 589–590. 26. Matthew Hale, “De Portibus Maris,” in 1 A Collection of Tracts Relative to the

Law of England 77-78 (Francis Hargrave ed., 1787). 27. 12 East 527, 104 Eng. Rep. 206 (K.B. 1810). 28. Id. at 538, 104 Eng. Rep. at 21. 29. 94 U.S. 113, 127–128 (1876). 30. 483 U.S. 203 (1987). 31. 23 U.S.C. § 158 (1982 ed., Supp. III). 32. 128 U.S. 1 (1888). 33. Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 110 (1980). 34. 483 U.S. at 212. 35. 247 U.S. 251 (1918). 36. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). 37. 483 U.S. at 207 (some internal quotations and citations omitted). 38. Id. at 208 & 208 n.3. 39. Id. at 211–212. 40. E.g., Nevada v. Skinner, 884 F.2d 445, 448 (9th Cir. 1989) (upholding the

national speed limit); California v. United States, 104 F.3d 1086 (9th Cir. 1997)

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Notes to Pages 206–210 609

(upholding federal requirements on California to provide services to illegal aliens); Koslow v. Pennsylvania, 302 F.3d 161, 174 (3d Cir. 2002) (upholding a provision requiring a state to waive immunity under the Eleventh Amend- ment in order to receive certain federal funds).

41. 132 S. Ct. at 2599. 42. Id. 43. Stanley Surrey & Paul R. McDaniel, Tax Expenditures 3 (1985). 44. 132 S. Ct. at 2593–2600. 45. Kaiser Commission on Medicaid and the Uninsured, Financing New Medicaid

Coverage under Health Reform: The Role of the Federal Government and States (May 2010), available at http://www.kff.org/healthreform/upload/8072.pdf.

46. Id. 47. Kaiser Commission on Medicaid and the Uninsured, Expanding Medicaid

under Health Reform: A Look at Adults at or below 133% of Poverty (Apr. 2010), available at http://www.kff.org/healthreform/upload/8052-02.pdf.

48. See NFIB, 132 S. Ct. at 2566; Florida v. U.S. Dep’t Health & Human Servs., 648 F.3d 1235, 1268 (11th Cir. 2011).

49. NFIB, 132 S. Ct. at 2604. 50. Id. at 2602 (internal citations and quotation marks omitted). 51. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2 (1985); Louis Kaplow, “Ex-

tension of Monopoly Power through Leverage,” 85 Colum. L. Rev. 515 (1985). For a recent guide, see Warren S. Grimes, Tying: Requirements Ties, Effi ciency and Innovation, Testimony on Single-Firm Conduct and Antitrust Law, before De- partment of Justice and Federal Trade Commission (2006), available at http:// www.justice.gov/atr/public/hearings/single_fi rm/comments/219982.htm.

52. NFIB, 132 S. Ct. at 2604. 53. Lorain Journal Co. v. United States, 342 U.S. 143 (1951). 54. 132 S. Ct. at 2605.

14. The Necessary and Proper Clause

1. U.S. Const. art. I, § 8, cl. 19. 2. Federalist No. 33, at 202 (Alexander Hamilton) (Clinton Rossiter ed., 1999);

Federalist No. 44, at 284 (James Madison) (Clinton Rossiter ed., 1999). 3. For a recent defense of this position, see the views of Robert Natalson in

Gary Lawson, Geoffrey P. Miller, Robert G. Natalson, & Guy I. Seidman, The Origins of the Necessary and Proper Clause 119 (2010).

4. 17 U.S. 316, 423 (1819) (“[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”).

5. 22 U.S. 1, 188 (1824) (“In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress

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610 Notes to Pages 211–217

is authorized ‘to make all laws which shall be necessary and proper’ for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred.”).

6. See Gary Lawson & Patricia B. Granger, “The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause,” 43 Duke L.J. 267, 326–330 (1993) (stressing the word “proper”).

7. Lawson, et al., supra note 3, at 120–121. 8. William Baude, “Rethinking the Federal Eminent Domain Power,” 122 Yale

L.J. 1738 (2013). 9. 91 U.S. 367, 371 (1875); Baude, supra note 8 at 1791. 10. U.S. Const. art. I, § 8, cl. 7. 11. Baude, supra note 8 at 1774-1785. 12. Id. at 1742, 1764-1765. 13. Id. at 1763. 14. An Act providing for the Cessions of Castle Island, in the harbor of Boston,

to the United States, and for other purposes therein mentioned, 1798 Mass. Acts 217, ch. 16 (Jun. 25, 1798), cited in Baude, supra note 8, at 1762 n122.

15. 17 U.S. 316 (1819). 16. See David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801

(1997). 17. 79 U.S. 457, 537 (1871). 18. For discussion, see supra Chapter 13 (“Enumerated Powers: Taxing and

Spending”). 19. “Jefferson’s Opinion on the Constitutionality of a National Bank: 1791,” The

Avalon Project: Documents in Law, History and Diplomacy (2008), available at http://avalon.law.yale.edu/18th_century/bank-tj.asp (emphasis in original).

20. “Hamilton’s Opinion as to the Constitutionality of the Bank of the United States: 1791,” The Avalon Project: Documents in Law, History and Diplomacy (2008), available at http://avalon.law.yale.edu/18th_century/bank-ah.asp (emphasis added). Marshall then adopted this interpretation in McCulloch, 17 U.S. at 413–414.

21. See, for discussion, Randy E. Barnett, Restoring the Lost Constitution: The Pre- sumption of Liberty 171–173 (2004).

22. McCulloch, 17 U.S. at 406–407. 23. Id. at 407 (emphasis in original). 24. Id. at 421. 25. See Julian E. Zelizer, The American Congress: The Building of Democracy 155–156

(2004). 26. Fed. Reserve Bank of Phila., The First Bank of the United States: A Chapter

in the History of Central Banking 10 & n.26 (Jun. 2009), available at http:// www.philadelphiafed.org/publications/economic-education/fi rst-bank.pdf; see also Zelizer, supra note 25, at 156.

27. For discussions, see Ralph C. H. Catterall, The Second Bank of the United States (1902); Bray Hammon, Banks and Politics in America from the Revolution to the Civil War (1957).

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Notes to Pages 218–226 611

28. James Bradley Thayer, John Marshall 68 (1901); Felix Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev. 217, 219 (1955). For a similar outlook from one of Frankfurter’s ablest clerks, see David P. Cur- rie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 160–62 (1985).

29. 75 U.S. 603 (1870). 30. 79 U.S. 457 (1871). 31. U.S. Const. art. I, § 10, cl. 1. 32. Id. art. I, § 8, cl. 5. 33. Id. art. I, § 8, cl. 3. 34. Legal Tender Cases, 79 U.S. at 536. 35. Federalist No. 44, supra note 2 (Clinton Rossiter ed., 1999). 36. 12 U.S.C. ch. 3. 37. 34 F.2d 910, 914 (2d Cir. 1929). 38. See, for discussion, John Taylor, Getting Off Track: How Government Actions and

Interventions Caused, Prolonged, and Worsened the Financial Crisis (2009). 39. 148 Cong. Rec. E192 (2002) (statement of Rep. Paul). 40. See Milton Friedman & Anna Jacobsen Schwartz, A Monetary History of the

United States: 1867–1960 (1963). 41. 188 U.S. 321 (1903). 42. Id. at 358. 43. For discussion, see Jonathan Harrison, “Enumerated Federal Power and the

Necessary and Proper Clause,” 78 U. Chi. L. Rev. 1101, 1102–1103 (2011). 44. 301 U.S. 1 (1937). 45. NLRA, 74 Pub. L. No. 198, 49 Stat. 449 (codifi ed as amended at 29 U.S.C. §§

151–169 (2006)). 46. Jones & Laughlin, 301 US. at 41, 42. 47. See NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939). 48. Michael C. Harper & Samuel Estreicher, Labor Law: Cases, Materials and Prob-

lems 104 (4th ed., 1996). 49. 80 Pub. L. No. 101, 61 Stat. 136 (codifi ed as amended at 29 U.S.C. §§ 141–

157 (2006)). 50. 545 U.S. 1 (2005). 51. Id. at 22, 26–27. 52. 132 S. Ct. 2566 (2012). 53. Id. at 2579. 54. Id. at 2592. 55. 130 S. Ct. 1949 (2010). 56. 132 S. Ct. at 2592 (emphasis in original) (citing Comstock, 130 S. Ct. at 1954–

1955). The due process objections to this procedure had been addressed in Kansas v. Hendricks, 521 U.S. 364, 356–358, and Kansas v. Crane, 534 U.S. 407 (2002).

57. Comstock, 130 S. Ct. at 1962, 1964. 58. NFIB, 132 S. Ct. at 2592 (emphasis in original) (citing Jinks v. Richland Cnty.,

538 U.S. 456, 459, 462 (2003)).

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612 Notes to Pages 226–237

59. NFIB, 132 S. Ct. at 2592 (emphasis in original) (citing Sabri v. United States, 541 U.S. 600, 602, 605 (2004)).

15. The Dormant Commerce Clause

1. 25 U.S. 213, 306–307 (1827). 2. U.S. Const. art. VI, § 2, discussed supra Chapter 5 (“Marbury and Martin”). 3. 22 U.S. 1, 221 (1824). 4. Id. at 225–226 (Johnson, J., concurring). 5. 75 U.S. 168 (1869). 6. U.S. Const. art. III, § 2. 7. 336 U.S. 525 (1949). 8. 317 U.S. 111 (1942). 9. H. P. Hood & Sons, 336 U.S. at 539. 10. Pike v. Bruce Church, Inc., 397 US. 137, 142 (1970). 11. Id. 12. W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 194–197 (1994). 13. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 580–581

(1997). 14. 27 U.S. 245 (1829). 15. Corfi eld v. Coryell, 6 F. Cas. 546 (E.D. Pa. 1823) (No. 3230), discussed in

greater detail supra Chapter 9 (“The Commerce Power: Theory and Practice, 1787–1865”).

16. 53 U.S. 299 (1851). 17. 303 U.S. 177 (1938). 18. 325 U.S. 761 (1945). 19. See, e.g., Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662 (1981) (Pow-

ell, J., plurality). 20. See Tandem Truck Safety Act of 1984, Pub. L. No. 98-544, 98 Stat. 2829. 21. 340 U.S. 349 (1951). 22. See also WTO Agreements and Public Health, at 11, available at http://www.

wto.org/english/res_e/booksp_e/who_wto_e.pdf: “The basic WTO principle is non-discrimination: WTO Members cannot discriminate between their trading partners nor between imported and locally-produced goods that are otherwise similar. Since the inception of GATT more than 50 years ago, Article XX of GATT guarantees Members’ right to take measures to restrict imports and export of products when those measures are necessary to pro- tect the health of humans, animals and plants (Article XX(b)).”

23. 432 U.S. 333 (1977). 24. 477 U.S. 131 (1986). 25. Id. at 144 (citations omitted) (internal quotation marks omitted). 26. 437 U.S. 117 (1978). 27. Id. at 128.

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Notes to Pages 237–248 613

28. 453 U.S. 609 (1981). 29. Id. at 617 (quoting Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279

(1977)). 30. 512 U.S. 186 (1994). 31. See supra note 28. 32. See Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 522 (1937) (“The only ben-

efi t to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes.”).

33. 519 U.S. 278 (1997). 34. Id. at 295–296. 35. Id. at 299. 36. 682 F.3d 1144 (9th Cir. 2012). For the record, I have signed on to a petition

for certiorari asking the Supreme Court to overturn this decision. 37. 6 F. Cas. 546 (E.D. Pa. 1823) (No. 3230). 38. 426 U.S. 794 (1976). 39. 447 U.S. 429 (1980). 40. 467 U.S. 82 (1984). 41. See Donald H. Regan, “The Supreme Court and State Protectionism: Making

Sense of the Dormant Commerce Clause,” 84 Mich. L. Rev. 1091, 1194 (1986). 42. For similar arguments, see the discussion of Hammer v. Dagenhart, 247 U.S.

251 (1918), supra Chapter 10 (“The Commerce Clause in Transition: 1865– 1937”); the Medicaid extension, supra Chapter 13 (“Enumerated Powers: Taxing and Spending”); and free speech, infra Chapter 24 (“Freedom of Speech and Religion: Preliminary Considerations”).

43. 437 U.S. 617 (1978). 44. Id. at 627. 45. 505 U.S. 144 (1992). 46. Pub. L. No. 99-240, 99 Stat. 1842 (codifi ed at 42 U.S.C. §§ 2021(b)–(j)). 47. David DeMille, “White House Is ‘Done with Yucca,’” The Spectrum (Jan. 30,

2010), available at http://www.thespectrum.com/article/20100130/NEWS 01/1300311/White-House-is-done-with-Yucca.

48. 511 U.S. 383 (1994).

16. Basic Principles and Domestic Powers

1. For discussion, see Christopher R. Berry & Jacob E. Gersen, “The Unbundled Executive,” 75 U. Chi. L. Rev. 1385 (2008), and for criticism of that position, see Steven G. Calabresi & Nicholas Terrell, “The Fatally Flawed Theory of the Unbundled Executive,” 93 Minn. L. Rev. 1696 (2009).

2. 28 U.S.C. § 595 (1978). 3. For a contemporary account, see Carroll Kilpatrick, “Nixon Forces Firing of

Cox; Richardson, Ruckelshaus Quit,” Wash. Post, Oct. 21, 1973, at A01, available

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614 Notes to Pages 249–256

at http://www.washingtonpost.com/wp-srv/national/longterm/watergate/ articles/102173-2.htm.

4. 487 U.S. 654, 697–734 (1988). 5. In 1999, the statute lapsed due to Congress’s failure to pass a reauthoriza-

tion. The Offi ce of the Special Prosecutor was terminated and replaced by the U.S. Department of Justice Offi ce of Special Counsel, which operates with relative autonomy within the departmental structure.

6. U.S. Const. art. II, § 1, cl. 1. 7. Id. art. II, § 4; id. art. I, § 3, cl. 6. 8. Id. art. II, § 1, cl. 7. 9. Id. 10. Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madiso-

nian Republic (2010), critically reviewed in Richard H. Pildes, “Law and the President,” 125 Harv. L. Rev. 1381 (2012).

11. Posner & Vermeule, supra note 10, at 15. 12. U.S. Const. art. II, § 2. cl. 1 (“The President . . . shall have Power to Grant

Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”).

13. Id. art II, § 2, cl. 3. 14. Pildes, supra note 10, at 1408. 15. Id. at 1406 (citing Daryl Levinson, “Parchment and Politics: The Positive

Puzzle of Constitutional Commitment,” 124 Harv. L. Rev. 657 (2011)). 16. John Locke, Second Treatise of Government ¶144 (C. B. Macpherson ed., 1980)

(1690) (emphasis omitted). 17. Federalist No. 70 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 18. Federalist No. 71 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 19. Id. 20. U.S. Const. art. II, § 3. 21. Id. art. II, § 2, cl. 2. 22. Id. art. II, § 2, cl. 1. 23. Id. art. II, § 3. 24. Id. art. II, § 2, cl. 1. 25. Id. art II, § 2, cl. 2. 26. Id. art II, § 2, cl. 1. 27. Id. art. II, § 2, cl. 2. 28. Id. art. III, § 1. 29. For various arguments on this point, see Reforming the Court: Term Limits for

Supreme Court Justices (Roger C. Cramton & Paul D. Carrington eds., 2006). 30. U.S. Const. art. II, § 2, cl. 2. 31. Id. art. III, § 1. 32. For an exhaustive account on the subject, see Michael B. Rappaport, “The

Original Meaning of the Recess Appointments Clause,” 52 U.C.L.A. L. Rev. 1487 (2005); T. J. Halstead, Recess Appointments: A Legal Overview (Cong. Research Serv., RL33009, 2005), available at http://fpc.state.gov/documents/ organization/50801.pdf.

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Notes to Pages 256–263 615

33. U.S. Const. art. II, § 2, cl. 3. 34. Rappaport, supra note 32, at 1519; Halstead, supra note 32, at 4. 35. Amelia Frenkel, “Defi ning Recess Appointments Clause ‘Vacancies,’” 88

N.Y.U. L. Rev. 729 (2013). 36. Id. at 734. 37. Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) 38. Id. at 499. 39. See 157 Cong. Rec. S5297 (daily ed. Aug. 5, 2011). 40. See 157 Cong. Rec. S8789 (daily ed. Dec. 23, 2011). 41. NLRB v. Noel Canning, cert. granted 2013 Lexis 4876 (2013). To follow

the progress of the case, see http://www.scotusblog.com/case-fi les/cases/ national-labor-relations-board-v-noel-canning/.

42. “Bush Appoints Bolton as U.N. Ambassador,” NBC Politics (Aug. 1, 2005), avail- able at http://www.msnbc.msn.com/id/8758621/ns/politics/t/bush-appoints- bolton-un-ambassador.

43. Peter Kirsanow, “Obama’s Recess Appointments to the NLRB,” Nat’l Rev. (Mar. 29, 2010), available at http://www.nationalreview.com/corner/197104/ obamas-recess-appointments-nlrb/peter-kirsanow.

44. Helene Cooper & Jennifer Steinhauer, “Bucking Senate, Obama Appoints Consumer Chief,” N.Y. Times (Jan. 4, 2012), available at http://www.nytimes. com/2012/01/05/us/politics/richard-cordray-named-consumer-chief-in- recess-appointment.html?_r=1&pagewanted=all.

45. John Yoo, “Obama Oversteps His Limits with Cordray Recess Appoint- ment,” Ricochet (Jan. 4, 2012), available at http://ricochet.com/main-feed/ Obama-Oversteps-His-Limits-with-Cordray-Recess-Appointment.

46. U.S. Const. art. II, § 2, cl. 2. 47. 424 U.S. 1 (1976). 48. Pub. L. No. 92-225, 86 Stat. 3 (codifi ed as scattered sections of 2 U.S.C.). 49. U.S. Const. art. II, § 2, cl. 2. 50. Kenneth A. Shepsle, “Congress Is a “They,” Not an “It”: Legislative Intent as

Oxymoron,” 12 Int’l Rev. L. & Econ. 239 (1992), at least in those cases short of unanimity of opinion.

51. For a discussion of the immense bottlenecks that have emerged in recent years, see Anne Joseph O’Connell, “Vacant Offi ces: Delays in Staffi ng Top Agency Positions,” 82 S. Cal. L. Rev. 913 (2009).

52. 487 U.S. 654 (1988). 53. Pub. L. No. 95-521, §§ 601–602, 92 Stat. 1824, 1867–1874 (codifi ed as

amended at 28 U.S.C. §§ 49, 591–598 (2006)). 54. 520 U.S. 651 (1997). 55. Id. at 663. 56. 501 U.S. 868 (1991). 57. 204 F.3d 1125 (D.C. Cir. 2000). 58. Id. at 1143 (quoting Butz v. Economou, 438 U.S. 478, 513 (1978)). 59. For a voluminous documentation of the point, see Steven G. Calabresi & Chris-

topher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush

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616 Notes to Pages 263–271

(2008). For my response to their arguments, see Richard A. Epstein, “Executive Power in Political and Corporate Contexts,” 12 U. Pa. J. Const. L. 277 (2010).

60. U.S. Const. art. II, § 3. 61. 272 U.S. 52 (1926). 62. Id. at 131. 63. 14 Stat. 430 (1867). 64. For a discussion, see Myers, 272 U.S. at 164–171. 65. Id. at 173–174, 263 & n.34, 278 n.63. 66. Pendleton Civil Service Act, ch. 27, 22 Stat. 403 (1883). 67. U.S. Const. art. II, § 2, cl. 2. 68. Id. art. I, § 8, cl. 18. 69. Myers, 272 U.S. at 175 (internal citations omitted). 70. 116 U.S. 483 (1886). 71. Id. at 485.

17. Delegation and the Rise of Independent Agencies

1. See John Locke, Second Treatise of Government §§ 143–144 (C. B. Macpherson ed., 1980) (1690).

2. For an account see David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801, at 146–151 (1997).

3. U.S. Const. art. I, § 8, cl. 7. 4. Id. art. I, § 8, cl. 3. 5. See Currie, supra note 2, at 148. 6. U.S. Const. art. I, § 1. 7. See Daryl J. Levinson & Richard H. Pildes, “Separation of Parties, Not

Powers,” 119 Harv. L. Rev. 2311 (2006), to which see my reply, Richard A. Epstein, “Why Parties and Powers Both Matter: A Separationist Response To Levinson and Pildes,” 119 Harv. L. Rev. F. 210 (2006), available at http:// harvardlawreview.org/media/pdf/epstein.pdf.

8. 293 U.S. 388 (1935). 9. 295 U.S. 495 (1935). 10. 73 Pub. L. No. 67, § 9(c), 48 Stat. 195, 200 (1933). 11. For the institutional background, see Daniel A. Crane, “The Story of United

States v. Socony-Vacuum: Hot Oil and Antitrust in the Two New Deals,” in Anti- trust Stories 91 (Eleanor M. Fox & Daniel A. Crane eds., 2007).

12. 293 U.S. at 431–433. 13. For the numbers, see Louis Jaffe & Nathaniel Nathanson, Administrative Law,

Cases and Materials 52 (4th ed., 1976). 14. 73 Pub. L. No. 73-67, § 3(a)(2), 48 Stat. 195, 196. 15. 295 U.S. at 553. 16. For repeated and justifi ed harping on this cartel theme, see Michael S. Greve,

The Upside-Down Constitution (2012). 17. Pub. L. No. 77-421, 56 Stat. 23 (codifi ed at 50 U.S.C. §§ 901–05) (repealed

1956).

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Notes to Pages 271–277 617

18. Pub. L. No. 77-421, §§ 1(a), 2(a), 56 Stat. 23, 24. 19. See Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v.

Connally, 337 F. Supp. 737 (D.D.C. 1971). 20. 462 U.S. 919 (1983). 21. Id. at 959–967 (Powell, J., concurring). 22. U.S. Const. art. I, § 7, cl. 2. 23. Id. For Chief Justice Burger’s discussion, see 462 U.S. at 945–951. 24. Chadha, 462 U.S. at 944. 25. Id. at 979–996 (White, J., dissenting). 26. Id. at 969–970, 974. 27. Pub. L. No. 99-177, 99 Stat. 1037 (1985). 28. Bowsher v. Synar, 478 U.S. 714, 727–728 (1986). 29. Id. 30. Id. at 722. 31. See, e.g., Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (holding

that the president could only remove a commissioner from the Federal Trade Commission for a cause specifi ed by Congress in the Federal Trade Commis- sion Act).

32. 15 U.S.C. § 41. 33. 47 U.S.C. § 154(c). 34. 15 U.S.C. § 78d(a). 35. 29 U.S.C. § 153(a). 36. 47 U.S.C. § 303; see also Nat’l Broad. Co. v. United States, 319 U.S. 190, 193–

194 (1943) (the commission investigated whether certain regulations were in the “public interest, convenience, or necessity”).

37. On the ICC generally, see “125 Years since the Interstate Commerce Act: A Symposium in the Form of a Final Convocation,” 95 Marquette L. Rev. 1123 (2012).

38. 295 U.S. 602 (1935). 39. Id. 40. Id. at 628. 41. U.S. Const. art. I , § 8, cl. 18. 42. Compare Lawrence Lessig & Cass R. Sunstein, “The President and the

Administration,” 94 Colum. L. Rev. 1 (1994), with Steven G. Calabresi & Saikrishna B. Prakash, “The President’s Power to Execute the Laws,” 104 Yale L.J. 541 (1994). My sympathies, it should be evident, run with Calabresi and Prakash.

43. See, e.g., Peter L. Strauss, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch,” 84 Colum. L. Rev. 573, 578 & n.16 (1984) (internal citation omitted).

44. See, e.g., Smyth v. Ames, 169 U.S. 466 (1898) (striking down Nebraska rate restriction on railroad rates under “fair value” standard); Chicago, M. & St. P. Ry. v. Minnesota, 134 U.S. 418, 458 (1890) (allowing judicial review of state railroad rates); see also Sw. Bell Tel. Co. v. Pub. Serv. Comm., 262 U.S. 276, 306–308 (1923) (Justice Brandeis’s criticism of fair value rule).

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618 Notes to Pages 277–280

45. Sustained at the federal level in Crowell v. Benson, 285 U.S. 22, 38 (1932). 46. For a discussion, see State ex. rel. R.R. & Warehouse Comm’n v. Chicago, M. & St.

P. Ry. Co., 37 N.W. 782 (Minn. 1888). That decision sustained the use of the commission system but denied judicial review of ratemaking decisions for their fairness, which was later held to be required under the United States Constitution.

47. For the ultimate constitutionality of these schemes after some initial hesita- tion, see New York Cent. R.R. Co. v. White, 243 U.S. 188 (1917).

48. For discussion of Article I courts and judges, see Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 339–349 (6th ed., 2009); see also “Federal Tribunals in the United States,” Wikipedia, available at http://en.wikipedia.org/wiki/Article_I_and_Article_III_tribunals#Article_ I_tribunals.

49. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87 (1982) (limiting the jurisdiction of Article I bankruptcy courts). For the technical statutory fi x that followed, see the Bankruptcy Amendments and Federal Judgeship Act of 1984, 98 Stat. 333 (1984).

50. Thomas v. Union Carbide Agric. Prods. Co., 473 US. 568 (1984). 51. Commodities Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). 52. See the various essays in Reforming the Court: Term Limits for Supreme Court

Justices (Roger C. Cramton & Paul D. Carrington eds., 2006). 53. See discussion, supra Chapter 11 (“The Commerce Clause: Transformation to

Consolidation, 1937–1995”), at notes 50–55 and accompanying text. 54. For a discussion of the rule of fi rst possession, see Richard A. Epstein, “Pos-

session as the Root of Title,” 13 Ga. L. Rev. 1221 (1979). For key authorities, see Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805); J. Inst. 2.1.12; G. Inst. 2.66.

55. See “Tribune Co. v. Oak Leaves Broad. Station,” 68 Cong. Rec. 216 (1926) (reprinting Ill. Cir. Ct. decision of Nov. 17, 1926). For rival interpretations of the complex interaction between this case and the legislative movement, see Charlotte Twight, “What Congressmen Knew and When They Knew It: Further Evidence on the Origins of U.S. Broadcasting Regulation,” 95 Public Choice 247 (1996); Thomas W. Hazlett, “Oak Leaves and the Origins of the 1927 Radio Act: Comment,” 95 Public Choice 277 (1998).

56. Hoover v. Intercity Radio Co., 286 F. 1003, (D.C. Cir. 1926). 57. United States v. Zenith Radio Corp., 12 F.2d 614 (N.D. Ill. 1926). 58. For a clear account see National Broad. Co. v. United States, 319 U.S. 190, 210–

215 (1943); Ronald Coase, “The Federal Communication Commission,” 2 J. L. & Econ. 1 (1959); Thomas W. Hazlett, “The Rationality of U.S. Regulation of the Broadcast Spectrum,” 33 J. L. & Econ. 133 (1990).

59. Radio-Communications Act of Aug. 13, 1912, 37 Stat. 302, 47 U.S.C. § 51 et seq.

60. 47 U.S.C. §§ 81–83, 85–119 (repealed 1934). 61. See Jeremy Waldron, The Dignity of Legislation 17 (1999). The mere title of

this book reveals the gulf that separates our respective worldviews.

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Notes to Pages 280–287 619

62. Nat’l Broad. Co. v. United States, 319 U.S. at 215–216. 63. See Cosmopolitan Broad. Co. v. FCC, 581 F.2d 917 (D.C. Cir. 1978). 64. Bureau of Labor Statistics, Union Members Summary (Jan. 22, 2010), available

at http://www.bls.gov/news.release/union2.nr0.htm. 65. 130 S. Ct. 2635 (2010). 66. Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). The case is discussed

in more detail in Chapter 16 supra at 257. 67. For my elaboration, see Richard A. Epstein, “A Common Law for Labor

Relations: A Critique of the New Deal Labor Legislation,” 92 Yale L.J. 1357 (1983).

68. 130 S. Ct. 3138 (2010). 69. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codifi ed in

scattered sections of 15 and 18 U.S.C.). 70. Alaska Airlines v. Brock, 480 U.S. 678, 684 (1987): “Unless it is evident that

the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law” (internal quotation marks omitted).

71. Julia Schiller, “Deterring Obstruction of Justice Effi ciently: The Impact of Arthur Andersen and the Sarbanes-Oxley Act,” 63 Ann. Surv. Am. L. 267 (2007).

18. Foreign and Military Affairs

1. U.S. Const. art. II, § 2, cl. 2. 2. See id. art. I, § 8, cl. 3 (giving Congress the power “to regulate commerce

with foreign nations, and among the several states, and with the Indian tribes”).

3. 15 U.S.C. §§ 61–66 (2006). 4. U.S. Const. art. I, § 8, cl. 3 (the Commerce Clause is sometimes also broken

down into the Interstate Commerce Clause or the Foreign Commerce Clause). 5. Id. art. I, § 8, cl. 9. 6. See, e.g., Weiner v. United States, 357 U.S. 349 (1958) (upholding presidential

removal power from the 1948 War Claims Commission). 7. U.S. Const. art. I, § 8, cl. 10. 8. Id. art. I, § 8, cl. 11. 9. Id. art. I, § 8, cl. 12. 10. Id. art. I, § 8, cl. 13. 11. Id. art. I, § 8, cl. 14. 12. Id. art. I, § 8, cls. 15–16. 13. Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). 14. Id. at 24 (Silberman, J., concurring in his own opinion on political question

grounds). 15. 299 U.S. 304 (1936). 16. Id. at 311–313.

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17. Id. at 312. 18. Id. at 312, 314. 19. Id. at 315–316. 20. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 76 (1937) (McReynolds,

J., dissenting) Justice Sutherland joined this dissent. 21. Curtiss-Wright, 299 U.S. at 318. 22. Id. at 318. 23. Id. at 319. 24. U.S. Const. art. II, § 2, cl. 1. 25. Federalist No. 69 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 26. See U.S. Const. art. II, § 2, cl. 1; id. art. I, § 8, cl. 15. 27. Federalist No. 64 (John Jay) (Clinton Rossiter ed., 1999). 28. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (commonly

referred to as the Steel Seizure Case). 29. See, e.g., Labor Management Relations (Taft Hartley) Act, Pub. L. No. 80-101,

61 Stat. 136 (1947). 30. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President

takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own con- stitutional powers minus any constitutional powers of Congress over the matter.”).

31. Pub. L. No. 88-408, 78 Stat. 384 (1964). 32. On these and other issues, see Saikrishna Prakash, “Unleashing the Dogs of

War: What the Constitution Means by ‘Declare War,’” 93 Cornell L. Rev. 45 (2007).

33. Pub. L. No. 93-148, 87 Stat. 555 (1973). 34. “Mr. M[adison] and Mr. Gerry moved to insert ‘declare,’ striking out ‘make’

war; leaving to the Executive the power to repel sudden attacks.” 2 The Records of the Federal Convention of 1787, at 318 (Max Farrand ed., 1966) (James Madison’s Convention notes from August 17, 1787). The Prize Cases, 67 U.S. 635 (1863) (noting that the president has independent authority to repel aggressive actions by third parties).

35. See Pub. L. No. 93-148, § 4, 87 Stat. 555, 555–556 (1973). 36. Id. at § 5(b), 556. 37. John Hart Ely, “Suppose Congress Wanted a War Powers Act That Worked,”

88 Colum. L. Rev. 1379 (1988). 38. John C. Yoo, Memorandum for William J. Haynes II, General Counsel of the

Department of Defense (Mar. 14, 2003), available at http://gulcfac.typepad. com/georgetown_university_law/fi les/march.14.memo.part1.pdf.

39. See John C. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (2005).

40. See Prakash, supra note 32, at 56–58, 87, 92; Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair 74–77 (1990).

41. Pub. L. No. 95-511, 92 Stat. 1783 (1978) (codifi ed at 50 U.S.C. §§ 1801–1885c).

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Notes to Pages 292–297 621

42. Pub. L. No. 107-40, 115 Stat. 224 (2001). 43. Id. at § 2(a). 44. U.S. Const. art. II, § 2, cl. 1. 45. Id. art. I, § 8, cl. 14. 46. See Id. art. I, § 8, cl. 18. 47. John C. Yoo, Memorandum for William J. Haynes II, supra note 38, at 4–5. 48. Id. at 13. 49. See Youngstown, 343 U.S. at 635–647 (Jackson, J., concurring). 50. John C. Yoo, Memorandum for William J. Haynes II, supra note 38, at 13

n.13. 51. See Hamdan v. Rumsfeld, 548 U.S. 557, 592 (2006) (noting in dicta the general

distinction between the scope of a military campaign (for Congress) and the particular tactics chosen (for the president): “Congress cannot direct the con- duct of campaigns”) (quoting Ex parte Milligan, 71 U.S. 2, 139 (1866) (Chase, C. J., concurring)).

52. For the rejection of his position, see, e.g., Hamdan v. Rumsfeld, 548 U.S. at 575–589.

53. US. Const. art. I, § 9, cl. 2. 54. Riding circuit refers to a practice in which Supreme Court justices used to

travel around the country serving as temporary judges on various circuit courts.

55. Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (Taney, Circuit Justice). 56. U.S. Const. art IV, § 4 (“The United States shall guarantee to every State in

this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”).

57. See Habeas Corpus Act, 12 Stat. 755 (1863). 58. See INS v. St. Cyr, 533 U.S. 289 (2001); Gerald Neuman, “Habeas Corpus,

Executive Detention, and the Removal of Aliens,” 98 Colum. L. Rev. 961 (1998).

59. See St. Cyr, 533 U.S. at 301 n.16 (2001) (citing Sommersett v. Stewart, 20 How. St. Tr. 1, 79–82 (K.B. 1772); Case of the Hottentot Venus, 104 Eng. Rep. 344, 344 (K.B. 1810); King v. Schiever, 97 Eng. Rep. 551 (K.B. 1759)).

60. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008). 61. See, e.g., Rasul v. Bush, 542 U.S. 466 (2004). 62. Rasul, 542 U.S. at 488–505 (Scalia, J., dissenting). 63. 28 U.S.C. § 2241(a). 64. Johnson v. Eisentrager, 339 U.S. 763, 770 n.4 (1950). 65. Curtiss-Wright, 299 U.S. at 318 (“Neither the Constitution nor the laws passed

in pursuance of it have any force in foreign territory unless in respect of our own citizens.”).

66. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). 67. 605 F.3d 84 (D.C. Cir. 2010). 68. Al-Maqaleh v. Gates, 604 F. Supp. 2d 205, 209 (D.D.C. 2009).

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19. From Structural Protections to Individual Rights

1. For this tripartite classifi cation, see Roberts v. United States Jaycees, 468 U.S. 609 (1984). Expressive associations include civic groups with a social mis- sion. Intimate associations cover marriage and religious groups. Expressive associations may, under current law, be subject to antidiscrimination law. Intimate associations may not.

2. See, e.g., Morey v. Doud, 354 U.S. 457, 475 (1957). 3. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), discussed

supra Chapter 11 (“The Commerce Clause: Transformation to Consolidation, 1937–1995”).

4. 429 U.S. 190, 197 (1976) (gender discrimination). 5. See, e.g., Reed v. Campbell, 476 U.S. 852 (1986). 6. Gerald Gunther, “Foreword: In Search of Evolving Doctrine on a Changing

Court: A Model for a Newer Equal Protection,” 86 Harv. L. Rev. 1, 8 (1972). Ironically, a third tier, closer to strict scrutiny than rational basis, was intro- duced in the sex discrimination cases, infra Chapter 35 (and also discussed above). No proposition is entirely uniform. See, e.g., Mathews v. Lucas, 427 U.S. 495, 510 (1976) (insisting that an analysis under the rational basis test is “not a toothless one,” albeit in the context of a suit about social security benefi ts, not economic liberties).

7. 60 U.S. 393 (1856). 8. Slaughter-House Cases, 83 U.S. 36 (1873). 9. 304 U.S. 144 (1938). 10. 300 U.S. 379 (1937). 11. 261 U.S. 525 (1923). 12. United States v. Carolene Prods. Co., 304 U.S. at 153 n.4. 13. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 75–77 (1980). 14. Id. at 80.

20. Procedural Due Process

1. U.S. Const. art. I, § 9, cl. 3. 2. Id. art. I, § 10, cl. 1. 3. 59 U.S. 272 (1856). 4. Id. at 276. 5. Nathan S. Chapman & Michael W. McConnell, “Due Process as Separation of

Powers,” 121 Yale L.J. 1672, 1677 (2012). 6. For iteration of this point and an excellent summary of the early due pro-

cess law, see Gary Lawson, Federal Administrative Law 671, 674–677 (5th ed., 2009).

7. Dr. Bonham’s Case, 8 Co. Rep. 107a, 114a C.P. (1610). 8. Id. at 118a. 9. See James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the

Origins of American Constitutionalism 49–51 (1992).

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Notes to Pages 318–328 623

10. 1 William Blackstone, Commentaries on the Laws of England 91 (1765). For dis- cussion, see R. H. Helmholz, “Bonham’s Case, Judicial Review, and the Law of Nature,” 1 J. Legal Analysis 325 (2009).

11. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 18 (1980). 12. See the statement in Lon L. Fuller, The Morality of Law 39 (1964). 13. For a detailed defense of this position, see Richard A. Epstein, Design for Lib-

erty: Private Property, Public Administration and the Rule of Law 66–76 (2011). 14. U.S. Const. art. IV, § 1. 15. 118 U.S. 356 (1886). 16. Id. at 369. 17. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 778 (1950); Boumediene v. Bush,

553 U.S. 723 (2008). 18. Eisentrager, 339 U.S. at 781. 19. See 28 U.S.C. § 1332 (c)(1) (“a corporation shall be deemed to be a citizen

of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business”).

20. John Locke, Second Treatise of Government ch. 9 ¶ 123, 124 (1690). 21. 1 Blackstone, supra note 10, at 125. 22. See Restatement (Second) of Torts § 559 (“A communication is defamatory if it

tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”).

23. 1 Blackstone, supra note 10, at 130. 24. 2 Blackstone, supra note 10, at 2. 25. 262 U.S. 390 (1923). 26. Id. at 399. 27. Locke, supra note 20. 28. See, e.g., Tarleton v. M’Gawley, 170 Eng. Rep. 153 (K.B. 1793); People’s Express

Airlines, Inc. v. Consol. Rail Corp., 495 A.2d 107 (N.J. 1985). 29. 341 U.S. 123 (1951). 30. Id. at 137–138 31. See Ellsworth v. Martindale-Hubbell Law Directory, Inc., 280 N.W. 879, 881–882

(N.D. 1938). 32. 341 U.S. at 161. 33. See Locke, supra note 20, ch. 5 (“Of Property”). 34. Charles A. Reich, “The New Property,” 73 Yale L.J. 733 (1964). 35. Id. at 733. 36. W. River Bridge Co. v. Dix, 47 U.S. 507 (1848). 37. 409 U.S. 488 (1973). 38. 182 F.2d 46 (D.C. Cir. 1950). 39. Id. at 57–58. 40. 367 U.S. 886 (1961). 41. Id. at 896. 42. 408 U.S. 564 (1972). 43. See, e.g., Slochower v. Bd. of Higher Educ., 350 U.S. 551 (1956).

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624 Notes to Pages 328–338

44. For an extensive treatment of the subject, see Richard A. Epstein, Bargaining with the State (1993).

45. Wieman v. Updegraff, 344 U.S. 183, 192 (1952). 46. Perry v. Sindermann, 408 U.S. 593 (1972). 47. Id. at 597. 48. 416 U.S. 134 (1974). 49. 5 U.S.C. § 7501. 50. Kennedy v. Sanchez, 349 F. Supp. 863 (N.D. Ill. 1972). 51. Arnett v. Kennedy, 416 U.S. at 154. 52. Id. at 171. 53. 470 U.S. 532 (1985). 54. Id. at 541. 55. In re Winship, 397 U.S. 358 (1970) (Brennan, J.). 56. Apprendi v. New Jersey, 530 U.S. 466 (2000). 57. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). 58. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). For discussion,

see Jared A. Goldstein, “Equitable Balancing in the Age of Statutes,” 96 Va. L. Rev. 485 (2010).

59. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) (patent injunction). See also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365 (2008) (refusing to enjoin naval operations to protect whale watching).

60. 211 U.S. 306 (1908). 61. 198 U.S. 45 (1905). 62. 283 U.S. 589 (1931). 63. 395 U.S. 337 (1969). 64. Id. at 345. 65. 402 U.S. 535 (1971). 66. 400 U.S. 433 (1971). 67. Id. at 434. 68. 397 U.S. 254 (1970). 69. 424 U.S. 319 (1976). 70. Id. at 335.

21. Freedom of Contract

1. 198 U.S. 45 (1905). For an exhaustive defense of the Lochner decision, see David Bernstein, Rehabilitating Lochner: Defending Individual Rights against Pro- gressive Reform (2011), favorably reviewed in 125 Harv. L. Rev. 1120 (2012). Representative of the scorn heaped on the case, see Jack M. Balkin, “‘Wrong the Day It Was Decided’: Lochner and Constitutional Historicism,” 85 B.U. L. Rev. 677 (2005).

2. U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of . . . liberty . . . without due process”).

3. 165 U.S. 578, 589 (1897).

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Notes to Pages 339–345 625

4. See WTO Agreements and Public Health, discussed supra Chapter 10, at note 26; Chapter 15 (“The Dormant Commerce Clause”) at note 22.

5. See Roscoe Pound, “Liberty of Contract,” 18 Yale L.J. 454 (1909). 6. 208 U.S. 161 (1908). 7. 236 U.S. 1 (1915). 8. Id. at 17. 9. Id. at 27. 10. These fi gures are found on the World Socialist website. Jerry White, “UAW

Membership Continues to Plummet,” World Socialist (Apr. 1, 2010), available at http://www.wsws.org/articles/2010/apr2010/uawm-a01.shtml. There was a modest rebound to 376,612 UAW members in 2010. “UAW Mem- bership Increases,” UAW News Releases (Mar. 28, 2013) (Mar. 31, 2011), available at http://www.uaw.org/articles/uaw-membership-increases-0.

11. See, e.g., Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899). 12. For some of these numbers, see Richard A. Epstein, How Progressives Rewrote

the Constitution 3–6 (2006). 13. 208 U.S. 412 (1908). 14. Id. 15. Brief of Respondent, Muller v. Oregon, 208 U.S. 412 (1908), available at http://

www.law.louisville.edu/library/collections/brandeis/node/235. 16. See Bernstein, supra note 1, at 62. 17. See infra Chapter 35 (“Equal Protection and Sex Discrimination”). 18. Railway Labor Act of 1926, Pub. L. No. 69-257, 44 Stat. 577 (current version

at 45 U.S.C. §§ 151–188 (2006)). 19. Norris-La Guardia Act of 1932, Pub. L. No. 72-65, 47 Stat. 70. 20. Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060 (current

version at 29 U.S.C. ch. 28, § 207 et seq. (2006)). 21. 312 U.S. 100, 109–110 (1941). 22. See Harold Demsetz, “Why Regulate Utilities?,” 11 J.L. & Econ. 55 (1968);

Richard A. Posner, “Natural Monopoly and Its Regulation,” 21 Stan. L. Rev. 548 (1969).

23. 169 U.S. 466 (1898). 24. 271 U.S. 23 (1926). 25. Id. at 32. 26. 320 U.S. 591, 603 (1944). 27. Lake Shore & Mich. S. Ry. Co. v. Smith, 173 U.S. 684, 695 (1899). 28. 236 U.S. 585 (1915). 29. Id. at 595–596. 30. 236 U.S. 605 (1915). 31. 251 U.S. 396, 399 (1920). 32. S. Pac. v. Darnell-Taenzer, 245 U.S. 531, 533–534 (1918). 33. 390 U.S. 747 (1968). 34. 488 U.S. 299 (1989). 35. Id.

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626 Notes to Pages 345–356

36. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codifi ed at 47 U.S.C. § 151 et seq. (2006)).

37. United States v. Am. Tel. & Telegraph Co., 552 F. Supp. 131 (D.D.C. 1982), aff’d sub nom. Maryland v. United States, 460 U.S. 1001 (1983).

38. Verizon Commc’ns Inc. v. FCC, 535 U.S. 467, 495 (2002). For earlier litigation under the Telecommunications Act of 1996, see AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 394–395 (1999).

22. Takings, Physical and Regulatory

1. U.S. Const. amend. V. 2. 364 U.S. 40, 49 (1960). 3. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). 4. William Michael Treanor, “The Original Understanding of the Takings Clause

and the Political Process,” 95 Colum. L. Rev. 782 (1995). For an updated defense of the Treanor thesis, see Matthew P. Harrington, “Regulatory Tak- ings and the Original Understanding of the Takings Clause,” 45 Wm. & Mary L. Rev. 2053 (2004).

5. Treanor, supra note 4, at 785. 6. Id. 7. See supra Chapter 20 (“Procedural Due Process: Implementing the Classical

Liberal Ideal”). 8. See Richard A. Epstein & Michael S. Greve, “Federal Preemption: Principles

and Politics,” Federalist Outlook 4 (Jun. 2007), available at http://www.aei. org/fi les/2007/06/04/20070604_Federalistg.pdf.

9. See Lawrence Lessig, “Fidelity in Translation,” 71 Tex. L. Rev. 1165 (1993). 10. Treanor, supra note 4, at 818–819. 11. Id. at 788. 12. Id. at 788, quoting Forrest McDonald, Novus Ordo Seclorum: The Intellectual

Origins of the Constitution 23 (1985). 13. Treanor, supra note 4, at 856. 14. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain

(1985). 15. Richard A. Epstein, Supreme Neglect: How to Revive Constitutional Protection for

Private Property (2008). 16. See, e.g., C. B. Macpherson, The Political Theory of Possessive Individualism (1962). 17. For a more detailed explanation, see Richard A. Epstein, “Covenants and

Constitutions,” 73 Cornell L. Rev. 906 (1988). 18. See Richard A. Epstein, “Nuisance Law: Corrective Justice and Its Utilitarian

Restraints,” 8 J. Legal Stud. 49, 66 n.46 (1979). 19. 515 U.S. 687 (1995). 20. Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. § 1531 (1988 ed.

and Supp. V). 21. 50 CFR § 17.3. 22. 16 U.S.C. § 1539(a)(2)(A).

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Notes to Pages 356–367 627

23. See Ronald Bailey, “Shoot, Shovel, and Shut Up: Celebrating 30 Years of Failing to Save Endangered Species,” Reason Magazine (Dec. 31, 2003), avail- able at http://reason.com/archives/2003/12/31/shoot-shovel-and-shut-up.

24. See, e.g., Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527 (1906). 25. 304 N.W.2d 455 (Mich. 1981). Fortunately in Michigan, Poletown has been

overruled by County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004). 26. 467 U.S. 229 (1984). 27. 545 U.S. 469 (2005). 28. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). 29. Ga. Code Ann. § 22-1-6. 30. See Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125 (1922). 31. Sanguinetti v. United States, 264 U.S. 146, 149 (1924) (Sutherland, J.). 32. 133 S. Ct. 511 (2012). 33. 637 F.3d 1366, 1377 (Fed. Cir. 2011). 34. Ark. Game & Fish, 133 S. Ct. at 518. 35. For an extended critique of both decisions, see Richard A. Epstein, “The

Takings Clause and Partial Interests in Land: On Sharp Boundaries and Con- tinuous Distributions,” 78 Brook. L. Rev. 589 (2013).

36. 438 U.S. 104, 124 (1978). 37. Id. 38. 260 U.S. 393 (1922). 39. For a detailed discussion, see William Fischel, Regulatory Takings: Law, Eco-

nomics and Politics (1995). 40. See, e.g., Williamson Cnty. Regional Planning Comm’n v. Hamilton Bank, 473

U.S. 172 (1985). 41. San Remo Hotel, L.P. v. City and Cnty. of San Francisco, 545 U.S. 323 (2005). 42. 272 U.S. 365 (1926). 43. 505 U.S. 1003 (1992). 44. Eliot Brown, “Council Torpedoes Kingsbridge Armory, Again,” N.Y. Observer

(Dec. 21, 2009), available at http://www.observer.com/2009/real-estate/ kingsbridge-armory-torpedoed-council-again (“The Council voted on Mon- day afternoon, 48–1, to override the mayor’s veto, as the body, and partic- ularly most of the Bronx delegation, had become insistent that all retailers inside the mall pay a living wage to their employees, which would have been a new standard in the city.”).

45. Yee v. City of Escondido, 503 U.S. 519 (1992). 46. 256 U.S. 135 (1921). 47. Kim Velsey, “Rental Relief! Mayor Bloomberg Renews NYC Rent Regulation

Law,” N.Y. Observer (Mar. 27, 2012), available at http://observer.com/2012/03/ rental-relief-mayor-bloomberg-renews-nyc-rent-regulation-law.

23. Personal Liberties and the Morals Head of the Police Power

1. For an extensive discussion, see William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth Century America (1996).

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628 Notes to Pages 367–378

2. See generally Stone v Mississippi, 101 U.S. 814 (1880). 3. For explication, see Jonathan Haidt, “The Emotional Dog and Its Rational Tail: A

Social Intuitionist Approach to Moral Judgment,” 108 Psychol. Rev. 814 (2001). 4. 98 U.S. 145 (1878). 5. Id. at 168. 6. 103 F. 10 (C.C.N.D. Cal. 1900) (No. 12,940). 7. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (dealing with discrimina-

tory rules for laundry permits). 8. Conn. Gen. Stat. § 53-32 (1958). 9. Id. § 54-196. 10. 381 U.S. 479 (1965). 11. See id. at 484 (“The foregoing cases [dealing with religion, speech, associa-

tion, and quartering soldiers] suggest that specifi c guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”).

12. Id. at 486–499. 13. Id. at 499–502. 14. U.S. Const. amend. IX. 15. Griswold, 381 U.S. at 485–486. 16. See Eisenstadt v. Baird, 405 U.S. 438 (1972). 17. 410 U.S. 113 (1973). 18. Richard A. Epstein, “Substantive Due Process by Any Other Name: The

Abortion Cases,” 1973 Sup. Ct. Rev. 159. 19. John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82

Yale L.J. 920 (1973). 20. See Second Employers’ Liability Cases, 223 U.S. 1 (1912); N.Y. Cent. R.R. Co. v.

White, 243 U.S. 188 (1917) (dealing with workers’ compensation). 21. John Stuart Mill, On Liberty 68 (1982) (1859). 22. Roe, 410 U.S. at 157–159. 23. Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex

Discrimination 28 (1979). 24. 478 U.S. 186 (1986). 25. On its prevalence, see William J. Novak, The People’s Welfare: Law and Regula-

tion in Nineteenth-Century America 274 (1996). 26. Bowers, 478 U.S. at 191. 27. Id. at 192–193. 28. 539 U.S. 558 (2003). 29. Id. at 567. 30. Id. at 562. 31. Id. at 578. 32. Id. at 562. 33. Id. at 579. 34. Id. at 578. 35. Id. at 579. 36. Id. at 578.

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Notes to Pages 378–392 629

37. Cal. Const. art. I, § 7.5. 38. 671 F.3d 1052 (9th Cir. 2012). 39. 699 F.3d 169 (2d Cir. 2012). 40. Id. at 562. 41. In re Marriage Cases, 183 P. 3d 384 (Cal. 2008). For a longer account of equal

protection as it relates to sex, see infra Chapter 35 (“Equal Protection and Sex Discrimination”).

24. Freedom of Speech and Religion

1. U.S. Const. amend. I. 2. Hugo Black, “The Bill of Rights,” 35 N.Y.U. L. Rev. 865 (1960). 3. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980). 4. Abrams v. United States, 250 U.S. 616, 630 (1919). 5. See Lochner v. New York, 198 U.S. 45, 75–76 (1905) (Holmes, J., dissenting). 6. Robert H. Bork, “Neutral Principles and Some First Amendment Problems,”

47 Ind. L.J. 1 (1971). 7. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government

(1948). 8. Vince Blasi, “The Checking Value in First Amendment Theory,” 1977 Am. B.

Found. Res. J. 521 (1977). 9. See, e.g., Martin Redish, “The Value of Free Speech,” 130 U. Pa. L. Rev. 591

(1982). 10. Thomas Emerson, The System of Freedom of Expression 1 (1970). 11. United States v. O’Brien, 391 U.S. 367 (1968). 12. Texas v. Johnson, 491 U.S. 397 (1989). 13. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1968). 14. Emerson, supra note 10, at 5–6. 15. Tinker, 393 U.S. at 505–506. 16. See U.S. Const. art. I, § 8, cl. 8 (“Congress shall have the power . . . To pro-

mote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”).

17. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 575 (1991) (distinguishing activ- ities prohibited for causing harm to others from activities prohibited as “immoral”); see also City of Erie v. Pap’s A.M., 529 U.S. 277 (2000).

18. Hosana-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706– 708 (2012), discussed infra Chapter 29 (“Religion: Free Exercise”).

19. See, e.g., Webster’s Dictionary, available at http://www.webster-dictionary. net/defi nition/religion.

20. John Stuart Mill, On Liberty (1982) (1859). 21. For the classic common law statement of the no-duty-to-rescue rule, see

Buch v. Armory Mfg., 44 A. 809 (N.H. 1897). The basic rule remains in place today notwithstanding extensive academic criticism, if only because the alternatives are worse. Restatement (Second) Torts § 315.

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630 Notes to Pages 392–403

22. Barnes, 501 U.S. at 575. 23. Id. 24. 478 U.S. 186 (1986). 25. Id. at 210 n.5 (attacking the decision on the grounds that justifi cations like

those were rejected in Loving v. Virginia, 388 U.S. 1 (1967)). 26. For discussion, see supra Chapter 22 (“Takings, Physical and Regulatory”). 27. See, e.g., Metro Media v. City of San Diego, 453 U.S. 490 (1981) (striking down

a statute that prohibited noncommercial signs on an owner’s own premises while allowing commercial signs).

28. See Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc–2000cc-5 (2006), discussed supra Chapter 29 (“Religion: Free Exercise”).

29. For some sense of the diffi culties, see Ballard v. United States, 322 U.S. 78 (1946).

25. Force, Threats, and Inducements

1. For the leading case, see Lumley v. Gye, 118 Eng. Rep. 749 (K.B. 1853). 2. See St. Rubbish Collectors Ass’n v. Siliznoff, 240 P. 2d 282 (Cal. 1952) (holding

that threats at meetings were actionable only if they applied in the future). 3. For an exhaustive analysis of these cases from a strong free speech perspective,

see Geoffrey R. Stone, Perilous Times: Free Speech in Wartime 135–233 (2004). 4. Espionage Act, ch. 30, tit. I, § 3, 49 Stat. 219 (1917). 5. See Patterson v. Colorado, 205 U.S. 454, 463 (1907). 6. 255 F. 886 (9th Cir. 1919). 7. 249 U.S. 47 (1919). 8. Id. at 52. 9. Id. 10. Id. 11. 221 U.S. 418 (1911). 12. Id. at 439. 13. 249 U.S. at 52. 14. 244 F. 535 (S.D.N.Y. 1917). 15. 249 U.S. 211 (1919). 16. 250 U.S. 616 (1919). 17. Id. at 627. 18. Id. 19. Id. at 630. 20. 268 U.S. 652 (1925). 21. 274 U.S. 357 (1927). 22. Smith Act, tit. I, § 2(a)(1), 54 Stat. 670, 671 (1940) (current version at 18

U.S.C. § 2385). 23. Id. at 2(a)(2) & 2(a)(3). 24. 341 U.S. 494 (1951).

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Notes to Pages 403–411 631

25. Dennis, 341 U.S. at 501–503. 26. United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950). 27. Dennis, 341 U.S. at 579. 28. 354 U.S. 298 (1957). 29. 372 U.S. 229 (1963). 30. 379 U.S. 536 (1965). 31. 395 U.S. 444 (1969). 32. For different views, see Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284 (1957);

Thornhill v. Alabama, 310 U.S. 88 (1940); and Vegalahn v. Guntner, 44 N.E. 77 (Mass. 1896) (split decision with a Holmes dissent skeptical of the injunction).

26. Fraud, Defamation, Emotional Distress, and Invasion of Privacy

1. See, e.g., Beach v. Hancock, 27 N.H. 223 (1853). 2. 33 U.S.C. §§ 1251–1387 (2006). 3. 42 U.S.C. §§ 7401–7671 (2006). 4. See Valentine v. Chrestensen, 316 U.S. 52 (1942). 5. See Ronald H. Coase, “Advertising and Free Speech,” 6 J. Legal Stud. 1

(1977). For respectful criticism that classes commercial speech as low value, see Geoffrey R. Stone, “Ronald Coase’s First Amendment,” 54 J. L. & Econ. S367 (2011).

6. See Dicke v. Fenne, 82 Eng. Rep. 411 (K.B. 1639) (holding actionable defen- dant’s statement that he could give “a peck of malt to his mare, and she would piss as good beer as [the plaintiff] doth brew”); Millington v. Fox, 40 Eng. Rep. 956 (Ch. 1833) (granting injunctive relief against defendant’s use of plaintiff’s identifying stamp on its similar products).

7. Pub. L. No. 79-489, 60 Stat. 427 (codifi ed as amended at 15 U.S.C. §§ 1051– 1141 (2006)). For a discussion of the constitutional issues that arise with expanded trademark protection, see Robert C. Denicola, “Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Pro- tection of Trade Symbols,” 1982 Wis. L. Rev. 158 (1982).

8. Copyright Revisions Act of 1976, 17 U.S.C. § 107 (2006). 9. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). 10. 447 U.S. 557 (1980). 11. Id. at 566–567. 12. Id. at 566. 13. Id. 14. Id. at 571–572. 15. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). 16. 132 S. Ct. 2537 (2012). 17. Stolen Valor Act of 2005, Pub. L. No. 109-437, 120 Stat. 3266 (2006) (codi-

fi ed at 18 U.S.C. § 704 (2006)). 18. Alvarez, 132 S. Ct. at 2542. 19. Id. at 2558.

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632 Notes to Pages 411–416

20. Id. at 2543. 21. Id. (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)). 22. Id. at 2551–2556 (Breyer, J., concurring). 23. 4 William Blackstone, Commentaries on the Law of England 151, 152 (1769). 24. Id. 25. 376 U.S. 254 (1964). 26. Post Publ’n Co. v. Hallam, 59 F. 530 (6th Cir. 1893). For earlier English views

on the scope of the fair comment privilege, see Carr v. Hood, 170 Eng. Rep. 981 (K.B. 1808). For English commentary on the topic, see George Spencer Bower, A Code on the Law of Actionable Defamation (1908).

27. See, e.g., the infl uential English decision E. Hulton & Co. v. Jones [1910], A.C. 20.

28. For the classic discussion, see Van Vechten Veeder, “Freedom of Public Dis- cussion,” 23 Harv. L. Rev. 413 (1910).

29. 283 U.S. 697 (1931). 30. For the classic discussion of the connection, see Harry Kalven, Jr., The Negro

and the First Amendment (1965). 31. 376 U.S. 254 (1964). 32. See id. at 256; 28 U.S.C. § 1441(b) (1958) (allowing removal to federal court

only where no defendant “is a citizen of the State in which such action is brought”).

33. 376 U.S. at 267. 34. Curtis Publ’g Co v. Butts, 388 U.S. 130 (1967). 35. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); see also Gertz, 418 U.S. at

369 (White, J., dissenting) (for a strong defense of the older strict liability common law rules).

36. Sullivan, 376 U.S. at 279–280. 37. See, e.g., Cal. Civ. Code § 48a (West 2010) (establishing procedures for

requesting and publishing retractions). 38. Sharon v. Time, Inc., 599 F. Supp. 538, 586 (S.D.N.Y. 1984). 39. See Pierre N. Leval, “The No-Money, No-Fault Libel Suit: Keeping Sullivan in

Its Proper Place,” 101 Harv. L. Rev. 1267 (1988) (arguing for the recognition of a no-damages libel suit, where the plaintiff would sue for a judgment of the issue of falsity without having to prove “actual malice”).

40. I. de S. & Wife v. W. de S., Y. B. Lib. Ass. folio 99, placitum 60 (1348). 41. See, e.g., Wilkinson v. Downton, 2 Q.B. 57 [1897] (involving violent physio-

logical responses and nervous shock to a practical joke when a woman was falsely told that her husband had been badly injured); Restatement (Second) of Torts § 46.

42. 485 U.S. 46 (1988). 43. Id. at 48. 44. Id. at 56–57. 45. Burton v. Crowell Publ’g Co., 82 F.2d 154 (2d Cir. 1936) (holding actionable an

inadvertent obscene photograph). 46. Hustler, 485 U.S. at 56–57.

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Notes to Pages 416–426 633

47. Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526, 1530 (C.D. Cal. 1985) (noting that “sending along an actual copy of the parody was part of Falwell’s ‘marketing approach’ to fund-raising”).

48. 131 S. Ct. 1207 (2011). 49. See, e.g., Thing v. La Chusa, 771 P.2d 814 (Cal. 1989). 50. Samuel Warren & Louis Brandeis, “The Right to Privacy,” 4 Harv. L. Rev. 193

(1890). 51. Roach v. Harper, 105 S.E.2d 564 (Va. 1958). 52. See, e.g., Sidis v. F-R Publ’g Corp., 113 F.2d 806, 810 (2d Cir. 1940). 53. William L. Prosser, “Privacy,” 48 Cal. L. Rev. 383 (1960). 54. 483 P. 2d 34 (Cal. 1971). 55. 420 US. 469 (1975), reiterated in The Florida Star. v. B.J.F., 491 U.S. 524 (1989). 56. 410 U.S. 113 (1973). 57. New York Times Co. v. United States (Pentagon Papers Case), 403 U.S. 713 (1971). 58. Id. at 714. 59. For a modern statement of the rule see Uniform Commercial Code, §§

8-301–8-302. For discussion see Saul Levmore, “Variety and Uniformity in the Treatment of the Good-Faith Purchaser,” 16 J. Legal Stud. 43 (1987); Alan Schwartz & Robert E. Scott, “Rethinking the Laws of Good Faith Purchase,” 111 Colum. L. Rev. 1332 (2011).

60. David Souter, Commencement Address, Harvard Univ. (May 27, 2010), available at http://news.harvard.edu/gazette/story/2010/05/text-of-justice- david-souters-speech.

61. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codifi ed as amended in scattered sections of 50 U.S.C.).

62. 5 U.S.C. § 552 (2006). 63. 67 F. Supp. 2d 745 (E.D. Mich. 1999) For my views on this topic, see Richard

A. Epstein, “Privacy, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism,” 52 Stan. L. Rev. 1003 (2000).

64. 67 F. Supp. 2d at 747. 65. Id. at 753.

27. Government Regulation of the Speech Commons

1. For discussion, see Richard A. Epstein, “On the Optimal Mix of Common and Private Property,” 11 Soc. Phil. & Pol. (No. 2) 17 (1994).

2. See chapter 21, supra. 3. See 271 U.S. 583 (1926). 4. Id. at 592. 5. See Mich. Pub. Util. Comm’n v. Duke, 266 U.S. 570, 577–578 (1925) (Butler,

J.). 6. See Stephenson v. Binford, 287 U.S. 251 (1932). 7. 29 N.E. 517 (Mass. 1892). 8. Id. at 517–518. 9. 39 N.E. 113 (1895).

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634 Notes to Pages 426–438

10. Id. at 113. 11. Davis v. Massachusetts, 167 U.S. 43, 48 (1897). 12. See supra Chapter 16. 13. 307 U.S. 496 (1939). 14. Id. at 515. 15. Hague v. Committee for Industrial Organization, 101 F.2d 774, 778 (3d Cir.

1939). 16. See Cox v. New Hampshire, 312 U.S. 569, 574 (1941). 17. Kovacs v. Cooper, 336 U.S. 77 (1949). 18. Ward v. Rock against Racism, 491 U.S. 781 (1989). 19. 308 U.S. 147 (1939). 20. 507 U.S. 410 (1993). 21. I develop this theme in Richard A. Epstein, “The Public Trust Doctrine,” 7

Cato J. 411 (1987). 22. 515 U.S. 557 (1995). 23. Mass. Gen. Laws ch. 272, § 98 (1992). 24. Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston, 636

N.E.2d 1293, 1295–1298 (Mass. 1994). 25. Hurley, 515 U.S. at 577. 26. Id. at 576. 27. Id. at 568. 28. Id. at 573. 29. Healy v. James, 408 U.S. 169 (1972). 30. 130 S. Ct. 2971 (2010). 31. Id. at 2979. 32. Id. at 2974. 33. 391 U.S. 563 (1968). 34. 330 U.S. 75 (1947). 35. 5 U.S.C. § 7324 (1939). 36. Elrod v. Burns, 427 U.S. 347 (1976). 37. 461 U.S. 138, 142 (1983). 38. 547 U.S. 410 (2006). 39. Id. at 421. 40. For my defense, see Richard A. Epstein, “Can Anyone Beat the Flat Tax?,”

19(1) Soc. Philo. & Pol. 140 (2002). 41. See, e.g., Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916). 42. 460 U.S. 575 (1983). 43. 297 U.S. 233 (1936). 44. 357 U.S. 513 (1958). 45. 481 U.S. 221 (1987).

28. Progressive Regulation of Freedom of Speech

1. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663 (1991). 2. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 486 (1993).

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Notes to Pages 438–446 635

3. 326 U.S. 1 (1945). 4. 301 U.S. 103 (1937). 5. Id. at 132–133. 6. Quoting 79 Cong. Rec. 7565 (1935), reprinted in 2 NLRB, Legislative History of

the National Labor Relations Act, 1935, at 2321 (1949). 7. See Archibald Cox, “Rights under a Labor Agreement,” 69 Harv. L. Rev. 601

(1956). 8. 468 U.S. 609, 623 (1984) (noting the tension between the principle of free-

dom of association and a general antidiscrimination law). 9. See Adair v. United States, 208 U.S. 161 (1908) (federal); Coppage v. Kansas, 236

U.S. 1 (1915) (state). 10. Clayton Antitrust Act of 1914, 15 U.S.C. § 17 and 29 U.S.C. § 52 (2006). 11. See Okla. Press Pub’g Co. v. Walling, 327 U.S. 186 (1946) (Fair Labor Standards

Act). 12. 29 U.S.C. § 158(a)(1), which makes it an unfair labor practice for an

employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [29 U.S.C. § 157: Right of employees as to organiza- tion, collective bargaining, etc.].”

13. 29 U.S.C. § 158(c). 14. See, e.g., NLRB v. Exch. Parts Co., 375 U.S. 405 (1964). 15. Steven Greenhouse, “Former N.L.R.B. Member Takes Post in a Big Union,”

N.Y. Times (May 22, 2012), at B2, available at http://www.nytimes.com/2012/ 05/23/business/craig-becker-appointed-to-afl -cio-role.html?_r=0.

16. Craig Becker, “Democracy in the Workplace: Union Representation Elections and Federal Labor Law,” 77 Minn. L. Rev. 495 (1993); for a detailed response, see Richard A. Epstein, “The Deserved Demise of EFCA (and Why the NLRA Should Share Its Fate),” in Research Handbook on the Economics of Labor and Employment Law 177, 180–185 (M. Wachtler & C. Estlund eds, 2012).

17. See James W. Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (3rd ed., 2008).

18. See supra Chapter 17 (“Delegation and the Rise of Independent Agencies”). 19. Nat’l Broad. Co. v. United States, 319 U.S. 190, 227 (1943). 20. Id. at 215. 21. 418 U.S. 241 (1974). 22. Id. at 257. 23. Id. at 248, 251. 24. 395 U.S. 367 (1969). 25. Upheld in Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989). 26. 395 U.S. at 390. 27. Cosmopolitan Broad. Corp. v. FCC, 581 F.2d 917 (D.C. Cir. 1978). 28. CBS v. FCC, 453 U.S. 367, 395 (1981) (quoting Offi ce of Commc’n of the United

Church of Christ v. FCC, 359 F.2d 994, 1003 (D.C. Cir. 1966)). 29. 18 U.S.C. § 1464 added by 62 Stat. 769 (80th Cong. Sess. 2, 1948). 30. 556 U.S. 502 (2009). 31. 558 U.S. 310 (2010).

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636 Notes to Pages 446–456

32. For one such popular denunciation, see Jamie Raskin, “‘Citizens United’ and the Corporate Court,” The Nation (Sept. 13, 2012), available at http://www. thenation.com/article/169915/citizens-united-and-corporate-court#.

33. Elihu Root, Addresses on Government and Citizenship 143 (R. Bacon & J. Scott eds., 1916), quoted in McConnell v. FEC, 540 U.S. 93, 115 (2003) (internal citation omitted).

34. See NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 460 (1958). 35. For the broader reading of that clause, see John D. Inazu, Liberty’s Refuge: The

Forgotten Freedom of Assembly (2012). 36. Pub. L. No. 59-36, 34 Stat. 864 (1907) (codifi ed as amended at 2 U.S.C. §

441b(a) (2006)). 37. Labor Management Relations (Taft-Hartley) Act of 1947, Pub. L. No. 80-101,

§ 304, § 313, 61 Stat. 136, 159 (superseded by Federal Election Campaign Act Amendment of 1976, Pub. L. No. 94-283, § 112, § 321, 90 Stat. 475, 490) (codifi ed as amended at 2 U.S.C. § 441b(a) (2006)).

38. Pub. L. No. 76-252, 53 Stat. 1147 (codifi ed as amended in scattered sections of 5 and 18 U.S.C.).

39. 330 U.S. 127 (1947). 40. 424 U.S. 1 (1976). 41. See 130 S. Ct. 2811, 2821 (2010). 42. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 499 (7th Cir. 2012). 43. 554 U.S. 724 (2008). 44. See, e.g., Fabrizio Perri & Joe Steinberg, Inequality and Redistribution during

the Great Recession, Economic Policy Papers (Federal Reserve Bank of Min- neapolis, Feb. 2012), available at http://www.minneapolisfed.org/pubs/ eppapers/12-1/epp_12-1_inequality.pdf (fi nding that redistribution through taxes and transfer programs reached historically high levels in 2010).

45. 131 S. Ct. 2806 (2011). 46. Ariz. Rev. Stat. Ann. § 16-940 et seq. (West 2006 & Supp. 2010). 47. Bennett, 131 S. Ct. at 2829. 48. Id. 49. 17 U.S. 518, 636 (1819). 50. 435 U.S. 765, 823 (1978). 51. Id. at 825. 52. Id. 53. U.S. Const. art. I, § 10, cl. 1. 54. See, e.g., Henry N. Butler, “The Contractual Theory of the Corporation,” 11

Geo. Mason U.L. Rev. 99 (1989). 55. 211 U.S. 45 (1908). 56. 494 U.S. 652 (1990). 57. Mich. Comp. Laws § 169.254(1) (1979). 58. Austin, 494 U.S. at 658. 59. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995). 60. 540 U.S. 93 (2003).

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Notes to Pages 456–466 637

61. Pub. L. No. 107-155, 116 Stat. 81 (2002) (codifi ed in scattered sections of 2, 18, 28, and 47 U.S.C.).

62. Section 323(b). 63. McConnell, 540 U.S. at 150. 64. Id. at 119–120 n.6. 65. 291 U.S. 505 (1934. 66. 551 U.S. 449 (2007). 67. Id. at 456–457. 68. Citizens United v. FEC, 130 S. Ct. 876, 949–950 (2010) (Stevens, J., dissenting). 69. See John Mackey, Opinion, “The Whole Foods Alternative to ObamaCare,”

Wall St. J. (Aug. 11, 2009), at A15, available at http://online.wsj.com/article/ SB10001424052970204251404574342170072865070.html.

70. See, e.g., James Bopp, Jr. & Kaylan Lytle Phillips, “The Limits of Citizens United v. Federal Election Commission: Analytical and Practical Reasons Why the Sky Is Not Falling,” 46 U.S.F. L. Rev. 281, 300–302 (2011); see generally Richard A. Epstein, “Citizens United v. FEC: The Constitutional Right That Big Corpora- tions Should Have but Do Not Want,” 34 Harv. J.L. & Pub. Pol’y 639 (2011).

29. Free Exercise

1. U.S. Const. amend. I. 2. Id. 3. Id. 4. For an early defense of the neutrality position, see Philip Kurland, “Of

Church and State and the Supreme Court,” 29 U. Chi. L. Rev. 1 (1961). For a defense of the view that the Free Exercise Clause allows for religious exemp- tions to accommodate religious beliefs, see Michael W. McConnell, “The Ori- gins and Historical Understanding of Free Exercise of Religion,” 103 Harv. L. Rev. 1409 (1990).

5. 98 U.S. 145 (1879). 6. Id. at 166–167. 7. Id. 8. Genesis 29:28, 30:4, 30:9. 9. Id. at 166. 10. See, e.g., John Locke, Second Treatise of Government ch. 2 ¶ 6 (C. B. Macpher-

son ed., 1980) (1690). 11. Immanuel Kant, Fundamental Principles of the Metaphysics of Morals (Thomas

Kingsmill Abbott trans., Merchant Books, 2009) (1785). 12. For my own views, see Richard A. Epstein, Mortal Peril: Our Inalienable Right

to Health Care? 306–308 (1997). 13. See, e.g., Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S.

702 (1997). 14. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). 15. 321 U.S. 158 (1944).

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638 Notes to Pages 466–471

16. Id. at 165. 17. Id. at 170. 18. Id. at 171 (Murphy, J., dissenting). 19. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913). 20. Prince, 321 U.S. at 166 (citing Pierce v. Society of Sisters, 268 U.S. 510 (1925)). 21. Pierce v. Society of Sisters, 268 U.S. 510 (1925); see also Meyer v. Nebraska, 262

U.S. 390 (1923) (holding that the state could not prohibit the education of children in languages other than English).

22. 406 U.S. 205 (1972). 23. Edwin G. West, Education with and without the State, HCO Working Paper 61

(World Bank, 1996), available at http://www.schoolchoices.org/roo/west1. htm (cross-country comparison of historical and modern systems of educa- tion); Edwin G. West, Education and the Industrial Revolution (2d ed., 2001) (noting the spread of education during the Industrial Revolution prior to government intervention).

24. 455 U.S. 252 (1982). 25. 26 U.S.C. § 1402(g)(1) (1960). 26. Lee, 455 U.S. at 255. 27. Id. at 257. 28. Id. at 258. 29. Id. at 260. 30. For the standard account, see Mancur Olson, The Logic of Collective Action:

Public Good and the Theory of Groups (1965). 31. 476 U.S. 693 (1986). 32. 461 U.S. 574 (1983). 33. Harris v. McCrae, 448 U.S. 297, 329 (1980) (Brennan, J.). For my own con-

fl icted views, see Richard A. Epstein, Bargaining with the State 285–294 (1993).

34. Bob Jones, 461 U.S. at 603. 35. See the discussion of Speiser v. Randall, 357 U.S. 513 (1958), supra Chapter 27

(“Government Regulation of the Speech Commons”). 36. 494 U.S. 872 (1990). 37. Id. at 877-878. 38. Id. at 878. 39. Id. at 881–882. 40. 310 U.S. 296 (1940). 41. Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq.

(2006). 42. 521 U.S. 507 (1997). 43. Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§

2000cc–2000cc-5 (2006). 44. Id. § 2000cc-1(a). 45. Id. § 2000cc-1(a)(1)–(2). 46. 544 U.S. 709 (2005).

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Notes to Pages 472–477 639

47. St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 640 (7th Cir. 2007) (holding that the O’Hare Modernization Act falls outside RLUIPA).

48. 132 S. Ct. 694 (2012). 49. Pub. L. No. 101-336, 104 Stat. 327 (codifi ed as amended at 42 U.S.C. §§

12,101–213 (2006)). 50. For the case, see Richard A. Epstein, Forbidden Grounds: The Case against

Employment Discrimination Laws 480–494 (1992). 51. Hosana Tabor, 132 S. Ct. at 707. 52. 440 U.S. 490 (1979). 53. Hosana Tabor, 132 S. Ct. at 697. 54. Roman Catholic Archbishop of Washington v. Sebelius, No. 12-815 (D.D.C. fi led

May 21, 2012); University of Notre Dame v. Sebelius, No. 12-253 (N.D. Ind. fi led May 21, 2012).

55. 42 U.S.C. § 300gg-13(a)(4); Group Health Plans and Health Insurance Issu- ers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011) (to be codifi ed at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590, & 45 C.F.R. pt. 147) (interim fi nal rules providing for an exemption for direct payment for contraceptives as pre- ventive care for employers while still requiring insurers to include contra- ception as covered preventive care for women). See also Certain Preventive Services under the Affordable Care Act, 77 Fed. Reg. 16,501 (proposed Mar. 21, 2012) (to be codifi ed at 26 C.F.R pt. 54, 29 C.F.R. pt. 2590, & 45 C.F.R. pt. 147) (proposing similar requirements as interim fi nal rules).

56. The letter was read into the Congressional Record on the fl oor of the House of Representatives the day it was released. 158 Cong. Rec. E1369-72 (daily ed. Aug. 1, 2012) (statement of Rep. Laura Richardson).

57. Id. 58. Id. 59. U.S. Const. art. VI, cl. 3. 60. Sacramental Test Act, 1828, 9 Geo. IV, c. 17. 61. Catholic Relief Act, 1829, 10 Geo. IV, c. 7. 62. Torcaso v. Watkins, 367 U.S. 488, 489 (1961). The offending law was Article 37

of the Declaration of Rights of the Maryland Constitution. 63. McDaniel v. Paty, 435 U.S. 618 (1978). 64. 321 U.S. at 170. 65. See, e.g., Schneider v. State, 308 U.S. 147 (1939). 66. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984). 67. 485 U.S. 439 (1988). 68. Id. at 453. 69. See Johnson v. M’Intosh, 21 U.S. 543 (1823) (where an earlier Indian title in

land was inferior to a subsequent government title). 70. For discussion, see Ira C. Lupu, “Where Rights Begin: The Problem of Bur-

dens on the Free Exercise of Religion,” 102 Harv. L. Rev. 933 (1989). 71. 310 U.S. 586 (1940).

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640 Notes to Pages 477–490

72. Id. at 595. 73. Id. 74. 319 U.S. 624 (1943). 75. Id. at 646. 76. See Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 511 (1969). 77. Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2006). 78. 374 U.S. 398 (1963). 79. Id. at 404. 80. Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2006). 81. Id. 82. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). 83. 475 U.S. 503 (1986). 84. Wilson v. U.S. W. Commc’ns, 58 F.3d 1337 (8th Cir. 1995).

30. The Establishment Clause

1. For a discussion of these practices, see Everson v. Bd. of Educ., 330 U.S. 1 (1947).

2. See, e.g., id. at 12–13; Hening, 12 Statutes of Virginia 84 (1823); James Mad- ison, Memorial and Remonstrance against Religious Assessments, reprinted in 2 Writings of James Madison 183 (Gaillard Hunt ed., 1900).

3. For a discussion and references, see Abington Sch. Dist. v. Schempp, 374 U.S. 203, 254–258 (1963) (Brennan, J., concurring).

4. Everson, 330 U.S. 1. 5. Id. at 3. 6. Zorach v. Clauson, 343 U.S. 306 (1952). 7. McCollum v. Bd. of Educ., 333 U.S. 203 (1948). 8. Zorach, 343 U.S. at 315. 9. See Robert C. Cord, Separation of Church and State: Historical Fact and Current

Fiction 35 (1982). 10. Id. at 23. 11. 463 U.S. 783 (1983). 12. Id. at 788. 13. Cord, supra note 9, at 13. 14. Terrett v. Taylor, 13 U.S. 43, 49 (1815). 15. U.S. Const. amend. I. 16. See, e.g., Ellen Frankel Paul, Property Rights and Eminent Domain (2008). 17. Letter from Thomas Jefferson to Messrs. Nehemiah Dodge, Ephraim Rob-

bins, and Stephen S. Nelson, Comm. of the Danbury Baptist Ass’n in the State of Conn. (Jan. 1, 1802), available at http://www.loc.gov/loc/lcib/9806/ danpre.html (emphasis in original).

18. See Restatement (Second) of Torts § 822 cmt. g (based on Bamford v. Turnley, 122 Eng. Rep. 25, 26 (K.B. 1860)).

19. 403 U.S. 602 (1971). 20. Id. at 607.

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Notes to Pages 490–504 641

21. Id. at 612–613 (internal citations omitted). 22. For discussion of these cases, see infra Chapters 31 (“The Establishment

Clause: Regulation and Subsidy”) and 32 (“Establishment: The Commons”).

31. Regulation and Subsidy under the Establishment Clause

1. 366 U.S. 420 (1961). 2. 366 U.S. 599 (1961). 3. McGowan, 366 U.S. at 445. 4. Id. at 445; see Braunfi eld, 366 U.S. at 607 (pointing out that, as the Court

similarly found in McGowan, “we cannot fi nd a State without power to pro- vide a weekly respite from all labor and, at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tran- quillity [sic]”).

5. Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985). The Connecticut statute was: Conn. Gen. Stat. § 53-303e(b).

6. Estate of Thornton, 472 U.S. at 709. 7. “EU Accuses U.S. of Paying Billions in Boeing Subsidies,” USA Today (Mar.

23, 2007), available at http://www.usatoday.com/travel/fl ights/2007-03-23- eu-boeing-subsidy-ap_N.htm.

8. Everson v. Bd. of Educ., 330 U.S. 1 (1947). 9. Id. at 17. 10. Id. at 24. 11. Lemon v. Kurtzman, 403 U.S. 602 (1971). 12. Id. at 607. 13. Bd. of Educ v. Allen, 392 U.S. 236 (1968). 14. Meek v. Pittenger, 421 U.S. 349 (1975). 15. Wolman v. Walter, 433 U.S. 229 (1977). 16. See Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985), overruled by Agos-

tini v. Felton, 521 U.S. 203 (1997); Aguilar v. Felton, 473 U.S. 402 (1985) also; strik. 521 U. S. 203, overruled by Agostini, 521 U.S. at 203.

17. 463 U.S. 388 (1983). 18. 536 U.S. 639 (2002). 19. 397 U.S. 664 (1970). 20. On tax expenditures, see supra Chapter 13 (“Enumerated Powers: Taxing

and Spending”), at note 42. 21. Walz, 397 U.S. at 691. 22. See, e.g., Karin Fischer, “Brown U. to Pay Its Hometown $31.5-Million to Help

Close Budget Gap,” The Chronicle of Higher Education (May 1, 2012), available at http://www.chronicle.com/article/Brown-U-to-Pay-Its-Hometown/131757.

32. The Commons

1. See Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America (2d ed., 1986).

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642 Notes to Pages 504–513

2. 403 U.S. 602 (1971). 3. 465 U.S. 668 (1984). 4. Id. at 671. 5. Id. 6. Id. at 687. 7. Id. at 686. 8. See id. at 686. 9. Id. at 679 (quoting Lemon, 403 U.S. at 614). 10. Lynch, 465 U.S. at 691. 11. See id. at 694–704. 12. Id. at 706. 13. 507 U.S. 410 (1993), discussed supra Chapter 27 (“Government Regulation

of the Speech Commons”). 14. Cnty. of Allegheny v. ACLU, 492 U.S. 573 (1989). 15. 545 U.S. 677 (2005). 16. Id. at 681. 17. Id. at 686. 18. Id. at 740. 19. 545 U.S. 844 (2005). 20. Id. at 853. 21. Id. at 870–874. 22. 555 U.S. 460 (2009). 23. Id. at 472. 24. Id. at 469. 25. Id. at 472. 26. Id. at 482–483. 27. 343 U.S. 306 (1952). 28. Id. at 312–313. 29. 454 U.S. 263 (1981). 30. 508 U.S. 384 (1993). 31. 515 U.S. 819 (1995). 32. 330 U.S. 1 (1947). 33. 370 U.S. 421 (1962). 34. Id. at 422. 35. Id. at 425. 36. Id. at 426–427. 37. Id. at 422–423. 38. See 319 U.S. 624 (1943). 39. Engel, 370 U.S. at 423 n.2. 40. Id. at 444–450 (Stewart, J., dissenting). 41. Zorach, 343 U.S. at 306. 42. H.R.J. Res. 78, 105th Cong. (1997). 43. 374 U.S. 203 (1963). 44. Id. at 205.

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Notes to Pages 513–521 643

45. 472 U.S. 38 (1985). 46. See, e.g., Brief for Christian Legal Society & Nat’l Ass’n of Evangelicals as

Amici Curiae Supporting Appellants, Wallace, 472 U.S. 38 (No. 83-812); Brief for Moral Majority, Inc. as Amicus Curiae, Wallace, 472 U.S. 38 (Nos. 83-812, 83-929).

47. See H.R.J. Res. 78, supra note 42. 48. See Wallace, 472 U.S. at 55–60. 49. 505 U.S. 577 (1992). 50. Id. at 581. 51. 319 U.S. at 624. 52. Id. 53. See Lee, 505 U.S. at 594–597 (noting the signifi cance of graduation ceremo-

nies and the psychological pressures facing young students who are in the minority).

54. 542 U.S. 1 (2004). 55. Newdow v. U.S. Cong., 328 F.3d 466 (9th Cir. 2002). 56. Newdow, 542 U.S. at 17–18. 57. See Brief for Joseph R. Grodin as Amicus Curiae in Support of Neither Party,

Newdow, 542 U.S. 1 (No. 02-1624). 58. Brief for Respondent at 33–34, Newdow, 542 U.S. 1 (No. 02-1624). 59. See Newdow, 542 U.S. at 42 (O’Connor, J., concurring). 60. For the general point, see Charles M. Tiebout, “A Pure Theory of Local

Expenditures,” 64 J. Pol. Econ. 416 (1956) (extolling competition between local governments).

61. 393 U.S. 97 (1968). 62. 482 U.S. 578 (1987). 63. Id. at 581, 588. 64. See id. at 636–646 (Scalia, J., dissenting). 65. See id. at 588 (discussing the statute’s provisions). 66. Id. at 634.

33. Race and the Fourteenth Amendment

1. “No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the party to whom such Service or Labour may be due.” U.S. Const. art. IV, § 2, cl. 3.

2. “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respec- tive Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fi fths of all other Persons.” U.S. Const. art. I, § 2, cl. 3.

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644 Notes to Pages 521–529

3. Id. art. I, § 9, cl. 1. 4. The Institutes of Justinian, Book I, tit. II, § 2 (J. B. Moyle trans., 5th ed., 1913). 5. Id., Book I, tit. III, § 2. 6. Id., Book I, tit. V. 7. For the classic exposition, see W. W. Buckland, The Roman Law of Slavery:

The Conditions of the Slave in Private Law from Augustus to Justinian (Cambridge University Press, 1908).

8. R. v. Knowles, ex parte Somersett, 20 State Tr. 1 (1772). 9. Slavery Abolition Act 1833, 3 & 4 Will. IV c. 73 (1833), with minor exceptions. 10. Federalist No. 54 (Clinton Rossiter ed., 1999). 11. For discussion, see Andrew Kull, The Color-Blind Constitution 4–6 (1992). 12. 60 U.S. 393 (1856). 13. For the full text of the Emancipation Proclamation, see American Treasures

of the Library of Congress, available at http://www.loc.gov/exhibits/treasures/ trt026.html.

14. U.S. Const. amend. XIII. 15. Id. amend. XIV, § 1. 16. 60 U.S. 393. 17. Id. 18. See U.S. Const. art. III, governing the judiciary, where the term “citizen”

appears fi ve times in § 2. 19. Id. art. IV, § 2, cl. 1. 20. Virginia Charter of 1606, reprinted in 7 The Federal and State Constitutions Colo-

nial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 3784 (Francis Newton Thorpe ed., 1909). My thanks to Daniel Hulsebosch for pointing out this and similar sources.

21. Articles of Confederation of 1778, art. IV, § 1, available at http://memory.loc. gov/cgi-bin/ampage?collId=llsl&fi leName=001/llsl001.db&recNum=127.

22. 6 F. Cas. 546 (C.C.E.D. Pa. 1823). 23. Id. at 551–552. 24. Congressional Globe, 39th Cong., 1st Sess. 2765–2766 (1866). Good authority

has it that until today “[n]o one has ever contradicted Senator Howard’s explanation of the meaning of the text.” Michael Stokes Paulsen, et al., The Constitution of the United States 1351 (2010).

25. U.S. Const. amend. XIV, § 1. 26. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27–30, 27. 27. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years,

1789–1888, at 347–348 (1985); William Nelson, The Fourteenth Amendment 163–164 (1988).

28. Slaughter-House Cases, 83 U.S. 36 (1873). 29. Id. at 79–80 (“The right to peaceably assemble and petition for redress of

grievances, the privilege of the writ of habeas corpus, are rights of the citi- zen guaranteed by the Federal Constitution. The right to use the navigable

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Notes to Pages 529–535 645

waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citi- zenship of a State.”).

30. Id. at 76. 31. Id. at 78. 32. Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 764 (1884) (Bradley, J.,

dissenting) (“I then held, and still hold, that the phrase has a broader mean- ing; that it includes those fundamental privileges and immunities which belong essentially to the citizens of every free government, . . . Mr. Justice Washington enumerates. . . .”).

33. 92 U.S. 542 (1875). 34. See generally Charles Lane, The Day Freedom Died: The Colfax Massacre, the

Supreme Court, and the Betrayal of Reconstruction (2008). 35. Cruikshank, 92 U.S. at 551–555. 36. 163 U.S. 537 (1896). 37. Id. at 550–551. 38. Comm’n for Positive Educ., The Forty Acres Documents: What Did the United

States Really Promise the People Freed from Slavery? (1994) . 39. 59 Mass. 198 (1849). 40. Id. at 206. 41. Text of Justice David Souter’s Speech, Harvard Gazette (May 27, 2010),

available at http://news.harvard.edu/gazette/story/2010/05/text-of-justice- david-souters-speech.

42. Id. 43. Plessy, 163 U.S. at 559 (Harlan, J., dissenting). 44. Plessy, 163 U.S. at 551. 45. 211 U.S. 45 (1908). 46. See discussion of Davis v. Massachusetts, supra Chapter 27 (“Government Reg-

ulation of the Speech Commons”). 47. Berea College, 211 U.S. at 57. 48. 165 U.S. 578 (1897). 49. Lochner v. New York, 198 U.S. 45 (1905). 50. 208 U.S. 161 (1908). 51. See, e.g., James W. Ely, Jr., “Rufus W. Peckham and Economic Liberty,” 62

Vand. L. Rev. 591 (2009). 52. 235 U.S. 151 (1914). 53. 245 U.S. 60 (1917). 54. 347 U.S. 483 (1954). 55. Id. at 495. 56. 347 U.S. 497 (1954). 57. Brown II, 349 U.S. 294, 301 (1955). 58. For discussion, see Gerald Rosenberg, The Hollow Hope: Can Courts Bring About

Social Change? 43–46 (1993).

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646 Notes to Pages 535–544

59. See Green v. County Sch. Bd., 391 U.S. 430 (1968). 60. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). 61. See Michael L. Sovern, Legal Restraints on Racial Discrimination in Employment

Law 71 (1966). 62. See Robert M. Fogelson, “Violence and Grievances: Refl ections on the 1960s

Riots,” 26 J. of Soc. Issues 141 (1970). 63. 443 U.S. 193 (1979). 64. Id. at 218. 65. Civil Rights Act of 1964, 42 U.S.C. § 2003. 66. Connecticut v. Teal, 457 U.S. 440 (1982). 67. 557 U.S. 557 (2009). 68. 551 U.S. 701 (2007). 69. 539 U.S. 306 (2003). 70. 539 U.S. 244 (2003). 71. 339 U.S. 629 (1950). 72. 236 F.3d 256 (5th Cir. 2000). 73. Fisher v. Univ. of Texas, 631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S. Ct.

1536 (2012). 74. Id. at 221.

34. Citizenship and the Fourteenth Amendment

1. Rogers v. Bellei, 401 U.S. 815 (1971). 2. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 66 (1941) (stating that “the regu-

lation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject,” federal law is supreme and state law must yield to it).

3. United States v. Macintosh, 283 U.S. 605, 615 (1931). 4. U.S. Const. art. I, § 8, cl. 4. 5. 8 U.S.C. § 703 (repealed 1952). For a brief account, see Takahashi v. Fish &

Game Comm’n, 334 U.S. 410, 412 n.1 (1948) (noting the gradual expansion of eligibility for citizenship on the basis of race or nationality).

6. 347 U.S. 497 (1954). See also Adarand Constructors v. Pena 515 U.S. 200 (1995)(applying Bolling to affi rmative action programs).

7. For discussion, see Richard A. Epstein, “The Natural Law Bridge between Private Law and Public International Law,” 13 Chi. J. Int’l L. 47 (2012).

8. See Perez v. Brownell, 356 U.S. 44, 48–56 (1958) (discussing legislative and judicial history of “denationalization”).

9. Id. at 57–58. 10. 387 U.S. 253 (1967). 11. Id. at 268. 12. U.S. Const. art. III, § 3, cl. 1 reads: “Treason against the United States, shall

consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless

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Notes to Pages 545–549 647

on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Note that the use of the term “person” in this context must be limited to citizens lest every foreign combatant be guilty of treason against the United States.

13. 1 L.F.L. Oppenheim, International Law 547–548 (H. Lauterpacht ed., 5th ed., 1937).

14. Slaughter-House Cases, 83 U.S. 36 (1873). 15. 239 U.S. 33 (1915). 16. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (upholding Washington

State’s minimum wage law for women only against a Fourteenth Amend- ment Due Process Clause challenge).

17. 304 U.S. 144, 152, n.4 (1938). 18. 334 U.S. at 412. 19. 323 U.S. 214, 218–220 (1944). 20. Takahashi, 334 U.S. at 415–416. 21. Truax, 239 U.S. at 40. 22. 6 F. Cas. 546, 551–552 (C.C.E.D. Pa. 1823). 23. 239 U.S. at 39–40. 24. Id. at 40. 25. 239 U.S. 175 (1915). 26. Id. at 189. 27. Id. at 191 (citing Atkin v. Kansas, 191 U.S. 207, 222–223 (1903)). 28. 403 U.S. 365 (1971). 29. Id. at 372. 30. Id. at 374. 31. 304 U.S. at 152, n.4, cited in Graham, 403 U.S. at 372. 32. 413 U.S. 634 (1973). 33. Id. at 642, criticized in id. at 655–656 (Rehnquist, J., dissenting). 34. Id. at 641. 35. Id. 36. Id. at 647. 37. Id. at 655. 38. Id. at 653–654. 39. 457 U.S. 202 (1982). 40. Id. at 223. 41. Id. at 226. 42. Id. at 230. 43. While the relative probability of illegal versus legal aliens remaining in the

United States is unknown, for statistics and general discussion of the 2007 census data see Steven A. Camarota, Immigrants in the United States, 2007: A Profi le of America’s Foreign-Born Population (Center for Immigration Studies, Nov. 2007), available at http://www.cis.org/articles/2007/back1007.pdf.

44. 457 U.S. at 242. For a critique of the willingness to abandon the traditional two-tier classifi cations under the Equal Protection Clause, see Dennis J.

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648 Notes to Pages 550–555

Hutchinson, “More Substantive Equal Protection? A Note on Plyler v. Doe,” 1982 Sup. Ct. Rev. 167.

45. 394 U.S. 802 (1969). 46. Id. at 807 (internal citation omitted). 47. For the liberal point of view, see Frank I. Michelman, “Foreword: On Pro-

tecting the Poor through the Fourteenth Amendment,” 83 Harv. L. Rev. 7 (1969); for the conservative, see Ralph Winter, “Poverty, Economic Equality, and the Equal Protection Clause,” 1972 Sup. Ct. Rev. 41.

48. 411 U.S. 1 (1973). 49. Id. at 12, 55. 50. Serrano v. Priest, 487 P. 2d 1241 (Cal. 1971). 51. For discussion, see Jeffrey I. Chapman, Proposition 13: Some Unintended Conse-

quences (Public Policy Institute of California, 1998), available at http://www. ppic.org/content/pubs/op/OP_998JCOP.pdf.

52. See Chris Edwards, “Public Sector Unions and the Rising Costs of Employee Compensation,” 30 Cato J. 109–112 (Winter 2010) (discussing the public sec- tor union premium and the pressure on states’ budgets).

53. Bruce Ackerman, “The Citizenship Agenda,” in The Constitution in 2020, at 109–110 (Jack M. Balkin & Reva B. Siegel eds., 2009).

54. Id. at 110. 55. Goodwin Liu, “National Citizenship and the Promise of Equal Educational

Opportunity,” in The Constitution in 2020, supra note 53, at 119. 56. Id. 57. Id. at 127. 58. See No Child Left Behind Act, 20 U.S.C. §§ 6301–04 (2001) (outlining fed-

eral spending on education for disadvantaged schools and children). For an empirical evaluation of No Child Left Behind and its mixed results, see Thomas S. Dee & Brian Jacob, The Impact of No Child Left Behind on Student Achievement, Working Paper No. 15531 (Nat’l Bureau of Econ. Research, 2009).

35. Equal Protection and Sex Discrimination

1. See, e.g., Richard A. Epstein, “Gender Is for Nouns,” 41 DePaul L. Rev. 981 (1992).

2. See discussion infra under head “Statutory Rape.” 3. For discussion see, e.g., Norma Basch, In the Eyes of the Law: Women, Mar-

riage, and Property in Nineteenth Century New York (1982) ; Carole Shammas, “Re-Assessing the Married Women’s Property Acts,” 6 J. Women’s Hist. 9 (1994), available at http://courses.knox.edu/hist267/shammasproperty. pdf (comparing the Married Women’s Property Acts to emancipation proclamations).

4. 208 U.S. 412 (1908). For further discussion, see supra Chapter 21 (“Freedom of Contract”).

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Notes to Pages 555–564 649

5. See, e.g., Sylvia A. Law, “Rethinking Sex and the Constitution,” 132 U. Pa. L. Rev. 955 (1984).

6. 334 U.S. 410 (1948). 7. Goesaert v. Cleary, 335 U.S. 464, 466 (1948). 8. 404 U.S. 71 (1971). Ruth Bader Ginsburg was on the brief for Sally M. Reed. 9. Id. at 75–76. 10. Id. at 76. 11. See, e.g., Cal. Civ. Code § 5125 (1975); Idaho Code § 32-912 (1974); N.M.

Stat. Ann. §§ 57-4A-7, 57-4A-8 (1973); Wash. Rev. Code § 26.16.030 (1972).

12. 411 U.S. 677 (1973). 13. Id. at 678–679. 14. Brief for Appellee at 4 Frontiero v. Laird, 411 U.S. 677 (1973) (No. 71-1694),

1972 WL 137566 at *8 n.5, *9 n.7. 15. Id. at *9 n.6. 16. Frontiero v. Laird, 341 F. Supp. 201, 208 (M.D. Ala. 1972). 17. Frontiero, 411 U.S. at 680–682, n.5, n.7 (citing Bolling v. Sharpe, 347 U.S. 497

(1954)). 18. 83 U.S. 130 (1873) (following Slaughter-House Cases, 83 U.S. 36 (1873), in the

United States Reports). 19. Id. at 141 (Bradley, J., concurring). 20. Frontiero, 411 U.S. at 685. 21. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (citations omitted)

(internal quotation marks omitted). 22. Id. 23. Id. 24. Id. at 735. 25. H.R.J. Res. No. 208, 92nd Cong., 2d Sess. (1972). 26. For an assessment, see Victor R. Fuchs, “Women’s Quest for Economic

Equality,” 3 J. Econ. Persps. 25 (1989). 27. Robert Nozick, Anarchy, State, and Utopia 168 (1974). 28. 429 U.S. 190 (1976). 29. Id. at 201. 30. Id. at 204. 31. E.g., Assem. B. 2578 (Cal. 2010). 32. 348 U.S. 483, 487–488 (1955). 33. Lochner v. New York, 198 U.S. 45 (1905). 34. 450 U.S. 464 (1981). 35. See, e.g., 5 Edmund Burke, The Works of the Right Honourable Edmund Burke

522–523 (2010). 36. Michael M., 450 U.S. at 496. 37. Exec. Order No. 9981, 13 Fed. Reg. 4313 (Jul. 26, 1948). 38. 10 U.S.C. § 654 (repealed 2011). 39. Don’t Ask, Don’t Tell Repeal Act of 2010 (H.R. 2965, S. 4023).

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650 Notes to Pages 564–581

40. 453 U.S. 57 (1981). 41. 50 U.S.C. § 451. 42. 518 U.S. 515 (1996). 43. Id. at 534. 44. Id. at 533. 45. Id. at 542. 46. Id. at 520.

Conclusion

1. See the discussion of Miller v. Alabama, 132 S. Ct. 2455 (2011), discussed supra Chapter 3 (“Constitutional Interpretation”).

2. See, e.g., Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983). 3. 28 U.S.C. § 2680(a). 4. See Parents Involved in Comm. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701

(2007); Gratz v. Bollinger, 539 U.S. 244 (2003) (both discussed supra Chapter 33 (“Race and the Fourteenth Amendment”)).

5. See United States v. Virginia, 518 U.S. 515 (1996) (discussed supra Chapter 35 (“Equal Protection and Sex Discrimination”)).

6. 5 U.S. 137 (1803). For discussion, see supra Chapter 4 (“The Origins of Judi- cial Review”) and Chapter 5 (“Judicial Review: Marbury and Martin”).

7. 14 U.S. 304 (1816). For discussion, see supra Chapter 5 (“Judicial Review: Marbury and Martin”).

8. 163 U.S. 537 (1896). For discussion, see supra Chapter 33 (“Race and the Fourteenth Amendment”).

9. 347 U.S. 483 (1954). For discussion, see supra Chapter 33 (“Race and the Fourteenth Amendment”).

10. Mitchell Berman, “Originalism Is Bunk,” 84 N.Y.U. L. Rev. 1 (2009). 11. Jack M. Balkin, Living Originalism (2011). 12. U.S. Const. art. I, § 8, cl. 3. 13. For discussion of the latter three acts, see supra Chapter 21 (“Freedom of

Contract”). 14. U.S. Const. art. 1, § 8, cl. 1. 15. Id. amend. V. For analysis and discussion of the Takings Clause, see supra

Chapter 22 (“Takings, Physical and Regulatory”). 16. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984). 17. For discussion, see supra Chapter 6 (“Standing: Background and Origins”)

and Chapter 7 (“Modern Standing Law”). 18. U.S. Const. amend. XIII, § 1. 19. See, e.g., “Symposium, Thirteenth Amendment: Meaning, Enforcement,

and Contemporary Implications,” 112 Colum. L. Rev. 1447 (2012); Douglas J. Colbert, “Liberating the Thirteenth Amendment,” 30 Harv. C.R.-C.L. L. Rev. 1 (1995); Baher Azmy, “Unshackling the Thirteenth Amendment: Modern Slav- ery and a Reconstructed Civil Rights Agenda,” 71 Fordham L. Rev. 981 (2002).

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Notes to Pages 582–583 651

20. 198 U.S. 45, 75–76 (1905) (Holmes, J., dissenting). For discussion of Lochner and related cases, see supra Chapter 21 (“Freedom of Contract”).

21. Jacob Viner, “The Intellectual History of Laissez Faire,” 3 J. Law & Econ. 45, 45 (1960).

22. Id. at 67–68. 23. 77 Edinburgh Rev. 224 (1843) (quoted in Viner, supra note 21, at 55 n.41).

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A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), 37–38, 169, 270– 272, 590n17, 603nn8–10,14, 616nn9,15

Abington School District v. Schempp, 374 U.S. 203 (1963), 513–514, 516, 640n3, 642nn43,44

Abrams v. United States, 250 U.S. 616 (1919), 401–403, 629n4, 630nn16–19

Adair v. United States, 208 U.S. 161 (1908), 339, 533, 625n6, 635n9, 645n50

Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899), 160, 602n6, 625n11

Adkins v. Children’s Hospital, 261 U.S. 525 (1923), 309, 622n11

Afroyim v. Rusk, 387 U.S. 253 (1967), 543–544, 646nn10,11

Agostini v. Felton, 521 U.S. 203 (1997), 641n16

Aguilar v. Felton, 473 U.S. 402 (1985), 499, 641n16

Al-Maqaleh v. Gates, 604 F. Supp. 2d 205 (D. D.C. 2009), 297, 621n68

Al-Maqaleh v. Gates, 605 F. 3d 84 (D.C. Cir. 2010), 296–297, 621n67

Alabama Power Co. v. Ickes, 302 U.S. 464 (1938), 116–117, 597n46

Alaska Airlines v. Brock, 480 U.S. 678 (1987), 619n70

Allen v. Wright, 468 U.S. 737 (1984), 599n34 Allgeyer v. Louisiana, 165 U.S. 578 (1897),

338, 533, 624n3, 645n48 Allnutt v. Inglis, 104 Eng. Rep. 206 (K. B.

1810), 202–203, 601n9, 608nn27,28 Amalgamated Meat Cutters & Butcher

Workmen of North America, AFL–CIO v.

Connally, 337 F. Supp. 737 (D. D.C. 1971), 617n19

Amoco Products Co. v. Village of Gambell, 480 U.S. 531 (1987), 624n58

Anonymous, 87 Eng. Rep. 791 (K. B. 1703), 597n33

Apex Hosiery v. Leader, 310 U.S. 469 (1940), 161, 602n10

Apprendi v. New Jersey, 530 U.S. 466 (2000), 624n56

Arizona Christian School Tuition Organiza- tion v. Winn, 131 S. Ct. 1436 (2011), 124–125, 599nn19–22

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011), 636nn45,47,48

Arkansas Game & Fish Commission v. United States, 637 F. 3d 1366 (Fed. Cir. 2011), 361, 627n33

Arkansas Game & Fish Commission v. United States, 133 S. Ct. 511 (2012), 360–361, 627nn32,34

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987), 435, 634n45

Armstrong v. United States, 364 U.S. 40 (1960), 348–349, 357, 361, 626n2

Arnett v. Kennedy, 416 U.S. 134 (1974), 329–331, 334, 624nn48,51,52

Ashcroft v. ACLU, 535 U.S. 564 (2002), 632n21

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 116–117, 597n46, 598n49

Associated Press v. NLRB, 301 U.S. 103 (1937), 439, 635nn4,5

Index of Cases

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654 Index of Cases

Associated Press v. United States, 326 U.S. 1 (1945), 438–439, 635n3

Association of Data Processing Service Orga- nizations v. Camp, 397 U.S. 150 (1970), 598n4

Atkin v. Kansas, 191 U.S. 207 (1903), 647n27

AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366 (1999), 626n38

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), 455–458, 636nn56,58

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), 355, 626n19

Bailey v. Drexel Furniture Co. See Child Labor Tax Case

Bailey v. Richardson, 182 F. 2d 46 (D.C. Cir. 1950), 327, 623nn38,39

Baker v. Carr, 369 U.S. 186 (1962), 121–122, 135, 139–141, 598nn6,7, 600nn5,15,17, 601nn18,20

Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935), 590n28

Ballard v. United States, 322 U.S. 78 (1946), 630n29

Baltimore & Ohio Railway Co. v. United States, 345 U.S. 146 (1953), 344

Bamford v. Turnley, 122 Eng. Rep. 25 (K. B. 1860), 640n18

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), 392, 629n17, 630nn22,23

Barron v. Baltimore, 32 U.S. 243 (1833), 64, 592n46

Beach v. Hancock, 27 N.H. 223 (1853), 631n1

Bell v. Burson, 402 U.S. 535 (1971), 333, 624n65

Berea College v. Kentucky, 211 U.S. 45 (1908), 454, 532–533, 636n55, 645nn45,47

Block v. Community Nutrition Institute, 467 U.S. 340 (1984), 121, 598n5

Block v. Hirsch, 256 U.S. 135 (1921), 169, 365, 590n16, 603n3, 627n46

Board of Education v. Allen, 392 U.S. 236 (1968), 641n13

Board of Public Utilities Commissioners v. New York Telephone, 271 U.S. 23 (1926), 342, 625nn24,25

Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), 328, 623n42

Bob Jones University v. United States, 461 U.S. 574 (1983), 469–470, 638nn32,34

Bolling v. Sharpe, 347 U.S. 497 (1954), 535, 543, 645n56, 646n6, 649n17

Boumediene v. Bush, 553 U.S. 723 (2008), 595n31, 621n60, 623n17

Bowen v. Roy, 476 U.S. 693 (1986), 468–469, 638n31

Bowers v. Hardwick, 478 U.S. 186 (1986), 376–377, 379, 393, 628nn24,26,27 630nn24,25

Bowsher v. Synar, 478 U.S. 714 (1986), 617nn28–30

Bradwell v. State, 83 U.S. 130 (1873), 557–559, 649nn18,19

Brandenburg v. Ohio, 395 U.S. 444 (1969), 404, 631n31

Braunfi eld v. Brown, 366 U.S. 599 (1961), 492–495, 641nn2,4

Briscoe v. Reader’s Digest Association, 483 P. 2d 34 (Cal. 1971), 418–419, 633n54

Brooks v. United States, 267 U.S. 432 (1925), 602n22

Brooks-Scanlon Co. v. Railroad Commission, 251 U.S. 396 (1920), 344, 625n31

Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954), 530–532, 534–535, 538–540, 576, 595n26, 645nn54,55, 650n9

Brown v. Board of Education of Topeka Kansas (Brown II), 349 U.S. 294 (1955), 535, 645n57

Brown v. Maryland, 25 U.S. 419 (1827), 48–49, 591nn7,8

Brushaber v. Union Pacifi c Railroad, 240 U.S. 1 (1916), 597n36, 598n14, 634n41

Buch v. Armory Manufacturing, 44 A. 809 (N.H. 1897), 629n21

Buchanan v. Warley, 245 U.S. 60 (1917), 533, 645n53

Buckley v. Valeo, 424 U.S. 1 (1976), 258–259, 449, 615n47, 636n40

Burton v. Crowell Publishing Co., 82 F. 2d 154 (2d Cir. 1936), 632n45

Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884), 645n32

Butz v. Economou, 438 U.S. 478 (1978), 615n58

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994), 243, 613n48

Cafeteria & Restaurant Workers, Local 473, AFL-CIO v. McElroy, 367 U.S. 886 (1961), 327, 623nn40,41

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Index of Cases 655

California v. United States, 104 F. 3d 1086 (9th Cir. 1997), 608n40

California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), 608n33

Campbell v. Clinton, 203 F. 3d 19 (D.C. Cir. 2000), 619n13

Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997), 612n13

Cantwell v. Connecticut, 310 U.S. 296 (1940), 470, 638n40

Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937), 613n32

Carr v. Hood, 170 Eng. Rep. 981 (K. B. 1808), 632n26

Center for Individual Freedom v. Madigan, 697 F. 3d 464 (7th Cir. 2012), 636n42

Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), 409–410, 631nn10–14

Champion v. Ames, 188 U.S. 321 (1903), 164–165, 223, 602n21, 611nn41,42

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 128, 599n32

Chicago, Minneapolis & St. Paul Railway v. Minnesota, 134 U.S. 418 (1890), 617n44

Child Labor Tax Case, 259 U.S. 20 (1922), 113–114, 167, 204, 206, 467, 597n41, 603n29, 608n36

Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S. Ct. 2971 (2010), 432, 634nn30–32

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), 637n14

Civil Rights Cases, 109 U.S. 3 (1883), 532 Citizens United v. FEC, 558 U.S. 310 (2010),

446–448, 457–458, 635n31, 636n32, 637nn68,70

City of Boerne v. Flores, 521 U.S. 507 (1997), 471, 638n42

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993), 430, 507–508, 634n20, 642n13

City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), 241–243, 613nn43,44

Clarke v. Securities Industry Association, 479 U.S. 388 (1987), 598n4

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), 329–331, 333, 624nn53,54

Cohen v. Cowles Media Co., 501 U.S. 663 (1991), 634n1

Coker v. Georgia, 433 U.S. 584 (1977), 60, 592n32

Coleman v. Miller, 307 U.S. 433 (1939), 596n7

Commodities Futures Trading Commission v. Schor, 478 U.S. 833 (1986), 618n51

Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), 237–238, 613nn28,29

Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), 613n29

Connecticut v. Teal, 457 U.S. 440 (1982), 646n66

Connick v. Meyers, 461 U.S. 138 (1983), 433, 634n37

Cooley v. Board of Wardens, 53 U.S. 299 (1851), 233, 612n16

Cooper v. Aaron, 358 U.S. 1 (1958), 93–94, 595n24

Coppage v. Kansas, 236 U.S. 1 (1915), 339–340, 625nn7–9, 635n9

Corfi eld v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823), 67, 156, 232, 240, 526, 547, 552, 593n74, 602nn20,21, 612n15, 613n37, 644nn22,23, 647n22

Cosmopolitan Broadcasting Co. v. FCC, 581 F. 2d 917 (D.C. Cir. 1978), 619n63, 635n27

County of Allegheny v. ACLU, 492 U.S. 573 (1989), 508, 642n14

County of Wayne v. Hathcock, 684 N. W. 2d 765 (Mich. 2004), 627n25

Cox v. Louisiana, 379 U.S. 536 (1965), 404, 631n30

Cox v. New Hampshire, 312 U.S. 569 (1941), 634n16

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), 419, 633n55

Craig v. Boren, 429 U.S. 190 (1976), 306, 560–562, 622n4, 649nn28–30

Crampton v. Zabriskie, 101 U.S. 601 (1879), 112, 115, 597nn37,38

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), 632n34

Cutter v. Wilkinson, 544 U.S. 709 (2005), 471–472, 638n46

Daniel Ball, 77 U.S. 557 (1870), 161, 602nn11,12

Dartmouth College v. Woodward, 17 U.S. 518 (1819), 453–454, 636n49

Davis v. FEC, 554 U.S. 724 (2008), 451–452, 636n43

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656 Index of Cases

Davis v. Massachusetts, 167 U.S. 43 (1897), 426, 429, 634nn11,14, 645n46

Dean Milk Co. v. Madison, 340 U.S. 349 (1951), 234–235, 243, 612n21

Debs v. United States, 249 U.S. 211 (1919), 401, 630n15

Dennis v. United States, 341 U.S. 494 (1951), 403–404, 630n24, 631nn25,27

Dicke v. Fenne, 82 Eng. Rep. 411 (K. B. 1639), 631n6

District of Columbia v. Heller, 128 S. Ct. 2783 (2008), 62–63, 65–67, 592nn36,47,48,49,51–56

Dr. Bonham’s Case, 77 Eng. Rep. 638 (C. P. 1610), 83–84, 317, 594nn23,24, 622nn7,8

Dred Scott v. Sandford, 60 U.S. 393 (1857), 78, 308, 523–524, 532, 593n2, 622n7, 644nn12,16

Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989), 344–345, 625nn34,35

E. Hulton & Co. v. Jones (1910), AC 20, 632n27

eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), 624n59

Edmond v. United States, 520 U.S. 651 (1997), 261–262, 615nn54,55

Edwards v. Aguillard, 482 U.S. 578 (1987), 517, 643nn62–66

Edwards v. South Carolina, 372 U.S. 229 (1963), 404, 631n29

Eisenstadt v. Baird, 405 U.S. 438 (1972), 628n16

Elk Grove Unifi ed School District v. New- dow, 542 U.S. 1 (2004), 515–516, 643nn54,56–59

Ellsworth v. Martindale-Hubbell Law Direc- tory, Inc., 280 N.W. 879 (N.D. 1938), 623n31

Elrod v. Burns, 427 U.S. 347 (1976), 433, 634n36

Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), 470–473, 475, 638nn36–39

Engel v. Vitale, 370 U.S. 421 (1962), 511–515, 642nn33–37,39,40

Epperson v. Arkansas, 393 U.S. 97 (1968), 517, 643n61

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), 494–495, 641nn5,6

Everson v. Board of Education of Township of Ewing, 330 U.S. 1 (1947), 122, 125,

482, 496–498, 511, 598n9, 640nn4,5, 641nn8–10, 642n32

Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), 294–295, 621nn51,55

Exxon Corp. v. Maryland, 437 U.S. 117 (1978), 236–237, 612nn26,27

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), 446, 635n30

FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940), 117, 120, 598n50

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007), 457–458, 637nn66,67

First National Bank of Boston v. Bellotti, 735 U.S. 765 (1978), 454–455, 636nn50–52

Fisher v. University of Texas, 631 F. 3d 213 (5th Cir. 2011), 539, 646nn73,74

Flast v. Cohen, 392 U.S. 83 (1968), 123– 125, 598nn10,12,13, 599n21

Florida v. U.S. Department of Health & Human Services, 648 F. 3d 1235 (11th Cir. 2011), 609n48

Florida Star v. B.J.F., 491 U.S. 524 (1989), 633n55

Ford Motor Co. v. Lane, 67 F. Supp. 2d 745 (E. D. Mich. 1999), 421, 633n63

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), 631n15

FPC v. Hope Natural Gas, 320 U.S. 591 (1944), 343–345, 625n26

Free Enterprise Fund v. Public Corporation Accounting Oversight Board, 130 S. Ct. 3138 (2010), 282–284, 619n68

Freytag v. Commissioner, 501 U.S. 868 (1991), 262, 615n56

Frontiero v. Laird, 411 U.S. 677 (1973), 556–557, 649nn14–17

Frontiero v. Richardson, 411 U.S. 677 (1973), 556, 558–559, 649nn12,13,20

Frost v. Railroad Commission, 271 U.S. 583 (1926), 424–425, 430–431, 633nn3,4

Frothingham v. Mellon, 262 U.S. 447 (1923), 70, 105, 107, 109, 113–116, 119, 121–123, 126, 128, 130, 195, 593n77, 596n15, 597nn42,43, 607n6

Fry v. United States, 421 U.S. 542 (1975), 182, 183, 605n73

Furman v. Georgia, 408 U.S. 238 (1932), 58, 591n25

Gaffney v. Cummings, 412 U.S. 735 (1973), 601n23

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Index of Cases 657

Garcetti v. Ceballos, 547 U.S. 410 (2006), 433, 634nn38,39

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), 181, 605n71

General Motors Corp. v. Tracy, 519 U.S. 278 (1997), 238–240, 613nn33–35

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), 632n35

Gibbons v. Ogden, 22 U.S. 1 (1824), 154–156, 158–159, 162, 169, 173– 174, 179, 183–184, 190–191, 211, 229, 232, 601nn11,13–17, 602n23, 604nn36,37,39,41, 609n5, 612nn3,4

Gitlow v. New York, 268 U.S. 652 (1925), 403, 630n20

Goesaert v. Cleary, 335 U.S. 464 (1948), 555, 649n7

Goldberg v. Kelly, 397 U.S. 254 (1970), 334–336, 624n68

Goldman v. Weinberger, 475 U.S. 503 (1986), 479–480, 640n83

Gompers v. Buck’s Stove & Range Co., 221 U.S. 418 (1911), 400, 630nn11,12

Gonzales v. Raich, 545 U.S. 1 (2005), 184, 185, 225, 606n9, 611nn50,51

Graham v. Florida, 130 S. Ct. 2011 (2010), 60, 592n31

Graham v. Richardson, 403 U.S. 365 (1971), 548, 647nn28–31

Gratz v. Bollinger, 539 U.S. 244 (2003), 538, 646n70, 650n4

Green v. County School Board, 391 U.S. 430 (1968), 646n59

Gregg v. Georgia, 428 U.S. 153 (1976), 58, 591n26

Griswold v. Connecticut, 381 U.S. 479 (1965), 370–373, 628nn10,12,13,15

Grosjean v. American Press Co., 297 U.S. 233 (1936), 434, 634n43

Grutter v. Bollinger, 539 U.S. 306 (2003), 538–539, 646n69

H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949), 230, 237, 612nn7,9

Hague v. Committee for Industrial Organ- ization, 101 F. 2d 774 (3d Cir. 1939), 429, 634nn15

Hague v. Committee for Industrial Organ- ization, 307 U.S. 496 (1939), 429, 634n13

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), 621nn51,52

Hammer v. Dagenhart, 247 U.S. 251 (1918), 166–167, 171, 181, 184, 191, 204, 602n18, 603n27, 604n27, 608n35, 613n42

Harper & Row, Publishers, Inc. v. Nation Enters, 471 U.S. 539 (1985), 631n9

Harris v. McCrae, 448 U.S. 297 (1980), 638n33

Hawaii Housing Association v. Midkiff, 467 U.S. 229 (1984), 358, 627n26, 650n16

Hayburn’s Case, 2 U.S. 402 (1792), 103, 596nn10,11

Healy v. James, 408 U.S. 169 (1972), 634n29 Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964), 179, 605n60 Hecht Co. v. Bowles, 321 U.S. 321 (1944),

624n57 Heim v. McCall, 239 U.S. 175 (1915), 547,

647nn25–27 Hein v. Freedom from Religion Foundation,

551 U.S. 587 (2007), 124, 599nn17,18 Hepburn v. Griswold, 75 U.S. 603 (1870),

218, 611n29 Hines v. Davidowitz, 312 U.S. 52 (1941),

646n2 Hipolite Egg Co. v. United States, 220 U.S. 45

(1911), 603n24 Hoke v. United States, 227 U.S. 308 (1913),

603n25 Hollingsworth v. Perry, 671 F. 3d 1052 (9th

Cir. 2012), 378, 629n38 Hoover v. Intercity Radio Co., 286 F. 1003

(D.C. Cir. 1926), 618n56 Hopwood v. Texas, 236 F. 3d 256 (5th Cir.

2000), 539, 646n72 Hosanna-Tabor Evangelical Lutheran Church

& School v. EEOC, 132 S. Ct. 694 (2012), 472–475, 629n18, 639nn48,51,53

Hottentot Venus, 104 Eng. Rep. 344 (K. B. 1810), 621n59

Houston East & West Texas Railway Co. v. United States. See Shreveport Rate Cases

Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976), 240–241, 613n38

Humphrey’s Executor v. United States, 295 U.S. 602 (1935), 276, 278, 617nn31,38–40

Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), 235, 612n23

Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), 430–432, 634nn22,25–28

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658 Index of Cases

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), 416–417, 632nn42–44,46

Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C. D. Cal. 1985), 633n47

I. de S. & Wife v. W. de S. (1348), 632n40 Immigration & Naturalization Service v.

Chadha, 462 U.S. 919 (1983), 273–275, 617nn20,21,23–26

Indiana State Police Pension Trust v. Chrysler LLC, 130 S. Ct. 1015 (2009), 596n13

In re Chrysler LLC, 576 F. 3d 108 (2d Cir. 2009), 596n13

In re Marriage Cases, 183 P. 3d 384 (Cal. 2008), 629n41

In re Winship, 397 U.S. 358 (1970), 624n55 International Association of Machinists &

Aerospace Workers v. OPEC, 649 F. 2d 1354 (9th Cir. 1981), 600n6

Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston, 636 N. E. 2d 1293 (Mass. 1994), 431, 634n24

Japan Whaling Association v. American Ceta- cean Society, 478 U.S. 221 (1986), 600n5

Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900), 368, 628n6

Jinks v. Richland County, 538 U.S. 456 (2003), 611n58

John Doe No. 1 v. Reed, 130 S. Ct. 2811 (2010), 449–450, 636n41

Johnson v. Eisentrager, 339 U.S. 763 (1950), 621n64, 623nn17,18

Johnson v. M’Intosh, 21 U.S. 543 (1823), 639n69

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), 324–325, 334, 623nn29,30,32

Judicial Watch, Inc. v. U.S. Senate, 432 F. 3d 359 (D.C. Cir. 2005), 596n26

Kachalsky v. County of Westchester, 701 F. 3d 81 (2d Cir. 2012), 66, 593n59

Kansas v. Crane, 534 U.S. 407 (2002), 611n56

Kansas v. Hendricks, 521 U.S. 364 (2002), 611n56

Kassel v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662 (1981), 234, 612n19

Katzenbach v. McClung, 379 U.S. 241 (1964), 179, 605n61

Kelo v. City of New London, 545 U.S. 469 (2005), 78, 358, 593n7, 627n27

Kennedy v. Louisiana, 554 U.S. 407 (2008), 60, 592n33

Kennedy v. Sanchez, 344 F. Supp. 863 (N. D. Ill. 1972), 624n50

Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125 (1922), 627n30

Kidd v. Pearson, 128 U.S. 1 (1888), 159–160, 162, 164, 169, 204, 602nn1–3, 603n11, 608n32

King v. Schiever, 97 Eng. Rep. 551 (K. B. 1759), 621n59

Kohl v. United States, 91 U.S. 367 (1875), 212, 609n9

Korematsu v. United States, 323 U.S. 214 (1944), 78, 547, 593n4, 647n19

Koslow v. Pennsylvania, 302 F. 3d 161 (3d Cir. 2002), 609n40

Kovacs v. Cooper, 336 U.S. 77 (1949), 634n17

Lake Shore & Michigan Southern Railway Co. v. Smith, 173 U.S. 684 (1899), 625n27

Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), 511, 514, 642n30

Landry v. FDIC, 204 F. 3d 1125 (D.C. Cir. 2000), 262, 615nn57,58

Lawrence v. Texas, 539 U.S. 558 (2003), 376–379, 628nn28–36

Lee v. Weisman, 505 U.S. 577 (1992), 514–515, 643nn49,50,53

Legal Tender Cases, 79 U.S. 457 (1871), 214, 218–221, 610n17, 611nn30,34

Lemon v. Kurtzman, 403 U.S. 602 (1971), 490–491, 498–501, 504, 506–508, 640nn19,20, 641n21,11,12, 642nn2,9

Livingston v. Van Ingen, 9 Johns. 507 (N.Y. 1812), 154, 601n12

Lochner v. New York, 198 U.S. 45 (1905), 115, 332, 338–339, 370–372, 386, 533, 562, 581–582, 586n25, 591n9, 597n44, 624nn61,1, 629n5, 645n49, 649n33, 651nn20,22

Lorain Journal Co. v. United States, 342 U.S. 143 (1951), 609n53

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), 627n28

Loving v. Virginia, 388 U.S. 1 (1967), 630n25

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), 363, 627n43

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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), 107, 126–129, 131, 596nn20,21,24, 597n32, 599nn24,28

Lumley v. Gye, 118 Eng. Rep. 749 (K. B. 1853), 599n31, 630n1

Lumley v. Wagner, 42 Eng. Rep. 687 (Ex. 1852), 599n30

Luther v. Borden, 48 U.S. 1 (1849), 136– 138, 140–141, 600nn9,12

Lynch v. Donnelly, 465 U.S. 668 (1984), 506–507, 642nn3–12

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), 476, 639nn67,68

Maine v. Taylor, 477 U.S. 131 (1986), 236, 612nn24,25

Marbury v. Madison, 5 U.S. 137 (1803), 27, 70, 77, 79–80, 88–94, 98, 100–101, 103–105, 107, 117, 120, 122, 127, 133, 135–136, 140, 575, 588n32, 593nn75,1, 594nn3,8–10, 595nn18,25,1, 598n8, 600nn1–3, 650n6

Marsh v. Chambers, 463 U.S. 783 (1983), 485, 640nn11,12

Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), 70, 94, 96, 98, 575, 593n76, 595nn27,30, 650n7

Maryland v. United States, 460 U.S. 1001 (1983), 626n37

Maryland v. Wirtz, 392 U.S. 183 (1968), 180, 605n69

Massachusetts v. Davis, 39 N. E. 113 (1895), 426, 633n9, 634n10

Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), 129–130, 599n36, 600n39

Massachusetts v. Mellon, 262 U.S. 447 (1923), 105, 115, 129, 596n15, 600n38

Masses Publishing Co. v. Patten, 244 F. 535 (S. D. N.Y. 1917), 400–403, 630n14

Mathews v. Eldridge, 424 U.S. 319 (1976), 335, 624nn69,70

Mathews v. Lucas, 427 U.S. 495 (1976), 622n6

McAuliffe v. City of New Bedford, 29 N. E. 517 (Mass. 1892), 425–426, 433, 633nn7,8

McCabe v. Atchison, Topeka & Santa Fe Railway Co., 235 U.S. 151 (1914), 533, 645n52

McCollum v. Board of Education, 333 U.S. 203 (1948), 483, 640n7

McConnell v. FEC, 540 U.S. 93 (2003), 456–458, 636nn33,60, 637nn63,64

McCreary County v. ACLU, 545 U.S. 844 (2005), 508–509, 642nn19–21

McCulloch v. Maryland, 17 U.S. 316 (1819), 210–211, 214–218, 220, 609n4, 610nn15,22–24

McDaniel v. Paty, 435 U.S. 618 (1978), 639n63

McDonald v. Board of Election Commission- ers, 394 U.S. 802 (1969), 550–551, 648nn45,46

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), 66, 593n65

McGowan v. Maryland, 366 U.S. 420 (1961), 492–495, 641nn1,3,4

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), 456, 636n59

Meek v. Pittenger, 421 U.S. 349 (1975), 641n14

Members of City Council v. Taxpayers for Vin- cent, 466 U.S. 789 (1984), 476, 639n66

Metro Media v. City of San Diego, 453 U.S. 490 (1981), 630n27

Meyer v. Nebraska, 262 U.S. 390 (1923), 323, 623nn25,26, 638n21

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), 444, 446, 635nn21–23

Michael M. v. Superior Court, 450 U.S. 464 (1981), 562–563, 649nn34,36

Michigan Public Utilities Commission v. Duke, 266 U.S. 570 (1925), 633n5

Miller v. Alabama, 132 S. Ct. 2455 (2012), 58–62, 592nn28,29,35, 650n1

Miller v. Grandy, 13 Mich. 540 (1865), 597n38

Millington v. Fox, 40 Eng. Rep. 956 (Ch. 1833), 631n6

Minersville School District v. Gobitis, 310 U.S. 586 (1940), 477, 639n71, 640nn72,73

Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1985), 434, 634n4

Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), 559, 565–566, 649nn21–24

Mondou v. New York, New Haven & Hartford Railroad, 223 U.S. 1 (1912), 602n13

Moore v. Madigan, 702 F. 3d 933 (7th Cir. 2012), 66, 593nn61,62

Morrison v. Olson, 487 U.S. 654 (1988), 249, 261, 614n4, 615n52

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660 Index of Cases

Mueller v. Allen, 463 U.S. 388 (1983), 500, 641n17

Muller v. Oregon, 208 U.S. 412 (1908), 341, 555, 625nn13–15, 648n4

Munn v. Illinois, 94 U.S. 113 (1876), 203, 601n9, 608n29

Murray’s Lessee v. Hoboken Land & Improve- ment Co., 59 U.S. 272 (1856), 316, 331–332, 622nn3,4

Myers v. United States, 272 U.S. 52 (1926), 264, 616nn61,62,64,65,69

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), 636n34

National Association of Optometrists & Opti- cians v. Harris, 682 F. 3d 1144 (9th Cir. 2012), 239, 613n36

National Broadcasting Co. v. United States, 319 U.S. 190 (1943), 444, 446, 617n36, 619n62, 635nn19,20

National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012), 194–195, 206, 209, 225–226, 586n13, 606nn17,21, 607nn23–25,1,4,5, 609nn41,42,44,48–50,52,54, 611nn52– 54,56,58, 612n59

National League of Cities v. Usery, 426 U.S. 833 (1976), 180–181, 605n70

Near v. Minnesota, 283 U.S. 697 (1931), 413, 591n13, 632n29

Nebbia v. New York, 291 U.S. 505 (1934), 456, 637n65

Nevada v. Skinner, 884 F. 2d 445 (9th Cir. 1989), 608n40

Newdow v. U.S. Congress, 328 F. 3d 466 (9th Cir. 2002), 515, 643n55

New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), 282, 619n65

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), 200, 608n24

New York v. United States, 505 U.S. 144 (1992), 242, 613n45

New York Central Railroad v. White, 243 U.S. 188 (1917), 618n47

New York Central Railroad v. Winfeld, 244 U.S. 147 (1917), 586n21

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), 413–415, 632nn25,31–33,36

New York Times Co. v. United States. See Pen- tagon Papers Case

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), 472–473, 639n52

NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), 635n14

NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939), 611n47

NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937), 169–170, 175–176, 183, 199, 224, 604nn17,24, 608n21, 611nn44,46, 620n20

Noel Canning v. NLRB, 705 F. 3d 490 (D.C. Cir. 2013), 257, 282, 615nn37,38,41, 619n66

Norfolk & Western v. Conley, 236 U.S. 605 (1915), 343–344, 625n30

North American Cold Storage Co. v. City of Chi- cago, 211 U.S. 306 (1908), 332, 624n60

Northern Pacifi c Railway Co. v. North Dakota, 236 U.S. 585 (1915), 343, 625nn28,29

Northern Pipeline Construction Co. v. Mara- thon Pipe Line Co., 458 U.S. 50 (1982), 618n49

Offi ce of Communication of United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966), 635n28

Ogden v. Saunders, 25 U.S. 213 (1827), 228, 612n1

Oklahoma v. United States Civil Service Commis- sion, 330 U.S. 127 (1947), 448, 636n39

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), 635n11

Pacifi c States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912), 138–139, 587n25, 600n13

Palko v. Connecticut, 302 U.S. 319 (1937), 586n1

Panama Refi ning Co. v. Ryan, 293 U.S. 388 (1935), 270–271, 616nn8,12

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), 538, 646n68, 650n4

Passenger Cases, 48 U.S. 283 (1849), 157, 602nn24,25

Patterson v. Colorado, 205 U.S. 454 (1907), 399, 630n5

Paul v. Virginia, 95 U.S. 168 (1869), 187, 230, 606n19, 612n5

Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), 361–362, 626n3, 627nn36,37

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), 362, 627n38

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Pentagon Papers Case, 403 U.S. 713 (1971), 419–421, 591n14, 633nn57,58

People’s Express Airline, Inc. v. Consolidated Rail Corp., 495 A. 2d 107 (N.J. 1985), 623n28

Perez v. Brownell, 356 U.S. 44 (1958), 543, 646nn8,9

Perez v. United States, 402 U.S. 146 (1971), 179, 183, 185, 605n59

Permian Basin Area Rate Cases, 390 U.S. 747 (1968), 344, 625n33

Perry v. Sindermann, 408 U.S. 593 (1972), 624nn46,47

Phillips v. Commissioner of Internal Revenue, 283 U.S. 589 (1931), 332, 624n62

Pickering v. Board of Education, 391 U.S. 563 (1968), 432–433, 634n33

Pierce v. Society of Sisters, 268 U.S. 510 (1925), 467, 638nn20,21

Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805), 618n54

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), 612nn10,11

Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), 509–510, 642nn22–26

Plessy v. Ferguson, 163 U.S. 537 (1896), 70, 78, 530–533, 576, 593nn78,3, 645nn36,37,43,44, 650n8

Plyler v. Doe, 457 U.S. 202 (1982), 549, 551, 647nn39–42,44

Poletown Neighborhood Council v. City of Detroit, 304 N. W. 2d 455 (Mich. 1981), 358, 627n25

Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 601 (1895), 598n14

Post Publication Co. v. Hallam, 59 F. 530 (6th Cir. 1893), 632n26

Prince v. Massachusetts, 321 U.S. 158 (1944), 465–467, 469, 476, 637n15, 638nn16– 18,20, 639n64

Prize Cases, 67 U.S. 635 (1863), 620n34 Pruitt v. Allied Chemical Corp., 523 F. Supp.

975 (E. D. Va. 1981), 596n23 Prune Yard Shopping Center v. Robins, 447

U.S. 74 (1980), 629n3

Raichle v. Federal Reserve Bank, 34 F. 2d 910 (2d Cir. 1929), 221, 611n37

Rasul v. Bush, 542 U.S. 466 (2004), 295–296, 621nn61,62

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), 444, 446, 635nn24,26

Reed v. Reed, 404 U.S. 71 (1971), 555–559, 649nn8–10

Reeves, Inc. v. Stake, 447 U.S. 429 (1980), 240–241, 613n39

Reynolds v. Sims, 377 U.S. 533 (1964), 141–142, 601nn21,22

Reynolds v. United States, 98 U.S. 145 (1878), 368, 463–470, 628nn4,5, 637nn5–7,9

Ricci v. DeStefano, 557 U.S. 557 (2009), 537, 646n67

Roach v. Harper, 105 S. E. 2d 564 (Va. 1958), 633n51

Roberts v. City of Boston, 59 Mass. 198 (1849), 531, 645nn39,40

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), 440, 622n1, 635n8

Roe v. Wade, 410 U.S. 113 (1973), 78, 108, 371–375, 419, 593n6, 597nn29,30, 628nn17,22, 633n56

Rogers v. Bellei, 401 U.S. 815 (1971), 646n1 Roman Catholic Archbishop of Washington v.

Sebelius (2012), 639n54 Roper v. Simmons, 543 U.S. 551 (2005), 60,

592n30 Rosenberger v. Rector & Visitors of University of

Virginia, 515 U.S. 819 (1995), 511, 514, 642n31

Rostker v. Goldberg, 453 U.S. 57 (1981), 564, 650n40

Sabri v. United States, 541 U.S. 600 (2004), 226, 612n59

St. John’s United Church of Christ v. City of Chicago, 502 F. 3d 616 (7th Cir. 2007), 639n47

State Rubbish Collectors Association v. Siliznoff, 240 P. 2d 282 (Cal. 1952), 630n2

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 551–552, 648nn48,49

Sanguinetti v. United States, 264 U.S. 146 (1924), 627n31

San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), 627n41

Schenck v. United States, 249 U.S. 47 (1919), 399–403, 630nn7–10,13

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), 120, 598n3

Schneider v. State, 308 U.S. 147 (1939), 429, 477, 634n19, 639n65

School District of Grand Rapids v. Ball, 473 U.S. 373 (1985), 499, 641n16

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Serrano v. Priest, 487 P. 2d 1241 (Cal. 1971), 551, 648n50

Seven-Sky v. Holder, 661 F. 3d 1 (D.C. Cir. 2011), 193, 607n35

Shaffer v. United States, 255 F. 886 (9th Cir. 1919), 399, 630n6

Sharon v. Time, Inc., 599 F. Supp. 538 (S. D. N.Y. 1984), 632n38

Sherbert v. Verner, 374 U.S. 398 (1963), 478–479, 640nn78,79

Shreveport Rate Cases, 234 U.S. 342 (1914), 163, 169, 171, 173–174, 183, 602nn17,18, 603n12, 604n43

Sidis v. F-R Publishing Corp., 113 F. 2d 806 (2d Cir. 1940), 633n52

Sierra Club v. Morton, 405 U.S. 727 (1972), 125, 599n23

Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), 599n35

Slaughter-House Cases, 83 U.S. 36 (1873), 66–67, 70, 308, 528–531, 545, 593nn67–71,79, 622n8, 644nn28,29, 645nn30,31, 647n14, 649n18

Slochower v. Board of Higher Education, 350 U.S. 551 (1956), 623n43

Smyth v. Ames, 169 U.S. 466 (1898), 342, 345, 617n44, 625n23

Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), 333, 624nn63,64

Snyder v. Phelps, 131 S. Ct. 1207 (2011), 417, 633n48

Somersett’s Case, 20 State Tr. 1 (1772), 522, 621n59, 644n8

South Carolina State Highway Department v. Barnwell Brothers, 303 U.S. 177 (1938), 233, 612n17

South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984), 241, 613n40

South Dakota v. Dole, 483 U.S. 203 (1987), 203–204, 207, 209, 608nn30,34,37–39

Southern Pacifi c v. Darnell-Taenzer, 245 U.S. 531 (1918), 625n32

Southern Pacifi c Railway v. Arizona, 325 U.S. 761 (1945), 233, 612n18

Southern Pacifi c Terminal Co. v. ICC, 219 U.S. 498 (1911), 597n28

Southern Railway Co. v. United States, 222 U.S. 20 (1911), 602n13

Southwestern Bell Telephone Co. v. Public Service Commission, 262 U.S. 276 (1923), 617n44

Speiser v. Randall, 357 U.S. 513 (1958), 435, 634n44, 638n35

Stafford v. Wallace, 258 U.S. 495 (1922), 162, 602n14

State ex rel. Railroad & Warehouse Commission v. Chicago, Minneapolis & St. Paul Railway Co., 37 N. W. 782 (Minn. 1888), 618n46

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), 600n43

Steel Seizure Case, 343 U.S. 579 (1952), 289–290, 620nn28,30, 621n49

Stephenson v. Binford, 287 U.S. 251 (1932), 633n6

Steward Machine Co. v. Davis, 301 U.S. 548 (1937), 199–201, 203–205, 208–209, 608nn19,22,23,25

Stone v. Mississippi, 101 U.S. 814 (1880), 628n2

Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527 (1906), 627n24

Sturges & Burns Manufacturing Co. v. Beau- champ, 231 U.S. 320 (1913), 638n19

Sugarman v. Dougall, 413 U.S. 634 (1973), 548–549, 647nn32–38

Swann v. Charlotte-Mecklenburg Board of Edu- cation, 402 U.S. 1 (1971), 646n60

Sweatt v. Painter, 339 U.S. 629 (1950), 539, 646n71

Syracuse Peace Council v. FCC, 867 F. 2d 654 (D.C. Cir. 1989), 635n25

Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948), 546–549, 555, 646n5, 647nn18,20, 649n6

Tarleton v. McGawley, 170 Eng. Rep. 153 (K. B. 1793), 623n28

Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284 (1957), 631n32

Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939), 116, 597n46, 598nn47,48

Ten Pound Cases New Hampshire, 1786– 1787, 89–90, 92

Terrett v. Taylor, 13 U.S. 43 (1815), 486, 640n14

Texas v. Johnson, 491 U.S. 397 (1989), 629n12

Thing v. La Chusa, 771 P. 2d 814 (Cal. 1989), 633n49

Thomas v. Union Carbide Agricultural Products Co. 473 U.S. 568 (1984), 618n50

Thornhill v. Alabama, 310 U.S. 88 (1940), 631n32

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Tinker v. Des Moines School District, 393 U.S. 503 (1969), 478, 629nn13,15, 640n76

Torcaso v. Watkins, 367 U.S. 488 (1961), 639n62

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), 640n82

Tribune Co. v. Oak Leaves Broadcasting Station, 68 Cong. Rec. 216 (1926) (reprinting III. Cir. Ct. decision of Nov. 17, 1926) 279, 618n55

Truax v. Raich, 239 U.S. 33 (1915), 546–548, 647nn15,21,23,24

Underhill v. Hernandez, 168 U.S. 250 (1897), 594n15

United Mine Workers v. Coronado Coal, 268 U.S. 295 (1925), 160–162, 169, 602nn8,9, 603n13

United Public Workers of America v. Mitchell, 330 U.S. 75 (1947), 108, 433, 597n31, 634n34

United States v. Alvarez, 132 S. Ct. 2537 (2012), 410–411, 631nn16,18,19, 632nn20–22

United States v. AT&T, 552 F. Supp. 131 (D. D.C. 1982), 626n37

United States v. Butler, 297 U.S. 1 (1936), 198–200, 203, 206, 208, 608n17

United States v. Carolene Products Co., 304 U.S. 144 (1938), 37, 309, 546, 548, 590n13, 622nn9,12, 647nn17,31

United States v. Comstock, 130 S. Ct. 1949 (2010), 225, 611nn55–57

United States v. Coombs, 37 U.S. 72 (1838), 163, 170, 602n19, 604n25

United States v. Cruikshank, 92 U.S. 542 (1876), 67, 70, 530, 593nn72,73,80, 645nn33,35

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), 287–289, 619nn15,16, 620nn17–19,21–23, 621n65

United States v. Darby, 312 U.S. 100 (1941), 169, 171, 173, 175, 180–181, 183–184, 341, 604nn21,26,28–30, 605n65, 625n21

United States v. Dennis, 183 F. 2d 201 (2d Cir. 1950), 403, 631n26

United States v. E. C. Knight, 156 U.S. 1 (1895), 159–160, 164, 174, 602nn4,5

United States v. Fuller, 409 U.S. 488 (1973), 327, 623n37

United States v. Lee, 455 U.S. 252 (1982), 467–469, 638nn24,26–29

United States v. Lopez, 514 U.S. 549 (1995), 168, 179, 183–185, 586n13, 606nn1–4,6

United States v. Macintosh, 238 U.S. 605 (1931), 646n3

United States v. Masciandaro, 638 F. 3d 458 (4th Cir. 2011), 65–66, 592nn57,58

United States v. Miller, 307 U.S. 174 (1939), 62, 592nn40,43,50

United States v. Morrison, 529 U.S. 598 (2000), 184, 586n13, 606n7

United States v. O’Brien, 391 U.S. 367 (1968), 629n11

United States v. Perkins, 116 U.S. 483 (1886), 265–266, 616nn70,71

United States v. Ravara, 2 U.S. 297 (1793), 594n4

United States v. Richardson, 418 U.S. 166 (1974), 119, 598n2

United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940), 589n12, 616n11

United States v. South-Eastern Underwriting, 322 U.S. 533 (1944), 187, 606n20

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), 621n66

United States v. Virginia, 518 U.S. 515 (1996), 650nn42–46,5

United States v. Windsor, 699 F. 3d 169 (2d Cir. 2012), 378, 629nn39,40

United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), 172–173, 604nn32,38

United States v. Zenith Radio Corp., 12 F. 2d 614 (N. D. Ill. 1926), 618n57

United Steelworkers of America v. Weber, 443 U.S. 193 (1979), 536–537, 646nn63,64

University of Notre Dame v. Sebelius 3:12-cv- 00253 (N.D. Ind. 2012), 639n54

Vacco v. Quill, 521 U.S. 793 (1997), 637n13 Valentine v. Chrestensen, 316 U.S. 52 (1942),

631n4 Valley Forge Christian College v. Americans

United for separation of Church & State, 454 U.S. 464 (1982), 123, 599n15

Van Orden v. Perry, 545 U.S. 677 (2005), 508, 510, 642nn15–18

Vegalahn v. Guntner, 44 N. E. 77 (Mass. 1896), 631n32

Veith v. Jubelirer, 541 U.S. 267 (2004), 601n24

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Verizon Communications v. FCC, 535 U.S. 467 (2002), 626n38

Village of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365 (1926), 169, 363, 590n15, 603n4, 627n42

Wabash, St. Louis & Pacifi c Railway Co. v. Illinois, 118 U.S. 557 (1886), 162–163, 602n15

Wallace v. Jaffree, 472 U.S. 38 (1985), 513–514, 643nn45,46,48

Walz v. Tax Commission of New York, 397 U.S. 664 (1970), 501–502, 641nn19,21

Ward v. Rock against Racism, 491 U.S. 781 (1989), 634n18

Washington v. Glucksberg, 521 U.S. 702 (1997), 637n13

Weinberger v. UOP, Inc., 457 A. 2d 701 (Del. 1983), 650n2

Weiner v. United States, 357 U.S. 349 (1958), 619n6

West Coast Hotel v. Parrish, 300 U.S. 379 (1937), 309, 622n10, 647n16

West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994), 238, 590n29, 612n12, 613n30

West River Bridge Co. v. Dix, 47 U.S. 507 (1848), 623n36

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), 477–478, 512, 514–515, 640nn74,75, 642n38, 643nn51,52

Whitney v. California, 274 U.S. 357 (1927), 403, 630n21

Wickard v. Filburn, 317 U.S. 111 (1942), 78, 169, 172–179, 182–185, 187–188, 225, 230, 593n5, 604nn19,31,33,40,42, 612n8

Widmar v. Vincent, 454 U.S. 263 (1981), 511, 514, 642n29

Wieman v. Updegraff, 344 U.S. 183 (1952), 624n45

Wilkinson v. Downton, 2 Q. B. 57 (1897), 632n41

Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955), 561, 649n32

Williamson County Regional Planning Com- mission v. Hamilton Bank, 473 U.S. 172 (1985), 627n40

Willson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829), 232, 612n14

Wilson v. U.S. Western Communications, 58 F. 3d 1337 (8th Cir. 1995), 640n84

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), 624n59

Wisconsin v. Constantineau, 400 U.S. 433 (1971), 334, 624nn66,67

Wisconsin v. Mitchell, 508 U.S. 476 (1993), 634n2

Wisconsin v. Yoder, 406 U.S. 205 (1972), 467, 470, 638n22

Wisconsin Railroad Commission v. Chicago, Burlington & Quincy Railroad, 257 U.S. 563 (1922), 602n20

Wolman v. Walter, 433 U.S. 229 (1977), 641n15

Yates v. United States, 354 U.S. 298 (1957), 404, 631n28

Yee v. City of Escondido, 503 U.S. 519 (1992), 627n45

Yick Wo v. Hopkins, 118 U.S. 356 (1886), 320–321, 623nn15,16, 628n7

Youngstown Sheet & Tube Co. v. Sawyer. See Steel Seizure Case

Zelman v. Simmons-Harris, 536 U.S. 639 (2002), 500, 641n18

Zorach v. Clauson, 343 U.S. 306 (1952), 483, 510, 512, 640nn6,8, 642nn27,28,41

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Abolitionism, 32, 523–524, 528 Abortion, 5, 16, 78, 108, 367, 369,

371–375, 457 Accommodation of church and state,

482–486, 490, 503–505, 512, 514, 517 Accounting reforms, 282–284 Ackerman, Bruce, 552 Active liberty, 11, 35–36 Adams, John, 24, 27, 88, 90 Administrative agencies, 6–7, 10, 13–14,

39–41, 117, 131, 267, 274–284, 303, 427

Administrative law, 40 Administrative law judges, 262 Administrative Procedure Act, 7, 117, 119,

128, 599n33 Administrative standing, 117–118,

120–121 Adultery, 367 Advertisements, 408–410, 413–414, 416,

457 Affi rmative action, 180, 535–539, 572 Afghanistan, 297 AFL-CIO, 442 African Americans, 28, 70, 530, 534, 538,

542, 554, 558 Age discrimination, 379 Agricultural Adjustment Acts, 37, 169,

173, 178, 198, 578 Agricultural markets, 40, 172–173, 178,

230 Agricultural monopolies, 37, 121, 571 Agriculture, 37, 43, 121, 313, 572, 577;

and commerce power, 148–150, 152, 155, 158, 161, 171–173, 175, 178–179,

184, 197–199, 227, 230–231, 234–235, 238

Agriculture Department, U.S., 172, 235 Aid to Families with Dependent Children,

468–469 Air Force, U.S., 479 Air pollution, 129–131, 353 Airport and Airway Extension Act, 257 Air rights, 361–362, 580 Alabama, 413–414 Alabama Power Company, 116 Alabama Supreme Court, 413 Alaska, 241 Alcoholic beverages, 159–160, 203–205,

306, 334, 560–562 Aliens, 157, 295–296, 320–321, 524, 527,

541–552, 554, 646n2, 647n43 Alien and Sedition Acts, 92 Alito, Samuel A., 66–67, 124, 411,

509–510 Allocation system, 172 Alvarez, Xavier, 411 Ambassadors, 252–253, 258 Americans with Disabilities Act, 472–475 Amish, 467–469 Andersen, Arthur, 284 Anglicans (Church of England), 481, 512 Anti-Federalists, 5, 23–25, 190 Antitrust laws, 37, 42, 159–161, 165, 208,

244, 281, 286, 437–443 Appellate jurisdiction, 87, 89, 92, 94–96,

133 Appointments, 250, 253–266 Appointments Clause, 252–256, 260,

262–265, 282

General Index

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666 General Index

Arab oil boycott, 237 Aristotle: Politics, 24 Arizona, 124, 231, 233, 344, 452, 548 Arkansas Game and Fish Commission, 360 Armbands, 389–390 Arms, right to bear, 56, 62–68, 183–184,

192–193 Army, U.S., 12, 190, 253, 286, 288, 290,

398, 564, 600n8 Articles of Confederation, 3, 12, 32, 97,

195, 197, 215, 525–526 Associated Press, 438 AT&T, 345 Atheists, 391, 510 Attorney general, 248, 255–256, 273 Authorization of Use of Military Force Act,

292 Automobile industry, 105, 340, 342 Awlaki, Anwar al-, 544

Bagram Air Force Base, 297 Balanced Budget and Emergency Defi cit

Control Act, 274 Balkin, Jack, 54, 150–151, 153, 176–178,

188, 577 Baltimore & Ohio Railroad, 344 Bankruptcy, 12, 148, 228 Banks, 93, 97, 213–218, 221–222 Baptists, 417 Bates, John, 297 Baude, William, 211–213 Beard, Charles A.: An Economic Interpreta-

tion of the Constitution, 31 Becker, Craig, 257, 442–443 Bell Operating Companies, 345 Berea College, 532–533 Berle, Adolf: The Modern Corporation and

Private Property, 38–39, 41 Berman, Mitchell, 577 Berns, Walter, 7 Bestiality, 392 Bias, 318 Bible, 464, 513, 517 Bickel, Alexander, 79 Bill of Rights, 14–15, 47, 57–58, 67, 171,

211, 308, 314, 370, 486, 526, 530–531, 628n11. See also specifi c amendments

Bills of attainder, 14, 24, 315 Bipartisan Campaign Reform Act, 451,

456–457 Black, Hugo L., 333, 344, 348, 370, 384–

385, 404, 414, 420, 429, 496, 511–512, 543–544, 546–547

Blackmun, Harry A., 181, 329, 372, 376, 393, 500, 548

Blackstone, William, 84, 318, 322–323, 412 Blasi, Vince, 387 Block grants, 490–491, 498–501 Bob Jones University, 469 Boeing Corporation, 496 Bolivia, 287 Bolsheviks, 401 Bolton, John, 257 Book of Common Prayer, 512 Bork, Robert, 11, 248, 387 Boston, Mass., 213, 230, 430–431, 531 Boycotts, 400 Bradley, Joseph P., 529, 557–558, 560 Brandeis, Louis D., 38, 116–117, 189, 200,

341, 403, 418, 590n17 Brennan, William J., 58, 121–122, 135,

140–141, 204, 333–334, 361–363, 414, 435, 440, 478, 499–500, 507, 536–537, 549, 556–562

Brewer, David J., 341 Breyer, Stephen G., 11, 39, 124, 207, 411;

Active Liberty, 35–36 Bribery, 329, 385, 393, 397–398, 405 Britain, 4, 202, 512; constitution of, 17,

26, 56, 84; monarchy in, 24–25, 288; abolition in, 32, 522; bill of rights of, 57; Parliament, 57, 83–85, 93, 249, 254, 317–318; punishment in, 59–60; com- mon law in, 84, 109, 317, 416; treaties with, 94, 103; writ of mandamus in, 101; standing in, 105, 109–110; equity in, 109–110; Reform Act, 139, 141; writ of habeas corpus in, 294; due process in, 314–320, 322–323; Magna Carta, 314–317, 319; private property in, 349; Test Act, 475–476; Anglican Church in, 481; colonial charters of, 525

Brown, Henry Billings, 530–532 Buchanan, James, 197 Budget, balanced, 267, 274–275 Burger, Warren, 273–274, 468, 495,

501–502, 506, 549 Burke, Edmund, 56, 562 Bush, George W., 291, 294 Business judgment rule, 572–573 Busing, 122, 482, 496–498

California, 184, 225, 231, 344, 411, 515, 546, 551, 609n40

California Business and Professions Code, 239

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General Index 667

California Proposition 8, 378–379 California Supreme Court, 378, 418, 552 Campaign fi nance, 10, 79, 385, 437,

446–448, 570 Campaign Finance Act (Michigan), 455 Capital punishment, 58, 60 Carbone, C. & A., 243 Cardozo, Benjamin, 17, 200–201,

204–205, 271 Cartels, 37, 121, 135, 168, 170–172, 175,

178, 198, 230, 244, 270–271, 286, 303, 338

Catholic Relief Act (Britain), 475 Catholics, 375, 473, 475, 480, 499 Ceballos, Richard, 433 Center Moriches, N.Y., 511 Central Intelligence Agency, 119 Chaco War, 287 Chadha, Jagdish, 273 Chapman, Nathan, 316 Charters: corporate, 112, 211, 533; colo-

nial, 525 Charter schools, 552, 573 Chase, Salmon P., 218 Checks and balances, 4–5, 13–14, 22, 33,

86–87, 136, 249, 253, 276, 287, 387 Chicago, Ill., 66, 68, 332, 433 Child labor, 114, 166–167, 466–467 China, 321 Chinese Americans, 341, 368, 542 Christianity, 485–486, 493–494, 506–507,

511, 513 Christian Legal Society, 432 Christmas displays, 506–508 Choper, Jesse, 181 Chrysler Corporation, 105, 340 Circuit courts/judges, 27, 257, 282, 295,

403 Circumvention, 48–49, 390, 573–574 Citizens Clean Elections Act (Arizona), 452 Citizenship, 12, 16, 148, 157, 308,

523–524, 539, 541–553 Citizenship Clause, 524, 541, 543–544,

552–553 Citizen standing, 112–116, 119–120,

122–125, 129, 131–132 Citizens United, 447, 458 Civil rights, 34, 93–94, 179–180, 309, 404,

413, 478, 523, 537–538 Civil Rights Act (1866), 528, 547 Civil Rights Act (1964), 53, 179–180, 479,

494–495, 536–537 Civil Service Commission, 264

Civil War, xi, 4, 6, 15, 18, 145–146, 158, 164, 179, 218, 294, 380, 522–523, 531, 555, 558

Clarkstown, N.Y., 243 Class action litigation, 111 Clayton Act, 440, 578 Clean Air Act, 129–131, 408 Clean Water Act, 408 Coal industry, 237, 362 Coast Guard, U.S., 261 Cockfi ghting, 367, 392 Coeducational schools, 559, 565–566 Coercion, 20, 178, 201–203, 207, 209,

241, 377, 474, 489, 496, 516, 532, 535 Coke, Edward, 83–85, 317–318 Colfax Massacre, 530 Collective bargaining, 176, 234, 339–340,

440–442, 479, 635n12 Colonial charters, 525 Colorado Supreme Court, 399 Color-blind standard, 535–540 Commander-in-Chief Clause, 250, 252,

288, 293–294 Commerce, 5,43, 187, 197, 572, 577;

power, and Congress, 145–244, 271, 305; and Necessary and Proper Clause, 213–215, 217–220, 223. See also Foreign commerce; Interstate commerce

Commerce Clause, xii, 9, 13, 36, 47, 63, 70, 79, 113, 268, 287, 303–305, 309, 341, 374, 428, 484, 521, 575–577; 1787–1865, 147–157; 1865–1937, 158– 167; 1937–1995, 168–182; 1995–present, 183–193; and taxing/spending, 194, 197, 199–200, 203, 206; and mone- tary constitution, 225–226; Dormant, 227–244

Commerce power, and Congress, 145–244, 271, 305

Commercial fraud, 406–412 Commercial law, 48, 147 Commercial speech, 408–410 Committee for Industrial Organization,

224, 429 Commodities Futures Trading Commis-

sion, 277 Common carriers, 165, 208, 424–425,

430–431, 440 Common law, 7, 48, 52, 68, 84, 109–110,

115, 279–280, 282, 317, 326, 349, 353– 355, 360, 363, 393, 405, 407, 413–416, 418, 423, 426–427, 429, 440–441, 465, 487, 597n45

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668 General Index

Commons, use of, 393, 423–436, 483, 503–517

Communications, 38–39, 43, 55, 278–281; and commerce power, 152, 184, 244; and freedom of contract, 345–346; and freedom of speech, 424, 443–446

Communists, 324, 402–403 Compassionate Use Act (California),

184–185 Compensation for takings, 347–348,

350–353, 357–362 Competition, 43, 156–157, 223, 237,

239, 338, 368, 580; versus monopoly, 36–37, 41–42, 175, 202–203, 243, 270–272, 333, 338, 342, 380, 438–439, 456–457, 578; and corporatism, 38; fair, 40, 169, 270; corporate, 41–42, 340; in labor markets, 53, 167, 170, 180, 379; between states, 149–150, 233; interstate, 164, 171, 232, 341, 578; in agricultural markets, 172–173, 178, 230; and prices, 172–173, 427; and health insurance, 189, 191; by banks, 221; versus regu- lation, 232, 243, 272; and freedom of speech, 386–387, 425–426; by churches, 390–391; and contracts, 396, 552; and advertising, 409; and fraud, 411

Competitive harm, 392 Competitive markets, 37–38, 53, 170, 178,

180, 202, 333, 386, 396, 409, 425–426, 439

Competitor standing, 116–117, 120–121 Concealment, 409 Confederacy, 523, 531 Congress, U.S.: enumerated powers of,

12–13; bills in, 29; and foreign com- merce, 31, 48; representation in, 32, 521–522; and interstate commerce, 43, 95; and freedom of speech, 49; and right to bear arms, 63–64, 67; and presiden- tial impeachments, 102, 104; and child labor, 113–114, 166–167; and political questions, 133–134, 136–141; commerce power of, 145–244, 271; and slavery, 155, 521; and alcoholic beverages, 160, 203–205; and stockyards, 162; and rate regulation, 162–164; and labor relations, 170–171, 224; and agriculture, 172–173, 199, 230; and marijuana, 184–185, 225; and health care, 185–193, 207–209; tax- ing/spending by, 194–209; and national banks, 214–216; and monetary system, 218–220; and Federal Reserve, 221–222;

and lotteries, 223; and presidential appointments, 253–266; legislative veto by, 272–274; balancing the budget, 274–275; and administrative agencies, 275, 278, 282–283; and foreign affairs, 285–288; and military, 286, 289–293; and habeas corpus, 294–296; anti- trust legislation and unions, 440; and citizenship, 541–543. See also Legislative powers; specifi c acts

Congress of Industrial Organizations, 224 Connecticut, 358, 369, 494–495 Connecticut Compromise, 32 Conservatives (modern), xii, 9–10, 14,

43, 56, 115–116, 185–188, 193, 200, 207, 313, 341, 378, 420, 517, 537–538, 570–576, 579, 581, 583, 597n45

Conspiracy, 405, 530 Constitution, U.S.: dual nature of, 3–16;

limited, 24; Preamble to, 25, 35; suc- cess of, 30–33; limitations on political participation, 36; living, 45, 54–58, 68, 70–71, 532, 570; prescriptive, 46, 68–71, 97–100, 223, 276–277, 379, 486, 516, 575–576; judicial power, 77–143; legis- lative power, 145–244; monetary, 210– 226; executive power, 247–297; and police power, 304; and individual rights, 307; negative liberties in, 311; and slavery, 9, 32, 521–522, 585nn10,11, 589n52, 643nn1,2; ratifi cation of, 573. See also specifi c clauses and amendments

Constitutional amendments, 4–5, 56, 102. See also individual amendments

Constitutional Convention, 3, 12, 17–18, 23–24, 30–32

Constitutional interpretation, x, 9–11, 44–71, 104, 140, 148, 154, 211, 216, 308–309, 319, 379, 486, 530, 569, 573–574, 580

Constitutional law, ix–xi, 5, 11, 34, 45, 48–49, 70, 77, 89, 91, 100, 104, 133, 141, 391, 398–399, 426, 440, 488, 532, 555, 569, 576, 583

Consumer Financial Protection Bureau, 257–258

Contempt of court, 439 Contraception, 367, 369–371, 473–475,

639n55 Contract law, 19, 48 Contracts, 35, 325, 433; social, xi, 19–20,

571; obligation of, 14, 228; corporate, 117; employment, 128, 326–330; and

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General Index 669

debt payment, 218–219; government, 326, 484; and fraud, 338; terms of, 338; breach of, 393, 396, 417; and competi- tion, 396, 552; enforcement of, 528. See also Freedom of contract

Contracts Clause, 228, 307, 454 Controlled Substances Act, 185, 225 Cooley, Thomas M., 49, 275–276 Coolidge, Calvin, 169 Copperheads, 533 Copyright Act, 409 Copyrights, 12, 148, 324–325 Cord, Robert, 485 Cordray, Richard, 257 Corporate charters, 211, 454, 533 Corporate competition, 41–42 Corporate law, 535, 572 Corporate speech, 453–458 Corporations, 26, 112, 201, 214, 484,

623n19; public, 38, 196, 282–284; liabil- ity of, 61, 230, 321; versus citizens, 230; and due process, 321–322; and freedom of speech, 384, 448–449, 453–455, 457–458

Corporatism, 38 Corruption, 448, 453, 455 Cosmopolitan Broadcasting Company,

281 Council for Affordable Health Insurance,

186 Court of appeals, 87, 296–297, 327, 515 Covenants, 349, 351, 354, 580 Cox, Archibald, 248 Creationism, 517 Criminal law, 52, 59–61, 108–109, 184,

307–308, 331, 367, 371, 374–376, 378–379, 397, 399–404, 408, 456, 458, 527, 529–530, 535, 551, 554, 581

Cruel and Unusual Punishment Clause, 46, 56–62, 570

Cuba, 295, 320 Curriculum, school, 516–517 Currie, David, 93, 106

Daley, Richard, 433 Damage, fl ood, 360–361 Damages, 50, 137, 407, 412, 414–415,

417 Dartmouth College, 454 Darwin, Charles, 517 Davis, John W., 166–167 Death penalty, 60 Debs, Eugene V., 401

Debts, 218–220 Decency, standards of, 59–60 Declaration of Independence, 18–19 Defamation, 322–325, 334, 385, 393, 406,

408, 412–417, 422, 623n22 Defense Department, U.S., 123 Defense of Marriage Act, 378 Deists, 390–391 Delaware, 42, 232 Delegation, 13, 267–284 Deliberation, 15, 26–28, 30, 34, 36, 39, 98,

102, 134, 386–387, 447, 472 Democracy, 11–12, 15, 24–25, 27–29,

34–37, 44, 55, 132, 138–139, 141–142, 427, 566, 571

Democratic Party, 207, 271, 281, 328, 371, 457

Democratic-Republican Party, 24, 27 Deportation, 273 Desegregation, 93–94, 535 Detainees, 296–297 Detroit, Mich., 536 Dillon, John F., 112, 115 Direct elections, 25, 27–28, 30 Direct regulation, 158–161, 173, 197, 199,

483, 486, 491–495 Disability payments, 277, 335 Disclosure, 407, 409 Discrimination, 16, 179, 229–230, 384,

390, 469; sex, 5, 306, 341, 379, 462, 554–566; racial, 37, 379, 521–540, 581; age, 379; ethnic, 379; sexual orienta- tion, 379, 430–432; religious, 479–480; and citizenship, 541–553. See also Non- discrimination rule

Disproportionate injury, 106–107 Dissent, 16, 26, 125, 134, 448 District attorneys, 433 District of Columbia, 62–66, 212–213, 535,

543, 557. See also Washington, D.C. District of Columbia Circuit Court, 257,

282 District of Columbia Court of Appeals,

296–297 District courts, 87, 295–296, 403, 417 Districting, 121–122, 135, 139–143 Dodd-Frank Wall Street Reform and Con-

sumer Protection Act, 257 Dole, Elizabeth, 203 “Don’t ask, don’t tell” policy, 564 Dormant Commerce Clause, xii, 13, 79,

182, 227–244, 303–305, 374, 428, 484, 575

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670 General Index

Dorr, Thomas Wilson, 136–137 Douglas, William O., 58, 180, 333, 341,

344, 370, 414, 483, 510, 512, 558 Drinking age, 306 Drugs, 39, 165, 392 Due Process Clause, 15, 36, 47, 67, 81,

308, 313–336, 338, 342, 349, 369, 377, 425, 467, 524–527, 529, 535, 543, 545–546, 557

Due process of law, 16, 47, 58, 297, 307–308, 314–336, 524–525, 529

Dyk, Timothy, 361

Easements, 349, 351, 356, 580 Economic commons, 423–428 Economic liberties, 6, 9–10, 16, 119, 271,

305, 309–310, 337–342, 365, 367, 377, 383, 391, 437–438, 447–448, 462, 525, 529, 546, 558, 571, 576–577

Economic protectionism, 31, 43, 233, 237, 239–240, 303, 339, 341

Economics, progressive, 37–44 Edinburgh Review, 583 Education, 323, 478, 599n34, 638n23;

parochial school, 122–125, 467, 469, 472–473, 482–483, 496–502; use of school facilities, 431; teachers, 432–433, 472–473, 490; school organizations, 432; tax status of schools, 469; pri- vate schools, 477; block grants, 490, 498–501; school prayer, 499, 511–516; schools as public fora, 510–511; curric- ular decisions, 516–517; segregation/ integration, 530–535; affi rmative action, 535–539; of aliens, 549, 551–552; charter schools, 552, 573; coeducational, 559, 565–566

Edwards, Harry, 297 Eighteenth Amendment, 160, 204 Eighth Amendment, 46, 56–61 Eisenhower, Dwight D., 94 Election of 1800, 24 Elections, 29–30, 32, 35–36; direct, 25,

27–28, 30; indirect, 27–28, 36; and political questions, 135, 139–143; voting rights, 310, 523, 534, 552

Electoral College, xi, 28, 32 Electricity, 410 Elementary and Secondary Education Act,

123 Eleventh Amendment, 609n40 Elhauge, Einer, 191–193 Elizabethtown, N.J., 154, 229

Ellenborough, Baron (Edward Law), 202–203

Ely, John Hart, 372; Democracy and Distrust, 309, 318, 350–351

Emancipation, 523, 529 Emancipation Proclamation, 523 Emergency Planning and Community

Right-to-Know Act, 600n43 Emergency Price Control Act, 271 Emerson, Thomas: The System of Freedom of

Expression, 389 Eminent domain, 17, 193, 212, 472, 582 Emotional distress, 393, 406, 415–417,

422 Employee Retirement Income Security

Act, 34 Employment contracts, 128, 330–336 Employment relations, 432–433, 473–474,

478–480 Endangered Species Act, 34, 126–127,

355, 357, 599n27 Energy Department, U.S., 242 Enlightenment, xi Entitlements, 35, 55, 81, 311–312, 314,

325, 408, 435 Enumerated powers, 12–14, 148–151, 170,

177, 184, 190, 194–210, 212, 214–215, 223, 260, 268, 286, 609n5

Environmental harm, 125–132, 355–356 Environmental issues, 39, 125–132, 240,

353–357, 408 Environmental Protection Agency, 34,

129–130, 277 Epstein, Richard A.: Supreme Neglect, 352;

Takings, 352 Equality, 18, 29, 532–533, 552–553 Equal Protection Clause, 15–16, 140–141,

308, 310, 320, 341, 466, 471, 524, 526– 527, 530–531, 534–535, 538, 541–542, 545–550, 554–557, 561–562, 581

Equal protection of laws, 307–308, 326, 379, 466, 522, 524, 527, 530–531, 533–535, 544–550, 552, 554–555, 559, 565

Equal Rights Amendment, 558–559 Equitable jurisdiction, 579–580 Equity, 109–112, 115, 128–129, 198, 265,

331–332, 335, 393 Espionage Act, 398–399, 402 Established churches, 481–482 Establishment Clause, 16, 122–125, 461,

465, 471–472, 480–517 Estate administration, 555–556

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General Index 671

Ethanol, 30 Ethics in Government Act, 261 Ethnicity, 78, 315 European Union, 155 Euthanasia, 465 Evolution, 516–517 Exceptions Clause, 92, 96 Executive power, 3, 8, 13–14, 40, 91–93,

98–99, 133–134, 136–138, 194, 247– 250, 252, 267–269, 274–275, 285–286, 289–290, 294. See also President, U.S.

Exit rights, 42, 151–153, 179 Ex post facto laws, 14, 24, 91 Expressive associations, 622n1 Exxon Corporation, 236–237

Factions, 20–23, 26, 29, 36, 40, 44, 121, 126, 136, 141, 143, 196, 215, 252, 263, 427, 450–451, 485–486, 516–517, 579–581

Fair Labor Standards Act, 169, 171, 178, 180–181, 341, 440, 578

Falwell, Jerry, 416 Fascists, 477 Favoritism, 31, 240–241, 427, 433, 448,

486, 527, 566 Federal Circuit, 361 Federal Communications Act, 117,

444–445 Federal Communications Commission,

275, 279–281, 345–346, 437, 443–446, 598n52

Federal courts, xi, 77, 80, 87, 92, 95–98, 103, 105, 108, 115, 128, 136, 226, 230, 280, 322, 363, 524, 575, 595n18

Federal Deposit Insurance Corporation, 262

Federal Election Campaign Act, 258–259, 456

Federal Election Commission, 259 Federal Employer’s Liability Act, 162,

372 Federal Home Loan Mortgage Corporation

(“Freddie Mac”), 222 Federalism, xi, 5–6, 9, 12, 34, 42, 64–65,

97, 147, 149, 175, 181–182, 189, 191, 212–213, 223, 309, 437, 489, 570, 574, 583

Federalist No 1, 26 Federalist No. 10, 21–24, 26, 450–451 Federalist No. 45, 148–149, 177 Federalist No. 51, 22 Federalist No. 64, 289

Federalist No. 69, 288, 293 Federalist No. 78, 24, 81, 90–91 Federalist Papers, 22, 32, 220, 309, 522 Federalists, 5, 23–24, 27 Federal National Mortgage Association

(“Fannie Mae”), 222 Federal power. See Power of the state Federal Power Commission, 344 Federal Radio Act, 169, 280 Federal Reserve System, 221–222 Federal Securities Act, 39 Federal Torts Claims Act, 572 Federal Trade Commission, 169, 275–276,

617n31 Field, Stephen, 112 Fifteenth Amendment, 28 Fifth Amendment, 58, 81, 307, 313–314,

316, 318, 348, 525, 535, 543 Filburn, Roscoe, 172 Filibuster rule, 596n21 First Amendment, xi–xii, 16, 49–50, 122,

307, 383–385, 389, 395–397, 399–400, 402–408, 410–414, 416–420, 422–423, 425, 431, 433–434, 436–439, 441, 443–447, 450–451, 453, 457, 461, 470, 474, 481, 485–486, 499, 509–510, 529

First Bank of the United States, 214–216 Flag burning, 389, 392 Flag waving, 390 Fletcher, William, 106 Flood damage, 360–361 Florida, 207, 444 Food Stamp program, 469, 580 Force, 15, 20, 25, 49, 55, 151, 163, 303,

306, 324, 385, 395–397, 399, 405–406, 409–410, 438–439, 462

Ford, Gerald, 18, 409 Ford Motor Company, 340, 421 Foreign affairs, 12–14, 252–253, 285–289 Foreign commerce, 12, 31, 43, 147–150,

155–157, 172, 192, 217–218, 231, 236, 286

Foreign Commerce Clause, 155, 286 Foreign Intelligence Surveillance Act,

291–292, 421 Forest Service, U.S., 125, 476 Fornication, 371 Fourteenth Amendment, 15, 66–68, 70,

94, 307–308, 313–314, 321, 338–339, 369, 373, 376–377, 380, 425, 471, 482, 521–553, 582

Fourth Amendment, 296 France, 103

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Frankfurter, Felix, 38, 141, 218, 280, 324, 404, 444–446, 477, 543, 555

Fraud, 15–16, 55, 303, 306, 324, 462; and contracts, 338; statute of, 356, 579; and freedom of speech, 385, 393, 396, 399, 406–412, 414, 422, 438–439; com- mercial, 406–412; social, 406–412; and competition, 411

Freedom. See Liberty Freedom of action, 4, 406, 439, 537, 583

Freedom of assembly, 429, 448 Freedom of association, 53–54, 384, 440,

447, 462, 469, 530, 532 Freedom–of–choice plans, 535 Freedom of contract, 9, 15–16, 208–209,

337–346, 349, 367, 383–385, 439, 472, 526–527, 530, 533, 555

Freedom of expression, 478 Freedom of Information Act, 421 Freedom of motion, 323 Freedom of the press, 5, 15, 46, 307, 384,

408, 415–420, 434, 438–439, 444 Freedom of religion, 9, 15–16, 305, 307,

368, 432, 438; preliminary consider- ations, 383–394; free exercise, 461–480; Establishment Clause, 481–502; and commons, 503–517

Freedom of speech, xii, 9–10, 15–16, 46, 48–51, 54, 91, 305, 307, 465, 469–470, 478, 509, 511, 583; prelim- inary considerations, 383–394; and corporations, 384, 448–449, 453–455, 457–458; and fraud, 385, 393, 396, 399, 406–412, 414, 422, 438–439; and competition, 386–387, 425–426; and markets, 386, 396, 409, 425–426, 439; force/threats/inducements, 395–405; fraud/defamation/emotional distress/ privacy, 406–422; and commons, 423–436; progressive attitude toward, 437–458

Freedom of thought, 583 Freedom of trade, 583 Free Enterprise Fund, 282 Free exercise, 16, 389–391, 462, 466, 470,

475, 481, 488–489, 493 Free Exercise Clause, 461–463, 466,

470–472, 474–475, 482–484, 486, 493–494, 514

Free Speech Clause, 384, 389–390, 471 Free trade, 217, 223, 229–231, 304 Freund, Ernst, 49 Fried, Charles, 187

Friedman, Milton, 222 Frothingham, Louis A., 113–114 Fugitive Slave Clause, 9, 32, 521–522,

585n11, 589n52, 643n1 Fulton, Robert, 156

Gambling, 367, 394 Gay marriage, 369, 378–380, 450 Gay rights march, 430–431 Gays in military, 564 Gender, 554 General Agreement on Tariffs and Trade,

612n22 General Motors Corporation, 105, 238,

340, 358 General welfare, 113, 195–199, 205, 304,

546, 579 Geneva Conventions, 295 Georgia, 333, 419 Georgia Constitution, 360 Germany, 152, 320–321 Gerry, Elbridge, 24 Gibbons, Thomas, 156 Ginsburg, Ruth Bader, 124, 187, 189–191,

195, 432, 565 Global warming, 130 Goldberg, Arthur J., 370 Goldman, Simchal, 479–480 Government agencies. See Administrative

agencies Government contracts, 326, 484 Government employees, 108, 180–181,

326–330 Government monopolies, 5, 36, 121, 151,

153, 179, 220–221, 243, 338, 379–380, 390, 509, 578

Gramm-Rudman-Hollings Act, 274 Grants, 208, 326–328, 490–492, 498–501 Great Depression, 34, 43, 147, 221 Greenbacks, 213, 218–220 Greve, Michael, 175–176, 197–198 Griswold, Henry, 218 Guantanamo Bay Naval Base, 99, 295–

297, 320, 595n31 Guarantee Clause, 25, 135–142, 295,

587n24, 621n56 Gulf of Tonkin Resolution, 290 Gun-Free School Zones Act, 183 Gun registration, 65 Gunther, Gerald, 307

Habeas corpus, writ of, 14, 27, 81, 93, 99, 294–297, 253, 294–297, 320, 526

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Hale, Matthew, 601n9; De Portis Maribus, 202

Halford, James H., 108 Hamburger, Philip: Law and Judicial Duty,

89 Hamilton, Alexander, 15, 22, 24, 26, 28,

81, 90–91, 93, 197–199, 210, 215–216, 252, 589n55

Hand, Augustus N., 221 Hand, Learned, 400–403 Harlan, John Marshall, 223, 339, 370, 404,

532–533 Hart, Henry, 92 Harvard Law Review, 418 Harvard Law School, 420 Hastings Law School, 432 Hatch Act, 108, 433, 448 Hate crimes, 331 Hate speech, 385 Health, 34, 154, 231, 304, 338–339, 368,

370, 373–374, 393, 410, 546, 555, 560–562

Health care/insurance, 105, 185–193, 195, 207, 209, 311–312, 473–475, 639n55

Healthy Indiana Plan, 191 Heller, Dick, 62 Hepburn, Susan P., 218 Hillary: The Movie, 457 Hobbes, Thomas, xi, 3 Holmes, Oliver Wendell, 339–341, 344,

362, 365, 386–387, 399–403, 425–426, 428, 433, 581–583

Holt, John, 109–110 Homosexuality, 367; gay marriage, 369,

378–380, 450; sodomy, 369, 375–378, 393; discrimination against, 379, 384, 430–432; and religion, 393, 430–432; military service, 564

Hoover, Herbert, 169, 279 Hotels, 179 House of Representatives, U.S., 27–29, 32,

102, 143, 249, 254, 265–266, 274, 285 Housing, 312, 533, 537 Howard, Jacob, 526, 644n24 Hughes, Charles Evans, 163, 169–171,

174, 224 Hume, David, xi, 3 Humphrey, Hubert, 371 Hunter, David, 94 Hustler magazine, 416

Idaho, 556 Illinois, 66, 162, 557

Immigration, 157, 272–274 Immigration and Naturalization Service,

272–273 Impeachment, 102, 104, 248, 251 Imports or Exports Clause, 217–218 Incentives, 27, 31 Independent agencies. See Administrative

agencies Independent Counsel Act, 248–249 Independent judiciary, 81–82, 92–94 Indiana, 191, 392 Indian Commerce Clause, 155 Indirect elections, 27–28, 36 Indirect regulation, 158–161, 173 Individualism, ix, 352 Individual rights, ix, 4–7, 9, 14–16,

23, 33–34, 53, 78–79, 98, 115, 213, 219, 273, 337, 571, 583; and political questions, 133–134, 136; and police power, 303–307; and suspect classi- fi cations, 307–311; negative/positive liberties, 311–313; and due process, 314, 318–319, 322–336; moral regulation of, 367–380

Inducements, 395–399 Industrialization, 6–7, 38, 42, 277,

638n23 Infants, exploitation of, 394 Infl ation, 222, 249 Injury, 106–107, 120, 122–123, 125, 127 Inspection laws, 154, 157 Insults, 385 Insurance, market versus social, 185 Insurance rates, 561 Insurrections, 17, 135–137, 296 Integration, 530, 532, 534, 537–538 Intellectual property, 12, 148, 324–325,

409 Intellectual Property Clause, 390, 629n16 Intelligence gathering, 291 Internal Revenue Service, 187, 469 International law, 79, 87–88, 545 Internet, 55, 153, 443 Internment during wartime, 78, 547 Interstate commerce, 36, 43, 55, 63, 95,

114, 147–150, 154–156, 158, 160–167, 169–176, 179, 184, 187, 190, 223–225, 227–236, 244, 270, 577–578

Interstate Commerce Act, 162–164, 175 Interstate Commerce Commission, 108,

275–276, 344 Interstate competition, 164, 171, 232, 341,

578

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674 General Index

Interstate highway system, 234 Intervention, 135–139, 143 Iowa, 159 Iran, 53 Iraq, 293 Israel, 415, 563

Jackson, Andrew, 93, 216 Jackson, Robert H., 174, 177, 184, 230,

237, 243, 289–290 Japanese Americans, 78, 546–547 Jay, John, 103 Jay’s Treaty, 94 Jefferson, Thomas, 24, 27, 79, 90, 215,

481–482, 488 Jehovah’s Witnesses, 466, 476–477 Jesus Christ, 515–516 Jews, 401, 479–480, 492–494 Jim Crow laws, 179, 530–531, 538, 543,

558 Johnson, Andrew, 264 Johnson, Lyndon B., 290 Johnson, William, 229 Joint Anti-Fascist Refugee Committee,

324 Judges: unelected, 8, 10; indepen-

dence of, 81–82, 92–94; appointment of, 253–254, 258, 262; life tenure of, 277–278

Judicial parity, 77–81, 87, 91 Judicial power, 8, 70, 77, 79–80, 84,

86–87, 91, 93, 95–99, 104, 108, 133, 282. See also Supreme Court, U.S.

Judicial precedents, 68–70 Judicial restraint, 104, 107, 116, 570–573,

581 Judicial review, xi, 10–11, 24, 27, 44,

70–71, 77–104, 117, 120, 125, 209, 218, 348, 350, 600n5, 618n46

Judicial supremacy, x, 11, 77–81, 85, 87, 91–92, 97, 570, 575

Judiciary Act (1789), 87–90, 95, 97 Judiciary Act (1801), 27 Jurisdiction, 90, 102, 108, 124, 137, 295,

297; appellate, 87, 89, 92, 94–96, 133; original, 87, 89, 95, 133, 296, 594n4; limited, 261; territorial, 295–297, 320–321; equitable, 579–580

Jury trials, 90 Justice Department, U.S., 291, 535,

614n5 Justices of the peace, 27

Justifi ed establishments, 486 Justinian, 522

Kagan, Elena, 58–59, 125, 207, 411, 452 Kaldor-Hicks effi ciency, 485 Kant, Immanuel, 464, 487 Karok tribe, 476 Katyal, Neal, 515 Kennedy, Anthony M., 60, 124–125, 184,

188, 376–379, 411, 514 Kennedy, Wayne, 329 Kentucky, 508–509, 532–533 King, Martin Luther, Jr., 504 Kohler Act (Pennsylvania), 362 Koppelman, Andrew, 193 Kramer, Larry: The People Themselves, 11 Kurland, Philip, 372

Labor markets, 53, 167, 170, 180, 182, 379

Labor monopolies, 37, 170, 340, 441, 552, 571

Labor relations, 34, 39, 108, 278, 282, 305, 310, 340, 384, 400, 431, 548, 550, 635n12; and antitrust laws, 37, 42, 159–161, 165, 208, 244, 281, 286, 437–443; child labor, 114, 166–167, 466–467; minimum wage, 120, 178, 181–182, 309, 555; employment con- tracts, 128, 326–330; and commerce power (1937–1995), 170–171, 176, 178–179; strikes, 170, 176, 224, 289, 405, 441; collective bargaining, 176, 234, 339–340, 440–442, 479, 635n12; maximum hours, 338–339, 341, 493; working conditions for women, 341, 555; employment relations, 432–433, 473–474, 478–480. See also Unions

Laissez-faire, 7, 38, 582–583 Lamb’s Chapel, 511 Landis, James M., 7, 38–39 Landsberg Prison, 320 Land use, 23, 347–356, 359, 365, 471–

472, 579–580 Lane, Robert, 421 Lanham Act, 409 Law enforcement, 248 Law of nations, 79, 522, 545 Lawson, Gary, 211 Lee, Mary Anna Custis, 468 Left Wing Manifesto, 403 Legal Tender Act, 218–220

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Legislative powers, 8, 12–14, 40, 63–64, 77–79, 83, 86, 91–93, 95, 97–99, 133–134, 136–138, 145–149, 162, 194, 210, 253, 267, 285–286, 294, 304–305

Legislative veto, 267, 272–274 Lessig, Lawrence, 350–351 Levinson, Daryl, 40, 251 Lex Aquila, 51 Libel, 92, 439 Liberalism (classical), ix, xi–xii, 4–6,

8–9, 11–16, 145, 569, 576, 582–583; synthesis, 10, 17–33, 366; progressive response to, 34–44; and constitutional interpretation, 45, 51, 53, 55, 71; and judicial review, 78–79, 98; and standing, 102, 111, 116, 119, 131; and political questions, 135; and commerce power, 148, 163, 165, 170, 173, 176, 178, 191, 193; on Necessary and Proper Clause, 217, 220, 224, 226; on Dormant Com- merce Clause, 229, 234, 236, 238; and military, 291, 293–294; and individual rights, 303–306, 309–313, 367–369, 371–372, 377, 379; and due process, 318–319, 322; and freedom of contract, 337–340, 342, 346; and takings, 347, 350, 352–359, 363–365; and freedom of speech, 383–385, 387, 389–391, 393, 397, 405, 408, 410, 412, 414, 417, 429, 434–435, 437, 440, 443, 447, 450, 455; and freedom of religion, 383–385, 389–391, 393, 463–464, 469–472, 487–491, 494, 509, 516–517; and race, 533, 540; and citizenship, 543, 545–546, 550–551, 553; and sex discrimination, 554–555, 562, 566

Liberals (modern), 9, 43, 49, 56, 58, 131, 188–193, 313, 500, 517, 537–538, 562, 572, 597n45

Libertarianism, 14, 20, 193, 202, 324, 357, 359, 370, 376–377, 385, 389, 406, 418, 439–440, 462, 477, 484, 487–491, 522, 532, 565, 582

Liberty, xii, 4, 7, 15–17, 24, 28, 49, 56, 58, 81, 93, 98, 122, 149, 152, 238, 253, 273, 305, 339, 349, 575, 583; active, 11, 35–36; as natural right, 13, 18, 20, 23, 29; negative/positive, 311–313; and due process, 314, 318–319, 322–331, 336; and race, 522, 524, 530, 532

Licenses, 117, 229, 325–326, 333, 378, 428, 437, 443–446, 470, 492, 598n52

Life, 13, 15, 18, 20, 58, 81, 98, 149, 314, 318–319, 322–331, 349, 524

Lighthouses, 197–198, 213 Limited establishments, 482 Limited government, ix, 4, 6, 16, 23–24,

54, 77, 79, 107, 115, 190, 194, 211, 214, 219, 251, 260, 296, 303, 314, 365, 388, 398, 486, 576, 580

Limited jurisdiction, 261 Lincoln, Abraham, 79, 294–295, 523 Liu, Goodwin, 552–553 Living constitution, 45, 54–58, 68, 70–71,

532, 570 Lloyd–La Follette Act, 329 Local distribution companies, 238–239 Locke, John, xi, 3, 18, 84, 92–93, 238,

322, 324–325, 331, 348, 352, 370, 461; Second Treatise of Government, 7, 82, 149, 251–252, 268, 323, 349, 464

Lockouts, 170, 224 London, England, 317 Long, Huey, 434 Lord’s Prayer, 513 Los Angeles, Calif., 536 Los Angeles County, Calif., 433 Lotteries, 164–165, 223, 367, 430 Louisiana, 434, 517, 528, 530–531 Louisville, Ky., 538 Low-Level Radioactive Waste Policy

Amendments Act, 242 Loyalty oaths, 469 Lutherans, 472

MacKinnon, Catharine, 374 Madison, James, xi, 21–24, 26, 32, 36, 40,

88, 141, 143, 148–150, 177, 183, 197, 199, 210, 215, 222, 310, 450, 481–482, 485–486, 522, 581

Madison, Wis., 234–235 Magna Carta, 314–317, 319 Maine, 232, 348 Majorities, 10, 23–24, 29, 35, 40–41, 56,

139, 142–143, 255, 351, 395, 450, 515 Malice, 397, 414, 416–417 Mandamus, writ of, 101 Manning, John, 86 Mansfi eld, Earl of (William Murray), 522 Manufacturing, 572, 577; and commerce

power, 147–150, 152, 155–156, 158– 164, 170–171, 175–176, 184, 197, 227

Marbury, William, 88, 90, 101, 134 Marijuana, 184–185, 225

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Market insurance, 185 Market power, 339–340 Markets, 7, 41, 43, 221, 239, 281; unreg-

ulated, 35; competitive, 37–38, 53, 170, 178, 180, 202, 333, 386, 396, 409, 425–426, 439; agricultural, 40, 172–173, 178, 230; regulation of, 42, 151, 167– 168, 182, 578; labor, 53, 167, 170, 180, 182, 379; national, 150, 164–165, 190, 575; free, 168; real estate, 169, 364–365; product, 182; participants in, 240–244; and freedom of speech, 386, 396, 409, 425–426, 439

Marriage, 368–369, 371, 378–380, 394, 449–450, 464–465, 530

Marshall, John, 48, 77, 79, 88–91, 93–96, 98, 101, 133, 136, 154–159, 164, 173–174, 190–191, 210, 214–218, 221, 229, 453–454, 458

Marshall, Thurgood, 58, 237–238, 455, 500, 558

Martin, Denny, 94 Marx, Karl: The Communist Manifesto, 53,

404 Maryland, 48, 236–237, 240, 294, 475,

492–494 Massachusetts, 114–115, 121, 129, 136,

191, 213, 230, 238, 425–426, 431, 455, 467, 482

Massachusetts Body of Liberties, 348 Massachusetts Constitution, 18, 531 Massachusetts Supreme Judicial Court,

431, 531 Masses Publishing Company, 401 Maternity Act, 105, 113–114, 123, 130 Maximum hours, 338–339, 341, 493 McCain-Feingold Act, 451, 456–457 McConnell, Michael, 4, 316 McDonald, Forrest, 350–351 McGowan, Margaret M., 493 McKay, John, 458 McKenna, Joseph, 134 McReynolds, James, 62–64, 200–201,

323–324 Meanings, 45–49, 52, 69, 71, 147, 211 Means, Gardner: The Modern Corporation

and Private Property, 38–39, 41 Medicaid, 34, 191, 193, 206–209, 312, 580 Medicare, 34, 193, 312, 580 Meiklejohn, Alexander, 387 Mellon, Andrew, 105 Mexican Americans, 551 Michigan, 343, 455, 555

Michigan Supreme Court, 276 Military, 12, 14, 120, 136, 265, 286, 348,

398, 401, 411, 431, 560; president as commander-in-chief, 250, 252–253, 288–294; religious discrimination in, 479–480; spousal benefi ts, 556–557; women in, 563–566; gays in, 564

Militia, 17, 63–67, 190, 192–193, 253, 288, 307

Militia Acts, 192 Militia Clauses, 63, 192–193 Military Code of Justice, 60, 592n34 Military Commissions Act, 27 Military Selective Service Act, 564 Mill, John Stuart: On Liberty, 373, 391 Miller, Geoffrey, 211 Miller, Samuel Freeman, 528–529 Mineral King Ski Resort, 125 Mineral rights, 580 Minimum wage, 120, 178, 181–182, 309,

555 Mining, 148–150, 152, 155, 158, 161, 175,

227, 237, 362, 572, 577 Minneapolis Star, 434 Minnesota, 434 Minorities, 23, 139, 142–143, 281,

309–310, 505, 514, 537, 539 Minors, protection of, 306, 377, 385,

409–410, 466–467 Misrepresentation, 409–411 Mississippi, 559 Mistaken judgments, 46, 68–71, 534–535 Monarchy, 24–25, 252, 288 Monetarism, 222 Monetary constitution, 210–226 Monetary system, 12, 148–149, 213–214,

218–222 Monopolies, 44, 55, 303, 311, 316, 385,

448, 583; government, 5, 36, 121, 151, 153, 179, 220–221, 243, 338, 379–380, 390, 509, 578; regulation of, 16, 37, 39, 42, 175, 333, 431; versus competi- tion, 36–37, 41–42, 175, 202–203, 243, 270–272, 333, 338, 342, 380, 438–439, 456–457, 578; agricultural, 37, 121, 571; and antitrust laws, 37, 42, 159–161, 165, 208, 244, 281, 286, 437–443; labor, 37, 170, 340, 441, 552, 571; natural, 39, 342; railroads, 39, 162, 164, 277; public utilities, 39; and administrative agencies, 41; state versus federal, 153; local, 156, 572; and common carriers, 165; profi ts of, 203, 277, 578; real estate, 571

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General Index 677

Monopoly power, xiii, 37, 41–42, 149, 153, 165, 202, 208, 333, 334, 424, 427, 432, 509–510

Monson, Diane, 185 Montana, 237 Montesquieu, baron de (Charles-Louis de

Secondat), xi, 3, 85, 91–93, 97; Spirit of Laws, 82–83

Montgomery, Ala., 413 Mootness, 108 Morality, 16, 19, 59, 61, 164, 223, 304,

513, 546; regulation of individual rights, 367–380, 392–393

Mormons, 368, 463–465 Mortgages, 22, 221–222, 408 Muller, Kurt, 341

Nast, Thomas, 416 Natalson, Robert, 211 Nation, The, 409 National banks, 93, 97, 213–218, 221 National church, 481 National defense, 102, 195, 348 National Firearms Act, 62–63 National Guard, 93–94 National Industrial Recovery Act, 37–38,

169, 270–272, 278, 287 National interest, 197 National Labor Relations Act, 53, 169–170,

224–225, 281–282, 341, 439–442, 448, 473, 578

National Labor Relations Board, 37, 257, 275, 279, 281–282, 439, 442

National Park Service, 125 National security, 49–50, 253, 286, 311,

398–405, 421 Native American Church, 470 Native Americans, 12, 147–150, 155, 219,

468, 470, 476, 542 Natural gas, 180, 238–239, 345, 359 Naturalization, 12, 148, 157, 523,

541–544, 547 Natural law, 7, 84, 316, 322, 324, 522,

525 Natural monopolies, 39, 342 Natural rights, 13, 18–20, 23, 29, 525 Navigation, 229, 232–233 Navy, U.S., 12, 190, 253, 265, 286, 288,

290, 348, 398, 600n8 Nazis, 477 Necessary and Proper Clause, 175, 177,

210–226, 264, 276, 292 Negative liberties, 35, 311–313, 337, 580

Neighborhoods, adverse effect on, 357–359, 363–364, 393

Neuhaus, Richard John, 504 Nevada, 243 New Deal, 6–7, 10, 14, 34, 36–39, 117,

119, 146, 157, 164, 168, 171, 173, 175–177, 182, 185, 188, 198–199, 238, 267, 271, 275, 337, 438, 546, 552, 576

Newdow, Michael, 515 New Hampshire, 89–90, 454 New Hampshire Constitution, 90 New Haven, Conn., 537 New Jersey, 42, 154, 156, 213, 232,

241–242, 496, 526 New Jersey Plan, 32 New Jersey Supreme Court, 122 New London, Conn., 358 New Mexico, 344 New states, 102 New York, 156, 163, 213, 230, 288, 338,

361, 415, 483, 512, 547 New York City, 154, 169, 229, 232,

364–365, 501, 536, 547–548 New York City Council, 364, 627n44 New Yorker, 418 New York Times, 413–414, 419 Nineteenth Amendment, 5, 28 Ninth Amendment, 15, 370–371 Nixon, Richard M., 34, 248–249, 272, 290,

456 No Child Left Behind Act, 648n58 Nondiscrimination rule, 165, 231–232,

234–236, 239, 241, 326, 333, 357, 423–424, 427, 431, 527, 530

Norris–La Guardia Act, 341 North Carolina, 166, 191, 235 North Vietnam, 293 Northwest Ordinance, 3, 32 Nozick, Robert, 20, 560 Nuclear waste, 242–243 Nudity, public, 392 Nuisances, 352–356, 360, 363, 385, 394,

429, 465

Obama, Barack, 257–258, 282, 442, 458 ObamaCare. See Patient Protection and

Affordable Care Act Obscenity, 409 Occupational Safety and Health Act, 34 O’Connor, Sandra Day, 121, 204, 377,

434, 456, 507–508, 510 Offi ce of Economic Opportunity, 329 Offi ce of Price Administration, 271–272

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Ogden, Aaron, 156, 229 Ohio, 169, 238, 401 Oil industry, 135, 236–237, 270, 359 Oklahoma, 560–562 Oregon, 264, 470 Organization of Petroleum Exporting

Countries, 135, 170 Originalism, ix, 8, 45, 47, 51, 54–57, 62,

68–71, 80, 115, 176, 188, 207, 223, 229, 369, 420, 486, 570–576

Original jurisdiction, 87, 89, 95, 133, 296, 594n4

Orleans Parish, La., 528 Overtime, 178, 181–182 Oyster dredging, 156, 240, 526

Paine, Thomas, 4 Paraguay, 287 Pardons, 250, 252 Parliament (Britain), 57, 83–85, 93, 249,

254, 317–318 Parochial schools, 122–125, 467, 469,

472–473, 482–483, 496–502 Partnerships, 111–112, 337–338, 458, 484,

544 Patents, 12, 148, 324–325 Patient Protection and Affordable Care

Act, 146, 168, 185–189, 191, 193, 206–209, 458, 473, 639n55

Paul, Ron, 222 Pawtucket, R.I., 506–507 Peckham, Rufus W., 332, 338–340, 343,

533 Pendleton Civil Service Act, 264–265 Penn Central, 361 Pennsylvania, 177, 362, 490, 492, 494,

498, 548 Pennsylvania Declaration of Rights, 64 Pensions, 34, 39, 103 Pentagon Papers, 50, 419–422 Perich, Cheryl, 472 Permanent possession of land, 360–361 Personal liberties. See Individual rights Peyote, 470–472 Philadelphia, Pa., 3, 17, 30, 233 Physical takings, 347–351, 353, 360–362,

365 Physiocrats, 582 Picketing, 405 Pildes, Richard, 40, 250–251 Pitney, Mahlon, 339–340 Pittsburgh, Pa., 279

Pleasant Grove City, Utah, 509 Pledge of Allegiance, 477, 515–516 Police power, xii, 10, 12–13, 15–16, 19–20,

48–49, 63, 78, 332, 353, 355, 591n10; and commerce power, 149, 156, 158, 164–165, 176, 225, 227–228, 231–232, 235; and individual rights, 303–307, 311; and freedom of contract, 338–339, 342; moral regulation by, 367–380, 392–393; and freedom of speech, 390, 420, 439; and race, 526, 530, 532; and citizenship, 546; and sex discrimination, 562

Political action committees, 384 Political questions, 133–143 Political rights, 523 Political speech, 408–409, 446–448 Poll taxes, 27–28 Polygamy, 368, 463–465 Popular democracy, 24, 29, 35–37, 44 Portland, Ore., 264 Positive liberties, 35, 99, 311–313, 549,

555, 580–581 Posner, Eric: The Executive Unbound,

250–251 Postal Service, U.S., 268–269, 212, 214,

268 Powell, Lewis, 273, 329, 559 Power of the state, xii, 3, 6–7, 10–20,

24, 36, 42, 305, 570–571, 575, 577; constitutional interpretation of, 52, 55, 63, 67; and judicial review, 79, 82; and standing, 105; and legislative (com- merce) power, 145, 147, 149, 152–153, 156–157, 160, 163–165, 171, 173, 177, 179–180, 184, 188, 193–194, 200, 212–213, 215–216, 223, 227; and due process, 314, 326, 331; and takings, 347, 358; and morality, 376–377; and freedom of speech, 388, 391, 453; and race, 521–522

Prayer, school, 499, 511–516 Precedents, 68–70, 173, 199 Preemption, 13 Premiums, health insurance, 185, 187 Prescription, 68–69, 239 Prescriptive constitution, 46, 68–71,

97–100, 223, 276–277, 379, 486, 516, 575–576

Preserve Marriage, Protect Children peti- tion, 449–450

President, U.S.: enumerated powers of, 13–14; chosen by Electoral College, 28;

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age requirement for, 47; impeachment of, 102, 104, 249; and political ques- tions, 133–134, 136–140; misconduct of, 248–249; appointments by, 250, 252–266; as commander-in-chief, 250, 252–253, 288–294; pardons from, 250, 252; and administrative agencies, 276, 278–279, 282; and foreign affairs, 285–288; and military, 286, 288–294; and habeas corpus, 294–295, 297. See also Executive power

Presidential veto, 29, 93, 97, 259, 274 Price controls, 37, 39–40, 171–173, 178,

182, 272 Prices, 172–173, 426–427 Prisoners of war, 295, 320–321 Privacy, 5, 16, 305, 371, 376–377, 393,

406, 417–422 Private schools, 477 Privileges and Immunities Clause, 15,

66–67, 70, 229–230, 307–308, 369, 521, 524–529, 531, 534, 541, 543–546, 548, 552, 555, 580

Profi ts, of monopolies, 203, 277, 578 Progressive Era, 6, 214, 213, 275, 282, 552 Progressives, xi–xii, 6–11, 14, 23, 145,

569–570, 576–581, 583; response to classical liberalism, 34–44; and con- stitutional interpretation, 54–55; and judicial review, 99; and standing, 119; and commerce power, 158, 168, 194; on Necessary and Proper Clause, 218, 223, 226; and delegation, 277, 280; and indi- vidual rights, 303–305, 309–311, 313; and freedom of contract, 337, 339–340; and takings, 347, 359–365; and freedom of speech, 383, 437–438, 450; and race, 529; and citizenship, 541, 550–553

Prohibition, 160, 203–204 Property/property rights, ix, xii, 4, 7,

15–17, 24, 28, 35–36, 138, 279, 550, 571, 575–577, 579; intellectual, 12, 148, 324–325, 409; as natural right, 13, 18, 20, 23; constitutional interpretation of, 49, 54–56, 58; and judicial review, 78–79, 81, 84, 93, 98; and commerce power, 149, 152, 193, 202, 238; struc- tural protection of, 305, 310; and due process, 314, 318–319, 322–331, 336; and freedom of contract, 337, 339, 342; takings of, 347–367; and freedom of religion, 383–385, 391, 462, 489; and

freedom of speech, 383–385, 391, 423– 425, 431, 433, 437–438, 443, 447–448; commons, 393, 423–436, 483, 503–517; and race, 524, 526–528, 530, 532–534

Property Clause, 123, 390 Property requirements for voting, 28 Prosser, William L.: Restatement (Second) of

Torts, 418 Prostitution, 367, 377, 392, 394, 464 Providence, R.I., 514 Public choice theory, 20–21 Public Corporation Accounting Oversight

Board, 279, 282–284 Public corporations, 38, 196, 282–284 Public forum, 386, 427, 429–432, 483,

510–511 Public land, 476–477, 503–510 Public offi ce, religious qualifi cations for,

475–476 Public opinion, 29, 249, 379 Public Service Commission, 409–410 Public use, 357–359 Public utilities, 39, 116–117, 238, 344–

345, 409–410 Punishments, cruel and unusual, 56–62, 68 Pure Food and Drug Act, 160, 165

Quarantines, 154, 368

Race, 16, 37, 71, 78, 308–310, 521–540, 549, 551, 554, 558–559, 564, 599n34

Race-conscious standard, 537–539 Race riots, 536 Racial discrimination, 37, 379, 421–540,

581 Radio, 279–281, 444–445 Radio Act, 169, 280 Raich, Angel, 185 Railroads, 38–39, 43, 55, 108, 153,

162–164, 233, 275, 277, 342–344, 357, 424, 530, 532

Railway Labor Act, 341, 578 Randolph, Edmund, 256–257, 262 Rape, 60, 184, 372, 374, 419, 438, 527,

554, 562–563 Rate regulation, 108, 153, 162–164, 275,

277, 342–346 Rates, insurance, 561 Rational basis, xii, 98–99, 207, 218, 223,

236, 238, 305–307, 309, 311–312, 348, 358, 360, 373, 384, 425, 434, 488, 548, 558, 578–579

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Rawls, John, 30 Reagan, Ronald, 187, 222 Real estate development, 37, 169, 313,

364–365, 571 Reapportionment, 121–122, 139–143 Recess appointments, 250, 256–258 Reconstruction, 307, 522–523, 527, 531 Redressability, 128 Red Scare, 403, 425, 435 Reform Act (Britain), 139, 141 Refugee League, 324 Regulation, 9, 572–573, 577; of monop-

olies, 16, 37, 39, 42, 175, 333, 431; progressive attitude toward, 39, 41–42; of markets, 42, 151, 167–168, 182, 578; constitutional interpretation of, 56, 63–64, 67; and judicial review, 95, 98; of rates, 108, 153, 162–164, 275, 277, 342–346; and standing, 113, 115–116; as commerce power, 148–157, 164–175, 178, 181–182, 184, 186–190, 193; direct, 158–161, 173, 197, 199, 483, 486, 491–495; indirect, 158–161, 173; as enumerated power, 194, 197, 199, 203–204; under Necessary and Proper Clause, 215, 223; under Dormant Commerce Clause, 227, 229, 231–240; versus competition, 232, 243, 272; and delegation, 272, 277; and individual rights, 303–304, 306–307, 311–312; moral, of individual rights, 367–380; and freedom of speech, 410, 423–438; of speech commons, 423–436; and freedom of religion, 463–475, 483, 486, 488, 491–495; safety/insurance, 560–562

Regulatory takings, 347–351, 353, 361–365

Rehnquist, William H., 11, 123, 183–184, 204–205, 261, 327, 329–330, 344–345, 416, 454, 479, 500, 548

Reich, Charles A.: The New Property, 326 Reid, Harry, 243 Related Realty, 364 Religion. See Freedom of religion Religion Clauses, 384–385, 488–489 Religious discrimination, 479 Religious displays, 503–510, 514 Religious dress/symbols, 478–479, 483,

498–499 Religious education, 122–125, 467, 469,

472–473, 482–483, 496–502 Religious Freedom Restoration Act, 471

Religious Land Use and Institutionalized Persons Act, 471–472

Removal from offi ce, 263–266, 275–276, 278, 427

Rent control, 37, 169, 364–365, 572 Republicanism, 22–25, 27, 29, 138–142,

254 Republican Party, 191, 207, 224, 281, 328,

530 Restaurants, 179 Restrictive covenants, 349, 351, 354 Revocation of citizenship, 543–544 Revolutionary War, 4, 94, 103 Rhode Island, 136, 410, 490, 498 Right to Keep and Bear Arms Clause,

62–68 Ripeness, 108–109 Roads, 25, 197–198, 203, 205, 234,

350–351, 359, 423–424, 427–428, 431, 476–477

Roberts, John G., 11, 188, 206–209, 225–226, 283, 472–473, 538

Roberts, Owen J., 199, 429 Rome, ancient, 51–52, 141, 252, 317, 324,

352, 423, 522 Roosevelt, Franklin D., 6, 36, 168–169,

270–271, 287, 289 Root, Elihu, 446 Roy, Stephen J., 468 Rule of law, 8, 51–53, 220, 250, 318, 576 Russia, 402 Rutledge, Wiley, 466

Sabbatarians, 492–495 Sadomasochism, 392 Safety, 34, 154, 162, 231, 304, 338–339,

370, 373–374, 392–393, 410, 546, 555, 560–562

Sandy Hook lighthouse, 213 San Francisco, Calif., 368 Sarbanes-Oxley Act, 283–284 Scalia, Antonin, 45–46, 55, 57, 59, 62–65,

107, 124–127, 249, 261–262, 295–296, 392, 470, 510, 517

School Prayer Amendment, 512–513 Schools. See Education School tuition organizations, 124 Schumann, Richard E., 604n48 Seattle, Wash., 538 Second Amendment, 56, 62–68, 307, 530 Second Bank of the United States, 93, 97,

216–217, 221 Securities, 39, 283–284, 407

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Securities Exchange Act, 39 Securities and Exchange Commission, 275,

283, 407 Segregation, 70, 94, 309, 530–535,

537–538, 558, 564 Seidman, Guy, 211 Seidman, Louis Michael, 54 Senate, U.S., 22, 27–29, 32, 109, 141–142,

249–250, 253–265, 274, 277, 285, 289, 387, 485, 596n21

Sentelle, David, 297 Separate but equal, 70, 529–533, 539, 558,

576 Separation of church and state, 124,

482–486, 488–491, 497, 503–505 Separation of ownership and manage-

ment, 38, 41 Separation of powers, 5, 39–40, 82–83, 86,

92, 103, 114, 124, 249, 251–253, 260, 269, 271, 274, 276–278, 287, 437, 583

Separation of Powers Clause, 86 September 11, 2001, terrorist attacks, 292,

295 Sequoia National Park, 125 Seventeenth Amendment, 28, 181 Seventh-Day Adventists, 478 Sex-blind standard, 560, 564 Sex discrimination, 5, 306, 341, 379, 462,

554–566 Sexual orientation discrimination, 379,

384, 430–432 Sexual preference, 16 Sharon, Ariel, 415 Shaw, Lemuel, 531 Sheppard-Towner Maternity Act, 105,

113–114, 123, 130 Sherbert, Adell, 478–479 Sherman Antitrust Act, 161, 173, 438,

589n12 Shipping, 156–157 Sidis, William James, 418 Sierra Club, 125 Silberman, Laurence, 193 Sixteenth Amendment, 598n14 Slavery, xi, 4–5, 8, 18, 29, 31–32, 155,

164, 315, 521–524, 528–529, 531, 553, 558, 581

Smith, Adam, 37, 150, 582–583; Theory of Moral Sentiments, 588n43

Smith, Alfred, 470 Smith Act, 403–404 Smoot-Hawley Tariff, 30–31 Snyder, Matthew, 417

Social contract, xi, 19–20, 571 Social democrats, 6, 10, 13–14, 16, 23, 53,

102, 131, 580 Social fraud, 406–412 Social insurance, 185 Socialist Party, 401 Socialists, 23, 399, 401 Social Security, 312, 334–335, 467–469,

552, 580, Social Security Act, 199 Social speech, 408, 410–411 Sodomy, 367, 369, 375–378, 392–393 Sofaer, Abraham, 415 Solon, 386 Souter, David H., 124, 238–239, 420, 431,

531–532 South Boston Allied War Veterans Coun-

cil, 430–431 South Carolina Constitution, 348–349 South Dakota, 203, 205, 241 Sovereign immunity, 10, 525, 574 Sovern, Michael, 536 Soviet Union, 53 Special prosecutors, 248–249 Specter, Arlen, 99 Speech. See Freedom of speech Speech commons, 423–436 Spencer, Herbert, 582 Spending Clause, 105, 113, 123, 190,

194–200, 206–209, 226 Spending versus taxation, 194–209,

213–214, 223, 226 Spite fences, 354, 393 Spousal benefi ts for military personnel,

556–557 Sri Lanka, 126–127 Standard of living, 311 Standard State Zoning Enabling Act, 169 Standing, 101–111, 126–128, 130,

133, 136; citizen, 112–116, 119–120, 122–125, 129, 131–132; competitor, 116–117, 120–121; administrative, 117–118, 120–121

Star Chamber, 325 State banks, 216 State constitutions, 13–14 State courts, 77, 80, 87, 92, 94–98,

128–129, 137, 226, 280 State laws, 59–61, 95, 161, 229, 231, 270,

325, 413, 470, 578 State legislatures, 22, 27–28, 89, 142, 255,

312 State ratifying conventions, 573

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States, xi–xii, 114; powers of, 12–13, 18, 148, 161, 212, 367–368, 526, 555, 576; versus federal government, 12, 22–23, 28, 59, 97, 145, 152–154, 157, 184, 194, 204, 220, 227–228, 305, 347, 530, 574, 578; prohibitions for, 14, 527; militia of, 63–67; and judicial review, 95–99; new, 102; protection of, 135–136; and commerce, 148–157, 159–163, 167, 175, 182, 184, 194, 200–201, 204, 212, 220, 227–244; competition between, 149–150, 233; slavery regulated by, 155; boundaries between, 175; control of, 182; and taxation, 200–201, 236–238; executive power in, 248

Statute of Frauds, 356, 579 Statutory law, 89, 91, 115 Statutory rape, 554, 562–563 Steel industry, 289, 342 Stern, Robert, 36 Stevens, John Paul, 64, 124, 129–130,

225, 237–238, 456–457, 500, 513 Stewart, Potter, 58, 180, 242, 370, 512 Stock market crash, 221 Stockyards, 162 Stolen Valor Act, 410–411 Stone, Harlan Fiske, 37, 171, 173, 233,

309–310, 341 Stoner, James R., 317–318 Storing, Herbert, 23–24 Story, Joseph, 95–96, 98, 196–197,

485–486; Commentaries on the Constitution of the United States, 155–156

Strict scrutiny, 305–307, 309, 311–312, 348, 373, 428, 434–435, 438, 457, 471, 537, 539, 546, 548, 550, 558, 565, 572–573

Strikes, 170, 176, 224, 289, 405, 441 Strong, William, 214, 220 Students for a Democratic Society, 431 Subdivisions, 353 Subsidies, 30, 114, 192, 198, 240, 312; and

freedom of speech, 427, 435, 444; and freedom of religion, 479, 483, 490–492, 495–502

Sugar trust, 159–160 Suicide, 392, 464, 465 Summum, 509 Sunday closing laws, 492–495 Sunstein, Cass R., 11, 109–110, 115,

597n45 Supremacy Clause, 95–96, 228

Supreme Court, U.S.: and interstate commerce, 43; and capital punishment, 58, 60; and right to bear arms, 62–67; and presidential impeachments, 102, 104; and child labor, 113–114, 166–167; and reapportionment, 121–122; and parochial schools, 122–125, 483, 490, 496–500; and environmental issues, 125–131; and political questions, 133–143; and antitrust laws, 159–161; and alcoholic beverages, 159–160, 203–205; and stockyards, 162; and rate regulation, 162–164, 342–346; and labor relations, 170–171, 224, 338–341, 432–433; and agriculture, 171–173, 199, 230–231, 234–235, 238; and marijuana, 184–185, 225; and health care, 187–193, 207–209; and taxing/ spending, 195, 198–209; and national banks, 214–216; and monetary system, 218–220; and Federal Reserve, 221–223; and lotteries, 223; and licenses, 229; and corporations, 230; and coal mining, 237; and optometry, 239; and timber, 241; and waste disposal, 241–243; appoint- ment of justices to, 254–255, 387; and administrative agencies, 280, 282–283; and habeas corpus, 294–296; and wel- fare benefi ts, 334–335; and government employees, 327, 329–330, 433; and takings, 348; and zoning laws, 363–364; and rent control, 365; and contracep- tion, 369–371; and abortion, 371–375; and homosexual sodomy, 375–378; and gay marriage, 378–380; and national security, 399–405; and fraud, 409–412; and defamation, 413–415; and emo- tional distress, 416–417; and privacy, 418–422; and freedom of speech, 429– 435, 444–458; and taxation, 434–435; and campaign fi nance, 446–458; and freedom of religion, 463–480, 483–486, 490, 492–500, 504, 506–507; and Sun- day closing laws, 492–495; and religious displays, 504, 506–510; and school prayer, 511–516; and race, 523–524, 528–539; and slavery, 523–524; and slaughtering of animals, 528–531; and segregation, 531–533; and integration, 532–535; and affi rmative action, 535– 539; and citizenship, 543, 546–552; and sex discrimination, 555–557, 559–565;

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and estate administration, 555–556; and spousal benefi ts for military person- nel, 556–557; and safety/insurance regulation, 560–562; and statutory rape, 562–563; and military, 564–565. See also Judicial power; Judicial review; specifi c cases in the Index of Cases

Supreme Court Review, 372 Suspect classifi cations, 307–311 Suspension Clause, 294, 296 Sutherland, George, 113–116, 287–288,

424–425 Sutton, Jeffrey, 193

Taft, William Howard, 160–161, 264–265 Taft-Hartley Act, 224 Take Care Clause, 252–253 Takings, 16, 347–366, 434, 570, 572 Takings Clause, 64, 212, 342, 347–366,

430, 484, 486–487, 578–579 Tandem Truck Safety Act, 233 Taney, Roger, 78, 137, 294 Tariffs, 31, 217, 286 Tatel, David, 297 Taxation, 3–4, 17, 31–32, 43, 551, 573, 582,

598n14; constitutional interpretation of, 48–49; and judicial review, 91; and standing, 112–115, 124–125; and politi- cal questions, 137; as commerce power, 149, 167, 182, 193; versus spending, 194–209, 213–214, 223, 226; under Dor- mant Commerce Clause, 232, 236–240, 243; and individual rights, 311–312; and freedom of speech, 427, 434–436, 447; and freedom of religion, 467–469, 481, 483, 488, 490–491, 496, 499–502

Tax Court, 262, 277 Telecommunications. See Communications Telecommunications Act, 345 Temporary Payroll Tax Cut Continuation

Act, 257 Ten Commandments, 503–504, 508–509 Tennessee, 139–140, 475 Tennessee Valley Authority, 116–117 Tenth Amendment, 171, 180 Tenure of Offi ce Act, 264 Term limits, 82 Territorial jurisdiction, 295–297, 320–321 Test Act (Britain), 475–476 Texas, 108, 191, 207, 344, 377, 508–509,

539, 549 Textualism, 54, 274

Thayer, James Bradley, 11, 218 Thirteenth Amendment, 5, 523, 528, 581 Thomas, Clarence, 9, 124–125, 586n13 Threats, 397, 405, 408 Three-Fifths Clause, 9, 32, 521–522,

585n10, 643n2 Three Valley Water District Board, 411 Thurber, James, 418 Tiedeman, Christopher, 49 Tillman Act, 448 Timber industry, 241 Time, Inc., 415 Tolawa tribe, 476 Topeka, Kans., 417 Torts, 19, 106, 109–110, 347, 355, 397,

406, 412, 417–418 Torture Memorandum, 291–293 Tracy, Roger W., 238 Trade secrets, 421–422 Transportation, 38, 43, 55, 108, 227,

232–234, 277–278, 313, 530; and com- merce power, 152, 154, 156, 162, 171, 174, 184, 227, 232–234; and freedom of contract, 342–344; and freedom of speech, 424–425; and freedom of reli- gion, 496–498

Transportation Department, U.S., 233–234 Treanor, William Michael, 348–352, 360 Treason, 136–137, 322, 544, 646n12 Treasury, U.S., 105, 113, 217, 322, 332, 544 Treaties, 94, 103, 134–135, 253, 289 Treaty of Paris, 94 Treaty of Westphalia, 152 Trespass, 68–69, 349, 359, 385 Tribe, Laurence, 174–175 Troubled Asset Relief program, 105 Trucking industry, 233–234 Truman, Harry, 224, 289–290, 564 Tushnet, Mark, 11 Twelfth Amendment, 4 Twenty-First Amendment, 160, 203–204 Twenty-Fourth Amendment, 28 Twenty-Sixth Amendment, 28

Unconstitutionality, 97, 99, 583 Unemployment, 342 Unemployment compensation, 199, 201,

478, 580 Unions, 160, 170, 176, 281–282, 310, 340,

342, 364, 385, 405, 440–443, 458, 552, 635n12. See also Labor relations

United Auto Workers, 105, 340

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United Nations, 257 University of Michigan, 538 University of Missouri, 511 University of Notre Dame, 473 University of Texas, 539 Utah, 463–464, 509 Utilities, public, 39, 116–117, 238,

344–345, 409–410

Valley Forge, Pa., 123 Vermeule, Adrian: The Executive Unbound,

250–251 Vested powers, 247, 249–250 Veterans History Project, 411 Veto: presidential, 29, 93, 97; legislative,

267, 272–274 Vice president, 4 Vietnam War, 290, 293, 389, 404, 419 Viner, Jacob, 582–583 Vinson, Fred, 404 Violence against Women Act, 184 Virginia, 94–95, 522, 565 Virginia Charter, 525 Virginia Military Institute, 565–566 Virginia Plan, 32 Voting rights, 310, 523, 534, 552 Vouchers, 491, 500, 516, 552, 573

Wachter, Michael, 38 Wage controls, 40, 171, 181–182 Wages, 340–341, 364, 441–442, 552 Wagner, Robert, 440 Wagner Act, 176 Waite, Morrison, 463–465 Walt Disney Company, 125 War, 12, 14, 25, 134, 143, 290–291, 293 War of 1812, 216 War Powers Act, 290–291 Warren, Earl, 121, 123, 143, 370, 534–

535, 550–551 Warren, Samuel, 418 War on Terror, 291 Wartime, national security in, 398–405 Washington, 235, 449 Washington, Bushrod, 156, 228, 526,

528–529, 547, 552 Washington, D.C., 66, 66, 88, 169, 473,

536. See also District of Columbia Washington, George, 103

Washington Post, 419 Waste disposal, 241–243 Watergate scandal, 248–249 Wealth, transfers of, 16, 22, 55, 123, 193,

196–198, 200, 236, 312–313, 339–340, 350–351, 484–486, 489–491, 496–497, 501, 517, 551–553, 581–582, 598n14

Webb-Pomerene Act, 286 Wechsler, Herbert, 181 Weisman, Deborah, 514 Welfare, general, 113, 195–199, 205, 304,

546, 579 Welfare benefi ts, 334–335, 548, 581 Welfare state, 116 Westboro Baptist Church, 417 Westminster, Md., 417 White, Byron R., 58, 142, 273, 376–377,

558 Whole Foods, 458 Who’s Who, 411 William III, 57, 59–60 Williams, Steven, 262 Wilson, James, 177 Wilson, Woodrow, 39, 42, 169, 398 Wisconsin, 234–235, 333 Wisconsin Right to Life, 457–458 Wittgenstein, Ludwig, 50, 591n15 Women, 383, 537; voting by, 4–5, 552;

and abortion, 5, 371–375; working conditions for, 341, 555; and estate administration, 555–556; as military spouses, 556–557; as lawyers, 557–558, 560; drinking age for, 560–562; insur- ance rates for, 561; and rape, 562–563; in military, 563–566

Worker compensation, 277, 335 World Trade Organization, 166, 286, 339,

603n26, 612n22 World War I, 395, 398–404 World War II, 78, 176, 224, 289, 320, 344,

435, 546

Yemen, 544 Yoo, John, 258, 290–293 YouTube, 418 Yurok tribe, 476

Zoning laws, 37, 53, 147, 169, 363–364, 393, 462, 533, 572, 578

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