Saturday, August 30, 2003
God�s law enforcement: In a comment on Prof. Solum, Prof. Volokh writes of �this worthy refusal�to have man�s law enforce God�s commands.� He�s right, but not just because people �must come to faith through individual choice.� It�s also right because, as Thomas Jefferson repeatedly emphasized, the state�s laws will be carried out by men�fallen, fallible men. If human beings are so flawed that they cannot be trusted with running their own lives, how are we going to find among them people perfect enough to staff the government and enforce those laws? Or, in Jefferson�s words, �Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?�
Using the state to enforce virtue means giving that power to politicians, who are rarely the most virtuous folk. Those who invented religious liberty saw that it was better to let our differences proliferate; allow different people the right to make different choices�even immoral choices�so long as they respected others� right to do the same. �[G]ood Government,� Jefferson concluded, should �which shall restrain men from injuring one another, [but] leave them otherwise free to regulate their own pursuits of industry and improvement�.� Do you Christian conservatives really feel comfortable giving the government the power to patrol your religious practices?
Besides, if God�s law is truly the law�surely He does not need man to enforce His law, right? Although I am an atheist, I believe in natural law, and I would put the principle this way: nature enforces its own law. If a man leads a dissolute life, getting drunk, using drugs, not being responsible�he will not flourish, but will suffer. (He may drink himself into such a stupor that he does not realize he is suffering�but he will not flourish.) Vice brings its own punishments, in the end.
Using the state to enforce virtue means giving that power to politicians, who are rarely the most virtuous folk. Those who invented religious liberty saw that it was better to let our differences proliferate; allow different people the right to make different choices�even immoral choices�so long as they respected others� right to do the same. �[G]ood Government,� Jefferson concluded, should �which shall restrain men from injuring one another, [but] leave them otherwise free to regulate their own pursuits of industry and improvement�.� Do you Christian conservatives really feel comfortable giving the government the power to patrol your religious practices?
Besides, if God�s law is truly the law�surely He does not need man to enforce His law, right? Although I am an atheist, I believe in natural law, and I would put the principle this way: nature enforces its own law. If a man leads a dissolute life, getting drunk, using drugs, not being responsible�he will not flourish, but will suffer. (He may drink himself into such a stupor that he does not realize he is suffering�but he will not flourish.) Vice brings its own punishments, in the end.
Fame!: Thanks to Sapere Aude for the link. Sapere aude, by the way, is a phrase by Horace, which means, �dare to know,� (or, as Joshua Claybourn translates it, �dare to be wise,�) and is among my personal mottoes�an excellent choice for a blog title. As always, I�ve reciprocated the permalink. (Man, that sounds cool�.reciprocated the permalink, reciprocated the permalink, reciprocated the permalink�)
Friday, August 29, 2003
Unconstitutional?: Virginia Postrel asks about a bill pending here in California which would allow Indian tribes to essentially veto construction on property that the tribe deems �sacred.� She asks for Prof. Hewitt�s views, but as a Hewitt alum myself, I think I�ll take a stab at it.
The Supreme Court has spoken on the issue of allowing religious groups the power to regulate private businesses. In Larkin v. Grendel�s Den, 459 U.S. 116 (1982), the Court struck down a Massachusetts law that allowed a church or a school �to veto applications for liquor licenses within a five hundred foot radius of the church or school,� Id. at 117. Such a law failed the Lemon test, said the Court�and thereby constituted an establishment of religion�because �[t]he churches� power under the statute is standardless, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used...for explicitly religious goals.... In addition, the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred.� Id. at 125-26.
In other words, government may not delegate its regulatory power to a religious group for use in accordance with religious reasons. �[T]he core rationale underlying the Establishment Clause is preventing �a fusion of governmental and religious functions.� The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.� Id. at 126-27 (citations omitted).
Only then-Justice Rehnquist dissented in that case, and it remains good law.
The Supreme Court has spoken on the issue of allowing religious groups the power to regulate private businesses. In Larkin v. Grendel�s Den, 459 U.S. 116 (1982), the Court struck down a Massachusetts law that allowed a church or a school �to veto applications for liquor licenses within a five hundred foot radius of the church or school,� Id. at 117. Such a law failed the Lemon test, said the Court�and thereby constituted an establishment of religion�because �[t]he churches� power under the statute is standardless, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used...for explicitly religious goals.... In addition, the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred.� Id. at 125-26.
In other words, government may not delegate its regulatory power to a religious group for use in accordance with religious reasons. �[T]he core rationale underlying the Establishment Clause is preventing �a fusion of governmental and religious functions.� The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.� Id. at 126-27 (citations omitted).
Only then-Justice Rehnquist dissented in that case, and it remains good law.
Puns: Thanks to the Cur for his link. I, for one, think the pun is a high art. A well-turned pun is the product of a clever, quick mind which can scan several layers of meaning at once to find a connecting vein to exploit. Take, for instance, one of the finest in recent memory, from my colleague, John, who recently criticized a man named Mr. Veal, who was reprimanded for doing something too extreme, by writing �The zeal of Veal was rare and not well-done.� No idiot knows how to do something like that, eh?
Of course, my puns are little short of crimes against humanity.
Of course, my puns are little short of crimes against humanity.
Tease!: Holy cow. What I wouldn�t give for those pictures....
All right, all right, I admit it! Men are pigs! Just give me the pictures!
(Oh, and she�s right about Blind Man�s Bluff. Great book. Read it.)
All right, all right, I admit it! Men are pigs! Just give me the pictures!
(Oh, and she�s right about Blind Man�s Bluff. Great book. Read it.)
A thousand eyes: Thank you very, very much to the several people who forwarded me the story about the two little girls who had their lemonade stand shut down in St. Paul, since they didn�t have a license. It�s often hard for me to find these stories, and I try hard to learn about as many of them as I can. So I appreciate very much the readers who sent the story to me, and if you see similar stories out there, I urge you to send them my way. I find it very helpful.
Incidentally, readers will be pleased to know that the mayor has rescinded the fine, and is allowing these entrepreneurs to engage in their right to earn a living without unreasonable government interference.
My favorite line, though, was where Licensing Director Janeen Rosas told the Star Tribune �Allowing some people to sell without licenses gives them an unfair advantage over others.� How about that! Freedom is an unfair advantage!
Incidentally, readers will be pleased to know that the mayor has rescinded the fine, and is allowing these entrepreneurs to engage in their right to earn a living without unreasonable government interference.
My favorite line, though, was where Licensing Director Janeen Rosas told the Star Tribune �Allowing some people to sell without licenses gives them an unfair advantage over others.� How about that! Freedom is an unfair advantage!
Everybody�s workin� for the weekend: Or maybe not. My parents are visiting for the weekend, so blogging will be minimal.
Monday marks my one-year anniversary at the Pacific Legal Foundation. In that time I�ve done a lot, though hardly a fraction of what I would like to have done. I�ve written briefs in the United States Supreme Court, the Supreme Court of California, the Ninth Circuit Court of Appeals, and others. I had a ball helping out with Guinn v. Nevada Legislature (still pending a rehearing petition, by the way). I had articles published in the Chapman Law Review and the Southwestern Law Review, and wrote two others, soon to appear in the Harvard Journal of Law & Public Policy and The Journal of Law & Inequality. I�ve learned a hell of a lot. And I look forward to much more in the coming year. I�ve also loved living in quaint and beautiful little Placerville, California. There have been very trying times already, and I�m sure there are worse to come; the worst of all, of course, was losing E. But in general, I think things have worked for the best. I�m reminded of Jefferson�s answer to John Adams:
�You ask if I would agree to live my seventy or rather seventy-three years over again? To which I say, Yea. I think with you that it is a good world on the whole, that it has been framed on a principle of benevolence, and more pleasure than pain dealt out to us. There are indeed (who might say Nay) gloomy and hypochondriac minds, inhabitants of diseased bodies, disgusted with the present, and despairing of the future; always counting that the worst will happen, because it may happen. To these I say, How much pain have cost us the evils which have never happened! My temperament is sanguine. I steer my bark with Hope in the head, leaving Fear astern. My hopes indeed sometimes fail; but not oftener than the forebodings of the gloomy.�
Monday marks my one-year anniversary at the Pacific Legal Foundation. In that time I�ve done a lot, though hardly a fraction of what I would like to have done. I�ve written briefs in the United States Supreme Court, the Supreme Court of California, the Ninth Circuit Court of Appeals, and others. I had a ball helping out with Guinn v. Nevada Legislature (still pending a rehearing petition, by the way). I had articles published in the Chapman Law Review and the Southwestern Law Review, and wrote two others, soon to appear in the Harvard Journal of Law & Public Policy and The Journal of Law & Inequality. I�ve learned a hell of a lot. And I look forward to much more in the coming year. I�ve also loved living in quaint and beautiful little Placerville, California. There have been very trying times already, and I�m sure there are worse to come; the worst of all, of course, was losing E. But in general, I think things have worked for the best. I�m reminded of Jefferson�s answer to John Adams:
�You ask if I would agree to live my seventy or rather seventy-three years over again? To which I say, Yea. I think with you that it is a good world on the whole, that it has been framed on a principle of benevolence, and more pleasure than pain dealt out to us. There are indeed (who might say Nay) gloomy and hypochondriac minds, inhabitants of diseased bodies, disgusted with the present, and despairing of the future; always counting that the worst will happen, because it may happen. To these I say, How much pain have cost us the evils which have never happened! My temperament is sanguine. I steer my bark with Hope in the head, leaving Fear astern. My hopes indeed sometimes fail; but not oftener than the forebodings of the gloomy.�
Moo-ry Jane: Proof that the Drug War is bull.
I got mine: Did you get yours?
Thursday, August 28, 2003
Courage for lost causes: This is long post, but worth it, if you like to see courageous men fighting for noble, lost causes. The following is a fascinating passage from the debates at the 1878-1879 California Constitutional Convention, and it would give a statue goose bumps.
First, keep in mind that the Convention (which framed the document that remains, albeit with many changes, the State�s Constitution today) was dominated by anti-Chinese activists; they framed a Constitution which excluded the Chinese from owning property, voting, attending public schools, and so on. Throughout the debates, the denunciations of the Chinese were astonishingly extreme. Only one delegate had the courage to oppose this racism, and this is his eloquent and quixotic speech, opposing an article which prohibited corporations from employing the Chinese, and permitting the Legislature to deport all Chinese laborers:
Mr. STUART: Mr. President, I oppose this article, and I hope every section of it will be stricken out. Such savage monstrosity has never been penned by man. Is it for Christian men, in this enlightened age, and only for California, to commit this unnatural act of attempting the destruction, by starvation or otherwise, of over one hundred thousand men? Is there anything to be conceived more horrible or more savage? Sir, this question cannot be settled in this way. It must be done by calm, intelligent, and statesmanlike argument; and this political cry of both parties to catch the floating vote, is too well understood at the East.... I see no new light thrown on this question during the long, threatening, acrimonious, and boisterous debate in the Committee of the Whole, to cause me to alter my mind....
I hope now, sir, there is a better feeling among its members, and that reason has now enthroned herself in our midst, and will control our actions. Let us now reflect, and use our better judgment and purer reasons, before we pass this terrible article. Such a barbarous, inhuman, or unnatural proposition has never been conceived or entered the brain of either Pagan or Christian man since the foundation of the world. Talk of the Draconian laws written in blood! Where is one ever written or proclaimed by man that equals this in barbarism and inhumanity? You can trace down the stream of time through all savage life, with its wars, its cruelties, and its slavery, and fail to find its equal or parallel for injustice, treachery, or ingratitude. These men, after being invited to our shores, after building our railroads, clearing our farms, reclaiming over one million acres of our swamp and overflowed land, planting our vineyards and our orchards, reaping the crops of the small and the needy farmers, gathering our fruits and berries, digging and sacking our potatoes, supplying our markets with the smaller kinds of fish from the sea, manufacturing our woolen and other goods, cleaning up the tailings of our hydraulic mines, scraping the bedrock of our exhausted mining claims, and relieving most of the householders in this State of the household drudgery which would be imposed upon our wives and daughters, thus contributing to our happiness and true prosperity. Sir, after all this, which has added many millions annually to the State and nation�s wealth, you would commit treason against our Government by putting this unjust and inhuman article in our organic law. I beg of gentlemen on this floor to pause, to consider well, and not to be carried away through blind prejudice, through political ambition, or through race hatred; but act like civilized, just, and Christian men; not to do an act that would shock all humane men throughout the world, both Christian and Pagan. Sir, this is what I plead for, and will ever plead for; and will sympathize with the weak and downtrodden of the world, and hope to ever remain on the side of humanity and justice as long as life shall last. I may well say that
�Man�s inhumanity to man
Makes countless thousands mourn.�
Sir, I have been the object of attack, both public and private, for uttering my honest convictions on this grave and momentous question. Life has been threatened; lies and slanders have been circulated. But they emanate from sources too low, too filthy, too cowardly, for me to notice. I will now say that no threats, no fears, no intimidation, no coercion, shall ever deter me for a moment from defending the right or doing my conscientious duty..... How different it is with members of this Convention.... I have no sacrifice, either human or Divine, moral or political, to throw before this Juggernaut or to appease the anger of Moloch, and am sorry to see so many of this Convention standing indifferently by, while others are trying to destroy the prosperity of our State and Nation...by silently encouraging this insane crusade against Chinese labor; for over one hundred thousand men would follow their expulsion.... Deprive us of them, sir, and you will have no more wool or woolen goods to warm our bodies, no more wine to cheer our lives or sustain our bodily infirmities. All will again return to its primitive condition....
It is complained that the Chinese are penurious in their diet, and that they live on nothing but rice. The truth is, however, that they live here at a greater cost, and have a greater variety of food...than do most of their Caucasian enemies.... Of pork, poultry, fish, and vegetables, they use large quantities, and good, for which they pay high prices.... And the general condition of health among them is far better in the country than among their Caucasian enemies.... Every night, after their work is done, and frequently before they eat their meal, each and all go through the ablutions from head to foot, and on Sunday their bathing and washing occupy nearly half the day. What a lesson! What an example to their boasting Caucasian persecutors! It would be well for them and the country if they would copy or practice some of their heathen rites--such as cleanliness, economy, and industry..... I am told that many [members of the Convention] agree with me. If so, why not speak...?
[T]he gentleman from Alameda[,] Mr. Webster...in his fierce denunciation of the Chinese, I asked him whether Italians and others did not compete with them? He answered �The Italians compete with them only because they have been brought up from childhood to labor and economy.� What a concession! Economy and labor! Oh, consistency, thou art a jewel. Mr. Reynolds of San Francisco, the ablest St. Paul of their tribe of persecutors, differs from all the rest in his persecution of them. He says he does so on account of their intelligence, industry, and thrift; not on account of their ignorance and filth. I think, sir, I see a ray of light beaming through the dark minds of these benighted persecutors, and hope, like their great leader, they will become converted and sin no more in this way....
[A] few questions to be answered by him who answers me: Who are they who desecrate the Sabbath? Who form our rioters and our hoodlums? Who fill our alms houses? Who are plotting to overthrow our common schools? Who stuff our ballot boxes? Who are conspiring to overthrow and destroy our Government, and to utterly stamp out liberty, that despotism over conscience, mind, and muscle, may rise upon the ruins...? Who burn our railroad depots? Who threaten the lives of our best citizens? Who are plotting to despoil our wealthy men? Who claim two thirds of our public offices? Not Chinamen. Then who are they? You may search history through all time, and examine the nations of the East through their rise and fall, and you will find China where it now is and has been for over five thousand years. Yet you will fail to find an instance where she has overrun or crowded out a single nation, however near�
(At this point in the speaker�s remarks, time was called and the gavel fell.)
Mr. HOWARD, of Los Angeles: I hope the gentleman will be allowed to proceed. He is the pluckiest man in the Convention. I give him my ten minutes.
Mr. STUART: Thank you, General.... Sir, when I was a candidate...[t]hey charged that I had said a Chinaman was better than an Irishman or a Dutchman. I said no such thing; but did say that they had as much right here as either and should be protected the same; and I say so still.... Give to the children of these people (and some of them native born) the privilege of our common schools in return for the school taxes they pay; cease persecuting them by personal assault, to which the law is blind; stop this disgraceful special legislation against them; stop this relentless, heartless, and inhuman persecution of foreigners...and then, and only then, will we do our duty. What right has the State to exact of these men poll and other school taxes, and then legislate against them, prohibiting their children the privilege of her common schools? Why pass and continue to pass arbitrary and oppressive laws against them? Why does the State fail to protect them from murder, arson, and outrage? I charge the city of San Francisco with cowardice in not protecting them in the exercise of their rights of �life, liberty, and the pursuit of happiness,� which all men are guaranteed under our flag; while they have collected millions of dollars in taxes, licenses, and otherwise, yet they furnish them no protection in return. They pass cruel ordinances against them; they harass and annoy them through every device the law can invent, and why are similar outrages heaped upon them in nearly every county, town, village, or hamlet in this state? Tell me; tell me; oh, tell me, why they are not protected like others in their honest toil? Or is this to be the final sum of all villainy? In case the outrages on these people do not cease in this state, and it refuses longer to protect them, then I call upon our Government to give them the ballot, that they may protect themselves. If it does not, then I demand the repeal of all naturalization laws, and to modify all immigration laws, with other nations, under the treaty making power.
Mr. AYERS: Mr. President, I regret that the gentleman did not make that eloquent appeal prior to the adoption of this article by the Committee of the Whole. I regret that I must differ.... It is a question between people of our own race, who build homes and build up the county, and the heathen, who band together like brutes, and I must choose the former....
The amendment was adopted.
E.B. Willis & P.K. Stockton, Debates And Proceedings of The Constitutional Convention of the State of California 1238-1239 (1878).
First, keep in mind that the Convention (which framed the document that remains, albeit with many changes, the State�s Constitution today) was dominated by anti-Chinese activists; they framed a Constitution which excluded the Chinese from owning property, voting, attending public schools, and so on. Throughout the debates, the denunciations of the Chinese were astonishingly extreme. Only one delegate had the courage to oppose this racism, and this is his eloquent and quixotic speech, opposing an article which prohibited corporations from employing the Chinese, and permitting the Legislature to deport all Chinese laborers:
Mr. STUART: Mr. President, I oppose this article, and I hope every section of it will be stricken out. Such savage monstrosity has never been penned by man. Is it for Christian men, in this enlightened age, and only for California, to commit this unnatural act of attempting the destruction, by starvation or otherwise, of over one hundred thousand men? Is there anything to be conceived more horrible or more savage? Sir, this question cannot be settled in this way. It must be done by calm, intelligent, and statesmanlike argument; and this political cry of both parties to catch the floating vote, is too well understood at the East.... I see no new light thrown on this question during the long, threatening, acrimonious, and boisterous debate in the Committee of the Whole, to cause me to alter my mind....
I hope now, sir, there is a better feeling among its members, and that reason has now enthroned herself in our midst, and will control our actions. Let us now reflect, and use our better judgment and purer reasons, before we pass this terrible article. Such a barbarous, inhuman, or unnatural proposition has never been conceived or entered the brain of either Pagan or Christian man since the foundation of the world. Talk of the Draconian laws written in blood! Where is one ever written or proclaimed by man that equals this in barbarism and inhumanity? You can trace down the stream of time through all savage life, with its wars, its cruelties, and its slavery, and fail to find its equal or parallel for injustice, treachery, or ingratitude. These men, after being invited to our shores, after building our railroads, clearing our farms, reclaiming over one million acres of our swamp and overflowed land, planting our vineyards and our orchards, reaping the crops of the small and the needy farmers, gathering our fruits and berries, digging and sacking our potatoes, supplying our markets with the smaller kinds of fish from the sea, manufacturing our woolen and other goods, cleaning up the tailings of our hydraulic mines, scraping the bedrock of our exhausted mining claims, and relieving most of the householders in this State of the household drudgery which would be imposed upon our wives and daughters, thus contributing to our happiness and true prosperity. Sir, after all this, which has added many millions annually to the State and nation�s wealth, you would commit treason against our Government by putting this unjust and inhuman article in our organic law. I beg of gentlemen on this floor to pause, to consider well, and not to be carried away through blind prejudice, through political ambition, or through race hatred; but act like civilized, just, and Christian men; not to do an act that would shock all humane men throughout the world, both Christian and Pagan. Sir, this is what I plead for, and will ever plead for; and will sympathize with the weak and downtrodden of the world, and hope to ever remain on the side of humanity and justice as long as life shall last. I may well say that
�Man�s inhumanity to man
Makes countless thousands mourn.�
Sir, I have been the object of attack, both public and private, for uttering my honest convictions on this grave and momentous question. Life has been threatened; lies and slanders have been circulated. But they emanate from sources too low, too filthy, too cowardly, for me to notice. I will now say that no threats, no fears, no intimidation, no coercion, shall ever deter me for a moment from defending the right or doing my conscientious duty..... How different it is with members of this Convention.... I have no sacrifice, either human or Divine, moral or political, to throw before this Juggernaut or to appease the anger of Moloch, and am sorry to see so many of this Convention standing indifferently by, while others are trying to destroy the prosperity of our State and Nation...by silently encouraging this insane crusade against Chinese labor; for over one hundred thousand men would follow their expulsion.... Deprive us of them, sir, and you will have no more wool or woolen goods to warm our bodies, no more wine to cheer our lives or sustain our bodily infirmities. All will again return to its primitive condition....
It is complained that the Chinese are penurious in their diet, and that they live on nothing but rice. The truth is, however, that they live here at a greater cost, and have a greater variety of food...than do most of their Caucasian enemies.... Of pork, poultry, fish, and vegetables, they use large quantities, and good, for which they pay high prices.... And the general condition of health among them is far better in the country than among their Caucasian enemies.... Every night, after their work is done, and frequently before they eat their meal, each and all go through the ablutions from head to foot, and on Sunday their bathing and washing occupy nearly half the day. What a lesson! What an example to their boasting Caucasian persecutors! It would be well for them and the country if they would copy or practice some of their heathen rites--such as cleanliness, economy, and industry..... I am told that many [members of the Convention] agree with me. If so, why not speak...?
[T]he gentleman from Alameda[,] Mr. Webster...in his fierce denunciation of the Chinese, I asked him whether Italians and others did not compete with them? He answered �The Italians compete with them only because they have been brought up from childhood to labor and economy.� What a concession! Economy and labor! Oh, consistency, thou art a jewel. Mr. Reynolds of San Francisco, the ablest St. Paul of their tribe of persecutors, differs from all the rest in his persecution of them. He says he does so on account of their intelligence, industry, and thrift; not on account of their ignorance and filth. I think, sir, I see a ray of light beaming through the dark minds of these benighted persecutors, and hope, like their great leader, they will become converted and sin no more in this way....
[A] few questions to be answered by him who answers me: Who are they who desecrate the Sabbath? Who form our rioters and our hoodlums? Who fill our alms houses? Who are plotting to overthrow our common schools? Who stuff our ballot boxes? Who are conspiring to overthrow and destroy our Government, and to utterly stamp out liberty, that despotism over conscience, mind, and muscle, may rise upon the ruins...? Who burn our railroad depots? Who threaten the lives of our best citizens? Who are plotting to despoil our wealthy men? Who claim two thirds of our public offices? Not Chinamen. Then who are they? You may search history through all time, and examine the nations of the East through their rise and fall, and you will find China where it now is and has been for over five thousand years. Yet you will fail to find an instance where she has overrun or crowded out a single nation, however near�
(At this point in the speaker�s remarks, time was called and the gavel fell.)
Mr. HOWARD, of Los Angeles: I hope the gentleman will be allowed to proceed. He is the pluckiest man in the Convention. I give him my ten minutes.
Mr. STUART: Thank you, General.... Sir, when I was a candidate...[t]hey charged that I had said a Chinaman was better than an Irishman or a Dutchman. I said no such thing; but did say that they had as much right here as either and should be protected the same; and I say so still.... Give to the children of these people (and some of them native born) the privilege of our common schools in return for the school taxes they pay; cease persecuting them by personal assault, to which the law is blind; stop this disgraceful special legislation against them; stop this relentless, heartless, and inhuman persecution of foreigners...and then, and only then, will we do our duty. What right has the State to exact of these men poll and other school taxes, and then legislate against them, prohibiting their children the privilege of her common schools? Why pass and continue to pass arbitrary and oppressive laws against them? Why does the State fail to protect them from murder, arson, and outrage? I charge the city of San Francisco with cowardice in not protecting them in the exercise of their rights of �life, liberty, and the pursuit of happiness,� which all men are guaranteed under our flag; while they have collected millions of dollars in taxes, licenses, and otherwise, yet they furnish them no protection in return. They pass cruel ordinances against them; they harass and annoy them through every device the law can invent, and why are similar outrages heaped upon them in nearly every county, town, village, or hamlet in this state? Tell me; tell me; oh, tell me, why they are not protected like others in their honest toil? Or is this to be the final sum of all villainy? In case the outrages on these people do not cease in this state, and it refuses longer to protect them, then I call upon our Government to give them the ballot, that they may protect themselves. If it does not, then I demand the repeal of all naturalization laws, and to modify all immigration laws, with other nations, under the treaty making power.
Mr. AYERS: Mr. President, I regret that the gentleman did not make that eloquent appeal prior to the adoption of this article by the Committee of the Whole. I regret that I must differ.... It is a question between people of our own race, who build homes and build up the county, and the heathen, who band together like brutes, and I must choose the former....
The amendment was adopted.
E.B. Willis & P.K. Stockton, Debates And Proceedings of The Constitutional Convention of the State of California 1238-1239 (1878).
Birthright citizenship: Tom Tancredo, a Congressman from Colorado, was on the local radio station this morning discussing the California governor�s race and the fact that the candidates have not discussed the issue of illegal immigration enough. This reminded me of a very interesting theory by Prof. Edward Erler�of which I have been convinced�that the concept of birthright citizenship is not constitutional.
Like many folks, I just assumed that you�re an American citizen if you�re born in America. But as Erler points out, the Fourteenth Amendment says that �All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.� (emphasis added). To accept the notion of birthright citizenship would reduce the italicized portion to a nullity, and cannot, therefore, be the correct interpretation of that clause. Rather, as the Court put it in The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 73 (1872), �The phrase, �subject to its jurisdiction� was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.� (Note: although I have emphatically urged the overruling of Slaughter House, it is for other reasons.)
Erler argues that, were the Fourteenth Amendment to extend citizenship automatically to those born in the United States, children of Indian tribes would have become citizens automatically. But instead, the Congress passed a series of laws inviting Indians to become citizens�the last of which was passed in the 1920s. Nor did the Supreme Court suggest such a notion as birthright citizenship until quite recently. In Elk v. Wilkins, 112 U.S. 94, 101-102 (1884), the Court explained:
�The persons declared to be citizens are �all persons born or naturalized in the United States, and subject to the jurisdiction thereof.� The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance�. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized�. [Those] born within the territorial limits of the United States�owing immediate allegiance to�an alien�power, although in a geographical sense born in the United States, are no more �born in the United States and subject to the jurisdiction thereof,� within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.� Accord, United States v. Wong Kim Ark, 169 U.S. 649, 680-681 (1898).
In Plyler v. Doe, 457 U.S. 202, 212 n.10 (1982), the Supreme Court held that the term �subject to its jurisdiction� was synonymous with the Fourteenth Amendment�s reference elsewhere to �within its jurisdiction,� and thus did not mean children born to foreign citizens within the United States. Thus �no plausible distinction with respect to Fourteenth Amendment �jurisdiction� can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.� But that doesn�t seem like a correct reading of Wong Kim Ark, and certainly is inconsistent with Congress� continued extension of citizenship to Indian tribes. Moreover, it was dicta.
Immigration law is certainly not my specialty, so it�s plausible that I�m not aware of some aspect of this debate, but this seems like a pretty good argument.
This being said, I should add that I don�t really care all that much. Illegal immigration is an issue that really upsets a lot of people, usually those on my side of the political spectrum. But to my mind, the problems they complain about are inherent in any welfare state, and it is the welfare state that ought to be attacked, not citizenship. I find Erler�s argument pretty convincing�but I also favor very low citizenship barriers and generally open borders. I just think the government shouldn�t pay anyone not to work, whether they�re citizens or not.
Like many folks, I just assumed that you�re an American citizen if you�re born in America. But as Erler points out, the Fourteenth Amendment says that �All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.� (emphasis added). To accept the notion of birthright citizenship would reduce the italicized portion to a nullity, and cannot, therefore, be the correct interpretation of that clause. Rather, as the Court put it in The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 73 (1872), �The phrase, �subject to its jurisdiction� was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.� (Note: although I have emphatically urged the overruling of Slaughter House, it is for other reasons.)
Erler argues that, were the Fourteenth Amendment to extend citizenship automatically to those born in the United States, children of Indian tribes would have become citizens automatically. But instead, the Congress passed a series of laws inviting Indians to become citizens�the last of which was passed in the 1920s. Nor did the Supreme Court suggest such a notion as birthright citizenship until quite recently. In Elk v. Wilkins, 112 U.S. 94, 101-102 (1884), the Court explained:
�The persons declared to be citizens are �all persons born or naturalized in the United States, and subject to the jurisdiction thereof.� The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance�. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized�. [Those] born within the territorial limits of the United States�owing immediate allegiance to�an alien�power, although in a geographical sense born in the United States, are no more �born in the United States and subject to the jurisdiction thereof,� within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.� Accord, United States v. Wong Kim Ark, 169 U.S. 649, 680-681 (1898).
In Plyler v. Doe, 457 U.S. 202, 212 n.10 (1982), the Supreme Court held that the term �subject to its jurisdiction� was synonymous with the Fourteenth Amendment�s reference elsewhere to �within its jurisdiction,� and thus did not mean children born to foreign citizens within the United States. Thus �no plausible distinction with respect to Fourteenth Amendment �jurisdiction� can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.� But that doesn�t seem like a correct reading of Wong Kim Ark, and certainly is inconsistent with Congress� continued extension of citizenship to Indian tribes. Moreover, it was dicta.
Immigration law is certainly not my specialty, so it�s plausible that I�m not aware of some aspect of this debate, but this seems like a pretty good argument.
This being said, I should add that I don�t really care all that much. Illegal immigration is an issue that really upsets a lot of people, usually those on my side of the political spectrum. But to my mind, the problems they complain about are inherent in any welfare state, and it is the welfare state that ought to be attacked, not citizenship. I find Erler�s argument pretty convincing�but I also favor very low citizenship barriers and generally open borders. I just think the government shouldn�t pay anyone not to work, whether they�re citizens or not.
See you there?: I will be attending the Cato Institute�s second annual Supreme Court review on September 17, Constitution Day. Hope to see you there.
Wednesday, August 27, 2003
Jefferson�s wrist: Earlier, I mentioned that I thought David McCullough was wrong to say Jefferson had broken his wrist before going to France. It was I who erred, as Willard Sterne Randall confirms this. Another error of McCullough�s occurs to me, though: he claims that Notes on Virginia was Jefferson�s only book. That�s not actually true. Jefferson wrote a second book as President, which consisted of a lengthy legal defense of his actions in destroying a small private fort in Louisiana�something for which he was sued. I�ve never seen a copy, but I understand it is far from interesting.
The following message is dedicated to Kate: Hey, Kate: I think Epstein is a god.
So there!
So there!
Ikea: Grand opening of an Ikea store in Palo Alto has made headlines; this woman dressed up as a Viking to help celebrate. Fitting, I think, that Ikea would play up the Viking angle, considering the Ikea corporation�s tendency to abuse eminent domain. Plunder is plunder, eh?
Chain of fools: A mayoral candidate in San Francisco wants to ban chain stores.
Fame!: Thanks to Overlawyered for the link.
Conversation: Prof. Solum has some great comments on Prof. Volokh�s analogy of homosexuality and religion (which I beat him to!)�but it reminds me. Got into a long and very interesting (and friendly!) conversation with a conservative yesterday about Lawrence v. Texas.
Him: �A free society cannot survive without certain moral norms, so society has a strong interest in protecting those norms in order to keep the society safe and free.�
Me: �So let�s say that there was a religion which had the same effects on society that you allege homosexuality does�some religion that enervates society and makes it less able to defend itself, like Quaker pacifism. Do you think the state could regulate that religious activity?�
Him: �Yes.�
Him: �A free society cannot survive without certain moral norms, so society has a strong interest in protecting those norms in order to keep the society safe and free.�
Me: �So let�s say that there was a religion which had the same effects on society that you allege homosexuality does�some religion that enervates society and makes it less able to defend itself, like Quaker pacifism. Do you think the state could regulate that religious activity?�
Him: �Yes.�
California regulation: Virginia Postrel writes, �There�s a reason Arnold keeps talking about regulation, even though regulation would seem to have no direct effect on the state budget crisis. People are leaving the state because it's too expensive and too hard climb the economic ladder.�
That�s right. How about the state�s Unfair Business Practices Act, (Cal. Bus. & Prof. Code �17200)? It�s the vaguest, broadest, most powerful law of its kind in the country, and it allows you to sue businesses for almost anything. So Cal Law Blog was recently following the antics of the Trevor Law Group, that went around just blackmailing businesses with this law�threatening to sue unless businesses ponied up protection money. In fact, the recent case of Nike v. Kasky, unfortunately dismissed by the Supreme Court, was a case in which a man, disliking the content of some of Nike�s press releases, sued them under �17200. (Nike argued that the First Amendment barred such a lawsuit, and the California Supreme Court rejected that argument.) This law is so badly written that abuses of it are barely distinguishable from �legitimate� uses of it! Attempts to reform �17200 have come to nothing. Not surprising, since such attempts weren�t serious to begin with.
What does Arnold think about �17200? Unfortunately, he has not said, at least, that I know of. I wonder if his opinion is more informed than his opinion of the state�s family leave act.
That�s right. How about the state�s Unfair Business Practices Act, (Cal. Bus. & Prof. Code �17200)? It�s the vaguest, broadest, most powerful law of its kind in the country, and it allows you to sue businesses for almost anything. So Cal Law Blog was recently following the antics of the Trevor Law Group, that went around just blackmailing businesses with this law�threatening to sue unless businesses ponied up protection money. In fact, the recent case of Nike v. Kasky, unfortunately dismissed by the Supreme Court, was a case in which a man, disliking the content of some of Nike�s press releases, sued them under �17200. (Nike argued that the First Amendment barred such a lawsuit, and the California Supreme Court rejected that argument.) This law is so badly written that abuses of it are barely distinguishable from �legitimate� uses of it! Attempts to reform �17200 have come to nothing. Not surprising, since such attempts weren�t serious to begin with.
What does Arnold think about �17200? Unfortunately, he has not said, at least, that I know of. I wonder if his opinion is more informed than his opinion of the state�s family leave act.
Tuesday, August 26, 2003
Music recommendation: Check out this CD. It�s music played on James Madison�s flute, which he purchased from a flutemaker in Europe. The flute itself is made of glass, and has somehow managed to survive to the present day. I bought this CD just for the novelty of it being Madison�s flute (and recorded as performed in Madison�s livingroom at Montpelier). But it is also exquisitely beautiful music, very relaxing, and perfect for background music while reading. Buy a copy now and help support Montpelier, one of my own favorite charities, which has already made great progress in restoration.
Wow!: It really works!
*looks at the current world's population* You must have a lot of frustration then.
*looks at the current world's population* You must have a lot of frustration then.
What pisses you off?
Created by ptocheia
(Thanks to Lone Dissenter)
King�s dream: Nice article on the anniversary of the March on Washington. But I think we still have a long way to go�even to recognize what the problems are.
Columbia Report: If you�re following the release of the Columbia disaster report, make sure to check out Nasawatch.com, a great website that keeps a skeptical, but loving eye on the space program.
America�s space program deserves something better than a bloated, worn out bureaucracy staffed by people who care more about maintaining the bureaucracy than about actual space exploration. �I am not the only one who looks back at all of this and wonders why so many things seem so hard now,� writes Nasawatch, �and challenges so daunting�when NASA in the 60�s did not know any better to tackle impossible things�and then get up after an accident and go at them again�as hard�if not harder. The crew of Expedition 8 don�t know how they will be coming home after their stay in space�Soyuz or Shuttle. Nor do they (or any of us) know what NASA they will return to�one armed and invigorated with a new commitment to move on�and outward, or one reigned in by political shortsightedness and insecurity relegated to satisfaction with the status quo.�
America�s space program deserves something better than a bloated, worn out bureaucracy staffed by people who care more about maintaining the bureaucracy than about actual space exploration. �I am not the only one who looks back at all of this and wonders why so many things seem so hard now,� writes Nasawatch, �and challenges so daunting�when NASA in the 60�s did not know any better to tackle impossible things�and then get up after an accident and go at them again�as hard�if not harder. The crew of Expedition 8 don�t know how they will be coming home after their stay in space�Soyuz or Shuttle. Nor do they (or any of us) know what NASA they will return to�one armed and invigorated with a new commitment to move on�and outward, or one reigned in by political shortsightedness and insecurity relegated to satisfaction with the status quo.�
Blues update: Some months ago, I blogged about a band I enjoyed at the Placerville Brew Fest. Tom �Bluesmeister� Feltner, one of the guitarists playing that night�who is very, very good�writes to say that his band, �Mojo Bone,� has a website here, where you will soon be able to keep up with their travels. I definitely recommend keeping an eye out, and if they�re in your town, go see them.
Monday, August 25, 2003
Analogy: Great post on homosexuality and conservatism by Prof. Volokh. One minor note: conservatives like Legalguy (who, incidentally, has never responded to my critiques regarding Lawrence) rely on the argument that the rights protected under the constitution are just the traditional, common law rights. Yet religious freedom was not a common law principle. That it was embraced by the framers points to the degree to which they did not rely on traditionalism in framing the Constitution. Prof. Volokh's analogy to religious freedom is therefore aboslutely correct. As Jefferson said about religious freedom, so we can say about private, adult, consensual sexual activity: �The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.�
Well put: All right, here�s some equal time for you�this is a paragraph from a law review article that very concisely presents what I consider to be the strongest criticism of my own Constitutional views. Obviously I don�t believe this criticism is, in the end, convincing, but it�s awfully good:
�To hold out the freedom to contract as the highest aspiration for blacks misses the point of the historical experience. Freedom to contract did little to protect blacks in the postwar South from the continued subjugation brought about by poverty, lack of education, and woefully inferior socioeconomic standing. Freedom of contract left intact a society whose white wealth was based on the legal subjugation of blacks. What moral claim can be made for the free contractual relation between the unskilled ex- slave and the ex-plantation owner, the first in full legal possession of his residual economic and social inferiority, the second in possession of his landholdings, which would serve as the basis for the regeneration of his wealth (each, needless to add, the creation of an economic system based on slave labor)? Thus, one major departure from free contract-slavery-gave way to another major departure-the Jim Crow laws. But the experience of the South after the demise of slavery and before the full flowering of Jim Crow indicates that deep-seated patterns of deprivation do not disappear under a regime that proclaimed full equality at law.�
Samuel Issacharoff, Contractual Liberties in Discriminatory Markets, 70 Tex. L. Rev. 1219, 1232-33 (1992)
�To hold out the freedom to contract as the highest aspiration for blacks misses the point of the historical experience. Freedom to contract did little to protect blacks in the postwar South from the continued subjugation brought about by poverty, lack of education, and woefully inferior socioeconomic standing. Freedom of contract left intact a society whose white wealth was based on the legal subjugation of blacks. What moral claim can be made for the free contractual relation between the unskilled ex- slave and the ex-plantation owner, the first in full legal possession of his residual economic and social inferiority, the second in possession of his landholdings, which would serve as the basis for the regeneration of his wealth (each, needless to add, the creation of an economic system based on slave labor)? Thus, one major departure from free contract-slavery-gave way to another major departure-the Jim Crow laws. But the experience of the South after the demise of slavery and before the full flowering of Jim Crow indicates that deep-seated patterns of deprivation do not disappear under a regime that proclaimed full equality at law.�
Samuel Issacharoff, Contractual Liberties in Discriminatory Markets, 70 Tex. L. Rev. 1219, 1232-33 (1992)
Preambles: Dr. Masugi comments on the California Constitution�s invocation of God in the Preamble, which reminds me of this exchange from the 1849 California Constitutional Convention, when the delegates were discussing just this passage. It reveals, I think, just the problem we have:
�Mr. BOTTS said...[he] had always been opposed to the abuse of the language of prayer and thanksgiving on occasions of this kind. He thought there was an inappropriateness in it. Gentlemen should consider the circumstances under which this Constitution was to be made. It was to be made by the votes of the people at the polls. They are supposed to adopt the language of that instrument. But it is well known that no such feeling or sentiment prevails at a political meeting. The voter may be a religious man and may pray at other times, but he is not in the proper frame of mind to utter prayers at the polls. There has always been, in my mind, an hypocricy [sic] in making him say what he does not intend to say, and what he does does not even think of saying. The closet is the proper place for devotion--not the ballot-box.
�Mr. NORTON. I have but a single word to remark in regard to this reference in the preamble to the Supreme Being. I think it is very appropriate; and although we may not (some of us at least) be in the habit of praying, where an opportunity occurs when it would be not only appropriate but proper to do so, that we should do it. The gentleman�s remarks that the voters at the polls in making this Constitution, are supposed to adopt its language, and therefore make such a prayer to the Supreme Being, only show how desirable it is to insert this clause. If we can, by supposition, get a prayer out of those who are not in the habit of praying, we should by all means do it.�
J. Ross Browne, Report of The Debates of The Convention of California, on The Formation of The State Constitution, In September and October, 1849 at 416-417 (1850) (emphasis added)
Here we have an explicit admission that the Preamble language was adopted exactly to force people who do not believe to make a profession of belief�exactly what the First Amendment (and Art. VI) prohibits.
�Mr. BOTTS said...[he] had always been opposed to the abuse of the language of prayer and thanksgiving on occasions of this kind. He thought there was an inappropriateness in it. Gentlemen should consider the circumstances under which this Constitution was to be made. It was to be made by the votes of the people at the polls. They are supposed to adopt the language of that instrument. But it is well known that no such feeling or sentiment prevails at a political meeting. The voter may be a religious man and may pray at other times, but he is not in the proper frame of mind to utter prayers at the polls. There has always been, in my mind, an hypocricy [sic] in making him say what he does not intend to say, and what he does does not even think of saying. The closet is the proper place for devotion--not the ballot-box.
�Mr. NORTON. I have but a single word to remark in regard to this reference in the preamble to the Supreme Being. I think it is very appropriate; and although we may not (some of us at least) be in the habit of praying, where an opportunity occurs when it would be not only appropriate but proper to do so, that we should do it. The gentleman�s remarks that the voters at the polls in making this Constitution, are supposed to adopt its language, and therefore make such a prayer to the Supreme Being, only show how desirable it is to insert this clause. If we can, by supposition, get a prayer out of those who are not in the habit of praying, we should by all means do it.�
J. Ross Browne, Report of The Debates of The Convention of California, on The Formation of The State Constitution, In September and October, 1849 at 416-417 (1850) (emphasis added)
Here we have an explicit admission that the Preamble language was adopted exactly to force people who do not believe to make a profession of belief�exactly what the First Amendment (and Art. VI) prohibits.
Origin of legitimacy: Those interested in the question of constitutional legitimacy should not overlook Anthony de Jasay�s great recent book Justice And Its Surroundings which I�m re-reading now. It doesn�t discuss the question of historical legitimacy, but approaches questions of justice and constitutionalism as a philosophical (and economic) question. Really outstanding.
Incidentally, the way Prof. Solum phrases the question reminds me of a great line from one of Harry Jaffa�s books, which I don�t have before me, so I�ll paraphrase: �I defend the original understanding of the Constitution for no other reason than that it is true.�
Incidentally, the way Prof. Solum phrases the question reminds me of a great line from one of Harry Jaffa�s books, which I don�t have before me, so I�ll paraphrase: �I defend the original understanding of the Constitution for no other reason than that it is true.�
Sept. 11: Do you ever find yourself wondering�did it really happen?
Mars: If you haven�t done it yet, go out and look at Mars tonight. I watched it last night, and now is the time to do it, before the Moon comes back�it�s gorgeous.
Forthcoming: This weekend I sent off the final draft of my article on plea bargaining to Cato Institute�s Regulation magazine. Keep your eye out, and I�ll post a link here when it�s published.
Sunday, August 24, 2003
Esotericism: Crescat Sententia pointed to this article by Judge Posner, which discusses at length the constitutionality of Lincoln�s suspension of habeas corpus during the Civil War. I�ve not read the book he�s reviewing, and probably will not have time to do so. Nor am I sure what I think about the suspension of habeas corpus. I�m inclined to think it was unconstitutional, although I would have to think about it more. No, what raised my eyebrows was the following: �[The author�s] analysis�is preoccupied with esoteric questions like �the precise locus of American sovereignty.��
It may be esoteric, but let nobody make the mistake of thinking that it is unimportant. That is the central question in any serious analysis of the Civil War, and indeed, of much else in American constitutional theory. It lies at the back of everything from the Kentucky Resolutions to the Slaughterhouse Cases, and it is a real shame that it is not well enough understood. It is somewhat misleading to say that recent federalism cases �echo some of the arguments made by Jefferson Davis in support of secession.� In fact, the opposite is true. There is much thorough good sense in these cases that shows that at least some on the Supreme Court really understand where American sovereignty resides�that is, in the federal government primarily, and only secondarily in the states, in those cases reserved by the Tenth Amendment or not delegated in Article I section 8. (On the other hand, the Court�s continuing endorsement of The Civil Rights Cases suggests there is still some progress to be made on this head.) But it is immensely gratifying to encounter Justice Kennedy�s concurrence in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), which understands the constitutional design with excellent accuracy.
�The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution�establish[ed] two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it�.
�A distinctive character of the National Government, the mark of its legitimacy, is that it owes its existence to the act of the whole people who created it� The Court confirmed this principle in McCulloch v. Maryland, 4 Wheat. 316, 404-405 (1819), when it said, �The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.� The same theory led us to observe as follows in Ex parte Yarbrough, 110 U.S. 651, 666 (1884): �In a republican government, like ours, . . . political power is reposed in representatives of the entire body of the people.�
�In one sense it is true that �the people of each State retained their separate political identities�.� [But t]he political identity of the entire people of the�though limited as to its objects�is and must be controlled by the people without collateral interference by the States.�
That�s exactly right, and the holdings of cases like Lopez, Morrison, and New York v. United States are, contrary to the suggestion noted above, entirely consistent with the correct understanding of divided sovereignty. The problems are that this return to the correct understanding of sovereignty has not gone hand-in-hand�as it absolutely must�with 1) a revived power to enforce the Fourteenth Amendment (which means overturning Slaughterhouse) and 2) a return to the strict construction of federal power as granted by Article I section 8.
More on this in my article forthcoming in the November issue of Liberty.
It may be esoteric, but let nobody make the mistake of thinking that it is unimportant. That is the central question in any serious analysis of the Civil War, and indeed, of much else in American constitutional theory. It lies at the back of everything from the Kentucky Resolutions to the Slaughterhouse Cases, and it is a real shame that it is not well enough understood. It is somewhat misleading to say that recent federalism cases �echo some of the arguments made by Jefferson Davis in support of secession.� In fact, the opposite is true. There is much thorough good sense in these cases that shows that at least some on the Supreme Court really understand where American sovereignty resides�that is, in the federal government primarily, and only secondarily in the states, in those cases reserved by the Tenth Amendment or not delegated in Article I section 8. (On the other hand, the Court�s continuing endorsement of The Civil Rights Cases suggests there is still some progress to be made on this head.) But it is immensely gratifying to encounter Justice Kennedy�s concurrence in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), which understands the constitutional design with excellent accuracy.
�The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution�establish[ed] two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it�.
�A distinctive character of the National Government, the mark of its legitimacy, is that it owes its existence to the act of the whole people who created it� The Court confirmed this principle in McCulloch v. Maryland, 4 Wheat. 316, 404-405 (1819), when it said, �The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.� The same theory led us to observe as follows in Ex parte Yarbrough, 110 U.S. 651, 666 (1884): �In a republican government, like ours, . . . political power is reposed in representatives of the entire body of the people.�
�In one sense it is true that �the people of each State retained their separate political identities�.� [But t]he political identity of the entire people of the�though limited as to its objects�is and must be controlled by the people without collateral interference by the States.�
That�s exactly right, and the holdings of cases like Lopez, Morrison, and New York v. United States are, contrary to the suggestion noted above, entirely consistent with the correct understanding of divided sovereignty. The problems are that this return to the correct understanding of sovereignty has not gone hand-in-hand�as it absolutely must�with 1) a revived power to enforce the Fourteenth Amendment (which means overturning Slaughterhouse) and 2) a return to the strict construction of federal power as granted by Article I section 8.
More on this in my article forthcoming in the November issue of Liberty.
