Today is the commemoration of Bill of Rights Day. My colleague Tim Lynch says the Third Amendment safeguard against troop-quartering “is one of the few that is in fine shape.”
No, the Constitution’s Article 4, Section 4 “Republican form of government” clause doesn’t forbid the voters of Colorado from enacting a ballot measure (the “Taxpayer Bill of Rights,” or TABOR) that bars representatives from raising taxes without permission of a popular plebiscite [Ilya Shapiro and Julio Colomba, Cato, SCOTUSBlog, earlier]
On Monday I moderated a panel at Cato on Damon Root’s splendid new book on the long debate over judicial activism from the Civil War to the present (blurbs). Commenting were prominent legal journalist Jeffrey Rosen, president of the National Constitution Center in Philadelphia, and Roger Pilon, director of Cato’s Center for Constitutional Studies, whose work figures prominently in the book. From the description:
What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it.
If you’re in D.C., RSVP and register for Cato’s luncheon event on the publication of Damon Root’s Overruled: The Long War for Control of the U.S. Supreme Court. Description:
Featuring the author Damon Root, Senior Editor, Reason magazine and Reason.com; with comments by Jeffrey Rosen, Professor of Law, George Washington University, and President & CEO, National Constitution Center; and Roger Pilon, Vice President for Legal Affairs, Cato Institute, and Director, Cato Center for Constitutional Studies; moderated by Walter Olson, Senior Fellow, Cato Institute.
What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it. Please join us for a refreshing account of this recent history.
- Sugar, tea, fish and game, public houses: food freedom grievances helped fuel America’s revolution against Britain [Baylen Linnekin]
- Colorado, Oregon voters consider GMO labeling, which “likely will mislead more than inform.” [David Orentlicher, Health Law Prof and more] “Say No to GMO Labeling, Even If It Feels Terrible” [alt-weekly Portland Mercury; earlier on GMOs]
- “White House Boosts Fictional ‘Food Addiction’ Concept to School Kids” [Glenn Lammi, WLF]
- D.C. Circuit: immigration law doesn’t block specialized Brazilian steakhouse chefs from coming to U.S. [Joe Palazzolo, WSJ Law Blog]
- “Why Is the USDA Buying Submachine Guns?” [Modern Farmer]
- Little evidence new FDA food labeling rules will improve health [Robert Scharff and Sherzod Abdukadirov/Regulation mag, more] Flaws of agency’s “added sugar” labeling proposal [Glenn Lammi, WLF]
- California tries to dictate standards for raising animals in other states; do you think the Constitution might have something to say about that? [Linnekin]
According to an international study, nations that announce a constitutional right to education have on average a lower caliber of schooling: “the relation between the strength of constitutional educational rights and the quality of education is negative and statistically significant.” [Sebastian Edwards and Alvaro Garcia Marin, National Bureau of Economic Research via Tyler Cowen]
George Leef reviews a new book by John Compton, political scientist at Chapman University, on how evangelical anti-vice campaigns against gambling, liquor and other social ills helped undermine the Constitution’s curbs on centralized power, paving the way for later Progressive gains.
The tension between moral reformers who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry) and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.
The book shows that by the time the New Deal’s aggressive expansions of federal power came before the Supreme Court, its earlier decisions in favor of approving legislation against liquor and lotteries had so undermined the defenses of property rights, contract, and federalism that it was nearly inevitable that the Court would cave in.
For example, when the Court decided the 1934 case of Blaisdell v. Savings and Loan, gutting the former understanding of the impairment of contracts clause, Chief Justice Charles Evans Hughes cited an earlier decision on interstate shipment of lottery tickets which had acquiesced in a new extension of the police power, on the grounds that a previously sacrosanct constitutional barrier could be “qualified” when a state needed to “safeguard the interests of its people.” [Forbes]
To the now-famous Obama “pen and phone” formula for circumventing Congress to change the law through executive fiat, columnist Debra Saunders suggests adding “…and teleprompter,” since blaming the opposition seems to be an integral part of the tactic. The President’s flippant, confrontational “so sue me” remark illustrates the problem: even when the executive decrees are not at war with the rule of law, as they often are, they often breach the spirit of comity between the branches.
As Saunders notes in quoting me, there are areas where I find some of the administration’s underlying policy objectives to be sympathetic or understandable — for example, in the effort to adjust banking regulation to accommodate legal marijuana commerce in Washington and Colorado. But “understandably motivated” does not equal “lawful.” On top of all that, many of the executive initiatives, typified by those on labor issues, are truly horrible as policy.
None of which is to endorse proposals to head off the problem by having Congress sue the President. Those will often collide with the Framers’ contemplated role of the courts as adjudicating true cases or controversies arising between parties, not umpiring every power dispute between the other two branches (plus: follow-up Saunders blog post).