Archive for the 'Constitutional Law' Category

Some of the Colorado Supreme Court’s Mistakes in the Douglas County School Choice Case

Posted by on Oct 22 2015 | Constitutional Law, First Amendment, school choice

As people who follow education reform already know, the Colorado Supreme Court recently struck down the Douglas County school board’s school choice program. It did so based on Article IX, Section 7 of the state constitution. This is sometimes called Colorado’s “Blaine Amendment,” although that phrase is technically a misnomer.

Actually, the Blaine Amendment was an 1875 proposal to amend the U.S. Constitution. The amendment was promoted by James G. Blaine (1830-1893), who served as Speaker of the U.S. House of Representatives (1869-75), Senator from Maine (1876-1881), the 1884 Republican nominee for President against Democrat Grover Cleveland, and Secretary of State (1881 and again, 1889-92).

When Blaine was politically active, there was strong anti-Catholic sentiment in America, largely due to animus against mostly-Catholic immigrants from Ireland and Italy. Blaine’s mother was Catholic, which might have rendered him politically suspect to many. So to improve his political viability, he promoted his amendment to ensure that state money never flowed to Catholic schools.

Blaine’s amendment didn’t pass, but he and others who shared his bias used their political clout in Congress to require new states to place similar measures in their own state constitutions. Technically these provisions are not amendments, but parts of their original documents.

Congress passed Colorado’s enabling act (law authorizing statehood) in 1875. Colorado entered the Union the following year. The people of Colorado knew that Blaine and his allies would review their proposed state constitution, and that if Blaine & Co. didn’t like what they saw they might block Colorado’s admission as a state.

The drafters of the Colorado constitution therefore inserted Article XI, Section 7:

Neither the general assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or monies whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever . . .

The term “sectarian” was primarily a code word for “Catholic,” although as explained below it could refer to any unpopular religious denomination. “Sectarian” did not include inter-denominational Protestantism, which then dominated American public schools.

If you read Article XI, Section 7 carefully, you realize that it cannot mean what it literally says. Literally read, it would render it unconstitutional for a city fire department to extinguish a blaze at a Catholic church. Many “anti-sectarian” provisions in other state constitutions present the same difficulty, so state courts have had to interpret them.

One way courts do so is to divide state assistance into three categories: (1) direct, (2) indirect, and (3) incidental. Direct aid is a grant program from the state to a school. An example of indirect aid is a voucher plan, such as the federal Pell Grant program for higher education. It is designed to benefit students, but the government sends money directly to the school chosen by the student or family. An illustration of incidental aid is the fire department scenario. Another example comes from a Montana case where that state’s highest court upheld a program that reimbursed expenses for a mother using a church adoption agency. The state paid the money to the mother, not to the agency.

Courts in Blaine states generally invalidate programs of direct aid to “sectarian” institutions. They sustain incidental aid. Opinions are split on indirect aid.

The Colorado decision is troubling for several reasons. Here are three that I don’t think have been sufficiently discussed:

First: The majority held that the Blaine provision did not violate the First Amendment’s Establishment Clause because the word “sectarian” was merely synonymous with “religious.” That is, the provision did not single out any particular religion or religions for discriminatory treatment. Incredibly, the majority’s sole source for treating “sectarian” as a synonym for “religious” was a law dictionary published—not in the 19th century when the Colorado constitution was adopted—but in 2014!

Nineteenth century dictionaries tell a very different story. A quick Internet search yielded three of them, and they all defined “sectarian” in a way that disparaged minority religions compared to others. Here are their definitions:

Webster (1828): “SECTARIAN, adjective. . . . Pertaining to a sect or sects; as sectarian principles or prejudices. . . . SECTARIAN, noun. One of a sect; one of a party in religion which has separated itself from the established church, or which holds tenets different from those of the prevailing denomination in a kingdom or state.”

Webster & Walker (1864) “adj: “Pertaining or peculiar to a sect. n. One of a sect, or one devoted to the interest of a sect; one of a party in religion which has separated itself from the established church. See Heretic.

Webster’s Academic Dictionary (1895): “Pertaining to a sect or to sects; bigotted attachedly to the tenets of a denomination. n. One of a sect.”

Obviously, the word “sectarian” in an 1876 document doesn’t mean merely “religious.” As the definitions suggest, it has connotations of “prejudice,” “bigot,” and “heretic.”

Under modern U.S. Supreme Court doctrine, this official disparagement of some religions as compared to others is a clear violation of the Establishment Clause.

Second: The Colorado court’s majority relied heavily on an earlier decision, Americans United for Separation of Church and State v. State. That holding was based on an inquiry into how “pervasively sectarian” funding recipients were. Yet later case authority holds that the approach in Americans United—advantaging some institutions because they are less religious than others—itself violates the Establishment Clause.

Third: The court treated the Douglas County program as a voucher plan. It had some justification for doing so, because even its friends sometimes refer to it as such. But in fact, the Douglas Count program is not a voucher plan. The school district does not write the check directly to the school of choice, but to the parent. The parent then independently endorses the check to the school. One can argue about whether this difference is sufficient to render the program one of “incidental” rather than “indirect” assistance. But the majority did not even address the issue.

There were some shortcomings in the dissent, also. It failed to reference any 19th century dictionaries, for example; and it failed to distinguish incidental from indirect aid.

Keep tuned: This case is going to the U.S. Supreme Court, so we have not yet heard the last word.

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Amicus filed in the TABOR case Kerr v. Hickenlooper

Posted by on Nov 21 2014 | Constitutional Law, Dave Kopel

The Independence Institute, Cato Institute, and Reason Foundation have filed an amicus brief in support of the SCt cert petition in Kerr v. Hickenlooper. Primary and Cato Authors: Ilya Shapiro, Julio Colomba, David B. Kopel, Manuel S. Klausner. Nov. 20, 2014.

Synopsis of the amicus brief from Cato’s Ilya Shapiro:

Not many people know that there’s a clause in the Constitution that charges Congress with guaranteeing every state a “republican form of government.”  What even fewer people are aware of is exactly what that means. Historically, the Guarantee Clause is considered to have been a measure the Framers included to ensure that state governments of the states—which used to have far greater autonomy—didn’t devolve into monarchies or other despotic forms. But the clause’s legal effect has never been fully fleshed out. Not that there haven’t been opportunities; claims based on the Guarantee Clause are peppered throughout U.S. history. Courts have typically disposed of them by invoking the political question doctrine, which they use to avoid deciding an issue they believe is more appropriately left to the elected branches. Since there’s no legally binding definition of “republican,” a court applying the Guarantee Clause has little to work with, also contributing to the tendency to treat such cases as non-justiciable. Accordingly, when a group of legislators and citizens groups supporting big government banded together to attack Colorado’s Taxpayer Bill of Rights (TABOR) based on a Guarantee Clause claim, it seemed like a longshot. Their claim was that the state no longer had a republican form of government because the TABOR—a voter-approved state constitutional amendment—restricts the legislature’s ability to raise taxes without approval from the people of Colorado. Colorado’s (Democratic) governor, defending the state’s constitution, moved to dismiss the case in federal district court, but, surprisingly, lost the motion. Even more surprisingly, a panel of the U.S. Court of Appeals for the Tenth Circuit affirmed that denial, which meant that the plaintiffs’ claims could go to trial and jeopardize the continued existence of the state’s popular anti-tax measure. Colorado has one more chance, however, to prevent poorly constructed Guarantee Clause claims from being heard in federal courts and thus jeopardizing the dozens of state constitutional measures that use popular input: the Supreme Court. Governor Hickenlooper has filed a petition for certiorari requesting that the Supreme Court, among other things, put to bed the erroneous notion that elements of direct popular participation and direct democracy can’t exist in a republican government. Joined by the Independence Institute, Reason Foundation, and Individual Rights Foundation, Cato has filed a brief supporting Colorado’s petition. We argue that the Court should hear the case so it can inform the lower courts that pretextual Guarantee Clause claims don’t belong in federal courts.  We give three reasons for this position. First, the plaintiffs’ complaint fails to provide a court with legal standards coherent enough to decide the case under the Guarantee Clause. Second, under Supreme Court precedent, the idea that initiatives and referenda are incompatible with republican government was resolved (and rejected) when Congress admitted states that used these popular procedures into the union. Third, even a brief look at the history of the Founding Era’s understanding of the words “republic” and “republican” dispels the myth on which the plaintiffs base their claim: that direct popular participation is incompatible with the republican form. Our brief provides that historical context. In sum, the suggestion that the Guarantee Clause—meant to ensure that state governments would remain governments “of the people” and wouldn’t revert to despotic monarchies—could be used to wrest greater control of the taxing power from the people makes the plaintiffs’ claims risible. The Supreme Court should take this opportunity to put an end to this laughable case.

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IITV: Why is Latin so important for Constitutional studies?

Posted by on Oct 01 2014 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, U.S. Constitution, Video

In the latest episode of IITV, our constitution scholar Rob Natelson sits down with host Justin Longo to discuss why learning Latin (the “dead” language) is so important for fully understanding our nation’s founding and the Constitution.

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VIDEO: Institute for Justice’s Clark Neily

Posted by on Apr 23 2014 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Events, U.S. Constitution

The Institute for Justice (IJ) fights for the little guy. IJ has a great track record of standing up to government when they refuse the right to earn a living here in the land of opportunity. Clark Neily is a senior attorney for IJ and has been on the front lines fighting for basic economic freedoms that Americans are promised in our constitution. As a result, he’s seen how our courts have failed in protecting our freedoms. In this speech given at the Independence Institute offices on April 16th, Clark discusses his new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.

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UPDATED! Article V Symposium featuring Rob Natelson

Posted by on Apr 09 2014 | Article V, Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, U.S. Constitution, Video

The other day I posted 4 of the 7 videos of the Article V Symposium that Rob Natelson moderated/MC’d. Below you’ll find the 3 missing videos for the whole collection!

Here are Rob’s opening remarks (8 minutes)

Author Bob Berry outlines several amendment ideas (20 minutes)

Michael Farris’ remarks (17 minutes)

Here’s the roundtable discussion (48 minutes)

Senator Kevin Lundberg and Representative Lori Saine’s resolution (13 minutes)

Questions and Answers (33 minutes)

Here’s Mark Meckler’s closing comments (11 minutes)

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Article V Symposium featuring Constitutional Scholar Rob Natelson

Posted by on Apr 07 2014 | Article V, Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, U.S. Constitution

Our senior fellow in Constitutional Jurisprudence Rob Natelson was asked to be the moderator for this Article V “Convention for Proposing Amendments” symposium. Below you’ll find Rob’s remarks and the rest of the symposium for your viewing pleasure.

Here are Rob’s opening remarks (8 minutes)

Author Bob Berry outlines several amendment ideas (20 minutes)

Here’s the roundtable discussion (48 minutes)

Here’s Mark Meckler’s closing comments (11 minutes)

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The Lamp of Experience: Constitutional Amendments Work

Posted by on Mar 09 2014 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Fourth Amendment, Freedom of Speech, History, Natelson Rob', Rob Natelson, U.S. Constitution

(This article originally appeared in the American Thinker.)

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:

* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.

In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:

* We adopted the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to correct state abuses of power. All of these are in substantially full effect.

* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.

* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.

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A New Triumph for the Right to Keep and Bear Arms (and for II’s Dave Kopel)

Posted by on Feb 14 2014 | Constitutional History, Constitutional Law, Dave Kopel, guns, Kopel Dave, Natelson Rob', Rob Natelson, Second Amendment, U.S. Constitution

A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible.

California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had to demonstrate “good cause”—and fear for one’s personal safety was not sufficient to show “good cause.” The effect of the statute was to allow the local sheriff to deny the right to bear arms to all but a favored few.

On February 13, the U.S. Court of Appeals for the Ninth Circuit (the largest of the nation’s federal court of appeals districts) issued Peruta v. County of San Diego. It held that the California statute violated the Second Amendment. In doing so, the court cited one of Dave Kopel’s articles. But that citation went nowhere near showing the extent of his influence.

To clarify the historical understanding of the term “bear arms,” the Court spent much of its opinion citing and discussing obscure 19th century cases and commentaries on the right to keep and bear arms. It was Dave Kopel who first re-introduced these materials to public notice.

In 1998, Dave wrote an article called The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359. This was a massive compendium of cases, commentaries, and other materials. (By “massive,” I mean 188 pages, roughly three times the size of the typical law journal article.)

This article placed into the legal databases for the first time the full story of how the public viewed the Second Amendment during the century after the Constitution was ratified. By collecting and publishing this material, Dave made the collection readily accessible to later commentators, who built on his work. He also thereby made this material available to the courts.

The Court of Appeals cited Dave’s article in Peruta, but didn’t fully explain how that contribution made possible much of the later work that the court also cited. Pioneers don’t always get the credit they deserve.

This incident is only the latest example of how II, although a Colorado think tank, also advances freedom nationally and internationally.

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Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

Posted by on Jan 01 2014 | congress, Constitutional History, Constitutional Law, Economics, federalism, Growth of Government, Health Care, Natelson Rob', obamacare, Op-eds, Rob Natelson, supreme court, Tenth Amendment, U.S. Constitution

When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

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How a Conspiracy Cracked a Monopoly

Posted by on Dec 01 2013 | Constitutional Law, Constitutional Theory, federalism, Health Care, health control law, Individual Mandate, Internet, Law schools, Legal professor, Natelson Rob', obamacare, Popular Constitutionalism, Rob Natelson, Spending Clause, supreme court, Taxing and Spending Clause, Tenth Amendment, U.S. Constitution

Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.

This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.

The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago—and most notably Harvard and Yale.

Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.

The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school. My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.

When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.

Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.

At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.

A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.

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