Balkinization: The right book at the right time: Richard Albert on constitutional "adaptation"

The right book at the right time: Richard Albert on constitutional "adaptation"

Sandy Levinson

For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).

Almost 125 years ago, the great British scholar Albert Venn Dicey wrote that "the plain truth is that a thinker who explains how constitutions are amended inevitably touches upon one of the central points of constitutional law." He was correct, but it is a sad truth that such efforts at explanation have not, with a few exceptions noted below, been a major part of the scholarly agenda within the American legal academy. But now we have Richard Albert’s truly landmark book Constitutional Amendments: Making, Breaking, and Changing Constitutions, which is truly a great leap forward in the inquiry suggested by Dicey. The endorsements on the back jacket, all from truly leading figures in the fields of American and comparative constitutional law are correct to include terms like “provides essential insight,” “magnificent,” “masterly,” erudite,” and “exceptionally important.” The book deserves, and no doubt will receive, literally world-wide attention given the scope of Albert’s interests and references.

It is not, of course, that the topic was completely ignored within the United States. Indeed, the first casebooks in constitutional law, at the turn of the 20^th century, began with treatments of constitutional amendment inasmuch as their authors correctly recognized, as John Marshall put it in McCulloch v. Maryland, that a constitution, if it was “to endure,” must be constantly “adapted to the various crises of human affairs.” It was assumed that such adaptation would invoke Article V at the national level. Within American states, though, adaptation frequently took the form of drafting brand new constitutions in state constitutional conventions, such as the New York constitutional convention of 1846. Controlled by so-called “barnburners,” it was especially important inasmuch as its provision that state judges be elected rather than appointed by governors became the template for most subsequent state conventions.

Only the U.S Constitution within the United States has remained largely impervious to fundamental revision. Albert importantly points out that infrequency with which the U.S. Constitution has been amended makes it an outlier not only among the world at large, but also within the United States itself. American state constitutions have, he informs us, been amended more than 7,500 times, as against the total of 27 numbered amendments added to the U.S. Constitution since 1787 (and only seventeen since 1791). The 1996 constitution of Equatorial Guinea has already been amended “at least twenty-three times” (thus capturing the difficulty at times of actually being able to decide what counts as a constitutional amendment), while the 1991 constitution of Gabon received at least seventy-nine amendments. Not surprisingly, one of his early chapter addresses the tension between “rigidity” and “flexibility” with regard to constitutional amendment and replacement. I often tell my students that my favorite political philosopher is Goldilocks, for one must in fact strain to find the “just right” frequency of amendment and, just as importantly, process that will produce the desired rate of amendment.

Although there certainly exist within the corpus of American legal history a plethora of books particularly on the first ten amendments that came to be known collectively as The Bill of Rights (though as Gerard Magliocca well argues, that really happened only in the 20^th century), and on the set of three “Reconstruction Amendments,” there is relatively little systematic inquiry into the general sets of issues surrounding the concept or process of constitutional amendment The interest exhibited by early casebook editors in the concept and procedures of amendment dissipated, particularly after World War II. Part of the reason may have been the optimistic belief that “the New Deal revolution” enhancing national power had basically solved any problems in the constitutional system under which the United States was governed. Another reason undoubtedly lay in the fact that the Constitution became defined principally by reference to the rights it protected, and the dominantly liberal legal academy constructed a vision of the Supreme Court as a benevolent “continuing constitutional convention” or Dworkinian "forum of pinciple" devoted to “taking rights seriously.” This made talk of formal constitutional amendment sound beside the point. Even students of comparative constitutionalism tended to adopt the rights-oriented conception of constitutionalism, though many, to be sure, were attentive to the arguable importance of formal structures. So there are many studies, largely inconclusive, about the relative importance of presidentlalism or parliamentarianism, methods of judicial selection, bicameralism, and the like. Methods of amendment drew a bit of attention, but they scarcely took pride of place.

An additional reason, though, particularly in the United States, is that some of those most interested in amendment as a concept adopted decidedly informal notions of the term, as with Bruce Ackerman’s deservedly influential corpus (which has much influenced me). "Constitutional moments" replaced recourse to the formalities of Article V, most tellingly with the New Deal. Others, like David Strauss, argued that amendments were, empirically, remarkably unimportant in explaining constitutional change in the United States; their function was basically to put in print, as it were, changes that had already taken place in the wider polity. They constituted icing on the cake more than the substance of the cake itself. Strauss's main point was to reassure readers that it really didn’t matter all that much that Article V made the United States Constitution so notably difficult to amend.

Political scientist Donald Lutz determined in 1994 that ours was the second most difficult-to-amend constitution in the world, the champion being the constitution of the now-defunct Yugoslavia. Albert has some very interesting things to say about how to measure the actualities of difficulty of amendment. There is a temptation to treat the subject in terms of an ahistorical set of rules and, therefore, to pay insufficient attention to the importance of concrete political circumstances at particular times. Rules may operate acceptably under one set of circumstances, but then turn out to be genuine roadblocks at other times. Aziz Huq has argued that it was actually functional for the 1787 Constitution to be so difficult to amend at the start inasmuch as that would necessarily purchase a certain amount of time for the ratifying states to become used to the enterprise and to accept its way of doing things. Moreover, as of fifteen years after George Washington’s inauguration in 1789, ratification, might believe that Article V had achieved some kind of “Goldilocks” point with regard to the ease or rigor of constitutional amendment. Congress had sent out a bundle of twelve amendments in 1789, only ten of which were ratified at the time. The original second amendment, dealing with congressional salaries, was declared part of the Constitution in 1992 (!) as the result of the joint facts that Congress had not placed a time limit on ratification and the zealous efforts of Gregory Watson, who argued as an undergraduate at the University of Texas that the amendment was still “on the table” and made it his ultimately successful project to gain what were the now-required 38 ratifications instead of the ten that would have sufficed in 1791. (For the record, I wrote an essay suggesting that there was something weird, if not outright crazy, about treating this 203-year-old proposal as still eligible for ratification, but since it is almost certainly has no operative importance, Congress accepted the declaration by the Archivist of the United States that it had indeed been added to the text.)

Just as importantly, perhaps, states perturbed by the undoubtedly correct decision by the Supreme Court in Chisholm v. Georgia (1793) that states were subject to suit in federal courts—just read the text of Article III—were successful in gaining proposal and ratification of the Eleventh Amendment that authorized them to stiff their out-of-state creditors by depriving them of their day in court. And then there was the fiasco of the 1800 election, when Democratic-Republicans proved incapable of making sure that Thomas Jefferson would receive one more vote than his presumptive running mate, Aaron Burr, thereby tempting Burr to try to seize the brass ring himself. Jefferson, of course, was ultimately selected by the House of Representatives on the 36^th ballot, but only after the governors of Virginia and Pennsylvania seemed to threaten to send their state militias to the new capital city of Washington. All of this led to the proposal and ratification of the Twelfth Amendment. It is that Amendment, and that alone, that implicitly recognizes the defeat of the Framers’ desire to forestall the rise of political parties and the concomitant necessity to take their existence into account.

In any event, as of the twentieth anniversary of the Philadelphia gathering in 1807, one might say that the Constitution undoubtedly had its share of imperfections—to err, of course, is only human. But, fortunately, Article V provided a way to rectify them. Albert’s emphasis on the importance of placing rules within concrete contexts is an important corrective to the tendency I have myself sometimes succumbed to of looking at constitutional structures too abstractly. That being said, it is impossible to gainsay today that Article V does place severe obstacles in the way of achieving needed constitutional reform.

Putting the bizarre 27^th Amendment to one side, there has been no successful effort to amend the Constitution since 1971, with the 26^th Amendment. The ERA, of course, though supported by a majority of the states with a majority of the population, failed to gain the requisite 38 states within the ten years allotted by Congress to ratify it. There are, as many readers of Balkinization are well aware, efforts to declare that, like the 27^th Amendment, the ERA is actually still available for ratification (perhaps because the Constitution does not specify that Congress has the power to limit the time available for ratification). Even if the ERA were, quite implausibly, to be declared part of the Constitution, almost no serious lawyer believes it would make a substantial difference to the actualities of American law. David Strauss would surely be vindicated. It would serve basically as a what I used to describe to my students as “a guide for the dimwitted” or, perhaps, the truly malevolent, judges who did not realize how much of the ERA program has already been incorporated into now completely conventional understandings of the Fourteenth Amendment.

Moreover, if one believes, as I strongly do, that the structural features of the Constitution are at least, if not in fact more, important than the rights provisions, then Ackerman and Strauss have almost nothing truly useful to say. The New Deal might have generated all sorts of new understandings as to the legitimate power of Congress. And Albert seems to agree with Ackerman that these operate as de facto “amendments” rather than, as claimed by their apologists at the time and afterward, as correct understandings of the original (or, at least, Marshallian) Constitution that had been suppressed by ideologically zealous conservative judges after the Civil War through Roosevelt’s first term. But what prevents the modern Congress from passing programs truly responsive to our increasingly desperate situation is not only “polarization,” but also the consequences of having our particular bi-cameral system and the remarkably anti-majoritarian (and, I believe, illegitimate) United States Senate that make mockeries of the notion of the United States as a one-person/one-vote democracy. And the so-called Great Compromise establishing equality of voting power in the Senate was in effect made unamendable. Article V selects that out as requiring basically unanimous consent of all the states to change that rule, and hell would probably freeze over before Wyoming or Vermont would assent to loss of its grotesquely disproportionate power in the Senate. As readers of Balkinization know, I was upset at Bernie Sanders through two election cycles inasmuch as the self-described “revolutionary,” who correctly complained of a “rigged” political system, never once addressed the possibility that the United States Constitution itself may be in need of significant change if the undoubtedly constitutional programs that he was presenting were to have even the slightest chance of becoming law. Perhaps he was constrained in his revolutionary aspirations by the fact that he and his state of Vermont are direct beneficiaries of the "evil" that Madison recognized.

It helps that Albert is a Canadian, which means by definition that he was not socialized to believe that we in the United States necessarily had an unassailable constitution. He offers many illuminating observations about Canada, including the fact that the Canadian Supreme Court in a notable case discussed the possibility that the rest of the country might legitimately recognize Quebec’s secession through a constitutional amendment. One might contrast this, incidentally, with constitutions such as Portugal's or Turkey’s that seem to suggest that any such amendment is would be unconstitutional given the priority assigned to preserving the existing territorial state. Not surprisingly, Albert has a full chapter on the notion of the “unconstitutional constitutional amendment,” a topic of increasing interest around the world—and the subject of an excellent recent full-scale book by the Israeli lawyer Yaniv Roznai. But the concept is basically unknown to most Americans, who are inclined to treat the notion of a oxymoron, a contradiction in terms. One reason for the fear that many express about having a new constitutional convention in this country—which I have been promoting now for many years—is that it could become a “runaway convention” without limits and amend the Constitution in all sorts of unacceptable ways. One way to guard against that is by adopting the notion that there are, as in India, certain “basic” features of the Constitution that render their change, without a full-scale revolution, unconstitutional. The German Constitution notably declares in its so-called "eternity clause" that two essential features, its commitment to the value of “dignity” and to federalism as a way of dividing power in Germany, are unamendable.

So Albert’s book should obviously interest every scholar, who will rightly be dazzled by the extent of his knowledge of amendment systems around the world. But one should not believe that the topic of his book is merely “academic,” n the pejorative sense that identifies subject of “academic” interest as therefore irrelevant to ordinary folk. Fortunately, Albert has a fluid writing style that makes his work accessible to general readers. But, beyond that, the questions he raises should interest the laity as much as the professional. Perhaps filling the role of clarifying the mind that Samuel Johnson assigned to being aware that one would die in the morning, Covid-19, and the glaring weaknesses it has revealed in the basic structures of American government, may encourage more Americans to engage in the first serious discussion in over a century—since the election of 1912—of the possibility that serious constitutional reform is desirable. But perhaps it is unattainable under the current strictures of Article V. Are we really trapped inside an iron cage, doomed to our fate because of a decision made in 1787 (that arguably made sense at the time)? Any reflection on such questions confirms both the validity of Dicey's observation about the importance of studying amendment procedures and and the desirability of carefully reading Constitutional Amendments. Albert establishes that there are indeed a multiplicity of that various constitutions allow "adaptation" to the what Marshall called “the crises of human affairs” or what Oliver Wendell Holmes more simply described as “the felt necessities of the time.”

Posted 9:30 AM by Sandy Levinson [link]

Comments:

"Even if the ERA were, quite implausibly, to be declared part of the Constitution, almost no serious lawyer believes it would make a substantial difference to the actualities of American law."

I think this more or less identifies the reason for the lack of amendments over the last century, which you appear to be dancing around a bit. Since the early New Deal, Congress has not needed amendments to "change" the Constitution. It merely submits any desired 'amendments' to the perpetual 9 man Constitutional convention, (In the form of violations of the Constitution as formally amended.) which almost always assents to them by changing its 'interpretation' of the unamended document.

From the perspective of Congress, this process is vastly superior to Article V: Amendments need not be formally drafted. They don't require supermajority votes of both chambers. And, best of all, the states are permitted no opportunity to refuse to ratify!

The ERA will not be submitted to the states again, because the courts have already imposed it on a nation that refused to ratify it. THAT is why it would not make a substantial difference if it were declared ratified.

The only way you're going to see formal amendments again in the US, is if either the judiciary stop 'amending' the Constitution in this way, or if the states finally manage to force a constitutional convention.

Not because Article V is impossibly hard, but because judicial amendment is now so much easier.

# posted by

Brett : 10:15 AM

The progressive movement to expand government power through the importation of socialist and fascist policy was never popular enough to amend the Constitution, so progressive government simply ignored the document to impose their preferred policies, then progressive courts rewrote or erased the Constitution's limits to rubber stamp those policies. Using this two step, progressives have effectively amended our Constitution dozens of times over the past century.

# posted by

Bart DePalma : 10:17 AM

Since the early New Deal, Congress has not needed amendments to "change" the Constitution.

When the states and federal government, pre-New Deal, denied black people basic equal protection and the Supreme Court"almost always assented," what is the difference here specifically? Before and after the early New Deal, there were amendments to the Constitution. The dispute here is a confused analysis of the specific results.

The ERA will not be submitted to the states again, because the courts have already imposed it on a nation that refused to ratify it. THAT is why it would not make a substantial difference if it were declared ratified.

The ERA very well might require a stricter rule than in place now. Plus, for those concerned about this sort of thing, it was clearly hold in the text of the Constitution what is protected. This would be significant for many people in and out of government today. Also, its ratification would on original understanding grounds might suggest that current understanding is the appropriate way to apply the text. Thus, it would have a broad meaning to "sex," again significant for many of the judges out there who would be applying the language.

Anyway, if the people refused to ratify the Second Amendment, but over time, case by case, in a span of four decades & not as broad as the text suggests, deemed there being an individual right to own a firearm on other grounds, would that be a problem? For instance, arguing that the Congress doesn't have an enumerated power to deny it or perhaps appealing to the common law right of self-defense. Or some other means.

What if the people -- to "fix" pre-Heller precedents tried but failed to ratify an amendment that specifically, outside of the militia, protected a right to own but failed? For a variety of reasons. Would Heller have been illegitimate?

Not because Article V is impossibly hard, but because judicial amendment is now so much easier.

There was no golden age here, the citation of the New Deal yet again notwithstanding. The Constitution has different types of language. No more than in the past, two senators for each state is the rule. OTOH, unlike in 1904, equal protection does not result in judges determining minimum wage legislation is illegitimate class legislation.

# posted by

Joe : 11:56 AM

Only the U.S Constitution within the United States has remained largely impervious to fundamental revision.

Though I find the application by the first comment confused, there is a kernel of truth there that like water needing to find an outlet, our Constitution has in application significantly changed over the years.

The more "hard wired" provisions have changed over the years repeatedly. Senators are directly elected, a president/vice president "ticket" is basically set up, we went back and forth on alcohol, voting rights changed repeatedly and so forth.

The big moments were hard to come by as seen by the Reconstruction Amendments. And, we can argue that the ability to change is too hard, in part because of structural problems the Constitution makes it harder (not impossibile) to change. Mark Field had spelled out these.

But, the Constitution has a lot of play in the joints. John Marshall, a ratifier, said as much in McCulloch v. Maryland. The 14A in particular, historical research suggests, gave Congress a lot of discretion to apply its terms (second and fifth sections particularly) to judge things based on changing facts and needs. And, things like "equal protection" or even functional things like appointment power etc. is flexible enough to change over time as the document is applied in practice.

This is part of the document too.

# posted by

Joe : 12:03 PM

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# posted by

Mark Field : 12:08 PM

"Even if the ERA were, quite implausibly, to be declared part of the Constitution, almost no serious lawyer believes it would make a substantial difference to the actualities of American law."

Before I even read Brett's comment, I read this sentence and disagreed with it. His comment reinforces the point I intended to make: that there is a project on the political right to undo the New Deal and indeed the 14th Amendment. It's a long term project, but it exists, and all features of the equal rights progress of the past 90 years are even now subject to erosion if not outright repeal (notably, abortion).

The ERA may not seem critical right now because we've grown complacent about those rights. But that success is no reason to give up the very factors which have led to that success. The ERA makes assurance double sure; it puts a roadblock against the project of restoring the white patriarchal "Christian" society that the Right sees as its ideal. We need more such roadblocks, not fewer.

In fact such protections are essential for the very project you want to enact (and which I basically share), namely democratizing the system. Giving greater scope to democracy means that we need to "hardwire" that democracy in order to preserve it into the future, that we need to enforce minority rights precisely so that minorities can participate fully and freely in the democratic process. The ERA is one step toward that goal, but not the only one.

# posted by

Mark Field : 12:11 PM

"His comment reinforces the point I intended to make: that there is a project on the political right to undo the New Deal and indeed the 14th Amendment."

To undo the New Deal, certainly. But the right has no problems with the 14th amendment, as opposed to the half-assed way it's being interpreted. Holding onto the Taney Court's deliberate mooting of the P&I clause, and replacing it with "substantive due process", for instance. Thomas is right on that score, it's long since time that was rectified.

# posted by

Brett : 12:55 PM

Brett, that's all part of the same project. Switching the focus from the due process clause to the P&I clause changes the protections from "persons" to "citizens". And that's even before we get to the very limited way the Court has interpreted "privileges and immunities".

# posted by

Mark Field : 1:04 PM

First, yes, you're right: The P&I clause protects "citizens", while "persons" are only entitled to equal protection and due process. That's the point: You want the rights of a citizen, you need to BE a citizen; Incorporation through substantive due process hollows out citizenship by limiting it to voting rights, and not much more.

And the very limited way the Court has interpreted "privileges and immunities" is exactly the perpetuation of the Slaughterhouse rulings that I object to. That's how the Court rendered the 14th amendment largely moot: By interpreting "privileges and immunities" in a very, very limited way, despite the clear evidence they were to encompass every right a free citizen should expect to exercise, with the rights enumerated in the Bill of Rights as a floor, not a ceiling.

# posted by

Brett : 1:17 PM

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# posted by

Joe : 1:21 PM

I don't think the Court would expand the scope of "privileges and immunities".

The rights of the citizen can be broader than those of "persons", no argument there. But "persons" need protection in fundamental ways (e.g., to vaccines in a pandemic; to trials in criminal cases; and numerous other ways). Switching to the P&I clause would almost certainly eliminate those fundamental rights and leave non-citizens open to abuse.

# posted by

Mark Field : 1:24 PM

The reference to "Taney" sounds like confusion since the Slaughterhouses Cases (a Chase Court opinion though he died shortly after) was referenced.

The "half-assed" comment is amusing -- each side has no problem with lots of constitutional provisions. Their problem is how such and such apply it.

Mark is correct, shades of the income tax amendment, that the ERA would clearly, in red ink, protect something that might not need it (the Income Tax Cases were limited in scope, a 5-4 & already disfavored with many types of income taxes upheld) in theory.

Incorporation through substantive due process hollows out citizenship by limiting it to voting rights, and not much more.

Citizenship still retains importance but due process and equal protection already would protect non-citizens in a broad sense. Residential aliens would have the ability to practice their religion, broadly speak, have basic rights when tried in court etc.

The 14A even after that opinion was not quite "largely moot" but it underlines how the reference to the New Deal was b.s. The Supreme Court long before the New Deal by Brett's own argument gave states and the federal government broad powers they did not by the text of the Fourteenth Amendment (and BOR) have.

Equality and due process also broadly protects persons and for those who care, the backers of the 14A said as much, the question particularly relevant for Asian immigrants among others.

# posted by

Joe : 1:31 PM

Scalia btw ridiculed use of the P/I Clause in McDonald v. Chicago.

There is a limited effort to use that clause though the use of citizens over persons for districting purposes is at times taken on a different track.

And, again, the net result in practice is unclear. It can lead to problems with non-citizens (does a non-citizen here twenty years have less of a right to own a firearm?) and there is some confusion as to residents of territories.

The importance of citizenship was seen in the Hamdi case -- Scalia was concerned with the rights of an American citizen there while much less worried about the habeas rights of non-citizens in Gitmo. But, with equal protection and due process, the line is hazy. Their rights might even grow out of rights of citizens, which except when otherwise warranted, flow to non-citizens. As Justice Kennedy once argued:

"Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it."

https://www.courtlistener.com/opinion/112382/united-states-v-verdugo-urquidez/

# posted by

Joe : 1:44 PM

What Birchers Brett and Bart really object to (to the extent they are actually offering a coherent, honest point, which we have very reason to doubt here), is modernity. The New Deal programs are not 'socialist' and/or 'fascist' they are the type of programs and approach adopted essentially by every modernized, industrial nation. They're like the nostalgic traditionalist who think the purpose of marriage should be and is procreative sex, almost no one agrees with that for a long time and indeed they wouldn't want it to be this way really. They pine for a mythological American economy that didn't ever exist really and to the extent it did everyone who could has walked away from.

Constitutionally, they then object to interpretations that stray from this hoary mythology and allow for modernity. Interestingly, there's rarely a hard and fast textual barrier to reading the constitution to allow for this modern inevitability, the text relied upon usually is quite broad and susceptible to varying interpretations by reasonable people. One man's 'amending via the bench' (which, let's be honest, they're all for when it pleases them) is anothers reasonable disagreeing reading of a purposely broad text.

# posted by

Mista Whiskas : 2:56 PM

Mr. W: The New Deal programs are not 'socialist' and/or 'fascist' they are the type of programs and approach adopted essentially by every modernized, industrial nation.

The NRA and NLRB were borrowed from Italian fascist corporatism.

WPA and CCC were borrowed from Hitler's make work programs.

SS and unemployment insurance were borrowed from Bismarckian "state socialism."

Large parts of the new regulatory state and then the outright WWII government direction of the economy was borrowed from zwangswirtschaft socialism or "war socialism" the Germans employed during WWI and the National Socialists adopted as their base economic system.

Yes, Mr. W, progressives relabeled as liberals were in love with socialism and fascism in general and Germany in particular.

The US was the preeminent and most productive industrialized nation in the world for half a century before the New Deal importation of this socialism and fascism. The former was hardly a prerequisite for the latter.

# posted by

Bart DePalma : 3:14 PM

Bircher Bart's level of reasoning is like someone saying 'the Nazis used tanks in way X, the US soon adopted using tanks in this way, so the US=Nazis.' Again, *every modern industrial nation* has adopted something like the New Deal approaches and programs (just like every modern industrial nation uses tanks in their army).

"The US was the preeminent and most productive industrialized nation in the world for half a century before the New Deal "

This is laughable nonsense. In 1900 40% of Americans lived on actual farms, 60% in rural areas. The nation didn't get to what are standard industrial power metrics until...around the New Deal.

# posted by

Mista Whiskas : 3:22 PM

According to Bart's logic we should never have built the interstate highway system because, see, Hitler built the autobahn.

# posted by

byomtov : 3:38 PM

Mr. W: Bircher Bart's level of reasoning is like someone saying 'the Nazis used tanks in way X, the US soon adopted using tanks in this way, so the US=Nazis.'

This may be the first time you offered a basically correct analogy. The Germans pioneered modern combined arms warfare - the coordination of infantry, armor, artillery and air support. When the US Army copied the Germans pretty damned closely, we employed combined arms warfare. Ditto the New Deal employing socialism and fascism.

Again, *every modern industrial nation* has adopted something like the New Deal approaches and programs

To varying extents, this is true. This does not change the facts the US industrial economy had no need of and the New Deal did indeed import socialism and fascism.

In 1900 40% of Americans lived on actual farms, 60% in rural areas. The nation didn't get to what are standard industrial power metrics until...around the New Deal.

What "standard industrial power metrics" would those be?

Are you claiming these "metrics" were absent under the free market political economy of Coolidge, but suddenly appeared under progressives Hoover/FDR?

This ought to be educational.

# posted by

Bart DePalma : 3:39 PM

byomtov: According to Bart's logic we should never have built the interstate highway system because, see, Hitler built the autobahn.

What?

Hitler was hardly original. The National Socialist employed generation old German zwangswirtschaft socialism.

The fact Hitler employed socialism hardly means that roads are socialist or bad.

# posted by

Bart DePalma : 3:43 PM

Later industrializing countries like the US (which was 60% rural in 1910) did things similar to what earlier industrializing nations (like Germany which was 60% urban in 1910) did before them*. Combine this with the fact every industrialized nation, to this day, also does those things and the conclusion to any non-crazy person is that this is just what modernity looks like. It has nothing to do with 'socialism,' 'fascism,' etc., it's what *modern industrial political economies* just are.

*The US didn't crack 60% urban until...the 1950s.

# posted by

Mista Whiskas : 3:48 PM

# posted by

byomtov : 3:55 PM

" When the US Army copied the Germans pretty damned closely, we employed combined arms warfare. "

It would be idiotic to say 'the US copied 'fascist' military techniques,' because these *just are modern war making techniques* that every modern, industrial military adopted. Likewise, it's silly to say that the many of the modern approaches to central and more active government that *every* modern industrial nation adopted were adoptions of 'fascist' or 'socialist' programs because some nations developing those also called themselves fascist or socialist.

FDR adopted things similar to what Mussolini adopted for the same reason Mussolini adopted them: capitalism was broke, the old classic liberal approach could not handle modern industrial reality, and the other alternatives at the time-communism-seemed equally unworkable.

It's also interesting to note that *if* FDR and Mussolini and every other modern industrialized nation's political economy is 'fascist' it empties that word of any useful meaning, because obviously one has, in the case of FDR and other nations that adopted this approach, no descent into what makes Mussolini's regime deplorable today. So, again, this is like saying 'fascist Germany and Italy embraced driving cars and so did the U.S.,' it's indicating that this element or aspect of Mussolini's regime is simply not definitive.

Remember, Bircher Bart is not a serious person but rather a pure, pathetic propagandist. There's a very real reason why he wants to attach the label 'fascist' to some of FDR's actions and policies. It's because Mussolini and Hitler's 'fascism' is known as awful. But note: they're not known for being awful for these programs! Bircher Bart has always eschewed using terminology that could be precise and intellectually useful and honest and instead uses terms for their rhetorical, emotional resonance, hence 'fascist' for things for which, if that were the extent of 'fascism,' it wouldn't have that very resonance.

# posted by

Mista Whiskas : 3:58 PM

"So somehow these programs are fascist or socialist because they were also adopted by fascist or socialist countries, but building big highways isn't a Nazi program."

It's even better than that. Bircher Bart regularly elides features of fascism that align with his political proclivities and which are much more closely related to the political resonance on which he would like to trade. For example, militarism, xenophobic scapegoating, disdain for democracy, all things that fascists from Franco to Mussolini to Hitler had in common.

# posted by

Mista Whiskas : 4:02 PM

Mr. W:

Urban is not a synonym for industrial. Germany and the rest of Europe is simply crowded and their urban areas were established centuries earlier.

The US was and remained far more industrially advanced than Germany.

Before their industrial revolution hit its stride, the Germans started creating their bureaucracy to better serve and "state socialism" to better keep public order for their authoritarian government. Zwangswirtschaft socialism, where the bureaucracy directs the economy without nationalizing it, was the natural outgrowth of these earlier trends.

Totalitarianism is a more accurate term than "modern" for socialism, fascism, progressivism and all the other isms offering themselves as an alternative to liberal limited government. Indeed, as F.A. Hayek famously observed, totalitarianism was just a road back to serfdom.

# posted by

Bart DePalma : 4:03 PM

"their urban areas were established centuries earlier."

Germany was traditionally very rural, the shift to the cities occurred during Germany's industrial surge around the turn of the century.

"The US was and remained far more industrially advanced than Germany."

There's a reason Bircher Bart offers this bare conclusory statement: because the statistics that people use to measure industrialization typically, things like % urban, % working on farms vs. manufacturing, etc., will not work for his daft idea here.

# posted by

Mista Whiskas : 4:10 PM

Mr. W:

Now you are wondering off your analogy. Combined arms warfare is ancient. Germany simply applied these age old principles to modern machines.

Free markets never "broke." Progressive misdirections of our economy caused the Great Depression (as well as the Great Recession), the progressives used the resulting crisis as a pretext for further misdirections, stagnation and under and unemployment. Partly freeing the economy from these misdirections after WWII and then after the Obama administrations returned growth and employment (at least until the government use the pretext of a severe cold to shutter tens of thousands of businesses and unemploy tens of millions of people).

# posted by

Bart DePalma : 4:12 PM

"Totalitarianism is a more accurate term than "modern" for socialism, fascism, progressivism and all the other isms offering themselves as an alternative to liberal limited government."

Again, this is worse than useless, as has been covered before (but again, Bircher Bart isn't an honest, serious discussant, this is why he simply returns to his propaganda points). It's worse than worthless because 1. many very different societies over space and time get lumped into the ridiculous term 'totalitarian,' societies where many things one might do are unthinkable in the other, and this totally undercuts the use of the term in any serious way and 2. 'classical liberal' governments often used state power in ways far more oppressively than even avowed 'socialist' governments of today.

Again, the term is beyond useless as one of honest, serious discussion in this context. So why does he continue to use it? Why, because it has propagandist value: everyone knows totalitarianism is bad as a matter of political rhetorical resonance.

Bircher Bart talks like a pamphlet.

# posted by

Mista Whiskas : 4:14 PM

"Progressive misdirections of our economy caused the Great Depression..."

More nonsense. The Great Depression was a international event, impacting a myriad number of nations with myriad numbers of ideological and political approaches and leanings.

And notice the classic Austrian cherrypicking 'just so' story approach: economic calamity in a relatively low government polity (the 1920s US)? Well, there was this or that intervention that slipped by in the otherwise low activity polity that *really* caused this. Economic calamity in a more active government polity (the 1930's New Deal)? Well, it was of course all the government intervention!

This is not a serious man.

# posted by

Mista Whiskas : 4:18 PM

This comment has been removed by the author.

# posted by

Mista Whiskas : 4:34 PM

It's always instructive to show how much someone like Bircher Bart is just pulling lazy, uninformed generalizations out of his posterior so casually. It's illustrative of his general approach and thinking process.

Bircher Bart said this:
"Germany and the rest of Europe is simply crowded and their urban areas were established centuries earlier."

In fact, Germany was a very rural place when unification occurred in 1871. Cities of more than 100,000 accounted for 1/20th of the population at that time. Incredibly, by 1910 *1/5* of the population resided in those cities! From 1871 to 1910 the percent of Germans who lived in rural areas dropped *67%!*

What else was occurring at this time? Well, here's a clue. At the time of unification England was outproducing Germany in steel production 2:1. By 1913 Germany was producing more than 2:1 more steel than John Bull. At this time an astounding 60% of German GNP was industry. This at a time when a plurality of Americans were working on literal farms.

# posted by

Mista Whiskas : 4:35 PM

Mr. W:

You are talking out of your rear quarters again.

The German industrial revolution did not start in earnest until around 1890, when the US had overtaken England as the largest and most productive industrial economy in the world. The Germans tried and failed to catch up over the next century.

Germany's movement toward totalitarianism started decades before.

I lived in Germany for three years and never came across a city, town or village established after this time. Most were centuries old, many with the original medieval stone walls.

# posted by

Bart DePalma : 4:51 PM

"What Birchers Brett and Bart really object to (to the extent they are actually offering a coherent, honest point, which we have very reason to doubt here), is modernity."

What I object to is the idea that there's only one possible way of being "modern", and anything goes in achieving it.

I've said this before, and will doubtless say it again: There's a big difference between actually having a big government constitution, and having a small government constitution that you pretend is a big government constitution. And that difference is the sort of people who staff it.

A big government with a big government constitution may be staffed with honest people. May be, it's not guaranteed, but it is at least possible. It can have big government safeguards that really mean something.

But a big government with a small government constitution can not be staffed with honest people. It's simply not possible.

You have to staff it with people who are willing to swear an oath to uphold a small government constitution, and then run a big government. You have to staff the judiciary with judges who are willing to read a small government constitution, and uphold a large government constitution.

You need to staff the whole thing, from top to bottom, with people who are at least adept in doublethink, and more likely just dishonest.

I likely wouldn't have liked it if the New Deal had been accomplished by amendments, if the whole Leviathan we labor under today had been arrived at by legitimate means.

But we'd have been in a much better position than we actually are, if that had been the case.

# posted by

Brett : 4:58 PM

Mr. W:

The Great Depression started in the United States.

We started a cross Atlantic trade war with Europe, harming both sides.

When our farms exporting goods to Europe defaulted on their loans at the same time the progressive Fed was shrinking the money supply to stop an inflation it created in the late 20s, US banks started failing.

Our banking collapse reduced the availability of credit to European and most especially Germany, which collapsed into a severe recession.

While the New Deal further ravaged the US economy, most of Europe recovered by the early 30s.

# posted by

Bart DePalma : 5:04 PM

BD: "Germany and the rest of Europe is simply crowded and their urban areas were established centuries earlier."

Mr. W: In fact, Germany was a very rural place when unification occurred in 1871. Cities of more than 100,000 accounted for 1/20th of the population at that time. Incredibly, by 1910 *1/5* of the population resided in those cities! From 1871 to 1910 the percent of Germans who lived in rural areas dropped *67%!*

Same old cities increasing in population. During this period of time, the German reproduction rate ranged between 4.5 and 5.5 children per couple, while medical advances enabled a far greater number of them to reach adulthood for the first time. Before the world wars, both England and France worried about how quickly the German military age population was growing compared with their own.

None of this was correlated with the growth of totalitarianism and the later growth of industrialism in Germany.

What else was occurring at this time? Well, here's a clue. At the time of unification England was outproducing Germany in steel production 2:1. By 1913 Germany was producing more than 2:1 more steel than John Bull. At this time an astounding 60% of German GNP was industry. This at a time when a plurality of Americans were working on literal farms.

So?

(1) The US and then Germany passed the UK in steel production at this time because of ready access to raw materials. Steel production had no correlation to any of these nation's adoption of socialism.

(2) Both US industry and agriculture dwarfed Germany. Our free markets enabled the US to industrialize earlier and more productively. In turn, our agricultural economy mechanized earlier and enjoyed huge tracts of fertile land. None of this had any correlation to Germany's early and America's later adoption of socialism.

You really should stop digging that hole.

# posted by

Bart DePalma : 5:25 PM

"But a big government with a small government constitution can not be staffed with honest people. It's simply not possible."

1. It's certainly not a given that we have a 'small government constitution.' Our Constitution is replete with on its face vague and broad grants of power.
2. It's also a bit meaningless when all modern governments are big. Bircher Brett just seems to be lost in a Confucian crusade of rectification of names.

# posted by

Mista Whiskas : 6:03 PM

"The Great Depression started in the United States."

At the apex of the laisezz-faire GOP control of the time.

"most of Europe recovered by the early 30s."

You mean the big government socialists/fascists we borrowed from?

Lol, this is a hoot.

# posted by

Mista Whiskas : 6:04 PM

" During this period of time, the German reproduction rate ranged between 4.5 and 5.5 children per couple, while medical advances enabled a far greater number of them to reach adulthood for the first time. "

This shows how lost Bircher Bart is...An upshot in population is, like urbanization, a common indicator of industrialization. So, yes, Germany had an industrial boom as I said, with population growth and urbanization predictable consequences.

On the other hand, any person claiming a nation's industrialization is at its apex while most people literally were working on farms exhibits himself as a demographic/economic ignoramus.

# posted by

Mista Whiskas : 6:08 PM

You really should stop digging that hole.
# posted by Blogger Bart DePalma : 5:25 PM

Sniffles, your lack of self awareness is pretty epic.

# posted by

Bartbuster : 6:45 PM

The NRA and NLRB were borrowed from Italian fascist corporatism.

WPA and CCC were borrowed from Hitler's make work programs.

SS and unemployment insurance were borrowed from Bismarckian "state socialism."

So somehow these programs are fascist or socialist because they were also adopted by fascist or socialist countries, but building big highways isn't a Nazi program.

I think it's best to read Bart's comments for amusement only.
# posted by Blogger byomtov : 3:55 PM

It’s hilarious until you realize that this halfwit is probably representative of the 40% of the country that is Trump’s “base”. Then it becomes sad and a little scary.

# posted by

Bartbuster : 6:53 PM

" It's certainly not a given that we have a 'small government constitution.' Our Constitution is replete with on its face vague and broad grants of power."

That's your doublethink and dishonesty on display, right there. The very rationalization necessary to give people big government with a small government constitution. Any limit you don't like becomes too vague to enforce, every grant of power is rationalized to be broad beyond any imagining.

It's what you have to claim to avoid just coming out and admitting you don't like the Constitution, and don't mean to be bound by it. Which would be game over so long as the public actually likes that Constitution.

But we have a constitution written for an 18th century agrarian society, not a 21st century military and industrial super-power. Yes, the Constitution made the federal government more powerful than the articles of Confederation did. There's a heck of a lot of room between, "More powerful than the Articles of Confederation", and today's Leviathan.

# posted by

Brett : 7:00 PM

This comment has been removed by the author.

# posted by

Joe : 7:28 PM

We don't have a "small government constitution."

The Constitution in 1787 was ratified to expand the federal government. This concerned many people. The Bill of Rights was added in part to cushion the blow. After the Civil War, more power was given to the federal government, including to bury slavery and involuntary servitude (except in prisons). Additional power, though Prohibition was eventually stillborn, was given in the 20th Century.

The Constitution was opposed by many people in 1787 who raised the specter of great federal powers. They feared a "Leviathan," which as one recalls is a biblical creature. Brett and Sandy Levinson in various cases are on record about not "liking" various parts of the Constitution, but so be it there.

It's there. BTW, again, Brett says the Supreme Court de facto repealed the 14A back in 1873, but for personal policy reasons he keeps on talking about the New Deal as basically the moment constitutional government died or something. To remind as well, the 20A was ratified in 1933. Since there, we had multiple amendments.

When the government denied basic rights to blacks et. al., that might have been unfortunate. But, applying the Commerce Clause to new times and developments, as the very people behind the clause expected? Monstrous.

# posted by

Joe : 7:30 PM

Mr. W: The nation didn't get to what are standard industrial power metrics until...around the New Deal.

BD: What "standard industrial power metrics" would those be?

Are you claiming these "metrics" were absent under the free market political economy of Coolidge, but suddenly appeared under progressives Hoover/FDR?

Let's sum up the "standard industrial power metrics" which you claim caused Germany and then the US to go socialist/fascist.

(1) Urban Population Density: People and not industrialization is a prerequisite for crowded cities. Of course, this does not explain all the rural countries which go socialist/fascist.

(2) Steel Production: Sorry, laissez faire US far outproduced increasingly totalitarian Germany.

(3) Capitalism Broke / Laissez Faire Apexed: Which was it? Were free markets at their apex or broken? In any case, nothing Hoover or the progressive Fed did can be considered laissez faire - trade wars, contracting the money supply, boosting labor costs during a recession or a millionaire's tax to partially find a doubling of government spending on public works projects.

Each more ridiculous than the one before.

There is no socialist scientific or historical dialectic at work here. Governments decide whether they will run your life. This is why we reserve the right to remove them.

# posted by

Bart DePalma : 8:34 PM

Holding onto the Taney Court's deliberate mooting of the P&I clause, and replacing it with "substantive due process", for instance. Thomas is right on that score, it's long since time that was rectified.

Thomas is nuts.

He says forthrightly he wants to strip all of the Bill of Rights away from noncitizens in state courts. That's why he supports P/I rather than SPD incorporation.

So a state would have the power to boil green card holders in oil, and there would be no violation of the Constitution.

A state would have the power to ransack the home of every foreign student here on a student visa, and there would be no violation of the Constitution.

A state could deny jury trials to every H2 work visa holder, and it would be constitutional.

Sorry, Thomas is completely bat**** crazy on this one.

# posted by

Dilan : 9:13 PM

You want the rights of a citizen, you need to BE a citizen;

Even if you believe this, P/I incorporation would still be a stupid way to go about it, because it only strips rights as asserted against the states. The same people would still retain all their rights against the federal government.

If you want to make a policy argument a la Verdugo-Urquidez that certain people are excluded from certain constitutional provisions, I think that's horrible but there's at least a logical consistency to it. But it's completely stark raving mad to say "the state police can unreasonably search your house, but the feds can't, and the state can't search your next door neighbor's, and the state can't search yours once your citizenship application goes through".

# posted by

Dilan : 9:16 PM

One other thing about P/I incorporation. Joe is absolutely right that what would happen in practice is that equal protection, which makes alienage a semi-suspect classification and which in any event prohibits irrational disparities in treatment, would step in and hold that non-citizens have the same rights anyway.

I think what has actually happened on P/I incorporation isn't a part of Mark's story about eliminating the Fourteenth Amendment and also isn't part of Brett's story about originalism. It's something else.

Which is that the right wing used to be split on immigration, with many business leaders favoring it. (By the way, the left wing used to be more split as well.) But immigration is turning into a party line issue. This started in 1994 with Prop. 187 and Pete Wilson in California, but it went national.

And there's a kind of a right wing fever swamp on legal arguments. I am not talking about Justice Alito's or Chief Justice Roberts' judicial philosophy. I'm talking about the type of people who dream of the courts drowning the entire government in the bathtub with the takings clause, or the commerce clause, or whatever else. I'm talking about the people who dream of saying the 14th Amendment by its own terms outlaws abortion. Doesn't leave it up to the states- outlaws it. That the Second Amendment protects your right to take up arms against the US government. That sort of thing.

The sane people on the right ignore this stuff. As much as I dislike Alito, for instance, he doesn't traffic in any of these arguments. But they get shared in right wing extremist communities, in publications read by militia types and the like.

Thomas has his toe in those waters. And why do they want to shift to the P/I clause? Because they think allowing states to strip immigrants of their rights might, over the long term, allow more conservative states to impose incredible deterrents to immigration. That's it. That's the dream. It's just a legal version of "let's build an electric fence and shoot people at the border".

# posted by

Dilan : 9:26 PM

"That's your doublethink and dishonesty on display, right there. The very rationalization necessary to give people big government with a small government constitution. Any limit you don't like becomes too vague to enforce, every grant of power is rationalized to be broad beyond any imagining.

It's what you have to claim to avoid just coming out and admitting you don't like the Constitution, and don't mean to be bound by it."

If you take a look at these comments you will see the typica Bircher Brett comment: 1. it just repeats a point, with no evidence presented, that it wants you to take as a truism and 2. if you don't take it as a truism it accuses you of bad faith.

That sums up a great percentage of Bircher Brett's comments here.

The truth is that the Constitution is full of vague and broad grants of power that a reasonable and honest person could totally believe are susceptible to allowing for the kind of governance that goes on in every modern industrial state. In fact, conservatives who rail against this often (usually?) quickly go into a-textual arguments such as 'the spirit of the Constitution is one of limited government' pretty quick because this is true.

# posted by

Mista Whiskas : 8:03 AM

"Urban Population Density"

Again, any person that doesn't get that urbanization tracks industrialization is displaying they don't know what they are talking about when talking about the process of industrial development. *Every* modern industrialization is a majority urbanized nation. And the urbanization is *dramatic* as modernization really kicks in. Check out the information found in "Urbanization over the past 500 years" here:
https://ourworldindata.org/urbanization

But again, Bircher Bart displayed his basic ignorance on this when he pulled that lazy generalization about Germany's urbanization out of his rear and, as usual, offered it confidently as a truth. In fact, as the statistics I cited demonstrated, Germany's urbanization was something that happened in a relatively incredibly small time frame and non-coincidentally tracked their advancement in other metrics of industrialization. The fact that Bircher Bart would go to such a conclusion without obviously doing his homework or knowing what he was talking about is typical and speaks volumes about his conclusions in other areas (remember, this is the guy who confidently asserted that a Trump appointed, Trump donor and volunteer US attorney was prosecuting Trump associates in order to hurt Trump, this is how Bircher Bart argues/'reasons').

"Capitalism Broke / Laissez Faire Apexed: Which was it? Were free markets at their apex or broken?"

Good grief this is black hole dense. *Capitalism broke when, or during, a laissex faire apex* (or low government intervention period) was my claim, thus I don't buy the simplistic positive relationship posited between laisezz-faire and economic prosperity, and more to my original point, this is why all classical liberal governments around the world didn't buy that and adopted the programs Bircher Bart propagandistcally terms 'totalitarian' (or higher government intervention). Do I need puppets to spell that out more clearly to this krazy konspiracy kook?

"In any case, nothing Hoover or the progressive Fed did can be considered laissez faire - trade wars, contracting the money supply, boosting labor costs during a recession or a millionaire's tax to partially find a doubling of government spending on public works projects."

The stock market crashed on October 29, 1929. Hoover signed the Smoot-Hawley (trade bill) in 1930 and a tax rate of 60%+ on millionaires in 1932. Bircher Bart believes in some crazy things, but I guess he takes the film Back to the Future as a documentary if he thinks these 'progressive*' moves by Hoover somehow how acted back through the time stream to cause the capitalistic collapse.

*It's important to note that Hoover's 'progressive' interventions that Bircher Bart blames are, of course, much lower on any scale than, say were the interventions during the Kennedy or, heck, even Reagan administrations in which he argues moves to smaller government caused economic booms. Think about that logic for a second: in Bircher Bart's world a federal government that increases their intervention from, say, on a scale of 1-10, from a 2 to a 3 can be blamed for economic ruin if that follows, but a federal government that decreases their intervention from, say, a 8 to a 7.5 can be credited with an economic boom if it follows. It's palpable nonsense. If intervention is bad for the economy then one then the latter government should be terrible for the economy even if its gone from far terrible to slightly less far terrible. He's just engaged in Austrian cherry-picking, but of course cherry-picking is the stock and trade of the propagandist as opposed to someone making a serious, honest point or exploration of something.

# posted by

Mista Whiskas : 8:26 AM

"When the government denied basic rights to blacks et. al., that might have been unfortunate. But, applying the Commerce Clause to new times and developments, as the very people behind the clause expected? Monstrous. "

Classic. Both funny and straight to the point in its description of how our Birchers think.

# posted by

Mista Whiskas : 8:27 AM

I also like Dilan's comments on Thomas' vision.

There was a time when many conservative jurists were at least a bit more principled and honest, arguing against incorporation across the board. But Birchers like Brett have come to love incorporation (which, let's be clear, is one of the biggest transfers of power from the states to the federal government in our history, probably more consequential than the New Deal for example; now federal judges police states on a host of social, substantive and procedural issues) because it can protect them from local/state gun control, affirmative action, etc.. policies they don't like (so much for 'states rights,' 'subsidiarity,' 'voting with your feet,' and all those other smokescreens conservatives never really believed in as general principles anyway), so now they embrace the view of people like Thomas. A view that is as inhumane as it is illogical for the reasons Dilan details well.

# posted by

Mista Whiskas : 8:32 AM

BD: "Capitalism Broke / Laissez Faire Apexed: Which was it? Were free markets at their apex or broken?"

Mr. W: *Capitalism broke when, or during, a laissex faire apex* (or low government intervention period) was my claim, thus I don't buy the simplistic positive relationship posited between laisezz-faire and economic prosperity

You brought up the apex breakage claim in separate posts, but let's run with this combo.

Sorry, but, with the exception of the Civil War, the apex our laissez faire occurred over our first century. The progressive FED was key in causing the 1930-1932 recession leading into the Great Depression,

BD: "In any case, nothing Hoover or the progressive Fed did can be considered laissez faire - trade wars, contracting the money supply, boosting labor costs during a recession or a millionaire's tax to partially find a doubling of government spending on public works projects."

Mr. W: The stock market crashed on October 29, 1929. Hoover signed the Smoot-Hawley (trade bill) in 1930 and a tax rate of 60%+ on millionaires in 1932.

Some more history, my teaching tool.

The 1929 stock correction progressives like to spotlight was largely recovered by January 1930 and had no part in causing the 1930-1932 recession.

You wisely do not dispute the rest of my statement of historical fact.

Mr. W: It's important to note that Hoover's 'progressive' interventions that Bircher Bart blames are, of course, much lower on any scale than, say were the interventions during the Kennedy or, heck, even Reagan administrations in which he argues moves to smaller government caused economic booms.

By interventions, I presume you are referring to the Kennedy/Johnson and Reagan tax rate reductions. Some more history, my teaching tool.

To start, tax rate decreases do not decrease government spending and. thus, the size of government. Actually, the resulting economic growth tends to increase government revenues over time, which government almost always spends and grows.

Next, the Hoover, Kennedy/Johnson and Reagan tax changes are not analogous.

The Kennedy/Johnson tax cut was an order of magnitude smaller than what Hoover and Reagan implemented.

The only similarities between the Hoover tax increase and Reagan tax decrease were in the upper bracket and their implementation during a recession. Hoover targeted an immediate and massive tax increase on the upper bracket. Reagans tax rate reductions went into effect over a period of years and were across the board.

Mr. W: Think about that logic for a second: in Bircher Bart's world a federal government that increases their intervention from, say, on a scale of 1-10, from a 2 to a 3 can be blamed for economic ruin if that follows, but a federal government that decreases their intervention from, say, a 8 to a 7.5 can be credited with an economic boom if it follows.

To start, economies consist of people creating and trading goods and services. Apart from the enforcement of contracts and policing of crime, government cannot enhance an economy, it can only interfere with it. Thus, a government can only decline to interfere, allowing the people to grow their economy. It is never "credited with an economic boom."

I have no idea what your hypo is meant to prove. However, it does provide one teaching tool. Much of short term economics is relative psychology. A 50% increase in the size of government from a level 2 to 3 would normally have more of an immediate economic effect than a 6% reduction from 8 to 7.5.

# posted by

Bart DePalma : 9:39 AM

"Even if you believe this, P/I incorporation would still be a stupid way to go about it, because it only strips rights as asserted against the states. The same people would still retain all their rights against the federal government."

Don't get totally stuck in that "end justifies the means" mindset. The reason for P/I incorporation is just that that's what the Constitution actually mandates. And nothing more. Nothing more is needed. Nothing more would have any relevance. That's the beginning AND the end of our analysis.

This is THE central divide in constitutional thought in America:

On the one hand, you've got the people who think the meaning of the Constitution is just what it is, and if it means something bad, well, convince enough people and change it, until you do that it still means whatever. From that perspective, the only justification you need for P/I incorporation is that that's what the 14th amendment actually calls for.

On the other hand, you've got the people who think that the Constitution has to mean something good, or at least workable, (In their own opinion, of course!) and any interpretation that doesn't meet that bar is simply inadmissible. And never mind what it happens to say.

From the second perspective, the first group must want bad things, because, if you didn't want the bad things, why would you read the Constitution to mean them? There's no reason to think the Constitution means something besides thinking that something is a good idea, after all!

From the first perspective, the second group have, at best, gone down Alice's rabbit hole, and think words mean whatever they want them to mean. And at worst are a pack of deliberate liars. And their approach is the death of the rule of law.

Yeah, I'm in the first group. Doesn't move me a bit to tell me that interpreting the Constitution in a particular way would have bad consequences. What relevance does that have to interpretation? The thing means what it means, and that's that. You don't like it, amend it. Wishing it meant something different doesn't change the meaning.

And I favor a constitutional convention, because there ARE parts of the Constitution I don't like, and it's obvious that Congress isn't going to be originating amendments any time soon. But until those amendments, it means what it means, and the consequences of it meaning that have no relevance to what it means.

# posted by

Brett : 10:05 AM

"The progressive FED was key in causing the 1930-1932 recession leading into the Great Depression,"

See, he can't help himself. Even when you call exactly the silly thing he's going to do, he has to do it, exactly and to a T. It's all he can or will do. As I predicted well before he wrote this: "And notice the classic Austrian cherrypicking 'just so' story approach: economic calamity in a relatively low government polity (the 1920s US)? Well, there was this or that intervention that slipped by in the otherwise low activity polity that *really* caused this. Economic calamity in a more active government polity (the 1930's New Deal)? Well, it was of course all the government intervention!" And, he did exactly that.

This pony has only one trick, and it's a pretty lame one.

"The 1929 stock correction progressives like to spotlight was largely recovered by January 1930 and had no part in causing the 1930-1932 recession."

Can this guy get anything correct? The stock market was at over 350 DJIA when the crash happened, crashing to slightly lower than 250 it then 'largely recovered' to...around 250 by January.

http://www.online-stock-trading-guide.com/1930-stock-chart.html

Also, of course the tax increase Bircher Bart can't have caused the 1930-32 recession he notes because...it happened in 32!

This is not a serious man.

"I have no idea what your hypo is meant to prove."

I certainly buy that he has no idea!

# posted by

Mista Whiskas : 10:41 AM

This comment has been removed by the author.

# posted by

Mista Whiskas : 10:52 AM

"The reason for P/I incorporation is just that that's what the Constitution actually mandates. "

This is a good example of what I'm talking about.

First of all, no one disputes that the 14th Amendment "incorporates" the P&I clause to the states any more than anyone disputes the Amendment "incorporates" the due process clause to the states. The term really is 'applies' or 'requires,' as *incorporation is a term that refers to applying the Bill of Rights to the states.*

So to make Bircher Brett's comment constitutionally coherent what he really means (but doesn't know how to say, which should be a caution to others *but especially to himself* that he, at the mildest and least, has a lot to learn and carefully consider in this debate before opining so confidently [and slanderously of those who disagree with him]) is the P&I "incorporates" the Bill of Rights to the states.

But here's the big point, which I made above: it is most certainly not obvious from the text that the Privileges and Immunities that *everyone* agrees states must by the 14th not violate = the Bill of Rights. For one thing, and most obviously, the ratifiers of the 14th knew perfectly well how to write 'the first ten amendments' or 'the bill of rights,' and the fact that they didn't provides *at least a solid argument for a reasonable, honest person to argue that they didn't mean that by the clause.* And yet Brett would castigate those who don't immediately buy his argument as bad faith usurpers of the Constitution.

I mean, sheesh, say what you want about the majority in Slaughterhouse (I'm not a fan of the decision), but what's absurd is to argue is that they were some kind of secret, progressive cabal out to subvert constitutional protections to foster big government.

But of course, this is the guy who confidently asserted the equally silly theory that a Trump nominated, campaign donor and volunteer prosecutor was prosecuting M. Cohen and L. Parnas to hurt Trump, and has never acknowledged how ridiculous that is, so perhaps we shouldn't be surprised if he so holds about the Slaughterhouse judges...

# posted by

Mista Whiskas : 10:54 AM

" But Birchers like Brett have come to love incorporation"

When did I ever change my mind on incorporation? I'm 61, going on 62, and when I was a kid, elementary school history was that the 14th amendment was supposed to incorporate the Bill of Rights against the states. I've never seen a bit of evidence to contradict that. The shame is that it took so long to happen.

My objection is just to piecemeal incorporation. There's no principled basis for treating the Bill of Rights as an ala carte menu, or calling some rights important, and others non-fundamental.

# posted by

Brett : 10:54 AM

Don't get totally stuck in that "end justifies the means" mindset. The reason for P/I incorporation is just that that's what the Constitution actually mandates.

What the Constitution mandates after years of precedent building up is unclear here since dealing with precedent is part of what the Constitution actually mandates. For those who care, people like James Madison et. al. spoke thusly. They recognized that if precedent after a period of time recognized something, the Constitution "mandates" that it be recognized even if as an original matter they would have acted otherwise.

But, moving on, let's be clear yet again that said mandate limits the citizen v. person differential. Citizenship is a fashion is a guide of what rights are present and then we determine what rights citizens alone should have. This is a limited if still relevant range of things while equal protection and due process still broadly protect non-citizens. The limited effects here is one reason overturning over a 100 years of precedent makes less sense.

On the one hand, you've got the people who think the meaning of the Constitution is just what it is, and if it means something bad, well, convince enough people and change it, until you do that it still means whatever.

Yes. For instance, I recognize that each state has two senators, but I think this is bad policy. So, I argue we should amend the Constitution. Ditto natural born citizenship rules for presidents, the current way of handling D.C. and other territories, perhaps clarity involving agencies, the Electoral College etc.

From that perspective, the only justification you need for P/I incorporation is that that's what the 14th amendment actually calls for.

It is far from crystal clear that the 14A "calls for" a set rule for grand juries etc. though I am generally supportive of how the whole matter was handled in the end regarding partial incorporation. Those who study the history of the 14A have split on this question in a variety. See, e.g, Justice Black v. Frankfurter/Harlan, appealing to their own favorite legal historians.

On the other hand, you've got the people who think that the Constitution has to mean something good, or at least workable

I think it generally appropriate to try to apply the law in ways that are good and workable unless it is done in a way clearly unreasonable by the text. The implication here is though that people make shit up when they apply this principle. This is as a general matter false. Also, people who share Brett's sentiments to the degree the falter are as sinful, let's say, in their own fashion. So this isn't some partisan divide, though that is how it is often set out to be.

Doesn't move me a bit to tell me that interpreting the Constitution in a particular way would have bad consequences.

The discussion, moving on from this self-righteousness, includes the actual results of the interpretation given. Thus, e.g., if we did have a stronger P/I, the net result would be of limited difference. The argument was made that the P/I highlights citizens. The argument was made the Constitution was a "small government" Constitution. The actual consequences of the actual text is rel event here to refute this.

# posted by

Joe : 11:04 AM

"So to make Bircher Brett's comment constitutionally coherent what he really means (but doesn't know how to say, which should be a caution to others *but especially to himself* that he, at the mildest and least, has a lot to learn and carefully consider in this debate before opining so confidently [and slanderously of those who disagree with him]) is the P&I "incorporates" the Bill of Rights to the states."

IOW, you're just going to read me to be saying something stupid or incoherent, even if it requires ignoring things I've actually written, or that I only referred to it as "P/I incorporation" because I was replying to Dilan, who phrased it that way. Of course what "P/I incorporation" means is incorporation via the P/I clause, not of that clause.

I mean, I could call YOU an idiot for saying this was slanderous when it's obviously in writing, and thus if defamatory would be "libelous", but I'm not in the mood to pretend I don't understand you, just so I can pretend you're stupid.

"but what's absurd is to argue is that they were some kind of secret, progressive cabal out to subvert constitutional protections to foster big government."

Who said it was secret? And it wasn't to foster big government, it was to end Reconstruction. Basic schoolhouse history at one time.

# posted by

Brett : 11:06 AM

This comment has been removed by the author.

# posted by

Joe : 11:13 AM

By the way, the Supreme Court yesterday held that the Due Process Clause of the 14A requires convictions of serious crimes to require unanimous juries. The result was 6-3 though three justices (Thomas, Sotomayor and Kavanaugh) disagreed along the edges.

The basic matter turned on reliance of a 1972 precedent by the name of Apodaca v. Oregon, which involved justices splitting on what history and text required. Justice White cited both to hold that it was not required. Four disagreed. One said states and the federal government per constitutional mandates should have different rules.

[To clarify my past remark, precedent is an important constitutional principle but it is not the only thing. It is a sort of strong but rebuttable presumption.]

I personally don't think the matter totally compelled one way or the other but am inclined to agree with the result of the majority including given the specific states that lagged here had policies tainted by racism. Curiously, as Justice Alito (joined by Roberts and mostly by Kagan, who consistently respected stare decisis here, thinking the case wasn't strong enough to overrule) notes, Puerto Rico doesn't have unanimous juries either. PR is a special constitutional case but probably the case means their rule is also overruled.

None of the justices relied on merely what is "good" or what "works" but all relied on constitutional law. Gorsuch (for the majority/plurality) and Alito did use a lot of snark. I'm not a big fan of that really but since the beginning this stuff did cause a lot of that sort of thing since one or the other side are very sure of themselves & thing those who disagree basically are either dim or acting in bad faith.

# posted by

Joe : 11:15 AM

"when I was a kid, elementary school history was that the 14th amendment was supposed to incorporate the Bill of Rights against the states. "

Hugo Black was the first justice to argue for the incorporation of the BoR through the 14th Amendment (up until that time the Court dallied with the idea that maybe 'fundamental' rights in the BoR could apply to states through the 14th). He was roundly criticized for the view by scholars (and particularly conservative ones). Then in the 1950's, under the evil, bad Warren court, SCOTUS moved in his direction by selectively incorporated some of the BoR one provision at a time. SCOTUS has *never* held that the 14th incorporated the BoR as a whole.

There's a good reason for that: the ratifiers of the 14th certainly knew how to write 'the states must abide by the BoR' of some equivalent, and they did not.

Conservatives roundly criticized this approach, as they did most things Warren. This was in large part they realized it was one of the largest switches of power from the states to the federal government in our history.

# posted by

Mista Whiskas : 11:16 AM

"And it wasn't to foster big government, it was to end Reconstruction."

End Reconstruction? How did that hinge on a P&I case about a monopoly in the butcher trade? To the extent the Court played a role in ending Reconstruction Plessy or Cruikshank are relevant.

I'm wondering where Bircher Brett went to this 'basic' school...

# posted by

Mista Whiskas : 11:20 AM

BD: "The progressive FED was key in causing the 1930-1932 recession leading into the Great Depression,"

Mr. W: As I predicted well before he wrote this: "And notice the classic Austrian cherrypicking 'just so' story approach: economic calamity in a relatively low government polity (the 1920s US)?

You really should stop digging that hole. You have zero knowledge of this subject matter area.

I am referring to Milton Friedman's seminal work along with Anna Jacobson Schwartz entitled A Monetary History of the United States, 1867-1960. Friedman/Schwartz compressively made the case that mismanagement of the money supply contributed to the Great Depression and most other recessions during the period of their study. In the case of the Great Depression, the fed tightened the money supply at the same time out trade war was causing farmers to default on their bank loans. The resulting capital shortage led to the first round of bank failures. The Fed later cited Friedman/Schwartz in admitting culpability for their actions back then. Friedman won the Nobel in large part because of this work.

The Austrians took the opposite approach, arguing that reducing the cost of credit encourages investors to take inadvisable risks. This analysis applies to multiple recessions, but I doubt it was a key cause of the 1930-1932 recession.

BD: "The 1929 stock correction progressives like to spotlight was largely recovered by January 1930 and had no part in causing the 1930-1932 recession."

Mr. W: Can this guy get anything correct? The stock market was at over 350 DJIA when the crash happened, crashing to slightly lower than 250 it then 'largely recovered' to...around 250 by January.

My memory was wrong. The recovery took place a couple months later. I stand corrected.

As you can see from this chart, the S&P jumped during the Summer of 1929, corrected, then retuned to where it was in the Spring of 1929 by the Spring of 1930, before crashing again as the 1930-1932 recession began to bite.

# posted by

Bart DePalma : 11:22 AM

"I only referred to it as "P/I incorporation" because I was replying to Dilan, who phrased it that way"

No, Bircher Brett's statement was different than Dilan's in a critical way:

"The reason for P/I incorporation is just that that's what the Constitution actually mandates."

It's the latter part conjoined with the former that makes it silly within my point. Nothing in the P&I clause's text *mandates* that the provisions of the BoR be 'incorporated' to the states. As I said, the fact that they used different words is an obvious and immediate suggestion otherwise.

Due process 'incorporation' is facially equally silly, but it has a history and in a common law polity that at least has that going for it. The 14th's DP clause must overlap at least somewhat with the BoR because at the very least there's the 5th. So some rights in there 'fundamental' to the 'process' that's 'due' is a quite reasonable way to start thinking about this. In other words, there's at least *something* in the text of the DP that suggests some incorporation. All that the text of the P&I mandates is that P&I applies, like EP or BRC (birthright citizenship), etc., to the states.

# posted by

Mista Whiskas : 11:30 AM

"You really should stop digging that hole. You have zero knowledge of this subject matter area."

+

"My memory was wrong....I stand corrected."

is pure Bircher Bart classic comedy gold!

# posted by

Mista Whiskas : 11:31 AM

"I am referring to Milton Friedman's seminal work"

This is, of course, irrelevant to my rebuttal of the claim which Bircher Bart makes which is government intervention-bad economic outcomes. An honest, serious test of this would be to take situations contemporary and historical, rank then by how much total intervention there was, and see if economic conditions were lower when the independent variable was higher and higher with the IV was lower.

But what Bircher Bart, and many Austrians, do is to cherry pick, leading to such ludicrous arguments such as 'government X acting at intervention level 3 enacting an increase amounting to upping the intervention level to 3.5 caused economic calamity, while government Y acting at intervention level 7, enacting a decrease amounting to lowering the intervention level to 6.5 led to an economic boom.'

It's nonserious nonsense.

# posted by

Mista Whiskas : 11:37 AM

"Due process 'incorporation' is facially equally silly, but it has a history and in a common law polity that at least has that going for it. The 14th's DP clause must overlap at least somewhat with the BoR because at the very least there's the 5th."

As John Orth has pointed out (Due Process of Law), due process has had a substantive component since before the Civil War, perhaps as much as 250 years before (Dr. Bonham's Case).

# posted by

Mark Field : 12:25 PM

"There's a good reason for that: the ratifiers of the 14th certainly knew how to write 'the states must abide by the BoR' of some equivalent, and they did not."

No, there's a bad reason for it: They really hate admitting their own Court has made really big mistakes, (And "mistakes" is the nice way to put it.) and so weren't up for simply reversing the Slaughterhouse cases. Substantive due process was just a hokey work-around to start incorporation without admitting the Slaughterhouse cases were wrong on their face.

"I'm wondering where Bircher Brett went to this 'basic' school..."

I'm wondering where you did, that you got such a lousy education.

How did it end Reconstruction? Well, not by itself, but it rendered the 14th amendment largely toothless, and cleared the way for Jim Crow, by reducing the liberties protected by the 14th amendment to a tiny fragment of what was intended.

# posted by

Brett : 12:41 PM

Hugo Black was the first justice to argue for the incorporation of the BoR through the 14th Amendment

He was the first modern day justice but Justice Harlan (I) did so originally as well including in Hurtado v. California (grand jury) back in 1884 and probably should be cited as the original big supporter on the Supreme Court of that approach. Both he and the majority appealed to text and legal history.

In part, Harlan argued: "The rights for the security of which these express provisions were made were of a character so essential to the safety of the people that it was deemed wise to avoid the possibility that Congress, in regulating the processes of law, would impair or destroy them. Hence their specific enumeration in the earlier amendments of the Constitution, in connection with the general requirement of due process of law, the latter itself being broad enough to cover every right of life, liberty or property secured by the settled usages and modes of proceeding existing under the common and statute law of England at the time our government was founded."

Note he even brought in the Guarantee Clause: "This line of argument, it seems to me, would lead to results which are inconsistent with the vital principles of republican government."

Later, e.g., Patterson v. Colorado (1908), Justice Harlan applied this rule to 1A freedoms: "Now the Fourteenth Amendment declares, in express words, that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As the First Amendment guaranteed the rights of free speech and of a free press against hostile action by the United States, it would seem clear that, when the Fourteenth Amendment prohibited the states from impairing or abridging the privileges of citizens of the United States, it necessarily prohibited the states from impairing or abridging the constitutional rights of such citizens to free speech and a free press."

Again in dissent. It is ironic therefore his grandson opposed incorporation.

===

I own John Orth's little book on due process and it is an interesting read. Various accounts, some by conservative/libertarian legal scholars, point out the long history of substantive due process, including the general concept that might be applied in different ways (general principles, 9A or whatever). See, e.g., Justice Souter's concurrence in Washington v. Glucksberg or Justice Harlan (II)'s dissent in Poe v. Ullman. Substantive due process was also part of the Republican platform in 1860, relevant in part since the same people worked to craft and ratify the 14A.

# posted by

Joe : 12:43 PM

Substantive due process was just a hokey work-around to start incorporation without admitting the Slaughterhouse cases were wrong on their face.

The dissenters, first off, supported a stronger substantive reach of the P/I Clause w/o thinking it necessarily meant it incorporated the BOR as a whole. They continued this approach afterwards.

Second, the dissenters -- reflecting how the text & framers saw the 14A, sec. 1 as a three legged stool of protection -- used equality & substantive due process as part of their argument. It was not merely a workaround. It was always there in some form.

Thus, e.g., Justice Bradley in dissent:

"In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section."

Or Justice Swayne:

"Due process of law" is the application of the law as it exists in the fair and regular course of administrative procedure."

"Fair" and "regular" here over time resulted in the courts weighing the arbitrariness of such and such thing such as blocking schools from teaching classes in German.

# posted by

Joe : 12:56 PM

I'd forgotten that Harlan's opinion in Hurtado made a substantive due process argument. Thanks.

Also, Joe's 12:56 comment emphasizes an important point: the *result* in Slaughterhouse was correct, only the reasoning was wrong. The dissenters would have reached the wrong result using the "economic freedom" form of substantive due process which the Court has rejected since, roughly say, Carolene Products.

# posted by

Mark Field : 1:01 PM

# posted by

Brett : 1:24 PM

"No, there's a bad reason for it: They really hate admitting their own Court has made really big mistakes, (And "mistakes" is the nice way to put it.) and so weren't up for simply reversing the Slaughterhouse cases. Substantive due process was just a hokey work-around to start incorporation without admitting the Slaughterhouse cases were wrong on their face."

Here's more evidence as to why Bircher Brett should be taken as the non-serious Bircher he is. I offered several reasons why there's a good reason to run incorporation through the DP (1. it has a history and in a common law polity that at least has that going for it 2. The 14th's DP clause must overlap at least somewhat with the BoR because at the very least there's the 5th. So some rights in there 'fundamental' to the 'process' that's 'due' 3. As for the alternative, all that the text of the P&I mandates is that P&I applies, like EP or BRC (birthright citizenship), etc., to the states). Notice *Bircher Brett made none, absolutely none, to address these point by point.* Instead he just tossed another lazy conspiracy theory about bad faith actors up in a conclusory statement ("They really hate admitting their own Court has made really big mistakes...").

If Bircher Brett's own reasoning was this dishonest and sloppy it would be one thing. But the fact that he tops it with frequent assertions that those that disagree with him are bad faith, nefarious subverters is just the cherry on top of this poop filled Sunday.

"How did it end Reconstruction? Well, not by itself, but it rendered the 14th amendment largely toothless, and cleared the way for Jim Crow, by reducing the liberties protected by the 14th amendment to a tiny fragment of what was intended."

This might approach an argument if there was some plentiful history of the federal lower courts invoking the 14th Amendment P&I to protect Reconstruction rights. I mean, Slaughterhouse itself had nothing to do with Reconstruction. No, it was cases like Plessy and Cruikshank that torpedoed them, not Slaughterhouse. To the extent *any* SCOTUS cases are taught 'in school' as undercutting Reconstruction, it would be them. I mean really, the chance that Bircher Brett learned the idea that *Slaughterhouse* is what hollowed out Reconstruction is knee slappingingly laughable.

# posted by

Mista Whiskas : 1:56 PM

"He was the first modern day justice but Justice Harlan (I) did so originally as well including in Hurtado v. California (grand jury) back in 1884 and probably should be cited as the original big supporter on the Supreme Court of that approach."

Joe, good pull. But one can be sure Bircher Brett wasn't learning about Harlan's dissent in Hurtado in school as demonstrating that the 14th was obviously meant to incorporate the BoR.

# posted by

Mista Whiskas : 1:58 PM

"the Slaughterhouse cases, which rendered the 14th amendment an effective nullity for generations"

This is just stunningly goofy, for many reasons.

One is that the 14th Amendment was used quite a bit-but for corporations challenging regulations under the DP provision and then later as Mark and Joe note by smuggling the 'Lochner' freedoms into the DP.

Second is that it was of course Plessy that made the 14th an 'effective nullity' for those it was most intended to help-blacks.

I mean, say what you want about Slaughterhouse and the reasoning and such, but this is such a goofy argument in regards to the claim it squelched the proper chance to incorporate the BoR because *the right asked for by the plaintiff appears nowhere in the BoR!* The "right to exercise their trade" is not in the BoR. So one can, as usual, appreciate the irony of Bircher Brett being upset about usurpation of the Constitution re; the Justices deciding not to enforce a right that...is not in the Constitution!

# posted by

Mista Whiskas : 2:06 PM

This comment has been removed by the author.

# posted by

Joe : 2:27 PM

And here we are: So hostile to economic liberty you're willing to stand in defense of the Slaughterhouse cases, which rendered the 14th amendment an effective nullity for generations. Just because they also denied economic liberty.

I think the nullity thing is an exaggeration -- e.g., the protection of natural born citizenship even of the children of Asians who themselves could not be citizens -- but he doesn't actually care much about that. The New Deal is the time the Constitution truly died.

The result of the case is worth defending -- it was likely not unconstitutional to regulate slaughterhouses in that fashion. He is not defending the reasoning. Also, not saying economic liberty in no fashion is warranting of protecting. Thus, e.g., Yick Wo v. Hopkins (1886) rightly protected Chinese laundry owners.

# posted by

Joe : 2:28 PM

"And here we are: So hostile to economic liberty you're willing to stand in defense of the Slaughterhouse cases, which rendered the 14th amendment an effective nullity for generations. Just because they also denied economic liberty."

I'd call that a radical interpretation of my text. I'm not defending the *reasoning* of Slaughterhouse -- which is what you've objected to -- I'm defending the *result*. I think the *reasoning* should be disapproved and that more weight should be given to the P&I clause. And as Joe and MW point out, it's absurd to blame Slaughterhouse alone for Jim Crow. It took literally generations of Supreme Court opinions to achieve that result. It didn't take anywhere near that long for the Court to begin enforcing "economic liberty" via the due process clause instead, a rather inconvenient fact for your claim.

# posted by

Mark Field : 2:58 PM

A few points:

1. Substantive due process can be explained a very simple way.

Due process works on a sliding scale. We all know this, right? Everyone here would agree that the government only has to afford you a little process to enforce a parking regulation (maybe allowing you to show you weren't illegally parked in a hearing) whereas the government has to afford you a ton of process before executing you or throwing you in prison for life for murder. Right? We all get this.

Well, all substantive due process is, is a recognition that for some things, the process due is "infinity". For instance, government cannot crush your testicles no matter how much process is afforded you. That's substantive due process. (Essentially, that's covered by the Rochin holding.)

And the reason it has to work that way is without that interpretation, the due process clause would be absurd. It would say that more minor deprivations of rights would be unlawful unless some process were observed, while the most major deprivations of rights would be completely lawful.

Now having said this, it must also be said- CONSERVATIVES AREN'T TOTALLY WRONG ABOUT SUBSTANTIVE DUE PROCESS. They aren't. The problem is the same as with any unenumerated right. It really is extremely easy to create a right to do anything. You aren't tethered by the text, and we all have different moral traditions we draw on. Libertarians think economic rights are more important. Liberals think civil rights are more important. There are rights asserted like the "right to die" claimed in Glucksberg that are extremely controversial. And the DP clause gives you little guidance as to which rights to recognize.

BUT...

2. Stare decisis, which is MANDATED by the Constitution, does provide that guidance. You can only recognize rights that clearly follow from prior cases.

As Brett Kavanaugh said yesterday, "The Framers of our Constitution understood that the doctrine of stare decisis is part of the 'judicial Power' and rooted in Article III of the Constitution." Yep. Couldn't have said it better.

So the way you constrain SDP is by rooting it within precedent. So that fanciful conceptions of rights that aren't tethered to existing caselaw don't get recognized.

That certainly works better than the "originalism" that conservatives ignore every time it gets in their way.

# posted by

Dilan : 3:54 PM

Point one by Dilan is exceedingly well put, point two is good as well.

# posted by

Mista Whiskas : 9:01 PM

Point 2 is not good. Stare decisis is not mandated by the Constitution. It's a good policy, the right policy, but not mandated.

# posted by

Mark Field : 9:14 AM