Ilya Somin reconsiders federalism and the protection of individual freedoms.
In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”
The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty.
Bond arose out of a tragic domestic situation. Philadelphia resident Carol Anne Bond discovered that a close friend of hers was pregnant, and that Bond’s husband was the father. In an effort to get revenge on this woman, Bond allegedly placed dangerous chemicals in areas the other woman was likely to touch, with the result that the latter got a burn on her hand. Prosecutors charged Bond with violating a federal law that forbids the use of chemicals that can cause death or serious injury to persons or animals, except for a “peaceful purpose.” Bond’s lawyers contended that this law is unconstitutional because it violates the Tenth Amendment, which holds that “the powers not delegated” to the federal government by “the Constitution” are “reserved to the States… or to the people.” Only states, Bond argued, have the authority to regulate criminal behavior of this type.
The federal government claimed that Bond is not allowed to raise this argument because the Tenth Amendment’s constraints on the scope of congressional power are intended to protect state governments, not individual citizens. The Supreme Court, as we have seen, decided otherwise because federalism protects individual freedom as well as state sovereignty.
John Baker, Jr. argues that attempts to restructure immigration policy must focus on the economic incentives of both businesses and foreign workers if the rule of law is to be upheld.
Speaking on immigration to law school audiences and defending the nation’s right – indeed, obligation – to distinguish between citizens and non-citizens is quite a challenge. It helps when I begin by mentioning my representation of some “unauthorized aliens” (the term used in immigration law), my recruiting of foreign students, and my promotion to foreign investors of the EB-5 program for a “green card” and eventual citizenship in return for large investments that generate new jobs for American workers. At that point, it seems those who have come determined to confront me are now willing at least to listen. Apparently, they conclude that “Maybe, he doesn’t actually hate foreigners.”
Immigration is the one social issue which actually falls within the authority of the federal government due to a sovereign’s international right to control its borders. It is also the one social issue over which the deadlock in Washington currently appears to be unbreakable. Compare the abortion issue on which, despite deep divisiveness, the Congress passed, the president signed, and the Supreme Court upheld the Partial-Birth Abortion bill. Emotions on both sides of this most controversial issue were as strong as—if not stronger than—usual, but the rational argument for the legislation tipped the balance. With immigration, the debate in Washington lacks rational argument because it is dominated by the extremes of those for open borders versus those who say they oppose illegal immigration but who actually also oppose legal immigration.
Congress last enacted broad immigration legislation in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act. This was supposed to be a “get tough” law that would deter illegal migration to the United States. Instead, illegal immigration has only escalated since then, to at least 11 million according to the Census Bureau. Alarmed by the uncontrolled increase in illegal immigration, much of the public wants even tougher measures. What almost nobody mentions is that certain “get tough” provisions in the 1996 law had the opposite effect of what was intended. They actually encouraged increased illegal immigration. Rather than going back and forth across the border, as they previously did with ease, illegal workers chose to move their entire families to the US rather than incur the repeated costs of paying coyotes to get them across a tightened border.
The late Larry Ribstein explores the principles of a liberty-oriented securities regulatory regime.
The federal securities laws comprise one of the most important categories of regulation in the U.S. Particularly since Sarbanes-Oxley and Dodd-Frank, this regulation has been blamed for inhibiting innovation and imposing a significant regulatory tax on business activity. This essay considers some general principles for ensuring that securities regulation stays within limits that are consistent with a free and productive society. My central principle is that regulation should go only as far as necessary to protect market actors’ freedom to raise capital and invest in productive business ventures.
It is important to emphasize at the outset that regulation of disclosure and fraud can support rather than restrict liberty. Securities regulation promotes entrepreneurial activity by enabling investors to trust small and young firms that otherwise might not have an opportunity to develop public reputations. Firms in countries that lack these mechanisms may need to rely on family ties. This sharply limits the potential for large-scale business activities. Robust securities regulation is arguably one reason why this country has long had the world’s strongest capital markets. Thus it is important not simply to banish securities regulation because it can be costly, but focus on reasonable regulation that encourages productive business activity.
The core principle underlying securities regulation is the prohibition of fraud. Fraud is costly in part because it forces buyers to go to the trouble of investigating the truth and sellers to give buyers costly assurances. The government can reduce these costs by providing a credible enforcement mechanism that encourages firms and sellers to tell the truth. This is especially important for securities. In contrast to tangible goods whose qualities are apparent from inspection, securities often merely promise future rewards from the efforts of unseen promoters.
An important question in developing principles for securities regulation is how far this regulation should go beyond simply ensuring that the seller is not lying. In other words, why should not the law simply stop with the common law of fraud, as it did a century ago?
The Supreme Court has replaced the Constitution’s principle of the individual’s right to vote with a right to equal representation for minority groups. This post investigates the central moments of this shift in doctrine and practice.
The Voting Rights Act of 1965 was arguably the most successful piece of federal legislation of the twentieth century. It was also one of the most principled, finally providing African Americans voting rights they were originally promised by the Fifteenth Amendment almost 100 years earlier.
Following passage of the VRA black voter registration rates in southern states, where voting discrimination was most pronounced, skyrocketed. Between 1965 and 1968 black registration rates went up almost tenfold in Mississippi, threefold in Alabama, and twofold in Louisiana and Georgia. South Carolina and Virginia also experienced large increases in black voter registration. The result was a transformation in southern politics. No longer were bald appeals to racism politically profitable. Black voters were now a force to be reckoned with in the South and soon so too were African American representatives. American politics would be changed forever as a result of these developments. They were all highly defensible as a matter of constitutional principle and political practice.
But in 1969 things changed. That year the United States Supreme Court, in Allen v. State Board of Elections, expanded the mission of the VRA from protecting the right to vote to protecting a right to representation for African Americans. As understandable as the outcome was in Allen—the Mississippi legislature appeared to be trying to dilute the votes of African Americans by submerging them in at-large elections—it revolutionized the purpose of the VRA. Allen gave birth to what scholars refer to as “second generation” voting rights; the right to an “undiluted” vote or to representation for legally recognized minority groups.