It was inevitable that some supporter of President Obama’s would come along and compare his executive action on immigration to the most famous executive order of them all, President Lincoln’s Emancipation Proclamation. Yale law professor Bruce Ackerman has done the honors, and his comparison is, not to put too fine a point on it, weak.
A reader asked for more discussion of the Charles River Bridge decision, which I cited as a precedent against claims that taxis displaced by Uber were legally entitled to compensation. Charles River Bridge is a fascinating Supreme Court case that is largely unknown to this generation of lawyers. I remembered it only from discussions in American history class as a high school student.
The case marks the transition from the Marshall Court to the Taney Court. In fact, it was first argued under the Great Chief Justice but decided under Taney. It shows how Jacksonian democracy shifted the course of constitutional law.
The case revolved around bridges and the anti-monopoly principle. The bridges at issue spanned the Charles River in Massachusetts. That first bridge builder, the Charles River Bridge Company, argued that the state had given it a monopoly in return for building its bridge. Thus a subsequent charter to another company for building another bridge violated the provision of the Constitution which bars states from “impairing the obligation of contracts.”
Justice Taney’s opinion based his reading on the original charter for Charles River Bridge company, which he interpreted as not granting any monopoly right. But his interpretation was heavily influenced by his democratic and indeed Democratic ideals.
The Republican Party died during the struggle over Obamacare. Its most vital elected officials chose to represent their voters. This left their erstwhile leaders to continue pursuing acceptance by the ruling party, its press and its class. The result is a new party that represents the roughly three fourths of Republican voters whose social identities are alien to those of the ruling class and whose political identity is defined by opposition to the ruling party. These voters are outsiders to modern America’s power structure. Hence the new party that represents them is a “country party” in the British tradition of Viscount Bolingbroke’s early eighteenth century Whigs, who represented the country class against the royal court and its allies in Parliament. The forthcoming food fight over the name “Republican” is of secondary importance.