The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover
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103. Roosevelt, Myth, p. 25.
104. 427 U.S. 297 (1976) (per curiam).
105. Dukes v. City of New Orleans, 501 F.2d 706, 712, 712 n. 7 (5th Cir. 1974).
106. Ibid. at 712 n.6.
107. Ibid. at 711.
108. Ibid. at 712.
109. 427 U.S. at 303; see also ibid. at 306 (describing the ordinance as “exclusively [an] economic regulation”).
110. Ibid. at 305.
111. Ibid. at 304.
112. Christopher J. Duerksen and Mary C. Bean, “Land and the Law 1986: The Perils of Prognostication,” Urban Lawyer 18 (1986): 954.
113. Clifford L. Weaver and Christopher J. Duerksen, “Central Business District Planning and the Control of Outlying Shopping Centers,” Urban Law Annual 14 (1977): 68.
114. See, for example, Allen D. Boyer, “Samuel Williston’s Struggle with Depression,” Buffalo Law Review 42 (1994): 20 (“Existing [formalist] rules were elevated into the category of self-evident verities. . . . [T]he law turned a blind eye to social and economic concerns—thereby setting itself, deliberately or unwittingly, against social change.”).
115. Roosevelt, Myth, pp. 136–37.
116. McCloskey, p. 50.
117. See Kelo, 545 U.S. at 521–22 (Thomas, J., dissenting) (“If ever there were justification for intrusive judicial review of constitutional provisions that protect ‘discrete and insular minorities,’ surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.”) (citation omitted).
118. 467 U.S. 837, 844 (1984).
119. Roosevelt, Myth, p. 26.
120. Ibid., pp. 33–34.
121. See San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal.4th 643, 697 (2002) (Brown, J., dissenting) (“[T]he majority’s exception for legislatively created permit fees is mere sophism, particularly where the legislation affects a relatively powerless group and therefore the restraints inherent in the political process can hardly be said to have worked.”).
122. Robert G. McCloskey, “Economic Due Process and the Supreme Court: An Exhumation and Reburial,” Supreme Court Review 1962: 50 (citation omitted).
123. Roosevelt, Myth, pp. 213–14.
124. Ibid, p. 216.
125. Ibid.
126. Cf., e.g.,”Brutus VI,” in Debate on the Constitution, Bernard Bailyn, ed. (New York: Library of America, 1993), vol. 1, pp. 618–19 (“It is as absurd to say, that the power of Congress is limited by these general expressions, ‘to provide for the common safety, and general welfare,’ as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, &c. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction. The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.”).
127. See Timothy Sandefur, “Mine and Thine Distinct: What Kelo Says About Our Path,” Chapman Law Review 10 (2005): 1–48.
128. Roosevelt, Myth, p. 136.
129. Ibid., p. 98.
130. The public choice dynamics of eminent domain abuse have been discussed at length. See, for example, Sandefur, “Mine And Thine Distinct,” pp. 34–37; Stephen J. Jones, “Trumping Eminent Domain Law: An Argument for Strict Scrutiny Analysis under the Public Use Requirement of the Fifth Amendment,” Syracuse Law Review 50 (2000): 306; and Donald J. Kochan, “‘Public Use’ and the Independent Judiciary: Condemnation in an Interest-Group Perspective,” Texas Review of Law & Politics 3 (1998): 49–116. For more on the rent-seeking problem in Lochner, see Alan J. Meese, “Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause,” William & Mary Law Review 41 (1999): 3–64; and Michael J. Phillips, “Entry Restrictions in the Lochner Court,” George Mason Law Review 4 (1996): 405–54.
131. Roosevelt, Myth, pp. 124–25.
132. I have contended that, at least early in development, they have none. Timothy Sandefur, “Liberal Originalism: A Past for the Future,” Harvard Journal of Law & Public Policy 27 (2004): 522–25.
133. See Kelo, 545 U.S. at 521–22 (Thomas, J., dissenting).
134. The judiciary itself is also subject to public choice pressures. What else are amicus briefs but so much judicial lobbying? As philosopher Anthony de Jasay notes, private-interest groups not only seek to maximize their gains from legislation but also to devise a constitutional order that will give them the best opportunities for such legislation. See Anthony de Jasay, Justice and Its Surroundings (Indianapolis: Liberty Fund, 1998), p. 83. The constitutional revolution of the New Deal is best seen as a major shift in the direction of increasing such opportunities. See John O. McGinnis, “The Original Constitution and Its Decline: A Public Choice Perspective,” Harvard Journal of Law & Public Policy 21 (1997): 204–08. In addition, the current fights over judicial nominations are a function of the benefits—economic or otherwise—that interest groups expect to obtain or fear losing, depending on the makeup of the judiciary.
135. See Steven M. Simpson, “Judicial Abdication and the Rise of Special Interests,” Chapman Law Review 6 (2003): 201–05; and Timothy Sandefur, “Is Economic Exclusion A Legitimate State Interest? Four Recent Cases Test the Boundaries,” William & Mary Bill of Rights Journal 14 (2006): 1036–48.
136. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 486 (1982) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)).
137. See, for example, Communications Workers of Am. v. Beck, 487 U.S. 735 (1988); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
138. 47 C.F.R. § 64.1200 (2002).
139. U.S. Security v. F.T.C., 282 F. Supp. 2d 1285, 1292 (W.D. Okla. 2003), rev’d sub nom. Mainstream Marketing Services, Inc. v. F.T.C., 358 F.3d 1228 (10th Cir. 2004), cert. denied, 543 U.S. 812 (2004).
140. 798 N.E.2d 941 (2003).
141. See John C. Eastman, “Philosopher King Courts: Is the Exercise of Higher Law Authority Without a Higher Law Foundation Legitimate?” Drake Law Review 54 (2006): 834.
142. Roosevelt, Myth, p. 108.
143. 274 U.S. 200 (1927).
144. Timothy Sandefur, Cornerstone of Liberty: Property Rights in 21st Century America (Washington: Cato Institute, 2006), pp. 97–106.
145. Federalist No. 48 (James Madison), in Cooke, p. 333.
146. 163 U.S. 537 (1896).
147. See, for example, Dickerson v. United States, 530 U.S. 428, 443 (2000) (“We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”).
148. Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: Norton, 2010); G. Edward White, The Constitution and the New Deal (Cambridge: Harvard University Press, 2000). By 1949, all of the justices were nominees of Franklin Roosevelt and Harry Truman.
149. Aziz Z. Huq, “The Political Path of Detention Policy,” American Criminal Law Review 48 (2011): 1542–43.
150. Cf. Schlup v. Delo, 513 U.S. 298, 324–25 (1995) (“The quintessential miscarriage of justice is the execution of a person who is entirely innocent. Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundame
ntal value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’” (quoting In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring))).
151. Beach Communications, 508 U.S. at 315.
152. Sadler v. Langham, 34 Ala. 311, 321 (1859).
153. Roosevelt, Myth, p. 25
154. Ibid., p. 24.
155. Ibid., pp. 24–25.
156. Ibid., p. 25.
157. This analogy is adopted from Roosevelt, Myth, pp. 96–99.
158. Clinton v. New York, 524 U.S. 417 (1998); United States v. Lopez, 514 U.S. 549 (1995).
159. Roosevelt, Myth, p. 25.
160. Ibid., p. 25.
161. Ibid., p. 98.
162. Ibid., p. 27.
163. “An American judge, armed with the right to declare laws unconstitutional . . . cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and remain in harmony with themselves.” Alexis de Toc-queville, Democracy in America, ed., J. P. Mayer, trans. George Lawrence (New York: Harper Perennial, 1969), p. 269.
164. See, for example, Gonzalez v. Raich, 545 U.S. 1 (2005).
165. United States v. Lopez, 514 U.S. 549, 552 (1995).
166. Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).
167. See Thomas Jefferson, letter to Isaac Tiffany (April 4, 1819), in Jefferson: Political Writings, Joyce Appleby and Terence Ball, eds. (Cambridge: Cambridge University Press, 1999), p. 224 (“Liberty . . . is unobstructed action according to our will, within the limits drawn around us by the equal rights of others.”).
168. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980), p. 54.
169. Yates v. People, 6 Johns. 337, 494 (N.Y. 1810).
Conclusion
1. Frederick Douglass, “The Nature of Slavery,” in Frederick Douglass: Autobiographies, Henry Louis Gates Jr., ed. (New York: Library of America, 1994), pp. 420–21.
2. Frederick Douglass, Oration Delivered in Corinthian Hall, Rochester (Rochester, NY: Lee, Mann and Co., 1852), p. 36.
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