This evening's panel addressed Justice Holmes' claim in his dissent to Lochner that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.”
Professor G. Edward White
Professor White suggested that the attitudes of the founders' generation were distinctive, including a number of negative assumptions. First, the founders assumed that humans are self-interested, inclined to pursue that interest, and willing to use positions of power to do so. Second, the founders assumed that states will be parochial, will fight each other, and will generally resist the federal government's requests to pursue the commonweal if they can. The founders took these assumptions into their draft of the new constitution.
Professor White noted a number of economic freedoms present in the constitution: protection for private rights, under the just compensation clause, the due process clause, and the contract clause; federalism protections designed to allow empower the federal government and withhold power from the states; and the most common economic protection in the constitution, the protections for private property rights in slaves.
Professor White did not accept that the constitution dealt expressly with either virtue or any given economic theory. He seemed rather to argue that we start with the particular "generational attitudes." Was virtue a function of economic activity? Of office? Of society? Of something else? Was there a necessary relationship between economic values and virtue? Or a contradistinction?
Professor Renee Lerner
Professor Lerner believes that the principal framers did share a set of economic views, and that those views permeate the constitution rather than manifest only in odd clauses. Many structural features, she argued, are designed to further desirable economic ends.
She argued that the framers were reacting to (and against) the mercantilism of the first half of the eighteenth century. The framers read Montesquieu and Adam Smith, praised free trade and attacked the guilds, monopolies, and patents of the earlier period. The founders at center stage - Hamilton and Madison - had studied the wealth of nations, and many Americans at the time had a passing familiarity with the book. The founders least enamored of Smith's work - Jefferson and Adams - were out of the country at the time - proof, Professor Lerner argues, that God was looking out for America.
Why, then, so few explicit references to Smith in the constitution? Professor Lerner suggested that many of these free trade protections would be difficult to enact directly (although she mentions the contract and takings clauses, she also notes the protections for patents). She argues that the economic theory manifests instead indirectly, through the Interstate and Foreign Commerce Clauses, which give Congress express power to stop states from restricting trade, and the Interstate and Alien Diversity Clauses, which allow federal courts to hear cases where state courts might act with bias.
Professor James Ely*
Professor Ely suggested that perhaps Holmes overstated his claim in the dissent to Lochner. The movement to establish a new government was fueled by the desire for a central authority to protect congracts. Delegates at the Philadelphia Convention used Lockean language to talk about individual freedom and rights to property. Many of the provisions, he argues, relate to economic interests. Major part of the members of the convention are on record as pointing out the role of property rights in the constitution.
In summary, while Holmes may have been correct that the constitution does not embody a particular economic theory, that does not stop the constitution from anticipating a particular system: a substantially free market, resting on private property. Holmes lost sight of that.
*In fairness to Professor Ely, the sound system buzzed so loudly that I had difficulty hearing his opening statement. I apologize for not giving a more thorough summary.
Professor Nelson Lund
Professor Lund argued that economic theory can apply to many things besides the marketplace - particularly the government itself. He noted that in Federalist No. 51, Madison announced an essentially economic theory of government: ambition must be made to counteract ambition. All branches save one depend on the others to act; that one branch, of course, is the judiciary.
Hamilton argued that the judiciary must remain independent because someone has to have the last word on what the constitution means. The judiciary, he argued, would be the least dangerous branch. Professor Ely noted two reasons that the branch would be the least dangerous.
First, the judiciary was structurally impaired from causing great mischief. It controlled neither the sword nor the purse, and its members could be impeached. (Although, as Professor Ely notes, the impeachment power does little to stop the judiciary from unconstitutionally extending Congress's power.) As we have learned, the structural restraints on the judiciary leave a great deal of room for judges to "make up whatever constitution they like."
Second, Hamilton supposed that judges would be more virtuous. Long and laborious study of legal precedents, devotion to law, integrity, and age-induced lack of ambition would serve to control the judges. English common law created a culture of modesty and self-restraint in the judiciary, and the founding generation believed that these modest and restrained judges could be found and trusted.
Professor Ely admits that these ideals exist today, largely in the Senate Chamber during confirmation. All nominees, he notes, are but humble servants of the law. But after confirmation, he describes them as "bigshots" and "gods of the legal profession." They consider adherence to their own former statements to be more important than adherence to the former statements of the court. They use extravagant language to end up in popular press and casebooks, with the aim of becoming "influential."
Professor Ely suggests a number of changes that might improve judges incentives at the margins (at least in the Supreme Court). First, Congress ought to mandate that the Court issue all opinions anonymously. Second, Congress should limit the discretionary nature of the docket, forcing the Court to take half it's cases on certification from lower courts (although the cases would be less interesting than "flag burning, nude dancing, and abortion"). Professor Ely would take alway the elbow law clerks, and centralize them to a general legal research department. Lastly, Justices ought to be required to return to riding circuit (preferably, noted Professor White, on horseback).
Professor Lerner noted that while the founders were well versed in Smith, Madison himself was not opposed to all restrictions on trade, at least in the short term. He wanted to "arrest development at the commercial stage of the Enlightenment." He had a long term goal of freer trade, but short term restrictions were permissible.
Judge Wilkinson: Give me an example of a law that we would be justified in striking down in the name of economic freedom.
- Professor Lerner suggested reducing restrictions on the diversity jurisdiction.
- Professor Ely suggested that some barriers to entry might be removed. He seemed willing to accept venerable licensing (perhaps for lawyers and doctors) while arguing that floral arrangement licensing serves only to restrict entry (floral arranging not requiring laborious study of mind-numbing precedent).
- Professor Lund: Obamacare.
Judge Wilkinson: Would expanding diversity infringe on state law? Doesn't that create tension between an expansion of diversity and the 10th amendment?
- Professor Lund: It's not clear to me what the problem is. Either things are constitutional, or they aren't.
- Professor Lerner: Federal courts exist to correct the problem of bias. That's why Madison had to make the arguments he did.
- Professor Lund argued that Hamilton says the diversity provisions are some of the most important in the constitution, because without them, the Privileges and Immunities Clause of Article IV would not be enforceable, and that is what holds the Union together.
Judge Wilkinson: Ted, what do you think of Nelson's ideas to make Justices more virtuous?
- Professor White described them as "premodern." He argued that it would be restoring a practice that predated even the Marshall Court, which dispensed with seriatim and per curiam opinions. He seemed to suggest that returning to those practices might not necessarily be an improvement.
- Professor Lund: I won't accept pre-modern; I prefer reactionary.
- Professor Lund then noted two different problems with his proposal, with respect to anonymous publishing.
- First, that it will make the Court less accountable. He responded that you can't make the Court less accountable than it already is.
- Second, anonymous opinions might make them lazy, sloppy, and more irresponsible. He suggested that this might be an empirical question, and not a necessity. He argued that signed opinions on the lower courts, which hear many more and many more boring cases, are very important to control the effort the judges put in. On the other hand, the Supreme Court's docket, which is largely discretionary and therefore more interesting, might be enough to prevent the Justices from writing sloppy opinions or generally being lazy.
- Professor White noted a letter that Jefferson wrote to Justice Johnson, arguing that anonymous opinions were for the lazy, modest, and incompentent. "I'm less sanguine," he said.