Wednesday, August 22, 2007

Recommended reading on the republican guarantee

Via Solum, Huey Long and the Guarantee Clause: Transformation by Assassination, by Gerard Magliocca. Magliocca's book on Jackson was already high on my to-buy-and-read list. This terrific piece of constitutional history tells me that I should add him to my list of authors whose work I go out of my way to keep track of.

This Article contends that the assassination of Huey P. Long (The Kingfish) of Louisiana was a major turning point in the development of New Deal constitutionalism. Following his election as Governor in 1928, Long built one of the most formidable political machines ever seen in the United States. Indeed, he amassed so much power that contemporary observers routinely called his regime the first dictatorship in our history. For instance, Long abolished minority rights in the legislature, curtailed judicial review, took over the vote counting system, established a State Board of Censors to regulate political speech, and declared martial law against his opponents. Moving rapidly on to the national stage with his election to the Senate – he was Senator and Governor at the same time – Long established a national “Share Our Wealth” movement with the goal of challenging Franklin D. Roosevelt for the Democratic nomination in 1936.

The abuses in Louisiana triggered a broad national debate about whether the State still had a republican form of government as required by the Guarantee Clause of Article Four. Eventually, this outbreak of popular constitutionalism reached the President, who was desperate to find a way to stop Long. Not only did the President discuss the issue in press conferences, but he asked the Justice Department to examine the question in a lengthy memorandum. In August 1935, the House of Representatives took the first step to invoke the Guarantee Clause by forming a Select Committee to examine the question. A few weeks later, however, Long was killed and the inquiry was abandoned.

By cutting this confrontation short, Long's assassin unintentionally laid the foundation for modern judicial supremacy. But for this shocking event, the Special Committee would have almost certainly issued a report defining: (1) which rights being infringed in Louisiana were fundamental; and (2) which institutional practices there were so abusive that they struck at the heart of self-government. Such a report, coming in the midst of the collapse in Lochnerian doctrine, would have been an authoritative act of constitutional interpretation on major issues such as incorporation, voting rights, and the status of political minorities. Instead, the task of filling this vacuum fell entirely to the Supreme Court, which began that effort with the most famous footnote in the law - Footnote Four of United States v. Carolene Products. To a significant extent, Footnote Four's analysis of the conditions under which laws should receive heightened scrutiny was the judicial substitute for a congressional report on Long and the Guarantee Clause.

Accordingly, this Article makes three significant contributions. First, it provides the first detailed treatment (in a law review context) of Huey Long's dictatorship. Second, it documents the last serious effort to use the Guarantee Clause, which disappeared from serious legal discourse after 1935. Third, it provides a window into a fascinating counterfactual world that was only closed off by a highly improbable act.

As I discuss a bit here, the republican guarantee clause was originally thought to be a very important part of the constitutional order-- the central mechanism for central government protection of freedom within states. Indeed I wish I'd had access to this paper when writing mine, since I talk about the republican guarantee in the early era and the Carolene Products jurisprudence arising out of the New Deal era, but had no idea that the two had this kind of bridge between them.

Tuesday, August 21, 2007

Signs of old age

The annual Beloit College "mindset list," which sadistically helpfully reminds professors just how young the incoming frosh are, is out. Most disturbing this year:

2. Humvees, minus the artillery, have always been available to the public.
23. Wal-Mart has always been a larger retailer than Sears and has always employed more workers than GM.
27. Al Gore has always been running for president or thinking about it.
47. High definition television has always been available.
53. Tiananmen Square is a 2008 Olympics venue, not the scene of a massacre.
55. MTV has never featured music videos.
66. The World Wide Web has been an online tool since they were born.

That last doesn't seem quite right. Average frosh enter at 18; 2007-18= 1989. Lynx and Mosaic weren't launched until 1993, and I'd say that the birth of the browser is the real birth of the WWW. But anyway, HTML was invented in late 1990-- the frosh were babies, but not unborn.

Monday, August 20, 2007

Decisions, decisions

What panels to attend? APSA panel times for which I seem unable even to reduce the number of options below three, and often seem stuck at four.

Thursday, August 30, 8 am:

Roundtable: Author Meets Critics: Joshua Foa Dienstag, "Pessimism: Philosophy, Ethic, Spirit"

Roundtable: What Do Empirical Political Scientists Need or Want (If Anything) From Normative Political Theory?

Roundtable: Constituting Republican Government

Political Theory Beyond the State

Thursday, August 30, 4:15 pm:

Roundtable: How Should Normative Political Theorists Use Empirical Findings?

Roundtable: Knud Haakonssen's Cambridge Companion to Adam Smith

Moderation and Fanaticism

Friday, August 31, 10:15 am:

Roundtable: Modernity as a Crossdisciplinary and Interdisciplinary Concept

Roundtable: The Political Theory of Bernard Williams

Is Political Theory 'Beyond Political Science'?

Roundtable: Authors Meet Critics: Walter Murphy's Constitutional Democracy: Creating and Maintaining a Just Political Order and Donald Lutz's Principles of Constitutional Design

Friday, August 31, 2 pm:

Contours of Black Political Thought: Panel I

Images of Federalism in Early Modern and Contemporary Europe

The Problem of Political Obligation

Roundtable: Is Federalism Theory Poor or Theory Rich?

Saturday, September 1, 2 pm:

Virtue and the American Founding

Roundtable: Iris Marion Young: Legacies for Feminist Theory

Roundtable: What's New About the New Originalism?

Global Justice

I don't think I'm getting more indecisive in my old age. I think it's just an unusually good program unusually badly clustered...