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In a letter to Harold Laski, Justice Oliver Wendell Holmes famously wrote:

I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.

And he meant it. Beyond such obvious examples of this philosophy, such as Buck v. Bell, where Justice Holmes upheld a law requiring the sterilization of those deemed mentally incompetent (even if there was no real evidence they were mentally incompetent), I was recently reminded of this quotation when I taught Giles v. Harris.

This key Civil Rights case was decided about 4 months after Holmes joined the Court (his 18th published opinion by my count). This case considered Alabama’s efforts to limit the franchise to those who owned property and could pass a literacy test (read and write a section of the United States Constitution). The plaintiffs asked the Court to add the names of many black citizens to the voting rolls who were eligible to vote before this requirement was imposed, but were not permitted to register.

Holmes denied his request because he said the voting regime was “fraudulent,” and it was not for the Court to add names to a fraudulent system. In other words, because the system is unfair, Holmes won’t make it more fair by adding names to an unfair system. Further, because the case was brought in equity, rather than as a constitutional challenge, it was not proper to invalidate it. In other words, after acknowledging the law was invalid, he was not willing to disturb it.

In contrast, Justice John Marshall Harlan dissented, finding the Court had jurisdiction to hear the issue, and would have found the law invalid.

As these are my views as to the jurisdiction of this Court, upon this record, I will not formulate and discuss my views upon the merits of this case. But to avoid misapprehension, I may add that my conviction is that, upon the facts alleged in the bill (if the record showed a sufficient value of the matter in dispute), the plaintiff is entitled to relief in respect of his right to be registered as a voter. I agree with MR. JUSTICE BREWER that it is competent for the courts to give relief in such cases as this.

As a result of the decision in Giles, southern states imposed a whole host of methods aimed at suppressing votes, without any limits under the 14th or 15th Amendments. In other words, “go to hell.”

Yet another case where Holmes and Harlan are on opposite sides of the issue of majority rule and constitutionally protected liberties.

Cross-Posted at Law & Liberty.

On March 6, 2014, I gave at a book talk at the Florida State College of Law, with commentary by Professor Marshall Kapp.

Andrew Podlaski took some great photos of the event.

Later that evening, I led a discussion with the Tallahassee Federalist Society Lawyers Chapter.

This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.

Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.

The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.

It reads:

The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 – It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court.  Senator Matthew Carpenter made the argument for her.

Congressional Library
Washington DC

Susan B. Anthony
Rochester – N.Y-

Jan. 1.1905

Today, one of the least-discussed aspects of the Emancipation Proclamation is whether it gave rise to a takings claim. The Proclamation was enacted under Lincoln’s war powers, whereby he seized property (slaves) in the rebel states, and then emancipated them. Apparently, many southerners sought to raise takings claims against the Federal Government. Similar claims were lodged following the ratification of the 13th amendment. At the time, Congress estimated that the cost of compensating the emancipated slaveowners was somewhere between $1.6 billion and $2 billion, roughly half of the total value of all property (real and personal) in the south.

Section 1 of the 14th Amendment would make all slaves born or naturalized in the United States into citizens of the United States, and of the state in which they resided. This would nullify Dred Scott, and vitiate any claims that slaves could still be held as property. But what about any outstanding claims that resulted from the Emancipation Proclamation, or the 13th Amendment?

In direct response to this concern, the framers of the 14th Amendment added this sentence to the end of Section 4.

“[N]either the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave.”

In other words, this provision would have mooted any possible takings claims against the United States, or a state, as a result of emancipation of slaves. At the time, because the states were given an all-or-nothing ultimatum for ratification, this provision received little debate. It recognizes that the framers of the Amendment were concerned about the ramifications of takings claim. Imagine if a single judge found a taking, and that issue would go up to the Supreme Court! The opinion, if it found a taking, would have to reaffirm the principles of Dred Scott that slaves prior to the 14th Amendment were in fact chattel.

As Professor Aynes notes in his article, “Unintended Consequences of the Fourteenth Amendment“:

Even with Salmon P. Chase, a leading antislavery lawyer and the national architect of the antislavery movement’s legal strategy, as its Chief Justice, the memory of Dred Scott was too vivid in the mind of the public to erase the possibility that a suit by even a single former slaveholder might result in a judgment against the United States for taking property without just compensation. Moreover, the perpetual fear of an alliance between former slaveholders and their former allies, northern Democrats, provided a strong incentive to lay this question to rest by a constitutional amendment. The prospects of risking between $1.5 and $2 billion in debt, when weighed against complying with common law jury provisions, would make the latter seem petty. Faced with such a choice, even a ratifier who disdained common law jury provisions would see ratification as a “greater good.”

This is also an example of an Amendment specifically modifying an earlier Amendment, such as how Section 5 of the 14th Amendment impacts the 10th and 11th Amendments. Here Section 4 of the 14th Amendment seems to create a carveout from the 5th Amendment’s takings clause.

Cross-Posted at Law & Liberty.

I have previously commented on the phenomenon of the so-called “ubertarians.”

D.C. is home to a growing and curious breed, progressive young professionals who bemoan the city’s income inequality one instant and approach a black limo the next, asking “Are you my Uber?”; who condemn the government for under-regulating the banks and for over-regulating businesses and developers; who lament the decline of American labor but wish the teachers’ union didn’t have so much power in D.C. schools.

They support government regulation—except when it inconveniences them. Clamping down on the big banks? Yes, please. Tighter safety standards? Love ‘em. Restrictions on app-based taxi competitors, or on the number of bars or restaurants in their neighborhood? An outrageous imposition on the free market!

How is it that progressives, who otherwise favor all sorts of forms of economic regulation, occupational licensing schemes, and unnecessary barriers to entry, find this single cartel–taxi cabs–is unnecessary.

Well, many progressives have suddenly found another cartel they can’t stand. New Jersey, as well as Texas, and Arizona, only permit the sale of cars through in-state car dealerships. This renders the Tesla sales model–selling direct to consumers–illegal in many states.

And you know what? Elon Musk and other Tesla aficionados are objecting, and seek to deregulate (unregulate really) the market to sell cars.

These are the Teslarchists–Tesla Anarchists. Libertarians are often (inaccurately) assailed as anarchists. This is a law whose purpose is economic protectionism. Yet, there are many species of this law that do just that.

If only more progressives discover the harmful nature of cartels, we would all be better off. Ubertarians and Teslarchists unite!