Terrible Supreme Court Decisions that Should be Added to the "Anticanon" of Constitutional Law—Part I

Constitution Day is a good time to consider the issue of whether we have been overly accepting of some horrendous Supreme Court precedents. The Chinese Exclusion Case of 1889 is a great example.


Today is Constitution Day. It is an appropriate time to celebrate the accomplishments of American constitutional law. But it is also a good time to consider whether we have been too soft on some of its greatest failures. I suggest three such rulings cry out for far more condemnation than they have so far received: The Chinese Exclusion Case (1889), Euclid v. Amber Realty (1926), and Berman v. Parker (1954). These rulings are well-known to specialists in their respective fields (immigration and property law). All three have their critics. But they rarely get much attention in law school constitutional law classes, and most lawyers either assume they are right, or even remain largely unaware of them.

In this post, I cover the Chinese Exclusion Case. Euclid and Berman will be dealt with in future posts.

Most members of the legal profession are aware of the "canon" of great Supreme Court constitutional law decisions that virtually everyone supports, and considers to be major positive milestones in constitutional history. Brown v. Board of Education is probably the most famous example. If your theory of constitutional interpretation rejects one of these, it's a serious strike against it.

On the other hand we also have rulings that are part of what has come to be known as the "anticanon" of constitutional law—decisions that are almost universally reviled, and seen as exemplars of grave errors we should not repeat. In the closest thing we have to a canonical article about the anticanon, Columbia law Professor Jamal Greene identifies Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States as the most widely recognized "anticanonical" rulings. I think there are several others that are at least close to that level, such as Buck v. Bell (1927) (upholding mandatory sterilization of the mentally ill) and Pace v. Alabama (1883)(upholding laws banning interracial marriage and penalizing interracial "fornication" more than the intraracial kind).

What enables a decision to "achieve" anticanonical status? Greene suggests it is largely a matter of historical happenstance. Later generations of legal commentators found these cases useful examples of ideas and legal doctrines they wanted to stigmatize.  That is surely true to an extent. But I think there are also some more systematic patterns here.

If you look at the most prominent anti-canonical cases, it turns out they have a number of common characteristics. First, they feature (or at least are believed to be feature), terrible legal reasoning. But that by itself is far from enough. Lots of decisions are poorly reasoned. The second, and much more restrictive condition, is that they are believed to have had terrible real-world effects. Dred Scott, Lochner, Plessy, and Korematsu, all are seen as having had horrific consequences for large numbers of people: slaves, unskilled workers, racial minorities, and Japanese-Americans subject to detention in awful internment camps. I think this belief wrong in the case of Lochner. But there is no doubt it is widely held.

It isn't just that these decisions are seen as having bad effects (lots of cases are like that). Rather, the effects in question are believed to have been on a very large scale, seriously harming many thousands of people —or even more.

Third, most—but not all—of the anticanonical decisions upheld government policies that promoted racial discrimination and oppression. That's certainly true of three of the four cases on Greene's list—Dred Scott, Plessy, and Korematsu. The same goes for Pace and to some extent even Buck v. Bell (blacks were far more likely to be subjected to forced sterilization than whites). If there is an original sin of American constitutional law, it is race-based oppression.

By these criteria, the Chinese Exclusion Case, Euclid, and Berman all richly deserve to be added to the list.

The Chinese Exclusion Case is the 1889 decision in which the Supreme Court first decided that the federal government had a general power to exclude immigrants, for virtually any reason it wanted. The Court's legal reasoning was execrable. The Court did not try to link this power to anything in the text of the Constitution. Instead, they upheld it based on the idea that the power to exclude migrants is one that every sovereign nation must be assumed to have. In so doing, they completely ignored the many flaws in this "it's gotta be in there somewhere" theory. I listed several of them here. They also ignored the insistence of leading Founding Fathers, such as James Madison  (the "father of the Constitution") and Thomas Jefferson, that no such power was ever granted to the federal government. In his Report of 1800, addressing this very issue, Madison even specifically warned against the theory the 1889 Court adopted:

The reasoning here used, would not in any view, be conclusive; because there are powers exercised by most other governments, which, in the United States are withheld by the people, both from the general government and from the state governments. Of this sort are many of the powers prohibited by the Declarations of right prefixed to the Constitutions, or by the clauses in the Constitutions, in the nature of such Declarations. Nay, so far is the political system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined, that in one very important case, even of commercial regulation and revenue, the power is absolutely locked up against the hands of both governments…

In other words, the fact that a given power is enjoyed by the governments of other nations is no reason to assume that the US federal government must have it. The whole point of the American experiment was to set up a new and better form of government, not merely imitate those that came before. What was the 1889 Court's response to Madison's argument and others like it? Crickets.

The effects of the Court's decision were massive. In the short run, it upheld the deeply racist Chinese Exclusion Act of 1882, which—as the name implies—barred most would-be Chinese immigrants from entering the United States. As a result, many thousands of people were condemned to a lifetime of poverty and oppression. In the medium to long-term, the decision facilitated other exclusionary immigration legislation, much of it also motivated by racial and ethnic bigotry, such as the Immigration Act of 1924, which barred most European immigrants, in large part because of prejudice against Jews and southern and eastern Europeans.

The Chinese Exclusion Case also helped lay the foundation for the "plenary power" doctrine, which to this day exempts immigration restrictions from most of the individual-rights constraints that apply to virtually all other exercises of federal power. That has led to a pattern of constitutional double-standards in immigration law that, to this day, authorize a variety of injustices that courts would strike down as unconstitutional in virtually any other context.

When it comes to racism, the Chinese Exclusion Case is hard to beat. As already noted, the legislation it upheld was itself motivated by racism, and the ruling had the predictable effect of setting a precedent for future racist immigration restrictions. But it's important to recognize that the racism here wasn't limited to the law the court upheld. It was also explicitly present in the Court's own reasoning. Justice Stephen Field's opinion for the Court states that "[t]he differences of race added greatly to the difficulties of the situation" the Chinese Exclusion Act was intended to address, and describes the Chinese as unassimilable people who threaten to "overrun" the country, and avows that the government must have the power to bar  "the presence of foreigners of a different race in this country, who will not assimilate with us."

The embrace of racism here is much more explicit than anything in Plessy v. Ferguson, where the majority was careful to (disingenously) claim that the law in question was not intended to oppress African-Americans. It is, notable, however, that the Chinese Exclusion case was brought to us by most of the same justices who decided Plessy just seven years later, and embodies many of the same types of bigoted assumptions.

I would be happy to see The Chinese Exclusion Case completely overruled in a decision that adopts Jefferson and Madison's position that there is no general federal power to restrict immigration. Such an outcome is, obviously, highly unlikely.

But there are a number of more moderate ways to get rid of this terrible precedent. The most obvious is to overrule the holding that the power to restrict immigration is a virtually unlimited, nontextual power, and instead lodge immigration restriction in Congress' power to regulate foreign commerce (as advocated by a number of legal scholars).

In this scenario, Congress would still have broad power to restrict immigration. But that authority would be limited in the same ways as Congress' power to regulate interstate commerce (listed in the same phrase in the Constitution). The Supreme Court has enforced some structural limits on the latter.

More importantly, an immigration-restriction authority based on the Foreign Commerce Clause would be subject to the same individual-rights limitations as other exercises of federal power. That means no more judicial deference to immigration restrictions that discriminate on the basis of race, ethnicity, religion, gender, political views, and other categories that would be prohibited in other contexts. It also means immigration detention and deportation would be constrained by the same constitutional due process rights that apply to other laws. No more toddlers being forced to "represent" themselves in deportation cases!

Even this more limited overruling of the Chinese Exclusion Case is highly unlikely to happen in the near future. But it is at least something the Supreme Court should think about.

In the meantime, lawyers, legal academics, and others should consider why this awful ruling doesn't get nearly as much opprobrium as it deserves. At the very least, we should give up the still-widespread assumption that it is obviously correct. And law professors should include it in their introductory constitutional law courses (which most currently don't), and treat it as a highly consequential decision open to serious question.







NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. ” Buck v. Bell (1927) (upholding mandatory sterilization of the mentally ill)”

    This is a terrible description.

    1. I was going to say that. They “diagnosed” the woman as having bad genes.

      1. Still the party of Science!

        1. Yeah, those Progressives.

      2. Even the best of the decisions have been catastrophic for the country. The Supreme Court, a bunch of know nothing bookwarm idiot savants, is not qualified to make national policy on complicated, technical subjects.

        Then, no one thinks these elitist, supercilious, Ivy indoctrinated, big government rent seekers have the slightest legitimacy. They are seen as little tyrants and much hated.

        They have no way to enforce their decision. I believe the Justice Department has to do that. Federal Marshalls are his employees. If a President refuses to enforce it, the decision is void.

    2. This is a terrible description.

      It’s a valid description as a legal matter, though not as a factual one. The Court proceeded under the assumption that Carrie Buck was mentally ill.

  2. Really thoughtful and interesting post. I am not sure I agree 100% with all your suggestions. But your post really made me think…reminds me of the “glory” days of the early Volokh Conspiracy, where it was common for law professors to put forth these kinds of OPs.

    1. Perhaps. But Ilya supporting open borders migration for the 100th different post is not really outside the normal realm for him

      1. Open boarders is a core Libertarian tenet

        1. How about open bedrooms? I want to 4 illegales in each of Ilya’s. They can sleep in shifts around his wife and around his children.

        2. Open borders after every welfare program has been abolished is a core libertarian tenet.

          1. No, there is no asterisks on the free movement of people, which is the core libertarian value. You can say that you don’t believe in that tenet, or that you don’t believe it as an absolute value, but you can’t alter the core value to fit your perception of it.

            For example, I don’t believe in open borders. I believe that a nation has a right to control their borders. I believe the policy should lean towards pro-immigration ideals, but that means that my belief is not the core libertarian value of the free movement of people.

            See how that works? I’m not trying to redefine a value and I’m acknowledging that I differ from the ideal. That doesn’t make me a “libertarian in name only” because libertarianism is a heterodox belief system. That’s one of its appeals, at least to me.

            1. Look, I was a member of the LP from ’77 to about ’98, and I’m telling you that, while Libertarians absolutely did and do believe in both a night watchman state AND open borders, at least at that time we weren’t stupid enough to not understand the concept of “path dependence”, that you had to do some things in a particular order, rather than helter skelter.

              If you throw open the borders while you’re still a welfare state, what happens? You get people coming in who want to live in a welfare state, that’s what happens. Then unless you’re some kind of libertarian dictatorship, rather than a democracy, all hope of getting rid of the welfare state is lost.

              Ilya apparently doesn’t care that his demand for open borders would doom the rest of the libertarian program in a democratic country. Maybe he doesn’t really care much for the rest of the libertarian program? Or perhaps he just doesn’t think in terms of popular consent, so creating a public hostile to small government doesn’t mean any more to him than the present public’s hostility to open borders.

              1. To illustrate that path dependence absolutely does matter in moral issues, consider the following scenario: You’re holding some innocent person by the throat over a cliff.

                You clearly shouldn’t have them by the throat.
                Equally, you shouldn’t be hanging them over a cliff.

                So, does it matter which violation you end first? I guess not, they’re both wrongs, and letting go probably IS easier to do immediately, so let’s get that out of the way first.

                1. The problem with the “path dependence” argument is that there are dozens of different freedoms we need to reclaim. Saying we can only reclaim them in a precise order of precedence makes an already difficult task impossible.

                  It’s like saying we need to sink all the German capital ships but we have to sink them in precise alphabetical order, so our navy is prohibited from shooting at the Blutowitz or any others until the Alpenheim has been sunk.

                  Clearly a losing technique. If you really agree that freedom of movement is legitimate then you go after it whenever you can.

                  1. “Saying we can only reclaim them in a precise order of precedence makes an already difficult task impossible.”

                    Nobody is saying that, but some people are saying that others are saying that.

                    1. Brett’s saying it. Making total elimination of the welfare a precondition for having some other liberty is, for all practical purposes, the same as deciding to never have that liberty.

                    2. Brett’s saying it. Making total elimination of the welfare a precondition for having some other liberty is, for all practical purposes, the same as deciding to never have that liberty.

                      Exactly. One could make the same argument about ending the drug war: yeah, it’s immoral to lock people up for a victimless crime like that, but we can’t go around letting people use whatever substances they want until we first eliminate the welfare state.

                      He conveniently picks the thing he knows won’t happen so that he never has to actually do anything libertarian at all.

                    3. “Brett’s saying it. Making total elimination of the welfare a precondition for having some other liberty…”

                      Welfare is not a liberty, if fact even my social security, which I paid for for 40 years is not an obligation of the United States and could be ended or amended by Congress with a simple majority vote.

              2. While I don’t accept your “welfare state” argument, I agree that the chaos of open borders would be bad for the country. I’m just saying that both your belief and mine differ from the “free movement of people” ideal of libertarianism.

              3. Brett, using your same reasoning, one could say we can’t let West Virginians have children until we eliminate the welfare state, or we can’t permit racial equality until we eliminate the welfare state, or we can’t tolerate fundamentalist Christians and their quiverfulls until we eliminate the welfare state.

                All are based on same flatly incorrect premise, which is your italicized text. There is simply very little evidence that it is true.

          2. Open borders after every welfare program has been abolished is a core libertarian tenet.

            No matter how many times you say it: no. Real libertarians do not hold rights hostage to the government. “This violates your rights, but we won’t do anything about it unless we solve some other unrelated problem,” said no libertarian ever.

            1. I’m always amused by how people who aren’t real libertarians get to define what real libertarians believe.

            2. The problems are not unrelated

        3. Once more: borders. Boarders are people who live in a boarding house.

          1. Well pirates boarding a ship are boarders, so it’s not completely unrelated to illegal immigration.

      2. Professor Somin wants to abolish the concept of citizenship. It may be good for our country’s elites, but it would be a bad policy for just about everyone else.

        1. That explains how blacks and other Democrat constituents did so well under Trump. He stopped the illegales from taking their jobs.

          1. Considering he didn’t have a problem with B-1 visas, especially from Europe, he didn’t protect any jobs that Americans want. But blocking migrant farmworkers protected jobs that Americans don’t want. So I’m not sure why you think Trump’s immigration policy was successful.

            1. There is no job Americans don’t want. There are only jobs that Americans don’t want at the wage being offered.

              But recognizing that has the disadvantage of making it too clear that the actual goal here is lowering Americans’ wages.

        2. Why do nativists always confuse immigration and naturalization?

    2. santamonica811

      I fully agree.

  3. The Chinese Exclusion Case is good law. It’s the basis of Roe v. Wade. And it would apply even if Roe v. Wade were overturned. Whether or not it forbids laws against abortion, The Constitution itself doesn’t REQUIRE women to carry unwanted babies to term. The same logic means it doesn’t REQUIRE the United States to admit unwanted aliens.

    Excluding unawanted aliens may offend Professor Somin’s religious and moral beliefs, but the constitution doesn’t enact Professor Somin’s morals. And if opposition to abortion is a religious belief not a proper basis for government policy under the First Amendment, so are Professor Somin’s beliefs.

    1. I suppose blustering and asserting is easier and more fun than actually rebutting the arguments. Do you think Madison was just making it up?

      1. Maybe Madison wasn’t making it up, and maybe the majority didn’t solidly ground their decision on the constitution the way they should have.

        But to say the Constitution didn’t give congress the authority to control immigration is absurd. First is the Naturalization clause, which under Somin’s theory would leave people free to immigrate but allow Congress to make them a permanent underclass with none of the privileges and immunities of American citizens, which I do not think the founding fathers would have approved.

        But even more plain than that is the foreign commerce clause: “ shall have power “To regulate Commerce with foreign Nations”. And too squelch the argument that immigration was not considered commerce, here is Johnsville dictionary which provides a good source of the original meaning: “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick.”
        “Intercourse” between foreign nations would surely be considered to include immigration between its citizens and ours. And Simon should be astute enough to know that.

        1. Boy, spellchecker, that’s “Johnson’s” not Johnsville.

        2. But to say the Constitution didn’t give congress the authority to control immigration is absurd. First is the Naturalization clause, which under Somin’s theory would leave people free to immigrate but allow Congress to make them a permanent underclass with none of the privileges and immunities of American citizens, which I do not think the founding fathers would have approved.

          That’s a terrible argument. You give no reason why it’s “absurd” other than you “don’t think they would have approved.” But you cite nothing to support that last point, and even if it were true that wouldn’t make it absurd. I mean, your argument isn’t even internally consistent: under your interpretation, they could have done exactly the same thing! They could have freely admitted immigrants but never allowed them to naturalize.

          A stronger argument is the provision that is generally interpreted as banning restrictions on the slave trade until 1808, but which is more generally phrased as prohibiting congressional limits on “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit.” It necessarily implies that they thought Congress could restrict immigration after that point.

          1. You don’t even address my main point:

            “But even more plain than that is the foreign commerce clause”, you need to work on improving your attention span.

    2. The Constitution is supposed to be a list of enumerated powers, and immigration control is nowhere listed. Suppose you say Madison was an idiot, that controlling immigration is such a natural part of a government that it doesn’t need to be listed. Yet then why enumerate the military, which one would assume is even more a natural part of government?

      Perhaps Madison had some idea of what he was talking about.

      1. Immigration was generally a feature of the sovereign states, not the Federal government, as Somin’s own repeated links to the Virginia state acts reveals.

        I also do not find Somin’s claim that the report by Madison specifically opposed restrictions on immigration, when he was actually discussing expelling naturalized aliens from friendly nations. Also, in Madison’s own arguments:

        to remove aliens, is a direct breach of the Constitution which provides, by the 9th section of the 1st article: that the migration or importation of such persons as any of the states shall think proper to admit, shall not be prohibited by the Congress, prior to the year 1808

        And while Madison’s report makes some good arguments, it is by no means proof that all (or even any significant portion) of the Founding Fathers agreed with him. In fact, it shows the opposite – the Alien and Sedition Acts passed Congress multiple times in the preceding decade.

        Finally, I do find Madison’s point that the military and defense powers as regards to immigration only make sense when applied to hostiles, such as a war declared by Congress, to be a good one.

        1. Yeah, the fact that Ilya didn’t think it worth noting that Madison was pointing out that 1808 date is pretty damning. That’s the sort of thing that makes me think he’s not entirely being straight with us here.

        2. This may be a question for some of the lawyers here (and may be complicated), but if a state chooses to allow migration of an immigrant (New York, for example), don’t they then have the right to freely travel and migrate internally? So that immigrant, having been allowed to emigrate by New York, could then move to Alabama with no barrier, correct?

          It’s the weakness I see in gun laws restricting straw purchases. If someone who can legally purchase a firearm can sell that firearm in a private sale to anyone they want without having to get a background check, how can the original purchaser be convicted when the sale followed the law?

      2. Actually immigration control is mentioned.

        “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

        1. Uh, are you seriously comparing the slave trade to people wanting to come to America to breathe free?

          1. No, he’s seriously pointing out a clause with relevance to both free people migrating to America to breathe free, and slaves being imported to America to toil unremittingly. It covers both topics.

          2. The unconstitutionality of slavery eliminates the “importation” part, not the migration part. They clearly made a distinction, so the assumption should be that they did it on purpose.

          3. No, for reasons mentioned by others.

        2. As I point out above Commerce was defined in Johnson’s dictionary as “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick.”

          So any ‘traffick’ or ‘intercourse’ between foreign nations could be regulated by Congress, and that would certainly include immigration.

          It’s also worth noting that the British crown always had the authority to control both emigration and immigration.

      3. I am happy to find a comment of Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf I completely agree with. Well said.

    3. The Constitution itself doesn’t REQUIRE women to carry unwanted babies to term. The same logic means it doesn’t REQUIRE the United States to admit unwanted aliens.

      That’s a world-class non sequitur.

    4. We might now find exclusion of a person on the basis of some intrinsic and immutable characteristic repugnant now, or not.
      But it is not inherently wrong to exclude a Chinaman for being a Chinaman, as no man not an American Citizen has no inherent right to come to this country.
      The Chinese exclusion act most definitely is ‘discriminatory’, in that it requires immigration officials to determine whether an immigrant is ‘Chinese’, or not-Chinese. But that does not still undermine that individual’s rights, because as a non-citizen, he had no inalienable right to immigrate to the US.

      1. Stereotyping and racism isn’t wrong? Treating every person in a racial category as the same isn’t wrong? I would think that anyone with a shred of morality would know it is wrong to do those things.

        1. The Chinese are immoral by your definition.

        2. The Chinese *government* is immoral. As thousands of people in Hong Kong can tell you, not all Chinese agree with the Communist Party.

  4. IANAL, and I am curious why Slaughterhouse isn’t listed. Everything I have read says that everyone in the debates, whether in Congress, in newspapers, or in public debates, agreed that the 14th Amendment incorporated the entire Bill of Rights against the states; that was one reason why the anti crowd hated it so much. Yet the Supremes settled on a few paltry knick knacks (glory be to navigable waters!) and threw everything else out.

    1. I’m probably one of the few people nowadays who thinks Slaughterhouse was correctly decided. The popularity of “Blaine amendments” at the state level indicates people DIDN’T think the First Amendment applied to state governments. The 14th Amendment specifically empowered Congress to enforce it, and Congress didn’t act to make Blaine redundant.

      1. That doesn’t really follow, for several reasons.

        1) Remember that the 14th amendment was adopted at gun point in the South, Southern governments didn’t actually want it, and Southern populations wouldn’t have felt obliged to comply with it.

        2) There’s an argument the Blaine amendments don’t actually violate the 1st amendment. I’m not persuaded, but it’s not an absurd argument.

        3) You don’t adopt amendments to prohibit things you think will never be done; In a sense the 14th amendment itself is an acknowledgment that discrimination was likely to be popular!

        So, that a legislature chose to violate an interpretation of the 14th amendment doesn’t mean that interpretation was invalid, they could have just chosen to violate it.

    2. Slaughterhouse is still good law, isn’t it? It reduced the P&I clause to practical insignificance, and incorporation was accomplished, piecemeal, and in a warped fashion, via the nonsensical invention of “substantive due process”.

      I think anti-cannon has to have been overturned in some fashion, not just worked around.

      1. It can be good law and still anti-canon if it’s basically been widely repudiated and no one would ever cite it approvingly today for some closely related proposition despite never being formally overturned. Korematsu is a good anti-canon example (although Trump v Hawaii purported to overturn it but that might be dicta) because no one in their right minds would ever cite it approvingly after the 50s.

        Though I’d agree Slaughterhouse doesn’t really fit into anti-canon because despite a lot of people saying the Court got it wrong there actually is widespread continuing acknowledgement that the 14th P&I clause isn’t a vehicle for incorporation at all and you have to make your arguments under the due process clause.

        1. I dunno. Bakke cited Korematsu to justify affirmative action, and Bakke certainly hasn’t been repudiated.

  5. We must always assume the best of intentions for outsiders, it seems.

    1. More that we should assume a neutral stance towards them, neither positive nor negative. Assuming the worst given the 99.99% (give or take a little) success rate of immigrants in America seems a tad extreme.

  6. Is it true that SCOTUS never explicitly overturned Dred Scott?

    1. The 14th amendment overturned it.

      1. I don’t think adopting an amendment that changes the law actually overturns an interpretation of the prior law, so much as it renders it inapplicable. “Overturning” a decision would have to involve the Court admitting the decision was actually wrong.

  7. Try applying Professor Somin’s criteria to Shelby County v. Holder and see how it comes out.

  8. Why does the power to regulate immigration not follow from the power of national defense? One major argument for controlling who enters the country is that it is desirable to exclude people who present a danger.

    1. It seems more aligned with other enumerated powers: the power to regulate commerce with foreign nations (which includes people traveling in or out of the country), or to establish rules for naturalization, or at a stretch N&P powers to carry those powers — or national defense — into effect.

    2. Because that rationale can be extended indefinitely.

    3. Because it isn’t necessary.

      Article 1 Section 9 Clause 1

      The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

      In my opinion, the most natural reading of this is that “importation” refers to the slave trade, but “migration” refers to the movement of free people. Slaves don’t “migrate” they are moved about like livestock or any other trade good.

      This reading necessarily implies that Congress had the power to regulate immigration after 1808.

      1. But then the Tax or duty “may be imposed on such Importation”. The word “migration” could have been just thrown in to make it a little more palatable. It is obvious that the purpose of this clause was to prevent the federal government from immediately banning the bringing of slaves from overseas, and had nothing to do with immigration more generally. Instead, they it had to wait at least 20 years to do that. It did ban the slave trade, effective on the first day that the Constitution allowed. (Although South Carolina was the only state still allowing it.)

        1. The word “migration” probably WAS thrown in to make it a bit more palatable, to make a show of the clause not really acknowledging slavery.

          But the word is still there, and the most natural reading is that the clause covers slaves under “importation”, and free people under “migration”.

        2. “Instead, they it had to wait at least 20 years to do that.”

          Congress did wait a good deal more than 20 years* to enact any kind of immigration controls.

          That is in no way evidence that such a wait was mandatory for constitutional reasons.

          *The first real immigration restriction was the Chinese Exclusion act passed in 1882.

          1. Incorrect. The first real immigration restriction was in 1808.

            1. Even earlier than that: The first of the several Alien and Sedition Acts was passed in 1798, and among their many parts were restrictions on entry into the country and naturalization.

    4. Perhaps, but wouldn’t that then require a positive finding of “presenting a danger” rather than an assumption of it based on geography, religion, or other generalized categorization?

  9. You can’t really add Euclid to the anti-canon since I don’t think there is a mass recognition of anything about it being completely incorrect. Nor do I think that the vast majority of judges would ever say so about the basic holding: states and cities can make zoning ordinances under the police power even if it means property might be diminish some maximizing value the owner wants to realize. No judge is going to say that a city can’t initially prohibit turning lots on largely residential streets into for-profit garbage dumps via the zoning code and that the only remedy for that is to wait until the neighbors sue for nuisance.

    1. Well, in the warped libertarian mind that Prof. Somin possesses, reasonable zoning requirements are just as bad as—or probably worse than, even!—brutally racist gov’t policies or forced sterilization, so it all makes sense in a way (to him, that is). Or maybe he’s just really into elliptic geometry is all. It can be hard to tell sometimes!


  10. “I listed several of them here”
    No, you bungled your attempt to link to wherever you presumably were referring to.

  11. Meh, the SIV program is just as racist as Japanese internment…and we also tortured detainees…and we killed a lot of civilians including babies and women.

  12. I’d really like if Wickard and Kelo would become anti-canon, but it feels increasingly less likely that economic rights will ever get due recognition in this country.

  13. The worst decision of them all was conspicuously absent: Roe v Wade.

    By my conservative estimate, over 48,000,000 human beings have been slaughtered — everything else pales in comparison.

    1. 15 million were black. This mass slaughter is beyond the imagination of the most demonic KKK genocidal maniac. Thank the vile feminist lawyer.

    2. Yeah, except there has been no establishment of a fertilized egg as a person. Until then, abortion has killed exactly zero humans.

      If you want people to accept your conclusion, you have to establish your premise first. You can’t just say “this is true because I said so, therefore my conclusion is true.”.

      1. Human = species. Fertilized eggs are human.
        Person = ??? There is no agreed upon definition of “person”, so it can mean whatever you want.

        Do you think that the species of an embryo somehow changes before birth…?

        1. What confuses and upsets me the most is the realization that God is the most evil and brutal mass-murderer in history. Think of all the humans he has slaughter via the miscarriages he has caused. Hundred and hundreds of millions. Probably in the billions.

          What’s worst is that he has chosen to kill the innocent. You’d think a wrathful God would focus on actually evil people, like rapists and murderers and Democrats. But he’s so monstrous that he focuses on the one group that is totally without sin and totally defenseless. Proof, I guess, that Christians (with their Loving God version) had it completely wrong, and we Jews (with our wrathful and murder-everyone-with-a-flood God version got it right.).

          God, why are you an evil and murdering entity?

          1. Actually, God is responsible for the deaths of over 100 billion humans so far, and is busy killing more even this very second.
            In fact, right now, God is slowly smiting you! Your doom is inevitable, for the Wrath of God is inescapable!

            Or, you are making a really stupid farce of an “argument” and trying to drag religion in somewhere it hasn’t been mentioned to avoid confronting the scientific facts about abortion.

          2. Think of all the humans he has slaughter via the miscarriages he has caused. Hundred and hundreds of millions. Probably in the billions.

            Not to mention all of the fertilized eggs that never implant in the uterus in the first place.

            1. Jason,
              Yeah, but you have to ascribe to pretty rigid dogma to say that potential life is = actual life. In my example, there’s no dispute that zygotes, embryos, etc are alive. Why God murders these 100% innocent living things is indeed a mystery to me.

              Serious argument. Not a farce. I can see why a god would murder (or, allow to die) living things, if for no reason than his creation of the Earth would be overrun and inhospitable to life. I could see God murdering, say, everyone at age 80, under the same rationale. But why murder and slaughter the ONE group that is completely innocent, completely harmless and defenseless . . . and, who has the most “future” life ahead of them? It’s just evil and abhorrent.

              1. If you are seriously asking for a discussion about theodicy, there are plenty of places you can have it with experts.
                However, it has nothing to do with anything predating your introduction of the topic into this thread. Do you have anything to add to this thread?

    3. The only bad thing about Roe is that it didn’t make things so clear that they couldn’t be skirted by a vocal minority. It seemed like it did, but never underestimate the duplicity of the self-righteous.

  14. The first clause that came to my mind was the following:

    “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

    What that clause implies is that AFTER January 1st, 1808, Congress would have the power to prohibit the migration or importations of Persons. Which of course, Congress quickly did, in 1808 with “Act Prohibiting Importation of Slaves”

    1. Ilya’s position would require that he argue against the law banning bringing slaves to this country.

      1. Should be “requires” instead of “should require”.

      2. I agree Ilya’s position that the federal government cannot restrict immigration is bizarre (it’s absurd that the states own a power which results in a hodgepodge of immigration laws for a single nation). Nonetheless, the federal government certainly could ban slaves entering under the Thirteenth Amendment (acknowledging Ilya is hard-pressed to explain how the 1808 act was enacted by the founders generation.

        1. I’m not sure I agree with your characterization of Prof. Somin’s position. I read him as disagreeing with the plenary power doctrine that gives the federal government virtually unlimited power to restrict immigration. That’s a far cry from “cannot restrict immigration.”

          1. I would be happy to see The Chinese Exclusion Case completely overruled in a decision that adopts Jefferson and Madison’s position that there is no general federal power to restrict immigration.

            1. Maybe Somin is being inconsistent here. But I read “general federal power” as equivalent to ‘virtually unrestricted power’ in this context. So, I agree with Alpheus…although your position is not a crazy or indefensible one.

              1. In the context of federalism, I read “general federal power” to be the existence of an enumerated power. As such, I think Ilya is arguing Congress can only restrict immigration when it is doing so incidental to the exercise of an enumerated power. For example, Congress can restrict the immigration of pirates under the authority to punish piracy.

        2. “Nonetheless, the federal government certainly could ban slaves entering under the Thirteenth Amendment”

          I don’t think so. Rather, under the Thirteenth amendment, the moment they were in US territory, they’d be free.

    2. Fair point. The 1808 part definitely complicates the issue.

  15. If any decision has done more to destroy the relationship between the States and the Federal Government and destroy the vision of the Framers it was Wickard v. Filburn.

    1. Unfortunately, it is still canon.

  16. I wonder if Ilya ever gets tired of the intellectual dishonesty required to blithely ignore the difference between citizens and others who are already in the country and those who have never been here. Or if he honestly believes that we have a legal duty to insure the rights of non citizens who reside outside of the US. Are we required to use military force in China to insure the Bill of Rights isn’t violated by China? And if there is no power to control who is allowed to enter this country we would have no legal power to resist an enemy invasion (all enemy soldiers must be allowed to enter, right?). The whole idea that any country doesn’t have the right to control its borders requires that its proponents be crazy or insane. Or both.

    We also have the text of the Constitution which prohibits immigration restrictions until 1808. This is another example of the bad faith in Ilya’s position.

    1. Maybe if you’d stop piling fallacies on top of fallacies…

      Enemy soldiers are not at all the same as immigrants, and obviously so. False equivalency (and alluding to a false dilemma where the choice is either restrictive immigration law, or open immigration but then we can’t stop an invading army).

      And we don’t have to affirmatively protect the rights of people everywhere in the world. But that doesn’t mean the US should actively violate their rights (by inhibiting their right to travel). Another false dilemma.

      1. Immigrants not already in the US have no Constitutional right to enter the US.

        1. Well then it’s a good thing no one here is claiming they do. The constitution acts to restrict the power of the federal government in all areas, including immigration. Where does the OP state that immigrants have a “constitutional right to enter the US?”

          1. Do you really think that Somin is suggesting that each state has the power to implement its own immigration rules, without any consideration from the others? That seems very much like the kind of mismatch that led to the Articles of Confederation being replaced with the current Constitution. Because neither states not federal government can meaningfully restrict movement between states, there must be consistent national policy and enforcement for immigration from other countries.

            1. This is the question I posed above. If the Constitution is read as giving immigration power to the states, would an immigrant be able to emigrate to New York and move to Alabama? Is there anything preventing that?

      2. If 100,000 Chinese men between the ages of 18 and 30 wanted to enter the country as individuals how can we stop them if there is no power to control immigration? After they enter can we prevent the Chinese government from arming them? (In practicality, not legality.)

        1. Actually, if they really were here legally, they could, constitutionally, legally arm themselves. Since the Supreme court pulled off incorporation via the due process clause, that applies to “people”, not “citizens”, the 2nd amendment would have to apply to them.

        2. “100,000 people with guns. That’s cute.” — Any Major American City

      3. “Enemy soldiers are not at all the same as immigrants, and obviously so.”

        Not at all obviously so. There’s absolutely nothing stopping a hostile country from ordering a battalion to change into civilian clothes and infiltrate the US by walking across our border.

        1. Aren’t there still people in Guantanamo who hid among the civilians and attackrd from them, who thus violated the Genevva convention?

          That’s a lot of effort and risk for essentially zero chance of success to make a murderous overlord back home happy.

          1. Sure, they wouldn’t be protected by the Geneva convention if they did it, but they still COULD do it. So the categories are not obviously mutually exclusive, as claimed.

          2. So your argument is that if a policy has a 1 in 10,000 chance (or less) of a bad outcome it should be rejected? The threshold for allowed policies would be 99.99%? That seems like an impossible standard.

    2. Ilya is not arguing the Bill of Rights applies in China. He is instead arguing the Equal Protection ought to apply to those who want to enter the United States.

      1. No. He’s arguing that everyone should be able to enter the US.

        1. His alternate argument is based on the Equal Protection Clause.

  17. Another spirited meeting of Libertarians For Authoritarian, Bigoted, And Cruel Immigration Policies And Practices . . . convened, as has become customary, at a natural spot for faux libertarianism.

    Carry on, clingers.

    And do not fear. In a society generally hostile to you, this is a safe space for you. If anyone says means things about you, Prof. Volokh is ready and willing to apply his muzzle to protect your feelings.

    1. How many locks do you have on your doors Arthur? Any answer short of zero must mean that you are a bigot and a racist.

      1. Is this genuinely the best the clingers can send at me? This guy is nipping at my soles, not even my ankles.

        1. I love it when racist, bigoted, so-called “betters” have to resort to ad hominem attacks.

          1. I mocked your message, Harvey Mosley. It indicates you are not cut out for this — or for modern America.

  18. McCulloch v Maryland, Roe Wade, Wickard v Filbun…

    The SC should not have the power of judicial review. It should be left up to the States who created the Federal Govt and have the right to decide when a Federal law is illegal. Its the only way to save the Republic at this point…

    1. Correct me if I’m wrong, but I believe the Constitution gave the Supreme Court that power.

      Article III, Sectiom 1:
      “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

      Article III, Section 2:
      “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;”

      But I’m not a lawyer or Constitutional Law scholar, so that may not say what it seems to say.

      1. The power of judicial review is specifically to determine when laws violate the Constitution and declare them void. The Supreme Court claimed to have that power in Marbury v. Madison, but it is not explicit in the Constitution.

        1. The text that “the judicial power of the United States, shall be vested in one Supreme Court” and that that power extends “to all cases, in law and equity” seems to be pretty clear. Throw in the Supremacy Clause and Marbury v Madison seems like a reading that reinforces the plain text of the Constitution. Am I missing something?

        2. In a sense all the branches have that power. For example, say somebody proposes a law that criminalizes the Libertarian party. The legislative branch can decline to pass the law because it’s unconstitutional. The executive branch can refuse to sign or enforce it because it’s unconstitutional. And, yes, the judicial branch can refuse to allow the case to go forward because it’s unconstitutional.

          (That’s one reason why something like Roe v. Wade ranks so highly in my own anticanon. They didn’t merely fail to check the other two branches. They legalized murder and declared the other two branches couldn’t do anything about it.)

          1. Again, can you at least modify “murder” with something like “what I believe is murder”?

            Personhood has never been extended to a fertilized egg, so factually it isn’t murder.

            1. How about, “what I, and by far the majority of people legally charged with defining ‘murder’, believed to be murder”?

        3. Considering judicial review existed in England when we wrote the Constitution, your argument is anti-originalist.

          Which can only work if the text is unambiguous. Since ‘the judicial power’ is certainly not unambiguous, your argument fails.

  19. If you want cases that should be anti-canon, try Kelo v. New London, Roe v. Wade, NFIB v. Sebelius, or Wickard v. Filburn.

    1. I’ll give you Kelo v New London. Eminent Domain is bad enough, but the government taking land from one private landowner and giving it to another makes it worse.

  20. OK, so the reasoning wasn’t very good, but as Prof. Somin seems to acknowledge, a more limited version of this result can be based on the Foreign Commerce Clause.

    What constitutional restraints are on the Foreign Commerce Clause when applied to aliens (oops, that technically-correct-but-offensive word again) who reside abroad and have never been extended residence status in the U. S.? I’d say very few restraints. Not even the Equal Protection Clause of the 14th Amendment, which was never “reverse incorporated” against the feds.

    If there’s a doubt about whether someone entered the country illegally, and they claim to be here lawfully, then of course due process applies, because they are persons and they deny the allegations against them.

    I’d even go so far as to say that anyone who claims to be mistakenly classified as an illegal alien would have the right to judicial review, not simply review by “immigration judges” who are actually Justice Dept. employees. To avoid timewasting repeat proceedings, simply transform the Justice Dept hearing officers into actual Art. III judges. Presto! Judicial review problem solved.

    If you’re admitted as a permanent resident, then you have stopped moving in foreign commerce and cannot be regulated on that basis. But if you’re convicted of a crime, of course the punishment (if the crime is serious enough) should include deportation.

    So the result of this decision (though accompanied by inflated rhetoric and racial assumptions) is close enough for govt. work and just needs a couple tweaks. Not one of the worst decisions of all time, if we’re going by results.

    1. I suppose someone will pipe up that the Supreme Court reverse-incorporated the 14th Amendment against the feds, which would be a sick burn if you think the Supreme Court can amend the constitution.

  21. And why the quote marks around “fornication”?

    Of course the states have to observe equal protection, but some states used to have (technically still do) anti-fornication laws which are race neutral.

    Maybe these laws should be repealed – or unenforced, or treated as unconstitutional, which seems to be the policy today – but that doesn’t mean the *existence* of fornication (without quotes) should be denied.

  22. Bush v. Gore would be, but its author realized that it was too disgraceful to act as precedent.

    “Our consideration is limited to the present circumstances“ — Scalia, J.

    “When the Supreme Court limits a case to its facts, it is on the way to overruling it, by nullifying the principle that decided the case.”

    1. Bush won. Fair and square.

      Cry more.

        1. The case is still a very bad one.

  23. I don’t see much difference between Justice Field’s opinion in “Chinese Exclusion” and what many commenters here say whenever the topic of immigration comes up. Racist indeed.

  24. The obvious question here is, given Amendment 10, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” is why, if this power IS actually denied to the federal government, states aren’t entitled to exercise it.

    It seems to me that if Somin takes his own position seriously, he must admit that the states, individually, DO have the power to control immigration.

    1. Brett, to get what you want, you would have to give each state a power to ban entry by anyone, including citizens of other states.
      Federalize that power state-by-state, and some state, maybe California, could just throw open its borders to anyone, admitting them as would-be future citizens, and then they could go wherever in the nation they wanted to go. It would be a less-controlled situation than at present.

      The fact is, you are not looking for a federalized immigration policy. You are looking for a national ban on entry, to be enforced against people you disapprove of. You carelessly suppose the people of every state would agree with you, both about the ban, and about the particular people you dislike.

      1. “It’s absurd to federalize immigration policy, so it shouldn’t exist at all!”


      2. Your first paragraph exactly describes Brett’s objection to Somin’s hypothesis. Your second paragraph is nothing but a half-baked ad hominem attack. Take that back to the kitchen and don’t bring it back until it’s done!

      3. “Brett, to get what you want, you would have to give each state a power to ban entry by anyone, including citizens of other states.”


        Look, naturalization absolutely IS a federal power. So, while California could, if the federal government is denied the power to regulate immigration, throw open its border with Mexico, the adjoining states would not be obligated to allow those non-citizens to leave California.

        Free travel between the states is acknowledged to be among the 14th amendment’s Privileges and Immunities, and those belong to “citizens”, not “people”, so you don’t get that right simply by virtue of walking into the country. Non-citizens, legal or illegal, lack any constitutional claim on a right to freely travel, they get such a claim from a dormant federal immigration power: The federal government having exercised it’s power to bar their entry in the negative, the states can’t override this.

        My point isn’t that *I* believe states have the power to regulate immigration. Rather, I’m pointing out that their having this power would be a logical consequence of denying it to the federal government, under the structure of the Constitution, and underscored by the 10th amendment.

        Either Ilya has not thought through all the consequences of his own position, or he is being inconsistent, and trying to have it both ways; Denying the power to both the federal AND state governments, even though as a power not prohibited, the states WOULD have it if the federal government didn’t.

        1. So you want each state to control their borders and ask for papers from anyone who want to enter? That seems like it is both impractical from a budget and efficiency perspective, unconstitutional on it’s face, and deeply disturbing.

          1. Read my penultimate paragraph again. I don’t “want” it, I’m pointing out that it being constitutional is a logical consequence of Somin’s position on the constitutionality of federal immigration law.

            Under the 10th amendment, if a power isn’t granted to the federal government, or forbidden to state governments, it’s reserved to the states, or the people. (Which depends on the details of state constitutions, it’s not a federal constitutional question.)

            If Somin is right about the federal government lacking this power, the fact that the Constitution doesn’t forbid the states to exericise it means that they’ve got it. I don’t think anybody should like that conclusion, but it follows from Somin’s reasoning.

            1. Isn’t free movement guaranteed in the Constitution and reiterated in Supreme Court cases since then?

              1. If free movement is guaranteed in the Constitution, surely you can point to the clause?

                Article IV says “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” That’s the closest you’re going to get, and as has been pointed out, it specifies *citizens*.

                1. Ah. So the distinction is between citizens and non-citizens? How does that interact with resident aliens, green card holders, etc?

                  1. Such people benefit from an exercise of some part or other of the federal government’s authority over immigration and naturalization. Their right to be here is purely statutory, a discretionary act of the federal governments that is binding on the states due to the federal government actually having the power to make that decision.

            2. It seems one could interpret the “1808 clause” two different ways.

              There is no question that prior to that date, power over immigration (whether voluntary or involuntary) was strictly reserved to the states, and denied to Congress. From there you could take two paths:

              Option 1: Congress clearly didn’t have the power before 1808, and no amendment after that created a new power over immigration, therefore they still don’t have it.

              Option 2: Putting the time limit implied that after 1808 Congress would have the power. But as Prof. Somin points out, it still has to be enumerated, so presumably it is under the commerce clause. And therefore subject to the same limits as the commerce clause.

              1. “And therefore subject to the same limits as the commerce clause.”
                So NO limits then.

                1. Not going to assume what your personal position on the commerce clause is.

                  But: if you support the incorrect “everything is interstate commerce” interpretation when it helps you justify anti-immigration policies, then you are giving assistance to those who think it covers your choice of toilet tank size, vaccine mandates, and federal gun regulations.

                  And it’s defective moral arithmetic to say if the liberals get to do it then you get to do it. That’s like a man seeing his wife beat the kids and concluding that makes it right to for him beat the kids also. Don’t sacrifice limited government just to own the libs.

                  1. Why not root immigration authority in its foreign policy powers: the ability to accept or reject foreigner impacts relationships with the host nation? Can it not be implied as part of the tools of foreign policy…where individual states may not have the expertise or national interest? I’m not big into finding commercial hooks, but here…..which might be a slightly different from founding times…people are economic capital….and the foreign commerce clause should give the national government the ability to regulate who will join the workforce. But I think the best argument is the collective action argument that individual states creating their own immigration policy potentially sets up problems for other states that are not easily addressed.

                    1. The foreign policy power as the root of federal authority over immigration is not completely implausible. And even if the constitution said states have authority, as policy I would not want to see states using that to be even more restrictive than the feds.

                      But I’m suspicious of letting the foreign policy power be used as a tool to acquire domestic power. For example, say the SC decided the commerce clause does not give the federal government authority to impose a vaccine mandate. That should be it. But then President Biden makes a treaty with Surinam in which both countries agree to require vaccinations for all (and Surinam gets some military equipment and tariff exemptions) . He then claims the vaccine mandate is necessary to give effect to the treaty power.

                      There’s something deeply wrong with that, if you support the vaccine mandate then imagine something else like suspending NY state income taxes (because it affects Surinamese citizens) or overriding CA zoning laws.

                    2. ducksalad, the treaty power is an enumerated power and by itself will always have the threat to encroach upon state prerogatives….without the consideration of immigration powers. The check is always the Senate and the people who vote for the Senators. But we also see in Medellin that the Court put limits on what policy could be implemented by non self-executing treaties. Bond is another example of the Court limiting Congress’ power to enact legislation to comply with a treaty when that legislation encroaches on state prerogatives. Here, I think limiting who enters the country does not require the treaty power…it is itself a free standing tool of foreign diplomacy.

  25. Marbury v. Madison?

    US v. Miller

  26. I see federal immigration control as the resolution of a slew of collective action problems between the states. Now I acknowledge that Article I section 8 does not have a sweeping collective action statement, but it does have a common collective action umbrella which includes things the states aren’t especially good at. If we couple this with the foreign commerce clause and regulating the input of foreign labor, its naturalization responsibility, the 1808 clause, and the fundamental sovereignty issues with setting uniform requirements for entry….the case seems compelling even though the original text is less so. Ilya wants the libertarian result though there’s no clear precedent that suggests it. Yes, early America was a virtual open door. That was a choice based on the national needs. Those needs can change, and states are in poor position to prevent their local immigration decisions from negatively impacting other states. Congress should and did step in.

    1. Let’s say we concede all of that, and agree that Congress does and should have authority over immigration.

      Now suppose some future Congress puts a Berlin Wall around the country, makes unauthorized departure a crime, and has restrictive requirements and quotas to obtain an exit visa. Of course I know you don’t want this as policy, but you seem to be arguing that it would be constitutional: the same justifications apply: We wouldn’t want states having their own exit visas, check. Affects foreign relations, check. It’s migration and it’s after after 1808, check.

      Note that this isn’t purely theoretical. Usually at our nearest bridge into Mexico there’s no inspection of outgoing traffic, you don’t need to stop your vehicle until you’re at the Mexican customs booth (and often not even then). But occasionally the US puts BCIS officers on the outgoing lanes and makes people give an account of themselves and wait for verbal permission to proceed. I never got denied such permission, but I suppose they do it just to assert the authority in case they want to do it for real sometime.

      It got on my nerves. To me a baseline requirement for a free country is that you can leave if you want to.

      1. What constrains this is the same thing that constrains the government from imposing 100% tax rates and regulations that require you to have health insurance to even access the health care market…..the political process. Now the other check is whether a fundamental liberty is being abused….then the Courts can test whether the government used the least restrictive means to achieve its Constitutional goal. I’m not sure that the right to travel abroad or not to be enclosed by a wall qualifies as “fundamental” but laws that encroached upon speech, searches, or self defense certainly would…..

  27. ” Brown v. Board of Education is probably the most famous example. If your theory of constitutional interpretation rejects one of these, it’s a serious strike against it.”

    “Funny” that Chief Justice Rehnquist and Justice Scalia went out of their way to condemn Brown. Rehnquist explicitly endorsed the constitutionality of “separate but equal”, while Scalia said that praising “liberal” principles of constitutional interpretation on the grounds that they produced Brown is like praising Hitler for “producing” the Volkswagon. (And this is not an exaggeration.)

    1. Um, you completely misunderstand what Scalia said. That wasn’t a condemnation of Brown.

  28. Also “interesting”. The Roosevelt administration, justly reviled for the Japanese interment, repealed the Chinese Exclusion Act, 1943, undoubtedly part of its outreach to China, culminating in FDR’s insistence that China be placed on an equal footing with the traditional European powers on the UN Security Council.

  29. U.S. v. Cruikshank belongs on the list.

  30. Terrible legal reasoning that has led to the deaths of millions? Roe v. Wade has to be on the list.

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