Justice George Sutherland and Commerce-Clause Federalism Before the New Deal

The jurisprudence of Justice George Sutherland illustrates howthe U.S. Supreme Court justified commerce-clause federalismbetween the end of the Civil War and the ascendancy of the NewDeal. Sutherland presented a constitutional and political defenseof federalism grounded in American natural-rights theory. Thisdefense presents arguments that federalism's skeptics and defendershave not considered sufficiently. Skeptics tend to argue thatis impossible to maintain a federalist constitutional arrangement;Sutherland's defense shows how to do so. Federalism's supporterstend to defend the commerce clause on negative grounds, thatit limits government power by forcing the states to competewith each other and Congress to compete with them all. Sutherland,however, drew on a tradition of political theory which stressedthat commerce-clause federalism offered positive benefits bykeeping the federal government lean and mean. It barred Congressfrom regulating on subjects about which it was less informedand competent than state legislators and regulators. By focusingthe federal government on truly national objects like interstatetrade, it left most regulation where citizens could see it-locally.According to this tradition, the commerce clause played a criticalrole in making the national government energetic and effective,and it also ordered local political processes so as to makecitizens self-reliant and fit for republican self-government.     

Where's the Pivot? Obstruction and Lawmaking in the Pre‐cloture Senate

This article employs a three-pronged approach to test competing theories regarding the size of coalitions required for passing legislation prior to the adoption of cloture in the Senate. We compare predictions generated by a model derived from the theory of pivotal politics with those generated by the theory of universalism. To test these predictions, we first examine coalition sizes on the passage of significant legislation. Second, we analyze the size of coalitions on dilatory motions as a predictor of success in defeating legislation. Finally, we examine coalition sizes on tariff legislation to assess the degree to which politics in this policy area were majoritarian. We find that a pivotal politics-based model incorporating the median voter and veto pivot generally outperforms universalism in explaining lawmaking patterns in the pre-cloture Senate. Narrow majorities were quite successful at legislating, although minority obstruction fostered uncertainty about the threshold required to force a final vote when adjournment loomed.     

The "Middle Ground" Perspective on the Expropriation of Indian Lands

In How the Indians Lost Their Land, Law and Power on the Frontier (2005), Stuart Banner weaves together a perceptive interpretation of the historical record, with a novel economic analysis of conflicts, to create a sophisticated narrative of the process by which European colonists took control of the lands that now comprise the United States. Banner's view of expropriation falls somewhere between the parsimony of an economic model and the richness of a traditional historical account. It forms part of a growing trend to focus on finding positive facts about the taking of Indian lands, as opposed to making normative judgments.