One(?) Nation overextended

Boston University Law Review

Volumn 94, Issue 3, 2014, Pages 1109-1125

  Lawson, Gary ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 84903701546     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (53)

1. See Journal of the Federal Convention, reprinted in 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 120, 223-30 (Jonathan Elliot ed., Washington, 2d ed. 1836).
2. JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 410 (Adrienne Koch ed., 1966).
3. MADISON, supra note 4, at 410. As an anticlimactic end to this saga: After Oliver Ellsworth noted that any future problems of representation could be handled by subsequent amendment, See id., Madison and Roger Sherman proposed adding "not exceeding" before the words "1 for every 40,000," Id., thereby - in a rather remarkable reversal - capping the size of the legislature rather than the number of people that any Member could represent. This proposal, with a last-second change in the "not exceeding" proviso from 40,000 to 30,000, See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 12-13 (1998), made it into the final Constitution, See U.S. CONST, art. I, § 2, cl. 3. Subsequently, the original First Amendment to the Constitution - the first of the twelve amendments submitted to the States for ratification in 1791 - combined, in a complex formula, limitations on both the extent of representation and the size of the House. The amendment failed to achieve ratification by one vote. See AMAR, supra, at 14-17.
4. See SANFORD LEVTNSON, FRAMED: AMERICA'S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 93 (2012).
5. THE FEDERALIST NO. 10, at 78 (James Madison) (Clinton Rossiter ed., 2003).
6. See F.H. Buckley, The Efficient Secret: How America Nearly Adopted a Parliamentary System, and Why It Should Have Done So, 1 BRIT. J. AM. LEGAL STUD. 349, 362 (2012) (tracing the Humean origins of the idea of the extended republic).
7. But cf. Ian Bartrum, Constructing the Constitutional Canon: The Metonymie Evolution of Federalist 10, 27 CONST. COMMENT. 9, 20 n. 37 (2010) (noting the dispute about Hume's influence on Madison).
8. Whether it was the conventional wisdom immediately post-Madison or only became the conventional wisdom considerably later is another matter altogether. See Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611 (1999) (suggesting the latter).
9. Adapted from map image available in the Wikimedia Commons. File:ElectoralCollege2012.svg, WIKIMEDIA COMMONS (Mar. 25, 2014, 9:35 PM), http://en.wikipedia.org/wiki/File:ElectoralCollege2012.svg, archived at http://perma.cc/L8EE-MH79.
10. Adapted from map image available in the Wikimedia Commons. File: 2012 Presidential Election by County.svg, WIKIMEDIA COMMONS (Mar. 25, 2014, 9:35 PM), http://en.wikipedia.org/wiki/File:2012-Presidential-Election-by-County.svg, archived at http://perma.cc/RU4L-ZHK4.
11. Roughly a week after I wrote this sentence, Pat Buchanan published a column making almost precisely the same point - complete with references to Yugoslavia and the former Soviet Union. See Patrick J. Buchanan, Is Red State America Seceding?, WORLD NET DAILY (Oct. 10, 2013, 7:58 PM), http://www.wnd.com/2013/10/is-red-state-america-seceding, archived at http://perma.cc/NL5S-2EEN.
12. See Katharine G. Young, American Exceptionalism and Government Shutdowns: A Comparative Constitutional Reflection on the 2013 Lapse in Appropriations, 94 B.U. L. REV. 991 (2014).
13. Michael P. McDonald, 2012 General Election Turnout Rates, U.S. ELECTIONS PROJECT, http://elections.gmu.edu/Turnout-2012G.html (last updated July 22, 2013), archived at http://perma.cc/3FVK-ZBNS (finding that only 58.2% of the voting-eligible population voted in the 2012 presidential election).
14. Trust in Government, GALLUP, http://www.gallup.com/poll/5392/trust- government.aspx (last visited Mar. 2, 2014), archived at http://perma.cc/3LZN- URMM (indicating that, in 2010, eighty-one percent of those surveyed trusted the government to do what is right "only some of the time or never")-
15. That enterprise dates from my very first scholarly article. See Gary Lawson, The Ethics of Insider Trading, 11 HARV. J.L. & PUB. POL'Y 727, 775-83 (1988).
16. Letter from Thomas Jefferson to President James Madison (Apr. 27, 1809), reprinted in 12 THE WRITINGS OF THOMAS JEFFERSON 274, 277 (Albert Ellery Bergh ed., 1905).
17. Whether it permits the acquisition of territory not destined for statehood is another question altogether, which will loom large shortly. See infra notes 66-73 and accompanying text. For exploration and elaboration of a broad range of points regarding the constitutional foundations of expansion, including identification of the forms and limits that constrain the territorial expansion of the United States as a matter of original constitutional meaning, see GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE: TERRITORIAL EXPANSION AND AMERICAN LEGAL HISTORY (2004).
18. See Letter from Thomas Jefferson to John Dickinson (Aug. 9, 1803)
19. reprinted in 8 THE WRITINGS OF THOMAS JEFFERSON 261, 262 (Paul Leicester Ford ed., New York, G. P. Putman's Sons 1897).
20. See EVERETT SOMERVILLE BROWN, THE CONSTITUTIONAL HISTORY OF THE LOUISIANA PURCHASE 1803-1812, at 17-29 (1920).
21. This is hardly an original insight. See Alberto Alesina, The Size of Countries: Does It Matter?, 1 J. EUR. ECON. ASS'N 301, 306 (2003) ("Dictators prefer large empires to small countries, because they can extract larger total rents from larger populations⋯.").
22. See MICHAEL S. GREVE, THE UPSIDE-DOWN CONSTITUTION 38-39 (2012).
23. Again, this is hardly an original insight. See RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL CONSTITUTION 22 (2014) ("[T]he greater costs of organizing national coalitions are often offset by the greater gains to be obtained.").
24. All else may not be equal. At some point expanding the size of a country may reduce rather than increase the available wealth once the costs of consolidation and coordination exceed the gains from expansion. But as long as cross-border trade is not entirely free, it is plausible to think that larger national markets generally mean more wealth than smaller ones. See Alberto Alesina & Enrico Spolaore, On the Number and Size of Nations, 112 Q.J. ECON. 1027, 1029 (1997).
25. See R. H. Coase, The Nature of the Firm, 4 ECONOMICA 386, 390-98 (1937).
26. Determining a metric for optimality is no small task, even once one has settled on a normative framework for making that judgment. See, e.g., David Friedman, Book Review, 10 INDEP. REV. 281 (2005)
27. (reviewing ALBERTO ALESINA & ENRICO SPOLAORE, THE SIZE OF NATIONS (2003)).
28. Getting the normative framework right is another matter altogether. For a welfarist analysis of optimal national size, see Alesina, supra note 28; Alesina & Spolaore, supra note 32. For doubts about the coherence, attractiveness, or both, of welfarist analysis in general, see Gary Lawson, Efficiency and Individualism, 42 DUKE L.J. 53 (1992).
29. For example, I am comfortable with first possession as a foundation for property rights. See Gary Lawson, Truth, Justice, and the Libertarian Way(s), 91 B.U. L. REV. 1347 (2011).
30. Others, however, find it odd. See SOTDUOS A. BARBER, THE FALLACIES OF STATES' RIGHTS 208 (2013) ("[L]ucky ones are called 'first possessors.' What they control is called 'property.' Official coercion to secure property from third persons is called 'justice.' And social justice, including equal opportunity, by the visible hand of public-spirited authority, is called 'theft.'"). Take away the phrase "public-spirited" and substitute "outcomes preferred by liberals" for the term "social justice," and I would heartily adopt in its entirety Professor Barber's account of first possession as both descriptively and normatively correct. But Professor Barber is right in his implicit claim that first possession, as with every other normative concept, needs a defense rather than an assertion (and, I would add, needs a foundationally sound defense at that). That defense can only come from moral and political theory, which means that a humble law professor, who is not prepared to derive a foundationally sound theory from metaphysics through epistemology through ethics through politics, needs to shut up and talk about law.
31. Or so I would argue in a different paper at a different symposium. For preliminary thoughts, see Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231 (1994).
32. See ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE: WHY SMALLER GOVERNMENT IS SMARTER (2013).
33. See, e.g., DAVID L. NORTON, PERSONAL DESTINIES (1976)
34. TARA SMITH, AYN RAND'S NORMATIVE ETHICS (2006).
35. See Aaron T, Knapp, Law's Revolution: Benjamin Austin and the Spirit of '86, 25 YALE J.L. & HUMAN. 271, 354 n. 482 (2013).
36. See JAY WINK, APRIL 1865: THE MONTH THAT SAVED AMERICA 16-20 (2001).
37. See Thomas H. Naylor, Mission Statement, SECOND VT. REPUBLIC (Aug. 14, 2012), http://vermontrepublic.org/svr-mission, archived at http://perma.cc/3JE2- 8FQS.
38. See Frances Romero, Second Vermont Republic, TIME (Jan. 10, 2011), http://content.time.com/time/specials/packages/article/0,28804, 2041365-2041364-2041351,00.html, archived at http://perma.cc/ZZ3S-D82Y.
39. See Manny Fernandez, White House Rejects Petitions to Secede, but Texans Fight On, N.Y. TIMES, Jan. 16, 2013, at A11.
40. See Michael Bastasch, California Secession Movement Picks Up Steam, DAILY CALLER (Sept. 25, 2013, 9:38 PM), http://dailycaller.com/2013/09/25/california- secession-movement-gains-steam, archived at http://perma.cc/9ZJY-XQU5
41. Greg Campbell, "North Colorado" Secession Movement Inches Forward, DAILY CALLER (Aug. 20, 2013, 2:21 PM), http://dailycaller.com/2013/08/ 20/north-colorado-secession-movement-inches-forward, archived at http://perma.cc/A2K8-2Q3P.
42. See At Least 5 Rural Colorado Counties Vote to Explore Secession, Fox NEWS (Nov. 5, 2013), http://www.foxnews.com/politics/2013/11/05/at-least-5- rural-colorado-counties-vote-to-explore-secession, archived at http://perma.cc/M2RY-G9L2. To be clear, those counties want to remain in the United States as the fifty-first state. They simply want to secede from what they regard as an unrepresentative (of them) Colorado state government.
43. See Steven G. Calabresi & Nicholas Terrell, The Number of States and the Economics of American Federalism, 63 FLA. L. REV. 1, 10-14 (2011).
44. When discussing what the Constitution prescribes (as opposed to, for example, discussing how real-world actors should behave), "original constitutional meaning" is a redundancy. Originalism is the uniquely correct methodology for identifying the communicative signals contained within the document, though that identification by itself carries no normative significance. For a brief argument to this effect, see Gary Lawson, Originalism Without Obligation, 93 B.U. L. REV. 1309 (2013).
45. See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 33-39 (2005)
46. Akhil Reed Amar & Sanford Levinson, What Do We Talk About When We Talk About the Constitution?, 91 TEX. L. REV. 1119, 1125-29 (2013).
47. See Steven G. Calabresi, The Right to Buy Health Insurance Across State Lines: Crony Capitalism and the Supreme Court, 81 U. CIN. L. REV. 1447, 1474-75 (2013).
48. See generally Andreas Zimmerman, Secession and the Law of State Succession, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 208 (Marcelo G. Kohen ed., 2006).
49. Indeed, apart from the Dutch separation from Spain in the sixteenth century, it is hard to find instances of secession that asserted any kind of legal authority prior to the American Revolution. See Andrei Kreptul, The Constitutional Right of Secession in Political Theory and History, 17 J. LIBERTARIAN STUD. 39, 62-63 (2003).
50. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05 (1819)
51. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1455-62 (1987).
52. Texas v. White, 74 U.S. (7 Wall.) 700 (1869).
53. It is easy to see how this works in the case of annexation, which requires a statute to incorporate the new territory into the United States. As there is no specifically enumerated power of acquisition by annexation, any such statute could only be authorized by the Necessary and Proper Clause, which requires any such law to be "necessary and proper for carrying into Execution" some other federal power. U.S. CONST, art. I, § 8, cl. 3. But what about acquisitions of territory by treaty? The Treaty Clause merely says that the President can "make Treaties, provided two thirds of the Senators present concur," Id. art. II, § 2, cl. 2, and contains no apparent limitation that such treaties be "necessary and proper" for anything. That apparent absence is, however, an illusion; as a matter of original meaning, the Treaty Clause is an implementational provision, just like the Necessary and Proper Clause, and is subject to very similar internal limitations. Or so I have elsewhere argued at interminable length. See generally Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV. 1.