Emergencies, constitutions, Milligan and Padilla

[Frank Cross]

At 04:12 PM 9/9/2005, isomin at gmu.edu wrote:

>3. On the Legal Tender Cases. Based on my limited, nonexpert knowledge, I 
>think that paper money may well be unconstitutional as an original matter. 
>Would I urge courts to so rule today? Probably not because of the massive 
>built-up reliance interests. One can argue that this is a problem with or 
>an inconsistency in originalism. But other interpretative methodologies 
>face the same issues. Certainly, believers in various forms of "living 
>constitution" theories encounter situations where the decision they 
>consider legally correct would impose tremendous social costs that they 
>would prefer to avoid.

Exactly.  But originalism has a "consequences be damned" flavor, so that it 
sits poorly here.  Allowing consideration of those social costs lets the 
camel's nose into the tent.  What is "tremendous"?  Why really must they be 
so great as to be "tremendous"?  Pretty soon we have a living Constitution

>At the same time, I think the problem of paper money is less of a 
>challenge for originalism than many suppose. If the Supreme Court were to 
>hold paper money unconstitutional, it's virtually certain that an 
>amendment would swiftly be passed to overrule that decision. The stronger 
>criticism of originalism arises not in cases where virtually everyone 
>admits that something that might be unconstitutional is a good thing but 
>in cases where a strong MAJORITY believes so, but not quite enough to 
>force an amendment through the Article V process.

I don't think "swiftly" would quite cut it.  I think you'd have a pretty 
disastrous economic situation (not to mention some interesting legal 
issues) in even a brief interim.





>Ilya Somin
>Assistant Professor of Law
>George Mason University School of Law
>3301 Fairfax Dr.
>Arlington, VA 22201
>ph: 703-993-8069
>fax: 703-993-8202
>e-mail: isomin at gmu.edu
>Website: http://mason.gmu.edu/~isomin/
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>
>One other point on legal tender.  By 1884, in Julliard v. Greenman, 110 
>U.S. 421, the legality of Congress's making paper money legal tender had 
>become "normalized," as it were, so that no assertion of "emergency" 
>appeared to be necessary.
>
>I would be interested in the views of our ostensible originalists on this 
>list about the continuing legality of paper money, given the fairly hard 
>evidence, at least according to Kenneth Dam, that the framers were 
>generally appalled by the idea.  And should Julliard lead us to express 
>some reservations about the optimistic views of Posner and Vermuele (and 
>many others) that incursions on civil liberties during times of emergency 
>generally recede, like the flood waters in New Orleans, come more halcyon 
>days?  (I actually have no well-formed views about the merits of paper 
>money, given that I can no more imagine a world without it than I can 
>imagine a world without telephones or airplanes.)
>
>sandy
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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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