The Rule of Law, Freedom, and Prosperity.

After decades of neglect, the rule of law is much on the minds of legal scholars today. In the United States, the Supreme Court's controversial decision in Bush v. Gore has triggered renewed interest in understanding the concept of the rule of law and its value to society. Transition and developing economies have increasingly come to recognize the importance of the rule of law in establishing a framework for economic growth and individual liberty. This essay provides an overview of these debates over the concept and consequences of the rule of law. Although American scholars have criticized the Supreme Court's decision in Bush v. Gore as violative of the rule of law, this criticism rests on an erroneous understanding of the rule of law. The tradition of the rule of law, as expressed by Dicey, Oakeshott, Hayek, and others, is consistent with the Supreme Court's decision in Bush v. Gore. Moreover, this tradition of the rule of law is a cornerstone of a free and prosperous society, in America and abroad.

Wine Wars: The 21st Amendment and Discriminatory Bans to Direct Shipment of Wine

This essay is actually a series of posts from the Volokh Conspiracy weblog (www.volokh.com) that discusses the policy and constitutional issues surrounding a question that the Supreme Court will hear this term, whether discriminatory barriers to the interstate direct shipment of wine are constitutional. Because of the timeliness of the issue, the essay is presented in this unusual and informal format so as to be available to the public more rapidly than through the traditional law review format. This essay” reviews the historical evidence and ratification history of the 21st Amendment, and concludes that the answer is unambiguously no. The purpose of the 21st Amendment was to reverse the 18th Amendment’s disastrous experiment with federal Prohibition, and thereby to restore the balance between state and federal power that had existed prior to the 18th Amendment. It did this in two ways. First, § 1 of the Amendment repealed Prohibition, restoring to the States their exclusive police power authority to regulate the local sale and distribution of alcohol. Second, § 2 of the Amendment constitutionalized certain federal laws that allowed the States to enforce their police power on equal terms against alcohol shipped in interstate commerce as against alcohol manufactured or sold within the State. Section 2’s purpose was to nullify a line of Supreme Court decisions that compelled some States to “reverse discriminate” in favor of out-of-state vendors. As a result, the 21st Amendment removed the federal government from meddling in local affairs, but did not cede a novel and unnecessary power to the States to meddle in the federal government’s traditional control over interstate commerce. In other words, the 21st Amendment enabled dry States to remain dry if they so chose, but it did not empower wet states to engage in economic warfare against the products of other wet States

Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals

The purpose of this article is to review and synthesize the lessons of recent Seventeenth Amendment scholarship and how these lessons apply to current reform proposals. Part I discusses the emerging understanding of the integral and multifaceted role played by the Senate in the original constitutional structure. Part II further reviews and critiques the traditional explanations which have been offered for the Seventeenth Amendment, and demonstrates their failure to explain the passage of the Seventeenth Amendment. Part III discusses an alternative explanation for the Seventeenth Amendment rooted in a public choice analysis of constitutional change, one which largely has been ignored by commentators. Part IV examines several recent proposals for constitutional reform which either directly or indirectly affect the Senate, and illustrates the wisdom of these proposals in light of the Seventeenth Amendment. Part V presents concluding thoughts