No Arbitrary Power: An Originalist Theory of the Due Process of Law

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents

The Difference Narrows: A Reply to Kurt Lash

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash’s reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain. So, in this reply—with a few exceptions—we will avoid piling up any new evidence and will instead offer succinct counterpoints to his points. Above all, we wish to stress the narrowness of our disagreement—narrowness that is easily obscured by the presentation of one source after another. As we did in our original article, we start with our points of agreement—which Lash repeatedly characterizes as “concessions.

The Letter and the Spirit: A Unified Theory of Originalism

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism. Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text). Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences

Banks' Advantage in Hedging Liquidity Risk: Theory and Evidence from the Commercial Paper Market

This paper argues that banks have a unique ability to hedge against systematic liquidity shocks. Deposit inflows provide a natural hedge for loan demand shocks that follow declines in market liquidity. Consequently, one dimension of bank “specialness” is that banks can insure firms against systematic declines in market liquidity at lower cost than other financial institutions. We provide supporting empirical evidence from the commercial paper (CP) market. When market liquidity dries up and CP rates rise, banks experience funding inflows, allowing them to meet increased loan demand from borrowers drawing funds from pre-existing commercial paper backup lines without running down their holding of liquid assets. Moreover, the supply of cheap funds is sufficiently large so that pricing on new lines of credit actually falls as market spreads widen.

Long range order in gauge theories. Deformed QCD as a toy model

We study a number of different ingredients, related to long range order observed in lattice QCD simulations, using a simple "deformed QCD" model. This model is a weakly coupled gauge theory, which however has all the relevant crucial elements allowing us to study difficult and nontrivial problems which are known to be present in real strongly coupled QCD. In the present study, we want to understand the physics of long range order in form of coherent low dimensional vacuum configurations observed in Monte Carlo lattice simulations. We demonstrate the presence of double-layer domain wall structures in the deformed QCD, and study their interaction with localized topological monopoles. Furthermore, we show that there is in fact an attractive interaction between the two, such that the monopole favors a position within the domain wall.Comment: 10 pages, 5 figure

Ion Beams in Multi-Species Plasma

Argon and xenon ion velocity distribution functions are measured in Ar-He, Ar-Xe, and Xe-He expanding helicon plasmas to determine if ion beam velocity is enhanced by the presence of lighter ions. Contrary to observations in mixed gas sheath experiments, we find that adding a lighter ion does not increase the ion beam speed. The predominant effect is a reduction of ion beam velocity consistent with increased drag arising from increased gas pressure under all conditions: constant total gas pressure, equal plasma densities of different ions, and very different plasma densities of different ions. These results suggest that the physics responsible for the acceleration of multiple ion species in simple sheaths is not responsible for the ion acceleration observed in expanding helicon plasmas