Response to The Riddle of Hiram Revels

Mark Tushnet

Responding to Richard A. Primus, The Riddle of Hiram Revels, 119 Harv. L. Rev. 1680 (2006)

What makes an issue constitutional rather than one merely of policy choice? According to Professor Richard Primus, “its substantively important place in American government.” Even though this definition plays no significant role on the surface of Professor Primus’s analysis of the Senate debate on the constitutionality of seating Senator Hiram Revels, I do not think it is a throwaway line. Beneath the surface, the importance of the definitional issues implicated in the debate plays quite a large role. That can be seen by unpacking the indifference the Senate majority had for what Professor Primus describes as the merely legalistic defenses of seating Senator Revels. As I interpret Professor Primus’s arguments, and the Senate majority’s, the legalistic arguments were fundamentally misplaced because they showed only that the Senate could have seated Senator Revels had it chosen to do so. For the Senate majority, though, seating Senator Revels was not optional at all; it was constitutionally mandatory. And the mandate arose from the constitutional transformation memorialized by, but not fully inscribed in, the Fourteenth Amendment. It was that transformation that defined the substantive importance of the issues raised by the debate, and therefore their constitutional dimension, and therefore the irrelevance of legalistic arguments predicated on the Constitution’s language.

119 Harv. L. Rev. F. 36 (2006) | DOWNLOAD PDF

Should Antitrust Condemn Tying Arrangements that Increase Price Without Restraining Competition?

Steven Semeraro :: In his article Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, Professor Einer Elhauge attempted to demonstrate that tying, the practice whereby a firm conditions the sale of one product on the customer’s agreement to purchase another, always harms consumers. He determined that antitrust law should prohibit tying even when that tying did not restrain competition in the tied product’s market. In this response, Professor Steven Semeraro argues that this form of tying actually benefits consumers in the long term. READ MORE

Disappearing Neighbors

David D. Troutt :: In his article Mobile Capital, Local Economic Regulation, and the Democratic City, Professor Richard C. Schragger explored the consequences of local governments’ attempts to entice — and then exploit — mobile capital. He concluded that cities possess, but must not abuse, the power to assert democratic control over capital flow. In this response, Professor David D. Troutt argues that current foreclosure crisis demonstrates the weakness of cities in relation to mobile capital. READ MORE

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Cynthia Estlund :: In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. READ MORE

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