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HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 43, NUMBER 1 WINTER 2020 THE RESURGENCE OF ECONOMIC LIBERTY THE THIRTY-EIGHTH ANNUAL FEDERALIST SOCIETY NATIONAL STUDENT SYMPOSIUM ON LAW AND PUBLIC POLICY—2019 THREE KEYS TO THE ORIGINAL MEANING OF THE PRIVILEGES OR IMMUNITIES CLAUSE Randy E. Barnett ......................................................................... 1 IS THE FEDERAL JUDICIAL CURE FOR PROTECTIONISM WORSE THAN THE DISEASE? Roderick Hills ............................................................................ 13 THE PERILS OF CIVIL ASSET FORFEITURE Erik Luna ................................................................................... 23 ECONOMIC LIBERTY AND CRIMINAL JUSTICE Beth A. Colgan ........................................................................... 31 TURNING ENTREPRENEURS INTO OUTLAWS Christina Sandefur .................................................................... 45 BITCOIN’S NATURE AND ITS FUTURE John O. McGinnis ...................................................................... 59 THE CONSTITUTIONAL BEDROCK OF DUE PROCESS Allan Ides ................................................................................... 67 ARE STATES PROTECTING ECONOMIC LIBERTY? Dana Berliner ............................................................................ 77 ARTICLES ARE CRIMINALS BAD OR MAD? PREMEDITATED MURDER, MENTAL ILLNESS, AND KAHLER V. KANSAS Paul J. Larkin, Jr. & GianCarlo Canaparo ................................ 85 THE CONSCIENCE OF CORPORATIONS AND THE RIGHT NOT TO SPEAK William E. Lee .......................................................................... 155 CONSENT OF THE GOVERNED: A CONSTITUTIONAL NORM THAT THE COURT SHOULD SUBSTANTIALLY ENFORCE David Schoenbrod .................................................................... 213 NOTE COUNTERACTING MARBURY: USING THE EXCEPTIONS CLAUSE TO OVERRULE SUPREME COURT PRECEDENT Brian Kulp ............................................................................... 279 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief NICOLE M. BAADE Deputy Editor-in-Chief Articles Chair R.J. MCVEIGH Managing Editors JACOB THACKSTON HUGH DANILACK AARON GYDE Senior Articles Editors Executive Editors AARON HSU OTHON ALVES Deputy Managing Editors KEVIN KOLJACK DAVID BENGER MAX BLOOM RYAN MAK ALEX CAVE CHASE BROWNDORF JAMES MCGLONE DOUGLAS COLBY JOHN KETCHAM JOEY MONTGOMERY RICARDO CRUZAT ANASTASIA FRANE STUART SLAYTON JOSHUA HA Articles Editors ADAM KING Chief Financial Officer ICK ORDOVA N C BRIAN KULP DYLAN SOARES JAMIN DOWDY WHITNEY LEETS AARON HENRICKS ANNA LUKINA Deputy Chief Financial Officer JASON MUEHLHOFF MICHELLE MIAO COOPER GODFREY ALEX RIDDLE JOHN MITZEL OLIVER ROBERTS ELIZABETH PYJOV Communications Manager JAY SCHAEFER JASJAAP SIDHU WENTAO ZHAI JESSICA TONG BRYAN SOHN TRUMAN WHITNEY DOUG STEPHENS IV Events Manager VINCENT WU MATTHEW WEINSTEIN TRUMAN WHITNEY Website Manager Notes Editors Social Chair MARK GILLESPIE DAVIS CAMPBELL JAY SCHAEFER BRIAN KULP Senior Editors PAYTON ALEXANDER ALEXANDER GUERIN ALEX RIDDLE VINCENT WU JOHN BAILEY AARON HENRICKS OLIVER ROBERTS YIFENG YUAN NICK CORDOVA JOHN MORRISON JAY SCHAEFER WENTAO ZHAI JAMIN DOWDY JASON MUEHLHOFF ISAAC SOMMERS ROBERT FARMER ALEXANDRA MUSHKA JESSICA TONG COOPER GODFREY TERRENCE OGREN AARON WARD Editors JOHN ACTON WILLIAM FLANAGAN JEREMY LEWIN BRYAN POELLOT JASON ALTABET CHRISTOPHER HALL MAGD LHROOB JACOB RICHARDS MATT BENDISZ JACOB HARCAR KEVIN LIE BENJAMIN SALVATORE AUGUST BRUSCHINI CHRISTIAN HECHT PRANAV MULPUR ADAM SHARF ALAN CHAN ROSS HILDABRAND DANIEL MUMMOLO ASHLEY VAUGHAN CATHERINE COLE OWEN HOSSEINZADEH ELI NACHMANY DUNN WESTHOFF JONATHAN DEWITT COURTNEY JONES CARSON PARKS JUSTIN YIM RYAN DUNBAR ALEXANDER KHAN HUNTER PEARL Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Massachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are renewed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably prepared using Microsoft Word. Views expressed are those of the authors and do not necessarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2020 by the Harvard Society for Law & Public Policy, Inc. PREFACE The recent trade war between the United States and China has highlighted arguments between free-market principles and protectionism nationally. At the state and local level too, judges, lawmakers, and scholars have debated the proper balance be- tween individual economic liberty and governmental interests on issues like civil asset forfeiture, licensing, and home-sharing laws. Consideration of these issues, however, is not a recent invention. The quest for economic liberty in response to tyranni- cal restrictions on trade and taxes was central to the American Revolution and to debates leading to the Constitution’s ratifica- tion. In a similar vein, the theme of the Thirty-Eighth Annual Federalist Society Student Symposium was inspired by Frédéric Bastiat’s maxim: “Life, liberty, and property do not exist be- cause men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” Many of the nation’s finest scholars and judges came together at the Symposium to discuss how factions, relations among the states, congressional powers, and constitutional structure affect economic liberty. We have the honor of presenting eight Essays from the Symposium in this Issue of the Harvard Journal of Law & Public Policy. In the first, Professor Randy Barnett analyzes three key historical data points to determine the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause. Next, Professor Roderick Hills examines whether economic protectionism is a legitimate state interest. In three thought- provoking Essays, Professor Beth Colgan, Professor Erik Luna, and Christina Sandefur discuss the interplay between criminal justice and individual economic liberty. Then, Professor John McGinnis remarks on the nature of Bitcoin and its future as a currency. Finally, Professor Allan Ides and Dana Berliner each explore the contributions of federalism and constitutionalism to economic liberty. Additionally, we are pleased to present three Articles ad- dressing current constitutional issues. The first Article of this Issue, by Paul Larkin and GianCarlo Canaparo, considers the case Kahler v. Kansas, currently pending before the Supreme Preface ii Court. They argue that neither the Due Process Clause nor the Cruel and Unusual Punishments Clause requires criminal law to offer an insanity defense. Next, Professor William Lee ana- lyzes the Supreme Court’s struggle with corporate identity through an in-depth look at the Justices’ papers in First Amendment cases over the past forty years. He argues that government efforts to fine-tune the flow of information by compelling private speech should be rejected because they promote government-defined orthodoxy. Finally, Professor David Schoenbrod argues that Congress and the Supreme Court should enforce the consent-of-the-governed norm, more broadly known as the nondelegation doctrine. We are happy to close this Issue with a Note from one of our own. Brian Kulp argues that the Constitution grants Congress near-plenary power to curb the Supreme Court’s appellate ju- risdiction, but this power should only be used with bipartisan support after attempting to use the amendment process. This Issue would not have been possible without the hard work and dedication of the Journal and Symposium editors. I cannot thank them enough. In particular, Deputy Editor-in- Chief R.J. McVeigh revitalized our editing process and provided wise counsel. Articles Chair Jacob Thackston has been irre- placeable in managing our submissions and article selection process. Hugh Danilack served as National Symposium Editor and Managing Editor, excelling at both. Aaron Gyde, also a Managing Editor, put in countless hours doing exceptional ed- iting work. Dylan Soares, our Chief Financial Officer, generously undertook the time-consuming work of managing the Journal’s business affairs. Aaron Hsu made himself available every day to help in the final rounds of editing, answering all my tricky editing questions. And Dallin Earl was always around to listen and brainstorm ideas
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