Single Sixteen-Year Terms Would Build Confidence in State Supreme Court, Task Force Members Say

The idea of the judiciary as independent guardians of the rule of law has taken a beating in Wisconsin in recent years, amid highly contentious state Supreme Court races and the widely publicized divisions within the state Supreme Court.

What plan with a realistic chance of being enacted could help restore respect for the judicial branch of state government as separate from politics?

That premise and that question shaped the work of a four-member task force of the State Bar of Wisconsin, and what the task force recommended recently is a plan that would be unique in the nation: Election of state Supreme Court justices to 16-year terms, without any opportunity to run for reelection.

The four members of the task force described how they settled on that proposal in a recent “On the Issues with Mike Gousha” program at Eckstein Hall.

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Protecting the Public from (Certain) Emerging Growth Companies

JOBS ActPart one of this blog post concluded that Fantex’s IPO represents an unintended consequence of the 2012 JOBS Act.  The costs imposed on startups attempting to go public are significant, and the burden of complying with mandatory disclosure laws can deter even the most-attractive startups from commencing an IPO.  The JOBS Act is intended to decrease the burden on startups attempting to raise necessary capital by reducing the financial disclosure requirements normally imposed on public companies.

One way the Act reduces disclosure is through the status of “emerging growth company.”  Most notably, an emerging growth company is defined as an entity with less than $1 billion in annual revenue.  By falling within this broad definition, a startup may take advantage of reduced disclosure requirements for up to five years.

Based on this $1 billion threshold, the definition of emerging growth company is broad enough to encompass companies either experiencing an accelerated growth rate or with high-growth potential.  Unfortunately, Fantex also falls within this broad definition of emerging growth company, as noted in its prospectus.  Therefore, the real question is whether the definition is too broad so that companies with little, or no, demonstrated growth are being granted the same access to the investing public as companies that are actually growing.

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Remembering a Classic Work of Constitutional History

November 2013 marks the centennial of Charles Beard’s An Economic Interpretation of the Constitution of the United States, arguably the most important book written on the United States Constitution other than the Federalist Papers. Few works of historical scholarship have ever so dramatically transformed the scholarly (if not the public) debate over the meaning of a major American event.

At the time of the publication of An Economic Interpretation, the Indiana-born Beard was a 39-year-old Associate Professor of Political Science at Columbia University, the school from which he had received his Ph.D. in 1904. As his title suggested, his new book argued that the framers of the United States Constitution of 1787 had been motivated, not exclusively by nationalistic or democratic concerns, but by the desire to protect the property rights of wealthy Americans, especially those (including themselves) who had invested in federal bonds and had speculated in western lands.

Prior to Beard’s work, most accounts of the drafting of the 1789 Constitution were highly celebratory, and the framers were almost universally lauded for their ability to put the public interest ahead of their personal priorities. Democratic political theory, rather than self-interest, was the animating force behind the document.

Beard’s book turned this argument on its head. As a result of his research, he concluded that the Constitution had been drafted by men who at best identified the national interest with their own economic interests. As he put it in the concluding chapter, “The members of the Philadelphia Convention which drafted the Constitution were, with few exceptions, immediately, directly, and personally interested in, and derived economic advantages from, the establishment of the new system. The Constitution was essentially an economic document based on the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.” (p. 324)

The implications of this conclusion were apparent. The Constitution was a conservative, property-oriented document that was designed, not to expand democratic power, but to contain it. It was the democratic “excesses” of the period 1776-1787 that required a new constitution, not the deficiencies of the Articles of Confederation.

As Beard wrote in the book’s concluding paragraph, “The Constitution was not created by ‘the whole people,’ as the jurists have said; neither was it created by ‘the states,’ as southern nullifiers long contended; but it was the work of a consolidated group whose interests knew no state boundaries and were truly national in their scope.”

Most controversial of all was his claim, allegedly justified by the records of the United States Department of the Treasury, that a significant majority of the framers had invested in United States bonds during the Confederation period and thus had a personal reason to want to establish a strong federal government intent on establishing the security of such bonds. While many wealthy Americans opposed the ratification of the new constitution, their wealth, according to Beard, was concentrated in real, rather than personal, property and they were not heavily invested in the speculation of western lands.

Beard’s belief that the Constitution was the product of a clash between competing economic interest groups was an extension of the ideas advanced shortly after the turn of the century by University of Wisconsin historians Frederick Jackson Turner and Carl Becker. Although Turner’s published work focused primarily on the role of the “west” in American history, he encouraged has students to critically reexamine the founding period. Becker, in his History of Political Parties in the Province of New York, 1760-1776 (1909), argued that the American Revolution had been as much about who would rule at home as it was about home rule. In that sense, Beard’s work was a logical extension of Becker’s theory into the post-Revolutionary War era.

In his later books, especially An Economic Interpretation of Jeffersonian Democracy (1915) and The Rise of American Civilization (1927), Beard expanded this interpretation to the whole of pre-World War I American history.

The view of Beard and Becker and other like-minded historians that the history of the United States was primarily a story of class conflict came to be known as the progressive interpretation of American history. While this view never gained widespread acceptance among lawyers and the American public (which continued to prefer a more heroic account), it dominated the work of academic historians in the United States from the mid-1910’s until the end of the Second World War.

Beard’s interpretation of the Constitution was always controversial. The book was roundly denounced upon its publication by a wide array of public figures, including former U. S. President and future Chief Justice of the Supreme Court William Howard Taft. Moreover, not every academic student of the Constitution was convinced. Edward S. Corwin of Princeton University, the foremost constitutional scholar of the early twentieth century found Beard’s work excessively dominated by the theme of economic conflict and not sufficiently appreciative of the power of ideas. Many other critics labelled him a Marxist.

An Economic Interpretation’s influence began to wane after the Second World War. Beard himself had damaged his personal reputation a great deal by opposing United States entry into the war, even after the attack on Pearl Harbor. Moreover, in the Cold War era, the focus of academic writing in the field of American history shifted away from themes of class conflict to themes of consensus, and the progressive interpretation began to lose force. Moreover, a later group of historians, reviewing the records examined by Beard as well as other sources not available to him, argued persuasively that Beard had exaggerated the extent to which the investment in government bonds and land speculation differentiated those who supported the Constitution of 1787 from those who opposed it.

To many of his modern critics, Beard’s work seemed too narrowly ideological and insufficiently sensitive to the nuances of the past.

However, Beard’s larger argument–that the Constitution was a conservative document designed to rein in the more radical governmental ideas of the Confederation Period–was not necessarily contingent on proving the existence of naked self-interest on the part of the framers. Nor did one have to be some sort of Marxist or socialist to accept that premise. Moreover, in the preface to the 1935 republication of An Economic History (at a time when the progressive interpretation was in its heyday), Beard himself insisted that his primary purpose had been to emphasize that economic considerations were an important part of the backdrop to the drafting and ratification of the Constitution, a fact that had been ignored by previous constitutional historians, but is one that few contemporary historians would deny.

Although An Economic Interpretation is still in print, it is rarely read today. Graduate students in history departments and law schools learn about Charles Beard, but they do not read his classic works. (If they ever did. In 1935, Beard mused that his book might well be the most criticized and least read book on any aspect of American history.) Nevertheless, students of the constitutional history of the United States would disagree that the critical examination of our constitutional traditions is much more likely to advance the cause of constitutional government than to hinder it.

In the 21st century, most Americans continue to revere the drafting and ratification of the United States Constitution as though it were an event of religious significance. The character and motives of the Founders are accepted as noble and almost beyond critique, even while though we acknowledge that our government today is largely influenced by the lobbyist agents of the vested interests of the present. However, if you wince, or mentally insert quotation marks, when you hear someone talk about the Founding Fathers,you are keeping alive the tradition of Charles Beard and An Economic Interpretation of the Constitution.

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