Leading Scholars Gather for Constitution Day

November/​December 2019 • Policy Report Vol. 41 No. 6

Cato’s annual Constitution Day symposium marks the day in 1787 that the Constitutional Convention finished drafting the U.S. Constitution. Cato celebrates that event every year with the release of the new issue of the Cato Supreme Court Review and a day long symposium featuring noted scholars discussing the recently concluded Supreme Court term and the important cases coming up.

This year’s Constitution Day symposium featured panels on several of the courts most important cases, with participants discussing their contributions to this year’s Review. Anthony J. Colangelo, professor of law at Southern Methodist University Dedman School of Law, discussed the complicated contours of the double‐​jeopardy clause and the so‐​called “dual sovereignty” doctrine in Gamble v. United States. Cato has long urged the court — unsuccessfully, in this case — to overturn the dual sovereignty doctrine, which allows for the federal and state governments to prosecute conduct for which a person was already acquitted under the other jurisdictions laws.

Paul J. Larkin Jr. of the Heritage Foundation offered his take on Auer deference (so called for the 1997 case Auer v. Robbins), the doctrine that courts should defer to an agency’s interpretations of its own regulations. In the 2019 case Kisor v. Wilkie the court did not overturn Auer, but it did impose new restrictions on its scope. This will provide important leverage to plaintiffs who challenge arbitrary and unjust actions by regulatory agencies.

Other cases discussed include Tennessee Wine and Spirits Retailers Association v. Thomas, in which the court, by a 7–2 vote, struck down Tennessee’s protectionist discrimination against out‐​of‐​state residents in the liquor business; Timbs v. Indiana, in which the court held that the excessive fines clause of the Eighth Amendment restricts states’ use of civil asset forfeiture; and The American Legion v. American Humanist Association, in which the court ruled that a century‐​old World War I memorial cross did not violate the establishment clause of the First Amendment. In all three of these cases, the Supreme Court sided with the result urged by the Cato Institute in its amicus briefs.

This year’s Constitution Day also marked a milestone for the Cato Supreme Court Review, which is now under a new editor in chief. After editing 11 volumes, Ilya Shapiro has taken over as the new director of Cato’s Robert A. Levy Center for Constitutional Studies and has passed editorship of the Review to Trevor Burrus. Roger Pilon, who founded both the Center and the Review, remains director emeritus and holds the B. Kenneth Simon Chair in Constitutional Studies.

Every year’s Constitution Day symposium concludes with the B. Kenneth Simon Lecture. The 2019 lecture was delivered by Judge Thomas Hardiman of the U.S. Court of Appeals for the Third Circuit. Hardiman, who is reputed to be a shortlist candidate for the Supreme Court, spoke about the history and importance of judicial independence, including how the English experience shaped the decisions of the Framers at the Constitutional Convention. This legacy is alive and well on the Roberts court according to Hardiman, and it plays a key role in the jurisprudence of Chief Justice John Roberts.