Dan Rodriguez

Digging a Hole: The Legal Theory Podcast

Now that the election is done and dusted, and we’ve had a chance to process somehow one of the least controversial presidential races of the last few decades, America’s back to business, with Congressmen threatening international institutions, the American public spending gobsmacking amounts of money for the holiday season, and California declaring a state of emergency over bird flu. Wait a second—can states even do that? Lucky for us, today’s podcast guest is an expert on state and local government law and state constitutional law who’s written a book on the very subject. We’re thrilled to welcome back the Harold Washington Professor of Law at the Northwestern University Pritzker School of Law, Daniel B. Rodriguez, to discuss his new (open-access!) book Good Governing: The Police Power in the American States.

Ever wondered what the terms sic utere and salus populi mean? We kick off the podcast discussing those two different approaches to the police power of the states. Rodriguez expounds on his thesis about the development of state police power by discussing all the state cases he’s read, and why legal scholars focused on the federal courts usually get things wrong. Next, we discuss the different kinds of checks that exist on state power: structural, rights-based, and democratic. We then turn to the interplay between police power on the one hand, and the state and local government relationship on the other. (Sam’s out for this one, so you know we really get into the weeds of state and local governments.) Finally, we wrap up with Rodriguez’s argument for why state capacity is a problem of state constitutional law and good governing.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

• The People’s Welfare: Law and Regulation in Nineteenth-Century America by William J. Novak

• “The Purposes of American State Constitutions” by Donald S. Lutz

• How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart by Jamal Greene