I want to write about an issue discussed in my Bushrod Washington biography. In Golden v. Prince, Justice Washington held on circuit that state bankruptcy laws were unconstitutional. His claim was that Article I gives Congress the power to create uniform bankruptcy laws. He said that there were two ways of doing this. One was to have no bankruptcy law. The other was to have a federal law. That was it.
The Supreme Court did not accept Washington’s view. Sturges v. Crowninshield held that some state bankruptcy laws were constitutional. Washington later said that he still thought that he was right in Prince.
Was Washington correct in his analysis? I don’t know, but I may into look into that further. His textual argument has interesting implications. Suppose that states are constitutionally disabled from acting only when there is an express bar (like in Article I, Section 10) or where the text uses the word “uniform” to describe the relevant power or obligation. That would mean that the Dormant Commerce Clause is wrong, that Trump v. Anderson is wrong, and more.