Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:
[W]hat we have seen in recent years gives me pause. . . . Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.
. . .No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of “dual sovereignty.” Those statutes include the Gun-Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the Trademark Remedy Clarification Act, the Age Discrimination in Employment Act, the Violence Against Women Act, and the Americans with Disabilities Act.
. . .
United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a prophecy stated in an earlier era, the Court warned that if the law were upheld, then “there never will be a distinction between what is truly national and what is truly local.”
[Paragraph on United States v. Morrison, Kimel v. Florida Board of Regents, and Alabama v. Garrett.]
Beyond the damage that these cases do to civil rights, and the fact that they upset settled understandings of congressional power, what is troubling about them is that they do not occur at a time in our Nation’s history when there is a significant public clamor for a different constitutional vision. To be sure, there has been a general tendency in recent decades in favor of a smaller role for national government, although many have rethought such notions in the wake of September 11th. But more importantly, the recently invalidated statutes themselves provide compelling evidence that the American people are not the true wizards behind the Court’s velvet curtain.
The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent. . . .
But even more astounding than the Court’s willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress—and by extension, the American people—from playing a part in defining what the Constitution requires and what it permits. The recent cases do not pretend to be opening arguments in a longer debate. Instead, they are self-conscious pronouncements asserting the Court’s authority to be the sole and final arbiter of constitutional meaning. More and more, it seems, Congress and the American people, by extension, are regarded by the Court as mere targets of judicial discipline, unable to live and govern themselves within “judicially enforceable outer limits.”
The Court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only say. . . .
When the Constitution says that Congress shall have power “to regulate commerce … among the several States,” does that not suggest that Congress has some role in determining what counts as interstate commerce? . . . The Court’s recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much.
The net result is that Congress is now left to navigate a doctrinal minefield of magic words. . . . The next time I consider school safety legislation, should I wonder whether school safety is “truly national” or “truly local”? And as I work on hate crimes legislation or a bill to ban workplace discrimination based on sexual orientation, how can I be sure it is a “congruen[t] and proportional” response to a constitutional wrong before I hear the answer from the other side of Constitution Avenue?
These questions begin to give you some idea of the anxiety I feel about the Court’s unilateral effort to redefine the separation of powers in our national government. Beyond raising new questions about the constitutionality of substantive legislation, the Court has sought to minimize the significance of Congress’s views on those very constitutional questions.
. . .
Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees—including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today. [FN72] I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to “advise” before it “consents.”
Footnote 72 includes the following:
The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227-29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).
Brett Bellmore says:
Sounds like a rather long winded way to complain that you prefer your constitutions left unenforced.
February 25, 2010, 9:04 pmJ. Aldridge says:
Hasn’t Goodwin argued there is a constitutional right to welfare?
February 25, 2010, 9:07 pmfrankcross says:
Not a constitutional right to welfare. He did argue for a constitutional right regarding education, I believe.
February 25, 2010, 9:10 pmSteve says:
I like the Second Amendment, but I like judicial restraint too. Sounds good to me.
February 25, 2010, 9:30 pmDaniel says:
I don’t know anything about this guy, but I’ll take a wild guess that he won’t be shy invalidating laws he doesn’t like. Judicial restraint, we all believe in it, except when we don’t.
(Just to be clear Steve, I’m talking about the professor, not you).
February 25, 2010, 9:47 pmStephen Lathrop says:
A lot of the categories are getting mixed up. No doubt conservatives will see a judicial activist in this guy, but he seems to me to be arguing against judicial activism. Put him on the Supreme Court and you won’t get Bush v. Gore or Citizens United. That’s restraint I can believe in.
February 25, 2010, 9:56 pmBobC says:
How about this person says what is right rather than just saying something is wrong. Or, how about saying why it is wrong.
February 25, 2010, 9:56 pmHey Skipper says:
But even more astounding than the Court’s willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress—and by extension, the American people—from playing a part in defining what the Constitution requires and what it permits.
How about we stick to what the Constitution says, especially when it is particularly declarative. If you don’t like what it says, then amend the Constitution.
February 25, 2010, 10:09 pmOrder of the Coif says:
That’s fine. Would he, then, be willing to support the CONGRESSIONAL declarations that the Second Amendment is a meaningful individual right which are part of the Volkmer-McClure Act (1986), part of the Interstate Commerce in Firearms Act (2008?), and several other recent enactments by the federal legislators?
If he’s intellectually honest, then “yes” but don’t hold your breath. Intellectual dishonesty in the service of what the JUDGE believes is better policy is the hallmark of liberal judges. See Brannon Denning’s article “Can The Simple Cite be Trusted” wherein he pretty much says just that.
February 25, 2010, 10:14 pmOrin Kerr says:
For those interested, Professor Liu’s article in which he argues that the 14th Amendment obligates the federal government to provide for good schools is here: Education, Equality, and National Citizenship.
From the abstract:
Also, Liu’s article on whether the Constitution confers a constitutional right to welfare is here.
February 25, 2010, 10:14 pmOrder of the Coif says:
They are not excluded. They own the definitive way to “define” what the Constitution means — amendment. If you don’t like what the Constitution says now as pronounced by the Supreme Court take the action authorized in the Constitution. Or shut up.
February 25, 2010, 10:19 pmBruce Hayden says:
I read the above to say essentially that he would oppose overruling liberal legislation that he likes, regardless of the Constitutional justification for it. Given the 9th Circuit’s penchant for being overruled, he seems like a good fit there.
February 25, 2010, 10:30 pmneurodoc says:
Do law reviews require of those submitting articles for publication the same sort of declaration that medical journals require of those submitting to them, that is that everyone whose name is listed as an author in fact contributed in a meaningful way to the article?
Medical journals started requiring such representations, along with disclosure of any conflicts of interest, years ago because “honorary” authorship was seen as dishonest, as well as otherwise problematic. (“Honary” authorship is when someone has not made a major contribution to the paper but gets listed as an author because they are the department chair or head of the lab in which the work was done or otherwise being gifted with credit they didn’t earn.) I ask because I wonder if then Senator Clinton actually labored along with Liu, who I presume did, in writing this article, as opposed to merely discussing some of the ideas with Liu and having her staff do the work she was credited with.
I realize that few of the speeches by major political figures are truly authored by those figures, that books are commonly “ghost” authored rather than written by the person to whom it is credited, etc., but I think there is a more serious issue with credit for authorship of a law review article, or at least there should be. (Would it be OK for a senior partner to pay associates to turn out publishable manuscripts that he/she will submit for publication on their own name rather than that of the associates who were the true authors?)
February 25, 2010, 10:47 pmtherut says:
Sounds like he does not know how to read. And, likes to make things up or said more directly “He lies”. Not the kind of Judge, politician or boss I would accept or put up with having any say over my civil rights or freedom. He sounds nutty. Maybe, an educated nut but dangerous to liberty.
February 25, 2010, 10:47 pmCognitive Dissonance says:
When the Constitution says that Congress shall have power “to regulate commerce … among the several States,” does that not suggest that Congress has some role in determining what counts as interstate commerce? . . . The Court’s recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much.
Is he for real? Congress’ intent may be relevant to whether a law survives Constitutional scrutiny, but . . . well, yeah, in some instances it may not count for much. Has he read . . . Marbury v. Madison recently?
Justice Marshall (John, not T-Good) would lay the smack down thusly:
February 25, 2010, 10:51 pmRowerinVA says:
Ah, yes, another attempt to define “judicial activism” as meaning a judge who would strike down anything at all. That’s not how the term was originally used by conservatives. Conservatives used it (and still use it) to mean a judge who would important non-textual policy preferences into decisions and “legislate from the bench,” rather than call balls and strikes and say what the law is, not what it should be, as Justice Roberts (and even Justice Sotomayor!) said in their confirmations.
The attempt on the left to define “judicial activist” as a judge who is willing to strike down a law, any law, has unfortunately succeeded with a portion of the media and the academy. But it’s quite odd. What are judges supposed to do under the Constitution, if not resist the will of majorities who would violate the Constitution? The Constitution’s purpose indisputably is to establish certain rules that later majorities cannot overturn without Constitutional amendments. There is a huge difference between a judge validating that purpose by striking down a law that conflicts with the text of the Constitution (which is not activism) and demanding that legislatures implement new policies that the Consitutional text does not mention (which is activism). Mr. Liu, in the articles Orin Kerr mentions above, explicitly advocates the latter.
February 25, 2010, 10:56 pmPubliusFL says:
That would explain why Article 1, Section 8 starts out “Congress shall have Power to do the following things (unless, you know, they want to do more than that).”
February 25, 2010, 10:58 pmJ. Aldridge says:
Thanks Orin, that is what I was thinking of. Although I only skimmed through this lengthy essay, it appears he is advocating for the courts to advance welfare rights.
As far as he his views of the 14A are concerned, he is from another planet – which is probably why Obama selected him.
February 25, 2010, 10:59 pmjellis58 says:
Im curious if Goodwin Liu supports cases like Boumediene v bush, Roe v. Wade, and Romers v Evans. Because if he does, I would have a very hard time reconciling support for those cases with the views he exposes in this article. If “Congress has some role in determining what counts as interstate commerce” then don’t legislatures also have some role in determining what counts as a deprivation of liberty without due process, or a suspension of the writ of habeas corpus? Maybe his idea that only congress and not state legislatures get a say in constitutional interpretation, but thats not really a meaningful distinction (and wouldnt apply to Boumediene, if he supports it). Or maybe his thoughts only apply the scope of congresses ART I and ART XIV enforcement powers and not affirmatively granted rights? but he calls Emerson, a second amendment case, “activist…” hmm…..very curious to know if he supports the liberal “activist” decisions.
February 25, 2010, 11:04 pmMark Field says:
If you’re going to quote Marshall regarding the scope of the commerce clause, you might want to try McCulloch v. Maryland rather than Marbury. Of course, you might not like the result as much…
Not necessarily. Due process and habeas corpus are core functions of the judiciary. If Congress interferes too much, that violates separation of powers.
February 25, 2010, 11:22 pmCognitive Dissonance says:
I think McCulloch v. Maryland interpreted the Necessary & Proper Clause. In Gibbons v. Ogden, you get Commerce Clause (w/ maybe some Necessary & Proper thrown in).
Why don’t I like McCulloch v. Maryland?
February 25, 2010, 11:33 pmPatHMV says:
If his article doesn’t also criticize Roe v. Wade, then it’s unprincipled, and he just wants a court to rule the way he wants to, not for the court to get out of the way and let Congress and the states do whatever they want in the name of “democracy.”
As for excluding Congress from playing a part in determining the meaning of the Constitution, in general I am sympathetic with the idea, even if the professor is advocating it for purely partisan or ideological purposes. But Congress has shown itself unwilling to exercise any serious debate regarding the extent of its Constitutional powers. The operative definition, for Congress, of the extent of its powers is whatever the Court will let it get away with. This is not the sort of considered thinking which deserves substantial deference.
February 26, 2010, 12:07 amJ. Aldridge says:
Well Congress used to have long drawn out debates over such questions. Obviously since the court has never been able to make up its mind what it means, and refuses to look at how commerce was regulated among the states and with other nations at the time of the constitution was framed, leaves them as the last source I would want telling me what it means :-)
February 26, 2010, 12:32 amGoodwin Liu on the Second Amendment | Liberal Whoppers says:
[...] here to see the original: Goodwin Liu on the Second Amendment [...]
February 26, 2010, 1:55 ambtraven says:
It is perhaps no surprise that Liu thanks his Berkeley colleague John Yoo in his Yale Law Journal piece on education and “social citizenship.”
Both imagine the Constitution has magical powers that do not, in fact, exist.
Liu thinks the Constitution of the most successful capitalist power in history is actually a socialist manifesto while Yoo thinks the Constitution of the society with the most widely distributed system of state power in modern history actually endows the President with previously unheard of unilateral authority.
February 26, 2010, 2:55 amBC says:
Why was it necessary to quote multiple paragraphs of Liu’s nonsense before getting to the money graf that demonstrates he either (a) has never actually read Miller, or (b) is perfectly willing to lie his ass off about its actual holding?
February 26, 2010, 3:40 amDavid E. Young says:
Based on this, Liu would disagree with the decision in Heller, instead supporting Justice Stephens’ vigorous dissent in that case. The problem is, the historical facts contradict Justice Stephens and the erroneous arguments from fifteen professional historian amici he relied upon in Heller.
February 26, 2010, 4:02 amJ. Aldridge says:
Actually they don’t. Heller is built from partial truths and erroneous argument analysis.
February 26, 2010, 4:33 amJeff Walden says:
Given some of the vitriol I’ve heard in other quarters about Liu, I suppose I shouldn’t have expected better of him, at least going by the gleanings of the article as quoted here. (To be sure, I didn’t really have expectations one way or the other, beyond suspecting, given the ideology of his appointer, that I’d likely disagree with his jurisprudence.) From the article quotation I presume Liu would disagree with Jefferson’s observation that “If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made” (quoted in The Federalist No. 48); Madison’s observation in The Federalist No. 48 that “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex”; and Madison’s further observation in The Federalist No. 49 that “the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments.” But yes, as others have observed, I’m guessing his opinions change in cases where the decision against Congress went in favor of the other end of the ideological spectrum.
February 26, 2010, 5:05 amWidmerpool says:
Fer cryin’ out loud, Liu’s being nominated to the Ninth Circuit after all and, as we know, the Supreme Court has a big, fat rubber stamp, so the Ninth Circuit can pucker up, and kiss its decisions good-bye.
February 26, 2010, 6:27 amGovernor Likely to Sign Surcharge Bill into Law | Car Insurance Qoute Illinois says:
[...] The Volokh Conspiracy » Blog Archive » Goodwin Liu on the Second … [...]
February 26, 2010, 7:19 amBrett Bellmore says:
It’s true that Heller’s basis is weak, but that doesn’t save Stevens. The majority on the Court had to distort history because the thought of upholding the scary right the 2nd amendment actually guarantees was too much to bear, so they converted it into a less scary right that they were willing to uphold. But the minority distorted history even more, because they didn’t want to uphold any right, AT ALL.
February 26, 2010, 7:38 amAdam B. says:
So Liu has produced a good deal of scholarship based on an originalist understanding of the 14th Amendment — and folks are disagreeing with him because they don’t like the policy outcomes his analysis yields, with no one arguing his constitutional analysis is incorrect. Just charming.
February 26, 2010, 7:39 amRobert says:
35 comments and no “Goodwin’s Liu” jokes referring to Hitler and the Internet?
February 26, 2010, 7:51 amsomeguy says:
Liu is dangerous.
He does not argue his case from a position of intellectual honesty. He would never, for example, apply his own judicial philosophy to the issue of abortion or term limits. He would spin on a dime if the electorate was composed of people who would interpret the Constitution differently than he would.
Liu is, here, complaining that the Supreme Court has invalidated a law Congress passed. That is the end of his complaint. Not the specifics … but rather that the Court has invalidated a duly-passed law that he alleges enjoys support. Liu writes: “The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent…” and he says this as if it should be obvious to everyone that the Supreme Court should not be allowed to overturn unconstitutional laws passed by wide margins.
He argues against the very idea of a Supreme Court.
He should be removed from the bar by hook or by crook.
February 26, 2010, 8:01 amOhio Lawyer says:
Liu “co-authors” an article with Hillary Clinton (who found her Rose Law Firm/Madison Guaranty billing records in a closet in the White House, and has no idea how they got there), and there is a question about his integrity? Where I come from, you are known by the company you keep. No reason to look further into his writings.
February 26, 2010, 8:25 amjnheath says:
If federal power is so sacred, what of the Congressional power to organize and arm the militia? The people delegated it to have a uniform plan of national defense; the courts in *militia* cases have repeatedly ruled so. But the courts in *gun* cases say the opposite — that the power lies with the states, hence 50 different militia standards. J. Stevens’s _Heller_ dissent endorses this view at pp. 19 n. 20. where he says Congress lacks “the power to say who will be members of a state militia.” — a view that contradicts 200 years of militia-clause caselaw.
February 26, 2010, 8:26 amPersonFromPorlock says:
Shouldn’t a judge-nominee who cites a decision as ramshackle as Miller as good law automatically be disqualified on both moral and mental grounds?
February 26, 2010, 8:38 amTully says:
Sounds to me like he’s all in favor of the tyranny of the majority the Constitution aims to prevent. At least, as long as long as the majority agrees with him.
February 26, 2010, 8:47 amFat Man says:
“what is troubling about them is that they do not occur at a time in our Nation’s history when there is a significant public clamor for a different constitutional vision.”
At least among his friends.
February 26, 2010, 8:54 amreasonable parsons says:
Yes, we liberals love “restraint for the other side, activism for ours” – just as we like Stare Decisis for them, but not for ourselves: They must let our precedents stand, it’s an outrage if they don’t respect Stare Decisis in upholding our decisions when we overturned past ones!
That’s why we insist upon “excluding the body politic” from such matters as abortion through our judicial activism, and also insist upon judicially decreeing out stance on education, equality and the like, activism for ourselves is ok.
Restraint we can believe in is restraint for others, not for ourselves.
February 26, 2010, 9:06 amMikee says:
I almost stopped reading the post when Hillary Clinton was named as co-author, because I knew that anything she co-authored regarding the 2nd Amendment would be inane. And I was right.
“Commonsense” laws do not make it a crime to possess an object on one side of an invisible line, usually of unknown location to any reasonable person who is not a surveyor with a rangefinder and a GPS and a map of school property boundaries, while it is not a crime to possess the same object one inch on the other side of that invisible line. Unless by “commonsense” you mean “tyrannically enforceable against otherwise innnocent citizens.”
February 26, 2010, 9:15 amLazarus Long says:
I have become convinced that what this country needs is commonsense law review control.
For the children.
February 26, 2010, 9:42 amDoDoGuRu says:
What a dangerously expansive point of view…
February 26, 2010, 9:46 amMichael Chaney says:
So, congress should get to decide what constitutes interstate commerce? Their track record in that department isn’t so good.
February 26, 2010, 9:50 amneurodoc says:
Do we know for a fact that Hillary (named for Sir Edmund Hillary, though he had not yet achieved fame) co-authored the article, or might it be that she was “gifted” with co-author credit? (see my musings above and question whether law reviews require an attestation that all those with their names on the manuscript really deserve credit as authors) Mine is speculation, but I think there is good reason to be suspicious, and it has nothing to do with the curious matter of those Rose Law Firm records mysteriously materializing, the $100K profit from a one-day of commodity trading, etc., though those may not be wholly irrelevant background.
February 26, 2010, 9:57 amAnon321 says:
Other than the footnote, this excerpt has nothing to do with Liu’s view of the Second Amendment. And the footnote really only tells us that he reads Miller (or read it, pre-Heller) to suggest that the Second Amendment doesn’t protect an individual right. It doesn’t say anything about whether Miller (and now Heller) were rightly decided.
The rest of the excerpt is about the Commerce Clause. Is it really so shocking to say that when the Court considers whether a law is a proper exercise of the power to regulate interstate commerce, it should at least consider (not defer to, but consider) the fact that both houses of congress (nearly unanimously) and the president thought that it was? Seems like a common and fairly anodyne point. I have a hard time seeing this as evidence that he’s dangerous or extreme. He may well be both, but the excerpt above doesn’t do much to demonstrate it.
February 26, 2010, 9:59 amSteveP says:
We’re a republic, not a democracy. I wish they taught that in law schools.
February 26, 2010, 10:04 amsardonic_sob says:
He is arguing against judicial activism against prior judicial activism that has produced results he likes for a period of time.
February 26, 2010, 10:09 amStuart_the_Viking says:
No, and any freedom loving American wouldn’t want them to be able to. How does having a gun within 1000ft of a school effect commerse among the several states? How does MOST of what Congress does with the commerse clause effect commerse among the several states? If SCOTUS does not step in to define what is and what is not “commerse among the several states” it is giving Congress a free pass to make an end-run around the limits to it’s powers as defined in the Constitution.
Part of the reading and interpreting the Constitution that is the job of SCOTUS is to recognise when the federal government is overstepping it’s bounds and strike down those over-reaching laws.
s
February 26, 2010, 10:09 amSarcastro says:
You and your reasoned objectivity be Quiet, Anon321! We’re gettin’ a good old fashioned high-tech lynch mob going, and unless you want to pile on, git outta the way!
Well, time to lash out blindly at shapes and colors. Anyone who thinks the administrative state is Constitutional is a dangerous radical!
February 26, 2010, 10:09 amMark Field says:
Because Marshall left it to Congress to decide the scope of regulation under the commerce clause.
You’re right that it was as much a N&P clause case, but that clause is always intertwined with the substantive grants of power under Art. I. Treating the N&P clause as open to Congressional determination has the inevitable impact of increasing Congressional power to regulate.
February 26, 2010, 10:20 amStuart_the_Viking says:
Who’s to say that the SCOTUS didn’t consider that.
Who’s to say that Congress and the President consider (or care about) the constitutionality of what they do?
s
February 26, 2010, 10:25 amPubliusFL says:
As opposed to assuming that Congress and the President enacted a law they all thought was unconstitutional?
February 26, 2010, 10:36 amJim N. says:
“Beyond the damage that these cases do to civil rights….”
Would someone please explain to this non-attorney, non-academic how court decisions that state a federal law is unconstitutionally restricting citizen’s civil rights (to keep and bear arms) damages civil rights? I am just not getting it.
February 26, 2010, 10:38 amKirk Parker says:
OK, just for you, Robert:
Wenn ich “commonsense legislation” höre … entsichere ich meinen Browning!
Seriously now, does anybody really think that (a) the Gun-Free School Zones Act has anything commonsense about it (rather than being empty, feel-good posturing) or that (b) the Commerce Clause really truly was meant to provide Congress with the authority to manage conduct at public schools?
It is to
laughbarf.Stuart_the_Viking,
Your questioning is fine as far as it goes, but it concedes far too much. You shouldn’t be asking “how does it affect” because that’s not part of the power Congress was given in the first place!
February 26, 2010, 10:43 amSarcastro says:
[Stuart_the_Viking, consideration is not deference. Indeed, if you read Lopez, it looks a lot like Skidmore "power to persuade" analysis. Seems to me giving Congress some dialogue with the Court is fine. If the Court disagrees, they can overrule Congress, but Congress has some smart people on it as well.
The idea of all three branches of government figuring out what is Constitutional is something the founding fathers were all about. Indeed, before Marbury, there was no striking down of unconstitutional legislation, it was considered the President and Congress's own job to not do anything unconstitutional.
Only later was SCOTUS considered the final arbiter of constitutionality.
Furthermore, if you don't trust the Congress or the President to consider the Constitution, then why trust the Court?]
February 26, 2010, 10:45 amAllan Walstad says:
This is indeed shocking! But, better late than never, I say.
Maybe. But what it doesn’t allow is for the pols to claim unlimited power via the sophistry of defining “interstate commerce” to be anything at all they want to regulate or outlaw. If outlawing firearm possession within 1000 feet of a school falls under “regulate interstate commerce,” then there is virtually nothing at all that doesn’t fall under it. The logical conclusion is that there are simply no Constitutional limits to Congressional or federal power. Overruling such treachery may be the Supreme Court’s most important job.
February 26, 2010, 10:45 amAnon321 says:
Who’s to say that the SCOTUS didn’t consider that.
I think we can safely infer it from the fact that the Court made no mention of it in the majority opinion.
Who’s to say that Congress and the President consider (or care about) the constitutionality of what they do?
Well, they do take an oath to uphold the Constitution and have a duty to consider the constitutionality of what they do. If they do so and conclude that what they’re doing is constitutional, is it appropriate for the Court to consider that conclusion? That’s a question that people have been debating for a long time. Popular constitutionalists say that the Court should. There a good arguments against that position, but it’s hardly a lunatic view.
I’d also note that some people have argued that the Court’s unwillingness to consider Congress’s views about constitutionality have made Congress more likely to shirk its duty to interpret the Constitution in the first place. If congressmen know that their views carry no weight, they’ll tend to adopt the attitude of “is it constitutional? Meh, that’s for the Court to figure out.” In other words, to the extent that we think that the Court shouldn’t consider Congress’s views on the Constitution because, as a matter of fact, Congress doesn’t take its duty to interpret the Constitution seriously, it’s plausible that Congress doesn’t do so because the Court doesn’t consider its views.
February 26, 2010, 10:56 amsardonic_sob says:
Limiting Congress’s power to regulate under the Commerce Clause things it would otherwise have no power to regulate for lack of an enumerated power in the Constitution could theoretically reduce its power to enforce civil rights related to commerce. For instance, there are Federal laws that forbid places of public accommodation from discriminating against customers on the basis of race: the original idea was that a restaurant or gas station located on an interstate highway might impede interstate commerce if it denied service to people who were engaged in it.
Then, as always, it just boils down to “once we can regulate anybody, we can regulate everybody, because otherwise people will just try to get away and we can’t be having that.” This is why Congress can forbid me to grow wheat in my backyard for my own consumption.
February 26, 2010, 10:57 amRowerinVA says:
Well, no, not really. By definition, the Court will only consider the Constitutionality of a congressional act (or omission) if Congress passed that act (or made that omission). The point you make is already a precondition of review. You would set up a situation where the mere fact that something is up for review means that it should be reviewed with particular deference.
The Court should consider the views of Congress and all briefs before it, and it should defer to Congressional fact-finding to some degree. But it does that already. And the views of the Solicitor General (who defends passed laws if at all possible) also get taken particularly seriously. But if judicial review is to have meaning, presumptions of Constitutionality — merely due the law’s existence — can’t be made so strong that they hamper the substance of that review.
The lesson of public choice scholarship (or just reading the newspaper) is that the Court should be more suspicious of the unconstitutional motives of Congress, not less. Trust between the three branches of government is historically not a boon to the public at large.
February 26, 2010, 10:57 amSarcastro says:
And the Liu is all about presumptions in the above article! It’s in the article’s penumbras somewhere.
February 26, 2010, 11:10 amjnheath says:
Anon321: Liu is inconsistent: he expresses deep concern over the Court limiting federal power to regulated “commerce.” But paradoxically, he is *eager* to interpret the 2nd Amendment as limiting the expressly delegated federal power to regulate the milita, as a corollary to disposing of an individual right.
February 26, 2010, 11:13 amtom swift says:
This is an absolutely incredible paper.
I think it’s important to determine just how much of this anti-American pipe dream is Hillary’s, and how much is Liu’s, because the implications are monstrous.
I already know that Hillary should have no position in any decent American government, but Senators, like Presidential wives, are allowed to be rank amateurs; Senators need to be able to get themselves elected, and that’s about it for a show of qualifications. But upper-level Federal judges, we might expect, are more professional, in the sense that they have gone through a training and apprentice program (law school and lower judgeships).
The possibility that someone with any judicial instincts at all might hold serious views like those expressed in the article is grotesque.
February 26, 2010, 11:39 amDangerMouse says:
He does not argue his case from a position of intellectual honesty. He would never, for example, apply his own judicial philosophy to the issue of abortion or term limits. He would spin on a dime if the electorate was composed of people who would interpret the Constitution differently than he would.
This really nails it. The guy, like all liberal judges, exists only to serve the ends of his agenda. Would he sustain the partial-birth abortion ban, merely because Congress passed it? Of course not. But he’ll sustain the Gun-Free Schools law, merely because Congress passed it. Same reasoning, different result. That’s what it means to be a lib.
This isn’t exactly rocket science, people.
February 26, 2010, 11:42 amjrose says:
True, but that’s because of a line of cases as far back as the Civil Rights Cases and as recent as the City of Boerne, that went too far in my view in limiting Congressional power to enforce the 14th Amendment under its Section 5 powers.
February 26, 2010, 11:46 amjrose says:
I’d bet he’d sustain the partial-birth abortion bill under the Commerce Clause, but strike it down under the Due Process Clause. In contrast, the GFZA doesn’t implicate Due Process.
Would a conservative judge uphold the partial-birth bill while striking down the GFZA, both under the Commerce Clause?
February 26, 2010, 11:50 amShelby says:
The article is based on a Hillary Clinton speech; it has at least as much of her in it as it does of Mr. Liu. And while I’ve never been passionate about it, I’m reminded once again of why I’ve never cared for Hillary.
February 26, 2010, 11:52 amSarcastro says:
Liberal judges are ever realists, whereas conservatives are totally formalist! And the proof is how liberals never follow the law as I see it and conservatives always do!
Condemning those who disagree with me as without honor isn’t rocket science, people.
February 26, 2010, 12:05 pmPubliusFL says:
An originalist judge may well strike down both under the Commerce Clause. But there’s a better argument for the partial-birth abortion bill because that at least directly regulates a commercial activity, unlike the GFZA. Note that after Lopez, the GFZA was re-enacted with interstate commerce nexus language (language that the partial-birth abortion ban had from the beginning) and hasn’t been challenged since.
February 26, 2010, 12:07 pmAnon321 says:
I’m not actually trying to defend Liu (I know almost nothing about him), but rather trying to explain why, in my view, the statements excerpted above do not seem to warrant some of the commenters’ reactions. But to briefly address the point (which is a good one) that all laws were presumptively viewed by the political branches as constitutional (otherwise they wouldn’t be laws), and therefore deference is inappropriate — I think it’s relevant to consider how salient the discussion of the law’s constitutionality was, and how much consensus there was on the answer.
So, at one end of the spectrum, you’d have a case in which the challenged law is alleged to have the effect of being an unconstitutional tax on articles exported from any state, where no one ever considered the constitutional question during debate on the bill. Deference would seem particularly inappropriate in this situation. At the other end of the spectrum, you have a law that’s challenged on Commerce Clause grounds, where each house spent weeks holding hearings on the question of whether the activity in question constitutes interstate commerce, and every member of Congress was in agreement that this was within the Commerce Clause power; OLC then considered the question before the President signed the bill, and reached the same conclusion. That would be the strongest case for deference.
When courts consider the constitutionality of a law, should the fact (if it is a fact) that the people’s representatives directly confronted the question of its constitutionality and concluded that it did, count for anything? Popular constitutionalists say yes. They might well be wrong, but it doesn’t seem to be the type of dangerous, extreme ideology that people are making it out to be.
With regard to Liu’s inconsistency, I have to say that I don’t see it on the basis of the footnote. He’s just saying that Miller held that the Second Amendment didn’t protect an individual right and that it’s activism by lower courts to deviate from that holding. His reading of Miller may be wrong, but, again, does it really tell us anything about Liu or his views? Are there better examples elsewhere in his scholarship that demonstrate inconsistency on the topic of deference to legislatures?
February 26, 2010, 12:07 pmsardonic_sob says:
No argument (that is, not necessarily agreeing or disagreeing:) just trying to answer the QP request regarding how limiting Commerce Clause jurisdiction over a civil right (the right to bear arms) could produce the article’s alleged threat of limiting civil rights in general.
February 26, 2010, 12:14 pmPubliusFL says:
As it turns out, the Lopez Court engaged in pretty much the kind of analysis you propose, and concluded that the GFZA was closer to the first end of your spectrum:
February 26, 2010, 12:27 pmAnon321 says:
Fair point. Maybe Lopez is a bad candidate for deference, then. (Again, I’m only making the limited point that nothing in the excerpted statement above warrants the disgust that it’s received from some quarters.)
February 26, 2010, 12:34 pmjnheath says:
Anon321: his inconsistency is in what he chooses to label as activist: He considers it activist when a court limits federal power to regulate commerce.However, when when courts in gun cases hold that the 2nd Amendment limits federal power to regulate the militia, he considers that good precedent, despite it being contrary to 200 years of militia-clause precedent. In his mind the “activists” are those who would find an individual right in the 2nd Am, not those who conjure from it a limit on Congressional power to regulate the militia that is untethered to any precedent at all.
February 26, 2010, 1:36 pmKirk Parker says:
Anon321,
All I can say is, Congressional hearings must be very different, in your universe, from the ones I’m familiar with.
February 26, 2010, 1:49 pmDilan Esper says:
If the conservative standard is going to be “anyone who disagrees with our interpretation of the Second Amendment is unqualified to be a judge”, they might as well vote lock-step against any judicial confirmations of Obama judges.
This is no different from the standard that liberals applied to Roberts and Alito that conservatives condemned as illegitimate.
(By the way, I don’t have any problem with either side voting against the other side’s judges. Judges are important and there’s nothing wrong with trying to keep the other side’s judges off the bench. I am just noting that this is what is going on here, not a debate over qualifications.)
February 26, 2010, 1:57 pmDavid Nieporent says:
First, I don’t think there’s any empirical evidence that members of Congress actually consider whether a proposed law is within Congress’s constitutional powers before they vote.
Second, assuming that we accept the legal fiction that they did, isn’t it still sort of a silly claim on Liu’s part? The courts only consider the constitutionality of laws that were passed, not ones that weren’t. So obviously Congress thought the law was a proper exercise of its power. So what exactly is there for the Court to “consider”?
Unless you’re suggesting that the Court should consider the fact that a higher percentage of Congress supported this law than other laws, but I think that’s a rather odd proposal. I’ve never even heard it suggested that a popular law (within or without the halls of Congress) was somehow more likely to be constitutional.
February 26, 2010, 2:24 pmjrose says:
Any law with a vaugely-worded jurisdictional predicate is likely by definition to be facially constitutional. The tough question is in what as-applied cases the partial-birth ban or the GFZA is unconstitutional by virtue of the predicate in the specific case being constitutionally insufficient.
If in the gun case, the only link to interstate commerce is the gun was manufactured or shipped across a state line, is that enough? Would a conservative judge use the same criteria for partial-birth abortion if the only link to interstate commerce in a particular case was the clinic’s supplies were manufactured or shipped across a state line?
February 26, 2010, 2:27 pmKirk Parker says:
jrose, that’s accepting the modern expansionist view of the Commerce Clause; the one that holds that the words “or affecting commerce” are actually part of the text (or acts as if it held that.)
Bah humbug on the whole nonsense, I say: one the item (tangible or intangible) has passed from the out-of-state seller to me the buyer, commerce is over, and Congress has no basis whatsoever from the Commerce Clause to say what I may or may not do with it, unless and until I decide, in turn, to sell it to someone in a different state from me.
February 26, 2010, 2:57 pmcboldt says:
– I don’t think there’s any empirical evidence that members of Congress actually consider whether a proposed law is within Congress’s constitutional powers before they vote. –
February 26, 2010, 3:15 pmThere’s quite a bit of evidence of that. In some cases, the Congressperson defers to “the lawyers” who are expert (I think this is Landrieu’s position when challenged on the federal health care proposals), and I know the Congressional Record recites concern about the constitutionality (or lack thereof) of Bush-administration erected military tribunals, as well as the constitutionality of “habeas stripping” provisions in the Military Commissions Act.
Another example: following the Lopez decision, Congress undertook rewriting the Gun Free School Zone Act in order to add the “or affecting interstate commerce” language (and findings) that SCOTUS used to strike down the GFSZ Act.
There is lots of debate over the constitutionality of certain provisions in the USA P.A.T.R.I.O.T. Act, and relating to FISA.
Obviously, the whole of Congress thinks everything it passes is constitutional. And it is in the nature of every branch to increase its own power. As between the branches, I think its a fair contest. But as between the government and the people, the government has more power, by far.
ArrowSmith says:
Hitler was a hard worker too.
February 26, 2010, 3:24 pmArrowSmith says:
BTW, I am not impressed when Congress holds millenia of hearings. As far as I care, close down Congress altogether.
February 26, 2010, 3:25 pmcboldt says:
– fter Lopez, the GFZA was re-enacted with interstate commerce nexus language … and hasn’t been challenged since. –
February 26, 2010, 3:28 pmThe revised GFSZ Act has been challenged, and upheld. See comments and additional links at:
http://volokh.com/posts/1253204659.shtml#649598
David E. Young says:
Returning to Justice Stevens’ Heller dissent, a number of the professional historians who were amici for Washington DC in Heller have filed briefs supporting Chicago in McDonald. Two of these historically oriented briefs deal with ratification era arguments that basically re-argue Heller. These historians rely on many of the same erroneous arguments they provided to the Supreme Court in the Heller case. Documentation of many historical errors in these McDonald briefs from professional historians begins here and here.
The number of factually incorrect statements presented by the fifteen professional historians supporting Washington DC in the Heller case was astonishing. Those errors are documented in a twenty-four part series entitled Root Causes of Never-Ending Second Amendment Dispute.
Justice Stevens did not accept all of the historians’ unfounded assertions in their Heller amicus. In fact, he contradicted one in his dissent. However, Stevens still based the dissent on the historians’ arguments, with the major pivotal point being a fundamental error. As a result, what had been the mother-of-all ideological divides for nearly a half century has been continued, reinforced by a dissent supported by four Supreme Court Justices. The errors that Stevens’ dissent is based on have been documented. That does not mean those who support the dissent will ever look at the documentation. It is much easier to embrace one’s current beliefs than to examine and question the validity of their foundation.
February 26, 2010, 3:32 pmPubliusFL says:
The Court in Lopez notes that most cases involving “substantial effect” involve activity that is actually economic or commercial in nature, and which when aggregated would therefore have a direct substantial effect on interstate commerce. In this respect, partial-birth abortion is in my opinion more likely to survive an as-applied challenge because it usually directly involves an economic transaction. Given the relatively small number of providers, it is fairly likely that patients will cross state lines to find a provider. It’s more difficult to imagine possession of a gun in a school zone directly involving interstate commerce in a similar way.
True, I was sloppy there. What I meant (and should have said) is that the Supreme Court has declined to take up the amended act.
February 26, 2010, 3:45 pmPersonFromPorlock says:
Since we seem to be going off on a Commerce Clause bender, here’s a question: what harm would it do to eliminate the Commerce Clause entirely? May it not, by now, be far more pernicious than beneficial?
February 26, 2010, 4:35 pmAnon21 says:
Uh…this is Liu “on” the Second Amendment? The most you’ve got here is an off hand reference suggesting that a Circuit Court is “testing the limits” jammed into a footnote. And he doesn’t even say what limits are being tested, but in context it appears that he’s talking about limits imposed by precedent. Whatever your view of the Second Amendment, pre-Heller I think the most descriptively accurate view was that SCOTUS doctrine did appear to impose limits on the meaning of the Second Amendment.
Try harder next time, Prof. Kopel.
[DK: What I tried to do--and succeeded--was to accurately report everything that Liu had written in a law review article regarding the Second Amendment or gun control laws. If you want to assert that the Clinton-Liu article has no useful information about Liu's attitude towards the Second Amendment and federal gun control laws, you are free to do so. Other readers may have different interpretations.]
February 26, 2010, 4:38 pmKirk Parker says:
PFP,
Well, eliminating the Commerce Clause would hardly make things wonderful (those so minded would just find another pretext.) In addition, it really is proper for the Federal government to preempt oversight of interstate commerce so we don’t have things like trade wars between the states.
All I want (please, no snickering about the likelihood of getting it) is a simple return to the idea that the Constitution is (mostly) a grant of limited powers to the Federal government, and if it’s not in there then they don’t have the authority to do it.
February 26, 2010, 7:15 pmfwb says:
Those who elicidate the law need to learn from science the particulars of continued introspection, inspection and retrospection. Notyhing is ever “settled”. Truth is bet found through testing and retesting. No scientist worth his/her salt stops trying to disprove the various laws, theories, etc. The legal process of simply accepting a decision is ludicrous. Review, rereview, retest, reevaluate over and over and over.
February 26, 2010, 7:15 pmJeff Dege says:
I’m at a loss as to why he believes that the Court has the only say. Congress can decide not to pass an unconstutional law. The President can veto it. Prosecutors can decline to prosecute, jurors can refuse to convict.
And, of course, SCOTUS can declare unconstitutional.
Every focus of legal power in the US has the ability to block laws that it believes to be unconstitutional, not SCOTUS alone. What Liu is arguing for is not that SCOTUS should not have the only say, but that SCOTUS should not have a say.
February 26, 2010, 7:55 pmPersonFromPorlock says:
Given the nature of our economy, the states have every reason to avoid disrupting internal trade. How long do you think a trade war between States A and B would last, once State A’s voters realized that State B supplied their toilet paper, and State B’s voters realized State A supplied their beer?
February 26, 2010, 8:11 pmjrose says:
So, do you believe the proper/conservative view is to nullify both the GFZA and partial-birth abortion ban as-applied in my hypotheticals?
I agree with your analysis of the law under Lopez. But, would a conservative judge (imagine Thomas) who agreed be subject to criticism for seeking his preferred policy outcome? Can Scalia be so criticized for his opinion in Raich?
February 26, 2010, 8:29 pmLarryA says:
I’d love to see his take on a law passed with similar margins under the Commerce Clause that mandated firearms training for every high school student.
The Gun Free School Zones act passed 11-29-1990. President Clinton signed the Brady Act on 11-30-93. The Assault Weapons Ban passed 9-13-94. On November 8, 1994, mid-term elections produced a 54-seat swing in membership from Democrats to Republicans. The Republican Party gained a majority of seats in the House for the first time since 1954.
Between that and this article in 2003 the only significant gun control legislation passed by Congress were the reauthorization of GFSZ in 1996 and the Lautenberg Amendment, which was snuck through and went into effect on 9-30-1997.
Meanwhile the NICS came on-line in 1998, and efforts to extend the Brady 3-day waiting period for handguns and establish a permanent archive of NICS records were shot down. Even efforts to enact gun control after 9-11 were DOA. Finally, between 1994 and January, 2003, Alaska, Arizona, Tennessee, Wyoming, Arkansas, North Carolina, Oklahoma, Nevada, Utah, Virginia, Pennsylvania, Texas, Kentucky, Louisiana, West Virginia, South Carolina, Michigan, and Colorado passed or extended shall-issue concealed carry laws.
That’s not “significant public clamor for a different constitutional vision?”
February 26, 2010, 8:40 pmPubliusFL says:
Would the judge be criticized? Sure! Would the criticism be reasonable? Depends. I personally would favor an interpretation of the Commerce Clause that would prohibit a federal partial birth abortion ban, despite favoring such a ban as a matter of policy. But I can imagine a conservative judge taking a “this far and no further” approach to Commerce Clause precedent, and voting to uphold the Partial Birth Abortion Ban Act but invalidate the Gun-Free School Zone Act through neutral application of that principle.
February 26, 2010, 9:27 pmDoc Merlin says:
I have to agree with Order of the Coif on this one. He is being intellectually dishonest.
February 27, 2010, 9:44 amDave says:
Sounds to me like SCOTUS is reminding Congress that there are 3 seperate branches of government and all 3 are sworn to uphold the constitution of the US. That is obviously an uncomfortable reminder to the executive and legislative branches who seem to have lost their way and believe themselves to be “kings” rather then servants of the people and the constitution.
February 27, 2010, 11:49 amrachel peepers says:
This is an actual quote according to a biography about an unnamed former supreme court judge:
February 27, 2010, 3:29 pmThe most frequent cause of erectile disfunction in rapists is a snub nosed 38 special in a girl’s knowing hands.”
Jeff Walden says:
This argument applies with equal force to nations A and B, yet it’s pulling teeth to get people in this country to recognize the benefits of free trade with other countries, and it can be great political points to grandstand against it (remember the ridiculous NAFTA stands both Democratic presidential candidates took in 2008?). If they can’t recognize the benefits of international free trade, I see no reason why they would certainly recognize the benefits of interstate free trade.
The constitutional barrier to interstate trade wars is probably one of the most important parts of making the United States what it is today; we’d be far worse off if we had to waste time dealing with states legislating against each other in the sphere of commerce.
February 27, 2010, 7:37 pmJeff Walden says:
And yet that same decision also has Marshall saying:
Marshall might have permitted much congressional characterization of the scope of the commerce clause, but that characterization still had to accord with their enumerated powers in a non-pretextual manner. The criminal matter of guns near schools lay rather far outside that domain, except perhaps considered pretextually (hard to say just how attenuated the reasoning can become in support of a believed-good but overreaching federal policy).
February 27, 2010, 7:46 pmjnheath says:
J. Stevens’s 2nd Amendment theory is found at pp.19 n. 20 and is utterly untethered to legal facts. He admittedly assumes the 2nd Amendment protects state power to enroll and arm militia, and cites no militia caselaw for this proposition. But his assumption runs contrary to the pretty much every militia-clause and related decision since at least 1820, at every level of the courts. If J. Stevens is correct, please cite some militia-clause caselaw upholding state powers over federal powers.
March 1, 2010, 10:17 amMark says:
The author of the original article seems to have a very idiosyncratic understanding of the term “civil rights”. He also uses the dreaded “common sense” rhetoric, so beloved of gun controllers. In my opinion, the term “common sense”, at least as used in political contexts, has joined “social”, “fair” and “judicial activism” in a category of terms whose meaning is so subject to personal interpretation that they are effectively meaningless and the language would be better off without them. Unfortunately “rights” and “civil rights” appear to be headed the same way.
March 7, 2010, 12:09 pm