The Volokh Conspiracy

“In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957).

Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice’s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.

Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.

Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound’s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum. L. Rev. 605 (1908). 

As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution.

Today marks the fiftieth anniversary of the student sit-in at a Woolworth’s lunch counter in Greensboro, N.C.  This was the first of what would become a broad movement of sit-in protests as literally thousands of African-American students sat at lunch counters across the South, refusing to leave until they were served.  These protests are often credited with reinvigorating the civil rights movement and accelerating the demise of Jim Crow.  How Appealing has a round up of links.

Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.

(Update:  Thanks to Ilya for his post above, and Orin for his comment below to this post.  Bottom line is that Comstock does not have national security implications.)

Could I put a question to the VC staff who are following Comstock?  For those of us in the national security area, the whole matter of continued detention after a sentence has been fully served is of interest because of the possible implications for national security detention.  Detention at Guantanamo and elsewhere in the ‘global war on terror’ has been justified on “enemy combatant” grounds, but arguably (not according to the Obama administration, however, at least to this point) those grounds are weakening as the Supreme Court has altered the pure scheme of wartime detention to include such things as habeas and other innovations.

Numbers of commenters, trying to figure out a less ad hoc basis for detention, while still accepting that there is a justified need and basis for detention, have proposed administrative detention authority under Congressional legislation that might depend upon claims of national security and the law of self defense, but would not be grounded in armed conflict status and being declared an “enemy combatant.”  Glenn Sulmasy has written a very interesting, good short book on the subject; Jack Goldsmith, Matthew Waxman, Mark Gitenstein, and Ben Wittes all discuss some form of administrative detention in Ben Wittes’ new Legislating the War on Terror; I’ve endorsed the idea several places; it’s a discussion in the air over the last couple of years.  At least until the Obama administration apparently decided not to take the war on terror to Congress for a long term legislative arrangement and Congress sighed a big happy sigh of relief at not being on hook for any difficult votes.

Back at the beginning of the war on terror, post 9-11, I remarked on some panel somewhere that administrative detention had been blessed in the US under some pretty weird circumstances – specifically, the Supreme Court decision, sharply divided, endorsing administrative detention for child sexual predators even after sentence served – that is, the state-created version of what Comstock, as I understand it, is debating.  On that panel, which was very early after 9-11, representatives of a couple of civil liberties/human rights groups, which had been arguing that detention of this kind had never happened before, looked surprised.  Mind, I have always opposed the original Supreme Court ruling, on grounds that don’t have very much to do with national security administrative detention under civilian, rather than military, authority.  But it is certainly the case that the United States has long had mechanisms for administrative civil detention for the long term.

Here’s my question to the VC Staff:  Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority?  I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be.  Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road?  Or am I just seeing the world too much through a national security lens?

I’ve just posted this article, co-authored with Tim Leonard of the Princeton Economics department, on SSRN.  Here’s the abstract:

Contrary to their modern reputation as egalitarian liberals, many of the original progressive architects of American labor reform were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, women, and African Americans from some or all of the labor market.

The first part of this article discusses the origins and development of a progressive economic ideology that favored, indeed demanded, the exclusion of various so-called “defective” groups from the American labor market. Xenophobia, race prejudice, and sexism certainly were not new to the United States in the Progressive Era. What was new was, first, the idea that protecting deserving workers required the social control of undeserving workers, enough so that labor-legislation advocates defended the exclusion of purportedly unfit minority workers not as an ostensibly necessary evil, but as a positive social benefit. Second, the exclusion of undesirables acquired a new scientific legitimacy: the Progressive Era marked not only the advent of the welfare state but also an extraordinary vogue for race thinking and for eugenics, the social control of human breeding. The new science of eugenics turned “undesirables” into the “hereditarily unfit” and elevated exclusion to a matter of national and racial health. And the new sciences of society, especially economics, showed how unfit workers wrongly lowered the wages and employment of racially superior groups.

The second part of this article discusses the practical impact progressive ideology had on labor reform in the 1930s. The intellectual heirs of progressivism used the prevailing economic crisis to promote previously unachievable government involvement in the labor market to the detriment of those deemed excludable.

The Davis-Bacon Act of 1931, which regulated the wages paid on construction projects paid for by the federal government, was designed to exclude African Americans and other workers deemed “defective” from the labor market for federal construction projects.

The influence of the progressive economists’ belief that low-paid African American workers were “defectives” who should not be permitted to compete on price with white workers continued during the New Deal. Like jobs held by women and children, jobs held by African Americans were often considered “substandard” by New Dealers and were slated for permanent elimination. This mentality was reflected in the Fair Labor Standards Act of 1938, which imposed a high uniform national minimum wage, even though its architects knew that this would lead to substantial unemployment among African Americans.

Finally, the 1930s witnessed the resurrection and expansion of single-sex, state minimum-wage laws in the 1930s. These laws were upheld by a Progressive Supreme Court in 1937. The Court adopted the conventional wisdom in contemporary liberal circles: women who could not command a “living wage” as defined by statute should be expunged from the labor force.

In short, in the early 20th century American labor reformers promoted an ideology that advocated excluding from the workplace those they regarded undesirable, undeserving, or defective. Once progressive ideology came to dominate government policy during the Great Depression, labor legislation was enacted that intentionally set out to exclude “undesirable” workers from the workplace.

The U.S. Commission on Civil Rights wants to investigate the Department of Justice’s handling of voter intimidation charges against members of the New Black Panther Party in Philadelphia.  According to this report, the Justice Department is instructing its attorneys not to cooperate.

The commission last week subpoenaed at least two Justice Department lawyers and sought documents from the department to explain why the complaint was dismissed just as a federal judge was about to punish the New Black Panther Party and three of its members for intimidating voters.

Joseph H. Hunt, director of the Justice Department’s Federal Programs Branch, ordered the lawyers’ silence in a letter to the attorney for J. Christian Adams, the lead attorney for the department in the New Black Panther case. The letter said “well-established” and “lawful” Justice Department guidelines prohibited Mr. Adams’ cooperation in the commission probe.

In the letter, Mr. Hunt said the Civil Rights Commission “possesses no authority to initiate criminal prosecution of anyone” and has the ability only to make referrals to the Justice Department recommending that a criminal case be opened. The commission does not have the authority to enforce subpoenas, he added.

(LvIP)

It looks to me like an interesting turf battle is in the works. (Of course, I doubt it will compare with the Commission’s prior turf battles.)

Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.

Finally, Part III (pp. 27-33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court’s prior so-called “substantive due process” jurisprudence. The brief shows that long before the 14th Amendment, “due process” was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster’s argument in the 1819 Dartmouth College case, was always solidly established in American understanding of “due process,” and was so understood by the Framers of the Fourteenth Amendment.

Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF’s Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.

United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II.

Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge to the Controlled Substances Act. Instead, in addition to Justice Thomas’s vote, she also received the support of Chief Justice Rehnquist and Justice O’Connor–in a “marijuana case” no less. True, her challenge did fail, as widely predicted, but she definitely beat the spread.

But note that, by Orin’s count, only one Justice is willing to follow the text of the Constitution. According to him, the others will decide the case based on stare decisis–i.e. their own ancient decisions (Scalia), the potentially revolutionary implications of reviving the actual text of the Constitution (Roberts & Alito, the latter of whom gave a speech just last week on the importance of Justices following the actual text as it appears to the naked eye), his personal “style” (Kennedy), and undesirable results (Breyer, Ginsburg, Stevens & Sotomayor). How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever!

I wonder how Orin would have predicted the grant of cert, which stated the question presented as follows:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

To see where the references to “natural” and “property” originate consider the rights protected from state discrimination by the Civil Rights Act of 1866, which the Privileges or Immunities Clause was intended, in part, to constitutionalize:

to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property

Or consider this portion of Bushrod Washington’s opinion in Corfield v. Coryell identifying “privileges and immunities” to which Art. IV, sec 2 refers, a quote repeatedly offered in Congress to help identify “privileges or immunities”:

What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

Washington merely borrowed the canonical formulation of natural rights expressly affirmed in numerous state constitutions at the time of the founding and leading up to the Civil War (each of which became or was admitted as a free state):

Massachusetts: “All men are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.” New Hampshire: “All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness.” New York: “We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of Happiness.” Pennsylvania: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Vermont: “That all Men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending Life and Liberty; acquiring, possessing and protecting Property, and pursuing and obtaining Happiness and Safety.” Ohio: “That all men are born equally free and independent and have certain natural, inherent and unalienable rights; among which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. . . .” Indiana: (1816): “That the general, great and essential principles of liberty and free government may be recognized and unalterably established; we declare that all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending life and liberty, and of acquiring, possessing and protecting property and pursing and obtaining happiness and safety.” Illinois (1818): “That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, and of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Iowa (1846): “All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursing and obtaining safety and happiness.” Wisconsin (1848): “All men are born equally free and independent, and have certain inherent rights, among these are life, liberty and the pursuit of happiness. . . .”

This is scary stuff indeed.

Of course, all that is before the Court is the protection of the right to keep and bear arms. In this case, the Court need not decide how or even whether the other privileges or immunities of citizens should be judicially protected. But the Court now has rich doctrinal resources by which it can protect both the rights enumerated in the Constitution and unenumerated fundamental rights that are as “deeply rooted in our nation’s tradition and history” as are these rights. As the Supreme Court, they may not be as afraid to transfer these constitutional doctrines over to the correct clause as Orin predicts. Of course, that is not likely to happen unless the parties or amici inform the Court of the meaning of the now-lost Privileges or Immunities Clause. The sort of “legal realist” analysis offered by Orin in his post would simply be of no assistance to the Court in reaching its decision. Nor would it help much in oral argument. But who knows? As a mere prediction, it could turn out right, in which case Orin can say he told us so.

The Supreme Court’s decision in Ricc v. DeStefano did not put an end to litigation over the New Haven Fire Department’s use of tests for firefighter promotions.  One black firefighter, Michael Briscoe, has filed a disparate impact suit against the city (more here), and other black firefighters have sought to intervene in Ricci on remand.  As Daniel Schwartz notes on the Connecticut Employment Law Blog, these claims are likely to face tough sledding. Stay tuned.