The Volokh Conspiracy

That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass “intermediate scrutiny,” which requires them to be “substantially related” to an “important state interest.” If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the “rational basis” test.

Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.

A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn’t sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers’ view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.

In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.

UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification… that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.

Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.

My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.

In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.

In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.

In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:

The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.

The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.

You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.

That’s the spirit of Constitutional Cliffhangers.

I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.

The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.

Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:

The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say….

The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.

“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.

There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.

Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.

Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.

Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.

UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.

On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument:

By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.

The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.

In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.

Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog.

I was thinking of writing a post on Newt Gingrich’s ill-advised attack on the judiciary. However, most of what I would have wanted to say is covered in this George Will column:

When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when…. he said, “People like me are what stand between us and Auschwitz”…… What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.

But Gingrich’s hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.

Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned….

So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”

He says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government….

To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities, and he would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents….

[Gingrich] disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.

I would add that Gingrich conveniently ignores the fact that there are already many constraints on judicial power. Judges are nominated by presidents and confirmed by the Senate, which makes it difficult to push through nominees who deviate greatly from the political mainstream. Once appointed, they cannot easily enforce decisions in the face of strong opposition from public opinion and/or the other branches of government. Congress can impose additional restraints by deciding which courts have jurisdiction over what issues.

Historically, federal courts have erred at least as much by failing to strike down unconstitutional laws and policies as by overruling laws that they should have upheld. Many of the most notorious Supreme Court decisions – Plessy v. Ferguson, Korematsu, Buck v. Bell, Kelo v. City of New London (which, as Will notes, Gingrich has harshly criticized), fall into the former category.

Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.”  Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional.

This is an important article, which has already received notice from Lawrence Solum and Jack Balkin, among others.  It was also subject to a lengthy critique by Ed Whelan on NRO’s Bench Memos in five parts: 1, 2, 3, 4, and 5.  Calabresi and Rickert have written a response to Whelan which I am posting here.  It begins below and the continues after the jump.

[UPDATE: Ed Whelan has a brief rejoinder here.]

Steve Calabresi & Julia Rickert Response to Ed Whelan

We recently posted an article on SSRN entitled “Originalism and Sex Discrimination,” which  has now been published in the Texas Law Review. We argue in our article that the Fourteenth Amendment outlaws all systems of caste from the Black Codes to European feudalism to the Indian Caste system.  We also argue that after the ratification of the Nineteenth Amendment in 1920 giving women the right to vote, it was constitutionally correct to read the Fourteenth Amendment’s ban on caste as outlawing sex discrimination with respect to civil rights.  Our position is that originalists reading the text of the Fourteenth Amendment today need to synthesize it with the text of the Nineteenth Amendment.  We believe that the political right to vote which the Fifteenth Amendment extends to men of any race, and which the Nineteenth Amendment extends to women of all races, is at the apex of the Constitution’s hierarchy of rights while civil rights, which the Fourteenth Amendment protects form the base of the pyramid.  Children, aliens, and former felons have civil rights under the Fourteenth Amendment, but they do not have the political right to vote.  No group, however, in our opinion can be granted political rights without also acquiring civil rights under the Fourteenth Amendment.

In five posts on National Review, Ed Whelan, who is one of the most acclaimed conservative legal thinkers and activists of his generation, disagrees with our view.  Whelan agrees to assume along with us that the Fourteenth Amendment outlaws systems of caste, as a matter of original meaning, but he disagrees with us that traditional laws that banned married women from owning property, entering into contracts, or working as lawyers or bartenders set up a system of caste even if the Fourteenth Amendment bans systems of caste.  Whelan also argues that the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous.  Whelan makes many additional arguments which we will try to address below, but this is the gist of his argument.

Continue reading ‘Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination’ »

Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination.  In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the 19th Amendment in particular.

Ed Whelan has responded to the Calabresi-Rickert article at length at NRO’s Bench Memos.  To put if briefly, he is not convinced.  His response consists of five parts: 1, 2, 3, 4, and 5.

It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment.   Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities.  Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.

In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment.  Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular.  Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.

This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate.  As Solum would say, “Download it while it’s hot!”

The American Revolution took place because of various abuses of the rights of Americans by the British government. So when we seek to understand the rights of citizens in the nation that was created by that Revolution, one useful guide is looking at the negative example of what the Americans were revolting against. For example, Justices have looked at the revolution-provoking use general warrants (Henry v. United States, 1959),  unrepresentative government as exemplified by (but not limited to) taxation without representation (Texas v. Johnson, 1989, Rehnquist dissenting),  and violation of the right to trial by jury, via use of vice-admiralty courts (Parklane Hosiery v. Shore, 1979, Rehnquist dissenting).

More broadly, as the 2d Justice Harlan wrote in his oft-quoted dissent in Poe v. Ullman, when the Court is “supplying of content” to constitutional ”liberty,” the Court should have “regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.”

Can commentators supply some additional examples, either regarding specific issues, or general Poe-like rules? Citations to Supreme Court cases are welcome, but also welcome are citations to other sources who are regarded as guides for constitutional understanding–such as Abraham Lincoln, or influential commentators.

This week, I have argued that the great overlooked question in constitutional law is the who question: who is bound by each clause and so who may violate it? These posts have attempted to answer this question for many of the most important clauses.  They have also attempted to sketch some of the implications of the answers.  Many more answers, and many more implications, may be found in my Stanford Law Review articles, The Subjects of the Constitution and The Objects of the Constitution.

Both the answers and the implications are contestable (and many of the comments have contested them!).  But the question, at least, has already started to take root (at least in the Third Circuit and the Seventh Circuit).  And it turns out that once you start asking, it is difficult to stop.

So, to the law students reading this blog, I leave this one parting thought.  When your professor tells you that “a statute violates the constitution” — either “facially” or “as-applied” — just ask him what exactly he means.  If the Constitution has been violated, then someone must have violated it, at some particular moment in time.  Ask your professor: who violated the Constitution and when? The discussion that follows may change the way that you think about constitutional law.

Many thanks to Eugene for the invitation, to Randy for the generous review, and to the Conspiracy for your gracious hospitality.

This week, I have argued that the great overlooked question in constitutional law is the who question: who has allegedly violated the Constitution? The question is important, first, for simple reasons of constitutional accountability: if you care about the Constitution, you should care about who is violating it.  But it is also important because it frames the organizing dichotomy of constitutional review.  The Constitution binds different governmental actors in different ways.  And judicial review of legislative action is fundamentally, structurally different from judicial review of executive action.  What the Court calls a “facial challenge” is actually a (broad and text-focused) challenge to legislative action.  What the Court calls an “as-applied” challenge is actually a (narrow and fact-focused) challenge to executive action.

So, it is essential to know which clauses of the Constitution bind which governmental actors.  Sometimes, happily, it is easy to tell, because some clauses are written in the active voice, with an explicit subject.  “Congress shall make no law … abridging the freedom of speech.”  “The Congress shall have power … To regulate Commerce … among the several States.”  Challenges under these provisions are challenges to legislative action.  They are inherently “facial” and do not turn at all upon specific facts that arise after the legislature made the law.  (Those facts might matter for preliminary questions, like standing, but they will not matter to the merits of the constitutional inquiry.)

Unfortunately, most clauses of the Bill of Rights are not so easy.  Most of them are written in the passive voice, inviting the question: by whom? Yesterday, I argued that most of these clauses bind the Executive (or Judicial) branch rather than Congress.  This explains the Court’s intuition that most constitutional challenges are properly fact-based, or “as-applied”.

The Fourteenth Amendment is more difficult still, but in a different way.  It is written in the active voice, with an express subject, but its subject is less specific than “Congress.”  The Fourteenth Amendment says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is tempting, of course, to say that this provision binds all state actors, and so Fourteenth Amendment rights are rights against all of them.  But, unfortunately, the question is more complicated.  The Fourteenth Amendment is said to “incorporate” the Bill of Rights against the States.  But, as we have seen, the Bill of Rights itself protects rights against particular federal actors.  The subject of the First Amendment, for example, is “Congress.”  It is a prohibition on legislative action.  Does it follow, therefore, that the First Amendment as incorporated applies only to state legislatures?

Not necessarily.  In his masterpiece, The Bill of Rights: Creation and Reconstruction, Akhil Reed Amar explained how the rights in the Bill of Rights are refined as they are incorporated against the States.  Building on Amar’s brilliant work, my article explores perhaps the most important refinement of all — refinement of the subjects and objects of the Bill of Rights.  The rights as incorporated do not necessarily restrict the state analogues of the same federal actors.

The reason derives from the structural logic of the Constitution.  Because the Constitution created the federal government, it could be precisely calibrated to empower and restrain each of the three branches that it created.  The Bill of Rights provisions are restrictions on powers granted elsewhere in the document. They are, as Chief Justice Marshall says, “limitations of power granted in the instrument itself.”  The limitations are, thus, carefully calibrated to the power grants.

But the Constitution did not create the state governments, and it permits a wide variety of state governmental structures—requiring only that those structures be “Republican.”  So the Framers could not be certain precisely who, at the state level, would pose each sort of threat to liberty.  The Fourteenth Amendment restricts state governmental powers that are not to be found in the Constitution itself.  These provisions cut across state powers that may or may not be found in various state constitutions and may or may not vary from state to state. Here, the restrictions do not map onto grants of power to particular state officials, and so the restrictions are phrased generally: “No State shall.”

For this reason, incorporation of the Bill of Rights may work a refinement of the subjects and objects of the Bill of Rights.  Contra the conventional wisdom, different actors may be bound at the state level than at the federal level. For each privilege or immunity, it is essential to ask: privilege or immunity against whom? I venture some answers in The Objects of the Constitution.

David Gans of the Constitutional Accountability Center, the liberal organization that originated the “Whole Constitution Pledge” has a post commenting on various criticisms of the Pledge, including those by Eugene Volokh, Jonathan Adler, and myself:

To take back America’s charter from the Tea Party, Constitutional Progressives – an initiative launched by the Constitutional Accountability Center and supported by numerous other organizations concerned with protecting the constitutional rights of all Americans – have urged all Americans to pledge to support the whole Constitution….

We are pleased that, over the last week, a number of prominent and well-respected conservatives have taken the time to weigh in on the merits of the “Whole Constitution” pledge. For example, Ed Whalen and Eugene Volokh, have pointed out that calling for repeal of constitutional amendments is not proof of lack of fidelity to the Constitution, noting that Article V gives all Americans the right to call for the repeal of aspects of the Constitution they think are inconsistent with fundamental constitutional principles. Likewise, Ilya Somin has noted that, even after 27 Amendments enacted over 220 years, the long running struggle for a better, fairer, and just system of government still continues. Notably, and to their credit, neither Ed Whalen, Eugene Volokh, nor Ilya Somin show any interest in making the case that the Tea Party’s vision of the Constitution is the correct one, or that their call for repeal of numerous, deeply-rooted parts of our constitutional order should prevail. In fact, Ilya Somin agrees that Seventeenth Amendment – high on the Tea Party hit list – is an important and enduring part of our constitutional order.

These are all important and correct points. Article V is incredibly important to our constitutional story. Because the Framers recognized that the Constitution they created was not infallilble, generations of Americans have been able to change the Constitution in fundamental ways, ending slavery, guaranteeing equality, and ensuring a vibrant democracy that respects the right to vote free from discrimination. But none of these points, in fact, cut against the Pledge. On the contrary, with the Tea Party seizing on Article V to demand repeal of numerous Amendments ratified by the American people over the full sweep of our history, it is critical for the American people to understand the full arc of our constitutional story and to take our Constitution back.

I am pleased that CAC wants to continue this discussion, and of course we’re always happy to be called “prominent and well-respected.” I fear, however, that Gans’ defense of the Pledge fails and that he posits greater agreement between us than actually exists. If, as he now writes, Article V of the Constitution is “incredibly important” and the Constitution is – even now – “not infallible,” then the Pledge is wrong to call for support of “the whole Constitution” and to attack the Tea Party activists for having the temerity to want to change some parts of it. That was the main point of my original post criticizing the Pledge: that some parts of the present Constitution are indefensible (including by the standards of the political left) and others are at least reasonably debatable. We should not denounce the Tea Party – or anyone else – merely because they don’t support “the whole Constitution.”

In addition, I am perfectly willing to defend some important aspects of “the Tea Party’s vision of the Constitution.” As I explain in this article, I think the Tea Partiers are absolutely right to argue that the powers of the federal government should be far more limited than current Supreme Court jurisprudence allows. Indeed, I have been advocating stricter enforcement of constitutional limits on federal power since long before there was a Tea Party. I also agree with the view of many Tea Partiers that the Court has failed to provide anything remotely approaching adequate protection for constitutional property rights and economic liberties. Many other conservative and libertarian constitutional law scholars – both “prominent” and otherwise – hold similar views.

As Gans notes in regards to the effort to repeal the Seventeenth Amendment, I do not agree with the Tea Party on every constitutional issue. Indeed, it would be impossible for me to do so, since there is considerable internal disagreement in the movement. Not all Tea Partiers support repeal of the Seventeenth Amendment, for example, and it’s not even clear whether a majority do so. But I do think that the rise of a popular movement emphasizing stronger enforcement of constitutional limits on federal power is a positive development, even if I don’t agree with all of its specific proposals.

Finally, it’s worth noting that Gans is wrong to describe Jonathan and myself (and probably also Eugene) as “conservatives.” We are in fact libertarians. That distinction matters here because there are some important differences between libertarian and conservative views on constitutional reform. For example, few if any libertarians support efforts to repeal the birthright citizenship provision of the Fourteenth Amendment. The backing for that idea comes almost entirely from conservatives, because the latter tend to be more wary of immigration than libertarians are.

UPDATE: It’s not entirely clear from the context whether Gans meant to describe Jonathan Adler as a conservative in addition to Eugene and myself. If he did not, then I retract that part of my critique of his post.

UPDATE #2: Jonathan Adler has responded to the part of Gans’ post criticizing him here (you may need to scroll down to find his comment).

On Monday, I pointed out a euphemism of constitutional discourse.  We are in the habit of saying “this statute violates the Constitution” (either “facially” or “as-applied”), when what we mean is that some government actor violated the Constitution — Congress, the President, a federal court, a state official.  The euphemism is bad, I argued, because it conceals constitutional culprits.  Simply put, if you care about the Constitution, you should care about who is violating it.

On Tuesday and Wednesday, I argued that this euphemism is bad for an even more fundamental reason.  It obscures what should be the organizing dichotomy of constitutional law.  The Court has correctly intuited that there are two basic flavors of judicial review — one somehow narrower, turning on the challenger’s specific facts and implying a remedy tailored to those facts; the other broader and more general, focusing on text rather than facts, and perhaps suggesting a sweeping remedial declaration that the statute is “void.”  But the Court has been distinctly vague about when each sort of challenge is appropriate and why.  It purports to “favor” the narrower type, and it purports to have set an extremely high bar for the broader type, but in some contexts (like the Commerce Clause), its presumption seems to run the other way, without any explanation.

The dichotomy that the Court has been grasping for is actually a dichotomy based on the subject of the claim, the answer to the who question.  A “facial” challenge is simply a challenge to legislative action.  An “as-applied” challenge is simply a challenge to executive action.  A “facial” challenge is broad and text-based, because it challenges the legislature’s action in making a law; the challenger’s particular facts cannot matter to the merits, for the simple reason that those facts arise later, after the alleged violation is complete.  An “as-applied” challenge is narrow and fact-based, because it challenges the executive’s action in executing the law.  Here the inquiry is distinctly fact-intensive, because the facts of execution are the constitutional violation.

This explains why the Court has apparently ignored its general rule and favored “facial” challenges in three particular contexts: the First Amendment, the Commerce Clause, and Section Five of the Fourteenth Amendment.  The Court has never explained these exceptions to the general rule, but these three provisions have one important characteristic in common.  They are all written in the active voice, with a single explicit subject: “Congress”.  Challenges under these provisions are challenges to legislative action.  Any constitutional violation will be visible on the face of the law, and the challenger’s specific facts — which arise after the law was made and so after the violation was complete — cannot matter to the merits of the case.

So, to determine whether a constitutional inquiry should be fact-based (as under the Fourth Amendment) or text-based (as under the First Amendment, the Commerce Clause, or Section Five of the Fourteenth Amendment), it is essential to answer the who question and identify the subject of the claim.

Unfortunately, not all Clauses are as clear as the examples given so far.  Unlike the First Amendment, most of the Bill of Rights is written in the passive voice, inviting the question: by whom? In these cases, it is much more difficult to tell who is bound by each clause.

At first glance, it might be tempting to say that that the passive-voice clauses bind everyone on Earth.  One might be tempted to say, for example, that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” by anyone.  But in fact, virtually everyone agrees that such provisions bind only government actors.  A parent cannot violate this provision by searching their child, no matter how unreasonable the search.  Moreover, in a case called Barron v. Baltimore, Chief Justice Marshall held that such Clauses bind only federal government actors.  (The Fourteenth Amendment, ratified after Barron, applied many of the same restrictions to state actors, as I will discuss tomorrow, but it remains true, per Barron, that the passive voice clauses themselves bind only federal government actors.)

If constitutional structure limits the passive-voice clauses to government actors, and if constitutional structure limits them further, to only federal government actors, then perhaps constitutional structure limits at least some of them further still, to specific federal government actors: Congress, or the President, or the judiciary.  In The Objects of the Constitution, I attempted to apply Chief Justice Marshall’s textual and structural approach from Barron to this question, and tried to identify who, specifically, is bound by the passive-voice clauses of the Bill of Rights.

The complete analysis is too involved for a blog post.  (If you’re interested, please see the article itself.)  But the basic conclusions are rather striking.  It seems that when the Constitution binds Congress, it generally does so in the active voice (“Congress shall make no law”) or, in the passive voice, it speaks in unmistakably legislative terms (“no bill of attainder or ex post facto law shall be passed”).

But most of the Bill of Rights does not sound like that.  Most of it is written in distinctly executive-sounding terms, like “searches and seizures” “punishments inflicted,” and “property … taken.”  These are not words that invoke the “making” or “passing” of “bills” or “laws” in the halls of Congress, but rather executive action out in the world.  (Other provisions of the Bill of Rights are written in judicial terms, concerning the conduct of trials; again, if you are interested in these, please see the article itself.)

Another clue is that, other than the First Amendment, most mentions of “law” in the Bill of Rights are not restricting the laws that Congress can make (as in “Congress shall make no law”).  Rather, most mentions of “law” seem to be restricting what another branch may do in the absence of a law.  See, e.g., U.S. Const. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”); id. amend. V (“No person shall … be deprived of life, liberty, or property, without due process of law”); id. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”).

In short, it appears that most provisions of the Bill of Rights are not restrictions on legislative action.  In most of these provisions, Congress is not the answer to the who question.  Most of these provisions are restrictions on executive (or judicial) action.  Most are like the Fourth Amendment, not like the First Amendment. And this explains the Court’s intuition that most judicial review should be fact-specific and as-applied.

It also explains the Court’s intuition that the First Amendment is an exception to the rule.  The Court has always had the instinct that the First Amendment is special, that it merits special protection, that challenges can be earlier and broader, because, as the Court says, the “very existence” of offending statutes may cause “chill” and thus constitutional harm.  And so, the Court has crafted special doctrines, like overbreadth, which it purports to apply in the First Amendment context and no other.

But it has never noticed that its exceptional First Amendment doctrines map onto the First Amendment’s exceptional subject.  The First Amendment, unlike most of the Bill of Rights, is a restriction on Congress.  Congress is the subject of the Amendment and the answer to the who question.  If the First Amendment has been violated, then Congress has violated it, by making a law. That is why overbreadth doctrine is limited to the First Amendment.  That is why First Amendment challenges should always be “facial”.  And that is why the “very existence” of a censorship law is a constitutional harm.

In light of some of the comments and questions on my prior posts, it might be helpful to take a step back and explain exactly what puzzle I started out trying to solve.  For this discussion, we will use an example near and dear to the Conspiracy’s heart: the scope of the Commerce Clause, and whether it can justify the individual mandate of ObamaCare.

But first, the puzzle.  The Court has intuited that there are two basic forms of judicial review.  It has called these two forms “facial challenges to statutes” and “as-applied challenges to statutes.” But the distinction between them is quite confused. Under current doctrine, an “as-applied challenge” is somehow narrower, turning on the challenger’s specific facts and implying a remedy tailored to those facts. A “facial challenge” is broader and more general, implying, somehow, that the statute is rotten to the core, and perhaps suggesting a sweeping remedial declaration that the statute is “void.”  An as-applied challenge is mostly about facts, whereas a facial challenge is mostly about text.  But when is the former appropriate and when the latter? Precisely what remedy is appropriate in each case? Indeed, what exactly do these terms — “facial” and “as-applied” — even mean?

The Court has issued precious little guidance on the matter, merely emphasizing that it considers “as-applied” challenges to be the norm, and “facial” challenges to be a “disfavored” exception to the rule.  In a case called Salerno, the Court said: “A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”  That may sound like a clear rule, but courts and commentators have struggled mightily to figure out what it means.  And in any case, the Court itself often ignores this rule, in some contexts but not others, without explanation.

One such context is the Commerce Clause. In 1990, Congress enacted the Gun-Free School Zones Act, which made it a federal offense “for any individual knowingly to possess a firearm . . . at a place that the individual knows, or has reasonable cause to believe, is a school zone.”  Alfonso Lopez was charged with bringing a gun to a high school in San Antonio. He presented a constitutional defense, claiming that the Act “exceeded Congress’ power to legislate under the Commerce Clause.”  The Court agreed and, for the first time in fifty-eight years, struck down a statute on Commerce Clause grounds.

But here is the puzzle.  Why did the Court tolerate a “facial” challenge here, when it usually insists that they are “disfavored”?  Why is there no mention of Salerno and no inquiry into whether “no set of circumstances exists under which the Act would be valid”?  And why is there no inquiry into Mr. Lopez’s specific facts?  Why is there no substantial discussion of whether Mr. Lopez’s personal gun had travelled in interstate commerce?

The puzzle may be solved by focusing on the answer to the who question, the subject of the Clause. The Commerce Clause says: “The Congress shall have power . . . To regulate commerce . . . among the several states . . . .”  Like the First Amendment, it is written in the active voice and it has a clear subject: Congress.  So, a Commerce Clause challenge, like a First Amendment challenge, is a challenge to an action of Congress. Congress is the subject of the claim and the answer to the who question. And the answer to the when question follows: if Congress makes a law in excess of its power under the Commerce Clause and thus violates the Tenth Amendment, the constitutional violation occurs when Congress makes the law.

As the Court has intuited but not explained, a claim that Congress violated the Constitution by making a law, when it made the law, is inherently a “facial” challenge.  Facial challenges cannot be “disfavored” here; in this context, they are logically required.  Conversely, “as-applied” challenges cannot be “favored” here; in this context, they make no sense. The specific facts of enforcement cannot matter in a Commerce Clause case, for the simple reason that the constitutional violation is complete before those facts arise. It cannot matter whether Mr. Lopez’s gun travelled in interstate commerce, because Congress violated the Constitution long before, by making the law.

This is how to make sense of the Court’s muddled distinction between “facial” challenges and “as-applied” challenges.  The distinction the Court is grasping for is a distinction based on subject.  An as-applied challenge is a challenge to executive action (as in the Search and Seizure Clause of the Fourth Amendment). A facial challenge is a challenge to legislative action (as in the First Amendment and in the Commerce Clause).

This explains what happened in Lopez, and it explains what happened in the cases that followed.  The next Commerce Clause case, Morrison, was also a purportedly “disfavored” facial challenge — and it also succeeded.  Here, too, there was no analysis of specific facts, just analysis of the action (or “Act”) of Congress.

The one after that, Raich, argued by Conspirator Randy Barnett, took the opposite approach from Lopez.  Raich insisted that the Court should focus on her particular facts, and whether they affected interstate commerce.  One would have thought that this was a sensible strategy — the “as-applied” approach that the Court purports to favor.  But here, the Court would have none of it.  Raich’s facts were irrelevant to whether Congress did or did not exceed its power years before.

In light of these cases, it is enormously important that the healthcare litigation has been properly framed — with Randy’s wise guidance — as a facial challenge.  In the healthcare litigation, the challengers have carefully answered the who question, arguing that Congress exceeded its power by enacting the statute.  Thus, they are not arguing about the hardship to any particular person, just as Lopez did not argue about his particular gun.  Those facts don’t matter to the merits of the claim, because the culprit is Congress and the alleged violation is already complete.  As Randy has explained, that framing — that correct answer to the who question — is a crucial reason why this challenge may succeed.

Hello, Conspiracy! This week, I will be guest-blogging about a new model of constitutional review.  The first two installments — The Subjects of the Constitution and The Objects of the Constitution — were recently published in the Stanford Law Review, and the comprehensive version is forthcoming next year as a book by Oxford University Press.  Many thanks to Eugene for the introduction and to Randy Barnett for the rave review.

This past summer, the project was cited by the Third Circuit in a controversial executive detention case and discussed by the Seventh Circuit in an important gun rights case.  As Randy anticipated, it was also cited by Virginia earlier this year in its challenge to ObamaCare.  I will be discussing these practical applications later in the week.  Today, I will begin with the simple observation from which all these applications follow.

The school year has just begun, and in countless law school classrooms across the country, a phrase is just beginning to echo.  In all of these classrooms, professors are intoning, and students are dutifully transcribing, the following words: “This statute violates the Constitution.”

This is commonplace.  It is also wrong.

Statutes do not violate the Constitution any more than guns commit murder.  The Constitution prohibits certain actions. Actions require actors, just as verbs require subjects. Government actors, not statutes, violate the Constitution.  Congress, the President, federal courts, state officials — these are the potential subjects of a constitutional challenge. And every constitutional claim should begin by identifying which one is to blame.

Yet, as a general matter, our constitutional discourse is maddeningly vague about exactly who has violated the Constitution. If Congress makes a law, the President executes the law, and a constitutional right is violated, it must be that either Congress or the President violated the Constitution. But which one?  And is the answer the same in every case?  The Court rarely says that “Congress has violated the Constitution” or “the President has violated the Constitution.” Instead, it insists on saying: “the statute violates the Constitution” (or, worse yet, “the statute violates the Constitution as-applied”).

This formulation derives, perhaps, from an odd linguistic quirk. Congress acts by making laws. But the product of the action of Congress — the statute, the public law — is also called an “Act of Congress.” In grammatical terms, “act” is both a noun (“an act”) and a verb (“to act”), as it has been since before the Founding. In common parlance, when Congress acts (lowercase, verb), the result is an Act (uppercase, noun) of Congress.

But note the subtle difference between saying that “an act of Congress violated the Constitution” and saying that “an Act of Congress violates the Constitution.” The former (lowercase, past tense) properly focuses on Congress, its action in making the law, and the moment in the past when the law was made.  The latter (uppercase, present tense) confusingly focuses on the statute itself in the present, as though the statute were the culprit and its offense ongoing. And so usage has varied from the analytically correct (“this action of Congress violated the Constitution”) to the ambiguous (“this act/Act of Congress violated/violates the Constitution”) to the incorrect (“this statute violates the Constitution”).

From the Court’s perspective, this last formulation may possess the (dubious) merit of euphemism. Judicial review is always a politically sensitive matter, and the Court understandably tries to avoid direct confrontation with the coordinate branches. By saying that “the statute violates the Constitution,” the Court carefully avoids pointing a finger or casting express blame.

But this is not merely harmless euphemism. To say that “a statute” — rather than a government official — violates the Constitution is to conceal and abet a constitutional culprit.  Usually, the Court is at pains to emphasize the crucial importance of constitutional accountability. But here, the Court’s phrasing renders the government more opaque and less accountable, so that the People do not know whom to blame, whom to vote against, whom to impeach.  In short, the Court’s circumlocution hails from the familiar, passive, elusive, “mistakes were made” school of constitutional responsibility.

But that is not the worst of it. To say that “a statute violates the constitution” is to perpetuate a pathetic fallacy. Judicial review is not the review of statutes at large; judicial review is constitutional review of governmental action. Government actors violate the Constitution. And the structure and substance of judicial review turns on which one committed the violation.

This is not a mere linguistic or grammatical point, but a deep structural implication of federalism and separation of powers.  The Constitution restricts all different governmental actors. And it restricts these different actors differently. One cannot determine whether the Constitution has been violated without knowing who has allegedly violated it.  The predicates of judicial review inevitably depend upon the subjects of judicial review.

Chief Justice Marshall understood this, recognizing that the who question is “of great importance.” But a century later, the Court had entirely lost sight of the subjects of the Constitution. The fact that different clauses bind different actors is now treated, in case after case, as an embarrassing drafting error, fit for judicial “correction.” It would be “unthinkable,” the Supreme Court insists, if a constitutional prohibition applied to one governmental actor and not another. Yet it is hardly unthinkable — indeed, it is an irrefutable textual fact — that different clauses apply to different government actors.

As Marshall knew, this is a fundamental structural feature of our Constitution, reflecting the Framers’ deep insight that each branch and level of government poses different and distinct threats to individual liberty. As I will try to demonstrate this week, it is essential to identify the constitutional culprit, because judicial review of a legislative act is entirely different — formally, structurally, temporally different — from judicial review of an executive act.  These basic differences dictate both the structure and the substance of judicial review.

So, the first step in any act of judicial review must be to figure out the subject of the constitutional claim. The first question to ask is the all-important who question.  The Constitution has allegedly been violated. Who has violated it?

Co-bloggers Eugene Volokh and Jonathan Adler have made some powerful criticisms of the “Whole Constitution Pledge”put together by various liberal organizations. As Jonathan points out, there are some parts of the Constitution that most liberals prefer to underenforce, if not completely repudiate.

I would go further than that and note that at least a few parts of the Constitution are completely indefensible, including by the standards of modern liberals. For example, how many of the organizations behind the Whole Constitution Pledge support the provision in the Constitution that allows only native-born citizens to run for the presidency? I know I don’t – and it’s not because I have any desire to run for president myself. At best, this provision reflects unjustified suspicion of immigrants; at worst it’s rank bigotry. How about the rule under which the vice president (in his capacity as president of the Senate) gets to preside over his own impeachment trial? Does anyone, liberal or otherwise, believe that’s a good idea?

There are other parts of the Constitution, which though not obviously wrong, are at least open to serious criticism. For example, I think that it should be easier to break up excessively large and dysfunctional states, such as California. A number of liberal legal scholars, such as Sanford Levinson, believe it’s a bad idea to give some states fifty times greater representation per capita in the Senate than others. Are their ideas beyond the pale of reasonable discourse? Obviously not.

The Founding Fathers did a great job overall. But a few parts of their handiwork were flawed from the start, and some others that may have been defensible in 1787 or 1868 are no longer so today. For these reasons, I do not pledge to support the whole Constitution. Some parts of it are unworthy of support. I do urge judges and other government officials to impartially enforce all of its provisions for so long as they remain unamended. But that is not the same thing as endorsing their propriety.

Obviously, not all constitutional reform proposals are good ideas. For example, I am skeptical of calls by some on the right for the repeal of the 17th Amendment. But if you want to defend that Amendment against its critics, it’s not enough to endorse the “Whole Constitution” or to make general claims that “our Constitution has been improved by the Amendments adopted over the last 220 years,” as the Pledge puts it. You have to explain, as I tried to do, why repealing this particular amendment would do more harm than good.

Over the summer, I wrote a piece about the Supreme Court’s decision in the “violent videogames” case (Brown vs Entertainment Merchants Assn) for the forthcoming Cato 2011 Supreme Court Review. The Center for Constitutional Studies at Cato is having a kickoff event for the publication this coming Thursday (starting at 1030 AM), and I’ll be speaking there on the first panel about the Court’s evolving First Amendment jurisprudence.

VC’ers might be particularly interested in (though doubtlessly some will be angered or annoyed by) what I had to say about Justice Thomas’ thoroughly remarkable — though not in a good way — dissenting opinion in the case, one that, in my opinion at least, exposes the underlying flaws of the strict “originalist” position in constitutional law better than any other text:

Justice Thomas’ dissenting opinion expresses the hard-headed and uncompromising originalism for which he is well known:

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid. (internal quotation marks omitted). . . .

As originally understood, the First Amendment’s protection against laws “abridging the freedom of speech” did not extend to all speech. . . . In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. . . . The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas’s historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions. Let me put it this way: I know enough about discourse in the late eighteenth century to know that if you had walked into a bar in, say, Richmond, or Boston, or Philadelphia, in 1791 and made any of the following statements, you would have gotten a nice little argument going:

• “The government has just decreed that children can’t attend religious services. Can it do that?”
• “The government has just decreed that all schoolbooks must include endorsements of John Adams’s candidacy for the Presidency, and a defense of the Alien and Sedition Act. Can it do that?”
• “The government has just decreed that adults may not sing to children who are not their own. Can it do that?”

Justice Thomas believes that all of those questions can be answered in the affirmative—and,more importantly, that “eighteenth century society” would have answered all of those questions in the affirmative. (Indeed, he believes the former precisely because he believes the latter). His belief is misplaced, in my opinion. No amount of historical research can tell us what “the answer” to any of those questions would have been—in 1791, 1891, or 1991—because there is no “answer” that “society” can give to those questions. They’re contested and contestable propositions, depending on (among other things) how you characterize what the government was doing: helping parents or usurping their role, for example. . . .

In any event, if you feel like dropping in on the Cato event (perhaps to defend Thomas’ position!), you’re of course invited to do so.

[UPDATE: Chris Lund points out that Thomas' originalism is not always so crude as he expresses it here. In Citizens United, he joined Scalia's concurrence, which contained this paragraph:

A good deal more sensible than the position Thomas takes in Brown]

That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

The Seventh Circuit’s decision in Ezell v. Chicago is a tremendously important case for Second Amendment doctrine. The key rules from Ezell: use originalism from both 1791 and 1868 to determine if an activity is within the scope of the Second Amendment right. If it is, apply First Amendment doctrine, and make the standard of review more stringent when the activity is closer to the core of the right, and when the government is prohibiting rather than regulating. Generally speaking, when looking for guidance, look to Eugene Volokh.

As the above rules apply to the case at bar: The right to practice with firearms is an important ancillary to the core of the Second Amendment right, so Chicago’s ban on firing ranges is subject to not-quite-strict scrutiny.

Here’s how the Ezell court set forth the above standards.

The Second Amendment is like the First Amendment, in that a temporary deprivation of the right may constitute irreparable harm:

[F]or some kinds of constitutional violations, irreparable harm is presumed. See 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). This is particularly true in First Amendment claims. See, e.g., Christian Legal Soc’y, 453 F.3d at 867 (“[V]iolations of First Amendment rights are presumed to constitute irreparable injuries . . . .” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amendment right is frequently presumed to cause irreparable harm based on “the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. 554 U.S. at 592-95. Infringements of this right cannot be compensated by damages.

When a law is “alleged to infringe Second Amendment rights,” there is a two-step inquiry, beginning with the question “Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449.”

To answer the first question, look to original meaning from both 1791 and 1868:

The answer requires a textual and historical inquiry into original meaning. Heller, 554 U.S. at 63435 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”); McDonald, 130 S. Ct. at 3047 (“[T]he scope of the Second Amendment right” is determined by textual and historical inquiry, not interest-balancing.). McDonald confirms that when state- or local-government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment’s scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified. See McDonald, 130 S. Ct. at 3038-42.

Courts should follow the Supreme Court’s lead and treat “original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610-19; McDonald, 130 S. Ct. at 3038-42. ” [fn. 11].

Footnote 11 offers some examples of what the court apparently sees as the generally correct approach to the original public meaning inquiry:

11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215-30, 257-67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285-87 (2011); Josh Blackmun [sic, Blackman] & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 51-57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed by Governments That Are Afraid of the People“: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824-25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11-17, 50-54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266-70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).

If the plaintiffs lose on the “scope” question, then the case is over and the government wins. If the alleged law does apply to something within the scope of the Second Amendment right, the court must apply judicial review. “[T]he rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. See generally, Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1454-72 (explaining the scope, burden, and danger-reduction justifications for firearm regulations post: Heller); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1372-75 (2009); Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1571-73 (2009); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 979-80 (2009); Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2042-44 (2008).”

The right to arms includes the right to practice with arms: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective. The Ezell court pointed to the Supreme Court having “quoted at length from the ‘massively popular 1868 Treatise on Constitutional Limitations’ by judge and professor Thomas Cooley: ‘[T]o bear arms implies something more than the mere keeping; it implies the learning to handle and use them . . . ; it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order’.” In addition, “‘No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.’ (quoting BENJAMIN VAUGHAN ABBOTT, JUDGE AND JURY: A POPULAR EXPLANATION OF THE LEADING TOPICS IN THE LAW OF THE LAND 333 (1880)).”

So what exactly is the standard of review?

“The City urges us to import the ‘undue burden’ test from the Court’s abortion cases…but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1449, 1452, 1454-55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller’s Catch-22, 56 UCLA L. REV. at 1572.

So “we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end.” This amounts to what the court calls “not quite ‘strict scrutiny.’” Or it could be called strict scrutiny light. A “an extremely strongly” state interest, rather than a “compelling one”; and “a close fit” rather than “narrowly tailored.”

For “laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.” The Ezell court does not elaborate the doctrine for deciding lesser cases, because the instant case involves a prohibition very close to the core.

The “plaintiffs are the ‘law-abiding, responsible citizens’ whose Second Amendment rights are entitled to full solicitude under Heller . . .The City’s firing-range ban is not merely regulatory; it prohibits the ‘law-abiding, responsible citizens’ of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.”

In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

Time magazine managing editor Richard Stengel has penned a cover essay about the Constitution, One Document, Under Siege. My Independence Institute colleague Rob Natelson wrote a response addressing some of the many illogical or inaccurate claims therein.

For example:

Stengel: “The framers . . . gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.”

Answer: The three-fifths compromise was a way of resolving a particularly thorny political difficulty; it was not an anthropological statement. In fact, the framers did recognize—repeatedly—the personhood of African-Americans. Nor did they “give us the idea” that women couldn’t vote; this was left up to the states, and in 1787 women DID vote, formally or informally, in some states. That may be one reason the Founders deliberately left the Constitution gender-neutral. (See p. 63 in my book, The Original Constitution.)

Whether equality of states in the Senate is a good idea is a matter of opinion, but enough very sane people think so to disqualify the idea from being “kind of crazy.”

For Natelson’s point about personhood, see Federalist 54, explaining that the Constitution recognizes that slaves are “moral persons,” not mere property. That’s why Madison was careful to refer to them as “persons.” In New Jersey,  women had the formal right to vote until the legislature changed the law in 1807.

Stengel: “Your doctor’s stethoscope was made in one state and was shipped to and sold in another.”

Answer: Yes, and Congress may regulate the stethoscope sale.  But the Constitution, properly understood, generally does not permit Congress to regulate what the physician does with the stethoscope, and certainly not how he is paid for his services.

My favorite:

Stengel: “There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.”

Answer: I included this because ignorance of Latin and of the Founders’ latinate English has led to many constitutional misinterpretations, and because the mangled, ungrammatical version Stengel uses suggests that he got it from Star Trek (Deep Space Nine) rather than from Cicero.

The phrase is actually “Silent enim leges inter arma.” One reason the Founders were better qualified to address constitutional issues than Mr. Stengel is that they HAD read Cicero, and in Latin.

Incidentally, the correct translation is “For laws are silent amid arms.”

My colleague Eric Claeys has a very interesting piece in National Affairs. The hook is the future USSC decsion on Obamacare, but the meat of the piece is an explanation of the divergent strands of modern constitutional conservatism:

To understand contemporary “judicial conservatism” and its ambiguities, it is helpful to describe it as a series of reactions against the “living Constitution” approach that was employed by the Warren and Burger Courts from the early 1950s to the 1980s. The Warren and Burger Courts handed down many landmark decisions declaring new constitutional rights relating to abortion, compulsory school integration, prayer in schools, the procedural rights of criminal defendants, and the death penalty. According to its critics, the living-Constitution approach reflected in these decisions mistakenly downgraded the original meaning of constitutional text, treated precedent too casually, and encouraged federal courts to usurp the legitimate discretion given to political officers to make sensitive policy judgments.

These three criticisms aligned and overlapped as applied to the Warren and Burger Courts’ major decisions. Yet these criticisms do not converge in every case. They diverge especially when the issue is not a new right declared by the Court but an act of Congress that strains the Constitution’s structure. In such a case, should a conservative judge invoke the judiciary’s power to protect the Constitution’s original meaning — or worry that such power forces him to second-guess Congress’s political choices?

As Claeys points out, over the Supreme Court’s conservatives, only Justice Thomas has come even remotely close to being a consistent originalist.

The only thing missing in the piece, I think, is a discussion of whether the virtual consensus in conservative circles (sorry, Orin) that Obamacare goes “too far” for constitutional purposes will affect the Justices’ ruling. To say the least, when the Court decided Gonzales v. Raich in the middle of the Big-Government Bush presidency, there was neither a consensus among conservative types that the federal government should be limited in general, much less that any such limits should apply to marijuana laws. To the extent that the Justices vote, as they generally do, consistent with the very strong preferences of the coalition that put them into power, Obamacare may get more negative votes than one might think. (Put another way, if President Bush had signed a law like Obamacare passed by a Republican Congress, opponents of the law would be lucky to get even Thomas’s vote.)

But the controversy over Obamacare aside, the piece is well worth reading in full.

A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011).

Gary Lawson (Boston Univ.) and I partially agree:

Professor Koppelman evidently believes that the constitutionality of the individual mandate begins and ends with McCulloch v. Maryland. He is absolutely right about that. He simply has the wrong beginning and ending.

Professor Koppelman gets the beginning wrong because he starts his analysis in the middle of the McCulloch opinion instead of where John Marshall began. Chief Justice Marshall‘s famous discussion in McCulloch of the causal connection required by the word “necessary” was preceded by a seven-page analysis of the constitutionality of a federal corporation under the Necessary and Proper Clause. Those seven pages dealt with an issue that Marshall recognized had to be addressed before he decided whether a corporation was a causally “necessary” (or otherwise “proper”) means for implementing federal powers. The threshold question was whether the power to incorporate was incidental or principal.

Our article, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, elucidates the original meaning of the Necessary and Proper clause, which Chief Justice Marshall considered so important, but which professor Koppelman overlooked:

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

In a recent post, co-blogger Eugene Volokh reasserts the view that the text of the of the Thirteenth Amendment’s ban on “involuntary servitude” does not cover traditional state-imposed “duties of citizenship” such as mandatory military service and possibly even mandatory road work.

I think matters are not so simple as that. Eugene’s argument and others like it run into two problems. First, as I pointed out here and here, the Amendment contains an exemption for forced labor imposed as punishment for a crime. if the term “involuntary servitude” really does not apply to traditional “duties” to the state, there would have been no need for the Amendment’s exception for the use of forced labor as punishment for a crime. Using forced labor to punish criminals was a longstanding tradition, an obligation imposed by the state, and was surely not considered “akin to traditional slavery,” as Eugene puts it in his description of the scope of the involuntary servitude ban. The fact that the framers of the amendment believed that this exemption was necessary is a strong indication that the ban on involuntary servitude is not limited to conditions “akin to traditional slavery,” but was in fact intended to cover forced labor more generally. Otherwise, the exemption for servitude imposed as punishment for a crime would have been superfluous.

Second, as I explained more fully in this post, the “free labor” ideology underpinning the Amendment went beyond previous understandings in condemning forced labor generally, as opposed to merely slavery narrowly defined. Thus, it is wrong to assume that the framers and ratifiers of the amendment were necessarily guided by the relatively narrow definition of “involuntary servitude” embodied in laws that were drafted decades earlier. As the Supreme Court majority explained in the Slaughterhouse Cases, just a few years after the Amendment was enacted:

[The Thirteenth Amendment is a] grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government….

The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant.The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that, in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded if only the word slavery had been used. [emphasis added]

The then-recent Civil War-era draft is not a good counterexample, for reasons I discussed here.

Note that majority seems to interpret the amendment to cover all “shades and conditions” of forced labor, including those imposed by the government (as were some of the practices it describes in the West Indies). It also emphasizes the importance of the exemption for servitude imposed as punishment for a crime in defining the scope of the Amendment.

Justice Stephen Field’s dissent, often praised by modern originalists, defines the term even more broadly:

The words “involuntary servitude”… include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make everyone born in this country a freeman, and, as such, to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor…. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude.

Field’s analysis seems to cover every situation where a person is “allowed to pursue only one trade or calling, and only in one locality of the country.” Obviously, that is precisely what happens when an individual is subject to mandatory military service or any other form of forced labor imposed by the state. For as long as the obligation lasts, he can “pursue only one trade or calling” and only where the government directs him to do so. The fact that the obligation is temporary rather than permanent does not exempt it from the coverage of the Amendment. Otherwise, the mandatory “apprenticeship for long terms” referred to by the majority would be permissible. And, as Field mentions, it does not matter whether the service is imposed solely for the benefit of others (as in the case of traditional slavery) or also for the victim’s “own benefit” (as the government usually claims is true in the case of mandatory civilian or military service).

This is not to suggest that everyone in the late 19th century interpreted the Amendment as broadly as the Slaughterhouse justices did or that there was anything close to universal agreement on the subject. There clearly was not. For example, southern state governments and some northerners argued that the Amendment did not even ban peonage laws. I merely wish to suggest that there was no clear consensus going the other way that should trump the natural meaning of the words, or that should lead modern jurists to feel bound to uphold government-imposed forced labor, whether it is seen as implementing a “duty of citizenship” or not.

“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” — Oliver Wendell Holmes

Many commenters on the Thirteenth Amendment, the draft, jury service, and compulsory road work post argued that the plain language of the Thirteenth Amendment makes the draft unconstitutional. (I think my coblogger Ilya argued something similar in a series of posts in 2007.) I think this question helps illustrate an important difference between two approaches to ambiguous text: an approach that tries to limit its focus to the text itself, and an approach that looks at the text as it was originally understood (which I will label “originalism” for purposes of this post). As between the two, I think originalism is generally preferable, whether or not one thinks that either should also be supplemented by other approaches, such as a focus on precedent. Let me briefly explain why.

1. Let’s begin with the Seventh Amendment, my favorite illustration of this question. The Seventh Amendment says that “In suits at common law … the right of trial by jury shall be preserved.” Now “common law” can mean several things. It can mean judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes. It can mean a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature. It can mean Anglo-American law as opposed to European civil law, which is derived from Roman law. Or it can mean law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity.

Today, in my experience, “common law” tends to bear the first meaning (judge-made law). That’s how I’ve seen it most often used. But it’s clear that at the time of the Framing the phrase “Suits at common law” referred to the last meaning, which is to say law historically enforced in common-law courts (which usually called for payment of damages) as opposed to the now largely long-defunct separate courts of equity (which is where injunctions and similar remedies came from). So which meaning should we use?

Here’s my thinking: If we’re appealing to the text of the Seventh Amendment, it must be because we think the enactment of that text should have legal significance. We’re not just appealing to abstract principles of right and wrong, or to the broad structure of the Constitution. (Rightly or wrongly, much of the discussion of the freedom of speech, equal protection, and the like does make such appeals; but I assume here that we’re confronting an argument based on the constitutional text, not on general constitutional theory.) Rather, we think the Seventh Amendment should be followed because it’s law.

Why is it law? Because it was enacted through the proper legal channels by people who had the legal authority to enact it, and because we choose to continue to accept those people’s actions as authoritative. (Again, we could dismiss those actions as no longer binding on us; but if we’re arguing about the text as it was adopted, as opposed to constitutional or moral theory more broadly, we must think the actions of the adopters were indeed in some measure important to us.)

And if we’re going to apply the Seventh Amendment because in 1791 enough states ratified it to make it part of the Constitution, it makes no sense to apply it in a way that’s completely different than how it was understood at the time — for instance, by applying it only to judge-made tort doctrines and not statutory ones — simply because this definition has become more common since 1791, and because the original definition is largely unknown to all but lawyers. That would be more a constitutional pun, I think, than a sensible form of constitutional interpretation.

I should acknowledge that there is a significant alternative to an originalist view of the text, and it is a view that focuses on the text as understood in light of the actual practices of the legal system today. The theory here is that the Constitution derives its force from the continuing consent of the governed, and that if our legal system — crafted as it is by elected officials and those appointed by elected officials — over time accepts some new meaning of a term, then that meaning becomes part of the constitutional framework.

But whether that might be true for some provisions, it isn’t true for the Seventh Amendment. The legal system continues to treat “Suits at common law” as referring to suits of the sort that would have been brought in common-law courts during the Framing era, largely because of the influence of originalism on the courts that have interpreted this particular provision. And certainly there’s no broad public understanding to the contrary.

2. I’d say the same about the Thirteenth Amendment. Bans on slavery and “involuntary servitude” existed in America from 1787 on, beginning with the Northwest Ordinance and then getting enacted in various state constitutions. As best I can tell, those bans were never generally understood as casting constitutional doubt on mandatory military service — which was the norm even in peacetime, in service in the state militia — or on jury duty. By the time the Thirteenth Amendment was enacted, “involuntary servitude” had an established legal meaning, and that was a meaning limited to conditions that were more akin to traditional slavery and less to the duties of citizenship such as military service or jury service. Maybe this approach was morally unsound, or even illogical, as some have argued. But when the ban on involuntary servitude was made part of the Constitution, it was not understood as being a ban on all involuntary work.

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