The Volokh Conspiracy

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

By a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid.

In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato.

HT to Shall Not Be Questioned for coverage of the day’s voting, in which all hostile amendments were defeated.

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

In this iVoices.org podcast, Rob Natelson explains why unilateral presidential creation of new debt is: 1. Utterly contrary to the Constitution’s structure of limiting executive power. 2. Directly contrary to the text of the 14th Amendment. President Obama, to his credit, declaimed any unilateral power to raise the debt ceiling. But many people–some of whom have taken oaths to uphold the Constitution, or who profess respect for constitutional law–have insisted that the President has unilateral debt power. And since the current deal that is being rushed through Congress may slightly delay the insolvency of the federal government, but not prevent it, understanding what the 14th Amendment says about the issue remains important. Rule of law, not an elective dictatorship.

At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.”

Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Of the candidates who have refused to sign, Mitt Romney objects because the wording of the demand to cut on federal abortion funding could be construed to stop federal aid to many hospitals; further, he refuses to make pro-life a litmus test for his executive branch appointments, as long as the appointees are willing to abide by (President) Romney’s own pro-life views. Herman Cain says he would “sign” the pain bill, but will not take the pledge to “advance” the bill, because “Congress must advance the legislation,” and he must have ”respect for the balance of power and the role of the presidency.”

Thus, of the announced candidates, we have only Gov. Gary Johnson who might have constitutional scruples about the federal pain bill.

The Pain-Capable Unborn Child Protection Act, which has been enacted in several states, requires that physicians provide a woman who is at least 20 weeks pregnant, and who is seeking an abortion, with information to obtain informed consent about the pain that the fetus will feel during the abortion.

The PCUCPA is probably constitutional under Planned Parenthood v. Casey, since it does not ban pre-viability abortions, and the lower courts have not generally found other informed consent laws for abortion to be an “undue burden,” as Casey defines that term.

However, a federal PCUCPA is plainly unconstitutional under the “original meaning” of the Constitution, which judges appointed by SBA Pledge signers would presumably uphold. The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce…among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5-4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4-5 they probably could have won 6-3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.

When we get beyond Lopez, and truly look at original meaning, then the unconstitutionality of the federal PCUCPA is obvious. In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Wickard v. Filburn, 317 U.S. 111, 120 (1942). (For more on Marshall’s views about federal health control, see this article by Rob Natelson and me.)

Marshall’s opinion in Gibbon may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.

Yale’s Jack Balkin makes the argument that in the original meaning, “commerce” means “intercourse,” and thus the original meaning allows a vast amount of federal regulation of intra-state, non-economic activity. Rob Natelson and I explained the errors in this theory in an on-line article for the Michigan Law Review.

Presumably the Republican signers of the SBA pledge would not assert that the appointment of judges who accept Balkin’s “commerce = intercourse” theory of original meaning would comport with President’s pledge to appoint judges who would follow original meaning. All of the Republican presidential candidates have said that the Obamacare individual mandate to purchase expensive congressionally-designed health insurance from the congressionally-favored insurance oligopoly is unconstitutional. Balkin’s intercourse theory, however, would support the constitutionality of the mandate.

The signing of the SBA pledge by Rep. Ron Paul (R-Tex.) is particularly disappointing, since Paul has usually made a point of being scrupulous about federal powers. Indeed, Paul was the sole “pro-gun” Representative who voted against the Protection of Lawful Commerce in Arms Act, a federal statute which outlawed lawsuits, in federal and state courts, against the manufacturers, wholesalers, and lawful retailers of firearms for guns which were lawfully sold and properly functioning. Paul’s argument was that the law exceeded the federal power to regulate interstate commerce; I disagree, since the undisputed original purpose of the interstate commerce power was to empoower Congress to act against state barriers to interstate commerce. The anti-gun lawsuits were plainly an effort to use fanciful tort theories to damage the entire national market in firearms, by imposing on that market many restrictions which had been considered and rejected by Congress and the state legislatures.

Thus, in regard to the anti-gun lawsuits, Paul’s scruples were mistaken, in my view, but he deserves credit for being sincerely scrupulous. I wish that he, and the rest of the Reublican presidential field, kept their constitutional scruples intact regarding federal anti-abortion legislation.

While the federal PCUCPA does not invoke section 5 of the 14th Amendment as a basis for the legislation, it is possible to construct an argument that some federal anti-abortion laws could be based on that power. However, it’s hard to base such an argument on the original meaning of the 14th Amendment, since there is not a shred of evidence in the 1865-68 history of the creation and ratification of the 14th Amendment (nor in the immediate post-ratification period, nor for nearly a century after ratification) that anyone imagined that the 14th Amendment empowered Congress to enact abortion-control laws, or guaranteed abortion rights.

So if a Republican who signs the SBA pledge is elected President, and he or she adheres to item 1 in the SBA pledge, appointing judges who adhere to the Constitution’s original meaning, then those judges will uphold state versions of the PCUCPA while declaring unconstitutional a federal PCUCPA.

[youtube]http://www.youtube.com/watch?v=1ffBXm7kJkk[/youtube]

A wonderful song at all times, and especially around Independence Day, especially this year.

“The Battle Cry of Freedom” was written during the Civil War, and sung by Union troops going into battle. This video pays tribute to Ulysses Grant, the General most responsible for winning the war for the Union. Elected President of the U.S. in 1868 and re-elected in 1872, U.S. Grant vigorously enforced federal civil rights laws to protect the freedmen. Not until Lyndon Johnson in 1963-69 would an American President work with such determination for civil rights. After leaving the White House, Grant served as the 8th President of the National Rifle Association.

The National Rifle Association’s brief in McDonald v. Chicago quoted President Grant:

Subsequently, President Grant issued a report on enforcement of the Civil Rights Act which noted that parts of the South were under the sway of the Klan, which sought “to deprive colored citizens of the right to bear arms,” and to reduce them “to a condition closely akin to that of slavery * * *.” Ex. Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872).

The brief  likewise quoted a report from General Grant about the conditions in Mississippi which had helped convince Congress of the necessity of the Fourteenth Amendment, to make the Second Amendment applicable to all state and local governments:

“The statute prohibiting the colored people from bearing arms, without a special license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).

McDonald v. Chicago brings the United States an important step closer to accomplishing a central purpose of the Fourteenth Amendment: making all of the Bill of Rights applicable to every state and local government in America. It was a national tragedy that the Supreme Court essentially nullified much of the Fourteenth Amendment for so long. It is a national blessing that America’s many civil rights organizations were able, over the long term, to revitalize the Fourteenth Amendment, and change the Supreme Court from a nullifier of the Amendment into an enforcer of the Amendment.

Last month, retired Justice David Souter delivered the commencement address at Harvard.  His speech was a veiled challenge to proponents of originalism. Some commentators, such as Washington Post columnist E.J. Dionne, Slate‘s Dahlia Lithwick,  and TalkLeft’s Big Tent Democrat were impressed.  Others, not so much.

In today’s WSJ, Northwestern University’s John McGinnis and USD’s Michael Rappaport take issue with Justice Souter, suggesting he misunderstands original meaning jurisprudence and inadvertently justifies the jurisprudential methodology that produced such horrors as Plessy v. Ferguson.  Here is a taste:

At the recent Harvard commencement, retired Supreme Court Justice David Souter attacked what he regards as the “simplistic” model of giving the Constitution a “fair reading.” A judge, he said, must determine which of the conflicting constitutional values should become our fundamental law by taking account of new social realities. . . .

Justice Souter actually provided a primer on how not to be a judge. He made up a Constitution that never was to justify a kind of judicial power that was never intended. . . .

Justice Souter recognizes that his method of interpreting the Constitution is indeterminate, but he argues that it is necessary to put our trust in justices to reach just results. The historical reality is that this interpretive method permitted justices to create a Constitution of their own contrivance in the service of injustice.

Read David Bernstein’s excellent blog post. Unfortunately, because the title of David’s post referred to Bruce Bartlett and not Rand Paul, some seeking a “libertarian” take on this issue may overlook his analysis. To David’s libertarian analysis I would add the following considerations pertaining to the original meaning of the Constitution:

(1) The problem of Jim Crow in the South was a direct product of slavery–indeed it was a deliberate and concerted effort by Southerners to reimpose slavery in everything but name. Slavery was a private as well as a public institution, which is why the Thirteenth Amendment was not limited to state action. As such, even private conduct that amounted to “badges and incidents” of slavery should have been reachable by Section 2 of the Thirteenth Amendment, which empowered Congress to make laws to put that provision into effect. It was under Section 2 that Republicans in Congress passed the first Civil Rights Act of 1866, and the Freedman’s Bureau Act. Whether or not these acts were truly within the original meaning of the Thirteenth Amendment is, of course, a matter of dispute. I think the better analysis of the Thirteenth Amendment was explained by Justice Harlan in his dissenting opinions in the Civil Rights Cases and Plessy v. Ferguson. The opposing view that limited the reach of the Thirteenth Amendment was articulated by President Andrew Johnson — a “War Democrat” — when he vetoed the Civil Rights Act in his highly racist veto message. Because Johnson’s reading of the Thirteenth Amendment has largely prevailed among legal scholars of all stripes, Section 2 of the Thirteenth Amendment is generally overlooked in debates concerning the scope of Congressional power over “private” conduct.

(2) As David mentioned, the South systematically denied free blacks, and whites who wished to deal with them on an equal footing, the (equal) protection of the law. During Reconstruction, Republicans in Congress tried to respond to this with a series of civil rights measures–including measures reaching public accommodations–that were struck down by the Supreme Court. Thereafter, “private” discrimination that existed in public accommodations was enforced by private terrorism from which no one was safe–most particularly no one who owned a business with a fixed location. In the end, (to paraphrase Justice Holmes’s infamous aphorism) 100 years of legal apartheid was enough! — as was 100 years of private violence aimed at blacks and anyone who associated with them publicly. The back of this egregious system of subordination and terrorism needed to be broken — thanks to the leadership of Democratic President Lyndon Johnson and Northern liberal Democrats, with the crucial support of congressional Republicans like Senator Everett Dirkson, and over the vociferous objection of Southern Democrats. Whether or not courts could rectify this system, I believe that Congress was well within its Section 5 powers under the Fourteenth Amendment to compensate for the deeply entrenched lack of equal protection by desegregating all public accommodations. The pity is that, out of respect for its Reconstruction-era precedent, the Supreme Court chose to uphold it as an exercise of its Commerce Clause power rather than either Section 5 or Section 2 of the Thirteenth, although we forget that some of the Warren Court justices protested that Section 5 was the better the basis for the decision.

(3) For these reasons (and others), in addition to those given by David, the prohibition on racial discrimination in public accommodations was amply justified by the original meaning of the Thirteenth and Fourteenth Amendments. But if that is not the case, in light of the fact that slavery was held to be sanctioned by the original Constitution for 80 years (over the objection of abolitionist constitutionalists), and the subordination of blacks continued for another 100 years after the formal abolition of slavery, if any deviation from original meaning is ever justified, it would be justified in interpreting Section 2 of the Thirteenth Amendment, and Section 5 of the Fourteenth Amendment, to reach the racial discrimination banned by the Civil Rights Act of 1964.

There is much more to be said about this than can be said in 2 blog posts. On the one hand, the evidence of original meaning of the Thirteenth and Fourteenth Amendment is complicated. On the other hand, at least some of the academic resistance to these originalist claims stem from a desire to discredit originalism (and libertarianism) on this issue, so it will be delegitimated on other issues having nothing to do with discrimination. Because I am now immersed in grading exams to which I need to return I cannot say any more now. But I am grateful to David for getting the ball rolling, and I wanted to make sure that readers interested in the Rand Paul controversy found David’s post, and might also consider these additional points concerning the original meaning of the Thirteenth and Fourteenth Amendments.

Part 2 of 3-part series. This installment, “The Origins of the Privileges or Immunities Clause, Part II: John Bingham’s Epiphany,” has a very detailed analysis of changes in the drafts of the 14th Amendment.  Lash argues that the drafting history shows that the Fourteenth Amendment was intended to protect every part of Amendments I through VIII, but not to protect any unenumerated rights.

I’m still inclined to a broader view of the 14th Amendment, but perhaps I will change my mind after reading Part III of the series. Regardless, anyone with an interest in the original meaning of the 14th Amendment will benefit from reading this article. Obviously the aforesaid group does not include most of the current Justices of the Supreme Court.

Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which points the way to strong, recent, and repeated precedent suggesting that Obamacare is unconstitutional.

Let’s begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:

In your view, which of the following federal programs or agencies are constitutional?

(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate

In my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using “constitutional” in the normal sense of the word as it appears in most modern public dialogue. That is, “Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?” This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent. The Supreme Court can change its own precedents, but for for purposes of argument, I am presuming that the Supreme Court would not overrule any precedents.

As Jack Balkin, Sandy Levinson, and others have ably pointed out, “constitutional” can be used in a different way, in that people express aspirations about what the Constitution should mean, even if that meaning is contrary to current precedents. For example, a person in 1946 might say “Discrimination against women is unconstitutional.” That person would not be describing the current state of the law, but would be making an argument that constitutional intepretation should be changed. Often, these aspirational statements do become constitutional law, especially when they win the hearts and minds of the public. Some of the 1930s decisions upholding parts of the New Deal or its state analogues are examples of the success of this aspirational constitutional rhetoric.  For example, the statement in 1890 that “mortgage relief laws are constitutional and do not violate the Contract Clause” would have been  incorrect in regard to Supreme Court precedent, and was utterly contrary to the original meaning of the Contract Clause. Nevertheless, the Supreme Court later changed its intepretation of the Contract Clause, so that the aspirational statement became an accurate description of the law.

People are free to argue all they want, on the basis of aspiration, original meaning, or anything else, that items (a) through (d) on Orin’s list are unconstitutional. If these people persuade enough of their fellow Americans, perhaps the Court might eventually narrow or overturn some of the precedents which uphold (a) through (d). However, my argument is based on the law as it actually exists today, and it presumes the continuing validity of all the New Deal and Great Society precedents.

Some parts of Obamacare, such as the calorie labeling requirement for restaurant chains, appear to be solidly within the scope of existing precedents. (At least based on the discussion I’ve heard thus far.)

In contrast, the individual mandate to purchase health insurance is not. It “is unprecedented in our jurisprudence.” Romer v. Evans (1996). It is possible to make arguments for extensions of cases such as Wickard, Raich, and Sonzinsky in support of the mandate. However, such arguments are a plea for extending those cases, not for merely applying them. For example, an application of Wickard/Raich might be a law against a person manufacturing her own medicine at home, rather than purchasing the medicine through the federally-controlled market.

No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product. I can imagine a judicial opinion that builds on the foundation of Wickard, Raich, and Sonzinsky, and extends those cases much further, in order to uphold the mandate. The Court might do so, but the Court would be doing much more than merely applying precedent.

At this stage in the debate, the only cited instance of Congress ever forcing people to buy particular products have come under the congressional exercise of the enumerated militia powers in Article I, section 8, clause 16, “To provide for organizing, arming, and disciplining, the Militia. . .” Here, the congressional power to mandate is provided in the text itself. Further, the original understanding of the militia was that the militiamen ”were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” United States v. Miller  (1939). The congressional power to provide for arming the militia straightforwardly includes the power to tell militiamen what kind of arms to bring to duty.

The federal militia powers come from the state militia powers, which (by enacting the Constitution) the People and the States chose to give (at least concurrently) to Congress. No one could possibly dispute that state militia powers included the power to require militiamen to bring certain types of arms to duty, and thus to require the purchase of such arms if necessary. The federal power to regulate commerce among the several states was likewise granted to Congress from the powers which were then possessed by the States and by the People. There was certainly no understanding in 1789 that state power to regulate interstate commerce (e.g., by inspecting goods at ports of entry) included the power to compel individuals to purchase goods in commerce.

So neither the Militia arming clause nor any cases provide precedent for the unprecedented mandate to purchase insurance. At best, the mandate is in a constitutional gray zone. To resolve the gray zone question, we are not limited to wondering whether to greatly extend some prior cases on the interstate commerce clause or the tax power. In addition, we can consider the structure of the Constitution itself.

As Jonathan Turley has written, allowing the individual mandate to stand “could amount to a ‘do not resuscitate’ order for federalism.” If judges find this argument (in the greatly eleborated form that will eventually be presented to the courts) to be persuasive, then the Supreme Court precedent is very clear. Several recent cases, including Seminole Tribe of Florida v. Florida (1996), Alden v. Maine (1999), City of Boerne v. Flores (1997), United States v. Morrison (2000), Board of Trustees of University of Alabama v. Garrett (2001), and Nevada Dept. of Human Resources v. Hibbs (2003)  have demonstrated the Court’s persistent determination to defend state sovereign immunity. Some of these cases involved the Eleventh Amendment, and some involved the Fourteenth (Cong. powers under sect. 5). In one case (Hibbs), the federal abrogation of sovereign immunity was upheld, partly because the federal law involved a state practice (sex discrimination) that was already unconstitutional.

These decisions have been heavily criticized by the academic Left, and the critics have pointed out that these decisions have much less to do with the constitutional text, or with original meaning of the text, than they do with the Court’s broad view of constitutional structure: the essential nature of state sovereignty, and one of the attributes of sovereignty, namely sovereign immunity.

According to the Court, a Congressional statute making it easier for states to be sued for patent infringement is such a serious violation of federalism that it must be held unconstitutional. Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank (1999).  (Eugene Volokh’s article on the case is here.) In terms of the practical harm to state sovereignty, the congressional law on patent suits is to Obamacare as a house cat is to lion.

The extensive line of recent cases on state sovereignty is complemented by the Ninth Amendment. The Ninth Amendment may be read to create a presumption of liberty. Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2005). Or it may be read as requirement that enumerated federal powers be narrowly construed so that they do not violate the retained natural rights of the people, including the people’s right of self-government in the states. Kurt Lash,  The Lost History of the Ninth Amendment (2009).  Either reading raises further doubts about the constitutionality of the insurance mandate.

As the joint complaint of the 13 Attorneys General has argued, Obamacare constitutes an immense assault on federalism. If Obamacare is upheld, the states may be well on the way to becoming like the Roman Senate in 100 A.D.: formerly the an essential component of republican sovereignty, but now a hollowed remnant, possessing the forms of the old republic but really functioning as a mere puppet of the Leviathan.   

“[F]ederalism was the unique contribution of the Framers to political science and political theory,” wrote Justice Kennedy. United States v. Lopez (1995) (concurring). To declare Obamacare to be unconstitutional, the Court may take into account the importance of preserving the unique contribution of Our Federalism. In doing so, the Court need not overrule a single precedent, nor need the Court cast into doubt any of the creations of the New Deal or the Great Society. Instead, the Court may simply choose not to invent unprecedented extensions of the interstate commerce power and the tax power.

From federal district court to the Supreme Court, the judges and justices who decide to leave constitutional doctrine exactly as it is today will decline to validate the unprecedented exercise of power in Obamacare. The last fourteen years of the Supreme Court determination to defend our precious constitutional system of dual sovereignty gives reason to hope that the courts will apply the existing law rather than make up new law, and that the insurance mandate will be declared unconstitutional.

And then: Over two thousand pages of laws certainly contain items (e.g., restaurant menu labeling, tanning taxes) that theoretically could have been enacted separately from the mandate, and might be considered severable. But the main provision of Obamacare–turning private insurance companies into ultra-regulated public utilities–makes no sense without the individual mandate; it would not have been enacted without the mandate, and it is not severable.

I thought Volokh readers might enjoy an email exchange I had earlier today with NYU lawprof Roderick Hills earlier:

Hi Randy –

I thought I’d send along a recent blog post at Prawsblog that gives you, Cato, Ilya, etc some flak in a good-natured way. (Brian Galle also has a post on health care federalism that might interest you). . . .

Best,

Rick

_____________________________________________

Hey Rick,

I am at the intermission of “The 39th Steps” (in DC) but managed to read your post before the play started. I am not sure when I will be able to reply, but wanted to note that I jointly submitted the Cato brief in Comstock that you like so much. And, in Raich, I also litigated a Ninth Amendment/Due Process Clause theory. It was the Ninth Circuit’s ruling for us that propelled the Commerce Clause theory to the Supreme Court (where we continued to assert Ninth Amendment/Due Process theory). When the Supreme Court declined to consider that theory, we then argued and lost this claim on remand to the Ninth Circuit.

Unlike some I could name, I feel free to employ the whole Constitution–including e.g. the Privileges or Immunities Clause of the 14th Amendment which qualifies state power–both the parts the Court is more inclined to accept and those parts which, for now, are “lost” but not yet repealed.

BTW, as a fan of the film I am really enjoying the play.

Cheers,

Randy

PS: Feel free to clean this up (I am using my cell phone) and post if you like.

I expect that Rick has probably been away from his PC while enjoying his Sunday and unable to add my message to his post. So, as comments on Prawsblawg seem not to be working or are disabled–oh, sweet irony, right?–I thought I would post it here (after very slight editing).

Rick closes his blog post with this:

In other words, the pro-federalism rhetoric of the Cato Institute [and me!] in Comstock may come back to haunt them in McDonald v. City of Chicago, where they filed an amicus brief favoring incorporation of the Second Amendment. As a federalism supporter who is lets his libertarian sympathies take second place to his love of subnational democracy, I certainly hope so.

Really? The Constitution has some protections of “federalism” in the form of enumerated federal powers. It also has some constraints on the police powers of the states such as the Thirteenth and Fourteenth amendments. I believe defenders of liberty are entitled to assert both sorts of clauses in litigation, and I do not see how invoking one should “come back to haunt” anyone when invoking the other. Unless, that is, one places one’s love of subnational democracy above both liberty and the Constitution.

In the McDonald oral argument, Justice Ruth Bader Ginsburg implied that an originalist approach to the Privileges or Immunities Clause might justify protecting property rights for men, but not for married women. She claimed that “a large portion of the population at that time [1868] didn’t have those rights” and asked McDonald’s counsel Alan Gura whether “married women at that time across the nation ha[d] the right to contract, to hold property, to sue and be sued.” Presumably, Ginsburg meant to criticize originalism rather than endorse gender discrimination. If so, I think the argument fails.

Unfortunately, Gura failed to point out that most states had enacted Married Women’s Property Laws by the 1850s, which did indeed give them the right to own property separate from that of their husbands.

There were, in many states, greater limitations on married women’s freedom of contract. But some married women were nevertheless employed outside the home under employment contracts, and the married women’s property laws gave them the right to sign contracts related to their property. New York’s widely influential 1860 law on “The Rights and Liabilities of Husband and Wife” also gave married women broad rights to contract and to sue and be sued. Thus, an originalist approach would certainly protect married women’s right to property and at least a fairly broad right to contract.

Ginsburg would have been on firmer ground in pointing out that states did not give women the right to occupational freedom equal to that of men, and many had laws banning women from various professions. In 1873, the Supreme Court upheld an Illinois law barring women from becoming lawyers against a P or I Clause challenge in Bradwell v. State. The majority of the justices upheld the law simply on the ground that the Clause did not protect occupational freedom for anyone, as they had ruled in the Slaughterhouse Cases at the same time.

The four Slaughterhouse dissenters could not take that position because they had just argued in Slaughterhouse that the Clause did protect “the right to pursue a lawful employment in a lawful manner.” One, of them, Chief Justice Salmon P. Chase, actually dissented in Bradwell. That is significant, since Chase was one of the main originators of the free labor legal ideology that underpinned the Fourteenth Amendment. The other three signed on to a concurrence by Justice Bradley in which the concluded that the exclusion of women could be upheld because:

It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.

In other words, these three justices upheld the exclusion of women despite the general principle of occupational freedom under the P and I Clause, based on their factual understanding of women’s “characteristics, destiny, and mission.” If that factual understanding turns out to be wrong, they could no longer argue that the power to discriminate against women in this way would fall under “the police power of the State” and would be required to strike the law down. Similarly, in Slaughterhouse, these same justices engaged in a detailed inquiry to determine whether New Orleans’ monopoly over slaughtering had a legitimate police power rationale. Today, if not in 1873, it is fairly obvious that Bradley’s factual understanding of women’s nature and capabilities was wrong. The same goes for similar rationales for restrictions on married women’s freedom of contract.

Thus, the legal rule Bradley advocated would compel a different outcome in any similar case today. Originalism requires judges to apply the legal rules established by the framers. But it doesn’t require them to perpetuate factual errors in the evaluation of evidence used to determine how the rule applies to any given case. Assume that in 1873 a regulation were upheld based on scientific evidence derived from the popular 19th century theory of phrenology, which held that people’s abilities and character could be predicted based on the shape of their skulls. For example, a state could have enacted a law forbidding a person with the wrong type of skull to become a lawyer. Later research proves that phrenology is a bogus pseudosciece. A consistent originalist judge would overrule the 1873 decision if legislatures continued to enact statutes claiming a police power rationale for curtailing occupational freedom based on phrenological evidence. The same goes for statutes that restrict constitutional rights based on discredited nineteenth century factual assumptions about women.

In some cases, of course, it may be difficult to determine whether the state’s factual claims are correct or not, and there can be legitimate dispute over the question of how much deference to give the legislature in those situations. But where the factual evidence is as overwhelming as in the case of women’s abilities today, even a relatively deferential originalist judge would have to strike the law down.

In sum, there is no compelling reason to believe that an originalist interpretation of the P or I Clause requires courts to protect men’s rights to property, contract, and occupational freedom more than those of women.

UPDATE: I should note that it is very unfortunate that Chief Justice Chase dissented in Bradwell without writing an opinion explaining his reasoning. I assume that he did that because he was near death at the time (Chase died on May 7, 1873, just a few weeks after Slaughterhouse and Bradwell came down). Perhaps those more expert in the history can point out some other reason why he chose not to write a dissent.

As Jim Lindgren has noted, on the eve of the argument in McDonald v. Chicago, Philip Hamburger has posted on SSRN what is labeled a “rough draft” of a new paper entitled, Privileges or Immunities. This timing is unfortunate. Given that this is a serious work of scholarship by a serious scholar, it demands serious attention before its argument can be fully evaluated. Yet it is posted now with a reference to the McDonald case in its very first paragraph.

I have only had a chance to peruse it quickly and have some initial impressions. The article focuses on antislavery uses of the Privileges and Immunities Clause of Article IV ([what Hamburger calls "The Comity Clause"), as do I in my new paper, Whence Comes Section One: The Abolitionist Origins of the Fourteenth Amendment. In the latest version of my paper posted earlier this week, I make it clear that this Clause was typically invoked by antislavery lawyers and activists on behalf of free blacks. Hamburger correctly stresses this point as well. So far so good. [For the record, unlike Hamburger, I make no claim that my paper has any bearing on the McDonald case and I deny the evidence I examine is dispositive of the original meaning of Section One.]

But Hamburger’s thesis is that all the Privileges or Immunities Clause of Section One accomplishes is to provide federal enforcement of the Article IV Privileges and Immunities Clause AND NO MORE. By the way, he seems not to have noted that this aspect of his thesis is completely inconsistent with Justice Miller’s opinion in The Slaughter-House Cases which consigns the protection of these fundamental natural or civil rights to the states free of federal protection. Hamburger is not very precise about what he is claiming to be the meaning of the Privileges or Immunities Clause, but the thrust of his argument about the Article IV establishes that the Slaughter-House Cases were wrongly decided and the dissenters were right.

Yet, while Hamburger is right that the Privileges or Immunities Clause provided federal enforcement of the Privileges and Immunities Clause Article IV, there is considerable evidence it did more. In his rough draft, Hamburger ignores most of this evidence to focus solely on statements by Bingham and Howard. According to the rough draft, readers are not allowed to quote or cite this paper, so I won’t be able to provide direct quotes. (Another reason why posting a rough draft at this time is unfortunate.) Moreover, I do not have the space or time for a comprehensive treatment of all his evidence or claims. Two examples will have to suffice for now.

On February 28th, 1866, John Bingham gave a speech in which he asserted that the privileges or immunities of citizens of the United States included those protected by Article IV and also those in the Bill of Rights. The problem was a lack of federal power to enforce these rights against the states. In this speech, Bingham cited both Barron v. Baltimore and Livingston v. Moore as judicial barriers. Many readers will know that these two cases concerned the federal enforcement of the Bill of Rights, not the Article IV. Having shown that “these decisions of your courts . . . ruled the existing amendments are not applicable to and do not bind the States,” he quoted Daniel Webster for the proposition that these rights nevertheless apply to the states, though are solely dependent on the voluntary compliance of state officials who take an oath to uphold the Constitution rather than any federal power of enforcement. Bingham then asked: “Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislature of States, be enforced by the people through the proposed amendment? By the decisions read the people are without remedy?” Bingham, therefore, proposed the following constitutional amendment:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several states equal protection in the rights of life liberty and property.

Hamburger claims that all of Bingham’s references to the protection of the Bill of Rights in this speech are clearly to the equal protection clause of this proposal and not to the privileges or immunities clause, and that Bingham somehow was referring to the equal protection of state bills of rights. I find this claim counter-intuitive if not bizarre; it is certainly under-defended given its centrality to the debate over whether “privileges or immunites” included the personal guarantees in the Bill of Rights in addition to those fundamental natural or civil rights to which Article IV was taken to refer. How Hamburger’s nondiscrimination-in-state-bills-of-rights theory would relate to Bingham’s invocation of Barron and Livingston goes unexplained since he omits the fact that Bingham cited these cases in this pivitol discussion of Bingham’s speech.

How then does Hamburger treat Senator Jacob Howard’s widely reported speech to the Senate on May 23, 1866, in which he says:

“To these privileges and immunities [in Article IV Privileges and Immunities Clause which Corfield v. Coryell described] whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, . . . and the right to keep and to bear arms . . . . [H]ere is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution. . . .

Hamburger again bizarrely concludes that Howard was here referring to nondiscrimination of state bills of rights under the Equal Protection Clause.

There is much in this 79 page paper with which I agree and, given my interest in abolitionist constitutional thought, I found it interesting to read. But Hamburger is actually rather fuzzy about what he thinks the Privileges or Immunities Clause did mean. And with respect to its central thesis–that the privileges or immunities of citizens of the United States did not ALSO include the personal guarantees contained in the Bill of Rights, he simply fails to establish his claim or even attempt to examine all the evidence that cuts against his thesis. Instead, he is content to rely on his antislavery narrative about the Commity Clause and his implausible reading of these two speeches by Bingham and Howard.

So everyone needs to bear in mind that this is a self-described “rough draft” which is not to be cited or quoted. Therefore, despite its coincidental timing, neither should it be given any weight in the Supreme Court’s deliberations in McDonald until it has been carefully vetted by other scholars who are familiar with all the evidence of original meaning. My guess is that Philip Hamburger himself, who I have known for many years, would agree.

UPDATE: I should probably clarify that the term “Comity Clause” is Hamburger’s preferred label for the Privileges or Immunities Clause of Article IV, and a misleading one since it was invoked to protect the fundamental rights of citizens coming into a state from another state. “Comity” suggests some relationship between states themselves. Nor was this term widely used by abolitionists. Indeed, I recall no one of those I surveyed ever calling it by this name. Nor, for that matter, did Bingham and Howard. And of course the term “comity” is not found in the wording of the so-called “Committee Clause.” A very quick word search for “comity” in his 79 page argument turned up no original source who referred to the Privileges and Immunities Clause of Article IV by this name. Perhaps someone did, but apparently no one who considered it a guarantee of fundamental rights. Of course, if you want to diminish rhetorically the force of what abolitionists considered a guarantee of fundamental rights against the states, “Comity Clause” might be the label one would prefer. Consequently, I have edited my original post to reduce my own repetition of this misleading label.

The House of Representatives recently passed the Akaka bill, H.R. 2314, which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes. Most of the debate over the bill has focused on the racial aspect, since it apparently seeks to create a government entity under the exclusive control of a single ethnic group. This may be a violation of the Equal Protection Clause. Whether this constitutional objection is valid or not, I think there are serious constitutional federalism problems with the legislation.

I. The Commerce Clause Doesn’t Give Congress the Power to Create an New Indian Tribe for Native Hawaiians.

Supporters claim that Congress has the power to enact this bill under the so-called Indian Commerce Clause, which gives Congress the authority to “To regulate Commerce . . . with the Indian tribes.”

As legal scholar and US Commission on Civil Rights Commissioner Gail Heriot pointed out in her testimony against the bill, this is “a thin reed indeed upon which to predicate a power to create a tribal government.” Heriot emphasizes that the power to regulate commerce with existing Indian tribes does not include the power to create a wholly new tribe:

The United States has long recognized the sovereign or quasi-sovereign status of certain tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Federal policy toward them was simply an appropriate bow to reality. To withdraw recognition to any such group without very good reason would be an injustice.

By retroactively creating a tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, H.R. 2314 would be breaking new ground.

Proponents could argue that the Necessary and Proper Clause gives Congress the power to create new tribes. However, it’s hard to see why the power to create a new tribe is in any way a “necessary” or “proper” means to the objective of regulating commerce with existing tribes. Congress’ ability to do the latter is in no way facilitated by the establishment of a new “tribe” for native Hawaiians.

Nor is it persuasive to argue that native Hawaiians are analogous to an Indian tribe because Hawaii was an independent nation prior to its annexation by the US in the 1890s. As Heriot notes, that independent sovereignty was terminated by the annexation itself and never revived until now. Moreover, she explains that the earlier independent Hawaiian state was in no way ethnically exclusive, and included a high percentage of non-Hawaiians among its citizens (mostly Americans and British). If Hawaii’s independence prior to annexation gives Congress the power to create a new Indian tribe for native Hawaiians, presumably Congress could also create a tribe for descendants of Texans who lived in the Republic of Texas prior to its annexation by the US.

II. Creating a New Tribe for Native Hawaiians May Violate State Sovereignty.

There is also a second potential federalism problem with the Akaka bill. By authorizing the creation of a tribal government for native Hawaiians, Congress is carving out a new sovereign entity within the territory of the existing state of Hawaii. It’s far from clear that Congress has the power to do such a thing under the Constitution. Article IV, Section 3 of the Constitution states that “no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” The new Hawaiian tribal government may not have powers great enough for it to count as a “State” within the meaning of Article IV. Still, the federally mandated creation of a new sovereign entity within the boundaries of an existing state is constitutionally dubious. It is not authorized by the enumerated powers of Congress.

It also runs counter to the logic of Supreme Court decisions such as New York v. United States and Printz v. United States, holding that the Tenth Amendment forbids the federal government to “commandeer” agencies of state governments. If it is unconstitutional for the federal government to infringe state sovereignty by commandeering its government agencies even in relatively modest ways (e.g. – in Printz, where they were merely required to conduct background checks on gun buyers), surely it is at least equally problematic for the federal government to in effect commandeer the state’s control over a substantial proportion of the state’s territory and population, and transfer that power to a new political entity.

Indian tribes have broad exemptions from control by state law by virtue of their special political status. If the new Hawaiian “tribal” government has similar powers, it would be a substantial limitation on Hawaii’s sovereignty. As Heriot puts it:

Ultimately, this purported tribe would almost certainly have powers like those of mainland Indian tribes–including the power to make and enforce laws, promulgate a criminal code, punish offenders, impose and collect taxes and exercise eminent domain–as well as police powers and the privilege of sovereign immunity.

In its exercise of such powers, the Hawaiian tribe would be free of state government control, as is also true of Indian tribes.

Unlike many conservatives and libertarians, I am not categorically opposed to the use of racial classifications for the purpose of compensating victims of historical injustices. Perhaps Congress or the Hawaii state legislature would be justified in enacting some such measure for the benefit of native Hawaiians. I doubt, however, that the creation of a tribal government is likely to be a particularly good way to provide compensatory justice for them. In any event, the bill has serious constitutional problems entirely aside from its racial and ethnic elements.

CONFLICT OF INTEREST WATCH: My fiancee is Gail Heriot’s special assistant at the US Commission on Civil Rights, and Heriot has long been a leading critic of the Akaka Bill. I don’t think this fact significantly influences my position the issue. I held much the same view before I ever met my fiancee. Still, I mention it just to be on the safe side.

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

Footnote 72 includes the following:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227-29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

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

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

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

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

Cardozo De Novo, the online companion to the Carodozo Law Review, has a symposium issue on firearms law and policy, with a focus on McDonald v. Chicago. Articles include The Second Amendment in the Living Constitution, by me; a critique of the Stevens dissent in Heller, by David Hardy; and a proposal by Michael Anthony Lawrence that all restrictions on liberty be judged according to a “reasonable time, place, and manner” standard.

In the comments section, feel free to discuss any of the articles.

On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment’s Due Process clause, or under the Privileges or Immunities clause. There’s been plenty of interesting scholarship recently on Privileges or Immunities. Here’s a guide to some of the most important articles:

Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 94 Minn. L. Rev. 102 (2009). Today, the conventional wisdom is that The Slaughter-House cases asserted that the Privileges or Immunities clause does not protect the Bill of Rights. But until 1900, the conventional reading–including in Supreme Court opinions–was that the case only rejected application of procedural rights to the states. The idea that SH rejects the application of substantive rights (e.g., freedom of speech, right to keep and bear arms) came during the progressive era, as the Court and the rest of the legal elites panicked about labor unrest, and decided that states should have wide latitude to suppress dissent. The historical evidence supports using PI to make the Second Amendment apply to the states.

Timothy Sandefur, Privileges, Immunities, and Substantive Due Process, 5 NYU J.L. & Liberty (forthcoming). SH’s most egregious error was in nullifying the principle of “paramount national citizenship” which lay at the heart of the ideology of the 14th Amendment’s advocates. Revitalizing the PI clause should not lead to the abandonment of “substantive due process.” This article provides the best collection of citations and sources in  defense of the theory that, long before the 14th Amendment was written, it was widely understood that the principle of “due process” substantively prohibited certain arbitrary acts by legislatures (e.g., giving A’s property to B) even if the proper procedures were followed.

Kenneth A. Klukowski,  Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. Rev. 195 (2009). Argues that SH should be affirmed, and that the Second Amendment can be protected against state/local infringement by the PI clause, because the Amendment fits under SH’s restrictive definition of rights of national citizenship which are created by the Constitution. Makes policy arguments that PI is superior to Due Process for protection of 2d Amendment rights, since the former applies only to citizens. Warns that overruling SH could provide a future Court with too many opportunities to fabricate novel “rights” out of PI.

Ilya Shapiro & Joshua Blackman. Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, Georgetown J.L. & Pol’y (forthcoming). Addresses the concerns raised about a revived PI clause–in particular that the “Constitution in 2020″ professors are eager to use PI to create positive rights to various forms of government spending, and to use PI to import the p.c. “norms” which are supposedly found in international law. Shapiro and Blackman argue that the current Court should be proactive, and should use McDonald to write a strong opinion which declares that PI protects the same set of rights as are protected in Washington v. Glucksberg (traditional rights deeply embedded in American history). Under the Glucksberg standard, the right to arms and the right to self-defense would clearly be protected by PI. Notably, the authors contend that the term “incorporation” is incorrect. The PI clause directly protects various rights, whether or not those rights are enumerated in the Bill of Rights. Thus, a proper reading of PI would require states to respect the arms rights and self-defense rights of citizens (even if the Second Amendment had never been written) because those rights meet the Glucksberg test. 

Klukowski and his colleague Ken Blackwell have been carrying on a lively op-ed and Internet debate with Shapiro/Blackman. A long blog post today by Shapiro, on Cato@Liberty, contains links to both sides of the discussion.

In McDonald v. Chicago, the brief of the American Civil Rights Union presents the Klukowski approach, while the joint brief of Cato and the Pacific Legal Foundation presents the Shapiro/Blackman/Sandefur theory. (All McDonald briefs can be read here.)

In early January, I will be doing a podcast interview of Shapiro. As many readers know, Shapiro is Cato’s Senior Fellow in Constitutional Studies, and is Editor-in-Chief of annual Cato Supreme Court Review; I am an Associate Policy Analyst with Cato. Commenters are welcome to suggest questions for the podcast. It would be appreciated if every would-be commenter read at least one of the aforesaid articles before commenting. This will help the comments section advance the discussion, rather than merely retreading familiar arguments.

That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago.

Here’s the abstract for my Cardozo article:

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.

When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.

In the 20th century, some elements of the legal élite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.

As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.

From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.

For discussion of Judge Benjamin Cardozo’s viewpoint on  self-defense, see pages 15-17 of the California and Nevada district attorneys’ amicus brief in McDonald.

A fifty-three minute podcast interview with Stephen Halbrook. Over the last three decades, Halbrook has been the greatest legal champion of Second Amendment rights. As a scholar, as an attorney (with a 3-0 record in the Supreme Court), and as a public advocate, Halbrook has done tremendous work in saving the Second Amendment from nullification, and in putting the courts and the legal academy back on the track of recognizing the right to arms in the Second and Fourteenth Amendments. We talk about the broad scope of Halbrook’s career, and about McDonald v. Chicago, in which Halbrook is representing the National Rifle Association as a party “respondent in support of petitioner.”

Nelson Lund explains why in this new article, from the Florida Law Review. Lund is responding an article by Akhil Amar, which does not appear to be available on the public Internet.

Readers who want even more on the subject may enjoy Lund’s 2002 article in the Winter 2002 issue of Constitutional Commentary, responding to a 2001 Harvard Law Review article from Larry Tribe. Tribe wrote a counter-article in Constitutional Commentary; Lund’s reply to that is here. Tribe penned a further response.

And there is also Lund’s 2002 article from the Cardozo Law Review.

As part of our special Christmas and Hanukkah programming on the VC, here is a 50-minute podcast interview with Alan Gura. It’s all about McDonald v. Chicago, particularly about the meaning of the Privileges or Immunities clause and of the Due Process clause.

Thirty two amicus briefs in McDonald v. Chicago have been filed so far, and they are all available at the Chicago Gun Case website, run by the Second Amendment Foundation (which is one of the parties in McDonald). My brief is also available on SSRN. The next brief (Chicago’s) is not due until Dec. 30, so we have all of Thanksgiving, Advent, and the first 5/12 of the Twelve Days of Christmas to examine the amicus briefs so far.

Today, let’s take a look at the brief of Philosophy and Criminology professors. It’s co-written by Don Kates (one of the founders of modern scholarship of the Second Amendment) and Marc Ayers. The pair had teamed up in Heller to write an excellent brief arguing that DC’s handgun been had been a failure, and probably counter-productive, in terms of public safety.

The new Kates-Ayers brief begins with a survey of the 17th-18th century philosophical view, with which the American Founders agreed, that self-defense was among the most fundamental of all rights, that it was also a duty, and that the right necessarily implied the right to use arms in self-defense. This Part of the brief rebuts the 7th Circuit’s assertion in McDonald that self-defense is merely a “gloss” on the criminal law, and could be abolished by statute.

Next, the brief provides a litany of evidence showing that most murderers are not otherwise law-abiding citizens who impulsively kill because a gun happens to be available. To the contrary, murders overwhelmingly tend to have prior records of serious crime and mental illness. This particular topic has been a long-running theme of Kates’ three decades of scholarship on firearms policy.

A long section titled “Research makes gun ban advocates recant” provides a history of the social science debate on gun control in the U.S. since the 1960s. Some of the most prominent scholars who have been critical of gun control started out as gun control advocates, but changed their mind because of the evidence. These include James Wright, Gary Kleck, Marvin Wolfgang, and Hans Toch (a member of the 1968-69 Eisenhower Commission which had promised that reducing handgun availability would reduce crime).

Finally, there are several pages responding to a recent study (by Branas et al. from Penn) claiming that guns are ineffective for protection in an urban environment because gun carriers are supposedly more likely to be shot than non-carriers.

Regarding another brief…Orin’s Monday post, “Against Congressional Briefs,”  argues that, out of respect for separation of powers, Congresspeople should not file briefs in Supreme Court cases. However, it should be remembered that the Court does look to Congressional intent and action–not just in interpreting federal statutes, but also in momentous constitutional cases. For example, in Frontiero v. Richardson, 411 U.S. 677 (1973)(equal protection clause applies to sex discrimination), Justice Brennan’s plurality opinion listed some recent actions that Congress had taken against sex discrimination (Civil Rights Act of 1964, Equal Pay Act of 1963, sending the Equal Rights Amendment to the states for ratification in 1972), and declared: “Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a co-equal brand of Government is not without significance to the question presently under consideration.”

Accordingly, it seems to me appropriate that in Heller and McDonald, large majorities of Congress signed briefs reminding the Court of a century-and-a-half of Congressional actions taken to protect the individual Second Amendment right from federal, state, and local infringement. And, in the McDonald brief, to point out that some local infringements violate not only the Second Amendment, but also the Supremacy Clause, because they interfere with congressional exercise of its enumerated militia power.

Eugene has written a post about the brief which Chuck Michel filed on behalf of 34 California District Attorneys, and other law enforcement officials. In light of the speculation about the DAs and their motives, it seems useful to provide some background. In Heller, 29 elected California District Attorneys joined the brief that Chuck and I co-authored. That brief explicitly stated: “strict scrutiny is the appropriate standard of review for most gun controls.” (p. 39).

The brief, of (among others) 34 California DA’s, 8 Nevada DA’s, three Western sheriffs (two from California and one from Arizona), and a couple of California police officers’ groups, is here. It was interesting for me to note that it include DAs from all the Southern California counties except Los Angeles and Riverside, and including major ones such as Orange, San Bernardino, and San Diego.

Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: “Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.”

To make a long story short, during the latter half of the 20th century, Fairman and Berger were the pre-eminent legal scholars opposed to incorporation of the Bill of Rights. Fairman was a close ally of Justice Felix Frankfurter. In the 1949 case Adamson v. California, Justice Black (with support from two other Justices) wrote an dissent arguing for total incorporation of the Bill of Rights; the dissent included a lengthy appendix with selections from the congressional ratification debates on the Amendment.

Fairman and Berger both looked at original-period sources, and argued for merely selective incorporation (Fairman) or no incorporation (Berger). Their views were later challenged by, inter alia, Michael Kent Curtis, Richard Aynes, and Akhil Amar. The Curtis v. Berger pro/con articles in the law reviews are some of the harshest exchanges I’ve ever read between two legal scholars. The brief’s Table of Authorities provides a list of key law review articles, if you want to study the history of the debate.

The brief’s main argument, which I find persuasive, is that Fairman and Berger really did grossly misread Jonathan Bingham and the early history of the Fourteenth Amendment. Accordingly, the Court in McDonald v. Chicago should not be guided by their views.

And for those VC readers who have been playing Aldridge’s Bingham for the last seven hours, you better tap another keg.