The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides. Or perhaps it's not as remarkable as we've been led to think.
So begins my opinion piece published at Cato.org. I then discuss areas in which the conservative Justices have taken a broader view of individual rights than the liberal Justices--commercial speech, expressive association, election-related speech, property rights, racial preferences, free exercise of religion, "hate speech"--and conclude:
There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them.
So you'd need to look at a heckuva lot more than one case before considering yourself a myth buster.
Sounds like "a heckuva lot more than one case" to me.
Professor Bernstein refers to Davis v. Federal Election Commission, Boy Scouts of America, Kelo v. New London, and Heller by name, plus several racial classification, religion, and "hate speech" cases by implication. And, considering this opinion piece is all of 450 words and not a "scholarly" work...well, that's certainly more than one case.
I'm not sure that an airtight case has been made for the Professor's argument (or that the goal was to be airtight in the first place - more of an insightful observation), but if anyone wants to post a disagreement...maybe you could, I dunno, read the damn opinion piece first.
What's that (Mark Twain?) quote again?
Oh wait, silly me, I forgot that they aren't US Citizens so they aren't really "individuals." (Well a few of them were citizens but nevermind that.)
racial preferencesaffirmative action, and free exercise of religion. The forms of expressive association and free exercise at issue here are mostly about their interest in protecting the right to engage in discrimination against black people and gays if you put up a fig leaf that it's based on your moral code or religion. The affirmative action thing is about preventing discrimination in favor of racial minorities and gays. Anyone notice a trend here?Whether that would be a positive contribution to legal thought is questionable.
No, it's not. The Richmond law at issue in Croson, for example, gave preferences to "Aleuts." U. Michigan Law gave no preferences to mixed-ancestry people from Cuba, but gave preferences to Mexicans of pure European descent. And no one, least of all U. Michigan, argued in either Gratz or Grutter that they were "preventing discrimination" as opposed to "furthering diversity," and, less vocally, redressing historical wrongs. And so on.
"The forms of expressive association and free exercise at issue here are mostly about their interest in protecting the right to engage in discrimination against black people and gays".
No, they are not. The Rosenberger case, for example, had nothing to do with gays or blacks. The Dale case did, but most expressive association cases do not (see "You Can't Say That!) Beneficiaries of state supreme court expressive association rulings have included the Nation of Islam.
Umm, liberals think individual rights only merit protection when they're exercised in ways that liberals approve of?
(1) Since when can we relegate part of the constitutional text to mere "prologue." Doesn't sound very Scalia.
(2) What's with Scalia's intent argument:
Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[ e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right.
Can any of you defend Scalia here? I think you are hard pressed. I think the decision is probablly right, to be honest, but in a Bush v. Gore fashion, I think the majority and the dissent is ideologically flipped.
Put another way, if the right at issue wasn't gun ownership but somehting disfavored by conservatives, I think the majority would think twice before dismissing years of history and part of the text itself (ouch!) to come to the conclusion it did.
It seems remarkable that the furhter and further away from the people who were actually there during the drafting, the closer and closer we get to the "truth" that this amendment was meant to allow an individual right to bear arms. If that were the case, you would think someone would have known that all these years and not (as Eugene points out) had to wait for scholars to tell us what the text actually says.
No, they are people determined to be enemies combatants in an legally authorized war.
Is this really such a hard distinction to make? Congress declared war. That declaration is specifically intended to allow the executive branch to do all sorts of things that are unthinkable in peacetime. War was declared because granting these people the full complement of civil rights was deemed a failed strategy.
I think there's a good argument to make that war is no longer the appropriate response to the threat, but as long as war is authorized it's foolish to pretend that it doesn't matter.
That sounds a lot like how the unborn are treated in this country.
Oh, and make sure that you get a government license before you post again.
So I assume you believe that sperm and eggs have the right to counsel?
Sigh... I thought most people can tell the difference between sperm/eggs and 8-month preborn human organism.
More to the point, Scalia takes pains to assure us that anything that bears any relationship to the prologue -- machine guns and other weapons that a militia might use -- are still out of the question. Feel free to shoot each other, citizens, but remember who's boss.
There are idiots, damned idiots, and statistics? ;)
In Pepich, FDR called for reforming the militia. The National Guard recently celebrated its 371st anniversary. That predates FDR by a few years.
Are Justices supposed to rewrite history?
Since parts of the text were written as prologue.
alkali: More to the point, Scalia takes pains to assure us that anything that bears any relationship to the prologue -- machine guns and other weapons that a militia might use -- are still out of the question.
More to the point indeed. Scalia notes that the "prologue" (as AB puts it) provides us with valuable information about the purpose of the protection, but then he flubs it with his "in common use" analysis.
We call that a tautology.
Also, I didn't "put[] it" as a "prologue", Scalia did.
No one's answered my questions and for this I am sad. I guess it's because there is no good answer?
"Umm, liberals think individual rights only merit protection when they're exercised in ways that liberals approve of?"
Is it just liberals doing that? I find some of these comments incredulous. I say this even though I truly don't have feelings one way or the other on this issue and am quite moderate.
The left-wing-nuts among the commentators who are claiming judicial innovation on Scalia's part have a steep hill to climb. With almost no 2nd Amendment jurisprudence by the Supremes over the years and a crystal clear statement in the Constitution, he didn't have to do much innovation to find the right.
And why exactly does the left fear an armed populace? What do they have planned? We don't fear the prospect. I supported the Black Panthers bringing guns onto the Cornell campus all those years ago.
Scalia does not claim to be a textualist. It is easy to attack him when you attribute beliefs to him that he has explicitly repudiated. He is an originalist, looking at the general popular understanding at the time of the founding. However, he is more deferential than Thomas in that he believes that if there is enough reliance on something, even if wrongly decided, he will not disturb it. Scalia is by no means perfect, but this case (until the common use test) is not an example of gross deviation from principles.
For the prologue, look at the patent clause in Art I. SCOTUS has consistently said that the prologue (or preamble) has no restrictive meaning. Same with the Constitution as a whole. They are aspirational, and that was a fairly common thing in legal writing at the time of the Constitution. So again Scalia was sticking closely to his stated principles, if not the ones that you attribute to him.
Is it inconceivable that the authors of a legal text could insert "whereas"-type language at the beginning of it in order to explain some of the reasons behind the enactment of the text without actually intending to limit its scope?
Yeah right. Moderate my tuchis. What exactly are you incredulous about? The 2nd amendment is very clear on the people's right to bear arms. Only liberals and self-professed "moderates" like yourself don't get such simple stuff.
I have to say, I think Scalia's originalism walks a thin line. According to him, you look to the words at the time, not to the intent. That's not a clear distinction. When we choose words, we intend to mean something, so where there are clear examples of when this theory works (i.e., when the intent deviates significantly from what was actually understood at the time), but there are other times where it does not.
Isn't Scalia textualist when it comes to statutory interpretation? And isn't he trying to get at the original meaning of the text of the constitution? Maybe I don't understand this very well, but I don't think this is all as crystal clear as he wants us to believe.
The 2nd Amendment right of an individual to keep and bear arms is based on "The operative clause’s text and history"
Yet the law against handguns is unconstitutional because "the American people have considered the handgun to be the quintessential self-defense weapon."
So you've got a right supported by the text and history, but the substance of the right is defined by current understandings and what people expect. If Scalia was truly an "originalist" the handgun ban would have been upheld, and the people's method of self-defense would be limited to those "arms" understood at the time of the Constitution's drafting. Unless, of course, originalism is used selectively.
Clearly, any attempt to make things equal is some kinda communism, and anti-American. Conversely, defending corporate rights like comercial speech, property rights, and racial preferences preserves American Freedoms for American Corporations!
But let us not forget the poor, opressed 77% Christians in America. Conservatives have stepped up and recognized some rights for them at last: expressive association, free exercise of religion, "hate speech." Maybe if more people recognized these rights, Christians could begin to make advances in the world - we might even one day see a Christian President!
Basically, no one really cares what the writers thought stuff meant. Since what matters--what gives the document force--is the ratification, what matters is what the people ratifying it thought. The easiest way to work out that understanding is to look at what things meant to legal practioners of the day. Say for instance Habeas. Some scholars say that Blackstone got the history incorrect, and so we should change our understanding to be more in-line with the original English right. Scalia would counter that Blackstone's understanding is what informed the people who ratified it, so that's what the right meant to them, so even if Blackstone was wrong, it doesn't matter. And yes, my comments are restricted to interpretation of the Constitution, not statutes, although there are similar motivating factors to that theory, but its beyond a blog post.
As to your final point, no its not crystal clear, but its clearer than any other method of construction. The theory goes that if you are going to restrain the judiciary with the Constitution, you have to anchor the Constitution. People will still have debates about what the original public use of terms was at the time of the ratification, but if it were easy, we wouldn't need judges. But it does provide a reasonable baseline, which many other frameworks do not. IMHO, Justice Thomas is actually the most honest in his application, although you can give Scalia the benefit of the doubt if you were so inclined based on his greater respect for stare decisis.
I think 12-6-6 (the officer quota plan) was stopped after Clinton left office.
I don't think original understanding has a problem with abstracting the right beyond original expected application. Of course, the argument over the degree to which the abstraction should occur remains at issue (visualize a bivariate distribution), unless the constitution specifies operation in a particular manner, in which case the specified manner must serve as a baseline minimum. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004)(Scalia, J.) (confrontation clause). Thus, to use Scalia's example, freedom "of the press" is not limited to printing devices in existence at the time of ratification, and "arms" are likewise not limited to those in use at the time of ratification.
To create a strawman of Originalism that would only protect 18th century activities, as opposed to concepts of liberty, is disingenuous. Disheartening, too, because Scalia addresses this very point in the Heller opinion.
Originalism extends the First Amendment to "speech" whether by radio, telephone, and the internet. So goes the keeping and bearing of arms -- it doesn't just mean that all Americans have a right to 18th century muskets.
I would think it extremely odd, if that were in fact what is contained in the majority opinion. What it actually says is "invalid under any conceivable standard of review".
This is a truly disappointing aspect of the majority decision, which I have already addressed in other comments. What a blunder on the majority's part. The popularity of handguns is irrelevant. Now we'll be treated to this specious argument by Amendment II opponents for a long, long time.
Generally speaking, of course, and as the definition of the two terms is currently understood.
What bothers me is that partisans on both sides cannot seem to see that sometimes one approach works better, sometimes the other works better, and sometimes there is no conflict in the two approaches working side by side.
Let me offer one counter consideration for the sake of discussion. We still live with the Constitution today. When people who live in this country today read the Constitution their understanding of what that means is necessarily a modern one and not an ancient one. The further we get from the date of ratification, the further those perspectives diverge, and the harder it becomes to clearly determine the original understanding from the historical record.
Does this not become dangerous?
I submit that the Constitution does not only have force because it was ratified hundreds of years ago. It also has force because people who live with it today are comfortable with what it says, and their understanding is a modern one. While certainly it is important to understand what the people who ratified the Constitution intended to do, I think its also important to understand what people who live in America today think the Constitution does.
Must we reratify the Constitution every generation in order to imbue it with our modern understanding of its words? This, or course, has never occurred, and I don't think that the reason it hasn't occurred is that people, generally, understand and are comfortable with these ancient meanings. It has not occurred because people understand and respect the Constitution's words in light of their own modern experiences. The fact that modern people haven't generally sought to overturn or amend provisions of the Constitution gives their modern understanding legal weight in a democratic society, and that weight should not be ignored any more than original understandings should be ignored.
As a followon, it certainly seems strange to argue that ancient understandings can be understood and documented by pursuing the historical record, but modern understandings cannot similarly be understood, and so any reference to a "living constitution" must turn into "whatever judges feel like doing." If you can document the former in a rigorous way, documenting the later ought to be far easier, in fact.
No, but the problem we face here is that the Court, while always having been ideologically biased, is now giving the appearance of ideological bias that is so extreme, that the makeup of the court is being used as a partisan weapon.
This perhaps would not be so effective if the Court gave the appearance of relying more upon a factual basis for their opinions, rather than an ideological basis. It would be even less effective if the people themselves were better able to distinguish between the two.
That said, the last Amendment proceedings that most people can remember, if they remember them at all, were the proceedings related to the proposed Equal Rights Amendment, an amendment whose provisions drove a wedge between the partisan factions of this country, and which, in the end, was prima facie redundant by way of an original meaning construction.
The Amendment process is not seen by modernity as a likely means of inserting controversial provisions into the Constitution, and as a result, we are left with attempts at judicial activism and bizarre legislation as a quick and dirty replacement for true consensus.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
If I'm reading it correctly, the first nine words here have even more weight than the militia prologue, because they make up the substantive, or predicate ("operative"), portion of the text. IOW, the action under discussion is "to promote..." and the remainder is supportive.
So, if the first nine words here can be treated lightly by the courts, the explanatory militia clause might be treated more lightly still.
Yet the law against handguns is unconstitutional because The 2nd Amendment right of an individual to keep and bear arms is based on "The operative clause’s text and history"
So you've got a right supported by the text and history, but the substance of the right is defined by current understandings and what people expect."
---
I would view it a little differently.
The "text and history" are used to establish the meaning of the amendment, as they must be.
The observation that "the American people have considered the handgun to be the quintessential self-defense weapon" speaks to the definition of "arms", a lesser but still vital issue.
1. I think it is untenable to claim that either the majority or the minority has a monopoly on constitutional truth here.
2. Both the majority and the minority opinions are sloppy, but to a large extent they are sloppy in the same sense that history and open-ended language more than 200 years old are also sloppy.
3. Scalia's statement that prefatory clauses do not affect subsequent operative clauses is something I must have missed during all those English classes.
4. In prior cases (abortion and homosexual sodomy) I have said that fuzzy constitutional reasoning bothers me much less if the result is an expansion of individual rights relative to the government.
5. Because of #4, I'm fine with the basic holding of the majority. While I have no desire whatsoever to own a handgun (or have homosexual sodomy or an abortion either), it is enough that so many other people find them comforting.
I await the decision of a southern state's highest court on long barrel handguns marketed as sex toys (unload them first).
Who said that? I only said that liberal Justices are not consistently more pro-individual rights vs. government than are conservative Justices.
Whether one side of the bench or the other upholds more or less individual rights is an unintended consequence of the respective political agendas.
Oddly, many women, who surprisingly are smaller and weaker than men (shocking!...I know!) do own handguns, and not only that, do find it comforting (you know, keeps them from getting raped and all...).
While your emotional indifference is oh-so enviable, I have to wonder....how does someone with no chip on "his" shoulder think he is special because he doesn't want to have an abortion.... news flash: men can't have abortions....why!? They can't have babies!
There we are:
It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.
Sure, everything that Bernstein says is factually correct, but his conclusion is unfounded. Admittedly, the U. Michigan system was faulty because it didn't accommodate "mixed-ancestry people from Cuba," but the purpose behind it was indeed an attempt to achieve diversity or, perhaps alternatively, assisting downtrodden minorities. There is, of course, a difference between these objectives and fighting discrimination. However, proponents of affirmative action would argue that the effects of these systems are just that -- the negation of discrimination. Argue that this isn't the effect if you wish, but it is nonetheless likely that this was a principal purpose behind this U. Michigan system.
Then, Bernstein proceeds to note the obvious -- that in Gratz and Grutter, U. Michigan didn't put forth that it was attempting to prevent discrimination. Well, there is a simple explanation for this fact: if U. Michigan put forth the prevention of discrimination as its chief purpose, both systems would have been easily unconstitutional. At the time of the Gratz and Grutter cases, there was strong reason to believe that only an interest in the achievement of diversity would sustain a affirmative action system, and there was also strong reason to believe that an interest in fighting discrimination would not sustain a affirmative action law. Thus, there is a much more sensible explanation for U. Michigan's failure to say it was fighting discrimination: an interest in seeing its systems upheld.
It is probably true that the commenter overstated his argument by suggesting that the only purpose behind affirmative action is preventing discrimination. But Bernstein is equally wrong for suggesting that the prevention of discrimination is not part of these systems.
Not even slightly.
For a leftist, they must not make it!
Yours, TDP, ml, msl, &pfpp
Yours, TDP, ml, msl, &pfpp
I don't disagree with you. I do question the ability of a court to determine the common modern understanding. The only way I think would be accurate would be some sort of poll, which should be secret--yes, a vote. If we are going to do that, then we might as well rewrite the thing. I've heard one originalist say explicitly that they'd like to hold the country to the more limited Constitution so that people would get fed up and write a new one. I like Jefferson's suggestion that we write one every generation. However, I think you peg the failure to amend incorrectly. If people don't change it, isn't it a better assumption that people are happy with the meaning that was in place before they had the opportunity? Generally inaction defaults to what was in place, not to something new. The most accurate answer is probably laziness. But the judiciary isn't authorized to change the meaning of the Constitution even if there is no action by the citizenry.
MartyB,
Yes, that's what I meant. I wish I had the cite on hand, but someone litigated against a patent on the basis that it didn't meet the "to promote" section, and SCOTUS said it didn't matter.
Wake up people!
The very idea of "freedom" precludes any unchosen obligations, i.e. "duties" (in the Kantian sense normally meant in this context); but that's not to say you are wrong, as neither Leftism nor conservatism are compatible with freedom, per se.
(Note: I do not conflate the Left and liberalism; by the proper historical meaning of that term, there is no liberal movement in America today.)
But that likely involves the basic difference between the two philosophies. The progressive seems to be primarily oriented towards willingness to use the state to protect or help the downtrodden, whereas the conservative seems more oriented towards protecting the individual against the state. They aren't opposites, which is why you can have some large majorities on the Court. But neither are they orthogonal, which is part of why we tend to see so many ideological splits.
So, when you have the downtrodden being individual victims of state oppression, you are likely to see more interesting compositions of opinions.
This may be one of the reasons that the ACLU seems so schizophrenic. Their charter is to protect individual rights, but in many cases, that runs against progressive orthodoxy, where the state is seen as a good force, not a necessary evil. So, the internal debate would seem to be the question of when state action to support the downtrodden, often in the form of group rights, trumps individual rights.
I used the word "progressive" here, since the term "liberal" would historically better describe the "conservative" position here. Obviously, "conservative" is also inappropriate here, since traditional conservatives would probably have been happy with the D.C. gun ban. "Libertarian" is probably closer, but that typically doesn't allow for a strong defense. Many here who are more into this sort of stuff probably have better terms for these different philosophies.
I think that you see this dynamic when you look at a state run by a majority or an elite oppressing a downtrodden minority. That sort of state power does not sit well with the progressive, even if it were to benefit the collective.
The consequence of this mislabeling is that Professors can find cases where conservatives protect individual rights, and conclude that conservatives are as progressive as their liberal counterparts. But the individual rights cases joined respectively by liberals and conservatives are distinguishable -- generally, the liberal individual rights cases protect discrete/insular minorities, and generally the conservative individual rights cases do not.
I don't subscribe to that Kantian sense. I subscribe to a Heinleinian perspective (though admittedly, I'm not sure it was original to him), in that "duty" is a concept which has its basis in the individual, as a progressively higher moral compunction deriving from the self-preservation instinct. I find Heinlein's description of a scientific basis for morality compelling.
That is to say, under this theory, "duty" can only ever be a *chosen* obligation.
This was actually my point.
It's not that a collective is in any sense "superior", morally or otherwise, to an individual, but that the modern liberal viewpoint seems to elevate a responsibility to use the collective power to protect the individual, whereas the modern conservative viewpoint seems to elevate the responsibility to use the individual's power to protect the collective. Within each respective viewpoint, the relative weight given to one perspective or the other can be seen as having supremacy within that philosophical system.
Thanks, Kirk. That's incredibly helpful.
Glad to be of assistance.
Now that we're in agreement that preamble and things like that exist, even in important documents like the Constitution, how about withdrawing your "prologue" objection?