The column also examines how the Colorado state Department of Regulatory Affairs might regulate medical marijuana dispensaries.
Categories: Politics 5 Comments
Categories: Guns 10 Comments
In the comments section, feel free to discuss any of the articles.
Categories: Fourteenth Amendment, Guns 1 Comment
Categories: Politics 44 Comments
Categories: Uncategorized 53 Comments
Categories: Uncategorized 239 Comments
Josh Blackman’s thoughtful analysis here. The brief is here.
Categories: Uncategorized
Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It’s not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper’ requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.” However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.
But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the “Cornhusker kickback,” they will be acting faithfully to the original meaning of the Constitution. For the original meaning, see: Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007). See also Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003).
Categories: Congress, Constitutional History, Necessary and Proper, Originalism, Supreme Court
Categories: Health Care, Public Interest Law
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.
Categories: Constitutional History, Constitutional Theory, Fourteenth Amendment, Guns, Supreme Court
On Thursday, Dec. 17, Justice Ginsburg spoke at a luncheon of the Harvard Club of Washington, D.C. I was not present at the luncheon, but I have heard, third-hand, that she spoke on the value of dissenting opinions. She said that sometimes a dissent can become the majority of a “future, wiser court.” As an example, she pointed to the dissent in District of Columbia v. Heller.
If any VC readers attended the luncheon, any details or clarifications would be welcome.
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.
This week’s National Journal poll of political bloggers asked for a grade for President Obama’s foreign policy. The average grade from the Left was a C. From the Right, it was a D-. I gave him the highest grade of any voter, which was a B, and explained: “Finally did the right thing on the Afghanistan surge. His most important speech to the world — in Oslo — was magnificent. Badly mishandled Honduras at the start by opposing the lawful removal of Zelaya, but no long-term harm was done.” Next year’s grade might be much lower, in that the shared Clinton-Bush-Obama policy of all talk and no action about Iran’s nuclear weapons development may get to the terminal point of Iran acquiring nuclear weapons.
Question 2 asked the Left “How much is the Democratic Party to blame for Congress’ low standing in the polls?” The Right was asked the same question about Republicans. Eighty-six percent of the Left said that Democrats were a “a great deal” or “somewhat” to blame. On the Right, nobody said that Republicans bore “a great deal” of the blame, but 57%, including me, voted for “somewhat.” I wrote: “When the Republicans took over Congress in 1995, they came in as reformers; by 2006, the Republicans had become participants in a culture of corruption (in both legal and illegal forms), and of abuse of the rights of the minority party. In 2007, the Democrats took power and promised reform, but they are acting just as corruptly and abusively (perhaps even more so). No wonder the public is cynical.”
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.”
Pictures and details here.
Last week’s National Journal poll of political bloggers asked Left-leaning and Right-leaning bloggers about their favorite political figures. Herewith, the results:
Most-admired House member: On the Left, Alan Grayson. My father’s former campaign treasurer, Denver Rep. Diana DeGette, tied for second. On the Right, tie between Jeff Flake, Mike Pence, and Paul Ryan. I voted for Flake.
Most-admired Senator: On the Left, Bernie Sanders. On the Right, Tom Coburn. I voted for Coburn.
Which current member of Congress has the brightest political future: On the Left, Alan Grayson. (A result I view as very wrong, if a bright political future includes winning re-election.) On the Right, a tie between Michelle Bachmann, Eric Cantor, and Jim DeMint. I voted for Bachmann, because I thought that she will continue to win re-election, might move up to the Senate, and continues to grow in national influence. Twelve months from now, she’ll still be rising in political influence, while Grayson will be trying to get a job as an Air America host. This isn’t a value judgment about Grayson/Bachmann, just a political prediction.
Most impressive Cabinet Secretary this year: On the Left, Hillary Clinton. On the Right, Robert Gates. I voted for Interior Secretary Salazar.
Which political figure has most impressed you this year: On the Left, Alan Grayson. On the Right, Sarah Palin. I voted for interim Honduran President Robert Micheletti, “for saving his nation from despotism and standing up to powerful foreign governments which backed the would-be despot.”
Who is the best Democratic/Republican strategist: The Left picked David Plouffe. The Right picked Karl Rove, as did I. Not so great in 2006, but pretty insightful these days.
Who is the most creative Democratic/Republican thinker: The Left chose “None,” followed by Howard Dean. The Right chose Newt Gingrich, as did I. Not a good manager, as shown by his tenure as Speaker of the House, but very creative and smart.
Which voice in the Democratic/Republican party would you like to mute: The Left wanted to silence Rahm Emanuel. On the Right, there was a tie between Gingrich, Michael Steele, and Lindsey Graham. I voted for “none,” because “Diversity is a sign of strength, and debate is healthy.”
Bush v. Gore was rightly decided
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.
Tags: Bush v. Gore
Obama and the Universal Golden Rule
Over at National Review Online, Cliff May, who is right 99.9% of the time, makes a rare error. He questions President Obama’s Nobel Prize speech claim that “the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.” May points to the Sermon on the Mount and to the teachings of the first-century Rabbi Hillel for evidence of the Golden Rule in Christian and Jewish thought. (An even better Jewish cite would have been Leviticus 19:18–“Thou shalt love they neighbor as thyself”–since Leviticus is Jewish scripture, and Rabbi Hillel’s kind and wise sayings are not.) May then writes: “I don’t think one finds either sentiment in the Koran and the Hadith. Infidels do not enjoy the same status as the Faithful – not in Allah’s eyes and not in the eyes of Allah’s servants. Not unless and until they convert.”
One can find innumerable historical examples of Christians, Jews, Muslims, and others viciously mistreating people who were of different religions. In many cases, the mistreaters could offer some plausible citation to their own religion’s scripture or other teachings. However, if the question is: “Does every major world religion contain the Golden Rule?” the answer is “yes.” To wit:
Islam: “Not one of you (truly) believes until he wishes for his brother what he wishes for himself.” An-Nawawī’s Forty Hadith, transl., Ezzeddin Ibrahim & Denys Johnson-Davies (Damascus, Syria: The Holy Koran Publishing House, 3d ed. 1977), Hadith 13, p. 56 (attributed to Mohammed; parenthetical in original).
Confucianism: Mencius said, “Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence.” Mencius, Mencius, transl. D.C. Lau (N.Y.: Penguin, 1970), book 7, part A, item 4, p. 182. (And yes, I know that there’s a lot of discussion about whether Confucianism and Taoism are actually religions, or just philosophies.)
Taoism: Lao Tzu said, “Regard your neighbor’s gain as your own gain and your neighbor’s loss as your own loss.” Lao Tzu, T’ai Shang Kan Ying P’ien (Treatise of the Exalted One on Response and Retribution), transl. Teitaro Suzuki & Paul Carus (La Salle, Illinois: The Open Court Pub. Co., 1906).
Hinduism: “This is the sum of duty: Do naught unto others which would cause you pain if done to you.” Mahabharata, 5:1517.
Buddhism: Siddhartha said, “What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?” Christopher W. Gowans, Philosophy of the Buddha (London: Routledge, 2003), ch. 15.
Baha’i: : “Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it.” Baha’u’lah, Gleanings, from the Writings of Baha’u’lah (U.S.: 1990), ch. 56, p. 128.
Jainism: “One should treat all creatures in the world as one would like to be treated.” Mahāvīra, Sutrakritanga 1.11.33.
Sikhism: “I am a stranger to no one; and no one is a stranger to me. Indeed, I am a friend to all.” Guru Granth Sahib, pg. 1299.
Are the above sayings all “central” to their respective religions? Well in Islam, the Hadith (stories and sayings of Muhammad, based on tradition) are much less central than the Koran. In Confucianism, Mencius is perhaps the greatest of Confucian writers, but he’s not Confucius. One could raise centrality questions about most of the quotes (other than the Sermon on the Mount, which is indisputably central). Does the Hadith’s reference to “his brother” mean: 1. A sibling? 2. A co-religionist? 3. Everyone? At the least, the Hadith’s text (like the text of references to a “brother” in other religions) is open enough so that kind-hearted people can legitimately interpret it as “everyone.”
While President Obama’s Nobel speech is Kennedyesque in the very best way, there is an important difference between the challenge that JFK faced and the one that BHO faces. Communism, like Nazism, was Evil incarnate. President Roosevelt was right to say so about Nazism, and President Reagan was right to say the same about Communism. The appropriate long-term goal for American policy was to eliminate these evils from the face of the earth. Such a goal is neither appropriate nor legitimate with regard to Islam. Accordingly, it was proper for the President Obama in Oslo to continue the Bush policy of appealing the best part of Islam, and of denying the claims of al Qaeda and similar evil-doers that they represent true Islam.
Although I didn’t vote for Barack Obama, he is my President, and I wish him every success in carrying out the positive vision he articulated today; if he does, he will have more than fully earned the Nobel Peace Prize.
I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler’s armies. Negotiations cannot convince al Qaeda’s leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism — it is a recognition of history; the imperfections of man and the limits of reason.
I raise this point, I begin with this point because in many countries there is a deep ambivalence about military action today, no matter what the cause. And at times, this is joined by a reflexive suspicion of America, the world’s sole military superpower.
But the world must remember that it was not simply international institutions — not just treaties and declarations — that brought stability to a post-World War II world. Whatever mistakes we have made, the plain fact is this: The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms. The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans. We have borne this burden not because we seek to impose our will. We have done so out of enlightened self-interest — because we seek a better future for our children and grandchildren, and we believe that their lives will be better if others’ children and grandchildren can live in freedom and prosperity.
....
peace is not merely the absence of visible conflict. Only a just peace based on the inherent rights and dignity of every individual can truly be lasting.It was this insight that drove drafters of the Universal Declaration of Human Rights after the Second World War. In the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise.
...
America has never fought a war against a democracy, and our closest friends are governments that protect the rights of their citizens. No matter how callously defined, neither America’s interests — nor the world’s — are served by the denial of human aspirations.
So even as we respect the unique culture and traditions of different countries, America will always be a voice for those aspirations that are universal. We will bear witness to the quiet dignity of reformers like Aung Sang Suu Kyi; to the bravery of Zimbabweans who cast their ballots in the face of beatings; to the hundreds of thousands who have marched silently through the streets of Iran. It is telling that the leaders of these governments fear the aspirations of their own people more than the power of any other nation. And it is the responsibility of all free people and free nations to make clear that these movements — these movements of hope and history — they have us on their side.
It is true that Obama administration has not always fully lived by these noble words. But at least today, the words themselves are what matters. The President’s Nobel Prize Speech was no apology tour, no bow to a foreign monarch. Like his speech at West Point, the Nobel speech was a strong continuation of the bipartisan Kennedy-Reagan foreign policy based on military strength, support for human rights, readiness to negotiate, and realistic idealism. Today, our President made me especially proud to be an American.
p.s. Contrary to what one of Hugh Hewitt’s co-bloggers wrote, the final section of the speech is not “where Obama re-coins the golden rule as ‘the law of love.’” For those who don’t recognize the phrase, here’s the background, from my article on modern pacifism in the Charleston Law Review:
In 1932, [the eminent Protestant theologian Richard] Niebuhr wrote that he could think of no good methods, short of war, to end Japanese aggression in China. But since he was a pacifist, force was out of the question. So he advocated “the grace of doing nothing.” That is, just sitting on the sidelines while Japan raped, literally and figuratively, the Chinese people and hoping that God would solve things in the long run.
...
In a famous exchange of letters with his brother Richard, Reinhold Niebuhr [also an eminent Protestant theologian] argued that the deeper principle of the pacifist Gospels was “the law of love.” He argued that the law of love required Christians to protect the victims of fascist aggression. His views were elaborated in his book Moral Man and Immoral Society. After World War II, Reinhold Niebuhr became one of the founders of Americans for Democratic Action, an organization of liberal Democrats such as Arthur Schlesinger, Jr., Hubert Humphrey, and John Kenneth Galbraith—who supported President Truman’s leftist economic policies and staunch resistance to Stalin.
In short, Obama’s use of Niebuhr’s phrase “the law of love” fits perfectly with the central question that Obama addressed in his speech. Indeed, the “law of love” line comes along with a very Niebuhrian explication. The speech not only invoked President Kennedy twice, it was a speech that President Kennedy himself might have given (with, of course, some changes in details) if Kennedy had lived long enough to receive the Nobel Prize. Certainly there is a great deal in the Obama speech that matches what Ronald Reagan and George W. Bush believed and practiced. However, the amount of attention that the speech gave to development aid as a tool for peace is not a Reagan theme, although it was a theme for both Kennedy and Bush. The speech’s exaltation of multilateral institutions like the U.N. was also a Kennedy theme, not a Reagan or Bush theme. So while the speech is definitely within the bipartisan Kennedy-Reagan mainstream, the speech is closer to a Kennedy speech than anything else. Accordingly, it was especially appropriate for our young President–who like Kennedy inspires many people around the globe–to use the words of Niebuhr that so profoundly influenced the great anti-communist liberal Democrats of the Age of Kennedy.
p.p.s. Much more on Niebuhr here, in chapter 3 of my Brown Univ. thesis on Arthur Schlesinger.
Tags: Obama Nobel Prize
New article on the right to arms in early Pennsylvania
Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.
Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s claims about constitutional language and history.
Part II investigates Kozuskanich’s analysis of Quakers who objected to serving in the militia. According to Kozuskanich, the Quaker’s protests against being forced to “bear arms” in the militia demonstrate that “bear arms” is exclusively a military term; therefore the “right to keep and bear arms” is only about owning and carrying militia weapons.
But as it turns out, the Quakers were not as pro-gun as Kozuskanich acknowledges. Some Quakers refused to use firearms for personal defense, or even to carry arms ornamentally. Moreover, a review of Kozuskanich’s citations of writings by Quakers and other pacifists reveals that not a single one expressed any willingness to possess arms outside the militia. Several of the cited sources have nothing to do with pacifists’ arms.
Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars.
In other McDonald news, Declan McCullagh of CBS News has an article discussing some of the McDonald amicus briefs, including mine.
And in my continuing program of calling attention to interesting briefs in the McDonald case, here’s a link to the brief of Safari Club International. It’s a solid example of a particularly helpful type of amicus brief, in which a group shares its practical expertise with the Court, explaining how the Court’s decision may impact a particular activity. As the SCI brief details, local gun bans such as Chicago’s can significantly interfere with hunting. For example, nationwide, over a million people use handguns for hunting, yet Chicago residents are forbidden to own these hunting arms. The result is harmful not only to humans, but to wildlife; the brief explains the tremendous role that regulated hunting plays in wildlife conservation and management.
Categories: Guns 12 Comments
