Legal Twitter Compares This Cartoon To Living Constitution

Originalism vs. The Living Constitution: Suppose Both Are Right?

I. Art. V as it reads today:

 The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

II.  Judge Robert Bork on the "temptation" of the judiciary:

 In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

III. Madison in Federalist 45

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

IV. My Proposed Amended Version of Art. V:

 1. The words and phrases of this Constitution shall be interpreted according to their ordinary meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.

[Note: I borrowed most of this language from Randy Barnett’s proposed federalism amendment]

2.  Whenever a majority of either House of Congress shall deem it necessary, such House shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States.

3. Whenever the Legislatures of any five of the several States shall deem it necessary, such Legislatures shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, when ratified by the Legislatures of three-fourths of the several States.

4. Congress, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States.

5. Anything to the contrary herein notwithstanding, no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Bill Brennan Says

Here are some passages from Justice Brennan's contribution to the "great debate:"

1. "Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text. The encounter with the constitutional text has been, in many senses, my life's work."

2. "We Justices are certainly aware that we are not final because we are infallible; we know that we are infallible only because we are final."

3. "When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought. Justices are not platonic guardians appointed to wield authority according to their personal moral predelictions."

4. Which "community" supplies the interpretation Justice Brennan then adopts as law? He tells us more when discussing his view that capital punishment is "under all circumstances" unconstitutional:

"This is an interpretation to which a majority of my fellow Justices--not to mention, it would seem, a majority of my fellow countryman--does not subscribe...I mentioned earlier the judge's role in seeking out the community's interpretation of the Constitutional text. Yet, again in my judgment, when a Justice perceives an interpretation of the text to have departed so far from its essential meaning, that Justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path. On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived."

When a Justice seeks to embody the values of a future, ideal community, whose values does he look to in defining what kind of future community is the ideal?

5. Justice Brennan reads the Constitution's majestic generalities and ennobling pronouncements as "a sublime oration on the dignity of man," and as therefore somehow creating a right to human dignity.

Is it possible for the Court to apply a "right to human dignity." For example, in the context of capital punishment does "a constitutional vision of human dignity" require capital punishment in order to reflect the human dignity of the victim of the heinous crime, or prohibit capital punishment in order to reflect the human dignity of the convicted killer? Does the vision of human dignity require government to prohibit abortion to reflect the human dignity of human life in the womb, or does it protect the right of women to choose to terminate a pregnancy as a reflection of the human dignity and autonomy of women (and what of the human dignity of the father of the child in the womb, whose views about this matter of life or death are contrary to those of the mother)?

Bob Bork Says

Here are some interesting passages from Bob Bork's contribution to the "great deabte:"

1. "The hard fact is, however, that there are no guidelines outside the Constitution that can control a judge once he abandons the lawyer's task of interpretation. There may be a natural law, but we are not agreed upon what it is, and there is no such law that gives definite answers to a judge trying to decide a case....The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."

2. "Noninterpretivism--activism--is said to be the means by which courts add to constitutional freedom and never subtract from it. That is wrong. Among our constitutional freedoms or rights, clearly given in the text, is the power to govern ourselves democratically....G.K. Chesterton might have been addressing this very controversy when he wrote: 'What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people.'"

3. "If noninterpretivism is to be respectable...when [scholars and Justices] address the public, they should say, frankly, 'No, that decision does not come out of the written or historical Constitution. It is based upon a moral choice the judges made, and here is why it is a good choice, and here is why judges are entitled to make it for you.'"

4. "In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strogly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."

First 10 Minutes of Class

For today's  "first ten"let's talk about the blog post on Free Exercise Issues to Think About below.  

We have a seminar-sized class this semester. So let's try something a little different.

I would like to spend the first 10 minutes of class most days talking about what is on your minds.

So, as you prepare for class each day, think about something from the readings (or something concerning religious liberty and free speech in the news) that you want to discuss. Then raise it at the start of class and we will talk about it a little.

Whether it is Christian wedding photographers who wish to exercise discretion concerning the gigs they book, or campus speech codes, or the latest attempt to cleanse religious displays from public parks and public buildings, if you raise it,  we will discuss it.

Hill v. Colorado: Content-neutral or Viewpoint-based?

Suppose in 1950 Alabama passed a law creating an 8-foot floating buffer zone restricting oral protests, education or counseling within 100 feet of any segregated restaurant or commercial establishment?

Or in 1970, after complaints about anti-war protests directed at Dow Chemical for supplying napalm to the US military, Congress passes a law prohibiting "picketed focused at the place of business of any business engaged in supplying chemicals to the United States Armed Forces?"

Is this law, which restricts speech on public sidewalks and streets, constitutional? Is it content-neutral? Is it viewpoint-based?

Would it forbid someone from approaching a person on the sidewalk in front of a diner and saying: "I am here to praise Alabama's mandatory segregation laws"? Does it matter that the restriction singles out certain places--segregated restaurants and commercial establishments--for the speech restriction?

What about a law that restricted speech on the sidewalk "within 100 feet of any business that is the subject of a labor dispute"?

Or a law creating a bubble zone within 100 feet of "any business engaged in the sale or manufacture of military weapons and national defense materials"?

Free Exercise: Prof. Linder's Questions

Let's talk about some of the questions posed by Prof. Linder:

"4. After Smith, it would be possible for a state to prosecute a priest or minister who offers communion wine for distributing alcohol to a minor. Is such a prosecution likely to occur? Why not? Does this suggest that the real losers in Smith are religions that have relatively few adherents, and especially those that are unpopular?

5. What in the Constitution supports applying a different and more deferential standard when it is a military regulation, rather than a civilian regulation, that is alleged to impinge upon constitutional liberties (as the Court suggested in Goldman)? Would it be better to apply the same standard, recognizing (of course) that national security is an interest of the highest order?

6. Lukumi Babalu Aye holds that government may not target a religious practice for prosecution. Suppose a state where concerned about a religious sect that practiced the handling of poisonous snakes in its worship services. How might the state draft a law that would avoid the constitutional problems that Hialeah encountered with its law attempting to deal with animal sacrifice?

7. What do you think about the argument of Justice Stevens in the Boerne case: that to grant the Catholic Church an exemption from zoning laws that would not be given to a non-religious institution violates the Establishment Clause? How would you resolve the tension between the Free Exercise Clause and Establishment Clause?

11. Could you suggest a way in which Hialeah could redraft its ordinances to effectively prohibit animal sacrifice without violating the Free Exercise Clause or criminalizing widely accepted forms of animal killing? "

Substantial Burden

Let's look at some of the cases we have encountered with a view to deciding whether the government has imposed a "substantial burden" on the free exercise of religion:

--Yoder: The law makes it a crime for Amish parents to home school their children in Amish vocational skills? Yes!

--Sherbert: The law denies unemployment benefits to a worker whose faith requires her to turn down employment that requires working on the Sabbath? Yes!

--Hypo: A person seeks to require City government to remove a "Gay Pride" display from a public park because it offends his religious sensibilities about sexual morality? No! Having to avert his eye or walk a few steps out of his way to avoid the religiously-offensive display does not impose a substantial burden on his religious liberty.

--Lyng: Government's use of National Forest will seriously interfere with a portion of the land considered sacred by three American Indian tribes? No! Why not? "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens?" (p.2) Hmmm. Suppose a devout Catholic Pl argues that government hospitals should not be used for abortions because abortion violates the Pl's religious beliefs? Same case?

--What about a law that requires all businesses to close on Sundays. Pl, a person whose religion requires him to close on Saturday, sues under the Free Exercise Clause claiming that the Sunday Closing Law imposes a substantial burden on his free exercise of religion because it means that he must close his store on both weekend days. Do you agree? See Braunfeld v. Brown, 366 U.S. 599 (1961).

Locke & Cutter & "play in the joints"

Consider this observation of Prof. Rick Garnett:

For starters, Cutter highlights the flip-side of the “play in the joints” argument on which the Court had relied in last year’s marquee religion-clause case, Locke v. Davey. In that case, the Court ruled (incorrectly, in my judgment) that the State of Washington’s decision to deny scholarship benefits to an otherwise eligible college student, merely because the student elected to major in theology, did not violate the Free Exercise Clause. The majority in that (non-unanimous) case recognized that the Establishment Clause would permit Washington to provide the scholarship, but insisted that the Constitution did not require equal treatment in this situation. There is, the Court stated, some “play in the joints” between what the Establishment Clause permits and what the Free Exercise Clause requires. In Cutter, the justices acknowledged that this argument cuts both ways: There is also “play in the joints” between what the Free Exercise Clause requires and what the Establishment Clause forbids.

What are your thoughts? Do you understand how the concept of "play in the joints" works? How it allows for legislation neither required by the Free Exercise Clause nor forbidden by the EC?

Justice Thomas and "Partial Incorporation" of the EC

Supreme Court's Doctrine of Incorporation


By early in the twentieth century the Supreme Court found a way to “incorporate” certain provisions of the Bill of Rights against the states as “part of the liberty protected from state interference by the due process clause of the Fourteenth Amendment.” Under this concept of “selective incorporation,” a particular provision of the Bill of Rights “is made applicable to the states if the Justices are of the opinion that it was meant to protect a ‘fundamental’ aspect of liberty.” In other words, only individual liberties that are deemed to be “implicit in the concept of ordered liberty” or “fundamental to the American scheme of Justice” are incorporated against the states by the liberty clause of the Fourteenth Amendment. As Justice John Paul Stevens has put it so eloquently, “the idea of liberty” is the source of the incorporation doctrine.

Moreover, under the doctrine of incorporation these fundamental individual liberties are protected only against “deprivations” by the states. Individuals do not have a right to strike down laws that merely offend their sensibilities, because only laws that deprive them of protected liberty – i.e., laws which impose substantial burdens, undue burdens, or extreme restrictions on their individual liberty– constitute unconstitutional deprivations of liberty under the Fourteenth Amendment. Thus, the incorporated liberty of free exercise of religion is protected (if at all) only against laws that impose “substantial burdens” on an individual’s religious exercise; freedom of speech protects an individual’s right to say what he wishes to say and to refrain from being compelled to speak, not the right to censor the state’s message or to silence willing messengers of the government’s speech; the right to just compensation for regulatory takings is protected only against “extreme” regulations that deprive an owner of “economically viable use” of her property; and even a woman’s “fundamental liberty” to choose to terminate an unwanted pregnancy is protected only against laws that unduly burden her liberty to choose, not against laws that reasonably regulate her access to abortion or which merely seek to persuade her to give life to the child she is carrying.

Justice Thomas on Incorporation

A. Justice Thomas in Newdow (the Pledge case):

Justice Thomas observed that the best scholarship on the original understanding of the Establishment Clause supports the conclusion that it is “best understood as a federalism provision... [which] protects state establishments from federal interference but does not protect any individual right.” Thus, incorporation of the Establishment Clause against the states is incoherent, because it “prohibit[s] precisely what [it] was intended to protect – state establishments of religion.”

B. Justice Thomas in Zelman (the case upholding school choice):

It is unlikely that Justice Thomas will ever convince a Supreme Court majority to reject more than sixty years of precedent by deciding to “unincorporate” the Establishment Clause. However, his second position on incorporation – what I call “partial incorporation” – merely asks the Court to take its own theory of incorporation seriously by recognizing that “[w]hen rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty.” In other words, the Establishment Clause may mean one thing when applied as a structural limitation on the power of the federal government, and something else when applied only to protect individual liberty against state action.

For example, in Zelman a neutral voucher program that provided tuition aid to economically disadvantaged Cleveland schoolchildren to attend a private religious or nonreligious school chosen by their parents was attacked as a law that unconstitutionally advanced religion under the Establishment Clause. Although the Court upheld the law because it viewed the voucher scheme as consistent with its Establishment Clause test, Justice Thomas concurred and reasoned that the Fourteenth Amendment could not be employed to invalidate a neutral school choice program by incorporating a structural component of the Establishment Clause. As he put it so well: “There would be a tragic irony in converting the Fourteenth Amendment’s guarantee of individual liberty into a prohibition on the exercise of educational choice.” The incorporated Establishment Clause does not give A a constitutional right to restrict the liberty of B, nor does it forbid the states from giving parents a greater choice “as to where and in what manner to educate their children.”

C. Justice Thomas in Van Orden (the Texas Ten Commandmets Case):

"There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause."

This post is based upon my Regent Law Review article on "Justice Thomas and Partial Incorporation of the Establishment Clause." I have omitted footnotes and citations for purposes of brevity.

Newdow's Standing Plus Some Comments

As the Court pointed out, Mr. Newdow based his standing not as the legal representative of his daughter, but as "a noncustodial parent" who believed that daily recitation of the Pledge in his daughter's school imposed a concrete injury-in-fact on Mr. Newdow as a parent. In oral argument, here is how Mr. Newdow, who represented himself, explained his personal injury:

I am an atheist. I don't believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong.

What do you think? Is this a concrete injury for purposes of Art. III standing?

Suppose the Pledge said "one Nation, which does not recognize the existence of God or any other myth"--would a noncustodial parent who is a devout Christian or Jew have standing to challenge daily recitation of this atheistic pledge?

Why do you think the liberals on the Court, who usually have a liberal view of standing, took such a narrow view in this case?

Justice Scalia had recused himself from this case. What would have been the effect of a 4-4 vote on the merits? When was this case decided?

Now some questions and comments:

1. Notice that Justice O'Connor recognizes some kind of "ceremonial deism" that somehow passes muster under the endorsement test. Do you agree? What might an atheist like Mr. Newdow argue in reply?

2. Notice also Justice Thomas' discussion of two different types of coercion under the "coercion test": (1) real or actual coercion--coercion "accomplished by force of law and threat of penalty;" and (2) soft or constructive coercion, as in Lee v. Weisman, amounting to peer pressure or psychological pressure to conform ("Roberta Flack killing me softly" non-coercive coercion). If the former is the real coercion test, is the latter nothing more than the endorsement test adorned with a fig leaf?

3. Again, notice Justice Thomas discussion of incorporation and his call to "consider more fully the difficult questions whether and how the Establishment Clause applies against the States."

What is Viewpoint Discrimination?

How is viewpoint discrimination different from content discrimination?

Is the subject or topic the speaker wishes to address permitted? If so, is the speaker being excluded from the forum only because of the viewpoint or ideological perspective from which he or she wishes to address the subject?

Here is a great quote from Prof. Michael McConnell on viewpoint discrimination:

"In my opinion, whether a restriction is viewpoint discriminatory [depends upon the answer to the following] realistic question: Are there any identifiable ideological groups of thought that are put at a disadvantage relative to their competitors? When religious speakers are excluded (even if 'religious' includes atheists), their perspective is put at a disadvantage vis-a-vis dozens of other competing worldviews. Thus, a person who thinks the welfare reform bill is bad because it is contrary to Marxist theory can get government money and proclaim his views, but the person who thinks it is bad because it is contrary to Christ's admonition to feed the poor cannot."

Are Reasonable Observers Unreasonably Reasonable

I like to refer to the "Reasonable Person" in tort law as the "Unreasonably Reasonable Reasonable Person," because no one I have ever met is as careful and prudent and reasonable as the Reasonable Person (thus, he/she is "unreasonably reasonable" the kind of person who sets the alarm for 3 am to get up and shovel the snow off the sidewalk to protect pedestrians against foreseeable risk of harm).

Is Justice O'Connor's reasonable observer "reasonable" or "unreasonably reasonable." Is it reasonable to perceive a Nativity display in a public park during the Christmas season as an attack on non-Christians? Does anyone really think that the city government is saying "non-Christians are second class citizens" when it puts up a Nativity display or a Ten Commandments display in the public square? Why not view the Court's cleansing of religion from the public square (a public square that includes all sorts of secular holiday displays) as an endorsement by the Court of the message of hostility that religious subgroups are not full members of the political community?

Does the endorsement test as applied by the Court violate itself?

Are Racial Preferences Benign? How About Treating Them as Takings That Require Just Compensation?

According to a recent article by John Katzman and Steve Cohen:

 Affirmative action’s original intent was to incorporate more minority students, specifically blacks and Hispanics, into elite universities. But blacks and Hispanics have actually lost ground in the admissions race over the past 25 years, as recently reported by the New York Times . And while the original policy was intended to help minorities, Asian-American students feel they are taking the biggest hit. As a result, many have filed lawsuits against Ivy League schools such as Harvard, claiming that to gain admission, Asian-American students, on average, have to score 140 points higher on the SAT than white students, 270 points higher than Hispanic students, and 450 points higher than African-American students.

 Thus, Asian students have to score 450 (!!!) points higher than African-American students and White students must score 310 points higher. These are not small differences, and affirmative action is not a tie-breaker, nor a thumb on the sclae, but a truckload of bricks on the scale.


Here is what I would like you to think about concerning our class discussion of racial preferences, particularly as part of the educational admission/financial aid process.

Some supporters of AA argue that using race as a "plus" is benign in the sense that it helps some deserving students without harming anyone else? They argue, for example, that Jennifer Gratz was probably not denied a seat in the class at Michigan, because she was only one of many white students whose applications for admission were rejected.

How about a hypothetical to illustrate this issue!

So let's assume that an elite state law school has, say, 3500 applications for a first year class of 250. The school admits 180 students (including 5 minority applicants) with very high GPAs and LSATs "on the merits," and 70 students with much lower academic credentials who receive a substantial racial "plus" based upon their status as minority applicants.

And lets say that 1000 white applicants with very good GPAs and LSATs (lower than the 180 "merit" students, but quite a bit higher than the 70 students who received the racial plus) are denied an offer of admission.

Questions:

How many of the 1000 rejected students actually lost a seat in the class?

How many of them believe they were unfairly denied a chance at a seat in the class on the basis of their race?

Is this belief concerning unfair treatment reasonable? Why or why not?

Is there some way that the state university could address the real harms caused by AA (both the lost seats and the lost opportunity to compete without regard to race) without sacrificing the racial diversity that some believe is critical to the university's educational mission?

How about treating racial preferences as a kind of taking that requires just compensation? Here is an idea I posted to a conlaw professors listserv:

I don't have a problem with the ends of racial diversity, just with the means of using racial preferences to redistribute opportunities from young adults of one race to young adults of another race.

Why should we single out a few young adults to pay for the costs of a "compellingly" important social goal? Why shouldn't all of society bear these costs in the form of taxes? So why not view AA as a taking that requires just compensation. Here is how it might work in the admissions area.

First, make admissions decisions on the basis of all relevant factors without taking race into account (this might require redacting admissions applications to prevent admissions committees from knowing the race of applicants).

Now after you have your "on the merits" class, proceed to apply the racial preferences by taking some seats away from the first admitted class and awarding those seats on the basis of the racial preferences. So lets say applicants 1-20 are chosen to be the sacrificial lambs whose seats are taken and transferred to the minority applicants. Why not treat this as a taking and pay applicants 1-20 some just compensation (say, $10,000 to 20,000) for the lost educational opportunity. Is it not far better to share the sacrifice among all the state's taxpayers, than to impose the full cost of diversity on the few young adults who were chosen--on the basis of their race--to give up the seat they had earned on the merits?

Isn't this a less restrictive means, even if it ends up with a rather steep price tag and the political costs of raising taxes to pay the bill?

What do you think? Is this a less restrictive means of advancing the goal of racial diversity in education without imposing racial harms on innocent bystanders? Notice that it addresses both kinds of racial harms discussed above. All students get an equal opportunity to be admitted without regard to race under the first admissions process. Students not admitted under the first step know that they were not denied admission on the basis of race, so we no longer need to consider their complaints. We know which students were harmed by the racial plus factor, and we proceed to compensate them economically and send them on their way to the school that is their second or third choice.

What are your thoughts?

For Friday's Class

We will not discuss Moore, Zablocki & Micheal H because those pages were not assigned. Sorry about the confusion today. Some years we do cover them, but I decided to cut them out this year so we can read other material later.

We will begin our discussion of Roe v. Wade and the abortion liberty on Friday. So be prepared for Assignment No. 13.

Tax For Not Buying Obamacare--A Message From the King!

Incorporation of Second Amendment

McDonald v. City of Chicago.

I. Does the P or I Clause of the 14th Amendment Incorporate the Second Amendment?

Here is a less edited version of how the Court discussed this issue:

Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment's reference to "the privileges or immunities of citizens of the United States." The Slaughter-House Cases, supra, involved challenges to a Louisiana law permitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel Miller's opinion for the Court concluded that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws." The Court held that other fundamental rights--rights that predated the creation of the Federal Government and that "the State governments were created to establish and secure"--were not protected by the Clause. 

In drawing a sharp distinction between the rights of federal and state citizenship, the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment's Privileges or Immunities Clause spoke of "the privileges or immunities of citizens of the United States," and the Court contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause of Article IV, both of which refer to state citizenship. Second, the Court stated that a contrary reading would "radically chang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people," and the Court refused to conclude that such a change had been made "in the absence of language which expresses such a purpose too clearly to admit of doubt." Finding the phrase "privileges or immunities of citizens of the United States" lacking by this high standard, the Court reasoned that the phrase must mean something more limited.

Under the Court's narrow reading, the Privileges or Immunities Clause protects such things as the right

"to come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions ... [and to] become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State."

Finding no constitutional protection against state intrusion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Justice Field, joined by Chief Justice Chase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth Amendment's Privileges or Immunities Clause to "a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage." Justice Field opined that the Privileges or Immunities Clause protects rights that are "in their nature ... fundamental," including the right of every man to pursue his profession without the imposition of unequal or discriminatory restrictions. Justice Bradley's dissent observed that "we are not bound to resort to implication ... to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself." Justice Bradley would have construed the Privileges or Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Justice Swayne described the majority's narrow reading of the Privileges or Immunities Clause as "turn[ing] ... what was meant for bread into a stone." 

Today, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation....

Three years after the decision in the Slaughter-House Cases, the Court decided Cruikshank, the first of the three 19th-century cases on which the Seventh Circuit relied.....The Court wrote that the right of bearing arms for a lawful purpose "is not a right granted by the Constitution" and is not "in any manner dependent upon that instrument for its existence." "The second amendment," the Court continued, "declares that it shall not be infringed; but this ... means no more than that it shall not be infringed by Congress." "Our later decisions in Presser v. Illinois (1886), and Miller v. Texas (1894), reaffirmed that the Second Amendment applies only to the Federal Government." 

C

In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, but petitioners are unable to identify the Clause's full scope. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. 

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

II. Due Process Clause

While Justice Black's [total incorporation] theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of "selective incorporation," i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments.

The decisions during this time abandoned three of the previously noted characteristics of the earlier period. The Court made it clear that the governing standard is not whether any "civilized system [can] be imagined that would not accord the particular protection." Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. 

The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain unincorporated. See p. 443-444

With this framework in mind, ... we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, ... or as we have said in a related context, whether this right is "deeply rooted in this Nation's history and tradition."  p. 444

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. Explaining that "the need for defense of self, family, and property is most acute" in the home, we found that this right applies to handguns because they are "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family." 

Heller makes it clear that this right is "deeply rooted in this Nation's history and tradition...." 

As we noted in Heller, King George III's attempt to disarm the colonists in the 1760's and 1770's "provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms."  The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights.... This understanding persisted in the years immediately following the ratification of the Bill of Rights....

In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection....The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified.... See Supp. p. 15 for most of this language from the Court's opinion. 

Here is more from the Court with some of the edited language from the casebook restored to the quotation:

Municipal respondents' remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.

Municipal respondents' main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights " 'recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.' " According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States. Therefore, the municipal respondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment. 

This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases. And the present-day implications of municipal respondents' argument are stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country. If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.

Municipal respondents attempt to salvage their position by suggesting that their argument applies only to substantive as opposed to procedural rights. But even in this trimmed form, municipal respondents' argument flies in the face of more than a half-century of precedent. For example, in Everson v. Board of Ed. of Ewing (1947), the Court held that the Fourteenth Amendment incorporates the Establishment Clause of the First Amendment. Yet several of the countries that municipal respondents recognize as civilized have established state churches. If we were to adopt municipal respondents' theory, all of this Court's Establishment Clause precedents involving actions taken by state and local governments would go by the boards....

Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents' argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States....

We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

Texas Plan for Convention of the States

Here is a copy of Gov. Abbott's announcement of the "Texas Plan" for amending the Constitution via a Convention of the States (link):

Governor Greg Abbott today delivered the keynote address at the Texas Public Policy Foundation’s Annual Policy Orientation where he unveiled his Texas Plan to restore the Rule of Law and return the Constitution to its intended purpose. In his plan, Governor Abbott offers nine constitutional amendments to rein in the federal government and restore the balance of power between the States and the United States. The Governor proposes achieving the constitutional amendments through a Convention Of States.
“The increasingly frequent departures from Constitutional principles are destroying the Rule of Law foundation on which this country was built,” said Governor Abbott. “We are succumbing to the caprice of man that our Founders fought to escape. The cure to these problems will not come from Washington D.C. Instead, the states must lead the way. To do that I am adding another item to the agenda next session. I want legislation authorizing Texas to join other states in calling for a Convention of States to fix the cracks in our Constitution.”
Governor Abbott went on to explain that dysfunction in Washington, D.C. stems largely from the federal government’s refusal to follow the Constitution. Congress routinely violates its enumerated powers, while taxing and spending its way from one financial crisis to another. The President exceeds his executive powers to impose heavy-handed regulations. And the Supreme Court imposes its policy views under the guise of judicial interpretation. Governor Abbott urged action by Texas – and other states – to restore the Rule of Law in America.
Governor Abbott offered the following constitutional amendments:

1. Prohibit Congress from regulating activity that occurs wholly within one State.
2. Require Congress to balance its budget.
3. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
4. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
5. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
6. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
7. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
8. Give state officials the power to sue in federal court when federal officials overstep their bounds.
9. Allow a two-thirds majority of the States to override a federal law or regulation.

To view Governor Abbott's full plan, click here.

Judicial Review and the Rule of Law

What is the Rule of Law?

Are the decrees of an unelected Ruler, such as a King or an Emperor or a Dictator part of the Rule of Law?

The Rule of Law, of course, “is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.”

“Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy… dictatorship, or oligarchy where the rulers are held above the law.” [Wikipedia]  

It is the difference between Lex Rex (the law is king) and Rex Lex (the king is law). In other words, the Rule of Law affirms “the law’s supremacy…in contradistinction to the rule of man.”

[The Rule of Law “avers that no man is above the law and the law’s supremacy (lex  rex) in contradistinction to the rule of man (rex lex).” Li-ann Thio, Lex Rex or Rex Lex?, 20 UCLA Pac. Basin L.J. 1 (2002)]

In the context of federal courts and the Rule of Law, the idea is that judges should apply the law, but not make the law.

Thus, the idea of judicial review in Marbury is that federal courts have the power to apply the Written Constitution; but the doctrine of judicial review does not give federal courts the power to make law or to effectively amend the Constitution by fast and loose “interpretation.”

Scalia and Roberts on Obergefell: An Excerpt From My Forthcoming Article

IV. Scalia's Dissent in Obergefell and The Rule of Law

"Just who do we think we are?"[1]

 

Recently, Justice Kennedy spoke at Harvard Law School and, in answer to a question from an audience member, said that under the Rule of Law a public official who cannot in good conscience obey a Supreme Court decision, such as its same-sex marriage decree in Obergefell, must either enforce the law or resign from public office.[2] This exchange was obviously a reference to Kim Davis, the Kentucky county clerk who was recently jailed for refusing to issue marriage licenses to same-sex couples in violation of a federal court order requiring her to do so.[3]

Rather than focus on Kim Davis and her disobedience of the Court's decree in Obergefell, I want to ask a different question. Is Justice Kennedy's opinion in Obergefell a legitimate exercise of the Rule of Law? In other words, is it a valid application of the Written Constitution, or is it an illegitimate exercise of raw judicial power?

Obergefell, of course, held that same-sex couples have a fundamental right to marry under the Due Process Clause of the Fourteenth Amendment, and that therefore, "there is no lawful basis for a State to refuse to recognize" same-sex marriages.[4] Of course, in Obergefell Justice Kennedy made absolutely no effort to root the right to same-sex marriage in the original meaning of the Written Constitution. Instead, he relied on his "reasoned judgment" and a "new insight," and his "understanding of what freedom is and must become," and on "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”[5] Or, in the words of Chief Justice Roberts, Justice Kennedy's Obergefell decree is based merely on his personal belief "that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.”[6]

Justice Kennedy's majority opinion in Obergefell is not law; it is full of moral philosophy and bad poetry, but not a speck of constitutional law. As both Chief Justice Roberts and Justice Scalia made clear in their dissenting opinions, Justice Kennedy's "judicial policymaking...is dangerous for the rule of law.”[7] Or, in the words of Justice Scalia, Kennedy’s opinion constitutes a “judicial Putsch,” lacks "even a thin veneer of law," and amounts to “a naked judicial claim to legislative...power...fundamentally at odds with our system of government.”[8]

Although the Written Constitution is silent about homosexuality and same-sex marriage, it is not silent about which level of government is entrusted with the power to define and regulate "all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”[9] Under the Tenth Amendment, the power to define and regulate marriage is "reserved to the States respectively, or to the people."[10] Indeed, even Justice Kennedy, in his opinion in U.S. v. Windsor,[11] recognized that under the Constitution: ‘”The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”’[12] Moreover, as Chief Justice Roberts' principal dissent in Obergefell made absolutely clear: "There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way...as the union of a man and a woman."[13]

Chief Justice Roberts and Justice Scalia, dissenting in Obergefell, did not hesitate to declare the Majority's decree in the case a clear violation of the Rule of Law. Justice Scalia joined Chief Justice Roberts' dissent in full. He also wrote a separate dissent "to call attention to this Court's threat to American democracy."[14] The Roberts' dissent brought the light, and the Scalia dissent brought the thunder to Kennedy's nonoriginalist majority opinion in Obergefell. Here are just a few of the points Roberts and Scalia made:

·         “’[W]e have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.’”[15]

·         “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”[16]

·         "The majority's decision is an act of will, not legal judgment.”[17]

·         "Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.... The Court's accumulation of power does not occur in a vacuum. It comes at the expense of the people.”[18]

·         And finally, Justice Scalia leaves not a hint of doubt as to his view that Obergefell is not a legitimate part of the Rule of Law: "Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."[19]

If "this" Written Constitution is not only law, but the supreme "Law of the Land," as Article VI explicitly prescribes,[20] then Justice Kennedy's lawless opinion in Obergefell does not follow the Rule of Law. As Roberts said it so well in his dissent, if you like the results in Obergefell, by all means celebrate those results: "But do not celebrate the Constitution. It had nothing to do with it."[21]

If the Constitution had nothing to do with the doctrine of Obergefell, then the Rule of Law had nothing to do with it either. Here is a way to think about Obergefell and whether it is an activist, extra-constitutional decision by the Supreme Court. Think about this—was there ever a time in American history when three­fourths of the States—38 of the 50 states today—would have ratified a constitutional amendment proposing to redefine marriage as decreed by the Court in Obergefell?

Remember the Constitution is supposed to represent a consensus among we the people in the States; not a national democratic vote or poll, not the policy preferences of unelected judges, but a strong consensus among the states.[22] So was there ever a time in American history when three-fourths of the states would have ratified a proposed constitutional amendment redefining marriage as including same-sex marriage? 1789? 1868 (when the Fourteenth Amendment was ratified)? 1920? 1973? 2015? Ever?

If your answer is "no"—never—that tells you something about Obergefell and whether it is legitimate. How can same-sex marriage be a legitimate constitutional right if we all agree it could never have been ratified as a legitimate part of the Written Constitution?

Thus, perhaps it is Justice Kennedy, not Kim Davis, who is guilty of violating the Rule of Law. And Justice Scalia is surely correct when he concludes that The Living Constitution is a clear and present danger to the precious right of we the people to democratic self-government in the several states. As he put it as no one else could, in what was his last, great dissent: "[T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”[23] Scalia should have dropped the microphone when he published this truth about the threat of the Living Constitution to liberty and democratic self-government. His voice on the Court will be missed more than we can quantify.

---

[1] Obergefell v. Hodges, 576 U.S. ---, [2] (2015) (Roberts, C.J., dissenting). Justice Scalia joined this opinion "in full." Id. at [l] (Scalia, J., dissenting). [page references are to the slip opinions].

[2]See Justice Kennedy Speech at Harvard Law School, Oct. 22, 2015, available at: https://www.youtube.com/watch?v=ZHbMPnA5n0Q. The particular discussion occurs at around 50:42. Here is the transcript of Justice Kennedy's response: "Great respect, it seems to me, has to be given to people who resign rather than do something they think is morally wrong in order to make a point. However, the rule of law is that, as a public official, in the course of performing your legal duties, you are bound to enforce the laws." John Riley, Justice Kennedy: Public Officials can't ignore Supreme Court rulings, Oct. 28, 2015, Metro Weekly, http://www.metroweekly.com/2015/10/justice-kennedy-public-officials-cant-ignore-supreme-court-rulings/

[3] Alan Blinder & Tamar Lewin, Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage, N.Y. Times, Sept. 3, 2015, http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html.

[4] 576 U.S. at [28].

[5] Id. at [10, 11 & 19].

[6] Id. at [10] (Roberts, C.J., dissenting). Or to put it another way, "The majority's driving themes are that marriage is good and petitioners desire it." Id. at[15].

[7] Id. at [22].

[8] Id at [6, 4, 5] (Scalia, J., dissenting).

[9] The Federalist No. 45 (J. Madison).

[10] U.S. Const. amend. X.

[11] 570 U.S. at----, 133 S. Ct. 2675 (2013).

[12] Id. at----, 133 S. Ct. at 2691 (quoting In re Burrus, 136 U.S. 586, 593-594 (1890)).

[13] Obergefell, 576 U. S. at---- [6] (Roberts, C.J., dissenting).

[14] Id. at --- [1] (Scalia, J., dissenting).

[15] Id. at --- [12] (Roberts, C.J., dissenting) (quoting Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting)).

[16] Id. at --- [22].

[17] Id. at --- [3].

[18] Id. at--- [25-26]

[19] Id. at --- [2] (Scalia, J., dissenting).

[20] U.S. Const. art. VI .

[21] Obergefell, 576 U.S. at --- [29] (Roberts, C.J., dissenting).

[22] U.S. Const. art. V.

[23] Obergefell, 576 U.S. at --- [6] (Scalia, J. dissenting).