March 5, 2010
Virginia AG opines that public universities should be prohibited from including LGBT anti-discrimination policies
"It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ’sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly.”
March 3, 2010
Sachs: The Strange Alchemy of Life and Law
Justice Albie Sachs, original member of the Constitutional Court of South Africa and currently visiting professor of human rights at the University of Chicago, delivered a series of lectures this winter that dovetailed with his summer 2009 book, The Strange Alchemy of Life and Law (Oxford). (One of those lectures is archived here. We'll post links to other recent lectures if they become available.)
If you haven't read The Strange Alchemy, I highly recommend it. Sachs weaves together personal, political, and doctrinal accounts of the Court's most significant rulings (available in full text here) in his characteristic conversational writing style. This is no abstract theory of constitutional law or human rights; instead, it's a personal and compelling account of judging landmark cases at the dawn of the democratic South Africa. It's excellent reading in its own right, but it will also be a terrific addition to courses on comparative constitutional law, human rights, and even individual rights under the U.S. Constitution.
March 2, 2010
Oral Arguments in McDonald
The Supreme Court heard oral arguments today in McDonald v. City of Chicago, the case challenging Chicago's handgun ban. As expected, the arguments focused on application of the Second Amendment to the states ("incorporation") and avoided the meaning of the Second Amendment (or any related unenumerated right), except insofar as the meaning drives the incorporation analysis.
Here are some of the highlights with additional thoughts:
The Second Amendment (or some portion of it) is Almost Certainly Incorporated.
James Feldman (for the respondent City of Chicago) faced skeptical questioning on his distinction between a right to self-defense (preexisting the Second Amendment) and the Second Amendment right to bear arms in order to protect against the federal government disarming the militia. Feldman argued that the right to self-defense--which, he argued, states traditionally have regulated--"had little to do with" the Second Amendment (quoting Heller). And the Second Amendment, with its militia clause, stands in a different relationship to the states than to the federal government. Heller addressed its relationship to the federal government; Feldman argued that nobody was, or is, concerned about the states disarming the militia--and that the right to bear arms for this purpose is not fundamental as against the states. He argued that this position is consistent with, even supported by, Heller itself. Without incorporation of the Second Amendment, Feldman argued, all that is left is the preexisting right to self-defense. But this has been traditionally regulated by the states and ought to be subject to the political process (and not fundamental rights claims).
Chief Justice Roberts, Justice Scalia, and Justice Alito all attacked Feldman's arguments from different angles. Chief Justice Roberts said it sounded awfully close to the losing argument in Heller. Justice Scalia took issue with Feldman's focus on the reason the Second Amendment was codified (to protect against the federal government interference with the militia), while ignoring the function of the Second Amendment (to protect an individual right to bear arms, as in Heller) and with Feldman's argument that nobody cares about states disarming militias. And Justice Alito, pressing Feldman on whether states could ban all firearms, seemed frustrated by a moving target--Feldman's seemingly inconsistent claims that states could not ban all firearms and that the right to keep and bear arms is not fundamental. (Feldman's point here was that such a complete ban would violate even the default rational basis review under Due Process.)
In short, at least three justices were hostile to Feldman's attempt to navigate between Heller and incorporation and seemed inclined to incorporate.
A fourth, Justice Kennedy, also seemed inclined to incorporate, but offered Feldman a way out, at least on the merits. Justice Kennedy suggested that the Court might incorporate the right to bear arms in Heller, but give states wide latitude in regulating the right--something like rational basis review. Others on the Court may be inclined to this position, as well (even Scalia, as suggested by the Heller decision itself). (Chief Justice Roberts also suggested this approach in a question to Clement.) This would mean a loss for Feldman on incorporation, but on the substance it would result in exactly what he advocated by way of a different route: deference to the political process.
The Court may Incorporate Only a Portion of the Second Amendment.
The justices spent a good part of the argument asking whether the Court might incorporate only a component of the Second Amendment (or a related unenumerated right), and not the whole thing. Justices Kennedy and Stevens pressed this issue the hardest, first asking Alan Gura (for petitioner McDonald) and then asking Paul Clement (for the NRA, which received permission to intervene to argue incorporation via the Due Process Clause) whether the Fourteenth Amendment "necessarily incorporates every jot and tittle of the Federal right." Justice Stevens offered the Sixth Amendment right to trial by jury in criminal cases as an example: That right, as incorporated against the states, requires only non-unanimous juries. Clement cast the Sixth Amendment right to a jury trial as an "outlier"--the only incorporated right in the Bill of Rights that applies to the states differently than it applies to the federal government--and maintained his position that the Due Process Clause incorporates the whole Second Amendment, and the Supreme Court caselaw that goes with it (now just Heller).
Next, Justice Alito asked Clement whether the Court shouldn't return to Justice Harlan's approach in Duncan v. Louisiana--an approach that would consider incorporating rights without necessarily considering each amendment as entirely "in" or "out."
Justice Breyer raised the issue by way of a "chart" of rights--that the right to bear arms may be more important for some reasons than for others. And those more important reasons may be incorporated, while the less important ones may not be.
Finally, Justice Kennedy returned to the issue with Feldman, asking him for "existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate . . . just the core of the Second Amendment . . . ."
These exchanges suggest that at least Justices Kennedy and Stevens (and possibly Alito, and more likely Breyer) may be open to applying the Second Amendment to the states in a different way than it applies to the federal government.
The Court is Almost Certain to Incorporate Via Due Process (and not P or I).
Several justices jumped on Gura's aggressive argument for incorporation via the Privileges or Immunities Clause, expressing concerns ranging from overturning the Slaughter-House Cases to uncertainty in incorporation doctrine to the unknown boundaries of the Privileges or Immunities Clause. Based on the questions, Gura's argument is almost surely a non-starter.
Gura's argument for incorporation via the relatively obscure Privileges or Immunities Clause was indeed--and perhaps necessarily--grand. At one point, Justice Scalia even joked that Gura must be angling for a law faculty position, given Gura's concession that he could just as easily get to incorporation via the much better developed Due Process route.
What seemed to trouble the justices most, however, was Gura's inability to define the outer boundaries of the Privileges or Immunities Clause. As a Court, they seemed unwilling to open this can of worms, even if it would allow them to undo an approach under the Slaughter-House Cases that is nearly universally considered incorrect.
Incorporation Looks to the Duncan Standard, American Style.
There was some back-and-forth beginning in Feldman's argument about the right standard for incorporation. Feldman argued that the Court should look to those rights that are "implicit in the concept of ordered liberty." Justice Scalia was quick to suggest that that standard was dated and defunct; and Chief Justice Robert qualified it by clarifying that whatever standard the Court applied, it was as to American values (and not some abstract notion of values). (This is not an innovation; it's clear from the Duncan formulation, below.)
Chief Justice Roberts specifically mentioned Duncan, and it seems likely that the Court will apply that standard: Is the right "among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' . . . 'basic in our system of jurisprudence,' and . . . a 'fundamental right, essential to a fair trial.'"
In all, the Court seems inclined to incorporate at least a core of a right to bear arms by way of the Due Process Clause of the Fourteenth Amendment. This is really the path of least resistance, it preserves the incorporation approach the Court has used, and it doesn't open up entirely new areas of unexplored territory. If the Court says anything about what the underlying right means, it seems to be leaning toward a deferential standard of review that would likely allow the states to do their work in issuing reasonable regulations of firearms.
CJ Roberts Denies Stay of DC Same-Sex Marriage
Acting as Circuit Justice for the DC Circuit, Chief Justice Roberts refused to grant a stay of DC's Religious Freedom and Civil Marriage Equality Amendment Act which allows same-sex marriage. The brief opinion Jackson v. District of Columbia Board of Elections and Ethics, issued today began by explaining:
Petitioners in this case are Washington D. C. voters who would like to subject the District of Columbia’s Religious Freedom and Civil Marriage Equality Amendment Act of 2009 to a public referendum before it goes into effect [citation omitted]. The Act expands the definition of marriage in the District to include same-sex couples. See D. C. Act 18–248; 57 D. C. Reg. 27 (Jan. 1, 2010). The D. C. Charter specifies that legislation enacted by the D.C. Council may be blocked if a sufficient number of voters request a referendum on the issue. [citation omitted].The Council, however, purported in 1979 to exempt from this provision any referendum that would violate the D. C. Human Rights Act. [citation omitted]. The D. C. Board of Elections, D. C. Superior Court, and D. C. Court of Appeals denied petitioners’ request for a referendum on the grounds that the referendum would violate the Human Rights Act. [see our previous post here].
Petitioners argue that this action was improper, because D.C. Council legislation providing that a referendum is not required cannot trump a provision of the D. C. Charter specifying that a referendum is required. They point out that if the Act does become law, they will permanently lose any right to pursue a referendum under the Charter. [citation omitted]. Petitioners ask the Court for a stay that would prevent the Act from going into effect, as expected, on March 3, 2010.
Roberts concluded that while this "argument has some force," and without "addressing the merits of petitioners’ underlying claim," a stay was not warranted. He reasoned:
First, as “a matter of judicial policy”—if not “judicial power”—“it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern.”
Second, the Act at issue was adopted by the Council and placed before Congress for the 30-day period of review required by the D. C. Charter. A joint resolution of disapproval by Congress would prevent the Act from going into effect, but Congress has chosen not to act. The challenged provision purporting to exempt certain D. C. Council actions from the referendum process, was itself subject to review by Congress before it went into effect. While these considerations are of course not determinative of the legal issues, they do weigh against granting petitioners’ request for a stay, given that the concern is that action by the Council violates an Act of Congress.
Finally, while petitioners’ challenge to the Act by way of a referendum apparently will become moot when the Act goes into effect, petitioners have also pursued a ballot initiative, under related procedures in the D. C. Charter, that would give D. C. voters a similar opportunity to repeal the Act if they so choose.
Order at 2-3 [citations omitted]. Roberts ended by noting that there would be a chance for the Court to consider the merits in the future: "the D. C. Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time."
So, for now, the United States Supreme Court has deferred deciding on constitutional challenges to same-sex marriage in DC.
March 1, 2010
Primer on Second Amendment, Incorporation
The National Law Journal ran four articles today that together make an excellent primer on McDonald v. Chicago, the Second Amendment case to be argued tomorrow at the Supreme Court.
Professor Saul Cornell (Fordham, American History) argues that "[g]un-rights advocates have peddled three dubious claims to the Court": the militia purpose disappeared by the time the Fourteenth Amendment was enacted; Republican supporters of the Fourteenth Amendment were "pro-gun zealots who opposed robust gun regulation"; and there was a general consensus on Second Amendment incorporation at the time of ratification of the Fourteenth Amendment. Cornell points to the split among the judges on Second Amendment incorporation in the 1870s case against the lynchers of Captain Jim Williams. He argues that "there is absolutely no evidence to suggest that anyone believed that the Fourteenth Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety, and that only those weapons related to militia activity and preservation were constitutionally protected. And he argues that the Court in tomorrow's case should look closely at John Bingham's public speeches defending the Fourteenth Amendment and stating that states would retain control over matters such as "personal security."
Timothy Sandefur (Pacific Legal Foundation) argues for incorporation via the Privileges and Immunities Clause (and for overturning the Slaughter-House Cases). (We posted most recently on incorporation via P and I here.) Sandefur argues that a ruling based on the Privileges and Immunities Clause "would signal a return to the amendment's original purpose" and open up constitutional space for claims protecting "economic freedoms" against "state and local bureaucrats."
Dennis Henigan (Brady Center to Prevent Gun Violence) argues that the right to bear arms is "the most dangerous right" and that the risks should lead the Court to defer to the states in fashioning restrictions. Henigan:
A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. . . .
Even if the Court decides to incorporate the Heller right, it should make explicit what was left implicit in Heller--that the unique risks associated with the exercise of the right to gun possession require that the courts show great deference to the elected representatives of the people in fashioning public policies to reduce those risks.
Finally, Professor Calvin Johnson (University of Texas Law) argues that access to original sources through digital searches helps us to see that "the Second Amendment cannot legitimately be applied against the states." Johnson mentions the Library of Congress web-site, A Century of Lawmaking, and gives this example:
Consider the 79 items from a Congressional Library site search for the word "militia" in Elliot's standard collection of the ratification debates. In those hits, "militia" is a synonym for state army controlled by the governor. Nothing from that list treats "militia" as just a group of able-bodied citizens. The opponents of the Constitution were worried that the federal government had too much power over the state militias. . . . [T]he Second Amendment is Madison's response to the Anti-Federalists' demand to preserve state power by preserving state militias.