Tuesday, July 2, 2013
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
[image DonkeyHotey via]
July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, June 28, 2013
In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain.
The first question is the status of Proposition 8. Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed. Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad:
"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).
Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144.  [10-16696, 11-16577].
One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what? That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored." He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”
The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer? Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf argues that the lack of opinions matters:
By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause. After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.
It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.
There are certainly more questions raised by Windsor and Perry, but these two are central.
June 28, 2013 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)
Thursday, May 9, 2013
What is Chinese constitutionalism? Larry Catá Backer's new article, Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism, available on ssrn, not only provides answers to that query, but develops the topic in sophisticated and important ways. As Backer (pictured right) notes,
The Chinese constitutional system does not imitate those of other developed states, because it political ideology is grounded in Marxist Leninism which suggests a different relationship between the state, the people and the manner of exercising political and economic power, which over the course of nearly a century suggested what Western theorists generally viewed as the anti-constitutionalism of Soviet Stalinism and its variants.
But Backer is not content with such simplistic dismissals. Instead, exploring the arguments of Chinese LawProf Jiang Shigong (pictured left), Backer traces different strands of Chinese constitutionalism within the context of Chinese culture and society and their possibilities for development. Backer notes that the "critical distinction for Jiang between Chinese and Western constitutionalism lies in the willingness to fold a Party-State system within notions of substantive constitutionalism—not just in terms of legitimacy but also in terms of providing a foundation for building a governmental apparatus that provides for its people in a way functionally equivalent to that in Western democracies."
For ConLaw comparativists, Backer's article is essential reading: it situates Chinese constitutionalism in global contexts and more importantly, evaluates its various aspects in comparison to each other. For ConLawProfs who may not consider themselves comparativists, Backer's article may be even more essential. Backer's exploration is theoretically sophisticated, nuanced, and guaranteed to enrich any reader's thinking about the role of any constitution in any nation, including the United States.
Monday, April 22, 2013
Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?
ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).
Abrams argues for a something less than a wholesale exception:
The expression, “cabined,” is meant to signify not extending all the way up the ladder of police interrogation methods, but only applying to a limited, non - extreme set of interrogation methods, albeit methods that under current law might lead to a determination of involuntariness. A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as established by the Supreme Court, but only up to a point, and not to the point where the methods used are extreme.
For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling. But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.
Thursday, April 18, 2013
Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas. Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause.
Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review. Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights. Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.
Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?" Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.
Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay.
April 18, 2013 in Books, Due Process (Substantive), Equal Protection, Gender, History, Race, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)
Monday, April 8, 2013
Greenhouse has this reminder about federalism and family law:
There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)
Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.
Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”
As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.
April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)
Thursday, March 28, 2013
In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn. Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory."
Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness. Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights." But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level. Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.
Ultimately, Hutchinson concludes that the present scholarly and judicial discourse
fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.
Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection. Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.
March 28, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Interpretation, Profiles in Con Law Teaching, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 13, 2013
The controversies surrounding the Court's impending decision in Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement." Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."
In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations. She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.
Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments. She ultimately contends "that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments."
Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.
Tuesday, February 19, 2013
The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings. Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks.
For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics. Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose. Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.
And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read.
Friday, February 15, 2013
Sean Wilson (pictured) provides a compelling view of constitutional interpretation in his new book, The Flexible Constitution. His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning. Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality. (p. 83).
Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution." This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.
Thursday, February 14, 2013
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Ronald Dworkin, renowed legal philosopher who influenced generations of legal scholars, has died.
Todays' NYT obituary calls Dworkin "a legal philosopher and public intellectual of bracingly liberal views who insisted that morality is the touchstone of constitutional interpretation."
UK's Guardian obituary says that through his "sheer intellectual brilliance and a formidable capacity for work," Dworkin managed "to be both a consummate scholar's scholar and a lawyer's lawyer," while nevertheless enjoying himself.
Tributes will undoubtedly follow.
Friday, January 25, 2013
According to Swaminathan, India, like some other former British colonies, faced a problem at independence: the authority for its constitution came directly from Parliament, in the form of an Independence Act and Parliament-authorized Constituent Assembly. As such, "the imperial predecessor's Constitution would have remained at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as 'legal' by the Constitution of the imperial predecessor."
India had to do something to break this chain. So, like Ireland, Pakistan, Sri Lanka, and Ghana before it, India waged a "benign legal revolution," that is, the country deliberately incorporated "procedural errors" into its own constitution. Swaminathan explains:
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act of 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act--something the Constituent Assembly did not have authorisation to do.
The errors broke the chain between India's new post-colonial constitution and Britain, thus ensuring that Parliament could not reassert its authority and creating a truly autochthonous constitution of We the People.
The United States, of course, did not have to wage a benign legal revolution to break its chain with Britain, because it was born in armed revolution.
Friday, January 11, 2013
Ron Collins' new book, Nuanced Absolutism: Floyd Abrams and the First Amendment centers lawyering in the development of doctrine and theoretical perspectives of constitutional law.
Collins argues that "nuanced absolutism" has become a tenet of First Amendment doctrine that has taken on new life in the decisional law of the Roberts Court, and has been notably argued by Floyd Abrams in a series of cases.
For anyone interested in the First Amendment, this is a must read.
Wednesday, January 2, 2013
We are used to speaking about the Constitution as a "binding document" and a less used to thinking about it as bondage. Thus, ConLawProf Louis Michael Seidman's op-ed in the NYT entitled "Let's Give Up on the Constitution" has been causing a bit of a stir, especially among ConLaw students and some profs.
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
Yet this seems to be more of a critique of originalism than constitutionalism. And interestingly, Seidman appeals to originalism to support his ultimate argument:
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.
Seidman's new book, Constitutional Disobedience, will presumably expand these ideas further. But for today, the op-ed is an interesting read.
Friday, December 7, 2012
Revolution and Pragmatism? Aren't they oppositional concepts, and indeed, opposing realities?
Mark Kende (pictured) argues that we shouldn't be so sure. In his article, Constitutional Pragmatism, The Supreme Court, and Democratic Revolution, forthcoming in Denver University Law Review and available in draft on ssrn, Kende demonstrates that the usual conceptions of "pragmatism" are incomplete. He advances several types of pragmatic impulses that are consistent with the US constitutional revolution and subsequent jurisprudence such as "common sense,transitional, political, democratic, economic, empirical, common law,flexible, critical, and comprehensive pragmatism." He also discusses the types of constitutional pragmatism that are less consistent with revolution: prudential and efficiency-oriented pragmatism.
Kende aims to provide a typology of pragmatism, as a grounding for considering "constitutional pragmatism more intelligently, as well as see its complexity and ubiquity." For Kende, it is pragmatism - - - rather than originalism or living constitutionalism - - - that has the most descriptive, and perhaps prescriptive power.
Kende's article is an excellent intervention in the ongoing debates of constitutional interpretation.
Friday, November 30, 2012
As the news is filled with the expected decision from the United States Supreme Court on whether - - - and if so, in what constellation - - - to grant certiorari on the issue of same-sex marriage, including both Proposition 8 and DOMA, Lyle Denniston's excellent discussions at SCOTUSBlog are a welcome resource.
But equally vital is Tobias Barrington Wolff's recent brief remarks, to be as an essay in Fordham Law Review entitled Collegiality and Individuality Dignity, and available on ssrn, that discusses the more personal aspects of the issues for some ConLawProfs.
Wolff (pictured) explores the "deep tension that exists for LGBT scholars and lawyers who work" on issues of same-sex marriage and other sexuality issues, "between principles of collegiality and basic principles of individual and human dignity." For example, "there is this seeming willingness on the part of antigay advocates to go around calling LGBT people unfit parents, and to expect to be treated with courtesy in response. I’ve been doing this for a dozen years, and I have to tell you, in very personal terms: I’m getting a little tired of being courteous in response to this kind of argument."
I’ll just say quickly: One can refuse to engage with these arguments and the people who make them, which is a choice that some LGBT scholars make and is a choice that has obvious costs associated with it. One can continue engaging in a collegial fashion, which is the choice that I have made for most of my career, but carries serious individual costs. Or one can engage with a somewhat sharper- edged critique of the nature of the arguments that are being made, which is part of what, of course, I am doing today, which has its own set of costs and disruptions of the normal collegial atmosphere about it. I acknowledge that.
But I think that the impact upon the individual dignity of LGBT scholars from having to confront these ugly, ugly arguments over and over again is something that needs to be acknowledged as one of the central, central dynamics that warrants attention in conversations about these issues.
Wolff's worth-reading essay is situated in the context of scholarly discourse, but many ConLawProfs experience similar dynamics in the classroom. How do we discuss these arguments and issues without assaulting each other's dignity?
Wednesday, November 28, 2012
The central argument of ConLawProf Allen Rostron's article, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, published at 80 George Washington Law Review 703 (2012), and available in draft on ssrn, received further validation with yesterday's Second Circuit opinion upholding a New York law restricting concealed carrying of firearms in public.
Rostron (pictured) considers the range of lower court decisions resulting from challenges to state and local firearm regulations made possible by the Court's recent Second Amendment decisions. Heller v. District of Columbia, the first "battle" in the gun wars, recognized a Second Amendment right beyond the militia, and in the second battle of 2010, the Court in McDonald v. City of Chicago, incorporated this right to the states through the Fourteenth Amendment. However, in neither "battle" did the Supreme Court specify what level of scrutiny or test should be used to assess the validity of gun laws under the Second Amendment, leaving the lower courts to struggle with this issue.
Rostron's contribution is his engagement with the third "battle": the interpretation and application of Heller and McDonald in the lower courts. He argues that the third phase of the fight over the right to keep and bear arms is moving toward an unusual result, with these decisions reflecting the "pragmatic sentiments of Justice Breyer’s dissenting opinions in Heller and McDonald," rather than the majority, plurality, or concurring opinions that are long on history and rhetoric and short on doctrine or guidance.
Rostron is candid about his own preferences and equally candid that the politics or doctrine could shift, including the Court's grant of certiorari in an additional case in order to promulgate a strict scrutiny standard. For now, however, Rostron's compelling article demonstrates that Breyer's dissent operates in many ways as a majority opinion.
Of course, if Breyer's view had prevailed in the controversial 5-4 decisions in Heller and McDonald, the federal courts would not be busily adjudicating these Second Amendment challenges.
Tuesday, November 27, 2012
Second Circuit on Second Amendment: New York's Gun Licensing Limitation for Concealed Handguns Is Constitutional
In a unanimous opinion today, a Second Circuit panel in Kachalsky v. County of Westchester upheld New York's requirement that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense under New York Penal Law section 400.00(2)(f).
Affirming the district judge, the panel interpreted the Supreme Court's controversial Heller v. District of Columbia 2008 decision, as well as the subsequent McDonald v. City of Chicago opinion holding that the Second Amendment right recognized in Heller was incorporated to the states through the Fourteenth Amendment. (Recall that four Justices in McDonald ruled incorporation was through the due process clause, with Justice Thomas concurring in the result, but contending incorporation occurred through the privileges or immunities clause).
One of the issues left open by Heller and McDonald was the level of scrutiny to be applied to gun regulations. The plaintiffs, represented by Alan Gura, familiar from both Heller and McDonald, argued that strict scrutiny should apply. In rejecting strict scrutiny, the Second Circuit panel emphasized that the New York regulation at issue was not within the core interest protected by the Heller Court's interpretation of the Second Amendment - - - self-defense within the home - - - but was a limitation of concealed weapons permits to those who could demonstrate a "special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." The panel also rejected the plaintiffs' argument that the concealed carry permits were akin to prior restraint under the First Amendment. The court stated, "“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence. Indeed, no court has done so.” (emphasis in original). Later in the opinion, the court provided an even more convincing argument:
State regulation under the Second Amendment has always been more robust than of other enumerated rights. For example, no law could prohibit felons or the mentally ill from speaking on a particular topic or exercising their religious freedom.
Recall that even the majority opinions in Heller and McDonald maintained that prohibiting felons or the mentally ill from possessing guns was consistent with the Second Amendment.
The Second Circuit decided that "intermediate scrutiny" was "appropriate in this case": "The proper cause requirement" of the New York law "passes constitutional muster if it is substantially related to the achievement of an important governmental interest."
The substantial (and indeed compelling) governmental interests were "public safety and crime prevention," as the parties seemed to agree. As to the substantial relationship, the court noted that the "legislative judgment" surrounding these issues was a century old and that the proper cause requirement was a "hallmark" of New York's handgun regulation since then. The court also noted that the law was not a ban, but a restriction to those persons who have a reason to possess a concealed handgun in public. New York did submit more current studies, and the court credited these even as it stated that the decision was clearly a policy one for the legislature. Heller did not, the court ruled, take such "policy choices off the table."
The Second Circuit's opinion is doctrinally well-reasoned, but also a deliberate engagement with the history of gun regulation. In the very beginning of its analysis, the opinion states
New York’s efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder.
The court returns again and again to the history, in New York and elsewhere, even as it reiterates that history does not answer the question.
[image" The Knotted Gun," sculpture in NYC outside UN, via].
Saturday, November 24, 2012
Judge J. Harvie Wilkinson III (4th Cir.) argues in Cosmic Constitutional Theory: Why Americans Are Losing Their Inaliable Right to Self-Governance that the proliferation of constitutional theories in recent decades is undermining judicial restraint, handing judges the keys to our democracy, and ultimately leading to the loss of self-governance. Judge Wilkinson's point is this: comprehensive constitutional theories (of constitutional interpretation, of judging) empower judges, even when they're designed not to, and thus undermine a necessary feature of our government, judicial restraint. Judicial empowerment comes at a cost to the democratic branches, and thus to self-governance itself.
Cosmic Constitutional Theory, part of Oxford's Inaliable Rights Series, surveys the "grand and unifying" constitutional theories--living constitutionalism, originalism, political process theory, textualism, minimalism, cost-benefit pragmatism, active liberty, and moralism--and argues that they have empowered judges at the expense of the democratic branches. Judge Wilkinson explains:
No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us. The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.
Indeed, the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results. In short, cosmic constitutional theory has done real damage to the rule of law, the role of courts in our society, and the ideals of restraint that the greatest judges in our country once embraced. But the worse damage of all has been to democracy itself, which theory has emboldened judges to displace.
And at another point:
Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory's triumphal rise. The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts' eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious.
But Judge Wilkinson only weakly argues for judicial restraint, almost taking the point for granted. And it's hard to see where he draws the line between a properly restrained court and an inappropriately activist one. Consider this passage, distinguishing between "major activist decisions" and certain contemporary cases:
Major activist decisions of the Warren Court . . . have rightly stood the test of time, and that success doubtless strengthens the belief of today's interventionists that tomorrow may smile on their bolder efforts too.
They are wrong. Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born. One can debate the precise reach of eminent domain or regulatory takings or the value of same-sex marriage or the utility of firearms regulation without believing that our Constitution is bereft of meaning if one's own beliefs are not embodied there.
Judge Wilkinson's solution is not a new theory. He declines to advance one. Instead, he argues for a kind of judicial restraint and deference to the political branches that he says is best represented by the work of Justices Holmes, Brandeis, Frankfurter, Harlan, and Powell. According to Judge Wilkinson, "Their examples show that one can be a great justice without expounding a grand theory."