Wednesday, December 30, 2009

"Radicals In Their Own TIme" - Introduction & Selected Excerpts

I've just posted here the Introduction and excerpts from three chapters in my forthcoming book (Cambridge University Press), "Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America," on my Berkeley Press Selected Works page (

Here are the first few paragraphs from the Introduction:

In teaching history, there should be extensive discussions of personalities who
benefited mankind through independence of character and judgment.
-Albert Einstein, 1953

America in the twenty-first century exists in a perpetual Dickensian sort-of “best
of times, worst of times” state when it comes to putting into practice the sacred principles
of liberty and equal justice. On one hand, the once-unthinkable occurred in November
2008 when the nation – a land that had permitted and promoted human slavery for more
than half of its four hundred year history - elected an African-American man president.
The symbolic importance alone of placing Barack Obama at the pinnacle of power in the
United States, given its sordid past practices, cannot be understated. Yet, on the very
same day, a majority of voters in the most populous state in the union, California, voted
to deny thousands of their fellow citizens, gay Americans, the equal right to marry. The
California experience is only one of numerous legislative-judicial struggles beginning to
play out on the issue of gay marriage in other states around the nation.

Taking the long view, if history is any guide (and it is), there is little doubt the
discriminatory laws against gay marriage will eventually end up on history’s scrapheap.
The current battles will soon go the way of those of some fifty years ago involving
interracial marriage, during which one Virginia trial court, in upholding the state’s antimiscegenation statute, reasoned: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference
with his arrangement there would be no cause for such marriages. The fact that he
separated the races shows that he did not intend for the races to mix.” Most Americans
today would view such language with a mixture of shock and disbelief - but it was not
long ago that legislative majorities in sixteen states gave official voice to such ignorant

Fifty years from now, the current arguments against gay marriage will seem
similarly archaic. As the Reverend Martin Luther King, Jr. limned, “the arc of the moral
universe is long; but it bends toward justice.” For all its faults, the United States
Constitution has, over time, provided a one-way ratchet toward greater, not lesser, liberty
and equal justice – every constitutional amendment but one (the eighteenth, itself
repealed by the twenty-first just fifteen years later), for example, has, if anything,
expanded Americans’ freedoms.

America’s story is remarkable: a Nation, sprouting from the seeds of
Enlightenment principles where “tolerance was a moral virtue, even a duty; no longer
merely the prerogative of calculating monarchs, but a fundamental element of the ‘rights
of man.’” For the first time in history a people - coming together toward the common
goal of liberty and equal justice, and clearly cognizant of human nature’s split personality
between good (freedom) and evil (tyranny and oppression) - created a government
explicitly designed to resolve the tension in favor of freedom.

That is the myth, anyway. But all is not well in the land of milk and honey; for
America’s constitutional structure has failed to thwart government’s moves to the darker
side: its shameful history of slavery and apartheid; its past oppression of women; its
systematic subjugation of Native Americans in violation of sacred treaty promises; its
pervasive discrimination against immigrants and homosexuals; and, among other currentday
repressions, its curtailments of civil liberties and inexcusable use of torture in the ill-considered “war on terror.” Consider also American geopolitics of the last hundred years: World War I Censorship (Congress’s and President Wilson’s 1917-1918 Espionage and Alien Acts imposing egregious punishments on political speech); World War II Nativism (the President’s authorizing the military to force 120,000 people of Japanese ancestry, two-thirds of them American citizens, from their homes and to quarantine them in internment camps for nearly three years; Cold War McCarthyism (powerful committees of both the United States Senate and House of Representatives conducting modern-day witch-hunts of thousands of American citizens accused of having communist sympathies); and Millennial Cheneyism (the executive branch aggressively
exceeding long-accepted constitutional limits on its power - even while operating in a
system that separates powers in order to provide checks and balances on each co-equal

In each case, prejudice, greed, and political expediency took hold before being
beaten back – for the time being. It is a constant struggle. As much as America has
accomplished in advancing humankind’s perpetual quest for greater Freedom, it has
never completely lived up to its own promise, for whatever reason – whether because of
bitter class wars (Howard Zinn), its economically-motivated Constitution (Charles
Beard), or some combination of these or other factors.

Which viewpoint more accurately describes the true America - the mythic
common-interest pursuit-of-equal-liberty view; the grittier class-warfare explanation; or
the more cynical economic-interest rationale? The reality is that there are elements of
accuracy in each. And it is useful to keep them all in mind: Lest we become swept-up in
misty patriotic myth, we should recall America’s ignoble history of injustices and
intolerance; or, conversely, lest we lose hope, we should remember that the myth and
partial reality of America as beacon of freedom has for centuries truly inspired millions
around the world. In the end, the goals represented in the positive myth are worth
fighting for, both idealistically and practically, for they advance our individual and
collective humanity – and offer a model of ambition, idealism and hope for future

Friday, December 25, 2009

Senate Passes Health Care Insurance Reform - Reflections

Paul Krugman's column in today's New York Times, "Tidings of Comfort," offers a cogent evaluation of the Senate's momentous passage yesterday of Health Insurance Reform. Commenting that the legislation "will make America a much better country," Krugman divides its critics into three categories:

"First, there’s the crazy right, the tea party and death panel people — a lunatic fringe that is no longer a fringe but has moved into the heart of the Republican Party. In the past, there was a general understanding, a sort of implicit clause in the rules of American politics, that major parties would at least pretend to distance themselves from irrational extremists. But those rules are no longer operative. No, Virginia, at this point there is no sanity clause.

"A second strand of opposition comes from what I think of as the Bah Humbug caucus: fiscal scolds who routinely issue sententious warnings about rising debt. By rights, this caucus should find much to like in the Senate health bill, which the Congressional Budget Office says would reduce the deficit, and which — in the judgment of leading health economists — does far more to control costs than anyone has attempted in the past.

"But, with few exceptions, the fiscal scolds have had nothing good to say about the bill. And in the process they have revealed that their alleged concern about deficits is, well, humbug. As Slate’s Daniel Gross says, what really motivates them is 'the haunting fear that someone, somewhere, is receiving social insurance.'

"Finally, there has been opposition from some progressives who are unhappy with the bill’s limitations. Some would settle for nothing less than a full, Medicare-type, single-payer system. Others had their hearts set on the creation of a public option to compete with private insurers. And there are complaints that the subsidies are inadequate, that many families will still have trouble paying for medical care.

"Unlike the tea partiers and the humbuggers, disappointed progressives have valid complaints. But those complaints don’t add up to a reason to reject the bill. Yes, it’s a hackneyed phrase, but politics is the art of the possible.

"The truth is that there isn’t a Congressional majority in favor of anything like single-payer. There is a narrow majority in favor of a plan with a moderately strong public option. The House has passed such a plan. But given the way the Senate rules work, it takes 60 votes to do almost anything. And that fact, combined with total Republican opposition, has placed sharp limits on what can be enacted.

"If progressives want more, they’ll have to make changing those Senate rules a priority. They’ll also have to work long term on electing a more progressive Congress. But, meanwhile, the bill the Senate has just passed, with a few tweaks — I’d especially like to move the start date up from 2014, if that’s at all possible — is more or less what the Democratic leadership can get.

"And for all its flaws and limitations, it’s a great achievement. It will provide real, concrete help to tens of millions of Americans and greater security to everyone. And it establishes the principle — even if it falls somewhat short in practice — that all Americans are entitled to essential health care.

"Many people deserve credit for this moment. What really made it possible was the remarkable emergence of universal health care as a core principle during the Democratic primaries of 2007-2008 — an emergence that, in turn, owed a lot to progressive activism. (For what it’s worth, the reform that’s being passed is closer to Hillary Clinton’s plan than to President Obama’s). This made health reform a must-win for the next president. And it’s actually happening.

"So progressives shouldn’t stop complaining, but they should congratulate themselves on what is, in the end, a big win for them — and for America."

Tuesday, December 15, 2009

McDonald v. Chicago - Law Professors' Amicus Brief

A few weeks ago, after the submission of the Petitioners' Brief in the McDonald v. Chicago case in the U.S. Supreme Court (on which I posted previously), a group of eight law professors - including Professors Richard Aynes (Akron), Jack Balkin (Yale), Randy Barnett (Georgetown), Steven Calabresi (Northwestern), Michael Curtis (Wake Forest), William Van Alstyne (William & Mary), Adam Winkler (UCLA) and I - submitted an amicus brief on the case through the Constitutional Accountability Center (CAC).

The brief is available here.

Thursday, December 10, 2009

Obama Approach to Governing; Afghanistan Policy

David Ignatius's Washington Post column today, "More Than an Orator-in-Chief," provides an intriguing take on President Obama's approach to governing.

Ignatius reports that at a Dec. 1 luncheon for columnists in the White House library, Obama said:

"'If I were basing my decisions on polls, then the banking system might have collapsed, and we probably wouldn't have GM or Chrysler, and it's not clear that the economy would be growing right now.'" "Some presidents have an almost compulsive need to be popular (think Bill Clinton)," Ignatius continues. "This one is less needy, which is an advantage for him and the country."

Regarding the president's planned surge in Afghanistan, Ignatius comments, "there were the two juicy nuggets that stuck in my mind, which hint of a broader and more creative approach to governing and diplomacy. They suggest the strategic thinking in the back of our professorial president's mind....

[First, Obama said:] 'Part of the goal of my presidency is to take the threat of terrorism seriously but expand our notions of security so that it includes improving our science and technology, making sure our schools work, getting serious about clean energy, fixing our health-care system, stabilizing our deficit and our debt.' This may sound like boilerplate, Ignatius suggests, "but it's actually a pretty good manifesto for governing."

"Making responsible policy decisions isn't easy, and in the case of bailing out bankers or sending more troops to Afghanistan, it will leave nearly everyone unhappy. But Obama seems newly comfortable making enemies if he thinks he's doing the right thing."

The second insight involves the role of the Taliban. Responding to Ignatius's question about whether he would back reconciliation with the Taliban, Obama said: "'We are supportive of the Afghan government's efforts to reintegrate those elements of the Taliban that . . . have abandoned violence and are willing to engage in the political process.'

"Obama sent more signals that night at West Point: He dropped the language from his March 27 speech on Afghanistan insisting the Taliban's core 'must be defeated' and promised only to 'reverse the Taliban's momentum and deny it the ability to overthrow the government.' He also pledged to 'support efforts by the Afghan government to open the door to those Taliban' who are ready to make peace.

"The Taliban gave an interesting response a few days later on its Web site, It said the group 'has no agenda of meddling in the internal affairs of other countries and is ready to give legal guarantee if the foreign forces withdraw from Afghanistan.' Now, what did that mean? Was it a hint the Taliban might break with al-Qaeda? I don't know, but I hope the White House is asking Saudi Arabia and Pakistan to find out."

Ignatius concludes: "Obama has a cool and detached style that makes people forget, sometimes, that he is an innovator and a change agent. He would be wise to show the country less of the mental teleprompter and more of the fire inside."

Tuesday, November 24, 2009

Something on Which We Can All Agree - Less Government in Criminal Justice

At last - something on which the right and left can agree....

In "Right and Left Join Forces on Criminal Justice," Adam Liptak describes how both conservatives and liberals are coming around to a position of agreement that government exercises too much power on matters of criminal justice. (The notion of excessive government power is something I've discussed here previously.)

It is great news for all libertarians - civil, progressive, minimalist alike - that conservatives are coming around from their "tough-on-crime" posture they've held since the days of Nixon, to recognizing that government simply too involved in criminalizing individual activity.

Liptak reports:

"'It’s a remarkable phenomenon,' said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. 'The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.'"

"Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

"Mr. Meese once referred to the ACLU as part of the 'criminals’ lobby.' These days, he said, 'in terms of working with the ACLU, if they want to join us, we’re happy to have them.'

"Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“'The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,' Mr. Thornburgh said. 'Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the ACLU.'"

A Heritage Foundation report shows that there are "more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent."

Liptak continues: "Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, 'Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

"The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“'Libertarians and the civil liberties left have always had some common ground on these issues,' said Radley Balko, a senior editor at Reason, a libertarian magazine. 'The more vocal presence of conservatives on overcriminalization issues is really what’s new.' ... 'Conservatives now recognize the economic consequences of a criminal justice leviathan,' said Erik Luna, a law professor at Washington and Lee University."

It is a rarity for folks from across the political spectrum to find common ground; but it is encouraging that there seems to be some broadening agreement on lessening the proliferation of criminal statutes.

Wednesday, November 18, 2009

McDonald v. Chicago - Petitioner's Brief

The Petitioner's Brief in the McDonald v. Chicago case, involving whether the 2d Amendment applies to the states, has been filed in the Supreme Court. See it here.

The brief spends 66 of its 73 pages arguing that the proper constitutional mechanism for incorporating the 2d amendment is the fourteenth amendment privileges or immunities clause (a provision that was improperly buried by the Supreme Court 136 years ago, in The Slaughter-House Cases - as I've discussed in these pages previously); then makes the conventional due process argument in the remaining pages.

Alan Gura, the attorney for the petitioners, recognizes the rare opportunity this case provides to right a monumental wrong that was perpetrated by a Southern-sympathetic Court after the Civil War, and he's done a terrific job making the arguments in this brief.

(My two articles on this topic - "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" (in the 2007 Missouri Law Review); and "Rescuing the Privileges or Immunities Clause: How 'Attrition of Parliamentary Processes' Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" (in the forthcoming 2009 William & Mary Bill of Rights Journal) - are cited in this petitioner's brief at pages 29 and 52, respectively.)

Thursday, November 12, 2009

Destroy the Filibuster

Anybody besides me disgusted and discouraged with the healthcare debate?

Don't get me started.... Let's just limit the topic for the moment to the entire idea that 41 senators can essentially destroy legislation a majority of Americans AND a majority of Congress want. This is egregiously anti-democratic. Harold Meyerson in his "The Do Nothing Senate" column in the Nov. 11 Washington Post describes the problem well:

"A catastrophic change has overtaken the Senate in recent years. Initially conceived as the body that would cool the passions of the House and consider legislation with a more Olympian perspective, the Senate has become a body that shuns debate, avoids legislative give-and-take, proceeds glacially and produces next to nothing. ... With each passing day, the Senate becomes more of a mockery of the principle of majority rule -- democracy's most fundamental precept."

So it's time to destroy the filibuster. (See, e.g., Chris Bowers' "Open Left" blog of November 10.) It used to be that the filibuster was used only rarely; now it is used on virtually any legislation - and this outrageously undemocratic practice is standing in the way of Progress.

Wednesday, October 28, 2009

Free Radicals - Individual Efforts Can Change the World

The premise of my forthcoming book from Cambridge University Press, Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America,* is that the efforts (mostly unwelcomed, at the time) of certain individuals throughout the nation's history have played huge roles in first identifying, then guaranteeing the freedoms we enjoy today. In this book I focus on the lives of five so-called "free radicals": Roger Williams, Thomas Paine, Elizabeth Cady Stanton, W.E.B. Du Bois and Vine Deloria.

Yesterday's column by Bob Herbert in the NY Times, "Changing the World," speaks to the mind-set of these sorts of people:

"The tendency now is to assume that there is little or nothing ordinary individuals can do about the conditions that plague them.

"This is so wrong. It is the kind of thinking that would have stopped the civil rights movement in its tracks, that would have kept women in the kitchen or the steno pool, that would have prevented labor unions from forcing open the doors that led to the creation of a vast middle class....

"Being an American has become a spectator sport. Most Americans watch the news the way you’d watch a ballgame, or a long-running television series, believing that they have no more control over important real-life events than a viewer would have over a coach’s strategy or a script for 'Law & Order.'

"With that kind of attitude, ... Rosa Parks would have gotten up and given her seat to a white person, and the Montgomery bus boycott would never have happened....

"The nation’s political leaders and their corporate puppet masters have fouled this nation up to a fare-thee-well. We will not be pulled from the morass without a big effort from an active citizenry, and that means a citizenry fired with a sense of mission and the belief that their actions, in concert with others, can make a profound difference.

"It can start with just a few small steps. Mrs. Parks helped transform a nation by refusing to budge from her seat. Maybe you want to speak up publicly about an important issue, or host a house party, or perhaps arrange a meeting of soon-to-be dismissed employees, or parents at a troubled school.

"It’s a risk, sure. But the need is great, and that’s how you change the world."

Individuals like Williams, Paine, Cady Stanton, Du Bois and Deloria had plenty of reason to be discouraged - and they sometimes were, to the point of despondency. They bent, but they didn't break - and they ended up changing the world.

Who will be the free radicals remembered from our current era?

* Release date: summer/fall 2010

Tuesday, October 27, 2009

Kudos to Harry Reid for Including Public Option in Proposed Health Care Bill

Yesterday's announcement by Senate Majority Leader Harry Reid that he will include a government-run insurance plan (a public-option) in the health care bill that will now be debated in the Senate is excellent news.

Contrary to naysayers' arguments, including a public option does nothing to limit the ability of private insurers to compete - unless by "competition" one means the ability to impose unfair conditions on customers because they have nowhere else to turn under the current oligarchy.

The bottom-line is that a government-run public option would keep the private insurers honest, resulting in better, less expensive coverage for all.

Now the Democrats need to put aside their differences to get behind and pass a plan with the public option. One interesting aspect of Reid's proposal would allow individual states to "opt-out," & refuse to participate in the public option - a perfectly reasonable provision that respects America's federalist structure. This could lead to a very interesting side-show in the states - how many citizens would vote with their feet and leave states that opted out??

Sure, it would be nice if a Republican or two (or even more) would take off their partisan blinders for a moment and consider what Americans truly want and need instead of playing the same old politics, but given the experience of the recent past we won't hold our breath - so now it's up to the Senate Democrats to do the right thing and pass this bill.

Saturday, October 24, 2009

Obama Needs to Take Stands on Principle

In her column last Sunday, "Fie, Fatal Flaw," Maureen Dowd makes a good point that President Obama does not want to compromise so much that his ideals get blurred out of recognition.

Quoting Leon Wieseltier in the New Republic, she comments: “'The demotion of human rights by the common-ground presidency is absolutely incomprehensible. The common ground is not always the high ground. When it is without end, moreover, the search for common ground is bad for bargaining. It informs the other side that what you most desire is the deal — that you will never acknowledge the finality of the difference, and never be satisfied with the integrity of opposition. There is a reason that ‘uncompromising’ is a term of approbation.'"

Dowd continues, "F.D.R. asked to be judged by the enemies he had made. But what of a president who strives to keep everyone in some vague middle ground of satisfaction or dissatisfaction, without ever offending anyone?

"F.D.R. asked to be judged by the enemies he had made. But what of a president who strives to keep everyone in some vague middle ground of satisfaction or dissatisfaction, without ever offending anyone?

"White House advisers don’t seem worried yet that Obama’s transformational aura could get smudged if too much is fudged. They say it is the normal tension between campaigning on a change platform and actually accomplishing something in office.

"Yet Obama’s legislative career offers cautionary tales about the toll of constant consensus building.

"In Springfield, he compromised so much on a health care reform bill that in the end, it merely led to a study. In Washington, he compromised so much with Senate Republicans on a bill to require all nuclear plant owners to notify state and local authorities about radioactive leaks that it simply devolved into a bill offering guidance to regulators, and even that ultimately died. Now the air is full of complaints that Obama has been too cautious on health care, Afghanistan, filling judgeships, ending “don’t ask, don’t tell,” repealing the Defense of Marriage Act and rebuilding New Orleans; that he has conceded too much to China, Iran, Russia, the Muslim world and the banks."

For the President to fulfill his promise, every now and then he needs to take a stand on core principle - especially when we're talking about human rights. But Obama appears to be all-too-ready to compromise even there. As 73-year old former Czech president Vaclev Havel said recently about Obama's caving to Chinese dictators by failing to meet with the Dalai Lama during his recent visit to Washington, “It is only a minor compromise. But exactly with these minor compromises start the big and dangerous ones, the real problems.”

Wednesday, September 30, 2009

Huge News - Supreme Court Grants Certiorari in McDonald v. Chicago re: Privileges or Immunities

Word just in that the U.S. Supreme Court has granted certiorari in (i.e., decided to hear) the McDonald v. Chicago case discussed here previously - and, most importantly, did not appear to have limited the arguments to due process, as Chicago had suggested.

Specifically, here's how the issue is framed in today's order (scroll down to Docket No. 08-1521): "Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."

Please forgive the momentary gloat, but this is precisely the question raised (which my thesis answers in the affirmative) in my 2007 Missouri Law Review article, entitled (in language virtually identical to the Court's stated issue): "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses."

So, the Privileges or Immunities argument we've been pushing, for so long, is ON in the Supreme Court. This is huge.

Monday, September 28, 2009

Nordyke v. King Rehearing

Last Thursday the Ninth Circuit Court of Appeals re-heard oral arguments in the case of Nordyke v. King (discussed here previously), regarding whether the Fourteenth Amendment incorporates the Second Amendment to apply to the states.

As reported Friday on the Constitutional Accountability Center's "Text and History Blog,"

"Just a few hours after the 11-judge en banc panel heard argument, Chief Judge Alex Kozinski issued an order holding off on further consideration of the case until the Supreme Court disposes of three outstanding petitions for certiorari in similar cases –McDonald v. City of Chicago (No. 08-1521), in which CAC [and law professors Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Michael Lawrence, and Adam Winkler] filed an amicus brief urging Supreme Court review; National Rifle Ass’n v. City of Chicago (No. 08-1497), the companion case to McDonald, also out of the Seventh Circuit; and Maloney v. Rice, (No. 08-1592), the comparable New York “numchucks” case coming out of the Second Circuit. All three of these petitions present challenges to local laws restricting the sale or possession of arms, and are asking the Court to determine whether, and if so how, the individual right to bear arms is “incorporated” against state and local action.

"These three petitions are currently scheduled to be considered at the Supreme Court’s so-called “long conference” on September 29. The Court is expected to announce its decision on whether to hear the cases soon thereafter.

"The Ninth Circuit’s action suggests that the Supreme Court should not wait any longer for the Circuit courts to weigh in on the incorporation question. So far, both the Second and Seventh Courts have found no incorporation, citing binding Supreme Court precedent, thus there is technically no “split” on the matter. While the Court frequently waits until a pronounced split has developed among the federal circuit courts before granting review, here, the lower courts have indicated that they feel this is a matter for the High Court to decide."

Friday, September 4, 2009

Just Do It - Obama Needs Backbone for Meaningful Healthcare Reform, a la FDR

In "Roosevelt, the Great Divider" in yesterday's New York Times, Jean Edward Smith explained that much of the meaningful progressive reform accomplished during the New Deal was done by a pugnacious president willing to exercise his majority in Congress even though he knew he would be highly criticized by his opponents.

“Never before in all our history have these forces been so united against one candidate as they stand today,” Franklin Delano Roosevelt said on national radio before the 1936 election, Smith recalls. “They are unanimous in their hatred for me — and I welcome their hatred.”

When he was seeking to make major progressive reform, FDR did not waste his time trying to work with the deeply entrenched obstructionist minorities interested only in maintaining an unjust status quo. He did not consult giant utilities, for example, when he sought to create the Tennessee Valley Authority which would provide affordable electricity throughout the poor South. He did not ask for the permission of Wall Street when he proposed the Securities and Exchange Commission to curb greed. Had he caved to the loud minority who believe that government has no role in providing a social safety net, we would have no Social Security. His arguments for maximum hours and minimum wage laws and the right to bargain collectively were over the heated objections of American business. And, to show that it was not always traditionally conservative vested interests that he faced down, organized labor was vociferous in its objection to the Civilian Conservation Corps because of the low wages paid by the corps.

In short, Smith explains, "majority rule, as Roosevelt saw it, did not require his opponents’ permission." He assuaged his Democratic colleagues to maintain his majorities, but "his Republican opponents were relegated to the political equivalent of Siberia.... [He] lambasted the 'economic royalists' who had gained control of the nation’s wealth. To Congress he boasted of having 'earned the hatred of entrenched greed.' In another speech he mocked 'the gentlemen in well-warmed and well-stocked clubs' who criticized the government’s relief efforts.... Roosevelt understood that governing involved choice and that choice engendered dissent. He accepted opposition as part of the process."

By contrast, President Obama's "fixation on securing bipartisan support for health care reform suggests that the Democratic Party has forgotten how to govern and the White House has forgotten how to lead." Smith suggests "[i]t is time for the Obama administration to step up to the plate and make some hard choices. Health care reform enacted by a Democratic majority is still meaningful reform. Even if it is passed without Republican support, it would still be the law of the land."

Really, what does Obama have to lose? Face it: the Right, marching to the tune of the likes of Rush Limbaugh, Glenn Beck, Bill O'Reilly, and Michael Steele, is never going to play ball. Their main agenda is political - whatever it takes to bring Obama down, they're for. So Obama might as well stand up, like FDR, and say, "to heck with 'em - we're going to pass reform with teeth that will create the sort of humane society of which we are all worthy."

What does that mean? As David Brooks suggests in his column today, "Let's Get Fundamental": "There are many people telling [President Obama] to go incremental. They’re telling him to just enlarge the current system a bit and pay for it by pounding down a few Medicare fees. But did Barack Obama really get elected so he could pass the Status Quo Sanctification and Extension Act?

"This is not the time to get incremental. It’s the time to get fundamental. Reform the incentives. Make consumers accountable for spending. Make price information transparent. Reward health care, not health services. Do what you set out to do. Bring change."

Much of what has made America great was brought about by progressive legislation. If President Obama wants to be a great president who makes lasting, meaningful progressive change, he should stand up, be brave (in his own way, if not in the outright combative manner of FDR), and commit to a strong progressive plan. Accept that the ever-present regressive 40% of American society will bitch and moan about it (but of course they will take full advantage of its benefits once available) - they'll never change, so might as well just move forward despite them.

Wednesday, August 26, 2009

Article in William & Mary Bill of Rights Journal: Rescuing the Fourteenth Amendment Privileges or Immunities Clause

I'm pleased to report that my article entitled "Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How "Attrition of Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" will be published in the upcoming volume of the William & Mary Bill of Rights Journal.

The article is available at SSRN and BePress Selected Works.

Here is the abstract:

"This Essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Fourteenth Amendment Privileges or Immunities Clause, which has lain dormant since the Court's erroneous 1873
SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.

The Essay makes the unique argument that the textual basis for the
SlaughterHouse Court's holding regarding the clause - i.e., the lack of parallel textual construction in the Section One's first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call "attrition of parliamentary processes." This analysis is not new to the Supreme Court. Borrowed from an oral argument made before the U.S. Supreme Court in 1882 by Roscoe Conkling (a member in 1866 of the Joint Committee on Reconstruction), the analysis played a vital role in leading the Court ot its 1898 conclusion that the word "person" in Section One's Due Process Clause should be read to include artificial persons, including corporations - an interpretation substantially broader than that given previously by the SlaughterHouse majority.

Just as the Court in the last decades of the nineteenth century corrected the Court's too-narrow interpretation of Section One "personhood," so it should now - finally - begin to correct its earlier misreading of the distinction in Section One between U.S. and state citizenship in order to restore the privileges or immunities clause to its full intended effect of applying the Bill of Rights (and more) to the States."

(I have previously posted here on related topics.)

Monday, August 17, 2009

Time to Legalize Drugs - Sensible WaPo Article

Today's Washington Post contains a well-reasoned OpEd entitled "It's Time to Legalize Drugs" by two former Baltimore City police officers and members of Law Enforcement Against Prohibition. This is something I've blogged on before here, and this OpEd makes the case yet again.

Written by Peter Moskos (a professor at John Jay College of Criminal Justice and the author of "Cop in the Hood") and Neill Franklin, (a 32-year law enforcement veteran), the OpEd explains that:

"after years of witnessing the ineffectiveness of drug policies -- and the disproportionate impact the drug war has on young black men -- we and other police officers [have] begun to question the system.

"Cities and states license beer and tobacco sellers to control where, when and to whom drugs are sold. Ending Prohibition saved lives because it took gangsters out of the game. Regulated alcohol doesn't work perfectly, but it works well enough. Prescription drugs are regulated, and while there is a huge problem with abuse, at least a system of distribution involving doctors and pharmacists works without violence and high-volume incarceration. Regulating drugs would work similarly: not a cure-all, but a vast improvement on the status quo.

"Legalization would not create a drug free-for-all. In fact, regulation reins in the mess we already have. If prohibition decreased drug use and drug arrests acted as a deterrent, America would not lead the world in illegal drug use and incarceration for drug crimes. "

Moskos and Franklin continue, "We simply urge the federal government to retreat. Let cities and states (and, while we're at it, other countries) decide their own drug policies. Many would continue prohibition, but some would try something new. California and its medical marijuana dispensaries provide a good working example, warts and all, that legalized drug distribution does not cause the sky to fall.

"Having fought the war on drugs, we know that ending the drug war is the right thing to do -- for all of us, especially taxpayers. While the financial benefits of drug legalization are not our main concern, they are substantial. In a July referendum, Oakland, Calif., voted to tax drug sales by a 4-to-1 margin. Harvard economist Jeffrey Miron estimates that ending the drug war would save $44 billion annually, with taxes bringing in an additional $33 billion.

"Without the drug war, America's most decimated neighborhoods would have a chance to recover. Working people could sit on stoops, misguided youths wouldn't look up to criminals as role models, our overflowing prisons could hold real criminals, and -- most important to us -- more police officers wouldn't have to die."

Sensible words.

Wednesday, August 5, 2009

Healthcare Reform - Voices of Reason from Senators Wyden & Bennett

In a column entitled "How We Can Achieve Bipartisan Health Reform" in today's Washington Post, Senators Ron Wyden and Robert Bennett describe the bipartisan approach to healthcare reform that offers the best hope for getting something done on this contentious issue.

Writing for 12 senators from both sides of the aisle (including Sens. Debbie Stabenow (D-Mich.), Ted Kaufman (D-Del.), Daniel K. Inouye (D-Hawaii), Mary Landrieu (D-La.), Joseph I. Lieberman (I-Conn.), Bill Nelson (D-Fla.), Judd Gregg (R-N.H.), Michael D. Crapo (R-Idaho), Lindsey O. Graham (R-S.C.) and Lamar Alexander (R-Tenn.)), they rightly state that "It's time to stop trying to figure out what pollsters say the country wants to hear from us and focus on what the country needs from us. The American people can't afford for Congress to fail again."

Here are some of the details:

"Democratic activists have long campaigned for universal coverage and quality benefits. Republican activists zero in on empowering individuals and bringing market forces to the health-care system. Our approach does both. In our discussions on the Healthy Americans Act, each side gave a bit on some of its visions of perfect health reform to achieve bipartisanship.

"The Democrats among us accepted an end to the tax-free treatment of employer-sponsored health insurance; instead, everyone -- not just those who currently get insurance through their employer -- would get a generous standard deduction that they would use to buy insurance -- and keep the excess if they buy a less expensive policy.

"The Republicans agreed to require all individuals to have coverage and to provide subsidies where necessary to ensure that everyone can afford it. Most have agreed to require employers to contribute to the system and to pay workers wages equal to the amount the employer now contributes for health care. The Congressional Budget Office has reported that this framework is the only one thus far that bends the health-care cost curve down and makes it possible for the new system to pay for itself. It does this by creating a competitive market for health insurance in which individuals are empowered to choose the best values for their money and by cutting administrative costs and spreading risk across large groups of Americans.

"First, we allow all Americans to have the same kind of choices available to us as members of Congress. Today, more than half of American workers who are lucky enough to have employer-provided insurance have no choice of coverage. Members of Congress who enroll their families in the Federal Employees Health Benefits Program often have more than 10 options. This means that if members of Congress aren't happy with their family's insurance plan in 2009 or insurers raise their rates, they can pick a better plan in 2010. Our plan would give the consumer the same leverage in the health-care marketplace by creating state-run insurance exchanges through which they can select plans, including their existing employer-sponsored plan.

"Beyond giving Americans choices, our approach also ensures that all Americans will be able to keep that choice. We believe that at a time when millions of Americans are losing their jobs, members of Congress must be able to promise their constituents that "when you leave your job or your job leaves you, you can take your health care with you." Our approach ensures seamless portability."

Good stuff. Hopefully Congress can see its way clear, past all of the millions of dollars of "donations" from the healthcare industry (more like bribes - the old saying applies here, that if in a baseball game the players gave the umpires money we'd call it a bribe; but if the same happens in politics we call it a campaign donation), to do what a strong majority of the American people want and which is morally right - provide the opportunity for good healthcare insurance to all Americans at a reasonable price.

Wyden and Bennett conclude:

"Our point is not that our framework is the only way to reform the system or to reach consensus. But our effort has shown that it is possible to put politics aside and reach agreement on reforms that would improve the lives of all Americans. Insisting on any particular fix is the enemy of good legislating. A package that will entirely please neither side, but on which both can agree, stands not only the strongest chance of passage but also the best chance of gaining acceptance from the American people.

"We didn't undertake this effort because we thought it would be easy; in fact, we started working together because we knew it would be hard. Passing health reform is going to require that we take a stand against the status quo and be willing to challenge every interest group that is jealously guarding the advantages it has under the current system, because health reform isn't about protecting the current system or preserving the advantages of a few. We can't forget that we are working on life-and-death issues facing our constituents, our families, our friends and our neighbors."

Voices of reason from the U.S. Senate - how refreshing.

Friday, July 24, 2009

McDonald v. Chicago Amicus Brief - Volokh Conspiracy Link

My last post described the amicus brief filed by the Constitutional Accountability Center and signed by six law professors, including myself. Here is a comment on the brief and its signers from the popular legal blog, The Volokh Conspiracy.

Wednesday, July 22, 2009

Supreme Court Amicus Brief in McDonald v. Chicago

Following from a couple amicus curiae (friend of the court) briefs in cases before the Ninth Circuit(Nordyke v. King) and Seventh Circuit (McDonald v. Chicago), an amicus brief filed by the Constitutional Accountability Center and signed by six law professors (Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Adam Winkler and I) was filed on July 10 in the U.S. Supreme Court. It is available here.

The brief asks the Court to take this case (ie, grant certiorari), in order to clarify the misunderstandings that have existed ever since 1873, when the Court decided the SlaughterHouse Cases, about the scope of the fourteenth amendment privileges or immunities clause. The brief asserts, based on persuasive historical evidence, that the Court got it wrong in SlaughterHouse when it gave the privileges or immunities clause a very narrow reading; instead, the history suggests it was intended to apply broadly to apply the Bill of Rights (and more) to the States.

Tuesday, June 23, 2009

Drawing the Line on the Obama Administration's National Security Practices

As I've stated here previously on numerous occasions, the Barack Obama presidency is a vast improvement over the disaster of the prior eight years of the Bush/Cheney administration. But nothing's perfect, including the Obama administration's positions on national security.

In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era "war on terror" rationale for maintaining arguably unconstitutional practices.


1. "Prolonged detention" - President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process require.

2. Transparency - President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers' abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it - President Obama should stick by his commitments to transparency.

3. State Secrets doctrine - the Obama administration is perpetuating in the federal courts the "state secrets" theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn't ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (When I blogged on this issue previously, in February, I was inclined to give the administration the benefit of the doubt; but no longer, given the administration's other equivocations.)

There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration's approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.

But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples' rights and liberties), but rather for the aggressive government that tends to abuse the peoples' liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.

Yes, President Obama is a pragmatist by nature; and politically that's probably a good thing. But on the "liberty" side of the progressive-liberty equation, some things are non-negotiable, such as due process - and the sorts of issues upon which the president is now equivocating go to the heart of due process.

Specifically, the fifth amendment to the Constitution specifies: "nor shall any person ... be deprived of life, liberty, or property, without due process of law." At the very foundation of the Anglo-American concept of due process (with roots in 1215 Magna Carta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The Constitution memorializes this concept in a number of provisions, including the Article I, Section 9 habeas corpus clause; and the numerous criminal procedural provisions in the Fourth, Fifth, Sixth and Eight Amendments of the Bill of Rights. The practices now advocated by the Obama administration - indefinitely holding prisoners, keeping evidence secret, & preventing matters from going to trial - run disturbingly afoul of these core constitutional guarantees.

History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history's purposes they become the Bush/Cheney/Obama practices.

Not the sort of historical association that President Obama should embrace.

Sunday, June 14, 2009

Strong versus Weak Judging

As so often happens in the field of constitutional law, events converge that serve to illustrate how real-world practice often departs from constitutional principle. The same-day announcements on May 26 by President Obama of Sonya Sotomayor as his choice for the U.S. Supreme Court and by the California Supreme Court of its decision to uphold Proposition 8 is but another such serendipitous pairing.

First, constitutional principle suggests that President Obama owed the nation a strong nominee - and with Sonya Sotomayor, he delivered.

Those who framed the Constitution knew that it would take a special kind of person to guarantee equal justice to all - including the less powerful - even when majorities in the legislative and executive branches would not. “It is easy to see,” Alexander Hamilton wrote, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice in the community.”

Sonya Sotomayor understands the constitutional role of judges. As she commented in 1997, “I believe we should not bend the Constitution under any circumstances. It says what it says. We should honor it.” A strong judge like Judge Sotomayor knows that when majorities abridge the rights of individuals, it is the judge’s sometimes unpopular role to overcome the majority’s will.

Weak judges, by contrast, hide behind majority opinion to avoid protecting individual liberty and equality. The California Supreme Court’s decision Tuesday to uphold Proposition 8 (despite holding just last year that discrimination against gays is no less unconstitutional than discrimination based on race or religion) is an example of judging that is, well, weak.

As the lone strong voice, dissenting Justice Carlos J. Moreno, put it, “The rule the majority crafts today … weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

Exactly right.

These principles apply to the federal Constitution as well. The framers believed that the whole point of majoritarian government is to protect liberty and equality for all. As James Madison explained in arguing for the Bill of Rights before the First Congress, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” And Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

In concept, the principle of judicial review is one upon which liberals and conservatives can agree. At his confirmation hearings in 2005, for example, Chief Justice John Roberts commented, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.” Neither federal, state nor local majorities, in other words, may pass laws (including amendments to state constitutions) that abridge rights guaranteed by the federal Constitution - and it is the judge’s responsibility to make sure that they do not.

Viewed in this light, the “judicial activist” warhorse regularly trotted out by those opposed to judges doing their jobs to protect the rights of minorities (usually under the guise that such action constitutes inappropriate “legislating from the bench”) is exposed for what it is: a tired old nag ready for the glue factory.

Monday, June 8, 2009

Second Amendment Incorporation Update - Seventh Circuit Decision

As expected, given the judges' tone while questioning counsel during oral arguments a couple weeks ago in the McDonald v. Chicago case on which I posted at the time, the Seventh Circuit Court of Appeals last Tuesday declined to incorporate the second amendment to apply to the states.

Because the Ninth Circuit in April held in Nordyke v. King that the second amendment IS incorporated, we now have a circuit split and the possibility of the U.S. Supreme Court taking up the case to resolve the disagreement.

The plaintiffs in the case, the NRA and (separately) McDonald, have already appealed to the Supreme Court - now we'll see if the Supreme Court takes the case (it requires four of the nine justices to agree to hear a case in order for it to get on the Court's docket).

Sunday, June 7, 2009

Obama in the Middle East - A Respectful, Rational Voice

One may justifiably criticize some of the decisions made by President Obama in continuing certain Bush administration policies (e.g., military commissions, state secrets, etc.), but there is one area where the new president truly shines: representing the United States abroad.

As I'd posted a couple times from the early days of his campaign, this was one of the primary reasons Obama was such an appealing candidate ... and now is such an inspiring leader.

With his landmark speech in Cairo on June 4, Obama used the bully pulpit of the American presidency to turn the discussions on Middle-East politics in more productive directions. Not that everyone in the region is enamored of everything he had to say, as reported by the BBC, but isn't it heartening to see once again a U.S. president who is able to speak respectfully and rationally in the international arena?

Eugene Robinson said it well in his June 9 column in the Washington Post, "The Importance of Being Obama":

"I used to fear that President Obama was overestimating the power of his personal history as an instrument of foreign policy. Now I wonder if he might have been underestimating."

"Taking a cold-eyed view of international affairs is never wrong," Robinson continued. "But it's also wrong to ignore the spectacle of an audience member, at Obama's Cairo University speech, interrupting an American president to shout, "We love you!" You will recall that the last memorable presidential appearance in the Arab world was the news conference in Iraq at which George W. Bush dodged two shoes hurled at his head.

"Not being Bush was a big factor. But at least as important was being Obama -- and being able to say, as the president did in Cairo, that "I have known Islam on three continents before coming to the region where it was first revealed."

"Obama was referring to the "generations of Muslims" in his father's Kenyan family, his early years in Indonesia and his experience working in Chicago communities where "many found dignity and peace in their Muslim faith." The most important word in that sentence, however, came at the end: By saying "revealed" rather than "born," Obama was acknowledging Islam as a divinely given faith.

"Obama quoted liberally from the Koran, drawing applause. Perhaps more important was that he opened the speech by putting Islam in the historical context that many Muslims believe the West willfully ignores. He spoke of how the Islamic world kept the light of civilization burning during Europe's Dark Ages -- and mentioned the Koran that Thomas Jefferson kept in his library.

"Obama was speaking the language of Islam in a tone of respect. What a concept.

"The rest of his speech consisted essentially of a summary of U.S. policy in the Muslim world, and in truth there were no real departures from traditional American policy. Prior administrations have called for a Palestinian state, and Obama hasn't been nearly as tough with Israel as, say, James Baker's State Department during the administration of George Bush the Elder. Obama had nothing substantive to announce on the wars in Iraq and Afghanistan, and he properly asserted the right of the United States to defend itself against terrorists.

"Familiar policies sounded different coming from Obama, though -- not just because of his identity but also because he showed a little humility. He acknowledged that in recent years our nation had acted in ways "contrary to our ideals," and noted that he had ordered an end to torture and the closing of the prison at Guantanamo. There are those who believe that admitting mistakes is a sign of weakness. I think it's a sign of confidence and strength, and I believe that's how it was received by Obama's intended audience.

"Perhaps the best indication of how Obama played in Cairo is the reaction of his competitors for the hearts and minds of the Muslim world. The Associated Press reported Sunday that the Iranian-backed, Lebanon-based guerrilla group Hezbollah, an influential radical Saudi cleric and the Egypt-based Muslim Brotherhood all warned followers not to be taken in by Obama's seductive words -- which suggests a fear that Obama had been dangerously effective. A Web site that often reflects the thinking of al-Qaeda referred to the president after the speech as a 'wise enemy.'

"The fact that many Muslims now see a sympathetic figure in the White House creates new possibilities. It turns out that being Obama matters more than I thought."

Thursday, May 28, 2009

Reconciling Liberty and Progressive Government

Following is a paper I am presenting this week at the Law & Society Conference in Denver, "Reconciling Liberty and Progressive Government," that synthesizes a number my prior postings:

Libertarians with progressive sympathies (or progressives with libertarian sympathies) are confronted by a nagging conundrum: that individual freedom and the common-good, almost by definition, can seem to be mutually exclusive. If we indiscriminately elevate individual free-will, we risk tragedy-of-the-commons issues; by contrast, if we indiscriminately enact progressive legislation for the common good, we run the risk of inflicting death by a thousand cuts on individual liberty.

A concept we may call "Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good. Looking first at the “liberty” half of the phrase, America was founded, first and foremost, to preserve individual freedom from oppressive government. This part is nonnegotiable. America's founding documents - the Declaration of Independence and the Constitution - make the point clearly: the single irreducible value eclipsing all else under the American constitutional regime is liberty. The eminent historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than “freedom” … or “liberty,” The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings…”

Historian Bernard Bailyn reports that the most basic goals of the American Revolution were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” To conceptualize, imagine if you will the “Google-Earth” feature of Google; except here, written answers to basic constitutional questions may be viewed in greater or lesser detail by zooming-in or zooming-out. Zooming-out to view the question, “What single value does the Constitution stand for?,” from the widest possible angle, where all detail has been lost leaving only one answer to the question, the answer would read, “Liberty.” Zooming-in, we could next read, “Equality,” “Democracy,” then “Property,” and so on. These more detailed values are simply means to the ultimate end – which is liberty.

What to do when government intrudes upon liberty? The framers of the Constitution envisioned that the judiciary would play a key role in protecting liberty from majoritarian excess. James Madison, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

This is something upon which judges and scholars from across the political spectrum can agree. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”

In practice, however, conservative ideology has latched onto the idea that the use of judicial review is “undemocratic” and “activist”; and will almost always constitute inappropriate “legislating from the bench.” What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government in the first place is to protect liberty and equal justice. As explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.

When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.

As for the other part of the progressive liberty equation, how are we to understand how progressive government may proceed in acting for the common good? The first thing to understand is that, as compared to non-negotiable liberty, the “progressive” part of progressive liberty IS negotiable. In a democratic republic, it is the will of the people what sort of society they will have. So long as the government is not infringing on individual freedom, it can set widely varying policy - anything from a minimalist caretaker state to a more progressive social welfare model of the sort seen in Western Europe (or indeed, something more different still than either of these).

An energetic position, one that a progressive libertarian would favor, suggests that it is the government's duty to enact humane policy that looks out for people who can't help themselves, and that provides equal opportunity to all. Among other things, this means that government should guarantee that every man, woman, and child have access to basic healthcare. (Incidentally, the framers appeared to be “progressives” of a sort themselves, in that they advocated an energetic government. “Energy in the [government] is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70. Madison agreed. “Energy in government,” he said in No. 37, “is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good government.”)

Does this mean that the Constitution mandates such government involvement?In a word: No. The Constitution sets up the republican form of the government and imposes strict limits on governmental infringements of individual liberty; but it leaves the details of social and economic policy to be worked out by the people through the democratic process. Whether the people prefer a Progressive Society, a Minimalist Society, or some other sort of Society, they control their destiny by voting for representatives who will legislate to that end. That's republican democracy: accountable majorities enacting policy; and if the majorities don't adequately reflect the people's wishes, others are elected who will. Then if at any time the democratically-accountable majority legislates in ways that inappropriately infringe individual liberty, the Constitution (as enforced by the Court) steps in. That's what liberty is about - limited government constrained by a Constitution that protects, above all else, individual freedom.

. . .

Now that we have a definition for progressive liberty, let’s look closer at the title of this paper, “Reconciling Liberty and Progressive Government.” Specifically, how are we to know the threshold beyond which a progressive, energetic government may not go, lest it infringe upon constitutionally-protected liberty?

An excellent place to start (and perhaps end) is with the "harm principle" enunciated by J.S. Mill in his 1859 classic, On Liberty:

"[There is but] one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, … that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."

Putting this into practical terms that government policymakers can apply, we might “think of the harm principle as operating in two steps,” Professor Ian Shapiro suggests. “When evaluating a particular action or policy, the first step involves deciding whether the action causes, or has the potential to cause, harm to others. If the answer is no, then the action is in the self-regarding realm and the government would be unjustified in interfering. Indeed, in that case the government has a duty to protect the individual’s freedom of action against interference from others as well. [The second step occurs] if, however, the answer to the initial query is yes, [in which case] different considerations arise. We are then in a world in which harm is being committed willy-nilly, and the question is: What, if anything, should the government do about it?,” and it is up to the democratic process to work that out.

In other words, society may legislate – whether progressively or not – either when the legislation (a) simply does not affect individual liberty, and/or (b) when a person’s conduct in exercising individual liberty prejudicially affects, or harms, the interests of others. (Incidentally, some, such as Randy Barnett, would define this latter situation as not involving “liberty” at all, but rather as “license” (which is not protected by the Constitution); on the reasoning that liberty, by definition, cannot harm others). In either case it is open to discussion through the democratic process whether the common good will be promoted. So conceived, the society may strike a balance between liberty and progressive government.

It is important to re-emphasize Shapiro’s conclusion, however (perhaps to the point of tedium), that according to the Harm Principle, “short of the point at which a person's conduct affects the interests of no persons besides himself, there is no room for [memorializing into law any such policy discussion.]” Individual liberty prevails in such cases, not to be touched by government.

This last point is crucial, in light of government's unceasing, inexorable, and perhaps-inevitable tendency to interfere inappropriately in individual conduct. Alexis de Tocqueville presciently identified the danger of an overactive government in his 1830 masterpiece, Democracy in America, stating: “[In a maturing democracy,] a wholly new species of oppression will arise. Among citizens equal and alike, the supreme power, the democratic government, acting in response to the will of the majority, will create a society with a network of small complicated rules, minute and uniform, that none can escape. Ultimately, then, the citizens of a democratic country will be reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.” To some in America today, this scenario sounds uncomfortably familiar.

Once again, under our constitutional regime it is the role of the judiciary to prevent this sort of creeping tyranny from occurring. One difficulty, though, is that ever since 1937 the Supreme Court has applied a disproportionately deferential standard of review to government action - to the detriment of individual liberty. (This occurred largely as a backlash to the Supreme Court overstepping its bounds during the mid-1930s when it aggressively struck down FDR’s New Deal legislation. Throughout the rest of the 20th and into the 21st century, the Court has swung too far in the other direction by not going far enough in requiring government (particularly state and local government) to justify its actions that may potentially affect liberty interests.) A more deferential-to-liberty standard of judicial review is needed, perhaps modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine, as I suggest in a 2007 Louisiana Law Review piece. This approach, already championed on a narrow basis by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately honors the Constitution’s core Liberty-first ideals, while also recognizing the proper constitutional role of government in maintaining law and order.

In conclusion, government is liberty’s servant in America. Government – and democracy itself - exists primarily to protect liberty, with the Constitution serving as the bulwark against inevitable government attempts toward overreaching. The framers understood that men are not angels and that power has the overwhelming tendency to corrupt, so they constructed a limited government of separated powers with the ultimate power reserved to the people to operate within their own self-imposed constitutional constraints.

That said, to the extent government action does not implicate liberty, the details of social and economic policy are to be worked out by the people through the democratic process. One can be a staunch supporter of liberty on one hand; while working actively through the democratic process to enact progressive, energetic policy. That, in essence, is progressive liberty.

Wednesday, May 27, 2009

National Rifle Association v. Chicago (McDonald v. Chicago) Oral Arguments*

The Seventh Circuit Federal Court of Appeals in Chicago yesterday heard oral argument in National Rifle Association v. Chicago (formerly McDonald v. Chicago), a case in which the Constitutional Accountability Center, joined by law professors Richard Aynes, Jack Balkin, Michael Curtis and myself, filed an amicus brief arguing that the Fourteenth Amendment privileges or immunities clause should be interpreted to apply the Second Amendment (together with the rest of the entire Bill of Rights, and more) to the states.

If the judges’ questioning is any fair indication, it appears the Seventh Circuit will decline the petitioners’ and the CAC’s invitation to incorporate the Second Amendment under either the due process clause or the privileges or immunities clause – not because the court necessarily objects to the arguments, but rather because it believes such bold steps are more appropriately within the purview of the Supreme Court.

NRA counsel Stephen Halbrook was barely into his first sentence before the judges, particularly Judge Richard A. Posner and (presumably) Chief Judge Frank H. Easterbrook, began peppering him for explanations for why the appellate court should even be deciding the question.

For context, here are some of the relevant exchanges between the court and counsel, with a couple observations to follow:

Judge Posner (to Mr. Halbrook): I don’t see how you get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions. You have Cruikshank and Presser and Miller and the Supreme Court’s footnote in Heller where it declines to reexamine those decisions, and it says they hold that the second amendment doesn’t govern state action…. [Those cases] may have overlooked grounds, they may be poorly reasoned, but there they are - they’re holdings.

Chief Judge Easterbrook (later): I entirely appreciate your argument that [the earlier cases] don’t discuss selective incorporation. Indeed, I entirely appreciate your argument that the SlaughterHouse Cases are wrongly decided…. But as is often said in the bureaucracy, that’s above our grade level.

Chief Judge Easterbrook (responding to co-counsel (for petitioner McDonald) Alan Gura): I actually don’t know why you’re so upset about the prospect that Judge Posner and I have raised with you. It doesn’t matter what we say. [In contrast to the Ninth Circuit in the recent Nordyke case,] we’re not going to resolve this issue; you’ve got yourself a conflict between the circuits. Why don’t you just say, ‘Our arguments are preserved – thank you very much.’

Mr. Gura: If that’s what your honor would like me to do, then I’ll certainly go ahead and do that. Our arguments are preserved and thank you very much. [Laughter] I’ll reserve the rest of my time for rebuttal.

Chief Judge Easterbrook: This is going to be resolved elsewhere. Yes, thank you, Mr. Gura.

Ms. Benna Solomon (counsel for Chicago): It does not matter that [Cruikshank, Presser and Miller] were decided before the Court embraced the process of incorporation under the due process clause.… Only the Supreme Court itself can limit or update its prior definitive holdings. They do not become non-precedential simply because one can imagine an argument against them, or because the Court itself might later discard them.

Chief Judge Easterbrook: There’s actually a pretty good argument against them. And it’s not simply because the justices have used a different approach in recent years. It’s that there’s a lot of rumbling about the Slaughter-House Cases even amongst the justices.

Ms. Solomon: That is correct. And as far as privileges or immunities go, ... of course it would be [the Supreme Court’s] prerogative to consider overruling, limiting, changing, modifying or clarifying Slaughter-House. And of course it’s not simply Slaughter-House. The rule that the privileges or immunities does not wholesale incorporate the Bill of Rights has been repeated many times…. The privileges or immunities ruling has never been disturbed. So we do respectfully believe that is binding on this court as well.

Chief Judge Easterbrook (referring to an early voice in the wilderness who advocated accepting Justice Hugo Black’s call to reexamine the fourteenth amendment’s history, especially the privileges or immunities clause): One can only imagine William Winslow Crosskey coming back to debate this issue.

Ms. Solomon: It will be ripe, no doubt, for someone to present to the Supreme Court.

Chief Judge Easterbrook (responding to Ms. Solomon’s observation that several other provisions of the Bill of Rights have still not been incorporated): One potential consequence of the line you’re taking is that the Supreme Court will overrule Slaughter-House and incorporate everything. And then all of Chicago’s administrative tribunals for handling parking tickets will suddenly become unconstitutional under the seventh amendment [right to jury trial in civil cases].

Ms. Solomon: The Supreme Court will no doubt consider that going down the privileges & immunities road would need either a limiting principle not evident in the arguments on the other side, or it would need to overrule the cases indicating that the grand jury clause and the seventh amendment, and the Court has reaffirmed those rather recently.

Mr. Gura (on rebuttal): In 1868, when the fourteenth amendment came about, it was with the express purpose and intent and common understanding, that it was to incorporate the Bill of Rights, and the second amendment was the right that was most at issue at the time. … . And we of course preserve our privileges or immunities argument for the upper court. But at the very least this court is still free, and bound actually by Duncan v. Louisiana, to reverse the judgment [and hold that the due process clause incorporates the second amendment,] which we hope this court does.

Reflections on the oral argument:

What is most striking about this sequence is that multiple federal courts, after having swept the privileges or immunities clause under the rug for over 135 years, are now talking in serious terms about the provision. To hear a jurist of Chief Judge Easterbrook’s stature express sympathy for arguments that the SlaughterHouse Cases (the 1873 case that buried the privileges or immunities clause) was wrongly decided is a major step. Add to that the Ninth Circuit’s recent Nordyke decision holding that the second amendment is incorporated through the due process clause (and acknowledging, but not deciding, the privileges or immunities arguments), and we see that the arguments being made by a growing number of scholars, the CAC and others are finally starting to gain some traction.

Second, regarding the suggestion that giving full effect to the privileges or immunities clause (i.e., incorporation of the entire Bill of Rights, and more, to the states) would be too disruptive to the states, the Constitution itself provides a tried and true mechanism to allay this concern: the Article V amendment process. If the people decide that they wish to retain the Supreme Court’s current doctrine of not applying certain of the Bill of Rights to the states, such as the Seventh Amendment right to jury in civil cases and the Fifth Amendment grand jury provision, it is within their power to do so. The amendment process would be the proper approach to achieve this goal – but it is not proper to continue holding the privileges or immunities clause hostage.

While it is true that amending the Constitution is very difficult to do (it’s only been done eighteen times in our history – first with the Bill of Rights and then 17 times since), it’s not impossible. Indeed, when the people put their minds to it, it can be done very quickly – witness the very first amendment to follow the Bill of Rights, the eleventh amendment, when it took Congress less than three weeks to approve the amendment after a Supreme Court ruling not to its liking; and the states less than a year to ratify.

*This post also appears at the CAC Text and History Blog.

Tuesday, May 26, 2009

Obama World vs. Cheney World

In his column in today's Washington Post, Eugene Robinson nicely captures the juxtaposition of the choices offered by Barack Obama's world-view with that of the suddenly media-genic Richard Cheney:

"Which reality do you inhabit, Obama World or Cheney World? ...

"In Obama World, human beings are flawed but essentially decent and rational. Most will behave in a way consistent with enlightened self-interest. In Cheney World, humanity's defects are indelible and irredeemable. Absent evidence to the contrary, evil should be assumed to lurk in every heart. Better to do unto others before they have a chance to do unto you.

"In Obama World, choices are artifacts of reasoning and thus are only as valid as the logic underlying them. Security and freedom, for example, do not have to be seen as an either-or proposition. The nation never came to a fork in the road with one path labeled "torture" and the other labeled "disaster." In Cheney World, choices are binary and absolute. There's no wiggle room, no gray area, no time for second thoughts and no debate about how our options are framed. It's my way or the highway, citizen.

"In Obama World, objective fact matters. The failure to find any weapons of mass destruction in Iraq is significant. The absence of any link between Iraq and the Sept. 11, 2001, terrorist attacks is relevant. In Cheney World, facts are based more on conviction than evidence. If it's possible to imagine "nuclear-armed terrorists," as Cheney did in his speech the other day, then they "exist" at least as a concept -- and this conceptual existence justifies torture, among other abuses.

"In Obama World, some "threats" can be recognized as no threat at all. Since there has never been an escape from the federal "supermax" prison in Colorado, and since it already houses plenty of terrorists, spies and other miscreants, there's no real reason to be concerned about transferring any of the Guantanamo inmates, even the worst of the lot, there.

"But in Cheney World, no threat, however remote, can be definitively ruled out -- especially if there's political hay to be made. And anyway, it's fun to scare people.

"Obama World buzzes with information overload: hundreds of cable channels, zillions of Web sites, constant "tweets" from Twitter. In Cheney World, it's pretty much Fox News and Rush Limbaugh, all day, every day....

"In Obama World, Americans have a sense of community and shared purpose. Those upon whom fortune has smiled -- through accident of birth, educational opportunity, career-enhancing connections or any other kind of "right place, right time" serendipity -- recognize that extending a hand to those who do not enjoy such advantages is not just morally right, but ultimately beneficial to all. They believe that Henry Ford was right to pay his workers the shockingly high sum of $5 a day -- so they could afford to buy the cars they were making.

"In Cheney World, sharing is for saps. Obtaining great wealth and power has nothing to do with being "fortunate," whatever that means. It's all about preparation, focus and hard work. The idea that luck or connections could possibly have anything to do with, say, becoming the lavishly compensated chairman and chief executive of a mega-corporation such as Halliburton? Preposterous and un-American.

"In Obama World, America exerts its leadership not just through force but through example. Our nation's exceptionalism lies in its ideals of freedom, justice and opportunity for all, in its decency and generosity, in its commitment to the rule of law and its zeal for self-improvement, in its willingness to examine its own flaws and work to correct them. These intangibles are backed up by the world's most powerful military, but it's the ideals that matter most. When we lose sight of them, we head down the path of inevitable decline.

"In Cheney World, ideals are nice and all that, but might makes right. We do what we want. Because we can. You got a problem with that?

"Obama World is an exciting place to live right now -- not perfect, to be sure, but full of energy and hope. If Dick Cheney wants to stay in his bunker, that's his business. Others might want to come up for some fresh air."

Sunday, May 17, 2009

Legalize (and Tax) Vice

Several months ago, shortly after the Michael Phelps bong-photo imbroglio, I posted here to argue that soft drugs should be legalized because current drug laws are: (1) bad policy; and (2) unconstitutional.

Focusing on the first point, we discussed that state and federal laws criminalizing the use and possession of marijuana are atrocious policy for at least three reasons: (a) the massive costs imposed on lives and public treasuries; (b) low efficacy - i.e, the laws do little to dissuade those who desire to light up from doing so; the (c) crime problems caused by making marijuana a black market commodity.

So, we continued, wouldn't it be better in policy terms for the government to decriminalize marijuana and regulate much like it regulates alcohol and tobacco? This is what many policymakers - conservative and liberal alike - believe, for a number of reasons: (1) it would reduce crime; and (2) it would be a great moneymaker for government (through taxes on sales, etc.).

In an OpEd entitled "Paying With Our Sins" in today's New York Times, Nick Gillespie, editor-in-chief of, addresses this last point in making the policy case for legalizing not only marijuana, but also other vices like gambling and prostitution. (The constitutional case I mentioned in my prior posting holds for these vices as well.)

Gillespie explains: "All of these vices, involving billions of dollars and consenting adults, already take place. They just take place beyond the taxman’s reach....

"More taxed vices would certainly lead to significant new revenue streams at every level. That’s one of the reasons 52 percent of voters in a recent Zogby poll said they support legalizing, taxing and regulating the growth and sale of marijuana. Similar cases could be made for prostitution and all forms of gambling.

"In terms of economic stimulation and growth, legalization would end black markets that generate huge amounts of what economists call “deadweight losses,” or activity that doesn’t contribute to increased productivity. Rather than spending precious time and resources avoiding the law (or, same thing, paying the law off), producers and consumers could more easily get on with business and the huge benefits of working and playing in plain sight.

"Consider prostitution. No reliable estimates exist on the number of prostitutes in the United States or aggregate demand for their services. However, Nevada, one of the two states that currently allows paid sex acts, is considering a tax of $5 for each transaction. State Senator Bob Coffin argues further that imposing state taxes on existing brothels could raise $2 million a year (at present, brothels are allowed only in rural counties, which get all the tax revenue), and legalizing prostitution in cities like Las Vegas could swell state coffers by $200 million annually.

"A conservative extrapolation from Nevada to the rest of the country would easily mean billions of dollars annually in new tax revenues. ...

"Every state except Hawaii and Utah already permits various types of gambling, from state lotteries to racetracks to casinos. In 2007, such activity generated more than $92 billion in receipts, much of which was earmarked for the elderly and education. Representative Barney Frank, Democrat of Massachusetts, has introduced legislation to repeal the federal ban on online gambling; and a 2008 study by PriceWaterhouseCoopers estimates that legalizing cyberspace betting alone could yield as much as $5 billion a year in new tax revenues. Add to that expanded opportunities for less exotic forms of wagering at, say, the local watering hole and the tax figure would be vastly larger.

"Based on estimates from the White House Office of National Drug Control Policy, Americans spend at least $64 billion a year on illegal drugs. And according to a 2006 study by the former president of the National Organization for the Reform of Marijuana Laws, Jon Gettman, marijuana is already the top cash crop in a dozen states and among the top five crops in 39 states, with a total annual value of $36 billion.

"A 2005 cost-benefit analysis of marijuana prohibition by Jeffrey Miron, a Harvard economist, calculated that ending marijuana prohibition would save $7.7 billion in direct state and federal law enforcement costs while generating more than $6 billion a year if it were taxed at the same rate as alcohol and tobacco. The drug czar’s office says that a gram of pure cocaine costs between $100 and $150; a gram of heroin almost $400; and a bulk gram of marijuana between $15 and $20. Those transactions are now occurring off the books of business and government alike.

"As the history of alcohol prohibition underscores, there are also many non-economic reasons to favor legalization of vices: Prohibition rarely achieves its desired goals and instead increases violence (when was the last time a tobacco kingpin was killed in a deal gone wrong?) and destructive behavior (it’s hard enough to get help if you’re a substance abuser and that much harder if you’re a criminal too). And by policing vice, law enforcement is too often distracted at best or corrupted at worst, as familiar headlines about cops pocketing bribes and seized drugs attest. There’s a lot to be said for treating consenting adults like, well, adults.

"But there is an economic argument as well, one that Franklin Roosevelt understood when he promised to end Prohibition during the 1932 presidential campaign. “Our tax burden would not be so heavy nor the forms that it takes so objectionable,” thundered Roosevelt, “if some reasonable proportion of the unaccountable millions now paid to those whose business had been reared upon this stupendous blunder could be made available for the expense of government.”

"Roosevelt could also have talked about how legitimate fortunes can be made out of goods and services associated with vice. Part of his family fortune came from the opium trade, after all, and he and other leaders during the Depression oversaw a generally orderly re-legalization of the nation’s breweries and distilleries. ...

"Legalizing vice will not balance government deficits by itself — that will largely depend on spending cuts, which seem beyond the reach of all politicians. But in a time when every penny counts and the economy needs stimulation, allowing prostitution, gambling and drugs could give us all a real lift."