Thursday, December 30, 2010

New Book - Radicals in Their Own Time

I've added a video introduction to my forthcoming book from Cambridge University Press, Radicals in Their Own Time:  Four Hundred Years of Struggle for Liberty and Equal Justice in America (January 2011) (see link at right).  I discuss the book in greater detail at "Great Americans Blog."

Thursday, September 30, 2010

OpEd on McDonald v Chicago Case - June/July 2010

Here is the OpEd on the McDonald v. Chicago Supreme Court decision that ran in various papers and news outlets around the country in late June and early July.

McDonald is Cause for Celebration for All

The McDonald v. Chicago Supreme Court decision that the Second Amendment is fully binding on state and local governments is cause for celebration - even among those deeply concerned about gun violence in the United States.

First, nothing in the Court’s decision prevents state and local governments from continuing to impose meaningful regulations on the possession of firearms. The Supreme Court explained that the Second Amendment “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

To emphasize the point that reasonable regulations will still be allowed, the Court quoted from the brief signed by 38 States supporting the Court’s ultimate decision, which said: “State and local experimentation with reasonable firearms regulations will continue under the Second Amendment.” And in this case the Supreme Court did not actually expressly reject the Chicago-area restrictions, but rather returned the case to the federal Court of Appeals in Chicago to determine if the regulations still pass muster.

There is nothing unusual in the approach taken by the Supreme Court in this case. Others of our most fundamental rights may be regulated, but never prohibited outright - such as the First Amendment’s protection for freedom of speech and the Fourth Amendment right to be free of unreasonable searches and seizures. These and all rights are subject to reasonable “time, place, and manner” governmental regulations.

Second, we bolster our claim on all of the rest of our constitutionally-protected rights – both enumerated and unenumerated (the right to privacy, for example) – when we adopt the sort of expansive view of liberty recognized in the decision. A faithful reading of the Constitution simply does not allow us to pick and choose from among those constitutional rights with which we may agree or disagree – and those rights should be protected not only from infringement by the federal government, but also by state and local governments.

The one thing state and local governments may not do is enact regulations that prohibit a person’s right to keep a firearm for self-defense. Otherwise, not much else should change.

McDonald v. Chicago decision

Quite a hiatus for the summer - biggest blog-related news while I've been playing hooky was the McDonald v. Chicago decision in late June, where the Supreme Court held 5-4 that the Second Amendment applies to the States.

Four of the majority justices reasoned that the clause is incorporated through the 14th amendment due process clause (the conventional argument); one, Justice Clarence Thomas reasoned it is incorporated through the 14th amendment privileges or immunities clause. Thomas's reasoning was the reasoning for which I argued in the amicus briefs and law review articles related to this issue. So, we wish we would have gotten a majority on the privileges or immunities argument, but at least Thomas agreed.

One of the most disappointing parts of the case was that the four dissenters - Breyer, Stevens, Sotomayor and Ginsburg, people with whom I usually have more in common than not - did not go along with the persuasive history that the fourteenth amendment privileges or immunities clause was intended to apply the ENTIRE Bill of Rights to the States.

I published an OpEd at the time of the decision, which ran in a good number of papers nationwide. I'll post that here.

Friday, May 21, 2010

Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America

Coming out of my cave into the daylight again after finishing my book ("Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America," Cambridge Univ. Press) and submitting it to the publisher week before last. Quite the relief.

I'm pleased with how it came out - should be out in bound book form in December or January.

Sunday, March 21, 2010

Framers Believed in Virtuous (ie, Humane) Government

The Tea Party movement is not completely cuckoo. In fact, its focus on the Constitution should be welcomed by all Americans.

When tea partiers inquire closely into the Constitution’s original intent, they will find what they expect to find: it was created, first, to protect individual liberty from overzealous government.

Yet they may be surprised when they learn that Franklin, Washington, Hamilton, Adams, Jefferson and Madison – as bitterly contentious in politics as present-day politicians (if not more so) – all agreed on the one bedrock principle upon which any good government depended: VIRTUE – or, literally, “Public Spirit.”

As Thomas Paine (Common Sense, The Rights of Man, etc.) insisted: “Public good is not a term opposed to the good of individuals. On the contrary, it is the good of every individual collected. It is the good of all, because it is the good of every one.” Hence Paine advocated progressive taxation, aid to the unemployed, and free public education.

Healthcare-for-all, anyone?

Wednesday, March 3, 2010

McDonald v. Chicago - Yesterday's Oral Argument

Judging from yesterday's oral argument in McDonald v. Chicago (the case discussed here previously involving whether either the Fourteenth Amendment Privileges or Immunities Clause or Due Process Clause applies the Second Amendment to the States), it seems a majority of the U.S. Supreme Court will use the standard Due Process route to apply the right to bear arms to the States.

Justice Antonin Scalia - who claims to be beholden to the text and history of the Constitution - belittled the arguments claiming that the text and history of the Constitution require consideration of the Privileges or Immunities clause. When Alan Gura, the attorney arguing the case, began his discussion of Privileges or Immunities, Scalia pointedly asked him whether arguing Privileges or immunities was "easier" than the due process argument. "[I]f the answer is no," he continued, "why are you asking us to overrule 150, 140 years of prior law?" Scalia also said that "What you argue is the darling of the professoriate"; and speculated that Gura is "bucking for a place on some law school faculty."

Scalia brays loudly about the importance of original intent; yet when serious original intent arguments come before him that would be contrary to his narrow, cramped view of individual liberty, he is unwilling to listen. What a hypocrite.

Sunday, February 28, 2010

Olympics Idealism

What a pleasure watching the Vancouver 2010 Winter Olympics over the last couple weeks. It's easy to be cynical these days about many things - even about the commercialism and politics surrounding the Olympics - but to see young men and women and spectators from all over the world coming together to participate in sport with such unadorned pleasure and fellowship.... well, it gives one hope for a better world.

Wednesday, February 10, 2010

Another Response to Citizens United: Remove Supreme Court Appellate Jurisdiction

Much has been written about the Supreme Court's Citizens United opinion overruling a century of precedents and statutes designed to curb corporate campaign spending. Many have offered suggestions on ways to counter the decision's effects; but another possibility - one of the oldest on the books - is also available: Congress could constitutionally remove campaign finance issues from the Supreme Court's appellate jurisdiction.

Every first-year constitutional law student learns that under the Constitution's Article III, section 2 "Exceptions Clause," Congress has complete authority to limit the sorts of cases the Court may hear on appeal:
"[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

As the Court stated in Ex Parte McCardle in 1869: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." Similarly, in 1882 it observed, "[A]ctual [appellate] jurisdiction is confined within such limits as Congress sees fit to describe."

Over one hundred bills have been introduced in Congress to limit the Supreme Court's appellate jurisdiction over various topics just since the 1940s. As recently as 2005, for example, the House passed bills precluding judicial review of the Defense of Marriage Act and of the constitutionality of the Pledge of Allegiance (neither bill passed in the Senate).

Some may object that Congress's use of the Exceptions Clause threatens judicial independence. This is a valid concern. But when the Supreme Court itself indiscriminately infringes on policy decisions appropriately left to the elected branches, Congress is justified in removing some of the Court's independence. That is the very purpose of the Exceptions Clause, after all - it was placed in the Constitution for a reason.

Some may say, moreover, that removing the Court's appellate jurisdiction in campaign finance cases is an instance of trying to close the door after the horse is already out of the barn. True enough - Citizens United is on the books. But removing the Court's appellate jurisdiction in future campaign finance cases will prevent the Court from interfering with Congress's future efforts to restore its century-long effort to curb the negative effects of massive infusions of corporate cash into political campaigns.

In short, Congress has the constitutional authority to limit the Supreme Court's appellate jurisdiction in campaign finance cases. While use of the Exceptions Clause should not be undertaken lightly - judicial review is vitally important for checking majority excesses - when the Supreme Court so egregiously oversteps its bounds as it did in Citizens United, Congress's exercise of its Exceptions clause power is entirely appropriate.

Friday, January 29, 2010

McDonald v. Chicago - Essay in Cardozo Law Review de novo Online Journal

The Cardozo Law Review de novo online journal just published my essay entitled "The Potentially Expansive Reach of McDonald v. Chicago: Enabling the Privileges or Immunities Clause," in a feature it entitles "Firearms, Inc." The essay may be seen here.

The essay briefly reviews the sad history of how the Supreme Court buried the Privileges or Immunities clause in 1873, just five years after its birth; then offers a possible doctrinal approach were the Court to move forward in finally giving proper effect to the Privileges or Immunities clause.

Saturday, January 23, 2010

Health Care; Corporate Speech Case

I'm on deadline trying to finish a book, but just a few thoughts about the Massachusetts election and the Supreme Court corporate speech case:

-The Congressional Democrats' incompetence. After last year's election the Democrats controlled both houses of Congress, WITH a filibuster-proof 60% majority in the Senate; and yet, they were unable to get their s**t together enough to pass a healthcare bill. And now that they've lost their 60%, they're folding up like a cheap tent - failing to recognize they were elected to make meaningful change. In the face of the criticism from obstructionist Republicans, they cave. If Democrats couldn't get it done under these conditions, they'll never get it done - and they'll deserve to be swept out of office in the next elections.

On this topic see also Paul Krugman in the Times in "Do the Right Thing":

"A message to House Democrats: This is your moment of truth. You can do the right thing and pass the Senate health care bill. Or you can look for an easy way out, make excuses and fail the test of history.... Ladies and gentlemen, the nation is waiting. Stop whining, and do what needs to be done."

-Corporate Speech Case: Thursday's Citizens United opinion by the Supreme Court entirely distorts the First Amendment by extending broad free speech principles to corporations. NOTHING in the Constitution extends constitutional rights to corporations. Over 100 years ago the Court (erroneously) extended the definition of the word "person" in the 5th and 14th amendment Due Process clauses to apply to corporations; and, ever since, we've had many anomalous court decisions as a result. The Citizens United case is the logical endpoint of that doctrine - and now corporations, with their disproportionate money-making capabilities, will be able to spend without limit in political campaigns.

Think about it - we all know how powerful any message sent through the broadcast media can be. Ordinary individuals simply do not have the resources to compete in this forum, so the result of corporations (which naturally favor - surprise! - conservative Republican viewpoints) having no limits on campaign spending will be to create an unlevel, skewed playing field.

It's disingenuous for the Court to say that meaningful limits on speech violate the First Amendment. Even assuming the ludicrous that a corporation is a “person” in the fullest constitutional sense, all of any person’s constitutional rights are subject to reasonable limits so long as the limits are narrowly tailored and serve a compelling governmental purpose – a cardinal principle the Court chooses to ignore in Citizens United.

Monday, January 18, 2010

Same-Sex Marriage Case in California

In "An Odd Couple Defends Couples That Some (Oddly) Find Odd" in yesterday's New York Times, Maureen Dowd describes the intriguing lawyer-team of Ted Olsen and David Boies (former adversaries in the 2000 Bush v. Gore case), who are now arguing together against the constitutionality of California's Proposition 8 in the U.S. District Court in California.

“'Ted Olson and David Boies, so what are they up to?'” Dowd reports Olson mock querying, "summarizing the confusion and conspiracy theories that their union inspired.

"As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: 'We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.'

"Boies, wearing a flag pin on his lapel, said that the state of California is engaged in 'gay bashing.' He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: 'These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.'

"Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: 'Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.' ...

"'I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,' he said. 'We’re not treating them like Americans. We’re not treating them like citizens.'

"Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. ....

"'I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,' Boies said. 'It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.'"

Indeed. Today we look back on state laws that forbade inter-racial marriage with a degree of disbelief. But it was just forty years ago that the Supreme Court in Loving v. Virginia struck down the laws of 16 states that did just that. Forty or fifty years from now, we will look back on today's discrimination against same-sex marriage with similar disbelief.

Dowd continues: "The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience 'weakens our moral fiber in this country.'

"While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.

"I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.

“'Damned right,' Boies snapped. 'I hope my Democratic president will catch up to my conservative Republican co-counsel.'

"Olson added: 'I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’

"Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about."

Saturday, January 2, 2010

Terrific WaPo Farewell Column by Ellen Goodman

After 46 years as a journalist (34 years of them writing OpEds for the Washington Post Writers Group), columnist Ellen Goodman is retiring; and she writes a terrific farewell column in yesterday's Washington Post.

Pondering what will be her response to the inevitable "what will you do now?" queries, she considers "coopt[ing] Susan Stamberg's one-word answer when she left her anchor post at NPR: 'Less.'" She is "more tempted to say, simply, 'We'll see.' After 46 years of deadlines," she concludes, "it is time to take in some oxygen, to breathe and consider."

Ms. Goodman recalls a column from three decades earlier, when she had written of another's retirement:

"'There's a trick to the Graceful Exit. It begins with the vision to recognize when a job, a life stage, a relationship is over -- and to let go. It means leaving what's over without denying its validity or its past importance in our lives.'

"'It involves a sense of future, a belief that every exit line is an entry, that we are moving on rather than out.'

"It was an odd experience to hear, let alone heed, my younger self.

"'The trick of retiring well may be the trick of living well,' I wrote back then. 'It's hard to recognize that life isn't a holding action, but a process. It's hard to learn that we don't leave the best parts of ourselves behind, back in the dugout or the office. We own what we learned back there. The experiences and the growth are grafted onto our lives. And when we exit, we can take ourselves along -- quite gracefully.'"

So what are Ms. Goodman's final concluding words in this final concluding column?

"[My younger self] knew then what I know much more intimately now," she observes. "So, with her blessing, I will let myself go. And go for it."

Well-done, Ellen Goodman, and godspeed.