Answer: Yes.
See my article, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=723501, just out in hardcopy with the Missouri Law Review.
When I started thinking about this article a few years back, I was prepared to argue that (1) the second amendment does not protect an "individual right," and (2) the second amendment does not apply to individual states, so they should therefore be allowed to outlaw guns.
This was my liberal wishful thinking, anyway, that government should be able to regulate anything as harmful as guns in our society (homicide rate of 4.3 per 100,000, more than 5 times the next highest rate among industrialized nations (Italy)).
But after looking into the history of the debates, etc., it soon became apparent that the overwhelming weight of evidence supports the contrary position, that (1) the second amendment WAS intended to protect an individual right; and (2) the entire bill of rights - including the second amendment - was affirmatively applied to the states in 1868 through the fourteenth amendment privileges or immunities clause (or, alternatively, through the Supreme Court's unnecessarily-tortured "selective incorporation" doctrine premised on the fourteenth amendment due process clause). And as much as I or anyone else might wish it to be otherwise, we can't simply pick and choose from among the constitutional provisions we like and do not like - if we are to maintain fidelity to the notion of constitutional government, we must give effect to the ENTIRE Constitution. (On this point, see also my letter to the New York Times on March, 19, 2007.)
But, as I say in the article (fn. 5), to say that a right like the second amendment is entitled to constitutional protection is NOT to say the right cannot be meaningfully regulated. As Harvard law professor Laurence Tribe notes, "[measures that] by and large do not seek to ban all firearms, but seek only to prohibit a narrow type of weaponry (such as assault rifles) or to regulate gun ownership by means of waiting periods, registration, mandatory safety devices, or the like ... are plainly constitutional.... Even in colonial time the weaponry of the militia was subject to regulation."
Here's the full abstract to the Missouri Law Review article:
"The second amendment, alternately maligned over the years as the black sheep of the constitutional family and praised as a palladium of the liberties of a republic, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.
This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or immunities clause. Such judicial recognition of the clause is necessary to respect the Framers’ vision, as inspired by the Declaration of Independence and laid out in the amended Constitution, for a government that would serve, instead of rule, the people. Government would exercise its necessary, limited role, and otherwise leave the people alone, with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do."
Showing posts sorted by relevance for query "does second amendment apply". Sort by date Show all posts
Showing posts sorted by relevance for query "does second amendment apply". Sort by date Show all posts
Friday, October 26, 2007
Thursday, March 13, 2008
Second Amendment Case - The Technical Arguments
What specific technical arguments will the Supreme Court hear in DC v. Heller, the historic Second Amendment case to be argued before the Court on March 18, 2008, in which the Court will decide whether the Second Amendment protects a States’-right, as opposed to an individual-right, to keep and bear arms? (Basically, if the amendment is found to protect an individual right, Congress may not ban an ordinary person from having a gun.)
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This language is far from clear, so it is understandable how, based on the text alone, one could argue either that the amendment protects a States’-right or an individual-right.
There is general agreement among all that the first, prefatory clause (“A well regulated Militia, being necessary to the security of a free State,”) declares the amendment’s civic purpose - insuring the continuance of the militia system; but there is major disagreement on whether that purpose was exclusive of the second, operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Supporters of the individual-right interpretation argue the prefatory clause is not exclusive – i.e., that it merely announces the desirability of a well-regulated militia and informs the meaning of the ambiguous term “Arms” within the more broadly-stated operative clause that follows. They argue the more natural reading of the operative clause is to guarantee to the people an individual right to keep and bear arms free of government infringement.
In contrast, supporters of the States’-right approach argue, in the words of the lower court, “that the prefatory clause declares the amendment’s only purpose – to shield the state militias from federal encroachment – and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.”
There is further disagreement on the meaning of the amendment’s individual words and phrases, such as “the people.” Individual-right supporters note that the phrase is also found in the First, Second, Fourth, Ninth, and Tenth Amendments, all of which protect an individual right against government infringement. It follows, they argue, that the most natural reading of “people” in the Second Amendment would be to apply the word in terms consistent with its usage elsewhere in the Bill of Rights. In contrast, proponents of the States’ right theory read “’the people’ to mean some subset of individuals such as ‘the organized militia’ or ‘the people who are engaged in militia service,’ or perhaps not any individuals at all - e.g., ‘the States.’”
The Court will also consider the meaning of “to keep and bear arms.” While supporters of the collective-right theory will point to convincing evidence that the phrase was commonly used in the founding era to mean “soldiering,” individual-rights theorists will cite equally convincing evidence from contemporaneous state constitutional provisions suggesting the phrase was also understood to include the carrying of arms for self-defense and other private purposes.
Likewise, “a well regulated Militia” is subject to dramatically varying meanings under the different viewpoints, and the Court will hear detailed and convincing arguments both ways. While the individual rights position argues that the word “Militia” is synonymous with “the people,” States’-right advocates offer a much more limited definition in which the Militia was a group of adult men well-regulated and organized by the State as a civilian fighting force. As the lower court observes, “The crucial distinction between the parties' views then goes to the nature of the militia: [Individual-right proponents] claim no organization was required, whereas the [States’-right adherents] claim a militia did not exist unless it was subject to state [regulation,] discipline and leadership.”
Finally, the Court will consider the impact of U.S. v. Miller in 1939, the only case in the past century-plus in which the High Court has addressed a Second Amendment issue. While each side will lay claim to Miller as precedent for its respective position, in the end Miller is, in a word, inconclusive. If anything, Miller’s reasoning in holding that the word “Arms” in the Second Amendment does not include sawed-off shotguns would seem to favor the individual-right position.
In conclusion, regardless of how the Court decides in DC v. Heller, the case should be entertaining theater.
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This language is far from clear, so it is understandable how, based on the text alone, one could argue either that the amendment protects a States’-right or an individual-right.
There is general agreement among all that the first, prefatory clause (“A well regulated Militia, being necessary to the security of a free State,”) declares the amendment’s civic purpose - insuring the continuance of the militia system; but there is major disagreement on whether that purpose was exclusive of the second, operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Supporters of the individual-right interpretation argue the prefatory clause is not exclusive – i.e., that it merely announces the desirability of a well-regulated militia and informs the meaning of the ambiguous term “Arms” within the more broadly-stated operative clause that follows. They argue the more natural reading of the operative clause is to guarantee to the people an individual right to keep and bear arms free of government infringement.
In contrast, supporters of the States’-right approach argue, in the words of the lower court, “that the prefatory clause declares the amendment’s only purpose – to shield the state militias from federal encroachment – and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.”
There is further disagreement on the meaning of the amendment’s individual words and phrases, such as “the people.” Individual-right supporters note that the phrase is also found in the First, Second, Fourth, Ninth, and Tenth Amendments, all of which protect an individual right against government infringement. It follows, they argue, that the most natural reading of “people” in the Second Amendment would be to apply the word in terms consistent with its usage elsewhere in the Bill of Rights. In contrast, proponents of the States’ right theory read “’the people’ to mean some subset of individuals such as ‘the organized militia’ or ‘the people who are engaged in militia service,’ or perhaps not any individuals at all - e.g., ‘the States.’”
The Court will also consider the meaning of “to keep and bear arms.” While supporters of the collective-right theory will point to convincing evidence that the phrase was commonly used in the founding era to mean “soldiering,” individual-rights theorists will cite equally convincing evidence from contemporaneous state constitutional provisions suggesting the phrase was also understood to include the carrying of arms for self-defense and other private purposes.
Likewise, “a well regulated Militia” is subject to dramatically varying meanings under the different viewpoints, and the Court will hear detailed and convincing arguments both ways. While the individual rights position argues that the word “Militia” is synonymous with “the people,” States’-right advocates offer a much more limited definition in which the Militia was a group of adult men well-regulated and organized by the State as a civilian fighting force. As the lower court observes, “The crucial distinction between the parties' views then goes to the nature of the militia: [Individual-right proponents] claim no organization was required, whereas the [States’-right adherents] claim a militia did not exist unless it was subject to state [regulation,] discipline and leadership.”
Finally, the Court will consider the impact of U.S. v. Miller in 1939, the only case in the past century-plus in which the High Court has addressed a Second Amendment issue. While each side will lay claim to Miller as precedent for its respective position, in the end Miller is, in a word, inconclusive. If anything, Miller’s reasoning in holding that the word “Arms” in the Second Amendment does not include sawed-off shotguns would seem to favor the individual-right position.
In conclusion, regardless of how the Court decides in DC v. Heller, the case should be entertaining theater.
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.
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, February 24, 2009
Legal Times Article on McDonald v. Chicago Amicus Brief
The amicus curiae brief Professors Jack Balkin, Michael Curtis, Richard Aynes and I submitted recently together with the Constitutional Accountability Center in the McDonald v. Chicago case before the Seventh Circuit Court of Appeals is the subject of a front page story in the the current issue of the Legal Times.
Tony Mauro does a nice job in the article, "Liberals Use Gun Case to Bolster Other Rights," of describing our arguments (which I've also previously made in these pages), which essentially assert that the Fourteenth Amendment Privileges or Immunities Clause applies the entire Bill of Rights (as well as many other basic rights and protections) to the States.
Characterizing that the 2008 DC v. Heller case as a "constitutional earthquake," Mauro goes on to say:
"In a follow-on case pending before the U.S. Court of Appeals for the 7th Circuit, a progressive legal group and liberal law professors including Yale Law School's Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city's strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court.
"But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as "incorporation").
"That new pathway runs through the long-dormant "privileges or immunities" clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language-"No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States"-is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the
20th century-namely, the 14th Amendment's due process clause.
"Use of the due process clause has led to "the constitutional equivalent of a food fight" with conservative justices increasingly wary of expanding or creating new rights because of the clause's process-oriented scope, says Douglas Kendall, founder of the D.C.-based Constitutional Accountability Center. Kendall says invoking "privileges or immunities" would have a "lift-all-boats" effect, strengthening free speech, and possibly even abortion and gay rights, at the same time that it bolsters the right to bear arms."
Oral arguments in the McDonald v. Chicago case are not yet scheduled, but should be coming up in the next few months.
Tony Mauro does a nice job in the article, "Liberals Use Gun Case to Bolster Other Rights," of describing our arguments (which I've also previously made in these pages), which essentially assert that the Fourteenth Amendment Privileges or Immunities Clause applies the entire Bill of Rights (as well as many other basic rights and protections) to the States.
Characterizing that the 2008 DC v. Heller case as a "constitutional earthquake," Mauro goes on to say:
"In a follow-on case pending before the U.S. Court of Appeals for the 7th Circuit, a progressive legal group and liberal law professors including Yale Law School's Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city's strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court.
"But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as "incorporation").
"That new pathway runs through the long-dormant "privileges or immunities" clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language-"No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States"-is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the
20th century-namely, the 14th Amendment's due process clause.
"Use of the due process clause has led to "the constitutional equivalent of a food fight" with conservative justices increasingly wary of expanding or creating new rights because of the clause's process-oriented scope, says Douglas Kendall, founder of the D.C.-based Constitutional Accountability Center. Kendall says invoking "privileges or immunities" would have a "lift-all-boats" effect, strengthening free speech, and possibly even abortion and gay rights, at the same time that it bolsters the right to bear arms."
Oral arguments in the McDonald v. Chicago case are not yet scheduled, but should be coming up in the next few months.
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.
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.
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