Most, but not all, of the Bill of Rights have been held by the U.S. Supreme Court to apply to the states through the doctrine of "selective incorporation" under the 14th amendment due process clause. As I've argued here previously, it is improper that not ALL of the Bill of Rights have been applied to the states through the 14th amendment privileges or immunities clause ever since the amendment's 1868 ratification, since that was in fact the clearly-stated intent of the framers of the 14th amendment.
Yesterday, in Nordyke v. King, the Ninth Circuit Court of Appeals correctly held that the Second Amendment is incorporated to apply to the states - but it did so using the same "selective incorporation" process instead of the privileges or immunities clause. (Professors Michael Kent Curtis, Richard Aynes, William Van Alstyne and I argued in an amicus (friend of the court) brief in the case in favor of the privileges or immunities clause approach.) Actually the court's use of selective incorporation is not surprising; it will take a decision from the U.S. Supreme Court to re-invigorate the privileges or immunities clause - which has lain dormant since the egregious 1873 Slaughter-House Cases opinion which buried it alive. On another positive note, however, the Ninth Circuit did acknowledge our argument in footnote 5 (citing to my Missouri Law Review article):
"We are aware that judges and academics have criticized Slaughter-House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of [the Supreme Court’s] Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.”); id. at 522 n.1 (collecting academic sources); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or Immunities Clause applies against the states all “personal privileges” of individual citizens, whether enumerated in the Bill of Rights or not, but not the rights of the states or the general public)...."
For its part, the Seventh Circuit Court of Appeals in McDonald v. Chicago will soon decide whether the second amendment is incorporated to apply to the states. We have also filed an amicus brief in McDonald, arguing again for incorporation through the privileges or immunities clause. In all likelihood, the Seventh Circuit also will play it safe and find the second amendment is "selectively" incorporated through the due process clause.
Both of these cases are sure to be appealed to the U.S. Supreme Court - and that will be where our privileges or immunities clause arguments will be truly considered (we HOPE). As I claim in my earlier works, a judicial reinvigoration of the privileges or immunities clause can have profound effects on how we view individual liberty vis-a-vis government in America.
Stay tuned!
Tuesday, April 21, 2009
Thursday, April 9, 2009
Obama and the Muslim World
What a welcome change to have a U.S. president who engages the world, rather than try to bully it. President Obama's recent trip to the G-20 conference, after which he made a stop in Turkey to engage the Muslim world, demonstrates true cooperative leadership that is bound to reap much greater long-term rewards.
The Muslim world, for example, is hopeful that relations can improve. In an AP story reported on MSNBC, "'Everyone is optimistic about this man,' Nasser Abu Kwaik, a barber in the West Bank town of al-Beireh, said Wednesday. 'He is different, and he could be a friend to the Muslim world.'
"Many in Muslim countries echoed the words of one Indonesian woman, 'I believe him.'
"'For the Islamic world,' Obama's comments 'are like a fresh breeze,' said Ikana Mardiastuti, who works at a Jakarta research institute."
MSNBC continues, "A town-hall meeting in Istanbul on Tuesday was also a strong symbol, with Obama answering questions from university students. To some it sent a message that this president talks to Muslims, dramatically different from the perception many had of Bush as domineering, warlike and imposing U.S. policy.
"Even an offhand comment that he had to wrap up the town-hall before the afternoon call to Islamic prayers showed an easy familiarity with the rhythms of Muslims' lives.
"'He's a modest person with a humanitarian view on world issues, particularly those relating to the Arab and Islamic worlds,' said Jamal Dahan, a 50-year-old resident of the Lebanese capital Beirut. 'Bush, on the other hand, was an arrogant man who only knew military power.'
"Even hard-liners took notice. Iranian President Mahmoud Ahmadinejad said his country welcomes talks with the United States if Obama proves 'honest' in extending the U.S. hand to Iran, one of his strongest signals yet of openness to Obama's calls for dialogue.
"A cleric at the prominent Shiite seminary in the Iraqi holy city of Najaf — where disdain for Bush's policies is high — was enthusiastic. 'The Islamic world should avail itself of this positive opportunity,' said Sheik Nimaa Al-Abadi. 'The opening chapter of Obama in the Islamic world might be a real turning point.'
Naysayers of course will criticize Obama as being too soft, or of "appeasing the enemy," but the comments of those who have reason to truly understand terrorism and its motivations should (but likely won't) open the eyes of neo-cons and others who claim to be driven by the goal of defeating terrorism: Obama "'will make it more difficult to recruit young Muslim men to carry out terrorist acts. They (militants) no longer have the argument to do so,' said Mohammed al-Nujaimi, a cleric on a government committee for rehabilitating militants away from extremism." In short, Obama's outreach vastly diminishes the appeal of terror groups.
What a welcome change, indeed.
The Muslim world, for example, is hopeful that relations can improve. In an AP story reported on MSNBC, "'Everyone is optimistic about this man,' Nasser Abu Kwaik, a barber in the West Bank town of al-Beireh, said Wednesday. 'He is different, and he could be a friend to the Muslim world.'
"Many in Muslim countries echoed the words of one Indonesian woman, 'I believe him.'
"'For the Islamic world,' Obama's comments 'are like a fresh breeze,' said Ikana Mardiastuti, who works at a Jakarta research institute."
MSNBC continues, "A town-hall meeting in Istanbul on Tuesday was also a strong symbol, with Obama answering questions from university students. To some it sent a message that this president talks to Muslims, dramatically different from the perception many had of Bush as domineering, warlike and imposing U.S. policy.
"Even an offhand comment that he had to wrap up the town-hall before the afternoon call to Islamic prayers showed an easy familiarity with the rhythms of Muslims' lives.
"'He's a modest person with a humanitarian view on world issues, particularly those relating to the Arab and Islamic worlds,' said Jamal Dahan, a 50-year-old resident of the Lebanese capital Beirut. 'Bush, on the other hand, was an arrogant man who only knew military power.'
"Even hard-liners took notice. Iranian President Mahmoud Ahmadinejad said his country welcomes talks with the United States if Obama proves 'honest' in extending the U.S. hand to Iran, one of his strongest signals yet of openness to Obama's calls for dialogue.
"A cleric at the prominent Shiite seminary in the Iraqi holy city of Najaf — where disdain for Bush's policies is high — was enthusiastic. 'The Islamic world should avail itself of this positive opportunity,' said Sheik Nimaa Al-Abadi. 'The opening chapter of Obama in the Islamic world might be a real turning point.'
Naysayers of course will criticize Obama as being too soft, or of "appeasing the enemy," but the comments of those who have reason to truly understand terrorism and its motivations should (but likely won't) open the eyes of neo-cons and others who claim to be driven by the goal of defeating terrorism: Obama "'will make it more difficult to recruit young Muslim men to carry out terrorist acts. They (militants) no longer have the argument to do so,' said Mohammed al-Nujaimi, a cleric on a government committee for rehabilitating militants away from extremism." In short, Obama's outreach vastly diminishes the appeal of terror groups.
What a welcome change, indeed.
Same-Sex Marriage Gains - Iowa, DC and Vermont
Within the last week we've seen three more important steps toward the inevitable: national recognition that same-sex marriage is a constitutional right (or, more specifically, that any statutory differentiations based on sexual orientation for allowing people to enjoy the state-sanctioned benefits of marriage violate the fourteenth-amendment equal protection clause).
Last Friday, April 3, the Iowa Supreme Court unanimously held that the state's statutory ban on same-sex marriage is unconstitutional; then day before yesterday, Tuesday, April 7, the DC Council decided to recognize gay marriage performed elsewhere, and the Vermont legislature voted (over the governor's veto) to legalize gay marriage. (That Vermont thus becomes the first elected state legislature - as opposed to state Supreme Courts, in Massachusetts, Connecticut and now Iowa -to legalize same-sex marriage is not surprising; nine years ago, Vermont was the first state to legalize civil unions between same-sex couples.)
With these actions, we're seeing a work-in-progress of how basic rights and equal justice often become constitutionally recognized by the U.S. Supreme Court - momentum first builds in the states, then the Court settles the question in an appropriate case. The most apt analogy to what is happening now is what happened nearly 40 years ago on the issue of interracial marriage, when in the 1967 case of Loving v. Virginia the Court struck down state laws prohibiting interracial marriage. Today we view state laws banning interracial marriage as unbelievably unjust; as I suggest to my Constitutional Law students every year, in another forty years we'll view these state laws banning same-sex marriage with similar disbelief.
It's only a matter of time before the U.S. Supreme Court settles the question in favor of same-sex marriage as well - thus honoring the spirit of equal justice set forth in the Declaration of Independence and Constitution.
Last Friday, April 3, the Iowa Supreme Court unanimously held that the state's statutory ban on same-sex marriage is unconstitutional; then day before yesterday, Tuesday, April 7, the DC Council decided to recognize gay marriage performed elsewhere, and the Vermont legislature voted (over the governor's veto) to legalize gay marriage. (That Vermont thus becomes the first elected state legislature - as opposed to state Supreme Courts, in Massachusetts, Connecticut and now Iowa -to legalize same-sex marriage is not surprising; nine years ago, Vermont was the first state to legalize civil unions between same-sex couples.)
With these actions, we're seeing a work-in-progress of how basic rights and equal justice often become constitutionally recognized by the U.S. Supreme Court - momentum first builds in the states, then the Court settles the question in an appropriate case. The most apt analogy to what is happening now is what happened nearly 40 years ago on the issue of interracial marriage, when in the 1967 case of Loving v. Virginia the Court struck down state laws prohibiting interracial marriage. Today we view state laws banning interracial marriage as unbelievably unjust; as I suggest to my Constitutional Law students every year, in another forty years we'll view these state laws banning same-sex marriage with similar disbelief.
It's only a matter of time before the U.S. Supreme Court settles the question in favor of same-sex marriage as well - thus honoring the spirit of equal justice set forth in the Declaration of Independence and Constitution.
Wednesday, April 1, 2009
Information Overload
As I find myself some weeks spending not as much time with the newspaper, switching from NPR or other news sources to the local jazz station, or consciously avoiding lengthy discussions with others about current events, Kathleen Parker's column in today's Washington Post strikes a chord.
In "Turn Off, Tune Out, Drop In," Parker asks, "What if everybody just took a timeout?"
"Now there's a concept for a [Too-Much-Information]-addled nation. It isn't only Too Much Information, but the pitch and tenor of delivery that have us in a persistent state of psychic frenzy. From cable news to microblogs to the latest -- "Fox Nation" -- life's background music has become one prolonged car alarm. "
Parker continues, "with so much data coming from all directions, we risk paralysis. Brain freeze, some call it. More important, we also risk losing our ability to process the Big Ideas that might actually serve us better. It isn't only Jack and Jill who are tethered to the Twittering masses, after all. Our thinkers at the highest levels are, too....
"[B]rain research shows that we do our best thinking when we're not engaged and focused, yet fewer of us have time for downtime....
"More likely, the ideas that save the world will present themselves in the shower or while we're sweeping the front stoop. What the world needs now isn't more, but less. The alternative to mindless activities for the mindful is turning out to be not a less-informed nation but a dumber one.
"Unchecked "infomania" -- yes, there's even a term for this instapathology -- can lead to a lower IQ, according to a 2005 Hewlett-Packard study. The research, conducted by a University of London psychologist, found that people distracted by e-mail and phone calls lost 10 IQ points, more than twice the impact of smoking marijuana -- or comparable to losing a night's sleep."
Amen. Between work and family obligations, life is busy; and with media and devices of all sorts contantly bombarding us with ever-more news and information, it all becomes a bit overwhelming. At a certain point, one just needs to find a quiet place (which, let's face it, is easier to do now that competent adults are in charge in Washington).
In "Turn Off, Tune Out, Drop In," Parker asks, "What if everybody just took a timeout?"
"Now there's a concept for a [Too-Much-Information]-addled nation. It isn't only Too Much Information, but the pitch and tenor of delivery that have us in a persistent state of psychic frenzy. From cable news to microblogs to the latest -- "Fox Nation" -- life's background music has become one prolonged car alarm. "
Parker continues, "with so much data coming from all directions, we risk paralysis. Brain freeze, some call it. More important, we also risk losing our ability to process the Big Ideas that might actually serve us better. It isn't only Jack and Jill who are tethered to the Twittering masses, after all. Our thinkers at the highest levels are, too....
"[B]rain research shows that we do our best thinking when we're not engaged and focused, yet fewer of us have time for downtime....
"More likely, the ideas that save the world will present themselves in the shower or while we're sweeping the front stoop. What the world needs now isn't more, but less. The alternative to mindless activities for the mindful is turning out to be not a less-informed nation but a dumber one.
"Unchecked "infomania" -- yes, there's even a term for this instapathology -- can lead to a lower IQ, according to a 2005 Hewlett-Packard study. The research, conducted by a University of London psychologist, found that people distracted by e-mail and phone calls lost 10 IQ points, more than twice the impact of smoking marijuana -- or comparable to losing a night's sleep."
Amen. Between work and family obligations, life is busy; and with media and devices of all sorts contantly bombarding us with ever-more news and information, it all becomes a bit overwhelming. At a certain point, one just needs to find a quiet place (which, let's face it, is easier to do now that competent adults are in charge in Washington).
Saturday, March 14, 2009
Ginsburg: Opening Soon on Supreme Court; Qualities of the Next Justice
With Justice Ruth Bader Ginsburg’s veiled hint yesterday of an impending vacancy on the U.S. Supreme Court, speculation about the necessary qualities of the next Justice will now begin in earnest.
By far the most important criterion for any new Justice is a judicial philosophy that embraces a healthy respect for the vital role played by judicial review in guaranteeing liberty and equal justice for all. (Gender will also be a key criterion if the vacancy is created by the retirement of Justice Ginsburg herself - it is unimaginable that the twenty-first century Supreme Court would not count at least one woman among its members.)
Judicial review, the Court’s power to correct the unconstitutional actions of the legislative and executive branches, is precisely how the framers originally envisioned the Court’s role in the constitutional design.
James Madison, for example, 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.”
In principle, judges and scholars from across the political spectrum agree on these basics. 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 "undemocratic" judicial review is “activist” and will almost always constitute inappropriate “legislating from the bench.” (This position is consistently held by a bare minority (four) of the current Supreme Court Justices, which explains the critical importance of the next Justice’s views on the matter.) What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government is to protect liberty and equal justice. As amply 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.
So as President Obama looks at candidates for a Supreme Court vacancy, he should insist on a person whose judicial philosophy includes a strong understanding of the important role judicial review has played throughout American history in vindicating individual rights and ensuring equal justice for all. The U.S. Supreme Court must not shrink from fulfilling its crucial - yes, active - original constitutional role of critically reviewing the actions of the executive and legislative branches and striking them down where necessary.
By far the most important criterion for any new Justice is a judicial philosophy that embraces a healthy respect for the vital role played by judicial review in guaranteeing liberty and equal justice for all. (Gender will also be a key criterion if the vacancy is created by the retirement of Justice Ginsburg herself - it is unimaginable that the twenty-first century Supreme Court would not count at least one woman among its members.)
Judicial review, the Court’s power to correct the unconstitutional actions of the legislative and executive branches, is precisely how the framers originally envisioned the Court’s role in the constitutional design.
James Madison, for example, 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.”
In principle, judges and scholars from across the political spectrum agree on these basics. 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 "undemocratic" judicial review is “activist” and will almost always constitute inappropriate “legislating from the bench.” (This position is consistently held by a bare minority (four) of the current Supreme Court Justices, which explains the critical importance of the next Justice’s views on the matter.) What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government is to protect liberty and equal justice. As amply 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.
So as President Obama looks at candidates for a Supreme Court vacancy, he should insist on a person whose judicial philosophy includes a strong understanding of the important role judicial review has played throughout American history in vindicating individual rights and ensuring equal justice for all. The U.S. Supreme Court must not shrink from fulfilling its crucial - yes, active - original constitutional role of critically reviewing the actions of the executive and legislative branches and striking them down where necessary.
Tuesday, March 10, 2009
Dharma: Heaven or Hell
A big, burly samurai comes to a Zen master and says, “Tell me the nature of heaven and hell.”
The Zen master looks him in the face and says, “Why should I tell a scruffy, disgusting, miserable slob like you? A worm like you, do you think I should tell you anything?”
Consumed by rage, the samurai draws his sword and raises it to cut off the master’s head.
The Zen master says, “That’s hell.”
Instantly, the samurai understands that he has created his own hell—black and hot, filled with hatred, self-protection, anger, and resentment.
He sees that he was so deep in hell that he was ready to kill someone. Tears fill his eyes as he puts his palms together to bow in gratitude for this insight.
The Zen master says, “That’s heaven.”
- Pema Chodron, from Comfortable with Uncertainty: 108 Teachings (Shambhala Publications, 2002)
The Zen master looks him in the face and says, “Why should I tell a scruffy, disgusting, miserable slob like you? A worm like you, do you think I should tell you anything?”
Consumed by rage, the samurai draws his sword and raises it to cut off the master’s head.
The Zen master says, “That’s hell.”
Instantly, the samurai understands that he has created his own hell—black and hot, filled with hatred, self-protection, anger, and resentment.
He sees that he was so deep in hell that he was ready to kill someone. Tears fill his eyes as he puts his palms together to bow in gratitude for this insight.
The Zen master says, “That’s heaven.”
- Pema Chodron, from Comfortable with Uncertainty: 108 Teachings (Shambhala Publications, 2002)
Wednesday, March 4, 2009
Raymar Morgan Clutch Dunk
One of the great things about sports is the opportunities it presents for great plays.
Every game, from beginners (what parent isn't thrilled to see his/her young kid running around out on the field and making a nice catch or kick?) to pros, offers these moments. ESPN has its highly entertaining top ten plays of the day which highlight some of the best examples of pure athleticism of the day, regardless of the game context.
There's another kind of great play that's even more impressive - one that combines a feat of great athleticism (or great thinking) at a highly crucial moment in a contest. Recent prominent examples in pro football are the last two Super Bowls, with Santonio Holmes' catch on 3rd down with less than a minute left to win the game against the Arizona Cardinals; and David Tyree's last-minute 3rd down catch in last year's game to keep alive the Giants' game-winning drive. From the 2008 college football season the highlight was Michael Crabtree's (Texas Tech) last-second touchdown against Texas, which entirely changed the complexion of the college football season (by knocking Texas out of the No. 1 spot, and ultimately denying them the chance to play in the national championship game).
Raymar Morgan of the Michigan State basketball team made such a jump-out-of-your-chair clutch play in last night's Big Ten basketball game that sealed a victory guaranteeing the Spartans outright Big Ten championship.
Setting the stage: MSU had led against Indiana by 13 points with 9 minutes left, but then it failed to score another field goal for another 8 minutes, allowing Indiana to cut the lead to 2, with several chances to tie. Then, with less than a minute left, Morgan made his play, snatching a rebound with one hand and in one motion dunking it to give MSU a virtually insurmountable 4-point lead. Check it out.
Every game, from beginners (what parent isn't thrilled to see his/her young kid running around out on the field and making a nice catch or kick?) to pros, offers these moments. ESPN has its highly entertaining top ten plays of the day which highlight some of the best examples of pure athleticism of the day, regardless of the game context.
There's another kind of great play that's even more impressive - one that combines a feat of great athleticism (or great thinking) at a highly crucial moment in a contest. Recent prominent examples in pro football are the last two Super Bowls, with Santonio Holmes' catch on 3rd down with less than a minute left to win the game against the Arizona Cardinals; and David Tyree's last-minute 3rd down catch in last year's game to keep alive the Giants' game-winning drive. From the 2008 college football season the highlight was Michael Crabtree's (Texas Tech) last-second touchdown against Texas, which entirely changed the complexion of the college football season (by knocking Texas out of the No. 1 spot, and ultimately denying them the chance to play in the national championship game).
Raymar Morgan of the Michigan State basketball team made such a jump-out-of-your-chair clutch play in last night's Big Ten basketball game that sealed a victory guaranteeing the Spartans outright Big Ten championship.
Setting the stage: MSU had led against Indiana by 13 points with 9 minutes left, but then it failed to score another field goal for another 8 minutes, allowing Indiana to cut the lead to 2, with several chances to tie. Then, with less than a minute left, Morgan made his play, snatching a rebound with one hand and in one motion dunking it to give MSU a virtually insurmountable 4-point lead. Check it out.
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