Deborah Pearlstein asks what evidence we have that the right to keep and bear arms is a fundamental right of the same kind as other fundamental rights, such as those mentioned in the Bill of Rights. I can offer no better evidence than the speech offered by Senator Jacob Howard, a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment and the floor manager of the Fourteenth Amendment. He was given the task of introducing the amendment before the United States Senate and explaining its purposes.

* * * * *

SENATOR JACOB HOWARD, SPEECH INTRODUCING THE FOURTEENTH AMENDMENT
Speech delivered in the U.S. Senate, May 23, 1866 [CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866).]

Mr. HOWARD. . . . I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced th[e] committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish. . . . .

This op-ed by the distinguished historian Eric Foner reminds us that January 1st we celebrate the 200th anniversary of a law banning importation of slaves into the United States. President Jefferson signed the law on March 2, 1807, to take effect January 1, 1808. Trade in slaves within the United States continued until slavery was abolished by the Thirteenth Amendment.

The IntLawGrrls blog has posted a rough transcript of Justice Scalia’s illuminating comments on "so-called" torture in a recent interview with BBC.

BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is a no-brainer?

I'm talking about Mike Huckabee, who just might be the Republican nominee for president -- and no, it is not farfetched at all. CNN and the New York Times can't be bothered to tell you who this guy really is, but Alex Koppelman and Vincent Rossmeier will. It's not a secret either. But the corporate media, the politicians, and religious leaders who are somewhere this side of sane are all afraid to say anything about it.

The candidate's religion is supposed to be off limits. We can't talk about Mormon doctrine and how that might influence a Romney presidency. In fact, it isn't polite even to inquire what it is. The same goes for Huckabee.

Dear Senator McCain:

The White House has now admitted that the United States has waterboarded, that President Bush believes the practice is not torture, and that it violates neither the anti-torture statute, the McCain Amendment (which you sponsored) nor the Military Commissions Act of 2006 (which you voted for).

Will you condemn the White House for its latest admission? Will you say to the President what you said to Rudy Giuliani back in October?

"All I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today," Mr. McCain, who spent more than five years in a North Vietnamese prison camp, said in a telephone interview.

Of presidential candidates like Mr. Giuliani, who say that they are unsure whether waterboarding is torture, Mr. McCain said: "They should know what it is. It is not a complicated procedure. It is torture."

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

I just finished my introduction to the University of Maryland Law Review Symposium: "An Eighteenth Century Constitution in a Twenty-First Century World." The essays are terrific. I hope many of you read them when published. The first paragraph of my introduction declares:

For those interested in avoiding work and/or learning about the new scholarship on race and American Constitutional Development, Professor Michael Klarman of the University of Virginia Law School and I are blogging about his new book, Brown v. Board of Education, and the history of racial equality in the United States over on the website of the American Constitutional Society. Our conversation has ranged from the influence of the Supreme Court on race policy to the political construction of judicial review to the extent to which racial progress in the United States is a function of virtue or interest. Happy reading.

Both Paul Clement and Seth Waxman were superlative -- two of the best at their very best.

Douglas Kmiec is a principled conservative, former head of the OLC under two Republican Administrations. Here is what he had to say about "Law and War":

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted....

We've been hearing a lot of procedural questions in the last few days, so in an act of serious selflessness, we decided to do a little paging through the WGA Constitution so you don't have to.

Here are the questions we've been hearing most:

Can the Board lift the restraining order (meaning the strike) without a general vote of the membership?

Yes. In Article IX, Section 3b, it states that the

I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004. I'll add some highlights here shortly -- in the meantime, go read the responses.

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

I complained over the weekend that no media source had posted Attorney General Mukasey's letter to Speaker Pelosi concerning the referral to the U.S. Attorney of contempt of Congress citations against Harriet Miers and Josh Bolten.

Well, with thanks to the House Judiciary Committee for forwarding it, here it is.

The merits of Mukasey's letter are a bit beside the point, since nothing I or anyone else says will persuade DOJ to refer the citations to the grand jury, and because now the real action is, as predicted, in the civil suit that the House will soon file. Nevertheless, a few things are worth noting briefly:

Following the oral argument in Heller, people have been having a good old time making fun of the Justices and their pretty transparent political motivations. Dahlia Lithwick's amusing account of the oral argument is one of her best.

Although I enjoy making sport of the Justices as much as anyone, the question of whether the 2nd Amendment protects an individual right, including a right to self defense, is not that difficult, at least to me. The framers of the 14th amendment assumed that it was one of the privileges or immunities of citizens of the United States. And if a right is a privilege or immunity of citizens of the United States, it hard for me to conclude that it does not bind the United States as well as the individual states.

Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.

That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?

No, I'm not the one planning to leave the United States.

It's none other than Susan Sarandon, who making such a "threat" should John McCain get elected president this November. She said this in a recent interview.

Good. Do us all a favor and leave if McCain gets elected.

Yep, yet another goofball, batshit left-wing liberal celebrity who takes themselves and their politics way too seriously, and really thinks we give a damn about how they feel politically, and the fact they don't want to live in this country if their candidate isn't elected. Just like Alec (Ireland, You Thoughtless Fat Pig) Baldwin in 2000 who threatened to leave the US if we elected George W. Bush.

How's life in France these days, Alec?

I wish one of these brainless nitwits would actually make good on such baseless threats.

They wouldn't be missed.

Today in Washington, D.C., Doug Kendall will announce the formation of a new public interest law firm, the Constitutional Accountability Center. The new center will be dedicated to litigation that promotes a proper understanding of text, history and structure and that demonstrates that our Constitution, correctly interpreted according to its original meaning, is a progressive document. I'm a member of the Board of Advisors and I wish Doug every success in his efforts.

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

Initial reports are that the Attorney General appointed an "outside" counsel to oversee the criminal investigation of the CIA tape destruction. But there's nothing really "outside" about John Durham. He's a career DOJ prosecutor, the number two official in the U.S. Attorney's Office in Connecticut. As the Attorney General explained today (see statement below), the case would ordinarily be handled by the U.S. Attorney for the Eastern District of Virginia, but that U.S. Attorney requested that his office be recused from the matter "in order to avoid any possible appearance of a conflict with other matters handled by that office." (Hmm . . . what might that mean? That the investigation deals with whether there was obstruction of justice in cases being prosecuted by the E.D. Va., perhaps?)

The past few days I've been attending a fascinating conference on antidiscrimination law held in Chengdu sponsored by Sichuan University School of Law and the Yale China Law Center.

Despite the abstract ideology of equality in Communist China, antidiscrimination law in China is still at its earliest stages. Moreover, the key categories of concern in public discussion are quite different than we are used to in the American context.

As in America, sex equality has been a major focus, but the other two most often mentioned forms of discrimination were discrimination against people with Hepatitis B (roughly 100 million people) and discrimination against rural Chinese who have migrated to the large cities.

In response to my post on the purposes behind the Fourteenth Amendment and the light they shed on the right to keep and bear arms, Deborah Pearlstein says she "need[s] some help understanding the evidentiary weight I should accord Senator Howard's remarks about the Fourteenth Amendment to our understanding of the meaning of Second." I'm happy to comply. Although what I have to say is formally in response to Deborah's questions, in fact Deborah is really giving me an excuse to say a little bit about the constitutional history of Reconstruction, America's second founding. I offer these remarks to all of my fellow progressive constitutional scholars.

Grading constitutional law examinations provides an interesting window into what students are thinking and not thinking. As is the case with most professors, I find grading rather tedious, save for the occasional amusing mental typo. This year’s winner, on an examination that was quite good, was "the theory of the unitary executive gives the president the power to lead a rebellion against the United States." I hope no one tells Dick Cheney. Still, several points might be of broader interest and do not seem to be a violation of confidentiality.

There has been a great deal of debate, and consternation, in Congress recently concerning the Bush Administration's intention to enter into a a bilateral Status of Forces Agreement (SOFA) with Iraq by the end of July. The Administration has indicated that it does not plan to obtain any congressional authorization or Senate approval for such an agreement. Many legislators believe this would be unconstitutional. So, for example, Senator Clinton has introduced S.2426, which would express the "sense of Congress that any bilateral agreement between the United States and Iraq involving `commitments or risks affecting the nation as a whole', including a status of forces agreement (SOFA), that is not a treaty approved by two-thirds of the Senate under Article II of the Constitution or authorized by legislation does not have the force of law," and that would prohibit the use of funds to carry out such an SOFA that is not such a Senate-approved treaty.

Explaining why Judge Mukasey has her vote, Senator Feinstein opines:
As Judge Mukasey wrote, waterboarding is clearly against the law for the American military. Waterboarding is clearly prohibited by the Convention Against Torture and the Geneva Convention. It was again prohibited by the Detainee Treatment Act, which only covers military interrogations.

Congress should go further and explicitly ban waterboarding and other so-called enhanced interrogation techniques for all parts of the government.Just one little problem with this logic. The prohibition on torture already applies to all parts of the government. Apparently Senator Feinstein has not read the Detainee Treatment Act, which she voted for.

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Static,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

Last July, I published a piece in the Boston Globe, entitled "No Vice," arguing that we would be better off either without a Vice President at all--we got along without one for 45 of our first 180 years)--or, perhaps more plausibly, waiting until after the election and having the winner, a la the 25th Amendment, nominate a vice president, subject to congressional confirmation. I would, incidentally, also allow the President or Congress to fire the Vice President, but that's another matter for another thread.

I can't help but wonder if John McCain might not find some real merit in the suggestion. Consider his dilemma. It is clear that Mike Huckabee isn't going to be the nominee for president, but his followers might (legitimately?) feel dissed if he isn't chosen for Veep. At best, they might stay home; at worst, they might vote for Obama and actually put some of the Red States in play, especially if Obama chooses, say, James Webb or Wesley Clark as his Veep. On the other hand,

As Laura notes below, in his most recent signing statement the President has reserved the authority to disregard several "provisions" of the National Defense Authorization Act for Fiscal Year 2008.