Putting on my doctrinalist's hat, rather than my historian's hat, I was nonplussed by Deborah Pearlstein's casual statement that if we recognized a fundamental right to keep and bear arms "that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason. For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring."

Where did the idea come from that the fundamental rights listed in the Bill of Rights are generally protected by a test of strict scrutiny?

Well, because surely not enough has been written about the Heller case already . . . I thought I'd weigh in with three fairly discrete observations about it. My remarks in many respects complement what Akhil Amar and Kenji Yoshino have recently posted.

1. First, there has almost certainly been more textualist and originalist writings -- in the briefs, the blogosphere, the law reviews, etc. -- about this case than about any other in recent memory. (This is largely a function of the fact that there is so little Supreme Court doctrine on point, and thus an argumentative void that could easily be filled by appeals to text and original meaning.) Yet in my unscientific small survey, I've yet to find even one observer of the Court who thinks that textualist and/or originalist arguments will have the slightest effect on the vote of even a single Justice in the case . . . just as in most other constitutional cases (such as the Sixth Amendment right to counsel case argued this morning), in which such arguments are window dressing, at best.

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.

Under Scholastic, Inc.'s ownership, Childrens Press has been producing new editions of some of their noted (New) True Books series. While holding onto their admirable "just the facts" style, Childrens Press has added some "interactive" features--their Find the Truth! introductory section, new maps, photos, and eye-catching arrows directing attention to factoids, a True Facts summary page, and a brand-new bibliography of books and web sites to aid research.

Theorists and pragmatists in the American legal academy fight over the content of constitutional law as fiercely as do liberals and conservatives or Republicans and Democrats. Grand theorists insist that constitutional debates are best settled by reference to such broader principles as originalism or “all men are created equal.” Pragmatists respond that such matters are better settled by empirical investigations aimed at establishing the costs and benefits of particular policies or institutional arrangements. Free Speech & Human Dignity boldly champions the theorist perspective. Steven J. Heyman’s exceptionally accessible perspective on the First Amendment contends that fundamental constitutional problems are best resolved through a return to natural rights thinking. “Free speech,” he maintains, should be justified “primarily on intrinsic grounds, as a right of human nature and republican citizenship.” The analysis that follows is an important addition to the literature on the First Amendment, even if unlikely to convert more empirically oriented constitutional thinkers.

Many supporters of Second Amendment rights are, pardon the pun, up in arms over the Bush Administration Justice Department's amicus brief in Heller, the Second Amendment case now before the Supreme Court. The government's brief recognizes an individual right to bear arms but argues that historically the right excluded felons (even though they are presumably part of "the People"). Moreover, it argues that the Second Amendment may permit a wide range of reasonable regulations of firearms.

Thanks to Jack for responding so quickly to my post. I’ll try to keep these further thoughts on a relatively general level, because I don’t mean to respond point by point. Jack makes clear that principles do not have to have a historical pedigree as long as the original semantic meaning of the text is preserved. This clarification makes me think of something that bothered me as I read the Constitutional Commentary symposium. In the world of text and principle, what is the role of amendments and how do you tell when you need one? You might say to alter the semantic meaning of a piece of text (or a Court opinion) we don’t like anymore, but actually there are few amendments that do that. Another possibility is that we add amendments when we need new principles, but that is perhaps made unnecessary by the capaciousness of constitutional principles, a quality that Jack notices. Here we encounter some arguments well known in constitutional history such as: we don’t need the bill of rights because such guarantees were structurally built into the 1787 Constitution, we don’t need the thirteenth amendment because Congress already has the power, we don’t need additional rights guarantees as long as the Constitution is informed by the principles of the Declaration of Independence, and so on.

Cross posted at University of Chicago Law School Faculty Blog

Like David Strauss, I’m delighted to be able to participate in this exchange on liberalism and originalism.

In his first post, David makes two criticisms of originalism. The first is that it is empty; it has no real content. The second is that it is illiberal; it has bad content. (Note that these two claims are at least potentially in tension with each other.)

David Strauss

Cross posted at University of Chicago Law School Faculty Blog

This is a topic that has occupied some of us on this blog for some time -- see, e.g., my posts here here, and here, this one from Jack, this one from David Luban, and Stephen's excellent corrective post just today on DOJ's objections to the Japanese internments.

Dahlia Lithwick and Eric Posner question my political science-style account of living constitutionalism, in which popular mobilization and partisan entrenchment in the judiciary play a major role in shaping constitutional change. Dahlia doesn't like the normative implications of my account, while Eric largely agrees with the account descriptively but thinks it makes judicial review superfluous. Let me respond to Dahlia in this post, and respond to Eric in a later post.

Today, at 3:00pm EST, I'll be appearing in Second Life for a panel discussion entitled "Do Avatars Dream of Civil Rights?," which is about the legal rights of end users and administrators in virtual worlds. The panel is organized by the USC Institute for Network Culture and Global Kids and sponsored by the MacArthur Foundation.

Following up on Mark Graber's most recent post on the Supreme Court, consider why we might expect that the Supreme Court will not in fact produce principled results significantly superior to those produced by the national political process. One reason, famously suggested by Yale political scientist Robert Dahl, is that the U.S. Supreme Court tends, over time, to cooperate with the views of the dominant national political coalition. It does this by ratifying and legitimating most of the results of the national political process, by policing state and local governments so that they stay roughly in line with the views of national political elites, and (as Mark himself has pointed out) by acting as a political backstop to resolve controversies that national politicians would rather not have to take responsibility for.

The Supreme Court does tend to slow down rapid change when there is a shift in political regimes (and accompanying constitutional values), but eventually it goes along because new Justices appointed by the dominant national coalition replace older ones.

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?

What affect will a decision next spring in the Second Amendment case, Heller v. District of Columbia, have on the upcoming 2008 elections?

At this time of year my thoughts turn to Bush v. Gore. That’s because I have taught a Fourteenth Amendment class in the fall semester for about 12 years. In November 2000, happily teaching my students the nuances of the right of privacy, I was fielding an increasing number of questions about the election crisis. I hadn’t planned to teach voting rights that year, but I saw it would be helpful to devote some class time to the developing litigation. As I suspect many conlaw profs were doing that November, I explained to the class that given institutional and justiciability concerns, there was little likelihood the Supreme Court would intervene in the middle of one of the most political processes we have (and constitutionally unique to boot).

Mike Huckabee is the latest Republican candidate to call for amending the Constitution, though Mitt Romney has led the way. It was "flip-flop" Mitt who in recently told the Family Values Research Council's Values Voter Summit, "I will work with the people in this room, as I have for the past four years, to champion a federal marriage amendment to protect marriage as the union of a man and a woman. ... Make no mistake: a federal amendment is the only way we can protect marriage from liberal, unelected judges" [who may, of course, be interpreting the Equal Protection Clause accurately, a possibility that Romney presumably doesn't recognize].

Today's New York Times includes an extraordinarily peculiar editorial titled "Unite, Not Divide, Really This Time," which includes the following paragraphs:

In Mrs. Clinton’s zeal to make the case that experience (hers) is more important than inspirational leadership (Mr. Obama’s), she made some peculiar comments about the relative importance of the Rev. Dr. Martin Luther King Jr. and President Lyndon Johnson to the civil rights cause. She complimented Dr. King’s soaring rhetoric, but said: “Dr. King’s dream began to be realized when President Lyndon Johnson passed the Civil Rights Act of 1964. ... It took a president to get it done. ”

Over at Convictions, David Barron argues that the eagerness of conservatives to uphold gun rights shows that they are also eager to overturn Roe, despite the damage this would do to the Republican party.

As one of the leading purveyors of the claim that the Court will chip away at Roe without overruling it, I respectfully suggest that David's logic is flawed.

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.

Jonathan Hafetz
Brennan Center for Justice

In a previous post I predicted that the Supreme Court would find for individual rights advocates in the upcoming Heller case, but that this might advantage gun control advocates and the Democratic party in the short run. Responding to my analysis, James Skoufis over at Real Clear Politics argues:

And to think, ever since Jerry Falwell helped put the amiable dunce Ronald Reagan in power, we've thought that Christian voters only cared about the sanctity of the blastocyst, the submission of the female, and the damnation of the sodomite. Now Rudy Giuliani is the Republican frontrunner, and it turns out those issues are secondary after all. What Christians care about even more is who will promise to torture and slaughter the greatest number of heathens, and repeal the Bill of Rights.

Sorry for the light posting lately, I've been brooding. I'll get over it soon.

I just got around to reading Zev Chafetz's profile of Governor Mike Huckabee in last Sunday's New York Times Magazine, which has attracted some attention for reasons other than the one that caught my eye.  Describing Governor Huckabee's plan for a 23% consumption tax to replace the income tax, Chafetz adds parenthetically, "(For starters, it would require repealing the 16th Amendment to the Constitution.")  So, turn to the 16th Amendment, and one finds:  "The Congress shall have the power to lay and collect taxes on incomes, etc."  It doesn't take legal training to notice that this says that Congress has the power to do something.  Repealing it would take that power away from Congress (maybe -- it depends on what residual powers Congress would have), but as far as I can tell enacting a consumption tax that would survive constitutional challenge doesn't require that the 16th Amendment be repealed.

Paul Frymer's Black and Blue: African Amerians, the Labor Movement, and the Decline of the Democratic Party is an exceptional study of the relationships between the civil rights and labor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race.

Constitutional Context: Women and Rights Discourse in Nineteenth-Century America provides some important insights into the place of women’s rights in American constitutional development, although the general framework is likely to be controversial. Professor Kathleen Sullivan–the distinguished political scientist who teaches at Ohio University, not the lesser known law professor on the West Coast somewhere–makes several scholarly contributions that are worth the price of admission (increasingly steep for university press hardbacks!). Most notably, Sullivan does a nice job making connections between antebellum debates over codification and antebellum debates over the rights of women.

I was wrong. I predicted last week that despite the outpouring of scholarship and brief-writing in an originalist vein, none of the Justices' votes in Heller would be swayed, let alone determined, by evidence of original understandings (despite what their opinions might say). But I underestimated how Justice Kennedy -- perhaps the swing vote -- can in some cases come to embrace a particular origins narrative, which can determine how he approaches the case. (Alden v. Maine is a good example, where Justice Kennedy's views at oral argument and in his opinion were plainly based on his assumption that the States could not possibly have ceded certain of their sovereign immunity when "they" ratified the Constitution.) It appears that in the Heller case, too, Justice Kennedy's vote will be strongly influenced by his assumption that a certain original understanding is the key to interpreting the Second Amendment.

The California Supreme Court’s decision that the state must recognize same-sex marriages doesn’t bring anything really new to the scene. Massachusetts has had same-sex marriage for years. What the California decision does is enormously increase the number of people in same-sex couples, because California has six times as many residents as Massachusetts . Also, unlike Massachusetts , California has no bar on out-of-staters entering into same-sex marriages.

There are five other states that give same-sex couples all the rights of married couples: Connecticut, New Hampshire, New Jersey, Oregon and Vermont. That’s a big chunk of the country, comprising a fifth of the population.

In New York , Governor David Paterson is pushing a same-sex marriage bill, and has ordered state agencies to recognize same-sex marriages from other states. What happens when people in those relationships cross state lines, as inevitably they will? Will those relationships ever be recognized in other states? Laws in 44 states declare that they will not.