Arms and the Several States

My last post discussed how John Paul Stevens, late of the Supreme Court, and author Michael Waldman advance a stingy, substantively empty view of the Second Amendment by ignoring the Constitution’s framework of limited, enumerated powers. That critique, of course, only goes to federal authority. The right to arms enforceable against the states rests on the Fourteenth Amendment.

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Slavery, Abortion, and the Politics of Constitutional Meaning

Slavery, Abortion, and the Politics of Constitutional Meaning
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This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion, the 14th Amendment and its privileges or immunities and due process clauses, abortion and the common law, the historical legal record the Roe Court relied on, and Rawlsian public reason as a legitimating authority for political debate.

DOMA, the Hyde Amendment, and the Missouri Compromise: Windsor as the Reversal of Harris v. McRae and Renewal of Dred-Scott Federalism

Some conservative commentators have decried the Windsor case as the new Roe v. Wade.  As to legal doctrine, however, the case looks more like a reversal of Harris v. McRae, the Supreme Court decision (barely) upholding the constitutionality of the Hyde Amendment.  Further, the case looks like a vindication of the concurring federalist arguments once offered by Justices Catron and Campbell in Dred Scott.

Both Harris and Windsor involved a constitutional challenge, under the Fifth Amendment, to a federal law that affected a due-process right the Court had recently created: the right to abortion, created in Roe v. Wade, and the right to consensual acts of “intimacy,” created in Lawrence v. Texas.  Both of those cases were the alleged progeny of the prior due-process cases supporting certain unenumerated, non-economic rights: from Meyer v. Nebraska to Pierce v. Society of Sisters to Griswold v. Connecticut.

In both cases, the federal law involved not criminal prohibition but the distribution of federal benefits in a selective manner that arguably disfavored the exercise of these rights.  Moreover, in both cases, the laws were proposed by Republicans, many of whom denied there was any such “right,” for such rights were actually wrongs.  In both cases, then, there was some moral disapprobation involved (though probably far more in the case of the Hyde Amendment, for inflammatory words like “murder” were used).  In both cases, conversely, the laws were signed by Democratic presidents who affirmed the existence of the alleged constitutional rights, but who believed the federal government did not need to subsidize these rights equally with alternatives.

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Same-Sex Unions, Assumed Historical Facts, and Interracial Marriage

At oral argument in Hollingsworth v. Perry, Justice Scalia challenged Theodore Olson as to when it became “unconstitutional to exclude homosexual couples from marriage?”[1] Olson replied first with what he called a “rhetorical question,” viz., “When did it become unconstitutional to prohibit interracial marriages?”  For Olson, the answer was clearly not 1868—the date of the Fourteenth Amendment’s ratification.  Rather, he explained, in nullifying racial-endogamy laws, the Court in Loving v. Virginia (1967) had ventured into “unchartered waters” with reliance on “evolutionary” jurisprudence as a compass.

In making this claim, Olson is in good (and numerous) company.  Prominent jurists have repeatedly declared the Court’s decision in Loving v. Virginia to be incompatible with the original sense of the Amendment.  The judges include Justice Kennedy[2] and his colleagues in Planned Parenthood v. Casey; Judge Reinhardt and the Ninth Circuit in Washington v. Glucksburg; numerous progressive scholars, including Jack Balkin, Michael Klarman, and William Eskridge; and even some prominent conservatives like Steven Calabresi and Hadley Arkes [on this blog].

But this belief, as Lincoln would say, represents one of those “assumed historical facts which are not really true.”

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How to Think About Roe v. Wade After 40 Years

Roe v. Wade remains, for us, the most contentious decision of our Supreme Court.  Here’s the advice of our Supreme Court:  The opponents of Roe should get over it.  In its opinion in Planned Parenthood v. Casey (1992), the Court explained:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of  intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The rare, comparable case that the Court highlights in Casey is Brown v. Board of Education.  Reversing Brown and restoring the constitutionality of segregation would throw the nation into confusion and chaos.  And that means that Brown has “rare precedential force.”  The burden of proof that could lead to its reversal is more severe than other precedents. It would require “the most convincing justification.”  The Court claimed to authoritatively resolve the controversy that produced a national division by binding the country together through a common constitutional mandate. 

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The Most Dangerous Justice? “Natural right is dynamite”

Recently Justice Clarence Thomas reflected on the American condition and its relation to the Constitution.  He focused far less on specific legal issues and more on the enduring love of country  “we the people” give it.  He described how the founding documents still speak to us today, in particular those lovingly displayed at the National Archives, the site of the public interview conducted by Yale law school professor Akhil Amar.

The coverage in the Washington Post and New York Times emphasized different aspects of the conversation.  The Times probed his views of religious diversity in America and on the Court.

The Post had a more interesting albeit incorrect take, that Thomas had admitted a flaw in the Constitution’s treatment of slavery and race, as though this was news. Thomas allowed that blacks were not perfectly part of “we the people.”  Might this flaw in the Constitution confirm the hypocrisy of the “we hold these truths” of the Declaration? Moreover, the alleged admission might clash with Thomas’s opposition to race-preference policies. Might not then his original understanding approach to jurisprudence be fatally compromised? After all, following Justice Thurgood Marshall, why not begin celebrating the Constitution following the passage of the Reconstruction Amendments?

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Reminding Thomas: Ilya Somin on Clarence Thomas and “We the People”

In this post at Volokh, Ilya Somin challenges Justice Clarence Thomas’ recent remarks that “We the People” in the Preamble of the Constitution did not include African-Americans when it was ratified in 1787. The history is much more complex and interesting than many know, obscured as it has been owing to Chief Justice Roger Taney’s majority opinion in Dred Scott, which articulated that both the Declaration of Independence and the Constitution never recognized the rights of blacks who, in Taney’s formulation, “had no rights which the white man was bound to respect.” Part of his conclusive proof was that the Founders had not immediately abolished slavery and placed blacks on the same level of citizenship as whites. Of course, this assumes that they had such a power of abolition in the first place either at the time of the Declaration or when the Constitution was ratified. Moreover, all whites were not even placed on the same level of civic equality at these moments.Today, Taney’s opinion is frequently given as evidence in law schools of the dastardly results that come from originalist jurisprudence. This was certainly the pedagogy I received.

Somin reminds us that it was Justice Benjamin Curtis’ dissenting opinion in Dred Scott that was more historically accurate. He noted that “at least five states at the time of the Founding allowed free blacks to become citizens on the same terms as whites.” Moreover, they were also given the right to participate in the elections that determined the delegates to the state conventions that would be charged with either voting up or voting down the proposed Constitution. Justice Curtis observed the following:

It has been often asserted that the Constitution was made exclusively by and for the white race… [But I]n five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.

 

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Is This Progress?

President Obama is a man of history—that is, he places himself quite deliberately in historical context. His much-derided self-comparisons with Abraham Lincoln come immediately to mind. But those are clearly superficial. More telling is his choice of Osawatomie, Kansas for a speech that drew comparison to Theodore Roosevelt’s “New Nationalism” speech delivered there 101 years before.  Roosevelt called for a vast expansion of federal government responsibility—a Bureau of Corporations and legislation involving families. Obama claims the legacy of both the Great Emancipator and the Rough Rider to justify his own dramatically more radical schemes.

Obama struck again in his recent speech at Roanoke, Virginia, with a speech that begs comparison with Woodrow Wilson’s “What is Progress?” address from his triumphant 1912 presidential campaign.

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Next on Liberty Law Talk: A Conversation with Gordon Lloyd on the American Founding and Slavery

On the current podcast at Liberty Law Talk, I discuss with Gordon Lloyd the problem of slavery and the ratification of the Constitution. Much of the interview considers the historical scholarship that argues the Constitution is fundamentally compromised because of the protections it afforded slavery. Lloyd, however, provides interesting evidence from the Constitutional Convention and the state constitutional ratifying conventions that disputes the view that the “Constitution is a pact with the devil.” We also consider the underpinnings of the Dred Scott decision and the Missouri Compromise.

Understanding Slavery and the American Founding: A Conversation with Gordon Lloyd

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This new conversation in Liberty Law Talk is with Gordon Lloyd, a scholar of the American founding. Lloyd focuses on the debates in the Constitutional Convention of 1787 and the state constitutional ratifying conventions of 1788 in order to better understand the compromises leading framers made to accommodate the institution of slavery in the early republic.  Many, however, would dispute the term “compromises” and argue that it is an inaccurate understanding of the Constitution’s relationship to slavery. Numerous historical arguments center on the protections the Constitution provided to slaveholders through the three-fifths clause, the fugitive slave clause, and the twenty-year restriction that prevented Congress from prohibiting the importation of slaves. Indeed, more recent scholarship goes beyond even these explicit clauses and seeks to indict the Constitution’s structural provisions of equal state representation in the Senate and the use of the electoral college to elect the president, among other arguments, as core features of our “Slaveholder’s Union.”

Of course, prior to twentieth century historical scholarship William Lloyd Garrison had famously asserted that the Constitution was “a pact with the devil.” The Supreme Court’s decision in Dred Scott seemingly affirmed Garrison’s judgment if one assumes that Chief Justice Taney’s opinion was an accurate rendition of the Constitution’s relationship with slavery. In the course of the conversation, Lloyd challenges many of these arguments.