Apr 17, 2014

Will on Collective and Individual Liberty

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George Will has a great review of my friend Timothy Sandefur’s new book, “The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty.” In it, Will accurately characterizes the divide in our society between those who advocate individual liberty, and those who profess a fidelity towards collective liberty.

In a 2006 interviewSupreme Court Justice Stephen Breyer said the Constitution is “basically about” one word — “democracy” — that appears in neither that document nor theDeclaration of Independence. Democracy is America’s way of allocating political power. The Constitution, however, was adopted to confine that power in order to “secure the blessings of” that which simultaneously justifies and limits democratic government — natural liberty.

The fundamental division in U.S. politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected. …

The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when “instituted” to “secure” natural rights.

Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, “spaces of privacy” that government chooses “to carve out and protect” to the extent that these rights serve democracy. Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification.

Will includes an excellent quotation from James Madison directly on point:

With the Declaration, Americans ceased claiming the rights of aggrieved Englishmen and began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature. “In Europe,” wrote James Madison, “charters of liberty have been granted by power,” but America has “charters of power granted by liberty.”

Go check out Tim’s book. It is an excellent read, and focuses on a very, very important topic.

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Apr 17, 2014

What Happens When 1 Million New Yorkers Refuse To Register Their Guns?

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Yesterday in class, while discussing the Bundy Ranch standoff, I posed a question I routinely ask: “Why do people obey the law.” Invariably, someone says, “If you don’t, you get arrested.” Fair enough I reply. What happens if two people disobey the law. Three people. Twenty people. One hundred people. One thousand people. One million people. And they ignore the law not out of a sense of lawlessness, but because they think the law is unjust, or unconstitutional. Are the police going to arrest each and every one of them? That was, in part, the conflict in Nevada. It was impossible for the BLM to enforce the law, as there were 1,000 people, all heavily armed, openly flouting federal law. But such massive resistance can’t happen anywhere else, right?

Think again. New York, in the wake of Newtown, passed the SAFE Act, which required registration of what the Empire State called “Assault weapons” (those aren’t really assault weapons, but that’s an argument for another time). The deadline to register was April 15. And, it is estimated that over 1 million New Yorkers are flouting the law.  Connecticut hasn’t even bothered to enforce their own law. About 300,000 have refused. So now what? Do the police go door to door searching for weapons?

For now, gun rights experts say, the outcome in New York is uncertain. Will the state take the initiative to seize unregistered weapons? If it doesn’t, will the new gun controls be exposed as toothless, even meaningless?

“The line in the sand has been drawn, and if Gov. Andrew Cuomo wants to send state police out on house-to-house searches and put hundreds of thousands of people in prison, they can do that,” says Dave Kopel, research director at the Independence Institute, a free-market think tank in Denver.

Confronting the thousand militia men in the Nevada desert poses similar challenges to confronting one million armed New Yorkers. This is when stuff gets real. When millions of Americans oppose an unjust law that they think violates the Constitution and the Second Amendment, it becomes very, very tough for the law to proceed.

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Apr 17, 2014

Obama Administration To Take Executive Action For Short-Term “Fixes,” and “Broader Policy Changes” Later this Year

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As immigration legislations continues to start and stall in Congress, the President (once again) seems poised to take administrative action.

House Democrats, who are stepping up the pressure on Republicans to take up comprehensive immigration reform legislation, said Tuesday the Obama administration is getting ready to take executive action on the matter very soon.

Homeland Security Secretary Jeh Johnson earlier this month told House Democrats he’ll take action in the next few weeks on “fixes” to immigration law, most likely dealing with deportation.

“He gave us a time frame, and there are some fixes that are going to be coming sooner, which is in the next few weeks. And then there are some broader policy changes that will be coming later this year,” Rep. Jared Polis, D-Colo., said in a conference call.

I’ll translate “later this year” for you. It means after the election. The article, citing a Congressional Hispanic Caucus Memo, suggests that among the changes, the President would expand his Deferred Action program to not only the Dreamers, but also the family members of the Dreamers.

Rep. Joe Garcia, D-Fla., who was in the meeting, told the Washington Examiner, Johnson did not specifically say what changes he is mulling, “except to say there are some short terms actions that he is going to take and some longer term actions.”

The Congressional Hispanic Caucus gave Johnson a memo when they met with him, outlining the changes they believe are needed when it comes to deportation. The CHC plan includes expanding Obama’s recent order to defer deportations of people who arrived here illegally as children, so that parents, family members and some workers are also excluded from having to leave the country if they are here illegally.

The CHC also wants Johnson to consider a proposal to allow non-citizen family members who are living outside the U.S. to “reunite with their families in the United States,” and be allowed to apply for a green card, even if they have been deported. Garcia said the proposal would help keep families intact and keep children of deported parents out of foster care.

Garcia said Johnson reacted positively to the CHC proposals.

This would effectively stop the deportation of millions. All by dint of prosecutorial discretion. This also puts the next President in a very untenable situation. Any change in the policy would lead to deportations of millions of Americans. Obama would put whoever comes into the office next into a serious, almost unescapable executive bind. And that is part of the plan.

A few weeks ago a reporter from the Houston Chronicle’s spanish language newspaper, La Voz, called me to ask about this type of executive action. I told him, flatly, that a blanket extension of the Deferred Action program to millions of immigrants would be unconstitutional. He seemed surprised to even learn that there were constitutional limits on the President’s executive powers. I took the time to walk him through the separation of powers, what prosecutorial discretion meant, and how the President was doing what Congress would not. He seemed genuinely interested, as if no one had bothered to mention these facts to him. That really troubled me. Ultimately, he did not run my quotes in his article. I hope though, at some point, this discussion makes it into the narrative.

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Apr 17, 2014

Did a Dred Scott Dissenter Own A Slave? Archived Documents from 1823 Say Yes

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In Dred Scott v. Sanford, one of the two dissenters was Justice John McLean, who famously wrote, “If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford?” It is reported that McLean’s strong dissenting opinion forced Chief Justice Taney to take an even stronger position in favor of slavery. But what were McLean’s own positions towards slavery?

One of my (many) eBay alerts for the Supreme Court came across a listing titled “Archive regarding slave owned by Supreme Court Justice John McLean.” According to some documents from the period of 1823-1828, McLean hired a slave while living in Washington, D.C. For the handsome price of $7,500, this archive can be yours.


Here is the description of the archives:

Documents and letters concerning Richard, a slave belonging to John McLean (“I hope he has been a dutiful Servant & may continue to serve you … you mentioned it was probable that you might wish to return to Ohio & in that event, you did not wish to own Slaves…”) Later Associate Justice of the Supreme Court, McLean is especially remembered for his eloquent dissent in the Dred Scott case, arguing that Dred Scott was a U.S. citizen and that, even though born a slave, he was living in a free state where slavery was illegal.

On November 11, 1823, four weeks before he became Postmaster General in the cabinet of President James Monroe, Commissioner of the U.S. General Land Office John McLean hired a slave named Richard from Washington Bowie (1776-1826), a wealthy Georgetown merchant. Bowie later sold Richard to William S. Nicholls who sold him to McKean in 1828. John McLean served as Associate Justice of the Supreme Court from 1829-1861.


(1)       Manuscript Document, one page, 8” x 7”. [Washington, 1823]. Minor defects at perimeter. Fine condition. In full, “Jno McLeane [sic] Esqr. Dr. To Washington Bowie. 1823 Novr 11th. To hire of sevant [sic] Richard from 26th June to date 4½ mos. Less time called off to nurse my son say ½ mo.  4 @ 8$. $32.  Off for cloathing [sic] furnished.”

(2)       John McLean. Autograph Statement Signed “McLean” in text, two pages, 8” x 9.75”, front & verso. [Washington, D.C., 1823-1826]. Fine condition. McLean lists clothing he gave to Richard before Nicholls bought him from Bowie.

In full, “The following items have been furnished me by Mrs McLean as clothing given to Richard before Mr Nicholls purchased him.” John McLean lists the following, with prices, “Cash, 1 pair of pantaloons, 3 Shirts, 1 Suit of Clothes, Cassinet, Cash pd to Taylor for making the suit of clothes,” totaling $26.66¼ to which he added “2 pair of shoes 3.00” with new total of $29.66¼. McLean continues, “Under the circumstances that Mr Bowie intended to give Richard his time to Clothe him I gave him in cash $6. [McLean has added the $6.00 for a new total of $35.66¼ ] Whether this was before Mr. Nicholls purchased him or not I do not recollect. I was under the impression that there was that amt due for his wages & it was paid. By refering to the bills, I could give the dates of the purchases – but they were made sometime before Mr Nicholls purchased Richard. The clothing was all good, or the greater part of it, when Mr Nicholls purchased the boy – the $6 I gave him, was about the time of the purchase. Under the circumstances I am willing to pay Mr Bowie whatever is proper and Mr Nicholls & Mr Bowie may determine the amt and Mr N. will oblige me by paying it.”

(3)       William S. Nicholls. Autograph Letter Signed “W.S. Nicholls,” one page, 8” x 7”. Georgetown, D.C., July 12, 1828.  Tear in blank area from fold. Integral leaf (seal tear) addressed by Nicholls to “Honb. John McLean / Post Master General / Washington City.” Postmarked “Geoe.Town D.C. Jul 13” and “Free.” Fine condition.

In full, “If perfectly convenient to you (and not otherwise) I shall be glad to have the amt due me for Richard – I have made up the a/c to this time, & Send you included the bill of sale, from Mr. Bowie with my assignment upon the same. I hope he has been a dutiful Servant & may continue to serve you. Faithfully very respectfully I am Dr Sir your ob Sert W.S. Nicholls.” In the upper portion of this page, William S. Nicholls has penned, in full, “John McLean Esqr To W.S. Nicholls Dr. 1823 Nov. 11. Negro Man named Richard $500.= bot by Me from W. Bowie. Interest from the 11th Nov 1823 to 11th July 1828 – 4 years & 8 mos. $140 // $640.” Computations in lower left.

(4)       William S. Nicholls. Autograph Letter Signed “W.S. Nicholls,” 1.5 pages, 8” x 9.75”, front & verso. Georgetown, D.C., July 15, 1828. Minor nicks at right edge. Integral leaf (seal tear) addressed by Nicholls to “Honble. John McLean / Post Master General / Washington City / Mail.” Postmarked “Geoe.Town D.C. Jul 16” and “Free.” Docketed by McLean on address leaf: “Conveyance for / Richard.” Fine condition.

In full, “Your favor of the 14th Inst is recd – I were [sic] not aware that we had fixed the price of Richard at 400$ = I recollect that, in a conversation, with you previous to my purchasing Richard, that you mentioned 400$ as the sum you would be willing to give, provided I made the purchase – as it was expected, he could be had for that sum – I assure you most positively that I paid 500$ for him & there cannot be a doubt of it = but notwithstanding, if the price was fixed at 100$ [sic, 400$] I should not now expect, or charge you more than I agreed fore – Mr. Bowie considered he gave me a great bargain at that time, – as house Servants Sold very high – Sometime after the purchase was made by me from Mr B. I recollect, you mentioned it was probable that you might wish to return to Ohio & in that event, you did not wish to own Slaves & that I agreed to make the Sale, or take him back, whichever might be most agreeable to you, – but as you are certain that we had fixed the price at 400$ I shall be satisfied to let it be so, – although I paid more, – I wish no more than I agreed for, – and if I had supposed that we had named 400$, I certainly should not have charged more in the a/c – I will call & see you the first time I come to your part of the City – in the mean time, I hope you will not put your self to any trouble, or inconvenience in this matter, as you can take your own time to settle it. With great respect I am Sir your Ob Svt. W.S. Nicholls.”

In December 1825, “The National Intelligencer” published the following ad:  “W. S. Nicholls, Georgetown. I want to purchase a servant boy, from 17 to 20 years of age, to wait in my family. For one of good character for honesty and sobriety, I will give a liberal price.” The records of the American Colonization Society, founded to “return” free African Americans to Africa, show that on January 6, 1840, in the Presbyterian Church, Georgetown, D.C., Rev. Mr. McKenney collected a donation from “Mrs. W.S. Nicholls $5.”


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Apr 17, 2014

Obama’s “Evolution” Towards Supporting Same-Sex Marriage, and filing a brief in Prop 8 Case

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The Times Magazine has a feature based on a new book, Forcing the Spring: Inside the Fight for Marriage Equality, that discusses the President’s “evolution” towards supporting same-sex marriage. I put “evolution” in quotes because it does not seem, in the least, to have been an evolution in the sense that views evolved. Rather, the “evolution” was in terms of politics, and when it would be societally and politically acceptable for publicly voicing this opinion.

As early as 1996, State Senator Obama was clearly and steadfastly in favor of SSM. But as his political “ambitions grew,” that position retreated.

Indeed, long before Obama publicly stated that he was against same-sex marriage, he was on the record supporting it. As an Illinois State Senate candidate from Chicago’s liberal Hyde Park enclave, Obama signed a questionnaire in 1996 saying, “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.” But as his ambitions grew, and with them the need to appeal to a more politically diverse electorate, his position shifted.

In the course of an unsuccessful run for a House seat in 2000, he said he was “undecided” on the question. By the time he campaigned for the presidency, he had staked out an even safer political position: Citing his Christian faith, he said he believed marriage to be the sacred union of a man and a woman.

This story makes it really, really difficult to stomach attacks on Brandon Eich. At the exact moment Eich gave $1,000 to support Prop 8, Obama was in the exact same position. They both professed a belief in their Christian faith which led to opposition to same-sex marriage. It seems only one of them truly held that belief.

By 2011, with the tides beginning to turn, Obama started to sense that it may be more acceptable to take the “evolving position.”

Griffin and a team of veteran political operatives were using the litigation to mount a campaign intended to frame same-sex marriage as a civil right. They were working to create a political climate that would make the Supreme Court, which was disinclined to get too far out in front of public opinion, comfortable enough to rule in their favor. But the president was standing in their way. His opposition to same-sex marriage had been cited repeatedly by Proposition 8’s defenders as evidence that people who wanted to retain the traditional definition of marriage were not motivated by prejudice. Though Obama had recently taken to saying that his views on the matter were “evolving,” Griffin worried that they were moving too slowly to help with his cause. …

When Obama finally arrived, he willed himself to be direct.

“Mr. President,” he said, “how can we help you evolve more quickly?”

When I spoke with Griffin a few days later, he recalled Obama’s saying, “I think you can tell from what I have done so far the direction that I am headed.” …

“The sense I got from him,” Griffin said, “was, ‘Give me credit — look what I have already done.’ ” But Obama’s campaign for a second term was in full swing, and he was not going to be pushed any further on the issue. A few months later at a fund-raiser in Los Angeles, Griffin had a private conversation with Michelle Obama, in which she indicated that her husband had given as much support as he could at the time.

Her message, he told his team, was clear: “Hang in there with us, and we’ll be with you after the election.”

The “civil rights issue of our day” could wait until “after the election.” Excuse me if I’m not persuaded.

Ultimately, what led the “evolution” to hasten was the election itself, and the recognition that more votes were to be had by posturing towards support of SSM, but not really supporting it.

But by November 2011, it was becoming increasingly clear that continuing to sidestep the issue came with its own set of costs. The campaign’s internal polling revealed that the issue was a touchstone for likely Obama voters under 30. The campaign needed those voters to turn out in the record numbers they had four years earlier, and the biggest impediment was Obama’s refusal to say he favored allowing gay couples to wed.

“We understood that this would be galvanizing to some voters and be difficult with other voters,” said Jim Messina, the manager of Obama’s 2012 campaign.

Then, and only then, was the President willing to tell people where he actually stood (in most quarters outside the Beltway this would be called telling the truth):

Caught between countervailing political forces, Obama called his top aides together and said that if asked again for his position, he both wanted and needed to drop the pretense and tell people where he really stood.

“The politics of authenticity — not just the politics, but his own sense of authenticity — required that he finally step forward,” Axelrod said. “And the president understood that.”

Only in Washington could the civil rights era of our day be defined by the “politics of authenticity.” After polling of thousands of Republicans, and discussions with Ken Melhman, the former RNC chair, who was gay, the President’s braintrust started to formulate a plan of how to announce the “evolution.”

Michelle Obama, and Valerie Jarrett urged the President to go public with his views. In fact, the First Lady “quiet[ly]” attended a gay wedding.

Inside the White House, the first lady urged her husband to declare his support for same-sex marriage. The Obamas had a number of gay friends, and though the White House kept it quiet, the first lady attended a wedding celebration for her hairdresser when he married his husband. She felt strongly that her husband had the power to transform the national conversation on marriage equality. And it was not lost on the president that his failure so far to do that was “a source of disappointment to people who otherwise appreciated him,” Axelrod said. Valerie Jarrett, a longtime friend of the Obamas and a top adviser who served as the president’s liaison to gay voters, also encouraged him to go public. This is consistent with who you are, she told him.

Even as right-wingers like Laura Bush came out in support of same-sex marriage, the White House was still concerned about the political risks in the upcoming election.

But for all the political and corporate cover, Obama’s political advisers remained worried that the costs outweighed the benefits — a fear that intensified as it became clear that North Carolina, a battleground state that Obama narrowly won in 2008, was poised to easily pass a constitutional amendment banning same-sex marriage.

“This was so past the sell-by date,” one senior administration official said of the timing of an announcement by the president, “yet there was still no real plan in place. It just shows you how scared everyone was of this issue.”

But, then Biden happened. The book recounts Vice President Biden’s own evolution.

It was clear from Biden’s body language that the question made him uncomfortable. His public position was no different from the president’s. As a senator, Biden voted for the Defense of Marriage Act. As a presidential candidate himself, he said he supported civil unions. And as the vice president, he had studiously toed the administration’s shifting line. ..

“Things are changing so rapidly, it’s going to become a political liability in the near term for an individual to say, ‘I oppose gay marriage.’ Mark my words.”

Having started down this road, he seemed incapable of stopping. People his children’s age could not understand why gay couples should not be allowed to marry, he said. “ ‘I mean, what’s the problem, Dad?’

“And my job — our job — is to keep this momentum rolling to the inevitable.”

The answer stunned everyone in the room, even top aides who were used to the gaffe-prone vice president’s habit of going off script.

Two weeks later, during an interview on meet the Press, Vice President Biden said that he supports same-sex marriage.

“What this is all about is a simple proposition,” he told Gregory. “Who do you love, and will you be loyal to the person you love? And that’s what people are finding out is what all marriages at their root are about.”

“And you’re comfortable with same-sex marriage now?” Gregory pressed.

“I, I — look — I am vice president of the United States. The president sets the policy. I am absolutely comfortable with the fact that men marrying men, women marrying women and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties.”

This was more of a “my job” than “our job” line. And it set the White House into shock.

One of Biden’s advisers told him, “I think you may have just gotten in front of the president on gay marriage.”

Contrary to what some suspected, this was not an intentional test balloon. Biden went for it himself.

Political commentators immediatelybegan to speculate that Biden’s remarks were either intended as a trial balloon or had specifically been cleared by the White House to mollify gay voters without the president’s having to take a position. Neither was the case. When the White House press team received a transcript of the interview, tempers flared. Jarrett, who was still hoping that Obama might make a groundbreaking pre-election announcement, accused Biden through an intermediary of disloyalty. Campaign officials were also agitated. “They felt they already were vulnerable,” one White House official told me, “and they had not fully resolved yet what they wanted to do.”

And rather than embracing Biden’s comment, the White House tried to walk it back!

The White House quickly tried to walk back Biden’s comments. “What VP said — that all married couples should have exactly the same legal rights — is precisely POTUS’s position,” Axelrod tweeted on Sunday, May 6, the day Biden’s interview aired. Biden’s office was told to put out a “clarification” echoing that sentiment: “The vice president was expressing that he too is evolving on the issue,” it said. …

Griffin’s question had inadvertently set off a chain reaction. Obama and his team knew that he had to take a stand, soon, or risk looking as if he were “leading from behind,” a portrayal the White House hated.

Curiously enough, the first lady saw Biden’s comment as liberating:

Some of Obama’s top advisers urged him to take Biden to task for forcing his hand, but he refused. The first lady saw the whole thing as a blessing in disguise. The endless debate was over. You don’t have to dance around this issue anymore, she told her husband over breakfast on Wednesday, in a conversation she relayed afterward to several top White House officials. “Enjoy this day,” she said as he headed off for his interview. “You are free.”

I previously commented on similar remarks in Game Change II, that the President was “angry” with Biden for jumping the gun on Meet the Press.  I’ve long suspected that Biden’s blunder nudged the President to come out in support of gay marriage. I’m glad to see my intuitions confirmed.

Afterwards, the President did the interview with Robin Roberts, and came out, partially, in support of same-sex marriage.

Mindful of the voters there and in other swing states with similar bans, the president emphasized that he had no desire to “nationalize” what he called the “healthy debate” taking place across the country.

“I continue to believe that this is an issue that is going to be worked out at the local level, because historically this has not been a federal issue, what’s recognized as a marriage.”

But as a personal matter, he said, he now believed that gay couples should be able to marry. He told Roberts that he would have “probably” endorsed same-sex marriage before the election, and that the vice president just “got out a little bit over his skis.”

And the rest is, well, history.

As Dan Pfeiffer, the White House communications director at the time, put it: “It was the bomb that didn’t go off.”

There is also some SCOTUS-related tidbits, focusing on Chuck Cooper’s argument in the Prop 8 case:

But Griffin’s optimism quickly gave way the next day when Charles J. Cooper, the Washington-based lawyer charged with defending the constitutionality of Proposition 8, filed an opening brief with the Supreme Court, citing the president’s interview with Robin Roberts to argue that bans like Proposition 8 were not motivated by impermissible prejudice. Cooper’s brief quoted Obama as saying that those who opposed same-sex marriage were not coming at it “from a meanspirited perspective,” and it used Obama’s “healthy debate” language to argue that this was a matter for voters and legislatures to decide, not the courts.

And interestingly enough, it was Boise and Olson who wanted the President to make the final push, by having the SG file a brief with the Supreme Court.

Furious, Griffin fired off a sharply worded news release criticizing the statement. He also privately arranged for him and Boies to meet with Jarrett and Kathryn Ruemmler, the White House counsel. Boies and Olson felt it was imperative that Obama take one final step in his evolution, by having his solicitor general file a brief with the Supreme Court clearly stating that the administration believed that bans like Proposition 8 were not just bad policy, but they also violated the Constitution.

In preparing for the White House meeting, Olson encouraged Boies and Griffin to emphasize the importance of the case to Obama’s legacy. But when Griffin asked his friend and former business partner Kristina Schake, who was now the first lady’s communications director, about that strategy, she discouraged it: The president is capable of assessing his legacy without your input, she told him. Focus on the law, she said, and why bringing in the solicitor general would make a difference legally.

At the meeting, Boies did just that, discussing Obama’s inaugural speech in the context of their legal strategy. Now that Obama had said what he said, Boies argued, “silence would not be considered neutral.” It would, in fact, be deeply harmful, signaling that even someone as friendly to gay voters as Obama considered their argument a bridge too far. It could cost them the case.

“It’s already being used against us,” Boies said, citing Cooper’s brief.

Both women seemed impressed by their pleas. But before they left, Boies said, Jarrett made it clear that further lobbying via the press would not be helpful. This was now a legal decision, she said, not a political one.

Then, the Solicitor General and the Attorney General met with the President. Remarkably, the book says that Obama aimed the brief directly at Justice Kennedy, and hatched the so-called “Eight-State Solution.” This is exactly the position the SG advocated:

Holder and Verrilli then met with the president and Ruemmler, his White House counsel, and Denis McDonough, his chief of staff, for more than an hour in the Oval Office to go over the Justice Department’s recommendation. “This was not a briefing,” Holder recalled. “This was a meeting of equals in terms of knowledge of the facts, knowledge of the law.”

The president did not need to be persuaded on the larger moral question; whatever he may have said in the past, he, too, saw the marriage debate through the prism of civil rights, according to Ruemmler and Holder. But Obama wanted to offer Kennedy and the rest of the justices an incremental way to decide the Proposition 8 case that would not force them to overturn bans across the country, a position that he worried the court would find untenable. They arrived at what they referred to as the “eight-state solution.” States needed a justification when they singled out a class of citizens for differential treatment. The plan was to file a brief with the Supreme Court arguing that in states that recognized same-sex domestic partnerships, it was particularly irrational to ban marriage because doing so could not be said to further any governmental interest. In addition to California, that argument would cover Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. “By the time we leave” that meeting, Holder recalled, “we know what position we’re taking, what our strategy is.”

The article closes the circle very nicely:

After hanging up with Ruemmler, he thought back to May 2009, the day he announced the Proposition 8 lawsuit at a news conference in Los Angeles. Afterward, he drove across town to an Obama fund-raiser. When it was his turn to shake the president’s hand, he used the opportunity to begin what would become his mission to win Obama’s support.

“Mr. President, we just filed a case challenging the constitutionality of California’s ban on same-sex marriage,” he recalled saying. “We certainly hope you will be with us on this.” It had taken four years and a profound shift in public opinion, but the president was, at last, with them.

A fascinating story of constitutional and political change.

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Apr 16, 2014

If Erie Railroad v. Tompkins Happened in 2014, It Would Totally Be A Dude Taking A Selfie Next To An Oncoming Train Getting Kicked by the Conductor

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The facts of Erie Railroad v. Tompkins (1938) are familiar to everyone. Harry Tompkins, a citizen of Pennsylvania, was walking on alongside the tracks of the Erie Railroad when an object sticking out of the train knocked him over, and resulted in his arm getting crushed by the train.

In 2014, how would it happen? Some idiot is trying to take a selfie next to an oncoming train, and the conductor sticks out his foot to kick him in the head. Then the millennial brags, “Wow that guy just kicked me in the head! I think I got that on film!”

Here is the play-by-play.

Missed that? The train was going pretty fast, after all. Let’s take a frame-by-frame look.

Train selfie

Here Michael stands, blissfully unaware of what is to come.

What was he even doing, trying to take a selfie with a train?

Note the workboot on the far right of the frame.

Brace for impact…

That’s gotta hurt.

And out come the headphones.

If anything, Jared Michael should be commended on his steady hands.

His hair looks very Kim Jong-un here.

And it’s all over.

And no, federal common law will not save this millennial.

I am sick and tired of the selfie. I think we’ve reached peak-selfie. I hope this trend fades, quickly.

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Apr 16, 2014

Thick and Thin Legal Issues at the Bundy Ranch

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In ConLaw today, I spent some time unpacking the legal issues in the recent Bundy Ranch standoff. There are a lot of thick and thin constitutional questions.

First, Bundy seems to reject the Constitution’s property clause.  (It was a wonderful twist of scheduling fate that I assigned the “Property Clause” in ConLaw the week after the Bundy Ranch standoff. ) In an interview he said that the federal government has “no jurisdiction or authority” on his grazing rights. Under the Property Clause, Congress has the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The land at issue was owned by the United States prior to Nevada statehood as a territory. I suspect Bundy will argue that his family has obtained a prescriptive easement on the land, as it has continuously, openly, and (absolutely) hostilely, grazed on the land for 170 years. Though, adverse possession is not permissible against the federal government.

Second, Bundy does not accept the supremacy clause, as he said he has “no contract with the United States government.” To the extent that BLM, pursuant to the Property Clause enacts regulations concerning land the government owns, then yeah, he has a contract with the government. Those are the Supreme Laws of the land.

Third, Bundy has an odd vision of the Equal Footing Doctrine, which he claims allows him to ignore federal law:

“At the moment of statehood, what happened?” Bundy asked. “At the moment of statehood the people of the territory become people of the United States with the Constitution, with equal footing to the original 13 states. They had boundaries allowing them a state line. And that boundary was divided into 17 subdivisions, which were counties. Which I live in one of those counties, Clark County, Nevada.” “As a citizen of that county, I abide by all the state laws,” he concluded.

The equal footing doctrine states that all states must be admitted to the union with equal rights and powers. But the equal footing law doesn’t permit the residents of Clark County to ignore the Constitution any more than the citizens of one of the original 13 colonies. Those are the thin issues.

Fourth, and this goes meta, the Bundy standoff raises Cooper v. Aaron issues about the supremacy of federal law, and  resistance to court orders. Walter Olson links to comments made by Ted Frank that are directly on point.

I hate to see how many on my side who are upset at Obama’s violation of the Rule of Law cheer the Bundys’ criminal contempt of a court order. The Bundys are claiming a right to graze upon federal lands without paying or consent of the landowner on the grounds that the federal government has no sovereignty over Nevada. The US BLM has taken twenty years and multiple court proceedings to kick them out, winning twice in the Ninth Circuit. In response, armed militias showed up this week to defend the Bundys, who have threatened range war. The government has temporarily caved to avoid the possibility of armed confrontation. This really isn’t a close question, and threatens to tar all small-government and Second Amendment supporters.

Ted is exactly right. It is really, really important for people to follow court orders–even based on silly laws enforced in a ridiculous manner. The idea of a self-organized militia aiming sniper rifles at federal agents enforcing a court order is a very dangerous proposition. If one of those guys had pulled the trigger, we would have had a massive blood bath.

This brings me to Cooper v. Aaron. Although that case involved government officials flagrantly ignoring court orders, a similar dynamic happens when individuals flout a court order. Usually if one or a few people ignore a court order, they are arrested, and prosecuted. But when 1,000 militiamen swarm around federal agents, the normal rules are out the window.


Fifth, this standoff raises inevitable questions about the Second Amendment. I have often discussed the Second Amendment in terms of being a “doomsday provision,” to quote Judge Kozinski (see here, here, and here). This is the right that kicks in when all other rights fail.  A student asked at what point should society turn to arms (this is Texas after all). I responded that this is a question I pray none of us ever have to confront in our lifetimes, and that we should all attempt to work within the system, at every juncture. I also recalled Jefferson’s sentiment in the Declaration that a society should not rebel for “light and transient causes.”

Confrontations like that at the Bundy Ranch illustrate what I refer to as “shit getting real.” What happens when 1,000 militia men refuse to obey federal law, even under a flawed understanding of the Constitution, confront federal officials. In the end, I ducked the question, but let the class think about it for themselves. I still am.

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Apr 16, 2014

Constitutional Places: West Coast Hotel v. Parish

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Long before John Roberts’s switch in time that saved nine, we had Owen Robert’s change-of-course in West Coast Hotel v. Parish. Here is the West Coast Hotel is Wenatchee, Washington.


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Apr 16, 2014

Prop1 Class 25 – Landlord-Tenant Relationship II

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The lecture notes are here and the live chat is here.

This is 207 Union Street in Hackensack, NJ.

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Apr 16, 2014

ConLaw Class 23 – Procedural Due Process, Article IV Federalism, and the Treaty Power

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The lecture notes are here. The live chat is here.

Procedural Due Process, Article IV Federalism, and the Treaty Power

  • Matthews v. Eldridge (1456-1463).
  • Article IV Federalism (741-744).
  • The Guarantee Clause (800). Texas v. White (starting with note 8 on p 811-815).
  • Treaty Power (736).
  • Missouri v. Holland (736-738).
  • Reid v. Covert (738-741).
  • United States v. Bond - Oral argument recap


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Apr 15, 2014

Stephen Black, Grandson of Hugo Black, Working To Keep College Graduates in Alabama

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All Things Considered has a feature about Stephen Black, a Yale Law School graduate, and college professor at the University of Alabama, who is working on keeping college graduates in Alabama. You can listen here. Of his grandfather, he said, “Humanity is messy. My grandfather’s life is indicative of that . . . He literally educated himself out of racism.”

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Apr 15, 2014

Question I received from my student about Slaughter-House and Privileges or Immunities

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Questions like this let me know that I’m doing something right in class:

Why doesn’t the court just overrule The Slaughter House Cases and use the actual privileges or immunities clause so they don’t have to make up silly things like the penumbras?


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Apr 15, 2014

Judge Merritt Accuses Judge Boggs of “Strict Libertarian Ideology”

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I  note this concurring opinion from Judge Merritt, where he comments on an opinion by my former boss, Judge Danny Boggs:

MERRITT, Circuit Judge, concurring. I agree with the court’s result but not all of its reasoning. The court’s idea that there is no “general duty” on the part of the government “to protect its citizens” and that all rights should be viewed as “strict negative rights” suggests a strict libertarian ideology that does not reflect the way our system works. See David P. Currie “Positive and Negative Constitutional Rights,” 53 U. Chi. L. Rev. 864 (1986).

Here is the passage from Judge Boggs’s opinion that set off Judge Merritt:

Both parties recognize the centrality of the Supreme Court’s seminal decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), a case, like this one, with “undeniably tragic” facts. Id. at 191. DeShaney stands for the principle that there is no general duty on the part of the state to protect its citizens from private harms. Strict negative rights are a distinctive aspect of the American constitutional system. “The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Posner, J.).

I’m familiar with another “strict libertarian” constitutional scholar who referred to the Constitution as a charter of “negative liberties.”

[The] Constitution [is] merely “a charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”

Like Judge Boggs, he was an instructor at the University of Chicago Law School.

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Apr 15, 2014

Did Congress Pass A Bill Of Attainder That Denied Visa to Iranian Envoy Who Was Involved in 1979 Hostage Crisis?

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The Times reports that both the House and Senate approved a bill “aimed at denying a visa to Iran’s choice for United Nations ambassador” Hamid Aboutalebi, who was alleged to have played a minor role in the 1979 hostage crisis in Tehran. Isn’t this a Bill of Attainder?

The bill, S.2195, introduced by Sen. Ted Cruz, is titled “A bill to deny admission to the United States to any representative to the United Nations who has been found to have been engaged in espionage activities or a terrorist activity against the United States and poses a threat to United States national security interests.” It would prohibit giving a visa to anyone who has been found to “have been engaged in espionage activities or a terrorist activity.”

The bill itself is not targeted directly Hamid Aboutalebi personally, but it would pretty clearly affect a small, small subset of people. So it’s probably not a Bill of Attainder.

The President is unlikely to sign the bill. Though, it was passed unanimously (unanimous Consent in the Senate and without objection in the House), so would we see a veto override?!

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Apr 15, 2014

Omniveillance: Police See EVERYTHING with Persistent Surveillance Systems

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The more time elapses since I wrote Omniveillance in 2007, the closer things come to the state I predicted. The most recent exhibit is Persistent Surveillance Systems. Imagine a drone that can record everything going on in a given area, and map events over time to create a cross between Google Earth and Tivo.

The Center for Investigative Reporting takes a look at a number of emerging surveillance technologies in a new video, but one in particular stands out: A wide-area surveillance system invented by Ross McNutt, a retired Air Force veteran who owns a company called Persistent Surveillance Systems.

McNutt describes his product as “a live version of Google Earth, only with TiVo capabilities,” which is intriguing but vague (and also sounds a lot like the plot of this terrible Denzel movie). More specifically, PSS outfits planes with an array of super high-resolution cameras that allow a pilot to record a 25-square-mile patch of Earth constantly—for up to six hours.

It’s sort of similar to what your average satellite can do—except, in this case, you can rewind the video, zoom in, and follow specific people and cars as they move around the grid. It’s not specific enough to ID people by face, but, when used in unison with stoplight cameras and other on-the-ground video sources, it can identify suspects as they leave the scene of a crime.

Check out this helpful gif.


Here is how I described this time machine feature in Omniveillance:

As distinguished from previous forms of public monitoring, this new form of surveillance will be omnipresent, as it can record vast areas of space over a very small period of time. It provides the users of this system with omniscience to know everything happening in a specific location at a specific time. Furthermore, this information will be indefinitely retained, and easily accessible. When future versions of this technology is properly implemented, it will be possible to enter a time, date, and location, and witness what happened at that moment as if you were there. It is a virtual time machine.

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Apr 15, 2014

Census Bureau To Change Annual Health Care Survey To Make it IMPOSSIBLE to Determine Impact of Obamacare

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I’m not sure how I should react to this story in the Times that the Census Bureau is changing the manner in which data about uninsured people is collected. As a result, it will be impossible to measure the number of people who gained insurance before Obamacare. On the one hand, it seems like a good move, in that more detailed data will be gathered. But, on the other hand, my cynical side is piqued.

Nearly every aspect of the implementation of this law in Treasury and HHS has been politicized from the top down. Is the Census Bureau exempt? I want to say yes, but I can’t. This is the distrust that disregarding the rule of law engenders. Something as mundane as a survey about levels of uninsured is now subject to manipulation by the Administration.

The articles tries to discount that this change was political in nature

Another Census Bureau paper said “it is coincidental and unfortunate timing” that the survey was overhauled just before major provisions of the health care law took effect. “Ideally,” it said, “the redesign would have had at least a few years to gather base line and trend data.” …  But the decision to make fundamental changes in the survey was driven by technical experts at the Census Bureau, and members of Congress have not focused on it or suggested political motives. The new survey was conceived, in part, to reduce a kind of bias or confusion in the old survey. When asked about their insurance arrangements in the prior year, people tended to give answers about their coverage at the time of the interview — forgetting, for example, if they had Medicaid for a few months early in the prior year.

But we also know that this new questionnaire came from the White House.

The White House is always looking for evidence to show the benefits of the health law, which is an issue in many of this year’s midterm elections. TheDepartment of Health and Human Services and the White House Council of Economic Advisers requested several of the new questions, and the White House Office of Management and Budget approved the new questionnaire.

Plus, this new survey will yield lower levels of uninsured.

An internal Census Bureau document said that the new questionnaire included a “total revision to health insurance questions” and, in a test last year, produced lower estimates of the uninsured. Thus, officials said, it will be difficult to say how much of any change is attributable to the Affordable Care Act and how much to the use of a new survey instrument.

“We are expecting much lower numbers just because of the questions and how they are asked,” said Brett J. O’Hara, chief of the health statistics branch at the Census Bureau.

With the new questions, “it is likely that the Census Bureau will decide that there is a break in series for the health insurance estimates,” says another agency document describing the changes. This “break in trend” will complicate efforts to trace the impact of the Affordable Care Act, it said.

So there we have it. In the era of Obamacare, it is now impossible to ascertain how many people actually gained coverage. And I wondered why Sebelius was dodging this question. I’m sure this change was known before the 7 million number came out.

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Apr 15, 2014

Fact-Checking Denniston’s “Constitution Check” on the Second Amendment

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The National Constitution Center has an excellent blog, Constitution Daily,  with lots of great features about our Constitution. I’ve written several pieces for them. But one feature really isn’t working for me. This is the “Constitution Check” section, authored by Lyle Denniston. It makes an attempt to emulate fact-checking sites like Politifact.

In a recent post titled “Constitution Check: Does the Second Amendment need to be amended?” Lyle considers Justice Stevens’s recent proposal to amend the Second Amendment (I’ve written about Stevens more times than I can count, so here I’ll focus on Denniston’s “Constitution Check.”)

Lyle writes:


There is an old saying about the Constitution that, like a lot of old sayings, is at least partly an exaggeration: “The Constitution is what the Supreme Court says it is.”  However, that is very close to the truth about the Second Amendment.

From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun.  And then it changed, in a profound way.

Prior to 2008, there was a public conversation – often, in academic writings funded by the National Rifle Association – about whether the Amendment should go beyond protecting the arming of state militias, to allow Americans to arm themselves for personal use.

I have serious objections with this introduction. It is not written in a neutral or balanced way. If you purport to be writing some kind of objective, journalistic approach to the Constitution, this is not how you do it. What is most strikingly missing is ANY reference whatsoever to the facts supporting the other side of the debate. It is entirely one-sided. 

For starters, this statement is false:

From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun.  And then it changed, in a profound way.

Now, it would be fair to say that the original meaning of the Second Amendment is controversial, and that many people offer differing accounts of what that right is. But this blanket statement, without any nuance, is wrong. I could provide books upon books of sources to show that contemporary thinkers in the 18th, 19th and early 20th century thought the right to keep and bear arms was an individual right. Justice Scalia chronicles them at great length.  And Justice Stevens provides other historical sources to say the history cuts the other way. A responsible “Constitution Check” would have to, at least mention both sources. An uninformed reader would believe that the right is simply made up out of whole cloth.

The post elides over this history, and only notes that the “public conversation” was often in “academic writings funded by the National Rifle Association.” I’m sure Lyle would not include in this group the works of Sandy Levinson, who authored the pathbreaking “The Embarrassing Second Amendment,” finding that the Second Amendment was in fact an individual right. Many prominent left-of-center academics came to the (uncomfortable) conclusion that the Second Amendment is an individual right (though they would find the law in Heller constitutional).

I appreciate the fact that the Second Amendment is controversial. I’ve written a lot about it, and spoken on the topic in front of legal, and non-legal audiences. Reasonable people can disagree on this topic. But making such unbalanced statements, without nuance, is a disservice to a blog post purporting to cite check the Constitution.

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Apr 15, 2014

Happy Oliver Wendell Holmes Day

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On this 15th Day of April, Tax Day, let’s celebrate Oliver Wendell Holmes, who famously said, “Taxes are the price we pay for a civilized society.”

Beware the Ides of April!

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Apr 15, 2014

“Invisible Radiation” from the 10th Amendment and “Penumbras Formed by Emanations”

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In preparing to teach Missouri v. Holland (hopefully for the last time, as Bond should either reverse it, or narrow it), I was struck by how Justice Holmes characterized the 10th Amendment. It wasn’t just a “truism.” Even worse. It was “invisible radiation.”

The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved.

Holmes mocks the 10th Amendment’s vague terms, joking about whether there is any kind of “invisible radiation” emanating from it.

Yet, 45 years later, in Griswold v. Connecticut, this mockery of jurisprudence would pass for constitutional law.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

How did neither Justice Black nor Justice Stewart make this point in dissent!?

Alas, last night while watching the Lunar Eclipse, as hard as I tried, I could not discern any penumbras formed by the emanations from the sun. Though when I held my pocket Constitution up to the sky, it illuminated like in Raiders of the Lost Ark, and a zone of privacy merged around me. OK, I made up the last part, but why not.

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Apr 15, 2014

Why is this year unlike all other years? Polar Vortex Creates Shortage of Gefilte Fish

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The lingering effects of the Polar Vortex have now creeped into the Passover seder.

Why is this year unlike all other years? Because of the 11th plague — the polar vortex — which created a shortage of gefilte fish, the appetizer equally loathed and loved by generations of Jews.

The main ingredient in modern gefilte fish is whitefish, along with the traditional carp and possibly pike or mullet or, for the cosmopolitan, salmon. The vast majority of whitefish used by fishmongers, gefilte makers and home cooks in the United States comes from fisheries on the Great Lakes and in western Canada, according to Randall Copeland, vice president for operations at Manischewitz, the largest producer of gefilte fish in the world.

Though it may finally feel like spring in the rest of the country, up to four feet of ice still lingers on the lakes, which froze almost entirely during the winter.

“This isn’t dropping a line in the water and hauling fish in,” said Ronald Kinnuen, a fisheries specialist at Michigan Sea Grant, a cooperative run by Michigan State University and the University of Michigan. “These are huge nets, hundreds or thousands of feet in size, and costing $8,000 to $10,000. In these conditions, it’s foolish to try fishing.”

And, remarkably, Manischewitz buys their fish a year in advance. What, you thought it was fresh?

Manischewitz was largely spared the shortage because it buys its fish up to a year in advance, setting orders with suppliers for a mix of fresh and frozen fish. “We’ve been through enough lean times in the past to have learned our lesson and plan ahead,” Mr. Copeland said.

I’m sure this news will be met by some with anguish, and with others by relief.

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