Apr 19, 2014

Justice Stevens Will Be On “This Week” with George Stephanopoulos On Sunday

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This should be interesting.

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Apr 19, 2014

See. It’s Not Just Me. Hasen Reviews Stevens Book: “overly simplistic and poorly drafted”

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I admit, I have been very hard on Justice Stevens since he stepped down from the bench. I find his numerous speeches not only inappropriate, but also largely unpersuasive. I was so unimpressed with the brief portions of his book that I’ve read that I couldn’t bring myself to read the entire thing (it’s a breezy read). I was tempted to write a review of it, but I determined that it was not worth my time. There are so many other more important, pressing topics that warrant my attention.

Now, reviews from others have started to roll in, and have confirmed my intuitions. (In other words–see it’s not just me).

Rick Hasen has a review in The Daily Beast, titled “Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens.” It has a subtitle (which Rick may or may not have written) that captures the essence of the book quite well: “From campaign finance to political gerrymandering, the retired Supreme Court justice skips hard arguments in his new book in favor of unrealistic, poorly drafted solutions.” Here is the opening:

Reading retired Supreme Court Justice John Paul Stevens’s new book, Six Amendments: How and Why We Should Change the Constitution, I was reminded of an old Steve Martin routine from his standup days. “First, get a million dollars,” Martin explains in “You Can Be a Millionaire and Never Pay Taxes.” Then if the tax collector comes to your door asking why you didn’t pay taxes on your million dollars, just say, “I forgot.” Just like Martin, Justice Stevens wants to skip all the tough stuff, using his slim volume to offer overly simplistic solutions to some of the country’s most pressing problems, from political gerrymandering to Second Amendment gun rights and campaign finance. I’m afraid it will take much more to cure our nation’s ills.

And putting aside the 0% chance any of these amendments will be ratified, they just aren’t good! I’ve already commented on why his Second Amendment fix makes no sense. Rick opines on his campaign finance amendment.

But even if we looked past the impossibility of these amendments’ passage, Justice Stevens’s campaign finance proposal is overly simplistic and poorly drafted. It doesn’t let Congress or the states pass whatever campaign finance laws they please, such as laws that impose looser limits on incumbents. Instead, it allows only for “reasonable” limits. The question of reasonableness inevitably would become a judicial one: What makes Justice Stevens think the current Supreme Court, which finds that all of these limits impinge too much on the freedom of speech guaranteed by the First Amendment, would find such limits reasonable under this new (30th?) amendment? Or things could work the other way: Courts in future times could allow any limits on money in politics, even those that might be aimed at, and be successful at, squelching political competition. That could be just as bad, or worse, than what we have now.

Further, this new amendment goes much further than simply overturning Citizens United or McCutcheon. Its provision limiting how much candidates may spend in elections goes directly against the Supreme Court’s 1976 Buckley v. Valeo decision, which held that limits on candidate spending violate the First Amendment. Candidate spending limits implicate different interests; they don’t just prevent corruption. A candidate who raises millions of dollars in tiny donations would be subject to the same limits as a candidate who raises millions of dollars in a couple of donations. It is not clear the law should treat the two cases the same. The change could be defensible, but Justice Stevens does not offer any detailed defense of this change. He also apparently would allow a “limit,” but not a “ban,” on corporate money in elections. That’s not a return to pre-Citizen United days.

Rick closes by noting that Stevens didn’t accomplish much with this tome.

In Steve Martin’s millionaire bit, he ends by talking about what happens when the criminal goes before the judge with the “I forgot” defense. For the judge who is incredulous, Martin again offers two simple words: “Excuuuuuse me!” So excuse me for writing such a critical review of nonagenarian Justice Stevens’s book. I hope I’m still around in my 90s and able to read a book, much less write one. But he has done the cause of progressive constitutional change no favors with Six Amendments, which lacks the nuance necessary to defend these ideals.

I am very grateful that Justice Stevens did not join James Madison in company in 1789 when drafting the Bill of Rights.

Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Justice Stevens should enjoy his retirement.

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Apr 19, 2014

Obama Signs Into Law Non-Bill-Of-Attainder But Issues Signing Statement Saying He Won’t Enforce It

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I blogged last week that a bill, proposed by Ted Cruz, and passed unanimously in both houses, that would have denied a diplomatic visa to anyone who engaged in terroristic activity against the United States, would not be a bill of attainder, even though it was clearly directed at the newly-appointed Iranian ambassador who took part in the Iranian hostage crisis. The President signed that bill into law, but issued a (gasp!) signing statement saying he would not follow it. And he cited the practices of President George H.W. Bush. It’s only “advisory.”

Today I have signed into law S. 2195, an Act concerning visa limitations for certain representatives to the United Nations.  S. 2195 amends section 407 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, to provide that no individual may be admitted to the United States as a representative to the United Nations, if that individual has been found to have been engaged in espionage or terrorist activity directed against the United States or its allies, and if that individual may pose a threat to United States national security interests.  As President Bush observed in signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, this provision “could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations.” (Public Papers of the President, George Bush, Vol. I, 1990, page 240).  Acts of espionage and terrorism against the United States and our allies are unquestionably problems of the utmost gravity, and I share the Congress’s concern that individuals who have engaged in such activity may use the cover of diplomacy to gain access to our Nation.  Nevertheless, as President Bush also observed, “curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution.”  I shall therefore continue to treat section 407, as originally enacted and as amended by S. 2195, as advisory in circumstances in which it would interfere with the exercise of this discretion.

Imagine that. A President referring to an Act of Congress, passed overwhelmingly across Party lines, as “advisory.”

I will wait for the ABA to condemn President Obama for issuing a signing statement. Never mind.

Hey, at least the President signed into law a bipartisan piece of legislation. That hasn’t happened too many times of late.

Update: If the President truly believed this law unconstitutionally infringed on his Article II powers over foreign affairs–and I think he and Bush 41 are right here–he should have vetoed it. The rationales for a signing statement are weak when the bill is a single issue. Perhaps if there are many parts of a bill the President likes, but one objectionable part, a signing statement may make sense (that is not what the ABA found in their report). But here, the Cruz bill only had one provision, which the President thought unconstitutional. This should have been an *easy* case to veto. But instead he signed it into law, only to promptly disregard it. I will wait for the ABA to condemn this lawlessness.

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Apr 19, 2014

Talk About Citing Facts Outside The Record! Justice Breyer Cites Unpublished Book in McCutcheon Dissent

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It has long been a pet peeve of mine when appellate judges cite sources outside the record, and in particular cite sources that came to light following oral arguments. There is no way the advocates can be aware of these sources, and perhaps rebut them. Justice Breyer just one-upped this. In his McCutcheon dissent, he cited Robert Post’s forthcoming book, that will be officially published in June.

That is also why the Court has used the phrase “subversion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470 U.S., at 497, 105 S.Ct. 1459. See also Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 208, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (the Government’s interests in preventing corruption “directly implicate the integrity of our electoral process” (internal quotation marks and citation omitted)). See generally R. Post, Citizens Divided: Campaign Finance Reform and the Constitution 7–16, 80–94 (forthcoming 2014) (arguing that the efficacy of American democracy depends on “electoral integrity” and the responsiveness of public officials to public opinion).

No one, other than those with access to the author or publisher, could see it.

Derek Muller was the first to notice.

Yeah, wouldn’t it be nice. Rick Hasen adds some comments:

Have there been any other occasions where Justices have cited scholarship not available in the public record?  Justice Scalia cited a forthcoming piece posted on SSRN in Heller (“And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J.L. & Pub. Pol’y (forthcoming Sept. 2008), online at http://papers. ssrn.com/abstract=1086176 (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period).”). Justice Kennedy did in Boumediene (“. Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The **2245Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L.Rev. 575, 585 (2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol 3 /papers.cfm?abstract_id =1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)”.)

But Justice Breyer cited to something which is not available on SSRN nor is there any notation that a copy is in the Clerk of Court’s file.

Bad form from Justice Breyer.

As an aside, Post’s book addresses some of the themes I’ve been thinking about with Collective Liberty. I’ll be sure to read it when it comes out.

Post interprets constitutional conflict over campaign finance reform as an argument between those who believe self-government requires democratic participation in the formation of public opinion and those who believe that self-government requires a functioning system of representation. The former emphasize the value of free speech, while the latter emphasize the integrity of the electoral process. Each position has deep roots in American constitutional history. Post argues that both positions aim to nurture self-government, which in contemporary life can flourish only if elections are structured to create public confidence that elected officials are attentive to public opinion. Post spells out the many implications of this simple but profound insight. Critiquing the First Amendment reasoning of the Court in Citizens United, he also shows that the Court did not clearly grasp the constitutional dimensions of corporate speech.

Update: Two of Breyer’s clerks this year–Thomas P. Schmidt (Garland) and Sara A. Solow (Baylson, E.D.Pa) graduated from Yale Law School.

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Apr 18, 2014

Brandeis Brief: “women are fundamentally weaker than men in all that makes for endurance”

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Louis Brandeis is often celebrated for his advocacy in Muller v. Oregon, and the so-called Brandeis Brief. As David Bernstein has pointed out, most of the brief was junk social science. In case you were wondering, here is the opening paragraphs of his lead argument section about the dangers of long hours for working women.

I. The Dangers of Long Hours

A. Causes

(1) Physical Differences Between Men and Women

The dangers of long hours for women arise from their special physical organization taken in connection with the strain incident to factory and similar work.

Long hours of labor are dangerous for women primarily because of their special physical organization. In structure and function women are differentiated from men. Besides these anatomical and physiological differences, physicians are agreed that women are fundamentally weaker than men in all that makes for endurance: in muscular strength, in nervous energy, in the powers of persistent attention and application. Overwork, therefore, which strains endurance to the utmost, is more disastrous to the health of women than of men, and entails upon them more lasting injury ….

Compare this with Justice Sutherland’s opinion in Adkins v. Children Hospital:

In the Muller case, the validity of an Oregon statute, forbidding the employment of any female in certain industries more than ten hours during anyone day was upheld. The decision proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect[p553] of the maternal functions, and also in the fact that, historically, woman has always been dependent upon man, who has established his control by superior physical strength. The cases of Riley, Miller, and Bosley follow in this respect the Muller case. But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case (p. 421) has continued “with diminishing intensity.” In view of the great — not to say revolutionary — changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships. In passing, it may be noted that the instant statute applies in the case of a woman employer contracting with a woman employee as it does when the former is a man.

And for reasons I cannot recall, Justice Brandeis recused in Adkins.

Years ago, I saw Justice Ginsburg preside over a reenactment of Muller v. Oregon. It was awesome to see RBG favorably cite Lochner, and note how the arguments in Muller deemed women inferior.

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Apr 18, 2014

Bagley on the Legality of Delaying the ACA

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Nick Bagley, who kindly  commented on my book talk at UMichigan, has a piece in the New England Journal of Medicine explaining in a concise manner the legality of the myriad delays to Obamacare:

For several reasons, however, the recent delays of ACA provisions appear to exceed the scope of the executive’s traditional enforcement discretion. To begin with, the delays are not “discretionary judgment[s] concerning the allocation of enforcement resources” that, per Heckler, are at the core of the executive branch’s power to decline to enforce laws.2 Instead, they reflect the administration’s policy-based anxiety over the pace at which the ACA was supposed to go into effect. The mandate delays, for example, were designed to “give employers more time to comply with the new rules.”3 Similarly, the postponement of the insurance requirements aims to honor the President’s promise that “if you like your health care plan, you can keep it.”

To sharpen the point: even if the administration lacked the capacity or desire to take action against those who failed to comply with the ACA, it could have remained silent about its enforcement plans. Most employers and insurers would still have felt obliged to adhere to the law. Because the administration wanted to relieve them of an unwanted burden, however, it publicly committed itself to nonenforcement, thereby licensing employers and insurers to disregard the ACA’s terms.

Encouraging a large portion of the regulated population to violate a statute in the service of broader policy goals — however salutary those goals may be — probably exceeds the limits of the executive’s enforcement discretion.4 The U.S. Court of Appeals for the D.C. Circuit has said that “an agency’s pronouncement of a broad policy against enforcement poses special risks that it has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.”5 The ACA delays appear to be just such broad — and worrisome — policies.

The administration’s legal claim is strongest in defending the employer-mandate delays. The Internal Revenue Service (IRS) has an established practice, stretching back at least three presidential administrations, of affording “transition relief” to taxpayers who might otherwise struggle to comply with a change in the tax code. In the administration’s view, that practice confirms that the IRS’s general authority, per the Internal Revenue Code, to “prescribe all needful rules and regulations” to run the tax system includes the specific power to delay the effective date of new tax laws.

This is a plausible argument. The persistence of the IRS practice is some evidence that Congress has, by declining to rebuke the agency, acquiesced to its view that it can properly use its enforcement discretion to delay tax statutes. Extensions of transition relief, however, have typically been brief — usually just a few months — and covered taxes of marginal importance that affected few taxpayers. In 2007, for example, the IRS gave tax preparers an extra 6 months to plan for enhanced statutory penalties that would apply if they improperly filled out tax returns. Such examples provide slim support for a sweeping exemption that will relieve thousands of employers from a substantial tax for as long as 2 years.

Bagley closes with an important point–a future President unsympathetic to Obamacare can delay or postpone provisions as means to frustrate the law.

The delays nonetheless set a troubling precedent. They are unlikely to be challenged in court — no one has standing to sue over the employer-mandate delays, and no insurer has thought it worthwhile to challenge the “like it, keep it” fix. But a future administration that is less sympathetic to the ACA could invoke the delays as precedent for declining to enforce other provisions that it dislikes, including provisions that are essential to the proper functioning of the law. The delays could therefore undermine the very statute they were meant to protect — and perhaps imperil the ACA’s effort to extend coverage to tens of millions of people.

More generally, the Obama administration’s claim of enforcement discretion, if accepted, would limit Congress’s ability to specify when and under what circumstances its laws should take effect. That circumscription of legislative authority would mark a major shift of constitutional power away from Congress, which makes the laws, and toward the President, who is supposed to enforce them.

H/T Jon Adler

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Apr 18, 2014

The Supreme Court’s Docket Books

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Ever wish you knew how the Justices voted for cases at conference? Well now you can. Kind of. For certain Justices, during certain terms, if they didn’t burn them. The Supreme Court’s curator office now offers very, very limited access to these treasures. Dan Ernst has a post discussing his experiences with the Docket Books. I love this account of Justice McReynolds:

When U.S. Supreme Justice James C. McReynolds pushed his docket book across his desk to John Knox, the legal secretary felt “almost as if Moses had unexpectedly handed me the Ten Commandments.”  Knox’s shock was understandable: the book was a large, red volume, locked with a clasp, in which McReynolds, like his brethren, recorded votes, and sometimes more, during the conferences in which they considered the week’s cases.  Knox recalled McReynolds saying rather sharply, ‘That book will not be preserved after this term of the Court!  Next June I shall take it downstairs myself and stand before the big furnace in this building and watch it burn up.  A book like this must be destroyed at the end of each term!”

McReynolds may well have destroyed his docket book for the 1936 Term, but, thanks to a list released yesterday by the Office of the Curator of the Supreme Court of the United States (right; click to enlarge), we now know that his docket book for 1934 survives, as do those of many other justices.

Alas, requesting these docket books is a pain. You need to be an a “post-graduate scholars, professors, and historians.” You will not be able to flip through all the books. You can only make requests for specific cases, in writing.

Here is the list of books available.


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Apr 18, 2014

Kennedy, Hobby Lobby and the “Relationship Between Structure and Rights”

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My good friend Adam White has yet another insightful piece in the Weekly Standard, focusing on Justice Kennedy’s questions during Hobby Lobby that highlight the “relationship between structure and rights.” It begins:

We often think of the Constitution as a two-part document: first the original 1787 text, which primarily establishes the government’s structure; and then the amendments, which primarily set forth our rights. But it’s not nearly that simple: Our government’s structure—its federalism and its separation of powers—was devised not just to promote energetic government, but also to secure individual liberty. Or, as Alexander Hamilton stressed in Federalist 84, “the truth is” that the original structural Constitution “is itself, in every rational sense, and to every useful purpose, a bill of rights.”

In recent years, the relationship between structure and rights has been emphasized by Justice Anthony Kennedy. And his comments at oral argument in Sebelius v. Hobby Lobby, the case challenging the Department of Health and Human Services’ “contraception mandate” on religious liberty grounds, suggest that he may be returning to that theme once again.

Because Justice Kennedy occupies the Court’s ideo-logical and tactical center, lawyers and pundits invest great effort in analyzing where he might land in any given case. In 2011 and 2012, as the constitutional challenge to Obamacare’s individual mandate made its way to the Court, all were focused on Justice Kennedy’s well-established habit of invoking the commerce clause, which divides power between the federal and state governments, as a bulwark of liberty.

Later, Adam notes that Ed Whelan and myself (and not many others) picked up on the strong structuralist approach to liberty Kennedy conceived of, in light of his questions about the (seemingly inapplicable) non-delegation doctrine.

In the run-up to the Hobby Lobby case, most discussion focused on questions of whether corporations actually have free-exercise rights, or whether HHS’s regulations truly burden those rights to an unlawful degree. But at oral argument, as legal writers Ed Whelan and Josh Blackman noted, Justice Kennedy seemed keenly interested in questions of constitutional structure. This time, his questions went not to the allocation of power between the federal government and the states, but the allocation of power among Congress and the executive branch.

Congress did not impose the contraception mandate on employers; the administration did. The Affordable Care Act directs large employers only to provide employees the opportunity to enroll in “minimum essential coverage,” pursuant to HHS’s implementation of the act. And so, with Solicitor General Donald Verrilli at the podium, Kennedy stressed the fact that this collision between Obama-care and religious liberty arose not because the statute itself forced HHS’s hand, but because HHS itself had used a vague statute to force the constitutional issue:

Now, what—what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency, to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes?

By mentioning “delegation,” Justice Kennedy seemed to allude to the “nondelegation doctrine,” a longstanding principle of constitutional structure rooted in Article I, Section 1 of the Constitution. That provision vests Congress, and Congress alone, with “all legislative powers” granted to the national government. Thus, the nondelegation doctrine, as developed by the courts, prohibits Congress from “delegating” its legislative power to any agency.

It is not a doctrine that lends itself easily to bright-line standards—as Justice Scalia has observed, “the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.” In practice, as seen in the Court’s precedents, the nondelegation doctrine requires only that Congress specify an “intelligible principle” to guide and limit the agency that applies Congress’s enactment.

In fact, Kennedy’s allusion to “delegation” may have surprised observers, if only because the Court has so rarely invoked the doctrine to strike down statutes. As the Court itself noted in 2001, only twice in the nation’s entire history has the Court used the doctrine to strike down a federal statute—both times in 1935. Or, as Cass Sunstein, a law professor and former Obama White House official, wrote in 2000, “We might say that the conventional doctrine has had one good year, and 211 bad ones (and counting).”

Justice Kennedy views the structural protections of federalism–separating the powers of the state and federal government–not just as a way to protect individual liberty, but as a source of individual liberty. To Kennedy, the states are fonts of freedom, and their decisions to confer liberty, or what he calls “dignity” on people, informs the rights protected by the federal Constitution. This is a largely unappreciated aspect of the Court’s jurisprudence, that has influenced decisions in cases ranging from gay marriage to Obamacare. Recognizing how Justice Kennedy views the dynamic between states, the federal government, and liberty helps to reconcile and explain his increasingly libertarian approach to constitutional law. I am developing these threads for my article, “Substantive Federalism,” which should be ready once Bond is done. 


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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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