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Take a look at Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts on SSRN (H/T Legal Theory Blog):

The ongoing debates over the legitimacy of judicial review as well as the evolving school of thought called ‘popular constitutionalism,’ are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power. This is a striking shortcoming in prevailing constitutional theory, given the fact that in the U.S., inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The article breaks down this monolithic concept of ‘the courts’ by shifting the focus to the lower levels of the judicial system. Trial court adjudication is revealed to hold a unique transformative potential for constitutionalism: the possible enhancement of civic participation, public deliberation, and value pluralism in the process of creating constitutional meanings.

The article presents an argument for ‘inferiorizing’ judicial review, i.e., relegating the power of judicial review to the federal district courts, and removing the Supreme Court from this practice. The ‘inferiorizing’ model – a procedurally simple, though conceptually radical, jurisdictional shift – is shown to have a redeeming potential for judicial review as a democratically legitimate means of enforcing constitutional rights; while at the same time providing a robust institutional setting for the exercise of popular constitutionalism. Although it would be very difficult to bring about a full inferiorizing shift in constitutional adjudication, the article exposes the possibilities for democracy-enhancing institutional innovation; these possibilities become available to constitutional actors once the institutional diversity of courts is recognized.

Judge Sotomayor said policy is made in the Courts of Appeals. But what about the District Court?

As I sit in my favorite airport in the world (Reagan National in Washington, D.C.), and enjoy free Wi-Fi courtesy of Google (if they only knew what I wrote about them), I take a moment to wish all of my family, friends, enemies, adversaries, Romans, countrymen, and canine (but not feline) friends a happy and blessed new year.

Also, I’d like to reflect a bit on the past couple months.

I launched this blog in September 2009. In less than 3 months, I have had over 30,000 visitors, written over 550 posts, received over 700 comments, and have raised some serious hell in the legal blogosphere. I just realized it, but in the past 24 hours, I’ve been linked to by Volokh 3 times! http://bit.ly/6MUIQo http://bit.ly/6fDoafhttp://bit.ly/8wC5Xu Win!

In November, I launched FantasySCOTUS.net. Within 1 month,  I gained over 3,000 members. I now have a weekly column on AboveTheLaw discussing predictions of the 10th Justice. FantasySCOTUS has been featured on CNN, NY Times Freakanomics Blog, and most of the top legal blogs. Justice Breyer was even asked about it an interview! While I won’t divulge the membership list, let’s just say several prominent professors are playing. Though, I haven’t found any Judges in the league-yet. Huge changes to FantasySCOTUS.net coming soon, including a forum to discuss cases, a facebook application, cert prediction game, and some other cool features. Stay tuned.

2010 will be a good year for the Harlan Institute for Constitutional Studies. I am working closely with my board, teachers, and constitutional law experts, to develop interactive web 2.0 technology to teach students about the Constitution and the Supreme Court. My aim is to have all of the features available for teachers to evaluate this Summer. Everything will be free for teachers, so I will be seeking non-profit status, and looking for grants. I already have some bites, but let me know if you you have any leads.

So, I have never made predictions before, but I tend to be opinionated. Might as well put my thoughts down, and see how I do.

1. Justice Stevens retires at the end of the term, and President Obama appoints Elena Kagan to replace him. She gets confirmed, easily. I am currently hedging this bet, and writing an article about Kagan as the next Justice. If I’m correct, look for this article to go on SSRN the day BHO announces her as the nominee. And I will expect some media phone calls at that point.
2. The Republicans do well in 2010, but not well enough to obtain a majority in either house. Though, the Dems no longer have 60, and can’t Rahm stuff through as easily.
3. The Democrats pass some watered down climate bill, but not full-blown cap and trade. Like the watered down version of health care that annoyed the left, this will cause BHO to lose even more political capital from his base.
4. Constitutional challenges to the Individual Health Care Mandate fail, and SCOTUS denies Cert (this may take longer than 1 year, but the Justices are not touching this with a 10 foot pole).
5. Chicago’s gun ban in McDonald v. Chicago is struck down 5-4. In a concurring opinion, Justice Thomas proposes Privileges or Immunities as an alternative route to incorporation, and he cites Pandora (wishful thinking). In the dissenting opinions, the liberal Justices discuss Privileges or Immunities, and mention the possibility that it can be used to protect certain rights, but it does not protect the right to keep and bear arms. Either way, Slaughter-House is slaughtered. Statism FTL! Gura FTW!
6. In Citizens United, the Supreme Court reverses the D.C. Circuit 5-4, but leaves most of BCRA untouched.
7. FantasySCOTUS.net for OT2010 will be free for all, and hit 10,000 members, and I attract a very impressive sponsor (stay tuned).
8. Penn State will win 11 games and go to a BCS Bowl. Joe Paterno will return for another year.  Rutgers joins the Big Ten. The New York Yankees repeat as 2010 World Champions. The Boston Red Sox lose to the Yankees in the ALCS in 5 games.
9. Following the Yankee Win, Ilya Somin writes a bitter post on Volokh about subsidies for the New Yankee Stadium, and uses the phrase “Evil Empire” no less than 3 times during the playoffs. BTW, not really a prediction, but the Somin-Schmauch wedding will be the libertarian nerd nirvana event of the Season. And to round out my Ilya predictions, Ilya Somin will beat Ilya Shapiro, and reclaim the title in the Battle of the Ilyas.
10. Someone will hack Google, releasing all of our personal information, and we will all be really, really screwed.

I hope 2010 is a year of freedom, prosperity, and liberty.

Till next year, my friends. Let’s see how I do.

Here is my Instant Analysis of the city of Chicago’s Respondent Brief in McDonald v. Chicago. You can download the brief here. For my thoughts on McDonald and Privileges or Immunities, see my article, co-authored with Ilya Shapiro, titled Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, forthcoming in the Georgetown Journal of Law & Public Policy.

In short, Chicago argues:

I. THE DUE PROCESS CLAUSE DOES NOT INCORPORATE THE SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS.

A Provision Of The Bill Of Rights Applies To The States Under The Due Process Clause If It Is “Implicit In The Concept Of Ordered Liberty.” Regulation Or Prohibition Of Fire- arms, Particularly Handguns, May Reasonably Be Thought To Preserve, Not Intrude On, Ordered Liberty

II. THE COURT SHOULD ADHERE TO PRECEDENT REJECTING INCORPO- RATION UNDER THE PRIVILEGES OR IMMUNITIES CLAUSE

Even If Viewed De Novo, The Histor- ical Record Provides No Basis For Imposing The Second Amendment On The States. Petitioners Fail To Carry Their Bur- den Of Showing That This Court Should Abandon Its Traditional Due Process Approach To Incorporation

I have only given this brief a cursory glance, but a few things jump out at me.

1. First, the Respondents take on the “implicit in the concept of ordered liberty” incorporation test is a new one for me.

Bill of Rights provisions are incorporated into the Due Process Clause only if they are implicit in the concept of ordered liberty . . . Thus, Chicago and Oak Park may reasonably conclude that in their communities, handgun bans or other stringent regulations are the most effective means to reduce fear, violence, injury, and death, thereby enhancing, not detracting from, a system of ordered liberty

Because handguns are so well adapted for the commission of crimes and the infliction of injury and death, stringent handgun regulations, including prohibitions, can be reasonably thought to create the conditions necessary to foster ordered liberty, rather than detracting from it.

Because guns lead to violence, in order to promote liberty, the states must be able to ban guns. To eliminate the states ability to ban gun actually decreases liberty. This is a very curious definition of liberty. Under this interpretation, in order for some people to be free from violence, others need to be forcibly disarmed and denied of their liberty.

2. Second, the Respondents fall into the trap of considering originalism at the wrong time. When considering the right to keep and bear arms as applied to the states, the key year is 1868, and not 1791. Yet, they rehash the debates from Heller about the right during the time of the Revolution. While they discuss the ratification of the 14th amendment, this discussion of the ratification of the 2nd amendment has limited utility.

Second Amendment, that history does not support incorporation. Although a right to fire- arms for personal use was recognized in a variety of sources of law that pre-existed the Constitution, District of Columbia v. Heller, 128 S. Ct. 2783 (2008), makes clear that it was not included in the Bill of Rights for its own sake or to protect it against the political process; rather, it was codified to protect the militia by eliminating the threat that the federal government would take away the arms necessary for militia service. Nothing in the congressional debate over the Amendment suggests any view that a private arms right unconnected to preservation of the militia was thought implicit in the concept of ordered liberty. The scope of the Second Amendment right— weapons in common use—also reflects its purpose of protecting the militia, rather than an individual right related to self-defense, since the Second Amendment protects weapons regardless of whether they are useful for self-defense.

The congressional debate surrounding Madison’s proposal for the Second Amendment tends to confirm that conclusion. If the Second Amendment right were thought essential to protect a non-militia-related personal liberty from governmental intrusion and from the political process, some trace of that belief would likely have surfaced. But nothing in the con- gressional debate over Madison’s proposal for the Second Amendment suggests any view that a private arms right unconnected to preservation of the militia was essential. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, 169-76, 185-91 (Cogan ed. 1997); Jack Rakove, The Second Amend- ment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 127-28 (2000).20

3. Third, in their treatment of Slaughter-House, the Brief omits any reference to the near-universal academic consensus that it was wrongly decided. The best argument they make finds that the Justices on the Slaughter-House court were 20 years removed from the 14th amendment, and were in the best position to understand the original meaning of the P/I clause. This is mildly persuasive, but I would have preferred to see substantive responses to the literature showing how Slaughter-House was correct.

4. Fourth, their reliance on Federalism to justify the ban is questionable. While the states can, and should be, laboratories to experiment, legislatures are still bound by the Constitution as a floor.

The genius of our federal system ordinarily leaves this type of social problem to be worked out by state and local governments, without a nationally imposed solution excluding one choice or the other. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).

A state cannot act as a laboratory by infringing a person’s freedom from unreasonable search and seizure because the person is dangerous. No more should a state be able to deny a person’s right to self-defense because it could be “dangerous.” The Federalism argument just seems rather weak.

5. Fifth, the arguments for stare decisis should have been expected. Yet, the Petitioners do not ask for the Court to displace the modern substantive due process jurisprudence, contrary to the Respondent’s assertions.

The current rule is workable and venera- ble; significant reliance interests are in place; and there is nothing petitioners cite that was not known to and considered by the Court whose Members actually lived through the Civil War and Reconstruc- tion. Adopting petitioners’ view would throw into doubt the rights of aliens and corporations; make the Grand Jury Clause and Seventh Amendment appli- cable to the States; and unsettle the legal status of unenumerated rights, both those that have been recognized and those that have not. Stare decisis concerns are of overwhelming force in this case.

Overruling Slaughter-House and its progeny at this late date would upset strong reliance interests, throw the structure of constitutional law applicable to the States into disarray, and serve no useful purpose.

Furthermore, to call Slaughter-House venerable is tenuous. It is almost universally reviled and disagreed with. But, reinvigorating the privileges or immunities clause need not necessarily upset the apple cart. The Respondents insist that PEtitioners argue that the entire Due Process Jurisprudence should be displaced. Such is not the case. In fact, Gura is very careful to say that the two doctrines can live side by side. The Pandora’s Box Respondent’s fear is not even hinted at by Gura and the Petitioners.

6. Sixth, Respondents also argue that the right to keep and bear arms should mean different things in different places, based on local concerns.

Firearms are designed to injure or kill; conditions of their use and abuse vary widely around the country; and different communities may come to widely varying conclusions about the proper approach to regulation. Although other approaches are possible and may be effective elsewhere, it cannot be concluded that easy and widespread availability of firearms everywhere is necessary to ordered liberty.

I have blogged about this elsewhere, but I reject the notion that the Constitution has a “geography clause.” A right to be free from unreasonable searches and seizures should mean the same thing in Chicago as it does in Cheboygan. The Second Amendment should receive the same treatment.

7. Seventh, I’m not quite sure why, but the brief sees fit to discuss international gun control laws in England, Canada, and Australia.

The legal systems of England, Canada, and Australia each have their roots in the same English law as does this country, and each should be seen as a country in which “ordered liberty” is valued. Yet each of them imposes stringent regulations on firearms that would be impermissible or at least suspect under Second Amendment standards.

That these countries have a similar common law origin is largely irrelevant. Since our separation from the Queen two centuries ago, our nations have diverged in may aspects, especially in gun rights.

In summary, the Constitutional Law in this brief is at a real premium. It is mostly a policy argument about the dangers of legalizing guns, an argument that has been fought, and in my opinion, lost in Heller.

I’ll provide some more analysis later.

In a word, fail.

In keeping with my ongoing attempt to LiveBlog my articles, I just wanted to give you an update on my work on Original Crime. See my previous posts here for background.

In short, I’m trying to figure out when the Feds started to criminalize activities that had no actual bearing on acts crossing state lines, or affecting federal interests.

My research has focused on June 25, 1948, ch. 645, 62 Stat. 683, which served as the codification of Title 18 of the U.S. Code which governs all criminal law. Thanks to Corey C. for helping me track this down. If you are interested, Lexis has it in PDF form.

Although the statute defines “interstate commerce” as “The term “interstate commerce”, as used in this title, includes com- merce between one State, Territory, Possession, or the District of
Columbia and another State, Territory, Possession, or the District of Columbia” it also extends the act to crimes that are not interstate commerce.

In this act, all crimes that focus solely on wholly intrastate activities include the  language that the act must be “Within the special maritime and territorial jurisdiction of the United States.”

Crimes that actually deal with acts crossing state lines (the Mann Act for example), reference interstate commerce, and do not include this provision. Crimes that do not cross state lines, do not reference interstate commerce, but do include this provision.

The Phrase “Special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. 7.

But this definition doesn’t fully explain the statute. It explains interstate crimes (such as kidnapping) and crimes in federal areas (international waters or D.C.). But what about a manslaughter committed solely in one state? And further, crimes that cross state lines (such as kidnapping) do not make reference to the special maritime and territorial jurisdiction.

I have an inkling that “maritime and territorial jurisdiction” refers to interstate commerce, in some backhanded way. But I’m not sure yet. There are lots of cases interpreting this, and I am trying to dig up the legislative history from 1948 to get some idea what’s going on. But this may be very useful.

When did Congress create this statutory sleight of hand? That is the answer to original crime.

Stay tuned.

lol