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I just uploaded an updated version of Pandora’s Box to SSRN. The article is now up to 160 pages. I added an entire new section on Footnote Four on page 125.  Here is an excerpt:

Footnote Four made two primary contributions to constitutional law.  First, it provided for more exacting scrutiny of laws that touch “discrete and insular minorities.”[1] This provision served to expand liberty, and reinforce the representation of those least able to engage in the political process.[2] Second, the footnote bifurcated constitutional rights.  The first sentence reads: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”[3] Implicit in this restriction on the presumption of constitutionality for legislation touching enumerated rights is a broadening of the presumption of constitutionality for legislation affecting unenumerated rights.

In modern Supreme Court jurisprudence, Footnote Four provides great protection to enumerated rights, as well as to “fundamental rights,” and grants these rights the strong protection of strict scrutiny. Rights not listed in the Bill of Rights are not granted any meaningful protection, and are afforded mere rational basis review.  Footnote Four thus renounces the liberties protected by the Ninth and Fourteenth Amendments as inferior and not deserving of protection.[4] In contrast to the previous component of Footnote Four, this provision restricts liberty in that unenumerated rights receive virtually no protection from the courts.

Nevertheless, a close inspection of the Supreme Court’s use of Footnote Four over the last seven decades suggests that it is the footnote itself that has been bifurcated, not the rights it comprehends. A search of every citation to Footnote Four over the last 72 years reveals that the former provision, regarding minority rights, has been cited by the Supreme Court at least 23 times.  These citations have primarily been used in cases dealing with race-based classifications,[5] sex-based classifications,[6] alienage classifications,[7] age-based classifications,[8] voting rights cases,[9] and discrete and insular groups in need of assistance with the political process.[10]

The second provision, however, bifurcating our rights, has been cited sparingly by the Supreme Court.  While cases from the 1930s through the 1970s routinely recognized the bifurcation of rights,[11] during the last three decades, only Justice Stevens has used Footnote Four to recognize this constitutional distinction.[12] Other modern justices have seldom if ever discussed the bifurcation of rights and broad presumption of legislative constitutionality to the degree Justice Stone did.[13]

The Supreme Court’s growing preference for the first part of Footnote Four and the weakening of the second reflects an inherent tension in Stone’s classic formulation.[14] That is, the Court has narrowly construed the power-granting portion of Footnote Four, while broadly construing the liberty-granting portion.  It is thus Footnote Four itself that has been bifurcated, rather than the rights it discusses.  The provisions that enhance liberty have been dutifully cited, while those restricting liberty have been minimized.

What brings this departure from Footnote Four into focus are the Supreme Court’s recent cases dealing with the recognition of unenumerated rights.[15] The Court has considered these freedoms in the broader sense of “liberty” rather than through the Footnote Four parlance of fundamental or non-fundamental rights.[16] Despite the fact that they were construing unenumerated rights not to be “within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth,”[17] the Court failed to discuss the non-exacting judicial scrutiny unenumerated rights receive.  The Court’s failure to cite Carolene Products in Glucksberg reinforces this hypothesis.  Liberty was to be protected regardless of whether it is “fundamental” or “non-fundamental.” What mattered instead was that the protected liberty be deeply rooted in our nation’s history and traditions.[18] A right deemed non-fundamental under Foonote Four can thus still be a protected liberty under Glucksberg.[19]

In light of the Court’s post-Glucksberg practice in considering unenumerated rights,[20] we contend that the modern Glucksberg framework has repealed sub silentio Footnote Four’s bifurcating principles.  If an unenumerated right is in fact deeply rooted in our nation’s history and traditions, it is protected under Glucksberg, irrespective of Footnote Four considerations.  This is the test the Court adopted in Glucksberg, and the test the Court should adopt in McDonald.

I will flesh this idea out further in Josh Blackman, Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One, 56 Loyola L. Rev.____ (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1329344

The holding of D.C. v. Heller was very simple. D.C. could no longer ban the possession of firearms to be kept in a resident’s home. Heller does not touch the right to carry a firearm outside one’s home. Apparently, Washington Wizard star Gilbert Arenas did not get the memo.

Washington Wizards star Gilbert Arenas says he took unloaded guns from his locker in a “misguided effort to play a joke” on a teammate. Arenas released a written statement Monday after meeting with law enforcement officials. Arenas’ lawyer says the player voluntarily met with prosecutors and detectives and answered every question during a two-hour interview. In his statement, Arenas repeated his assertion that he brought four guns to the Verizon Center to store in his locker in order to get them out of his house and away from his children. He said he mistakenly believed that recent changes in District of Columbia law made it legal for him to store unloaded guns there.

Arenas undoubtedly is referring to Heller here. Amazing how the landmark case, even if misunderstood by this athlete, has made it into the cultural zeitgeist.  But Arenas would be well-served to read JoshBlackman.com. Maybe then he could stay out of trouble.

H/T Sentencing Blog

While I am at sea, JoshBlackman.com does not rest.

I previously blogged about Sandy Levinson, and his argument about any opposition to Obamacare yielding a Constitutional Moment.

At Balkinzation, Mark Tushnet continues to draw parallels between the current Obama Administration and the FDR Administraiton during the Court Packing days.

As Sandy Levinson’s posts (including the most recent) have suggested, when we think about the current administration and the Supreme Court, our thoughts almost inevitably turn to the mid-1930s. It’s easy to push the parallels between the Roosevelt and Obama administrations too hard, but some parallelism does seem to be there: taking office mid-crisis, offering ambitious policy proposals with some prospect of success in Congress, and — importantly here — facing a Supreme Court staffed by justices whose ideological formations (or “judicial philosophies,” if you like) contain important elements that could be used to put into constitutional peril some aspects of the administration’s policy proposals. (Here too we shouldn’t exaggerate. The Court in the mid-1930s endorsed an expansive, Hamiltonian interpretation of the general welfare clause, thereby putting its stamp of constitutional approval on the Roosevelt administration’s Keynesian spending programs. The full story is, as they always are, even more complicated.)

The pivotal actor at the Supreme Court during the constitutional confrontations in the mid-1930s was Justice Owen Roberts. Early in the Roosevelt administration Justice Roberts generally cast his votes with the Court’s judicial conservatives. During the 1936 Term he cast his votes with its liberals. After that he reverted to form, as an important recent paper shows. In 1936 Justice Roberts faced and made a choice. It would be nice if we could preserve the parallelism by saying that in the 2010s (Chief) Justice Roberts will have to face and make some choices. More likely, though less symmetrical, Justice Kennedy will be in the first Justice Roberts’ position.

So here is the Tushnet recipe for a Constitutional Moment:

1. President takes office in the middle of a crisis (Check for FDR and BHO)
2. President proposes ambitious proposals that enjoy modest chance of success in Congress (Check for FDR and BHO)
3. Majority of Supreme Court disagrees with the President and opposes these ambitious proposals (Check for FDR, and ?uncertain for BHO)

This seems to be a pretty weak checklist for determining when the President can challenge SCOTUS, much like FDR did during the new deal. A common argument in favor of Constitutional moments is that the majority of the populace support it (as the people, allegedly, did during the New Deal). As commenter Soren noted in a previous post, this bill isn’t even popular, and most Americans oppose it. So, default to something that is kinda popular in the Congress.

In my opinion, a much more likely, is that the majority of the Supreme Court, even Nino, will likely uphold the acts Obama is proposing. Save for Clarence, the mandate will be upheld.

But the fact that Balkinzation is abuzz over this means the left is seriously, seriously worried. Which, gives me much more solace and hope that we can make change we can believe in. Si se puede.

A while back I predicted that if the Supreme Court strikes down any portion of the Democrat’s individual healthcare mandate, halting the greatest piece of landmark legislation since the Civil Rights Act of 1964, the left would herald a “Constitutional Moment.”

Mark Tushnet fell right into my prediction.

Now Sandy Levinson has joined the fray in his recent post, predicting the aftermath of Randy Barnett v. Catherine Seblius:

It really does boil down to whether the Conservative Majority would dare to strike down the most important domestic social policy legislation in the past forty years, which, like the Civil Rights Act of 1964, would have passed only after vicious filibusters. But let’s assume they do. Then what?
…
So, possibility one is that Barack Obama, the former University of Chicago professor, says “I really regret that the Court came to the decision it did, but we are a country that believes in ‘the rule of law,’ which means that five justices get the final say on what the Constitution means, whatever the rest of us think of their decision. So, until those in the majority have the courtesy to resign or die–and assuming that the Republicans will allow me to place justices more sympathetic to my own constitutional vision on the Court–I will just have to accept the fact that health reform is off the table, given that no other bill is likely to survive the Senate (which, incidentally, is also intellectually indefensible, but that’s as irrelevant as what I think of the Supreme Court’s decision). The Constitution is indeed whatever the Supreme Court says it is, so let’s move on….”

But there are, of course, other possibilities. Perhaps the President would summon up the emotional energy to denounce the decision and to suggest that there is no reason that the country must be in thrall to a group of five “willful men” (since I assume that Ginsburg and Sotomayor will be in dissent against any such decision), anymore, incidentally, than we should continue to be in thrall to an almost terminally dysfunctional Senate. Therefore, he will devote his energies and political skills to a debate about structural fundamentals, beginning with the Supreme Court–should it be packed, should it require a supermajority to invalidate federal legislation, etc.) and moving on to the Senate. Indeed, he will suggest that the use of the veto power on policy (instead of constitutional) grounds is itself an affront to 21st century democracy, so that he would himself be willing to support that diminution in presidential power as part of a grand bargain by which the Senate is transformed into an institution that makes sense for our present world. This is obviously unlikely, but if one is looking for silver linings in a Supreme Court invalidation of the legislation, this would certainly be it for me.

I agree with Levinson, and am certain SCOTUS does not have 5 votes to strike down something this massively popular. But, I am almost intrigued to see the academic and political fallout of this happens. This will be Lochner and Schecter Poultry all over again.

By the way, I am currently blogging from the Royal Caribbean Majesty of the Sea, somewhere outside the port of Nassau, Bahamas. Wireless internet in my state room is $.42/minute, and well worth it.

I’ll be back on Monday.

So I was walking down Lincoln Road in Miami Beach, and who do I see chilling at Starbucks?

Michael Moore! He looked a lot less grungy when he is on vacation. No glasses or Detroit hat.

I asked him if I could take a picture, and he graciously said yes. Then he asked me to shake his hand. I did.

We chatted for a moment, and he was very nice. He frequently visited my childhood home of Staten Island when he was young.

I did not ask him about politics, and I did not ask him to record a JoshCast, even though I had my flip video camera with me. This was the pinnacle of my self restraint. (I couldve handed him a constitution and asked him to locate the right to healthcare, but I realize that wouldve been futile)

I will upload the picture later.

And Saturday-Monday I will be at sea, so blogging will be at a standstill.

Happy New Year everyone!