The widely anticipated Second Amendment case pending before the Supreme Court is creating strange bedfellows, reports Jess Bravin in The Wall Street Journal. Bravin writes that, "as gun-rights groups battle each other over how to argue the case, ... some left- and right-leaning legal theorists unite over how to interpret the Constitution."

As noted at ACS's Supreme Court Preview for the Court's current term, some progressive advocates support incorporation of the Second Amendment to the states in McDonald v. Chicago. They see McDonald as an opportunity to revive the Fourteenth Amendment's Privileges or Immunities Clause, which was neutered by the Supreme Court in the 1873 Slaughterhouse Cases. Since then, incorporting rights to bar infringement by state action has been a burden carried by the Fourteenth Amendment's Due Process Clause, which speaks merely to deprivations of rights, as opposed to the broader language of the Privileges or Immunities Clause.

As to the Second Amendment, the Supreme Court left the question of incorporation for another day in the 2008 D.C. v. Heller decision, which -- for the first time -- recognized the right to bear arms as an individual right, rather than a right bestowed upon members of a militia collectively. And that day will be before the Court soon in McDonald.  

Representing the perspective of gun rights advocates in oral argument will be Alan Gura, counsel for the petitioners. Gura, like the Constitutional Accountability Center's Doug Kendall, would have the Court consider incorporating the Second Amendment through the Privileges or Immunities Clause. The National Rifle Association, however, disagrees with this approach, creating a rift among the conservative community as to how the right to bear arms should be incorporated against the states.

In a related case, the Washington State Supreme Court resolved similar issues this week. In State v. Sieyes, the court ruled recognized the Second Amendment as applicable to the states. Following a July decision by the U.S. Court of Appeals for the Ninth Circuit -- which is currently pending en banc review -- the 7-2 majority relied solely on the Due Process Clause in addressing the question of incorporation, leaving it to the U.S. Supreme Court to broach frontiers untouched for over a century of American jurisprudence.

[Image via Jocko B.]

Plenty has been uttered and written about the high court's ruling in Citizens United v. FEC and what it portends for future political campaigns. The parties involved in the case have also garnered media glare. For example, The New York Times profiles, on today's front page, James Bopp Jr. for his involvement in triggering the lawsuit that produced the ruling.

But, University of Chicago Law School Professor Geoffrey R. Stone, and a member of the ACS Board, in an article for The Huffington Post on the case, noted how activist a ruling it was.

Stone wrote: 

One of the interesting things about Citizens United is that the ‘conservative' justices, who claim to exercise judicial restraint, are reaching out in this case to assert a very aggressive interpretation of the First Amendment. In this sense, in the context of many other highly controversial areas of constitutional law - such as affirmative action and gun rights - these justices do not live up to their billing that they merely call ‘balls and strike.' This is a very activist decision that will fundamentally transform American politics in the years to come.

In a weekend article for The Times, Adam Liptak also hits upon the activist bent of the ruling, writing that the decision "showed just how bold" the Roberts court can be. Noting Justice John Paul Stevens's 90-page dissent, Liptak wrote that "the courtly Justice Stevens was accusing his colleagues of judicial activism."

For some of the extensive coverage and analysis of the decision, see ACSblog here. 

[image via Melina Mara - The Washington Post] 

Adam Liptak revisits a recent discussion between Supreme Court Justices Stephen Breyer and Antonin Scalia, which included debate over methods of interpreting the Constitution. During an event at the University of Arizona, Scalia defended "originalism" as the proper way to interpret the Constitution and Breyer countered that the Constitution would likely prove useless in today's society if it were so rigidly interpreted. Liptak maintained in his article that the two "know how to get under each other's skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm." (C-SPAN has video of the debate here.)

But what really irks Scalia and other supporters of his brand of originalism, is, Liptak reports, discussion of Brown v. Board of Education, the high court decision that concluded that school segregation violated the 14th Amendment. Brown, Liptak writes, is "hard to square with Justice Scalia's commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text." 

Liptak continued:

Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited.

As Liptak reported, not too long into their discussion at the University of Arizona, Breyer prodded Scalia to square originalism with the outcome of Brown.

"Where would you be with school desegregation?" Breyer asked Scalia.

But Scalia, Liptak reports, failed to provide a direct answer and instead turned his attention to the earlier high court decision in Plessy v. Ferguson, saying he would have sided with the dissent in that case. The majority in Plessy ruled that legalized segregation did not violate the Constitution.

Breyer maintains, as he did during the Arizona debate, that the words of the Constitution, if they are to have relevance today, cannot be interpreted in the framework of the 18th century. In a 2007 dissent in Parents Involved v. Seattle School District 1, Justice Breyer wrote:

For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality - not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

In their book, Keeping Faith with the Constitution, published by ACS earlier this year, authors Goodwin Liu, Pamela Karlan and Christopher Schroeder write in Chapter Three:

The unanimous Brown opinion authored by Chief Justice Earl Warren provides a rich account of constitutional interpretation and the meaning of equality as a constitutional value. What stands out in the Court's reading of the Fourteenth Amendment is its explicit rejection of originalism in favor of an interpretative approach sensitive to historical change and social context. Through Brown, we come to understand the constitutional equality not as an abstract formula or a narrow idea limited to by history, but as a moral principle that guides our public values and responds to the lived reality of contemporary social practices.

See more from Keeping Faith here.

In light of recent debate over constitutional interpretation, and in particular Justice Antonin Scalia's defense of "originalism," a quick look at some of Keeping Faith with the Constitution is likely helpful.

Earlier this year ACS published Keeping Faith by Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder, which articulates a vision of the Constitution and an approach to interpretation that is faithful to the words of the document and at the same time has enabled it to retain its relevance for each new generation. The authors explain "constitutional fidelity," a principle that "serves not only to preserve the Constitution's meaning over time, but also to maintain its authority and legitimacy. The words and principles of the Constitution endure as our fundamental law because they have been made relevant to the conditions and challenges of each generation through an ongoing process of interpretation."

In chapter 3 of the book, "Equality," the authors conclude that originalism is incompatible, for instance, with the landmark Supreme Court ruling, Brown v. Board of Education, which invalidated segregated public schools. The authors wrote:

Why, then, has the correctness of Brown been the subject of so much handwringing in some legal circles? The short answer is that Brown is a difficult case under interpretive theories that disavow the relevance of contemporary social understandings to the application of the Constitution's general principles. To justify Brown, originalism must posit that the federal and state legislators who ratified the Fourteenth Amendment understood it to abolish segregated schools. Given the widespread practice of school segregation in the states and the paucity of evidence that the enacting Congress believed the Amendment would radically transform public schooling, it is no wonder that the unanimous Court in Brown found the original intent "[a]t best . . . inconclusive." Indeed, for over half a century, a scholarly consensus across the ideological spectrum has recognized that Brown cannot be explained on originalist grounds. Even the most ambitious and labored effort to reconcile Brown with originalism comes up short for reasons lucidly elaborated by one of the nation's leading civil rights historians.

For more Keeping Faith, see here. 

The Will of the People

How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

By Barry Friedman

[Available Here]

Here's a puzzle: Since 1968, when Richard Nixon was elected President vowing to place "strict constructionists" on the Supreme Court, Republican presidents have appointed 13 justices and Democratic presidents have appointed three. The last three chief justices have been Republican appointees. Given these numbers, why is it that the Republicans have been unable to see their positions become constitutional law on issues such as affirmative action, abortion and gay rights?

The answer? Public opinion. In my book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution; I explain how, since at least 1937, the Supreme Court's decisions have, over time, mirrored the views of the American people.

The Will of the People challenges the assumption, held by opponents and defenders of judicial power alike, that the Supreme Court is aloof from ordinary politics and the popular will. Those who oppose judicial power regularly argue we are victims of judicial supremacy, that the unaccountable Court imposes its views on the rest of us. Those who see a role for judicial review in protecting minority and constitutional rights believe the Supreme Court is able to do so in the face of contrary popular opinion. I challenge both of these views.

The claim in the book is not that the Court is accountable to the immediate political preferences of the American people - and assuredly not that it should be! Rather, it is that over time, on the issues most salient, the Court's decisions come into line with the "considered judgment" of the American people. Thus, the meaning of the Constitution is forged in a dialogue between the American people and the Supreme Court.

Nor is the claim that things have always been this way. The last third of The Will of the People is an account of the modern era, in which the Court does indeed seem to follow public opinion on issues such as the death penalty, gender equality, abortion, affirmative action and gay rights. But the first two-thirds explain how we came to this odd position in which, on some issues at least, the Supreme Court is the most representative branch of government. The broad claim of the book is that the Supreme Court was never wholly independent of the popular will, and that judicial review as we know it today was shaped as the public responded to the Court's growing power.

More than anything, The Will of the People is an historical narrative. Running from 1776 to 2005 (when William Rehnquist passed away, and the Roberts Court came into being), the book relates how presidents, states-righters, New Dealers, pro-choicers and pro-lifers, farmers and industrialists, and ordinary Americans, all responded to and challenged judicial authority. The book draws on literally thousands of sources to tell stories both familiar and unfamiliar about the vibrant contest between the popular will and judicial review. Among the familiar are: the early fight between Republicans and Federalists that led to the decision in Marbury v. Madision and the Chase impeachment, the aftermath of the disastrous Dred Scott decision, and the New Deal struggle over Franklin Roosevelt's Court-packing plan. But also covered in The Will of the People's pages are events less well-known or understood: the widespread defiance of the Supreme Court by state governments in the early 1800s, the collapse of Reconstruction, the struggle of the Grangers and the Populists with growing industrial power in the Gilded Age.

The questions the book ends with are ones that should concern us all: how accountable is the Court to public opinion? And do we want this sort of accountable Court? Framed against the Japanese internment and the decision in Korematsu, The Will of the People examines the capacity of the Court to stand up to an aroused public in defense of minority and constitutional rights. The Court has some autonomy, though surely not as much as is portrayed, largely because the American people believe in judicial review and judicial independence. But The Will of the People explains that ultimately the fundamental importance of judicial review is in provoking a national dialogue about the meaning of the Constitution - because when the chips are down, constitutional liberty necessarily depends on the shared constitutional understandings of the American people.

And what about the Supreme Court since 2005? The conclusion of The Will of the People talks about this too. It's common of late to note that the Roberts Court is more conservative than the other political branches, and likely the rest of the country. So, are we entering a stage in which the Court will deviate from the popular will? Perhaps. History suggests this is unlikely, however. But if the Court does indeed go its own way, inevitably it will be yanked into line by a superior force: the will of the people.

You can read more here about what Emily Bazelon in The New York Times, Jack Balkin, Dahlia Lithwick in Slate, Anthony Lewis and others are saying about The Will of the People.

Reviewing Packing the Court, by James MacGregor Burns, Professor Jack Balkin writes in The American Prospect:

Something is rotten in the United States today, and it's the activist Supreme Court. The rantings of Rush Limbaugh? No, this accusation comes from a proud liberal, James MacGregor Burns, a Pulitzer Prize-winning political scientist who is the author of classic works on leadership and American government. In this colorful polemic, Burns marches energetically through the history of the Supreme Court, arguing that the Court has used its authority on the side of the privileged, the propertied, and the powerful and against the interests of ordinary citizens. 

America’s Prophets

How Judicial Activism Makes America Great

By David R. Dow, University Distinguished Professor, University of Houston Law Center

[Available Here]

Jesus gave us the most well known illustration of judicial activism in western history when he delivered the Sermon on the Mount. Surveying all of the Hebrew Bible, Jesus explained that the central animating legal norm is what we know today as the Golden Rule: Treat others the way you want to be treated yourself.

As I argue in America's Prophets, the phrase judicial activism doesn't really mean anything at all, because people use the phrase simply to identify decisions they do not like. For example, most people who refer to Roe v Wade as activist have probably never even read Justice Blackmun's opinion. They are perforce not criticizing the Court's reasoning; they are simply objecting to the result.

But if judicial activism means anything, it means a method of analysis that seeks to identify broad and general principles as a basis for deciding individual cases. Principles and values have an infinite number of levels. At very high and very low levels of generality - in other words, when we either articulate the principle very generally, or very specifically - there is usually widespread agreement about what the principle means or requires. Consider, for example, the concept of privacy. Most Americans would agree, as a general matter, that the Constitution guarantees a right of privacy. At a high level of generality, this principle means that we are entitled to live our lives in a manner of our choosing. We would also likely find widespread agreement if we were to examine highly specific iterations of this principle. For example, if we were to ask whether the government can compel Americans to watch C-SPAN on Tuesday nights rather than American Idol, nearly all people would say no; our right of privacy gives us the right to watch whatever shows we want, or none at all.

But between these two extremes - when we ask a question that is neither very general nor very specific - we find disagreement. For example: Does the fact that you live in whatever state you want also mean that you can drive without a seatbelt? Does the fact you can eat cold pizza for breakfast instead of bran flakes also mean you can use heroin in the privacy of your own home?

Answering these questions - and these are the questions judges must answer - is not a matter simply of logic. It is a matter of drawing lines; and how one chooses to draw lines is affected by one's beliefs, knowledge and experience. Today, virtually all judges agree that the right of privacy means that a black person and a white person can choose to marry one another if they want to, but less than half a century ago, there was vitriolic disagreement about that very issue. The principle - privacy - has not changed between then and now; what has changed is our understanding of how the principle operates and our understanding of the facts that are relevant to the issue.

How one understands legal principles and values very much depends on one's own values, education and - yes - experience. When Senator Mitch McConnell, the Senate's leading Republican, suggested that Justice Sotomayor is unfit to sit on the high court, he explained himself by saying that "she has said her experiences will affect the facts she chooses to see as a judge." But all judges, like all human beings, are products of their experience. If we are to take Senator McConnell at his word, he voted against the first Hispanic nominated to serve on the nation's highest court because then-Judge Sotomayor acknowledged that she is human.

Even Justice Scalia knows that one's experience cannot be untangled from one's ideas. Which facts one sees, and how one sees them, are shaped by one's own history - that is, by one's own experience. Consider as an example the case of Bradwell v. State of Illinois, in which the Supreme Court infamously upheld the constitutionality of a state law that prohibited women from being lawyers. Justice Joseph Bradley wrote the Court's opinion, writing that "nature herself [makes] the female sex . . . unfit[] for many of the occupations of civil life." If God did not want women practicing law, then surely Illinois could uphold that divine injunction.

More than a century later the Court confronted a Virginia law that prohibited women from attending the prestigious Virginia Military Institute (VMI). Justice Ruth Bader Ginsburg, who herself had been denied a clerkship on the Supreme Court because of her gender, wrote the opinion for the Court striking down the Virginia law. Justice Scalia wrote a dissent, in which he had this to say:

Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. [Emphasis added.]

Justice Scalia understood that Justice Bradley saw the world the way he did because he considered it undebatable that nature had designed women for domesticity. And Justice Scalia further understood that we are all like Justice Bradley: inhabitants of a world where our experiences influence which issues we consider debatable and which brook no debate.

Justice Ginsburg had a different experience from Justice Scalia. She viewed the exclusion of women from VMI as part of the same history that Justice Bradley invoked when he concluded that a state could bar a woman from the bar. Justice Scalia focused on a different constellation of facts. He believed the Constitution permitted Virginia to adhere "to such old-fashioned concepts as manly ‘honor'." Whereas Justice Ginsburg (and the Court's majority) saw the perpetuation of bias in the maintenance of this single-sex institution, Justice Scalia saw chivalry and a gentleman's code.

Judges have to choose which facts matter. That choice is affected by their experiences, but it is also affected by the way they understand legal principles - which is itself a function of experience. In the VMI case, Justice Ginsburg was faithful to a value that lies at the core of American democracy. She was faithful to the idea of equality. I argue in America's Prophets that so-called judicial activists are judges who are most faithful to the central values of liberty and equality. I show that, like the prophets of the Hebrew Bible, judicial activists are the judges who are most willing to protect these central values even when it is unpopular to do so.

Justices Ruth Bader Ginsburg and David Souter both adddressed constitutional interpretation recently before law school audiences. While each embraced originalism as one tool in the judicial arsenal, they were also quick to spell out its shortcomings.

"Originalism is fine if you don't expect too much from it," Souter told attendees [video] of his lecture at Harvard Law School, likening the methodology to pulling a rabbit out of a hat.

"[W]hat happens when a helicopter is above your house searching for marijuana ... without actually searching the home?" Ginsburg asked her audience at Northwestern Law School. "The Fourth Amendment has to apply to new circumstances. The Constitution is the oldest in the world, and the expectation was that it would govern us through the ages and through change in time."

Video is available of yesterday's national simulcast on constitutional interpretation. The event, which took place at UC Berkeley School of Law and was hosted by ACS, included discussion of three new books on constitutional interpretation -- Keeping Faith with the Constitution, It is a Constitution We Are Expounding, and The Constitution in 2020. Keeping Faith co-author Stanford law professor Pamela S. Karlan challenged the legitimacy of formulaic constitutional interpretations such as "originalism" and "strict construction" and articulated an approach to understanding and applying the principles of the Constitution that remains faithful to the document's words while enabling its relevance for each new generation of Americans.

Dr. John C. Eastman, dean of the Chapman University School Law, and Judge William A. Fletcher, U.S. Court of Appeals for the Ninth Circuit, also participated in the discussion. The panel was moderated by Stanford law school professor Richard T. Ford, also a contributor to The Constitution in 2020, and included introductory comments from Caroline Fredrickson, ACS executive director. Watch or listen to the discussion here.

Recently I blogged on the interrelationship between international law and the U.S. civil rights movement. While certainly not a contentious topic for most readers of ACSblog, the use of international law in domestic courts to further a domestic civil rights agenda-or any other matter-is anything but resolved. In some instances, international law is necessary to decide a matter, such as in cases brought under the Alien Tort Claims Act. In other instances, international and foreign law sources are referenced by litigants or judges as examples of non-binding authority in support of a particular position. It is primarily this second use of international law which Professor Chimène Keitner focuses on in her article "International and Foreign Law Sources: Siren Song for U.S. Judges?" published in the most recent issue of Advance: The Journal of the ACS Issue Groups.

Professor Keitner provides a clear overview of the judicial debate surrounding the use of international and foreign law sources as non-binding authority in domestic courts and the reaction of legislators to this reality. She then examines three sets of arguments advanced by opponents to the use of these sources, which she terms as Institutionalist Objections, Instrumentalist Objections and Inherentist Objections. It is these arguments and the third set in particular, which I would like to explore here.

Institutionalist Objections essentially assert that U.S. judges are ill-suited to draw on foreign sources or international law because they are not well-versed in either. These objections are perhaps the weakest of the three sets of arguments because judges are not presumed to be experts in every area of the law that may come before them. Instead, judges are required to perform their duties competently and diligently-no matter what the subject matter is or where their expertise lies.

The second set of objections, Instrumentalist Objections, discourages the use of international and foreign law sources for fear that judges will cherry pick those sources that best suit their view. But as Professor Keitner rightly points out, judges typically only choose to cite non-binding authority which supports their position. Again, as with the Institutionalist Objections, these objections exist regardless of the type of non-binding authority that is being considered.

At the heart of the third set of arguments-Inherentist Objections-is the theory of American exceptionalism. These objections assert that because our Constitution is a unique document, so are our values. Thus, non-domestic sources are irrelevant unless explicitly endorsed by Congress. These arguments are the most difficult to combat as they rest on ideology.

Inherentist Objections tend to invoke the language of national sovereignty and a rigid perspective on the nation's position within the international world order. But those who support these objections, also support the role of the United States in affecting change in other countries-many times through accessing international organizations such as the United Nations or the North Atlantic Treaty Organization. These opponents therefore generally only seek out the international community when they like. This inconsistency exposes the United States to criticism from the international community it often endeavors to lead.

Our society's process of betterment should not be confined to our borders. With the world as interconnected as it is, doing so would lend support to the view that the United States is isolationist. Rather, our nation's international standing is strengthened when we demonstrate that we are a full participant in the world order we seek to improve (and in many instances guide) by engaging other nations' views-including through their jurisprudence. To act otherwise would be a form of hubris. As Professor Keitner states in the closing of her article, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."