Can States Say "No Thanks" to ObamaCare's Health Insurance Mandate?

Peter Suderman looks at the legality of state laws that would ban mandatory insurance. Virginia has already passed such a law and more than 30 other states are considering doing the same.

I asked a couple of legal and constitutional scholars what they thought, and the consensus seems to be that though state laws barring mandatory insurance shouldn't be unconstitutional, it's likely that if health reform were passed and they were challenged, the Supreme Court would rule that they are. However, we don't actually know for sure, and there is legal precedent for the Supreme Court to side with a state in a federal/state dispute.

All of them also noted that, regardless of whether or not these laws and amendments eventually stand up to challenge, they're strong political signals of opposition against the insurance mandate—which is arguably the centerpiece of the Democrats' federal health care overhaul (the other key regulations don't work without a mandate).

On the constitutional question, Roger Pilon of the Cato Institute says, "It isn't simply the Supremacy Clause that would make the state law unconstitutional, but rather the constitutionality of the federal statute together with the Supremacy Clause and the inconsistent state law." In other words, the Supremacy Clause alone wouldn't render Virginia's law unconstitutional. Instead, it would be struck down only if and when a federal individual mandate was passed and ruled constitutional.

Is Justice Scalia abandoning originalism?

I wrote, after oral argument in McDonald, that faint-hearted originalist Scalia had reared his head. Ilya Shapiro and Josh Blackmun pick up the issue in the Washington Examiner and argue that if Scalia incorporates under Due Process he might as well hand in his O-card.

Without the Privileges or Immunities Clause, however, the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment! ...

Granted, Scalia has been far from a down-the-line originalist. On more than one occasion, where originalism does not achieve the result he wants, he ignores the history and stands by precedent. (Most recently, Scalia voted to uphold the federal power to trump state regulation of medicinal marijuana, even if the drug never crosses state lines.) To explain these variances, Scalia has called himself a “faint-hearted originalist” or an “originalist, but not a nut.”

But if the opinion Scalia joins in McDonald matches his signals at argument, the justice will no longer be able to call himself an originalist of any kind. He will have to turn in his O-card and leave Clarence Thomas as the only originalist on the Court. (Not coincidentally, Thomas is the only justice on record as favoring a revival of the Privileges or Immunities Clause.)

Polls and Citizens United

Ann Althouse takes a look at the way the ABC/Washington Post poll asked about the case and comes to the conclusion that we shouldn't believe the poll results. I agree.

[T]he people surveyed mostly only knew about the case from the description given by the pollster. Here's the way ABC/Washington Post tried to get its unprepared respondents up to speed:

Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

What percentage of those surveyed do you think understood "spend" to exclude contributing money to the candidate? 20%? I'm saying 20% to be snarky, because that's the proportion of respondents who approved of the decision. My real point is, the survey is utter trash. Worse than utter trash, because it propagated misinformation.

The hyperbole surrounding this case has been astounding. For example, Kieth Olbermann said that Citizens United “might actually have more dire implications than Dred Scott v Sandford.” The coverage in the MSM hasn't been much more nuanced or accurate so it is no wonder the question was posed as it was.

Taking Goodwin Liu at His Word

Writing in Bloomberg shortly after George Bush announced the nomination of John Roberts to the Supreme Court Goodwin Liu, recent Obama nominee to the Ninth Circuit, wrote

There's no doubt Roberts has a brilliant legal mind. Twice Harvard-educated, he has argued 39 cases before the Supreme Court and since 2003 has served on the powerful federal appeals court in Washington, D.C. But a Supreme Court nominee must be evaluated on more than legal intellect.

Because he would sit with life tenure on the nation's highest court, it's fair and essential to ask how he would interpret the Constitution and its basic values. Americans deserve real answers to this question, and it should be the central focus of the Senate confirmation process. ...

His record suggests that he has a vision for American law -- a right-wing vision antagonistic to important rights and protections we currently enjoy -- and that he is not afraid to flex judicial muscles to achieve it.

I may be wrong, and I hope I am. But we won't know unless Roberts tells the Senate and the American people in the weeks ahead his honest and considered beliefs about the Constitution he is sworn to uphold.(emphasis added)

If Justice Sotomayor's confirmation process is any indication, Americans will get a healthy dose of conservative judicial philosophy from Mr. Liu. But I welcome Liu proving me wrong and seeing how Americans respond to the liberal view of justice. My guess is there was a reason that Sotomayor declined her opportunity to make that case to the American people.

Liu also gets out his conservative decoder ring to determine that "`free enterprise,''private ownership of property,' and `limited government.' ... are code words for an ideological agenda hostile to environmental, workplace, and consumer protections." I will be sure to fine tune my liberal decoder ring for Mr. Liu's testimony in front of the Judiciary Committee.

h/t to Ed Whelan who has more on Liu at Bench Memos.

Obama Now Selling Judgeships for Health Care Votes?

Via the Weekly Standard:

Tonight, Barack Obama will host ten House Democrats who voted against the health care bill in November at the White House; he's obviously trying to persuade them to switch their votes to yes. One of the ten is Jim Matheson of Utah. The White House just sent out a press release announcing that today President Obama nominated Matheson's brother Scott M. Matheson, Jr. to the United States Court of Appeals for the Tenth Circuit.

Gregory Craig on NRA's Involvement in Sotomayor Nomination: It Hurt

David Ingram has a post at the Blog of Legal Times on former White House Counsel to Barack Obama Gregory Craig's debriefing on the Sotomayor nomination.

After the U.S. Senate confirmed Justice Sonia Sotomayor in August, a debate began over how much influence the National Rifle Association had over the final tally of 68-31. Liberals said the NRA, which opposed Sotomayor, had failed, while conservatives said they were encouraged the gun-rights group even got involved.

Gregory Craig, who helped direct the confirmation as White House counsel, said Tuesday that the NRA opposition certainly hurt.

“I believe that Justice Sotomayor would have received many, many more votes from Republicans in the Senate if the NRA had not, out of the blue, without any warning, opposed her nomination and, with very little justification whatsoever, made the Senate vote on Sotomayor a pro-gun versus an anti-gun vote,” Craig said in a speech at Georgetown University.

As the contours of the right to bear arms continue to be established in the courts, expect the NRA to remain involved.

My Thoughts on McDonald

Here is the transcript of today's oral argument in McDonald v. Chicago. A couple thoughts:

1. The PorI clause is probably not being revived. Which seems crazy given that, as liberal Yale law professor, Akhil Amar, has said “Virtually no serious modern scholar -- left, right, and center -- thinks that [Slaughterhouse] is a plausible reading of the Amendment.”

2. From a public meaning originalist perspective the oral argument was extremely frustrating. The bulk of the time was spent discussing the Second Amendment and the other amendments in the Bill of Rights. But this is the wrong time period to be looking to in order to determine the original meaning of the Fourteenth Amendment, which was adopted on July 9, 1868. Gura repeatedly tried to direct the Court to contemporaneous legislation such as the Civil Rights Act of 1866 with little to no avail.

3. Fainthearted Originalist Scalia showed up at oral argument. I agree with Doug Kendall when he rights:

This front-page story in yesterday’s Washington Post featured a quotation from Justice Antonin Scalia, taken from a 2006 Yale Law School presentation, in which the Justice calls the 14th Amendment's Privileges or Immunities Clause "flotsam." Flotsam is defined by Webster's Dictionary as "floating debris": trash, in other words. Talk about trashing the Constitution.

Justice Scalia continued along these lines at oral argument today in McDonald v. City of Chicago, a case about whether the Second Amendment limits the gun control laws passed by states. Scalia jumped all over McDonald’s attorney, Alan Gura, who had the temerity to argue that the text and history of the Privileges or Immunities Clause was relevant to the outcome of the case. Scalia accused Gura of “bucking for some place on a law school faculty” by advancing an argument in text and history that was “the darling of the professoriate.”

Why would a Supreme Court Justice who professes to care deeply about the text and history of the Constitution disparage part of that text and refuse even to hear an argument about the history of the Privileges or Immunities Clause? Simple: this text and history doesn’t fit with his longstanding argument against judicial protection of substantive fundamental rights.

4. MAN I WISH THOMAS WOULD ASK QUESTIONS. As the sole Justice to express a prior interest in re-addressing PorI I wish Thomas had spoken up today and tried to steer oral argument a bit. He could have kept Gura's arguments from either getting derailed or ignored all together. Because he didn't PorI wasn't taken seriously.

5. The Court will likely incorporate via due process. I agree with Orin Kerr's assessment of the liberal Justices:

Justice Stevens, often the liberal Justices’ primary strategist, seemed to have a plan to join on the theory of incorporation by Due Process but then to water it down as applied to the states. This revisits an old debate on the incorporation doctrine about whether incorporation applies the Bill of Rights to the states “jot for jot” or only applies the core protections of the right to the states. Given Stevens’ questioning, my guess is that the liberal Justices may try to band together and offer Kennedy a less protective version to apply to the states. I read Justice Kennedy’s questions at the bottom of page 13 and on pages 53–54 to suggest he is pretty skeptical of that approach.

I just don't think the liberal justices will fail to incorporate.

That is all for now.

UPDATE: This post from Clark Neily, writing at Bench Memos, pretty well sums up my frustration with yesterday's oral argument.

In 1861, America began a war to end slavery. Shortly thereafter, we began another battle — Reconstruction — to end the incidents of slavery, culminating in the ratification of the Thirteen, Fourteenth, and Fifteenth Amendments. But from today’s arguments in McDonald v. City of Chicago, you would never know any of that had ever occurred, let alone that the Fourteenth Amendment — including specifically its Privileges or Immunities Clause — was enacted for the specific purpose of putting an end to a Southern tyranny that included the systematic disarmament of newly free blacks and their white supporters in order to keep them in a state of servile terror. ...

Powerful support for that approach comes not just from the congressional debates over the adoption of the Fourteenth Amendment and the extensive coverage those debates received in leading periodicals, but also from the abundant historical evidence about what prompted Congress to propose the Fourteenth Amendment in the first place. Simply put, it was the tyranny of Southern states and their brazen attempt to keep blacks in a state of constructive servitude while terrorizing anyone who presumed to stand in the way. The legislative record contains extensive reports of forced disarmaments and lynchings, often at the hands of militias and other officials acting under color of state law. Reconstruction Republicans were outraged by that conduct, as was the public. As a result, few (if any) rights were mentioned as regularly in connection with the Fourteenth Amendment as the right to keep and bear arms.

That history is stark, undisputed, and, if today’s arguments are any indication, seemingly irrelevant to the Court’s decision whether the Fourteenth Amendment protects the right to keep and bear arms. If so, that’s a tragedy. Correction: the continuation of a tragedy.

Gun Case Tied to Looming High Court Vacancy

By the end of June, the Supreme Court will make headlines at least twice. Once when Justice John Paul Stevens announces his retirement, setting off a frenzy of speculation about possible replacements followed by a hard-fought confirmation battle. And once when the Court decides whether gun rights are protected at the state and local level in McDonald v. Chicago, the landmark Second Amendment case being argued today (CFJ submitted an amicus brief in the case). Perhaps the most interesting story is the important connection between the two events.

As CFJ Executive Director Curt Levey pointed out in an op-ed earlier this term,

“[The gun rights issue] stands out, not only for its legal significance, but also for the role it will play in future High Court confirmation fights. … [I]n several ways, it’s the new abortion. … [T]he Chicago case reminds gun owners that their battlefield has shifted to the courts and hastens the profound change in the politics of judicial confirmations that began this summer … [when] gun owners – from the grassroots to the National Rifle Association – jumped into a Supreme Court confirmation contest for the first time in history.”

Levey elaborates on the abortion analogy:

“Abortion rears its head in virtually every Supreme Court or hotly contested lower court confirmation contest. Gun rights will now do the same, especially as the explosion of Second Amendment litigation guarantees that more and more judicial nominees will have relevant rulings, briefs, articles, and speeches to scrutinize and debate. … [T]he new, gun-owning gorilla in the [hearing] room matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators. And there’s no comparable countervailing force on the other side.”

Having gotten its feet wet last summer, the Second Amendment community will be ready should there be any hint of hostility to gun rights in the record of Obama’s next Supreme Court nominee:

“Next time around, gun owners – from the NRA down to the grassroots – will be more focused on the importance of judicial nominations, more educated about the politics of the confirmation process, more sophisticated about influencing the outcome, quicker to the draw, and more aggressive. Even red and purple state Democratic senators will have to seriously consider voting against judicial nominees who appear less than sympathetic to the Second Amendment.”

Red and purple state Democrats who voted to confirm Sonia Sotomayor are likely hoping that she votes in favor of gun rights in McDonald. Otherwise, they’ll have to explain to the folks back home why they supported a Justice bent on denying those folks’ Second Amendment rights.

In its amicus (friend of the court) brief in McDonald, CFJ and its co-amici urge the Court to apply the Second Amendment to the states via the Fourteenth Amendment’s Privileges or Immunities Clause. While arguing that Privileges or Immunities is the most principled approach in light of the original meaning and text of the Second and Fourteenth Amendments, CFJ’s brief notes that there is abundant Supreme Court precedent supporting incorporation through the Due Process Clause.

Unlike appellant Otis McDonald, CFJ advises against overruling the Supreme Court’s landmark 1873 decision in the Slaughter-House Cases, which restricted the scope of the Privileges or Immunities Clause. Our brief argues that overturning the Slaughter-House precedent is not only unnecessary but also unwise, because

“Privileges or Immunities could become a cornucopia of myriad entitlements, such as a constitutional right to healthcare, higher education, a ‘living wage,’ ‘decent’ housing, and a clean environment. … By limiting the Privileges or Immunities Clause to rights that have a textual basis in the Constitution, … Slaughter-House constrains this scenario of judicial activism run amok.”

Court-Packing 3.0

As a follow-up to Jeffrey Rosen's suggestion that Obama appoint himself to the Supreme Court comes another call for a court-packing scheme. This one courtesy of Stan Isaacs:

So if nine justices is not writ in stone, the embattled President Obama should deal with this hostile conservative/reactionary court by adding three members. ...

That's an easy enough mistake for Obama to avoid. He can easily be a quarterback for change on a court that will give the president continued grief as he tries to implement his agenda.

Obama can give himself a fighting chance by changing the rules of the game, just as they were changed for other presidents in the 1800s. He should forget bipartisanship and work with congressional Democrats to name three new justices to the court to meet the challenges he faces.

The lesson: if you can't win, change the rules of the game, replacing "a government of laws and not of men" with a government of men and not of laws. It is odd that these proposals only come up in Democratic administrations.

McDonald Related Stuff

On the eve of McDonald v. Chicago I thought I would start a running post of the interesting stuff I run across today and tomorrow.

1. There is an interesting discussion at Volokh about Priviliges or Immunities and an upcoming paper by historian Philip Hamburger. Here is the abstract.

What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.

Jim Lindgren introduced the paper. Orin Kerr asked for thoughts from readers. Randy Barnett had an initial comment. Hamburger responed. Barnett added a partial response to Hamburger's response.

Update: Barnett on Chief Justice Taney on the Privileges or Immunities of Citizens of the United States.

2. The Cato Institute is hosting a plicy forum today at 4:00 on McDonald v. Chicago. Event information and link to watch event live here. A description of the event:

In 2008, the Supreme Court decided the landmark case of District of Columbia v. Heller, striking down D.C.'s draconian ban on handguns and finding, at last, that the Second Amendment protects an individual right to keep and bear arms. On March 2, in McDonald v. City of Chicago, the Court will hear oral arguments on whether that right applies to states and localities. The Court is expected to hold that it does: a key purpose of the Fourteenth Amendment, ratified at the height of Reconstruction in 1868, was to allow newly freed slaves and white Unionists to defend themselves against Southern reprisals by protecting their right to keep and bear arms. But will the Court reach that result via the Due Process Clause or the Privileges or Immunities Clause, which was specifically enacted to protect various individual rights, including particularly the right to armed self-defense? The answer is important as a practical matter—because it will help determine the future of gun rights in America—and also as a matter of constitutional law generally, because it could lead to the reinvigoration of a variety of important liberties that courts have long neglected. Please join legal scholars Ilya Shapiro, Timothy Sandefur, and Doug Kendall—each of whom recently published articles on the Privileges or Immunities Clause—for a preview of the arguments before the Court, a discussion of the Fourteenth Amendment's protection of the right to keep and bear arms, and reflections on other important developments that may flow from McDonald.

3. For those looking to catch up before tomorrow's oral argument here is the link to the SCOTUSwiki entry for the case.

4. Reason Supreme Court Preview: Does the Second Amendment Apply to the States? A look back at Reason’s coverage of both the Chicago gun case and its wider implications for the future of constitutional law.

5. Timothy Sandefur writing in the National Law Journal on McDonald, Privileges or Immunities, and economic liberty.

One of the biggest cases the U.S. Supreme Court will decide this year involves the right to bear arms. But in the long run, its decision in McDonald v. Chicago may be far more important to America's entrepreneurs. It all depends on whether the justices decide to revive a constitutional provision it has neglected for more than a century.

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the "privileges or immunities" of citizens, or taking anyone's life, liberty or property without "due process of law," or depriving people of the "equal protection of the laws." But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials. ...

In his dissenting opinion in Slaughter house, Justice Stephen Field wrote that economic freedom "is the fundamental idea upon which our institutions rest." But thanks to the elimination of the privileges or immunities clause, hardworking entrepreneurs like Sweet have almost no constitutional protection against state and local bureaucrats. At a time when America needs a resurgence of its entrepreneurial spirit, a decision to restore the 14th Amendment's protections for economic liberty would be a welcome change.

6. Via SCOTUSblog - No audio release on McDonald

The Supreme Court has refused a request by cable and other broadcast networks to release on Tuesday the audiotape of the Court’s hearing in the Second Amendment case, McDonald, et al., v. Chicago, et al. (08-1521). The refusal was conveyed to the networks by the Court, but no document was released on it. The Court has released promptly the audiotape on only one case during recent months — the Citizens United v. FEC case, heard in September before the current Term opened. Under current policy, the written transcript of Tuesday’s argument will be released later in the day. The argument is scheduled for one hour, starting at 10 a.m.

7. WaPo on McDonald:

The most likely path to recognizing gun ownership as a fundamental right is one that has been heavily criticized by Scalia and other conservative scholars, and it seems inconsistent with his belief that the Constitution should be interpreted in terms of its framers' "original meaning."

The alternative, one embraced by an unlikely coalition of libertarian, liberal and some conservative scholars and activists, would apply the Bill of Rights to the states in a way they say is more grounded in the Constitution. But it is also a route that could open what is invariably described as a Pandora's box of additional rights of citizenship -- health care, for instance, or housing.

Related: Last week WaPo had a profile of Tom Palmer and a look at Alan Gura's upcoming challenge to D.C.'s ban on carrying guns in public.

It was 1982, dusk on a summer night near San Jose, when a band of thugs yelled homophobic slurs at Palmer and a colleague.

"We were what they perceived as a couple of faggots, which was the term they used, walking through their neighborhood," he said. "And it would have been one of those modestly ironic moments if my colleague might have been murdered in a gay bashing, when he was straight."

The threats were vivid and believable: "We're going to kill you. They'll never find your body."

Palmer told his colleague to run. The thugs chased Palmer, who stopped under a streetlight and pulled out his gun.

"I did not say anything witty or clever," he recalls. "In the movies, they say something very clever. I just said, 'If you come closer, I will kill you.' Very blunt. And they stopped."

He is convinced that if he hadn't had a gun he would be dead.

8. Howard Bashman has a mini-roundup at How Appealing.

Taylor v. Luban on Margolis Memo, Bybee, Yoo, and Torture

For those interested in the debate over the recently released Margolis' memo i would point you to an ongoing debate between National Journal's Stuart Taylor and Georgetown Law Professor and Balkinization blogger David Luban. Here is Taylor's initial article. Here is Luban's initial response with a reply from Tayor and additional follow-up from Luban.

Letter on ObamaCare Legal Issues

More than 25 health care experts, attorneys, scholars and conservative leaders joined together today in a letter highlighting the need for members of Congress and the President to address constitutional and other legal concerns about health care reform. In particular, the letter (included below) asks the Republican leadership in the House and Senate to raise the profile of these legal issues in connection with tomorrow’s health care summit.


February 24, 2010

The Honorable Mitch McConnell
The Honorable Jon Kyl

United States Senate
Washington, DC 20510

The Honorable John Boehner
The Honorable Eric Cantor

United States House of Representatives
Washington, DC 20515

Re: Legal issues in health care reform

Dear Senators McConnell and Kyl and Representatives Boehner and Cantor,

We and the organizations we represent are united by our concerns about the constitutionality and legal consequences of the health care bills passed by the Senate and House and supported by President Obama. We respectfully ask that you and your colleagues raise these important concerns with the President and members of Congress who support the bills during the February 25 health care summit and during the national debate over health care reform.

Our concerns about the constitutionality of the bills center on the individual health insurance mandate. Attorneys among us have analyzed the issue and concluded that requiring Americans to buy health insurance does not fall within the powers granted to Congress by the Constitution.

Moreover, our analysis indicates that if the House or Senate bill were to be enacted and upheld by the courts, the result would be a trial lawyer-driven explosion of health care and insurance litigation. In other words, not only do these bills fail to constrain trial lawyers’ drain on the health care system, they actually make the problem substantially worse.

We have attached two documents which detail the basis for our concerns. One is a memo by the Conservative Action Project headed by former Attorney General Edwin Meese. The other is a Wall Street Journal op-ed. They are also available at the links below. We encourage you to share these materials with other members of Congress and the President.

In sum, we are convinced that the constitutionality and legal consequences of health care reform are far too important to be side issues at the health care summit and in the larger health care debate. Members of Congress and the President owe it to the American people to address these concerns directly. Therefore, we urge you and your colleagues to bring the legal issues to the forefront this week and beyond, and we stand ready to provide any help you need.

Documents:
http://tinyurl.com/CAP-healthcare-memo
http://tinyurl.com/WSJ-healthcare-oped

Respectfully,

Jane Orient, M.D.
Executive Director
Association of American Physician and Surgeons

Grace-Marie Turner
Founder & President
Galen Institute (for identification purposes only)
former member, Medicaid Commission
former member, National Advisory Council of Healthcare Research & Quality

Dan Greenberg
Arkansas State Representative (District 31)
Adjunct Professor of Law
University of Arkansas at Little Rock, Bowen School of Law

Abigail Thernstrom
Vice-Chair
U.S. Commission on Civil Rights

Dr. John C. Eastman
Professor of Law and Former Dean
Chapman University School of Law
(candidate for California Attorney General)

David Rivkin
Attorney
Washington, DC
former official, Reagan and George H. W. Bush Administrations

Hans von Spakovsky
former Commissioner
Federal Election Commission.

Stephan Thernstrom
Winthrop Research Professor of History
Harvard University

Gary Bauer
President
American Values

Dr. Richard Land
President
Southern Baptist Ethics & Religious Liberty Commission

Alfred S. Regnery
Publisher
The American Spectator

Richard Viguerie
Chairman
ConservativeHQ.com

Colin A. Hanna
President
Let Freedom Ring

Curt Levey
Executive Director
Committee for Justice

Mario H. Lopez
President
Hispanic Leadership Fund

Jim Martin
Chairman
60 Plus Association

Penny Nance
CEO
Concerned Women for America

Lewis Uhler
President
National Tax Limitation Committee

Mandi Campbell
Legal Director
Liberty Center for Law and Policy

Susan Carleson
Chairman & CEO
American Civil Rights Union

Kay Daly
President
Coalition for a Fair Judiciary

Kelly Shackelford
President & Chief Counsel
Liberty Legal Institute

Mathew Staver
Founder & Chairman
Liberty Counsel

Micah Clark
Executive Director
American Family Association of Indiana

Richard W. C. Falknor
Chairman
Maryland Center-Right Coalition

Dr. William Greene
President
RightMarch.com

C. Preston Noell III
President
Tradition, Family, Property, Inc.

Jack Wheeler
President
Freedom Research Foundation

McDonald, Privileges or Immunities, and Pandora's Box

I may have mentioned this article previously but I finally got around to reading the whole thing and I highly recommend Ilya Shapiro and Josh Blackman's 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. Whether you agree with its conclusions it is a must read leading up to oral arguments in McDonald v. City of Chicago. The abstract:

The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.

This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.

In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.

In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.

In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.

What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property - independent of its enumeration in the Second Amendment - was considered a privilege or immunity of citizenship in 1868.

Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities Clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only by correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.

The Progressive Fallacy on Free Speech

As a follow up to the Timothy Sandefur piece linked below comes an excellent column from Will Wilkinson on the motivation of the left and why they have Citizen United all wrong. An excerpt:

But the granddaddy of all progressive errors – the one that breeds all others -- is the assumption that greater government power can rectify the problem of unequal citizen power. Government can only act as a “countervailing force” in this regard if it is not acting already to serve corporate and special interests. But it is. That is why new government powers merely augment, rather than offset, the already disproportionate power of entrenched interests.

The biggest, baddest corporations, unions, and special interests already use government to exert power on their behalf. With the heft of the state behind them, they can swing sweetheart deals (witness earmarks) and they can foil upstart competitors (through regulation) who might otherwise eat their lunch. A government unhindered by limits retains the discretion to pick winners. A government that can make or break great fortunes invites a bruising and wasteful competition for its favor. It cannot be surprising, then, that those with the most -- thus most to lose -- assiduously seek favor from the state. It should not be surprising that those with powerful Washington connections are handsomely compensated by big special interests. And it should not be surprising when the well-connected exploit their relationships with people in power in the same way they maximize any other valuable asset.

Progressives are right to worry about corporatist government. But they locate the problem in the wrong place, which is why their proposed solutions repeatedly miss the target. It would be a great tragedy for democracy if a commonsense reading of the First Amendment’s protection of free speech truly undermined democratic freedom. Thankfully, it does not. Ultimately, the Citizen’s United case will change very little about how our political system works. Election-season speech was never the chief means by which special interests did their dirty work. But in some modest measure, the decision actually sets the right example. By limiting government power, it protects our freedom.

Court-Packing 2.0

Liberal law professor Jeffrey Rosen, who is downright giddy over Obama's attack on the Supreme COurt during his State of the Union, takes to the pages of the Washington Post to declare that Obama should appoint... himself to replace John Paul Stevens. Yes, really:

Think about it. Though Obama has struggled to find his footing in the White House, his education, temperament and experience make him ideally suited to lead the liberal wing of the court, especially at a time when a narrow conservative majority seems increasingly intent on challenging progressive economic reforms for the first time since the New Deal. Obama is clearly eager to take on the four truly conservative justices -- Samuel Alito, John Roberts, Antonin Scalia and Clarence Thomas -- as his State of the Union smackdown suggests. But as president, he's constrained by that pesky separation of powers. So what better way to engage the fight than to join the bench?

It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won't run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy. And although, as president, Obama has seemed haunted by the example of his political hero, Abraham Lincoln, on the Supreme Court, he could take up the mantle of the greatest liberal justice of the 20th century, Louis Brandeis, another community organizer with a background in politics. In the end, Obama's legacy on the court might surpass his legacy in the White House.

Getting to watch Chris Matthews go through another round of leg tingles almost makes me hope Obama tries this.

Rule of Law Key to Mt. Vernon Statement

Committee for Justice Executive Director Curt Levey joined dozens of the nation’s conservative and libertarian leaders on George Washington’s estate yesterday to sign the historic Mount Vernon Statement in a ceremony led by former U.S. Attorney General Edwin Meese. The statement reaffirms the leaders’ commitment, set forth 50 years ago in the 1960 Sharon Statement, to the Founding Fathers’ “enduring framework of limited government based on the rule of law”. That framework, which “ensures that government performs its proper job effectively,” is responsible for making the United States “a prosperous, just nation unlike any other in the world,” explains yesterday’s statement.

In comments today, Mr. Levey emphasized that “the Mount Vernon Statement encapsulates CFJ’s core mission of promoting the rule of law, including the Constitution’s limits on the power of the federal government. Moreover, the statement’s reaffirmation of ‘the central place of individual liberty in American politics and life’ stands in sharp and welcome contrast to the collectivism and extra-constitutional notion of group rights that is so fashionable among the intellectual elite.” (emphasis added)

“In recognizing that the ‘federal government today ignores the limits of the Constitution, which is increasingly dismissed as obsolete and irrelevant,’ the Mount Vernon Statement captures the problem of judicial activism borne of a belief in a malleable Constitution,” said Levey. “The evolution of the Constitution through the democratic process of constitutional amendment has been all but forgotten by an elite that would rather impose its values and will on the majority through creative constitutional interpretation in the courts,” Levey explained. “Constitutional interpretation that is based on the intellectual fashions of the day, rather than being grounded in the text and intent of the document and its amendments, is exactly the sort of ‘dangerous deception’ masquerading as ‘change’ that the Mount Vernon Statement warns of.”

“The Mount Vernon Statement emphasizes that ‘[t]he change we urgently need .. is not movement away from but toward our founding principles,’ and that includes a return to the rule of law rather than today’s rule of judges,” Levey added.

Americans who share our belief in limited government based on the rule of law are encouraged to sign the Mount Vernon Statement online at the link below.

Why the Left Favors Censoring Speech to "Save Democracy"

NPR's This American Life had a discussion on the rights of corporations that was inspired by the Supreme Court's ruling in Citizen United. Timothy Sandefur, of the Pacific Legal Foundation, was quoted and has followed up his comments with an interesting blog post that I think gets to some of the underlying issues and why the Left is so outraged.

After my comments, a law professor is quoted saying that "conservatives" have "turned the First Amendment into democracy's foe." I think this is a very revealing comment, for two reasons.

First, the view that the government should censor the speech of people who do business in the form of corporations is rooted in the idea that free speech is an instrumental good that serves "democracy." That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy. In their view, speech is protected because individuals have the right to express themselves--not because speech has a relationship to democracy. Obviously they understood that free expression was good for democratic decision-making, but their primary concern was protecting the rights of individuals, not with preserving some vague conception of "democratic society."

That vagueness is key to the second point: the notion that it somehow distorts democracy for people who do business in the corporate form to express themselves is rooted in a vaguely idealized notion of what "democracy" means. Modern day Progressives don't think democracy just means the right to vote, or the will of the majority, or what have you; they think it means that the government "serves the people" in some broad sense, and that corporations somehow stand in the way of this. You might think a "democracy" would be a society in which everyone has an equal right to participate, and nobody gets censored, but these Progressives are promoting censorship in the service of a "democracy" in which owners of corporations are not allowed to express themselves or defend their political interests.

Stopping the "Corporate Takeover" of Politics, One Corporate-Funded Gala at a Time

From the NYT:

When the Congressional Black Caucus wanted to pay off the mortgage on its foundation’s stately 1930s redbrick headquarters on Embassy Row, it turned to a familiar roster of friends: corporate backers like Wal-Mart, AT&T, General Motors, Coca-Cola and Altria, the nation’s largest tobacco company. ...

Most political groups in Washington would have been barred by law from accepting that kind of direct aid from corporations. But by taking advantage of political finance laws, the caucus has built a fund-raising juggernaut unlike anything else in town. ...

From 2004 to 2008, the Congressional Black Caucus’s political and charitable wings took in at least $55 million in corporate and union contributions, according to an analysis by The New York Times, an impressive amount even by the standards of a Washington awash in cash. Only $1 million of that went to the caucus’s political action committee; the rest poured into the largely unregulated nonprofit network.

But don't worry. It's all for the kids... oh, wait.

The caucus says its nonprofit groups are intended to help disadvantaged African-Americans by providing scholarships and internships to students, researching policy and holding seminars on topics like healthy living.

But the bulk of the money has been spent on elaborate conventions that have become a high point of the Washington social season, as well as the headquarters building, golf outings by members of Congress and an annual visit to a Mississippi casino resort.

In 2008, the Congressional Black Caucus Foundation spent more on the caterer for its signature legislative dinner and conference — nearly $700,000 for an event one organizer called “Hollywood on the Potomac” — than it gave out in scholarships, federal tax records show.

The story is long but worth the read. Keep it in mind next time you see Democrats screeching about corporate influence in politics.

Link and headline from Reason's Hit & Run blog.

First Amendment Challenges to Obamacare

As a follow up to Curt's WSJ Op-Ed linked below I wanted to point out this Cato Institute study authored by George Avery of Purdue University titled “Scientific Misconduct: The Manipulation of Evidence for Political Advocacy in Health Care and Climate Policy.” In addition to the litany of litigation Curt outlined we may be able to add a barrage of First Amendment challenges as well. An excerpt:

That bill allows the withholding of funding to an institution where a researcher publishes findings not "within the bounds of and entirely consistent with the evidence," a vague authorization that creates a tremendous tool that can be used to ensure self-censorship and conformity with bureaucratic preferences. As AcademyHealth notes, "Such language to restrict scientific freedom is unprecedented and likely unconstitutional."

h/t Michael F. Cannon at Cato@Liberty

ObamaCare is Trial Lawyers’ Dream

In an op-ed in today’s Wall Street Journal, CFJ Executive Director Curt Levey discusses an aspect of health care reform that deserves more attention, namely the flood of litigation that is likely to occur if Obamacare is enacted and survives challenges to its constitutionality.

“That means more money wasted on attorney fees, physicians focused on legal rather than medical considerations, and growing delays in our already-overburdened courts,” warns Mr. Levey. Moreover, he concludes, the “litigation will put Americans’ health in the hands of federal judges who will effectively write health care policy as they divine the meaning of thousands of pages of statutory language and accompanying regulations.” To those who point to socialized medicine in Europe as evidence that ObamaCare won’t be a disaster, Levey responds that “The uniquely American combination of bureaucrats, trial lawyers, and judges running our health care system will prove more costly and deadly than anyone can imagine.”