ACSBlog: The Blog of the American Constitution Society

On April 28, 2008, the American Constitution Society and its Washington, D.C. Lawyers Chapter hosted a discussion of The Summer of 1787: The Men Who Invented the Constitution. The event included a conversation between the author, David O. Stewart, and Paul M. Smith, ACS Board of Directors Chair and partner at Jenner & Block LLP. Stewart and Smith delved into the personalities behind the creation of the nation's founding document. Stewart touched upon his interests in writing a book about the Philadelphia Convention of 1787 and how his research helped form his views of some of the U.S. Constituion's framers. Full video of the event is available here.

David O. Stewart discusses the framers that he believed have been wrongfully ignored by history.

by Doug Kendall, founder and Executive Director of Community Rights Counsel (CRC), a public interest law firm in Washington DC. He is in the process of launching a new organization, Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T, and not run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment? Such a proposition may seem outlandish, but it is what opinions signed last week by Justices Antonin Scalia and Clarence Thomas in Baze v. Rees would seem to sanction.

These opinions haven’t gotten much attention, but they illustrate everything that is wrong about originalism as it is practiced by Justices Scalia and Thomas. Too often, these justices manipulate text, speculate wildly about the intentions of the Framers, and end up far from the letter and spirit of the Constitution. Recognizing the weakness of the conservative arguments about what the Constitution says and compels would help progressives immeasurably in responding to the rise of the conservative legal movement.

In a recent blogpost, Professor Jack Balkin explains "living constitutionalism" as a model where "successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations." He contrasts living constitutionalism with originalism:

Living constitutionalism is primarily a theory about what makes the process that produces changing interpretations of the Constitution legitimate. It is not primarily a theory that offers advice to judges about how to decide particular cases, for the general sort of advice it offers– keep up with the times, and adapt to changing conditions– is probably unnecessary in any event.

Papers from a symposium hosted by ACS last year, including one by Professor Balkin, further explore the issue of "Keeping Faith with the Constitution in Changing Times."

On March 13, 2008, ACS hosted a press briefing on the Supreme Court case, District of Columbia v. Heller, which concerns the constitutionality of the District of Columbia’s ban on the private possession of handguns. Experts from a variety of perspectives discussed whether the Second Amendment protects only militia-related rights or the rights of private individuals, the appropriate standard for reviewing gun control legislation and the potential legal and policy implications of the first Court decision in this area in nearly 70 years. The Supreme Court will hear oral argument on this case tomorrow.

Below are video clips from the panel discussion that featured Carl T. Bogus, Dave Kopel, John Payton and moderator Dahlia Lithwick. Video and a transcript of the event is available here.  ACS also hosted an online debate on the Second Amendment with Mark Tushnet and Adam Winkler, available here. Watch Lisa Brown, Executive Director of ACS, introduce the panel discussion.

This past week, ACSBlog presented a ten-part conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. The following are brief snippets of the conversation, with links to each blog post.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"
Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning. (more)

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance
No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation? (more)

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7, 8, 9.

Part 10. Professor Winkler: Forecasting Heller

I am inclined to agree with you, Mark, that the most likely outcome is that the Court will recognize a private individual right to keep and bear arms unrelated to militia service. While we know little about most of the Justices’s views on the Second Amendment, five Justices are almost certain to favor of the private right view: Justices Thomas, Scalia, Alito, Roberts, and Kennedy.  

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7, 8.

Part 9. Professor Tushnet: Court Predictions

Ah, reading the tea leaves! Here are the possibilities, I think:

1. The Second Amendment protects a right only in connection with membership in the militia, and there being no such connection here, the District’s law is upheld and the Court of Appeals is reversed.
2. The Amendment protects an individual right, regulations of which are constitutional if they are reasonable in the sense developed in the state-court cases you’ve referred to, and the District’s law is reasonable in that sense, and the Court of Appeals is reversed.
3. The same as (2), except that, because the Court of Appeals didn’t address reasonableness, the case is remanded to it and then to the district court for consideration of the reasonableness of the District’s regulation.
4. The same as (2), except that the record is sufficient to determine that the District’s regulation is not reasonable, so the Court of Appeals is affirmed on different grounds.
5. The Amendment protects an individual right, regulations of which are constitutional if they satisfy a heightened standard of review (something like “intermediate scrutiny”), and the case is remanded to the Court of Appeals to apply that standard.
6. The same as (5), except that the Supreme Court applies the standard and finds the regulation unconstitutional.
7. The Amendment protects an individual right, regulations of which are constitutional only if they satisfy strict scrutiny, and the District’s law can’t possibly survive strict scrutiny, so the Court of Appeals is affirmed.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7.

Part 8. Professor Winkler: Second Amendment Symbolism

No doubt the Second Amendment is a prominent battlefield in the culture wars, as Mark’s posts detail. Indeed, the Second Amendment debate must be cultural in nature because it is almost entirely about symbolism – the weapon of choice in these wars. Whatever right the Supreme Court interprets the Second Amendment to provide, the practical effect of that determination is likely to be marginal. With the people of 42 states already enjoying the private individual right to keep and bear arms under their own state constitutions, most Americans will still enjoy the right to bear arms no matter what.

ACS held a press briefing earlier today on D.C. v. Heller, the Second Amendment case scheduled to be argued on Tuesday before the U.S. Supreme Court. Streaming video is the discussion is available here. (A transcript and video excerpts will follow).

The panel featured:

• Carl Bogus, Professor of Law, Roger Williams University School of Law
• Dave Kopel, Research Director, Independence Institute
• John Payton, Director-Counsel and President, NAACP Legal Defense Fund
• Moderator, Dahlia Lithwick, Senior Editor, Slate

ACSBlog is also hosting an online discussion between Professors Mark Tushnet and Adam Winkler on the Second Amendment.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6.

Part 7. Professor Tushnet: Applying the Reasonable Regulation and Solicitor General’s Standards

Casual observation indicates that the Second Amendment is part of our culture wars, but the way it is, I think, is particularly interesting. It turns out that the Second Amendment isn’t really a “red/blue” issue – that is, one that divides Republicans and Democrats – or an urban/suburban/rural issue, although of course there are correlations. Taken as a whole, Americans have a reasonably moderate position on gun policy and the Second Amendment. People believe that the Second Amendment does protect an individual right, and that fairly extensive regulations of that right are desirable. We appear to want existing gun laws enforced, and somewhat more stringent ones enacted. (In terms of our earlier discussion, it seems as if we think that the state courts’ approach to “reasonableness” is about right.)

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5.

Part 6. Professor Winkler: Applying the Reasonable Regulation and Solicitor General’s Standards

Mark, you ask a good question about how the District of Columbia’s gun laws will fare under the reasonable regulation standard used universally in state constitutional law and the heightened scrutiny proposed by the Solicitor General. The answers are not obvious and it would be no surprise if the Supreme Court in District of Columbia v. Heller upheld or invalidated the District’s challenged gun laws under either standard.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4.

Part 5. Professor Tushnet: Originalist Claims About the Second Amendment on Both Sides of the Issue Are Equally Well-Founded

You’re right, Adam: The role originalism plays in debates over the Second Amendment’s meaning poses a mild puzzle. It’s not quite right to say that the originalist claims are “not well founded,” though. Rather, the problem is that the originalist claims on both sides are about equally well-founded. There’s a good chunk of material from the relevant period that supports the gun-rights interpretation, and a good chunk of material from the same period that supports the gun-control interpretation.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3.

Part 4. Professor Winkler: The Reasonableness of Reasonableness Review

Mark, you are surely correct that many gun rights advocates will be dissatisfied if Heller follows the unanimous choice of state courts and adopts the reasonable regulation standard to adjudicate gun safety laws. But this in itself is curious. Where is the outcry in the gun rights community about the state constitutional law on the right to bear arms, which for over a century has used the reasonable regulation standard? Gun rights organizations, which know the state law well, have been satisfied with this doctrine at the state level. In fact, those groups often cite the pervasive recognition of the individual right to bear arms at the state level as evidence of the fundamental nature of the right in American history.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2.

Part 3. Professor Tushnet: How Reasonable is a "Reasonableness" Standard?

Adam, compromise is sometimes a good thing, but compromises have to give something to each side. And it’s not clear that settling on a “reasonableness” standard of review is acceptable to the gun-rights side of the dispute here. Certainly the advocates reject such a standard, but that’s to be expected. What matters is whether people who support gun-rights will see a “reasonableness” standard as acceptable – or, perhaps more accurately, whether they will do so after the advocacy organizations they listen to describe what the Court (we’re assuming) has done.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See part 1.

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance

No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation?

Fortunately for the Court, this question has been asked and answered numerous times in American constitutional law. Forty-two states have constitutional provisions providing for an individual right to bear arms unrelated to militia service and, under these provisions, state courts have ruled on the permissibility of almost every form of gun control. There are hundreds of published state court decisions addressing the constitutionality of restrictions on guns. Interestingly, every single state, without exception and despite wide differences in political ideology and demographics, applies the same standard of review.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"

Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning.

Gun control and gun rights are one of the focal points of our culture wars, which are also an important component of our politics (and I hope to say something about the political implications of whatever the Court does in a later post). Over the past several decades gun-rights proponents have achieved a remarkable success in restructuring the legal debate. An indication: Shortly after Chief Justice Warren Burger resigned in 1986 he gave an interview to Parade Magazine in which he remarked, almost off-handedly, that of course the Second Amendment didn’t protect an individual right to own handguns. Burger was of course a conservative jurist, and he was simply stating the common wisdom of the time. Within a decade the conventional wisdom has shifted. Gun-rights proponents were able, not entirely inaccurately, to call themselves advocates of what they called the “Standard View:” that the Second Amendment did indeed protect an individual right to own handguns and rifles.

In an op-ed on the upcoming Supreme Court gun-control case, Larry Tribe writes that "a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms."

ACS will host a panel discussion on District of Columbia v. Heller on March 13 in Washington, D.C., featuring Carl Bogus, Dave Kopel, John Payton, and moderator Dahlia Lithwick. (RSVP). Starting this Monday, ACSBlog will host an online discussion, led by Mark Tushnet and Adam Winkler, on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns."

Describing the action as a prior restraint on First Amendment free speech rights, media and public interest organizations petitioned San Francisco District Court Judge Jeffrey White to reverse his orders of last week that shut down the website Wikileaks. 

Wikileaks encourages users to upload leaked government and corporate documents, and was disabled after an ex parte proceeding in which a bank complained that a disgruntled former employee had uploaded documents that violated Swiss and Cayman Islands bank secrecy laws. One attorney likened the permanent injunction to "shut[ting] down a newspaper because of controversy over one article."

by Stanley Brand, a former General Counsel to the U.S. House of Representatives (1976-1984) who has litigated major cases involving Congress’ constitutional powers

As Congress begins to investigate allegations concerning the destruction of videotapes of detainee interrogations by the C.I.A., there are questions that arise concerning the ability of Congress to engage in effective oversight of executive branch agencies in the area of national security. The Department of Justice has already pushed back and asked Congress to stay its inquiries into the destruction of the tapes, citing potential interference in the concurrent criminal inquiries initiated by the Department.

This well known Kabuki dance between Congress and the Executive branch over the intersection between oversight and criminal law enforcement has played out hundreds of times since the beginning of the Republic, in our lifetimes most notably in Watergate and Iran-Contra. There is an equally insidious way in which these shared investigative powers collide—and that is in the way in which the Executive seeks to control and intimidate Congressional oversight by reliance on the classification system and the veiled, and sometimes direct, threat of prosecution of members of Congress for disclosing classified information in the course of performing their oversight responsibilities.

One such recent episode illustrates the way in which this threat unduly and illegitimately inhibits the kind of oversight Congress should be doing in this area. In 2003, Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence, felt compelled to write a handwritten secret letter to the Vice President expressing his concerns about the Executive’s surveillance program. See Charles E. Schumer: Under Attack: Congressional Power in the Twenty-First Century. According to media stories at the time, Senator Rockefeller felt constrained to use this low key fully private approach for fear that a more robust formal official channel would have been subjected to charges that he violated strictures on the disclosure of classified information.

Of course, from a constitutional and legal prospective, any such fear was unfounded, as established by the landmark Vietnam era case Gravel v. United States.

In a recent article on CBSnews.com, Jennifer Bradley and Doug Kendall argue that "Liberals need to stop reading the right's talking points and start reading the Constitution's text and history. They'll generally like what they find."

The Reconstruction Amendments, for example, passed between 1865 and 1870, gave our nation what Lincoln promised at Gettysburg: a new birth of freedom. These Amendments ended slavery, expanded the franchise, and broadly protected civil and human rights. Today, the 14th Amendment's Citizenship Clause, which makes everyone born here (including the children of illegal aliens) a citizen, is just as useful in responding to . . .  nativist views . . . as other portions of the Amendment have been in the past in establishing equal rights for women and racial minorities. . . .

It is remarkable how many [conservative] claims about the Constitution have withered once constitutional historians have had a chance to subject them to close scrutiny. To give just one example, the property rights movement has sputtered out in court now that its claims about the original meaning of the Fifth Amendment's Takings Clause have been vitiated by historical research. So-called "originalists" argued that workaday land use and environmental regulations were "takings," requiring government compensation. But, in fact, when the Constitution says "nor shall private property be taken for public use, without just compensation," it means actually taken, that is, expropriated.

In a six part series of articles, Geoffrey R. Stone, professor of law at the University of Chicago Law School, analyzed how Supreme Court Justices decide "hard cases," explored what it means to be a "conservative" or "liberal" judge, and explained his vision of the proper mode of constitutional analysis, which he called "constitutionalism."

1. Supreme Imbalance – "The current Supreme Court is . . . an extremely conservative Court."
2. Of Liberals and Conservatives – What it means to be "'liberal' and 'conservative' in the context of the current Court."
3. Conservative Activism on the Supreme Court – "Justices Rehnquist, Scalia and Thomas have a rather odd view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes -- to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election."
4. Why Judicial Passivism is Wrong – "Judicial passivism – the approach that says courts should uphold all laws unless they are unconstitutional beyond a reasonable doubt . . . abdicates judicial responsibility and subverts a fundamental part of the genius of the American constitutional system."
5. Why Originalism and Conservative Activism Are Wrong – "Originalism . . . not only invites the manipulative and result-oriented use of history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution." "Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities . . . to protect the interests of corporations, the wealthy, the privileged, the majority, and the powerful."
6. Of "Constitutionalism" – "The central mission of this approach to constitutional interpretation is to embrace the responsibility the Framers imposed upon the judiciary to serve as a check against the inherent dangers of democratic majoritarianism and to maintain the vitality of fundamental individual liberties in a constantly changing world."

This is the sixth and final post in a series by Geoffrey R. Stone, professor of law at the University of Chicago Law School, on "Constitutional Vision."

Supreme Imbalance: Of "Constitutionalism"

In previous posts in this "Supreme Imbalance" series, I examined and rejected the three "conservative" approaches to constitutional law – judicial passivism, originalism, and conservative activism. This brings me to the fourth approach I have discussed, which has variously been called "liberalism," or "judicial activism," or "not strict constructionism." In my view, a better and more descriptive term would be "constitutionalism." The central mission of this approach to constitutional interpretation is to embrace the responsibility the Framers imposed upon the judiciary to serve as a check against the inherent dangers of democratic majoritarianism and to maintain the vitality of fundamental individual liberties in a constantly changing world.

This is not an easy task. But nor is self-governance easy. Constitutionalism is not mechanical, it is not mindless, it is not value-free. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, and ever-changing social and cultural conditions. It requires restraint, humility, curiosity, wisdom, and intelligence. Perhaps above all, it requires intellectual honesty, courage, a recognition of the judiciary’s unique strengths and weaknesses, and a deep understanding of our nation’s most fundamental constitutional aspirations.

Let me use the Warren Court as an example. Is the United States a better or worse nation today because of the decisions in Brown v. Board of Education, prohibiting racial segregation in public schools, Engel v. Vitale, prohibiting school prayer, Goldberg v. Kelly, guaranteeing a hearing before the termination of welfare benefits, Reynolds v. Sims, guaranteeing "one person, one vote," Mapp v. Ohio, guaranteeing meaningful protection of the constitutional prohibition of "unreasonable searches and seizures," Gideon v. Wainwright, guaranteeing all individuals the right to counsel in criminal cases, and New York Times v. Sullivan, protecting a robust freedom of the press?