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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Saturday, July 24, 2010 ::
    Josh Blackman blogs up and comments on Prof. Randy Barnett's interview in the WSJ, on Raich, and the health-care individual mandate.

    :: David M. Wagner 8:01 PM [+] ::
    :: Tuesday, July 20, 2010 ::
    By way of a break from McDonald v. Chicago...

    Jaffa, Bradford, Codevilla, and R. Stacy "The Other" McCain

    My old Washington Times friend Robert Stacy McCain, now a major blogger, has a post at the The American Spectator's blog crediting me (accurately, I guess!) as instigator of a comment-fueled reminiscence about:

    * Prof. Angelo Codevilla
    * Prof. Harry Jaffa
    * Prof. Leo Strauss, and "Straussianism"
    * Jaffa's quarrel with Mel Bradford (which, let us remember, did not prevent Jaffa from strongly supporting Bradford in his bitterly contested and ultimately unsuccessful bid for the chairmanship of the NEH under Pres. Reagan. This was the only case I can think of where neocons clashed with paleocons and did not, i.m.o., have the better of the argument.)
    * Jaffa's strong opposition to homosexual conduct (on which Bradford would presumably have agreed), and
    * how certain other conservatives today (is one allowed to say "soi-disant" here?), playing off of Jaffa's philosophical commitment to "equality" (with which Bradford did not agree), argue that support for same-sex marriage is required by the Kirk-Kendall school of conservatism.

    What kicked all this off was a widely acclaimed, emailed, and reTweeted article by Prof. Codevilla in the July-August American Spectator called "America's Ruling Class -- and the Perils of Revolution." When Angelo writes about classes and revolution, you may be sure he has books 7 through 9 of The Republic in mind.

    Let me just add that it's great to be back in touch with Stacy, and that Angelo Codevilla (who probably doesn't remember me, but whom I've met at a few conferences), is a finalist for "smartest person I've ever met," up there with William Marshner, Richard Vigilante, Robert George and Russell Hittinger. (I've left law profs and legal colleagues off this list, to avoid invidious comparisons.)

    :: David M. Wagner 3:22 PM [+] ::
    :: Tuesday, July 13, 2010 ::
    "Unable to identify the Clause's full scope"

    In describing the Court's 14th Am Due Process jurisprudence -- and here it's the Court speaking, not just the plurality -- the Court notes:
    The Court used different formulations in describing the boundaries of due process. For example, in Twining, the Court referred to “immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.” 211 U. S., at 102 (internal quotation marks omitted). In Snyder v. Massachusetts, 291 U. S. 97, 105 (1934), the Court spoke of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And in Palko, the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.” 302 U. S., at 325. [Slip op. at 12]
    O-o-o-o-kay, and those formulations (which those of us who have to traffic in substantive due process have in "macros" on our keypads) are more precise than what Petitioners and commentators offered in regard to the Privileges or Immunities Clause -- how?

    Yes, we get it -- Petitioners and pro-P/I scholars have not identified the P/I Clause's "full scope." And so I have to spend another year telling students that in identifying the parameters of 14th Am Due Process, they have to work with crystal-clear, line-drawing formulations like "immutable principles of justice," "the very idea of free government," "so rooted...as to be ranked as fundamental," "very essence of a scheme of ordered liberty," and "fair and enlightened." Guys, I'm dyin' out here!

    The only eye-of-newt in this cauldron that has any links to anything tangible is the portion of the Snyder formulation that alludes to "the traditions and conscience of our people." And -- of course, and not that I'm bitter or anything -- this is the only one of the above-mentioned formulations that the Court has specifically rejected as a tool of 14th Am Due Process analysis. Justice Scalia offered it, along with a methodology for deploying it, in his plurality opinion in Michael H. v. Gerald D., esp. footnote 6. Most of the Court declined to accept it, and majorities -- while reformulating it with no sign of understanding it* -- rejected it in Planned Parenthood v. Casey and in Lawrence v. Texas.

    (*"The Court destroys the proposition, evidently meant to represent my position, that 'liberty' includes 'only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified,' ante, at 5 (citing Michael H. v. Gerald D., 491 U.S. 110, 127, n. 6 (1989) (opinion of Scalia, J.). That is not, however, what Michael H. says; it merely observes that, in defining 'liberty,' we may not disregard a specific, 'relevant tradition protecting, or denying protection to, the asserted right,' 491 U. S., at 127, n. 6. But the Court does not wish to be fettered by any such limitations on its preferences....." Planned Parenthood v. Casey, Scalia, J., dissenting)

    So the one formulation that isn't a sky-hook isn't realistically on the table; only the sky-hooks are, and we are asked to accept them, in place of P/I, because P/I would be vague, and we'd be "unable to identify it's full scope." (And this time even Justice Scalia prefers the guarenteed vagueness of Due Process to the presumed vagueness of P/I -- though one assumes he, at least, would not exclude the hard-edged, Michael H. version of tradition-based reasoning from the Due Process repertory).

    I'll. Retire. To. Bedlam.

    :: David M. Wagner 10:33 PM [+] ::
    Back to McDonald v. Chicago

    The crucial passage in the plurality section of the opinion (the critical holding -- that the 2nd Amendment applies to the states through the 14th and disallows a ban on personal possession of handguns -- is of course a holding of the Court) dealing with the Privileges or Immunities Clause is, I think, this:
    [P]etitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

    We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.
    Now, as an explanation for those who belong to the admittedly-existing consensus that Slaughterhouse is a pile of [RRRRRRING! Hello? Yes, Dean! Yes, sir? Oh yes, I got your memo about language on the blog. Yes, I'll be more careful. Yessir. Thank you. Yes. You too, sir. Bye.] a pile of nonsense, this clearly will not do. [Paraphrasing:] "Petitioners and commentators can't specify the P/I clause's full scope, so we can't -- on the precise facts of this case that don't require us to determine its full scope -- correct what we ourselves virtually acknowledge to be grave error on our part." Fail.

    But at the same time, I stand by my earlier view that this is not a slamming of the door on the 14th Am P/I Clause. Let's say Slaughterhouse is a dude, OK, and the Court's a chick, and Slaughterhouse is "in a relationship" with the Court, which it kind of is, in the sense that it's "good law" in the technical sense. Well, wouldn't you advise it to start hedging its bets? It may that only Justice Thomas wants to throw it over, but I'm not sensing any passion from the plurality -- just a disinclination to go through a messy breakup right now.

    The option to go through Due Process rather than P/I renders the post-Slaughterhouse 2nd Am cases that were argued and decided under P/I, against applying the 2nd Am to the states, are not technically overruled but are rendered perfectly irrelevant, and are thus virtually overruled.

    Funny thing about overruling. Sometimes the Court declines to overrule a precedent explicitly, yet adopts a holding that puts the precedent(s) onto the museum-shelf. Think Brown => Plessy. And McDonald => Cruikshank, Presser, and Miller. And sometimes the Court trumpets to the heavens that it's overruling a precedent, yet fails to adopt a holding that is plainly irreconcilable with anything that was plainly held in the precedent. As examples of this, I'm thinking about (though the matter is of course debatable) Barnette => Gobitis, and Lawrence => Bowers.

    Long story short, I'd say Cruikshank, Presser, and Miller are now at least as overruled as Plessy.

    :: David M. Wagner 8:17 PM [+] ::
    :: Sunday, July 11, 2010 ::
    Souter's après-Court

    A colleague sent me this link about the retired Justice's new half-mill spread in New Hampshire. Guess you can really sock away the doubloons as an Associate Justice when you don't have nine kids to put through college.

    Anyway, this got me thinking about what else he might do. I could have stopped, but I didn't, and soon the idea emerged of a blue-collar restaurant chain -- SOOters!

    Top ten marketing concepts for SOOters Restaurants:

    10. Specializing in that old Yankee-WASP flavor -- it's left-hand-fork-lickin' good!

    9. Nude dancing protected but not practiced due to secondary effects

    8. Available: list of substance used in due process

    7. Menu changes to reflect changing society

    6. At Harvard Law School store: "Thanks, I'm here all week...."

    5. All Mass. & Conn. stores have wedding facilities

    4. Don't worry, we'll get the rust off the sullivan

    3. Specialty drink: Hello Vodka It's Me Dave

    2. Insist on state sovereign immunity? Then Hans must wash employees

    And the #1 SOOters marketing concept:

    1. Mock-Texas menu: "Eat THIS, Edith Jones!"

    :: David M. Wagner 5:29 PM [+] ::
    :: Sunday, July 04, 2010 ::
    A declaration on the Declaration

    The United States is -- is, is, is: yes I know "states" is plural, but what part of "united" don't you understand? -- the only country I know of that dates its independence from the day it announced it, rather than from the day it won it on the battlefield (for us that would be October 19, 1781), or the day its independence was definitively agreed upon with the mother country (May 12, 1784 -- day of the exchange of the ratification instruments of Treaty of Paris; btw I'm supposed to know something about international law, but I confess I've never seen a "ratification instrument": is it like a vuvuzela?), or the day its constitution went into effect (sometime in mid-1788, since Virginia and New York put us over the 9 threshold at nearly the same time -- Prof. Gary Lawson has written on "when the Constititution was ratified -- and why it matters").

    This focus on sheer declaration, as opposed to other perfectly reasonable yardsticks for independence, is really kind of kick-tush, if you think about it. Very American.

    It's all the more remarkable because the Declaration didn't (don't look now, but it didn't) create the national entity called the United States of America that I insisted on at the beginning of this post. That came later, as the fruit of bitter experience in the War of Independence and under the Articles of Confederation. What the Declaration brought into existence -- and it could not possibly have been clearer about this -- was thirteen "free and independent states." They might just as well have been designated "sovereign nations in alliance," to quote Margaret Thatcher's formula for what the nations of the European Union ought to be, rather than the federal blob they are.

    This fact has consequences for another bit of misguided piety that I hear quite often from constitutionalists and philosophers who are otherwise, i.m.o., among the wisest: viz., that the Declaration is our "charter" and the Constitution is our set of "by-laws."

    How one can profess to admire the U.S. Constitution and at the same time relegate it to the piddling status of "by-laws" is quite beyond me. But even passing over that difficulty, the "charter"/"by-laws" theory cannot possibly have merit. A polity that sets up one document as its charter and another as its by-laws has to show some intention of doing so, or at least awareness that it is doing so. As we have seen, the Declaration did not even set up "the United States of America" as a single entity; from its point of view, no "by-laws" were needed, beyond what each state would legislate in its complete sovereignty.

    That objection could be overcome if the record of the debates on the drafting and ratification of the Constitution were replete with evidence that the Framers unfurled their copies of the Declaration and said "OK now, what by-laws do we need to make this work, better than the ones we have?" Afaik, the record is devoid of the least intimation of any such conception by the Framers that this is what they were doing.

    And who can blame them? The Declaration is not a charter for government, even at the most general level. Its famous second sentence states ideals whose depth can never be plumbed (and whose meaning can never be agreed on -- another ground for caution). But -- well, maybe Justice Kennedy is right and not all of us can read the Constitution at one sitting like he can. but all of us should be able to read the Declaration, and if you thought the specifications that follow the "candid world" clause give substance to the theory of rights that you find or think you find in Sentence Two, I hope you will soon learn better.

    My point is not that the numerous "He has" clauses are without meaning -- only that their meaning is about Who Decides, not about Individual Rights.

    Go on -- read them. You will find very few that specify individual rights that are beyond the reach of democratic government (which is what the Supreme Court, on and off since the 1880s, along with most of its academic courtiers, thinks rights have to be). Instead, you will find affirmations that democratic government, located among the American people and not the British, and using familiar Common Law principles rather than new-fangled gobbledigook "unacknowledged by our laws," is the only legitimate mechanism of decision.

    This opens up one avenue for holding that the Constitution does "implement" the Declaration, in a sense. It answers "Who Decides" questions: it allocates jurisdiction. But it does so within a newly-created quasi-federal system ("neither wholly national nor wholly federal," as Madison would later explain) that was not at all what the signers of the Declaration were trying to accomplish.

    The Constititution was a great idea anyway, but it's not what we celebrate on the Fourth of July, and we don't have to build artificial links between the Declaration and the Constitution to make the Declaration worth celebrating. It announced, unprecedentedly, a severance between a mother country and colony; it announced (with inevitable sacrifice in terms of precision) a political philosophy broad enough to include the wide range of beliefs (from Puritan to Enlightenment, with a few Catholics too) within the American leadership class; and it made some stern Who Decides pronouncements.

    Not a bad day's work, even if the great achievement of the Constitution came -- entirely -- later.

    :: David M. Wagner 5:33 PM [+] ::

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