“The Constitutional Excuse For Subverting Democracy”: Just Another Conservative Heads-We-Win-Tails-You-Lose Proposition
To anyone puzzled or confused about the preferred Tea Party self-identification buzzword “constitutional conservative,” George Will has done a fine job in his latest column spelling it all out, by way of touting a new book by Timothy Sandefur of the Pacific Legal Foundation. Progressives believe the Constitution provides a process that facilitates democracy. Conservatives understand that it’s a safeguard against the limitation of “natural” rights by democratic majorities.
This sounds reasonable if you accept the rather cartoonish idea that progressives do not acknowledge any limitations on popular majorities, or that the two sides mean roughly the same thing when they talk about individual rights. Here Will is not as forthcoming as he might have been, but his extensive discussion of the alleged incorporation of the Declaration of Independence into the Constitution–an invariable touchstone for Constitutional Conservatives–alludes to the common conservative belief that via the Declaration certain divinely granted or naturally endowed “rights”–particularly the untrammeled enjoyment of private property and the “right to life” of zygotes–trump the founding document itself.
You can think of it as a vastly more sweeping conservative version of the “penumbra” theory whereby Justice Douglas identified an implicit “right to privacy” in the Bill of Rights. And indeed, critics of Douglas’ opinion in Griswold v. Connecticut (itself a precedent for Roe v. Wade) have sometimes compared it to the “substantive due process” concept of the Lochner v. New York decision under which progressive social and economic legislation was routinely struck down as violating immutable private property rights until Lochner was overturned in 1937. It’s no accident that Will’s hero Sandefur is a latter-day defender of Lochner.
I’m no constitutional lawyer, and so won’t go into the argument over Lochner (or for that matter, Griswold) in detail, but it’s worth noting the practical effect this idea of supra-constitutional limitations on democratic majorities has on conservative political argumentation. When they aren’t describing America as a “center-right nation” or predicting perpetual Republican electoral landslides, or indulging in a “populist” appeals whereby “real Americans” are told they are being illegitimately outgunned by voter fraud or voter bribery, conservatives are prone to retreat into this impregnable fortress of constitutionalist theory which prohibits as a matter of fundamental law most progressive legislation. This redoubt makes it psychologically very easy to rationalize restrictions on voting, or mendacious campaign ads, or unlimited campaign spending by wealthy individuals, or abuse of the filibuster or other anti-democratic mechanisms. After all, conservatives are simply defending themselves against laws and policies that really ought to be struck down by the courts as unconstitutional–you know, like the Lochner-era courts routinely did with progressive legislation up through the early New Deal.
It’s at bottom just another heads-we-win-tails-you-lose proposition whereby American conservatives tend to support the constitutional arguments that in any given circumstance happen to support their policy goals.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 17, 2014
“Is It Constitutional, The Civil Rights Act?”: Learning To Live With The Civil Rights Act, 50 Years Later
Freshman U.S. Rep. Ted Yoho (R-FL) has mainly drawn attention as a Tea Party ultra who somehow managed to draw a Tea Party ultra ultra 2014 primary opponent with rather exotic extracurricular activities.
But he may be fairly typical of his ideological cohort in having some, well, problems coming to grips with major legislation enacted a half-century ago, per this report from Scott Keyes of Think Progress:
Rep. Ted Yoho (R-FL), a freshman congressman aligned with the Tea Party, held a town hall Monday evening in Gainesville where he fielded a wide range of questions from constituents. One such voter was Melvin Flournoy, a 57-year-old African American from Gainesville, who asked Yoho whether he believes the Civil Rights Act is constitutional.
The easy answer in this case — “yes” — has the benefit of also being correct. But Yoho found the question surprisingly difficult.
“Is it constitutional, the Civil Rights Act?” Yoho repeated before giving his reply: “I wish I could answer that 100 percent.” The Florida Republican then went on to strongly imply it may be unconstitutional: “I know a lot of things that were passed are not constitutional, but I know it’s the law of the land.”
Well, that’s mighty nice of him to acknowledge the Supremacy Clause, not a universal tendency among self-styled Constitutional Conservatives.
But the difficulty a lot of CCers have with the Civil Rights Act–which almost certainly exceeds public expression, given the rather controversial nature of fighting the particular lost cause that helped sink their predecessor Barry Goldwater’s 1964 presidential campaign–comes from three distinct but interrelated sources. The wonkiest issue is hostility to the Commerce Clause jurisprudence on which the Public Accommodations section of the Civil Rights Act relied for regulating private discriminatory business practices. It’s very common in conservative legal circles to deplore the extension of federal power via the Commerce Clause during a chain of Supreme Court decisions beginning in the 1930s; Chief Justice Roberts famously refused to accept a Common Cause rationale for the Affordable Care Act of 2010.
A second argument that would have been more familiar to Goldwater and to the southern segregationists who flocked to his 1964 campaign is a states’ rights objection to federal regulation of race relations. While today’s neo-secessionists would try to stay a million miles from racial issues in arguing that “state sovereignty” retains meaning even after the Civil War, it still has a ghostly power in conservative circles.
And then there is the idea, embraced off-and-on by the Paul family, that the Civil Rights Act simply violates fundamental principles of private property rights that cannot be trammeled for any cause, however justifiable.
It’s unclear which of these conservative concerns about the Civil Rights Act Ted Yoho shares, notwithstanding his willingness to bend the knee to the “law of the land.” But it’s interesting that he and other constitutional conservatives can’t quite suppress their discomfort with a legal regime that ensures people aren’t denied access to restaurants and hotels and other business because of the color of their skins.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 15, 2014
“Grading John Paul Stevens’ Work”: When Rewriting The Second Amendment, Be As Specific As Possible
As the gun nuts will surely point out, former Supreme Court Justice John Paul Stevens doesn’t know how to distinguish automatic from semi-automatic firearms. I’ve never understood why this distinction is so important to gun nuts. As a legal matter, obviously it is important to know the difference. But the reason that non-gun enthusiasts make this mistake so often is because the semi-automatic weapons are so incredibly lethal that the distinction doesn’t make any practical difference to them. Does anyone think Adam Lanza’s semi-automatic weapon was inadequate to the job of killing 20 kids and 6 teachers in a couple of minutes?
It’s really the ease and quickness that killers like Lanza and James Eagan Jones Holmes (the Aurora, Colorado shooter) can mow down large groups of people that is the concern.
In any case, Stevens’ proposed amendment to the Second Amendment is sloppy. It would make it impossible for a National Guard officer to disarm an insubordinate underling.
As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
As we know, the wording of these things can get twisted over time. So, if you want to rewrite the Second Amendment you should be as specific as possible. I’d go with:
A well regulated Militia is no longer necessary to the security of a free State. We now call those things the Army Reserve, the Navy Reserve, the Marine Corps Reserve, the Air Force Reserve, the Coast Guard Reserve, the Army National Guard of the United States, and the Air National Guard of the United States. If you serve in one of those Organizations, your weapon will be provided for you.
See, isn’t that better?
By: Martin Longman, Washington Monthly Political Animal, April 13, 2014
“No, Asshole, You’re Totally Wrong”: What Plantation Is Jim DeMint Living On?
I once had this idea for a play about God, a comedy, in which the audience would be introduced to a series of casuists and charlatans and braggarts and bloviators, and they’d be carrying on, lecturing away on topics large and small with serene self-confidence. There’d be the sound of thunder and perhaps a puff of smoke, and from the wings, God would appear. He or She would, over the course of the three acts, take on numerous corporeal forms—white man, black woman, Asian man, Arab woman, et cetera—but in each guise would admonish the speaker: “No, asshole. You’re totally wrong. How do I know? Because I’m God, and you’re wrong.”
The idea came to me, of course, because of life’s endless pageant of moments when one wishes life really worked that way. But I don’t know if I’ve ever wished it more than I did two days ago, when Jim DeMint, the ex-senator and Heritage Foundation head who defines the words casuist and charlatan and braggart and bloviator and about 262 others that are worse, said that the federal government of the United States did nothing to end slavery. The salient words:
Well the reason that the slaves were eventually freed was the Constitution, it was like the conscience of the American people. Unfortunately, there were some court decisions like Dred Scott and others that defined some people as property, but the Constitution kept calling us back to ‘all men are created equal and we have inalienable rights’ in the minds of God. But a lot of the move to free the slaves came from the people, it did not come from the federal government. It came from a growing movement among the people, particularly people of faith, that this was wrong. People like Wilberforce who persisted for years because of his faith and because of his love for people. So no liberal is going to win a debate that big government freed the slaves.
Please, I beg of you, don’t do DeMint the honor of thinking him merely stupid. He’s probably that, in some way. Certainly those sentences add up to a mountain of stupid, a Himalayan range of it. Yet at the same time, a statement this insane can’t be propelled merely by stupidity. A denial of reality this whole, this pure, requires, I think, some thought, some premeditation. Dwell with me on this for the moment.
Today’s radical conservatives like DeMint want to destroy government. This means in the first instance discrediting everything government does in the present. That, we’re all plenty familiar with. It’s a lot of what we fight about all the time.
But the project also includes history—proving that nothing good that ever happened in history was done by the government. Oh, they might grant you a war here or there, these wingers. They’re OK with war (when we win them—when we’ve lost them, that was of course the liberals’ fault). But nothing else.
Often, this is easy enough. Example: The great post-war prosperity boom and middle-class expansion. We on my side say: unionization, massive public investments, a tax rate that kept the coffers full, a few other things. DeMint and his type can’t have that, so they say: American ingenuity, a free-market system that encouraged initiative, no big bloated welfare state yet, etc. That’s a simple one. Left and right offer competing narratives, and to most people, parts of each probably sound plausible.
But then you get to trickier matters. How, as a radical conservative today, and especially a Southern one, and especially one from the state (South Carolina) that started the Civil War (first to advance nullification, first to secede, first shots fired), are you supposed to explain that war? And how are you supposed to explain slavery? Tough ones. If you ever visit any of those crackpot websites I look at sometimes, you’ve seen, for example, the commonly advanced idea that the Civil War wasn’t really about slavery, it was about states’ rights and economics and so on. I guarantee you that notion will show up pretty quickly in this very comment thread.
But that explains only the war’s beginning, not its end. I had not heard, until DeMint’s comments here, their theory on the war’s end, and more deliciously on slavery’s. So it was “the conscience of the American people” that ended it. And the Constitution, which “kept calling us back to ‘all men are created equal and we have inalienable rights.’” And William Wilberforce. But whatever it was, it wasn’t “big government.”
Interesting interpretation, eh? DeMint’s “conscience of the American people” x’s out of history the Emancipation Proclamation, which strikes me as an act of the federal government (a presidential order); also the Thirteenth Amendment, which outlawed slavery and, as an amendment to the Constitution, was surely an action of the government. It also x’s out the war itself, fought to the end, no matter what today’s Confederate revisionists say, to wipe out slavery once and for all.
As for the Constitution, well, there’s the fact that the words DeMint quotes appear not in the Constitution but the Declaration of Independence, but there are bigger problems here than that. If Jim DeMint had been alive in 1860, it’s reasonable to assume that he’d have gone with the flow in his state, correct? So he’d have supported secession. And, big cheese that he is, he’d have likely played some role in creating the Confederate States of America. And in turn he’d likely have signed the Confederate Constitution, thus pledging his loyalty to a document that explicitly prohibited the Confederate government or its several states from interfering in slave ownership in any way, including a specific provision stating that any territories the CSA gained via war or any other means would become slaveholding states. That would have been Jim DeMint’s Constitution, not the one you and I heed.
Finally, this Wilberforce business. They love Wilberforce, today’s rad-cons. He was a devout Christian, you see, and a conservative; and yet at the same time a stern abolitionist. What a useful combination! Invoking Wilberforce allows conservatives like DeMint to pretend that he, not Calhoun, is their moral lodestar and inspiration. It’s somewhat problematic for them that while Wilberforce did indeed fight slavery, he did so in England, where he actually lived, not in America. And only up until 1833, when he died. Besides which the fiery abolitionists in America, William Lloyd Garrison and so forth, were quite religious too, but on the political left.
There is such a thing as having a legitimate difference of opinion on a question of history. Was Napoleon the embodiment or the corruption of the French Revolution, to take an obvious example—historians will argue that one till the end of time. But DeMint doesn’t have a legitimate difference of opinion. He has a wholly ideological one, designed not to spur historical debate but to justify his miserly posture toward contemporary politics.
And so every sentence that came out of his mouth was just utter nonsense. But not just that–premeditated, pernicious, and malicious nonsense, spun to serve contemporary ends like fighting the delivery of health coverage to millions. Physicians have boards to answer to, lawyers the local bar; but in politics and media, there’s no panel that can police this drivel and declare DeMint unfit for participation in public discourse. And so he gets to say these utterly insane things but still get quoted in the papers as if he were a serious person. And the rest of us just have to endure him. God, if you’re there, now would be a good time to show up.
By: Michael Tomasky, The Daily Beast, April 11, 2014
“When Serving In The Militia”: Justice Stevens, The Five Extra Words That Can Fix The Second Amendment
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.
The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.
The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.
Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges.
In my dissent in the McDonald case, I pointed out that the court’s decision was unique in the extent to which the court had exacted a heavy toll “in terms of state sovereignty. . . . Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.”
“Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.”
In response to the massacre of grammar-school students at Sandy Hook Elementary School, some legislators have advocated stringent controls on the sale of assault weapons and more complete background checks on purchasers of firearms. It is important to note that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures.
First, the court did not overrule Miller. Instead, it “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” On the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the “common use” requirement.
Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.
A second virtue of the opinion in Heller is that Justice Antonin Scalia went out of his way to limit the court’s holding not only to a subset of weapons that might be used for self-defense but also to a subset of conduct that is protected. The specific holding of the case covers only the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.
Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.
There is an intriguing similarity between the court’s sovereign immunity jurisprudence, which began with a misinterpretation of the 11th Amendment, and its more recent misinterpretation of the Second Amendment. The procedural amendment limiting federal courts’ jurisdiction over private actions against states eventually blossomed into a substantive rule that treats the common-law doctrine of sovereign immunity as though it were part of the Constitution itself. Of course, in England common-law rules fashioned by judges may always be repealed or amended by Parliament. And when the United States became an independent nation, Congress and every state legislature had the power to accept, to reject or to modify common-law rules that prevailed prior to 1776, except, of course, any rule that might have been included in the Constitution.
The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.
As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.
It is true, of course, that the public’s reaction to the massacre of schoolchildren, such as the Newtown killings, and the 2013 murder of government employees at the Navy Yard in Washington, may also introduce a strong emotional element into the debate. That aspect of the debate is, however, based entirely on facts rather than fiction. The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy.
By: John Paul Stevens, Associate Justice of The Supreme Court from 1975 to 2010. This essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”; The Washington Post, April 11, 2014
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