Author: Josh Blackman


Follow-Up to Breyer Op-Ed

There has been a considerable discussion about an Op-Ed I co-authored with David Bernstein on Justice Breyer both here and at I wanted to clarify a few things in this follow-up post.

The comparison between Holmes and Breyer was not meant to suggest that they would vote the same way if confronted with the same cases; the comparison was to show how some of Breyer’s democratic/majoritarian views on active liberty, in many respects, sound in the Progressive tradition. In the Op-Ed we also compare Breyer with Robert Bork on this front (a point that none of the comments even mentioned); I wouldn’t even suggest that Breyer and Bork would vote similarly.

This op-ed was not about specific cases; it was about judicial philosophy.

I think the primariy misunderstanding is over one important point: as articulated by Alex in the comments, if Justice Breyer has a similar philosophy as Justice Holmes–a philosophy rejected by the New Deal Court–then Breyer would vote to “roll back decades of these pro-liberty precedents” and overturn cases like Brown v. Board of Ed..

This was not our point, at all. We did not imply that Breyer would vote to roll back Brown v. Board. In fact, I am sympathetic to many aspects of Breyer’s dissent in Parents Involved, particularly his characterization of the Chief’s opinion as abandoning Brown (a claim that I think is pretty accurate).

The point was to focus on Breyer’s judicial philosophy.

Breyer’s conception of civil liberties–free speech in particular–relies on, and respects Warren Court’s precedents (such as Brown), but in my mind, he views them in a different manner. Here is Breyer’s gloss on the Warren Court in Active Liberty:

Later Courts–the New Deal Court and the Warren Court–emphasized ways in which the Constitution protected the citizen’s “active liberty,” i.e., the scope of the right to participate in government.”

The focus is not on individual liberty, or the protection of individual rights from over-reaching majorities, but rather on what Breyer calls “active liberty,” or “the scope of the right to participate in government.” (Active Liberty, p. 10).

Returning to the Op-Ed, Breyer would not “roll back” precedents from the Warren Court by overturning them. Rather, he would re-characterize these opinions as not about a fundamental individual liberty interest, deserving of heightened scrutiny, but as part of an active liberty jurisprudence, where courts construe the Constitution in consonance with the right of the people to participate in popular democratic government.

This passage on free speech from Active Liberty is instructive.

One the one hand, if strong First Amendment standards were to apply across the board, they would prevent a democratically elected government from creating necessary regulation. The strong free speech guarantees needed to protect the structural democratic governing process, if applied without distinction to all governmental efforts to control speech, would unreasonably limit the public’s substantive economic (or social) regulatory choices. The limits on substantive choice would likely exceed what any liberty-protecting framework for democratic government could require, depriving the people of the democratically necessary room to make decisions, including the leeway to make regulatory mistakes. [And in a sentence that could come from his dissent in Sorrell v. IMS Health] That, along with a singular lack of modesty, was the failing of Lochner. No one wants to replay that discredited history in modern First Amendment guise.”

On the other hand, to apply across the board uniform First Amendment standards weak enough to avoid the shoals of Lochner would undermine the First Amendment so much that it would not offer sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy. (pp. 41-42)

This is a very Holmesian market place of ideas view of free speech that is short of focusing on why speech, by itself, is important. On the one hand, free speech is important so long as it “offer[s] sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy.” On the other hand, were Courts to unduly strike down laws limiting speech, it would deprive “the people of the democratically necessary room to make decisions.” So one the one hand, we have “protect democracy.” On the other hand, we have “protect democracy.” To borrow from a classic 80’s commercial, where’s the liberty?

This view matches his dissent in EMA. The statute in EMA was popularly enacted by the legislature, and supported by two Governors. Justice Breyer paid “greater attention to [the] document’s democratic theme” and not so much attention to the civil liberties aspects of minors at stake. (p. 7). There was nary a discussion of the liberty interests in his opinion, yet dozens of pages about supporting the democratic choice made by the people.

Justice Breyer’s comments about the role of popular governance in First Amendment cases at the Aspen Institute (I apologize for my rough transcription from the video) echo this sentiment:

Let’s look to see what the justification is if the state wants to restrict expression and let’s look to see if there are an alternative systems. Often you find something in all those categories and there is not much of an alternative but do a little balancing.

In this case, the restriction on speech, the child cannot buy an x-rated game without their parent’s permission. If their parents wanted them to have it, they can go get it.

That is something, not much of a restriction

I look for a rationale for it, and I find 130 studies. And I find that’s not a bad rationale.

Justice Breyer went out of his way to find studies–that were never even considered by the California legislature, or submitted to the Supreme Court–in order to uphold the law. This exemplified, in my mind, a lack of concern for the First Amendment free speech liberty interests involved in the case, and was primarily concerned for the interests of parents through the state in California who wanted to protect the children.

To repeat from the Op-Ed, this opinion “harkens back not to great liberal Justices of the mid-to-late twentieth century, like Earl Warren and William Brennan–who, whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachment–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.”

Justice Breyer is not opposed to protecting free speech; he simply decides to give the democractic process (active liberty) a significant amount of weight (would you call his approach in EMA strict scrutiny? I think it is closer to rational basis).

That is not necessarily a bad thing. Rather–and this is what the Op-Ed was getting at–this differs from the tradition of Warren and Brennan and Marshall. That the cases come out the same way is not relevant; what is relevant is how they are decided.

Even if you disagree with my reading of Active Liberty and Breyer’s writings, I hope I clarified the point we attempted to make in the Op-Ed (and I realize I spent 1200 words explaining an 800 word op-ed, so I admit, and concede that I did not make the point nearly as well as I could have).

Cross-Posted at


Op-Ed: Oliver Wendell Breyer

David Bernstein and I co-authored an Op-Ed in today’s Newark Star Ledger about Justice Breyer’s jurisprudence and views on individual liberty. His dissent in Brown v. EMA  harkens back a Progressive era view of freedom and is reminiscent of Justice Holmes’s opinions (this may not be necessarily be something modern-day liberals want). The original title we submitted was “Oliver Wendell Breyer.” The Editor significantly (and in a few places incorrectly) modified the article. I reproduce the article, in its original form below the fold.

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The Curves of Social Cost

In the comment thread of my post on Why is the Second Amendment different from all other rights, frequent commenter A.J. Sutter makes an interesting point about the relationship between liberty and government. In The Constitutionality of Social Cost, I describe the relationship between individual liberty and the power of the state as inversely related:  “Securing liberty is inversely proportional to the power of the state to order society.”

Though A.J. disagreed with the general premise of my argument, he contended that, in theory, a different curve would represent the relationship between liberty and the power of the state: “Maybe the relationship is more like an inverted parabola, where there’s an optimal level of state power that maximizes the security of my liberty.” To illustrate these points, I plotted these two curves (plus another one I’ll explain in a moment).


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Why is the Second Amendment different from all other rights?

The title of this post captures a current blogosphere disagreement between Dave Kopel and Doug Berman regarding the interpretation of the Second Amendment in Ezell v. Chicago (analysis here and here) that cuts to the core of this novel jurisprudence. It is also essence of the opening of The Constitutionality of Social Cost.

At Volokh, Kopel wrote that now, the Second Amendment can now be treated like all other constitutional rights.

In short, the Second Amendment is part of normal constitutional law.  The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights.  Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times.  As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

At Sentencing Blog, Berman disagreed, and noted that because Judge Sykes sought to treat “law-abiding” citizens differently from non law-abiding citizens, this novel Second Amendment jurisprudence is not “part of normal constitutional law.”

The problem I have is with the claim that Ezell demostratrates that the Second Amendment is “part of normal constitutional law,” principally because Ezell distinguishes the Seventh Circuit’s approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only “law-abiding, responsible citizens” get full Second Amendment protection.  If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a “law-abiding, responsible citizen,” then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects “law-abiding, responsible citizens.”

I am going to agree and disagree with both Kopel and Berman, in part.

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Supreme Court, in 5-4 Per Curiam, Denies Stay in Texas Execution Despite Request of SG

The Per Curiam Opinion (from the Chief, and Justices Scalia, Kennedy, Thomas, and Alito, obviously)  in Leal Garcia v. Texas is available here.

The majority rejected a plea by the Solicitor General to stay Leal’s execution, in light of the fact that even though implementing legislation of the Vienna Convention has been  introduced by the Senate, “[n]o implementing legislation has been introduced inthe House.” Basically, Congress has had 7 years since the ICJ ruling interpreting the Vienna Convention. If they wanted to enact it, they would have done so. Because they didn’t, the Court won’t grant a stay.

First, we are doubtful that it is ever appropriate to stay a lower court judgment in lightof unenacted legislation. Our task is to rule on what the law is, not what it might eventually be . . . Neither the United States nor JUSTICE BREYER, post, at 1–6 (dissenting opinion), cites a single instance in this Court’s history in which a stayissued under analogous circumstances. . . .

It has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introductionof a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now.

The Per Curiam opinion discounts fears of  “the grave international consequences that will follow from Leal’s execution.”

Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority tostay an execution in light of an “appeal of the President,” post, at 6, presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim.

That the SG did not argue that Leal was prejudiced seemed quite important in the Court’s rejection of the stay:

We decline to follow the United States’ suggestion of granting a stay to allow Leal to bring a claim based onhypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success.

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, and concurred with the United States’ argument.

As the Solicitor General points out, Leal’s execution atthis time “would place the United States in irreparable breach” of its “obligation[s]” under international law.

Justice Breyer directly calls out the Per Curiam as thumbing its nose at the President, Executive Branch Officials, Members of Congress, and 4 Members of the Court.

In reaching its contrary conclusion, the Court ignores the appeal of the President in a matter related to foreign affairs, it substitutes its own views about thelikelihood of congressional action for the views of Execu-tive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can dis-cuss the matter at Conference in September. In my view,the Court is wrong in each respect.

More from Justice Breyer’s dissent after the jump.

Update: It is interesting to contrast the Court’s willingness to give Congress more time to reconsider the Voting Rights Act in Northwest Austin Municipal Utility District No. 1 v. Holder, but their unwillingness to give Congress two months to enact enforcement legislation in Leal Garcia.

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Does Chicago’s New Firing Range Ordinance Moot Ezell v. Chicago?

On Wednesday in Ezell v. Chicago (analysis here), the 7th Circuit effectively issued an order to Chicago ordering them not to prohibit the construction of firing ranges in city limits.

On Tuesday, across town, a panel of alderman approved a new ordinance that permits the construction of firing ranges in city limits, but with serious restrictions. See details here and here. The ordinance will likely be enacted soon (though not soon enough to preempt the 7th Circuit’s opinion).

So is Ezell v. Chicago moot? I don’t think so.

First, passing a new ordinance does not automatically moot the issue, especially if there is an opportunity for the City to continue to violate the Constitution. See, e.g. American Legion Post 7 v. City of Durham, 239 F.3d 601, 605 (4th Cir. 2001) (“The mere amendment or repeal of a challenged ordinance does not automatically moot a challenge to that ordinance.”). In light of Chicago’s refusal to protect Second Amendment rights post-McDonald, this new step doesn’t give me much confidence that the City will take care that constitutional rights are faithfully protected.

Second–and herein lies the rub–we will have to look at the ordinance in question. How restrictive is it? In light of Judge Sykes’ repeated analogies between the First and Second Amendments, any zoning ordinance would likely have to survive the same heightened scrutiny discussed in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and its progeny. Additionally, Chicago will have to make sure that the law, by itself does not infringe on the core Second Amendment rights. If it makes training so difficult and onerous, these provisions may not be constitutional without even touching the First Amendment.

Third, and perhaps most importantly, all three Judges on the panel were quite critical of Chicago’s actions. In the words of Judge Rovner, who concurred in judgment, the initial statute in question exemplified Chicago’s “thumbing of the municipal nose at the Supreme Court.” Attempts to play fast and loose with constitutional rights won’t fly with this Court. The City would be warranted in taking this opinion seriously.

Cross-Posted at

Update: For more analysis on Ezell, and The Constitutionality of Social Cost, see here.

Update 2: Thursday’s Chicago Tribune reports that the City approve the ordinance.

Jennifer Hoyle, a city Law Department spokeswoman, said the new ordinance could make the lawsuit moot, but an attorney for those suing the city disagreed.

Stay tuned.


7th Circuit Reverses District Court in Ezell v. Chicago (Chicago Gun Range Case)

Following McDonald v. Chicago, the City of Chicago enacted a number  of new  firearm ordinances. In order to obtain a firearm permit, a person would have to take 1-hour of firearm training at a firing range. The only problem was that Chicago  banned the construction of ranges in city limits. In Ezell v. Chicago, plaintiffs sought injunctive relief, arguing that banning the construction of firing ranges in the City, and at the same time requiring people to undergo firearm training, violated the Second Amendment.

The 7th Circuit, per Judge Sykes, reversed the District Court’s denial of injunctive relief. In short, requiring someone to take firearm training, but not allowing the construction of firearm ranges, is improper.

In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ” Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939)). The same principle applies here. It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a freespeech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context.

Judge Rovner concurred in judgment. I’ll add more commentary later (see here for my instant reaction).


The Declaration of Independence and the Force of Law

At PrawfsBlawg, Eric Johnson writes that the Declaration of Independence ought to have the force of law. In at least one important ways, it does.

In order to be a Representative, or Senator, a person needs to be a “Citizen of the United States” for 7 years, and 9 years respectively.  Who was a “Citizen of the United States” for 9 years  in 1789 when the First Congress met? How did one constitutionally become a “citizen of the United States” prior to the ratification of the Constitution on June 21, 1788? For purposes of citizenship, and the Constitution, when did the United States of America begin? The answer to these questions begins in the year 1776.

In Original Citizenship, published in PENNumbra earlier this year, I looked at how the Declaration of Independence, and various theories of citizenship through consent that prevailed during the revolutionary era, might provide an answer to the constitutional requirements of Representatives and Senators.

The citizenship of those who lived in the United States before the Declaration was primarily determined under two doctrines that derived from Lockean social compact theory.17 The first theory postulated that by virtue of residing in theUnited States at the moment of independence and separation from Great Britain, a person automatically became a citizen, regardless ofwhether that person was a Yankee or a dissenting loyalist. The second theory contended that citizenship and allegiances could not be imposedon anyone, because to do so would be contrary to the spirit ofthe Declaration. Rather, following independence, a person could choose or “elect” whether he wanted to become a U.S. citizen.18 Alternatively, he could exercise his right of expatriation within a reasonable period of time, and thereby decline citizenship. For the most part, all states adopted a naturalization policy that mirrored one of these strands.

Additionally, I consider how these theories impacted early notions of citizenship of the United States at three critical junctures: before the ratification of the Constitution, during the first Congress, and following the first Congress.

First, in treason cases, in order to distinguish between a disloyal citizen and a foreign alien combatant, a court needed to determine if the accused was a U.S. citizen. Second, because “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members,”19 early records of contested elections in the House and Senate help explicate the contours of the original understanding of U.S. citizenship for House qualifications. Third, in cases interpreting Jay’s Treaty,20 the courts needed to establish whether a claimant was a citizen at the time of the Revolution in order to determine if certain barriers to recovery existed.

This dynamic  is not limited to the qualifications of Representatives and Senators 200 years ago. This early understanding of citizenship, and the legal authority of the Continental Congress to act as a sovereign over the colonies/states and new citizens, has direct implications on many aspects of modern constitutional jurisprudence–including the 9th, 10th, 11th, and 14th Amendments.

The Declaration of Indepedence, at least in this limited context, is a legal document, that has the force of law.

Cross-Posted at


Congratulations to the Winners of FantasySCOTUS October Term 2010

The results are in for FantasySCOTUS October 2010 Term. Congratulations to Melech, also known as Jacob Berlove, who is the Chief Justice of FantasySCOTUS. I recorded a PodCast with Jacob, where I talk about how he makes his predictions, and his legal background–he never went to law school. Amazing! The Chief Justice, Senior Associate Justice, and the Associate Justices, scored a remarkably high accurate rate–approaching 80%. Well done to all of the players! The full scoreboard is available here.

Congratulations to the winners of the inaugural season of–the Harlan Institute’s Supreme Court Fantasy League for High School Students. The grand prize winner was Mr. Chris Zanoni’s Honors Government class at Somerset High School in Somerset, PA. In addition to making very accurate predictions about our five cases decided this term, Mr. Zanoni’s class put together an exemplary class blog. I encourage you to read some of the blog posts about Connick v. Thompson,Chamber of Commerce v. WhitingBrown v. EMANASA v. Nelson, and Snyder v. Phelps. This writing is at such a high level for high school students, and the analysis is superb.

We encourage all high school (and advanced middle school) classes to sign up for the October 2011 Term. If your class signs up before July 15, you will be entered into a drawing for a Skype Web Camera. Sign up today!

Finally, congratulations to the students of Columbia Law School for winning the inaugural Law School Challenge. Kudos to Southern Illinois, NYU, Michigan, and St. Thomas (Michigan) for rounding out the top 5.


Chief Justice Roberts: “We are the most transparent branch of government.”

During the Annual Fourth Circuit Court of Appeals Conference, Chief Justice Roberts made a number of comments on a wide-range of issues, from Justice Kagan’s new frozen yogurt machine to the benefits of hiring of law clerks without experience to the value of legal scholarship.

Someone in the crowd asked a question about televising proceedings. The Chief claimed that cameras are not necessary, and asserted the Supreme Court is the most transparent branch of government.

“We are the most transparent branch of government. Everything we do that has an impact is done in public. We don’t do the deliberations. You see the work in public in the Court. Our opinions are out there. You see the materials we look at in the briefs. What is not public are internal conferences.” (I have not located an official transcript; this is my best attempt to accurately type what the Chief said).

Is this accurate? The Court, without explanation, decides only the cases it wishes. They deliberate and assign authorship in private. Sometimes Justices even add appendixes of information outside the record because the briefs are apparently not sufficient. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery.

The Chief also commented that introducing cameras into the Legislative branch has actually degraded the quality of those proceedings.

“I’m told, the way society is, things don’t really happen unless you see them on TV. The Supreme Court is different. I’ve talked to people in the Senate and they think televising debates in the Senate has ruined them. Anyone who sees them, there is always one person standing at the podium and no one else there, people tell me it didn’t use to be that way.”

After a comment by Judge Wilkinson, lamenting the fact that great speeches from Daniel Webster and Abraham Lincoln were never recorded, the Chief remarked that “It would be interesting to know what governmental institutions function better now that they’re on television”–the Court or the Legislature.

Cross-Posted at