Category: Constitutional Law

“Split-the-Difference-ism:” Journalistic Heuristic for Credibility

Having earlier gibed at law profs for irrelevant articles, Adam Liptak tacks back in an article entitled “Liberal Case for Gun Rights Sways Courts.” Pace Pierre Schlag, it appears that scholars are able to influence judges. But it’s the “surprising” positions that are getting traction; “liberal” scholars are at their most effective embracing “conservative” stances:

“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.”

The article provides several quotes to support that idea, suggesting a conversion narrative for Levinson, Tribe, and other big names who’ve adopted an “individual rights” view of the Second Amendment.

I suppose those types of “conversions” are newsworthy, in a “man bites dog” sense. But what kind of assumptions underlie them? Are the “liberal” results from the “liberal” law professor just a product of his/her ideology? Is everyone to be assigned some sort of ideological set point and then have their scholarship’s credibility measured by how far it deviates from its author’s partisan idees fixes?

A position like that itself manifests an ideology that I like to call “Split-the-Difference-ism.” It assumes that there is some reasonable middle ground in our political struggles, and if everybody would just give a little, we’d all be better off. Moderation becomes the statesman. When a conservative adopts some liberal position, suddenly the conservative (and the liberal position) gain credibility, independent of the reason for the conversion.

This is a decent heuristic in a world of information overload, but there are many better ones available here. Randy Barnett starts asking some of the right questions in his blog post on the piece:

[This debate is] conducted almost exclusively on originalist grounds, even by nonoriginalists such as Judge Reinhardt. While all who criticize the individual rights position on originalist grounds are themselves nonoriginalists, Michael Dorf is a rare writer on the Second Amendment who expressly defends a nonoriginalist approach to the issue.

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A Call for a Cease Fire in the Gun Debate

We’ve all been flooded with information about the horrible shootings at Virginia Tech. Perhaps you’ve heard from friends or politically minded bloggers about what this means about guns and gun control. As part of a team of researchers that studies the way people process information about firearms and their regulation, I can tell you that this is a natural way to react to tragedy.

But if you look at public opinion following each major school shooting over the last twenty years, can you guess which way the shootings have driven public opinion on gun control? Neither way. That’s right, each school shooting has had exactly no effect on public opinion regarding gun control.

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The Secularist Argument for Establishment

unitarian.jpgThose who worry about the Religious Right or who fall over themselves in support of faith-based initiatives ought to consider that the last formally established churches in America were . . . the Unitarians. After Justice Lemuel Shaw’s decision in Stebins v. Jennings, which transferred state-owned churches from Congregationalists to Unitarians, they were functionally the state church of Massachusetts until disestablishment.

Now when people wring their hands about the coming theocracy or call believers to the ramparts to defend America from the forces of godlessness, I doubt that they have in mind an army of Unitarians marching into the breach. Religious stereotypes are dangerous things to deal in, but I can’t divorce Unitarianism in my mind from a vision of well-educated, exquisitely tolerant and liberal Volvo drivers who assiduously contribute to PBS and NPR. In short, it seems to me that progressives have very little to fear from a Unitarian theocracy.

There is a point here that is lost in many of our discussion of church and state. Good eighteenth-century pagans like Hume and Gibbon were supporters of establishment precisely because they saw it as an important way of moderating religious impulses. They wanted well-behaved and tolerant citizens, and they saw the enemies as dissenters like Methodists whose enthusiasm they regarded as unseemly and socially dangerous. England has an established church, as do a number of other northern European countries, yet we do not think of the UK or Europe as being hotbeds of theocracy. (Although to be sure, the treatment of religious minorities by some European states leaves something to be desired from an American point of view.) In short, Hume and Gibbon seem to have been right: establishment had a moderating influence on religion. Indeed, one might even push the argument farther, and argue that establishment was the hand maiden to secularism. Iceland, Finland, Denmark, Sweden, most of the cantons of Switzerland, and Norway all have formally established churches. Yet this is hardly a catalog of the planet’s most religious societies.

In American politics establishment is not a position that anyone can openly avow, and as a result the arguments in its defense have largely slipped out of our political and legal discussions. Somewhat, ironically, however, the argument for establishment should have greater appeal to the enemies of the Religious Right than to its supporters. Indeed, I suspect that in their heart-of-hearts many a glum surveyor of religious politics in America today would prefer a bit of state-sponsored Unitarianism to George W. Bush.


Can the First Amendment Serve as a Source of Criminal Procedure?

first-am-as-crim-pro.jpgTypically, when we think of the constitutional criminal procedure that regulates government information gathering, we think of the Fourth and Fifth Amendments. But many government investigations involve collecting information about speech, association, religion, and the consumption of ideas. The NSA surveillance of telephone calls, for example, involves speech. National Security Letters can be used to obtain information about association and the consumption of ideas. And so on.

Does the First Amendment apply? Should it? If the First Amendment serves as a source of criminal procedure, what procedures does it require? For example, could the First Amendment require a warrant? An exclusionary rule?

For the answers, please check out my new article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007).

I’ve posted the final published version of the article on SSRN.


Your money or your life

A flurry of scholarship on Lochner v. New York surrounded its 100-year anniversary in 2005. It’s clear why Lochner gets so much attention. But as a matter of constitutional doctrine, I wonder if we pay insufficient attention to the stealth anti-Lochner, Jacobson v. Massachusetts. The two U.S. Supreme Court opinions were announced just a few months apart, Jacobson in February 1905 and Lochner in April. Both involved claims of individual liberty pitted against public health laws—a mandatory vaccination law in Jacobson, a limitation on work hours (as well as regulations of working conditions) in Lochner. But the outcomes could hardly be more different. Jacobson embraced a broad police power to use coercion to ensure public health; Lochner infamously struck down restrictions on bakers’ working hours as a violation of economic liberty. (Justice Peckham dissented in Jacobson and wrote the Lochner majority opinion; Justice Harlan dissented in Lochner and wrote the Jacobson majority opinion.) Lochner didn’t last, of course, but for a while it seemed that the state could use coercion to protect your life (or health) only if it didn’t mess with your money along the way.

I’ve been thinking about Jacobson and Lochner as I work on an article about the state’s interest in the preservation of life. Jacobson (and maybe, to some degree, the renunciation of Lochner) reflects a widespread assumption that the state has such an interest and may use coercion against citizens’ bodies to further that interest. So we see Jacobson cited in abortion cases to support the state’s interest in the preservation of fetal life, in refusal of medical care or “right to die” cases, and to support indefinite civil commitment (Kansas v. Hendricks) or indefinite detention (Justice Thomas’s dissent in Hamdi v. Rumsfeld) in the name of public safety. In fact, Jacobson has been cited by the Supreme Court more often than Lochner, and the Jacobson references are almost universally favorable while the Lochner references are usually not. A pedagogical question: Should Jacobson get more attention in constitutional law casebooks? And a political / philosophical question: Is it so obvious that the state has an interest in preserving individual lives—especially those of individuals who do not themselves wish to continue living?

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Bong Hits for What?

Thanks to Dan for the introduction and to the whole Co-op team for hosting me. And thanks for your indulgence over the next few weeks as I share a few thoughts on constitutional law, criminal law, and other topics.

This morning, the Supreme Court heard oral arguments in Morse v. Frederick, the First Amendment case involving a high school student suspended for displaying a banner emblazoned, “Bong Hits 4 Jesus.” Joseph Frederick was an 18-year-old high school senior in January 2002, when he displayed his banner across the street from his high school in Juneau, Alaska, as the Olympic torch procession passed by. The Ninth Circuit found that Frederick’s First Amendment rights were violated even under the less protective standards applied to student speech. The school board (represented by Ken Starr) has denounced the Ninth Circuit’s decision as “unforgivingly libertarian.” As Linda Greenhouse and Marty Lederman have noted, a number of conservative religious organizations have filed briefs in support of Joseph Frederick. The organizations are apparently deeply concerned by the far-reaching authority that the school district has asserted to suppress speech inconsistent with the school’s own understanding of its “basic educational mission,” a mission that may include the inculcation of support for specific public policy positions.

So much for the weighty doctrinal questions that are likely to capture the Court’s attention. One of the things I find most interesting—and amusing—about the case is a slightly different underlying question: what does “Bong Hits 4 Jesus” mean, anyway?

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Raich and Medical Marijuana

pot.jpgFresh from the 9th Circuit presses: A three-judge panel affirmed the denial of Angel Raich ‘s (name plaintiff in Gonzales v. Raich) motion for declaratory and injunctive relief from the enforcement of the Controlled Substance Act . Opinion here.

The court argued that although Raich’s situation did seem to satisfy all prongs of a necessity defense, the necessity defense does not provide proper grounds for injunctive relief. In a footnote, however, the court noted that Raich might be more successful obtaining relief for “pre-conviction harm” on a common-law necessity claim. The court also rejected Raich’s substantive due process claim, and declined to reach her “plain reading” argument of the statute as it was not rasied below.

Unsurprisingly, the LA Times has described the decision as “Dying Woman Loses Medical Marijuana Appeal,” and quotes a tearful Raich insisting that she would “not let them kill me.” Now, I’m all for making the law as interesting and accessible as possible, but this seems a bit much. Didn’t the editors even bother to read the opinion before posting the AP report?


Constitutional Law & Institutional “Tailoring”: My Contrarian View

I’ve just uploaded to SSRN my latest article, which I wrote and presented as part of a February UCLA Law Review Symposium on “Constitutional Niches: The Role of Institutional Context in Constitutional Law”, Prisoners and Students and Workers – Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine. (In January, I’d linked a blog post to a much more preliminary draft in advance of the conference; this is a much more complete draft, and editing is just starting, so I’d love any comments!)

With the Symposium focused on “The Role of Institutional Context in Constitutional Law, my paper took a slightly contrarian view, arguing that when courts tailor doctrine to the needs and characteristics of particular institutions (like public schools, prisons, and workplaces), courts tend to overstate the uniqueness of those institutions. This is dangerous in the First Amendment context, because when courts overstate the unique institutional needs of, say, prisons, they’ll end up allowing too much restriction of speech on an exaggerated “prisons are special” theory. The basis for my conclusion that courts are exaggerating, not just recognizing, institutional uniqueness is a “pL“-type risk analysis of the arguments that prisons, schools, and workplaces face unique risks from dangerous speech.


The Cultural Clash Over Guns

With Friday’s DC Circuit opinion substantially limiting the power of DC government to regulate gun possession, a huge new front of the culture wars may be set to begin. If the Supreme Court decides to step in, and decide the degree to which the Second Amendment limits governmental regulation of individual gun possession, we can expect interest groups on both sides to amp up the rhetoric. And if the Court were to give significant new force to the Second Amendment – subjecting state and local gun laws to any serious judicial review – we may see new brushfires surface across the country.

In general, people from more rural areas – as well as residents in metro areas in largely rural states (like Alabama) – seem hostile to gun control laws. Most of this hostility is of the slippery slope variety. These individuals are primarily attached to their hunting guns. And most experience virtually no regulation of rifles or shotguns. Many of these folks want to own handguns as well, but since handgun control laws are most common in urban areas, few of them are likely subjected to serious handgun control either.

Notwithstanding the lack of much actual regulation of these citizens’ guns, the NRA has effectively stoked their anxiety over gun control on the basis of slippery slope fears.

At the same time, gun control advocates seem to have had far less success convincing national (and even state) legislators to extensively regulate guns, notwithstanding what has appeared to be a very narrow application of the Second Amendment by courts. Indeed, the Second Amendment has proven to be an object lesson in the effectiveness of a constitutional provison even in the absence of judicial enforcement.

But it seems to me that the NRA does best in this environment. As long as the battle stays in the legislatures, gun control opponents don’t have to fight the second front: antimajoritarian interference by courts. Once gun control stops being simply a legislative issue, but part of the broader debate about the role of courts, it will be easier for gun control advocates to tap into anxiety about judicial activism that has been developed, in recent years, by conservatives. It will also create a bit more confusion across political lines by further showing how an “activist court” can both produce Roe v. Wade and the freedom to pack. On a practical level, a developed Second Amendment jurisprudence will produce loads of litigation as cities and states attempt to figure out what sorts of regulation are acceptable. This could help gun control activists by putting the issue in the news regularly – free media to counteract NRA dollars.

I can already imagine the ad campaign: “Millions of Americans have voted to make their streets safe again. The Supreme Court’s response? Screw you. Bring on the guns!” No matter what the slogan, expect fresh turbulence along the urban/rural and north/south divide if the Supreme Court gets into the gun control business.


Upcoming UCLA Con Law Conference, & My Paper on Prisoner/Student/Employee 1st Amdmt Claims

A few days ago I finished drafting my paper for this Friday’s UCLA Law Review Symposium, Constitutional “Niches”: The Role of Institutional Context in Constitutional Law”. You can download my paper here; it’s very much a draft, and I’ll be busily working on the final version over the next two or three weeks, so I’d love any feedback!

For anyone interested in the topic and in/near L.A., the conference looks like a really tightly-packed day of Con Law bigwigs: Fred Schauer (whose work I really admire, though my paper notes an exception to one of his theses); Cynthia Estlund (the conference’s resident employment law bigwig); John Yoo, formerly of the Bush Admninistration (will he offer more “tortured” interpretations of executive power and detainees’ rights against torture?); Dawn Johnsen, formerly of the Clinton Administration (most likely to have her torture authorized by John Yoo?); and many others, but this list already is getting too long. Don’t ask how I got into this crowd — I’m just happy to be there; Paul Secunda and I feel like we’ll be the kids at the grown-ups’ table!

I haven’t written a real abstract yet, but here’s an informal one:

The paper notes Fred Schauer’s criticism that First Amendment law gives too little consideration to how speech rights should vary in different institutions (e.g., government institutions sponsoring arts or election speech; obscenity/pornography being judged similarly whether in print, on the internet, over the phone lines) — but the paper notes one area in which institutional context appears to be given too much consideration. Specifically, would-be speakers located within certain government institutions — students in public schools, employees in government workplaces, and prisoners — have far lesser speech protection; rather than apply heightened scrutiny to speech restrictions, courts substantially defer to those institutions’ speech restrictions and actually apply different legal “tests” in each of the three contexts. Courts rarely explain why different tests apply in these areas, so the article, partly based on economic analysis, (1) tries to discern, as a descriptive matter, the reasons courts apply less speech-protective tests in these contexts and (2) criticizes those reasons as exaggerations of the uniqueness of the three institutions (schools, prisons, and workplaces), or at least finding that those reasons vary in persuasiveness among the three institutions. Ultimately, the article concludes that courts should apply not institution-specific legal tests, but standard heightened scrutiny, to speech rights claims in these institutions, just as it does under the Equal Protection Clause.