While scholars question the legal principles espoused by the Tea Party, some are celebrating the organization's role in democratizing discussions of constitutional principles.

"The content of the movement's understanding of the Constitution is not always easy to nail down, and it is almost always arguable," writes Adam Liptak in The New York Times. "But it certainly includes particular attention to the Constitution's constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment's protection of gun rights, the Fifth Amendment's limits on the government's taking of private property)."

According to Liptak, by focusing on these elements of the Constitution, the Tea Party is helping bring our nation's sacred document to the forefront of national, political conversations. If that is a goal of the Tea Party, it may not hurt to have Virginia Thomas on board.

Thomas, a conservative activist and wife of Justice Clarence Thomas, is launching Liberty Central Inc. to organize citizens around what she calls "core principles." The 501(c)(4) non-profit group, which is linked to the national Tea Party movement, is planning advocacy around the 2010 congressional elections. Thomas says that Liberty Central will accept corporate contributions under finance rules recently loosened by the Supreme Court's decision in Citizens United v. FEC. Justice Thomas was in the majority of that 5-4 decision which partially struck down the bipartisan McCain-Feingold campaign finance reform and reversed two Supreme Court precedents on point.

"I am an ordinary citizen from Omaha, Neb., who just may have the chance to preserve liberty along with you and other people like you," Virginia Thomas declared, sitting on a panel of Tea Party leaders at the Conservative Political Action Committee's recent conference in Washington, D.C. Thomas told those in attendance that, just like them, she could not bear to sit by idly while President Obama enacted his "hard-left agenda."

Thomas' conservative credentials include a stint in George W. Bush's transition team while Justice Thomas was considering the election-deciding case of Bush v. Gore, in which he joined the five-justice majority that determined the 2000 presidential election in favor of then-Gov. Bush. She also worked at the Heritage Foundation and served in the office of one-time House Majority Leader Rep. Dick Armey.

[Image via sporks5000.]

On March 10, 2010, ACS supporters gathered with the Oregon Lawyer Chapter to hear Professor Pam Karlan talk about a progressive vision of constitutional interpretation -- a vision she has embraced in her recent book Keeping Faith with the Constitution. Karlan (pictured) explained how her vision, which she termed "constitutional fidelity," confronts constitutional questions with an analysis of text, history and precedent, but also an appreciation for how society in the present day views a given issue and the real-world impact of Supreme Court decisions. In Karlan's view, that vision is both true to the Founders' intent, as well as modern day notions of justice, fairness, and constitutional meaning.

Karlan noted that "constitutional fidelity" is in large part a response to currently established doctrines such as textualism and originalism, which rejected the prior view of the "living constitution" as disjointed from text and history, and ultimately subject to the whims of individual judges. As Chief Justice Roberts put it, a judge should merely call balls and strikes. But Karlan explained that the baseball metaphor is a poor one, because calling balls and strikes itself is a subjective undertaking, subject to the sound judgment of the umpire -- just as deciding constitutional cases is subject to the sound judgment of the justices on the Supreme Court. Moreover, proponents of originalism and textualism frequently deviate from strict adherence to those doctrines when it would confound their preferred policy outcomes -- a level of individual input they claim to avoid. And originalists and textualists generally take into account all of the evidence that "constitutional fidelity" adherents would take account of -- it's just that they fill the blanks in with different, but no more valid, policy choices based on their own views.

The question becomes whether "constitutional fidelity" can gain ground against originalism and textualism. It can, but it will require a sustained program of support. Accordingly, as Karlan explained, it is not helpful when progressive judicial nominees embrace the baseball metaphor -- they ought to embrace the fact that a "wise Latina" adds a different perspective than another white male -- a perspective that will likely lead to different results in close cases. 

"His silent presence on the bench has evolved into a weirdly compelling example of performance art," writes ACS board member Linda Greenhouse of Justice Clarence Thomas' persistent silence during oral argument. The fourth anniversary of Thomas' silence from the bench passed quietly last month, but not without being noticed.

Writing in The National Law Journal, Tony Mauro recently gave new life to a Florida Law Review article entitled "Why Justice Thomas Should Speak at Oral Argument." There, freshly minted law school graduate David A. Karp argued that Thomas' silence permits him to shield anachronistic or even bizarre legal perspectives from criticism. Rather than debuting his opinions during oral argument, the piece notes, where they could be challenged by counsel and his colleagues on the bench, Thomas saves his outlook from public scrutiny until it is proferred in an official opinion.

One such opinion, released last month, went overlooked until this week. In Wilkins v. Officer Gaddy, North Carolina inmate Jamey Wilkins alleged that he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a prison guard. The district court judge who initially reviewed Wilkins' allegations dismissed them, and the U.S. Court of Appeals for the Fourth Circuit affirmed this ruling in an unpublished one-paragraph opinion. 

Without even inviting briefs on the matter, the U.S. Supreme Court summarily reversed the Fourth Circuit, determining that Wilkins presented a prima facie case under Hudson v. McMillan. In that 1992 decision, the Court determined that a "significant injury" is not required for excessive force claims under the Eighth Amendment. Rather, under Hudson, a prisoner's excessive force claim may only be dismissed where "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically cause harm."

Concurring in the judgment as a matter of stare decisis, Justice Thomas went out of his way to make his opposition to Hudson known once again. Thomas invited litigants to request reversal of Hudson based on his understanding that "the word ‘punishment' referred to the penalty imposed for the commission of a crime," in the late 18th century when the Eighth Amendment was ratified. Thus, under Thomas' analysis, the Eighth Amendment permits a prison guard to savagely beat a prisoner so long as they did not do so to penalize them for committing a crime.

This opinion was first highlighted by David Savage, who, writing in the Los Angeles Times, compared it to something that might be produced by Thomas' now-infamous former clerk John C. Yoo. During his time in the Bush administration, Yoo contributed significantly to the Torture Memos, which redefined torture as requiring bodily pain akin to major organ failure.

"Thomas' consistent record of dismissing claims of prison brutality ... shows that Yoo's view of torture was not that of a rogue lawyer," reports Savage. "Instead, it represents a strain of conservative thinking that looks back in history to define cruelty and torture, rather than toward what the court has called the 'evolving standards of decency.'"

[Image via Wikimedia Commons.] 

Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

Following the Supreme Court decision on corporate campaign finance regulation, ACS hosted a national event exploring potential ramifications on democracy and the future of regulating corporate expenditures on elections.

Joseph E. Sandler, a nationally recognized expert on elections law, joined the panel discussion and afterwards talked with ACSblog about how the decision in Citizens United v. FEC could alter electoral politics. Conceding that the decision's impact may be "very difficult to predict," Sandler said nonetheless it may now be "tempting" for some corporations "to get into the game in a way they wouldn't have done before."

Video of the entire event, "Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead," is available here. Watch Sandler's interview below or download it as a podcast here.

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

[Part I of "Supersizing the Second Amendment?" is available here.]

So why do I still say that gun control advocates are also seemed to be big winners?

Because the Justices seemed to think that, regardless of incorporation, state and local governments would retain wide leeway to enact gun control. The only words used as much as "fundamental" and "implicit in ordered liberty" in the argument were "reasonable regulation."

Numerous Justices expressed their support for the idea that the Second Amendment did not prohibit reasonable regulation of firearms. Justice Kennedy said that lawmakers still "have substantial latitude and ample authority to impose reasonable regulations." Justice Ruth Bader Ginsburg said that she "thought that Heller allowed for reasonable regulation." Justice Scalia didn't use that catchphrase, but went out of his way to say that Heller "was very careful not to impose" severe limits on the federal government "precisely because it realized that" gun violence "is a national problem."

There are two ways to think about "reasonable regulation." The first is what I've long endorsed: the Second Amendment should be governed by the formal "reasonable regulation" standard uniformly used in state constitutional law. Forty-two states have constitutional protections for the individual right to bear arms and all of them apply a deferential standard by this name. Under that test, any regulation will be allowed to stand so long as it doesn't effectively destroy or nullify the individual's right to have a gun for self-defense. Some types of weapons can be banned so long as individuals have access to others. Applying this test, almost all gun control survives.

The second way to think about "reasonable regulation" is not as a formal test but as shorthand for allowing lawmakers broad leeway to regulate guns. This seems to be what the Court did in Heller. The Justices did not formally adopt the state law standard of review. Instead, they adopted categorical rules and recognized a number of gun control "safe harbors." While they don't create a standard of review, the exceptions listed out in Heller encompass most forms of gun control. None of these are constitutionally infirm under the Second Amendment.

The distinction between these two ways of thinking about reasonable regulation may be more theoretical than practical. The legal effect of Heller has been to permit the vast majority of gun control laws to survive judicial review. In fact, not a single law has been invalidated for violating the Second Amendment since Heller. That's not for a shortage of cases. There have been over 150 federal court decisions on the constitutionality of gun control since Heller and none ruled that the Second Amendment was infringed. Whether the Court promotes the state law standard of review or approaches the Second Amendment with categorical reasoning, the effect on gun control is the same. It almost always survives.

Of course, even if the Court makes clear in McDonald that most gun control laws don't run afoul of the Second Amendment, there are certain to be some laws invalidated in the future. Permitting or licensing laws that give unfettered discretion to police chiefs over who can have or carry a firearm are troublesome, and open the door to arbitrary determinations. Constitutional rights shouldn't be subject to anyone's discretion. But even if that type of law is invalidated, almost all other sorts of gun control laws seem destined to survive.

Maybe McDonald will "supersize" the right to bear arms by applying it to the states. But the effect on gun control is likely to make this landmark case little more than a small fry.

[Image via slimmer_jimmer.]

Yesterday, the Supreme Court heard oral argument in the latest big gun case, McDonald v. City of Chicago. The Court will decide whether the individual right to keep and bear arms recognized in 2008's D.C. v. Heller extends to the states. I was at oral argument and there seemed to be two big winners: gun rights advocates and gun control advocates.

The gun rights folks, like the NRA, seemed poised to win the case. Of the five Justices who voted with the majority in Heller, all appeared to be inclined to hold that the right to bear arms is a "fundamental" right such that it applies to state laws. (Well, not all of the five: Justice Clarence Thomas said nothing, extending his streak of silent oral arguments that dates back to 2006.)

Just like in the Heller oral argument, Justice Anthony Kennedy, the swing vote, showed his cards. "If [the right to bear arms is] not fundamental, then Heller is wrong, it seems to me." Chief Justice John Roberts said, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

As Paul Clement, representing the NRA said, the question of whether the right to bear arms was fundamental or not was "remarkably straightforward." The fact that Clement was there at all was a surprise. The NRA was not formally a party to the suit. More striking still was that Clement was representing the NRA. After Clement, then serving as Solicitor General, filed a brief in Heller suggesting that D.C.'s handgun ban might be constitutional, gun rights activists branded him a traitor. Now he is their lawyer.

The more interesting set of questions about incorporation came from Justice John Paul Stevens, who asked repeatedly why the right should apply in exactly the same way to federal laws, on the one hand, and state laws, on the other. "Why does this incorporation have to be every bit as broad as the Second Amendment itself," he asked. He harkened back to the second Justice John M. Harlan's view that incorporated rights might impose different limits on the federal and state governments. Justice Harlan proffered this view repeatedly during his tenure, especially in obscenity cases. Courts, he argued, should treat federal speech restrictions less leniently than similar state restrictions. Federal laws apply nationwide and thus inhibit experimentation, whereas state laws impact a smaller population. The federal government is also one of limited powers, so some issues aren't appropriate for national regulation even if they are appropriate for state regulation.

Incongruent treatment of federal versus state laws never took off. Even since the mid-1950s, the Court has virtually ignored which level of government is behind a law restricting fundamental rights, be it speech, religion, or privacy. But the question is a good one. Should all levels of government be treated the same? Aren't there institutional differences between different governmental actors that should be accounted for in constitutional jurisprudence? The last time the Court considered this question was in the context of affirmative action. There, the Court held in Adarand Constructors v. Pena that federal and state laws should be treated exactly the same.

In some empirical studies of constitutional law decisionmaking, I found that federal courts often treat state and local laws differently than federal laws. In a large study of every federal decision applying strict scrutiny over a fourteen year period, I found that the best predictor of whether a law would survive that demanding standard was the identity of the governmental actor behind the challenged law. Federal laws survived far more often than state or local laws, even though the courts say they are applying the same standard. The effect is especially pronounced in free speech cases. A separate study I did of core free speech cases found that federal laws survived in over 55% of the cases, state laws about 24%, and local laws only 3%.

Note that my findings were precisely the opposite of what Justice Harlan suggested. Courts appear to be more hostile to state and especially local laws than they are to federal laws. There may be good reasons for this pattern. Federal laws are usually vetted by many different interest groups, congressmen have large staffs with good lawyers, and every law must satisfy a heterogeneous national constituency. State laws, and especially local ones, often are enacted without any vetting by interest groups and lawyers, and the demographics are often homogenous rather than diverse. If that is right, then Justice Stevens' proposal about the Second Amendment had it backwards. Courts should be more skeptical of state and local gun laws, not more deferential to them.

So gun rights advocates are likely going to win on incorporation.

Then why do I still say that gun control advocates are also seemed to be big winners?

[Part II of  "Supersizing the Second Amendment?" was subsequently published here. Image via barjack.]

It appears, according to early reports, that a majority of the Supreme Court is set to ensure that an individual right to possess a gun is also protected against state action. SCOTUSblog's Lyle Denniston reports, "The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment's guarantee of ‘due process,' since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge."

The Associated Press's Mark Sherman also reported that the high court "appeared willing Tuesday to say that the Constitution's right to possess guns limits state and local regulation of firearms."

In McDonald v. City of Chicago, the justices are weighing whether to expand its 2008 ruling in District of Columbia v. Heller to strike Chicago's ban on handguns, which has been in place for decades. In Heller, the Supreme Court invalidated a federal gun regulation, finding that the Second Amendment does provide a personal right to possess a firearm. Specifically, in McDonald, the justices must now decide if and how protection of that right should be applied to the states. An attorney representing gun rights activists, Alan Gura, tried to encourage the justices to incorporate the Second Amendment through the Constitution's privileges or immunities clause. But, Denniston wrote that Gura's argument collapsed. Denniston noted that both Chief Justice John Roberts and Justice Antonin Scalia, both in the Heller majority, quickly dismissed the privilege or immunities argument. Instead, the justices maintained that incorporation of the Second Amendment would likely occur through the 14th Amendment's "due process" clause.

For expert analysis of the issues involved in McDonald see a guest post from Harvard Law School Professor Mark Tushnet here and one from Chapman University School of Law Professor Lawrence Rosenthal here. Oral argument transcript is available here. 

McDonald v. City of Chicago puts the Court's conservatives to a choice: Guns or federalism? Today's conservatives say that the Constitution makes both of them important but so far they haven't come up with a decent account of why one or the other should prevail, and I don't think they can.

The Rehnquist Court engaged in a modest "Federalism Revolution," and some conservative scholars were annoyed when the Court went with drug laws instead of federalism in upholding the national ban on the use of marijuana for medical purposes in Gonzales v. Raich. These cases might be described as dealing with national power exercised by Congress, and of course no national statute is involved in McDonald. But when the Court has discussed each of the constitutional provisions available as a basis for striking the Chicago ordinance down, it has noted their implications for federalism. In the Slaughterhouse Cases, the Court rejected an expansive interpretation of the Privileges or Immunities Clause - the one some conservatives are asking the Court to adopt in McDonald - because, it said, such an interpretation would authorize Congress to use the Fourteenth Amendment's fifth section to enforce a new and large set of rights. And, Justice Potter Stewart once described the Due Process Clause as part of a vast expansion of national power - legislative and judicial - during Reconstruction.

Were conservatives truly concerned about federalism, they might want to think twice about their position in McDonald. Winning the case, particularly on Privileges or Immunities grounds, would give Congress a lot more power than they think it ought to have. And it should be obvious, although it hasn't been a major part of the discussion of McDonald that striking down the Chicago ordinance is an example of judicial activism as conservatives usually define it when questioning Supreme Court nominees. (Saying that we shouldn't worry about expanding congressional power by expanding the Fourteenth Amendment because the Court is always ready to strike down congressional statutes on federalism grounds simply reinforces the conclusion that McDonald will expand judicial power - and betrays an odd confidence, from conservatives, in the courts.)

Another definition of activism is tied to Chief Justice Roberts's silly balls-and-strikes metaphor. That metaphor makes the modest sense it does if conservatives mean that judges should be activist and strike statutes down when they really do violate the Constitution, and should be restrained and uphold statutes when they don't. But the very fact that there's a fair amount of disagreement among conservatives about whether the Chicago ordinance is unconstitutional because it violates the Privileges or Immunities Clause or because it violates the Second Amendment as incorporated through the Due Process Clause shows that the Court's not going to be simply calling balls and strikes. Think of how the problem might be posed for two umpires. Both say that the pitch was a strike, but one says that it was a strike because the ball was in the strike zone when it crossed the front edge of the plate and the other says that it was a strike because the ball was in the strike zone when it passed the back edge of the plate into the catcher's mitt. The balls-and-strikes metaphor is supposed to show that judges actually don't exercise judgment when they interpret the Constitution. But the positions urged on the Court by conservatives in McDonald show that judgment can't be avoided.

The widespread judgment - which I share - that the Court will invalidate Chicago's gun control ordinance is interesting because it shows that everyone seems to agree that for conservatives federalism plays second fiddle to substantive concerns. Most conservatives will approve that invalidation if it occurs and will condemn the Court's failure to invalidate it if, surprisingly, the Court does not do so. That, I suggest, sheds some light on what contemporary constitutional conservatism is - a "theory," or more accurately a set of attitudes, about what good public policy is, masquerading as something else. So, when Republicans in Congress say that federalism somehow stands in the way of adopting health care reform (because it lies outside the powers granted to Congress and therefore reserved to the states), we ought to be pretty suspicious.

Throughout constitutional history federalism has been a mask for substantive policy concerns, and it still is. Conservatives like federalism when they can say it prevents the national government from reforming health care. They don't like it when it prevents the government from telling states to keep their hands off regulating businesses whose products harm consumers. They like federalism when it lets each state choose how many guns a person can buy each month. They don't like it when it lets cities choose to restrict gun ownership. The conservative choice of guns over federalism isn't surprising, but it does tell us something about conservatives who invoke federalism to oppose other national initiatives: They don't like the initiatives on policy grounds, and they're hoking up the federalism argument because they think it will play better with the public.