ACSBlog

  • April 7, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Adam Winkler, ACS Board Member and Professor of Law, UCLA School of Law

    One might think that the Second Amendment has never been more important to constitutional law. In the past decade, the Supreme Court for the first time held unambiguously that the Second Amendment guaranteed an individual’s right to have guns and we have seen hundreds of Second Amendment cases arise in the lower federal courts. The provision, which was for decades legally moribund, has been brought to life. That is why it may be especially surprising to realize that the Second Amendment is, in fact, becoming increasingly irrelevant. And the reasons why tell us something about the nature of constitutional law and the relative importance of political mobilization as compared to legal mobilizations.

    Of course, the Second Amendment is a potent tool of political rhetoric; elected officials will continue to invoke it to justify permissive gun laws. In that sense, the Second Amendment is not irrelevant as a matter of politics. Yet, the story is much different if we look at the Second Amendment as a matter of constitutional law. One of the central purposes of a constitutional provision is to shape the law of the nation, separating out valid laws from invalid ones. Today, however, the Second Amendment already has little legal impact – and it is likely to become even less impactful over the next decade.

    Consider perhaps the most important, cutting-edge Second Amendment question currently pending in the federal courts: discretionary permitting for concealed carry. This is an important doctrinal question, but one with a limited impact. Since the mid-1980s, a wave of reforms has swept the nation and now less than 10 states have discretionary permitting; the vast majority have nondiscretionary permitting and many states are moving to unrestricted carry, in which no permit is required. Even if the courts were to hold discretionary permitting laws to violate the Second Amendment, only a handful of states would be affected.

    And the impact looks likely to get even smaller over time. The political Second Amendment is leading towards reforms that would effectively end discretionary permitting. A proposed “national reciprocity” law, which is the NRA’s highest legislative priority and likely to be considered by Congress soon, could make it lawful for a resident of a discretionary permitting state to obtain a permit to carry from a permissive state like Utah, which does not require residency, and carry his or her gun at home. If that law passes, the constitutional debate over discretionary permitting becomes mostly meaningless. Whatever the courts say about discretionary permitting will not have much, if any, impact on the law on the ground.

    At least for the foreseeable future, we are likely to continue to see the political Second Amendment outpacing the legal Second Amendment on a host of issues. For advocates of gun control, this is a troubling development. They are winning in the courts, as nearly all gun control laws have been upheld under the Second Amendment. The opponents of gun control are nonetheless winning in the state and federal legislatures. Those political victories are proving to be far more important than judicial interpretations of the Second Amendment. That legislative success is a function of political mobilization – and highlights to gun control advocates how they must direct their activities. Winning broader political support for gun control will likely have a more profound impact on the law than any Supreme Court decision on the Second Amendment.

  • April 7, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, and affiliated faculty in political science, Indiana University Bloomington

    Going back at least to 1977, majorities of Americans have agreed that gays and lesbians “should … have equal rights in terms of job opportunities.”  The number hit 89 percent in 2004. Gallup apparently stopped asking the question in 2008, perhaps because the social consensus was so overwhelming that there was nothing useful to be learned from further polling.

    If American government operated the way civics books tell us it does, Congress, acting on such an overwhelming public preference, would long ago have enacted federal legislation outlawing employment discrimination against gays and lesbians. 

    But Congress does not work this way. Constituent preferences do not always get translated into policy. For example, Congress has shown a longstanding and “persistent bias against constituent will on LGB rights,” and “Republicans consistently oppose” such rights “regardless of constituent preferences.” Legislators also know most people don’t pay much attention (except in the most extraordinary situations, such as Ryan/Trumpcare) to what Congress does or does not do. And as Ilya Somin has been documenting for years, too many Americans are ignorant about politics and public affairs. 

    Moreover, Congress is broken. Partisan gerrymandering subverts principles of fair representation. And the current Republican majority is an “insurgent outlier” that is incapable of governing

  • April 7, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Jamal Greene, ACS Board of Academic Advisers Member and Dwight Professor of Law, Columbia Law School

    The election of Donald Trump as president represented a failure of American politics. No healthy political culture could have produced his presidency. What is less clear, and what I wish to address here, is whether Trump’s election also represented a failure of the U.S. Constitution. Do our constitutional arrangements predict just the kind of political failure that materialized in November 2016? If so, does that mean that the long-term remedy for that failure lies in constitutional reform? Does our constitutional fate, in other words, determine our political fate?

    Trump’s election has many causes, some of which are clearly contingent. It is easy to imagine Hillary Clinton winning an election held one week later, say, or two weeks earlier. And so the question that interests me arises from the possibility of Trump’s being elected rather than the fact of his election itself. The question does not, moreover, depend on Trump’s particular cocktail of policy interests (such as they are). Trump’s presidency is a crisis not because of his policy positions but because of his corruption, his infantile temperament, his dangerous self-obsession, his sexism and sympathy to white nationalism, his indifference to the truth and his fundamental indecency. A leftist version of Trump is imaginable and, in my view, equally frightening.

    The set of conditions that create the possibility of a Trump or Trump-like presidency are many and are contestable. The umbrella term I will place over at least a subset of those conditions is one I borrow from economics: disintermediation. Disintermediation is what it sounds like: cutting out the middle person, typically from a supply chain. Intermediaries such as distributors or brokers connect sellers to buyers. This is easy to see in a commercial market, and it is equally easy to see how technological change can reduce the need for intermediaries. Amazon is a low-cost means of connecting buyers to sellers. Trulia connects home buyers to sellers without the need for real estate brokers. But disintermediation also occurs in political and information markets, as the Internet and social media platforms diminish the need for traditional information brokers such as major media outlets.

  • April 7, 2017
    Guest Post

    *This piece originally appeared on Chicago-Kent 's ISCOTUS now blog.

    by Carolyn Shapiro, Associate Professor of Law, Co-Director, Institute on the Supreme Court of the United States (ISCOTUS), IIT Chicago-Kent College of Law

    Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Thursday, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I am not alone in thinking about unintended consequences here. Nate Silver of 538.com has an extensive piece about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

    As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

    In contrast, the Democratic nominees during this timeframe

  • April 7, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Neil S. Siegel, ACS Board of Academic Advisers Member and David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

    Some questions in American law and politics are timeless, but at certain historical moments asking them is especially timely.

    The improbable election of Donald Trump resulted almost immediately in widespread protests  around the nation. His victory subsequently inspired letters condemning his conduct and that of certain of his executive branch nominees; a sit-in by the NAACP at the state office of one of those nominees; boycotts of his Inauguration by many Democratic members of Congress; more protests and violence in the capital on Inauguration Day; and a Women’s March the next day that drew large crowds. Trump’s approval rating upon taking office was the lowest for any incoming president over the past four decades. Protests of his presidency and angry town hall meetings hosted by Republican politicians have since become commonplace.

    Those responses are no doubt attributable in part to disagreements with what Trump and congressional Republicans promised they would do and are doing. It does not appear, however, that such responses reflect only substantive disagreement. There is also widespread frustration and anger that national political institutions have failed the majority of Americans—that unified Republican government will mean great changes in policy and tone that most Americans did not vote for and do not want. Thus the signs at the Women’s March that “he lost the popular vote” and the denunciations of the “fucking Electoral College.” Thus the debate that will not end over the relative sizes of the crowds at Trump’s Inauguration and at the Women’s March, a contest that appears to be a proxy war for which side won the election in the numerical, democratic sense, as opposed to the technical, legal sense.

    What is one to make of Americans who display such signs, or condemn the Electoral College, or mock the size of the crowd on Inauguration Day? Those Americans appear to be lodging a process objection, in addition to a substance objection. It is democratically (as opposed to legally) illegitimate, they insist, for the electoral process to result in the election of officials who generate policy outcomes that do not reflect majority will in the nation.