The Volokh Conspiracy

A new 4-part miniseries, CONSTITUTION USA with Peter Sagal premiers tonight on PBS (check your local listings).  Here is the preview of tonight’s episode on Federalism:

Watch A More Perfect Union – Preview on PBS. See more from Constitution USA with Peter Sagal.

Last summer I was flown to O’Hare, where Sagal picked me up to drive 90 minutes to an old barn in DeKalb County that was chosen to replicate the setting of Roscoe Filburn’s farm, in Wickard v. Filburn. Known best for moderating the NPR show, “Wait, Wait, Don’t Tell Me,” he is a fascinating character who told me about his career as a screen writer. We filmed my interview on a very hot day in the open barn with each of us sitting on our own bale of hay.  By the time Sagal interviewed me, he had done lots of interviews and, judging by their questions, he and his producer clearly knew lots about the Constitution.  He began the interview, “So, Roscoe Filburn had a farm...” and I then interjected “E – I – E -I – O.” When I attended the sneak preview at the Capital Visitors Center recently, the producer told me that he thought at the time that this was a good sign. Actually, the interview was a hoot. I don’t know how much of my interview will be included, but I am told I appear in tonight’s premier episode on Federalism.  Here is a short clip:

Watch Randy Barnett on Federalism on PBS. See more from Constitution USA with Peter Sagal.

 I also don’t know how balanced the series will be.  The two principal consultants are Penn historian Richard Beeman (at the preview, he took a gratuitous shot at the Tea Party) and Yale law professor Akhil Amar. But those who were interviewed are a diverse lot, including P.J. O’Rourke on big government, Notre Dame law prof Rick Garnett on the separation of church and state and our own Eugene Volokh on the First Amendment:

Watch What IS freedom of speech? on PBS. See more from Constitution USA with Peter Sagal.

 At the preview event, Sagal volunteered to the audience that he changed his mind about the constitutional protection of private property after filming the segment on the Kelo case, that will appear in the second episode.

Watch Eminent Domain Case: How Can You Take My House? on PBS. See more from Constitution USA with Peter Sagal.

This afternoon, I return to DC from London where I spoke to the conference of the Liberty League on Sunday.  It was a remarkable group of student and other attendees.  It feels odd to be here on the day that Margaret Thatcher died.  Last night I attended a performance of The Audience with the marvelous Helen Mirren as Queen Elizabeth.  The play depicts the weekly audiences she holds with the Prime Minister, twelve in all so far.  It was a wonderful performance, if very mildly left of center as may be the Queen herself for all I know.  Madame Thatcher was not portrayed entirely sympathetically, though neither were any of the PM’s, with the possible exception of the Queen’s favorite, Edward Heath Harold Wilson.  For some reason, Peter Morgan, the author — who opened last night’s performance with a short respectful notice of Thatcher’s passing — chose not to represent Tony Blair at all among the PMs who were portrayed, though several caustic remarks about him were offered during the play.

Today, I remember another much-maligned but now nearly forgotten politician, Salmon P. Chase, as my paper on Chase just appeared in the Case Western Law Review.  You can read it here.   Here is the abstract and table of contents:

The name Salmon P. Chase is barely known and his career is largely forgotten. In this Article, I seek to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why his is a career worth both remembering and honoring, I offer some possible reasons why his remarkable achievements have generally unremembered today.

Contents

Introduction: Constitutional Abolitionism.............................654

I. Chase’s Rise to the Chief Justiceship ......................................656

A. Chase’s Early Years........................................................................ 656

B. Chase as an Antislavery Lawyer ...............................................659

C. Chase as an Antislavery Political Leader..............................668

II. The Chief Justiceship of Salmon P. Chase ..........................676

A. Chase’s Duties as Chief Justice..................................................676

B. Chase’s Opinions on Reconstruction.......................................677

1. In re Turner............................................................................................677

2. Texas v. White .......................................................................................679

C. Chase on the Enumerated Powers of Congress.....................683

1. United States v. Dewitt.........................................................................683

2. The Legal Tender Cases........................................................................687

D. Chase on the Privileges and Immunities of Citizens
of the United States..............................................................................694

III. Why Has Chase’s Career Been Forgotten? ..........................697

Conclusion ...............................................................................................701

Over on Bench Memos Ed Whelan asks some questions.

QUESTION:  So, Randy and Jonathan, do you agree with your co-signatory Ilya Somin that if DOMA is invalidated on federalism grounds, a couple that enters into a lawful same-sex marriage in one state will be entitled to receive federal marriage benefits when they move to a state that does not recognize same-sex marriages? Do you agree, in other words, that the federalism argument that you’re advancing against DOMA would have the federalism-defeating effect of nationalizing federal marriage benefits for same-sex marriages?

ANSWER:   Ed, thanks for asking for our views on this question.  Jonathan, and also Dale, can speak for themselves, but I do not agree with Ilya about this, for the reason you intimate.  I agree with you here when you say “I doubt that Somin is actually correct on this point (which he merely asserts).”  As you know, I often agree with you, as I did about the standing issue with respect to Proposition 8.  But this provides me the opportunity to stress that the signatories of the federalism scholars brief hold a variety of views on the Constitution and federalism in general, and on same-sex marriage in particular.  What we all agree about is that Section 3 of DOMA — as drafted — is unconstitutional for the reasons we expressed in our brief, which we all actively participated in drafting.   No doubt there are other issues like this one on which we will disagree.

QUESTION:  Or do you agree with SSM supporter Noah Feldman that a ruling against DOMA on federalism grounds would create “legal chaos” and “nightmarish barrage of new litigation”?

ANSWER:  I do not agree about with Noah Feldman about this.  Your own position contemplates the bifurcation of state marriage regulations and federal benefits, which you apparently do not view as “legal chaos.”  The only question is when and how that bifurcation occurs.  Feldman’s position is really that, to avoid “legal chaos,” we need a national definition of marriage for all purposes that would supplant 50-state regulation.  Do you agree with Feldman about this?  (I think I already know the answer.)   Federalism can be messy, requiring common law choice-of-law doctrines to decide which law governs when more than one state’s laws may govern.  This is one reason why constitutional scholars like Erwin Chemerinsky and Noah Feldman hold no brief for federalism on this issue, as on others.

QUESTION:  Or do you have some other position? If so, please explain what it is.

ANSWER:  I think the federal benefits can be limited to the marriage definition governing the state of domicile, along with whether the domiciliary state gives full faith and credit to the same-sex marriages of other states, which it is  free to do under Section 2 of DOMA.   There is nothing particularly outlandish about this.

QUESTION:  Or do you now recognize that the federalism argument against DOMA is hooey?

ANSWER:  Not at all.  Again, choice of law is a normal issue that arises within a federal system.  We must now deal with 50 states, each with their own laws governing such fundamental issues as murder, rape, armed robbery, welfare benefits and, yes, family law and marriage.  Those of us who believe in federalism think that its costs are more than outweighed by its benefits.

In oral argument yesterday, the Chief Justice asked Solicitor General Verrilli what Ed Whelan on Bench Memos thought was a killer question:

CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say “marriage” in Federal law, we mean committed same-sex couples as well [i.e., whether or not married under state law], and that could apply across the board.

Or do you think that they couldn’t do that?

GENERAL VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn’t — you don’t think it would raise a federalism problem either, do you?

GENERAL VERRILLI: I don’t think it would raise a federalism problem.

Writes Ed:  “But it can’t be the case that a federal definition of marriage for purposes of federalism law presents a federalism problem under DOMA but not under the Chief’s hypothetical.”

I think Ed is right about this, but it is the Solicitor General who is wrong.  Congress no more has the power to expand the definition of marriage than it has to contract it.  This is because defining marriage — like defining property — is a traditional function of the states.  Consider how Paul Clement opened his argument:

I would submit the basic principles of federalism suggest that as long as the Federal Government defines those terms solely for purposes of Federal law, that the Federal Government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute.

This is wrong.  If Paul is right, then one can be married under federal law and unmarried under state law.  Imagine how this would work — and then imagine the reaction of advocates of “traditional marriage.”  A Democratic Congress passes the “Marriage Equity Act” that establishes “for purposes of federal law” that “marriage” can be either same sex or opposite sex.  This means that, as U.S. citizens, same sex couples would be married in every state of the union under federal law, including in states that did not recognize same-sex marriage. Would this not interfere with the power of states to preserve traditional marriage? If the answer is not obvious, then imagine the federal government issues “federal marriage certificates” to same-sex couples to be used when dealing with, say, the IRS or the Social Security Administration.  If it has the power “to adopt a constitutionally permissible definition,” then for administrative convenience it certainly ought to be able to issue federal marriage certificates along with federal passports.  Now, do you suppose that defenders of traditional marriage might have a “federalism problem” with this law?  And do you think they would be mollified by the response that, “hey, these folks are still unmarried under state law, so what’s your beef”?

In contrast with the Solicitor General, after an initial reluctance to commit to a position, Ms. Windsor’s attorney, Roberta Kaplan, got the answer right:

MS. KAPLAN: I’m not sure that the Federal Government — this answers your question, Justice Scalia — I’m not sure the Federal Government can create a new Federal marriage that would be some kind of marriage that States don’t permit.

Why not?  There is a one-word answer: Federalism.   But then Justice Alito immediately interjected this:

JUSTICE ALITO: Well, let me get to the question I asked Mr. Clement. It just gets rid of the word “marriage,” takes it out of the U.S. Code completely. Substitutes something else, and defines it as same-sex — to include same-sex couples. Surely it could do that.
MS. KAPLAN: Yes. That would not be based on the State’s -­
JUSTICE ALITO: So it’s just the word “marriage”? And it’s just the fact that they use this term “marriage”?

Isn’t that what we have been told that this whole dispute has been about?  How the term “marriage” is used?  Proposition 8, for example, did not seek to undo California’s “civil union” law, which carries with it most, if not all, the privileges of “marriage” without calling it such. This is not to exalt form over substance.  “Marriage” is a term of approval; the denial of the label “marriage” to same-sex couples seems to be an act of disapproval.  (Whether that legislative refusal to extend approval to same-sex couples violates the Equal Protection Clause is a separate question.)

But here is the thing:  If you accept Chief Justice Roberts’ hypothetical statute as constitutional, then you could be “married” under federal law and “unmarried” under state law, and that is crazy.  It would be like saying you “own” your home under the property law of California, but you don’t “own” your home “for purposes of federal law.”  Such a dual property system would undermine the institution of property, and the traditional power of States to define property, every bit as much as allowing a dual system of state and federal marriage undermines the institution of marriage, and the traditional power of states to regulate marriage.

That Roberts could get the Obama administration’s Solicitor General (or any Solicitor General of the United States) to deny that this assertion of a federal power would pose a “federalism problem” was not much of a challenge.  That is what U.S. Solicitor Generals are paid to do.  But, as we already saw, Ms. Kaplan’s answer was better.  As she elaborated:

MS. KAPLAN: Well, that’s what the Federal Government has always chosen to do. And that’s the way the Federal law is structured, and it’s always been structured for 200 years based on the State police power to define who’s married. The Federal Government I presume could decide to change that if it wanted, and somehow, it would be very strange for all 1,100 laws, but for certain programs — you have different requirements other than marriage, and that would be constitutional or unconstitutional depending on the distinction.

But the truth is that, as litigators, both the Solicitor General and Ms. Kaplan’s mission yesterday was to get the Court to accept their Equal Protection claims, not make a federalism objection to the power of Congress to enact DOMA.  That is why we filed our amicus brief.  It is to Ms. Kaplan’s credit as an advocate that she eventually offered the correct reply to the Chief Justice’s hypothetical on the fly.

So Chief Justice Roberts did indeed ask a helpful and clarifying question to which Michael Greve’s slogan of “one sovereign one problem” provides the answer:  there is a serious federalism problem if you can be married for purposes of federal law but not for purposes of state law or vice versa.  “Marriage” ought to be an on or off status.  So you must choose.  Under our system of federalism, which “sovereign” has the power to define marriage?  The correct answer is the traditional one: the States.

The power to define marriage is not an enumerated power.  And, as we explain in our brief, the blanket definition offered in Section 3 of DOMA was obviously not “plainly adapted” to any enumerated power — or, put another way, it was not “really calculated to effect any of the objects intrusted to the [federal] Government” — as McCulloch requires for an incidental power claimed under the Necessary and Proper Clause.  Contrary to what Nick Rosenkranz intimated here, this requirement of McCulloch has never been formally repudiated by the Court, and the canonical “plainly adapted” standard is routinely quoted:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

In Section 3 of DOMA, Congress asserted a power over marriage that it does not have.

Good to know our betters know what’s best for us:

Question:  From whom or what is Section 3 of DOMA defending traditional marriage?

Honest answer:  From states who have recognized same sex marriage.

See the federalism problem yet?

In his post Nick again asserts that Congress has an power to define terms for purposes of federal law:  ”If DOMA is unconstitutional, it is because this particular federal definition of “marriage” offends some substantive constitutional provision. But that has nothing to do with federalism.”  But there is no enumerated Definitions Power in the Constitution.  Any definition of terms must be part of Congress’s: “power to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers.  Whether any particular definition results in a claim of power that improperly extends beyond Congress’s power to interfere with the reserved powers of the states is a matter than needs to be considered statute by statute.  In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law.  Most definitions can easily be shown to be both necessary and proper to an enumerated power.

Nick asks, “So what is it that makes DOMA different? The fact that it applies to 1100 statutes, rather than just two?” Yes exactly.  It was indiscriminately adopted to apply to all statutes regardless of whether the definition was a necessary or proper means of executing any one of them, and regardless of whether it was a condition on federal spending.  And we know why. Because Congress was seeking to defend the traditional definition of marriage.  Hence the name: The Defense of Marriage Act.  But “the defense of marriage” is not among the purposes or “objects” for federal laws that are delegated by the Constitution to Congress.  Here is what John Marshall said about this possibility in McCulloch

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the [national] Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.  (bold and italics added)

With DOMA, Congress made no pretense of its “object:” defend traditional marriage.  This is an “object not intrusted to the [national] government.” And DOMA was hardly “really calculated to effect any of the objects intrusted to the [national] Government.”  It was not calculated at all!  That is why, as we stated in our brief, its across-the-board approach is distinct from a definition that was “really calculated to effect any of the objects” entrusted to it by the enumerated powers scheme.

Contrary to Nick, this case has everything to do with federalism, which is about “who decides.”  In our system, it is the states that historically have decided, which is to say defined, who is married and who is not.  The marriage power that was reserved to the states is a power of definition.  It is not an incidental power.  Rather, it is a great power that was not among those delegated to the United States.  If DOMA interferes with that power of states (as we allege in our brief) then it is unconstitutional on federalism grounds, regardless of whether “the law is not prohibited” by the Due Process or Equal Protection Clauses.  Given that persons would be defined as married by state law, but unmarried according to federal law (without a showing of necessity and propriety for carrying into execution an identifiable federal  power, such as the power over immigration), this is a clear interference with the states reserved power to define marriage.  Moreover, as we also note, under the lowest level of Equal Protection scrutiny, Congress must identify a legitimate interest in defense of any discriminatory statute, which in this case would be a legitimate federal interest.  In this case the preservation of traditional marriage is not a federal interest at all.

Could Congress use its spending power to accomplish this end in a more “calculated” fashion that does not interfere with the operation of state marriage law?  Perhaps.  Did it do so with DOMA?   We think not.

I don’t actually know if this use of an unenumerated “Definitions Power” in so blanket a fashion to effectuate an object not entrusted to Congress is literally unprecedented, but it could be.  It seems to us like another end run around the limits on the powers of Congress.

Ed Whelan has a post today on Bench Memos rejecting the argument made by Walter Dellinger (and endorsed to some degree by Michael McConnell) in an amicus brief that proponents of Proposition 8 defining marriage as limited to a man and wife lack standing to defend the proposition they sponsored and campaigned successfully to see adopted by the voters of California.  Although I disagree with both Ed and my colleague Nick Rosenkranz about whether Congress has a general Definitions Power that enables it to define any term “for purposes of [any and all] federal law” regardless of whether such a definition improperly invades the traditional province of the states, I agree with Ed here. Walter’s brief is forceful, as is to be expected from him, and from my Georgetown colleague Irv Gornstein who is counsel of record, but it fails to come to grips with a fundamental issue.  This is an issue that Ed glosses over in his more technical reply to Walter, but which is strongly emphasized by Ed Meese and John Eastman in their amicus brief to which Ed links. The principle is this:  In some states, the people — or more accurately the voters on their behalf — have a constitutional power to enact laws and amend the state constitution by popular initiative or referenda.  This is a power specifically intended to be used when the purported “agents” of the people in any branch of state government are not doing what the voters want, whether this be to make new or enforce existing law.  In these states, in addition to the general power to defeat current state office holders, or impeach state supreme court justices, citizens have the added power to put constraints on these government actors by the initiative process. Proposition 8 was a specific example of the use of this power to contest the exercise of judgment of the California Supreme Court who had held that a statute defining marriage as between a man and a woman was unconstitutional under the California Constitution. So the voters got a chance to change the California constitution and correct the justices without having to defeat them in a retention election.  In other words, California’s constitution gives the people an additional and direct remedy against their ‘faithless agents” in government aimed at specific government actions, rather than the indirect means of removing their agents from office. Given this structural protection afforded the citizens of California, does it make any sense to limit the standing to defend the laws or constitutional amendments adopted by this means to the very agencies of government that this power exists to correct or constrain?  Here is the relevant portion of the Meese and Eastman brief quoting from Perry v. Brown, 265 P.3d 1002 (Cal. 2011), the California Supreme Court case affirming the standing of initiative proponents:

The initiative process was added to the state constitution in 1911 to provide a mechanism for the exercise of that inherent power by ―afford[ing] the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions. Id. at 1016.  Because ―[t]he primary purpose of the initiative was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt, id., the Court recognized the ―distinct role‖ that California law recognizes for the official proponents of an initiative ―with regard to the initiative measure the proponents have sponsored, id. at 1017-18. It was for this reason that ―decisions of both [the California Supreme Court] and the Courts of Appeal have repeatedly and uniformly permitted the official proponents of initiative measures to participate as parties—either as interveners or as real parties in interest—in both preelection and postelection litigation challenging the initiative measure they have sponsored. Id. at 1018. And this intervention had been routinely permitted, the Court noted, ―whether or not the Attorney General or other public officials were also defending the challenged initiative measure in the judicial proceeding in question. Id. The Court then described the number of such cases in which such intervention was permitted as ―legion. Id. And the Court specifically noted that initiative proponents had been permitted not just to appear as formal parties but ―to appeal from an adverse judgment. Id. at 1019 (citing Amwest Surety Ins. Co. v. Wilson, 906 P.2d 1112, 1116 (Cal. 1995); 20th Century Ins. Co. v. Garamendi, 878 P.2d 566, 598 (Cal. 1994); People ex rel. Deukmejian v. County of Mendocino, 683 P.2d 1150, 1152 (Cal. 1984); Simac Design, Inc. v. Alciati, 92 Cal.App.3d 146, 153 (Cal.Ct.App. 1979)).

Among the Dellinger brief’s central claims is the lack of a limit to the power of states to authorize proponents of state referenda and initiatives to defend challenged enactments when state authorities refuse to do so.  But this rational for standing in popular sovereignty contains within it a principled limit, without any slippery slope to extending the power to citizens who have only a “general interest” in any state law:  standing should be extended to those who invested their time and energy into proposing popular initiatives when the state authorities refuse.  There is, therefore, a good structural basis both for the recognition of standing, as well as for limiting standing to just this sort of circumstance.

Standing doctrine is complex.  But here “first principles” of popular sovereignty suggest that measures enacted directly by voters deserve to be defended from constitutional challenge when the supposed “agents” of the people fail to do so. The fundamental misstep of the Dellinger brief is to stress “the states’s interest in defending initiatives.”  But it is the people’s interest, not the state’s, that is at issue here.  And the California Supreme Court seems to have gotten this point right. There should be no barrier based on standing to prevent the U.S. Supreme Court from reaching the merits of this constitutional challenge to Proposition 8.

Here is a new video promoting the Institute for Justice summer “boot camp” for freedom fighting law students:

Because I am facing a hard deadline for revisions for a second edition of Restoring the Lost Constitution, I have not been able to formulate a reply to the criticisms of the amicus brief I joined — along with co-bloggers Ilya, Jonathan and Dale — in which we contended that DOMA exceeded the enumerated powers of Congress to enact, and violated the Equal Protection Clause because it served no proper federal interest.  Happily, Duke law professor Ernie Young, the principal author of the brief, has formulated a reply.  Here it is:

Last week, I and several other federalism scholars filed an amicus brief in United States v. Windsor, arguing that the federal Defense of Marriage Act (DOMA) is unconstitutional on federalism grounds. Ed Whelan at National Review Online finds that argument “badly confused,” and Nick Rosenkranz on this blog agrees that the brief is “unsound.” Neither really addresses most of the actual arguments in the brief, and I can’t repeat all those arguments here. This post simply responds to the primary point that both Rosenkranz and Whelan raise, which is that Congress “obviously has the power to define the meaning of the terms that it uses in [its] enactments.” (Whelan).

To say something is “obvious” is not itself an argument, and one may well ask from what clause of the Constitution this definitional power derives. It is certainly not true that federal statues cannot operate without a definition of marriage; they did so before DOMA, and DOMA itself defines marriage only partially (by excluding the same-sex kind). Generally, federal law takes state law as it finds it with respect to basic terms like “property” or “contract,” and this is particularly true in the traditional state-law realm of domestic relations.

Congress can, of course, define terms where this is “necessary and proper” for “carrying into execution” its enumerated powers, and much of our brief is devoted to showing that DOMA cannot satisfy the various tests that the Court has developed in its Necessary and Proper Clause jurisprudence. Neither Whelan nor Rosenkranz pauses to consider those arguments, but they boil down to three points: (1) Defining marriage, in order to defend the traditional institution, is itself the primary objective of DOMA (hence the name); the definition is not “incidental” to the accomplishment of some other enumerated end, like preventing immigration fraud or conserving revenue. (2) Because DOMA applies in shotgun fashion to over 1,100 federal statutes, it is “plainly adapted” to none of them; Congress never considered, say, whether excluding same-sex couples would make ERISA run more smoothly. And (3) DOMA is not proper because it lacks any principle to limit its intrusion into the states’ core power to define familial status.

It is simply not true that the operation of DOMA is confined to federal law and institutions. Nowadays, federal and state law are pervasively intertwined: state officials must administer many federal programs, and state and federal money are typically commingled within them. Having two definitions of marriage operative within a state causes confusion and raises administrative costs for state governments, creates uncertainty for the same-sex couples who find themselves married for some purposes and unmarried for others, and blurs the lines of political accountability. Consider, for example, a same-sex spouse denied Medicaid benefits by a state official administering the federal program.

To see the harm that an unlimited federal definitional power would permit, think back to an era when much of the country disapproved of no-fault divorce but a few states had begun to experiment with the concept. Suppose Congress passed a statute refusing to recognize—for purposes of federal law—any divorce where one party had not made a showing of fault. The couple would continue to be treated as married for purposes of federal income tax, healthcare programs, and veteran’s benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law. Worse, if Whelan and Rosenkranz are right, then Congress could cite the uniform administration of federal benefit programs as a pretext for promulgating a comprehensive federal family law code to be used for all federal purposes.

That is not our federal system. But suppose we are wrong, and that Congress is not generally obligated to employ state-law definitions of family status. Professor Rosenkranz’s (and Mr. Whelan’s) arguments do not even address the argument at the heart of our brief. The brief begins by arguing not simply that Congress lacks power to have a definition of marriage for purposes of its own statutes, but rather that Congress may not defend that definition against an equal protection challenge by asserting interests that fall outside its enumerated powers. In McCulloch, Chief Justice Marshall required not only that federal interests or “ends” be “legitimate,” but also that they be “within the scope of the Constitution.” In the immigration statutes, for instance, Congress defines marriage to exclude those unions entered into for the purposes of securing admission to the country, and it could defend that definition in terms of its interest in preventing immigration fraud—an interest that arises within the scope of Congress’s enumerated powers. What Congress may not do, however, is defend DOMA in terms of its interest in upholding a traditional conception of marriage, because Congress has no such interest. That interest, and its protection, is reserved to the States under their traditional police powers.

The debate about same-sex marriage is a fraught one, and the position DOMA takes may be congenial to many conservatives. But if we are serious about federalism, then we have to worry about who decides as well as what they decide. The genius of our system is to allow individual states to decide such difficult and divisive questions for themselves.

I may have more thoughts on this when I come up for air, but I am reminded of a slogan I repeatedly used when litigating the Raich case:  ”federalism is not just for conservatives.” True, in Raich, we only got 3 votes from Chief Justice Rehnquist and from Justices O’Connor and Thomas.  But had the “left” side of the Court embraced federalism as these three did, the case would have come out the other way.  Perhaps the “progressive” justices will consider a federalism argument this time around, as I hope the more conservative justices decide to do.

Josh Blackman has posted here the excerpt from the transcript of second hour of Rand Paul’s filibuster floor speech in which he discusses Lysander Spooner, Lochner v. New York, Buchanan v. Warley, and the Presumption of Liberty:

Ours wasn’t perfect. Our founders allowed and left slavery to occur. Interestingly, if you read the Constitution, I think they were embarrassed by it. You know, the word “slave” doesn’t occur in our Constitution and, in fact, there were many writers, many abolitionist writers – there was a writer by the name of Lysander Spooner, who was an abolitionist, and he actually wrote about the unconstitutionality of slavery before the war. And, really, if you read the Constitution and you leave out or acknowledge that there is no word in there, slavery, and nothing that really says you have to be consigned to slavery, there are things in there that say you can’t be kept without being presented with charges. Habeas Corpus means “present the body.” In the old days in England and in different monarchies, they’d just snatch you up. If you were next in line to be king or they made you mad, they snatched you up and put you in the tower. And so they came up with the right of Habeas Corpus, you had to present the body, you had to say, he’s been arrested and these are the charges against him. We kind of have gotten, you know, to where there’s some concern in our country about that, but we had that right all along.

So Lysander Spooner wrote and said, well, you know, why shouldn’t a slave come forward and say, this guy’s keeping me, he’s telling me that I have to work for him, but I haven’t been charged with anything. What is my crime? Eventually one court case did come forward and it was ruled incorrectly. And I’m not sure how the arguments were, but in Dread Scott they ruled you can’t make the argument. But I don’t know if habeas corpus was part of that case or not but it should have been. What I’m trying to say, though, is that the rights of the Constitution, the rights of the individual that were enshrined in the Constitution are important things that democracies can’t overturn. So when you get to the Lochner case, the Lochner case in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone can’t deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him, among the other things I’m asking him today, to rethink the Lochner case. Because the Lochner case is really what precedes and what the – the case Buchanan v. Warley is predicated upon. Buchannan v. Worley is a case from 1917. Interestingly, it comes from my state, from Louisville, Ky. There’s a young African-American attorney by the name of William Warley. He’s a Republican, like most African-Americans were in Louisville in those days. He was the founder of the NAACP. And like most founders of the NAACP, a republican. And so what they do in 1914 is they sue because the Kentucky legislature, by majority rule, by Democratic action, passes a law saying a white person can’t sell to a black person in a white section of town or vice versa.

So this is the first case the NAACP brings up. Morefield story was the famous – I think he was the first President of the NAACP famous attorney. Him and an attorney by the name of, I think Clinton blankey. But they go forward with this case and they win the case. It actually passes overwhelmingly. But interestingly, this case to end Jim Crow is based on the Lochner decision. So those who don’t like the Lochner decision, I’d say, go back, we need to reassess Lochner In fact, there’s a good book by Bernstein from George Mason talking about rehabilitating Lochner. The thing is, is that with majority rule, if you say we’re going to give deference to majority rule or we’re going to have judicial restraint and we’re going to say, well, whatever the majority wants is fine, you set yourself up for a diminishment of rights.

I go back to the – the discussion of the Constitution limits power that is given to Congress but it doesn’t limit rights. The powers are enumerated, your rights are unenumerated. The powers given to the government are few and defined. The freedoms left to you are many and undefined. And that’s important. And what does this have to do with Lochner? The case in Lochner is whether a majority rule, a state legislature can take away your due process, your due process to contract. Can they take away your life and liberty without due process. And the court rules, no. I think it’s a wonderful decision. It expands the Fourth Amendment and says to the people that you have unenumerated rights.

Now, there’s some dissension on how we look at these cases, but when you go forward to Buchannan v. Worley, yes, the case about Jim Crow laws and housing segregation, one of the people who was going to dissent – and I think he thought better of it when he thought about he would be the first justice in probably 70-some-odd years to say that he believed in the Jim Crow laws and was upholding Jim Crow laws – was Oliver Wendell Holmes. He actually writes an opinion that has been found but was never presented to the court and he ended up voting to get rid of the Jim Crow laws. But the interesting thing is, he actually wrote an opinion in favor because he believed so strongly in majority rule.

I don’t think these questions – some may think these are idle questions. I don’t think it’s an idle question whether or not you have a democracy or a republic. I think that these questions from – that these questions from Lochner, from Buchanan v. Warley all the way to the present are important. Last year and the last couple years we had two cases on gun rights, the second amendment. These are called Heller and McDonald. Both of them I think can be seen as – once again an expansion of the Fourth Amendment to say, your privileges and immunities, which are part of the Fourth Amendment, include the Second Amendment and they include certain rights. In fact, I think any power or any right not given up to the government or limited by the enumerated powers is yours. So when they say the privileges and immunities of the Fourth Amendment, I believe that means everything else. What does that mean? It means I believe in a very circumscribed view for government.

Now, one of the side benefits of having a circumscribed view of the government would be a government that’s not allowed to do much wouldn’t get in many problems. For example, if your government wasn’t allowed to spend money that it didn’t – that it didn’t have or if your money wasn’t – your government wasn’t allowed to spend money on programs that were not enumerated as being within the purview of the federal government, you wouldn’t have these massive deficits. We would have never gotten in this fix if we believed in a republic and not a democracy.

Now what proof do I have that the current officials believe in democracy versus republic? When Obamacare came forward – you know, the – the comments from then-Speaker of the House Nancy Pelosi were, a majority passed this. You know? We passed this by a majority. It’s the law. Why would anybody question the Constitutionality? The President said the same thing. The President said, look, a majority passed this. What right has the court to overturn this?

The question has been written about by many I think brilliant scholars who have – have looked at the Constitution and looked at what it means. Some of this has to do with whether or not you presume liberty – Randy Barnett’s written about this, “Restoring the Constitution,” – whether you have a presumption of liberty or whether you have a presumption of Constitutionality. And that may sound a little esoteric. What does that mean? It’s whether or not when they pass a law up here, you just presume it’s fine because it’s the law and the judges should give deference to it because it was a law. So this is kind of confusing because you think, oh, I’m arguing for judicial activism. In a way, I kind of am. Because if the Congress usurps the Constitution, if the Congress takes away from your rights, the judges should stop them in their tracks. I’m not arguing for deference to the legislature. I’m arguing for deference to the Constitution.

And so I’m also arguing that there is a presumption of liberty. This goes back to the – the – the way we want to look at the Fourth Amendment. The Fourth Amendment says that we have unenumerated rights. It says that basically, you know, or – I guess by extension, when you go from the Fourth Amendment to the Ninth and Tenth Amendments is the best way to look at this. The Fourth Amendment talks about privileges and immunities and then when you look at what the Ninth and Tenth Amendments do, they say, you know, those powers not given to government, those freedoms you didn’t relinquish or those powers you didn’t give to the government are left to the states and the people respectively. And it says they’re not to be disparaged. I’ve always – always loved the way that was worded. Not to be disparaged. Not only is the federal government not to trample on your rights, they are not to be disparaged. But these rights are unlimited. They’re yours. You got them from your creator. These are natural born rights and no democracy should be able to take these away from you.

As I post this, Senator Paul has held the floor for 12 hours and 38 minutes.

UPDATE:  Senator Paul ends his filibuster at 12:40am, after 12 hours and 54 minutes.

I just uploaded to SSRN a paper, The Libertarian Middle Way, that will be the Afterword to a symposium on “Libertarianism and the Law” to be published in the Chapman Law Review.

Abstract: 
Libertarianism is sometimes portrayed as radical and even extreme. In this Aferword, I explain why libertarianism, though it may be radical, is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, both of these comprehensive approaches are recipes for societal conflict. And the legal institutions that are necessary to implement each vision must be highly intrusive and coercive. In contrast, libertarianism is far more modest: it stipulates only that individuals may do what they please with what is theirs, requiring a legal system merely to define the proper jurisdiction of each person over their rightfully acquired property. I explain how the basic insight of libertarianism is rooted in the spirit of toleration that was the classical liberal solution to the socially destructive religious wars. Like Westphalian political “sovereigns” who are to leave each other in peace and not to interfere with each other’s domestic affairs, classical liberalism posited the sovereignty of individuals to pursue the good life peacefully within their own jurisdictions, free from outside interference, provided they do not infringe upon the like jurisdictions of other sovereign individuals. I conclude by explaining how libertarianism contributes to the private law that defines the contours of these individual jurisdictions, and the public law that is supposed to confine government to its proper function of protecting the rights of persons better than they can protect themselves. Although many would prefer their own preferred visions of social justice or legal moralism (or both) to be imposed on everyone else, libertarianism represents an appealing “second best” or “middle way” alternative to having someone else’s “wrong” vision of social justice or of morality imposed upon them.

You can download it here.

For some unknown reason that SSRN cannot explain, my paper, The Gravitational Force of Originalism, that I will be presenting this week at the Fordham conference on “The New Originalism and Constitutional Law,” disappeared from SSRN shortly after I blogged about it.  Perhaps it was the “repellent force of living constitutionalism” that drove it from the interweb.  At any rate, here is the abstract:

ABSTRACT: In Part I of this essay, I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather then the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation.  In Part II, I then discuss how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision.

You can download the paper here.

Thanks to Orin for his thoughtful post.  I don’t want to offer a lengthy response, but simply clarify a few matters.

• I only singled out Orin in my post as evidence that the failure of most law professors to anticipate the Supreme Court’s sympathy for our arguments did not stem wholly from the ideological echo chamber in which most law professors reside.  Even some conservative law professors shared the conventional wisdom.  Orin and Charles Fried were probably the most prominent right-of-center law professors who publicly defended the constitutionality of the individual mandate, assuming one counts Fried as right-of-center.
• The ” symbolic federalism” concept to which Orin and Jack Balkin subscribe as a predictive matter is quite plausible and cannot, on the data, be lightly dismissed.  Still, I think the fact that 4 justices were willing to do something far beyond the symbolic is a signal of something else going on.  (The 4 liberal justices, of course, share the “anything goes that does not violate an express prohibition” gestalt of most law professors.)   And “symbolic federalism” cannot be the basis of constitutional litigation or of constitutional law; it is merely a predictive device.
• I was not criticizing anyone’s predictive powers or extolling mine. I never predicted publicly that we would win the case.  The Politico quoted me accurately.  Indeed, here is how I ended one of my stock speeches on the ACA challenge:  ”Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.”  Here is how I ended another: “I think there just may be five votes for the proposition that, because the people are still sovereign, economic mandates are simply not within the limited and enumerated powers of Congress.”  Here’s another from my debate with Tribe and Fried at HLS: “Are there five votes on the Supreme Court to extend Congress’s power to include the imposition of economic mandates?  Because Congress has never done anything like this before, the Court need strike down no other law ever enacted.  This makes a challenge to the insurance mandate more likely to succeed.  If the Act remains as unpopular as it is today, I think the Justices will be receptive to limiting the scope of Congress’s power under the Necessary and Proper Clause to go beyond the regulation of interstate commerce to regulate and prohibit intrastate activity.”  These are a long way from confident predictions of victory.
• None of my constitutional analysis here or elsewhere was predicated on such a prediction.  Instead it was formulated in light of the “this far and no farther” gestalt that made the “unprecedented” nature of the individual insurance mandate constitutionally salient (when others though that “unprecedented” was an irrelevant distraction).
• Orin may recall our exchanges here in which I sharply resisted the popular tendency among constitutional law professors to reduce constitutional law to a game of prognostication.  I don’t want to revert to that debate again, but I think he may be slipping back into that tendency so that, once again, we are talking past each other.
• The principal target of the last part of my essay are those law professors who framed the issue of the lawsuit as a stark choice between upholding the mandate, or return to the dark days of Lochner (which was also their reaction to Lopez and Morrison.)  I cite many such examples in my paper.  My thesis is that they have missed the existence of an alternative gestalt that is far less radical, and therefore far more likely to be followed:  ”this far and no farther (without a substantial justification that does not lead to a national police power in Congress).”
• I myself do not subscribe to the “this far and no farther...” gestalt as a normative matter. I favor a doctrine that would more closely resemble the “Lochner era” when it comes to holding Congress to its enumerated powers, and states to their police power, while preserving and expanding the Warren Court’s protecting civil rights and liberties.  But I do not pretend that my own views were shared by a majority of the Rehnquist Court, or now by a majority of the Roberts Court.
• Still, the “this far, and no farther...” gestalt is preferable from my standpoint to the “anything goes...” gestalt held by most other law professors and by four of the current Justices.

This morning, I did an hour-long talk show “Constitutionally Speaking” on New Hampshire Public Radio with University of Chicago law profesor Geoffrey Stone.  Naturally, the topic was the Second Amendment.  The focus of much of the discussion was the meaning of the Amendment, rather than its application to current gun control proposals, but we did get there too.  You can listen to the program here.

If you want even more, you can listen here to a 20 minute radio program I did yesterday on gun control and the Second Amendment.  The show is called “Fairness Radio,” a left-of-center, but very fair and balanced, interview program.  My interview starts at the 31:45 mark.