The Volokh Conspiracy

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

In 1917, the Supreme Court decided Buchanan v. Warley, holding that it was unconstitutional to ban blacks from buying property on blocks where mostly whites resided, and vice versa. Buchanan was, in my opinion, a very important case, but it has mostly languished in obscurity.

Last week, however, Senator Rand Paul talked about Buchanan on the Senate floor during his filibuster, sparking some curiosity about the case. I therefore decided it would be useful to post my 1998 Vanderbilt Law Review article on the case, which I believe is the most extensive existing treatment of Buchanan. Not surprisingly, I wouldn’t write the article precisely the same way now as I did then, and some of those changes are reflected in a later piece I co-authored with Ilya Somin for the Yale Law Journal and in my discussion of Buchanan in Rehabilitating Lochner. Still, if you’re curious about the case, the Vanderbilt article is very informative and would be the best place to start.

Attorney Ian Millhiser of the “liberal” Center for American Progress is quite agitated by Sen Paul’s speech yesterday, and not because he is concerned about potential abuses of executive authority. Rather, it’s because Paul had the temerity to refer favorably to Lochner. This provoked Millhiser’s response (h/t Alex Tabarrok), which is full of disingenuous statements:

“Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women ‘aren’t discriminated against anymore’, called Lochner an ‘abomination’ that ‘lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.’” Surely Millhiser is aware that (a) Bork’s basic outlook on constitutional law was majoritarian; (b) this perspective was inherited from pre-Brown Progressivism; (c) Bork was, like his Progressive forebears, especially disgusted by an invocation of the due process clauses for substantive purposes; (d) the so-called “right-wing” today contains majoritarian conservatives, natural rights libertarians, and everything in between; and (e) the supposed Bork remark re women (I haven’t researched it) is just a cheap shot that had nothing to do with anything.

In fact, and as I assume Millhiser knows, Bork is actually among the last people you’d ever expect to be favorably inclined to Lochner. Which is precisely why, to address another issue Millhiser raises, Lochner may have something to do with drone strikes: a consistent majoritarian is likely to be, well, consistent, and therefore think that any constraints on executive power have to come from the political process, not from the Constitution. And a consistent constitutionalist is likely to be consistent as well. One can argue that by reading certain rights out of the due process clause, and thus out of the Constitution, the left has tipped the balance toward the majoritarian side, which makes it more, not less, difficult to defend civil liberties. I’m not sure I fully endorse that line of causal reasoning, but there’s nothing especially mysterious about it.

“Not every workplace law was struck down during the so-called Lochner Era — the justices of that era sometimes valued sexism more than they valued exploiting workers, for example.” As Millhiser is no doubt aware, the Supreme Court upheld the vast majority of labor laws that came before it during the so-called Lochner era, including every maximum hours law other than the one at issue in Lochner. Most of these laws had nothing to do with women.

Moreover, as I document in great detail in Rehabilitating Lochner, the defense of sexist protective laws for women in that era ultimately came primarily from Progressives who opposed liberty of contract more generally, and opposition came primarily from those who generally supported liberty of contract. The only case to explicitly defend women’s right to equality in employment law until the 1960s was Adkins v. Children’s Hospital, a liberty of contract case much scorned by Progressives of the 1920s, and by the separate group of self-described Progressives today (who inaccurately assume that the Court’s invocation of women’s rights was disingenuous).

“In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism.” No, health laws were clearly within the police power, and the “toxic air” part would have been easily sufficient to justify a regulation even without the hours issue.

“Paul’s speech also includes a somewhat rambling attempt to claim that Lochner helped ‘end Jim Crow,’ a claim that would cause anyone with even a rudimentary understanding of civil rights history to scratch their head.” Paul, as Millhiser acknowledges in his link, was referring to Buchanan v. Warley. You can read my short essay on Buchanan here, but for these purposes I think it’s sufficient to note that W.E.B. Du Bois credited Buchanan with “the breaking the backbone of segregation,” and that Judge Leon Higginbotham, a historian of law and racism, stated that “Buchanan was of profound importance in applying a brake to decelerate what would have been run-away racism in the United States.” While there are certainly others who have denigrated Buchanan’s importance (or more often ignored it because it doesn’t fit the traditional narrative of the reactionary Lochner era Court), Paul was hardly making some wild, idiosyncratic claim.

Embedding the video isn’t working, so here’s a link to the relevant remarks (courtesy of Breitbart.com).

I haven’t had a chance to blog about this, but Sen. Paul and everyone else who complain that defining “due process” for a drone strike as review within the executive branch is completely contrary to what due process has meant throughout American history are correct, and it’s astounding (or maybe all too predictable) that so many critics of Bush Administration policies have been silent about this. UPDATE: Here’s the key point, courtesy of co-blogger Nick Rosenkranz: “As a matter of grammar and structure, the Due Process Clause … is, at least at its core, a conditional check on executive power …. The central function of the clause is to create a check on such deprivations …. Here the check is generally judicial. Due process generally cannot be purely intra-executive …. All executive power is vested in a single person, and so an intra-executive check on executive power is not really any check at all.”

Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval for tax or spending increases violates Article IV, sect. 4 of the U.S. Constitution, which provides: “The United States shall guarantee to every State a Republican Form of Government. . . .”

In federal district court, the Colorado Attorney General filed a motion to dismiss Kerr v. Hickenlooper, based on the argument that RFOG claims are non-justiciable. That motion was denied, and the case is currently on interlocutory appeal to the 10th Circuit.

On Friday, I filed an amicus brief on behalf of the Independence Institute and the Cato Institute. The brief draws heavily from Rob Natelson’s article, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause. 80 Texas Law Review 807 (2002). Natelson shows that the Founders consistently used the words “republic” or “republican” to refer to governments which had direct democracy. As the brief summarizes an analysis of every known Founding-Era dictionary: “Not one of these sixteen definitions from nine different Founding-Era definitions contained the least suggestion that a republic had to be purely representative.”

Moreover, the Supreme Court, in Luther v. Borden and Minor v. Happersett, has stated that the admission of a State into the Union is a conclusive determination that the State, at the time of admission, had a Republican Form of Government. Significantly:

In 1907, Congress admitted Oklahoma into the Union, although Oklahoma’s Constitution contained very strong provisions for initiative and referendum (Okla. Const., art. V, §§1-7) and provided for a mandatory referendum before the legislature could incur debt. Id. art. X, §25. Similarly, in 1912, Congress admitted New Mexico with a constitution that specifically contemplated enactment of laws, including fiscal measures, by citizen initiative. N.M. Const., art. XIX, §3.

Opponents of direct democracy rely heavily on a line from James Madison’s Federalist no. 10. They are misreading the document, however. Madison was criticizing pure democracy (no representation, no magistrates). A fuller examination of The Federalist shows that direct democracy was an accepted feature of what was considered to be a “republic.” See Federalists 6, 39, 43, 55, 63.

Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread.

I have criticized Justice Holmes for concluding — in one unreasoned sentence — that treaties can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is simply not so, as I demonstrated in my last post — citing a leading treatise, the most important congressional debate, a U.S. Supreme Court opinion, and, for good measure, an editorial in a prominent New York newspaper (which purports to express the general consensus of the time).

Rick seems to have two responses to this contrary evidence. First, he says it tends to support Ilya’s position, not mine. Second, it’s still not enough; Rick would like to see more. These are, I think, unpersuasive responses.

On the first point, it is not so; take a look at the sources and decide for yourself. But even if Rick were right about this, that would be of no help to him. Again, Ilya and I agree (with Justice Scalia) on the fundamental point that a treaty cannot increase the legislative power of Congress. All the sources cited clearly support that general point. They are all flatly inconsistent with Rick’s claim that a treaty can increase the legislative power of Congress.

On the second point, about weight of authority, surely I have met my burden. Rick said his position was “close to universally accepted” before 1920, while citing no authority. I cited one powerful counterexample in each of the three categories that Rick suggested (treatise, congressional debate, supreme court case), plus an editorial for good measure. In response, Rick again offers zero citations — other than the ipse dixit in Missouri v. Holland itself — for the proposition that a treaty can increase the power of Congress.

Rick says only this: “For the evidence on the other side, showing how central it was to the Constitution’s design and structure that the U.S. be able to honor its treaty commitments and for the historical understanding of the treaty power, see the articles referred to in my earlier posts by Dan Hulsebosch and David Golove.” But we all agree about this general historical claim. What Rick needs is evidence of the claim at issue (which is, as Curt Bradley explains, a non sequitur): the claim that a treaty can increase the legislative power of Congress. As to that, Rick again offers no authority whatsoever. Neither, by the way, does David Golove. See Executing the Treaty Power at 1888-89.

Moreover, Rick surely bears a much greater burden than I do here. After all, he is trying to assert that his position was so well established in 1920 as to require no reasoning whatsoever in Missouri v. Holland. I need to show only that some respectable arguments were in the air on the other side. Surely a leading treatise, published just five years before, squarely in the opposite camp — let alone a Supreme Court case and all the rest — suffices to prove that point.

I would think we could agree — as the current Supreme Court apparently agrees — that the question merits at least some analysis. Happily, an opinion with no reasoning whatsoever has very little stare decisis force. If nothing else, we should celebrate that the Court is poised, at last, to give the question the de novo analysis it deserves.

Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation.

Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes the power to make peace, as Madison noted in the 1790s. Just as war does not need to be formally declared, peace can be established without a treaty. There may be international law advantages to a treaty, but peace could be created simply through a the cessation of hostilities, an executive agreement (such as an armistice), and so forth. Thus legislation dealing with the loose ends of a war would be independently justified, to some extent, by the War Power, as the Supreme Court recognized in Woods & Cloyd v. Miller.

Indeed, aside from the treaty with Britain, the Treaty Power would be an incomplete basis for legislating “peace conditions,” as it would potentially be difficult to exercise in cases of debilitatio, the collapse or disintegration of the enemy government.

The Constitution gives the Federal government numerous express powers for directly regulating transborder phenomenon, including war and foreign commerce. The difficulty with the potentially broad uses of the Treaty power today is that they deal with purely internal phenomenon, which are only of general “concern” to foreign countries.

Rick has offered several articulate criticisms of the argument in my treaty article, and I will respond to his specific criticisms in a subsequent post. For now, though, I would just point out that these criticisms seem to put the cart before the horse. Rick has not yet offered any textual basis for his claim that treaties can increase the legislative power of Congress.

The constitutional enumeration of federal legislative powers, plus the Tenth Amendment, surely puts the burden of proof on anyone who is arguing in favor of a particular congressional power — let alone arguing for a mechanism, outside of Article V, by which legislative powers can be expanded without limit. I would have thought that Rick would begin by gesturing to a particular constitutional provision. Where in the Constitution is one to find such a mechanism?

The conventional view (bolstered by a celebrated bit of purported drafting history, which proved to be false; see Executing the Treaty Power at 1912-18) is that this mechanism derives from a combination of the Necessary and Proper Clause and the Treaty Clause. (I believe that Rick acceded to this conventional view at our debate two weeks ago in New Orleans.) The Necessary and Proper Clause provides: “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Treaty Power is certainly an “other Power[] vested by th[e] Constitution.” The Treaty Clause provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

So the Treaty Power is, in fact, a referent of the Necessary and Proper Clause, and thus the conjunction of these two clauses is essential to an analysis of whether a treaty can increase the legislative power of Congress. Here, then, is the way that these two Clauses fit together as a matter of grammar:

“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the [President’s] Power … to make Treaties….”

The question is the scope of that power. What is a “Law[] for carrying into Execution the … Power … to make Treaties”?

For purposes of this inquiry, the key term is the infinitive verb “to make.” The power granted to Congress is emphatically not the power to carry into execution “the treaty power,” let alone the power to carry into execution “all treaties.” Rather, on the face of the text, Congress has power “To make all laws which shall be necessary and proper for carrying into Execution the … Power … to make treaties.”

This power would certainly extend to laws appropriating money for the negotiation of treaties. And it would likewise embrace any other laws necessary and proper to ensure the wise use of the power to enter treaties. These might include, for example, appropriations for research into the economic or geopolitical wisdom of a particular treaty, or even provisions for espionage in service of the negotiation of a treaty. But on the plain constitutional text, such laws must have as their object the “Power … to make treaties.” This is not the power to implement non-self-executing treaties already made.

The Supreme Court saw this textual point clearly when construing a statute with similar language. In Patterson v. McLean Credit Union, the statute at issue concerned the “right … to make … contracts.” This provision is textually and conceptually parallel to the “Power … to make Treaties” both because of the key infinitive verb “to make” and because, as Chief Justice Marshall explained, non-self-executing treaties are, in fact, in the nature of contracts. This is what the Court said in Patterson:

The right to make contracts does not extend, as a matter of either logic or semantics, to conduct … after the contract relation has been established, including breach of the terms of the contract …. Such postformation conduct does not involve the right to make a contract, but rather implicates performance of established contract obligations….

Just so here. The “Power … to make Treaties” does not extend, as a matter of either logic or semantics, to the implementation of treaties already made. See Executing the Treaty Power at 1880-85. So there is no textual foundation for the claim that treaties can increase the legislative power of Congress.

Rick Pildes has posted useful historical background for our debate about whether treaties can increase the legislative power of Congress. I agree with almost everything that he has said. Under the Articles of Confederation, Congress lacked the power to enforce the Treaty of Peace with Great Britain in 1782, and that defect in the Articles was indeed part of the impetus for the Constitution.

This is helpful context, and it is certainly worth noting. I would just add a few sentences to, as it were, put this context in context. Under the Articles of Confederation, Congress lacked the power to do a great many important things — perhaps most importantly, it lacked the power to regulate interstate and international commerce. The inability to enforce the Treaty of Peace was a specific instantiation of this general impotence of Congress. And it is this general weakness that was the overriding impetus for the Constitution.

The Constitution remedied this general defect by giving Congress a robust array of legislative powers that were lacking in the Articles. This impressive list of powers seemed more than sufficient to meet the needs of the nation. Indeed, the primary concern of the antifederalists was that this list went far too far.

But in fact, the Constitution went even further. If at some future date, this list of powers, fearsome as it was, should, for whatever reason, prove insufficient, Article V provides a mechanism — really four distinct mechanisms — by which the Constitution could be amended and Congress’s legislative power could be increased even further. These mechanisms of Article V have, in fact, been utilized seven times to increase Congress’s legislative power.

But the question on the table is whether — in addition to the enumerated powers, and in addition to the four elaborate and express Article V mechanisms for adding to that list — the Constitution also includes a fifth mechanism, unmentioned in the text, by which Congress’s legislative power may be increased, simply by making a treaty.

Justice Scalia, at least, has his doubts: “I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government.” (oral argument, Golan v. Holder (2012)).

Stay tuned for Rick’s argument that Justice Scalia is wrong.

I want to thank Eugene and Nick for graciously inviting me to guest blog here.

One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers.  This question is also pending before the Supreme Court in Bond v. United States, in which the cert. petition challenges the constitutional power of Congress to enforce the international Chemical Weapons Convention, a treaty the United States entered into in 1993.  The Court has already re-listed Bond an exceptional six times for the Court’s consideration at conference – a strong signal that at least some Justices consider these issues extremely serious ones.

The most momentous argument the Bond petition raises follows the novel solution to “the treaty problem” developed in a provocative article by Nick Rosenkranz, Executing the Treaty Power.  Distilled to a sentence, Nick’s argument (which he will explain more fully in his own posts) is that a treaty cannot change the balance of federal-state power established in Art. I, which enumerates Congress’ specific powers.  More specifically, if Congress legislates to enforce a treaty, Congress is limited to the powers it otherwise has in Art. I; the treaty itself does not permit Congress to enact legislation it would otherwise be constitutionally forbidden to enact.  In a few posts, I’ll suggest why I think Nick’s analysis is ultimately unconvincing.

The treaty-power issue is part of the larger set of questions about how the outward looking aspects of the Constitution — its structure of powers for international relations, foreign affairs, war, and the like — relate to the Constitution’s inward looking structure of powers over purely domestic matters.  In starting to think about these issues, it’s essential to understand  that ensuring that the United States would be able to credibly make and faithfully honor international agreements was one of the central purposes driving the creation of the Constitution.  This aim was not just one of many desirable goals the Constitution was designed to help achieve; it was one of the central animating causes that led to the calling of the Constitutional Convention, the abandonment of the Articles of Confederation, and the overall design and structure of the Constitution.  See here for a full history.

Today, it is easy to forget how fundamental it was to the Constitution’s design that the U.S. be able to make and honor treaties.  The most important treaty in U.S. history is still the Treaty of Peace with Great Britain in 1782, which ended the Revolutionary War.  The inability of the U.S. to honor its obligations under the Treaty, and the resulting national-security threat to the U.S. from British retaliation for the inability of the U.S. to honor its Treaty commitments, was one of the major events behind the Constitution’s creation.

The Treaty recognized the independence of the U.S. and our claim to expansive boundaries.  On the British side, an essential demand was that the U.S. override  state war-time confiscation laws that had eliminated or reduced pre-War debt obligations of American debtors to British creditors.  In the Treaty, the U.S. agreed to do so to ensure these debts would be honored in full; as part of the pact, the British also agreed to withdraw from their forts in the northwest of the U.S.  But all that Congress could do, under the Articles of Confederation, was to ask the states to honor these international commitments the U.S. had made, and Virginia (whose citizens owed the largest portion of these debts) refused to do so.  In retaliation, the British refused to withdraw from their forts and held the security of the U.S. hostage.

Notice that the Treaty regulated property or contract claims — debts — that are ordinarily regulated under state law.  In addition, this problem of states undermining the capacity of the U.S. to honor its treaty obligations and be a credible nation in world affairs, with consequences to both the security and economic prosperity of the country, was a general problem under the Articles (for a fuller history on the Treaty of Peace, see the magisterial article on the history of the treaty power:  David Golove, Treaty-Making and the Nation).

Numerous provisions reveal the extent to which the Constitution was designed to remedy this defect.  Although treaties were made difficult to enter into, requiring 2/3 support in the Senate for ratification, the Constitution sought to ensure that the U.S. would have the capacity to honor valid treaties.  Thus, the Constitution expressly makes treaties part of the “supreme law of the land;” the Art. III federal judicial power expressly extends to cases arising under treaties, to ensure their effective enforcement; the states are expressly denied power to enter into treaties; and the states are also denied power to enter into international compacts without congressional consent.

In addition, the Constitutional Convention explicitly debated but rejected the proposal to  limit the subject matter of treaties into which the U.S. could enter, because of the view that the U.S. needed to have the power to decide over time the subject on which it would be desirable to enter into treaties to promote the  interests of the U.S.  Moreover, the Founding Era is overflowing with statements and positions that express the necessity and importance of the Constitution enabling the U.S. to honor its treaty commitments.   As just one brief glimpse, here is what Federalist Papers #22 (by Hamilton) has to say:

 The treaties of the United States, under the present Constitution [of the Confederation], are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation.

This brief account of the historical problems and context against which the Constitution was crafted is necessary to set the stage for considering Nick’s approach to the “treaty problem.”

Yet pushing back against all this history and original understanding is the kind of intuition or anxiety that fuel’s Nick’s argument and related ones that have arisen throughout U.S. history:  if no limit on the treaty power and related national powers exists, can’t the national government subvert the federal/state balance of power that the Constitution also works so hard to establish?  To make this concrete, let’s assume Congress does not have the legislative power to abolish the death penalty in the states.  If the U.S. then enters into a treaty on this subject, can Congress now legislate to abolish the death penalty?  Or, to take the issue in Bond itself, if Congress would not otherwise have the power to regulate an individual’s possession and use of toxic chemicals, can Congress gain this power as a means of implementing the Chemical Weapons Convention?

The issue takes on even more heightened stakes with the rise of human rights treaties the U.S. has signed in the post-WWII era.  If Congress would not otherwise have the power to legislate in these areas, can it do so as a means of implementing these treaties?   These questions illustrate the tension or puzzle or conundrum about the treaty power.

This post has gone on long enough in providing the historical perspective needed to assess Nick’s argument.  In subsequent posts, I will offer my reasons for not being persuaded by Nick’s approach to the treaty power.  I will then suggest some alternative approaches.

Rob Natelson explains in this essay, which points of some of Seidman’s major historical errors about the Founding Era and constitutional history.

At his Balkinization blog, Yale law professor Jack Balkin has a fascinating post on the ways in which legal history might have changed if Robert Bork had been nominated to the Supreme Court in 1986 rather than 1987:

Robert Bork’s passing reminds us of how much the development of constitutional doctrine depends on contingencies. Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger’s retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.

Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate. You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork’s remarkable paper trail of opposition to civil rights and civil liberties.....

With both Bork and Scalia on the Court, the history of constitutional doctrine would probably have been quite different. For one thing, Roe v. Wade would probably have been overturned within five or six years....

Without the bitterness of the Bork confirmation battle, George H.W. Bush might not have felt gun shy about nominating a more overtly conservative candidate in 1990, when William Brennan retired. Therefore there might have been no “stealth nomination” of David Souter– and we might have gotten someone like Ken Starr, or Edith Jones, or even Clarence Thomas a year early. Later presidents might not have been so eager to nominate only young candidates with no paper trail, thus expanding the pool of talent available to the Court. (Bork was about 60 when he was nominated; later candidates have been considerably younger.)

Thus, flipping the order of the Bork and Scalia nominations might have allowed Presidents Reagan and Bush to stock the Supreme Court with reliable movement conservatives instead of Anthony Kennedy and David Souter. This, in turn, might have led to a conservative constitutional revolution that was much broader and deeper than what actually occurred during the Rehnquist Court....

Despite Bork’s defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more.....

What conservatives did not get, however, was five movement conservatives on the Court. If they had, we might be speaking of the post-1987 period the way we speak of the New Deal Revolution or the glory days of the Warren Court as a period of significant constitutional transformation.....

I think this argument has some validity. Had Bork been nominated in 1986 and Scalia in 1987, there is a real chance that both would have gotten on the Court, and constitutional doctrine would have been more conservative as a result. But I also think that Balkin probably exaggerates the extent of the difference.

It is unlikely that avoiding a confirmation battle in 1987 would have avoided ideological conflict over judicial nominations indefinitely. Given the deep ideological and partisan disagreements over constitutional law that had emerged by the 1980s, it was almost inevitable that something like the Bork nomination would happen sooner or later. If Bork had been confirmed in 1986 and George H.W. Bush had nominated a strong conservative in 1990 instead of David Souter, the Democratic-controlled Senate might well have rejected that nominee. The experience of having Bork and Scalia on the Court, writing strongly conservative opinions, might actually have stiffened Democrats’ determination to prevent another similar conservative from getting confirmed. The Senate might have insisted on a Souter-style “stealth nominee” in 1990. They might have narrowly rejected Clarence Thomas in 1991 instead of narrowly confirming him by a 52-48 margin.

The Bork battle was an important immediate catalyst for ideological conflict over judicial nominations, but not the root cause. It caused the war over nominations in much the same way as the assassination of Archduke Franz Ferdinand “caused” World War I. In both cases, the immediate cause of conflict merely heated up a long-brewing preexisting antagonism.

Finally, even a firmly established conservative majority on the Supreme Court probably would not have led to a constitutional “transformation” on the scale of “the New Deal Revolution or the glory days of the Warren Court.” In those latter cases, the Supreme Court was able to effect sweeping change in part because it was supported by a strong political majority. Liberal Democrats dominated the political scene throughout most of the 1930s and also the 1960s (at least until 1968). Conservative Republicans never achieved comparable dominance in the 1980s and 1990s.

The Supreme Court does not simply “follow the election returns.” Sometimes, it issues opinions that go against majority views or those of the dominant political coalition of the moment. But the Court does face significant political constraints, and the justices know there is only so far they can push public opinion and the political branches of government before the latter push back. A constitutional revolution on the scale of the New Deal and the Warren Court requires more external political support than the Rehnquist and Roberts Courts were ever likely to achieve between 1986 and the present.

Had Bork gotten on the Supreme Court in 1986, it would have made a significant difference. But it probably would not have caused a massive constitutional revolution.

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes....” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

In West Coast Hotel v. Parrish (1937), the Supreme Court upheld  a minimum wage law for women, reversing two earlier contrary precedents.  West Coast Hotel is often seen as the end of the so-called “Lochner era.”  Some conservatives celebrate West Coast Hotel, not simply as a victory against “judicial activism,” but because the Court purportedly restored the original meaning of the Due Process Clause of the Fourteenth Amendment that had been perverted by proponents of the liberty of contract doctrine.

As I pointed out in Rehabilitating Lochner, the irony of the conservative originalist critique of Lochner is that proponents of liberty of contract were themselves originalists, trying to adhere to what they saw as the constitutional understandings of the Fourteenth Amendment’s Framers regarding individual liberty and the scope of the police power.  Originalist sentiments expressed by proponents of liberty of contract sometimes sound quite modern.  Consider Justice Sutherland’s dissent in West Coast Hotel v. Parrish: “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.” I go on to note that more often, the early twentieth century version of originalism differed in significant ways from modern conservative originalism, and was generally neither well-theorized nor well-explained by its judicial adherents, but it was originalism nevertheless. Liberty of Contract’s Progressive opponents, by contrast, were explicitly anti-originalist and pioneered the idea of the “Living Constitution.”

Distinguished University of Virginia legal historian G. Edward White makes a related point in the latest issue of the Yale Law Journal Online. He argues that the majority opinion in West Coast Hotel represents the forces of Living Constitutionalism while the dissent relies on originalism: “West Coast Hotel is one of the early landmark cases of another narrative of twentieth- and twenty-first-century constitutional history, one characterized by a debate about whether the Constitution adapts to change or remains an embodiment of foundational principles. In that narrative, Chief Justice Hughes’s exploration of the changing context of judicial decisionmaking represents living Constitutionalism, and Justice Sutherland’s insistence that “the words of the Constitution mean today what they . . . mean[t] when written” is an example of originalism. White’s essay is short, and, if this sort of thing interests you, well worth reading.

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.” La. Const., art. I, sect. 11. The new language made it indisputable that the state constitution’s right to arms was an individual right, belonging to each citizen.

Unfortunately, Louisiana’s Supreme Court, like some other courts of the late 1970s, was hostile to the right to arms. According to a 1977 Louisiana Supreme Court decision, “The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” State v. Amos 343 So.2d 166, 168 (La. 1977).

It was unexceptional for the court to observe that the right to arms is no more “absolute” than any other right. But the court went much further, and essentially stripped the Louisiana arms right of any meaningful judicial protection. According to the Amos court, any form of gun control was constitutional, as long as it was “reasonable.”

In 2001, the Louisiana Supreme Court affirmed a lower court ruling that held: “The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard court cited Louisiana state and federal cases from 1986 through 1999 for this proposition.

So Blanchard adopted an even weaker standard of right to arms protection than had Amos. Under Blanchard, any restriction is alright so long as the government has a “legitimate” purpose.  Blanchard‘s legitimate purpose test copies one prong of the weakest standard of judicial review, the “rational basis” test, which was originally created for Fourteenth Amendment Equal Protection cases. Under this test, every law is constitutional so long as the government has a “legitimate” purpose, and the law has a “rational” connection to that purpose.

Fortunately, gun control has not been politically popular in Louisiana in recent decades. So even though the state’s courts have essentially nullified the constitutional right to arms, Louisiana’s firearms statutes are not, in general, oppressive.

In the November 2012 referendum, Louisiana citizens will be given the opportunity to remedy the wrong decisions in Blanchard and Amos. Voters can adopt new constitutional language: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.”

If adopted, the referendum would make two direct changes:

1. For the first time in Louisiana, concealed carry would be constitutionally protected. This makes sense, because in the 21st century (unlike in the 19th), concealed carry is most common way that Louisiana citizens exercise their right to carry handguns for lawful protection. Like most other states, Louisiana has a statutory system by which concealed carry permits are issued under fair and objective standards.

2. The judicially-imposed “legitimate purposes” test (the weakest test) of judicial review would be replaced by the strongest test: strict scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

Louisiana would be the first state to write the “strict scrutiny” standard into its constitution. This would become the model in other states for significantly strengthening protection of their own constitutional right to arms. So it is unsurprising that the proposed amendment is strongly supported by the National Rifle Association, the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the most pro-right to arms Governor in Louisiana history, and a national leader on the issue.

Surprisingly, some people in Louisiana are opposing the Amendment on the grounds that it supposedly promotes anti-gun laws. For example, at this website, the author remains invincibly ignorant, even when the facts are patiently explained an attorney from the Louisiana Shooting Association. The website author wants to live in a world of absolute rights. Be that as it may, Louisiana today is not a state of absolute rights; it is a state where the right to arms essentially does not exist, as a matter of state constitutional law, as mis-interpreted by state courts. The amendment would remedy the misinterpretation, and make it drastically harder for future courts to uphold anti-gun laws.

A victory for the Louisiana referendum will profoundly strengthen the right to arms in Louisiana, and have significant positive effects nationally. A defeat would validate the actions of previously Louisiana judges in recent decades who deigned that the right to arms was unworthy of judicial protection.