The Volokh Conspiracy

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.

Co-blogger Orin Kerr quotes Herbert Hoover’s statement that you don’t have to be a lawyer to understand the Constitution. Interestingly, the Supreme Court agrees. As Justice Owen Roberts put it in a unanimous 1931 decision, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” This conclusion was reaffirmed by the Court in District of Columbia v. Heller (2008).

Many parts of the Constitution really are readily accessible to laypeople. You don’t have to be an expert to understand that the Constitution establishes a system of separation of powers rather than a unitary parliamentary system, that it protects freedom of political speech, that it forbids the establishment of an official religion, that it requires the government to compensate property owners when it condemns their land, and so forth. Even when dealing with relatively simple parts of the Constitution, it may be difficult for nonspecialists to go through decades of accumulated legal precedent interpreting these provisions. But the Constitution is not just what the judges say it is, and even the latter is often constrained by the text, especially when the text is relatively clear.

There are, of course, parts of the Constitution that are difficult to grasp without at least some expert guidance. Consider the interpretation of such key constitutional terms as “bill of attainder,” “habeas corpus,” and “privileges and immunities” of American citizenship. But not everyone with relevant expertise on these parts of the Constitution is a lawyer. There are plenty of political scientists, historians, economists and others who are also experts on these subjects, and plenty of lawyers (including many law professors) who have very little specialized expertise on constitutional law.

In sum, there are numerous important parts of the Constitution that are readily accessible to the general public, though sadly many remain ignorant nonetheless. Some more technical aspects require greater expertise to understand. But you don’t have to be a lawyer to be an expert on these subjects, and being a lawyer doesn’t necessarily make you an expert on constitutional law. Just as war is too important to be left to the generals, the Constitution is too important to be left exclusively to the lawyers.

UPDATE: Scott Greenfield of Simple Justice responds to this post here:

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W]hy would “relatively simple parts” of the Constitution require “decades of accumulated legal precedent interpreting” them? Either they’re simple or not, and if the former, then no interpretation is needed. Or if it is, then it’s not so simple. You can’t have it both ways.

Let’s test this thesis, using one of the examples Ilya offers as “readily accessible to laypeople,” the Establishment Clause of the First Amendment. It says, in pertinent part:

Congress shall make no law respecting an establishment of religion...

Ten words, no waiting. How hard could that be to understand? The first five words seem about as clear as they could be, that Congress shall make no law. We certainly know what Congress is, that domed place in Washington where 535 people spend their time trying to figure out how to make each other look foolish when they aren’t asking for campaign contributions. Those people “shall,” a mandatory word, leaving no wiggle room, “make no law.”

Obviously, this doesn’t stop a teacher from requiring students to offer a prayer to Buddha before the start of a hard day of education, or a fire department from putting a creche in front of its combination garage/bar, or a judge from sentencing a drunkard to give Catholic confession twice a day for ten years. Even if we blindly incorporate this clause under the Fourteenth Amendment, none of these actors can be construed under any stretch of language as “Congress,” or lawmakers. Easy, squeezy.

Then comes the second five words, “respecting an establishment of religion.” Not nearly as clear as the first five, but not all that hard to understand. If we all agree that “respecting” means “with regard to,” the final four becomes fairly clear, right? They can’t establish, or make official, religion.

Does this mean one religion? Does this mean they can’t make a law requiring us to believe in, say, one of the top three religions, and rid us of all the squabbling about a bunch of lesser religions?....

I’m not much persuaded by this response. A “relatively simple” part of the Constitution can still lead to decades of precedent either because the courts have misapplied it and made it more complex than it needs to be or because language that is simple in its implications for most cases is still unclear in regard to some borderline cases. It’s very clear that the Establishment Clause prevents Congress from establishing, say, Catholicism, as the official church of the United States that all Americans must attend and make financial contributions too. It’s far less clear what it implies for, say, government-funded creche displays. But the former case is far more important than the latter. More generally, my point was not that the Establishment Clause is simple in all its potential applications, but that it has a simple, easy to understand core. The same is true for a number of other parts of the Constitution.

Finally, some complexity is introduced by interactions between one part of the Constitution and others. By itself, the Establishment Clause clearly does not apply to the states and only limits Congress. The question is whether that is changed by the Privileges or Immunities and Due Process Clauses of the Fourteenth Amendment, enacted many years later. And, as I indicated above, those clauses are not among the relatively simple parts of the Constitution.

The Manhattan Institute will be hosting a promising conference on this topic at the Century Club in New York City on Thursday evening, November 29th. I have been asked to speak about The Subjects of the Constitution and The Objects of the Constitution. Other speakers are Prof. Michael Greve of George Mason Law School; Prof. Richard Epstein of NYU Law School; and attorney/commentator Adam Freedman. The moderator will be James Copland, Director, Center for Legal Policy, Manhattan Institute. As I understand it, New York CLE accreditation is pending. Information and registration here.

Discussions of secession in the U.S. are weighed down with the baggage of the Civil War. This legacy may not just burden American’s view of secession as a domestic issue, but also the general concept. The U.S. has opposed secessionist tendencies abroad, even when they were obviously salutary, such as the break-up of the USSR and Yugoslavia, and continues to oppose the break-up of Iraq and other unhappy unions.

Important recent work in political science has helped us better understand the economics of state size. At the same time, secessionist movements have gained broad followings in major Western European democracies, even at a time that nationalism in Europe is thought to be at a nadir. These developments (and not the various U.S. petitions, about which Eugene recently wrote) motivate this post.

Secession seems a good idea on libertarian grounds in that heterogenous preferences can be better accommodated on a smaller scale. Alesina and Spolaore famously theorize optimal state size as optimizing between economies of scale and heterogenous preferences of nationals: the former is increasing on size, the latter decreasing. For optimality to be maintained, there must be some process shaping the size of state other than accretion. Otherwise, one would expect that all countries in equilibrium would be too big.

Usually, secessionist movements start in the wealthier area of country (or an area that would be wealthy if it could completely control local fuel resources) – Northern Italy, Slovenia, Catalonia, Flanders, Biafra, Puntland, Somaliland. This seems especially true of non-violent secession movements — those not formed against the backdrop of massive intergroup violence.

The European Union changes this dynamic somewhat by lowering the cost of secession. EU membership confers significant benefits on the new country (assuming it gets to join the Union) and this is thought to explain the rise in Scottish independence (an atypical breakaway effort by the poorer section). When Rhode Island remained aloof from Constitution, it was threatened with having foreign-nation tariff status.

If Scotland leaves the UK but not the EU, the border with England remains open. Just as declining trade barriers reduce scale economies, so does technology. Large armies are relatively less important for a nation’s defense, for example. The amicable split between the Czech Republic and Slovakia demonstrate how low the costs of splitting can be, especially in Europe.

I’ve analogized secession to divorce: costly, destructive, and yet sometimes preferable to the status quo. Indeed, as with divorce, secession problems usually focus not on the decision to split itself, but on who gets what: the division of common property, payments for prior detrimental reliance or a history of cross-state subsidization (ie, compensation to the spouse who put the other one through medical school, children and visitation (new rules of border access, who is a citizen where). Scotland and England are already prophylactically squabbling about these issues.

There is some notion that secession should be reserved for cases of particular abuse, “extreme cruelty.” But today regions in Western countries seek out due to what to outsiders mights be seen as minor ethnic or cultural vanities: more of a no-fault, irreconcilable differences approach.

Divorce lawyers tell squabbling couples that they will have a lower standard of living after the split, if for no other reason than the elimination of scale economies. That doesn’t keep people from getting divorced. The costs of divorce are clearly visible – litigation, dislocation, and disruption. The costs of a no divorce-regime are less visible, but equally real: the unhappiness of a people whose preferences are no longer satisfied by their union.

There is a certain kind of couple where at least one member gets quite worked up on hearing of divorces among their friends and peers; they want to avoid such people, shun and condemn them – lest anyone get any ideas. But these are usually not happily married couples; those do not feel threatened by their friends’ divorces.

A few final words on the role of law. International law recognizes no general right of secession, though it has numerous useful rules on presumptive borders and obligations if a break-up does occur. Most national constitutions don’t speak to it either (though some permit it, including, amazingly, the former Soviet Constitution). Of course it makes most sense to address dissolution directly in the founding document – a kind of national prenup.

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.

In a post commenting on recent guest-blogger Akhil Amar’s book The Unwritten Constitution, Gerard Magliocca suggests that the scope of the unwritten Constitution is broader than the book states:

[M]y main criticism of the book is that I don’t like Amar’s definition of the unwritten Constitution. What do I mean by that? I mean that his working assumption seems to be that something violates the unwritten Constitution only if a court or the body charged with making the call (say, the Senate during an impeachment trial) would (or should) say the act is unconstitutional. This, though, strikes me as incomplete.

Here’s one example. Amar claims that the current size of the Supreme Court–nine Justices–was not settled by the failure of Franklin Roosevelt’s Court-packing plan in 1937. He points out (correctly) that Congress can still change the size of the Court for some good-government reason. The problem is that most lawyers would view such a change as deeply wrong no matter what the explanation is. (Indeed, I would submit that this is far more settled than other constitutional rules that Amar defends in the book.)

Amar’s approach would also deny unwritten constitutional status to various canonical statutes. Nothing in the Constitution mandates the existence of lower federal courts–the Judiciary Act of 1789 does that. Nothing requires that various segments of American life be desegregated–the Civil Rights Act of 1964 does that. And so on. Of course these statutes can be repealed, but doing so would be seen by a lot of people as “unconstitutional.” There are, in other words, unwritten political limitations on Congress.

It seems to me that Gerard (and possibly also Amar; I won’t know for sure until I finish the hefty book myself), conflates the idea of the unwritten Constitution with deeply rooted political norms that don’t rise to constitutional status. Any political system – even one with a written Constitution – has some deeply rooted nonconstitutional norms that political leaders violate only at great cost. The examples that Gerard gives are all among the deeply rooted norms of American politics. Such norms are extremely important. In some cases, the political system could not function effectively without them. But that does not mean that they rise to constitutional status.

The difference is more than semantic. A political norm can change simply because a majority of the people (or sometimes even just a majority of the political class) no longer believe it should be followed. If Congress, the president, and majority public opinion all agreed that there should be fifteen justices on the Supreme Court instead of nine, few would complain that there was any constitutional impropriety in doing so. The same point applies if majority public and elite opinion wanted to abolish federal district courts or repeal the Civil Rights Act of 1964. By contrast, a constitutional limitation requires a constitutional amendment to get rid of. That cannot be done without a much larger majority than is needed to change an unwritten political norm.

In practice, of course, a powerful and persistent political majority can undermine written constitutional limitations on power even without a formal amendment. That has happened several times in our history, such as in the 1930s. But it probably requires a broader consensus than the reversal of a mere political norm. And even after it has happened, substantial dissenting movements can still argue that the change was illegitimate because it violated the written Constitution (as, for example, many still criticize the Supreme Court’s decisions expanding federal power under the Commerce Clause since the 1930s). By contrast, few argue that it was illegitimate to change nineteenth century political norms, such as the “spoils system” or the custom of rotation in office that prevented congressmen from serving more than a few terms in a row.

I agree, of course, that some genuinely constitutional limitations on government power may be unwritten; for example, some may be inevitable outgrowths of of the structural logic of the Constitution. And if you are an originalist, you must be open to the possibility that part of the original meaning of a text goes beyond its literal words. But there are nonetheless many deeply rooted political norms that are not constitutional in nature. Gerard’s examples all fit that category.

UPDATE: Gerard responds to this post here:

Unfortunately, Ilya does not offer a persuasive descriptive account of the Constitution. Some of these mere norms would be far harder to change than many Supreme Court decisions. In other words, Ilya is being too formalist. Citizens United rests on shaky ground right now even though it is a written constitutional limit. A realistic assessment would not put it above the Civil Rights of Act of 1964 on a “settled” scale. (Perhaps this problem would disappear if we stopped using constitutional and just used “settled” or “unsettled” to describe various customs or authorities.) Under Ilya’s definition, the British have no Constitution at all because the entire thing (aside from some treaties with the EU, I suppose) consists of norms that can be changed by Parliament at will.

Citizens United is indeed shaky right now, because it is backed only by a narrow 5-4 Supreme Court majority that might well change in the next few years. However, there is still a difference between a norm that can be changed through the regular political process and one that can only be changed through a constitutional amendment or by a relatively independent and politically insulated court choosing to reverse its decision. Moreover, while Citizens United is, right now, more likely to be reversed than the Civil Rights Act of 1964, it does not follow that it is inherently easier to get rid of. As I noted in my original post, the Civil Right Act could be abolished if an ordinary political majority wanted to get rid of it. Citizens United and other court decisions are harder to reverse in that way. If the Civil Rights Act is relatively immune to rollback, it is because of its widespread popularity, not because it has constitutional status. Whether a rule is constitutional or not is just one of the factors that influence how hard it is to change; popularity is one of the others. But a constitutional rule is, on average, more difficult to reverse than a political norm that that has the same level of popularity.

As for the British political system, it may well be that what is often called the “British constitution” is, in my terminology, just a system of deeply rooted norms. Not all governments have constitutions. Indeed, historically, the majority did not.

I am grateful that Akhil Amar has taken the time to respond to my post criticizing his theory that the original meaning of the Fourteenth Amendment bans racial discrimination by the federal government as well as the states. Akhil makes some good points, but I think he continues to fall short on the central point at issue. Neither of his posts adequately substantiates his argument that the original meaning of the Citizenship Clause of Section 1 of the Fourteenth Amendment protects African-Americans and others born or naturalized in the United States against federal racial discrimination simply by virtue of guaranteeing them citizenship.

In his new post, Akhil explains that his argument only applies to federal government discrimination with regards to “civil rights” (e.g. – rights to property and freedom of contract) rather than political rights (e.g. – voting and participation in juries and the military). I know that he has distinguished between the two in previous work. However, in the quote from his new book that he included in his earlier post criticizing me, Akhil makes the sweeping statement that the Citizenship Clause of the First Amendment means that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence” [emphasis added]. I think a reasonable reader could be forgiven for assuming that by “any law” Akhil means “any law.” Laws excluding blacks or women from the franchise, jury service, or military service certainly seem like laws “heaping disabilities or dishonor upon any citizen by dint of his or her birth status.” Perhaps this very broad statement is qualified elsewhere in the new book. But I unfortunately did not yet have a copy of a book that went into print just this week, and so was going by what Akhil said in the part he excerpted in his post.

Perhaps more importantly, Akhil ignores the fact that much of the evidence I cite against him applies to civil rights as well as political rights. In both of his posts, Akhil makes much of the fact that the Fourteenth Amendment was, at least in part, modeled on the Civil Rights Act of 1866. But as I noted in my last post, the Civil Rights Act does not assume that granting citizenship to blacks also necessarily protects them against racial discrimination with respect to civil rights:

I am also unpersuaded by Amar’s invocation of the Civil Rights Act of 1866, which stated that “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Notice that the text of the Civil Rights Act does not assume that making African-Americans (or anyone else) citizens automatically protects them against racial discrimination by the state or federal governments. To the contrary, the assumption is that it does not, which is why the drafters of that act included a separate provision extending to all such citizens “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” There would have been no need for this antidiscrimination provision if it were already implicit in the grant of citizenship itself.

Laws concerning “the security of person and property” are clearly laws that relate to civil rights, not political rights. Like the Civil Rights Act of 1866, the latter part of Section 1 of the Fourteenth Amendment bars states from discriminating with respect to various civil rights, but the Citizenship Clause does not include any such restriction on the federal government.

Similarly, Justice Curtis’ dissent in Dred Scott, which I quoted at some length, describes the pre-Fourteenth Amendment conventional wisdom that “citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights,” [emphasis added]. For example, Curtis referred to the fact that women are clearly citizens, yet were also barred from a variety of civil rights in many states.

Akhil makes a valid point in noting that I was too quick to assume that if racial discrimination between citizens is banned by the Citizenship Clause, the Equal Protection Clause becomes redundant. As he points out, the latter Clause protects all “persons,” not just citizens. Nonetheless, it is somewhat strange to conclude that the Equal Protection Clause offers no additional protection against racial discrimination to citizens beyond that already offered by the Citizenship Clause, and is only there to constrain such discrimination against noncitizens.

Finally, as I noted in my previous post and an update to my earliest post on this subject, in some places in both of them I referred to Section 2 of the Amendment where I meant to say the latter part of Section 1 (which includes the parts of the Amendment that, according to the text, apply only to state governments). I noticed the error before Akhil’s rebuttal, and posted updates noting it. But in my haste last night, I missed a couple instances of the error that I should have corrected. I have now fixed them. This is the sort of mistake that bloggers sometimes make when writing quickly, and I should have been more careful.

UPDATE: I cut a passage relating to the Privileges or Immunities Clause that was in the original version of this post in order to save space, and because I decided it wasn’t a good enough point to include without some additional elaboration and qualification that would take even more space. Since I made the cut only about 30 minutes after the initial posting and few readers will have seen that material, I am not going to discuss it in more detail in this update.

I am grateful to Akhil Amar for his comment on my post challenging claims that the original meaning of the Fourteenth Amendment allows affirmative action because Congress, in the 1860s and 70s adopted programs that gave “racial preferences” to recently freed African-American slaves. In my earlier post, I pointed out that these were federal government policies, and that the part of the Fourteenth Amendment which includes the Due Process Clause, the Equal Protection Clause and the Privileges or Immunities Clause), explicitly applies only to states.

Professor Amar rightly points out that the first sentence of Section 1 of the Amendment, which guarantees citizenship to all persons born or naturalized within the United States, applies to the federal government as well. I don’t deny this, and even added an update to my post, where I noted that “I have updated this post slightly to make clear that it is the text of Section 2 [I meant to say the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – [the first part of Section 1] which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.” My original post was badly worded on this point; and I also briefly conflated the second part of Section 1 with Section 2, which foolish error is explained but not excused by the fact that I was very tired at the time I wrote the update). But the update (which I first added before Professor Amar’s post went up) does make my position clear.

Amar and I therefore agree that the first sentence of Section 1 of the Amendment applies to the federal government, as also do some other parts of the Amendment, such as Section 3. We also seem to agree that the latter part of Section 1 – at least as an original matter – does not. Professor Amar appears to accept the latter in his earlier book, America’s Constitution: A Biography (pg. 382), though he does not reach a definitive conclusion.

Where we disagree is over the question of whether the Citizenship Clause of Section 1 banned racial discrimination by the federal government. In my view, at least as a matter of original meaning, it did not. Consider the fact that immediately before, during, and after the passage of the Amendment, the federal government engaged in extensive discrimination against African-Americans that few at the time thought was unconstitutional. For example, blacks were segregated in the US Army and Navy, and excluded from many officer positions. The Marine Corps completely excluded blacks until 1942. In addition, if Amar is right that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence,” then laws denying the vote to women were banned by the Fourteenth Amendment, and there was no need for the Nineteenth Amendment (which finally banned sex discrimination in this field over fifty years after the Fourteenth Amendment was enacted). Amar’s approach also renders much of [the latter part of Section 1] of the Amendment superfluous. If the Citizenship Clause Section 1 already bans racial and other status discrimination by state governments, there would be no need for [the] Equal Protection Clause, which bans state denial of “equal protection of the laws.”

I am also unpersuaded by Amar’s invocation of the Civil Rights Act of 1866, which stated that “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Notice that the text of the Civil Rights Act does not assume that making African-Americans (or anyone else) citizens automatically protects them against racial discrimination by the state or federal governments. To the contrary, the assumption is that it does not, which is why the drafters of that act included a separate provision extending to all such citizens “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” There would have been no need for this antidiscrimination provision if it were already implicit in the grant of citizenship itself.

It is true that the Civil Rights Act of 1866 was to a considerable extent a model for the Fourteenth Amendment. Section 2 [actually the latter part of Section 1] of the Amendment forbids racial discrimination by state governments of the sort banned by the 1866 Act. However, Section 1′s Citizenship Clause does not include any comparable restriction on racial discrimination by the federal government. And as the language of the Civil Rights Act shows, such a ban was not considered implicit in the grant of citizenship itself. It’s also worth noting that the Civil Rights Act of 1866 does not apply to all types of racial discrimination by government, but merely that which pertains to “laws and proceedings for the security of person and property.” It therefore did not apply to racial discrimination by state universities of the kind at issue in the affirmative action litigation that led to my original post.

The conventional wisdom in the nineteenth century was that citizenship status was very much compatible with various types of discrimination between citizens. Most jurists agreed, for example, that women’s citizenship status did not bar a variety of discriminatory legislation against them. Consider this passage from Justice Curtis’ dissent in Dred Scott, arguing against Chief Justice Taney’s claim that widespread discriminatory legislation against African-Americans proved that they could not be citizens:

It has been... objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States, and, if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office.

But this position rests upon an assumption which I deem untenable. Its basis is that no one can be deemed a citizen of the United States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen.... That this is not true under the Constitution of the United States seems to me clear.

A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization.... So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications.

The drafters of the Fourteenth Amendment also assumed that granting citizenship to African-Americans did not automatically entitle them to equal civil or political rights. That’s why they added the latter part of Section 1 to the Amendment, which prevents states from taking away those rights. And that’s why they later adopted the Fifteenth Amendment, which forbade racial discrimination in voting rights.

I should emphasize that both this post and the previous one only address the original meaning of the Fourteenth Amendment restricts racial discrimination by the federal government. I fully admit that there are many nonoriginalist arguments for applying the Amendment to the feds. I also believe that some types of racial discrimination by the federal government may be banned by other parts of the Constitution. For example, I think that imprisoning people without individualized due process merely because they belong to a particular racial group violates the Due Process Clause of the Fifth Amendment, which is why originalism cuts against the Supreme Court’s infamous decision upholding such detentions in Korematsu v. United States.

Finally, as regular VC readers know, I am no fan of unconstrained federal power. As I see it, an ideal Constitution would severely restrict and perhaps even categorically ban racial discrimination by the feds. But that’s not what the Fourteenth Amendment did, at least not originally.

UPDATE: Professor Amar has written that he may not have time to respond to our rebuttals to his posts within the week that he will be guest-blogging. I would therefore be happy to post any reply he might care to submit at a later date. Either way, I look forward to reading his book, which is likely to be a major contribution to constitutional scholarship on par with his pathbreaking earlier work.

UPDATE #2: In the original version of this post, I accidentally repeated my mistake from the previous post of writing “Section 2″ in places where I meant to refer to the latter part of Section 1. I have now noted and corrected those places.

Georgetown law professor Larry Solum has an excellent post summarizing the ongoing debate over the “countermajoritarian difficulty,” one of the most common criticisms of judicial review. Solum summarizes the “difficulty” as follows:

The counter-majoritarian difficulty may be the best known problem in constitutional theory... The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of electedexecutives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after [Alexander] Bickel’s naming of this problem [in 1962], it dominated constitutional theory.

In the rest of the post, Solum provides a very helpful summary of the major answers various legal theorists have developed to address the problem. I recommend the post to students and others who want to get a quick but helpful summary of the issue, along with some useful cites to the literature. It is a worthy addition to Solum’s extremely useful series of “Legal Theory Lexicon” posts.

My only reservation about the post is that it omits one of the most important and influential answers to the difficulty: John Hart Ely’s “representation-reinforcement” theory, outlined in his famous 1980 book Democracy and Distrust. Ely argued that judicial review can, in some cases, actually promote democracy by facilitating political participation. Obvious examples include judicial protection of the right to vote and the right to freedom of political speech. Such representation-reinforcing judicial decisions are not, Ely argues, countermajoritarian, because they ensure that the people can participate in the political process, which is what makes that process majoritarian in the first place.

Ely’s book has spawned a vast literature analyzing the concept of representation-reinforcement and its applications to specific legal issues, including my own 2004 article analyzing the implications of widespread political ignorance for Ely’s theory. Solum generously includes my article in his list of recommended readings in the post. But it would have helped to discuss Ely’s far more significant contribution, which was a major milestone in the debate over the countermajoritarian difficulty.

I should perhaps add that I am far from uncritical of Ely. I disagree both with his argument that representation-reinforcement is the most defensible (if not the only) possible justification for judicial review, and with some of his applications of representation-reinforcement to specific constitutional issues. Nonetheless, Ely’s work had a major influence on me. More importantly, it also had a huge impact on many others who have written about the countermajoritarian difficulty since 1980.

In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices Clarence Thomas and Antonin Scalia, who have taken a hard line against affirmative action in their opinions, but have never provided any evidence that this position is consistent with originalism. Gans and Winkler also argue that originalism in fact supports the constitutionality of affirmative action because “[t]he same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying ‘racial preferences.’” The latter argument builds on the work of previous academic defenders of affirmative action, such as Yale law professor Jed Rubenfeld.

Gans and Winkler are right to criticize Scalia and Thomas for neglecting originalism in their affirmative action opinions. But they are wrong to assert that originalism clearly supports their own side of the affirmative action debate. Without exception, all of the nineteenth century “racial preferences” that they cite are federal laws, such as the Freedman’s Bureau programs intended to aid recently freed slaves. But the text of the latter part of Section 1 of the Fourteenth Amendment, the provision at issue in affirmative action litigation, only applies to state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added].

Beginning with the famous case of Bolling v. Sharpe (1954), the Supreme Court retroactively applied the Amendment’s restrictions on racial discrimination to the federal government. But no one imagined that the amendment applied to the federal government at the time it was enacted. Therefore, the framers and supporters of the amendment could well believe that the federal government had the power to enact racial preferences that would be banned by Amendment if adopted by the states. Nor were they completely unreasonable in accepting this double standard. The framers of the Amendment hoped that the federal government would continue to be controlled by (relatively) pro-black Republicans and therefore could be trusted with the power to use racial preferences. By contrast, they did not have similar faith in the states, particularly the southern states where most white voters were unrepentant ex-Confederates and supporters of slavery.

In addition, as co-blogger David Bernstein points out, the racial preferences adopted by the federal government in the Reconstruction era were intended to help alleviate the massive injustices inflicted on recently freed slaves. This compensatory justice rationale for racial preferences is far different from the “diversity” rationale offered by the University of Texas to justify its racial preferences. The diversity rationale has very different implications from the compensatory justice theory, and could potentially justify preferences for a wide range of groups. In the Texas case, as David notes, many of its beneficiaries are the children of recent Hispanic immigrants who never experienced the kind of large-scale systematic discrimination suffered by American-born blacks (to say nothing of that endured by one-time slaves in the 19th century). Even if the framers and ratifiers of the Fourteenth Amendment would have been willing to allow state governments to engage in compensatory justice preferences for African-Americans, it is highly unlikely that they would have endorsed diversity preferences. After all, the dominant ideology viewed cultural diversity with suspicion and pushed immigrants to assimilate as quickly as possible.

Moreover, it seems unlikely that the overwhelmingly white (and to a large extent, still racist) electorate of the 1860s would have supported ratification of the Amendment if they had thought that it allowed state governments to discriminate in favor of blacks and against whites, while forbidding the reverse. Today, the dominant version of originalist theory is “original meaning” originalism, which holds that the Constitution should be interpreted as understood by the general public or the ordinary reader at the time of enactment (as opposed to “original intent” – the understanding of the political elites who drafted the document). It is improbable that the average member of the general public who supported the Amendment understood it to mean that states were empowered to discriminate in favor of racial minorities in ways they could not discriminate in favor of whites.

The above does not prove that adherence to originalism requires judges to strike down all affirmative action preferences by state governments. But it does undercut the standard originalist case for them. At the very least, originalist judges would have to review such policies with considerable suspicion.

UPDATE: Co-blogger David Bernstein made some related points in this post. There is some important overlap between his argument and mine. But I have let this post stand nonetheless, because it also raises some points that David didn’t address.

UPDATE #2: I have updated this post slightly to make clear that it is the text of [the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – Section 1 which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.

UPDATE #3: In my previous update, I foolishly confused the text of the second sentence of Section 1 of the Amendment with Section 2. I apologize for this error, and have now corrected.

Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic thinker, Robert Hale.

Hale was as responsible as anyone for putting the finals nails in the coffin of the American natural rights constitutional paradigm in favor of a “living constitution” and legal realism. In opposing any notion of “liberty of contract” in his famous article “Coercion and Distribution in a Supposedly Non Coercive State”, Hale claimed that trying to protect “liberty” under the constitution is meaningless because there is a fixed amount of liberty (or coercion) in any society, so giving one person “liberty” means “coercing” someone else who opposes the recognition of that liberty.

Hale was writing in the economic context, but as Professors Ian Ayres and Barry Cushman have pointed out, this can easily be applied in other contexts as well. Cushman puts it this way, re Meyer v. Nebraska, which was decided the same year that Hale’s article came out: “one might characterize a law prohibiting the teaching of German in elementary school as depriving A of the liberty to study German in school, while simultaneously endowing B with the liberty to study in a German-free school zone.”

From Hale it’s a short leap to Herbert Weschsler’s (Wechsler was a Progressive law student at Columbia in Hale’s heyday) infamous claim in the late 1950s that he could find no “neutral principle” that would lead him to conclude that public school segregation was unconstitutional:

But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension, not unlike many others that involve the highest freedoms – conflicts that Professor Sutherland has recently described. Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion.

So Delahunty’s argument has a long provenance; through the late 1950s it was prevalent on the legal left, as reflected in Wechsler’s article, but the next generation of liberals rejected such views on favor of the so-called “rights revolution.” Hale’s rights-skepticism now more often finds its home with right-wing rights-skeptics like Bork, Scalia (although his skepticism is somewhat fainthearted) and (apparently) Delahunty. But because he was a vigorous opponent of economic liberty, Hale is still celebrated by many on the left.

UPDATE: It’s also worth noting the commonalities between the arguments of Delahunty, Wechsler, and Howard Lee McBain, a Progressive professor and author of The Living Constitution (1927). In that book, McBain reacted to the Supreme Court’s refusal to countenance residential segregation ordinances by accusing the Court of destroying whites’ right to live in a segregated neighborhood.

Well-known legal commentator and former Scalia clerk Ed Whelan has an interesting critique of Judge Richard Posner’s very negative review of Justice Scalia’s recent book on legal interpretation (coauthored with Bryan Garner).

Damon Root of Reason has an interesting article giving his list of the “Top Ten Libertarian Supreme Court Decisions”:

It’s no secret the U.S. Supreme Court has often been a disappointment to libertarians....

But that doesn’t mean the High Court always gets it wrong. Here, in no particular order, are 10 Supreme Court decisions still standing where the Court put individual liberty and limited government first.

In this 2009 post, I outlined some criteria for ranking the best-ever Supreme Court decisions and made a few nominations of my own:

As I see it, the cases on the list should 1) uphold important principles, and 2) actually have had a substantial real-world impact by preventing large-scale injustices. They should also, of course, be legally correct. Criterion No. 1 rules out a large number of Supreme Court decisions that protect only relatively minor freedoms (for instance those limiting minor instances of government endorsement of religion). Criterion No. 2 rules out many cases where the Court struck down liberty-infringing laws that were already on their way out and rarely enforced. For example, Lawrence v. Texas invalidated anti-sodomy laws, a truly barbaric form of legislation that egregiously violated the liberty of gays (and occasionally a few heterosexuals). But by 2003, when Lawrence was decided, only a few states still had anti-sodomy laws and even they almost never enforced them. For this reason, Lawrence had only a modest real-world impact....

Given my criteria, the Peonage Cases of the early 1900s surely rank high, as they enabled numerous southern blacks to escape a system of forced labor and did so at a time when Jim Crow racism was at its height, and the political branches of government showed little willingness to protect black rights. Also worthy is Buchanan v. Warley (1917), which struck down racially based zoning, and helped prevent US state-imposed segregation from becoming as bad as that in South Africa under the Group Areas Act. Although it did not lead to much actual racial integration, Buchanan enabled blacks to move into many areas that would otherwise have been closed to them....

I also agree with Brad [Smith's] nomination of Schechter Poultry v. United States (1935), which invalidated the National Industrial Recovery Act, the most sweeping effort at economic central planning in all of American history. Enacted in 1933, the NRA cartelized nearly the entire nonagricultural economy; by raising prices and wages above market-clearing levels, it also increased unemployment and lowered industrial production at a time when both were already reeling from the Great Depression... Unlike most other 1930s decisions striking down New Deal laws, Schechter was never directly overruled. And the NRA was never reenacted, though the New Deal-era Congress did go on to pass a number of ill-conceived laws cartelizing individual sectors of the economy.

Co-blogger David Bernstein and I discussed the major real-world effects of Buchanan and the Peonage Cases in more detail in this article.

Schechter and Buchanan are on Damon’s list too. Several of the other cases he picked fall short on my Criterion 2. Lawrence v. Texas (discussed above) is one example. The recent Second Amendment decisions – Heller and McDonald - are likely to have only a modest impact because they will probably end up eliminating only very extreme forms of gun regulation that only a few jurisdictions have enacted. That’s still praiseworthy. But it’s not enough to crack the top ten all-time list.

Whether you agree with my particular picks or not, the more important point is that we need to be more rigorous and systematic in our comparative evaluations of Supreme Court decisions.

UPDATE: Paul Horwitz has a lengthy post at Prawfsblawg considering the question of whether the last sentence of this post was directed only at libertarians or at everyone who ranks Supreme Court decisions:

Does “we” mean libertarians, or everyone? Does he mean that we need to be more rigorous and systematic in the comparative evaluation of Supreme Court decisions in general? Or that we need to be more rigorous and systematic when constructing “top ten” lists of this kind? Or just that libertarians in particular need to be more rigorous and systematic when constructing their own top ten lists?

Let me set Paul’s mind at ease. “We” does indeed mean everyone, not just libertarians. When expert commentators rank Supreme Court cases, they should try to be more rigorous, whether they are libertarian or not. But this general point especially applies to libertarians, because most of the admittedly few libertarian “top ten” lists out there are not as rigorous as they should be on some key points. I have not done anything approaching a comprehensive survey of similar lists by non-libertarian experts. So it’s possible the latter are on average more rigorous than the libertarian lists out there.

Paul also claims that we should focus more on which decisions are most “influential” than on which decisions are “best.” As I see it, both inquiries are useful. We should indeed try to analyze which decisions are influential, regardless of whether their influence is positive or negative. But normative evaluation of Supreme Court decisions is also valuable.

Finally, I am happy to learn from Paul’s post that “libertarianism ... has certainly captured the allegiance of an ever-larger percentage of the students in my con-law classes at schools across the country.”

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which established the modern – largely pro-government – standard for regulatory takings cases.

These longstanding attitudes were sometimes obscured by loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of that rhetoric. But most conservatives used the term “activism” to denounce decisions that they saw as departing from originalism, not simply ones striking down laws.

There is greater consistency than meets the eye on the liberal side too. While liberals have long favored aggressive judicial review on issues like privacy rights and defendants’ rights, they have for decades opposed nearly all judicial enforcement of structural limits on federal power, and most judicial protection for property rights and economic liberties. For nearly a century, the dominant left-wing view has been that such issues must be left to the political process. I think the latter attitude is misguided. But it’s hardly new.

In sum, the main disagreement between liberals and conservatives is not about whether judicial review in general should be deferential to the political process, but rather on what kinds of legislation should be treated deferentially and what kinds should not. There is also, of course, an important longstanding debate over methodology: whether the courts should rely on originalist methodology in deciding which laws to strike down, or whether they should give greater weight to various “living constitution” theories.

I don’t fully subscribe to either the conservative or liberal approaches to judicial review. And I don’t think either has been anything close to fully consistent over time. That’s especially true if you shift the focus away from scholars and judges to politicians and parties, which are more likely to be influenced by short-term political calculations. But both have been a lot less inconsistent than some commentators like to suggest.

The struggle over the individual mandate was not some strange role reversal. It was a continuation of a longstanding battle over the issue of judicial enforcement of federalism.

UPDATE: I should mention that I am still abroad, and therefore may not be able to respond to any responses this post may generate for some time. I took advantage of a short break in my travel schedule to write this post and my previous one.

UPDATE #2: Co-blogger David Bernstein reminds me of Rehnquist’s notable 1981 concurring opinion in Hodel v. Virginia Surface Mining, where he criticized the Supreme Court’s Commerce Clause jurisprudence for giving Congress too much power.

UPDATE #3: Alicea responds to this post here:

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows....

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Robert Bork undoubtedly adhered to the Justice Harlan conception of restraint, and I think it is fair to say that his jurisprudential views were emblematic of the movement until the early- to mid-1980s. Somin focuses on Rehnquist’s views, but my argument was much broader and does not rise or fall with how the Rehnquist of the 1970s is categorized.

Thus, I think that in arguing that my case is overstated, Somin overstates my case. He ascribes positions to me that I did not express in the article. To take another example, I did not say that the healthcare decision “represents a sea change in conservative attitudes to judicial review.” In fact, I argued quite the opposite: that the change in legal conservatives’ conception of judicial restraint has been going on since at least the 1990s. The healthcare decision simply highlights how far legal conservatives have moved away from the old, Justice Harlan conception of restraint, with its emphasis on deference to current majorities and modest view of the judicial role...

I end by noting that neither Somin nor [Ed] Whelan disagreed with a key argument in the article: that there are two different views of judicial restraint within the conservative legal movement.

With regard to Rehnquist, as I explain in my original post, he argued for strong judicial review on federalism and property rights issues long before the 1990s, and indeed going all the way back to the 1970s. in the 1976 article that Alicea cites, Rehnquist criticized not strong judicial review as such, but judicial review based on “living constitution” theories. He did not object to aggressive judicial review in cases where the legislature adopts laws that are unconstitutional from an originalist point of view.It is also important to emphasize, as I briefly note above, that Rehnquist was not alone in holding those views. Several other conservative justices of the era expressed similar views on federalism, notably Sandra Day O’Connor. Robert Bork did indeed express a more deferential approach to judicial review. But even he suggested in his writings of the 1980s and early 1990s that much of the post-New Deal federalism jurisprudence was questionable. Other prominent conservative jurists made similar statements. Thus, Alicea is wrong to trace the change in conservative perspectives on these issues only back to the 1990s. In reality, it dates back at least to the early to mid-1970s.

I should add that when I said that, on Alicea’s theory, “the individual mandate case represents a sea change in conservative attitudes to judicial review,” I did not mean to suggest that he thinks the sea change occurred only as a result of this case, but rather that the conservative reaction to the mandate is part of a relatively recent change in attitude. I apologize for any confusion on this point. However, I think we do differ in so far as he portrays the change as a relatively recent development, whereas in my view it had deep roots going back several decades.

Finally, I agree that there are at least two views of the judicial role among conservatives. Indeed, there are probably many more than just two. My point, however, is that many prominent conservatives have been arguing for strong judicial review on federalism and property rights issues for a long time now. Neither the 1990s nor the individual mandate case represented a sea change in that respect.