an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Supreme Court Holds That Congress Has Incorporated Entire Bill of Rights
Exclusive to Balkinization! Must cite Balkinization!
On Monday, June 28, 2010, in McDonald v. City of Chicago, the Supreme Court inadvertently held that Congress had already applied the entire Bill of Rights to the states through the Civil Rights Act of 1866. The Court held that the Civil Rights Act was intended to protect substantive rights, including the Second Amendment right to bear arms. The same evidence of legislative intent, however, shows that Congress sought to enforce the Bill of Rights generally against the states. This means, among other things, that Congress has enforced all of the remaining provisions of the Bill of Rights against the states: The Third Amendment, the Fifth Amendment Grand Jury trial right the Seventh Amendment civil jury right (depending on what that right actually is), and the Eighth Amendment's ban on excessive fines. Under the Court's new reinterpretation of this venerable civil rights statute, the Civil Rights Act of 1866, currently codified at 42 U.S.C. section 1981, offers a general guarantee of basic constitutional liberties against the states.
This is the kind of judicial activism that would make the Warren Court proud! In making their case for why the Second Amendment applies to the states, both Justice Alito's plurality opinion and Justice Thomas' concurrence pointed to evidence of framers' intentions in the Civil Rights Act of 1866 and the Freedman's Bureau Act of 1866.
Section 14 of the Freedman's Bureau Act provided that "the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens ... without respect to race or color, or previous condition of slavery."
The 1866 Civil Rights Act included similar language, securing "the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens."
Both Justice Alito and Justice Thomas, pointing to the words "full and equal benefit," argued that these statutes guaranteed substantive rights as well as racial equality. Pointing to the words "including the constitutional right to bear arms," in the Freedman's Bureau Act, they argued that the intent of the framers of these acts was to secure fundamental rights like the right to bear arms.
Justice Alito points out that John Bingham, the principal drafter of the Fourteenth Amendment, believed that these two acts protected the same set of rights. Bingham, it should be noted, voted against the Civil Rights Act because he believed that Congress did not have power to enforce the Bill of Rights against the States. Nevertheless, the Republicans who voted for the Civil Rights Act believed that they did have the power to enforce the Bill of Rights against the states.
The practical effect of section 14 of the Freedman's Bureau Act lapsed when southern states rejoined the union. However, the 1866 Civil Rights Act is still law; the language quoted above (as modified by section 16 of the Enforcement Act of 1870 to protect persons and not just citizens) appears at 42 U.S.C. section 1981. The headnote to section 1981 says "equal rights under the law." That will have to be changed as a result of McDonald!
McDonald argues that section 1981 is not a mere equality provision but protects substantive rights, to wit, "the full and equal benefit of all laws and proceedings for the security of persons and property." The decision looks to legislative intent to show that these rights included the Second Amendment. However, as Michael Kent Curtis has pointed out, the legislative purpose that the Court relies on shows far more than this: the framers of the 1866 Act believed that "laws and proceedings for the security of persons and property" included all of the rights guaranteed by the Bill of Rights.
According to the logic of the Court's argument, section 1981 already applied the Bill of Rights to the states even before the Fourteenth Amendment was ratified. This is a great day for civil liberties in the United States!
We can avoid this conclusion in several ways, all of which create their own embarrassments.
First, we can say that we should only count legislative intent where it points to enforcement of the Second Amendment but not enforcement of any other right. But this is ad hoc. The Court's claim is that the Civil Rights Act of 1866 protects Second Amendment rights even though, unlike the Freedman's Bureau Act, it does not explicitly mention the right to bear arms. But the language of "laws and proceedings for the security of persons and property" would seem to describe the personal rights in the other amendments as much as the Second, and as Curtis points out, that was precisely what the Reconstruction Republicans who voted for the act intended.
Second, we can say, following Justice Scalia (who joins in McDonald), that legislative intention can never be used in interpreting statutes. But the Court has not adopted this general interpretive rule, and in McDonald, the plurality and Justice Thomas seem quite determined to look behind the text of the 1866 Civil Rights Act to show that it was intended to protect the substantive right to bear arms.
Third, we can argue that Congress lacked the power to enforce the Bill of Rights in 1866 and that the Civil Rights Act of 1866 was simply unconstitutional. However, Congress reenacted the identical language (extending its coverage to persons, not just citizens) in the Enforcement Act of March 1870, following the ratification of the Fourteenth Amendment, using its section 5 powers to enforce the Fourteenth Amendment.
Fourth, we can argue that although Congress reenacted this language under its powers to enforce the Fourteenth Amendment, section 1981 is not congruent and proportional to the rights guaranteed by the Fourteenth Amendment, citing the Court's modern section 5 jurisprudence in cases like Boerne and Garrett. It is therefore unconstitutional to the extent that it attempts to enforce the Bill of Rights. The difficulty here is twofold. First, a law which the Reconstruction Congress believed enforced the same rights as the Fourteenth Amendment must be congruent and proportional to the Fourteenth Amendment if any law is. Second, the fact that the Reconstruction Congress--consisting of the same people who passed the Fourteenth Amendment--passed the 1866 and 1870 Acts strongly suggests that the law is constitutional, and that Courts' modern section 5 jurisprudence is simply wrong if it suggests otherwise.
I'm sure there are other ways to wriggle out of this conclusion. But in the meantime, I wish to celebrate the Court's courageous holding that Congress already enforced not only the Second Amendment, but the entire Bill of Rights against the States by statute in 1866!
And this leads us to the last, shocking revelation: If the Court's argument about Congress's intent in McDonald is correct, it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question.
After all, if the Court is correct that the Civil Rights Act of 1866 was designed to enforce a substantive right to bear arms, the Chicago ordinance is preempted to the extent that it conflicts with 42 U.S.C. section 1981. Thus, the Court could simply have noted that the Reconstruction Congress intended to apply the right to bear arms to the states through the 1866 and 1870 Civil Rights Acts, and then deferred the constitutional question. Why Justice Alito felt compelled to keep going at this point is puzzling. Perhaps he did not realize that the Civil Rights Act of 1866 is still in effect!
UPDATE: Sasha Volokh, taking me far more seriously than I deserve, correctly points out that even if the Court rested its decision on statutory grounds, the section 1981 theory of incorporation raises at least some constitutional questions. For one thing, it raises the question whether Congress had the power to pass the Civil Rights Act of 1866 and the Enforcement Act of 1870. According to its supporters, the 1866 CRA was passed under Congress's powers to enforce the 13th amendment, the 5th amendment's Due Process Clause, and Article IV, section 2. The Enforcement Act was passed under section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment. (Of course, we are assuming that these questions were properly raised before the Court; in fact these issues seem to have escaped everyone in the litigation, not least the Court itself.)
So Sasha is right that one would have to decide at the very least whether the Fourteenth Amendment gives Congress the power to enforce the Bill of Rights against the states. Now what's particularly amusing here is that this is precisely what the Fourteenth Amendment was designed to do, as explained by its principal framer (John Bingham) the floor manager in the House (Thaddeus Stevens), and the floor manager in the Senate (Jacob Howard). Indeed, you could make a pretty strong claim that securing Congressional power to enforce the Bill of Rights was far more important to the Congress that drafted the Fourteenth Amendment than securing the Court's power. The Court's current focus on whether it should incorporate gets it precisely backwards. What Congress wanted was to give itself the power to enforce the Bill of Rights against the States. We might say, a la Jed Rubenfeld, that this was the paradigm case of Congressional power under section 5. If this particular result is problematic under modern cases like City of Boerne v. Flores (a decision joined by both Scalia and Thomas!), then it just goes to show you how wrong these cases are. Posted
by JB [link]