Saturday, August 22, 2009

But can any serious person believe there are five votes?

Sandy Levinson

Jack notes below the "inevitable" move of those opposed to reform of our medical care (or, for many, medical non-care) system to the plane of constitutional law. He notes the reliance on a 1919 case, which in turn relied substantially on the infamous case of Hammer v. Dagenhart (1918) that held child labor laws to be beyond Congress's power. And, of course, the Old Court that battled the New Deal relied on these cases and such classic distinctions as "commerce" v. "manufacture" and, even more to the point, "direct" and "indirect" effects on commerce. (The current majority returned, in effect, to the latter in the infamous Morrison case invalidating parts of the Violence Against Women Act because domestic violence isn't actually a "commercial activity"; it "merely" affects commerce, but if you allowed that to count, then nothing would be protected against congressional control unless it's explicitly protected by the Bill of Rights.

So what the opposition will do is proclaim that it's time to take the "real" Constitution out of exile and return to the pre-1937 understanding. Jack says he'd love to debate that, as would many of us, but what would be the point? Is it "crazy" to argue that the New Deal was unconstitutional? Not really, depending on your theory of the Constitution. After all, Jack's great colleague Bruce Ackerman basically agrees that the New Deal required a constitutional transformation, a "non-Article V constitutional amendment," and I basically agree. And, like Ackerman, I see no problem with that since otherwise our constitutional order would be even more dreadful than I think it is (since Ackerman, for all of his brilliance, simply ignores the fact that our "hard-wired" structural constitution isn't really amendable to clever "workarounds" or, at least so far, similar kinds of "constitutional moments" as we saw during the New Deal.

There are certainly "respectable people" in the legal academy--begin with Richard Epstein and go on to Randy Barnett or Ilya Somin, in the next generation, not to mention the Cato Institute contributors to the very interesting The Dirty Dozen--who argue that the New Deal was unconstitutional, and I assume that Jack wouldn't flunk them in a Con Law I course, at least so long as they admitted that they've long since lost that battle in the Supreme Court. But, after all, I know that Jack, like myself, believes in "constitutional interpretation outside the courts," so it really isn't dispostive as to "possible constitutional arguments" that there is no judicial support for a given proposition. But, for better and, I believe, worse, most Americans have been trained to believe that "the Constitution is what the Supreme Court says it is." So what must proponents of "the unconstitutional medical plan" really be thinking if they are making an argument that they expect to be taken seriously by the general public and not merely by constitutional theorists?

The answer is simple: They have to posit that there are five votes on the current US Supreme Court to adopt Bailey and other pre-1937 relics in circumstances like the following: Obama and his allies have successfully surmounted both the institutional obstacles created by our hard-wired Constitution (e.g., the ridiculous power given in the Senate to provincials like Max Baucus and Olympia Snowe and the other members of the "gang of six," who represent, in toto, 2.77% of the entire American population) and the additional veto points created by the absurd filibuster rules. This will happen, as was the case with the Civil Rights Act of 1964, if and only if there is real support among the general public that insists on some kind of significant change. That, after all, is why hundreds of millions of dollars are being spent even as we speak on television ads (and twitters) to capture the public.

So imagine that such a bill passes and then diehards ask the courts to invalidate it. Is that really imaginable. For starters, could they count on Scalia, given his vote in the medical marijana case? Kennedy believes in the "dignity of states." But is he really willing to become George Sutherland at this stage in his career. Will John Roberts really want to make Bush v. Gore look like a tea party (given what we knew and didn't know in 2000 about George W. Bush's utter unfitness to be President of the United States) by dooming a widely-accepted reform? Ask yoursekf if there would have been five votes against the Civil Rights Act in 1965 had Congress predicated it on Section 5 of the Fourteenth Amendment, the preferable route, instead of the doctrinally easier Commerce Clause, which easily got nine votes? Maybe Harlan would have chosen to be a doctrinal purist and dissented, but how much would one want to bet on that proposition?

My own view is that I'd love to debate the mossbacks while wearing my political scientist hat, while Jack can, very ably, wear his law professor-doctrinalist hat. And that's because I view as almost truly frivolous the belief that the courts will--or ought--to take on both Congress and the President with regard to something so basic as medical reform.


I don't think it's so much that most Americans have been trained to believe that the Constitution is what the Supreme court says it is, (This is undoubtedly true of legal professionals, however.) as that most Americans take, as a default position, that the Supreme court says the Constitution is what it really is. That is, they assume until proven otherwise that the Court is honest. And most constitutional issues lack the salience for the average American which would drive them to crack open a copy of the Constitution, and actively compare what it says to the court rulings.

The authors of this op-ed ended it thusly:

The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

SL suggests that the test needs to be what the SC would decide because the public has been "trained" to think such "mandates" are what the Supreme Court says they are.

It is assumed that the New Deal is special. There "workarounds" existed, but not now, even though we again have one party in control of each elective branch. I'm curious as to why this is so.*

Releatedly, the public there had a growing disagreement with the Court as to what the law was. This (as Madison saw with the Bank of the U.S., see previous thread) affected development of court doctrine. Prof. Balkin feels the confirmation process influences such development.

So, why exactly are we compelled to be bound to what five justices think? Repeatedly, justices struck down abortion limits, but the legislatures kept on putting new ones up until Casey, where a looser standard was put in place.

Furthermore, the message here comes from a minority, one that promotes a minority view of the Constitution. In fact, the authors of this very op-ed recently wrote a piece for Slate denouncing current "second guessing" of five justices as to habeas. They felt the SC on some level "arrogated" themselves since c. 1790.

Their reasoning here is dubious at best. But, the fact that they won't get five justices on their side is not the point. It is the bring forth enough doubt to influence policy. Note how the op-ed appeals not to the courts but "the people."

Thus, this entry seems misguided.


* The "workarounds" included a recognition that various constitutional principles in the modern state required a new path while staying loyal to constitutional norms.

IMHO, SL does not have enough confidence this can be done today in various respects.

Frankly, I think for most ordinary, low-information Americans, the whole concept that the federal government is one of limited powers is an unfamiliar one. I recently finished my first year of law school, and our constitutional law professor commented that that is often the most difficult concept to get across. (Although our class actually accepted it fairly readily). Brett would probably say that is because Americans have become habituated to federal usurpations. (We can get into that debate later if he wants).

My current understanding of the Supreme Court is that they have interpreted the meaning of "interstate commerce" to mean interstate commercial activity. Non-commercial activities are not covered by the Commerce Clause, but any attempt to return "commerce" to a pre-1937 meaning is simply absurd and unworkable in an economy as integrated as ours. They almost always defer to Congress on the General Welfare Clause.

Any attempt would to return to pre-1937 would mean an end to Social Security, Medicare, the Fair Labor Standards Act and enough other popular legislation as to provoke a political explosion. (And to deter any mainstream political figure from even trying). As I understand it, even the staunchest originalist, though denouncing the New Deal as unconstitutional, have generally conceded it is too well entrenched to make any attempt to uproot. Once again, Brett would probably say that this means the American people have been corrupted. I suppose I would reply, "Deal with it, dude."

I congratulate Professor Levinson for being able to say in several paragraphs what a cartoonist once said a few words: the Supreme Court follows the election returns.

Since I read Dilan's comment as quite snarky, I feel it's appropriate to point out that it wasn't a cartoonist, it was Peter Finley Dunne writing as "Mr. Dooley." He was also writing about the incredibly important Insular Cases (1901), in which a 5-4 majority basically legitimized American imperialism and ruled that Puerto Rico wasn't really part of the United States, a doctrine that remained important for the Bush Administration when arguing that Guantanamo wasn't part of the US and therefore wasn't covered by the Constitution.

Also, Mr. Dooley was being critical. My own response is "why shouldn't the Court follow the election returns" in matters where the Constitution cannot really be said, save by dogmatists, to have a determinate meaning?

Finally, anyone familiar with my work (which I don't really think that Brett is) should know that I've been arguing against judicial supremacism for at least three decades. But that doesn't mean that I've won my argument, anymore than my declaiming against our dysfunctional Constitution has persuaded most of you. The empirical fact, alas, is that most Americans, and even more practicing politicians, do believe that the Court has the last word on what the Constitution means. At the very least, anyone who argues that X is "unconstitutional" will be asked "do you mean to say that judges will agree with you," and if you say "no, but the fact that almost all sitting judges have a different view is a sign that they're all wrong and I (and my friends) are right" will be taken as a sign of, shall we say, megalomania. Trust me, as someone who has often argued that judges get it wrong, I know what the response of most people, including friends and family, can be. As it happens, of course, I disagree substantively with the view that the New Deal was unconstitutional or that there would be the slightest constitutional problem with the health care bills that are being discussed. But if I agreed with that view, I would be additionally depressed by having to concede that it is basically delusional to believe that there are five votes on the present Court, with its conservative majority, who would vote to strike them down.

I recently finished my first year of law school

I guess you'll soon be changing your posting name. I'm just not sure which half no longer applies.


When the time comes, I'll be taking suggestions about an alternative. ;-)

Was this Washington Post op-ed really an argument about what the law "is"? (Whether in the court-centric sense, or in any other sense?) I'm not so sure it was.

The authors of the op-ed were breathtakingly breezy in the way they brushed past the main legal issue. They quote Raich ("quintessentially economic") and then say: That simply would not be true with regard to an individual health insurance mandate. The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist.

That's the whole argument. I know there are space constraints in op-eds, but this seemed to me so conclusory that it reflected an obvious lack of interest in even pursuing the argument. They must have some points they would like to deploy about why paying for health services is not commerce, or why insurance is separate from paying for health services, or something. (They must have something.) But they didn't even try.

This suggests to me that maybe this op-ed was not really part of any long-term legal movement to overturn the New Deal -- maybe it was, instead, a shout-out to a short-term political movement that is more concerned with attacking the health plan from every angle (and perhaps, attacking Obama's legitimacy as well). On this view, this op-ed was essentially an effort to provide legal cover to people who want to make political objections to health reform. And it did that, by providing the skeleton of an argument that -- while totally implausible even within mainstream-conservative lawyer world -- might sound convincing to a non-lawyer concerned about government takeovers and socialism.

"As it happens, of course, I disagree substantively with the view that the New Deal was unconstitutional or that there would be the slightest constitutional problem with the health care bills that are being discussed."

Well, yeah. The mainstream legal position is that the actual words of the Constitution are essentially irrelevant to determinations of Constitutionality, once the Supreme court has decided it doesn't like them. Which it does with depressing reliability if Congress doesn't like them.

It's perfectly understandable the legal community would take this view: You're the Emperor's courtiers, and continuing to be that requires that you admire his robes. It really is that simple. Everything beyond that is just rationalization, and I sometimes laugh when I think that you believe anybody else buys it.

The reason I take issue with this is NOT that I think there's any real prospect of getting the judiciary to abandon this view. It's because, dude, the Emperor IS freaking naked. And somebody's got to keep pointing it out. My decision not to buy insurance isn't interstate commerce, and the commerce clause doesn't contain the word, "effects".

"But if I agreed with that view, I would be additionally depressed by having to concede that it is basically delusional to believe that there are five votes on the present Court, with its conservative majority, who would vote to strike them down."

Yeah, it is depressing to know that the Constitution is just barely short of dead, and that the obituary is probably going to be published before I retire.

What's really depressing about it, is that the Constitution's successor is probably going to be stillborn, given the sort of legal community we have, unless it's birth involves some kind of revolution barring anybody who used to practice law from continuing to do so. Because the way you've been trained to think about law, (In order to not inconvenience the nudist Emperor.) is deadly to the entire concept of constitutional government. You'll strangle the next constitution in it's crib, it's the only thing you know how to do.

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This comment has been removed by the author.

It seems to me that by citing Court opinions, Rivkin and Casey are implicitly conceding Prof. Levinson's point that it's the Supreme Court which determines constitutionality. That being the case, they'd have to make a serious argument that today's court would strike down any health care system under consideration. They don't do that, probably because, as Joey says, they never intended their editorial to do anything other than provide pseudo-legitimate cover for their political views.

I'm not so sure, though, that today's Court would uphold it. There are 4 extremist ideologues on the Court, and they can see that their political movement is gravely threatened. Like all such political movements, they will try to use their power to undo what the political branches have done. The fact that any such decision would be grossly hypocritical for some of them in light of, say, Raich, won't matter.

I think the vote on the Court will be closer than Prof. Levinson predicts.

"It seems to me that by citing Court opinions, Rivkin and Casey are implicitly conceding Prof. Levinson's point that it's the Supreme Court which determines constitutionality."

No, they're explicitly arguing that the law is unconstitutional even if you wrongly believe that the Supreme court, (Rather than the Constitution.) determines constitutionality. At least based on current wrong precedents; The Supreme court could always decide to get things even further wrong.

Dunne was in part a political cartoonist.

It should also be noted the op-ed specifically targeted individual mandates, not the whole bill, though others have. See, Volokh Conspiracy for a link.

I'm accord btw with my namesake.

Brett, your last post is incoherent. If the Supreme Court's current precedents are right, then it makes no sense for Rivkin and Casey to make their argument. If the current precedents are wrong, then they're arguing that the Court is not the last word. By citing to the Court at all, they concede that the Court is determinative (even if only in the sense that it would have to overrule its previous decisions).

Procedurally, the Court is the last word, but this doesn't preclude that word being wrong.

"Dispostive" (sic) is a lovely Fehlleistung. I think it would apply to deletion of comments by say Bart.

Those who subscribe to original meaning constitutionalism have two problems initiating a counter revolution: (1) The majority of the legal profession is left of the population at large and considers themselves rather than the Constitution to have the final word on the law, and more problematically (2) the minority of conservative members of the legal profession are further diluted by those who believe that stare decisis should apply to previous decisions at odds with the Constitution.

Thus, the conservative judiciary generally concedes past judicial violations of the Constitution and only holds the line against doing further violence to our nation compact. It is a rare event indeed when a conservative court reverses bad precedent and finds that the Constitution again guarantees a lost freedom or a check in government power. That is why a decision like Heller will be savored for years by those of us who believe the Constitution means what it says.

The epitaph for "Originalism" will read:


Our intrepid backpacker (whether "diluted" or "deluded") ignores that both the majority (5) and minority (4) decisions of Heller claimed originalism - not textualism - as their bases, with extensive historical references.


You are getting tiresome. Reread Heller and then find me another 20th or 21st century constitutional law decision where more justices on both sides are spending more time discussing the original meaning of the text.

I had the impression that our intrepid backpacker who has often referred to himself as a textualist was being critical of original meaning constitutionalism with his comments. Has he abandoned textualism? My comment stressed that both the majority (5) and minority (4) decisions relied upon originalism - and not textualism - there is a distinction, isn't there? But Heller, because of the harm its extension may cause, may serve as the death knell for originalism, thus R.I.P. And bury that backpack full of you-know-what along with it.

You're expecting Heller to cause such damage that it discredits originalism?

Bwa ha ha ha!

Man, you must not merely have drank the gun control koolaid, you must have it flowing through your veins, and pouring out your every orifice.

Heller barely finds objectionable the strictest gun control regime in the country, covering a few square miles and a tiny fraction of the population. Even if it gets incorporated against the states, unless it gets expanded, too, all it's going to do is force a few big cities like Chicago to be a little less restrictive.

And you think that's going to be a disaster of epic proportions? Again,

Bwa ha ha ha!

Brett enjoys shooting blanks. But the guns nuts will try to go all the way for the absolute right to keep and bear arms any and everywhere, including during oral arguments at SCOTUS..

But you didn't say, "A quite different ruling from Heller, which embodied the wildest dreams of the fringe of the pro-gun community, would backfire." Maybe it would.

You said "Heller". And Heller, despite the rampant hysteria on the part of the anti-gun community, is a pretty mild ruling. You'd have to extend it by leaps and bounds to even approach the status quo of a few decades ago, when children could buy guns mail order, and travelers loaded their rifles into the overhead baggage compartment. And the murder rate was not extraordinarily high.

Anti-gunners tend to forget how recent their victories are, and how LITTLE blood was running in the streets before they won them. It's drinking your own koolaid: You make hysterical predictions, then are foolish enough to believe them yourselves.

I don't expect the Heller trend to go very far, Scalia signaled that by the way he misstated the holdings of the Miller court. But even if the courts made the median NRA member ecstatic, it would bring us to a place history tells us is a lot less bloody than the fantasies of anti-gunners.

So, I stand by my Bwha ha ha!

"But even if the courts made the median NRA member ecstatic, it would bring us to a place history tells us is a lot less bloody than the fantasies of anti-gunners."

I don't know if "anti-gunners" have fantasies - at least about guns. And I wonder how a "median NRA member" might be described.

So perhaps there won't soon be that once proposed million man march on Washington, DC by keepers and bearers of arms, carrying open and/or concealed.

I have downloaded Brandon P. Denning and Glenn H. Reynolds' "Heller, Hight Water(mark)? Lower Courts and New Right to Keep and Bear Arms" in 60 Hastings Law Journal 1245, available at:

I had earlier downloaded and read a draft of this article that I shall have to dig out before reading the Hastings final. The floodgates post-Heller have been somewhat controlled. However, even the median NRA member must be anxiously awaiting how far Heller may extend. Although it's too early to determine its place in history, if the extension is anything near an absolute right to keep and bear arms, then perhaps in time Scalia's Heller might match Taney's Dred Scott. Which brings to mind Bret and Bart Maverick.

And it's too early to say

"perhaps in time Scalia's Heller might match Taney's Dred Scot"

Heller allows loads of regulations so is not anywhere near an "absolute" security, much to Brett's annoyance I'm sure.

That's why I was laughing. Yes, much to my annoyance, but not to my surprise: Scalia is notorious for his reluctance to upset settled law, no matter how bogus the constitutional basis for it. It was a given going in that he wasn't going to be a vote to invalidate the NFA, for instance.

We lost the right the 2nd actually guaranteed, in favor of a right to own such arms as the government isn't disturbed at our owning. Well, it's better than nothing, though worse than what we used to have.

"Heller allows loads of regulations so is not anywhere near an 'absolute" security' ...."

But Joe, that's loads of dicta. A number of originalists have been critical of this dicta as not supported by the historical record in the application of originalism. And many states' constitutions provide rights similar to the Second Amendment that may override Scalia's dicta if certain "median NRA members" have their way. Incorporation of the Second Amendment, with Scalia's dicta limitations, may be trumped in a particular state by its own comparable provision. And "privileges [and/]or immunities" may permit crossing state borders.

Getting back to Dred Scott, while it was aimed directly at slavery in territories, it was understood by many as the stepping stone to challenge non-slave states' approach to sojourners. So I would expect at both the Federal and state levels challenges to Scalia's dicta by the "median NRA member." Let's hear from the Mavericks.

Dicta or not, it is in the opinion and is in the spirit of the basic sentiment of Scalia: the test is what was traditionally understood by the right in question, including various regulations.

[FWIW, I think he was more right than wrong on the point.]

I'm unsure about state constitutions being used otherwise -- repeatedly, state constitutions have upheld the basic right in question but also various regulations. They did so back to the 19th Century. When a court in KY was particularly libertarian, there was a backlash.

Yes, Dred Scott was feared to be just a stepping stone; so thought (at least in public statements) Lincoln. If the Civil War did not come, e.g., the SC might have decided Lemmon v. People, a case where NY rejected the right of sojourners.

But, DS was totally pro-slavery, Taney going out of his way to reject popular sovereignty in the territorial legislatures. Heller went out of its way (dubiously I might add) to make clear the right here could be limited in any number of ways.

It was "activist" in this fashion. It should have set forth a basic rule & remanded the case to the district court to decide the specific issue. And, not set forth a list of regulations allowable. But, it's ironic to use this as proof that it is really bound to be more pro-gun than it was.

What if Scalia had not provided his dicta about some limitations? How might the absolutists have reacted? Perhaps Scalia had pangs of conscience with his dicta to avoid opening the floodgates. The dicta list of limitations is relatively short. Can we expect absolutists to pursue in both federal and state courts the dicta and other limitations? What develops will take up a long period of time and constitutional tensions may heighten, with positions hardening at the extremes. Keep in mind that Heller was 5-4.

Perhaps this may fizzle out without a big bang as seems to have been the case with regulatory takings in more recent years. But surely the absolutists will be seeking to add notches to their Second Amendment gunbelts. Hopefully there will not be a repeat of the 1850s with lines drawn in the sand that lead to the Civil War. As sad as the Civil War was, there were battle lines that protected many civilians to a significant extent. Second Amendment battle grounds - grassroots - could erupt anyplace, even in houses of worship, anytime, with the Lord on both sides. Let's see how SCOTUS grants cert.

[Note: I just ordered Elizabeth Varon's 2008 "Disunion! The Coming of the American Civil War, 1789-1859" and look forward to reading it. I just finished reading William Wiecek's 1977 "The Sources of Antislavery Constitutionalism in America, 1760-1848" which has lead to my concerns with Heller for our times and my earlier reference to Taney's Dred Scott decision in comparison to Scalia's Heller decision. I hope I'm wrong.]

Heller, saying it was not exhaustive, listed many of the major regulations:

felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

The opinion also cites several cases, with apparent approval, upholding limits on concealed weapons. Scalia is no absolutist, as his supporting many limits on "no law" abridging freedom of speech shows.

But, time will tell what happens.

Scalia's reference to "dangerous or unusual weapons" including comments during oral arguments (available over at also appears to cover machine guns.

As to various type of 'assault weapons,' that is unclear. Maybe, Bart will argue it in front of the SC in a few years. :)

Regarding "felons," a recent decision looked into the details of a particular "felon" and concluded that that "felon" should not be barred from Second Amemdment rights.

As to weapons in common use, over time certains presently prohibited arms may achieve such usage. (Does this suggest "living constitutionalis" that may result in many deaths?)

As to schools, think of US v. Lopez that failed on the commerce clause to proscribe weapons within a short distance of schools.

With regard to government buildings, perhaps such limitations suggest the fears of both elected and appointed officials for their own safety. But what about the many non-governmental buildings that service the public?

The legal costs of challenging limitations may not thwart abolutists. There are plenty of Mavericks out there without these brothers' sense of humor.

Speaking of humor, I can just imagine our intrepid backpacker as Palladin ("Have Backpack - Will Travel") carrying (on) before SCOTUS. Or am I thinking of "Quickdraw McGraw"?

"What if Scalia had not provided his dicta about some limitations? How might the absolutists have reacted?"

I think you represent a pretty clear demonstration that the absolutists went b*tsh*t crazy even WITH those limitations.

Or maybe you think people who insist the 2nd amendment absolutely can't be about an individual right somehow don't count as absolutists?


Since the Fat Lady hasn't "sung" on this thread with its scroll limitations, consider Robert A. Levy's article titled "Gun Owners' Next Victory in D.C." in yesterday's (9/6/09) WaPo. The result may be carrying outside the home, perhaps open, perhaps concealed. Levy states that "Regulations consistent with the Heller opinion will be permitted." But Levy says: "That means government has the burden of demonstrating that its proposed regulations are necessary." Gun-nuts are prepared to challenge most regulations. How about carrying into SCOTUS during oral arguments?

Kurt Lash has an interesting post at PrawfsBlawg on Sept. 3, 2009, titled "Originalism and the Fourteenth Amendment" on follow up cases to Heller. He plans follow up posts on this subject. Here's his closing sentence:

"But readers are reminded that, even if a degree of original understanding is recoverable, there remains the normative issue of whether and how we ought to apply this understanding to contemporary debates." His focus is upon the Privileges or Immunities Clause of the 14th Amendment.

OOPS! Lash did follow up with a 9/5/09 post "The Ninth Amendment and the Original Bill of Rights." And this was followed up with Rick Hills' 9/6/09 post "How Kurt Lash cured me of originalism" to which Lash responded (9/6/09) with "How I cured Rick Hills of Original Intentions Originalism." Perhaps our Mavericks at Balkinization should endure the Lash to cure them as well.

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