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Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
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lmcclain at bu.edu
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Michael Stokes Paulsen
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K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
President Trump and the Bill of Rights
Wednesday, April 26, 2017
President Trump and the Bill of Rights
Gerard N. Magliocca
I'm pleased to announce that my new book (The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights) will be published by Oxford University Press in December. I'll be posting about some aspects of the book occasionally between now and then.
While Trump may not have referenced "The Bill of Right"," he has had some things to say about the 1st A and the 2nd A. Perhaps Trump has made references other portions of "The Bill of Rights" as well.
James Buchanan did so in his State of the Union Address:
"To this we are also indebted for the bill of rights which secures the people against any abuse of power by the Federal Government."
The backstory of that reference, including disputes involving rights in the federal territories, is informative.
Individual rights were cited before that. Madison invoked the 1A in a veto message. http://www.constitution.org/jm/jm_estab.htm "Congress shall make no law respecting a religious establishment." If quoted correctly, an inexact quote. By James Madison.
Jefferson cited specific rights in his inaugural, including "a well disciplined militia, our best reliance in peace, and for the first moments of war, till regulars may relieve them:—the supremacy of the civil over the military authority."
Jefferson and Madison also spoke of the "bill of rights" before their presidencies. Finally, the proper capitalization of "president" is a bit confusing. Looking into it in the past, apparently the standard manuals (AP etc.) instruct us not to do so when it is standing alone. But, general usage might be different.
I am less concerned whether a president discusses the Bill of Rights and more concerned whether a president violates the Bill.
Congrats on the book.
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Saw reference to a Bill of Rights mug.
When you put hot liquid in it, only the second, third and tenth amendments show.
I have to admit, I'm unclear about the point of picking random clauses to highlight. I like the entire Bill of Rights, even if the ACLU has no use for part of it.
"the ACLU has no use for part of it"
= "I disagree with their understanding."
People generally have their own favorites. It's like many parents. They love all their kids, but you know one is kinda their favorite.
I direct you to Nadine Strossen's remarks in a Reason interview. (Wow, 23 years ago, how time flies!)
"Putting all that aside, I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty."
Yeah, the ACLU usually pretends that it's just a matter of 'interpreting' the 2nd amendment differently, but Strossen admitted even back then: They don't really like parts of the Bill of Rights, and aren't going to be roped into defending the parts they don't like.
Anecdotally, I was at a supper club back in the 80's, where the guest was Ira Glasser. We questioned him about the ACLU's failure to defend the 2nd amendment.
He admitted it was unprincipled, but claimed that the ACLU's donor base was hostile enough to the 2nd amendment that the ACLU couldn't really afford to defend it, so he thought it was expedient to leave it to the NRA. He's since, of course, rationalized that the decision was right, not just expedient. Not unexpected.
A few anecdotes don't change the overall position of the ACLU (the actual "donor base" and membership has diverse views, lots of lefty types owning guns etc.) from what I can tell is the collective rights view. Again, this would be not be your view, but that is different from not having any "use" for the amendment itself.
An answer from one person is of limited value here but it's useful to read the whole thing, including her arguing the text and history leaves open the path to gun regulation. The first part of the specific part you quote also shows that the ACLU goes beyond the bare minimum of the constitutional requirements. Thus, she goes beyond 2A alone to an open-ended "civil liberties" argument.
And, yes, she and various members of the ACLU thinks it is weak as to the individual rights view. But, the ACLU as a whole takes a collective rights view at the very least. This in the eyes of Brett is "hostile" to the 2A.
Meanwhile, they protect gun rights in a variety of ways, including supporting a recent change in federal law that protects those labeled in some fashion mentally unfit.
Likewise, conservative rights groups focus more on certain matters than others.
To quote the official position:
Pre-Heller, back in the 1980s, the collective rights view was accepted by the lower courts & the USSC did not intervene. The ACLU was pretty safe there in dealing with even the most stereotypical anti-gun types in that regard. They didn't have to be "unprincipled," especially since they continued to defend people in search and seizure cases or the like even when gun crimes were involved.
But, I wasn't there, and it is an anecdote.
Back on an an earlier thread in which the 2nd A was discussed, I referenced Paul Finkelman's "The Living Constitution and the Second Amendment: Poor History,, False Originalism, and a Very Confused Court," 37 Cardozo Law Rev. 623 (2015), which in details skewers both Heller and McDonald (each 5-4). It lacks anecdotes. It's available at:
Brett probably does not appreciate the position once taken by the NRA favoring gun control, once the official position of the NRA. Brett may treat this as an anecdote as he may not have been a member of Nra back then when he was a mere youth competing with Mexican labor workers in pulling radishes in northern Michigus.
It's an interesting article, but it focuses most of its efforts to the ratification of the Second Amendment. The understanding of the meaning of the Second Amendment, especially after the Civil War, very well might have changed. What was "incorporated" for Fourteenth Amendment purposes warrants more analysis.
See also, Alito's opinion in McDonald v. Chicago itself.
So much in Brett's comment exemplary of how he tends to reason.
First, he takes Strossen's words "doesn't necessarily mean that it is a fundamental civil liberty." to mean "don't really like parts."
Second, he's seems ignorant of the use of 'fundamental' right in Constitutional history. It's not living constitutionalist radicals who came up with the idea that some parts of the BoR are not 'fundamental' (and therefore don't have to be incorporated via the 14th), in fact it was the opposite.
Third, he assumes only the worst reading from that passage. There's lots from the Constitution itself that has little to do with anything like a 'fundamental' right. Tthe Constitution itself, apart from the BoR, involves little about individual rights. But even in the BoR, certainly it's not nefarious to think that parts are not 'fundamental' (the grand jury and VIIth Amendment spring to mind).
Fourth, he fails to consider how an honest difference in interpretation could have the reasonable effect of making a part of the BoR pretty unimportant. If the 2nd really is a protection of state militias, and the latter is the National Guard, then there's just nothing to get excited about under current political realities.
Query: While the incorporation of certain provisions of the Bill of Rights via the 14th A applying to the states so that their public meanings on the basis of originalism would be governed as of the 1868 ratification date of the 14th A, would that apply at the federal level for purposes of the 2nd A? At another blog I referenced a recent Liberty Blog post by Kurt Lash "Originalism and the Future of Religious Freedom" focusing on the 1st A. Lash suggests that originalism hasn't addressed the interpretation of the 14th A for the public meaning of the religion clauses as of 1868. Lash does not address the impact of the 14th A on the federal level regarding those clauses.
I plan to go back into Finkelman's article. It is my recollection that he was responding with challenges of statements of both Scalia and Alito historically and otherwise with respect to their opinions (respectively) in Heller and McDonald.
Both opinions (as well as the dissent) in these cases have been criticized by originalists as straying from originalism principles in various ways although agreeing with an individual right rather than collective.
I haven't seen much response to Lash's post other than a comment at the Originalism Blog by Mike (I'm not Rappaport) Ramsey that Lash has made a good point that originalism has yet to address.
I read over the article and it focused on Heller and Scalia. If he covered Alito's opinion, it was to a much lesser degree. The focus was on the 2A period.
Alito at one point noted:
"By the 1850's, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights--the fear that the National Government would disarm the universal militia--had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense."
Prof. Amar was one of the citations. Reading various accounts, from various perspectives, he was one of them. His "Bill of Rights" also had a passage discussing religious freedom etc. I have the book, but he wrote articles on the point too. I think the historical case is stronger on that point, the Civil War also discouraging the original "state militia as a check on federal tyranny" angle too.
My understanding of Prof. Lash is he has more than one long article covering 'original understanding,' that covers some particular point and like the proverbial blind men touching an elephant, only showing part of the story too.
I've always been mystified by the blindness created by so-called "originalism" among 2A advocates.* It's blatantly obvious that the evidence for an individual RTKBA is far stronger in 1868 than it was in 1791. I don't really understand their reluctance to take advantage of that fact. I think they're so invested in their long-standing (wrong) arguments about the colonial era that they won't let go.
*"So-called" for 2 reasons: 1. "Originalism" can apply to the 14A just as much as it can to any other Amendment, so there's no need to focus on 1791. 2. Because "originalism" other than the Jack Balkin variety is a phony theory anyway.
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Mark, there's a big overlap between the 2nd Amendment conservative sorts and Confederate apologists, so of course there's some discomfort with embracing the Reconstruction Amendments.
"It's blatantly obvious that the evidence for an individual RTKBA is far stronger in 1868 than it was in 1791."
Well, if you ignore the evidence from 1791, and don't really understand the arguments, sure.
"Because "originalism" other than the Jack Balkin variety is a phony theory anyway."
I understand, really. Living constitutionalism is so facially illegitimate, that the only way you can defend it is by claiming there isn't really any alternative to it. So the only theory of originalism that isn't phony has to be the one that is actually living constitutionalism. It has to be that way, or living constitutionalism just gets dismissed out of hand.
But, anyway, it really is sad the way the ACLU, out of their desire to defend only some civil liberties, and yet pretend they defend them all, has tied itself into knots arguing that the civil liberties it doesn't like aren't really civil liberties. If only they could have honestly said something like, "The NRA adequately defends the 2nd amendment, we're going to leave that to them." Or better, had they been more principled, they might have been the several million member colossus, instead of the NRA.
They sacrificed a lot of potential clout on the altar of their dislike of guns.
Heller involved the 2nd A directly and not via incorporation via the 14th A as in the later McDonald case. So originalism principles in Heller should have focused on the 1791 public meaning, unless the theory is that the 14th A ratified in 1868 somehow updated/modified/amended the 2nd A (which might be called living constitutionalism). And doesn't the concept of "self-defense" suggest common law constitutionalism?
Shag, yes, 'self defense' appears nowhere in the 2nd Amendment. There's a right of the people to keep and bear arms and there's a purpose explicitly given-militia service. But self defense? Nope. Talk about living constitutionalism.
"really is sad the way the ACLU, out of their desire to defend only some civil liberties, and yet pretend they defend them all, has tied itself into knots "
I can't recall a single case or statement involving the ACLU defending the VIIth Amendment, but somehow that doesn't get Brett and his comrades riled up. *Someone's* picking and choosing favorites in the BoR, and I don't think it's just the ACLU..,
I think there is a Constitutional right to self-defense, but it's located in the due process clause, not the 2A. Most people consider self-defense a fundamental, even natural right. Self-defense is (speaking generally) an affirmative defense to an accusation by the state. Failure to permit a defendant to assert that defense would violate the fundamental right.
Well, if you ignore the evidence from 1791, and don't really understand the arguments, sure.
Shag provided an article that did not ignore the evidence, one of many by people whose expertise is to study history. But, we are in a post-expertise era, perhaps. But, disputed history tends not to be the final determinant in these questions anyhow, no less than it is when proof-texting is using in biblical arguments.
Living constitutionalism is so facially illegitimate, that the only way you can defend it is by claiming there isn't really any alternative to it.
The overall method of legal interpretation involved when "LC" is cited is not barred by the Constitution, is a logical/practical way to apply it, furthers basic republican values & is guided by what the people at the time down to James Madison figured it would be applied. But, there really not being a practical alternative would do the trick by itself, probably.
But, anyway, it really is sad the way the ACLU, out of their desire to defend only some civil liberties, and yet pretend they defend them all, has tied itself into knots arguing that the civil liberties it doesn't like aren't really civil liberties.
Brett likes all amendments, just seems rather concerned about one of them. When it comes up, that is when he sweeps in and targets the ACLU. A tad sad. The ACLU put forth a typical interpretation of the 2A, one that even very well might be the right one. There is no "knots." Meanwhile, repeatedly, they defend gun rights in a variety of ways, including in a recent case supporting a rule change involving those labeled mentally unfit that Rachel Maddow strongly criticized.
If only they could have honestly said something like, "The NRA adequately defends the 2nd amendment, we're going to leave that to them." Or better, had they been more principled, they might have been the several million member colossus, instead of the NRA.
I guess they will just be the group the defends loads of civil liberties, including the ones you have not shown much support of because of your conservative views. Don't worry, they will defend conservatives as they have in a myriad of ways for the last hundred years. Single issue movements can be easier, true.
I agree with Mark Field that there is a fundamental right of self-defense & like hunting & other uses of guns, it was developed legally on a separate track.Post a Comment
There seems to have been a growing understanding that the 2A might have involved self-defense in antebellum years. This "living constitutional" development of meaning to me has some importance when determining constitutional analysis.
But, yes, it seems to me best seen as a basic liberty, perhaps with some Fourth Amendment implications (defense of self and home). The 2A itself has a specific purpose, which very well will benefit gun rights to some degree in certain contexts. For instance, a one size fits all federal law banning guns near schools might interfere with state militia. The 2A would in certain ways serve an equal protection purpose, if guns were denied to certain groups. etc.
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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