Friday, March 30, 2018

Justice Stevens Proposes Repealing the 2nd Amendment and Takes Friendly Fire From Immodest Critics

by Michael Dorf

Earlier this week, retired Supreme Court Justice John Paul Stevens--who will turn 98 in less than a month--wrote an Op-Ed in the NY Times calling for the repeal of the Second Amendment. Justice Stevens praised the post-Parkland student-led activism and, in an essay that reprised arguments he set out in Chapter VI of his 2014 book Six Amendments, made two core points: First, that the 2008 SCOTUS decision in DC v. Heller, from which he dissented, was a radical break with the militia-centered understanding of the Second Amendment that had prevailed since the Founding; and second, that although Heller would likely allow such measures as strengthened background checks, the nation needs truly effective comprehensive gun control, which requires repealing the Second Amendment.

Many people were unhappy with the Stevens Op-Ed. As one would expect, firearms libertarians who think that Heller was rightly decided and in the national interest, took exception to both Stevens's reading of the Second Amendment and his reform proposal. Ilya Shapiro's Op-Ed in the Washington Examiner, titled "Justice John Paul Stevens is absolutely wrong about the Second Amendment, again," is a good exemplar of this genre.

Justice Stevens also took a fair bit of fire from the other direction. Aaron Blake, a generally liberal analyst for the Washington Post, wrote a response with the title "John Paul Stevens's supremely unhelpful call to repeal the Second Amendment." Although Blake has a tendency towards hyperbolic snark, his response to Stevens was fairly characteristic of a broader reaction to Stevens among people who favor gun control. In general, the Stevens intervention was deemed unhelpful or even counterproductive on three grounds: (1) It reinforces the view that nothing effective can be done without overruling Heller; (2) a Second Amendment repeal is pie in the sky; and (3) calling for repeal of the Second Amendment will mobilize gun rights supporters who will point to the Stevens Op-Ed as evidence that liberals really are coming for all of their guns.

Here I want to set aside the concerns of Shapiro and others who think Stevens is wrong on the Constitution and policy to focus on what I take to be the emerging conventional wisdom about the Stevens Op-Ed among those who are sympathetic to tighter gun control. I'll push back on each of the three grounds offered for thinking that calling for the repeal of the Second Amendment is unhelpful. I don't want to say that the Stevens Op-Ed is affirmatively helpful. Rather, my aim is to show that people who make arguments like Blake's are much too confident in their ability to predict the future.

Let's start with the idea that calling for the overruling of Heller undercuts efforts to change laws in ways that could survive constitutional challenge, even applying Heller. As I explained in a recent Verdict column and associated blog post, this contention is potentially wrong in two ways. First, although the Supreme Court has thus far mostly acquiesced in post-Heller lower court rulings upholding various firearms restrictions, there is no guarantee that this trend will continue, and Justice Thomas has argued that the Court should rein in the lower courts. Second, Heller has a profound symbolic impact on public debate that goes well beyond its technical details, much in the way that other decisions (like Brown v. Board) have a gravitational pull that affects policy beyond their particular holdings. Overruling or displacing Heller by a constitutional amendment could thus have a dramatic impact on our political landscape.

But that brings us to the second objection: There is no reasonable likelihood that a constitutional amendment repealing the Second Amendment could garner 2/3 votes in both houses of Congress and majority votes in 3/4 of the state legislatures. And indeed, if it could, that itself would be an indication that our politics had so changed that the amendment would not be needed to produce more gun control legislation.

I agree with that objection, narrowly understood. A strategy that aims to displace Heller for its symbolic import would have at least some chance of success if the goal were to get the SCOTUS to do the job itself (presumably after some more Democratic appointments). Overruling Heller by constitutional amendment is backwards as a strategy of attacking Heller's symbolic meaning.

However, it does not follow that calls for Second Amendment repeal are pointless. Their core purpose may be to shift the Overton window--the range of ideas that will be taken seriously in political discourse. With Second Amendment repeal off the table, such proposals as more careful background checks, a minimum purchase age of 21 for all firearms, and restrictions on magazine capacity define the "left" of the gun control spectrum. When a retired Supreme Court justice appointed by a Republican president says that a comprehensive ban on private firearm possession should be part of the conversation, those proposals move to the relative center.

A closely related way to think about the Stevens intervention is as a "radical flank" effect. The demands of radicals not only make the demands of their less radical allies look centrist by contrast; they may work as an implicit threat. White people terrified of (what they thought was) the agenda of Malcolm X were willing to accept the agenda of Dr. Martin Luther King, Jr. Wealthy people accept progressive taxation and regulated capitalism to ward off the radical flank of state communism. Etc.

Ah, but while shifting the Overton window and the radical flank effect are possible, the critics might acknowledge, backlash is also possible, even likely. Now the NRA and those who share its view can credibly say that "the left" wants to take away all of their guns.

This objection is naïveté masquerading as sophistication. Does any thoughtful observer of our politics think that the NRA would not say the left is coming for all of their guns if Stevens and others did not officially call for Second Amendment repeal? Saying that Democrats who favor even very modest gun control want to take away all guns is the go-to move of the NRA and its fellow travelers, regardless of how vociferously particular Democratic politicians disavow any intent to confiscate most guns.

That is not to deny that the NRA et al will now incorporate the Stevens Op-Ed into their agit-prop. Nor would I deny that the broader political movement we are now seeing in favor of stricter gun control could indeed spark a backlash. Of course backlash is a real phenomenon. The real question, however, is not radical flank effect or backlash. The real question is the relative size of the impacts of these two phenomena.

People who confidently say that the Stevens Op-Ed will be counterproductive are really just guessing, because the underlying question is so complicated. The impact of constitutional decisions by the Supreme Court is a useful point of comparison, because they too can spark varying effects. In their 2008 book, Nate Persily, Jack Citrin, and Patrick Egan identify the following possible impacts: SCOTUS decisions may leave public opinion largely unmoved, may legitimate particular viewpoints, may provoke backlash, and may lead to polarization. The authors provide various examples of each. The impacts are relatively easy to observe after the fact but extremely difficult to predict in advance. Consider that in 2008 Gerald Rosenberg wrote a second edition of his book The Hollow Hope in which he foresaw that the dominant impact of court cases recognizing LGBT rights would be backlash. That was a reasonable prediction at the time, but it proved wrong. There has been backlash against LGBT rights and marriage equality, just as there is always backlash against progressive movements. But the net effect of the court decisions has pretty clearly been increased popular acceptance.

What about guns? Is there any reason to suppose that the people who confidently lament that Justice Stevens has undermined the cause of gun control are any better at predicting the future on this issue than others are about other issues? I don't see why one might think so. After all, when it comes to violent crime, we can't even say what causes it after it happens. From the early 1990s to the present, the overall violent crime rate nationwide was cut in half. Nobody really knows why. And almost nobody predicted the crime drop in advance.

Accordingly, the critique of Justice Stevens is misguided. His intervention might prove counterproductive, but it might not. And whatever its impact, it has one great virtue: It is authentic. Radical ideas can be mistaken or evil, but if someone holds an idea that current political discourse deems radical and is persuaded that the idea is nonetheless correct, advocating for that idea makes perfect sense--unless it is very clear that doing so will somehow be counterproductive. In this instance, I do not see how anyone can confidently determine whether the latest intervention by Justice Stevens will, on net, promote or undermine his goal.

25 comments:

  1. About all Justice Stevens has managed was to convince people that he has fallen too far into his dotage, and that nonagenarians like the late Stephen Reinhardt had no business deciding cases. Notoriously, the amoral RBG should have retired on Obama's watch.

    There will never be a serious argument for materially diluting the 2Am, because the need for an armed populace is omnipresent. Judge Kozinski elaborates:

    "The majority falls prey to the delusion — popular in some circles — that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. ...

    All too many of the other great tragedies of history — Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 578-579. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

    My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
    "

    Of course, the gun-grabbers could try a different tack. Tell the Court that the purpose of the 2Am is to facilitate the assassination of lawless judges, and our lawless judges will invent some way to repeal it.

    ReplyDelete
  2. A professor at Lawyers Drugs & Money blog [who is an anti-Shapiro on the merits] is supportive of the op-ed on strategy grounds:

    This is why I like John Paul Stevens’ call to repeal the Second Amendment. As I said yesterday, of course it’s not going to happen. But in facing a bunch of fanatics who have made a fetish out of the Second Amendment and taken a maximumalist position on it, milquetoast and moderate proposals aren’t going to cut it. The lunatics will see a ban on bump stocks as an attack on their American rights. The more politically savvy way to handle this is to call for what we really need–a direct attack on the nation’s gun culture through its fetish. I understand that Heller could be overturned with the right Supreme Court justices. And it’s not that Ian Millhiser is wrong exactly when he says Stevens isn’t helping because the real problem is the decline of American democratic institutions. But I don’t think Millhiser [link provided] is helping either. In terms of advancing progressive policy, proposals around the margins aren’t going to appeal to the masses. I just don’t see the downside of attacking the 2A itself. Trump and Fox News going ballistic is nothing but the same noise they always give.

    etc. http://www.lawyersgunsmoneyblog.com/2018/03/hey-hey-nra-many-kids-killed-today

    I have mixed feelings about the op-ed -- including its comment that repeal of the 2A would "would eliminate the only legal rule that protects sellers of firearms in the United States" [it would not] -- but there is something to that sentiment.

    ===

    RIP To Judge Reinhardt, for whom Michael Dorf clerked. Dorf tweeted: "Judge Stephen Reinhardt was my mentor and role model. He saw law as a tool of justice and wielded that tool with skill and passion. He was a superb legal craftsman who never lost sight of the people behind the cases. Farewell to the Chief Justice of the Warren Court in exile."

    ReplyDelete
  3. Alas, John Barron, who evaded grabbing a gun to fight for America in his youth, comes up with his closing proposal to urge "gun-grabbers" to attack (assassinate) the judiciary as a means of repealing the 2nd A. Perhaps John's proposal should address his goal as a 2nd A absolutist by permitting open and/or concealed carry in any place where an individual feels the need for self-defense, such as in all public and quasi-public places, including legislatures federal and state, court rooms, town hall meetings, etc, etc, not limited, as in Heller (5-4, 2008) to the home by means of certain arms. Perhaps John in his advancing years with his two new knees is now prepared to grab a gun to rebel against his perceived judicial tyranny, perhaps under the leadership of Tom-Tom Tancredo?

    By the Bybee [expletives deleted, despite Gina], John ignores the de-robbed-Judge Kozinski's elaborations on his judicial staff. Should his staff have taken up 2nd A arms against Kozinski on a more timely basis? The Constitution did not incorporate the Declaration of Independence. In fact the Constitution specifically provides for the federal government to address rebellions/insurrections.

    ReplyDelete
  4. MD: "[Reinhardt] was a superb legal craftsman who never lost sight of the people behind the cases."

    Except, of course, for the people involved in the 95% of appeals that he and his colleagues willfully ignored. Judge Kozinski openly admitted that panels in his circuit may issue 150 rulings per three-day session, Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr), Jan. 16, 2004, p. 5 -- that’s less than ten minutes per decision! But even they are total slackers compared to the late Judge Richard Arnold, who confessed that he participated in a two-hour conference which decided fifty appeals. Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings," Des Moines Register, March 26, 1999, at 12.

    And it's not about volume. Appellate judges tend to see their opinions as monuments to themselves, with Judge Kozinski being one of the more flagrant offenders. Emily Bazelon reports that he was “one of the best stylists on the bench, routinely working through 50 or more drafts. ‘He would often ask, ‘Does it sing?’’” Emily Bazelon, The Big Kozinski, Legal Affairs, Jan-Feb. 2004.

    There can be no justification for a judge writing a Shakespearean sonnet to justify a decision, Busch v. Busch, 773 A.2d 1274 (Pa.Super. 1999) (Judge Eakin’s opinion put into verse), while willfully ignoring a dozen other appeals brought to his or her attention. This practice visits grave injustice upon those children of a lesser god, unable to curry the judges’ rarefied favor. Judge Murnaghan of the Fourth Circuit admits that "it is well known that judges may put considerably less effort into opinions that they do not intend to publish. Because these opinions will not be binding precedent in any court, a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law." Wilson v. Layne, 141 F.3d 111, 124 n.6 (4th Cir. 1998) (Murnaghan, J., dissenting).

    The numbers don’t lie: The proportion of reversals among the total dispositions of the federal courts of appeals has declined markedly. In 1945, there was a reversal rate of 27.9 percent, see Dir. of the Admin. Off. of U.S. Cts., Ann. Report 70 tbl.B1 (1945), but in CA-4, it's down near 4%. Assuming a consistent level of competence among federal judges throughout the years, we can deduce that at least 80% of appeals decided in 2015 which should have been overturned haven’t been.

    While pontificating for the press in the Unabomber case, Kozinski suggested that there is “something worse than being tried and punished for one’s crimes, and that is being treated by our legal system as less than human.” United States v. Kaczynski, 262 F.3d 1034, 1035 (9th Cir. 2001) (Kozinski, J., dissenting from denial of petition for reh’g en banc). "There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice." United States v. Janotti, 673 F.2d 578, 614 (3d Cir. 1982) (Aldisert, J., dissenting; quoting Montesquieu, De l‘Esprit des Lois (1748)).

    These are "the people behind the cases" who, quite frankly, deserved better than Stephen Reinhardt.

    ReplyDelete
  5. John Barron makes some fair points about case management in the federal courts. These points are not properly criticisms of Judge Reinhardt in particular, who routinely worked 100-hour weeks into advanced age. And even if they were fairly directed specifically at Judge Reinhardt, the timing of the criticism by John Barron displays tone-deafness at best and more likely extreme callousness. As a rule, I do not delete comments that are merely critical of what I or my co-bloggers write, but there is a line between strong disagreement (which I welcome) and just being an asshole. Consider this a warning not to cross that line.

    ReplyDelete
  6. BTW, I read Justice Stevens' tbh somewhat thin book on his "six amendments" proposals & overall was not overall impressed, both on some of the merits and the overall approach.

    Strategically, the appeal here might be useful, perhaps akin to certain third party candidates over the years, but I think the better approach is development within the constitutional text. It is true that perhaps in the short term (though Chief Justice Roberts never joining remarks of a few justices who pushed for stronger 2A protections, even when Alito did so once, suggests otherwise) the 2A might be protected more strenuously by SCOTUS than it is now.

    But, that was true over the years about various things. Plus, I think there is a core belief in this country that there is an individual right to own a firearm. So, what would such a repeal amount to in practice? In his book, Stevens suggested text that would leave open some room for a right to firearms, if I recall correctly (depending on how it's applied).

    Finally, it is somewhat not the point here, I realize, I disagree with him that the overall point of the 2A is no longer present, granting his dissent. We still have some reason to be concerned about a standing army (including paramilitary police forces) and there are grounds to honor a 'militia' of some sort -- the individual having a duty to serve that function akin to jurors and voters. Like equality meaning sexual equality without an ERA, there is a lot to be done in that department and sane voices are needed more so than ever.

    ReplyDelete
  7. [smh] Do I have to label EVERYTHING as sarcasm, Shag? Hard to know how I could have made it more obvious.

    The simple and undeniable fact is that, whenever a judge has a dog in the hunt, s/he will never fail to pet it. Posner avers that there is "a pronounced political element in the decisions of American judges," and that the evidence of this is "overwhelming." Posner, How Judges Think at 369. Scalia—who was just as blunt—added that his own Court was often tempted toward “systematically eliminating checks upon its own power; and it succumbs.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).

    ReplyDelete
  8. Cynicism or sarcasm, or both simultaneously? What about when legislators have a dog in the hunt, such as NRA funding? John, you are now classified as an "Insurrectionist Originalist," but ready only to have someone else "lock and load."

    No doubt that justices and judges can be political. See my comment on an earlier thread on political gerrymandering at this Blog referencing a recently published book "Judges" posted on at the Legal History Blog. Were you part of the 1990s movement by originalists referenced in the book description that I did not quote in my comment?

    By the Bybee [expletives deleted, despite Gina] John, you don't have to label anything as you are quite transparent. Recall how the person whose fake name you adopted during his campaign suggested how his 2n A adherents might address Hillary. I think the person whose fake name you operate under would endorse your sarcasm/cynicism.

    ReplyDelete
  9. Michael:

    I was in Vegas for the Mandalay Massacre, and have had my own "duck and cover moment." And understandably, I'm not a really big fan of unrestricted possession of de facto automatic weapons (though I enjoy tormenting my friend Shag by playing devil's advocate). But I got the same basic response from the Tomi Lahren crowd: "We can't talk about this when we're burying the dead!"

    When are we ever going to talk about gun control-- er, I mean, our dysfunctional court system? Posner only talked about the problem after he left the bench. Likewise, Judge Gertner. And if Judge Reinhardt had even half the "heart" you attribute to him (there is no question regarding his intellect), he surely must have been aware of it. The Liberal Lion would have been listened to--and especially, when it might have done a lot of good, way back in 2009. He had a bully pulpit that couldn't be ignored. But to the best of my knowledge, he remained silent.

    Why didn't he speak, Michael?

    Justice Stevens broke his silence regarding guns, but never about the wholesale massacre of rights visited on the populace by our nation's judges. Where else but in America can a judge sit in judgment of her own tort case? [That won't even fly in Zimbabwe.] And where else will her learned colleagues actively aid and abet that felony [18 U.S.C. §§ 241-42]?

    The judiciary has circled the wagons. Ronald Rotunda, “The Courts Need This Watchdog,” Washington Post, Dec. 21, 2006 at A-29 ("John, think about it. The next time it could be you or me. We've got to stick together.") The academy--populated primarily by law clerks--has largely followed suit. Cf., William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723, 1728-29 (2005) (demonstrating that the Courts of Appeal are de facto certiorari courts). And the victims are forgotten.

    "Although we give lip service to the notion of freedom, we know that government is no longer the servant of the people but, at last, has become the people's master. We have stood by like timid sheep while the wolf killed -- first the weak, then the strays, then those on the outer edges of the flock, until at last the entire flock belonged to the wolf." ~Gerry Spence

    You grieve for what he was, what he did, and what he meant to you. I grieve for what he could have done, and the many lives our courts have ruined.

    ReplyDelete
  10. Good stuff. It's worth noting that if polls are any indication, the current "left" (background checks, high capacity bans) are already well in the center / mainstream. Solid majorities support both. Which inevitably invokes a wider discussion about democracy itself, particularly as it relates to gerrymandering and voter turnout.

    ReplyDelete
  11. John, I am not in the least "tormented" by you. In fact, you are a perfect foil, inter alia, as the ad hack [sic] spokesperson for the Greater-Than-Heinz-57-Varieties of originalism. Why if it wasn't for you (adopting the Fake name of Trump), I'd have to invent a you, especially since neither the Originalism Blog nor the Legal Theory Blog accommodate comments but each attempts to sharpshoot any efforts criticizing any of the multiple versions of originalism from their comment secure positions.

    Of course, I only speak for myself: others may feel tormented by you.

    And John, I am overlooking your feeble effort at victimization regarding your presence at the Mandalay Massacre, even though it may have been difficult for you to "duck and cover" as you were rehabbing your two new knees, which perhaps at least allowed you to pray while the madman 2nd A absolutist preyed on innocent people.

    ReplyDelete
  12. Shag: "What about when legislators have a dog in the hunt, such as NRA funding?"

    Corruption is as bi-partisan as it is virulent. Both Cory Booker and Cory Gardner took bribes from Big Pharma, and both voted to protect their ability to price-gouge. Power is in love with itself, and it will brook no competitor.

    Something just happens to people when they acquire power over others. On Dec. 20, 2007, candidate Barack Obama observed in a Boston Globe interview that the “President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” specifically noting that he had introduced a resolution in the Senate to remind the President of this limitation. But a mere five years later, this Harvard Law graduate and former professor of constitutional law was killing American citizens via remote control without bothering with a trial, simply because his government did not like the way they exercised their First Amendment rights. The principled Presidential candidate who praised Russ Feingold for his opposition to the PATRIOT Act and said he would oppose it extended it without objection, despite the fact that his former colleague Sen. Dick Durbin (D-IL) "realized it gave too much power to government without enough judicial and congressional oversight." The President who, while trolling for votes, stated unequivocally that “waterboarding is torture,” refused to prosecute the self-confessed war crimes of his predecessor, and who campaigned on a platform of protecting whistleblowers conducted a relentless jihad against them. The man who told us tales of the discrimination he endured as a child gradually found himself on the other side of the fence. And the inevitable happened.

    I am not asserting that judges are bad people but rather, that they are mere mortals, seduced by the siren song of power. It is the political equivalent of crystal meth: once you have it, you cannot live without it, will do anything to keep it, and will do things with it you couldn’t have imagined beforehand. Does power corrupt? It is as predictable as the sunrise. As novelist Samuel Butler quipped, “Authority intoxicates, And makes mere sots of magistrates; The fumes of it invade the brain, And make men giddy, proud and vain.” Scalia loved ruling us so much that he was willing to do it for free, and because the Notorious RBG refused to think strategically, we are praying that she will beat the actuarial tables.

    My originalism is the child of this understanding. I would much rather be governed by the dead hand of a document that can be changed by my efforts than the ukases of thugs in black robes. Unlike you, "I will accept no King but the law," and whatever a judge finds in his Depends at the end of the day is not law.

    While I am no fan of Bonnie Parker Clinton--a crime wave in a pantsuit, ever since the first cattle-futures bribe--I am not on Agent Orange's Xmas card list, and don't really get along with the "****s-in-Glocks" crowd.

    ReplyDelete
  13. Shag: "neither the Originalism Blog nor the Legal Theory Blog accommodate comments"

    That's why I invited you over to Volokh. We would have had an audience that cared, and might have even added points. Even Barnett. Normally, you can only get to him in 280-character bursts. :)

    Shag: "the Greater-Than-Heinz-57-Varieties of originalism."

    That I agree with Madison and Jefferson that there is one correct way to interpret a statute does not mean that I have to own everyone who agrees generally with that idea. Barnett is a conductor on the Trump Train; he is doing what he denounced Scalia for. The Mikes and John McGinnis are inveterate Thomists. Scalia and Thomas were also in that camp and generally, limited their originalism to the rubber-chicken circuit. The Federalist Society types like Whelan would be more accurately labeled the "We hate Roe Society," and have been searching in vain for an argument that would vanquish it. And while Raoul Berger was a giant, we have the distinct advantage of standing on his able shoulders.

    ReplyDelete
  14. Of course we're all "mere mortals" but mortals are the ones that implement/administer the rule of law (however that phrase is defined) as the rule of law is not self-impletmented/administered. John, you are a mere mortal who obviously believes in "Mortal Combat Originalism" as imposed by the the tail of the dog 2nd A absolutism.

    By the Bybee [expletives deleted, despite Gina] John, please don't tell us what you found in your Depends as a result of your "duck and cover" Mandalay Massacre victimization. I assume, John, that if you were a "good guy with a gun" at the time, you might have stopped that bad guy with his bump-stocked assault weapon.

    ReplyDelete
  15. John's:

    "And while Raoul Berger was a giant, we have the distinct advantage of standing on his able shoulders."

    demonstrates "Original Sin Originalism" aka "Original Intent Originalism" long discarded because of, inter alia, the difficulty of establishing collective intent of either the Framers or especially the manifoldd Ratifiers. John, perhaps you consider Raoul as a giant because of his criticism of Brown v. Bd. of Educ. (Unanimous, 1954). Raoul was a weak foundation for the many versions of originalism that followed - and continue.

    ReplyDelete
  16. John, you are critical of a numbered of named self-proclaimed originalists, including the libertarian Federalist Society, mostly undead, while in awe of Raoul, long dead, of the land dead Original Intent Originalism, suggestive of "Zombie Originalism" that may symbolize the dead hand of the Framers/Ratifiers you prefer to hold.

    ReplyDelete
  17. John has been critical of so many people, including Saint Ronnie Reagan's Administration despite the fact that it pushed the originalism movement (original intent version). John's been critical of both Democrats and Republicans but has disclosed that he was a staunch advocate of Barry Goldwater. Compared to John, I was an adult during the 1964 campaign when LBJ swamped Goldwater. I recall well The Goldwater campaign slogan "In Your Heart, You know He's Right" which morphed into "In Your Guts, You Know He's Nuts." Alas, decades later, this paved the way for Donald Trump, without John's support. Check out:

    http://blogs.plymouth.ac.uk/americadecides/2016/10/26/1964-in-your-guts-you-know-hes-nuts/

    ReplyDelete
  18. Over at Balkinization Sandy Levinson has an interesting post on "Noah Feldman, THE THREE LIVES OF JAMES MADISON: GENIUS, PARTISAN, PRESIDENT" The "Genius" addresses Madison's role in the Constitutional Convention, the "Partisan" in his role with party politics and the "President" on foreign policy and his role as C-I-C during the War of 1812. Apparently Madison had disagreements with Hamilton in the "Genius" role as well as in the "Partisan" role. Sandy points out that this book is not a biography. Perhaps reading this book in conjunction with Mary Sarah Bilder's "Madison's Hand" may better demonstrate how Madison's views changed over time as America started to grown. But Feldman's book, according to Sandy, points to disappointments of Madison who sought a stronger central government and was concerned with the Constitution's provisions on the Senate (the latter being strongly shared by Sandy).

    Query: Are Madison's disagreements with Hamilton reflected in the Federalist Papers?

    ReplyDelete
  19. Shag, these are from your Goldwater page:

    "In response to charges of extremism, Goldwater channelled the great Roman orator Cicero in his acceptance speech: ‘extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue’."

    Do you agree with Cicero and if not, why not?

    "Yet such is the nature of the modern Republican Party is that even Goldwater would not recognise it, and perhaps not even be welcome within it. By the 1980s, he was opposing the influence of evangelical Christians within the party, supported gay rights and was pro-choice, stances which would make a RINO (Republican In Name Only) in the eyes of the party’s current grassroots, indeed, his granddaughter has endorsed Clinton, stating that she ‘is only one candidate who will live up to my grandfather’s values’."

    Goldwater evolved over the years, as have we all. You see this as a virtue in the case of Madison, and I see it in Goldwater. Unlike your dirty little sweetheart Bonnie Parker Clinton a/k/a HRC, I would have never have embraced the 1964 Goldwater, but the 1980s model was more saleable. Supporting gay rights? I was there. Pro-choice? You've seen my constitutional analysis. Civil rights? Groups don't have rights; individuals do.

    (The author is right: I'm not welcome in CrazyTown.)

    What was wrong with the Goldwater of MY era?

    ReplyDelete
  20. Shag, it seems that your only speed is "Laura Ingraham." When you don't have the law or the facts on your side, you have no choice but to attack the man.

    Let me try to drag this conversation back to the actual topic.

    That well-known drooling Radical Right-Wing jurist, Justice William Douglas, tees it up for us:

    Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times, it has been his property that has been invaded; at times, his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions.

    United States v. Wunderlich, 342 U.S. 98, 101 (1951) (Douglas, J., dissenting).

    Whereas I will accept "no king but the law," you are perfectly content to genuflect in front of a pompous, vain, and arrogant ass in a black robe, praying that he won't rape you anally with his baseball bat. My solution to the 2Am problem is to enact statutory law; your solution is to stack the courts with phalanxes of Platonic Guardians who can impose your will by fiat. Problem is, the other side has beat you to it, and the late Judge Reinhardt will be replaced by someone chosen by the FedSoc.

    There is no good argument for amending the 2Am, as the individual RKBA is protected by the 9/10/14Am (even Segall agrees). And you have no coherent argument from COTUS to reach your dream of judocracy.

    What you call "law" most certainly is not; judging from your relentless fountain of personal attacks, it is clear that you do not have a coherent answer to the problem of judocracy you create, and the fact that all "law" promulgated thereunder is ex post facto and arbitrary.

    Something needs to be done about the gun problem. We can make effective minor changes via statute; trying to amend the 2Am is a nuclear option that isn't likely to succeed, and is the political equivalent of putting a stick in a hornet's nest.

    ReplyDelete
  21. Reference was made to Sandy Levinson.

    Ian Millhiser disagreed with Stevens' approach:

    https://thinkprogress.org/john-paul-stevens-second-amendment-d25525bc0de4/

    In part, Millhiser focuses on structural problems of the sort egarber alluded too:

    "As University of Texas legal scholar Sanford Levinson writes, “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” There is nothing “simple” about removing a constitutional amendment, much less one that shapes the identity of a significant minority of the electorate."

    Levinson is a major critic of the Constitution, particularly structural aspects that blocks democracy (there is room between 50%+1 being able to censor and the system we have now where a small minority can block amendments and a larger minority can elect trolls). He has been quite passionate (and Cassandra-like) on the point elsewhere.

    Happy holidays, of course with vegan chocolate and so forth.

    ReplyDelete
  22. Shag, wrt Berger, that was the consensus assessment of his contemporaries. As for the others, my assessment is based on personal observation and interaction. Even Segall concedes that there is plenty of room for Brown v. Board in modern iterations; once a constitutional wrong is identified, courts have considerable latitude in crafting a remedy.

    And no, I don't sing backup for "Unca Ted" Nugent.

    Any more baseless personal attacks?

    ReplyDelete
  23. I'm pleased Goldwater evolved after 1964, perhaps via self-examination of that campaign's defeat prompted by the then prominent bumper sticker "IN YOUR GUTS YOU ,KNOW HE'S NUTS." Hillary, born into a Republican family, back then supported Goldwater. She evolved since then. So to be clear, John, you did not support the 1964 Goldwater, including his then racial views? Good for you. Evolving based upon experience can be good. Perhaps it would be good if you had the graciousness of Goldwater's granddaughter, regarding Hillary.

    By the Bybee [expletives deleted, despite Gina) John, I have assumed all along you've been singing solo, with no backup.

    ReplyDelete
  24. Query: Prior to the Civil War Amendments, was slavery a constitutional wrong? Post such Amendments was Jim Crow a constitutional wrong? If so, the judiciary did not fix it. The Civil War brought about such Amendments in a curing effort. But it took the judiciary to eventually address Jim Crow - and it has not been fully cured.

    ReplyDelete
  25. Shag: "Perhaps it would be good if you had the graciousness of Goldwater's granddaughter, regarding Hillary."

    I concede their critics' point: The Clintons are dirty. Not relevant to policy issues.

    ReplyDelete

Note: Only a member of this blog may post a comment.