Tag: josh blackman

Harlan Institute’s Innovative Approach to Constitutional Education

With the Constitution – and its limits on government – playing such an outsized role in Tuesday’s elections and American political discourse generally, this would be a good time to mention a new program that teaches high school students about our founding document. 

My sometime co-author Josh Blackman, who is the founder of the Harlan Institute (a constitutional education non-profit for which, full disclosure, I serve on the board of directors) recently launched this year’s version of FantasySCOTUS.org, a Supreme Court fantasy league that was featured (along with Harlan) in yesterday’s Washington Post.  In FantasySCOTUS, students learn about and make predictions for pending Supreme Court cases, including recent headliners Snyder v. Phelps (the funeral protest case) and Schwarzenegger v. EMA (the violent video game case).  The project, among other Harlan Institute initiatives, is already being used by teachers in over 100 schools across the country, and is growing rapidly. 

Anyone interested in getting involved should consider participating in the Harlan Institute’s “virtual mentoring program.” On November 11, Harlan Institute will be holding the inaugural SCOTUS Skype-Teach-A-Thon:

As a complement to FantasySCOTUS.org, the Harlan Institute has trained a group of Mentors to to deliver virtual lectures to classrooms using Skype video chats.

If you are an attorney or law student interested in volunteering with us, please fill out this form. The time commitment would probably be about 1 hour on November 11. Our mentors consist of attorneys, law professors, and law students who are all committed to raising awareness of the Constitution and the Supreme Court.

For an entertaining and informative testimonial about Harlan and FantasySCOTUS, see this clip:


Ground-Breaking Constitutional Theories

As Larry Solum notes and Randy Barnett seconds, Georgetown law professor and friend-of-Cato Nick Rosenkranz has just published a tremendous article in the Stanford Law Review.  I saw an earlier version of it and can tell you that it offers one of those singular re-thinks of accepted learning.  As Randy puts it, “It is one of those rare pieces that hits you between the eyes and causes you to reconsider how you think about the Constitution.”  The article, entitled “The Subjects of the Constitution,” argues that all of us are going about our constitutional theorizing, at least with respect to judicial review, the wrong way.  Here’s the first paragraph of the abstract:

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

In thinking about who violated (or allegedly violated) the Constitution, Rosenkranz contends, we get to a truer understanding of whether the Constitution was violated, and how.  Fascinating stuff, which you can download here – and the sequel, titled “The Objects of the Constitution,” is coming soon to a legal journal near you (perhaps for next summer’s blockbuster law review article season).  (Coincidentally, today the Supreme Court unanimously ruled against Nick in his first argument before the Court – a technical case regarding the award of attorneys fees under Employee Retirement Income Security Act (ERISA) – so we now know where his comparative advantage lies!)

And while I have you thinking about such high-fallutin’ theoretical matters, let me also direct your attention to a new article by an up-and-coming legal scholar, also a friend-of-Cato (and my sometime co-author), Josh Blackman.  Josh argues that the Supreme Court’s relatively new “class of one” doctrine, by which a single person can present himself as a class discriminated against in violation of the Equal Protection Clause, should be used to challenge eminent domain abuse.  That is, homeowners can establish a class of one (i.e., the person whose home the government takes) if their property is singled out for condemnation while other similarly situated properties are not.  The singled-out homeowner(s) can thus challenge the arbitrariness of the government’s taking of their property.

Josh obviously hopes that some court will accept this novel strategy of borrowing equal protection jurisprudence to check rampant eminent domain abuse and vindicate property rights.  Here you can download his article, which is titled “Equal Protection from Eminent Domain: Protecting the Home of Olech’s Class of One.”  Coincidentally, two years ago Roger Pilon wrote an essay on the Supreme Court’s most recent “class of one” decision, which you can read here.

$288/Month for an Upper East Side Studio

“Rent Control Is a Vanishing New York Treasure,” proclaims the headline over a New York Times story. Like Josh Blackman, I think “treasure” isn’t the right word here: “anachronism”, “disgrace” and “abject policy calamity” are more like it.

P.S. The Times article sympathetically depicts a Gotham tenant who pays the legally dictated rent of $288 to live in one of the nation’s most desirable neighborhoods. You guessed it: he feels put upon in that situation, believes his landlord should be doing much more to spruce up the place, and has teamed up with Manhattan State Sen. Liz Krueger to pursue his fight.

Properly Extending the Right to Keep and Bear Arms to the States

I recently blogged about an interesting op-ed in which Ken Klukowski and Ken Blackwell of the American Civil Rights Union argue that the Supreme Court need not overturn The Slaughter-House Cases while “incorporating” the right to bear arms against the states.  (Josh Blackman fisked the article in more depth here.)   This piece was essentially a distillation of the ACRU’s amicus brief in McDonald v. City of Chicago, which ultimately argues, like Cato’s brief, that Chicago’s gun ban is unconstitutional.

It has come to my attention, however, that I mischaracterized one aspect of the Kens’ op-ed (sorry about that): while they are indeed against overturning Slaughter-House, the authors still seek to apply the Second Amendment right through the Privileges or Immunities Clause (like Cato and most libertarians), rather than through the Due Process Clause (like many conservatives and gun rights proponents).  This is the ACRU’s main argument, and it is based largely on Ken Klukowski’s recent law review article – indeed, the brief’s body cites Klukowski article some 20 times, often for propositions that find no further support in case law or academic literature.  (Josh has also provided a short critique of the ACRU brief/Klukowski article, so I won’t do that here.) 

In any event, this clarification gives me an opportunity to name and outline the five possible ways a justice could come down in the McDonald case:

  1. “Extreme Anti-Gun” – Affirm the lower court in its entirety, deciding that it correctly interpreted Supreme Court precedent, that reconsideration of this precedent is unwarranted, and therefore that neither the Second Amendment nor the right to bear arms it protects extends to people in the states (as opposed to in federal territories, like the District of Columbia).  I can’t imagine that any justice will vote for this way; even those who dissented in Heller generally support the selective incorporation of rights against the states.
  2. “Conventional Liberal” – Affirm the lower court in part but clarify that while the Second Amendment is indeed “incorporated” as against the states via the Due Process Clause, Chicago’s gun ban is still okay – possibly under a test weighing the individual right against the city’s interest in reducing gun violence. There may be one to four votes for this position: Justice Breyer likes balancing tests; Justice Stevens may feel that his hometown’s regulations are justified; and Justices Ginsburg and Sotomayor may feel the same way about New York.
  3. “Conventional Conservative” – Reverse the lower court, “incorporate” the Second Amendment via the Due Process Clause – adopting an analysis akin to that of Ninth Circuit Judge Diarmuid O’Scannlain in the Nordyke case – and strike down Chicago’s gun ban.  The NRA’s brief primarily advocates this position, as do many conservatives fearful of the Privileges or Immunities Clause.  There may be one to eight votes for this position: The “minimalist” Chief Justice Roberts may be hesitant to overturn longstanding precedent; Justice Scalia may decide that the devil he knows (substantive due process) is better than the one he doesn’t (privileges or immunities); Justice Kennedy may feel vested in his own expansive “fundamental rights” jurisprudence under the Due Process Clause (see my review of a book analyzing that jurisprudence); Justice Alito may share one or more of the above sentiments; and one or more of the aforementioned liberals may decide to “bite the bullet” and go along with this position.
  4. “Mend Slaughter-House, Don’t End It” – Reverse the lower court, overturn three old precedents – Cruikshank (1876), Presser (1886), and Miller (1894), which were decided at a time when none of the rights in the Bill of Rights was considered to apply to the states – “incorporate” the Second Amendment via the Privileges or Immunities Clause without touching Slaughter-House, and strike down Chicago’s gun ban.  This is the ACRU position, and while I don’t think it’s textually or historically supportable – a scholarly consensus across ideological lines holds that Slaughter-House was both wrongly decided and forecloses any significant application of the Privileges or Immunities Clause – it could emerge as a political “compromise.”  (If Justice O’Connor were still on the Court, I could maybe see her advancing this position.) 
  5. “Originalist/Libertarian” – Reverse the lower court, overturn Slaughter-House and the three aforementioned cases, extend the right to keep and bear arms to the states (which is technically distinct from “incorporating” the Second Amendment), and strike down Chicago’s gun ban.  This is Cato’s position – as well as that of the liberal Constitutional Accountability Center on behalf of eight leading constitutional law professors from across the political spectrum – and there will be one and may be up to all nine of the justices here: Justice Thomas has long said that he’d like to revisit Slaughter-House in the appropriate case, and he surely led the push to grant a cert petition whose question presented called for briefing about the Privileges or Immunities Clause; any of the others who seriously grapple with the arguments in Alan Gura’s brilliant petitioners’ brief (and those of his amici, us included) will also have to go this way despite their various political qualms.

In short, I see at least five votes in favor of extending the right to keep and bear arms to the states, but it’s an open question as to whether the Court will do that via the Due Process of Privileges or Immunities Clause of the Fourteenth Amendment.   

Now, you may ask why, if I’m so confident that the fifth option above is correct, don’t all conservatives qua self-professed “originalists” gravitate towards it (and, conversely, why some liberals qua “living constitutionalists” do).  That’s an unlawyerly matter of policy preferences: as the Kens’ op-ed details, conservatives (and some libertarians), while wanting to extend Heller’s interpretation of the Second Amendment to the states, are wary of opening a Pandora’s Box of positive rights (health care, housing, welfare, etc.), as well as the perpetual culture-war bogeymen (abortion, gay marriage, pornography, etc.).  Liberal intellectuals, meanwhile, are holding their nose at having to extend gun rights because they feel that’s the only concession they have to make to achieve their utopic constitutionalization of the entire progressive agenda.

While libertarians share the conservative concern about positive rights – as well as legal, if typically not policy, qualms about courts’ handling of social issues (e.g., that Roe v. Wade is bad law even if some libertarians are pro-choice; that Lawrence v. Texas is good law but achieved through Kennedy-esque hand-waving rather than sound legal reasoning) – many of us see the benefits of being able to protect economic liberties and other natural rights.  For example, unlike conservatives, we generally like Lochner, the 1905 case that struck down on “liberty of contract” grounds a New York law limiting bakers’ hours.

Yes there’s a danger – particularly if President Obama gets to replace not only Justices Stevens and Ginsburg, but also Scalia and Kennedy – that overturning Slaughter-House will open the aforementioned Pandora’s Box, but: 1) that danger isn’t necessarily mitigated by somehow managing to use the Privileges or Immunities Clause without overturning Slaughter-House; 2) the danger is no different than under the current substantive due process doctrine; and 3) if we are to remain originalists not just in overturning Slaughter-House but in future jurisprudence, the progressives’ arguments fail, the danger is averted, and the Box stays sealed. Josh Blackman and I wrote our article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms,” in part to address the valid concerns (sketched in the Kens’ op-ed) about the consequences of truly reviving the Privileges or Immunities Clause.

While we won’t assuage the staunchest social conservatives – (adult) pornography is protected speech (but even more so is political advertising!) – we should mollify many faint-hearted originalists.  Anyone who thinks the Constitution is a “dead” document, whose text is to be interpreted according to its original public meaning, has to admit that the Privileges or Immunities Clause protects something more than what Slaughter-House said it did.

To see how all this works in greater detail, read our Pandora’s Box article, which I’ve previously discussed here , here, and here.  And again, Cato’s amicus brief is here; see also this law review article by its principal author, Cato adjunct scholar Timothy Sandefur.

Keeping Pandora’s Box Sealed

In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?

If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“  As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”

Going beyond the title, there are several errors in the piece,  which I will briefly recap:

First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal – and thereby a reinvigoration of Privileges or Immunities – would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.

Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause – the exact vehicle the Kens would use to “incorporate” the Second Amendment.

To set the record straight, Josh and I are working on an op-ed – not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.

Battle of the Ilyas and More on the Chicago Gun Case

Josh Blackman, my coauthor on “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” has inaugurated a series of podcasts devoted to law and liberty. He’s already has an interview with PLF’s Timothy Sandefur (also a Cato adjunct scholar) and the Independence Institute’s David Kopel (also a Cato associate policy analyst).  Tim authored Cato’s brief in McDonald v. City of Chicago, the case seeking to extend Second Amendment protections to the states – and about which I blogged yesterday.

Well, now Josh has come up with a bit of a twist on the podcast medium: he invited George Mason law prof Ilya Somin (also a Cato adjunct scholar) and me to engage in a contest based on the trivia challenge Sixth Circuit Judge Danny Boggs issues his clerkship applicants. The winner of this “Battle of the Ilyas” would receive the free and exclusive right to the Ilya name – because apparently it’s too confusing to have two libertarian lawyers named Ilya in the same metropolitan area/professional circle. It was a lot of fun, and while I won’t tell you the outcome here, you can easily find that out and listen to the conference call we had about it.

Finally, after this “Battle of the Ilyas,” Josh asked me to record a podcast about McDonald – which inspired our article – and United States v. Comstock (another important case in which Cato filed a brief, and which I blogged about here).  Happy listening!

Cato Files Brief to Extend Second Amendment Rights, Provide Protections for Privileges or Immunities

Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago’s handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court agreed to review the case – after Cato filed an amicus brief supporting the cert petition – and specifically consider whether the Fourteenth Amendment’s Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states.

Now Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban – who are represented by Alan Gura, the lawyer who successfully argued Heller – and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment’s framers and in direct contradiction to the developments in legal theory that underlay its adoption.

We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine – that the Due Process Clause imposes something more than mere procedural limits on government power – was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.

Again, go here to read Cato’s brief in McDonald v. City of Chicago.  Related, Josh Blackman and I have put up on SSRN our article, “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” which comes out in January in the Georgetown Journal of Law & Public Policy.  I will be blogging more about “Pandora” – and, of course, the McDonald case – in future.