While we’re all shooting off our guns in celebration of good Supreme Court news, Roger has reported the blow to liberty dealt by the Court’s lower‐profile CLS v. Martinez decision. I won’t elaborate on whether the Court made the right decision — on that I stand with Roger (and Alito, Roberts, Scalia, and Thomas). I just want to add one thing about the root problem in the CLS case: You can’t have both taxpayer funding of higher education and full freedom. As Ilya Shapiro and I wrote in an April op‐ed about the case:
It is impossible to reconcile free speech with governmentally compelled support of speech. Just as public colleges cannot choose both which student groups to fund and avoid discrimination, they cannot pay a professor without privileging his speech over that of the taxpayers who pay his bills.
Quite simply, when public universities decide which groups do or do not get taxpayer funds, and which professors are or are not hired, government is deciding those things, and that is ultimately incompatible with both free inquiry and, more importantly, a free society.
Today Politico Arena asks:
What are the political implications for Democrats and for the Kagan hearings of today’s Supreme Court gun decision?
The Supreme Court’s decision today that the Second Amendment applies against the states cannot be helpful to Democrats in the upcoming elections or to Elena Kagan in her confirmation hearings. Most Court‐watchers expected the decision to come out as it did, yet the dissent by the Court’s four liberals speaks volumes. How could other rights in the Bill of Rights be good against the states, but not this right? Given the quality of their argument, the conclusion that the Court’s liberals are picking and choosing their rights on political grounds is inescapable.
And that issue will arise in the Kagan hearings, given some of her past statements about the Second Amendment. Will it block her confirmation? Probably not, given the numbers. But the discussion should illuminate the issue for the voters, and that’s good.
Dissenting today in Christian Legal Society v. Martinez, Justice Samuel Alito put his finger on the majority’s underlying principle: there shall be “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” That pretty much says it all.
This case arose after the Hastings College of Law, a large public law school in San Francisco, denied the school’s tiny Christian Legal Society the same recognition and support it granted to some 60 other student organizations on the ground that CLS, contrary to the Hastings nondiscrimination policy, discriminates by requiring that its members and officers abide by certain key tenets of the Christian faith. In a word, in the name of anti‐discrimination, Hastings, a government institution, discriminated against CLS, which was simply exercising its speech, religious, and associational rights. Cato filed an amicus brief in the case, written by the University of Chicago’s Richard A. Epstein, supporting the CLS students’ right to freedom of association.
But it was not to be. Justice Ruth Bader Ginsburg, writing for the Court’s three other liberals plus Justice Anthony Kennedy, held that the school’s “all comers” policy, which requires that student organizations accept anyone as members and even as officers, is “constitutionally reasonable,” taking into account all of the surrounding circumstances. That is a new standard for constitutionality when it comes to fundamental rights. And if students, whatever their interests or values, cannot form organizations limited to people who share those interests and values, what’s the point of having student organizations at all? In a word, like the mugger who says “Your money or your life,” today’s opinion enables Hastings to say, “If you want benefits otherwise available to all, you’ve got to give up your right to freedom of association.” No public institution should be able to put people to such a choice.
Today is a big victory for gun rights and a bigger one for liberty. The Supreme Court has correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government.
It could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions, and that all individuals possess certain fundamental rights. It is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.
Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment. Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”
Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess — and indeed it is “essential to the preservation of liberty.” The Framers of the Fourteenth Amendment — the most important “Framers” in this context — plainly deemed this right “necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.” All arguments to the contrary lack legal, historical and even philosophical basis.
And so it is a very good thing, again for liberty, that the Court needs Thomas’s fifth vote to rule as it does: while the plurality declines to reconsider the old and discredited Privileges or Immunities precedent, Thomas’s clarion call for a libertarian originalism provides a step on which to build in future.
Finally, as we celebrate the belated recognition of a precious right — the one that allows us to protect all the others — we must be shocked and saddened to see four justices (including Sonia Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process. This is a nation of laws, not men — a republic, not a pure democracy — and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote. Thank God that, in this case, that vote was Justice Thomas’s.
The Washington Post’s Ezra Klein looks at the May/June polling data from Pollster.com (below) and concludes ObamaCare is “getting more, not less, popular.”
At The Weekly Standard, Jeffrey H. Anderson explains how that changing trendline reflects not a shift in public sentiment, but the fact that the polls conducted in May and June are fewer and less reliable.
Senator Robert C. Byrd, who died today at age 92, had a long and varied career. Unlike most senators, Senator Byrd remembered that the Constitution delegates the power to make law and the power to make war to Congress, not the president. He often held up the Cato Institute’s pocket edition of the Constitution as he made that vital point in Senate debate. I have several emails from colleagues over the years reading “Senator Byrd is waving the Cato Constitution on the Senate floor right now.” Alas, if he really took the Constitution seriously, he would have realized that the limited powers it gives the federal government wouldn’t include many of the New Deal and Great Society programs that opened up whole new vistas for pork in West Virginia.
Justin has already used the photo of Senator Byrd wielding the Cato Constitution to make a point on Meet the Press in 2004. At right, at a Capitol Hill press conference in 1998 after the Supreme Court rejected the line‐item veto, Sens. Carl Levin (D‑MI) and Byrd cite their pocket Constitutions as Sen. Pat Moynihan (D‑NY) looks on. For more examples of senators and other public figures displaying the Cato pocket Constitution, see this Cato Policy Report (pdf) article.
To purchase copies of the Cato pocket edition of the Constitution, which also includes the Declaration of Independence and an introduction by Roger Pilon, click here.
Let us hope that some other senator takes up Senator Byrd’s vigilance about the powers of Congress and the imperial presidency.
On the occasion of the death of Sen. Robert C. Byrd, libertarians will rightly think about the senator's flamboyant defense of federal largesse rained down on West Virginia and the garish and unseemly tendency to name things purchased with this largesse after the senator. No doubt his membership in the Ku Klux Klan will be a centerpiece of the remembrance as well.
What hopefully will not go unremembered are a few additional facts. As Adam Clymer's obituary observes, Byrd was a jealous defender of the rights of Congress against imperial presidentialism, likely the last of a breed. You probably could count on one hand the younger senators or congressmen who take as seriously as did Byrd their duty as members of the American legislature. Byrd frequently was seen wagging his copy of the Cato Institute reprint of the Declaration of Independence and U.S. Constitution in the face of his fellow legislators. (If I recall correctly, my colleague Roger Pilon, who wrote the introduction to the reprint, wondered aloud whether Byrd had read it, given his view that the Treasury could rightly be used as West Virginia's piggybank.)
Byrd was also a man who turned dripping contempt into a high art form. You could see this in any number of his speeches, but in particular this attribute was on display during the Iraq War debate. Byrd, to his great credit, seemed to smell a rat from the outset, and he repeatedly and unsuccessfully spoke out against both the war and the executive deference that surrounded the debate. (Those supporters of the Iraq War who condemn Byrd's porcine tendencies should ask themselves how many West Virginia bridges could have been purchased with the hundreds of billions and thousands of American lives we have poured into that disgraceful enterprise. And at least we could drive across them.)
The man had a sense of history, as well. Byrd's anti-presidentialism, opposition to Iraq, and historical grounding were all on display in this characteristic clip from the Iraq War debate in 2002, in which Byrd had some thoughts on appeals to legislators' duty to the "Commander in Chief."
I will not miss the Senator's penchant for pork, but I will certainly miss his lifelong defense of the prerogatives of the legislature. Rest in peace.