The ABC’s of PRO

The ABC’s of PRO

Just when you thought our wise overlords in government couldn’t make our economic situation any worse, Joe Biden dares to dream the impossible dream, and endorses legislation to stick it to freelance contractors called: The PRO Act. This is nearly identical to the legislation California’s democratic super-majority pushed through on a State level.

I covered that bill’s causes and effects in both an article and podcast episode called “California Reaming.”

That may be helpful to watch or re-watch, to compare California’s Assembly Bill 5 (or AB5) with Biden’s current PRO act legislation.

As we all know, there’s nothing Democrats care more about than looking out for “the little guy.” It’s precisely that selfless compassion that makes them a better person than the rest of us. But their genuine belief that the important thing is to do something to feel like you are helping, instead of judging their success by a real-world assessment of this kind of legislation’s effects has already proved ruinous to California businesses. There is no reason to expect any difference on a national level, should the PRO Act pass.

In this article, I want to discuss what is known as the ABC test that has been used to apply to judicial scrutiny in places like CA where this law is in effect and is a central feature of the PRO Act as well. This will be followed by a deep dive into the Constitution’s “Contracts Clause” to discuss what this clause means and the myriad ways it relates to modern legislation like AB5 or Pro Act.

California’s bill to regulate the gig economy of freelance contractors… regulate out of existence. Unless, your freelance job is protected by a powerful, well-funded Union, like the truckers union, who have received exemptions. A judge has ruled that truck drivers in California are not subject to Assembly Bill 5 (AB 5), a new gig economy law that seeks to reclassify many contractors as employees. 

The regulations, which went into effect January 1 of 2020, were drafted in response to the case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. Filed by Los Angeles City Attorney Mike Feuer, the landmark court case established a three-pronged “ABC test” to determine if an individual is properly labeled as an employee versus a contractor.

What Is ABC Test

The PRO Act uses an identical ABC test to delineate employers and contractors and is crucial to understand. So precisely what does it entail and how does it function

  1. A contractor must control their workload,
  2. Not perform work within the business’s primary scope of operations,
  3. And be “customarily engaged” in the occupation.

This test constitutes the level of judicial scrutiny applied when a law is challenged. In this case it is done so as a matter of rational basis review. Rational basis review seeks to determine whether a law is “rationally related” to a “legitimate” government interest, whether real or hypothetical.

Companies are trying their level best to circumvent that standard, which would unravel large portions of the gig economy. 

Workers who fail even one leg of this test are considered employees, a status that entitles them to certain benefits and protections while also imposing a long list of regulations on their relationship with their employer. That is, unless you are represented by a powerful union with deep pockets who can get entire industries exempt, despite their legally failing the ABC Test.

Enter Judge William Highberger of the Los Angeles Superior Court. Highberger did not find that truckers specifically pass the ABC test, but that the test itself “clearly run[s] afoul” of federal law. He cites the 1994 Federal Aviation Administration Authorization Act, which stipulates that the “use of non-employee independent contractors (commonly known in the trucking industry as ‘owner-operators’) should apply in all 50 states to increase competition and reduce the cost of trucking services.” At the same time, things are going from bad to worse for ridesharing companies during the coronavirus pandemic. Business is way down, while legal troubles continue to mount.

California AG Xavier Becerra filed a lawsuit against Uber and Lyft. Their complaint accuses the companies of misclassifying their drivers as independent contractors, not employees, in violation of the state’s law.

The lawsuit is the latest flashpoint in rideshare companies’ long battle with state and local governments over what rules should govern their relationship with their drivers.

Tuesday’s lawsuit accuses the two companies of a litany of local and state labor code violations stemming from their alleged misclassification of drivers as independent contractors, including not paying minimum wage, not paying overtime, not offering sick leave and meal breaks, and not paying into the state’s unemployment and disability insurance funds.

Rideshare companies have a strong case against classifying their drivers as employees, which they say would be both incredibly costly and destroy the flexible work arrangements that make these app-based services appealing to many drivers. Bloomberg reports that reclassifying drivers as employees would raise rideshare companies’ costs by as much as 20 percent.

The companies insist that their status as tech firms who only connect drivers and riders, but who don’t tell drivers when or where they have to work, means those offering rides on their platform don’t qualify as employees under the ABC test.

So what about the Constitution’s contract clause

No State shall…pass any…Law impairing the Obligation of Contracts….

-Article I, § X, Clause 1

Article I, Section 10 of the U.S. Constitution contains a list of prohibitions concerning the role of the states in political, monetary, and economic affairs. As the Constitutional Convention was completing its work on prohibiting states from issuing paper money as legal tender, Rufus King of Massachusetts rose to propose “a prohibition on the States to interfere in private contracts.” King relied on a central provision of the Northwest Ordinance:

“[I]n the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.”

The Obligation of Contract Clause thus had its origins in earlier national policy, by extending to the states a prohibition that was already in effect in the Northwest Territory. In the brief debate that followed, George Mason feared the prohibition would prevent the states from establishing time limits on when actions could be brought on state-issued bonds. James Wilson responded that the clause would prevent “retrospective interferences only,” that is, impairment of contracts already made. These comments suggest that the Framers may well have intended to limit states in their impairment of private contracts already made. But the issue is not completely free from doubt. The words “previously formed” were not carried over to the Obligation of Contract Clause, so that the text could read as though it has some prospective application.

The twin protections found in Article I, Section 10 prohibited the state from issuing paper money and, to some extent at least, from regulating economic affairs. That one-two combination troubled the Anti-Federalists, who feared that the two clauses operating in tandem would prevent the states from assisting the debtor classes. The states could no longer debase the currency with new issues of paper tender. In reporting why he had voted against the clause at the Constitutional Convention, Luther Martin asserted that the states would no longer be able “to prevent the wealthy creditor and the monied man from totally destroying the poor though even industrious debtor.” In response to the Anti-Federalists, James Madison declared in The Federalist No. 44 that the Obligation of Contract Clause was essential to “banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.” Debtor relief was regarded as undermining the long-term stability of commercial expectations.

Support for the Obligation of Contract Clause was found in other quarters. In the South Carolina ratifying convention, Charles Pinckney argued that these two limitations on the states would help cement the union by barring the states from discriminating against out-of-state commercial interests. Edmund Randolph, in the Virginia ratifying convention, declared that the Obligation of Contract Clause was essential to enforcing the provision in the peace treaty with Great Britain guaranteeing private British debts.

The Obligation of Contract Clause, therefore, served a double duty: it afforded both a protection to individuals against their states and a limitation on the states that prevented them from intruding on essential federal interests.

In tone, the clause reads as a stern imperative. Unlike the Import-Export Clause (Article I, Section 10, Clause 2) and the Compact Clause (Article I, Section 10, Clause 3), Congress cannot override the prohibition by giving its consent to any state action that violates this provision. The brief terms of the clause, however, cover more than the endless round of debtor-relief statutes the Framers had in mind, for the clause textually covers all types of contracts, not just debt instruments. Further, unlike the Commerce Clause (Article I, Section 8, Clause 3) the Obligation of Contract Clause applies not only to those contracts with interstate connections, but also to all contracts, even local contracts.

What is clear is that in the antebellum period, the Obligation of Contract Clause was the only open-ended federal constitutional guarantee that applied to the states. As such, the Obligation of Contract Clause came by default to be the focal point of litigation for those who sought to protect economic liberties against state intervention. The Supreme Court’s interpretation of the clause, both before and after the Civil War, has been filled with odd turns and strange surprises.

Everyone conceded that the clause applied to ordinary contracts between private persons, including partnerships and corporations. That seemed to be the understanding at the Constitutional Convention. But did the Obligation of Contract Clause also reach actions by the state so as to prevent it from repudiating its own contracts, including those that granted legal title of state-owned lands to private persons, Fletcher v. Peck (1810), or sought to revoke state charters for private colleges, Trustees of Dartmouth College v. Woodward (1819)? In both of these cases, Chief Justice John Marshall opted strongly for the broader reading of the clause in order to restrain conduct by government—reneging on grants—that would be regarded as unacceptable if done by any private individual. In this instance, moreover, the broad reach of the Obligation of Contract Clause uneasily coexisted with the principle of sovereign immunity, which Alexander Hamilton had strongly defended in The Federalist Nos. 81 and 82. That principle prevented the state from being sued for breach of its own ordinary commercial contracts. But that immunity did not allow the state to undo its own contracts once their performance was completed. This reading fits so well with the Framers’ antipathy to corrupt self-dealing as well as the general purpose of limited government that to this day no one has rejected the view that the Obligation of Contract Clause applies to state contracts. But there remains a spirited debate as to how much protection it supplies in light of the doctrine of sovereign immunity.

Certainly much is to be said on behalf of the stability of titles to property obtained in grants from the states. And it has been universally held that the Contracts Clause does not authorize actions for money damages. But we cannot ignore the reciprocal problem: if the Obligation of Contract Clause is read so broadly so as to invite groups to lobby for sweetheart agreements, reformist governments would not be able to set such agreements aside.

Most of the interpretive questions regarding the clause, however, deal with the impact of the Obligation of Contract Clause on the state regulation of private agreements, where the issue of sovereign immunity does not arise. That issue, in turn, is divided into two parts. The first asks whether the Obligation of Contract Clause protects the rights that are vested in private party contracts that are in existence at the time the state legislates a new regulation that could apply to the contract. The second asks whether the Obligation of Contract Clause imposes limitations on the power of the state to regulate contracts not yet established.

The answer to the first question is relatively uncontroversial. The clause must apply to pre-existing contracts, for otherwise it would be a dead letter. Hence, early decisions held that state insolvency laws could not order the discharge of contracts that were formed before the state statute was passed Sturgesv. Crowninshield (1819). The legislature could not flip the background rules of the legal system to the prejudice of individuals who had advanced money on the faith of earlier arrangements. The clause also applied to a wide range of debtor-relief laws, wherein individuals sought to escape or defer the payment of interest, or to avoid foreclosure of their mortgages in hard economic times.

It was, however, one thing to say that the Obligation of Contract Clause applied, and quite another to say that all forms of debtor relief were regarded as beyond the power of the state. Many cases adopted the slippery distinction that the Obligation of Contract Clause preserved the obligation under contract, but did not prevent the state from limiting one or another remedy otherwise available. The result was that small erosions of contract rights came to be accepted, but large deviations were not, even though the clause speaks of all impairments (large or small) in the same breath. Still, in general, the prohibition against state intervention into the substance of existing contracts continues to hold today, unless (as will be discussed later) the state offers some police-power justification for its actions. 

The Supreme Court reached a much more definitive conclusion on the second question in 1827, by holding in Ogden v Saunders (4–3, with Justices John Marshall and Joseph Story dissenting) that the Obligation of Contract Clause did not apply to those contracts that had not been formed as of the date of the passage of the regulatory legislation. In that case, Justice Bushrod Washington, for the majority, made a distinction between laws that affect contracts generally, such as statutes of limitations, and laws that affect the obligation of contracts. In one sense, Justice Washington’s distinction is surely unexceptionable, for it would be odd if a revision of, say, the parol evidence rule in 2000 could not apply to any contracts signed before that date. The rule itself does not bias the case one way or another, but it is intended to improve the overall administration of justice. Individuals typically do not rely on these rules at formation, either. It would be contrary to its original design to read the Obligation of Contract Clause as blocking any improvements in the administration of commercial justice.

By the same token, the broad refusal to apply the Obligation of Contract Clause prospectively could go too far. For example, suppose a state just announced that from this day forward it reserved the right to nullify at will any contracts that were thereafter formed. At that point, it would take only a short generation after passage of this statute to gut the Obligation of Contract Clause making it “mere surplussage,” something that is normally not permitted under standard rules of statutory interpretation. Thus, notwithstanding intimations in the Convention that it only had retroactive application, the courts have interpreted the clause to hold that its prohibitions are prospective but not absolute. The state may alter the rules governing future contracts in ways that offer greater security and stability to contractual obligations. Procedural legislative reforms that arose most frequently in the early debates—a statute of frauds, a statute of limitations, and recording acts—are all measures that meet this standard.

Beyond allowing for procedural changes for future contracts (and modifications of remedy for existing contracts), the Court’s refusal to give the clause any other prospective role opened the way to partisan legislation that limited the ability of some parties to contract without imposing similar restrictions on their economic competitors. In practice, Ogden meant that all general state economic regulation lay outside the scope of constitutional limitation. That gap in the system of constitutional regulation remained until after the Civil War, at which time some protection against state interference with future contracts was supplied under the so-called dormant Commerce Clause (with respect to interstate agreements only) and under the doctrine of liberty of contract as it developed under the Due Process Clause, and, in certain limited cases, under the equal protection clauses. But since Ogden, the Obligation of Contract Clause has been an observer, not a central player, in the constitutional struggle to limit prospective state economic regulation.

The Obligation of Contract Clause continued to have some traction with respect to contracts previously formed, but even in this context, two types of implied limitations on its use were introduced: the just-compensation exception (i.e., the Fifth Amendment’s Takings Clause) and the police-power exception. In principle, the initial question is why any implied terms should be read into any constitutional provision, when no mention of them is made by the Framers. Here the simplest answer is that the logic of individual rights and liberties requires that adjustment. The Constitution thus creates presumptions and leaves it open to interpretation as to how these should be qualified in ways that do not gut the original guarantee.

Consider first the question of property takings with just compensation. Suppose that A buys land from B, which the government then wishes to condemn with payment of just compensation. Surely the government’s right to condemn is not blocked by A’s declaration that he received absolute title to the property from B in a contract that cannot now be impaired by the government. There is, however, a general principle deriving from the common law and Anglo-American constitutional history that the power to take property for public use is “inherent in government,” so that the condemnation can go forward even when a person buys the land from the government. West River Bridge Co. v. Dix (1848). Thus, the Obligation of Contract Clause has to be read subject to a just compensation exception, even though the condemnation can be seen to “impair” the contract right by denying the owner’s right to hold out for an above-market price.

The second set of exceptions to the Obligation of Contract Clause involves the police power. Again, this power is nowhere mentioned explicitly in the Constitution, but it is read in connection with every substantive guarantee that it supplies against the exercise of federal or state power. The customary formulation allows the state to override (without compensation) private rights of property. It should, therefore, do so with ordinary contracts as well. Nonetheless, because no compensation is provided, logically, the class of justifications should be more stringent than the public-use requirement that allows the impairment of contracts with compensation. The canonical formulation defines the state police power as regulation in the name of safety, health, morals, and the general welfare. Stopping contracts to pollute, to bribe, or to fix prices has always been held to fall within the police-power exception.

The New Deal constitutional transformation of 1937, however, expanded the scope of the police power beyond these limited objectives, so that it no longer was possible to distinguish between general welfare and special interests. Home Building & Loan Ass’n v. Blaisdell (1934) vastly multiplied the police-power exceptions to the contractual guarantees offered by the Obligation of Contract Clause, even when no compensation was supplied. The actual decision, dealing with a state-imposed mortgage moratorium, could be explained in part as an effort to counter the ruinous effects of deflationary policies (which in effect increased, in constant dollars, the amount of the debts), but the decision itself was cast in broader terms and unleashed many other legislative initiatives that sought to neutralize the protections secured by individual contracts. Most notably, in Exxon Corp.v. Eagerton (1983), the Court found that a “broad societal interest” was sufficient to justify a decision to prevent a company from asserting its explicit contractual right to pass on any increased severance tax to its consumers.

At present, therefore, it is virtually certain that the Supreme Court will find a police-power justification for any piece of special legislation with interest-group support, thereby gutting the clause insofar as it applies to broad classes of existing contracts. Ironically, however, the Court has remained more suspicious of government’s efforts to use legislation to extricate itself from its own covenants, noting the obvious risk of self-dealing that this behavior represents. It thus struck down efforts of the Port Authority of New York and New Jersey to nullify bond covenants that prohibited it from using bond proceeds to support mass transit. United States Trust Co. v. New Jersey (1977). And in Allied Structural Steel Co. v. Spannaus (1978), the Court refused to allow Minnesota to impose retroactively more-stringent financial obligations on an employer in the winding up of its pension plan. Ironically, the most active use of the contracts clause today is over the unresolved issue of the power of state and local governments unilaterally to restrict pension benefits with public employees, both union and nonunion. Dealing with private contracts, however, the modern age often finds little intellectual respect for freedom of contract or for the sanctity of contracts validly formed. More than any fine point of the law, that initial intellectual predilection explains the lukewarm reception of Obligation of Contract Clause claims in dealing with these private arrangements.

Supreme Court Roundup: The Good, the Bad, and the Ugly

Supreme Court Roundup: The Good, the Bad, and the Ugly

No one likes to admit when they are wrong. Though in this case I will make an exception. In a recent article called “What The Heller?” I lamented that by heavily compromising the originalist analysis of the Second Amendment in the case of District of Columbia v. Heller, 554 U.S. 570 (2008), conservatives may have doomed the amendment to the trash heap of history. At a time when many people were celebrating that this would be the parchment barrier that protected the Second Amendment—which (rather ironically) had failed because it was taken as a self-executing parchment barrier—the Court’s refusal to grant cert on lower court challenges like the recent Ninth Circuit case of Young v. Hawaii that declared there was no evidence an amendment that protected a right to bear arms meant it protected a right to actually bear arms, things looked bleak.

Apart from two dissenting opinions filed by Justice Clarence Thomas lamenting the Court’s consistent denial of cert on every Second Amendment case, the bench has remained silent as lower courts intentionally misread Heller. A livid Justice Thomas included such scathing criticisms as;

“The Supreme Court is treating the second amendment as a second-class right. The court routinely grants review in every case involving free speech, abortion, Fourth Amendment search and seizure. You name it, they are adjudicating on it. Any and every possible provision of the Constitution you please, they will take a case. But they treated the second amendment like a leper, they don’t even want to touch it.”

This all culminated with a growing number of constitutional scholars asking the same question I speculated on in that previous article. Is the Second Amendment a dead letter?

This is one instance where I am pleased to report, I may well have been wrong. Some recent developments have offered a chance for an optimistic view of the future of the Second Amendment. But much like the Heller opinion, that optimism comes with a caveat that should not be overlooked.

Let’s break down several new developments involving the Supreme Court and the future of the Second Amendment, the good, the bad & one ugly truth that cannot afford to be overlooked.

The Good

Last Monday was a very good day for the Constitution. The Supreme Court issued its opinion in the case of Caniglia v. Strom where it struck down warrantless gun seizures. The only thing that could have been better would be to live in a country where we don’t need the Supreme Court to tell the police that stealing firearms from a person’s home without a warrant is unconstitutional. This case began with an incident of Rhode Island police stealing a man’s guns from him home without a warrant after taking him in for a mental health evaluation. The Court struck down this warrantless gun confiscation with a unanimous 9-0 ruling. Specifically they ruled that the “community caretaker exception” to the Fourth Amendment does not extend to the home.

Police generally cannot conduct searches of private property without consent or a warrant.

In Cady v. Dombrowski, the Supreme Court held in 1973 that police may conduct warrantless searches related to “community caretaking functions,” but only for “vehicle accidents.” Since then, the principle has become “a catchall for a wide range of responsibilities that police officers must discharge aside from their criminal enforcement activities,” the First Circuit Court of Appeals stated in the Caniglia case.

The community caretaking doctrine holds that police don’t always operate as law enforcement officials investigating wrongdoing, but sometimes as caretakers to prevent harm in emergency situations.

Edward Caniglia has no criminal history and no record of violence. He had been married to his wife for 22 years when, on Aug. 20, 2015, they had a disagreement inside their Cranston, Rhode Island home. The argument escalated. He produced an unloaded gun and said, “Why don’t you just shoot me and get me out of my misery?”

Worried for his safety, his wife asked police to conduct a welfare check. Edward calmly explained the theatrics of the previous day, and according to the officers on scene he seemed perfectly normal. Still the officer in charge decided that Edward posed a danger to himself and others. He insisted Edward be taken, by ambulance, to a local hospital for a mental health screening. He agreed to go when he was threatened with an arrest and booking if he wouldn’t go to the hospital. The police assured him they had no intention of taking his guns when he left.

As should surprise no one, those police lied. As soon as he left they found and seized his guns. His wife never asked them to remove the guns and when she saw what they were doing she questioned them about why they were being taken. The officers then lied to her as well and told her that before he left, Edward had consented to their confiscation.

What’s more, after illegally seizing the guns, the police never told Edward that they had taken them from the home. When he figured that out and went to get them back the police arbitrarily refused to return the weapons. Caniglia sued, arguing the community caretaking exception shouldn’t apply inside “the home—the most protected of all private spaces.”

The district court ruled against the petitioner and on appeal the First Circuit enjoined the decision and affirmed the legality of the seizure solely on the grounds that the decision to remove both the petitioner and his firearms from the premises fell within the “community caretaking exception.”

If you are anything like me, that last sentence may bear repeating to grasp it’s most troubling assertion: removing the petitioner fell within the “community caretaking exception.”

If the theft of an individual’s firearms is an especially egregious example of over-stepping Fourth Amendment search and seizure protections because firearms have a Second Amendment protection as especially important property because of their role in protecting individuals natural rights of self-defense, is it not more egregious that these same courts are suggesting the community caretaking standard also extends into the home to kidnap the individual in question without an arrest warrant or probable cause that the person has or was in the process of committing a crime? We are talking about an unlawful seizure of the very self that we own firearms to defend.

However, there is plenty to like about this case. That even the three liberal justices were ready to sign onto a ruling that protected our Second Amendment rights, even if that protection is by proxy, is a pleasant surprise.

The Bad

There is an upcoming case that the Second Amendment community has been very excited about, and which even gun rights pessimists like myself see as a potential chance to take a step in the right direction toward expanding the right to keep and bear arms. It would go beyond the right protected in Heller to keep a gun in the home and confirm the right to carry a gun on your person.

This is NYS Rifle & Pistol Association v. Corlett.

But much how like the Heller decision gave us as much to worry about as it did to celebrate, it is already clear from the Court’s petition to grant cert in this case that it may not be the big win for gun rights many are hoping for. To understand why we need to examine the court’s to grant review on a limited question presented:

Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

Contrast this with the original question presented (QP) by the petitioner’s attorney, Paul Clement:

Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

There are 5 major differences between Clement’s QP and that to which the Court granted review:

First, the Court’s QP focuses on the state’s decision to deny “concealed-carry licenses” to the petitioners. Clement’s QP challenged the law on its face, and as applied. Is the Court’s decision now limited to an as-applied challenge, rather than a facial challenge? Might the Court leave open the possibility that other may-issue regimes are unconstitutional? Are there some unique aspects of the New York law that would distinguish it from other may issue regimes? Is there the possibility the Court will need to remand for further explication of the regime?

Second, the Court’s QP refers to a petitioner that could file an “application.” That category of individuals would seem limited to a natural person. One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an “application”? Or will the Court limit relief to the named parties?

Third, the Court’s QP refers to “applications for concealed-carry licenses for self-defense.” Clement’s QP refers to “ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” The Court’s question is far narrower. It only concerns “concealed-carry licenses.” Clement’s petition refers to carrying a gun more broadly outside the home. By stripping the reference to “outside the home,” the Court avoids resolving a thirteen-year old mystery of what exactly are “sensitive places.” (This refers to one of those deviations from Original Public Meaning found in the Heller opinion that left a number of constitutional scholars and Second Amendment advocates rightfully worried about this deviation and it’s potential consequences). Also, the Court’s question would close the door to a claim for open-carry. But why would the Court even consider this issue? New York does not permit open carry. I am nervous this QP is setting up a punt: a remand to consider whether permitting open carry would be consistent with the Second Amendment.

This issue has far more serious ramifications, if it is in fact what the Court is setting up for. We know that Biden is just itching for a reason to pack the Supreme Court. He has assigned a task force to study the matter and I think any reasonably intelligent citizen across the political spectrum would say this is a real possibility in the near future.

Biden has been looking at all kinds of ways to expand gun control. And he has been very open that two issues from the Court warrant a special reason for him to move straight to court packing: gun control and abortion.

In fact, during oral arguments for Caniglia v. Strom on March 24, Biden had Department of Justice lawyer Morgan Ratner testify in support of the city of Cranston’s position, arguing police had to be free to act in particular emergencies.

“Although there have been a lot of questions this morning about whether this is emergency aid or exigent circumstances or community caretaking or something else, the label you give it is not nearly as important as the principle. And the key principle is if someone is at risk of serious harm and it’s reasonable for officials to intervene now, that is enough,” Ratner said.

We now also have this upcoming Second Amendment case he is very much opposed to, as well as the upcoming abortion case that has the potential to seriously limit Roe. If the Court punts once again on this case and gives Biden the time to move onto court packing to preclude any future possability of Second Amendment victories, I would be shocked if the president didn’t take up that de facto invitation. And in a paper from the commission that he assembled to consider court packing, which is now available to read in a recent law review article “The Endgame Of Court-Packing,” we are talking about a 39 Justice Supreme Court. I wish I was exaggerating, but I’m not.

Fourth, Clement’s QP refers to “citizens.” There is no corresponding language in the Court’s QP. Did Justice Sotomayor object to a right that would be limited to citizens? After all, the Second Amendment does not apply to citizens. It refers to the “Right of the people” (Judge Wood adopted that reading of the Second Amendment for the Seventh Circuit). And the Due Process Clause, which the McDonald plurality used for incorporation, refers to persons, not citizens. Yet, Justice Thomas’s controlling McDonald concurrence relied on the Privileges or Immunities Clause, which is limited to citizens.

Fifth, Clement’s QP refers more broadly to “ordinary law-abiding citizens.” Again, there is no similar corresponding language in the Court’s QP. Here, the Court may not have wanted to get involved in the precise basis on the right to carry. What exactly does “ordinary law-abiding” mean? Does that category include non-violent felons? The Court ducked that issue last week.

There is a final, “bonus” concern to be considered, and that is the Court not accepting New York’s phrasing of the QP, which is significantly different:

Whether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.

This leaves me conflicted about the Court’s petition to grant cert in this case. I understand why the gun rights community is excited at the possibilities. I am too. But this uncharacteristic and seemingly illogical restatement of the QP is the first sign that this grant does not auger well for the future of our right to keep and bear arms. The perfect silence since 2008 has left me jaded. We have been burned before. There is a very good chance this will be the last time a nine-member Court decides a Second Amendment case. The only reason to believe Young v Hawaii was not the death knell of the Second Amendment was the timing of this Court to hear this case. If the Court chooses to punt, there can be no doubt that will be the moment that Justice Scalia warned us about shortly before his death—when Heller is “swept into the dustbin of repudiated constitutional principles.”

The Ugly

It is crucial that we citizens who believe in protecting and preserving our Constitution, the republic it founded, and the limited government set forth in it to protect our rights stay informed and active on these issues. Even for the more Rothbardian libertarians who see the U.S. Constitution, as drafted, as a document of over-reaching control, staying active, engaged, and supporting causes within government that will expand our natural rights in any way is still important. I believe libertarians and constitutional conservatives alike can appreciate the Jeffersonian principle of fighting for liberty as a “game of inches” and taking any win we can get is a strategy worth adopting.

But I can’t help thinking the reason we are even in this mess to begin with is because our national consciousness has become infected with a problem I discussed in a past article called “How Supreme Is The Supreme Court?” These are two related concepts known as “Judicial Supremacy” and “Judicial Universality.” These are twentieth century inventions of the Court, largely taken as gospel truth by most Americans. They essentially assert that “a Supreme Court ruling on the Constitution is the supreme law of the land” and that “any Supreme Court decision on any issue is always and immediately binding on not just the parties to the case, but to everyone everywhere.”

The ugly truth is that we find ourselves in this quagmire precisely because those blasphemous doctrines have been seized upon and added to our nation’s civic liturgy. The reason so many Second Amendment advocates continue to be surprised that the Court is constantly failing to uphold our constitutionally protected natural rights is because they believe it is the Supreme Court who they should be turning to to protect our constitutionally protected natural rights. But not only is that not what the Court does, it is not what it was meant to do. Its job is to be an interpreter (an important distinction from being the interpreter) of the meaning of the Constitution. It is not their duty to be the guardian of our natural rights.

We need to stop looking to the Court to tell us what the Second Amendment means and look for ourselves at the language of the Second Amendment to determine what its text means. It’s our responsibility to give meaning to the text and act according to that meaning.

Furthermore, it’s our responsibility to protect our natural rights. Of course we are in the position we are currently in where it seems like every day we are less free to think what we wish, and to say what we think; and more to the subject, we feel as though our ability to defend our lives, liberty, and property are being stripped away. We have been derelict in our duty to look at the First and Second Amendment for ourselves, decide what they mean and live our lives according to that meaning. We rely on nine Judges to rule from on high about how we are able to use our words and our arms to defend our natural rights at our own peril.

The courts cannot be the guardians of our rights when, as experience has shown and common sense dictates, they are the government from which our rights are under threat.

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and host of the Categorical Imperatives Podcast where he discusses current events in law, politics, and culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

Sedition: An American Virtue

Sedition: An American Virtue

“History never repeats itself, but the Kaleidoscopic combinations of the pictured present often seem to be constructed out of the broken fragments of antique legends.”- Mark Twain

There is a word that has become increasingly popular ever since Trump was elected in 2016. Sedition. And since the January 6th storming of the Capitol, sedition seems to be a word dripping from everyone’s lips. To give some idea of just how much this word is being thrown around, Merriam-Webster’s dictionary reported that on January 6th there was an almost unbelievable 1500% surge in the number of people searching for the definition of “sedition.” The term also spent a good part of the day trending on Twitter.

Since this week marks the anniversary of the passage of the Sedition Act of 1918 it seems an opportune time to look back at the causes and effects of past sedition laws. Especially considering John Brennan had no compunctions about singling out libertarians as a group of people no longer deserving of their civil liberties and since, as this article will show, these laws are always vigorously used to silence people advocating for peace in a time of war. And since no group of people is more consistently anti-war than libertarians, this does not auger well for us.

We will look at the way the Sedition Act of 1918 was used by the courts, discuss why the common belief that this was repealed is a misconception that is at best only partially true, the way it is continuing to be weaponized today in several of the most egregious abuses of power in modern times, and going back to the early days of our Republic to show how the Jeffersonian Republicans so swiftly and successfully made the Alien & Sedition Act of 1798 a nullity. Finally we will discuss why Sedition is one the most American of all values.

The first thing to note is that the Sedition Act of 1918 was not a complete act in and of itself. It was an amendment to the Espionage Act of 1917 that had been passed as a wartime measure that, as the name itself would suggest sought to prevent support of United States enemies during wartime, it did so much more. It had a number of provisions that were more akin to sedition than espionage. Such as any attempt (even indirectly or unintentionally) prohibiting with interference with military operations, recruitment of soldiers or fostering insubordination. The sedition Act was an amendment to section 3 of the espionage act. This broadened the scope of prohibited speech and even expressions of one’s opinion. It forbade the use of “disloyal, profane, scurrilous, or abusive language” about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. Those convicted under the act generally received sentences of imprisonment for five to 20 years.

While many people mistakenly identify the espionage act and the sedition act as separate legislation, thus the repeal of the sedition act in 1920 was a repeal of wartime sedition laws. In fact it was solely a repeal of the expansion of section 3.

The espionage act’s initial provisions which were often tantamount to sedition remain good law to this day.118 U.S.C. ch. 37 (18 U.S.C. § 792 et seq.)

During World War I, the Wilson administration prosecuted war critics under the Espionage Act as a means to silence them. In 1919, the Supreme Court considered the constitutionality of three sedition trials.

Schenck v. United States, 249 U.S. 47

In this case, the defendant circulated literature arguing that the military draft violated the 13th Amendment. Schenck urged people to resist the draft. The Wilson Administration charged him under the Espionage Act with “obstruct[ing] the recruitment and enlistment service of the United States, when the United States was at war with the German Empire.” Schenck argued that the prosecution violated the Free Speech Clause of the First Amendment. Justice Holmes, writing for a unanimous Court, upheld the prosecution. He explained that during “ordinary times,” the Defendant would be permitted to oppose the draft.  However, “the character of every act depends upon the circumstances in which it is done.” Next, Justice Holmes offered a very famous analogy that is often misunderstood.  He wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But notice he referenced “falsely shouting fire in a crowded theater.” It is perfectly okay to shout fire if there is actually a fire. Five decades later, the Supreme Court effectively overturned this standard in Brandenburg v. Ohio, holding that the government cannot “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Finally, Justice Holmes offered another famous test.  “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Here, the circumstances were dire. “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Therefore, Schenck’s prosecution was constitutional. To this day “clear and present danger” is a memorable phrase. But in the 1920s, it was merely a colorful term for what is known as the “bad tendency” test. That test allowed the government to ban speech if “the natural and probable tendency and effect of a publication are such as are calculated to produce the result condemned by the statute.”  Under this relatively deferential test, the defendant’s criminal intent is inferred from the speech’s tendency to lead to violations of the law.

Five decades later the court effectively overturned this test in Brandenberg v Ohio (1969) holding,

The government cannot forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.

Debs v. United States, 249 U.S. 211,

In the Second case, Debs v United States (1919) Eugene V. Debs was the Socialist candidate for President. He gave a speech advocating for Socialism and declaring the war against Germany was unjustified. He too was prosecuted under the espionage act. Holmes wrote in his opinion, upholding the conviction, that obstruction of lawful government recruiting was not protected speech. Holmes wrote: “Deb’s purpose was to oppose not only war in general, but this wat, and that the opposition was so expressed that it’s natural and intended effect would be to obstruct recruiting.”

Abrams v. United States, 250 U.S. 616

Nine months later in October 1919 the Supreme Court decided Abrams v United States. In this case thee defendants urged factory workers who made munitions for the war to go on strike. The Court upheld the prosecution by a 7-2 vote. The Majority upheld the case because of the similarity this case had to Schenck and Debs.

Justice Clarke wrote,

The manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by brining upon the country the paralysis of a general strike, thereby arresting the production of all war munitions and other things essential to the conduct of the war.

Justice Holmes and Brandeis dissented saying this case did not cross the “Clear and present Danger” test from Schenck and Debs. “It is only the present danger of immediate evil or an attempt to bring it about that warrants Congress in setting a limit to the expressions of opinion where private rights are not concerned.” Holmes questioned whether the defendants even had an intention to interfere with the war effort. “It is evident from the beginning to the end that the only object of the paper was to help Russia and stop American intervention there against the popular government- not to impede the United States in a war it was carrying on.”

Holmes then gave us another memorable phrase in first amendment jurisprudence: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”

And this law is still persecuting people who have done nothing wrong except tell the truth. This is the act that Julian Assange is charged with violating for daring to operate under an assumption of freedom of the press. This is also the law Edward Snowden has been charged with violating for deciding it might be worth having a public interest debate about whether or not the American people are alright with a rogue security state that are violating just about every principle that once made this a great country.

If a new sedition act is passed it seems safe to assume that it will be passed much as the Sedition Act of 1918 was. As an amendment to the espionage act to broaden its powers. This is why it behooves us to look back to how this act was used in the past. I would especially encourage progressives, who are the people largely calling for new and expanded sedition laws to consider the fact the law passed a hundred years ago was signed by a progressive President, largely upheld by a progressive majority on the Supreme Court and that this law was immediately used against progressives and socialists. If progressives and other political groups who find themselves aligned with libertarians in the particular sense of existing outside the very narrow Overton window of Washington politics, where “acceptable political views” are narrowed exclusively to ideas that do not interfere with corporate agendas and the Military Industrial Complex- do you really believe new sedition laws will only be used to prosecute those on the right you disagree with?

We do have a number things working in our favor at the moment. I think that there is a memory in our national psyche that still vaguely understands sedition laws are dangerous weapons in the hands of insecure politicians. Sedition is the sort of crime weak governments enforce against their citizens when that government is facing an existential threat- or has convinced itself it is facing such a threat. Ironically, this memory may be the reason our insecure politicians are hesitating to pass such a law despite the military occupation of Washington DC showing clearly they believe they really do face an existential threat.

The other advantage is that few things cause as much dissent as the weaponization of laws against speech that is disliked by people in power. This was certainly the case in 1798 during one of the most shameful and nakedly partisan grabs at power in our history. The Alien & Sedition Acts. It also provides us with a great blueprint of how to fight these laws in the form of the Virginia & Kentucky resolutions.

The First Amendment was ratified in 1791. It provides, in part, “Congress shall make no law abridging the freedom of speech.” In this topic, we will study the original meaning of “the freedom of speech.”

In 1798, the Federalist-controlled Congress enacted the Sedition Act. The law made it a crime to,

write, print, utter or publish…any false, scandalous and malicious writing…against the government of the United States . . . with intent to defame the said government…or to bring them…into contempt or disrepute…or to excite against them…the hatred of the good people of the United States…

The Adams administration used the Sedition Act to prosecute its most strident and vicious opponents in the Republican party. At the time, Federalist-appointed judges dominated the federal judiciary. The Republican-controlled legislatures in Virginia and Kentucky issued resolutions declaring that the Sedition Act was unconstitutional.  James Madison is credited with authoring the Virginia Resolution, and Thomas Jefferson is credited with writing the Kentucky Resolution. The Virginia Resolution declared that the Sedition Act is “unconstitutional.” But it did not claim the power to unilaterally “nullify” the Sedition Act. Instead, the Commonwealth enlisted the opinions of other likeminded states. Virginia also stated that the Commonwealth has “the right, and are in duty bound, to interpose for arresting the progress of the evil.” Through “interposition” the state government intervened to assert the rights of its people against the assertion of power by the federal government. “Interpose” was different from “nullification,” though one could favor both interposition and nullification. The Kentucky Resolution, thought to be authored by Vice President Jefferson, did use the term “nullification.” However, it is not clear that the proponents of the Kentucky Resolution believed that a federal law would become nonoperational because one state believed it to be unconstitutional.

Instead, the Resolution authorized a formal protest against the Sedition Act’s unconstitutionality. It provides, in part,

That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.

In 1800, James Madison wrote a lengthy report that defended the Virginia Resolution from its critics. In his report, Madison explained that there is a difference between when a state declares a law unconstitutional, and when a court declares a law unconstitutional. “The declarations,” by states “are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force.” The Virginia and Kentucky Resolutions illustrate how the Constitution is interpreted outside of the courts. This is an early example of a doctrine whose existence seems to be making a comeback known as “departmentalism.” I spoke about this in another recent piece published by the Libertarian Institute, “How Supreme Is The Supreme Court?

In the election of 1800, Jefferson narrowly defeated Adams, in part due to the controversy surrounding the Sedition Acts. This election came to be known as the “Revolution of 1800.” As President, Jefferson pardoned those who had been convicted and imprisoned under the Sedition Act. In Madison’s report of 1800, he argued that the Sedition Act violated the First Amendment. His discussion illuminates two theories about the original scope of the right of freedom of speech. The first theory, the government cannot impose what is called “prior restraints” on the “freedom of speech.” In other words, people cannot be silenced in advance of speaking. But on this reading of the “freedom of speech.” People can still be punished for their speech after they speak according to the common law. In England, the right of freedom of speech could not be limited through “prior restraints.” We call this first theory the British theory of “freedom of speech.”

The second theory is distinctively American. And it was defended at length by James Madison in his report of 1800. Madison contended that the British conception of the freedom of speech was aimed only at prior restraints by the Crown. It did not limit the powers of Parliament, because, the British Parliament was considered supreme. This principle is called “parliamentary supremacy.” Madison contended that the U.S. Constitution rejected parliamentary supremacy. Under the American theory of popular sovereignty, Congress is also subject to the law of the Constitution—including the First Amendment. Therefore, federal legislation that punishes speech after the fact is also unconstitutional. Indeed, First Amendment begins, “Congress shall make no law…”

Under the American right of freedom of speech, then, it is unconstitutional for the government to constrain the exercise of free expression, both before and after the fact. At the time, the Supreme Court did not rule on the constitutionality of the Sedition Act. But today, the courts have accepted Madison’s interpretation as the original meaning of “freedom of speech.” For example, in New York Times v. Sullivan (1964), the Supreme Court favorably cited Madison and Jefferson’s criticism of the Sedition Act. As Justice Brennan wrote for a unanimous Court: “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”

A wonderful Jefferson anecdote—possibly anecdotal—from B. L. Rayner’s 1832 biography Sketches of the Life, Writings, and Opinions of Thomas Jefferson captures the his commitment to free speech and free press perfectly.

In 1804, the celebrated traveller, Baron Humboldt, called on the President one day, and was received into his office. On taking up one of the public journals which lay upon the table, he was shocked to find its columns teeming with the most wanton abuse and licentious calumnies of the President. He threw it down with indignation, exclaiming, “Why do you not have the fellow hung who dares to write these abominable lies?”

The President smiled at the warmth of the Baron and replied,

“What! hang the guardians of the public morals? No sir,—rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear anyone doubt the reality of American freedom, show them that paper, and tell them where you found it. Sir, the country where public men are amenable to public opinion; where not only their official measures, but their private morals, are open to the scrutiny and animadversion of every citizen, is more secure from despotism and corruption, than it could be rendered by the wisest code of laws, or best formed constitution. Party spirit may sometimes blacken, and its erroneous opinions may sometimes injure; but, in general, it will prove the best guardian of a pure and wise administration; it will detect and expose vice and corruption, check the encroachments of power, and resist oppression; sir, it is an abler protector of the people’s rights, than arms or laws.”

“But is it not shocking that virtuous characters should be defamed?” replied the Baron.

“Let their actions refute such libels,” continued the President; “believe me, virtue is not long darkened by the clouds of calumny, and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property, and justly liable to the inspection and vigilance of public opinion; and the more sensibly he is made to feel his dependence, the less danger will there be of his abuse of power, which is that rock on which good governments, and the people’s rights, have been so often wrecked.”

Continuing with Jefferson, now in a 1786 letter to John Jay, in summation,

Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it…Where the press is free and every man able to read, all is safe. To preserve the freedom of the human mind and freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement…

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

How Supreme is the Supreme Court?

How Supreme is the Supreme Court?

One intriguing aspect of the Covid lockdowns has been the shift in power from an oligarchy whose edicts were often taken to be the supreme law of the land to an empire where a single person now dictates with the same absolute authority. From the nine black-robed Justices ruling from their marble temple to the white lab-coated dictates of Emperor Fauci

How is it that our supposedly representative Republic come under the control of those who are entirely unelected and wholly unanswerable to the people? While it’s easy to pinpoint why and  how this exercise of Supreme power came to be wielded by Dr. Fauci it’s much harder to parse out how, before that The Supreme Court came to replace the Constitution as the Supreme law of the land.

Let’s start by taking a look at Article VI – The Constitution’s Supremacy Clause:

This constitution and laws of the United States which shall be made in pursuance thereof of, and all treaties made, or which shall be made, shall be the supreme law of the land.

So the Constitution is the supreme law of the land. As are all laws and treaties made in pursuance thereof. But what about decision of the Court? Are Supreme Court rulings on the meaning of the law themselves the Supreme Law of the land? When the Supreme Court hands down an opinion, Is that opinion the supreme law of the land? Does a court’s ruling act, functionally as an amendment to the Constitution? If so, when a ruling is overturned does it strike out that amendment? Does judicial supremacy exist?

Answering this question takes us back to one of the most fundamental cases in the entire corpus of American Jurisprudence. 1803 Marbury v Madison. Many people believe it was here, with this case, John Marchall created the idea of Judicial Review, thus giving the Court ultimate authority. But this is not at all the case.

Indeed, a look at the exchange of letters published during the Constitution’s ratification debates between anti-federalist Brutus and Alexander Hamilton, writing as Publius in the Federalist Papers bear this out. Through Brutus’ 11th, 14th and 15th essays and Federalist papers 78, 79, 80 and 81. Which at the time were an actual conservation played out in a New York newspaper. With Brutus 11th essay a direct response to Federalist 78. Federalist 79 a direct response to Brutus 11th essay and so on.

There is a fantastic article about these specific exchange between Brutus & Publius  I recommend:

Slonim, “Federalist No. 78 and Brutus’ Neglected Thesis on Judicial Supremacy.” https://conservancy.umn.edu/handle/11299/170108

For our purposes here, it should suffice to say this principle was regarded as a fundamental part of our system of government from the outset-

Arising from Article III, § 2, Clause 1

The Judicial Power shall extend to all cases in law and equity arising under this Constitution , the laws of the United States and treaties made or which shall be made under their authority.

In brief, Marshall found part of the judiciary act of 1789 unconstitutional. It purported to give the court a right to issue a writ of mandamus in a case where the court is acting in its original jurisdiction. This was inconsistent with the constitutionally limited jurisdiction of the Supreme Court. Who have a duty (judicial duty) to follow the higher law. Constitution over statute. Marbury doesn’t say the court establishes the supreme law or that only judiciary interpret supreme law.

This is not something limited to the Supreme Court, or to the judiciary. Anyone who has ever worked in a government job on either the state or federal level will know that all employees in government have duty to constitution. All state or federal employees. This is in accordance with the Oaths Clause of Article VI, which reads:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….

Like law enforcement, if they pull someone over and want to search their car you must first weigh the constitutionally of those actions. Do you have probable cause as is required by the 4th amendment?

Even a county commissioner deciding whether or not to approve a parade permit should start with first principles. Will the decision to grant or deny that permit be an infringement of the requesting party’s first amendment rights?

All Government officials always have duty to defer to constitution. Each department makes decisions for themselves. This is an established doctrine known as “departmentalism”

Only well into the 20th century did courts begin to write decisions claiming that their decisions are themselves the supreme law of the land

We need to go back to 1954 and the seminal case of Brown v Board of Education.  It’s important to keep in mind that despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. Although its judgments bind the parties before the Court, its precedents are not self-executing for nonparties. The distinction between the Supreme Court’s judgments and precedents is often conflated due to Cooper v. Aaron. This landmark 1958 decision was spurred by the desegregation crisis in Little Rock, Arkansas. Cooper articulated two concepts under which the Supreme Court’s precedents operate as binding judgments on everyone.

First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme Law of the Land.”

Second, Cooper asserted a principle Constitutional lawyer and scholar Josh Blackman has termed Judicial Universality. This doctrine contends that the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases. Cooper, which was signed by all nine Justices, represented that these two doctrines were “basic” and premised on “settled doctrine.”

Not so.

Rather, they were novel assertions of judicial power that were and remain entirely inconsistent with how all courts, including the Supreme Court, operate.

At the time nearly two dozen states racially segregated their schools. But Brown only considered the constitutionality of the laws in four of those States: Kansas, South Carolina, Virginia & Delaware. In a unanimous decision The Warren Court found that segregated public schools violated the equal protection clause of the fourteenth amendment. However the Court did not order that all schools nationwide must desegregate immediately. Instead the Court ordered another round of oral arguments to decide how Brown should be implemented

One year later in Brown v Board of Education II (1955) –or simply Brown II – the Justices issued an order to the lower courts in Kansas, South Carolina and Virginia “Enter such orders and decrees as are consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to their cases.” Officials in these three States were now bound by the Supreme Court’s judgement to integrate their schools with “all deliberate speed.” (The Delaware schools had already found that the segregated schools were unlawful.) But what about other States that were not party to Brown? Cooper v Aaron (1958) would resolve this question.

Very often when the courts are deciding issues in a tumultuous time, out of necessity they sometimes reach too far. And in the years since this case the court has somewhat equilibrated.  Certain aspects of that decision they have relied on; certain aspects they haven’t relied on. Cooper defines two different concepts that are often conflated -the judgment of a court and the courts precedent-

When Smith sues Jones, there is no doubt that the decision binds Smith and Jones. This is the basic legal principle of estoppel procedure. But when Smith sues Jones, Bill cannot be bound by that case, as he was not a party to it. That would violate the basic rules of procedure and fairness. Yet when it come to the Supreme Court people flip that on its head. They say “well the Supreme Court has ruled that makes it binding on everyone everywhere.”

That cannot be the case but the Supreme Court’s precedents are controlling for all courts. So when the Little Rock Central High School said ‘I don’t care I’m going to keep segregating my school. I don’t care what the brown ruling said.’ it can be sued. And a state judge or a district judge can bind you, to enjoin you to comply with brown. But that additional step of converting a precedent to a judgment is very important especially in civil rights litigation, though it’s often not very well understood. And the reason many people fail to understand this is because of Cooper v Aaron.

This is due to the two aforementioned concepts that come from Cooper -one is judicial supremacy- the other -judicial universality

This amounts to Smith suing Jones and the final judgment binding Bill. The Court’s unitary opinion in Cooper’ which was signed by all nine justices which is very rare; says these aspects were basic and relied on settled doctrine. This article will endeavor to show that particular aspect of the decision is not correct. These were broad novel and unprecedented assertions of power that are inconsistent with how all courts operate yet five decades later these myths remain.

This all came about as part of a battle against the anti-canonical doctrine of Plessy v Ferguson (1896) While challenges to institutionalized racial segregation can be traced back to the Progressive era of the 1920’s and 1930’s and cases brought by the NAACP that challenged “Separate but Equal” and which laid the foundation for the then proto-doctrine of Substantive Due Process. These early victories are what spurred the School desegregation cases of the 1950’s that, for the first time, sought to take on and overturn Plessy directly.

This is where the modern story of desegregation officially begin with Brown v Board of Education (1954) and It’s the follow up case Brown v Board of Education II (1955) –or simply Brown II–  Which did not purport to desegregate schools immediately, instead Brown II ordered desegregation take place “with all deliberate speed” The idea behind that now famous instruction was they should let the local courts who were on the ground craft mandates and injunctions to deal with each situation as it comes. Brown II applied this to North Carolina & Virginia. And also to Washington DC in the companion case Boling v Sharpe (1954) that dealt with school segregation in Federal law, which was struck down as a violation of the 5th Amendment’s Due Process clause.

So was the Little Rock School District bound by the decision? The simple answer, using our earlier example, when Smith sues Jones, is Bill bound? The answer would be no. As it turns out the Little Rock School board, which was elected, and at the time made up of mostly segregationists, decided they were not going to go along with this unless they were dragged kicking and screaming.

Ultimately, a federal district court in Little Rock issued a desegregation order to integrate the schools, including Little Rock Central High School. Meanwhile, a state court – the Pulaski County Circuit Court – issued an injunction saying don’t integrate the high school.

In effect, we had two different courts within the same jurisdiction issuing two different orders. The federal court was saying integrate; the state court was saying do not integrate. Now, most would assume that, of course, the federal court prevails. But that’s not the case. And nothing in the supremacy clause of the Constitution states that. State courts and federal courts have equal authority to interpret the Constitution.

The conflict though arises when you’re a state official asking yourself “Which court do I listen to?”  If I listen to the federal court the state court might hold me in contempt if I listen to the state court the federal court can hold me in contempt.

Only the U.S. Supreme Court could resolve that kind of tension. This is how the conflict in Little Rock began. Then it got worse as becoming what you might refer to as a game of injunctive whack-a-mole. A district court issued a ruling binding the school board. The governor showed up with the National Guard to block the black children from entering the school. The federal district court issued an injunction against the governor and the National Guard. At that point, the Little Rock Police department, which was not bound by the prior injunction, showed up to keep the black children from entering the school. At this point, we have a crisis because the officials are taking advantage of the distinction between judgment and precedent.

Ultimately, President Eisenhower sent in troops in a very famous scene where they escort the Little Rock nine up the steps to the classroom. Eisenhower was deliberate and very careful in his wording in the executive order he issued, citing the district court ruling and said that was what he was enforcing. He didn’t mention the Supreme Court. In fact, one of the biggest criticisms held in regard to Eisenhower was he never came out in support of Brown.

Eisenhower remained ambivalent toward Brown and never said much about it. But he said he would enforce the district court rulings. Schools could not disregard them. So at that point, students were escorted into the school, By the district court did something that was very much unexpected. It granted a 30-month extension for the integration plan. The judge said that because there was chaos and bedlam and turmoil, he couldn’t allow this integration order to go into effect.

The 8th circuit then reversed that saying that all deliberate speed means now. The 8th circuit stayed its decision then an appeal went to the Supreme Court. We should be careful to remember that with Cooper v Aaron what was at issue were the decisions by the members of the school board. It wasn’t Faubus versus Aaron. (There was another case involving Faubus, this was not it.)

The Supreme Court held that the 30-month extension was not consistent with all deliberate speed. As Chief Justice Warren stated: “Merely having chaos on the ground did not justify two full years of continuing non-integration.” But the Court didn’t stop there; upon review of the opinion of the 8th circuit court, it held that the first 17 pages of the opinion were enough to dispose of this case.

But the Court then moves on to the last two pages of the public opinion, This section answers whether the Arkansas governor was bound to enforce Brown even though he was not a party to that case. And this is where the Court develops the Cooper  myths

First, there is Judicial Supremacy. There is a single sentence in Cooper that sums it up very well. The court says “the interpretation of the 14th amendment enunciated by the court in the Brown case is the supreme law of the land.” That is it’s not just the 14th amendment that’s the supreme law of the land, it’s the Court’s interpretation of that amendment that is itself the supreme law of the land.

The second principle which this article calls Judicial Universality. The best summary for that is found written by Justice Breyer in his book: “Making Democracy Work.”  Breyer wrote: “The court in Cooper actually decided that the constitution obligated other government institutions to follow the Court’s interpretation. Not just in a particular case but in similar cases as well.”

In fact,  neither of these statements can possibly be true. If a simple majority vote in the Supreme Court could be declared the supreme law of the land and the other majority could not change it absent a constitutional amendment. And under our foundational principle of jurisdiction Smith versus Jones- courts can only bind the parties in any given case. The mere fact that the Supreme Court is supreme doesn’t change these facts. Critically, with respect to Judicial Universality, no court since has ever reached these conclusions. And with respect to both principles, no court before has ever reached these conclusions. In fact, the Court’s opinion had virtually no practical effect.

The Little Rock school crisis continued unabated. Immediately after Cooper was decided, the Arkansas governor transferred all the public schools to private charters thereby getting out of the state action doctrine. Private charter schools weren’t bound by the 14th amendment, so for a full year, there were no public schools in Little Rock. What broke this log jam? It wasn’t a court. It was more moderate members being elected to the school board. They then agreed to engage with the reintegration plan.

So despite the Supreme Court’s opinion noble opinion, it had zero effect practical effect.

In the end, the Supreme Court “supremacy” didn’t go very far. In the 5 years after Cooper, districts across the South basically ignored it. Did the Supreme Court Grant Certiorari? Not even once. Despite numerous cert petitions from segregated school districts across the South, the Court wouldn’t take any of those cases. It just looked the other way.

It’s really easy for lawyers in Washington D.C. to sit in their marble palace and issue these opinions. It’s a very different matter putting them into effect

Perhaps the central question is this: could these doctrines be supported by past precedent or does it merely follow from these precedents? At first glance, answering that question might well be mistaken for Judicial Sophistry – But it is much more.

What makes this a very big deal is the Court said these doctrines are basic and well settled. That would imply this issue must have been decided 200 years ago. But what you see with each successive draft is that they move away from these various precedents. Now these precedents confer a rule that we can build upon, one that follows from it. But that’s a very different principle than saying these are well settled.

Among the leading cases are Article VI of The Constitution, which includes the supremacy clause and the oath’s clause, Marbury v Madison (1803), United States v Peters (1809). While Peters is not well known, or oft studied, it was nevertheless a fairly significant case. And a series of cases that have come to be known as the Booth Case – A series of cases beginning with In Re: Booth (1854) out of the Wisconsin Supreme Court and Ableman v Booth (1859) from the U.S. Supreme Court. The Booth case dealt with whether a Wisconsin State Court could issue Habeas to a federal prisoner- that is when someone tried to obstruct the capture of a slave they were thrown in federal custody. Could a state court free a prisoner in Federal court? This was a really important case that no one talks about today. This was Justice Taney’s other major opinion nobody wants to talk about, but is a very big case all the same. The last Is Sterling v Constantin (1932) this is a great Texas case where the governor declares martial law and he basically tries to put limits on the production of oil in his own state. And there was a lawsuit filed in the state in which he stated he was not subject to any Court’s jurisdiction because we were under a state of martial law. It’s a fascinating case –

But none of them stand for the propositions which Cooper cited and the research did suggests that the judges realize this. With each successive draft, the court relied less and less on these precedents. They more or less said, “Well let’s use these rules and build upon them. These changes acknowledged that the court never before claimed such power of supremacy and universality. It was breaking new ground.

Now, the mere fact that they’re breaking new ground doesn’t mean they’re wrong. Very often, courts make new rulings and we can justify them. But these claims were novel, new, not supported, and have not really been used since. This is why these “principles” can safely be called myths. They existed to deal with this exigency, which was unquestionably awful.

But in hindsight, people have gained a little bit of clarity. And as has been mentioned before, ultimately these judgments had virtually no effect on the school districts that did an end-run around these rulings by transferring the schools from public to private charters. At once, this doctrine was laid bare. No court, no matter how high in stature, can force people to accept a judge’s interpretation of the Constitution. The Supreme Court’s authority is, at best, merely persuasive.

The last point worth focusing on is how Cooper has been developed in the last half-century. The court has not shied away from this principle of judicial supremacy. It’s provided in cases such as Powell v McCormack (1969), Baker v Carr (1962), United States v Nixon (1974), to name just a few. But in those cases, there was no meaningful resistance to the court’s interpretation. After the Supreme Court ruled on United States v Nixon, President Nixon turned over the documents and he resigned shortly thereafter.

It was only in slavery and segregation that you found such massive resistance to the Supreme Court’s opinion. Indeed after Cooper was decided people just disregarded it. Despite all best efforts, during my research into this I could not find a single example of the Court using Cooper as a precedent for judicial universality. Not even during the Massive Resistance.

So Justice Breyer, who really encapsulates this theory, can’t really peg down where this doctrine is in Cooper. This lends further credence to calling Cooper a myth. It’s not that it actually says this but I think it’s how people have understood it to be said. In fact, there have been some lower court decisions that have said the opinions issued by U.S. Courts of Appeals are binding on everyone. In other words, if the 9th circuit issues a ruling it binds the government everywhere. This was a Reinhardt opinion.  You have a similar decision in the southern district of New York. Those have not gone anywhere.

But at the bottom, the Supreme Court is still a court and follows the usual rules of a court. Its precedent is persuasive to everyone – state courts and federal courts alike. But its judgments are only binding on the named parties. Stating the principles of judicial supremacy and universality in the absence of antagonism is simple enough. When trying to put them to effect, however, they are exposed as mere myths.

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

The Constitutional Revolution of 1937 (Or, the Irrespresible Myth of a Political Judiciary)

The Constitutional Revolution of 1937 (Or, the Irrespresible Myth of a Political Judiciary)

Have you ever wondered how the Supreme Court came to be seen as a distinctly political body, despite its clear constitutional role to be expressly non-political? There has certainly been a political ebb and flow on the Court over time. When a liberal president gets elected they tend to appoint liberal justices to the bench and the Supreme Court moves in a liberal direction. Likewise, when a conservative president gets elected they tend to appoint more conservative justices to the bench and the Supreme Court still moves in a more liberal direction.

Moreover, why do our friends on the left see politicized court packing as the solution to an as yet unidentified problem (following Trump sitting three justices in four years)? To understand how this came to be, and how a political judiciary came to be seen as an improvement (by some) compared with its original, limited role, we must trace it back to a grossly misunderstood event known as the Constitutional Revolution of 1937.

As with so many terrible things this story begins with Franklin Delano Roosevelt. After his election as president in 1932, his New Deal policies aimed to reform the entire American economy. During Roosevelt’s first and second terms in office the Supreme Court radically altered how it reviewed regulations of economic liberty. However, even to this day many lawyers do not know why and when this change occurred.

In February 1930 Chief Justice William Howard Taft resign from the Supreme Court due to illness. One month later, Justice Edward Terry Sanford suddenly passed away. President Herbert Hoover nominated Charles Evan Hughes and Owen Roberts to fill the two vacancies. Though a Republican, Hoover was a political progressive and his two appointment began to shift the court to the left.

Justice Roberts made an immediate impact on the Court in O’Gorman & Young vs Hartford Fire Insurance Company. Under New Jersey law, commissions on the sale of fire insurance policies are required to be reasonable. The O’Gorman firm sold Hartford fire insurance policies with a contract providing that the commissions would be priced at what such services were reasonably worth. O’Gorman asserted that its commission was reasonably worth 25% of the insurance premiums. Hartford however only paid a 20% commission. O’Gorman filed suit for breach of contract. The trial court found that under New Jersey law a 25% commission was unreasonable and could not be paid.

O’Gorman appealed the case to the Supreme Court. The firm argued that the regulation deprived the company of property—the extra commission—without the due process of law. In April 1930 the Court heard oral arguments when there were only eight justices on the bench. Apparently the court split 4-4 on whether the regulation was constitutional. Three weeks later Owen Roberts was confirmed. O’Gorman was re-argued the following term. And at that time Justice Roberts cast the fifth and deciding vote to uphold the statute.

Past Supreme Court precedent, including Lochner v New York (1905), recognized that the Fourteenth Amendment protected the liberty of contract. That right generally prohibited price regulations. But there was an exception to the general rule; legislators could set prices for a business affected with a public interest. Originally this category was limited to businesses with some kind of monopoly share of market power. But eventually the Supreme Court expanded the category to include any business the state wanted to regulate.

Justice Louis Brandeis wrote the majority opinion in O’Gorman. He found that the business of insurance is so far affected with a public interest that the state may regulate the rate and limit commissions to avoid the evils of an unreasonably high rate level. Therefore the New Jersey statute is clearly within the scope of the police power. Justice Brandeis explained that lower courts must presume the law is constitutional unless there is a factual foundation suggesting that the provision was not an appropriate remedy for the evils in the insurance industry. Nothing on the face of the New Jersey statute or the facts of the case, Brandeis wrote, could rebut this presumption of constitutionality. Therefore the regulation was reasonable.

Justice Willis Van Devanter wrote a dissent joined by Justices George Sutherland, Pierce Butler, and James Clark McReynolds. While the majority presumed the law was constitutional, the dissent required the government to justify why the law is necessary. Justice Van Devanter’s dissent offered the following test: the state could deny O’Gorman the right to make private contracts only if some special circumstances exist that are sufficient to indicate the necessity of a statute to eliminate evils in the marketplace. The key word is necessity.

Three years after O’Gorman was decided the Court considered another economic liberty case, Nebbia v. New York. The state of New York fixed the price of milk at 9 cents per quart. This law which was designed to help dairy farmers raise milk prices for everyone, including the poor. The biggest beneficiaries of the law however were large firms that delivered milk directly to homes. Their prices could be undercut by small mom-and-pop stores that did not incur delivery cost. In this way the minimum price for milk protected the profits of large milk distributors.

Grocer Leo Nebbia offered his customers a special deal to get around the New York law. If a customer bought two quarts of milk at the regulated price of $0.09 each—for a total of $0.18—Nebbia would throw in a free loaf of Italian bread which was worth $0.05. With this deal customers received $0.23 of groceries for only $0.18. New York charged Nebbia with violating the price control law, and convicted him of offering his customers a discount. He was sentenced to pay a criminal fine.

Nebbia argued that the law deprived him of liberty and property without the due process of law. The Court rejected his argument in a 5-4 decision. Once again, Justice Roberts was the swing vote, this time authoring the majority opinion. First he wrote that states can regulate businesses affected with a public interest. That category now included even the corner grocery store. As a result the state has the police power to fix the prices to be charged for the products or commodities that the store sells.

Second, the Court reviewed the New York law with the presumption of constitutionality that was articulated in O’Gorman. Under this approach the state was free to adopt whatever policy may reasonably be deemed to promote public welfare. The requirements of due process were satisfied, Justice Roberts observed, if the law had a reasonable relation to a proper legislative purpose and was neither arbitrary nor discriminatory. It was not the courts role to determine if the rule was unwise.

Third, the Court considered how the law accomplished its purpose; that is, the relationship between the means and the ends. What evils was the government trying to address? In this instance, ruthless competition from destroying the wholesale price structure on which the farmer depends for his livelihood. The Court concluded that the price control law was not unreasonable or arbitrary and it had a relation to this purpose. Therefore, Nebbia’s conviction was proper.

As they had in O’Gorman, Justices Van Devanter, Sutherland, Butler, and McReynolds dissented together. And as you know, the O’Gorman quartet rejected the presumption of constitutionality. In his dissent Justice McReynolds observed that the stated purpose of the New York law was to increase milk prices at the farm. Yet the milk distributors were not required to share their increased revenue with dairy farmers. For this reason he questioned whether the means adopted—being the price controls—bore a reasonable relation to the stated purpose of assisting dairy farmers. Justice McReynolds did not assess the legislator’s motives directly. Instead he concluded that the law was arbitrary because the means adopted did not fit the purported ends of the legislation. In other words, the law seemed to be designed to protect large milk distributors from competition rather than to help farmers.

Between 1931 and 1937 Justices Van Devanter, Sutherland, Butler, and McReynolds consistently voted as a block to declare progressive federal and state legislation unconstitutional. This conservative quartet was dubbed by their critics as “Four Horsemen,” an allusion to the Four Horsemen of the Apocalypse from the New Testament’s Book of Revelation. During the same period, Justice Roberts was often the swing vote. In some cases he would join the Four Forsemen to give the conservatives a majority, and in other cases like O’Gorman and Nebbia he voted to uphold progressive legislation. In our next case, West Coast Hotel Co. v. Parrish, Justice Roberts would once again join the liberal bloc.

Washington State had imposed a minimum wage for women and children but not for men. Elsie Parrish worked as a chambermaid at the West Coast Hotel in Wenatchee, Washington. Her employer failed to pay her the minimum wage and she filed suit to recover back pay. The hotel’s owner argued that the labor regulation deprived him of the liberty of contract without due process of law.

Over the previous three decades the Supreme Court had decided several cases concerning economic liberty for women. In Muller v. Oregon (1908) the Court upheld a law that limited the hours women could work. It was deemed reasonable because of the physical differences between the two genders. However, fifteen years later in Adkins v. Children’s Hospital (1923), the Court declared unconstitutional a minimum wage law for women, ruling that the federal statute violated the liberty of contract protected by the Fifth Amendment’s due process clause. Thirteen years later in Morehead v. New York (1936) the Court reaffirmed Adkins. That 5-4 decision found that New York’s minimum wage law for women was unconstitutional, with Justice Roberts joining the Four Horsemen. Critically, however, in Morehead the Court was not asked to overrule Adkins.

But in West Coast Hotel Co v. Parrish, the plaintiff had asked the Court to expressly overrule Adkins. And by a 5-4 decision the Court did exactly that. Justice Roberts once again cast the deciding vote. Chief Justice Hughes, the other Hoover appointee, wrote the majority opinion. He explained that Adkins, decided only thirteen years earlier, was a departure from the true application of the principles governing the regulations by the state between employers and employees. Furthermore, cases decided since Adkins (including O’Gorman and Nebbia) applied those principles properly through the presumption of constitutionality. Chief justice Hughes could not reconcile Adkins with O’Gorman and Nebbia, therefore the court overruled the former.

With Adkins out of the way it was easy for the Court to uphold Washington’s minimum wage law. “If the protection of women is a legitimate end of the exercise of state power,” Chief Justice Hughes asked, “how can it be said that the requirement of the payment of a minimum wage, fairly fixed in order to meet the very necessities of existence is not an admissible means to that end?” He added, even if the wisdom of the policy was debatable and its effects uncertain, the legislature is still entitled to its judgment. This deference is especially appropriate, the majority noted, in light of the unparalleled demand for relief which arose during the recent period of depression. Therefore the law did not violate the Fourteenth Amendment.

For one of the last times, the Four Horsemen dissented together. Justice Sutherland, who wrote the Atkins majority opinion, also wrote the West Coast dissent, questioning the presumption of constitutionality. The dissent explained that a judge has an independent duty to make up his own mind and judge accordingly whether a law is constitutional. A deferential judge who automatically accept the views of others, he lamented, has surrendered his deliberate judgment.

Justin Sutherland further contended that the Court should not base its ruling on the exigencies of the Great Depression. The meaning of the Constitution as stated does not change with the ebb and flow of economic events. Rather, he added the words of the Constitution must mean today what they meant when they were written. A contrary rule would rob that instrument of the essential element which continues it in force.

Finally, Justice Sutherland attacked the law because it imposed a minimum wage for women but not for men. As a senator from Utha, Sutherland had supported the Nineteenth Amendment and women’s suffrage. In his dissent, he stated:

There is no longer any reason why they should be put in different classes in respect of their legal right to make contracts; nor should they be denied, in effect, the right to compete with men for work paying lower wages which men may be willing to accept. And it is an arbitrary exercise of the legislative power to do so.

On March 29, 1937, Justice Roberts joined the majority opinion in West Coast Hotel which overruled Adkins; however, only nine months earlier in Morehead Justice Roberts had agreed with the Four Horsemen that, in light of Adkins, New York’s minimum wage law for women was unconstitutional. How can we explain his change in position?

Four generations of law school students have learned that Justice Roberts changed his vote in response to President Franklin Roosevelt’s proposal to expand the size of the Supreme Court. On March 9, three weeks before the decision in West Coast Hotel was announced, President Roosevelt released his so-called court-packing plan. He explained:

Whenever a judge or justice of any federal court has reached the age of 70 and does not avail himself of the opportunity to retire on a pension a new member should be appointed by the president then in office with the approval as required by the Constitution of the Senate of the United States.

The size of the Supreme Court is not specified in the Constitution and has always been set by Congress. The number of justices has varied from as few as six to as many as ten. President Roosevelt was not concerned with the age or the workload of the Court; rather he was frustrated that conservative justices had declared unconstitutional federal and state progressive legislation. President Roosevelt called upon Congress to change the size of the Court for a very specific purpose of appointing new justices who were more amenable to his New Deal policy agenda and his vision of the Constitution.

Three weeks after the president’s announcement, West Coast Hotel was decided with Justice Roberts in the majority. His apparent reversal from Morehead created the appearance that the court-packing proposal influenced his decision. According to what has been the conventional narrative, Justice Roberts voted to uphold Washington’s minimum wage law in order to remove the incentives for President Roosevelt to pack the Supreme Court. Since that day Justice Roberts’ vote has been hailed as the so-called “Switch In Time That Saved Nine,a play on the folksy aphorism that a stitch in time saves nine. In other words, if you mend a hole now you won’t need to mend a bigger hole later.

However, the conventional narrative that Justice Roberts changed his vote in response to the court-packing plan has been called into question. In December 1936, several of the justices recorded the votes cast at a private conference based upon the records in the docket books—we know that Justice Roberts voted to join the majority nearly three months before Roosevelt announced his court-packing plan.

There is a far more mundane explanation for Justice Roberts’ switch. In Morehead the Court was not asked to overrule Adkins. However, Elsie Parrish did make the request. And so it answered, relying on prior decisions Roberts had joined like O’Gorman and Nebbia.

Why does this history matter? According to the conventional narrative, Justice Roberts changed course for political reasons. Therefore the argument goes that the Supreme Court works as an inherently political institution. And because the conventional narrative applauds the switch in time, having a seemingly political Supreme Court is a good thing.

The actual history instead reveals how politics played a different, more subtle role.

President Herbert Hoover, a political progressive, appointed two progressives to the Supreme Court, Chief Justice Hughes and Justice Roberts. These appointments unsurprisingly moved the court in a progressive direction. Hughes and Roberts simply had different judicial philosophies about the Constitution than those held by the more conservative justices who comprised the Four Horsemen, previously appointed by more conservative presidents.

In this way, popular elections—not intimidation by political actors—changed the constitutional balance of the Supreme Court. The political process by which justices are selected allows for a justice with one principled vision of the Constitution to be replaced by a justice holding a different vision. West Coast Hotel was a byproduct of Herbert Hoover appointing two progressive justices in 1931—not President Roosevelt’s partisan tactics in 1937.

West Coast Hotel marked the commencement of what has come to be known as the Constitutional Revolution of 1937. Whenever and however it happened, there is no dispute that a constitutional sea change did occur. Recall that during the same period the Supreme Court also approved a vast expansion of Congress’ powers under the Commerce and Necessary and Proper clauses.

During his twelve years in office President Roosevelt made nine Supreme Court nominations. By 1943, during Roosevelt’s unprecedented third term, he had replaced all but one member of the once conservative court. Starting with O’Gorman in 1931, the New Deal era had revolutionized the public outlook on the Court and its role.

At the start, the presumption of constitutionality in O’Gorman, Nebbia, and West Coast Hotel was rebuttable. It was still feasible for a plaintiff to challenge the constitutionality of a law that restricted economic liberty. This history plays a big role in the expansion of implied powers under the Commerce and Necessary and Proper Clauses. Here, they could present evidence showing that the restriction was arbitrary. Eventually, however, the Warren Court would make the presumption of constitutionality irrefutable. And with that, the constitutional revolution was completed.

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

What the Heller?

What the Heller?

Yesterday the Ninth Circuit gave its opinion in the en banc hearing for a case that’s been moving through the courts since 2011—This is Young v Hawaii.

It’s a case that has been of interest to constitutional lawyers, second amendment advocates, and people with the radical notion that a natural right of armed self-defense requires the ability to have those arms on your person to defend yourself. This has been a fundamental right throughout liberal philosophy, from Aristotle down to Machiavelli Harrington, Locke, Rousseau and Beccaria

We find it in the English Common Law as early as Statute of Northampton 2 Edw. 3, c. 3 (1328). A somewhat limited protection was found in the English Declaration of Rights of 1689 and William Blackstone in his great treatise of the common law:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence [sic]… Which is also declared by the same and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

James Madison viewed his draft of the Second Amendment as securing the English Common Law right from the Bill Of Rights of 1689—and even perfecting the scope of the protection it affords. He did this by removing limitations such as the English Game Laws which Charles II passed on the specious pretext that the open carry of arms was a threat to the vast hunting grounds reserved to the nobility.

Saint George Tucker referred to this individual right to keep and carry arms as “the true palladium of liberty.”

Tench Coxe spoke of private arms as “the second and better right hand of every freeman” and that the Constitution “enshrined the right to keep, carry and use arms and consequently of self-defense and the public militia power.”

The Fourteenth Amendment’s privileges and immunities clause did incorporate the individual right to keep and carry arms. The amendment’s statutory companion, the Civil Rights Act of 1866, explicitly states in section 7 that, “The full and equal benefit of all laws and proceedings for the security of persons and estate, including the Constitutional right of bearing arms for self-defense” would be protected. That particular clause was specifically added as a means of using Justice Taney’s racist dicta in the Dred Scott ruling against itself. At one point Taney wrote, “If free blacks could be citizens that would give them the protection of constitutionally protected right of all free citizens…Such as the right to keep and carry arms wherever they may go…”

So how could the Ninth Circuit possibly conclude:

The en banc court affirmed the district court’s dismissal of an action challenging Hawai‘i’s firearm licensing law, Hawai‘i Revised Statutes § 134-9(a), which requires that residents seeking a license to openly carry a firearm in public must demonstrate “the urgency or the need” to carry a firearm, must be of good moral character, and must be “engaged in the protection of life and property.

We have Justice Scalia to thank for this mess. While the Ninth Circuit’s decision requires a very misleading interpretation of DC v Heller (2008), it is a ruling that can be parsed out from Scalia’s dicta in the case. While the conclusion that the Second Amendment is a dead letter thanks to Heller may be shocking, it’s not a surprising one.

This outcome was almost prophetically predicted by Nelson Lund, Professor of Law at George Mason University. Lund is one of the most eminent constitutional law scholars in the country and perhaps the most prolific modern Second Amendment scholar. In 2008, while most Second Amendment advocates were cheering Scalia’s ruling as his swan song of original public meaning, Lund was virtually alone in voicing his concerns. By 2015, some of the most pessimistic concerns about the way Heller and McDonald would be used, not to secure the right to keep and bear arms but to smother it, became apparent in a dissent from denial of certiorari.

Justice Thomas was absolutely livid. He said:

The Supreme Court is treating the second amendment as a second-class right. The court routinely grants review in every case involving free speech, abortion, Fourth Amendment search and seizure. You name it, they are adjudicating on it. Any and every possible provision of the Constitution you please, they will take a case. But they treated the second amendment like a leper, they don’t even want to touch it.

So, how did the Ninth Circuit possibly come to the following conclusion:

To answer that question, and consistent with the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the en banc court first considered whether Hawai‘i’s law affects conduct protected by the Second Amendment. After careful review of the history of early English and American regulation of carrying arms openly in the public square, the en banc court concluded that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions, and therefore, the conduct they regulate is outside the historical scope of the Second Amendment. The en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense.

We need to begin our analysis by briefly talking about the legal system we inherited from Great Britain. During the eighteenth century, the majority of laws came from ancient, unwritten customs. This was known as the English Common Law. Over time judges began to look to the decisions of prior judges to assess what the ancient, unwritten customary law required. They would start to answer new and novel questions by starting with this judicial precedence which was based on analogy, rather than deduction from first principles. The law would change over time as they faced new and novel challenges but these alterations were so subtle as to be virtually imperceptible.

There was by the eighteenth century another set of laws that were known as statutes that were then enacted by a joint consent of parliament and king. While statutes were capable of overruling common law, in practice these judges tended to apply these statutes in a way that minimized any conflict with the common law. This system remained remarkably stable for centuries, even as great political changes and upheavals were going on. Crucially this happened because as conflicts gradually took away power from the king and parliament, more and more judges began to exercise both the role of legislature and as the highest court in the land.

The king appointed judges, but these judges tended to remain subordinate to the will of parliament with regard to the substance of their decisions. Judges did remain independent, but their authority was not final and they had no power to exercise what we call judicial review, the ability to declare an act unconstitutional. Second, judges remained devoted to the common law and to common law modes of reasoning. This was not inevitable. They understood their duty to be the application of English positive law, even if the results were to their mind unjust, or contrary to a higher law, like natural law. This system is the one we inherited following independence. Judges relied heavily on the common law and from time to time still do.

A key difference was our adoption of written constitutions on first the state and then the national level. This meant the courts were given a new kind of law to apply and it was assumed generally they would interpret these new laws the way their predecessors interpreted ordinary statutes. This is what they did for a long time. One major change was because constitutional law was a law superior to acts of the legislature, that made it possible for courts to directly overrule elected representatives. This is the basis for the process of what we now call judicial review. This provision sparked a lot of controversy between federalists and anti-federalists during the constitutional ratification debated of 1787-1788.

The most well-known, and most expertly argued example was an exchange between the antifederalist Brutus and Alexander Hamilton. In Brutus’ letters 11, 12, and 15, he was rightly concerned with the probability that judicial review would visibly extend the court’s power beyond its constitutional limits. The judicial branch would then become a political body. Hamilton responded directly to Brutus in Federalist 78 and 81, writing that the judiciary was a branch too weak and timid to ever be a threat to the other two political branches through an abuse of judicial review. This largely held true right up to the eve of the Civil War.

Early jurists and scholars alike tried to ease fear by agreeing that this power should be used sparingly and that affirmed judicial review should only be applied in cases with clear constitutional violations. In fact, judicial review was only used once between the Constitution’s adoption and the Civil War. In 1803 it was used to invalidate a minor statute about federal jurisdiction.

By the time Antonin Scalia came to the court in 1986, the judiciary bore little resemblance to Hamilton’s vision of a timid and modest court. Early justices had initially acted as the founding generation predicted in interpreting the Constitution. They used the tools already established under English law for centuries to interpret statutes. They generally aimed to find the intent of the law giver by looking at the text and at other meanings and purposes of the law. They adopted stare decisis which assumes prior judicial decisions were correct. These aspects remained fairly stable until the Warren Court. This was the birth of the “living Constitution,” when the court began an aggressive and expansive adoption of old common law adjudication and less like traditional statutory construction.

This came through three landmark developments. First was Brown v Board of Education, which, despite its noble intention and positive outcome, is a decision that is bereft of any legal analysis whatsoever. It was a politically motivated decision that did not state what the law is but what they wanted the law to be. Brown started out as controversial, particularly in the South, but in the end this was a major political victory for the Supreme Court. Because of this heady success the court grew ever bolder, imposing their own views of justice and salutary social policy onto the nation.

They did this most conspicuously in the field of criminal civil procedure. The court dramatically expanded the rights of a criminal defendant during a period of escalating violent crime, meaning that the justices did not garner the same kind of popularity that came from striking down Plessy.

Finally, the Court found a constitutional right to abortion in Roe v. Wade. Again, we have a case entirely bereft of legal analysis. Unlike Brown, the decision in Roe has remained perpetually controversial and politically poisonous. In the 1960s Congress passed statutes such as the Civil Rights Act of 1964 that affirmed and even expanded Brown’s vision of racial justice. Conversely, following Roe several states repeatedly found ways to express discontent and opposition to abortion rights.

Before Scalia, the preceding conservative justices appointed after the New Deal practiced what could be called judicial restraint to oppose the Warren Court’s constitutional adventurism. Most notable of these was certainly William Rehnquist, who was a solid social conservative in his political views. But in his opposition to the living constitutionalist expansion he adopted something much like the incrementalism of the old Common Law adjudication. Rehnquist generally refined himself to resisting further expansion of the Warren Court’s doctrine and occasionally cutting it back, but only ever really nibbling at the edges.

Scalia was not the first person to advocate for constitutional originalism as a potential solution to the expansive powers claimed by the New Deal era and Warren Courts. I believe the well-known jurist Raoul Berger’s brilliant book Government by Judiciary was the first.

In 1986 Scalia came to the court with his theory to undue the judicial activism of the preceding Warren Court. Of course I mean originalism; specifically a stream of originalism called “original public meaning.” Imagine if you were being asked to adjudicate a dispute over a private contract. How would you go about figuring out the proper meaning of any vague wording with more than one potential definition? You are certainly not going to consult Black’s law dictionary, or the UCC. You are going to ask the two parties to that contract what the word or clause meant, as they understood it when they entered into the contract. Scalia, quite properly, said that the Constitution should be read as a reasonably informed member of the public would have understood it to mean as the time of its drafting and ratification. This squares very well with the view the Father of the Constitution himself, James Madison, who urged later generations to study the public debates that played out in the ratifying conventions of the many states regarding the U.S. Constitution, which is fundamentally a legal instrument and should be treated as such.

However, Scalia’s originalism was an odd compromise. He tried to both give deference to stare decisis and an originalist interpretation. The Heller case was considered by both Scalia himself and the large body of scholars and jurists within his orbit to be the biggest victory for and the ideal culmination of his conception of originalism.

In DC v Heller the holding, in its most basic sense, found that the Second Amendment protected an individual’s right to keep a handgun in the home for the purposes of self-defense. This case relies on an extensive body of legal research that began to gain prominence in the 1980s and Scalia’s opinion makes a compelling argument for two basic conclusions. First, it’s meant to protect the private right of individuals to keep and bear arms, not as a collective right of the state governments to maintain a militia. Second, the purpose of the Second Amendment is to protect a fundamental, inherent right of self-defense against two distinct forms of oppression. First, against a repressive government and second as a defense against criminal violence from which the government either cannot or will not adequately protect individuals from.

Unfortunately, nothing about that answered the question at the heart of this case. Does the Second Amendment specifically protect the ability to have a handgun in your home for the purposes of lawful self-defense? After all, the District of Colombia had banned possession of handguns, but it allowed people to have rifles and shotguns. Why didn’t that satisfy the Second Amendment?

There was obviously no discussion from the eighteenth century that could possibly address that question directly so Scalia had to find some other way to answer it. He said the DC handgun ban was unconstitutional because “It amounts to a ban on an entire class of arms that is chosen by American society for the purpose of lawful self-defense.”

He went on to give a few examples of why that was reasonable and then he said, “Whatever the reason handguns are the most popular weapon chosen for self-defense in the home and a complete prohibition of their use is invalid.”

This is not an originalist analysis. It’s reliance on the popularity of handguns today looks more like the kind of results-oriented, “living constitutional” approach Scalia spent his career denouncing.

Equally spurious is a small but very important addition about banning guns in “sensitive places” or the prohibition against “dangerous and unusual weapons” (Language we later found out was added at the insistence of Chief Justice Roberts). Another example of completely forsaking any commitment to original public meaning.

Then two years later we have McDonald which was a case to decide if the Second Amendment is incorporated through the Fourteenth Amendment against both state and local government. Otis McDonald was an elderly black man who lived in a pretty bad neighborhood of Chicago. He didn’t trust the Chicago police department to protect him in his home (which is a smart move) and McDonald wanted to keep a gun in his house for protection.

McDonald won the case with a five justice majority declaring the Chicago gun law unconstitutional. Interestingly there was no majority opinion in the case. There were four votes to strike down this law through the application of substantive due process, while Clarence Thomas relied on the Privilege and Immunities Clause (an interesting topic in its own right and perhaps worth exploring in a future article). Unfortunately, the court said nothing about the scope of the Amendment and just reaffirmed the Heller decision.

George Mason University’s Nelson Lund quickly caught on to the fact that these cases were not what most Second Amendment advocates assumed they were. He said that even though the holding in the case is consistent with the original meaning of the Second Amendment, the dicta in the case would undermine future cases and make the Second Amendment a dead letter.

It’s now been over a decade since Heller and the court has yet to set a tier of judicial scrutiny. They have not clarified who bears the burden of proof, they have not distinguished what weapons are protected, or where they were protected, and it hasn’t taken long before becoming evident that the most important opinion in Heller was not Scalia’s majority. It wasn’t even Justice Stevens’s dissent. It was Justice Breyer’s dissent that called for an interest balancing approach.

The “protection” of the Second Amendment, if you can even apply the label of a “protection” to this approach, affords the Second Amendment a protection that falls well below even a rational basis scrutiny. This is precisely what began to follow from Heller as the case was taken up again in court of appeals and almost all courts have now begun to follow suit. The standard for review of gun laws in all inferior courts tends to be an interest balancing approach, and this seems to generally hold true for conservative judges as much as liberal judges. Heller’s dicta seems to be doing more damage than the good done by the holding. An example is the prohibitory language in Heller regarding weapons that are “dangerous and unusual.” The most important word there being the conjunctive “and.”

But when a Second Amendment case was referred back down to the lower courts, people like Judge Easterbrook in the seventh circuit changed it around, claiming no, it’s dangerous or unusual. The decision in Heller and the court’s refusal to entertain any new cert petition about gun rights for the decade since Heller has meant this kind of judicial malpractice by the seventh circuit goes unchallenged. They proclaim even if something is very common, if you call it dangerous it can now be banned. Look at standard capacity magazines that hold more than 10 rounds. Who knows how many millions upon millions of magazines have a standard capacity of more than 10 rounds. There’s no way you can say those standard capacity magazines are unusual, but it doesn’t take a very creative mind to understand that one can claim they are dangerous because more than 10 rounds can hurt more people than less than 10 rounds.

After McDonald in 2010 we didn’t hear anything in the docket for their next session. As 2011 became 2012 and 2013, we were constantly reassured that we just need to be patient. Give it time and the court will clarify the doctrine. However the Supreme Court had nothing more to say about this issue. Every cert petition was denied. Year after year, and denial after denial on all new Second Amendment cases.

The right to keep and bear arms has been trapped somewhere between legal limbo and constitutional purgatory. The lower courts continue to whittle away the Supreme Court’s rulings in District of Columbia v. Heller and McDonald v. Chicago, while seven justices stand by quietly, refusing to intervene.

Twice in 2015, Justices Thomas and Scalia called out their colleagues for abdicating the judiciary’s safeguard of the Second Amendment. First, the justices sat idly by as San Francisco rendered it impossible for law-abiding citizens to keep a handgun for self-defense. Second, the Supreme Court looked the other way as Highland Park, Ill., criminalized an entire class of rifles owned by millions of Americans.

It took until 2019 to finally see the court grant cert on a Second Smendment related case. What kind of case did they choose to review?

Was it looking at right to carry? No

The protection of AR style semi-auto rifles and carbines? No

Safe storage laws?  No

It didn’t address magazine capacity, or restoring gun rights to people who had previously been charged with some non-violent crime. They took up the most narrow, insignificant, obscure case they possibly could have.

New York Rifle and Pistol Association v City of New York. For those who may not be familiar with this case, New York City had an absurd law that said if you own gun and live in the city and want to take that gun with you to a shooting range, or if you have a second residence outside the city and you want to bring your gun with you there, you need to have the gun disassembled, locked inside a proper secure lock box, and only in your trunk. God help you if you are so reckless enough to have that unloaded, disassembled, securely locked up gun on the back seat—100% non-functional and 100% inaccessible. That is downright criminal, says New York.

Thus Scalia’s greatest victory for originalism turned out not to be a truly originalist decision and it may have little lasting impact.

The court’s boldest innovations in recent decades have no doubt, in my view, been perversions of the common law approach.  But they have generally employed what looks like more and more common law reasoning.

Heller‘s conclusion may be entirely consistent with the original meaning of the Second Amendment (and I do believe that it is). But Scalia’s failure to provide a genuinely originalist rationale for that precise result brings the entire jurisprudential project into question. Besides being untethered to originalism, the holding in Heller was limited. Only a handful of jurisdictions had adopted handgun bans so the decision had little immediate effect.

And we now see an even more damning opinion from the Ninth Circuit that says Heller holds that citizens do not have a right to carry a gun on their person for lawful self-defense.

Was that the outcome Scalia would have intended? Certainly not. When he applied a reasonable, textualist construction to the operative clause’s use of bear arms he properly points to that language’s most natural interpretation as “to carry arms” for private self-defense. He made its meaning irrefutably clear. But as with just about every other proper interpretation of the text he provides, all his careful interpretation came to mean little to nothing when his dicta created multiple misinterpretations of the entire Amendment.

In the end, his opinion was even less than unhelpful. A careful read of the opinion’s fifty pages dedicated to two clauses, with multiple asides that confuse the plain meaning and his addition of wholly unoriginal and unsupported assertions of “dangerous weapons” and “sensitive places,” have unfortunately provided the ammunition for gun grabbers to shoot down an originalist interpretation. Scalia’s ‘biggest victory’ may very well be the best friend of those who want to see the Second Amendment dead and buried.

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

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