Heller Holding

 1. The Court makes clear that it is interpreting the Constitution based upon its original public meaning and not upon what the Court believes the Constitution ought to mean (p.1): “ The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

2. P. 3-4: “Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed....”

     There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause."

3. page 4: ”Relationship between Prefatory Clause and Operative Clause

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

    The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.... It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

    It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution....

 

4. page 6: Right Not Unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose….Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

    We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

5. page 8: Judgment: “ In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”

Originalism and the Right to Bear Arms--Antique Muskets Only?

 

                                    Davey Crockett with "Old Betsey"

The edited case omits an important part of the Heller decision, the one in which the Court says:
"the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

Is this a rejection of original understanding by a Court purporting to apply originalism? Consider the quote in context:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communication, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

In other words, originalism discerns the principle that defines the liberty, which then must be applied to modern threats against that liberty.

Does that make more sense? Does it demonstrate how the original understanding of constitutional liberties can be applied in modern cases?

By the way, here is how the Court described its search for original meaning:

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

Here are some other important passages from Heller:

1. The Prefatory Clause

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

Logic demands that there be a link between the stated purpose and the command.... But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. “It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.” Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

Race and the Right to Keep and Bear Arms

                                        

                                              Justice Thomas at Nebraska Law

 Justice Thomas has argued persuasively that one of the purposes of the 14th Amendment was to  provide the protections of the Second Amendment--and the right to possess arms for self-defense--to the newly freed former slaves. This was necessary because, following the end of the Civil war, southern states moved "systematically [to] disarm African American citizens." As Prof. George Mocsary has said, Justice Thomas "knows what it's like to be poor and black in the Jim Crow South." He is an incredible man. When he visited my Property class a few years ago, he insisted on staying after class to take a picture with any student who wanted one. Imagine being a first year lawyer and having a picture on the wall with you and Justice Thomas!

Consider this brief excerpt from an article by historian Professor David Schenk:

Freedmen with Firearms: White Terrorism and
Black Disarmament During Reconstruction

David H. Schenk

Common American History 101 narratives of
post-Civil War Reconstruction have generally included
docile and helpless former slaves, who quietly adjusted to
the oppressive governance and terror of white Southern
peoples for nearly a century. This established narrative,
however, obscures another possible reason why organized
Freedmen gave up their fight for suffrage and basic civil
rights. Congressional records describe the early years of
Reconstruction with armed Freedmen communities
successfully defending their rights against white Southern
authorities and terrorist organizations. At the same time
these records also reveal efforts by these same white
Southern entities to systematically disarm African
American citizens.
African Americans fought hard for their political
and civil rights as new United States citizens, during a time
when they were reasonably well-armed and could
organize a viable resistance. In what could be described as
the disarmament period, these firearms were confiscated
through various means of violence and coercion. As a
result, the political agency of Freedmen was greatly
diminished, and the consequences are clearly represented
by reduced Freedmen poll numbers during the later years
of Reconstruction. Freedmen were largely willing to fight
and die for their rights as new U. S. citizens as long as
defiance remained a course of rational action. Disarmed
and overpowered by the weaponry of their oppressors,
African Americans grudgingly resigned themselves to the
politics of basic survival.

 

Now consider this excerpt from Justice Thomas' concurrence in McDonald (citations omitted):

 

After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “ ‘[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble?'"...

As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. Some States formally prohibited blacks from possessing firearms. Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. Additionally, “[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.”

As the Court makes crystal clear, if the Fourteenth Amendment “had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African–Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers.” In the years following the Civil War, a law banning firearm possession outright “would have been nondiscriminatory only in the formal sense,” for it would have “left firearms in the hands of the militia and local peace officers.” Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified.

 

Justice Thomas concluded that the 14th Amendment was designed (and should be understood) to protect the Second Amendment right to keep and bear arms for self-defense as a fundamental privilege or immunity of citizenship applicable to the states via the 14th Amendment.

Here is a WaPo column on McDonald, Justice Thomas, Race, and guns

What are your thoughts?

 

Heller Notes and Important Passages

Outline from Oyez:

Facts of the case

Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the registration of handguns, though the chief of police could issue one-year licenses for handguns. The Code also contained provisions that required owners of lawfully registered firearms to keep them unloaded and disassembled or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.

Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied. Heller sued the District of Columbia. He sought an injunction against the enforcement of the relevant parts of the Code and argued that they violated his Second Amendment right to keep a functional firearm in his home without a license. The district court dismissed the complaint. The U.S. Court of Appeals for the District of Columbia Circuit reversed and held that the Second Amendment protects the right to keep firearms in the home for the purpose of self-defense, and the District of Columbia’s requirement that firearms kept in the home be nonfunctional violated that right.

Question

Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment?

 

Here is how the Court framed the issue:

 

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.    

The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

 

And here is how Oyez summarizes the Court's 5 to 4 holding in favor of an individual rigjt to posses firearms in the home:

 

The ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment. Justice Antonin Scalia delivered the opinion for the 5-4 majority. The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.

In his dissent, Justice John Paul Stevens wrote that the Second Amendment does not create an unlimited right to possess guns for self-defense purposes. Instead, the most natural reading of the the Amendment is that it protects the right to keep and bear arms for certain military purposes but does not curtail the legislature’s power to regulate nonmilitary use and ownership of weapons. Justice Stevens argued that the Amendment states its purpose specifically in relation to state militias and does not address the right to use firearms in self-defense, which is particularly striking in light of similar state provisions from the same time that do so. Justice Stevens also notes that “the people” does not enlarge the protected group beyond the context of service in a state-regulated militia. This reading is in line with legal writing of the time that contextualizes the Amendment in relation to state militias and post-enactment legislative history. Justices David Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined in the dissent. Justice Breyer also wrote a separate dissent in which he argued that the Second Amendment protects militia-related, not self-defense-related, interests, and it does not provide absolute protection from government intervention in these interests. Historical evidence from the time of ratification indicates that colonial laws regulated the storage and use of firearms in the home. Justice Breyer argued that the Court should adopt an interest-balancing test to determine when the government interests were sufficiently weighty to justify the proposed regulation. In this case, because the interest-balancing turns on the type of analysis that the legislature, not the court, is best positioned to make, the Court should defer to the legislature and uphold the restrictions. Justices Stevens, Souter, and Ginsburg joined in the dissent.

 

 

McDonald and Incorporation Against State Laws Restricting the Bill of Rights

  1. Notice that the challengers argued that the Court should incorporate the 2d Amendment under the Privileges or Immunities Clause rather than the Due Process Clause. What is this issue all about?

2. Notice that even under the Due Process Clause the Court disagreed as to the appropriate test for incorporation and "fundamentalness."

3. Notice that the City of Chicago argued that the test for a fundamental right should be to whether "it is possible to imagine any civilized legal system that does not recognize a particular right." If this test were applied to all Bill of Rights incorporation cases, how many of the Amendments would not be fundamental? Right to counsel?Establishment Clause? Free Speech Clause? Right of accused not to be compelled to testify in criminal proceeding?

4. The Court instead applied the the governing standard used in other incorporation cases: "whether a particular Bill of Rights guarantee is fundamental to our scheme [i.e. the American scheme] of ordered liberty and system of justice."

 It is not at all clear that incorporation of the Bill of Rights against the States is proper under the Fourteenth Amendment. But the Court has incorporated most of the provisions of the Bill of Rights over a period of the last century or so, and so nearly total incorporation is a fait accompli  and it is not going to be undone.

McDonald is an interesting case because it deals with whether the Second Amendment and the individual right to keep and bear arms applies against state and local laws that prohibit private ownership of guns.

One issue that was discussed at some length in McDonald is which provision of the Fourteenth Amendment is the proper portal of incorporation--the Privileges or Immunities Clause or the Due Process Clause. Here is the actual language of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law....

Justice Thomas believes that the P or I Clause is the proper vehicle: 

 The Privileges or Immunities Clause of the Fourteenth Amendment declares that "[n]o State ... shall abridge the privileges or immunities of citizens of the United States." In interpreting this language, it is important to recall that constitutional provisions are " 'written to be understood by the voters.' " Thus, the objective of this inquiry is to discern what "ordinary citizens" at the time of ratification would have understood the Privileges or Immunities Clause to mean....  

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that §1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause....

I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

 

Which clause do you think contains language that is best understood as applying provisions of the Bill of Rights against the states.

Prefatory Clauses

The 2d Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

 The prefatory clause is a clause which announces the general purpose of the operative clause. The operative clause is the clause which creates the substance of a fundamental right.

So, imagine a constitutional provision such as this:

Prefatory Clause: "The ability of parents to support their children being necessary to a free society,"

Operative Clause: "the right of the people to own, use, and possess private property shall not be abridged."

How should we interpret the right of private property? As covering only the right to support children? Does it protect a single person's right to own private property? Does it cover only enough property to provide minimal support for children? Does it cover the right to own stocks? Savings accounts? Automobiles? A pension for retirement? Jewelry? Does it cover most lawful kinds of property owned by any American citizen? 

Suppose the government passed a law confiscating all wealth above a certain minimum amount (say, above $25000). If a childless person challenged this law, how should the Court rule?

Does the prefatory clause simply tell us why the Constitution seeks to protect broad private property rights for all? Or does the general purpose define the full scope of the right?

McDonald v. City of Chicago

 

                                                             Otis McDonald

 

Otis McDonald (pictured above) wished to own a handgun to protect himself from threats of violence. As the Court discussed the facts, Mr. McDonald "who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers..."

Assignments for First Week of Spring 2022 Semester

                                                How I Spent the Winter Break

 

 I am still making a few changes on the syllabus, but here is what our first few classes will be:

1. Wednesday January 19 (Exam Review-- I will walk you through the exam). You will get a package from the Dean's Office which will include your score on the exam and your personal answer sheet. Make sure you bring the answer sheet with you to class so you can see which questions you answered correctly and which incorrectly.

2.  Thursday January 20: Originalism vs The Living Constitution: Strauss article (link);Sollum Article (link); Duncan Video (from Con Law class): https://use.vg/pWJhoE

3.  Friday January 21:  Second Amendment cases (the right to possess, keep, and bear a particular type of property): Heller and McDonald ; Duncan Video: https://use.vg/C6knim

4. Wednesday January 26: New York State Rifle & Pistol Association Inc. v. Bruen: Oral Argument I would like each of you to identify one or two passages from the oral argument (cited to the relevant page on the oral argument transcript) that you believe are particularly interesting. I will ask many of you to share your passage with the class for discussion.

 Bruen is currently on the docket of SCOTUS, and a decision on the right to carry will be handed down this year (probably in late June or early July). So, our second semester of Property literally takes us right up to the present moment, and the anticipation of a landmark decision to be handed down later this year.

See you soon!

Originalism vs Living Constitution: For Tomorrow

Here is what I would like y'all to do. Some of you probably think Originalism is the proper way for the Court to interpret the Constitution and some of you probably subscribe to Living Constitutionalism. So, tonight just think about this a little bit, and jot done some reasons why you prefer the one or the other. 

This debate has been going on for over 200 years, and I have no doubt that when I teach this 50 years from now--if the Republic survives--there will still be a a great debate in the classroom.

So, be prepared to take a side and defend your position!

Prof. Randy Barnett: The Written Constitution "is the law that governs those who govern us."

 The Constitution is not the law that governs us. It "is the law that governs those who govern us." --Prof. Randy Barnett 

Those who govern us ought to follow the law that governs them. Each and every person who receives power to govern us has taken an oath to abide by the Constitution. There is "100% consent" by those who govern us to abide by the Constitution. Not to abide by the Constitution as they decide to change it, or as they wish it to be. It would be an "oath to nothing" if Justices swore to abide by their own ideological preferences.Or, as Prof. Wurman puts it, the written constitution is "a set of public instructions for a public audience, with the intent of guiding the behavior of those it governs.:"

Please Bookmark This: The Text of the Written Constitution

 Written Constitution Text

Originalism vs. The Living Constitution: Questions for Discussion

 

1. What is original meaning originalism? What is The Living Constitution? Prof. Gary Lawson says "Interpreting the Constitution is no more difficult, and no different in principle, than interpreting a late-eighteenth-century recipe for fried chicken." Suppose your great-grandmother's written recipe for fried chicken calls for half a teaspoon of "pepper." But maybe you like rosemary more than pepper. If you substitute rosemary for pepper, are you being faithful to great-grandma's recipe? Or are you amending it? How does the Constitution provide for amendments? Suppose your will provides a legacy for "Planned Parenthood." Would it be legitimate for a judge to re-interpret your will by substituting "National Right to Life" for Planned Parenthood because she prefers the former to the latter? If we are faithful to the rule of law, how should we interpret recipes, wills, statutes, and the Written Constitution?

2. Justice Scalia says that originalism is the lesser of two evils, the librarian who speaks too softly rather than the librarian who speaks too loudly. He argues that the greatest defect of the Living Constitution—its total reliance on the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time—is its incompatibility with the Rule of Law, “the very principle that legitimizes judicial review of constitutionality.”

What do you think he means by this? What is the Rule of Law and how does it differ from the Rule of Man?

3. Defenders of the Living Constitution argue that the Living Constitution is consistent with the Rule of Law because it has developed as a kind of common law system under which the "content" of constitutional law "is determined by the evolutionary process that produced it."  It is evolution, not creation, and therefore the Supreme Court does not act as a Creator, or Ruler, but merely as a body of judges presiding over this "evolutionary process through the development of a body of precedents." 

 

Or is this a theory of "turtles all the way down," the idea that the earth rests on the back of a giant turtle. But what supports that turtle? Of course, the answer is a larger turtle which itself is part of a column of increasingly large turtles that continues "all the way down." Today's judicial decree is supported by yesterday's judicial decree which is supported by earlier judicial decrees all the way down. The written constitution is replaced with an evolutionary process of judicial amendments which bind Congress, the fifty state legislatures, and all 330,000,000 American citizens!

4. Proponents of the Living Constitution say that this approach is necessary because it is too difficult to amend the Constitution under Art. V, and thus common law evolution is necessary to provide the flexibility that is necessary in order for the law to keep up with the changing needs of contemporary society.

Which constitution is more flexible? The original Written Constitution? Or the living, evolving, common law constitution?

5. When the Court comes up with a novel new doctrine, ask yourself this question: Was there ever a time in American history when this new doctrine could possibly have been ratified by three-fourths of the states (38 states today)? In 1789? In 1868 when the 14^th Amendment was ratified? In 2018? Ever? If your answer to this question is "no"--a doctrine like this could never have been ratified by we the people in the states (whose act of ratification is what gives legitimacy to the Constitution)--what does this tell you about the legitimacy of the Court's new doctrine?

 

6. "In a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it." --Prof. John McGinnis Do you agree or disagree? Why?

The Librarian Who Speaks Too Softly or Too Loudly

 Justice Scalia argued that Originalism was the lesser of two evils, the librarian who speaks too softly rather than the librarian who speaks too loudly. What do you think he meant by this?

I think Judge Posner's defense of the Living Constitution as a common law constitution perhaps best explains Scalia's view. Judge Posner recently explained that constitutional law is a body of law that is "legislative in character, [with] the judges being the legislators."

Do you agree with Posner's view of the Living Constitution and the role of the judiciary in legislating constitutional law by a common law process?

Is this view consistent with the Rule of Law? Or is it the Law of Rulers?

Is there any objective way to critique living constitutional decisions? If the Living Constitution is subjective, whatever 5 Justices say it is, how can a lawyer argue that the decision is wrong as a matter of law? You can say "I don't like the result" but how can you say the decision is legally wrong?

 If the Constitution is not law, just subjective results, why should citizens respect the Court's decrees?

What is the difference between a common law constitution and the common law of property, torts, and contracts?

Exam Review: A Second Chance

 Today, Monday January 19, I will walk the class through the Fall exam. 

I know several of you have tested positive for Covid and can't be in class today. I am not recording today's class because of exam security. However, in a couple of weeks I will do this again for those of you who are unable to attend today. Probably sometime in early February I will schedule Room 113 for a second hour and that second hour will be your second chance exam review session for those unable to attend today.If you are unable to attend today--and if you wish to walk through the Fall exam with me--make sure you attend the second chance exam review session.

Judge Bork on "The Temptaion of the Judiciary"

 Consider this gem from Judge Bork:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Is the Living Common Law Constitution consistent with this role of the judge in a democratic republic?

In Person Classes Back On!

 Nevermind!

I feel silly having to change things again, but the University has now adopted its 4th Covid policy in the last 10 days. The new policy permits teachers to teach unmasked as long as they can maintain a 6-foot distance from students. Dean Moberly has informed me that he is “fine with [my] teaching without a mask in 113 as long as [I] keep 6 feet from the students. The floor is marked.”

So, forget about Zoom classes; we are back live and in person in Room 113 every class.
Thanks for your patience. See you in class! And stay 6-feet away from me!

Rick Duncan

Can the Supreme Court Violate the Constitution?

 We have a written constitution and it binds all branches of government. Consider this excerpt from Paulsen & Paulsen (p. 26):

No branch of the federal government--not the Congress, not the President, not even the Supreme Court--can legitimately act in ways contrary to the words of the Constitution...Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy. In America, no branch of government is supreme...The Constitution is supreme....Departures from these limitations are unconstitutional.

In Marbury v Madison, Chief Justice Marshall said "that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature." The idea here is that of the supremacy of the Written Constitution, not of the Supreme Court. In other words, even (particularly) SCOTUS is bound by the text of the Constitution.

It is the text of the Written Constitution that has been ratified by we the people in the states. Supreme Court decisions are only legitimate if they are faithful applications of the constitutional text.

Something to think about as we take our first look at the Written Constitution.

Mid-year Exam results Fall 2021

                                                       

                                                           I Love This Sign

 

 Everyone qualified for 25 points for attendance. Here are the results of the Midyear exam (out of a possible 100 points):

1 Student scored 100 points (Bravo!!!)

2 Students scored 96 points

3 Students scored 92 points

10 Students scored 88 points

 8 Students scored 84 points

 4 Students scored 80 points

 4 Students scored 76 points

 7 Students scored 72 points

 12 Students scored 68 points
 

10 Students scored 64
 

2 Students scored 60 points

 

6 Students scored 56 points

2 Students scored 52 Points
 

2 Students scored 48 Points

3 Students scored 40 Points

 

1 Student scored 28 points

 

1 Student scored 24 points

The test median was 68 points. The Mean was 70.64.

Pay no attention to the arbitrary "quartiles."  They are meaningless. Totally meaningless. The only thing that "counts" is the number of points you scored out of a possible 100 points.  

We will go through the exam on our first class back in Spring 2022.

Two Things For Spring Semester

 I just had an opportunity to read the evaluations, and I am quite pleased that most of you enjoyed the class. That’s great because it gets better! Or at least the issues we cover become more relevant to contemporary life. The first half of Spring Semester is a mini-course in constitutional law as it impacts on issues of property. So, get ready for a great ride.

I want to focus on two things several of you commented on—“organization” of reading assignments and outside office hours.

1. Some of you would like the syllabus to list particular dates for particular readings (instead of just telling you to always stay one full assignment ahead). I get this, but the problem is there is no way I can predict how long it will take to get through each assignment. I don’t move on to the next assignment simply because the clock runs out. I teach until I feel the class is ready to move on. So, one assignment on RAP might take 2 to 3 class sessions. I will try to make sure you know where we are on the reading—maybe a blog post after each class telling you where we are going tomorrow (I usually tell you that at the end of class, but I will try to get out a quick blog post as well). But the default rule will always be "stay one full assignment ahead." In other words, if we got half-way through assignment 10 from the syllabus today, make sure you have read through assignment 11 for tomorrow.

2. Outside office hours in the courtyard. Some of you want office hours in my office. I get that. But due to all the mandates, I work mostly from home. My thoughts for Spring (aka Winter) Semester are two-fold. I will hang around at the front of the room after each class for maybe 15 minutes or so. If you want to talk, don’t approach the desk (you gotta stay 6-feet away from me), but wait until the room clears out and sit in the second row or so. Then we can discuss your questions in Room 113 and I can teach from a 6-foot distance without wearing a mask. Second, I gave you my cell phone number and I am always available—night or day—for a telephone conversation. Do not hesitate to call me. Text me first, and I will call you back immediately or suggest a time for the call. I do not mind being called. I enjoy talking with students, so you should not hesitate to call me if you have a question or want to discuss something.

Just a note on courtyard office hours--my impression is more students took advantage of courtyard discussions this year than of regular "office hours" in past years. It was a rare day no one came to the courtyard, and we would often still be chatting an hour after the end of class. I really enjoyed these sessions. Even after Covid is a distant memory, I will have courtyard office hours during the Fall and the warmer part of Spring semester. I really enjoy chatting with y'all. And no office is as good as the great outdoors in beautiful Nebraska!

$30 Trillion

As our national debt is about to hit $30 trillion, I looked to Charles Dickens for wisdom.

And I found it in chapter 12 of David Copperfield. In the words of Copperfield's friend, Mr. Micawber:

'My other piece of advice, Copperfield,' said Mr. Micawber, 'you know. Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the God of day goes down upon the dreary scene, and--in short you are forever floored.'

New Year's Resolutions For Students

 Prof. Robby George of Princeton, offers these resolutions for his students:

Students: May I suggest a couple of New Year's resolutions? 1) If you don't have a smart friend who disagrees with you about important things that you deeply care about, make one. 2) Resist groupthink and self-censorship. Think for yourself; seek the truth; speak your mind.

 

Great advice from one of the greatest political philosophers of his generation.

Con Law Seminar Blog

Link

 

Canvas

Dobbs v. Jackson Women's Health Organization and the Abortion Liberty: Something to think about over the break

 I am not--not--assigning this for our course. But I know many of you are very interested in this case and in the abortion liberty. Here are some resources you may wish to consult over the Winter Break.

Here is a link to Oyez on Dobbs

This includes a link to the oral argument in the case. The oral argument was very interesting. It runs about 2 hours, but it is worth your time.

And here is how Oyez summarizes the case:

 

Facts of the case

In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). After a hearing, the district court granted the TRO while the litigation proceeded to discovery. After discovery, the district court granted the clinic’s motion for summary judgment and enjoined Mississippi from enforcing the law, finding that the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from banning abortions prior to viability. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question

Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?

 

The Supreme Court will decide the case in 2022, probably at the end of June or early July.

And remember, both sides of this issue are pursuing social justice and life, liberty, and equality for all. They just have competing visions of what is at stake, competing understandings of the good. The mission of the Law College does not pick ideological sides. We  encourage all of our students to pursue life, liberty, and equality based upon your own vision of social justice.

 

Art Can Speak Volumes Without a Single Word

Updated Version of Edward Hopper's Nighthawks: Fear vs living life without demanding zero risks

Merry Christmas and Happy Holidays.

Violent Political Protest and the State's Obligation to Protect Private Property

 As we get ready to enjoy our Winter Break, let me ask you this question: Is violent political protest--burning buildings, looting stores and shops, and assaulting those who disagree with you--a legitimate form of political protest? Ever? Sometimes? When? To protest police brutality and racism when an unarmed suspect is killed by police? When protesting the violent death-by-abortion of 60 million unborn children? When protesting the results of an election?

 Should government stand down, stand by, and allow such politically-motivated violence to take place? 

Sadly, this is a question that must be posed in contemporary America. It directly relates to property and the obligation of the state to protect our property and our businesses from unlawful violence and destruction. When protest takes the form of violence, it is no longer political speech protected by the First Amendment; it is criminal behavior that destroys the property, businesses, and livelihoods of others.

Please think about it as you prepare to become inclusive leaders protecting the rule of law and  justice-for-all.

Mid-year Exam Announcements

 

 

1. I have scheduled a Q & A session for Monday December 13 at 6 PM in Room 113. It is, of course, optional. But if you have questions, please come and I will try to answer them.

2. On the first class of Spring semester (Wednesday January 19, 2022), we will go over the exam so you can see what you got right and what you got wrong. There will be no assignment for that class.

See you on December 13!

Lol: Plumber Finds $600,000 Buried In Bathroom Wall At Lakewood Church Could the plumber have claimed, finders keepers?

 Here is Prof. Josh Blackman's article (dated today--12/3/21):

https://reason.com/volokh/2021/12/03/plumber-finds-600000-buried-in-bathroom-wall-at-lakewood-church/