Eugene Volokh's Blog, page 2554
May 16, 2012
Kopel vs. Ted Nugent
My co-authored law school textbook Firearms Law & the Second Amendment; Regulation, Rights, and Policy (Aspen Casebook Series) is currently battling with Ted Nugent’s God, Guns & Rock’N'Roll for #1 in Amazon.com sales rankings in the “Gun Control” category. We held the lead a few hours ago, but The Nuge has clawed his way back to #1 in the last hour.
House Tax bleg
In July 1798, Congress enacted a direct tax to raise revenue for national defense against France. The “House Tax” imposed taxes on land, houses, and slaves. As required by Article I, section 9, clause 4 of the Constitution, this direct tax was apportioned by state population. Fries’s Rebellion, which was eventually suppressed by President Adams, involved violent resistance to this tax, based on the claim that the tax was unconstitutional. Because the direct tax was properly apportioned, it seems perfectly constitutional to me. Does anyone know the specifics of the constitutional objection to the House Tax?
When Is an Earmark not an Earmark?
When it’s pushed by the Republican leadership, is located in a politically important state, and is carefully written to avoid the official definition of an “earmark.” (HT: Instapundit)
The Difference Between Constitutional Interpretation and Construction
One of the crucial hallmarks of the so-called New Originalism is the recognition that there is a difference between two types of activities: the activity of interpretation and the activity of construction. Interpretation is the activity of ascertaining the semantic meaning of a text, including both its express and implied meanings, and taking into account the context of its utterance. In short it is the effort to discern as accurately as possible the information conveyed by a text. Construction is the activity of putting that meaning into action, or applying that meaning to particular cases and controversies when the information provided by the text is insufficient on its own and requires some sort of supplementation. Original public meaning originalism is the empirical enterprise of identifying the public meaning of the text at the time of its enactment, and it accepts the normative principle that this meaning is “binding” — just how binding is a matter of some dispute among originalists – unless properly changed.
Although the labels “interpretation” and “construction” are not necessary, unless one gets the underlying distinction between these two types of activities, one simply does not understand what the New Originalism is about. For those who are interested in originalism, I have posted to SSRN, Interpretation and Construction, an 8-page essay that I gave as a speech at the Federalist Society National Student Symposium in Philadelphia. This short summary of the distinction does it somewhat better justice than the single paragraph above. You can download it here.
Here is the Abstract:
In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined.
This essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”— for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution.
May 15, 2012
New textbook: Firearms Law and the Second Amendment: Regulation, Rights and Policy
The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the , from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.
We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.
The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)
Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)
Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.
Obama’s Judicial Restraint
The National Law Journal reports that the White House is largely to blame for the high number of vacancies on the federal bench.
Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.
But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.
Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)
At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.
And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.
This is not a new observation, but it’s worth repeating. Without question Republicans have made it difficult to move judicial nominees, much as Democrats did when Presidents Bush and Bush were in the White House. Republicans have also resorted to the filibuster, prompting some on the other side to reconsider its use for judicial nominations. GOP opposition may have prompted more careful and extensive vetting and discouraged the naming of controversial nominees. In any event, obstruction of nominees is now the norm — and this norm is unlikely to change unless there is a pre-election deal, perhaps like the one I outlined here. Until such a deal can be made, judicial nominees will get slow-walked to the bench no matter which party is in charge.
Eminent Domain Abuse in Virginia
Richmond Times-Dispatch columnist A. Barton Hinkle recently published this piece on a case of eminent domain abuse in Virginia:
As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake — as a case out of Norfolk shows.
To the progressive eye, property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.
That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.
Among those properties is the building that houses Central Radio, whose story was detailed here back in May 2010. Some years ago, Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.
Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it….
But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)
But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance….
Hinkle correctly notes that this is just one of several recent cases around the country in which local governments and influential developers not only engaged in dubious takings, but also tried to prevent property owners from speaking out against them. As he also points out, Virginia is one of a minority of states that has enacted strong post-Kelo eminent domain reform that will constrain abusive condemnations in the future. But as I documented in this article, in many other states reform still has a long way to go. Even in Virginia, eminent domain reform will not be fully secure in the long run until it has been incorporated into the state constitution, as well as statutory law.
Because blight and “economic development” takings tend to victimize the poor and politically weak for the benefit of the wealthy and politically powerful, they have generated widespread opposition on the left as well as the right. We will need greater cross-ideological cooperation on this issue to fully address the problem.
New Online Submissions Website for the Supreme Court Economic Review
As some of our readers know, co-blogger Todd Zywicki and I are co-editors of the Supreme Court Economic Review, a peer-review publication that is one of the country’s top-rated law and economics journals. Our third co-editor is my colleague Josh Wright, who blogs at Truth on the Market.
We are pleased to announce that, thanks to our publisher, the University of Chicago Press, the SCER now has a brand-new 21st century submissions website. We welcome submissions by law and economics scholars, constitutional law scholars, and others writing in the fields of law and economics, constitutional theory, and related areas. You too might be able to publish in the world’s only academic journal edited by two Volokh Conspirators.
The new website has just gone online, so I apologize in advance for any minor glitches you may encounter.
A Futile Suit Against the Filibuster
Yesterday Common Cause and several members of Congress filed suit to challenge the constitutionality of the filibuster. According to various reports, the suit is largely based upon the theory outliend in this article by litigator Emmet Bondurant, which maintains that the filibuster is a historical accident and violates the constitutional principle of majority rule. Where the Framers wanted a super-majority requirement for legislative action, they wrote such requirements into the Constitution. Further, Bondurant argues, the filibuster is entrenched in the Senate rules and must therefore be challenged in court.
Ezra Klein thinks Bondurant makes a “strong case.” I don’t, and I don’t think this suit will go anywhere. The first obstacle is standing. The failure of the Senate to pass a bill is not a legally cognizable injury, even if that bill appears to have majority support. The second obstacle is the political question doctrine. This obstacle is particularly large given that the Constitution expressly gives each house of Congress the power to set its own rules, so there is a textual commitment of this question to a coordinate branch. All of the cases upon which Bondurant relies to establish justiciability involved challenges to legislation or other acts that passed Congress and altered pre-existing rights and obligations, so they offer little support for Common Cause’s claims. Even were a court to get beyond these justiciability concerns, the suit would likely fail on the merits. If the Constitution authorizes the Senate to set its own rules, there’s no reason why the Senate cannot opt to include supermajority rules in its procedures.
The problems with this legal challenge are further magnified by Common Cause’s decision to challenge the use of the filibuster to block substantive legislation. The argument that the use of filibusters violates some unstated-albeit-enforceable constitutional norm is stronger with regard to items on the executive calendar (such as nominations) than it is with legislation. One could argue that the Senate’s obligation to “advise and consent” presumes an obligation to act — specifically, an obligation to hold an up-or-down vote — and that the filibuster prevents the Senate from fulfilling this duty. It is much harder to argue that the Senate must hold follow rules that allow for substantive votes on legislation. While it’s likely a challenge to nomination filibusters would also be found non-justiciable, it is more plausible than the claim Common Cause filed.
I’m sympathetic to the view that the filibuster is overused, particularly for nominations, but quite skeptical of any lawsuit claiming the filibuster is unconstitutional.
UPDATE: Common Cause’s Bob Edgar explains the suit here. Ian Millhiser likes the argument but doesn’t think the suit is justiciable. Gergory Koger is more circumspect.
If Same-Sex Marriage Is So Popular, Why Does It Lose at the Polls?
The Monkey Cage has an interesting guest post from Georgia State University’s Gregory Lewis examining why initiatives to prohibit same-sex marriage succeed at the polls when public opinion surveys suggest reasonably strong support for same-sex marriage. Among the key points is that support for same-sex marriage varies quite widely by state.
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