Book review: Gun case’s broader context
The Supreme Court’s move into the center of one of the nation’s most hotly contested culture wars — over gun rights and the Second Amendment — is already historic in itself, and probably will become more so as it proceeds to a decision. But the case could be historic for another reason: it has a prominent place on an agenda for some fundamental shifts in American constitutional dogma. The gun case (District of Columbia v. Heller, 07-290) thus might be seen as an opening shot in a constitutional revolution.
The rise over the past couple of decades of a professionally gifted cadre of litigators, highly motivated to advance conservative causes, has brought serious questioning of long-held understandings or assumptions about the Nation’s fundamental law. This, one might say, is the constitutional legacy of the “Reagan revolution.”
It is a far more ambitious project than may be widely recognized. If it ultimately were to succeed, Congress’ power to spend under the General Welfare Clause would be severely curtailed, economic populism — freedom, especially, for small merchants from pesky government rules — would have a new birth, the bundle of ownership rights in property would expand markedly, the power at all levels of government to intervene to advance progressive social causes would be shrunken considerably — just as a few examples.
This project is soon to have its own manifesto: a new book co-authored by two prominent figures in the libertarian community, one of whom, Robert A. Levy, happens to be the prime mover behind the challenge to the D.C. handgun control law. Levy, a senior constitutional fellow at the Cato Institute, is joined here by William “Chip” Mellor, president and general counsel of the Institute for Justice.
Their book (a bit flippantly titled for such a serious project) is The Dirty Dozen, scheduled for publication May 1 as a Sentinel book (Sentinel is “a dedicated conservative imprint within Penguin Group”). Its subtitle more accurately describes the work: “How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.” It has a forward by Chicago law professor Richard A. Epstein, who points out that, in one place, the authors have gathered what he deems “the worst” of the Supreme Court’s modern decisions.
There are a couple of “naturals” in the Levy-Mellor list (which generally begins with the New Deal and runs through 2005). One, of course, is U.S. v. Miller, the 1939 decision that is the Supreme Court’s most recent analysis of the Second Amendment and the “right to keep and bear arms.” Although quite an opaque decision, Miller has led a lot of people (and legislatures) to believe that the Amendment does not protect a private right to have guns — the very proposition that, through Levy’s own efforts, is now being tested in the Heller case.
Another obvious entry on this black list is Kelo v. City of New London, the widely-assailed 2005 decision that allowed a city government to take unblighted private residential property and turn it over to a private developer for a civic improvement project that would provide new tax revenue and jobs — a case closely identified with the Institute for Justice’s sustained campaign against what it regards as “eminent domain” abuses.
But there also are some mild surprises here: for example, the stirring defense of the rights of Tina Bennis, the Michigan woman’s whose share (with her husband) in the ownership of a used car was taken away because the husband used the car as the scene of a sex encounter with a prostitute — a forfeiture upheld by the Supreme Court in Bennis v. Michigan (1996). Given libertarians’ devotion to property rights (a nearly constant them of this book), this case seems to belong on this list, but, more importantly, it has a special sting as a wholesale assault on criminal forfeiture doctrine, well beyond Tina Bennis’ loss.
It is also somewhat surprising to find here a defense of the rights of Jose Padilla, the U.S. citizen who was captured in Chicago as a terrorist suspect, and was later held for years in a Navy brig in Charleston, S.C. His fate is lamented as part of a chapter titled “Civil Liberties versus National Security,” focusing primarily on the Japanese internment cases from the World War II era.
The book definitely appears to be tilting at windmills when it takes on government taxing and spending power under the General Welfare Clause, particularly targeting the 1937 decision in Helvering v. Davis, upholding the constitutionality of Social Security. No one is going to anticipate Helvering’s demise. But this chapter is entirely true to the authors’ concept of limited government, and its presence on the list suggests how bold this project is in its ultimate ambition.
The book is an easy read, and it is a very informative primer on some long-neglected cases. Each chapter begins with a discussion of the constitutional issue at stake (with the language of the Constitution on the point spelled out), followed by the facts of the key case or cases, the critique (”Where Did the Court Go Wrong?), and concluding with implications for the present and future.
The book closes with a chapter on judicial philosophy — not all of which will be comfortable reading for conservatives. There are two postscripts on why Roe v. Wade and Bush v. Gore do not make their list.
The authors are not so naive as to suggest that they will see, in their lifetimes, the overruling of all of these “worst” cases. In essence, that would be to undo virtually the entire modern “regulatory state.” But, on the other hand, they do not concede it is beyond imagining; look, for example, at what may happen in District of Columbia v. Heller.
The book could well become a document of some import during this year’s presidential election campaign, if it should turn out that the voting public (and the candidates) take any interest in the kind of judicial philosophy that they want to see pursued in future appointments to the Supreme Court.
A libertarian interpretation of the constitution is a needed retort to the conventional view taught in law schools. But the book, and what it portends politically, needs to be looked at in historical perspective. There is a hope among conservatives and fear among liberals that the court is headed in an increasingly conservative direction. This may be true but the direction of the court will most likely be at odds with the prevailing political winds. Philosophical shifts in legal jurisprudence have always come at the tail end of the electoral shift that produced the justices who formulated the doctrinal change. There is a political realignment in America every forty years or so. Thus, the elections of 1828, 1860, 1896, 1932, and 1980, all produced a fundamental change in our political landscape. These “revolutions” if you will also produced there own legal scholarship which reached its fullest influence after their political effectiveness had reached its apogee. For example, Dred Scott may have been a victory for slaveholding states but occurred 8 years before the South’s defeat. The decisions about economic regulation in the early FDR years may have been an annoyance to liberals but they really represented a “last gasp” of the free market interpretation that reflected the politics of the late 19th century. Ditto the Warren Court. It heralded a legal revolution but at a point in history when the old FDR coalition was breaking apart with a vengeance. Does anyone doubt that one of the principal reasons Ronald Reagan was elected was that a good part of the country was fed up with so called “activist judges.” The judges who produce these changes in legal theory cut their political teeth 20 to 30 years before they are appointed at the birth of an new political movement. But now it is 2008. The Reagan Revolution is almost 30 years old. The views of Roberts, Alito, and Scalia, are representative of their political icon: Reagan and to a lesser degree Bush. But the Reagan era is over or soon will be. Whether that is good or bad is irrelevant. The laws of political cycles are immutable. There is nothing that anyone can do about it. Five years from now, the Roberts court will most likely produce conservative opinions that a loose majority believes conflicts with their values and does not reflect the way America should be governed. In a way, this attitude is no different from FDR’s whining about the Supreme Court and trying to pack it or George Wallace claiming that he would give Judge Johnson a “barbed wire enema.” Every change in the Supreme Court’s philosophical direction was greeted with a grass roots or populist resistance to its mandates that eventually produced an electoral tidal wave. So if history is any guide look for a major schism in the next ten to fifteen years between the court and public sentiment.
Comment by Dennis Bedard — January 27, 2008 @ 7:19 am
[quote]It is a far more ambitious project than may be widely recognized. If it ultimately were to succeed, Congress’ power to spend under the General Welfare Clause would be severely curtailed, economic populism — freedom, especially, for small merchants from pesky government rules — would have a new birth, the bundle of ownership rights in property would expand markedly, the power at all levels of government to intervene to advance progressive social causes would be shrunken considerably — just as a few examples.[/quote]
This would be awesome.
Comment by Dan Passaro — January 28, 2008 @ 9:45 am
The book could well become a document of some import during this year’s presidential election campaign, if it should turn out that the voting public (and the candidates) take any interest in the kind of judicial philosophy that they want to see pursued in future appointments to the Supreme Court.
And who exactly would a voter who favors Cato-style libertarian activism vote for? A vote for the Democratic nominee is a vote for Brennan-style liberal activism. A vote for the Republican nominee will likely be a vote for Rehnquist-style judicial restraint.
Folks on the left who are worried that gains they may make through the democratic process may be lost through judicial activism can relax. A few outliers such as the D.C. gun law may fall, but the bulk of the agenda, if enacted in statute, will stand.
Comment by Kent Scheidegger — January 28, 2008 @ 12:06 pm
A voter who favors Cato-style libertarian activism would probably best be served by a vote for Ron Paul, whether he wins the Republican primary (admittedly a long shot) or runs as an independent.
I have not read the book (yet), but I cannot help but wonder if what Levy and Mellor are really advocating is a [re]turn to a textualist interpretation of the Constitution—the approach championed by Scalia.
As much as I wince when the textualist axe swings at something I personally favor, I think we could do far worse than placing a few more Scalias on the bench…
Comment by James Ralston — January 28, 2008 @ 6:53 pm
I think Levy and Mellor are actually seeking more Justices like Clarence Thomas, not Scalia, although Justice Thomas’ affinity for broad executive powers would still not make him the perfect choice for the authors.
Comment by James N. Markels — January 29, 2008 @ 9:02 am
“A voter who favors Cato-style libertarian activism would probably best be served by a vote for Ron Paul, whether he wins the Republican primary (admittedly a long shot) or runs as an independent.”
Yes, I suppose, if the hypothetical voter is merely interesting in making a statement. I was thinking along the lines of voting for someone with a realistic chance of actually becoming the president and making appointments.
Comment by Kent Scheidegger — January 29, 2008 @ 12:14 pm