JoshBlogs is moving on up to – Update your Bookmarks and RSS Feeds

I launched this blog about 2 months ago. 45,000 visitors, 414 posts, 402 comments, and one really cool license plate later, I’m moving on up. is born.

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I will no longer update JoshBlogs, and I have transferred all of the old posts to, so my loyal readers will not miss a thing.

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Now on SSRN: Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second AmendmentIwelcome

I am proud to announce that Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment is now available on SSRN. I co-authored this article with Ilya Shapiro from Cato. It should be published in the Georgetown Journal of Law & Public Policy on a blistering expedited schedule in January 2010, right in time for Oral Arguments in McDonald. This article is cited in an amicus brief to the Supreme Court in McDonald. I can’t say which one, but when they are released on Monday, you will be sure to hear about it here.

I will blog about this in some detail soon, as well as my general thoughts on McDonald and privileges or immunities.

Here is the abstract:

>The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.

This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.

In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.

In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.

In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.
What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property—independent of its enumeration in the Second Amendment—was considered a privilege or immunity of citizenship in 1868.

Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities Clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only by correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.

I welcome all comments, suggestions, critiques, and any other feedback.

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I want to be on Judge Braden’s List of Counsel

Judge Braden of the U.S. Court of Federal Claims, a regular at Federalist Society events in Washington, D.C.. issued a pretty cool order, per BLT.

In an unusual order last month in a constitutional challenge to Section 8(a) of the federal Small Business Act, Judge Braden determined that the plaintiff’s lawyer, despite “substantial experience” before her court and the U.S. Court of Appeals for the Federal Circuit, should have an appellate “lead co-counsel” with jurisdiction and constitutional law expertise. “The issues presented concern the extent of the court’s jurisdiction, as well as one of constitutional importance. As such, this is not a typical pre-bid protest,” She then offered a list of 11 lawyers who might be willing to step into that role.

Who was on this list? Sadly, not me, but a few cool names.

The lawyers on Judge Braden’s suggested list included such conservative legal stars as former solicitors general Theodore Olson of Gibson, Dunn & Crutcher and Kenneth Starr, dean of Pepperdine University School of Law, as well as such appellate veterans as Carter Phillips of Sidley Austin, Charles Cooper of Cooper & Kirk, David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, Edward Bruce of Covington & Burling, and Richard Samp of the Washington Legal Foundation.

I suppose this is the official Article I’  (Court of Federal Claims is not Article III) All Star Litigator List. But, will Ted Olson or Kenn star step in to help?

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Is Jack Balkin Disgusting? Andy Koppelman Thinks He May Be.

From Balkinzation, Andrew Koppelman posted this new article to SSRN, titled Why Jack Balkin is Disgusting:

Yale Law Professor Jack Balkin didn’t win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn’t possibly defend the paradigmatic departure from the Constitution’s original meaning.

Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly held vision of the rule of law that his argument is, to put the point precisely, disgusting. But that doesn’t mean that he is wrong.

I discuss Balkin’s article, Abortion and Original meaning, at length in my new article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment

I find Professor Balkin to be quite curious, though I would never use the word disgusting. I had some lengthy chats with him during the Constitution in 2020 Conference at Yale Law school (see live blog here). He is a thought-provoking, sincere scholar, who provides a formidable foil on the Left.

Though-provoking read, as I scramble to add some footnotes from this article to Pandora.

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Article about the Other 10th Justice: The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

Although I have dubbed my most recent feature Predictions of the 10th Justice, this new article on SSRN discusses the other 10th Justice, commonly known as the Solicitor General (H/T SCOTUSBlog)

The solicitor general “has developed a unique relationship with the Supreme Court, one in which it serves as an adviser as well as an advocate.” The Solicitor General fulfills his role as the Court’s adviser and advocate by responding to the Court’s invitation to express the views of the United States in given petitions for certiorari. Here, the Solicitor General acts as a special type of amicus because the Solicitor General is not a party to the proceeding nor opining on behalf of one of the parties but rather acting as a sort of “partner” to the Justices. When the Justices believe that, before they can grant or deny a petition for certiorari, they would like another opinion of the merits of a petition, they “call for the views of the solicitor general,” known colloquially as CVSG. Because of the enormous amount of trust that the Court holds in the Solicitor General’s office, the Court values the Solicitor General’s opinion to “provid[e] [the] best judgment with respect to the matter at issue.” However, this unique relationship of trust between the Court and the Solicitor General such that the Solicitor General’s opinion is treated as tantamount to the opinion of a tenth justice did not develop until the 1950s. This paper will examine how the CVSG process developed. Part II will provide general background information, explaining the office of the Solicitor General, the Supreme Court practice of granting certiorari and the reasons for doing so, and the process by which the Supreme Court invites the Solicitor General to express the opinion of the United States. Part III will examine the environment that laid the groundwork for the CVSG process to emerge: the personal relationships that existed between individual justices and attorneys in the Office of the Solicitor General and the political climate that instigated a political partnership between the Court and the Solicitor General. Finally, Part IV will argue that the CVSG process represents the culmination of the mutually beneficial relationship between the Court and the Solicitor General and then describe the first petitions for certiorari where the Supreme Court exercised its option to CVSG.

For another interesting article on the role of the SG, see AN EMPIRICAL ANALYSIS OF SUPREME COURT CERTIORARI PETITION PROCEDURES: THE CALL FOR RESPONSE AND THE CALL FOR THE VIEWS OF THE SOLICITOR GENERAL by David C. Thompson and Melanie F. Wachtell. I edited Dave and Melanie’s article will on the George Mason Law Review, and absolutely loved this piece. Definitely check it out.

Judges aren’t like Umpires. They’re like the Commissioner of Baseball

Interesting new article on SSRN from the Yale Law Journal Online, titled The Justice as Commissioner: Benching the Judge-Umpire Analogy  (H/T SCOTUSBlog)

Chief Justice Roberts has repeatedly compared the role of a Supreme Court Justice to that of a baseball umpire, and this analogy has assumed a prominent place in the contemporary debate over the appropriate role of a Supreme Court Justice. This paper traces the history of the judge-umpire analogy since its first judicial invocation in 1886, finding that it was originally intended for trial court judges. Moreover, courts historically invoked the analogy as an illustrative foil to be rejected because of the umpire’s passivity. In place of the judge-umpire analogy, this paper propose that the appropriate analog for a Justice of the Supreme Court is the Commissioner of Major League Baseball. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rule-making power.

If each of the Justices were an athlete, who would they be? Definitely fodder for a future post. Thoughts?

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Are Individual Health Care Mandates Unconstitutional as a Direct Taxes without Apportionment Under Art I. Sec. 9?

Jonathan Adler at Volokh thinks it may be:

As I understand the current proposals, the individual mandate would operate as follows: A tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans.  The constitutional problem would arise if this tax is considered a “direct tax.”  Why?  Because Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  “So if mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

Do the respective individual mandate provisions constitute direct taxes?  I’m not sure.  “Indirect” or so-called event taxes are not subject to apportionment under Article I, section 9, and income taxes were exempted from the apportionment requirement under the 16th Amendment.  So the question would be whether any tax imposed on those who fail to purchase qualifying health plans would constitute a “direct” tax, or whether they could be properly characterized as indirect or income taxes. From what I understand, the tax in the House bill is, at least for some individuals, based upon income up to a set threshold.  This might be enough to avoid the Article I, section 9 problem

This approach is much smarter than Rivkin’s argument that the Mandates exceeds Congress’s commerce powers. That case is DOA (pun intended). Of course, Pelosi and Reid can simply re-characterize the penalty so it is clearly not a direct tax, and escape the apportionment requirement. But if they fail to do so, totally possible in light of the rapid pace they rahm through this legislation, this could set up a potential facial, or as applied challenge, if enacted.

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