Category Archives: Constitution

Muskets and AR-15s

Correction of  a previous post: I was so astonished by an email from a very reliable friend that I failed to check his assertion that Jim Lucas would be introducing a bill to give gun purchasers a tax credit. It turns out to have been a joke from my friend–plausible thanks to the fact that Lucas is verifiably nuts–but unforgivable on my part for repeating something without checking its accuracy. Mea Culpa.


I rarely post about America’s fixation with guns–or to be more accurate, the fixation of some Americans with guns. That isn’t because it is unimportant–it’s because I’ve concluded it’s hopeless. Whatever our more rabid gun-lovers are compensating for (use your imagination), the addiction is beyond my ability to address.

I still remember a conversation I had years ago with George Geib. George was a fixture at Marion County GOP headquarters, where–among other things–he trained precinct workers. He was also a longtime history professor at Butler. I had just become Executive Director of Indiana’s ACLU, and asked him to serve on a committee I was forming to try to resolve disputes within the Board on interpretation of the 2d Amendment.

George declined, telling me that “The 2d Amendment gives you a right to carry a musket and powder horn! Period.”

I thought about George’s response when I read a recent newsletter from Robert Hubbell,  discussing the fallout from New York State Rifle & Pistol Association v. Bruen –a Supreme Court decision written by Clarence Thomas. Bruen held that modern gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.”

As Hubbell noted, that test effectively limits the regulation of guns to laws in place in the 18th century.

Unfortunately, the decision limited regulation–not items being regulated–to the 18th Century, rather than following more rational Court precedents in cases involving modern technologies. For example, a few years back (before the Court was captured by rightwing ideologues in robes), the Court was faced with a case requiring an updated interpretation of what constitutes a “search” for 4th Amendment purposes.

In that case, Kyllo v. United States, the Court ruled that the use of a thermal imaging device to monitor heat radiation in or around a person’s home, even if conducted from a across the street, is unconstitutional without a search warrant. (The device allowed police to detect pot growing in the home’s basement.)

In the Founders’ day, a “search” required officials to trespass–to enter the premises being searched. By 2001, when Kyllo was decided, technology allowed police to search from across the street. Was that still a search, requiring probable cause? The Court–quite properly, in my opinion–said yes, in a majority opinion written by that noted “liberal” Antonin Scalia. 

Clarence Thomas, presumably, would now disagree, although he was in the majority in Kyllo.

I define an actual originalist as someone who understands what value the Founders were trying to protect, and proceeds to protect that value in a world the Founders could never have imagined. (I used to ask my students what James Madison thought about porn on the internet.)

Madison and the other Founders couldn’t have foreseen the Internet–or radio, television or movies– but we apply their concerns about freedom from government censorship to those platforms.

It is insane to define “originalism” as refusal to regulate any technology that didn’t exist in the 18th Century.

Thanks to the Court’s surrender to the gun lobby in Bruen,  the reactionary Fifth Circuit Court of Appeals has now invalidated a law that prohibited defendants accused of domestic violence from possessing a firearm during the time the court was engaged in a determination of guilt– even if the court had made a preliminary finding that allowing the defendant access to a firearm presented a risk of violence.

As the link from Vox reports:

 In New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court tossed out the old two-step framework in favor of a new test that centers the history of English and early American gun laws.

Under this new framework, the government has the burden of proving that a gun regulation “is consistent with this Nation’s historical tradition of firearm regulation,” or else that regulation must be struck down. Bruen, moreover, strongly suggests that a gun law must fall if it addresses a “general societal problem that has persisted since the 18th century” and the government cannot identify a “distinctly similar historical regulation addressing that problem.”

Moreover, Bruen said, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”

If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld. The early American republic was a far more sexist place than America in 2023, and it had far fewer laws protecting people from intimate partner violence.

Indeed, until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other,” it was legal in every state for married partners to beat their spouses.

But we can probably ban muskets and powder horns…..


First It Was Taney

The New Republic recently published a long but incredibly illuminating essay on the Supreme Court.It deserves to be read in its entirety.

The author, Brynn Tannehill, compared the Roberts Court to past Courts that today are widely considered to have decided important cases wrongly–beginning with the Taney Court. In 1857, that Court decided  in Dred Scott that Scott was not a free man, that no Black person could be a citizen of the United States, and that Black people were not entitled to Constitutional protections. As Tannehill says, that decision doomed the country to civil war.

Worse, Taney’s Court effectively eliminated the rights of free states to prohibit slavery on their own territory– relying on the same sort of “originalist” logic used by Justice Alito in Dobbs v. Jackson.

Roger Taney was not the only Chief Justice to preside over a retrograde Supreme Court. Following the Civil War, the Court led by Chief Justice Morrison Waite, “delivered decision after decision that ended Reconstruction.”

In United States v. Reese, the court ruled 7–2 that “racially neutral” voter suppression measures such as poll taxes, literacy tests, and the grandfather clause were constitutional. In United States v. Cruikshank, the Waite court ruled 9–0 that the federal government had no right to arrest the people responsible for the Colfax Massacre, the 1873 Louisiana riot where dozens of Black militiamen were murdered by a white mob. The Waite court also decided unanimously in Minor v. Happersett that women do not have a constitutional right to vote.I

n Elk v. Wilkins, the Waite court ruled 7–2 that being born on U.S. soil did not grant citizenship to Native Americans. The court also upheld miscegenation laws 9–0 in the 1883 case Pace v. Alabama. That same year, a majority struck down the Civil Rights Act of 1875 in The Civil Rights Cases of 1883. Later, in 1896, under Chief Justice Melville Fuller, the Supreme Court enshrined segregation via Plessy v. Ferguson, under the rubric of states’ rights.

Ironically, these decisions were framed as protective of limited government and individual liberty–as Tannehill writes, “freedom in the abstract, but only in the abstract.”

As if to drive this point home, the Roberts court ruled in Shinn v. Ramirez that it doesn’t matter if a person is innocent based on the preponderance of the evidence; so long as procedure was followed, the state can still execute people. Justice in the abstract, and only in the abstract, all over again.

Then there’s the Roberts Court.

It struck down most of the Voting Rights Act . It permitted states to strip Native Americans of their right to vote using the pretext of preventing voter fraud.  Worst of all, the court recognized that partisan gerrymandering is inconsistent with democracy, but declined to do anything about it.

The Roberts Court also seems intent on eviscerating Jefferson’s wall between church and state. It keeps finding that Christian organizations have a right to government money, as well as a “freedom”  to discriminate against LGBTQ people, Jews, and others.

This is freedom in the abstract: Even if Jews and LGBTQ people were allowed to discriminate against Christians, it would have a negligible impact on Christians compared to Christians being permitted to discriminate against groups that make up much smaller percentages of the population. It is akin to saying Christians can only shop at Kroger, and Jews can only shop at Jewish-run businesses: The harm falls disproportionately on the minority groups.

Tannehill reviews several pending cases with potential to upend federalism:

But the real Dred Scott moment will be at hand when red states begin trying to extradite people from the blue states for the crime of getting abortions, providing abortions, or providing transition-related care to transgender people. Deep blue states have been creating haven and sanctuary laws to protect women, doctors, transgender people, and parents of trans youth. Both California and Massachusetts have passed sanctuary laws that would prevent people from being extradited for seeking abortions in their states. Given that eradicating abortion and eliminating health care for trans people have become the top social policy priorities for conservatives, the reaction from powerhouses like the Heritage Foundation has been swift: They see these blue-state moves as a direct threat to their agenda.

Eventually, the Supreme Court will have to decide, are people free once they leave a state like Texas? Or do they remain property of that state forever, even if they leave?

It’s entirely possible that this Court would follow Dred Scott and allow extradition. If so, officials in the “sanctuary” states would be under heavy pressure to refuse to comply.

At that point, federalism, and the Union, are dead, as states refuse to recognize the legitimacy of court decisions, and the comparisons with the Taney court are complete.

You really need to read the entire essay.

An Idea Whose Time Has Definitely NOT Come

Periodically, I come across reports updating progress toward a so-called “Article V” Constitutional Conventions. The last time I looked, twenty-eight states had called for one; only thirty-four are needed.

I’ve shared my concerns about that movement previously–in mid-2014, in a column for the Indianapolis Business Journal, and again, on this blog,  in 2017. The major forces behind this effort to convene what proponents call an “Article V” convention are ALEC and the Koch brothers, which tells you pretty much everything you need to know about the motives of the proponents..

My original arguments against calling such a convention were rooted in history, which tells us that major changes in government rarely reflect the relatively benign and/or limited expectations of people who agitate for that change.

In this case, state lawmakers who favor a new constitutional convention argue that it would allow delegates to devise a framework for reigning in overspending, overtaxing and over-regulating by the federal government and would move the U.S. toward a less centralized federal government. Many of them insist that an Article V convention could be limited to consideration of those goals.

Warren Burger, former Chief Justice of the United States, begged to differ, writing

[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention.  The Convention could make its own rules and set its own agenda.  Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey.  After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.

But even if a convention could be limited, the enumerated goals are Pandora-box wide.

For example, Wall Street bankers argue that financial laws are “overregulation;” if polls are to be believed, most taxpayers view the same rules as barely adequate.

My definition of “overspending” would include the massive subsidies enjoyed by fossil fuel companies and the obscene amounts we spend on the military; yours might be Medicare or farm subsidies. 

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

I could go on. And on. But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes, or even the  predictable influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.

Even bright graduate students came into my classes with little or no knowledge of American history or government. Most had never heard of the Enlightenment or John Locke or Adam Smith. A truly depressing percentage of my undergraduate students were unable to explain what a government is, and had no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

The danger inherent in calling deeply polarized and depressingly under-educated politicians together to “improve” the Constitution should be obvious. Do we really want people like Marjorie Taylor Greene or Paul Gosar—or their Red-state-level clones–deciding how the American Constitution should be changed?

In the years since I first became aware of this effort, I have seen no reason to revisit my original concerns about such a convention. As Common Cause has warned,

With no rules and complete uncertainty about the constitutional process, an Article V convention would cause political and economic chaos. There is no language in the U.S. Constitution to limit a convention to one issue, no guidelines for rules to govern a convention, no rules on who picks the delegates and how they are selected, no guarantee that the American people would be equally represented, and no limits on corporate special interest influence.

I can only imagine what sorts of regulatory changes the Koch brothers hope to make, or what the armies of anti-journalism “Trumpers” would do to the freedoms of speech and press. Proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christianity) would see this as a God-given (!) chance to dismantle the Wall of Separation between Church and State.

We should also remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking, that they are also at risk. A convention might also end up with participants reflecting  the majority of Americans who think it’s time to get rid of the Second Amendment and the Electoral College, and a great idea to outlaw gerrymandering…

In other words, such a convention would be a monumental crap-shoot.








A Dishonest Court. A Dishonest Case.

I’ll begin with a warning: This will be a bit longer than my usual post, because I’m livid.

I began to write about 303 Creative v. Elenis, the case brought by a website designer who wants an exemption from Colorado’s civil rights/public accommodation law. She claims her “sincere religious beliefs” prevent her from “endorsing” same-sex marriages, and wants the Supreme Court to exempt her from the law’s non-discrimination requirement. She is asserting that the First Amendment–which among other things  prohibits government from compelling speech–protects “artists” and those engaged in “expressive” work from endorsing behaviors they consider sinful, and  further asserts that the act of providing a wedding website would constitute such endorsement.

Initially, I just intended to argue that framing this conflict as a Free Speech issue is dishonest.

.As David Cole pointed out in the New York Times, 

The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians?

Cole points out that artists don’t have to open businesses in the first place.

Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.

Cole also reminds us that  businesses open to the public are free to define the content of what they sell. “A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.””

The lawsuit frames a website designer as an “artist” who should be exempt from public accommodation laws because her product includes an “expressive” element. As Cole points out, multiple businesses are expressive: interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among others.

I intended to argue that, on the ground of dishonest framing alone, the plaintiff should lose. But then I did some further research, and what I found appalled me.

I already understood that this case had been intentionally  constructed–manufactured– to appeal to our newly theocratic Supreme Court majority. The plaintiff has the same lawyer who brought the bakery case a few years ago raising the same arguments. The Court essentially “punted” on that one, returning it to Colorado without reaching the merits, and this case has clearly been manufactured to try again.

But that isn’t the half of it. Robert Hubbell provides the ugly underside.

It turns out that this case does not involve an actual “case or controversy”—as required by the Constitution.( In the United States, courts are not allowed to issue advisory opinions, only to decide actual, existing conflicts.)

In general, the jurisdiction of federal courts is limited to real disputes in which the plaintiff can show actual injury. (That is a gross oversimplification of a complicated judicial doctrine, but stick with me for a moment!)

 The 303 Creative “controversy” was manufactured by a religious advocacy organization (ADF). The plaintiff is a web design company that might—in the future—offer such services for weddings. But the plaintiff does not yet offer that service, may never do so, and (therefore) has not yet been asked to provide those services to a same-sex couple. Nonetheless, the plaintiff asks the Court for an advisory ruling about its obligations under a Colorado statute prohibiting discrimination on the basis of sexual orientation.

No same-sex couple has ever asked Smith to make them a wedding website; in fact, she has never made a wedding website for anyone. Her work to date focuses on local politicians, dog breeders, contractors, and houses of worship—not celebrations of life events.

Smith one day might be asked to make a same-sex couple’s website, ADF asserted. And when that day comes, she wants the right to say no.

The first question any lawyer–or any law student– would ask is: in the obvious absence of an actual case or controversy, why did the Court agree to hear this case? I’m afraid the answer to that is chilling: because this is a Court with a rogue, theocratic majority intent upon imposing  religious beliefs held by a minority of Americans on the rest of us–intent upon making the U.S. a “Christian nation.”

There’s more. It turns out that the Colorado statute already has language that would allow Smith to refuse to make a custom website for same-sex couples.  Only  if the business offers “off the shelf” website designs for sale to the general public would she be required to sell them to anyone who wants one. This so-called “artist” wants the Court to say that she can refuse to sell a standardized product to same-sex couples.

Let’s get real. If a business owner really, sincerely doesn’t want to work with particular customers,  it is supremely easy to evade nondiscrimination laws. The proprietor can always say something like, “Gee, Mrs. Smith, I am so backed up with orders that I can’t meet your timeline,” or “I’m so sorry, Mr. Jones, but I’m short-handed right now”…there are lots of ways these pious bigots can refrain from “participating in sin” without trumpeting their disdain or trying to change the law to encourage others to discriminate.

I will also note that the use of such all-purpose excuses would allow Smith to deny service to other “sinners”–surely her “sincere” religious beliefs would prohibit sales to adulterers or women who’ve had abortions, or atheists…interesting how these “godly” folks are laser-focused on just one sin…

It’s depressing enough to realize how many “Christian soldiers” are fixated on making life miserable for us “others.” It is absolutely terrifying to realize that the Supreme Court of the United States is controlled by theocrats intent upon eviscerating the wall of separation erected by the First Amendment’s religion clauses in order to enforce their version of “morality” on all  Americans.

Iran has morality police. How’s that working out for them?


Another “Be Careful What You Wish For”

As regular readers of this blog know, I am firmly convinced that gerrymandering is at the root of many–if not most–of America’s electoral dysfunctions. As a result of that conviction, and my general nerdiness, I have often consulted the Princeton Electoral Innovation Lab and especially its gerrymandering project, run by Sam Wang, a professor of neuroscience at Princeton.

Wang recently authored a very interesting analysis of the likely results of a win for the “independent state legislature” theory, a theory being advanced by Republicans in the upcoming Supreme Court case of Moore v. Harper. 

The GOP argument–dismissed by most legal observers as essentially wack-a-doodle–would re-interpret and greatly expand the effect of constitutional language granting state legislatures authority over elections.That language has always been understood to mean that the legislature passes state election laws, but that, just as with other laws, whatever they pass has to be consistent with their own state constitutions–meaning that those laws can be overturned by a court or vetoed by a governor. Proponents of the Independent State Legislature theory argue that the language  gives absolute authority to state legislatures, and that whatever they pass cannot be overturned by courts or vetoed by Governors.

Given the ideological makeup and ethical deficiencies of our rogue Supreme Court, its acceptance of the case has produced significant angst in the political and legal communities.

Endorsement of the theory would strike a devastating blow against the checks and balances that constrain governmental shenanigans.  Winning the freedom to evade democratic rules–freedom to rig elections– may make the Republicans who are arguing for the theory happy, but Wang shows that if the Court accepts it, it will actually end up benefitting Democrats.

His explanation–accompanied by graphs you should really click through to see, is as follows:

But if the Republicans win in the U.S. Supreme Court, the result on a national scale would almost certainly benefit Democrats. Why? Because outside North Carolina, only swing states and blue states have curbed partisan gerrymandering. In Pennsylvania, New York, Connecticut, Minnesota, New Hampshire, Wisconsin and Virginia, this was done through the intervention of governors or voting-rights-minded state courts; in Arizona, California, Michigan and Colorado, citizen initiatives gave redistricting authority to independent commissions.

One way to see the Democrats’ likely advantage: In the 2020 presidential election, the 12 states where districts were drawn by courts or independent commissions gave 184 electoral votes to Joe Biden and only 15 electoral votes (those from North Carolina) to Donald Trump.

A win for Moore would potentially unleash all those states to redistrict at will. In contrast, in 19 states where Republicans already have legislative control of redistricting, many partisan gains are maxed out, and nothing would change.

Wang’s laboratory analyzed the effects of the Court’s acceptance of arguments being made on behalf of the theory, examining partisan possibilities in each state, and concluded that  “election maps completely controlled by state legislatures would change the overall balance of congressional seats in Democrats’ favor.”

Wang explains that there are two possible analytical paths to a Court endorsement of the Independent state legislature theory.  If they chose the first, it would liberate several Democratic states to gerrymander by removing state court authority. (He points out that just this year, New York courts struck down that state’s pro-Democratic gerrymander.)

Democrats would also gain power if independent citizen commissions were struck down. In 2010, citizens gave an independent commission power over congressional redistricting in deep-blue California, with the support of then-Gov. Arnold Schwarzenegger, a Republican. Since then, Michigan and Colorado, two states now controlled by Democrats, have also formed independent commissions. Striking down these three commissions would give Democrats the ability to draw themselves up to a dozen additional seats.

Both liberal and conservative legal scholars have overwhelmingly argued against the independent state legislature doctrine. As Wang notes, proponents of this very novel theory are “hoping to find a receptive audience in a reactionary and increasingly activist Supreme Court.”

He also observes that–should the Court hand down a decision repudiating the theory–Republicans should consider themselves lucky.

The last time I argued that the GOP should be careful what they wished for, I was predicting  a huge anti-GOP backlash to the over-ruling of Roe v. Wade. The data emerging from the midterm elections–where the anticipated “Red wave” was held to a trickle– confirmed the potency of that response.

I am not rooting for the Court to adopt a ridiculous mis-reading of a Constitutional provision. Such a result would be enormously dangerous; it would dramatically erode American democracy. Gerrymandering doesn’t suddenly become less anti-democratic when it’s being done by my preferred team.

But the result Wang predicts would serve the Rightwing a-holes right…