Convictions: Slate's blog on legal issues

Mildred Loving Speaks

Mildred Loving, who along with her husband, Richard, was a plaintiff in the 1967 case of Loving v. Virginia, passed away May 2. Her obituary is here. In Loving v. Virginia, the Supreme Court held that laws banning interracial marriage violated the Equal Protection Clause both because they violated principles of racial equality and because they abridged a fundamental right to marry. The case is doctrinally important for many reasons, including the court's recognition that the Equal Protection Clause protects certain fundamental rights, for its recognition of a fundamental right to marry, for its application of strict scrutiny to strike down racial classifications (an idea first raised in the Korematsu decision, which had nevertheless upheld the classification), and for its embrace of an anti-subordination as well as an an anti-classification model of race equality.

continue reading at Balkinization ...

Fundamentally Speaking

So here's where I think our arguments are passing in the ether, Jack. First, I've always understood there to be an at least doctrinal (perish the thought) distinction between "fundamental rights" and "everything in the Bill of Rights." (So when, for example, we studied in law school why a state law forcing the sterilization of certain people was constitutionally problematic, it mattered in the court's decision to apply strict scrutiny that in particular "[m]arriage and procreation are fundamental to the very existence and survival of the race.") 

I take you in recent posts to be arguing there's no daylight between rights fundamental and any right in Amendments 1 through 8 (i.e. that "fundamental rights" include at a minimum everything in the Bill of Rights).  Among other things, then, I'm stuck with how to understand things like the grand jury right, on which the states have gotten a constitutional pass. Guess that falls into the Balkin given-a-chance-I'd-reverse bucket. 

Second, I wasn't arguing that strict scrutiny should apply to regulations of Second Amendment rights, or indeed that strict scrutiny is what applies to everything in the first 10 amendments. Just the opposite (as I'd hoped was made clear when I noted, for example, "the highly contextual availability of those rights (even the great First Amendment)...").  I was arguing that applying strict scrutiny (or something thereabouts) seemed like the necessary implication of your argument that the right to carry a handgun is "fundamental." Because you apparently think Amendments 1-8 or 9 are all "fundamental," I can see why you wouldn't think that the necessary implication at all. Glad to have the record straight.

About that “Progressive Constitutional” Thing

With growing appreciation of Jack and Dahlia (and growing bewilderment at how any of us will keep up with our day jobs in a post-Convictions world), let me offer a few thoughts in response to Jack's post on the Second Amendment and more broadly on constitutional interpretation by "progressive constitutionalists."

Jack's of course right that we should all know a lot more about the framers (and framing) of the 14^th Amendment. Count me in. I also couldn't agree more with the general sentiment I take Jack to be expressing that those who continue to assert vigorous state rights-type arguments (in various contexts, most ridiculously perhaps when it comes to voting rights) are simply missing the reality that their side lost the Civil War.  Even on the more specific point, I would be willing to defer on grounds of comparative historical illiteracy to Jack's account that one of the things the 14^th Amendment framers had in mind in passing the amendment was to make sure, I take it his historical argument would lead him to say to the Heller Court, that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason.  For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring.

But it is that last point that brings me back to the question my earlier post meant to be asking - namely, that however terribly inadequate (Charles Black said), ahistorical (as you would say), and otherwise laden with "baggage" (as Chief Justice Roberts would say) the Court's fundamental rights jurisprudence has been in the past ~150 years, my naïve stare decisis-related assumption had been that those decided cases are entitled to at least some measure of "interpretive weight" as against the statements of the no-doubt-far-more-enlightened views of Senator Howard.  Of course it would've been better had Slaughterhouse been rightly (or even plausibly) decided, and we all hadn't wandered off for the past century and a half down the less-than-perfect substantive due process road, and the associated imperfect road along which we incorporated some (but not all) of the Bill of Rights against the states.  But alas, that is the legal road we have traveled.  It is one thing for progressives to explore anew the heretofore untapped scope of the privileges of immunities clause.  It seems to me another thing to ignore, in any case in which any of that along-the-way jurisprudence seems inconvenient, everything else that might inform the modern Court's understanding of what makes a right fundamental.