Q: Just to start the discussion – can you tell us a little bit about what constitutional interpretation is – for people who have never heard the term?
CHEN: Constitutional interpretation is all about making sense of the fundamental legal document of the United States government, for purposes of resolving disputes that arise as to what can be thought of as being within the scope of the government’s power … what the government can and cannot do to you. I would regard it as the ultimate question of how we the people decide to govern ourselves. These are the absolute outward limits on what government can do, and what it can’t do, and on the rights that individuals hold against their government.
Q: In terms of the document itself - can you give us a sense of its basic components?
CHEN: A constitution can be thought of as many things. It’s thought of as a fundamental charter. It’s thought of as a statement of rights. And there are those who believe that it is a document for financing a government - for financing the recovery from the American Revolution, among other things. It’s all of those things. It’s a short document - it is very succinct. It, however, has very distinct parts. It lays out the powers of three basic branches of the federal government: the legislative branch, the executive branch, the judicial branch. It lays out the responsibilities of the states under the new order - the relationships of the federal government to those states. It has provisions for its own revision – a very important part of the document.
The first ten amendments to the Constitution - which were so important to some of the ratifying conventions that they conditioned their approval on the passage of the Bill of Rights - so that we have the first ten amendments to the Bill of Rights. And then we have 17 additional amendments which reflect sometimes extremely traumatic moments in American history - particularly the 13th, 14th, and 15th Amendments that arose out of the Civil War. What most people understand about the Constitution - to the extent that there is any public awareness of the document itself – are, in no particular order, certain parts of the Bill of Rights … “pleading the Fifth” has a cultural meaning … there are lots of disputes over the meaning of the First and Second Amendments, lots of disputes over the Fourteenth Amendment … that is probably the one that plays the biggest role without anyone actually knowing what the source of the constitutional authority that they are fighting over is all about. Notions such as “due process” and “equal protection of the laws” come from the 14th Amendment. And I think the notion of separation of powers that’s implicit in Articles I, II and III of the Constitution are all part of what most people - to the extent that they know and think about the Constitution - think about, when they think about the document.
Q: Different people point to different things that should enter into discussions over how one interprets the Constitution. Can you talk about things like history, text, and other considerations?
CHEN: I’d say that first and foremost there is the text of Constitution itself. This, by the way, is a non-exhaustive list of considerations that people bring to bear, and they obviously carry different weight and have different effects, but there is a relationship which I hope to describe. Let’s start with the text of the Constitution itself. That is something that is quite definite. It is very authoritative. You never go wrong saying “well it is in the Constitution itself.” So specific references to age limits, for instance, for eligibility for federal office, or eligibility to vote - that’s very hard to dispute when it is in the text of the Constitution.
The second source would be the historical understanding of the text by those who put the text together or those who ratified the text - so the Framers’ intent. This is mostly said of the 1787 document, and to some extent said of the 1791 Bill of Rights, but also true of later provisions such as the Civil War amendments.
A third source would be the historic practice of the United States government and of the states. So independent of what the courts themselves say there is some value in looking at how people behave. Presumably, everyone takes an oath to uphold the Constitution. The Constitution requires that all office holders take an oath to uphold the Constitution. And in a culture where we believe that government officials are acting in good faith, generally speaking, the endorsed historic practice of the federal government and of the states carries some weight. I hasten to add the decisions of the Supreme Court. There is a wonderful decision - a little bit remote from issues of constitutional law, I suppose - in which Justice Jackson said of the Supreme Court, “We are not final because we are infallible; we are infallible because we are final.” The fact that the Supreme Court is the last word in many instances - at least with the judiciary - makes it an important source to consult.
So I would consider the collective decisions of the Supreme Court and of the lower courts in the United States as bearing on the meaning of the Constitution. There are considerations having to do with what we call “pragmatic” or “policy” considerations arising from the Constitution, though not necessarily embodied in the text itself. And one very good example of this is how the phrase “equal justice under law” came to represent a constitutional aspiration, even though it appears in no document – neither in the Constitution itself, nor in any of the debates around the Constitution - but rather from architect Cass Gilbert’s proposed design for the Supreme Court building that was erected in the 1930’s. It’s a popular understanding; it is a very short formula that actually expresses some of the aspirations contained in the 14th Amendment and perhaps elsewhere in the Constitution, and as a result carries a lot of resonance. So if you look at this body of different types of authority ranging from text, to history, to practice, to the adjudicated decisions, to popular understanding and perhaps political or pragmatic considerations, you will see that there is actually a hierarchy.
At one end of the spectrum, let’s take the text itself - that is as authoritative as it gets, but it’s also awfully inflexible. There are only so many words in the Constitution. Quite a few of the most important words such as “due process” are not meaningfully defined. At the other end of the spectrum, pragmatic considerations or popular understandings are as flexible as anything on earth. The problem, of course, is that there’s no way to cabin that flexibility and to say, “This is exactly what is legitimate.” And the fear, of course, is that unelected, life-tenured judges will impose their views unless they are somehow constrained by things that are more authoritative, or at least less susceptible to abuse. So there is, I would say, an inherent tension in the selection among different sources of authority in the interpretive process.
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CHEN: What you have is a hierarchy of sources of authority for interpreting the Constitution, ranging from the text itself, to the history underlying the framing of the document, to the traditional practice of the people and the governments of the United States, to the decisions of the Supreme Court and of other courts interpreting the document, to popular understanding, and to political and pragmatic considerations that the courts themselves may wish to take into account. These different authorities do exist in hierarchal relationships with each other, and you should expect a good legal opinion or a good legal brief to walk through these authorities in roughly that order. That is to say, you start with the most authoritative source. Text is almost impossible to dispute - it’s what is actually in the Constitution. The unfortunate thing with text, of course, is that there is not much of it, and much of it is left undefined. There are crucial phrases such as “due process” which don’t have very specific guidelines … that are not defined in the text of the Constitution itself. At the other extreme, political and pragmatic considerations or popular understandings are infinitely malleable. They can adapt to different exigencies of different times, and that’s precisely the problem. The fear is that judges in particular - federal judges who are not elected - federal judges who serve life terms - can impose their personal views and preferences under the guise of interpreting the Constitution, unless somehow we can come up with a way of cabining that discretion, or disciplining what is otherwise a very undisciplined approach. And ultimately the discipline works because the only authority that allows the courts to continue speaking with any degree of credibility is popular acceptance of the courts as the final arbiters of the Constitution.
I might add there is a visual way of thinking about these authorities. This is something that I owe to my great protégé Philip Frickey, who once taught here at the University of Minnesota. If you imagine sources of interpretation as organized on a funnel - and put the heaviest, most authoritative sources at the bottom of the funnel, such as text. They are at the bottom of the funnel when you start moving from the bottom - because that is where you have the greatest weight - but you will notice that the funnel is awfully tight at the bottom. There is only so much interpretive wiggle room that you have with text. As you go into history - history obviously is subject to interpretation. There is more to say, but it is a very limited time frame if you insist on the contemporaneous history of the Constitution - the original Constitution or any of its amendments. There’s a little bit more flexibility when you are talking about the historic practices of governments - more flexibility yet when you are talking about the actual decided cases, and how those themselves should be interpreted. There is simply much more prose. And ultimately, when you reach questions such as popular understanding or what would be a good idea - that, of course, is as unconstrained as it gets and you are at the very top of the funnel. If you will pardon the extension of the metaphor, the funnel idea treats this as a giant mixing bowl, where you have all of these different elements in any interpretive issue, and obviously the ingredients that are the most nutritious or the weightiest will be near the bottom of the bowl or funnel. But you never know which ingredients need to be extracted in order to produce your most satisfying final outcome.
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Q: [Inaudible]
CHEN: The idea of the law being an unstable mass, never really being in equilibrium, really appeals to me. One of the things I do, in addition to constitutional law, is environmental law, and law of natural resources exploitation - of what amounts to the life sciences for the benefit of humanity. And the one thing that we have learned - well, among many other things in life sciences - is this vision of things in equipoise or equilibrium, is a fiction. There is no... it is truly a fiction in the sense that there is no stable point. It’s said of geology that geology knows no word such as “forever.” Well, I would like to say of law that jurisprudence knows no such word as “forever.” Nothing that we do is correct for all time and all circumstances. And if you adopt an attitude that every answer that you give in law - as a question of interpreting admittedly an authoritative and binding document whose place you do not dispute - if you wish to overthrow the Constitution, that makes you an anarchist, a rebel, an enemy of the United States. Assuming that you are not in that category - you do agree to uphold the rule of the people by the people, for the people with this kind of document - with a commitment to the Constitution. That said, the idea that we have given up on, or that we don’t expect there ever to be an equilibrium - we don’t expect there to be a steady state where all things are correct - does inspire me. I feel that that’s actually a realistic view of human nature - it’s a realistic view of constitutionalism. And to approach these questions with a sense that everything is just provisional is the best way that we can live up to John Marshall’s admonition that this is a Constitution that we are expounding. It is meant to last more ages than one. It’s supposed to govern people in different circumstances across generational lines. There is a phrase in one of the more controversial decisions in recent years, the Casey vs. Planned Parenthood decision, where the joint opinion of Justices Souter, Kennedy and O’Connor refers to the Constitution as a covenant binding generations of Americans. Well, that covenant is a commitment to ever-shifting circumstances and to the need to adapt to shifting circumstances with an understanding that there is a fixed text - albeit one that can be amended and one that has been amended. But at the same time a commitment to a process, if not to a text, that is like government. And like life itself, subject to vagaries and change, and to what I would call "jurisdynamics" - the need to move the law in tune with these shifting demands.
Q: I’d be curious to hear you tie in that discussion to the idea that some of the text is hard to decipher – there are phrases that are broad like “due process.”
CHEN: You ask what in the text of the Constitution itself suggests that the Constitution is, albeit a written document - not quite carved in stone but carved in parchment. How’s a document that is written down meant to be flexible and malleable over time? Well, there are certain provisions such as the Due Process Clause, and I think that is one that has been thought of as being a source of inherent flexibility. I think there are others who point to the 9th Amendment and the reference to rights not enumerated in the Constitution. But I think there are some very specific references - perhaps the most celebrated one is the reference to “cruel and unusual punishments.” The idea that a punishment is “unusual” of course has to be measured by reference to what the people of the society at a given time find to be unacceptable. So there you have a built in example. Another such example is the reference to “unreasonable searches” in the 4th Amendment. Reasonableness, of course, is an inherently subjective judgment. You can come up with criteria for what makes something objectively reasonable or unreasonable. That is a very big project in law generally. But by the same token, you have to engage in what amounts to a gut check when you ask about that which is unreasonable, or that which is unusual. So, there are such provisions in the Constitution. I do think that the idea of committing the Constitution to ongoing interpretation is one that inherently invites a degree of flexibility and of change and a commitment to… well, no commitments.
Q: I’m curious to hear you discuss the interpretive history of the 14th Amendment. Talk us through a couple different ages or eras of how the Supreme Court has looked at that amendment.
CHEN: The 14th Amendment … there are two huge areas of 14th Amendment jurisprudence. The 14th Amendment has quite a few different components, but the portions which generate the most litigation are the Equal Protection Clause and the Due Process Clause. The 14th Amendment secures to each person the equal protection of the laws - at least against state governments - and it also secures life, liberty and property from deprivation without due process of the law. Well those two provisions – one could talk for many, many hours about this – but those two provisions have been interpreted more expansively over time to embrace an ever-widening range of interests. So, let’s start with the Equal Protection Clause.
The Equal Protection Clause of the 14th Amendment - without doubt - was intended to secure to the recently freed slaves after the Civil War a measure of equality, of equal treatment, of equal dignity under the laws relative to white citizens after the conclusion of the Civil War. Over time, the Equal Protection Clause has come to be applied to a very wide variety of interests, so that it has become, in its rather humble origins, what Justice Holmes called “the usual last resort of constitutional arguments.” Yes, you make the equal protection argument because you know you are going to lose. In many instances the first argument - and many instances the preferred argument - is that we may not have an idea of what due process requires, but at least we know the quality of treatment - or the absence of a quality - when we see it. And so over time we have added, for instance, sex-based classifications as a legitimate target of the Equal Protection Clause. We’ve added classifications based on legitimate versus illegitimate birth. There is weaker - but still not utterly meaningless - review for other classifications. In each instance, one very valuable inquiry is the extent to which the original purpose of the Equal Protection Clause - that of securing equal rights and dignity to the then recently freed slaves - applies in any other circumstance, such as whether male and female members of the national armed services should receive an equivalent set of benefits. That’s one of the original settings in which that expansion of the Equal Protection Clause took place. The other great example is that of the Due Process Clause.
Due process starts with a very, very narrow conception that stresses the procedural aspects of that clause. But over time it took on additional meanings. In the late 19th century, “due process of the laws” - especially as it applies to deprivations of property - represented a very powerful tool in the hands of judges who resisted progressive legislation and efforts to redistribute wealth by structuring a capitalistic economy thought by some - in a political system at any rate - to have had some excesses, and some socially deleterious effects. So there is a phase in American history - roughly extending from the end of the 19th century to the New Deal - when that use of the Due Process Clause was quite prevalent and in retrospect quite notorious. Since the New Deal there was a period when the Due Process Clause laid largely dormant. But starting with the 1960s the Due Process Clause took on new life as the source of new rights - rights of access to the courts, rights of travel, arguably of education, certainly a fundamental right to vote - seems to adhere in the notion of due process. And perhaps most controversially of all: the notion of certain rights of personhood or personal dignity - especially having to do with reproduction, family formation and abortion. Marriage as a fundamental right, the right of married and unmarried persons to have access to contraception. And of course the celebrated or notorious, depending on your point of view, right to abortion recognized in Roe v. Wade and subsequent cases. So these are examples of how relatively simple phrases, “equal protection of the laws” and “due process,” have come over time to represent very, very different things. I should hasten to add that under the Due Process Clause, perhaps the single most important, historically important use of that clause, was the use of the notion of due process in the 14th Amendment that’s addressed to the states and to their relationship …
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CHEN: One of the most important uses of the 14th Amendment, in particular with the Due Process Clause, historically, was the incorporation - so-called incorporation - of different aspects of the Bill of Rights against the states. The 14th Amendment in particular is aimed at curbing the powers of the states and at binding them to respect the rights of their citizens and to binding them to… in connection with this question of how the Constitution, particularly the 14th Amendment and Due Process Clause, have been used to express changes over time. The use of the Due Process Clause and the 14th Amendment and the so-called incorporation of the provisions of the Bill of Rights are important things to note. In the original Bill of Rights, the first word of the 1st Amendment, is of course, “Congress.” “Congress shall make no law.” The entire Bill of Rights is aimed at the federal government and relatively early in the Supreme Court’s history the justices ruled that the Bill of Rights had no binding effect against the states relative to their citizens and to other persons within the state’s jurisdiction. With the Civil War the idea that the states owed no promises akin to those in the Bill of Rights, relative to their citizens, or to other persons under their jurisdiction, was decidedly unacceptable. And the 14th Amendment in particular was designed to impose obligations on the states in the form of civil rights. The question becomes, well, which if any of the Bill of Rights should be held as obligations of the states relative to their citizens and other persons under their charge? And in retrospect this is something that rarely gets enough attention I think in law school classes on constitutional law. But historically speaking, this is one of the epic struggles in constitutional interpretation. Trying to fit into the phrase “due process,” the entirety or some selected portion, of the Bill of Rights.
As an historic matter, the incorporation of the Bill of Rights against the states raised two basic approaches: the question whether, on one hand you would have selected incorporation, you would pick and choose. And if you did pick and choose - which ones and on what criteria? Or, as Justice Black famously advocated, he wanted comprehensive across-the-board incorporation in order to remove what he felt was the ultimate sin in constitutional interpretation - which was encouraging and indeed inviting judicial discretion to pick and choose. He, like his contemporary intellectual heir, Justice Scalia, never trusted judges to be able to make choices, or to make choices in a way that retain their legitimacy. And so the question arose - well its one thing to say that the 1st Amendment right of speech is incorporated. It might be another thing altogether to say what is the jury right in civil trials. So, the 7th Amendment is incorporated. And perhaps another thing altogether is to say that whether the right to bear arms and the 2nd Amendment is incorporated as against the states.
Q: I’d like to come back to that 2nd Amendment question about whether it’s incorporated at a later time. I’m curious to hear you talk a little bit about the major contemporary schools of thought…
CHEN: You ask about different contemporary schools of thought. There are a wide variety of schools, but here are some, I think, big competing schools. One is the originalist school. Hardly anyone believes that the only legitimate basis for interpreting the Constitution is the text of the Constitution itself. If you insisted on that you would find yourself with too few tools with which to interpret. Entire areas of law would be given no guidance. There are those who pushed the textualism question to the absolute. Akhil Amar of Yale has made a personal business I think, out of finding textual similarities or dissimilarities across the face of the document and pressing them to their logical extremes - and in some cases to absurd logical extremes. But more realistically, there is a school of thought that stresses original intent. That the original meaning of the Constitution, that the application contemplated for it by its Framers, by its ratifiers, should be binding. Again, on the theory that this is the sort of evidence that is hard to fake, and on the theory that it is the sort of evidence that restrains the range of considerations that otherwise - judges otherwise prone to misbehavior, might wish to import into the interpretive process. Now, contrasting that group is what might be called a “living Constitution” approach. And this is perhaps best embodied in an 8th Amendment decision by Earl Warren from the 1950’s, called Trop v. Dulles - the notion that the 8th Amendment, and arguably the entire Constitution itself, would embody so-called “evolving standards of decency.” And that changes in the social understanding of the Constitution ought to be reflected in, and actually given legal voice, through constitutional interpretation. There are, of course, caricatures at the extremes of these schools. But these two - I would say are the two most popular and credible - current schools of constitutional interpretation.
There is some variation on these themes. I think that the so-called advocates of a “Constitution in Exile,” the notion that the New Deal court in particular, and some of its successors, took judicial liberties with the Constitution. Trying to restore the Constitution to the content and to the style of the pre-New Deal institution is the stated goal of certain advocates in constitutional interpretation. Perhaps at the other end of the ideological spectrum, you see Supreme Court justices becoming more and more receptive to comparative arguments - accepting analogies to the constitutions of the European Union, of India, of South Africa. It’s a practice that has older roots, but has become much more controversial in recent years, as it has been applied in settings such as the death penalty.
Q: Your writings come at this question of how to interpret the document from a unique perspective. You say there are many tools in the toolbox. Can you expound a little bit on that?
CHEN: My own interpretive technique, if you will, is pragmatism to the extreme - if such a thing can be contemplated. I don’t hold any commitment to any single interpretive methodology. I believe that interpretation is the legal equivalent of solving problems. And as in the real world, no one commits himself or herself to a single tool kit for all problems. I don’t believe that lawyers or judges or other interpreters of the Constitution should commit themselves to any one technique. The text of the Constitution is the history of the Constitution, in the sense of the expectations of those who wrote it and ratified it. The history of the Constitution, in the sense of how those who’ve lived with it - have acted under its aegis; and the history of the Constitution, in the sense of the decisions of the Supreme Court and the traditions that they have taken into account - the meaning, the contemporary meaning of the Constitution for the people as they encounter the document today. Perhaps not informed by any of the above, or informed by the vaguest of senses of what is right within the framework of a constitution. All of those factors, admittedly with different weights, and with different priorities, ought to be taken into consideration.
And so, in my approach as a scholar and as an advocate for constitutional outcomes, I adopt a very eclectic, decidedly pragmatic, multivariable and admittedly - perhaps happily unpredictable approach to - it is idiosyncratic, it does have this vulnerability. A technique such as mine is vulnerable to the charge that it is merely a cover for my own preferences. But I believe that any credible scholar, any credible interpreter of the Constitution, and most of those whose interpretations are binding on others, in particular the interpretations of the Supreme Court justices - the more binding your interpretation, the more authoritative your interpretation, is the greater responsibility you have to retain the trust of those whom you purport to bind. And so, it’s the careful - the premium on dedication to craft, to making sure that as a matter of textual interpretation, of historical analysis, of case analysis and doctrinal reasoning, and ultimately to contemporary political needs and to pragmatic realities. The premium on getting right and getting it right at least for this day only, increases as the purported impact of your interpretation rises. It’s one thing for you to say this is my opinion as a scholar - it is another thing altogether to say this is the interpretation I am handing down as a judge or even as a Supreme Court justice. And you know the Spiderman principle applies here “with great power comes great responsibility.” And you have a greater responsibility to get it right. The more people that you purport to bind, the greater force for which you expect others to respect your constitutional interpretations.
Q: I’m curious to hear you comment on that same idea from just a little different direction. I can see an originalist critique this form of interpretation as purely results oriented….
CHEN: I think that is the great challenge in any, in any system of constitutional interpretation. To generate a body of decisions or generate a methodology that is as resistant to - I don’t think there is any such thing as an iron-clad methodology. But to reduce the vulnerability of your methodology to the decisions that you generate to the charge that this is simply a cover for your own political preferences. Now I don’t think it is any accident that those preferring the… to the extent that social values have shifted somewhat leftward over time maybe in some issues to some extent but not on some others. You see people resorting to originalist argument in an effort to cabin what they perceive as leftward drift of contemporary constitutional interpretation. It is not surprising to examine the mirror image of this caricature to see those preferring centrist or left-of-center outcomes being more willing to embrace non-originalist techniques. Especially if they say it is a living Constitution. And social movements - political consensus with enough force - can change the meaning of the Constitution; something that Bruce Ackerman of Yale has advocated. It is not surprising to see political allegiances that lean at least centrally and if not more aggressively leftward - embracing methodological approaches that allow them those preferences to be articulated through constitutional law. The ultimate test of any constitutional methodology, or for that matter of any individual decision, any individual outcome within the Constitution of law, is its persuasiveness. And its persuasiveness on a large number of dimensions as something this complicated, this multivariate. I think it’s impossible to remain committed to a single methodology, especially if your commitment to that methodology is in any respect ideologically motivated. I would prefer for interpreters to articulate their preferences up front, to admit to the world what their biases are and not what their preferences are. And to let others know that any interpretation that now ensues should be discounted in light of all of those biases. “But hey, here is our best effort,” reading the text, the original understating, the practical history, the judicial interpretation, the popular understanding, and the vague philosophical sense of what is good and right in this world, put all together should yield.
Q: Let’s talk a little bit about the 5th Amendment and the idea of what “public use” is and how you would construe that.
CHEN: You ask about the 5th Amendment and in particular, the public reaction to the requirement of the 5th Amendment that private property not be taken except for public use and with just compensation. And it is important to note the 5th Amendment Taking Clause has been incorporated against state and local governments by operation of the Due Process Clause of the 14th Amendment. And so, in the 2005 case of Kelo v. City of New London for instance - one of the more controversial contemporary decisions of the Supreme Court - there is a broad and surprisingly ideologically diverse outcry over a decision of the Supreme Court. That it is constitutionally permissible for a government, state or local government, to condemn property belonging to one private individual for the benefit of typically, and perhaps stereotypically, corporate interest, bent on well, urban renewal or some other kind of economic development. And it is worth noting that there was opposition to this from right-of-center property rights advocates who thought that it was outrageous that the Constitution could be construed in such a Robin Hood way - to allow the government to transfer private property between private owners upon the mere recitation of an economically stated public use. And left-of-center advocates who had a look at the history of so-called “urban renewal projects” and see nothing but what amounts to a form of developmental racism in the implementation of some of these plans - that communities of color tend to be the targets of these projects.
A couple of things are worth noting about this. First of all, what the Supreme Court says, in this one area among many others, is by no means the last word. State governments, through their own constitutions or through ordinary legislation, or through voluntary restraint of individual governments, do not need to push the constitutional envelope to its absolute limits. So here is a very good example: the Kelo decision is one that has generated more bills and more referendum proposals that would cabin state and local governments and would take out of the definition of public use - for local purposes or for state law purposes - the idea that an urban renewal or economic development project could ever constitute public use. But, if you look at the controversies, in addition to the Nealon controversy, one thinks of the Hawaii Housing Authority controversy from a couple of decades earlier - where the concern was that the virtually feudal system of traditional land holding in Hawaii was really choking social and economic development. Through land holding in Hawaii - had to be addressed somehow through the power of eminent domain. I think the idea underlying the Kelo v. City of New London decision was to leave this tool, potentially, in the local government tool kit. Not that the tool necessarily is a good idea. The Constitution, in Justice Scalia’s phrase, doesn’t prevent governments from engaging in folly - in economic, political or social folly. You can do stupid things and still be constitutional. The Constitution is not an all-purpose stupidity check. That’s not its purpose. And it may well be a bad idea to engage in a particular economic development urban renewal project, but it isn’t necessarily unconstitutional. The interesting thing about the Kelo decision is the amount of political energy that was then unleashed and directed toward what I think most constitutional theorists and most lawyers who think about these issues and care about them, would regard as a very positive and healthy response. And that is to say, “Look, this is one issue where the crafting of additional rights, through state law through state constitutions, is something that the political system as a whole, at least for now, would like.” And so you see additional protections for, in particular for residential property owners and voluntary restrictions on a power that the Supreme Court says through the Kelo decision, state and local governments do have. You see a lot of voluntary scaling back and that is an aspect, a lot more generally, of constitutional decision making that doesn’t get much play.
You know it is one thing to say that there is such a right if you - another classic example is that the Supreme Court shortly after Roe v. Wade decided that the public financing of abortions was not part of the core right to an abortion as recognized in Roe v. Wade. Now I find it, under contemporary political circumstances, hard to imagine a state legislature voluntarily paying, with public funds, for a wide range of abortions in a lot of circumstances. But to the extent that the state wishes to do that there is nothing in the federal Constitution that prevents it. Another saline example - the Supreme Court held that inequities in public school finance did not represent a violation of the Equal Protection Clause of the 14th Amendment. Perhaps the most far reaching, arguably devastating decision in the Supreme Court’s history that ordinary people don’t know is Rodriguez v. San Antonio School District. By the same token, what’s happened since the Rodriguez decision in 1973 is three decades of litigation and legislation at the state level aimed at precisely the sorts of relief the Supreme Court was unwilling to give in the Rodriguez decision - mainly the mechanisms for equalizing funding as between wealthy and less wealthy public school districts. And so you see a very healthy process of give and take beyond individual constitutional decisions. It’s a good reminder to all of us that the constitutional decision is frequently the beginning and not the end of a political discussion.
Q: That’s a great point. Can you talk a little bit about the sense in Kelo – Justice Thomas seemed to indicate that public use should not absolutely be given over to legislatures to decide – that there’s a way to define what it meant in the Constitution itself. What do you say about that?
CHEN: Well I think there is more. Generally there is an ongoing tension in constitutional interpretation. And Justice Thomas’s position in Kelo is merely one of these ongoing tensions between the political branches and the judiciary - in particular when it comes to interpreting admittedly open ended, undefined phrases. The idea of deference to a legislative - determines a legislative or executive interpreter of a phrase in the Constitution. The idea, for instance, that Justice Thomas says, “Well, I want more not less judicial…” Oh how should I put it, not so much power but judicial - I don’t want to say restraint, that is a different phrase. The idea that judges ought to impose greater limitations on their political counterparts is one that goes deep into constitutional history. This is a recurrent theme. I doubt that Justice Thomas would want the federal judiciary in its interpretation of due process to impose meaningful, concrete, judicially enforceable restrictions on how state, local and federal decision makers would regard the due process of the law with respect to economic rights. So that the idea that there would be meaningful judicial review of wage in our legislation, or of legislation designed to affect workplace safety or the rights of workers to organize, should be very thoroughly and, many cases, fatally reviewed by the judiciary. Notice how that contrasts with this idea that public use ought not to be completely left to individual legislatures to determine: “Oh yes, we have some plausible basis. Perhaps not a convincing one - but hey, you have to defer to us. We are the ones who are elected.” You see this… what I would consider an eternal tension between, on one hand, wanting to defer to the expertise and political legitimacy of elected politicians - whether they be legislatures or executive officers.
One thing that those who are elected have over judges, without a doubt, is superior political accountability. You can actually vote them out in a way that you can’t directly vote out a panel of sitting judges. There’s also a sense in which to the extent that they were elected for a reason. They were elected because they know some things. And there is a very realistic expectation that the judicial process being at the … being non… it’s not initiative... It’s non-initiative-taking setting, courts can rarely engage in their own investigative processes. On the other hand, Congress or a state legislature is able to - can take into account an enormously wider set of considerations. It can subpoena witnesses. It doesn’t have to wait for a concrete case or controversy to arise. It can take a proactive not a reactive approach. So, there is a sense in which the fact finding capacities of the political branches is far greater than that of the judicial branches. And that, as a result, the expertise as well as the legitimacy of the political system, as opposed to the judicial system, is just that much greater.
By the same token, it is precisely these traits of the political system that we distrust. That they are - that the Constitution itself is not a terribly democratic document. It evinces a great distrust of mobs and of politicians elected by mobs. It doesn’t believe that pure democracy is the right way to go. There are any number of provisions, most notoriously perhaps the electoral college, designed to insulate the ultimate decision making process from the direct participation of the rabble. And with the idea that unelected judges are in a uniquely privileged position to protect interests that are systematically trampled, minority rights in particular comes to mind, you have a countervailing trend in constitutional theory and doctrine favoring aggressive judicial intervention. And so you see Justice Thomas for instance, favoring strict scrutiny of all racial classifications - even those that a legislature might see fit to classify as benign. He has no confidence in that, and therefore seeks, in accordance with his view of the original meaning of the 14th Amendment, very, very strict judicial scrutiny of racial classifications - regardless of how they might be intended. And so you’ll see that much of constitutional doctrine represents an exercise in calibrating the spectrum between extreme judicial deference on one hand, and judicial scrutiny, very tight judicial scrutiny, on the other hand. And all it is… a bunch of constitutional doctrine represents a choice of one of three recognized models of judicial review. Strict scrutiny at one extreme, rational basis, very deferential review at the other extreme. And some kind of intermediate, what my colleague Michael Stokes Paulson calls “medium rare scrutiny” in between - intermediate scrutiny. And much of the constitutional document consists of applying one of those three or some vague… well there is just one basic Equal Protection Clause, says Justice Stevens. There is only one Equal Protection Clause and one standard review. We simply have different ways of articulating standard review and different circumstances. And in that sense, it becomes a race to determine which triggers - what are the factors that should trigger more lenient review? What are the factors that should trigger more strict review?
Q: The Commerce Clause –can you talk a little bit about that? I’m curious to hear you talk about, first of all - just a general snapshot of how it’s interpreted.
CHEN: Well, it can start with a… the big picture about the Commerce Clause is that the Commerce Clause has actually two components to it. There’s a latent or dormant component as well as the active component. The dormant component, which has become also a source of constitutional controversy - albeit one that’s flown under the popular radar - is one that allows federal courts to review, and in many instances very robustly strike down, a wide variety of state and local laws on the theory that they interfere with the great American common market. The free trade among the states is something implicitly guaranteed by the Constitution. It is highly controversial. And Justice Thomas, and to a lesser extent Justice Scalia, have made noise about trying to opt out of that traditional judicial power. Which was described by Madison among others as perhaps being more important, Holmes suggested this as well - that it might be more important to be able to strike down a state’s laws for these reasons than to exercise a significant, meaningful, judicial review under the positive side of the Commerce Clause.
What I mean by the positive side of the Commerce Clause – the Commerce Clause, after all, is an authorization to Congress. "The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
And over time right there… the very limited number of enumerated powers in Article 1 of the Constitution as supplemented by some of the later amendments - 14th Amendment, Section 5 adds a power to this list. But it is a very, very limited tool box. And if you look at the vast range of things in federal legislation today, the single most important power just measured in terms of sheer number of words and sheer number of legal provisions, is the power to regulate commerce. Now, if you believe that the federal government, as an ideological matter and as a matter of political preference, has gotten too big. And that you would like to curb the reach of the federal government, presumably to have no government at all or at least to return these things to state and local jurisdiction, then your constitutional theory might lead you to conclude that a proper way of interpreting the Commerce Clause is to limit its reach.
And starting in 1995, the Supreme Court brought back what had been thought, in the wake of the New Deal, to have been a lost art in constitutional adjudication - namely that of subjecting acts of Congress, purportedly passed under Congress’ power to regulate commerce, to sometimes withering review. So that a Congressional law, for instance, purporting to regulate gun possession in… within a certain distance of local school zones was thought to be too extensive a use of the Congressional power of the Commerce Clause. More recently, of course, the power to regulate medical marijuana at least where grown for personal use as opposed to further resale, might have been thought to exceed the reach of the Commerce Clause. Now, interestingly of course - and one controversy the Supreme Court says that Congress can’t regulate gun possession within a striking distance of a local school zone. On the other hand, Congress may regulate the possession of medical marijuana, the possession and growth of medical marijuana for personal use. So, that is a very active, and I believe, still unresolved area of contemporary constitutional interpretation. But notice that the political consequences of this dispute are immense. Much of the entire apparatus of what we understand to be federal legislative law, federal legislation of the entire United States code, would shake to its foundations if an extremely tight definition of commerce and what Congress can do to regulate commerce were to be adopted by the Supreme Court.
A very saline example of this is the Endangered Species Act. It has come up on multiple occasions, or the relationships of the Clean Water Act to bodies of water that are not navigable in the historic sense, and whether regulation of water quality in those circumstances effects commerce in enough of a way to warrant conventional intervention. The Endangered Species Act, to return to that setting, is a statute that protects many species that have admittedly no commercial value. How can that statute, at least as applied to a spider in a cave or to a nectar-sucking flower-loving fly near Riverside, California, be considered in any meaningful sense to be an exercise of Congress’ power to regulate commerce? My own position on these controversies I have made very clear in my own writings. I think Congress emphatically has the power to protect the environment, including components of the environment, individual species or ecosystems that have no credible economic value, as part of its overarching power to regulate commerce among the several states to manage the economy of the United States.
Q: In terms of where Raich might take this question – I’d be interested to see … There seemed to be a ten year experiment starting with Lopez…And then suddenly you have Raich. Where do you think the Court is heading with this? Or is this just an aberrant decision?
CHEN: Well the question is whether Lopez is the aberrant decision, or Raich is simply a signal that, that well we… Milton - we said of Lopez, “but we don’t mean to undo the entire modern apparatus of the welfare state.” And it will be curious to see… there are for every case that you point in one direction, there is a case pointing in the opposite direction. And you say, well it may well be the case in that sequence - to speak at a very, very fine level of doctrinal detail - that might have the longest term impact is neither Raich nor Lopez but rather a case, a 2001 case, called The Solid Waste Authority of Northern Cook County Against the Core of Engineers having to do with the reach of the Clean Water Act as applied to water courses whose only connection to interstate commerce is not through navigation as is historically understood, but through the contact of migratory water fowl. And there the Supreme Court held, rather surprisingly in the body of Clean Water Act jurisprudence that has always been solicitous, to that point, of federal assertions of jurisdiction - and imposed an interpretive role with respect to the reading of the federal statutes. And as a result, this is a quasi-constitutional doctrine that might have much deeper reach. The idea being this: if you have a constitutional concern that Congress not exceed its reach of its commerce power as was embodied in Lopez
, then it might behoove you to read federal statutes with an eye to avoiding that problem in the first place. And so the idea is to have a preemptive interpretive strike against the reach of federal statutes - many of which are themselves vaguely written and committed to administrative discretion. If you use this principle to curb the reach of the administrative discretion that the courts are themselves willing to tolerate, that is a back door way toward restricting much of the reach and limiting the impact of federal regulatory legislation, without calling it explicitly an exercise in constitutional interpretation. So you get to have your cake and eat it too. You get to engage in a judicially managed campaign to restrict the reach of federal legislation and escape the taint of being called judicial activist. It’s a wonderful technique. So I do think that is under the radar kind of interpretive activity that is less likely to draw public attention - because it is not explicitly constitutional, but as a practical matter, will have enormous effects on a large number of statutes. And the Clean Water Act controversy and the Solid Waste Authority case is merely one of the numerous applications for this principle. Yeah, and it’s unlikely someone focusing on constitutional law as constitutional law would ever touch that. But if you think about it, the idea to say, “Oh, it is not just what the Constitution says. We almost have an obligation to avoid making constitutional decisions,” and you think about it, that is a sound instinct. Constitutional decisions are very hard to overcome except by a constitutional amendment or by further adjudication. And so if you have a housekeeping rule that says, “Whenever possible decide on some basis of the Constitution,” and you have a housekeeping rule that says, “When reading the statute, try not to read the statute as to bring up an unnecessarily contentious constitutional issue. Don’t strike down statutes unless you have to.” Then you get into the business of reading statutes in a very, very narrow way that might achieve, in practical terms, exactly the outcome you want. Because it is very hard for Congress to go back and amend all those statutes without engaging the Supreme Court in a game of what would be called contemporary Lochnerism. You would not ask the Supreme Court to strike anything down. You are simply saying, “Oh, we are doing this in the name of avoiding of striking down statutes.” It’s a really, really politically powerful tool in the hands of those who would prefer to see limiting the reach of Congress under the statutes that have passed since the New Deal.
Q: Before we were rolling, you were talking about the Wickard case. Can you tell us about the history of what that is?
CHEN: Wickard v. Filburn. I like to call it the Filburn case. Sure, it is one of my favorite cases. I devoted a lower view article to this problem, I believe back in 2003-2004, called “Filburn’s Legacy.” Wickard v. Filburn involves the 1938 Agricultural Adjustment Act, which, reduced to its essentials, imposed production restrictions on certain core agriculture commodities - in this case wheat - as a response to the agricultural crisis of the Great Depression. The idea was to raise commodity prices by suppressing production. Roscoe Filburn, a generalist farmer - he was not a wheat-planting specialist. He had farm animals and a wheat-growing operation as part of a general family farm in Eastern Ohio. Well, Roscoe Filburn proceeded to plant more acres than his participation in the wheat program would have permitted. His defense was that since the wheat in question never left his farm, it could not be treated as interstate commerce. So, if you think about this, it is a valuable predecessor of the Raich controversy. And the court in Wickard v. Filburn held that well, actually, it is not farmer Filburn’s individual contribution, but rather the aggregation of all contributions by persons similarly situated to farmer Filburn. So it’s not farmer Filburn, but the millions of other family farmers who are feeding wheat to farm animals. And I actually did some historical research and discovered that somewhere between 40 and 50 loaves a day would have been the amount at stake. The equivalent of 40 to 50 loaves a day would have had to have been the subject for home consumption. It wasn’t home consumption in the sense of farmer Filburn being a real aficionado of home baked bread, he was feeding farm animals. And what do you suppose all of those chickens and eggs and gallons of milk were going to? They were being sold on the market. And the wheat that farmer Filburn fed his farm animals was substituting for wheat which would otherwise have been purchased on the open market or other feed grains that would have been purchased on the open market. And that was the commercial effect that Congress was trying to regulate through the Agricultural Adjustment Act. Now fast forwarding and uniting this with Raich…
That – let’s see it was Mary, Tommy - I can’t remember Roscoe’s wife’s name, but Mr. and Mrs. Roscoe. So the difference between Wickard v. Filburn on one hand - the 1942 decision and the more recent Raich decision - Raich v. Gonzales decision involving medical marijuana. Purportedly, one of the arguments was that the amounts at issue in Filburn were actually far beyond purely personal consumption. But given the 40 to 50 loaves of bread that the wheat represented per day - there is no way but to characterize the Filburn operation, albeit modest, as a commercial operation that fell sufficiently within the stream of interstate commerce to warrant Congressional intervention and federal regulation. The medical marijuana case, purportedly, at least in the view of the losing side, should have been distinguished from Wickard v. Filburn because the amounts of marijuana being handled by Angela Raich and her counterparts were strictly personal. Ultimately, the Wickard v. Filburn rationale prevailed. The idea is, again, that it is not the individual transaction, but rather the aggregate effect of individual transactions and individual actors that Congress is entitled to take into account and ultimately to regulate.
Q: Can you clarify something for me? Namely, the participation of Filburn in this program – can you talk about that? First of all, was that an issue affecting the outcome?
CHEN: It was - farmer Filburn was not required - he was not compelled by federal law in any technical sense to take part in the Agricultural Adjustment Acts program for wheat. The idea for marketing - he accepted a non-recourse loan that was intended to prop up the price of wheat. But the exchange for accepting a federal loan - that’s the way that non-recourse works - has the effect of guaranteeing a minimum price for your crop - was to accept a limitation on his freedom to plant and his freedom to harvest. And one of the issues of the case which is not terribly controversial, is that it is not a violation of due process for the government to regulate that which it subsidizes. The government, having offered Filburn, and Filburn having accepted what amounted to a price subsidy for his wheat - he could hardly complain as a matter of due process that having voluntarily participated in the program that he should now be held responsible for complying with the acreage limitation. What he wanted was the ability to say, “Well thank you very much for the subsidy. Now I would like to shift my wheat production.” Which if I were to sell in the open market would be clearly within the scope of the Agricultural Adjustment Act. Undeniably, I would have no constitutional leg to stand on. If I moved the wheat outside my farm, but now I would like to go ahead and move the wheat from an overtly regulated market, mainly that for wheat, to an implicitly unregulated market mainly that for eggs, and poultry and dairy products - it’s a farm on which chickens and dairy cows were raised. So that component of it as a matter of understanding that case, is part of the constitutional discussion with respect to the question of Commerce Clause, powers of Congress and to the reach of Congress, into the things such as production agriculture, medical marijuana and the like is ultimately not a very significant factor.
Q: So the decision would not have reached Filburn, say, if he had purely produced…
CHEN: Well, first of all, he wouldn’t have fallen within the Agricultural Adjustment Act because he… it was at least that particular program - some other programs, tobacco, a vote of the industry itself would be binding on each individual member - but the wheat program was not so structured and he could have opted not to participate. Now, the realities of agricultural economics being what they are, non-participation in a perfectly competitive market whose producers yield minute amounts in the big scheme of very fungible, very generic product is, practically speaking, impossible to operate independent of a program of that sort. Although, in recent years we have seen some 1st Amendment controversies over producers of beef and of mushrooms among other things, and of tree nuts and fruit, trying to opt out of generic marketing programs.
Q: In terms of the way the Commerce Clause is debated … you talk to some originalists, and they will say that from the 1930’s on, that there was an activist bench -
CHEN: An activist bench that engaged in activism by refusing to engage in judicial review.
Q: Another way of looking at this whole change with the Commerce Clause is that the economy as a whole has gotten much more integrated. So what is your personal opinion about the expansion of the Commerce Clause over the course of the 20th century? In terms of whether you feel it was appropriate or not appropriate?
CHEN: I think it is one of the truly important and truly correct developments - constitutional interpretations the United States in going further back. I mean I would say the single most traumatic lifetime an American would have had would be roughly 1860 to 70 eras to roughly 1930, the eve of the Great Depression. The Great Depression is a terrible time - but you go from a country that is in Civil War, where a significant portion of the population is enslaved for no reason other than the color of their skin and the geographic origins of their forbearers, to a country that despite having fallen on hard times, in just a few short years will literally save the world from itself. A country that goes from a largely agrarian country bent on national suicide, or at least to this absolutely destructive process of divorcing one region from another, to an integrated country where technology has gone hand-in-hand with an incomplete but very significant measure of social liberation of many, many groups - opening its shores to a much broader range of populations. And where we are now roughly 70 years removed - I dare say that a person living today would recognize the United States of the 1930’s - and for all its warts, be willing and able to navigate it in a way that a person in the 1930’s could not even remotely understand, let alone accept the United States of the 1860’s. And to think that the United States of the 1860’s is a country that has to pay the price for the mistakes and unfinished business of the founding generation - the generation that assembled the Constitution in the 1780’s and 1790’s.
If you look at it, the United States, in terms of constitutional history, fits nicely into little life spans. There is a life span of someone born roughly contemporaneously with the Philadelphia Convention to the opening of Civil War. From the Civil War to the Great Depression and the New Deal is another lifespan. And now we are roughly seven decades removed from that constitutional revolution. Looking back at it, I think each constitutional revolution that can be associated with each of those periods: the Founding itself and the Bill of Rights; the Civil War and the 13th, 14th and 15th Amendments; and the reconciliation of the Constitution as a whole, including its original provisions having to do with Congressional power, with the United States as an undisputed economic and military super power, in a very complicated interdependent world. I regard the New Deal constitutional moment as an enormous success, not an unmitigated success. There have been disappointments, there have been oversights, there have been omissions, there have been missteps along the way as there have been in every stage in constitutional history. But as a constitutional scholar and as a American just looking back at what the Constitution has been able - what the Supreme Court and other interpreters of the Constitution have been able to accomplish since the New Deal - I look back at it as a largely triumphant moment and vindication of what this Constitution represents and what the United States under this Constitution has been able to accomplish over its history.
Q: I’d like to turn our discussion to another area – and that’s the 2nd Amendment. If you can talk about just the language of the amendment, first of all.
CHEN: O.K., you would like to turn our attention to the 2nd Amendment. This is one of those instances in fact, all of those instances, in which to resort to the text of the Constitution, and I am going to take the liberty to actually reading the ceremonial reading of the 2nd Amendment: “A well regulated militia being necessary to the security of the Free State the right of the people to keep and bear arms shall not be infringed.” O.K., so the question is what this provision of the Constitution actually protects. Now it is interesting the Constitution speaks very distinctly of the militia on one hand and soldiers on the other hand and the armed and naval forces of the United States. You must see the 2nd Amendment in the larger context of the 1787 Constitution and the Bill of Rights and the Founding period.
The Founders were paranoid of standing armies. They thought that having a standing army of the sort that the great European powers had developed was the single biggest threat to liberty. And thought that the idea would be to encourage the United States to defend itself – yes, to some extent with a standing army - that’s what the reference of the commander-in-chief is in Article 2 of the Constitution. The commander-in-chief of - interesting, not only of the armed and naval forces but also of the militia, and brought into the service of the United States. So what is this militia? Well, the militia was thought to be armed citizens organized under state law. And so that the forces that contested the Civil War, for pretty - you know in historic terms - pretty decent expression albeit with vastly more devastating fire power. Seven decades after the Founding, to express the Civil War militias, the armies, what we call armies, fit this model much more. The idea of not having a standing professional class of soldiers, but rather to have citizens who would be willing and able to rise to the defense of the people.
Now, as a result of this history of the Constitution’s split personality between the militia on one hand and armed services on the other hand, there have been two large schools of thought about the meaning of the 2nd Amendment. One school holds that the 2nd Amendment guarantees a personal right, individually enforceable right, to keep and bear arms - emphasizing the right of the people. Again, a different school emphasizes the presence of the word “militia,” “well regulated militia” is really what is being protected by the 2nd Amendment. And so it is at best a state right, not to be asserted, let alone enforced, by an individual in question of organization. Now, I have an idiosyncratic view of this particular provision. I think that the question of militia ought to be viewed with respect to Article 1, Section 8 - references to Congress’ power to regulate the militia. There is actually a pretty extensive set of not one, not two, not three, but four distinct powers that Congress has over the militia. The original Constitution speaks of the militia being under the command of the president’s commander-in-chief. The Bill of Rights in the 5th Amendment you know, actually withholds some of its protections - not only from only the armed services, but also the militia. And the Supreme Court has subsequently held that 6th Amendment rights such as authority to counsel are not to be extended to the extent that the 5th Amendment - anytime the 5th Amendment withholds that right, we better edit that about the 6th Amendment. I am not sure I got the 6th Amendment right there, but 6th Amendment rights are conditioned on the extent to which the 5th Amendment right is extended only to persons outside the armed services and outside the militia.
And I like to look at the 2nd Amendment and its reference to the militia in the larger constitutional history of the United States, which of course includes the Civil War. And the 14th Amendment the portions of the 14th Amendment that almost no one looks at…we obsess as constitutional scholars about Section 1 and Section 5 of the 14th Amendment. Mainly the section that defines citizenship, that extends the rights of equal protection, due process and privileges and immunities of citizenship, national citizenship. And Section 5, which gives Congress legislative power to enforce all of the provisions of the 14th Amendment. But Sections 2, 3 and 4 of the 14th Amendment take aim at the notion of insurrection and rebellion and refuse to allow the recognition of debts - refuse to allow the holding of high office within the United States government - and would reduce legislative representation to the extent of participation in rebellion and insurrection. One of the interesting things that I think has gotten overlooked in the constitutional scholarship, is that where as the original framing treated the standing army as the real threat to liberty - the experience of the civil suggests strongly otherwise. That it is our militia men, loyal to states as opposed to the federal government, that posed the real threat. And the history of the Civil War as codified, almost like an insect in amber, in the now forgotten but then thoroughly controversial and hotly debated provisions of Sections 2, 3 and 4 of the 14th Amendment - in retrospect that’s what that was about was really cutting back on the idea of the militia and our militia of being the real bulwark of armed liberty in the United States.
So with that in mind I find it very, very hard to regard the Second Amendment, which itself was stated as a right of the states against the federal government to be incorporated into a 14th Amendment, which overall is not meant at all to reduce the power of the federal government vis a vis the states - but rather of curbing the power of the states by making them honor the individual rights of their citizens. It is a terrible misfit. I don’t see how the 14th Amendment can be the instrument by which a right to bear arms for purposes of checking the federal government can now be interpreted as a state right that can somehow be extended to individuals and individuals against their own states. It just doesn’t fit the text of the Constitution or the subsequent history of the Constitution. In fact, in my most outrageous moments - so much so that I have had to do this through a pseudonym - I might even think that the 14th Amendment has implicitly repealed the 2nd Amendment. That given the history of the Civil War and our popular understanding of it as codified, most importantly, not just a popular understanding, but as codified in the text - the historic meaning of the 14th Amendment really suggests that they are after the idea that an individualized, personally enforceable right to carry arms - not only a right enforceable against federal government, but a right enforceable against state and local governments - strikes me as unfaithful to the Civil War Amendments and to the constitutional experience that the United States had as a result of its Civil War.
Q: (inaudible)
CHEN: So your question is about judicial decisions. Judicial decisions interpreting the Second Amendment, and there aren’t very many, judicial decisions interpreting the 2nd Amendment, and even more generally, the militia clause’s of Article 1, Section 8 are very few in number. In addition to the Miller 1930’s case involving federal regulation of machine guns in which, you know the Supreme Court very cryptically in upholding the statue, nevertheless very cryptically, referred to earlier cases and saying “well there is no real problem here.” O.K. what is that supposed to mean? Does that mean that there is no personal, enforceable right? Or that there is a personally enforceable right - it’s just not one that can be asserted against that particular machine gun statute?
One of the earlier cases, Cruikshank, involved an absolutely horrifying episode in American history where white supremacists clashed and ultimately slaughtered a large number of freed men and civil rights sympathizers in, I believe Louisiana, in the Reconstruction period. And they actually had the temerity to assert a 2nd Amendment defense to prosecution for what is now and even then was recognized as a severe violation of civil rights. The cases simply don’t resolve the question cleanly. O.K., this is why this remains a serious question. And one very obvious question that I think ordinary non-lawyers might ask is why hasn’t the Supreme Court taken any of these cases? Emerson, decided roughly a few years ago in 2001, was one of those cases the Supreme Court elected not to grant their certiorari. It did occasion the Ashcroft Justice Department reversing what had been long standing federal policy. The Justice Department therefore had said that it did not endorse the individual rights interpretations of the 2nd Amendment - the Ashcroft Justice Department did. And as far as I know, that remains the position of the Justice Department to this day. And so what we have is partisans in this debate making assertions and arguments in the absence of meaningful, clear guidance from the Supreme Court. And that’s a very, very stark difference between this area of constitutional law and any others where the Supreme Court guidance is comprehensive and arguably exhaustive. You know, the contrast between 1st Amendment jurisprudence and 2nd Amendment jurisprudence is something to behold.
Q: I’m curious about this fact – when you look at a lot of lower court decisions concerning the 2nd Amendment – they uphold the collective rights viewpoint. Then you look at recent perspectives from law school faculty …
CHEN: Well you know my former colleague Dan Farber once said in a piece called “Gresham’s Law of Legal Scholarship,” stating received, even correct wisdom as a matter of legal doctrine, you know what it takes to win in court, buys you nothing as a scholar. A scholarship rewards for good or for ill the flamboyant, the wrong, the outrageous, so you get no points for saying every court has rejected the individual rights interpretations of the 2nd Amendment in favor of the collective rights interpretation and that’s the way that it should be. Think of how boring that sounds. Who would vote for a tenure case premised on that? Right, on the other hand, if he had said “well the courts have gotten it wrong the entire time. There is in fact a 2nd Amendment personal right to keep and bear arms under the 2nd Amendment.” And even though that frightens my liberal bones out of my skull, I think this is right. Or you can say “well the legal academy doesn’t value right-of-center conservative view points. Here’s one respect in which they have not. I assert it, see how diverse and radically clever I am.”
That is a dynamic, I think, that is inherent in the academic priesthood. We are given an opportunity to say outrageous things. In fact, we are told our contribution to society is to say outrageous things without any accountability. So this is one respect in which actually the fact that you are saying things without judicial guidance, without any meaningful restraint by the court system, is something that can actually have a negative impact on the credibility, let alone the correctness, the ultimate substantive correctness, of legal scholarship. And I find it remarkable. It’s a position that cuts across ideological lines. Right-of-center, centrist, and left-of-center legal scholars, for the most part, have a consensus view on this: the 2nd Amendment does actually protect an individual right. Of course this is a view that is not likely to win in court. And it makes you wonder, I think. In many ways, we legal academics, on account of either having no clients or misperceiving who our clients really are, namely in this instance, our clients of course as teachers our students and alumni, our clients as scholars. Well our client really is “Science” with a capital “s.” “Knowledge” with a capital “k.” All right, we are trying to determine what the right answer, at least for now and unruly circumstances, should be. And hopefully we get the courts to be persuaded by our analysis. And to the extent that they are consulting us as well, as the arguments of litigants, maybe will help our legal system reach those answers. Uh, uh. What you see is an exercise, as is true in many other areas - I wouldn’t blame 2nd Amendment jurisprudence or 2nd Amendment scholarship uniquely for this - so much of what goes on in law schools is aimed at scoring parlor game points and less at scoring points in court where things actually matter. So, to the extent that that’s a criticism of myself and my profession, I don’t mind letting it stand. I think it is entirely justified in this particular aspect of constitutional scholarship and perhaps more generally.
Q: In light of that – as you’ve said, you’re training the next generation of people going out and interpreting this document – creating law for the future, or shaping our understanding of the law. What do you want them to leave this institution with?
CHEN: Wow. You know, I want them to leave this institution with a respect for the power of the authority, the majesty of tradition, and the real practical impact of constitutional interpretation. This stuff matters at the end of the day - whether people are enslaved or not. I mean, just to pick the most egregious, incredible instance of constitutional misinterpretation – the Dred Scott case is the outcome of the Supreme Court decision - you know that single case is thought to have sparked the Civil War. It made it clear that there is no legal method by which the slavery question could be resolved - therefore you have to resort to arms. You look at the consequences in all of these decisions and I want people, more than anything else, to appreciate that what they are doing matters. We ought to treat law not as a parlor game, not as an intellectual exercise in naval-gazing, but rather as an applied science - a practical enterprise where things change and they change for good or for ill precisely because of the decisions that we make. And so what I want my students and what I want my readers to walk away with in every single instance, is this appreciation for how important the craft is and how things that might be considered boring or dull or just technical really matter. Attention to the procedure, attention to the sources of authority, attention to persuasiveness.
And also I think I want a sense of humility. I don’t think Roger Taney went about deciding Dred Scott hoping to destroy not only his own reputation but also the lives of six million of his countrymen. But that was in fact what happened. And you translated what would have been one of the great careers in American law into one of the tragic stories in American law. Again, it is an extreme example, but I want everyone to approach this with a sense of, “Wow, I could have easily been Roger Taney, even with no fault of my own.” It is not what we wish sometimes that comes through. So be careful, be humble and understand that every answer that you come up with may be wrong. I have had to write today, regret tomorrow and renounce mañana on more than one occasion throughout my career and constitutional controversies are no exception. And that’s true not just for me, a scholar with no real authority - but also for lawyers who represent real clients and for judges and justices and legislatures and presidents who have to make constitutional decisions that matter. That’s what ultimately I want - my students and my readers to understand these things matter. Go about it carefully. Go about it with humility, and hope with all your might that you get it right.
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