Remembering what we have lost… thoughts while looking at the embers of the Constitution
This is a follow-up to See the last glimmers of the Constitution’s life…, suggesting that the euphoria is undeserved about the Heller decision affirming our right to bear arms (see Zenpundit for a thoughful example). Our political rights — the ones limiting government’s power, focus of the Constitution and Bill of Rights — peaked with the battles from 1930 – 1969 over the First Amendment (freedom of the press) and (far more important) the Fourteenth Amendment (equal protection).
This period also saw expansion of government and increased focus on equality over liberty — which have inevitably slowly rotted away the foundations of our Constitutional regime. In return we have gained greater personal autonomy. Although on our way to serfdom, we can obtain contraceptives and abortions while practicing a wider range of sexual activities. Some think this a fair trade.
For a powerful analysis about one aspects of the Constitution’s fading influence, see “Lessons for gun rights supporters from the property rights experience” at The Volokh Conspiracy (26 June 2008). Too rich and detailed to be properly excerpted here, I most strongly recommend reading it. Understanding the fading away of property rights in America (or rather, one aspect of this) is an antidote to the euphoria about the Heller decisions about the right to bear arms. Here are snippets, to encourage you to read the Volokh Conspiracy post.
From the 1930s to the 1980s, federal courts almost completely abandoned the protection of property rights, with the important exception of requiring “fair market value” compensation for complete physical occupation of property by the government.
During that time, the courts allowed property to be condemned for virtually any reason that government officials chose to give (despite the Fifth Amendment’s requirement that property can only be taken for a “public use”), and also held that virtually any regulatory restriction on property rights short of complete physical occupation did not count as a “taking” that requires “just compensation” under the Takings Clause. One can tell a similar story about the federal courts’ approach to the Second Amendment during the same period.
Since the 1980s, the Supremes have issued several decisions that expand protection for property rights in various ways. Even Kelo v. City of New London was an improvement over previous precedents.However, the net result has been only a slight increase in genuine judicial protection for property rights. Although the Court has trumpeted its new-found respect for property and even emphasized in Dolan v. City of Tigard that it no longer considers property rights a “poor relation” among constitutional rights, the actual results of its decisions belie these rhetorical pronouncements. For the most part – as far as the Supreme Court is concerned – it is still the case that government can condemn property for virtually any reason, and still true that property owners can’t get compensation for all but a few of the most extreme “regulatory takings.” The reasons for this outcome are instructive, as they apply with equal force to gun rights. …
I. The Ideological Split Over Property Rights on the Court
With very few exceptions, the effort to strengthen protection for property rights was categorically opposed by the Court’s liberal justices. Any property rights case that got to the Court almost starts with four guaranteed votes in favor of the government. This has two important effects. …
First, any division in the ranks of the conservative justices is likely to be fatal for property rights in the case at issue. …
Second, and perhaps more important, it is extremely difficult to establish strong protection for any constitutional right if such protection is supported by jurists on only one side of the political spectrum. …
II. Implications for Gun Rights
… As with property rights, the ideological division on the Court also leaves any gains vulnerable to future reversal in the event that a Democratic president is elected. The liberal justices’ opposition to gun rights is also shared by the vast majority of liberal judges on the lower courts. …
However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn’t enough. If the scope of the right is defined narrowly by courts, recognition won’t mean much in practice. The history of constitutional property rights is instructive in this regard.
I. Recognizing Property Rights Without Actually Protecting Them
Unlike in the case of the Second Amendment right to bear arms, the Supreme Court has always recognized that the Fifth Amendment’s Takings Clause and other property rights provisions in the Constitution protect individual rights. However, since the 1930s, the Court has defined the scope of these rights so narrowly that they get very little protection in practice. …
… As a result, the Court still lets government condemn virtually any property for virtually any reason. In theory, there is an individual right here; in practice, not so much.
… Thus, property owners have little or no real protection against regulatory takings – despite the Supreme Court’s recognition of an individual right.
II. Implications for Gun Rights
… In sum, judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right. It would be a big mistake to assume otherwise.
Update: Another cautious voice on the Heller decision
“Winners’ Test – The Supremes’ Gun Ruling“, Glen Reynolds (the “Instapundit”, Professor of Law at the University of Tennessee), New York Post (27 June 2008) — Excerpt:
I confess that I was one of the Second Amendment scholars who doubted that there were five votes on the high court to support an individual-right view of the Second Amendment. I’m happy to be wrong about that, but there were only five such votes – demonstrating how narrow the margin was, and how out of touch the court is with the American public, which believes the Second Amendment protects an individual right to arms by a 3-1 margin.
… But winning in the Supreme Court is just the beginning of the story. Even the biggest civil-rights victories have taken years to percolate through the lower courts, often in the face of foot-dragging or outright resistance from lower-court judges, states and municipalities.
Brown v. Board of Education declared racial segregation unconstitutional in 1954, but it took a decade or more of slogging to make its promise bear fruit – and even then Congress had to give things a boost by passing the 1964 and 1965 Civil Rights Acts.
By contrast, in the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts. Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling – and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”
The Commerce Clause is Article One, Section 8 of the US Constitution: “Congress shall have the power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” For some examples of the Commerce Clause, see “Pot Luck – A victory for federalism“, Jacob Sullum, Reason magazine (19 December 2003).
Summary: results of the Heller decision
- Lower courts might impede or prevent enforcement of this ruling.
- State and local governments will administratively render it ineffective.
- Changes in the Supreme Court’s membership will lead to it being restricted in scope, and eventually overturned.
Our regime depends on love of freedom and the foundation of our freedom — The Constitution. As those things fade in our hearts no Supreme Court decisions can help. They are just milestones — good or ill markers on the road — to the end of our regime.
What comes after that will show the true character of the American people. The Constitution was an improvement over the Articles of Confederation. Will we learn from this, so that the next regime improve over our current one?
Please share your comments by posting below (brief and relevant, please), or email me at fabmaximus at hotmail dot com (note the spam-protected spelling).
Other posts about America’s new political order
- Forecast: Death of the American Constitution (4 July 2006)
- The Future of America – Why wait? Read tomorrow’s news … today! (part 2) (17 July 2006) — Some reasons why the Constitution is dieing in our hearts.
- Diagnosing the Eagle, Chapter III — reclaiming the Constitution (3 January 2008)
- The Constitution: wonderful, if we can keep it (15 Feburary 2008)
- Congress shows us how our new government works (14 April 2008)
- See the last glimmers of the Constitution’s life… (27 June 2008)
Even more important, do not forget the good news about the American experiment.