Showing papers by "Nelson Lund published in 2003"

Federalism and the Constitutional Right to Keep and Bear Arms

Abstract: Until recently, the federal courts agreed that the Second Amendment protects the interest of states in maintaining their own militias. In United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit rejected this consensus, and held that the Constitution protects a right of private individuals to keep and bear arms. The fifth circuit's position is more plausible than the consensus view, and the arguments for treating the Second Amendment as a kind of federalism device are weak. A different set of federalism issues is raised by the prospect that the Supreme Court might adopt the fifth circuit's position, and then take the next step of applying the Second Amendment to the states through the Fourteenth Amendment. Finally, Emerson shows how certain technical legal doctrines that protect the dignity of he states can operate to strengthen the federal government's ability to undermine protections afforded by the Second Amendment. Copyright 2003, Oxford University Press.

Rousseau and Direct Democracy (with a Note on the Supreme Court's Term Limits Decision)

Abstract: This contribution to a symposium on direct democracy is devoted primarily to exploring Rousseau's modification of the natural rights liberalism initiated by Hobbes and Locke. Although Rousseau may not have had a large direct influence on American political institutions, he has a kinship with certain important dissident or subdominant strains in American political thought, such as the Anti-Federalists and our contemporary communitarians. To the extent that these elements of our political culture are worth taking seriously, Rousseau's greater depth of thought may help us to understand them better, and perhaps better than they have understood themselves. After examining the theoretical critique offered in Rousseau's most openly philosophic work, the Discourse on Inequality, the paper argues that the Social Contract is not so much an effort to establish the true basis of political legitimacy as it is an effort to show why and how legitimacy is an inadequate criterion for evaluating political institutions. The theoretical issue involving the legitimacy of representative legislatures illustrates Rousseau's approach. A careful examination of the Social Contract's presentation of the general will, and of its apparently unqualified condemnation of all representative legislatures, suggests that this condemnation is deliberately overstated. That conclusion is confirmed by Considerations on the Government of Poland, which accepts the necessity of representative legislatures in large states and suggests techniques for reconciling that necessity with the genuine principles of the Social Contract, which do indeed imply a certain kind of superiority of direct democracy over representative legislatures. The paper then turns to the Term Limits decision of the U.S. Supreme Court. The Court's decision, in addition to being legally wrong, appears to have been a particularly dangerous decision when viewed in light of Rousseau's political science. The paper concludes with a brief discussion of Rousseau's analysis of institutions like our Supreme Court. Rousseau's analysis suggests that we should consider significant changes, such as abolishing life tenure and putting a stop to the use of stare decisis in constitutional cases.

Carnival of Mirrors: Laurence Tribe's 'Unbearable Wrongness'

Abstract: Professor Tribe has now done to me just what I claim he did to the Supreme Court in eroG v. hsuB. By repeatedly distorting what I actually said, Unbearable Wrongness creates illusory targets that Professor Tribe then holds up to ridicule. Leaving aside his many mischaracterizations of what I said, and the many arguments that he left unanswered in his extremely lengthy rebuttal, I focus here on our most significant points of disagreement: whether the Court's rationale for the decision in Bush v. Gore suffers from an almost embarrassing bankruptcy, and whether the Court was legally prohibited from deciding the case at all.These are the important issues, and it is important to keep in mind that Professor Tribe's attacks on me are significant only because he desperately needs to show that any legal defense of the Court is silly. That is the only way to sustain his own claim that the Court was playing a shell game in Bush v. Gore, or as he now says, that the Court's decision deserves to be greeted with head-scratching incredulity. Professor Tribe's claim is not just that Bush v. Gore was wrongly decided, but rather that no reasonable person could defend the decision. That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous.On the equal protection issue, Professor Tribe mischaracterizes the applicable precedents (especially by inventing a non-existent requirement of intentional discrimination in fundamental rights cases), misstates the holding in Bush v. Gore (especially by imputing to the Court a demand that the rules for recounting ballots must be precisely drawn and completely uniform), and falsely accuses the Court of having forbidden the Florida court to attempt a constitutionally permissible recount on remand.On justiciability, Professor Tribe has to my great satisfaction completely withdrawn the arguments that I called spectacularly indefensible. Unfortunately, he has not returned to the position that he took as a litigator in Bush v. Gore, where he implicitly treated the case as justiciable. Instead, Professor Tribe has now invented yet a third theory, which conflates the legal doctrine of justiciability with the prudential considerations advanced by Justices Souter and Breyer (neither of whom claimed that Bush v. Gore was nonjusticiable). Professor Tribe's latest theory is entirely novel, and the Court committed no error in failing to think it up before he did. All nine Justices were right and Professor Tribe is wrong: Bush v. Gore was indeed justiciable under the applicable precedents.