Professional Documents
Culture Documents
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ALLEN R. KAMP*
I.
Introduction
A. The Inspiration
* Professor Emeritus of Law, John Marshall Law School; J.D. University of Chicago, 1969;
M.A. University of California at Irvine, 1967; A.B. University of California at Berkeley, 1964. 1
would like to thank Professors Geoffrey Stone and Michael Zimmer for their support and
comments, my research assistants, Sarah Brandon and Kathryn Sodetz, for their tireless
efforts, and the John Marshall Law School faculty secretaries for their help.
1
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was that the then meaning of commerce was trade and the activities
associated with trade, such as transportation and payment for goods.
According to the Oxford English Dictionary, it also meant sexual
intercourse, but Professor Barnett made no mention of that interpretation
of the Commerce Clause.3
From this, Professor Barnett concluded that the original meaning of
commerce in the Constitution gave Congress only the power to regulate
interstate trade. After his talk, I realized the Constitution was written
before the industrial revolutionin 1789, the United States was (as was the
entire world) a country whose economy was based on agricultural
production.4 Trade centered on products such as cotton, grains, whiskey,
rum, and tobacco.5 The biggest international enterprise was the slave trade,
which provided the means of agricultural production. 6 The Framers were
not thinking of such integrated enterprises as steel companies, which mine
ore, transport the ore by ship or railroad to steel mills, smelt it, and then
ship the manufactured steel products nationally and internationally. For
instance, the Boeing 787 Dream Liner is manufactured in Washington State
from components made all over the world.7 According to CNN, 787
component parts manufacturers and designers are from countries around
the world including France, Sweden, the United Kingdom, Germany, Italy,
Korea, and Japan, as well as several U.S. states. 8 The reality of todays
business world is totally different than that of 1789.
See, e.g., War and Commercial Independence 17901850, GALE ENCYCLOPEDIA OF U.S.
ECONOMIC HISTORY (2000), available at http://www.encyclopedia.com/doc/1G2-3406401011.hml
(last visited Apr. 3, 2015) (noting slavery became indispensable to Southern farmers trade in
rice, cotton, and tobacco, and the availability of paper money allowed Western farmers to sell
surplus items, such as whiskey).
6
See id. (explaining slavery was the driving force behind the entire Southern economy and
the products that flowed from this practice were used to gain large profits at home and
abroad).
7 Parija Kavilanz, Dreamliner: Where In The World Its Parts Come From, CNN MONEY (Jan. 8,
2013, 11:46 AM), http://money.cnn.com/2013/01/18/news/companies/boeing-dreamliner-parts
/index.html.
8 See id.
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9 Colbert Report: Paul Reveres Famous Ride (Comedy Central Television broadcast June 6,
2011), available at http://thecolbertreport.cc.com/videos/uvi91o/paul-revere-s-famous-ride.
10
Id.
WILLIAM E. BURNS, SCIENCE AND TECHNOLOGY IN COLONIAL AMERICA 111 (2005).
12 See Glock University: Pistols 101, GLOCK USA, http://us.glock.com/confidence/pistols-101full (last visited Apr. 3, 2015) (educating site visitors about Glock handguns in general); see,
e.g., GLOCK 26 Gen4, GLOCK USA, http://us.glock.com/products/model/g26gen4 (last visited
Apr. 3, 2015) (providing detailed information for one model of Glock handgun).
11
13 See Jacques Derrida & Gayatri Chakravorty Spivak, Linguistics and Grammatology, 4
SUBSTANCE 127, 13032 (1974) (discussing signifier and signified).
14
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16
18 Ozan O. Varol, The Origins and Limits of Originalism, 44 VAND. J. TRANSNATL L. 1239, 1287
(2011) (discussing Scalias view that the purpose of a constitution is to stop the law from
reflecting social change without a constitutional amendment).
19
See generally Heller, 554 U.S. at 570 (discussing constitutional interpretation of the Second
Amendment in light of advances in weapon technology).
20 I am defining the term conservative loosely, in the sense that certain Justices, for
example, Scalia and Thomas, are called conservative by the mass media and identify
themselves as conservatives. See, e.g., Kevin Liptak, Scalia Defends Past Comments Some See as
Anti-gay, CNN POLITICALTICKER (Dec. 11, 2012, 3:28 PM), http://politicalticker.blogs.cnn.com
/2012/12/11/scalia-defends-past-comments-some-see-as-anti-gay/?iref=allsearch.
21 See, e.g., Reno v. ACLU, 521 U.S. 844, 89697 (1997) (OConnor, J., concurring in part and
dissenting in part) (discussing First Amendment rights of adults regarding online
communications from the CDA).
22 See Douglas S. Broyles, Have Justices Stevens and Kennedy Forged a New Doctrine of
Substantive Due Process? An Examination of McDonald v. City of Chicago and United States v.
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meaning of cruel and unusual punishment has not evolved over time, and
asks, why, then, is the term arms permitted to evolve over time[?]23
My Article attempts, but fails, to answer that question. I conclude that
there is no unified theory for dealing with technological change and the
meaning of the Constitutions text. The Courts interpretative strategies are
ad hoc. But maybe that is the best we can do.
II. The First Amendment
My discussion here will concentrate on freedom of speech and the
freedom of the press under the First Amendment. Read literally, speech
is a voice that speaks to those who can hear it. It does not include new
media, such as television, nor does it cover symbolic speech, such as flag
burning.24 Literally the press is just that, a press that presses the print onto
a sheet of paper. Presses do not exist anymore outside of the studios of art
printers.
There is a consensus, however, that freedom of speech and the press
applies to all forms of expression. The freedom of the press, for example,
applies to rotary presses and even to non-physical journalism,25 such as the
Internet, the underlying secular medium of expression.26 Each medium
may be subject to specific rules, but all are entitled to some protection. 27
Today, freedom of the press and freedom of speech extend to flag
burning, cable TV, music, and the Internet. Here we are obviously not
using the original meaning of press or speech. Nor are we using
Justice Antonin Scalias principle that rules cover subsequent technological
advances, a rule he applied in Heller to interpret the Second Amendment to
Windsor, 1 TEX. A&M L. REV. 129, 151 (2013) (discussing Scalias contention that only law
rooted in history and tradition, and not changing social norms, can adhere most to the
Constitution to decide moral questions in the country).
23
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cover modern weapons.28 Burning the flag was well within the
technological capabilities existent in 1792. The Court, however, developed
the concept that the First Amendment covered expression in general, not
just the enumerated freedoms of religion, press, speech, assembly, and
petition.29
Extracting a general freedom of expression from the specific rights of
the First Amendment is contrary to the interpretive doctrine of textual
originalism, which limits its focus to the original understanding of a
particular word. For example, in Heller, Justice Scalia begins his analysis of
what keep arms and bear arms means by looking at how each word in
those phrases was understood at the time the Second Amendment was
adopted.30
Deriving an abstract meaning of expression from the enumerated
freedoms also is contrary to Justice Scalias interpretive principle of reading
at the lowest level of abstraction.31 Unlike other areas of the Constitution,
where conservatives have rejected prior precedent, they have not rejected
cases that have extended the First Amendment to cover freedom of
expression. For example, diverging from sixty years of precedent, the
Supreme Court found a statute restricting gun possession near schools as
exceeding Congresss Commerce Clause power because the statute did not
substantially affect interstate commerce.32 Similarly, the D.C. Circuit
recently rejected more than a hundred years of precedent in holding that
recess appointments must be made when Congress is formally in the
recess and that the recess appointments can be made only in the specific
recess in which the vacancies occurred. In so holding, the court
distinguished, for the first time, between intersession, the recess, and
intra session recesses.33
28 District of Columbia v. Heller, 554 U.S. 570, 582 (2008); SCALIA & GARNER, supra note 15,
at 8587.
29 For example, freedom of speech covers flag burning, although flag burning is not
speech, nor is it a development in technology because fire existed in 1792.
30
32
33
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34 See Stromberg v. California, 283 U.S. 359, 366 (1931) (predicting the Courts broadening
of the meaning of speech).
35
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regulate intrastate activities, when such activities have a substantial effect on interstate
commerce).
47
Id. at 12829.
Id. at 12930.
49 Id. at 12728.
50 Texas v. Johnson, 491 U.S. 397, 40406 (1989).
51 303 U.S. 444, 452 (1938).
52 Natl Broad. Co. v. United States, 319 U.S. 190, 226 (1943).
53 Id.
54 Id.; see also Amanda Reid, The Power of Music: Applying First Amendment Scrutiny to
Copyright Regulation of Internet Radio, 20 TEX. INTELL. PROP. L.J. 233, 278 (2012) (concluding that
music is covered, and that webcasting music deserves First Amendment expression); Anjali
Dalal, Protecting Hyperlinks and Preserving First Amendment Values on the Internet, 13 U. PA. J.
CONST. L. 1017, 1019 (2011) (arguing the same for hyperlinks to other websites).
48
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55
Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 40001 (1969).
Miami Herald Publg Co. v. Tomillo, 418 U.S. 241, 25758 (1947); see also Preferred
Commcns Inc. v. Los Angeles, 754 F.2d 1396, 1403 (9th Cir. 1985); Century Fed. Inc. v. Palo
Alto, 710 F. Supp. 1552, 1553 (N.D. Cal. 1987).
56
57 See Nicholas Bramble, ILL Telecommunications: How Internet Infrastructure Providers Lose
First Amendment Protections, 17 MICH. TELECOMM. & TECH. L. REV. 67, 70 (2010).
58
Id. at 68.
Subject to reasonable network management, a provider of broadband internet access
service must treat lawful content, application, and services in a nondiscriminatory manner.
Preserving the Open Internet: Broadband Industry Practices, 24 FCC RCD. 13064, 13104 para.
104 (proposed Oct. 22, 2009) (notice of proposed rulemaking).
59
60
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65
Id.
Id. at 406.
67 See David S. Day, The End of the Public Forum Doctrine, 78 IOWA L. REV. 143, 202 (1992).
Taking a different approach than the general overview in this Article, Professor Days article
focuses heavily on the public forum doctrine as a fundamental right, which consequently can
only be regulated if the government can produce compelling justification. Professor Day
views the shift from the traditional to modern public forum doctrine as turning on what
determines the level of judicial scrutiny against which the regulation will be tested. The Court
applied a heightened level of scrutiny under its traditional speech protective doctrine because
of the nature of the governmental regulation. The modern speech restrictive doctrine blindly
trusts the governmental intent behind the regulation by focusing on the nature of the location,
requiring only a rational basis for the regulation in question.
68 Norman T. Deutsch, Does Anybody Really Need a Limited Public Forum?, 82 ST. JOHNS L.
REV. 107, 110 (2008).
66
69 Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985) (quoting Perry
Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45 (1983)).
70
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building was a new concept when this case was decided.73 The novelty,
however, did not keep the Court from concluding that the malls owners
did not infringe on anyones First Amendment rights.74
Perhaps more interesting is the Courts decision in International Society
For Krishna Consciousness v. Lee, in which it held that airports operated by a
public authority are also not public fora.75 Using the traditional forum
based approach, taken partly from Perry Education Association v. Perry
Local Educators Association, the Court analyzes restrictions that the
government seeks to place on the use of its property in relation to the First
Amendment.76 The Court goes on to cite Cornelius v. NAACP Legal Defense
and Educational Fund, Inc., which establishes guidelines for determining
characteristics of a public forum, noting that a traditional public forum is
[property that has a principal purpose] . . . the free exchange of ideas.77
Although airport terminals are technically public fora, the Court
determined that their recent growth in size and character disqualifies them
as a traditional public fora, reasoning that, given the lateness with which
the modern air terminal has made its appearance, it hardly qualifies for the
description of having immemorially . . . time out of mind been held in the
public trust and used for purposes of expressive activity.78 In this case, the
Court outright refused to analogize the airport terminal to other types of
transportation nodes, essentially committing itself to a case-by-case
approach whenever a new form of transportation develops.79
Preferred Communications stated that telephone poles and wires were a
type of public forum that triggered First Amendment coverage.80 The Court
accepted the cable companys comparison of newspapers, which convey
messages in print, to cable companies, which also convey messages
through the use of wires and cables.81 By accepting this argument, the
Court conceded to the lack of any practical difference between reprinting
and retransmitting the communication of others and some original
73
Id. at 553.
Id. at 55253 (No public streets or public sidewalks [were] within the building complex,
which [was] enclosed and entirely covered except for the landscaped portions of some of the
interior malls.).
74
75
Intl Soc. for Krishna Consciousness v. Lee, 505 U.S. 672, 683 (1992).
460 U.S. 37, 46 (1983).
77 473 U.S. 788, 800 (1985).
78 Intl Soc. for Krishna Consciousness, 505 U.S. at 680.
79 Id. at 681.
80 Los Angeles v. Preferred Commcns, Inc., 476 U.S. 488, 491 (1986).
81 Id. at 494.
76
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82 Id. (noting how similar the cable companys activities were to wireless companies, whose
messages were already found to implicate the First Amendment in Red Lion Broadcasting Co. v.
F.C.C.).
83
87 Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Right to
Keep and Bear Arms and Defend Life, 62 STAN. L. REV. 199, 204 (2009).
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88
97
98
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Heller rejects the argument that the Amendment protects only arms
that were in existence in 1792 as frivolous.99 Justice Scalia writes that we
should follow technological changes in deciding which weapons are
protected.100 But the changes lead us to such weapons as the AR-15, which
holds twenty or thirty-round magazines and has the capacity to fire 700
950 rounds per minute.101 A technological descendent of the AR-15 is the
M-4 carbine, which is becoming the standard rifle for the United States
armed forces.102 One of its variations is capable of automatic fire and can be
fitted with an attached shotgun or grenade launcher.103 A civilian version is
available for sale to the public.104
Heller quotes (with approval) Millers characterizing a sawed-off
shotgun as not typically possessed by law-abiding citizens for lawful
purposes.105 It can be illegal for felons to have guns and for individuals to
carry guns into certain places, such as schools and government buildings.106
Heller cites Blackstone as authority for banning dangerous and unusual
weapons.107 The Court acknowledges that these limitations would likely
prohibit most arms used in modern warfare, thus making militias
ineffective, but the Court does not seem to be too worried about that. 108
Can the government prohibit assault rifles? In his student law review
Comment, Michael S. Obermeier analyzes Heller to conclude that automatic
weapons are outside the scope of the Second Amendment.109 Although
over 240,000 automatic weapons were registered in 1995, the register uses
the term machine guns instead of automatic weapons.110 This may or
may not place them in common use. 111 They are not generally used for
ed.) (reprinted 1978)) (Johnsons Dictionary does not so limit arms, but states the term
applies to all means of offense).
99
Id. at 582.
Id. at 58283.
101 M16 Rifle, ENCYCLOPEDIA BRITANNICA, http://www.britannica.com/EBchecked/topic/
353341/M16-rifle (last visited Apr. 4, 2015).
102 See id.
103 Id.
104 See id.
105 Heller, 554 U.S. at 625.
106 See id. at 626.
107 Id. at 627.
108 See id.
109 Obermeier, supra note 86, at 70809.
110 See id. at 708.
111 Id.
100
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Heller v. Tasers
112
See id.
Id.
114 Id. at 689, 70809.
115 Obermeier, supra note 86, at 700.
116 Id.
117 Id. at 701.
118 Id.
119 See id.
120 See People v. Nivar, 915 N.Y.S.2d 801, 809, 811 (N.Y. Sup. Ct. 2011).
121 See Craig S. Lerner & Nelson Lund, Heller and Nonlethal Weapons, 60 HASTINGS L.J. 1387,
1409 (2009).
113
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of Columbia now prohibits Tasers, but not handguns. 122 They argue that
prohibiting Tasers conflicts with the Amendments protection of the right
to self-defense.123 They analogize the issue to Kyllo v. United States,124 which
presumed that police may use surveillance technologies that are available
to civilians.125 Lerner and Lund employ a reverse presumption that
civilians may employ self-defense technologies in widespread use by the
police.126
About 200,000 Tasers have been sold to law enforcement since 1991,
and over 120,000 to civilians since 1994.127 Although considered non-lethal,
they have contributed to 500 American deaths between 2001 and 2012,
resulting from use by law enforcement officials alone. 128 Some of these
cases involve excessive force and police brutality. 129 Perhaps they are just
dangerous enough to receive protection under the Heller rationale. The
only question left is whether Tasers are unusual.
IV. The Commerce Clause
We turn now to the Commerce Clause. The number of law review
articles and books discussing this Clause must be in the thousands; I shall
only give a brief history of its interpretation and then discuss how the
Court has dealt with the literally incredible technological and social change
in the field of commerce. We must appreciate the fact that the Commerce
Clause was drafted prior to the industrial revolution; wealth resided
primarily in land, and trade was in mostly agricultural products. The
largest global trade at that time was in slaves, and in the products they
produced, namely sugar cane and cotton. 130
Today, with such innovations as the Internet, container shipping, new
payment systems such as wire transfers, debit and credit cards, and multi-
122
128
Tasers Have Killed at Least 500 Americans, RT.COM (Feb. 16, 2012, 21:13 PM),
http://rt.com/usa/500-taser-law-enforcement-503/.
129 See Karen M. Blum & John J. Ryan, Recent Developments in the Use of Excessive Force by
Law Enforcement, 24 TOURO L. REV. 569, 594 (2008).
130 See Allen Kamp, No Compensation for Slave Traders: Some Implications, 14 TEX. WESLEYAN
L. REV. 289, 289 (2009).
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131 THOMAS L. FRIEDMAN, THE WORLD IS FLAT: A BRIEF HISTORY OF THE TWENTY-FIRST
CENTURY 48 (2007).
132
See FELIX FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY, AND WAITE
1 (1937).
133
135 See HENRY ROTTSCHAEFER, THE CONSTITUTION AND SOCIO-ECONOMIC CHANGE 18 (1948);
see also Larry E. Gee, Federalism Revisited: The Supreme Court Resurrects the Notion of Enumerated
Powers by Limiting Congresss Attempt to Federalize Crime, 27 ST. MARYS L.J. 151, 161 (1995).
136 ROTTSCHAEFER, supra note 135, at 2.
137 Gee, supra note 135, at 162. Note that the nation saw social and political transformation
during the Progressive Era (1890s1920s), and Congress passed four constitutional
amendments in that time.
138
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139
See id.
Hammer v. Dagenhart, 247 U.S. 251, 263 (1918).
141 LOREN P. BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION 69 (1971) (citing The
Employers Liability Cases, 207 U.S. 463, 49899 (1908)).
142 Id. at 69.
143 Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70
N.C. L. REV. 1, 2 (1991).
140
144
148
149
Id. at 5.
See id.
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In the 1940s, the Court determined that Congress could penalize those
who violated minimum wage standards, 152 overturning Hammer v.
Dagenhart.153 In Wickard v. Filburn154 the Court pushed the Commerce
Clause to its limits, and has been described as perhaps the most far
reaching example of Commerce Clause authority over intrastate
activity.155 The Agricultural Adjustment Act set a quota of wheat
production in order to stabilize the price of wheat. 156 Filburn was a farmer
in Ohio who raised wheat for commercial and personal use. 157 In 1941, he
grew wheat in excess of what he was allotted, and was fined. 158 Filburn
argued that the Act was beyond the reach of Congressional power under
the Commerce Clause, since [production and consumption of wheat] are
local in character, and their effects upon interstate commerce are at most
indirect.159 However, the Court held that the Act was within Congresss
power to regulate commerce because, viewed in the aggregate, the
consumption and production of wheat, even if local, exert[ed] a
150 Gee, supra note 135, at 166; see also FRANKFURTER, supra note 132, at 116 (After a brave
effort to confine the New Deal, the old Court surrendered in the spring of 1937and returned
to the Marshall-Taney-White view of national power.). Perhaps this is another justification
for the New Deal laws being upheldthe Justices were arguably just going back to the
original views of the Commerce Clause.
151
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160
Id. at 125.
Id. at 12728.
162 ROTTSCHAEFFER, supra note 135, at 4.
163 Id. at 45.
164 See id. at 5; see also FRANKFURTER, supra note 132, at 116 (Judicially imposed laissez-faire
ended with the great depression.).
161
165
Michael E. Parrish, The Great Depression, The New Deal, and the American Legal Order, 59
WASH. L. REV. 723, 726 (1984).
166 Gee, supra note 135, at 16667 n.62 (citing NELSON L. DAWSON & LOUIS D. BRANDEIS,
FELIX FRANKFURTER AND THE NEW DEAL 12 (1980)).
167 Id. (citing Barry Cushman, A Stream of Legal Consciousness: The Current of Commerce
Doctrine from Swift to Jones & Laughlin, 61 FORDHAM L. REV. 105, 156 (1992)).
168
169
Id. (citing Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1487 (1994)).
Id. (citing Parrish, supra note 165, at 732 ).
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Tannenbaum states that the Court has expanded the Commerce Power
primarily by using the Necessary and Proper Clause, rather than
expansively reading commerce.170 However, in recent years the Court
has restricted some of the power given to Congress in prior years, or at
least has set some limiting principles. This probably began around Lopez,
where the Court held that a law passed under the Commerce Clause
authority must have a sufficient effect on commerce. 171 Recently, the Court
further limited the scope of the Clause in National Federation of Independent
Business v. Sebelius.172 However, they did not reconsider whether the
aggregate principle from Wickard is still valid. Rather, with the exception
of Justice Thomas, the entire Court still believed Congress has the power to
regulate intrastate economic activity that has a substantial effect on
interstate commerce . . . .173 The new limiting principle in Sebelius is that
Congress cannot require people to buy things they do not want under the
Commerce Clause.174 Congress can always link the purchase of things that
are good for us with the purchase of something else, e.g., seatbelts with
cars.175
V. Fourteenth Amendment
The first clause of the first section of the Fourteenth Amendment
extends equal protection of the laws to citizens of the United States, which
are: All persons born or naturalized in the United States, and subject to
the jurisdiction thereof . . . .176 This clause has long been understood to
170 ANDREW KOPPLEMAN, THE TOUGH LUCK CONSTITUTION AND THE ASSAULT ON
HEALTHCARE REFORM 95 (2013).
171
United States v. Lopez, 514 U.S. 549, 560 (1995). In Lopez, the Court struck down a
statute that prohibited the carrying of firearms within a school zone. The government argued
that the Commerce Clause gave it the authority to prohibit such conduct. The Court
disagreed, concluding that the effect on commerce was too tenuous, thus limiting the Wickard
cumulative principle where there was no effect on commerce. See id. at 560, 56667.
172
Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2593 (2012).
John K. DiMugno, Navigating Healthcare Reform: The Supreme Courts Ruling and the
Choppy Waters Ahead, 24 CAL. INS. L. & REG. REP. 1, 62 (2012).
174 Sebelius, 132 S. Ct. at 2591.
175 Id.
176 U.S. CONST. amend. XIV, 1.
173
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without
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cover all people born within the United States, including the children of
illegal immigrants.177 However, the ever-rising influx of illegal immigrants
in the United States has given rise to controversy over the intent behind
birthright citizenship.178 This change in views on birthright citizenship
is clearly driven by social change, and arguably fueled by technological
change. Unfortunately, as we have seen, the Constitution gives no explicit
guidance of how to deal with such change.
As early as 1804, the Supreme Court held that a person born in the
United States, even if living elsewhere, is an American citizen. 179 But in
Dred Scott, the Court held that a person whose ancestors were brought into
the United States as slaves could not obtain citizenship, and were thus not
entitled to any rights and privileges of the United States.180 After the Civil
War, the Civil Rights Act of 1866181 and the Fourteenth Amendment
allowed persons born in the United States, other than Native Americans, to
become citizens.182
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Id.
177 See Allen R. Kamp, The Birthright Citizenship Controversy: A Study of Conservative
Substance and Rhetoric, 18 TEX. HISP. J.L. & POLY 49, 53 (2012) [hereinafter Kamp, The Birthright
Citizenship Controversy] (quoting Attorney General Edward Bates in 1862 limiting the holding
of the Court in Scott v. Sandford, 60 U.S. (19 How.) 393, 398 (1856)).
[E]very person born in the country is, at the moment of birth, prima facie a
citizen; and he who would deny it must take upon himself the burden of
proving some great disenfranchisement strong enough to override the
natural-born right as recognized by the Constitution in terms the most
simple and comprehensive, and without any reference to race or color, or
any other accidental circumstance.
Id.
178
See id. at 51 (discussing the increase in births of illegal immigrants: [c]ongress has
heard testimony that more than two-thirds of all births in Los Angeles public hospitals, and
more than half of all births in that city, and nearly ten percent of all births in the nation in
recent years, have been to mothers who are here illegally).
179
182 See William Mayton, Birthright Citizenship and the Civic Minimum, 22 GEO. IMMIGR. L.J.
221, 245 (2008).
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183
187
Id. at 654.
Id. at 682.
189 Kamp, The Birthright Citizenship Controversy, supra note 177, at 57 (synthesizing the
holding in Wong Kim Ark, 169 U.S. at 682).
190 See Plyler v. Doe, 457 U.S. 202, 211 & n.10 (1982).
191 See PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL
ALIENS IN THE AMERICAN POLITY 95 (1985); Lino A. Graglia, Birthright Citizenship for Children of
Illegal Aliens: An Irrational Public Policy, 14 TEX. REV. L. & POL. 1, 56 (2009).
188
192
193
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194
196
198
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200
See, e.g., Reno v. ACLU, 521 U.S. 844, 885 (1997) (noting that the Internet has expanded
the marketplace of ideas and government restriction would interfere with this exchange).
201 See id. at 874 (In evaluating the free speech rights of adults, we have made it perfectly
clear that [s]exual expression which is indecent but not obscene is protected by the First
Amendment.) (citations omitted).
202 Citizens United v. Fed. Election Commn, 558 U.S. 310, 365 (2010) (applying the First
Amendment to a general-purpose corporations making of a political video); see also Joseph F.
Morrissey, A Contractarian Critique of Citizens United, 15 U. PA. J. CONST. L. 765, 783 (2013)
(characterizing Justice Scalia as ever-Machiavellian in his textual analysis of the
Constitution).
203 See, e.g., United States v. Miller, 307 U.S. 174, 17879 (1939) (finding that the Second
Amendment of the Constitution was intended to apply to Congress and the federal
government); Presser v. Illinois, 116 U.S. 252, 265 (1886) (concluding that the Second
Amendment is only a limitation to the powers of Congress and the federal government);
United States v. Cruikshank, 92 U.S. 542, 553 (1875) (stating that the Second Amendment only
applies to the federal government).
204
Letter from George Washington to the President of Congress (Sept. 15, 1780), in REPORTS
COMMITTEES OF THE SENATE OF THE UNITED STATES FOR THE THIRD SESSION OF THE FORTYFIFTH CONGRESS, 187879, 97 (1879).
OF
205 Chuck Dougherty, The Minutemen, the National Guard and the Private Militia Movement:
Will the Real Militia Please Stand Up?, 28 J. MARSHALL L. REV. 959, 963 n.31 (1995).
226
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206 William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136
MIL. L. REV. 1, 1617 (1992).
207
209 A well regulated Militia, being necessary to the security of a free State . . . U.S. CONST.
amend. II.
210
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CONCLUSION
Professor Kermit Roosevelt inquired into the justification for differing
treatment of technological and cultural change. He suggested the
following:
My guess would be that someone like Scalia would say that
taking account of technological change is necessary to allow
constitutional provisions to continue to perform their intended
function, while taking account of value change is contrary to that
purpose, since the point is to enshrine a static set of values.218
214 See generally Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579, 2592 (2012)
(explaining that the individual mandate cannot be sustained under the Necessary and Proper
Clause because it is an expansion of Congresss power and not a proper means of
effectuating the reform).
215 See Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101,
112 (2001).
216
Id. at 12425.
Id. at 112.
218 E-mail from Kermit Roosevelt, Professor of Law, Univ. of Pa. Sch. of Law, to Allen R.
Kamp (Nov. 8, 2013, 1:18 EST) (on file with author).
217
219
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One major problem with his position is that there is no bright line
dividing technological change and cultural change. Consider the
application of the Equal Protection Clause to women. Since the Clauses
adoption, womens roles in society have experienced cultural change. But it
can be argued that these cultural changes are largely a result of
technological changes.220 For example, a woman in the 1930s, like my
grandmother, who had multiple children and ran the household, had more
than a full-time job. She cleaned, cooked, washed the clothes and dishes, as
well as cared for the children. However, the invention of birth control pills,
convenience food, automatic washers, dryers, dishwashers, detergents, and
the permanent press reduced a womans household responsibilities. In
addition, transitioning from coal to natural gas heating reduced the
amount of soot that needed to be cleaned up. Furthermore, many, if not
most, jobs outside the home were unavailable to women because they
required a high degree of physical strength. As illustrated, it is impossible
to separate the effect of cultural and technological changes on womens
roles.
A second major problem with Scalias position is that originalists, of
whatever variety, assume that that their approach yields a clear, objective
answer to legal questions. It does not. An originalist interpretation
(whether that of original intent, original public meaning, or textualism) of
the Second Amendment does not tell us whether it protects an individual
right or a group right to keep and bear arms. Yet, originalism cannot bear
the weight that the Heller majority placed upon it. Originalism, though
important, cannot constrain judges discretion to decide cases on outcomes
they prefer.221 History and textualism do not provide answers. If they did,
we would staff the courts with history and English professors. Certainly
historians disagree over historical issuesquestions of what caused the
Civil War or Henry VIIIs separation from the Catholic Church
immediately come to mind. How many interpretations of Hamlet are
there?
The lack of meaningful constraint on todays Supreme Court is shown
by the fact that any knowledgeable person (law degree not required) can
predict the vote on any case before the Court that involves policyit will
be four to four, with Justice Kennedy deciding.
220 See, e.g., Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional
Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323, 1325, 1259 n.93 (2006).
221
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Our Constitution, which has lasted longer than any other on the globe,
has not endured as long as it has by ignoring principles and the changing
circumstances currently facing society.222
The Court has adopted a different approach for each area we have
examined. There is no singular protocol as to how our eighteenth century
Constitution can be used in the twenty-first century. The Courts
interpretive moves can be pragmatically, if not theoretically,
justified. Maybe that is the best we can do, given that we have the oldest
written Constitution in existence. 223 We could repeal our Constitution and
move to an unwritten constitution, such as that of the United Kingdom, but
we are not going to do that.
222 See Geoffrey Stone & William Marshall, The Framers Constitution, DEMOCRACY: A
JOURNAL OF IDEAS (Summer 2011), http://www.democracyjournal.org/21/the-framersconstitution.php (last visited Apr. 6, 2015).
223