Kamp: Constitutional Interpretation and Technological Change

2015 Const i tu t i onal Int erp retat ion and Technolog ic al Ch ange 201

Constitutional Interpretation and Technological Change

ALLEN R. KAMP*

Times have changed And we've often rewound the clock

Since the Puritans got a shock When they landed on Plymouth Rock.

If today Any shock they should try to stem

Stead of landing on Plymouth Rock, Plymouth Rock would land on them.1

Nearly 50 years later, things have changed dramatically.2

I. Introduction

A. The Inspiration

wo experiences made me think of this topic. The first was a talk by Professor Randy Barnett at the 2011 Loyola Constitutional Law Conference. He described his extensive research of the meaning of

commerce around the time of the Constitutional Convention. He also looked at fifty years worth of Philadelphia newspapers. His conclusion was that the then meaning of commerce was trade and the activities

* 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 COLE PORTER, Anything Goes, in ANYTHING GOES (Paramount Pictures 1936).

2 Shelby County v. Holder, 133 S. Ct. 2612, 2616 (2013).

T


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.

3 See 2 THE OXFORD ENGLISH DICTIONARY 678 (3d. ed. 1970), available at

http://www.oed.com/view/Entry/37074?rskey=Z6O1Rn&result=2&isAdvanced=false#eid. 4 Cultivators of the earth are the most valuable citizens. They are the most vigorous, the

most independent, the most virtuous, & they are tied to their country & wedded to its liberty

& interests by the most lasting bonds . . . I would not convert them into mariners, artisans or

anything else. Letter from Thomas Jefferson to John Jay (Aug. 23 1785), available at

http://avalon.law.yale.edu/18th_century/let32.asp. 5 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.


The second inspiration came from a Colbert Report skit.9 Colbert played Paul Revere riding to warn the British (according to the Sarah Palin version) while firing his guns and blowing his horn.10 Colbert derived some humor by holding a pistol in one hand and reloading it with the other, all while placing his horn to his mouth (you see the problem). Then I realized that in 1791 arms meant single shot muskets that took, with extensive training, at least twenty seconds to reload.11 Now a Glock pistol can fire a 32-round clip automatically and can be reloaded in seconds.12

B. The Signifier and the Signified

Semiotic theory distinguishes between the signifier and the signifiedthe signifier arms is the same, but the signified has changedfrom the musket to the automatic rifle.13 I then researched how the Supreme Court has dealt with how technology has changed the meaning of words in the Constitution. I found no uniform approach.

Justice Scalia, in District of Columbia v. Heller, characterized as frivolous the argument that the technological change in weapons made the Second Amendment obsolete.14 He says the same thing in his new book on interpretation. He states that judges should follow the objective meaning of the text, but the interpretation should follow the technological change.15 He states:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S. Ct. 2329, 138 L.Ed.2d 874 (1997), and the

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. 11 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-101-

full (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). 13 See Jacques Derrida & Gayatri Chakravorty Spivak, Linguistics and Grammatology, 4

SUBSTANCE 127, 13032 (1974) (discussing signifier and signified). 14 District of Columbia v. Heller, 554 U.S. 570, 582 (2008). 15 ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS 16 (2012). In their full context, words mean what they conveyed to reasonable people

at the time they were writtenwith the understanding that general terms may embrace later

technological innovations. Id.


Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 3536, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.16

However, Justice Scalia rejects any notion that interpretation should follow social change.17 One could argue that improvements in contraception, the emergence of women in the labor force, and the lack of a need to have many children to work the farm, has changed the importance of having the right to control reproduction. But Scalias answer to these social changes is that they may only be handled by Constitutional amendment.18 Technological change is another matter.

My Article examines the rules that guide the Supreme Court in interpreting the Constitution in light of technological change.19 I have to set some limits to this Article, or it would turn into a treatise, so I will primarily examine the First and Second Amendments and the Commerce Clause. The conservative20 justices do go beyond the literal language of the Constitutional text when dealing with technological change, i.e., applying the First Amendment to the Internet21 but not to social change. Additionally, arms in the Second Amendment may include modern weapons, but the Equal Protection Clause is not read to prohibit restrictions on gay marriage. One could argue that societys sexual morals have changed since 1792, but such change, according to Justice Scalia, cannot be accommodated.22 Professor Pamela S. Karlan points out that the

16 Heller, 554 U.S. at 582. 17 United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (It is one

thing for society to elect change; it is another for a court of law to impose change . . . .). 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.


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 Pamela S. Karlan, In the Beginning, BOS. REV. (Sep. 7, 2010), http://www.bostonreview.net/

us-karlans-court/beginning; see also Amanda Terkel, Scalia: Women Dont Have Constitutional

Protection Against Discrimination, HUFFINGTON POST (May 25, 2011, 6:20 PM),

http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_8038

13.html. 24 See U.S. v. Paramount Pictures, 334 U.S. 131, 166 (1948). See generally Texas v. Johnson,

491 U.S. 397, 40607 (1989) (discussing how a sufficiently important government interest in

regulating the non-speech element of conduct may justify incidental limitations on First

Amendment protection). 25 Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). 26 Cohen v. California, 403 U.S. 15, 24 (1971). 27 See Preferred Commcns v. Los Angeles, 754 F.2d 1396, 1403 (9th Cir. 1985), affd, 476 U.S.

488 (1986) (explaining that broadcast TV, for example, is treated differently than cable).


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 Heller, 554 U.S. at 581. 31 See John Safranek & Stephen Safranek, Finding Rights Specifically, 111 PENN ST. L. REV.

945, 947 (2007) (discussing the problem of the level of abstraction); see also Michael H. v.

Gerald D., 491 U.S. 110, 127 n.6 (1986) (stating that [w]e refer to the most specific level at

which a relevant tradition protecting, or denying protection to, the asserted right can be

identified). 32 United States v. Lopez, 514 U.S. 549, 56061 (1995). 33 Noel Canning v. N.L.R.B., 705 F.3d 490, 495, 499501 (D.C. Cir. 2013).


The universal opinion is that the Amendment covers expressions in general.34 When I looked up the text of the First Amendment on the Internet, the heading on a website read Amendment 1Freedom of Religion, Press, Expression.35 While conservatives decline to expand the Commerce Clauses scope to cover new types of commerce,36 they support expanding the First Amendment to cover new forms of speech.37 Note that Justice Scalia joined Justice Brennans majority opinion in the flag burning case,38 in which the first question to be decided was whether Johnsons burning of the flag constituted expressive conduct.39

The extension of the meaning of speech to cover symbolic expression occurred in West Virginia Board of Education v. Barnette, where a group of Jehovahs Witnesses challenged a board of education resolution requiring all teachers and students to participate in the salute honoring the Nation, represented by the Flag.40 Failure to salute the flag was considered insubordination and could lead to expulsion from school.41 The Jehovahs Witnesses argued that the requirement violated, among other rights, their First Amendment rights of free exercise and free speech.42 Citing very little precedent, the Court concluded the requirement was unconstitutional.43 The Court relied on an older case, Stromberg v. California, which held that a law prohibiting the public display of a red flag violated the First Amendment.44 Stromberg may be the genesis of the extension of the Free Speech Clause to cover symbolic expression. However, in Barnette the Court finally opined that [s]ymbolism is a primitive but effective way of communicating ideas.45

One could argue that Barnette is the Wickard v. Filburn of the Free Speech Clause, as both cases are clear points at which the Court broadened the scope of the Constitution.46 Diverging from a half century of requiring a

34 See Stromberg v. California, 283 U.S. 359, 366 (1931) (predicting the Courts broadening

of the meaning of speech). 35 U.S. CONST. amend. I. 36 See Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2593 (2012). 37 See United States v. OBrien, 391 U.S. 367, 382 (1968). 38 Texas v. Johnson, 491 U.S. 397, 398 (1989). 39 Id. at 403. 40 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626, 629 (1943). 41 Id. at 629. 42 Id. at 630. 43 Id. at 642. 44 Stromberg v. California, 283 U.S. 359, 36667 (1939). 45 Barnette, 319 U.S. at 632. 46 See generally Wickard v. Filburn, 317 U.S. 111, 12829 (1942) (holding that Congress may


direct effect on interstate commerce to validate Congresss Commerce Clause power, Wickard expanded the new substantial effects test to local markets.47 In Wickard, the Court found the enforcement of the Agricultural Adjustment Act upon a local farmer who grew wheat in excess of his seasonal allotment to be a valid exercise of Congressional power.48 In so holding, the Court extended their power to regulate activity that substantially affects interstate commerce to reach a local farmer growing extra crops for his farm by analyzing the effects of one farmers surplus on the wheat industry in the aggregate.49 Both Barnette and Wickard utilized very few previous Court rulings, although arguably Wickard was part of a trend to increasingly defer to Congresss own interpretation of its Commerce Clause powers. Either way, the principle laid out in Barnette has never been seriously questioned by the Court, which has held that wearing black armbands to convey a message, displaying a United States flag upside down with peace symbols on it, and even burning a flag all constitute symbolic expression covered under the First Amendment.50

As for new means of communication, in Lovell v. City of Griffin, Georgia the Court granted First Amendment protection to pamphlets and to their distribution, not just the printing of newspapers.51 National Broadcasting Co. v. United States extended the First Amendment to broadcast radio.52 The Court held government regulation requiring broadcasting licenses to be constitutional because of the uniqueness of radio frequencies,53 reasoning that, [u]nlike other modes of expression, radio inherently is not available to all who wish to communicate through it.54

Allowing some regulation over broadcast media gives rise to a First Amendment issue: Is the media in question more like television, with a natural restriction on its distribution, or the press, which is not so

regulate intrastate activities, when such activities have a substantial effect on interstate

commerce). 47 Id. at 12829. 48 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).


restricted? The question is often posed as whether to follow Red Lion Broadcasting Co. v. F.C.C.,55 which justified regulation because of the distribution limitations, or Miami Herald Publishing Co. v. Tomillo, which followed the print model and in which no regulation was allowed.56 Thus, cable casters can be regulated more closely if their means of transmission are restricted; if they are not restricted, then the justification for regulation disappears.

A recent law review article by Nicholas Bramble, entitled ILL Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protections, deals with this issue.57 The question considered is whether the activity (providing broadband internet access service) is expression.58 The FCC proposed a regulation mandating the provision of access in a non-discriminatory manner.59 If providing access was expression, it would fall in the ambit of the First Amendment. Nicholas Bramble argues that provision of Internet access by service providers does not come under the scope of the First Amendment.60 First, he argues that transporting data does not implicate the provider in expression or the ordering of expression.61 Second, he states that access providers can easily disclaim any affiliation with the specific material they are providing62 and that their role as transporters can be easily distinguished from that of originators.63

The interpretive action has shifted to a somewhat content-based analysis, which considers whether the activity in question is expression or something else. For example, the Court in Johnson acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.64 The

55 Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 40001 (1969). 56 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). 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. 59 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). 60 Bramble, supra note 57, at 70. 61 Id. at 7477. 62 See id. at 9193. 63 See id. at 96. 64 Texas v. Johnson, 491 U.S. 397, 404 (1989).


Court in Johnson reasoned that in order to determine whether conduct is sufficiently communicative to evoke First Amendment protection, due regard must be given to whether there was intent to convey a message and the likelihood of the message being understood by those who view it.65 This reasoning led the Court to find that the defendants burning of the American flag during the Republican Re-nomination Convention for Ronald Reagan was intentional and overwhelmingly apparent such that his expression was sufficiently imbued with elements of communication to fall within the scope of the First Amendment.66

Another issue that has arisen because of change is the public forum. Speech in a public forum is protected, but what is a public forum today?67 The Supreme Court has a few different categories of fora, and that designation helps determine whether any speech occurring in that forum will be protected by the First Amendment.68 For example, the Court has held that public sidewalks, streets, and parks are traditional public fora because they by long tradition or by government fiat have been devoted to assembly and debate.69 However, the Court in Lloyd Corporation, Ltd. v. Tanner held that a shopping center was not a public forum, even though it had parking garages, sidewalks, and gardens in the area.70 The Court reasoned that, even though the shopping center was open to the public and was very large, it was still privately owned.71 It distinguished a shopping mall from a company-town, which although privately owned, operated as a municipality.72 Interestingly, the concept of a mall as a single multi-level

65 Id. 66 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). 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 Lloyd Corp. v. Tanner, 407 U.S. 551, 570 (1972). 71 Id. at 569. 72 Id.


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. 74 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.). 75 Intl Soc. for Krishna Consciousness v. Lee, 505 U.S. 672, 683 (1992). 76 460 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.


content.82 The expansive nature of the forms of expression covered by the First Amendment has stayed relatively constant as compared to other areas, such as the Commerce Clause. There seems to be, however, an ever-changing analysis by which public fora and the type of expression are assessed; none of which appear to have any connection to textual originalism or reading at the lowest level of abstraction.

III. The Second Amendment

A. What Arms Are Allowed?

Heller laid down the broad principle that there is an individual right to bear arms.83 The majority opinion, however, stated that regulation of the right was permissible, leaving open the scope of that regulation.84 I will discuss two issues created by technological change, that of automatic weapons, which have much more killing capacity than the arms existent in 1792, and non-lethal weapons, such as Tasers, which have much less.

In 1792, rifles and pistols were armed with powder and a ball. The powder had to be ignited by some means, e.g., the flintlock.85 A skilled infantryman could, with training, fire three rounds a minute.86 Technology has created weapons that today can be carried by only one unskilled person, but would have caused unimaginable destruction in the late eighteenth century. On the other hand, technology has created weapons that, unlike late eighteenth century arms, are not lethal, for example, pepper spray, stun guns, and Tasers.87

1. Heller v. Machine Guns

We start with the problem of new and powerful weapons. There is little precedent because for years the Supreme Court neglected the Second Amendment. The case preceding Heller was United States v. Miller, which

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 District of Columbia v. Heller, 554 U.S. 570, 595 (2008). 84 Id. at 626. 85 NORM FLAYDERMAN, FLAYDERMANS GUIDE TO ANTIQUE AMERICAN FIREARMS AND THEIR

VALUES 325 (9th ed. 2007). 86 Michael S. Obermeier, Comment, Scoping Out the Limits of Arms Under the Second

Amendment, 60 U. KAN. L. REV. 681, 682 (2012). 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).


dates back to 1939.88 Jack Miller was prosecuted for interstate transportation of a sawed-off shotgun in violation of the National Firearms Act.89 The district court dismissed the indictment on a demurrer, holding that the National Firearms Act, which regulated the interstate transportation of firearms with a tax, was unconstitutional because it violated the Second Amendment.90 After an appeal by the United States Government, the Supreme Court reversed and remanded the lower courts decision, holding that the Second Amendment only protected the right to bear arms in association with a militia.91 The Court reasoned that the possession of the arm must bear some reasonable relationship to the preservation or the efficiency of a well-regulated militia, which the Court attributed to being the purpose of the Amendment at the time of its adoption.92 Miller stated, at least that as a matter of law, the Amendment does not guarantee a right to keep and bear such an instrument (the shotgun).93 The Court noted that it was not within judicial notice that the shotgun is any part of the ordinary military equipment or that its use could contribute to the common defense.94 The case was reversed and remanded.95

The question is, did the Supreme Court hold as a matter of law that the shotgun could be made illegal, or did it just rule that the decision could not be made on judicial notice without a hearing on further evidence on the common use of sawed-off shotguns? We will never know because the defendant was killed before the retrial.96

In Heller, the majority held that there is an individual right to keep and bear arms.97 But what are the permissible arms that can be kept and borne? Heller gives us some, but not definitive, guidance. Heller gives several definitions and usages that generally conceive of arms as being capable of being carried by a single person.98

88 United States v. Miller, 307 U.S. 174 (1939). 89 Id. at 175. 90 Id. at 177. 91 Id. at 178. 92 Id. 93 See id. at 176. 94 Miller, 307 U.S. at 178. 95 Id. at 183. 96 Sandra S. Froman & Kenneth A. Klukowski, A Round in the Chamber: District of Columbia

v. Heller and the Future of the Second Amendment, 9 ENGAGE: J. FEDERALIST SOCY PRAC. GROUPS

16, 17 (2008). 97 District of Columbia v. Heller, 554 U.S. 570, 592 (2008). 98 Id. at 581 (quoting 1 SAMUEL JOHNSON, DICTIONARY OF THE ENGLISH LANGUAGE 106 (4th


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 700950 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. 100 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.


illegal purposes.112 They are dangerous, capable of firing several hundred rounds per minute, but all weapons are dangerousthat is their point.113 Obermeier concludes that history considers the rate of fire in determining dangerousness, so they are not likely to have constitutional protection.114

Obermeier sees at least two things wrong with the Heller criteria. First, the Court applied the common use test, which bases a constitutional right on consumer demand.115 Under this theory, following the arc of technology, modern day assault rifles, such as the AK-47 and its progeny, are protected.116 However, Heller questioned such weapons legality leading to the next problem, new weapons.117 Obermeier contemplates the halting effects on technological evolution in firearms and restricting the protection of arms solely to weapons in common use today.118 In the alternative, Obermeier proposes an objective test to define arms based on how many persons the weapon is capable of killing in a certain period of time.119 Thus, a machine gun and a fragment grenade (which can kill anyone in a five meter radius) are more dangerous than a knife. Note that here we are applying a test laid down by Blackstone in the eighteenth century to twenty-first century weapons.

2. Heller v. Tasers

There is also an issue as to whether non-lethal weapons, such as Tasers or BB guns, should receive Second Amendment protection. The People of the State of New York v. Nivar held that since non-lethal weapons are not arms they are not covered by the Amendment.120 This presents somewhat of a Goldilocks solution, in that overly dangerous weapons and non-lethal weapons receive no protection, but only those that are just right will be covered.

Professors Craig S. Lerner and Nelson Lund argue that Heller does protect non-lethal weapons.121 As evidence, they point out that the District

112 See id. 113 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).


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 See id. at 140708. 123 Id. at 1412. 124 533 U.S. 27 (2001). 125 Id. at 34. 126 Lerner & Lund, supra note 121, at 1411. 127 Ron F. Wright, Shocking the Second Amendment: Invalidating States Prohibitions on Tasers

with the District of Columbia v. Heller, 20 ALB. L.J. SCI. & TECH. 159, 186 (2010). 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).


national manufacturing, commerceeven under the most narrow definitionis totally different than in 1789.131

A. Pre-New Deal

The Supreme Court declared that the Commerce Clause was a broad and plenary power in the first Commerce Clause case, Gibbons v. Ogden.132 Chief Justice Marshall declared that the ability to regulate commerce included the power to prescribe the rule by which commerce is to be governed [and that] this power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.133 Chief Justice Marshall rejected a strict constructionist interpretation of the Constitution, stating that the federal government could regulate intrastate activity under the Clause.134

After the Civil War, there was a great expansion of the national economy, and the northern states shifted to a more industrialized rather than a mostly agrarian economy.135 Laissez-faire economics was dominant in the years following the Civil War and theories of smaller government were popular.136 However, during Reconstruction there was distrust in the states abilities to regulate their economies. The federal government began to step in, passing legislation that dealt with economic and social issues that had previously been left to the states.137

However, the Supreme Court limited the Commerce Clause powers. In 1895, the Court decided in United States v. E. C. Knight Co. that manufacturing was a local activity, and only states could regulate it.138

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 Gibbons v. Ogden, 22 U.S. 1, 196 (1824). 134 See FRANKFURTER, supra note 132, at 47 (noting that Chief Justice Marshall saw the

influence of state activities projecting beyond state boundaries . . . physically intrastate, [but]

within reach of the Congressional power over commerce). 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 See United States v. E. C. Knight Co., 156 U.S. 1, 12 (1895).


Manufacturing was held to be too incidental to commerce to fall into the ambit of the federal Commerce Clause power.139 In the same vein, the Court struck down an attempt by Congress to regulate child labor in 1918, again determining that Congress could not regulate aspects of manufacturing.140

In 1908, the Court struck down a federal statute requiring railroads to accept responsibility for injuries that any railroad employees suffered.141 The law was held unconstitutional because it applied to all employees regardless of whether or not they were physically involved in interstate commerce.142 In fact, during this time, the Court struck down most legislation that regulated labor, while Congress was attempting to pass legislation to establish national economic and social policies.143

B. The New Deal

In the discussion and theories surrounding what led to the stock market crash of 1929 and the Great Depression, there is a view that the causes were nationwide,144 and thus, a national solution was required.145 This philosophy steered economics away from profit and toward an acceptance of governments role in economic planning and obtaining social objectives.146 In the years following the market crash of 1929, the Court overturned several previous decisions.147 To some, this reasoning indicated a departure from what the Constitution meant.148 To others, it was simply a restoration of the proper interpretation of the Constitution.149

In the 1930s, the Court made use of (and expanded) Marshall-era

139 See id. 140 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). 144 ROTTSCHAEFFER, supra note 135, at 2. 145 See id. at 1. 146 Id. at 12. 147 See id. at 5 & n.3 (explaining the reasoning used in United States v. Darby, 312 U.S. 100,

11617 (1941), which overruled Hammer v. Dagenhart, 247 U.S. 251 (1981): Hammer v.

Dagenhart, was a departure from the principles which have prevailed in the interpretation of

the Commerce Clause both before and since the decision and that such vitality, as a precedent,

as it then had has long since been exhausted. It should be and now is overruled). 148 Id. at 5. 149 See id.


precedent upholding FDR and Congresss efforts to solve the national crisis. In the 1937 case NLRB v. Jones & Laughlin Steel Corp, the Court began to back away from its previous Commerce Clause jurisprudence by holding that Congress could regulate labor-management decisions.150

Similarly, in United States v. Carolene Products Co., the Court held that because:

The [Commerce Clause] power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.. . . Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals, or welfare.151

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. 151 304 U.S. 144, 147 (1938). 152 See United States v. Darby, 312 U.S. 100, 115 (1941). 153 247 U.S. 251 (1918). 154 317 U.S. 111 (1942). 155 United States v. Lopez, 514 U.S. 549, 560 (1995). 156 Wickard, 317 U.S. at 115. 157 Id. at 114. 158 Id. at 11415. 159 Id. at 119.


substantial economic effect on interstate commerce.160 In so holding, the Court reasoned that one farmers homegrown wheat may not have a substantial effect on interstate commerce, but a larger number of wheat farmers would have a substantial negative effect on commerce.161

Whether or not there was a revolution in the interpretation of the Commerce Clause is debatable. Professor Henry Rottschaefer states that even the most extreme advocate of laissez faire never claimed that government should adopt a complete hands-off policy with respect to the economic system.162 Rather, he suggests that the philosophical changes in the role of government were more shifts in emphasis rather than the adoption of a completely new set of assumptions.163

Others claim that the New Deal was a constitutional revolution.164 Michael E. Parrish refers to 1937 as the start of the constitutional revolution, where [i]nstead of invoking the due process and commerce clauses to veto progressive laws, which it frequently did between 1880 and 1937, the Court retreated to the more secure redoubt of statutory construction, abandoning the attempt to veto national economic policy.165 The reasons and justifications for the Courts reversal are not entirely agreed upon. There is no doubt that there was a growing belief that government should exercise more regulatory control over economic matters [which] resulted in a relatively rapid change in the Courts philosophy.166 Some argue that the Court simply reconsidered what actually constituted interstate commerce.167 Others argue that the Court assumed that the states would not be harmed by Congresss impositions of power because they would remain protected by the political process.168 Lastly, some claim the Court was not politically motivated, but rather simply engaged in scrupulous line-drawing.169 Professor

160 Id. at 125. 161 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.). 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 Id. (citing Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1487 (1994)). 169 Id. (citing Parrish, supra note 165, at 732 ).


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). 173 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.

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


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 Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 120 (1804). 180 Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1856). 181 All persons within the jurisdiction of the United States [have] the same right in every

State and Territory to make and enforce contracts regardless of their skin color. Civil Rights

Act of 1866, ch. 31, 14 Stat. 27 (reenacted by Enforcement Act of 1870, ch. 114, 18, 16 Stat. 140,

144 (1870)) (codified as amended at 42 U.S.C. 1981 (1987)). 182 See William Mayton, Birthright Citizenship and the Civic Minimum, 22 GEO. IMMIGR. L.J.

221, 245 (2008).


The first case explicitly addressing the Fourteenth Amendments birthright citizenship was Elk v. Wilkins.183 In denying a Native American the right to vote, the Court reasoned that a person could not become a citizen by his own will without the action or assent of the United States.184 Less than ten years later, the Court in United States v. Wong Kim Ark found the American-born child of Chinese immigrants to be an American citizen.185 In Wong Kim Ark, the Court noted that the Constitution does not define the words of the Fourteenth Amendment. Therefore, the language must be interpreted in the light of the common law,186 the principles and history of which were familiarly known to the framers of the Constitution.187 In distinguishing Wong Kim Ark from Elk, the Court stated that Elk only applied to Indian tribes within the United States and did not deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country.188 Thus, except for members of Indian tribes, alien enemies in hostile occupation, and diplomats, all those born under United States jurisdiction are citizens by virtue of birth.189

For more than a century, the Wong Kim Ark reasoning has controlled.190 Recently, conservative scholars have argued that the drafters of the Fourteenth Amendment never intended to grant citizenship to the children of illegal immigrants.191 Yet, the textual originalism that conservatives ascribe to yields a conflicting conclusion. These scholars argue that the United States has not consented to the children of illegal immigrants becoming citizens, as required by Elk.192 However, looking at the text of the Fourteenth Amendment, it is apparent that there is no reference to consent.193 Further, conservatives argue that subject to the jurisdiction

183 Elk v. Wilkins, 112 U.S. 94, 94 (1884). 184 Id. at 100. 185 United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898). 186 See id. at 65455 (discussing the fundamental principle of the common law with regard

to English nationality at birth within the allegiance of the King). 187 Id. at 654. 188 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). 192 See SCHUCK & SMITH, supra note 191, at 76. 193 Kamp, The Birthright Citizenship Controversy, supra note 177, at 61.


thereof in the first clause of the Fourteenth Amendment means allegiance to the United States in political, not geographic terms.194 Inconsistent with the conservative approach of textualism, this argument blatantly disregards the plain text of the Fourteenth Amendment: All persons born . . . in.195 Conservatives also argue, from a public policy standpoint, that birthright citizenship encourages illegal immigration.196 This argument, however, is contrary to conservative views197 that policy arguments should not change the meaning of the Constitution.

The Supreme Courts complete lack of experience in dealing with cases directly involving birthright citizenship leaves wide latitude for conflicting policy and ideological arguments. Therefore, conservatives and liberals alike must consider the plain meaning of the Constitution, historical precedent, and case law when addressing birthright citizenship.

VI. The Roberts Court and Technological Change

We are now in a position to answer Professor Pamela Karlans rhetorical question, Why, then, is the term arms permitted to evolve overtime, while cruel and unusual punishment is not?198 The answer is that there is no reason. The Court has used various strategies to update the Constitution while never admitting (and frequently, actively denying) that it is doing so.

Reviewing these legal areas, we see that the Court has somehow managed to change the law to adjust for technological change, as well as socio-economic change (if not social change per se), without explicitly admitting that is what it has been doing.199

In the case of the First Amendment, by climbing the ladder of abstraction, the Court has interpreted the Amendment to cover such

194 See Graglia, supra note 191, at 9. 195 See U.S. CONST. art. XIV, 1; Kamp, The Birthright Citizenship Controversy, supra note 177,

at 6163 (juxtaposing the conservative interpretations view of more-than-geographical

allegiance with the genealogical line of current U.S. President Barack Obama). 196 See Graglia, supra note 191, at 2 & n.5. 197 See Kamp, The Birthright Citizenship Controversy, supra note 177, at 65 (referring to

Christopher Wolfes book, How to Read the Constitution, which discusses how relying on public

policy leaves room for too much variation and destroys constitutionalism. CHRISTOPHER

WOLFE, HOW TO READ THE CONSTITUTION 98 (1996)). 198 Karlan, supra note 23. 199 Stanley Fish, The Law Wishes to Have a Formal Existence, in THE FATE OF LAW 163 (Austin

Sarat & Thomas R. Kearns eds., 4th ed. 1994).


developments as modern newspapers, television, and the Internet.200 It has done so by abstracting freedom of expression from the specific enumerated freedoms.201 Thus, the Court can ignore the fact that newspapers are no longer printed on presses and that speech occurs on television and the Internet, or even by giving money to PACS.202 The Court has done so without ever saying the First Amendment covers expression in general, and expression does not have to fit into one of the enumerated rights. This is certainly not the approach of textual originalism (e.g., Heller), but it does not allow the Court to cope with the revolutionary change in media and media distribution since 1792.

As to the Second Amendment, there were just three Supreme Court cases prior to Heller.203 None of them support a private right to bear arms unrelated to service in a militia. Although unsupported by precedent, Heller solves two problems caused by technological and social change.

One problem is the decline, or rather the disappearance of, the militia. Around the time of the Second Amendments adoption, George Washington stated that no militia could stand up to a professional army.204 After the initial battles of the Revolution, e.g., Concord, the militias performed horribly.205 This was nothing newabout a hundred years before, it was apparent that militias were not effective against a trained army. Militias would not be effective in fighting Englands wars in Europe

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

OF COMMITTEES OF THE SENATE OF THE UNITED STATES FOR THE THIRD SESSION OF THE FORTY-

FIFTH CONGRESS, 187879, 97 (1879). 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).


after the accession of William of the Netherlands and technical improvements had required the infantryman to execute orders effectivelydiligent practice and drill were essential.206 Yet the Court ignores the militias disappearance, a development which makes obsolete (if it were ever true) the Constitutional affirmation that a militia [is] necessary for the security of a free state.207 Here the Court is just ignoring technological change, a change that had been going on for centuries at the time of Heller.

Heller splits all differences in its idiosyncratic reading of the Second Amendment by relying on an obscure principle of grammar, the right to keep and bear arms has been split off from any relationship to militia membership.208 It reasoned that the prefatory clause of the Second Amendment209 merely announces the purpose for which the right was codified: to prevent elimination of the militia, which might be accomplished not by banning militias, but by taking away a persons arms.210

Justice Scalia found an individual right to bear arms in the Second Amendment. The Court claims that an accurate reading of the historical record confirms that the Framers did believe there was an individual right to bear arms.211 But is there any limit to the arms an individual can bear? Justice Scalia inferred the power of the state to prohibit unusual and dangerous weapons in Blackstones History of the Common Law.212 One wonders how Blackstone came to be a leading authority on the meaning of the Constitution, but to Justice Scalia, Blackstone has enabled regulation of dangerous weapons.213

The Court has (with the exception of Justice Thomas) followed the expansive New Deal reading of congressional Commerce Clause powers. Following Justice John Marshalls view of the Commerce power, the Court

206 William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136

MIL. L. REV. 1, 1617 (1992). 207 District of Columbia v. Heller, 554 U.S. 570, 59899 (2008). 208 See id. at 598. For a conservatives criticism of Heller, comparing Heller to Roe v. Wade, see

J. Harvey Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253

(2009), reprinted in THE SECOND AMENDMENT ON TRIAL 189, 19192 (Saul Cornell & Nathan

Kouskanich eds., 2013). 209 A well regulated Militia, being necessary to the security of a free State . . . U.S. CONST.

amend. II. 210 Heller, 554 U.S. at 599. 211 See id. at 603. 212 Id. at 627. 213 Id.


adopted the principle that an activity that substantially affects commerce can be regulated under the Necessary and Proper Clause. There is nothing in National Federation v. Sebelius that indicates the contrary.214 National Federation can be limited to laws requiring, rather than prohibiting action. Only Justice Clarence Thomas would adopt Professor Randy Barnetts restrictive reading of the Commerce Clause.215 Professor Barnett states that commerce in 1789 meant only trade or exchange, and that nothing in the documents from the Constitutional Convention or the Federalist Papers suggests anything broader.216 This interpretation would exclude manufacturing and production from the Commerce Clause.217 This view makes it questionable whether the Court could continue to deal with an industrial (some say a post-industrial) economy using an eighteenth century document.

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

Justice Scalia would likely argue that adapting only to technological change puts an objective constraint on judges decision making. He is constantly stating that the problem, or rather the evil, of basing decisions on cultural change is that it permits judges to decide on their own subjective values and instincts. Thus, judges take on the unconstitutional power of legislaturesthe result is judicial tyranny.219

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. 217 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). 219 See SCALIA & GARNER, supra note 15, at 1819.


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 J. Harvey Wilkinson III, supra note 208, at 19192.


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-framers-

constitution.php (last visited Apr. 6, 2015). 223 Karlan, supra note 23.

Documents

Kamp: Constitutional Interpretation and Technological Change