Following is a paper I am presenting this week at the Law & Society Conference in Denver, "Reconciling Liberty and Progressive Government," that synthesizes a number my prior postings:

Libertarians with progressive sympathies (or progressives with libertarian sympathies) are confronted by a nagging conundrum: that individual freedom and the common-good, almost by definition, can seem to be mutually exclusive. If we indiscriminately elevate individual free-will, we risk tragedy-of-the-commons issues; by contrast, if we indiscriminately enact progressive legislation for the common good, we run the risk of inflicting death by a thousand cuts on individual liberty.

A concept we may call "Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good. Looking first at the “liberty” half of the phrase, America was founded, first and foremost, to preserve individual freedom from oppressive government. This part is nonnegotiable. America's founding documents - the Declaration of Independence and the Constitution - make the point clearly: the single irreducible value eclipsing all else under the American constitutional regime is liberty. The eminent historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than “freedom” … or “liberty,” The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings…”

Historian Bernard Bailyn reports that the most basic goals of the American Revolution were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” To conceptualize, imagine if you will the “Google-Earth” feature of Google; except here, written answers to basic constitutional questions may be viewed in greater or lesser detail by zooming-in or zooming-out. Zooming-out to view the question, “What single value does the Constitution stand for?,” from the widest possible angle, where all detail has been lost leaving only one answer to the question, the answer would read, “Liberty.” Zooming-in, we could next read, “Equality,” “Democracy,” then “Property,” and so on. These more detailed values are simply means to the ultimate end – which is liberty.

What to do when government intrudes upon liberty? The framers of the Constitution envisioned that the judiciary would play a key role in protecting liberty from majoritarian excess. James Madison, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

This is something upon which judges and scholars from across the political spectrum can agree. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”

In practice, however, conservative ideology has latched onto the idea that the use of judicial review is “undemocratic” and “activist”; and will almost always constitute inappropriate “legislating from the bench.” What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government in the first place is to protect liberty and equal justice. As explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.

When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.

As for the other part of the progressive liberty equation, how are we to understand how progressive government may proceed in acting for the common good? The first thing to understand is that, as compared to non-negotiable liberty, the “progressive” part of progressive liberty IS negotiable. In a democratic republic, it is the will of the people what sort of society they will have. So long as the government is not infringing on individual freedom, it can set widely varying policy - anything from a minimalist caretaker state to a more progressive social welfare model of the sort seen in Western Europe (or indeed, something more different still than either of these).

An energetic position, one that a progressive libertarian would favor, suggests that it is the government's duty to enact humane policy that looks out for people who can't help themselves, and that provides equal opportunity to all. Among other things, this means that government should guarantee that every man, woman, and child have access to basic healthcare. (Incidentally, the framers appeared to be “progressives” of a sort themselves, in that they advocated an energetic government. “Energy in the [government] is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70. Madison agreed. “Energy in government,” he said in No. 37, “is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good government.”)

Does this mean that the Constitution mandates such government involvement?In a word: No. The Constitution sets up the republican form of the government and imposes strict limits on governmental infringements of individual liberty; but it leaves the details of social and economic policy to be worked out by the people through the democratic process. Whether the people prefer a Progressive Society, a Minimalist Society, or some other sort of Society, they control their destiny by voting for representatives who will legislate to that end. That's republican democracy: accountable majorities enacting policy; and if the majorities don't adequately reflect the people's wishes, others are elected who will. Then if at any time the democratically-accountable majority legislates in ways that inappropriately infringe individual liberty, the Constitution (as enforced by the Court) steps in. That's what liberty is about - limited government constrained by a Constitution that protects, above all else, individual freedom.

. . .

Now that we have a definition for progressive liberty, let’s look closer at the title of this paper, “Reconciling Liberty and Progressive Government.” Specifically, how are we to know the threshold beyond which a progressive, energetic government may not go, lest it infringe upon constitutionally-protected liberty?

An excellent place to start (and perhaps end) is with the "harm principle" enunciated by J.S. Mill in his 1859 classic, On Liberty:

"[There is but] one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, … that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."

Putting this into practical terms that government policymakers can apply, we might “think of the harm principle as operating in two steps,” Professor Ian Shapiro suggests. “When evaluating a particular action or policy, the first step involves deciding whether the action causes, or has the potential to cause, harm to others. If the answer is no, then the action is in the self-regarding realm and the government would be unjustified in interfering. Indeed, in that case the government has a duty to protect the individual’s freedom of action against interference from others as well. [The second step occurs] if, however, the answer to the initial query is yes, [in which case] different considerations arise. We are then in a world in which harm is being committed willy-nilly, and the question is: What, if anything, should the government do about it?,” and it is up to the democratic process to work that out.

In other words, society may legislate – whether progressively or not – either when the legislation (a) simply does not affect individual liberty, and/or (b) when a person’s conduct in exercising individual liberty prejudicially affects, or harms, the interests of others. (Incidentally, some, such as Randy Barnett, would define this latter situation as not involving “liberty” at all, but rather as “license” (which is not protected by the Constitution); on the reasoning that liberty, by definition, cannot harm others). In either case it is open to discussion through the democratic process whether the common good will be promoted. So conceived, the society may strike a balance between liberty and progressive government.

It is important to re-emphasize Shapiro’s conclusion, however (perhaps to the point of tedium), that according to the Harm Principle, “short of the point at which a person's conduct affects the interests of no persons besides himself, there is no room for [memorializing into law any such policy discussion.]” Individual liberty prevails in such cases, not to be touched by government.

This last point is crucial, in light of government's unceasing, inexorable, and perhaps-inevitable tendency to interfere inappropriately in individual conduct. Alexis de Tocqueville presciently identified the danger of an overactive government in his 1830 masterpiece, Democracy in America, stating: “[In a maturing democracy,] a wholly new species of oppression will arise. Among citizens equal and alike, the supreme power, the democratic government, acting in response to the will of the majority, will create a society with a network of small complicated rules, minute and uniform, that none can escape. Ultimately, then, the citizens of a democratic country will be reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.” To some in America today, this scenario sounds uncomfortably familiar.

Once again, under our constitutional regime it is the role of the judiciary to prevent this sort of creeping tyranny from occurring. One difficulty, though, is that ever since 1937 the Supreme Court has applied a disproportionately deferential standard of review to government action - to the detriment of individual liberty. (This occurred largely as a backlash to the Supreme Court overstepping its bounds during the mid-1930s when it aggressively struck down FDR’s New Deal legislation. Throughout the rest of the 20th and into the 21st century, the Court has swung too far in the other direction by not going far enough in requiring government (particularly state and local government) to justify its actions that may potentially affect liberty interests.) A more deferential-to-liberty standard of judicial review is needed, perhaps modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine, as I suggest in a 2007 Louisiana Law Review piece. This approach, already championed on a narrow basis by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately honors the Constitution’s core Liberty-first ideals, while also recognizing the proper constitutional role of government in maintaining law and order.

In conclusion, government is liberty’s servant in America. Government – and democracy itself - exists primarily to protect liberty, with the Constitution serving as the bulwark against inevitable government attempts toward overreaching. The framers understood that men are not angels and that power has the overwhelming tendency to corrupt, so they constructed a limited government of separated powers with the ultimate power reserved to the people to operate within their own self-imposed constitutional constraints.

That said, to the extent government action does not implicate liberty, the details of social and economic policy are to be worked out by the people through the democratic process. One can be a staunch supporter of liberty on one hand; while working actively through the democratic process to enact progressive, energetic policy. That, in essence, is progressive liberty.

The Seventh Circuit Federal Court of Appeals in Chicago yesterday heard oral argument in National Rifle Association v. Chicago (formerly McDonald v. Chicago), a case in which the Constitutional Accountability Center, joined by law professors Richard Aynes, Jack Balkin, Michael Curtis and myself, filed an amicus brief arguing that the Fourteenth Amendment privileges or immunities clause should be interpreted to apply the Second Amendment (together with the rest of the entire Bill of Rights, and more) to the states.

If the judges’ questioning is any fair indication, it appears the Seventh Circuit will decline the petitioners’ and the CAC’s invitation to incorporate the Second Amendment under either the due process clause or the privileges or immunities clause – not because the court necessarily objects to the arguments, but rather because it believes such bold steps are more appropriately within the purview of the Supreme Court.

NRA counsel Stephen Halbrook was barely into his first sentence before the judges, particularly Judge Richard A. Posner and (presumably) Chief Judge Frank H. Easterbrook, began peppering him for explanations for why the appellate court should even be deciding the question.

For context, here are some of the relevant exchanges between the court and counsel, with a couple observations to follow:

Judge Posner (to Mr. Halbrook): I don’t see how you get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions. You have Cruikshank and Presser and Miller and the Supreme Court’s footnote in Heller where it declines to reexamine those decisions, and it says they hold that the second amendment doesn’t govern state action…. [Those cases] may have overlooked grounds, they may be poorly reasoned, but there they are - they’re holdings.
…
Chief Judge Easterbrook (later): I entirely appreciate your argument that [the earlier cases] don’t discuss selective incorporation. Indeed, I entirely appreciate your argument that the SlaughterHouse Cases are wrongly decided…. But as is often said in the bureaucracy, that’s above our grade level.
…
Chief Judge Easterbrook (responding to co-counsel (for petitioner McDonald) Alan Gura): I actually don’t know why you’re so upset about the prospect that Judge Posner and I have raised with you. It doesn’t matter what we say. [In contrast to the Ninth Circuit in the recent Nordyke case,] we’re not going to resolve this issue; you’ve got yourself a conflict between the circuits. Why don’t you just say, ‘Our arguments are preserved – thank you very much.’

Mr. Gura: If that’s what your honor would like me to do, then I’ll certainly go ahead and do that. Our arguments are preserved and thank you very much. [Laughter] I’ll reserve the rest of my time for rebuttal.

Chief Judge Easterbrook: This is going to be resolved elsewhere. Yes, thank you, Mr. Gura.

Ms. Benna Solomon (counsel for Chicago): It does not matter that [Cruikshank, Presser and Miller] were decided before the Court embraced the process of incorporation under the due process clause.… Only the Supreme Court itself can limit or update its prior definitive holdings. They do not become non-precedential simply because one can imagine an argument against them, or because the Court itself might later discard them.

Chief Judge Easterbrook: There’s actually a pretty good argument against them. And it’s not simply because the justices have used a different approach in recent years. It’s that there’s a lot of rumbling about the Slaughter-House Cases even amongst the justices.

Ms. Solomon: That is correct. And as far as privileges or immunities go, ... of course it would be [the Supreme Court’s] prerogative to consider overruling, limiting, changing, modifying or clarifying Slaughter-House. And of course it’s not simply Slaughter-House. The rule that the privileges or immunities does not wholesale incorporate the Bill of Rights has been repeated many times…. The privileges or immunities ruling has never been disturbed. So we do respectfully believe that is binding on this court as well.

Chief Judge Easterbrook (referring to an early voice in the wilderness who advocated accepting Justice Hugo Black’s call to reexamine the fourteenth amendment’s history, especially the privileges or immunities clause): One can only imagine William Winslow Crosskey coming back to debate this issue.

Ms. Solomon: It will be ripe, no doubt, for someone to present to the Supreme Court.
…

Chief Judge Easterbrook (responding to Ms. Solomon’s observation that several other provisions of the Bill of Rights have still not been incorporated): One potential consequence of the line you’re taking is that the Supreme Court will overrule Slaughter-House and incorporate everything. And then all of Chicago’s administrative tribunals for handling parking tickets will suddenly become unconstitutional under the seventh amendment [right to jury trial in civil cases].

Ms. Solomon: The Supreme Court will no doubt consider that going down the privileges & immunities road would need either a limiting principle not evident in the arguments on the other side, or it would need to overrule the cases indicating that the grand jury clause and the seventh amendment, and the Court has reaffirmed those rather recently.
…
Mr. Gura (on rebuttal): In 1868, when the fourteenth amendment came about, it was with the express purpose and intent and common understanding, that it was to incorporate the Bill of Rights, and the second amendment was the right that was most at issue at the time. … . And we of course preserve our privileges or immunities argument for the upper court. But at the very least this court is still free, and bound actually by Duncan v. Louisiana, to reverse the judgment [and hold that the due process clause incorporates the second amendment,] which we hope this court does.

Reflections on the oral argument:

What is most striking about this sequence is that multiple federal courts, after having swept the privileges or immunities clause under the rug for over 135 years, are now talking in serious terms about the provision. To hear a jurist of Chief Judge Easterbrook’s stature express sympathy for arguments that the SlaughterHouse Cases (the 1873 case that buried the privileges or immunities clause) was wrongly decided is a major step. Add to that the Ninth Circuit’s recent Nordyke decision holding that the second amendment is incorporated through the due process clause (and acknowledging, but not deciding, the privileges or immunities arguments), and we see that the arguments being made by a growing number of scholars, the CAC and others are finally starting to gain some traction.

Second, regarding the suggestion that giving full effect to the privileges or immunities clause (i.e., incorporation of the entire Bill of Rights, and more, to the states) would be too disruptive to the states, the Constitution itself provides a tried and true mechanism to allay this concern: the Article V amendment process. If the people decide that they wish to retain the Supreme Court’s current doctrine of not applying certain of the Bill of Rights to the states, such as the Seventh Amendment right to jury in civil cases and the Fifth Amendment grand jury provision, it is within their power to do so. The amendment process would be the proper approach to achieve this goal – but it is not proper to continue holding the privileges or immunities clause hostage.

While it is true that amending the Constitution is very difficult to do (it’s only been done eighteen times in our history – first with the Bill of Rights and then 17 times since), it’s not impossible. Indeed, when the people put their minds to it, it can be done very quickly – witness the very first amendment to follow the Bill of Rights, the eleventh amendment, when it took Congress less than three weeks to approve the amendment after a Supreme Court ruling not to its liking; and the states less than a year to ratify.

*This post also appears at the CAC Text and History Blog.

In his column in today's Washington Post, Eugene Robinson nicely captures the juxtaposition of the choices offered by Barack Obama's world-view with that of the suddenly media-genic Richard Cheney:

"Which reality do you inhabit, Obama World or Cheney World? ...

"In Obama World, human beings are flawed but essentially decent and rational. Most will behave in a way consistent with enlightened self-interest. In Cheney World, humanity's defects are indelible and irredeemable. Absent evidence to the contrary, evil should be assumed to lurk in every heart. Better to do unto others before they have a chance to do unto you.

"In Obama World, choices are artifacts of reasoning and thus are only as valid as the logic underlying them. Security and freedom, for example, do not have to be seen as an either-or proposition. The nation never came to a fork in the road with one path labeled "torture" and the other labeled "disaster." In Cheney World, choices are binary and absolute. There's no wiggle room, no gray area, no time for second thoughts and no debate about how our options are framed. It's my way or the highway, citizen.

"In Obama World, objective fact matters. The failure to find any weapons of mass destruction in Iraq is significant. The absence of any link between Iraq and the Sept. 11, 2001, terrorist attacks is relevant. In Cheney World, facts are based more on conviction than evidence. If it's possible to imagine "nuclear-armed terrorists," as Cheney did in his speech the other day, then they "exist" at least as a concept -- and this conceptual existence justifies torture, among other abuses.

"In Obama World, some "threats" can be recognized as no threat at all. Since there has never been an escape from the federal "supermax" prison in Colorado, and since it already houses plenty of terrorists, spies and other miscreants, there's no real reason to be concerned about transferring any of the Guantanamo inmates, even the worst of the lot, there.

"But in Cheney World, no threat, however remote, can be definitively ruled out -- especially if there's political hay to be made. And anyway, it's fun to scare people.

"Obama World buzzes with information overload: hundreds of cable channels, zillions of Web sites, constant "tweets" from Twitter. In Cheney World, it's pretty much Fox News and Rush Limbaugh, all day, every day....

"In Obama World, Americans have a sense of community and shared purpose. Those upon whom fortune has smiled -- through accident of birth, educational opportunity, career-enhancing connections or any other kind of "right place, right time" serendipity -- recognize that extending a hand to those who do not enjoy such advantages is not just morally right, but ultimately beneficial to all. They believe that Henry Ford was right to pay his workers the shockingly high sum of $5 a day -- so they could afford to buy the cars they were making.

"In Cheney World, sharing is for saps. Obtaining great wealth and power has nothing to do with being "fortunate," whatever that means. It's all about preparation, focus and hard work. The idea that luck or connections could possibly have anything to do with, say, becoming the lavishly compensated chairman and chief executive of a mega-corporation such as Halliburton? Preposterous and un-American.

"In Obama World, America exerts its leadership not just through force but through example. Our nation's exceptionalism lies in its ideals of freedom, justice and opportunity for all, in its decency and generosity, in its commitment to the rule of law and its zeal for self-improvement, in its willingness to examine its own flaws and work to correct them. These intangibles are backed up by the world's most powerful military, but it's the ideals that matter most. When we lose sight of them, we head down the path of inevitable decline.

"In Cheney World, ideals are nice and all that, but might makes right. We do what we want. Because we can. You got a problem with that?

"Obama World is an exciting place to live right now -- not perfect, to be sure, but full of energy and hope. If Dick Cheney wants to stay in his bunker, that's his business. Others might want to come up for some fresh air."

Several months ago, shortly after the Michael Phelps bong-photo imbroglio, I posted here to argue that soft drugs should be legalized because current drug laws are: (1) bad policy; and (2) unconstitutional.

Focusing on the first point, we discussed that state and federal laws criminalizing the use and possession of marijuana are atrocious policy for at least three reasons: (a) the massive costs imposed on lives and public treasuries; (b) low efficacy - i.e, the laws do little to dissuade those who desire to light up from doing so; the (c) crime problems caused by making marijuana a black market commodity.

So, we continued, wouldn't it be better in policy terms for the government to decriminalize marijuana and regulate much like it regulates alcohol and tobacco? This is what many policymakers - conservative and liberal alike - believe, for a number of reasons: (1) it would reduce crime; and (2) it would be a great moneymaker for government (through taxes on sales, etc.).

In an OpEd entitled "Paying With Our Sins" in today's New York Times, Nick Gillespie, editor-in-chief of Reason.com, addresses this last point in making the policy case for legalizing not only marijuana, but also other vices like gambling and prostitution. (The constitutional case I mentioned in my prior posting holds for these vices as well.)

Gillespie explains: "All of these vices, involving billions of dollars and consenting adults, already take place. They just take place beyond the taxman’s reach....

"More taxed vices would certainly lead to significant new revenue streams at every level. That’s one of the reasons 52 percent of voters in a recent Zogby poll said they support legalizing, taxing and regulating the growth and sale of marijuana. Similar cases could be made for prostitution and all forms of gambling.

"In terms of economic stimulation and growth, legalization would end black markets that generate huge amounts of what economists call “deadweight losses,” or activity that doesn’t contribute to increased productivity. Rather than spending precious time and resources avoiding the law (or, same thing, paying the law off), producers and consumers could more easily get on with business and the huge benefits of working and playing in plain sight.

"Consider prostitution. No reliable estimates exist on the number of prostitutes in the United States or aggregate demand for their services. However, Nevada, one of the two states that currently allows paid sex acts, is considering a tax of $5 for each transaction. State Senator Bob Coffin argues further that imposing state taxes on existing brothels could raise $2 million a year (at present, brothels are allowed only in rural counties, which get all the tax revenue), and legalizing prostitution in cities like Las Vegas could swell state coffers by $200 million annually.

"A conservative extrapolation from Nevada to the rest of the country would easily mean billions of dollars annually in new tax revenues. ...

"Every state except Hawaii and Utah already permits various types of gambling, from state lotteries to racetracks to casinos. In 2007, such activity generated more than $92 billion in receipts, much of which was earmarked for the elderly and education. Representative Barney Frank, Democrat of Massachusetts, has introduced legislation to repeal the federal ban on online gambling; and a 2008 study by PriceWaterhouseCoopers estimates that legalizing cyberspace betting alone could yield as much as $5 billion a year in new tax revenues. Add to that expanded opportunities for less exotic forms of wagering at, say, the local watering hole and the tax figure would be vastly larger.

"Based on estimates from the White House Office of National Drug Control Policy, Americans spend at least $64 billion a year on illegal drugs. And according to a 2006 study by the former president of the National Organization for the Reform of Marijuana Laws, Jon Gettman, marijuana is already the top cash crop in a dozen states and among the top five crops in 39 states, with a total annual value of $36 billion.

"A 2005 cost-benefit analysis of marijuana prohibition by Jeffrey Miron, a Harvard economist, calculated that ending marijuana prohibition would save $7.7 billion in direct state and federal law enforcement costs while generating more than $6 billion a year if it were taxed at the same rate as alcohol and tobacco. The drug czar’s office says that a gram of pure cocaine costs between $100 and $150; a gram of heroin almost $400; and a bulk gram of marijuana between $15 and $20. Those transactions are now occurring off the books of business and government alike.

"As the history of alcohol prohibition underscores, there are also many non-economic reasons to favor legalization of vices: Prohibition rarely achieves its desired goals and instead increases violence (when was the last time a tobacco kingpin was killed in a deal gone wrong?) and destructive behavior (it’s hard enough to get help if you’re a substance abuser and that much harder if you’re a criminal too). And by policing vice, law enforcement is too often distracted at best or corrupted at worst, as familiar headlines about cops pocketing bribes and seized drugs attest. There’s a lot to be said for treating consenting adults like, well, adults.

"But there is an economic argument as well, one that Franklin Roosevelt understood when he promised to end Prohibition during the 1932 presidential campaign. “Our tax burden would not be so heavy nor the forms that it takes so objectionable,” thundered Roosevelt, “if some reasonable proportion of the unaccountable millions now paid to those whose business had been reared upon this stupendous blunder could be made available for the expense of government.”

"Roosevelt could also have talked about how legitimate fortunes can be made out of goods and services associated with vice. Part of his family fortune came from the opium trade, after all, and he and other leaders during the Depression oversaw a generally orderly re-legalization of the nation’s breweries and distilleries. ...

"Legalizing vice will not balance government deficits by itself — that will largely depend on spending cuts, which seem beyond the reach of all politicians. But in a time when every penny counts and the economy needs stimulation, allowing prostitution, gambling and drugs could give us all a real lift."

Together with healthcare reform and energy policy, one of President Obama's highest long-term priorities (aside from dealing with the current economic woes) is education reform. When we see such figures as those showing the U.S. in the bottom half of industrialized nations in math & science proficiency, etc., we must conclude that schools simply are not doing a good enough job.

In his "Harlem Miracle" column in today's New York Times, David Brooks offers a view of how we can begin to make truly meaningful change. He describes a charter school program in Harlem that has achieved breathtaking improvements, leading the Harvard economist Roland Fryer, upon examining the data, to comment, “The attached study has changed my life as a scientist.”

Fryer and a colleague undertook an in-depth assessment of the charter schools operated by the Harlem Children’s Zone, and found that "the Harlem Children’s Zone schools produced 'enormous' gains. The typical student entered the charter middle school, Promise Academy, in sixth grade and scored in the 39th percentile among New York City students in math. By the eighth grade, the typical student in the school was in the 74th percentile. The typical student entered the school scoring in the 39th percentile in English Language Arts (verbal ability). By eighth grade, the typical student was in the 53rd percentile."

"Forgive some academic jargon," Brooks continues, "but the most common education reform ideas — reducing class size, raising teacher pay, enrolling kids in Head Start — produce gains of about 0.1 or 0.2 or 0.3 standard deviations. If you study policy, those are the sorts of improvements you live with every day. Promise Academy produced gains of 1.3 and 1.4 standard deviations. That’s off the charts. In math, Promise Academy eliminated the achievement gap between its black students and the city average for white students.

"Let me repeat that. It eliminated the black-white achievement gap. 'The results changed my life as a researcher because I am no longer interested in marginal changes,' Fryer wrote in a subsequent e-mail. What Geoffrey Canada, Harlem Children’s Zone’s founder and president, has done is 'the equivalent of curing cancer for these kids. It’s amazing. It should be celebrated. But it almost doesn’t matter if we stop there. We don’t have a way to replicate his cure, and we need one since so many of our kids are dying — literally and figuratively.'"

So what is it that the Harlem Promise Academy does to achieve these sorts of jawdropping results? Basically, Promise Academy is a no excuses school. Brooks explains, "The basic theory is that middle-class kids enter adolescence with certain working models in their heads: what I can achieve; how to control impulses; how to work hard. Many kids from poorer, disorganized homes don’t have these internalized models. The schools create a disciplined, orderly and demanding counterculture to inculcate middle-class values....

"Basically, the no excuses schools pay meticulous attention to behavior and attitudes. They teach students how to look at the person who is talking, how to shake hands. These schools are academically rigorous and college-focused. Promise Academy students who are performing below grade level spent twice as much time in school as other students in New York City. Students who are performing at grade level spend 50 percent more time in school.

:They also smash the normal bureaucratic strictures that bind leaders in regular schools. Promise Academy went through a tumultuous period as Canada searched for the right teachers. Nearly half of the teachers did not return for the 2005-2006 school year. A third didn’t return for the 2006-2007 year. Assessments are rigorous. Standardized tests are woven into the fabric of school life.

"The approach works. Ever since welfare reform, we have had success with intrusive government programs that combine paternalistic leadership, sufficient funding and a ferocious commitment to traditional, middle-class values. We may have found a remedy for the achievement gap. Which city is going to take up the challenge? Omaha? Chicago? Yours?"

Inspiring stuff.

If James Madison and Alexander Hamilton, signers of the Constitution and primary authors of the Federalist Papers (the indispensable work of 85 essays which Thomas Jefferson described as “the best commentary on the principles of government which has ever been written”), were magically able to transport themselves 222 years forward in time to the present day, they would find a lot to like about President Barack Obama’s first 100 days in office.

Madison and Hamilton would welcome American government’s return, after eight years in the wilderness, to the core constitutional principles for which they so passionately argued.

First, Hamilton and Madison would admire Obama’s ambitious – even audacious - domestic agenda. “Energy in the executive is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70.

Moreover, Madison especially would appreciate Obama’s understanding of the Constitution’s limitations on executive power, as shown in his early executive orders repudiating the Bush administration’s use of torture interrogation techniques in Guantanamo Bay and CIA secret prisons. In the Federalist 47, Madison spoke of the dangers of such a go-it-alone approach, explaining, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”

Finally, Madison and Hamilton would approve of Obama’s recognition (as demonstrated by his early reversal of the Bush administration policy of hiding information, and, more recently, the release of the torture memos) that government serves at the pleasure of, and thus must be held accountable to, the people. “The genius of republican liberty,” Madison concluded in the Federalist 37, “demand[s] not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people.” “[T]he power of the people,” Hamilton added in No. 78, “is superior to [that of government].”

Immortal words that President Barack Obama, the former constitutional law professor, understands well.

* This entry also appears on the Constitutional Accountability Center's blog, Text & History.

Most, but not all, of the Bill of Rights have been held by the U.S. Supreme Court to apply to the states through the doctrine of "selective incorporation" under the 14th amendment due process clause. As I've argued here previously, it is improper that not ALL of the Bill of Rights have been applied to the states through the 14th amendment privileges or immunities clause ever since the amendment's 1868 ratification, since that was in fact the clearly-stated intent of the framers of the 14th amendment.

Yesterday, in Nordyke v. King, the Ninth Circuit Court of Appeals correctly held that the Second Amendment is incorporated to apply to the states - but it did so using the same "selective incorporation" process instead of the privileges or immunities clause. (Professors Michael Kent Curtis, Richard Aynes, William Van Alstyne and I argued in an amicus (friend of the court) brief in the case in favor of the privileges or immunities clause approach.) Actually the court's use of selective incorporation is not surprising; it will take a decision from the U.S. Supreme Court to re-invigorate the privileges or immunities clause - which has lain dormant since the egregious 1873 Slaughter-House Cases opinion which buried it alive. On another positive note, however, the Ninth Circuit did acknowledge our argument in footnote 5 (citing to my Missouri Law Review article):

"We are aware that judges and academics have criticized Slaughter-House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of [the Supreme Court’s] Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.”); id. at 522 n.1 (collecting academic sources); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or Immunities Clause applies against the states all “personal privileges” of individual citizens, whether enumerated in the Bill of Rights or not, but not the rights of the states or the general public)...."

For its part, the Seventh Circuit Court of Appeals in McDonald v. Chicago will soon decide whether the second amendment is incorporated to apply to the states. We have also filed an amicus brief in McDonald, arguing again for incorporation through the privileges or immunities clause. In all likelihood, the Seventh Circuit also will play it safe and find the second amendment is "selectively" incorporated through the due process clause.

Both of these cases are sure to be appealed to the U.S. Supreme Court - and that will be where our privileges or immunities clause arguments will be truly considered (we HOPE). As I claim in my earlier works, a judicial reinvigoration of the privileges or immunities clause can have profound effects on how we view individual liberty vis-a-vis government in America.

Stay tuned!

What a welcome change to have a U.S. president who engages the world, rather than try to bully it. President Obama's recent trip to the G-20 conference, after which he made a stop in Turkey to engage the Muslim world, demonstrates true cooperative leadership that is bound to reap much greater long-term rewards.

The Muslim world, for example, is hopeful that relations can improve. In an AP story reported on MSNBC, "'Everyone is optimistic about this man,' Nasser Abu Kwaik, a barber in the West Bank town of al-Beireh, said Wednesday. 'He is different, and he could be a friend to the Muslim world.'

"Many in Muslim countries echoed the words of one Indonesian woman, 'I believe him.'

"'For the Islamic world,' Obama's comments 'are like a fresh breeze,' said Ikana Mardiastuti, who works at a Jakarta research institute."

MSNBC continues, "A town-hall meeting in Istanbul on Tuesday was also a strong symbol, with Obama answering questions from university students. To some it sent a message that this president talks to Muslims, dramatically different from the perception many had of Bush as domineering, warlike and imposing U.S. policy.

"Even an offhand comment that he had to wrap up the town-hall before the afternoon call to Islamic prayers showed an easy familiarity with the rhythms of Muslims' lives.

"'He's a modest person with a humanitarian view on world issues, particularly those relating to the Arab and Islamic worlds,' said Jamal Dahan, a 50-year-old resident of the Lebanese capital Beirut. 'Bush, on the other hand, was an arrogant man who only knew military power.'

"Even hard-liners took notice. Iranian President Mahmoud Ahmadinejad said his country welcomes talks with the United States if Obama proves 'honest' in extending the U.S. hand to Iran, one of his strongest signals yet of openness to Obama's calls for dialogue.

"A cleric at the prominent Shiite seminary in the Iraqi holy city of Najaf — where disdain for Bush's policies is high — was enthusiastic. 'The Islamic world should avail itself of this positive opportunity,' said Sheik Nimaa Al-Abadi. 'The opening chapter of Obama in the Islamic world might be a real turning point.'

Naysayers of course will criticize Obama as being too soft, or of "appeasing the enemy," but the comments of those who have reason to truly understand terrorism and its motivations should (but likely won't) open the eyes of neo-cons and others who claim to be driven by the goal of defeating terrorism: Obama "'will make it more difficult to recruit young Muslim men to carry out terrorist acts. They (militants) no longer have the argument to do so,' said Mohammed al-Nujaimi, a cleric on a government committee for rehabilitating militants away from extremism." In short, Obama's outreach vastly diminishes the appeal of terror groups.

What a welcome change, indeed.

Within the last week we've seen three more important steps toward the inevitable: national recognition that same-sex marriage is a constitutional right (or, more specifically, that any statutory differentiations based on sexual orientation for allowing people to enjoy the state-sanctioned benefits of marriage violate the fourteenth-amendment equal protection clause).

Last Friday, April 3, the Iowa Supreme Court unanimously held that the state's statutory ban on same-sex marriage is unconstitutional; then day before yesterday, Tuesday, April 7, the DC Council decided to recognize gay marriage performed elsewhere, and the Vermont legislature voted (over the governor's veto) to legalize gay marriage. (That Vermont thus becomes the first elected state legislature - as opposed to state Supreme Courts, in Massachusetts, Connecticut and now Iowa -to legalize same-sex marriage is not surprising; nine years ago, Vermont was the first state to legalize civil unions between same-sex couples.)

With these actions, we're seeing a work-in-progress of how basic rights and equal justice often become constitutionally recognized by the U.S. Supreme Court - momentum first builds in the states, then the Court settles the question in an appropriate case. The most apt analogy to what is happening now is what happened nearly 40 years ago on the issue of interracial marriage, when in the 1967 case of Loving v. Virginia the Court struck down state laws prohibiting interracial marriage. Today we view state laws banning interracial marriage as unbelievably unjust; as I suggest to my Constitutional Law students every year, in another forty years we'll view these state laws banning same-sex marriage with similar disbelief.

It's only a matter of time before the U.S. Supreme Court settles the question in favor of same-sex marriage as well - thus honoring the spirit of equal justice set forth in the Declaration of Independence and Constitution.

As I find myself some weeks spending not as much time with the newspaper, switching from NPR or other news sources to the local jazz station, or consciously avoiding lengthy discussions with others about current events, Kathleen Parker's column in today's Washington Post strikes a chord.

In "Turn Off, Tune Out, Drop In," Parker asks, "What if everybody just took a timeout?"

"Now there's a concept for a [Too-Much-Information]-addled nation. It isn't only Too Much Information, but the pitch and tenor of delivery that have us in a persistent state of psychic frenzy. From cable news to microblogs to the latest -- "Fox Nation" -- life's background music has become one prolonged car alarm. "

Parker continues, "with so much data coming from all directions, we risk paralysis. Brain freeze, some call it. More important, we also risk losing our ability to process the Big Ideas that might actually serve us better. It isn't only Jack and Jill who are tethered to the Twittering masses, after all. Our thinkers at the highest levels are, too....

"[B]rain research shows that we do our best thinking when we're not engaged and focused, yet fewer of us have time for downtime....

"More likely, the ideas that save the world will present themselves in the shower or while we're sweeping the front stoop. What the world needs now isn't more, but less. The alternative to mindless activities for the mindful is turning out to be not a less-informed nation but a dumber one.

"Unchecked "infomania" -- yes, there's even a term for this instapathology -- can lead to a lower IQ, according to a 2005 Hewlett-Packard study. The research, conducted by a University of London psychologist, found that people distracted by e-mail and phone calls lost 10 IQ points, more than twice the impact of smoking marijuana -- or comparable to losing a night's sleep."

Amen. Between work and family obligations, life is busy; and with media and devices of all sorts contantly bombarding us with ever-more news and information, it all becomes a bit overwhelming. At a certain point, one just needs to find a quiet place (which, let's face it, is easier to do now that competent adults are in charge in Washington).