“The Influence of the State and Federal Governments Compared,” from the New York Packet, by James Madison. My essay thereon is here, at Constituting America’s series on The Federalist.

Bottom line: even taking into account the many changes over the last two and quarter centuries, Madison was generally right.

One question I often get (that is, I, Rob Natelson, not Jon Caldara, although he may get the question, too)  is “Can you recommend a book I that will tell me in simple language what the entire Constitution was originally supposed to mean?”

I haven’t been able to recommend one, so I wrote The Original Constitution: What It Actually Said and Meant. It is now available in e-book form. Hard copy will follow in a few weeks.  (Folks at the Independence Institute assisted with production.)

The book surveys in fairly easy language the legal meaning of the entire Constitution as of late 1791, just after adoption of the Bill of Rights.

(Another shameless plug:  For those interested a more academic approach, Cambridge University Press will be publishing my co-authored work, The Origins of the Necessary and Proper Clause, later this year.)

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

The Florida KKK organized in 1867–68. Simkins later described himself at the Klan leader in Taylor, Madison, and Jefferson counties. These three contiguous counties are part of the eastern panhandle, east of Tallahassee. As far as the record shows, Simkins never claimed that any Klan actions in those counties had been carried out contrary to his orders, or that he regretted anything the Klan did in those counties. Accordingly, it is plausible to hold Simkins personally responsible Klan activity there.

Federal troops were withdrawn from Florida in July 4, 1868. From July 8 through 14, five blacks were murdered by “white regulators.” In mid-July through October 1868, the Madison County KKK murdered seven more blacks, including Randall Coleman, a leading Republican.

In Taylor County, “masked night riders paraded with KKK flags and threatened farmers who refused to join the Klan.”

Florida’s Governor Reed had purchased two thousand muskets for the state militia. On the night of November 5, 1868, while the train carrying the muskets had stopped at the Greenville station in Madison County, Klan raiders removed all two thousand muskets–destroying some, and keeping the rest. Simkins later bragged that “Every telegraph operator, brakeman, engineer and conductor on the road was a Ku Klux.”

The Jefferson County Klan coerced white farmers into refusing to sell land to freedmen, or to taking the money, and then having the Klan drive the freedmen off his new freehold.

According to Newton, Madison County was the second-worst county in Florida for Klan violence, with 25 murders from 1868–71. The victims were always members of the Republican party.

On the night before the November 7, 1870, election, “armed riders invaded” the town of Madison, “harassing black voters.” On election day in Monticello, Jefferson County, “Georgia Klansmen joined the local mob and hundreds of shots were fired in a rioutous demonstration of white solidarity,” intended to frighten blacks against voting.

The election results left the state government weakly in reconstructionist hands. The store belonging to Madison County Sheriff Montgomery was burned on December 17.

Congress passed a new, stronger Enforcement Act in April 1871, and in November, a congressional subcommittee held four days of hearings in Tallahassee about Klan crimes. Even so, another Republican’s store was torched on November 6, 1871. However, President Grant’s October declaration of martial law in nine South Carolina counties had a chilling effect on the Klan, and by 1873, Florida Klan supporters were denying that there have had been a Klan in Florida, or were claiming that if there had been one, it was no longer active.

Simkins himself happened to leave Florida for Texas in either 1871 or 1873. (Sources conflict.) He particpated in two 1894 U.S. Supreme Court cases, Reagan v. Farmers’ Loan & Trust Co. and Reagan v. Mercantile Trust Co. He supported the Texas Attorney General’s argument that the judiciary had no power to review the reasonableness of railroad rates which had been established by the Texas Railroad Commission. The Supreme Court, in an unanimous opinion by Justice Brewer, disagreed.

That Simkins was an advocate of the unreviewable power of unreasonable government economic regulation should be no surprise. As David Bernstein explains in his book Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, the caste system of Jim Crow was founded on government power to prevent black and white people from freely choosing to engage in economic relations.

Last Friday, the University of Texas announced the formation of a special working group which will issue a report on the Simkins naming controversy by the end of June.

Simkins should have been denied admission to the Florida bar in 1870, based on his admitted role in the theft of firearms from the militia of the state of Florida, and his role in organizing and leading a terrorist organization which appears responsible for numerous homicides and many other violent felonies. In 1870, the Florida Supreme Court did not know of the evidence regarding Simkins’ terrorist crime spree in 1868–70,  but the 2010 working group will have more information.

Of course the fact that a person is an unrepentant, retired, terrorist is not necessarily a bar to being a professor at a prestigious law school–not for William Stewart Simkins at Texas in the early 20th century, or for Bernardine Rae Dohrn at Northwestern in the early 21st century.

Readers who are interested in more on the Simkins controversy may enjoy the blogging thereon at The Faculty Lounge, which has been covering the story since Russell released his paper.

Forthcoming in a symposium issue of the Santa Clara Law Review, final version here. This 108-page article, which I wrote with Clayton Cramer, surveys the leading state constitution right to arms cases, from the Early Republic to the present. The article examines the various  standards of review that state courts have used in examining gun control laws under state constitutional right to arms provisions.

Some courts have used what, in modern terms, would be called “categoricalism.” In other words, is “X” within the right to arms or not? For example, some courts ruled that Bowie knives are not protected by a state constitutional provision because they are not the type of “arms” that the state constitution was meant to protect. The use of categoricalism is well-established in a First Amendment context (e.g., “the freedom of speech” includes political commentary, but does not include conspiracies in restraint of trade), and categoricalism is among the First Amendment tools that can be, and have been, used for state right to arms guarantees.

Likewise, some courts have used the First Amendment/Fourteenth Amendment tools of narrow tailoring, least restrictive alternative, and overbreadth. These are, of course, the tools of strict scrutiny.

Still other courts have employed balancing tests–sometimes in a fairly rigorous way that resembles intermediate scrutiny, at other times in a vague way that gives little guidance to future courts.

And there have been other courts (most notoriously, the Illinois Supreme Court in Kalodimos, upholding the Morton Grove handgun ban) which have been hostile to the constitutional right, and which have opined that as long as the right is not destroyed, any limitations short of destruction are acceptable.

Post–Heller, federal courts analyzing Second Amendment issues may look to state decisions for guidance. Our article explains how Heller itself shows which state cases can be useful to modern courts, and which cases are inconsistent with Heller (such as the cases which apply “rational basis” or some functional equivalent, or the cases which imply that a ban on most handguns would be constitutional).

Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both of us devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes.

The Democratic Strategist (co-edited by William Galston, Stan Greenberg, and Ruy Teixeira) aims to provide “serious, data-based discussion of Democratic political strategy.” Today, a special “Urgent” issue was published, regarding the Supreme Court and warning about the “covert extremist agenda” of the Republican right. The report raises an alarm about the legal agenda currently promoted by “the Christian Right, the Tea Party Movement, and the radical Federalist Society legal wing of the Right.” The report provides three examples. First:

Since the 1990’s, the Christian Right has sought to replace the traditional American separation of church and state with the notion that the U.S. was actually created as a “Christian Nation” in which Christianity was intended to receive favored treatment by government policy. The most startling recent expression of this view was last month’s decision by the Texas School Board to remove Thomas Jefferson—the symbol of America’s tradition of religious freedom and tolerance—from the states’ history curriculum.

The report is accurate in that some (although hardly all, or necessarily most) supporters of the “Christian Right” believe that the government should favor Christianity over other religions. Most of the Christian Right does believe, as did Chief Justice Rehnquist, that in some circumstances the government may favor religion over irreligion. See Wallace v. Jaffrey (1985) (Rehnquist, J., dissenting from decision to declare moment of silence in schools unconstitutional).

The report’s description of the Texas State Board of Education (not the “Texas School Board”) is inaccurate. Under the new  proposed standards, Jefferson is part of the required curriculum for 5th grade American History, 8th grade American History, and the high school class in U.S. Government. He was removed from the standards for World History class, because the Texas State Board thought that he should not be included among “European Enlightenment philosophers.” In the 8th grade American History class, not only is Jefferson required, so is his good friend, the famous enemy of organized religion, Thomas Paine. Only George Washington appears in the Texas curriculum standards more often than does Jefferson.

Item 2 in The Democratic Strategists’ parade of horribles is the lawsuits against Obamacare:

The basis for such suits—typically a denial of the power of Congress to legislate economic matters under the Commerce and Spending Clauses of the U.S. Constitution—is automatically and unavoidably a collateral attack on the constitutionality of a vast array of past legislation, including most New Deal/Great Society programs such as Social Security and Medicare.

The word “basis” has a footnote cite to an article by Matthew Yglesias. The Yglesias article criticizes the notion that  Commerce “among the several States”  should be “understood as basically about transporting goods across state lines.” Yglesias points out: “the Louisiana Purchase, the Bank of the United States, Henry Clay’s ‘American System,’ a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.” True enough in a broad sense (although most of Yglesias’s 19th century examples do not involve the interstate commerce power). So if the lawsuits were premised on the idea that the federal power over interstate commerce extends only to the sale of goods across state lines, The Democratic Strategist’s warning would be apt.

However, if you read the complaints filed by Virginia and by the 18-state coalition led by Florida, there is no argument against the interstate commerce power as it existed on March 1, 2010. Rather, the complaints argue against an unprecedented expansion of the interstate commerce power: namely the purported power to force an individual to purchase a product he does not want to purchase, and an unprecedented use the tax code to punish someone for choosing not to purchase a product.

While the cases do complain about changes in the state funding formula for Medicaid, they never question the constitutionality of Medicaid itself. Thus, an attack on Obamacare is not “automatically and unavoidably a collateral attack” on even an iota of the New Deal and the Great Society. As I have previously detailed, finding the Obamacare mandate and its associated tax to be unconstitutional does not require overturning, or even questioning, a single precedent in existing Supreme Court law.

The third and final item in the parade of horribles:

The Republican revolt against any cooperation with Democratic legislation and initiatives has carried an extraordinary number of conservatives into a general attitude of defiance towards the rule of law itself and flirtation with constitutional doctrines of state nullification and succession. These doctrines were developed as arguments for state sovereignty by the Confederacy in the civil war era and as 1950’s and 1960’s era segregationist strategies to thwart desegregation and civil rights for African-Americans. [And, later in the document:] Let them bring it on with all the segregation-era legal strategies of succession and nullification.

Well, not exactly accurate. First, the doctrine of “succession” describes how Barack Obama became President after George W. Bush. One of the first uses of the constitutional doctrine of succession was when John Adams became President after George Washington.

The doctrine of “secession” long predated the Confederacy. It was advanced by, among others, some New Englanders who wanted to leave the Union during the War of 1812, by Southerners who advocated the right when objecting to the 1828 Tariff of Abominations, and by some persons at the very end of 18th century who feared that President Adams was moving the country towards dictatorship. Thomas Jefferson, in his 1798 letter “Patience and the Reign of Witches,” counseled against secession as response to “a temporary superiority of the one party,” notwithstanding the “oppressions of enormous public debt. . . . Better keep together as we are. . . If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost . . . .”

The Democratic Strategist rightly reveres the great Thomas Jefferson, so it is surprising that TDS does not know (or, at least, does not acknowledge) that the constitutional doctrine of nullification was first articulated by Jefferson himself, in the Kentucky Resolution of 1798. As Jefferson put it, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” James Madison, the Father of the Constitution, articulated the milder doctrine of Interposition, in the Virginia Resolution, declaring that the states “have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

The Democratic Strategist affirms “that the Democratic Party proudly upholds the traditional American view of the constitution—the view of the founding fathers of this country—George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.”  The Democratic Strategist then accuses its imagined enemies of being anti-american for allegedly trying “To establish the right of individuals or states to ignore and disobey any laws that they happen to interpret as impinging on their freedom or natural rights”  and the right of individuals “to ignore any laws they choose.”  This is straw man. As far as I know, no employee of The Federalist Society ever said that any individual could ignore any law he chose. All of the Founders, including Washington, Jefferson, Franklin, Hamilton, and Adams, did believe that in cases of great urgency and necessity, disobedience was a moral duty–which is why they helped to remove one government and replace it with another in 1776. Even under that new government, Jefferson and Madison thought that states had a duty to protect their citizens from federal laws which violated both natural rights and the Constitution–as did the Sedition Act, in the view of Jefferson and Madison. And of course many great Americans in the Civil Rights Movement in the 1960s refused to obey racially discriminatory laws which they believed to be contrary to natural rights and the Constitution.

Americans in the 21st century are free to disagree with Jefferson and Madison, just as did many Americans of 1798, since other some other state legislatures voted to reject the call to support the Kentucky and Virginia resolutions.

Near the end, the TDS memo announces: “Let them bring it on with all the attempts to write Thomas Jefferson and the separation of church and state out of American history.” May people of every political persuasion resist every attempt to write Thomas Jefferson out of our history. May everyone extol, as does TDS, “the traditional American view of the constitution—the view of the founding fathers of this country.” And so in our modern debates on the Supreme Court and judicial policy, may everyone be free to disagree with Thomas Jefferson and James Madison, but let no-one who espouses the constitutional doctrines of these great Americans be maligned as unamerican.