First, there’s my faith in the Second Amendment right to bear arms. Not the Second Amendment you’re thinking of, populated by delusional figures who think they can defeat tyranny by playing at being Rambo. That path leads to tragedy and heartbreak. I mean the real Second Amendment; the Founders’ Second Amendment, the one that empowers a well-organized citizens’ militia—the entire people in arms—to resist any effort by a would-be tyrant to seize power. My first act of faith is to believe that it is within the citizens’ army and the professional police forces—the modern heirs to the eighteenth-century citizens’ militia—that the first line of extralegal resistance must be found. No successful tyrant oppresses alone. He needs layers of armed subordinates to impose his will by force. The seeds of an effective resistance are present in every layer. Every person in the military chain of command, including the ranking officers, has sworn an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic. Somewhere in that chain of command are patriots who will place that oath above executing an unlawful presidential order.
Military law frees subordinates from any duty to carry out an unlawful order. Indeed, according to the Nuremberg principles under which the Nazis were tried, “I was just following orders” is no defense to liability for carrying out orders that are formally correct but violative of fundamental norms of human decency.
In my fifty years as a civil liberties lawyer, I never met colleagues more dedicated to the preservation of the Constitution than many of the members of the armed forces with whom I have worked, especially military lawyers. I realize that my positive experience conflicts with the beliefs of many on the left who view the military and the police as hotbeds of racism and repression. There, of course, are plenty of bullies and racists who bear arms in our name. But there are also many idealists and genuine patriots. The German officer class rolled over for Hitler. A nightmare Trump won’t find it so easy to subvert the American military.
My second act of faith is in the American people. Successful tyrants need more than brute force. They need a complaisant, supportive population. Hitler, Stalin, and Mao unleashed vast terror. But not one of those pathological monsters had enough bullets to rule successfully through brute force alone. Each needed the approbation, support, and cooperation of the mass of the citizenry.
When tyrants like Hitler are ultimately overthrown, their mass support vanishes retroactively—everyone always turns out to have been in the resistance—but the mass support was undeniably there. Someone enthusiastically sold Hitler the barbed wire and poison gas he used in the death camps. Someone enthusiastically informed about a skeptical neighbor. Someone marched the intellectuals to the countryside.
There will, of course, be American quislings who will enthusiastically support an American tyrant. There always are—everywhere. But I have faith that millions and millions of Americans will defend their freedom by withholding public and private support from a tyrannical regime, by declining to do business with it voluntarily, by refusing to inform on their neighbors or co-workers, and by engaging in acts of passive resistance such as mass strikes and protest. In the 1930s, the mass of German citizens became comfortable in their chains; many even reveled in them. That won’t happen here.
Finally, my third act of faith is the most counterintuitive of all—faith that politicians will step forward to lead an effective extralegal resistance. While blue states may not be able to win a presidential election in a rigged Electoral College that over-represents rural America, or to elect a majority in the appallingly malapportioned Senate, it is in the blue cities and states where the nation’s resources and talent are concentrated: money, innovation, art, information, technology, communications, research, education.
How long could red America function without the massive tax subsidy provided by their blue fellow countrymen? Blue states pay huge sums into the federal tax pot and get only a fraction back in federal programs. Where do you think the difference goes? To folks in the red states, many of whom are fond of telling other people how to live their lives but are delighted to accept federal subsidies.
That’s where courageous state and local political leaders could play a crucial role by turning off the blue-state tax spigots that fund a tyranny. Ordinarily, Americans pay their federal income taxes directly to the IRS. What if courageous state and local officials, driven to resistance by one of my Trump nightmare scenarios, were to take custody of all federal tax payments, agreeing to pass the funds on to the IRS after checking each return to be certain that all appropriate federal deductions have been taken? What if they were very aggressive about taking federal deductions? (Maybe they could use Trump’s tax returns as a guide.) What if courageous state and local officials were to go further and deposit federal tax payments in a secure location pending the restoration of constitutional government?
Even a Trumpist Supreme Court would be obliged to dismiss any effort to prosecute ordinary taxpayers for following state law and routing their federal tax payments through their state political leaders for recalculation and transmission to the federal government. What jury would convict them? Let the president try to jail the governors of California, New York, Illinois, Pennsylvania, Michigan, Virginia, and Massachusetts for processing federal tax payments through a state strainer.
That’s only the beginning of the acts of resistance available to state and local political leaders who pledge to prevent my nightmare scenarios from unfolding. They could invoke state police power to close roads and bridges for maintenance. Shut down the airports for safety checks. Withhold police or any other assistance to the federal government.
(Write in your extralegal, nonviolent resistance technique here.)
Don’t worry, though. It won’t come to that. In the short term, our institutions will hold. In the long term, we’ll vote the narcissistic bully out.
A NOTE ON NOTES
There aren’t any. This book is not an expression of objective truth backed up by footnotes designed to prove my case. It is a collection of subjective opinions about the inner workings of legal institutions—principally, the United States Supreme Court—that define and enforce our constitutional rights.
My opinions are based on six decades of active practice as a civil liberties lawyer. I formed them during my service as a staff lawyer for the New York Civil Liberties Union in the late 1960s and early 1970s, assistant national legal director during the presidency of Richard Nixon, national legal director of the ACLU during the presidency of Ronald Reagan, an active advocate before the Warren, Burger, Rehnquist, and Roberts Supreme Courts, lead counsel in the Swiss Bank and German Industry Holocaust Asset Cases, founding legal director of the Brennan Center for Justice at NYU, an active presence in hundreds of lower courts across the country seeking to enforce the Constitution, and a law teacher at NYU School of Law for almost fifty years, with teaching stints at Berkeley, Stanford, Cal Irvine, Tel Aviv, and Texas.
For those wishing to explore (or challenge) my opinions, I list the legal citations of each principal case mentioned in the book. Virtually all can be accessed free of charge online. Supreme Court opinions can readily be retrieved from the invaluable SCOTUSblog.com. Since most of the opinions expressed in this book were initially developed in my academic writings, which are chock-full of footnotes, I list, as well, a number of my books, chapters, and law review articles developing the ideas that form the core of this book. The academic articles can be accessed on my faculty page on the NYU Law website. Please read them. Sometimes, I wonder whether anyone else does.
Finally, the numbers discussed in connection with the workings of American democracy are drawn from the most recent census data and the reports of the Federal Elections Commission, both easily available online. It’s probably a good idea to check my calculations. I became a lawyer only because they promised me there would be no math.
Principal Cases Discussed
Somerset’s Case, 98 ER 499 (King’s Bench 1772) (English law governs th
e status of enslaved people voluntarily brought into Great Britain)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Supreme Court has power to invalidate acts of Congress that violate the United States Constitution)
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (federal courts lack power to create common law crimes)
Prigg v. Pennsylvania, 41 U.S. 539 (1842) (Pennsylvania anti-kidnapping law violates Fugitive Slave Clause)
Dred Scott v. Sandford, 60 U.S. 393 (1857) (invalidating Congress’s effort to ban slavery from the territories as deprivation of property without due process of law; blacks cannot be United States citizens) (It doesn’t get worse than this)
Minor v. Happersett, 88 U.S. 162 (1875) (denying women right to vote)
Lochner v. New York, 198 U.S. 45 (1905) (invalidating New York maximum hour law as violation of right to contract)
Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating congressional child labor laws as beyond power to regulate interstate commerce)
Adkins v. Children’s Hospital, 261 U.S. 525 (1923) (invalidating minimum wage legislation for women as violation of liberty of contract)
Gitlow v. New York, 268 U.S. 652 (1925) (upholding conviction of anarchists under New York’s criminal syndicalism law)
Erie R.R. Co. v. Thompson, 304 U.S. 64 (1938) (federal courts lack power to make federal common law in civil cases)
United States v. Darby, 312 U.S. 100 (1941) (reversing course and upholding Fair Labor Standards Act setting national minimum wage)
Korematsu v. United States, 323 U.S. 214 (1944) (upholding Japanese internment during World War II)
Dennis v. United States, 341 U.S. 494 (1951) (upholding conviction of leaders of American Communist Party)
Youngstown Sheet & Steel Co. v. Sawyer, 343 U.S. 579 (1952) (invalidating unilateral presidential seizure of steel mills to avert strike during Korean War)
Brown v. Board of Education, 347 U.S. 483 (1954) (striking down government-mandated racial segregation in the public schools)
Baker v. Carr, 369 U.S. 186 (1962) (requiring equi-populous legislative districts under principle of “one-person one-vote”)
Reynolds v. Sims, 377 U.S. 533 (1964) (articulating the one-person one-vote rule)
Lamont v. Postmaster General, 381 U.S. 301 (1965) (invalidating restrictions on receipt of communist political propaganda from abroad)
Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (outlawing property qualifications for voting)
United States v. O’Brien, 391 U.S. 367 (1968) (upholding conviction for burning draft card to protest Vietnam War)
Williams v. Rhodes, 393 U.S. 23 (1968) (recognizing right to run for office as third-party candidate)
Kramer v. Union Free School District, 395 U.S. 621 (1969) (recognizing equality-based right to vote)
Roe v. Wade, 410 U.S. 113 (1973) (upholding women’s right to choose, in consultation with her doctor, whether to bear a child)
Dunn v. Blumstein, 405 U.S. 330 (1972) (invalidating durational residence requirements for voting)
San Antonio v. Rodriguez, 411 U.S. 1 (1973) (upholding unequal funding of public schools)
Richardson v. Ramirez, 418 U.S. 24 (1974) (upholding felon disenfranchisement)
Washington v. Davis, 426 U.S. 229 (1976) (requiring proof of discriminatory purpose)
INS v. Chadha, 462 U.S. 919 (1983) (invalidating legislative veto of administrative regulation)
Morrison v. Olson, 487 U.S. 654 (1988) (upholding Independent Counsel law to allow investigation of high ranking members of executive branch)
Texas v. Johnson, 491 U.S. 397 (1989) (flag burning protected by First Amendment)
Burdick v. Takushi, 504 U.S. 428, 442 (1992) (Kennedy, J. dissenting) (dissenting on First Amendment grounds from ruling that denying write-in ballot is constitutional)
Planned Parenthood v. Casey, 505 U.S. 833 (1992) (declining to overrule Roe v. Wade, but diminishing its protection)
United States v. Lopez, 514 U.S. 549 (1995) (invalidating congressional effort to ban guns from vicinity of schools as beyond power to regulate interstate commerce)
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (upholding ban of third-party endorsement of major-party candidate)
Printz v. United States, 521 U.S. 898 (1997) invalidating congressional effort to compel local law enforcement agents to carry out federally required background checks in connection with buying a gun)
Vieth v. Jubelirer, 541 U.S. 267 (2004) (declining to rule on constitutionality of partisan gerrymanders)
United States v. Morrison, 529 U.S. 298 (2000) (invalidating congressional effort to create a federal remedy for gender-motivated violence as beyond power to regulate commerce and protect equality)
Bush v. Gore, 531 U.S. 98 (2000) (barring Florida from completing recount of presidential ballots; awarding presidency to George W. Bush)
Crawford v. Marion County Bd. of Elections, 553 U.S. 1818 (upholding voter ID requirement that disproportionately bar poor voters despite no showing of need)
National Federation of Independent Businesses v. Sibelius, 567 U.S. 519 (2012) (holding that Congress lacks power under commerce clause to compel purchase of health insurance)
Shelby County v. Holder, 570 U.S. 2 (2013) (invalidating pre-clearance provisions of Voting Rights Act as no longer justified)
Obergefell v. Hodges, 576 U.S. (2015) (recognizing constitutional right to gay marriage)
Whole Women’s Health v. Hellerstedt, 579 U.S. (2016) (invalidating Texas regulation placing undue burden on exercising right to choose)
Trump v. Hawaii U.S. (2018) (upholding Muslim travel ban)
Books and Selected Law Review Articles
Madison’s Music: On Reading the First Amendment (The New Press, 2015)
Ending Lochner Lite, 50 Harv. Civ. Lib.-Civ. Rts. L. Rev. 183 (2015)
Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges, 35 N.Y.U Rev. Law and Social Change 602 (2011)
The Gravitational Pull of Race on the Warren Court, 2010 Sup. Ct. Rev. 59 (2011)
Serving the Syllogism Machine, 44 Texas Tech L. Rev. 1 (2011)
Democracy and the Poor, in Law and Class in America 37 (Paul D. Carrington and Trina Jones, eds., NYU Press, 2006)
Reading the Bill of Rights as a Poem, 57 Vand. L. Rev. 2007 (2004)
Towards a Democracy-Centered Reading of the First Amendment, 73 Nw. L. Rev. 4 (1999)
The Origin of Rights: Constitutionalism, the Stork, and the Democratic Dilemma, in The Role of Courts in Society 158 (Shimon Shtreet, ed., Martinus Nijhoff Publishers, 1988)
Judicial Review and the Separation of Powers in France and the United States, 57 N.Y.U. L. Rev. 363 (1982)
The Myth of Parity, 90 Harv. L. Rev. 1105 (1977)
INDEX
The index that appeared in the print version of this title was intentionally removed from the eBook. Please use the search function on your eReading device to search for terms of interest. For your reference, the terms that appear in the print index are listed below.
ACLU. See American Civil Liberties Union
Adams, John
administrative state, separation of powers and
Affordable Care Act
agency fees
Alden v. Maine
alternative facts
American Civil Liberties Union (ACLU)
American Democracy Express
external brakes on
internal brakes on
American flag, burning of
American University
amnesty, for undocumented aliens
Arizona Free Enterprise v. Bennett (2011)
armed forces
asylum seekers, immigration and
Australia
Baker v. Carr
Barr, William
Berlin Wall
Bezos, Jeff
Biden, Joe
Bill of Rights
adoption of
as deus ex m
achina
first
individual rights codified in
Second Amendment and
separation of powers and
two
bipartisan districting commissions
Black, Hugo
Blackmun, Harry
Brandeis, Louis
Brennan, William, Jr.
Brennan Center for Justice
Breyer, Stephen
Brown v. Board of Education (1954)
Buckley v. Valeo (1976)
Bull Moose Party
bullet voting
Burdick v. Takushi
Burger, Warren
Burr, Aaron
Bush, George W.
Bush v. Gore
California
campaign contributions by noncitizens
campaign finance law
Carrington v. Rash
chain migration
The Charterhouse of Parma (Stendhal)
checks and balances
Cipriano v. Houma
citizens militia
Citizens United (2010)
Civil Rights Acts
Civil War
climate change
Clinton, Bill
Clinton, Hillary
campaign infighting of
Electoral College and
popular vote and
Putin revenge against
Russian disinformation and
Trump and
Clinton shipwreck
Clinton v. Jones
closed borders
Cohen, Michael
Cold War
collateral estoppel
collective bargaining
collective equality
autonomy, difference of
autonomy, same as
in Bill of Rights
First Amendment and
Fourteenth Amendment and
Comey, James
communist party
compulsory arbitration
Confederation Congress
confirmation hearing
Congress, U.S.
bullet voting for
Dreamers and
election day selection by
First Amendment and
immigration and
investigation by
When at Times the Mob Is Swayed Page 26