The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I came to know Doug shortly after he founded the CAC, which was devoted to a reading the the Constitution's "text and history" to advance a progressive agenda. I was very proud to participate in a CAC amicus brief in McDonald v. City of Chicago, which argued that the Privileges or Immunities Clause protected an individual right to keep and bear arms from state prohibition. The CAC website describes it like this:
CAC's brief was filed on behalf of eight preeminent and ideologically diverse 14th Amendment scholars, including Jack Balkin of Yale Law School, who is spearheading an effort, co-sponsored by the American Constitution Society, to define a progressive vision of The Constitution in 2020, and Steven Calabresi of Northwestern Law School, who nearly three decades ago co-founded the Federalist Society. (The eight signatories to the brief were, Richard Aynes, Jack Balkin, Randy Barnett, Steven Calabresi, Michael Kent Curtis, Michael Lawrence, William Van Alstyne, and Adam Winkler.) It embodied a remarkable scholarly consensus for the proposition that the Court erred profoundly 136 years ago in The Slaughter-House Cases when it effectively read the Privileges or Immunities Clause out of the 14th Amendment. As Yale Law School's Akhil Amar has stated: "Virtually no serious modern scholar—left, right, and center—thinks that Slaughterhouse is a plausible reading of the Fourteenth Amendment." CAC's brief in McDonald built on our report The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, which explains why progressives in particular should favor a restoration of the Privileges or Immunities Clause.
And I was very pleased to participate in a conference he organized at the University of Pennsylvania Law School on the original meaning of the Fourteenth Amendment.
By and large I disagreed with the constitutional stances of his CAC. For example, during the constitutional challenge to the Affordable Care Act, I frequently appeared with his close colleague Elizabeth Wydra, who passionately defended the constitutionality of the individual insurance mandate. But, even where I disagree with their conclusions, the briefs and arguments submitted by the Constitution Accountability Center make a vital contribution to the adversary process by which claims of original meaning should be vetted.
Doug Kendall was a true gentleman who loved the Constitution. My deepest sympathy goes out to his family and his colleagues. He was a force to be reckoned with during his life and, with the Constitutional Accountability Center he founded, his force will continue long after his passing.