10/29/2014

Michael Morley: The Intratextual Independent 'Legislature' and the Elections Clause
Michael Ramsey

Michael Morley (Barry University School of Law) has posted The Intratextual Independent 'Legislature' and the Elections Clause on SSRN. Here is the abstract: 

Article I’s Elections Clause and Article II’s Presidential Electors Clause confer authority to regulate congressional and presidential elections, respectively, specifically to State "legislatures," rather than to States as a whole. In the pending case Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court will decide whether the Elections Clause allows a State to remove the authority to draw congressional districts from its legislature, and confer it instead in an independent commission. Its ruling will have tremendous ramifications not only for similar redistricting commissions across the nation, but for a wide range of other doctrines, principles, and protections that stem from the Elections Clause and Presidential Electors Clause.

Intratextualism is a powerful technique for interpreting the Constitution that can yield valuable insights into the proper meaning of the term "Legislature," as it appears in both provisions. A careful intratextual analysis of the Constitution as a whole reveals that the term "Legislature" is best understood as referring to the entity within each state comprised of representatives that has the general authority to pass laws, and excludes executive officials, judges, and independent agencies or commissions. Such an interpretation is bolstered by both the original understanding of the term "Legislature," as well as the "independent state legislature" doctrine, which recognized that the U.S. Constitution directly confers authority to regulate federal elections directly and specifically on institutional legislatures, and a State constitution may not impose substantive limits on the scope of that authority. Thus, to the extent laws establishing independent commissions purport to prohibit State legislatures from regulating federal elections or drawing congressional districts, they are unconstitutional under the Elections Clause.

Yes, this is my intuition as well.

10/28/2014

The Dormant Commerce Clause
Mike Rappaport

Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause.  Here are my views:

1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak.  That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.

2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.

3.  I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.

4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).”  But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”

We may not have seen Congress’s actions in this area because the Court has already acted.  We simply do not know.  After all, Congress does not take actions to overturn the Dormant Commerce Clause (except in very limited areas, such as insurance).  And it would only take one statute for Congress to duplicate the Dormant Commerce Clause in the form of a statute..

While individual states may benefit from discriminatory state action, states as a whole will be harmed – and that is the question that Congress addresses when it considers a Dormant Commerce Clause statute.  Moreover, it is not state officials who make the decision, but national officials in Congress.  I think there is a substantial chance that Congress would pass such a statute if the Dormant Commerce Clause were eliminated.

(Cross posted at the Liberty Law Blog)

Chief Judge Robert Katzmann on Statutory Interpretation
Michael Ramsey

At SCOTUSblog, Ronald Collins interviews Chief Judge Robert Katzmann on his new book Judging Statutes (Oxford Univ. Press 2014) [discussed here].

10/27/2014

Will Baude on Free Speech,, Voting Rights and Abortion Rights
Michael Ramsey

At Volokh Conspiracy, Will Baude:  Free speech vs. voting rights and abortion rights (commenting on this article by Dahlia Lithwick).

Lithwick’s basic point is that the right to vote and to obtain an abortion ought to get, but do not get, the same strong protection from the Court as free speech does. ...

But I can’t help but noticing one interesting and important difference between the right to free speech, and the rights to vote or to obtain an abortion. The right to free speech is enumerated in the text of the Constitution. The rights to vote and to obtain an abortion are not — at least not as explicitly.

Donald Drakeman: A Commentary on Richard Ekins' 'The Nature of Legislative Intent'
Michael Ramsey

Donald Drakeman (University of Cambridge; Notre Dame Law School) has posted Charting a New Course in Statutory Interpretation: A Commentary on Richard Ekins' 'The Nature of Legislative Intent' (Cornell Journal of Law and Public Policy, Vol. 24, No. 1, 2014) on SSRN. Here is the abstract: 

Jettisoned by many modern scholars, legislative intent is a critical component of statutory interpretation, according to a recent book by Richard Ekins [Ed.:  The Nature of Legislative Intent (Oxford Univ. Press 2012)]. In what has been called the most philosophically sophisticated work on the subject of legislative intention, Ekins describes the well-formed legislature as a group agent that enacts laws based on coherent and reasoned plans that represent the legislature's intent. In interpreting the laws, the duty of courts is to infer that intent, which requires judges carefully to consider the chain of reasoning that led to a particular legislative choice about means and ends. Professor Ekins thus charts a new course in the debates over statutory interpretation between textualism's focus on semantic meaning and a much more open-ended purposivism. This Article sets out Ekins' discussion of the central case of the well-formed legislature, and his compelling argument for courts to interpret statutes by inferring the reasoned plan adopted by the legislature and made known in the text. It then analyzes the opportunities and challenges arising in applying Ekins' analysis to litigated cases and flesh-and-blood legislative bodies by focusing on how, and where, courts should look for evidence of that intent. It concludes that a thoughtful use of legislative history, though discarded by a great deal of contemporary scholarship, including Ekins' work, can be an essential element of the search for a statute's meaning.

We're honored that Professor Ekins (Oxford University) will be presenting a paper on interpretation and intent at the USD Originalism Works-in-Progress conference in February (A full list of the papers will be posted shortly). 

10/26/2014

Andrew Hyman on Dormant Powers
Michael Ramsey

Andrew Hyman comments on this post

Several scholars have argued for a dormant immigration power analogous to a dormant commerce clause.  For citations, see note 68 of this 2013 essay by Professor Kerry Abrams.

Seems to me that the theories about dormant clauses make little sense.  The power to regulate commerce, for example, is plainly not indivisible, given that everyone agrees Congress is free to divide it.

Unsurprisingly, I'm no fan of the dormant immigration power (indeed, it seems much weaker that the dormant commerce clause, as Congress has no express comprehensive immigration power and the states regulated immigration without much objection for much of the nineteenth century).

Also, the second point is a good one.  The fact that a regime of concurrent state and federal regulation of interstate commerce can exist is strong evidence that the grant of the power to Congress is not, in itself, a denial of the power to the states.  As I put it in The Constitution's Text in Foreign Affairs (p. 275): 

Hamilton [in Federalist 32] ... argued that under the Constitution, "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act, exclusively delegated to the United States."  Exclusive delegation would arise, he continued, not only from express federal exclusivity or express preclusion of the states, but also where the Constitution "granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant."

But if concurrent regulation of interstate commerce is possible (as everyone agrees it is), then the authority granted to Congress to regulate interstate commerce is not "absolutely and totally contradictory and repugnant" to the states retaining it as well.  

Suzanna Sherry: The Classical Constitution and the Historical Constitution
Michael Ramsey

Suzanna Sherry (Vanderbilt University - Law School) has posted The Classical Constitution and the Historical Constitution: Separated at Birth (8 NYU Journal of Law & Liberty 983 (2014)) on SSRN. Here is the abstract: 

As part of symposium on Richard Epstein’s new book, The Classical Liberal Constitution, this article points out that his purportedly historical approach is actually present-oriented, which undermines two particular parts of his analysis. First, his discussion of judicial review mischaracterizes both judicial review itself and its history. Second, his discussion of abortion restrictions as valid exercises of the police power ignores the historical evidence. That evidence demonstrates that abortion restrictions were enacted for exactly the sort of wealth-transferring, monopoly-creating reasons that he finds unconstitutional in other contexts.

10/25/2014

Greg Weiner on Federalism and the Halbig Litigation
Michael Ramsey

At Liberty Law Blog, Greg Weiner, Halbig and the Nonchalance of Six Small Words.  The six words are, of course, “an exchange established by the State.”  Professor Weiner continues:

The gamble was that states, enticed by subsidies for their citizens or intimidated by the threat of losing Medicaid funds, would establish healthcare exchanges. The Obama administration is surely right that the whole idea of the Affordable Care Act (ACA) was that such subsidies be provided, and that the consequences that have ensued from those six small words were probably unintended.

On the other hand, the authors of those words—and words, after all, are the stuff of laws—placed their bet at a casino called federalism, a device that is not incidental to the constitutional design. That is what is at stake in this case, and that is why even those who believe the courts should give majorities a wide berth may be compelled to support judicial intercession to empower majorities—as expressed through the states—in Halbig.

Mark Graber: The Declaration of Independence as Canon Fodder
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted The Declaration of Independence as Canon Fodder (Tulsa Law Review, Vol. 49, p. 469, 2013) on SSRN.  Here is the abstract:

Reviewing Alexander Tsesis, For Liberty and Equality: The Life and Times of the Declaration of Independence (2012); Justin Buckley Dyer, Natural Law and the Antislavery Constitutional Tradition (2012); Nicholas Buccola, The Political Thought of Frederick Douglass (2012); and Brian R. Dirck, Lincoln and the Constitution (2012).

10/24/2014

Ilya Somin: Libertarianism and Federalism
Michael Ramsey

Ilya Somin (George Mason University School of Law) has posted Libertarianism and Federalism (Cato Institute Policy Analysis No. 751) on SSRN. Here is the abstract: 

Federalism is a political system with multiple levels of government, each of which has some degree of autonomy from the others. The United States has a federalist system that encompasses the national government, states, and localities. The United States adopted federalism in part to prevent abuses of power and to preserve individual liberty. Federalism serves those goals by helping individuals to “vote with their feet,” thereby fostering interjurisdictional competition. Such benefits are most likely to be found in federal systems where subnational governments have an incentive to compete for residents and businesses because they must raise most of their revenue from their own taxpayers, as opposed to receiving subsidies from the central government. In many ethnically divided societies, federalism can also enhance liberty by reducing ethnic conflict and oppression. However, federalism can also endanger liberty or property by empowering subnational governments to exploit owners of immobile assets, most notably land. Federalism can also permit local majorities to oppress local minorities. Contrary to James Madison’s expectations, federalism in the current era is unlikely to constrain the national government since states have incentives to support the expansion and centralization of power in Washington. Whether federalism enhances liberty depends on circumstances and institutional design.

10/23/2014

Glen Staszewski: The Dumbing Down of Statutory Interpretation
Michael Ramsey

Glen Staszewski (Michigan State University College of Law) has posted The Dumbing Down of Statutory Interpretation (Boston University Law Review, Vol. 95, No. 1, 2015) on SSRN. Here is the abstract: 

This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules of statutory interpretation, give stare decisis effect to interpretive methodology, use simpler methods of statutory interpretation in lower courts, and implement certain versions of textualism. The Article explains that such proposals are driven by an overarching desire to limit judicial discretion and promote a formal vision of the rule of law, and they assume that the traditional hierarchy of legal sources is exclusive, and that the function of statutory interpretation is to ascertain the meaning of the law.

This Article challenges each of these assumptions by claiming, first, that instead of seeking to eliminate judicial discretion, the primary goal of statutory interpretation methodology should be to protect the people from the possibility of domination by the state. Second, the resolution of disputes regarding the permissible scope of governmental authority in difficult statutory cases requires the use of practical reasoning, and the quality of statutory law and its democratic legitimacy benefit from a broad range of arguments and diverse judicial perspectives. Third, the traditional hierarchy of legal sources is outdated, and “interpretive methodology” and “agency decision making” should be viewed as distinct forms of law that merit their own special places in a new legal hierarchy for the regulatory state. Finally, the central function of statutory interpretation by federal courts in the modern regulatory state is to provide individuals and groups with opportunities to contest the validity of particular exercises of governmental authority, rather than to ascertain the meaning of the law in a vacuum. The Article therefore argues that the recent proposals to dumb down statutory interpretation are fundamentally misguided, and it closes by making several related observations about the extent to which interpretive methodology can or should be simple or uniform. In sum, provisional dialogues by and among different centers of power better reflect the nature of law in the modern regulatory state than artificial efforts to achieve simple, predictable, or uniform final answers to our most pressing legal or social problems.

10/22/2014

Michael Greve on Comptroller v. Wynne
Michael Ramsey

Comptroller v. Wynne is a tax/dormant commerce clause case that will be argued to the Supreme Court in November.  Sounds boring and unimportant?  Not after reading this great post by Michael Greve: The Taxman Cometh, Twice.  As he explains:

The state court got this [case] right, and there’s no conflict with binding decisions elsewhere. So why did the Supreme Court—which grants cert to state courts only in exceedingly rare cases—yank this case up?

I have a fear: in a string of cases, Justice Thomas and Justice Scalia have argued, both with characteristic force and clarity, that the entire dormant Commerce Clause is completely made up. (Justice Thomas seems prepared to jettison it altogether.) To their minds, the doctrine is an extra-textual invention—an interstate version of Lochner, and a constitutional common law rule of the sort that we’re not supposed to have. The Chief has expressed sympathy with that view. Maybe they found a fourth vote to grant cert. And maybe we’ll be treated to another disquisition on the baseless, illegitimate dormant Commerce Clause.

So far, I'm thinking, yes, I hope they have the votes.  But wait, says Professor Greve, rejecting constitutional common law rules would be rejecting McCulloch v. Maryland:

M’Culloch v. Maryland (1819) held that states may not tax or otherwise encumber, in a discriminatory fashion, federal institutions such of the Bank of the United States—unless Congress explicitly permits it. The argument for the default rule is that without it, the states would make mincemeat of the federal structure. Yes: Congress could always prohibit state interferences pursuant to its copious enumerated powers. But it’ll often sit on its duff, and it can’t anticipate every devious scheme some state may dream up. That’s why you need a default rule—like M’Culloch, and like the dormant Commerce Clause.

You can argue that M’Culloch was simply wrong on this point. Some textualist-originalists do believe that; but to take on John Marshall and one of his most foundational decisions requires way more argument than I’ve seen to date. Alternatively, you can argue that the M’Culloch rule is right but the dormant Commerce Clause is wrong. But that seems unlikely. If Congress can be expected to protect anything at all, it‘s its own institutions (like the Bank). Protecting commerce among the states on non-discriminatory, non-exploitative terms? Not so much. No tax coordination rule has ever come from Congress (let alone the states themselves). The argument against the dormant Commerce Clause is an argument for unchecked state aggression.

I looked at this aspect of McCulloch a bit in The Supremacy Clause, Original Meaning and Modern Law (74 Ohio St. L.J. at 592-93) and concluded that I'm not sure it is (or at least that it should be) a constitutional rule at all.  After all, in McCulloch, Congress had acted by creating the bank.  Even for someone who takes a narrow view of preemption, that congressional act seems to preempt state laws that threaten fatal interference with it (as Maryland's acts against the bank did).

In contrast, in a dormant commerce clause claim, Congress has not acted.  If there is any displacement of state law, it has to come from the Constitution alone.  So, first, as Greve anticipates, I think the two are entirely distinct.  And second, as Greve concedes, the Constitution's text doesn't support the idea of a dormant commerce clause.

It's possible that the dormant commerce clause can be grounded in history.  I think it's a stretch, but some good analysis has been done in that direction.  (See here by Brannon Denning, and here by Barry Friedman and Daniel Deacon).  Greve, however, wants to find a dormant commerce clause protection against excessive interference with interstate commerce because, well, it would be a good idea to have one.  (For an expanded argument, see his magnificent book The Upside-Down Constitution).  Like some others I've noted, this argument presents itself as a "structural" argument but it's not: it's a policy argument.  On the merits, he's probably right.  But it's not compelling as to the Constitution's original meaning.  It's quite plausible that the framers thought that a clause saying "courts can invalidate state laws they think interferes too much with interstate commerce" would have doomed ratification, and so omitted it even if some or most of them favored it.  We can add it in if we like, but we're not being faithful to their meaning.

10/21/2014

Renee Lettow Lerner: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial
Michael Ramsey

Renee Lettow Lerner (George Washington University Law School) has posted The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial (William & Mary Bill of Rights, Vol. 28, p. 811, 2014; GWU Law School Public Law Research Paper No. 2014-52) on SSRN. Here is the abstract: 

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

10/20/2014

Steven Calabresi: Gay Marriage and the Fourteenth Amendment from the Originalist Perspective
Michael Ramsey

Steven Calabresi (Northwestern University - School of Law) has posted Gay Marriage and the Fourteenth Amendment (Northwestern Public Law Research Paper No. 14-51) on SSRN. Here is the abstract: 

This essay examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

10/19/2014

Randolph May & Seth Cooper: Intellectual Property Rights Under the Constitution's Rule of Law
Michael Ramsey

Randolph May (The Free State Foundation) and Seth Cooper (The Free State Foundation) has posted Intellectual Property Rights Under the Constitution's Rule of Law (Perspectives from FSF Scholars, Vol. 9, No. 31) on SSRN. Here is the abstract: 

Today, the rule of law is all but universally recognized as a fundamental attribute of a free and just society. A “government of laws, not of men” places important limits on government power in order to ensure the protection of individual rights. And a proper understanding of fundamental rule of law precepts plays an important role in securing Intellectual Property (IP) rights.

American constitutionalism supplies the basic conditions for America’s unique conception of the rule of law – designed to ensure the protection of life, liberty, and property. Intellectual property is a form of property expressly provided for under the Constitution. In theory and in practice, intellectual property is readily conformable to the key components of the rule of law and American constitutionalism, such as according due process and equal protection and protecting vested rights. When IP’s critics argue otherwise, including some who otherwise consider themselves respectful of private property rights, they disregard or misunderstand fundamental elements of American constitutionalism and the rule of law.

This paper, which is part of a series of works on foundational principles of intellectual property, addresses some of the due process, equal protection, Takings Clause, and vested rights implications for IP rights.

10/18/2014

Richard Re on Ebola, Epidemics, and Federalism
Michael Ramsey

At Re's Judicata, Richard Re: Ebola, Epidemics, and Federalism. Here is an excerpt: 

The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.

Donald Wilkes: Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I
Michael Ramsey

Donald E. Wilkes, Jr.  (University of Georgia Law School) has posted Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 (54 Am. J. Legal Hist. 200 (2014)) on SSRN. Here is the abstract: 

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament). 

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during James I's reign. What was the origin and significance of the term High Court of Parliament? What was the parliamentary privilege of freedom from arrest, the violation of which could lead to the granting of habeas corpus relief by the House of Lords or the House of Commons? What was the civil arrest system in effect in seventeenth century Englanda system which made it likely that from time to time the parliamentary privilege from arrest would be violated and the parliamentary habeas remedy thereupon invoked? What other remedies, apart from habeas corpus, were available to deal with infringements of the parliamentary arrest privilege? And what were the contours of the parliamentary habeas corpus remedy itself, which appears not to have been successfully invoked prior to the reign of James I?

Parts II and III conclusively demonstrate that in the reign of James I the High Court of Parliament at times functioned as the High Habeas Court of Parliament. Part II provides an in-depth account of the habeas corpus proceedings in the House of Lords in the reign of James I, while Part III does the same for the habeas corpus proceedings in the House of Commons during the reign.

The Article concludes with a detailed discussion of the three major changes this work mandates in our understanding of English legal history. 

10/17/2014

Gerard Magliocca Replies on the Arizona Redistricting Case
Michael Ramsey

At Concurring Opinions, Gerard Magliocca replies to my earlier post on his views of the Arizona State Legislature case. Here is an excerpt: 

In several places the Constitution clearly says that only “the Legislature” can do something.  For the regulation of congressional districts, though, the Constitution says that “[T]he Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  I submit that this is not clear as Mike suggests.  Why is that?  Because governors have always had the power to veto redistricting plans (as the Supreme Court held in Smiley v. Holm and as the practice was going back to the Founding), whereas they have not had the power to veto, for example, ratifications of constitutional amendments under Article V.  As a result, Article I, Section IV must mean “prescribed in each State by the Legislature thereof” consistent with the lawmaking process set forth in the state constitution.

Buckner Melton: In Blount, the Senate Never Said that Senators Aren't Impeachable
Michael Ramsey

Buckner F. Melton Jr. (Independent) has posted Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren't Impeachable (Quinnipiac Law Review, Vol. 33, 2014 [invited response], forthcoming) on SSRN.  Here is the abstract:

This paper responds to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014) (available on SSRN).

The Senate motion in Blount that supposedly stands for the proposition that legislators aren’t impeachable — the motion to dismiss the House’s Blount impeachment — contains no subtleties to trap the unwary; no intricate analysis is needed. The frequent claim — made by both academic historians and lawyers, including Mr. Cassady — that the Senate decided, in the Blount case, that senators aren’t civil officers, or that members of Congress aren’t subject to impeachment, is simply flat-out wrong. Yet people keep on making it.

My main point in this response to Mr. Casssady is simple: If senators can be impeached, then the notion that an impeached senator can be removed from the Senate but not disqualified from returning to the Senate seems counterintuitive. And if senators can be barred from future Senate service, then so should all convicted and disqualified impeachment defendants, whatever their government position.

This paper will appear with 3 other responses to Mr. Cassady — by Professors Peter C. Hoffer, Brian C. Kalt, and Seth Barrett Tillman. (The latter two responses are posted on SSRN in draft form.)

Via Seth Barrett Tillman, who comments:

Melton’s (maximalist) position is that the Constitution’s “office” language (i.e., at least that language relating to impeachment and disqualification) extends to Senators and to other elected officials. My (minimalist) position is very different. I have argued that the Constitution’s “Officer of the United States”-language and “office ... under the United States”-language reach only appointed officers, and do not encompass any elected officials (e.g., President, Vice President, members of Congress, and federal electors). That said, I have a deep and abiding respect for Melton’s paper and evidence, which is based on careful analysis and early American materials. This is an important paper by the leading authority on the Blount impeachment. Although a good many academics have assumed that the maximalist position is correct or have based their support on a cursory analysis of text, history, precedent, and structure, Melton’s article is the first fulsome reasoned defence of the maximalist position.

Additionally, Melton has argued that a wide array of a scholars (including historians and legal academics) have misstated the Senate’s holding in Blount. On this point, he and I are ad idem
 
As an aside, Buckner Melton Jr. is the author, among other works, of The Quotable Founding Fathers: A Treasury of 2,500 Wise and Witty Quotations from the Men and Women Who Created America (Potomac 2005).
 
As a further aside, an interesting footnote from the article:
 
The title of this article is chosen not only for bluntness in the face of a widespread scholarly misconception, but also to educate non-southerners in the typical southern pronunciation of the surname Blount. I further have had it on good authority from some of William Blount's descendants, including one William Blount Walker of Macon, Georgia, that the pronunciation indeed rhymes with blunt.
 
I didn't know that.

10/16/2014

Two Conversations with Erwin Chemerinsky on the Supreme Court
Michael Ramsey

Orin Kerr has this interesting question-and-answer exchange with Erwin Chemerinsky regarding Chemerinsky's new book on the Supreme Court.  As Professor Kerr relates,

After reading Chemerinsky’s summary at Politico and the LA Times, I wondered if he was just criticizing the Supreme Court for not agreeing with his policy preferences. So I decided to ask Chemerinsky if that was a fair summary of his book, and if not, why not. Chemerinsky graciously agreed to answer my questions for publication here at the Volokh Conspiracy.

A sample:

Chemerinsky’s answers raised the broader question of whether his view of the Constitution was just his view of public policy dressed up in constitutional garb. So I asked him: Outside of the book, are there instances in which your view of the Constitution’s commands and your personal policy preferences diverge? And if so, what are they? He replied:

There are certainly instances in which I have a policy preference, but cannot reconcile them with the Constitution. I favor term limits for justices, but I believe it would violate the Constitution and would necessitate a constitutional amendment. I am not saying that there never is a difference between how one reads the Constitution and what one prefers from a policy perspective. But I do reject the idea that there is an objective, correct way to read the Constitution, or that one’s reading of the Constitution is divorced from one’s views about desirable policy...

The term limits answer is an easy escape.  The question should be, are there any contested questions of constitutional law in which your policy preferences diverge from your constitutional conclusions? 

If not, you are not really doing constitutional law; you are doing policy.  (Or, as  Mike Rappaport calls it, you are acting as a lawyer with your policy preferences as the client).  I don't necessarily think that's a bad thing (it depends on your theory of the role of judges in a democratic society), but I wish people would be forthright about it.  (Chemerinsky comes pretty close sometimes, including in this interview).  Also I wish people who have that view would stop talking about constitutional interpretation, since they are obviously not interpreting anything but rather arguing policy.

Sahil Kapur has a somewhat less confrontational interview with Dean Chemerinsky here: How To Fix The Supreme Court: Lessons From A Disenchanted Legal Scholar.

Mila Sohoni: The Power to Privilege
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Power to Privilege (University of Pennsylvania Law Review, Vol. 163, 2015, Forthcoming) on SSRN. Here is the abstract: 

A new and startling development has recently occurred in the law of delegation: Congress has for the first time expressly delegated to an administrative agency the power to write rules of privilege. Privileges abound in federal law, but until now they have been defined either by statute or by judicial opinion. The type of law that Congress has now authorized agencies to create — the regulatory evidentiary privilege — is a true novelty in our system of law.

This article is the first to grapple with the implications of migrating the power to write rules of privilege from Congress and the courts, on the one hand, to the executive branch, on the other. It begins by describing an underappreciated aspect of the administrative state: that the law of privilege is becoming increasingly important to the functioning of administrative agencies. As a result, administrative agencies are actively pursuing control over the law of evidentiary privilege in order to further their substantive mandates.

Granting agencies that sought-after control through a privilege delegation will imperil key federal and state regulatory and governance interests. First, privilege delegations will reduce agency accountability. A delegated authority to write privileges that enables an agency to shield its own communications from disclosure will allow the agency to insulate itself from external review and oversight. Second, privilege delegations will erode state interests in allowing litigants and the public broad access to information. Agencies promulgating regulatory evidentiary privileges are likely to displace state laws that would permit disclosure to a greater extent than would be the case if Congress and the courts retained the privilege pen. Third, privilege delegations threaten to undercut state sovereignty. When Congress authorizes federal agencies to privilege the communications of state officials, it obstructs the capacity of the states to monitor state agents and thereby produces a type of harm akin to prohibited Congressional commandeering of state governance.

After establishing the risks attendant to privilege delegations, the article offers some principles that should govern the choice of institution responsible for drafting any new set of privileges that may be invoked by executive branch agencies. Finally, the article explains why this innovation in delegation provides a unique opportunity to test prevailing scholarly models of why and to whom Congress chooses to delegate. When it delegates the power to privilege to an agency, Congress is substituting a new delegate — a politically accountable executive agency — for an old delegate — the politically unaccountable federal courts. Accounts of delegation grounded in party competition have greater explanatory power for this swapping of delegates than alternative accounts.

10/15/2014

The Court’s Alleged Power to Ignore the Original Meaning
Mike Rappaport

In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism.  Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism.

But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument.  I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning is unclear, the Court may also claim the power to decide based on other considerations, such as government practice, but it does not assert the power to ignore unambiguous provisions.)

This point does not mean that nonoriginalism is illegal, because the Court can decide cases that conflict with the original meaning simply by staying silent about the matter.  Certainly, the Court has not followed the original meaning in many cases, without claiming the authority to ignore the original meaning.

But this limitation (that the Court can ignore the original meaning by remaining silent) does not make the basic point unimportant.  One significant effect of this point is that a large percentage of the academic theorizing about the U.S. Constitutional Law – which assumes that the courts can depart from the original meaning of the Constitution – is inconsistent with the rule of recognition.  That is, this theorizing is inconsistent with the law of the land at present.  This is an important conclusion and one that nonoriginalists have largely failed to address.

An interesting question involves the continuing existence of the Court’s practice of deciding cases in a manner inconsistent with the original meaning without addressing the issue.  As there are now at least two originalists on the Supreme Court, one can expect that these justices will attempt to prevent a Supreme Court majority from simply asserting a constitutional interpretation that ignores the original meaning.  The originalists will criticize the majority’s decision, and in many cases this will force the majority to respond.  How they will do so will have an important effect on the content of the law.  There are several possible responses:

  1. One possibility is that the majority will openly acknowledge that it is asserting the power to ignore the original meaning, even in cases where no precedent is involved. I predict this will not happen, because it would be politically damaging to the majority’s approach.
  1. Another possibility is that the majority will agree with the dissenters, changing its mind on interpretive matters. This does not mean the majority will always agree with the two originalists on results, but that it will use similar interpretive approaches.  This strikes me as very unlikely as well.
  1. A third possibility is that the majority will continue to remain silent as to the authority to violate the original meaning in certain cases by simply not responding to the dissenters. This may be difficult to do, but it is certainly a possibility.
  1. Another possibility is that the majority will claim to be following the original meaning, but will read the original meaning as containing an abstract provision that allows modern judges to provide significant content to the provision.  This strikes me as the most likely possibility.

Under this last possibility, all of the justices will sound like originalists, but will not change their interpretations.  This approach resembles the perspective of Jack Balkin.  In my view, this is something of an improvement for originalists, but it does not mean full victory – it merely means that the debate is shifted to a different ground – whether or not the original meaning of a provision is abstract.

(Cross posted at the Liberty Law Blog) 

More on Charles Beard and the Constitution
Michael Ramsey

The current issue of the UC Davis Law Review has two articles from the 2013 Annual Meeting of the American Society for Legal History's session “Law and Counterrevolution: Charles Beard and the Origins of American Constitutionalism”:

(1) Aaron Knapp (Boston University), The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787 (47 UC Davis L. Rev. 1859 (2014)). From the introduction: 

Did the Federalists wage a counterrevolution in 1787? Although its popularity in the legal academy has waned in recent decades, the idea that the movement for constitutional reform in 1787 had counterrevolutionary dimensions dates straight back to the Antifederalists, who often accused their counterparts of betraying the spirit of ’76’s republican promise. In the constitutional historiography, scholars trace the idea to Charles Beard’s An Economic Interpretation of the Constitution of the United States, wherein Beard depicted the nation’s constitutional founding as an economic counterrevolution waged by and on behalf of protocapitalist creditors and public securities holders. Beard’s critics over the years have challenged him either by purporting to show that the Federalists in fact sought to secure the Revolution’s gains, or by discrediting An Economic Interpretation’s evidentiary basis. The former approach too often confuses rhetoric for reality, while the latter sidesteps the question of whether some kind of alternative, non-economic revolt against the revolutionary heritage occurred in 1787. Those historians who take the position that a counterrevolution did take place in 1787 have either cleaved to Beard’s materialism and thereby committed the same reductionist sins; or, to the other extreme, so far enlarged the concept of a counterrevolution as to place within its historical ambit virtually every post-Revolutionary American who at one time or another preferred order to liberty, or who opposed equal rights for women or blacks.

(2) Gerald Leonard (Boston University School of Law), Fletcher v. Peck and Constitutional Development in the Early United States (47 UC Davis L. Rev. 1843 (2014)).  From the introduction: 

One hundred years after Charles Beard’s An Economic Interpretation of the Constitution of the United States, few scholars attend actively to that book or its specific claims. Yet it has become conventional wisdom that the movement for a new Constitution in 1787 was no democratic movement but a conservative effort to rein in the allegedly reckless policy impulses of the state governments. Power would be transferred substantially to the center, where an elite might better control the direction of policy. This conservative movement had important, Beardian economic dimensions, particularly its determination to secure the rights of the propertied against the supposed desires of the unpropertied to redistribute wealth. But closely allied to this economic conservatism was necessarily a legal conservatism, perhaps even a legal counterrevolution, as Aaron Knapp’s essay for this Symposium argues. The Contracts Clause of the new Constitution was only the most explicit protection in the document for traditional rights of property and contract as against the state governments’ demonstrated readiness to interfere with contract performance and debt collection. The triumph of the Framers of 1787, then, appears to some an abiding victory for a fundamentally conservative structure of American law and a major defeat for serious advocates of equality and democracy.

Also, at Liberty Law Blog, Herman Belz (Univ. of Maryland -- History) surveys two recent symposia on Beard's An Economic Interpretation of the Constitution of the United States -- one held at the University of Virginia School of Law (published in the Summer 2014 issue of Constitutional Commentary and one in the Fall 2013 issue of American Political Thought.

10/14/2014

Randy Barnett on the Origination Clause Litigation
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has an update on the origination clause challenge to the Affordable Care Act. (It is currently on petition for rehearing en banc after rejection by a panel of the D.C. Cirucit.  Professor Barnett explains how -- in his view, but it sounds right to me -- the panel erred).

Here is an earlier post on the litigation.

Gerard Magliocca on Arizona Redistricting
Michael Ramsey

Gerard Magliocca has two great posts on the Arizona State Legislature case at Concurring Opinions, here and here.  But, he ends up persuading me the opposite of what he intends (at least in the first post).  After laying out the competing arguments, he comes down on the side of the lower court, in favor of the constitutionality of the redistricting commission:

Why do I think that [this] interpretation is better?  Mainly on structural grounds. The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering.   In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act.  Thus, the only plausible remedy is through an initiative or referendum in states that permit them.

Yes, if one were drafting a new Constitution, or a constitutional amendment, this would be a good argument.    But calling it a "structural" argument should not disguise its character as purely an argument from policy.  So, as is often true, we can decide the case based on what we think is the best policy, or we can decide the case based on the language of the Constitution.

Notably, in his second post (which may show some retreat from his first), Professor Magliocca appears to assume that in other instances where the Constitution gives a power to state "Legislature[s]," the state could not amend its Constitution by popular initiative to give the power entirely to another entity.  I find this to be very powerful evidence that when the framers wrote "Legislature" they meant, well, the legislature.  (Professor Magliocca has a response, but it seems strained to me).

10/13/2014

Peter Markowitz: The Power of State Citizenship
Michael Ramsey

Peter L. Markowitz (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Undocumented No More: The Power of State Citizenship (Stanford Law Review, Vol. 67, 2015) on SSRN.  Here is the abstract:     

An estimated eleven million undocumented immigrants live in the United States. These individuals have become integral members of American families and vital components of the American economy. Yet repeated efforts to meaningfully reform the nation’s immigration laws — to more fully integrate these individuals into American society — have failed to garner sufficient political support in Congress. The prospects for significant congressional action on immigration remain bleak into the foreseeable future because our nation’s debate on immigration has been warped by powerful, but largely inaccurate, themes of criminality, lax border enforcement, and national security threats. These themes have been crafted and cemented in large part by aggressive restrictionist state immigration laws in places like Arizona and Alabama. Until recently, integrationists have failed to similarly capitalize on the power of states to shape both the nation’s policies and, perhaps more importantly, the nation’s discourse on immigration. Recently, however, immigrant advocates have begun looking to the power of inclusive state citizenship schemes to reorient our nation’s immigration conversation.

This article explores the outer boundaries of state power to promote the integration of immigrants and to reorient the nation’s conversation around more accurate and helpful themes of family, democracy, and economic vitality. Specifically, I explore the constitutional power of states to extend state citizenship to undocumented immigrants. The article argues that the federalist structure enshrined in the Constitution and prevailing interpretations of the Fourteenth Amendment leave untouched the historic power of the states to define the boundaries of their own political communities more generously than the federal government. In addition, the article argues that such state citizenship schemes could deliver substantial tangible support for the integration of undocumented immigrants though traditional levers of state power: granting state political rights, granting access to state programs and benefits, and granting state protections against discrimination and mistreatment. Perhaps most importantly, state citizenship could be a powerful expressive tool for states to reorient our national conversation on immigration in ways that may, in the long term, be the key to eventually unlocking substantial federal reform.

 

10/12/2014

Matthew Estrin on the Arizona Legislature Case
Michael Ramsey

Reader Matthew Estrin sends this comment on the Arizona State Legislature case (the question being, does Article I, Section 4 -- which says the "Times, Places and Manner" of elections for the U.S. House of Representative shall be "prescribed in each State by the Legislature thereof" -- allow districts to be drawn by a independent commission):

I know that the case as well as the discussion has all been about the meaning of "Legislature" but I was thinking the proper focus should be on the meaning of "State." In requiring that we have a republican form of government, the founders didn't just distinguish our government from a monarchy and aristocracy; they also distinguished us from the ancient Athenian direct democracy. To be sure, we have direct democracy avenues (e.g. referendums) but at our heart there is a separation between the government as an institution, the State, and the people, even if the people hold the power through elections.

This can further be seen in the Tenth Amendment. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." There is a distinction between the States and the people. They are not one in the same.

This, to me, shows a strong indication that in giving the power to the State that itself distinguished the government from the people. Legislature, therefore, was only really meant to distinguish between the branches of government.

I know there may be some textual arguments against this. Namely that by saying "...in each State" instead of "...by each State" that evidences the use of state in a geographical sense. But I'm not completely convinced that the founders were that particular in phrasing the Constitution, or that it wasn't one of style to avoid saying "...by each State, by the Legislature thereof" which is kind of clunky.

Some Thoughts About Same Sex Marriage
Andrew Hyman

I’d like to flag an interesting new manuscript by Professor Steven Calabresi, available at SSRN here.  Among other things, Calabresi argues that cases regarding the definition of “marriage” do not fall within the scope of “law or equity” (which is a term in Article III of the Constitution) and therefore those cases must be decided by state courts rather than federal ones.  Although I don’t know enough to say whether Calabresi is correct, his position certainly does have some disturbing implications, for example that a state court could hypothetically approve of excluding interracial couples from the word “marriage.”  That’s kind of a scary prospect, even though Calabresi carefully distinguishes the case of Loving v. Virginia because it involved not just a definition but a criminal penalty regarding interracial marriage.

An important but often overlooked aspect of this same sex marriage (“SSM”) controversy is that in some states it is basically a free speech issue.  For example, here’s what the  Supreme Court of California said in 2009:

The Attorney General’s contention ... rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .”

Even if states have no free speech rights, it is still kind of disturbing that the federal judiciary would basically muzzle the states, especially without any support from Congress.  And, if corporations have free speech rights, why not states?  Professor David Fagundes has pointed out that states do have some free speech rights, although the Equal Protection Clause was adopted later than the First Amendment and so would apparently override the First Amendment.  Banning governmental use of the innocuous term “civil union” seems like judicial overkill to me, whether or not states have First Amendment rights.

Of course, in many states, the marriage laws in question go beyond mere nomenclature.  That raises another interesting question: may states adopt policies that help to ensure children will preferably have a mother and father?  I am surprised that we have a U.S. Supreme Court (SCOTUS) that is on the verge of issuing a resounding “no,” in opposition to long tradition, in opposition to continued public debate, and in opposition to collection of further data and further experience.  But, for me, there is a deeper question: does SCOTUS really have constitutional authority to do this even without any support from Congress?

I have a forthcoming law review article that addresses this last question in general, with only a footnote about SSM.  What I have discovered is that the framers of the Equal Protection Clause definitely wanted the views of Congress to be a critical factor in the Court’s equal protection analysis.  Instead, courts have completely shut out Congress, and in so doing they have effectively stricken the last three words from the Clause, like this: “No state shall deny to any person within its jurisdiction equal protection.”  The missing last three word are “of the laws” and those “laws” most definitely were intended to include the laws of Congress (that’s why the clause does not say “of its laws”).  Even if we pretend that current equal protection doctrine is 100% correct − with its tiers of scrutiny and independent judicial judgment − my feeling is that the courts are really jumping the gun on this one.

Patrick Charles: History in Law, Mythmaking, and Constitutional Legitimacy
Michael Ramsey

Patrick J. Charles (U.S. Government - Air Force) has posted History in Law, Mythmaking, and Constitutional Legitimacy (Cleveland State Law Review, Vol. 62, 2014) on SSRN.  Here is the abstract:     

Defining what constitutes myth and history has been an ongoing debate among historians for over a century. The debate centers as to whether there can truly ever be such a thing as an objective historical account. Given that all historical inquiries grow out of the respective historian’s ideological mind, it is argued the writing of history is not so much about truth-seeking as it is about the ideological leanings of the respective historian. In other words, critics of objective history frequently claim that one historian’s truth is another’s falsity.

In any case there is an argument to be made that all history is myth and all myth is history. No matter how much of the evidentiary record is uncovered, no historian can ever fully reconstruct the past as it was. In their totality, those moments in history are lost forever. The best any historian can do is build upon those evidentiary remnants which remain. Still, at one level or another, historians will have to make a number of assumptions about the past. In some instances the assumptions will be small or minute because the evidentiary record is rich with information about the past, allowing the respective historian to recreate an event or time period in excruciating detail. In other instances the assumptions can be substantial, especially when the evidentiary record is barren, requiring the respective historian to fill the evidentiary gaps. But whenever historians make any assumptions about the past — whether they be minor or substantial — they are perpetuating myth in some form or another.

Given these problems, this article builds upon a previous work — "Historicism, Originalism and the Constitution" — and argues that history is much better suited as a philosophical and moral guide towards understanding the law’s development. This in turn minimizes mythmaking and the creation of poor constitutional constructs. This does not mean, however, that to legally reason from subjective historical accounts or myth can never be a legitimate enterprise. As this article outlines, there is at least two scenarios (and perhaps others) where the acceptance of myth is constitutionally legitimate.

Note: The article is part of last spring's mini-symposium "History and the Meaning of the Constitution."  I'm told that if anyone is  interested in responding, they may be able do so through the Cleveland State Law Review's new online companion Et Cetera, see http://www.clevstlrev.org/.

Further note:  Here is a link to Patrick Charles' book Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence (McFarland 2014) on Amazon.

10/11/2014

Justice Stevens Reviews Judge Katzmann (and Slams Justice Scalia); Josh Blackman Comments
Michael Ramsey

In the New York Review of Books, Justice John Paul Stevens: Law without History? (reviewing [favorably] Judge Robert Katzmann's Judging Statutes (Oxford 2014).  But actually the review is an extended attack on Justice Scalia's view of statutory interpretation, particularly his rejection of legislative history.

Josh Blackman comments here: Stevens: Scalia is a Textualist Because He is Trying To Promote The Non-Delegation Doctrine, Notwithstanding Whitman v. American Trucking.

Two thoughts:

(1) Again, when it comes to statutory interpretation, everyone's an originalist (or at least everyone claims to be).  The argument between Stevens/Katzmann and Scalia would -- if they were talking about the Constitution -- be an intramural fight among originalists: how much to weight framers' intent, reflected in non-textual sources, versus the original meaning of the text?  As Stevens puts his position, paraphrasing Katzmann, "it is appropriate [to use legislative history] to seek to understand the intent of Congress [that is, the enacting Congress] when confronted with vague or ambiguous statutory provisions."  Well, sure, then is it not appropriate to use drafting and ratifying history to seek to understand the intent of the framers when confronted with vague or ambiguous statutory provisions?

(2) As to Scalia's view, and contra Stevens, I have a hard time seeing it as founded on a broader theory of law such as non-delegation (other than perhaps rhetorically).  Obviously Scalia uses drafting and ratifying history -- the constitutional counterpart of legislative history -- to understand the meaning of the Constitution.  Rather, I think his concerns are methodological and practical. 

On method, Scalia's view (which I share) is that undue focus on the enactors' "purpose" shifts the inquiry from what the text means to what would be a reasonable rule (because surely the enactors were reasonable).  And that in turn shifts the inquiry -- in practice, although without admitting it -- to what the judge thinks is best (because surely the judge is reasonable, and thus what he believes is probably what the enactors believed).  Focus on the text, to the contrary, keeps the inquiry centered on what was actually enacted and not what seems reasonable to any particular person.

But this isn't an argument against using legislative history (for statutes or the Constitution); it's just an argument for using it carefully, to aid in finding the meaning of the enacted text and not as a substitute for the enacted text.  In this sense, Scalia's absolute rejection of legislative history for statutes (but not for the Constitution) is an overreaction -- perhaps well justified -- to prior modes of statutory interpretation that had lost touch with the text almost entirely.

The second objection is practical -- in Scalia's view, modern legislative history is simply not helpful in finding the meaning of a statute because it is so extremely unreliable and subject to manipulation.  This is a core point underlying Scalia's different treatment of statutory and constitutional legislative history.  When the Constitution and key amendments were adopted, the legislative history was relatively simple and straightforward.  It can be taken more-or-less at face value, adjusting for the known biases of the easily identifiable people who contributed to it.  In contrast, modern legislative history is generated in such an opaque process, and runs to such great length, that no one can really know where ti came from or what is in it until it comes time to pick through it for a helpful excerpt.

Whether these considerations call for a complete rejection of modern legislative history, or only for extremely cautious use, can be debated among textualists.  I am doubtful, though, that any philosophical commitment of textualism (including Scalia's textualism) requires the total rejection of legislative history.

RELATED:  Norm Ornstein comments on textualism and Judge Katzmann's book in The Atlantic: How Activist Judges Undermine the Constitution.  Again note that he is a statutory originalist, seeking the understanding of the framers (enactors), although he would look to their purpose and intent rather than just their enacted words.

10/10/2014

Ajay Mehrotra: Revisiting the Intellectual Roots of the Beardian Thesis
Michael Ramsey

Ajay Mehrotra (Indiana University Maurer School of Law) has posted Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis (29 Constitutional Commentary 475 (2014)) on SSRN. Here is the abstract: 

A century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

This article was part of a special symposium on the 100th Anniversary of Charles Beard’s An Economic Interpretation of the Constitution, hosted by the University of Virginia’s Miller Center and law school.

10/09/2014

David Upham Reviews Kurt Lash on Privileges or Immunities
Michael Ramsey

At Law and Liberty, David Upham (Univ. of Dallas - Politics) reviews (somewhat favorably) Kurt Lash's The Fourteenth Amendments and the Privileges and Immunities of American Citizenship (Cambridge Univ. Press 2014).  From the introduction:

The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was.

...

In the construction of a scholarly consensus, Professor Kurt Lash’s new book represents an important step forward. He presents what is perhaps the most extensive study into the “original meaning” of the Clause. Relying on Professor Lawrence Solum’s terminology, Lash identifies this “meaning” as “the likely original understanding of the [Clause’s] text at the time of its adoption by competent speakers of the English language who were aware of the context in which the text was communicated for ratification.”

In seeking this original meaning, Lash explores an extensive array of evidence—some of which has been largely overlooked by scholars. Of particular note, he highlights the way in which the New Orleans Race Riot of August 1866 shaped the ratification debates. This mob violence, directed at citizens exercising their freedoms of speech and assembly, led Republicans to emphasize how the Amendment would provide needed protection for these liberties. Lash also calls scholarly attention to the analogous provisions of various territorial treaties (e.g., the Louisiana Treaty) wherein the United States had pledged to admit the inhabitants to the rights and immunities of “citizens of the United States.”

Professor Lash's view, which I find attractive, is the "total incorporationist" view -- that is, that (as Professor Upham puts it) "privileges of citizens of the United States (a term first prominently used in antebellum territorial treaties), represented federally-conferred privileges—including 'all constitutionally enumerated personal rights,' such as those found in the first eight amendments to the federal Constitution."

Upham is (to say the least) not convinced: 

Nonetheless, despite the obvious importance of this work, and the extensive evidence [Lash] presents, I believe that his principal conclusions are disproven by a preponderance of the very evidence on which he relies.

The balance of the review defends this claim at length, and with enough force that I remain undecided, despite my attraction to Lash's thesis.

UPDATE:  Kurt Lash replies (forcefully) here: The Fourteenth Amendment, Original Meaning Originalism and How to Approach the Historical Record: A Response to David Upham. Also, in the comments, an interesting exchange among Professors Upham and Lash and Andrew Hyman.

10/08/2014

Originalism and the Good Constitution at the Cato Institute
Mike Rappaport

Last week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution.  The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center.  You can watch the video here.

Roger took issue with our book from a natural rights perspective.  He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy.  But I believe that Roger is mistaken.  The book’s approach is that we should read the original meaning of the Constitution in a straightforward way, without bringing in some external preference for democracy, as Robert Bork seemed to.  While Roger no doubt differs with us on the Constitution’s meaning, the book is not primarily about the specific content of constitutional clauses, but is instead focused on issues related to the normative defense of the Constitution, how one should determine its meaning, the role of precedent, and the importance of the constitutional amendment process.

Brianne adopted the approach of the Constitutional Accountability Center, which argues for an originalist methodology, but views many constitutional provisions as having abstract meanings that require modern judges to give them content.  But John and I are skeptical of this approach.  In our article, The Abstract Meaning Fallacy, we criticize a fallacy, that we associate with Ronald Dworkin and Jack Balkin, that concludes that constitutional provisions have abstract meanings without sufficiently considering the other possible meanings.  In particular, we believe that many constitutional provisions sound at first like they might have abstract meanings, but upon examination of the history turn out to have more concrete meanings.

Despite our differences with the commentators, we very much enjoyed the discussion and felt that it brought out many of the most important issues.

(Cross posted at the Liberty Law Blog)

Josh Blackman on Balkin on Noel Canning and Originalism
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: Balkin on Noel Canning and Originalism (criticizing this post by Jack Balkin, noted here).  From the core of the argument:

The thread that holds together Jack’s entire post is that the original meaning of the Constitution does not place such checks on “presidential power in domestic policymaking.” If you accept that position (which I don’t), then Balkin’s opinion follows nicely. In this case, Scalia is rejecting all of this tradition, which is inconsistent with original practice.

But, if you contend that the original Constitution does not permit the intra-session recess appointments, then Jack’s theory doesn’t hold. I don’t agree that our original Constitution enables the President to have strong domestic policymaking power, where the Congress is at odds. As I discuss in my paper Gridlock and Executive Power, Scalia gets the better argument about how “gridlock” is a feature designed into our Constitution. The ability of a recalcitrant Congress to check a President whose appointments they don’t agree with is baked into the Constitution.

10/07/2014

The Supreme Court's OT 2014-15: Not Much Originalism (Plus a Correction)
Michael Ramsey

As the Supreme Court opens its 2014-15 term, my projection is: this is not going to be a big year for originalism.  Unlike last year, which featured major cases like Noel Canning and Bond, I think there is significantly less on the docket of originalist interest.

Two cases have some potential: Zivotofsky v. Kerry, the Jerusalem passport case, and Arizona State Legislature, the meaning-of-legislature case.  (Both have been discussed previously on this blog.)  Here are the questions presented:

Zivotofsky v. Kerry:

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

With little precedent on point, this one is likely to get into questions of the original meaning of executive power and early historical practices.  I will have more to say in due course.

Arizona State Legislature v. Arizona Independent Redistricting Commission:

(1) Whether the Elections Clause of the United States Constitution [Art. I, Sec. 4]  and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

Again, there's not much precedent directly on point, so the debate is likely to involve questions about what the framers meant by "Legislatures" of the States.

On a quick review, I don't see other cases likely to produce significant originalist discussion.

RELATED CORRECTION:  Garrett Epps writes that my prior post on the Arizona Legislature case misread his post; he did not intend to indicate support for the lower court (which read "Legislature" to include an independent commission not controlled by the legislature).  To the contrary, he says, he thinks it's a close case.  Apologies.