Eric Segall on Justice Scalia's Legacy
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Scalia 1 and Justice Scalia 2: A Modest Proposal.  From the introduction:

Jack Balkin of Yale Law School recently posted an essay about Justice Scalia's legacy which sets forth four criteria for ascertaining what a Justice's long term reputation is likely to be. Balkin argued we should look at 1) how useful the Justice is likely to be to future generations; 2) Is the Justice central to the political regime in which he lived; 3) Did the Justice take positions that are likely to end up on the "right side of history"; and 4) Did the Justice have promoters and "acolytes" willing to strongly defend his positions.

I think these criteria are fine for the task at hand, and so does my friend Ilya Somin, who responded to Balkin with his own post on the Volokh Conspiracy. 

And the key point:

One thing Scalia did do was talk the talk of originalism and textualism in his writings, his dissents, and his public speaking engagements. And, he did that very well. So, here is my proposal. From now on, I hope academics will refer to "Scalia 1" and "Scalia 2."  Scalia 1 was the witty academic, fun public speaker, and caustic dissenter who made detailed and interesting arguments in favor of judges leaving elected officials alone unless they violated the clear text or original meaning of the Constitution. Scalia 2 was the judge who voted to overturn the acts of those very same officials all the time through huge swaths of constitutional law even though neither the clear text nor the original meaning supported those decisions.

Whatever Scalia's legacy ends up being, if we don't keep the two Scalias straight, we are not doing justice to the actual man.


John McGinnis: The Continuity of the Fourteenth Amendment with the Founding
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Continuity of the Fourteenth Amendment with the Founding.  From the introduction:

At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.

In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty.  The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution. ...


Martin Lederman: History's Lessons for Wartime Military Tribunals
Michael Ramsey

Martin Lederman (Georgetown University Law Center) has posted If George Washington Did it, Does that Make it Constitutional?: History's Lessons for Wartime Military Tribunals (Georgetown Law Journal, forthcoming) on SSRN.  Here is the abstract:      

Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.

In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.

The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a 1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.


A Reply to Saul Cornell on Natural Born Citizens (Part 3)
Michael Ramsey

This is my third and last post responding to Saul Cornell's essay The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism  (2016 Wis. L. Rev. Forward 92).  For part 1, see here, for part 2, see here.

In this post, I'll discuss how Professor Cornell's criticism relates to my reading of the natural born citizen clause (set forth here).  Cornell principally argues that the 1790 Act did not give natural born status to people born abroad with U.S. citizen mothers and non-citizen fathers; he sharply criticizes an essay by Neal Katyal and Paul Clement taking the opposite view of the Act.  In my prior posts I argued that his criticisms are misplaced, or at least are not as powerful as he thinks they are.

My view of the natural born citizen clause, however, does not depend on Katyal and Clement being right about the Act.  (Cornell says the Act is "a cornerstone" of my view, but it's not).  My view (explained in the article linked above) is that the clause requires some connection to the U.S. at birth but conveys to Congress power to decide what sort of connection is sufficient.  That view is principally based on English law and practice, in which parliament changed the definition of "natural born" status multiple times, in multiple directions, over the century prior to the Convention; the framers were presumably familiar with this practice because it is described in part by Blackstone.  Further, in my view, the 1790 Act supports this reading because the First Congress, in enacting the Act, apparently thought it had power to come up with its own definition of "natural born."

First, the 1790 Act defines "natural born" differently from English common law.  Some commentators (though I think not Professor Cornell) contend that the Constitution adopted the common law definition.  But the common law definition recognized natural born status only for people born in sovereign territory (with minor irrelevant exceptions).  The 1790 Act clearly grants natural born status to a large number of people born outside U.S. sovereign territory, even if one does not accept Katyal and Clement's reading: at minimum, it gives that status to people born abroad with two U.S. citizen parents.

Second, the 1790 Act does not simply enact the English statutory definition of natural born that was in effect when the Constitution was adopted.  The principal English naturalization act in place in 1787-89, the Act of 1731 (4 Geo. II, ch. 21), gave natural born status to anyone whose father was an English subject.  As discussed, the 1790 Act gave that status to "children of citizens" -- which either means that both parents must be citizens (narrower than the 1731 Act) or that either parent may be a citizen (broader than the 1731 Act).  In either event, the First Congress evidently thought it could use its own definition of natural born and did not think it was constitutionally bound to the English statutory definition.  The 1790 Act also added the proviso that in order to gain natural born citizenship in this way, a person's father must have at some point been a resident of the U.S.  There is no parallel requirement for natural born status in any of the English statutes; this is simply an invention of the First Congress -- again showing that the First Congress thought it had power to set out its own definition.

Thus, whether or not one accepts the Katyal/Clement reading (that either a U.S. mother or a U.S. father is sufficient), the 1790 Act supports the view that Congress thought it had power to vary the definition of natural born.  As a result, the main point of Professor Cornell's essay, even if correct, does not refute my reading of the natural born citizen clause.

Cornell makes two other points that bear on my article.  First, he says (without further elaboration):

The most obvious problem with [my claim] is that it equates Parliament's power in this area, which was absolute under the English Constitution, with Congressional power under the American Constitution, which was far more limited in its scope.

I agree that one must be cautious equating Congress' power with Parliament's power, and I discuss this objection at some length in my article.  Although I agree it's a fair criticism, I don't see any other satisfactory original meaning of "natural born."  The framers used a legal phrase that they knew (from Blackstone) had no fixed definition in English law, but rather was subject to parliamentary definition.  To me, that indicates a decision to leave the matter in part to Congress.  Saying that Congress' power "in this area" was "far more limited in scope" just asserts a conclusion that's hard to fit with the text and its historical background.

Professor Cornell also invokes St. George Tucker's 1803 treatise.  (As an aside: Cornell criticizes originalists for not looking at "actual readers" such as Tucker nor taking into account their biases; this is an odd criticism, for originalists routinely look at what founding-era commentators including Tucker said about constitutional provisions -- this is a centerpiece of most originalist assessments -- and if they do it right they will take into account biases just as Cornell says).

Cornell says that Tucker did not think "Congress could alter the scope of the natural born citizen clause."  His assessment of Tucker's commentary is:

Tucker stated unambiguously that "[p]ersons naturalized according to [the 1790 and 1795 Naturalization Acts], are entitled to all the rights of natural born citizens" except for certain express limits on their ability to hold federal offices.  As far as the Presidency was concerned. Tucker was emphatic: "they are forever incapable of being chosen to the office of President of the United States."

However, this passage is ambiguous.  It's not clear whether Tucker was referring to all people granted citizenship under the 1790 Act (including those declared citizens at birth), or whether he was referring only to people who became citizens as adults through the naturalization process prescribed in the Acts.  If the former, he was really saying that the 1790 Act was unconstitutional, because the Act purported to give full rights of natural born citizens to those it declared to be citizens at birth.  But Tucker didn't say that the 1790 Act was unconstitutional; he said that the Act did not convey presidential eligibility on the people he was discussing.  That makes sense only if one reads Tucker's comments as directed only at people naturalized after birth.  (I discuss this quote in my article and reach this conclusion).

In sum, Professor Cornell's essay does not materially undermine my article, regardless of whether one thinks it is an effective criticism of Katyal and Clement.  In any event, though, it is a challenging and thought-provoking essay, and I'm grateful for the opportunity to further refine my thinking on the subject.


New Book: "The Constitution Today" by Akhil Amar
Michael Ramsey

Newly published: The Constitution Today: Timeless Lessons for the Issues of our Era (Basic Books, Sept. 13,  2016).  Here is the description from Amazon:

America’s Constitution, Chief Justice John Marshall famously observed in McCulloch v. Maryland, aspires “to endure for ages to come.” The daily news has a shorter shelf life, and when the issues of the day involve momentous constitutional questions, present-minded journalists and busy citizens cannot always see the stakes clearly.

In The Constitution Today, Akhil Reed Amar, America’s preeminent constitutional scholar, considers the biggest and most bitterly contested debates of the last two decades and provides a passionate handbook for thinking constitutionally about today’s headlines. Amar shows how the Constitution’s text, history, and structure are a crucial repository of collective wisdom, providing specific rules and grand themes relevant to every organ of the American body politic. Prioritizing sound constitutional reasoning over partisan preferences, he makes the case for diversity-based affirmative action and a right to have a gun in one’s home for self-protection, and against spending caps on independent political advertising and bans on same-sex marriage. He explains what’s wrong with presidential dynasties, advocates a “nuclear option” to restore majority rule in the Senate, and suggests ways to reform the Supreme Court. And he revisits three dramatic constitutional conflicts—the impeachment of Bill Clinton, the contested election of George W. Bush, and the fight over Barack Obama’s Affordable Care Act—to show what politicians, judges, and journalists got right as events unfolded and what they missed.

Leading readers through the particular constitutional questions at stake in each episode while outlining his abiding views regarding the Constitution’s letter, its spirit, and the direction constitutional law must go, Amar offers an essential guide for anyone seeking to understand America’s Constitution and its relevance today.

And from the blurbs, Lawrence Lessig:

America’s most brilliant originalist constitutionalist is also perhaps her best constitutional journalist: In this beautifully written collection, Akhil Amar brings the words of our framers forward, and with wit and care, makes it easy for anyone to understand their wisdom and flaws, as he maps our constitution onto the culture of modern American politics.


Laurence Claus: Power Enumeration and the Silences of Constitutional Federalism
Michael Ramsey

My colleague Laurence Claus (University of San Diego School of Law) has posted Power Enumeration and the Silences of Constitutional Federalism (International Symposium on Constitutional Silence, Trinity College Dublin) on SSRN.  Here is the abstract:      

Enumerating power by subject is a familiar feature of federal constitutions that aspire to apportion power among governments. Long-serving federal constitutions seem to say a lot more about how power to govern their communities should be distributed among their governments than about how those governments should treat each other. Yet those texts come no closer to supplying actual answers to disputes about power distribution than they do to disputes about institutional independence. Power enumeration is indeterminate not merely because subjects of power are abstract, but because federal constitutions are silent about aboutness. Federal drafting conventions that resorted to the judiciary to enforce power enumeration seemed to assume that the range of rationally conceivable ways to decide whether laws are inside or outside specified subjects of power (the range of rationally conceivable tests of aboutness) would generally yield the same answers. The assumption is false; laws do not have single subjects. Laws are almost always susceptible of more than one characterization, almost always about more than one thing. Power enumeration defaults to constitutional dispute resolvers an open discretion to decide what to make of it, and an adjudicative necessity to develop a law of aboutness. In deciding disputes about power distribution, as surely as in deciding disputes about intergovernmental independence, constitutional courts have unavoidably responded to constitutional silence with court-created core constitutional law. That law of characterization has sometimes deferred to rational legislative judgment, and sometimes not. 

Power enumeration was pioneered at the United States Constitution’s Philadelphia drafting convention against the wishes of key nationalist proponents of the Virginia Plan. Power enumeration was an initiative of localist delegates, who relied on a precedent that proved a poor fit for the compromise system that in fact emerged. Their precedent was the specification of subjects in treaties, and in particular the subject specification in the then-operative Articles of Confederation. Power distribution under the Articles was policed by the member states themselves, through their direct control of Congress. Under the localists’ New Jersey Plan, that would have stayed true, and required no judicial enforcement. The Connecticut Compromise maintained this localist vision by constituting the Senate as a true states’ house that resembled the existing Confederation Congress. Even after losing the final vote on the compromise, nationalist delegates bitterly opposed this outcome, until they realized that through a subtle and carefully-timed amendment they could make equal state representation in the Senate about the vocational interests of small-state political leaders rather than about preserving a federal balance. That amendment, which has received little analysis in the leading historical scholarship, turned the Senate back into the independent, elite institution that nationalists had wanted all along and stopped the Senate from becoming a reliable political safeguard of federalism. Immediately thereafter, the convention referred the task of enumerating Congress’s powers to a committee of detail. Edmund Randolph’s preliminary draft of the committee’s enumeration explicitly linked power enumeration to an arbitral role for the Supreme Court. Having adopted the New Jersey Plan’s vision of enumerated national powers but discarded that plan’s vision of a reliable political mechanism to keep Congress within those powers, the convention backed into depending on the courts to make power enumeration meaningful. Late in the convention’s life, delegates coalesced around explicitly committing to the Supreme Court jurisdiction to decide all cases arising under the Constitution. 

Power enumeration affords constitutional courts adjudicative discretion that may be exercised to promote not only a federal balance, but individual rights too. Courts could read down constitutional delegations to legislatures so as not to reach valued liberties and not to permit invidious distinctions, much as some common law courts read down statutory delegations to executives. In this way, courts could vindicate the Founding-era Federalist claim that, for example, a law about interstate commerce cannot also be about freedom of speech. A constitutional court could construct a whole implied bill of rights to limit a government of enumerated powers.

I read a prior draft; this is an outstanding article, with (among other things) an engaging discussion of the Philadelphia convention that finds new insights in a familiar topic.


Glenn Reynolds: We Should Elect Supreme Court Justices
Michael Ramsey

In USA Today, Glenn Reynolds (Instapundit/Tennessee):  We should elect Supreme Court justices: The Supremes are functioning more like a legislature than a court, and no legislature is above politics.  From the introduction:

As the Supreme Court, once a body that mostly ruled on purely legal questions, has gotten more and more involved with every aspect of American life, the Supreme Court appointment process has become more political. Senate confirmation used to be almost pro forma, without even a hearing. Then we got hearings, which have now turned into political circuses of their own. (Remember Clarence Thomas?)

Even the election of a President — the most important selection that we make as a nation — has become about the Supreme Court. Partisans of both Donald Trump and Hillary Clinton have argued that, whatever the flaws of their own candidate, the importance of not letting the other side make potentially transformative Supreme Court appointments is reason enough to stand behind him or her.

Making a presidential election turn on Supreme Court appointments has the effect of minimizing lots of other important aspects of the election. The argument in favor of it is that it applies some degree of democratic accountability to the Court. But if you want democratic accountability, why not eliminate the middleman? Why not elect the Supreme Court?

I agree with the basic descriptive conclusion.  But another way to deal with the problem is to return the Supreme Court to being a primarily legal rather than political body.  That is a core goal of originalism.  (Whether it is a feasible one is a different question).


National Constitution Center Podcast on Article II Powers
Michael Ramsey

The National Constitution Center has posted this podcast: Article II and the Powers of the President (a discussion with me and Professor Christopher Schroeder (Duke), along with moderator Jeffrey Rosen).  It's not a debate and we don't end up disagreeing on much (even thought there is plenty we disagree on as an academic matter) -- it's mostly about whether the presidential candidates have an unduly expansive view of presidential power.

I had not thought specifically about that question previously, but as the discussion progressed I came to this conclusion: neither of the candidates has very many specific proposals that one can say are clearly contrary to Article II (mostly because most of their proposals are not very specific or rest on unclear sources of authority).  But what seems especially troubling about the views of both candidates (and to some extent about the views of the current President) is more their rhetoric than specific proposals.  They seem to view the President as the person who is charged with getting things done, and if Congress (or other actors) won't or can't act, the President will do it.  That is not how our system is supposed to work (especially in domestic matters; foreign affairs is a bit different).  The President carries out the law; nothing  more.  As Justice Black put it in the Steel Seizure case:

In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ."


Jack Balkin and Ilya Somin on Justice Scalia's Legacy
Michael Ramsey

 At Balkinization, Jack Balkin: Justice Scalia's Legacy,  From the introduction: 

Last week at the American Political Science Association, I gave a talk on a panel on Justice Scalia's legacy. This is a summary of my remarks.

In 2002, I wrote an article about John Marshall for the (then) upcoming 2003 bicentennial of Marbury v. Madison, in which I developed a way of thinking about the legacy of various Justices.  In predicting whether a Justice will be remembered as great, some of the basic questions to consider are:

(1) How useful is the Justice to later generations?

(2) Is the Justice central to or symbolic of the constitutional/political regime in which he or she lived? Did the Justice take prominent positions on the key decisions that arose during that regime that are still canonical today?

(3) Perhaps even more important, did the Justice stand for (or take) the "right" positions on the right issues as judged by later generations?  Was the Justice on the "right side of history" as determined by later generations?  

(4) Did the Justice have acolytes and supporters who will defend and promote the Justice's reputation, and launder it for later generations?  

Discussing Justice Scalia's legacy generally:

Viewed from this standpoint, Scalia has a definite shot at greatness. He is clearly symbolic of the Reagan regime that is nearing its end (or has just ended). Indeed, he sat on the Supreme Court during almost the entire regime. Scalia also took important positions on most of the key constitutional issues in the Reagan regime. Perhaps most important, Scalia has plenty of acolytes and cheerleaders who are eager to burnish his reputation and keep his memory alive.

 Potential issues for Justice Scalia's reputation:

Probably the most difficult hurdle Scalia's reputation will face  is whether he took too many positions that will turn out to be "wrong" from the perspective of later generations.  That might be especially so if the new political regime that replaces the Reagan regime is dominated by the Democratic Party's "coalition of the ascendant."  As Scalia himself once remarked, if the politics go against him, he might be remembered as "the Justice Sutherland of the late-twentieth and early-21st century."

But I emphasize that one shouldn't be too sure about this. We can't really predict what later generations will think is most important. 

Finally, Justice Scalia's relationship with originalism:

Scalia, of course, was one of the Court's two originalists, along with Justice Clarence Thomas. As I've pointed out before, originalism is not going away anytime soon.  As long as people advocate originalism (and textualism), they will find Scalia symbolically useful. But I don't think that Scalia will be remembered as great primarily because of his methodological commitments to originalism or textualism, although I do agree that these are currently very important to his reputation. In the long run, I expect, his substantive positions, judged from the perspective of the future, will probably prove most important.

At Volokh Conspiracy, Ilya Somin has extensive comments: Predicting Justice Scalia’s future reputation.  One of the central arguments: 

Scalia’s historical reputation might turn out to be similar to Black’s or Holmes': remembered mainly for his achievements, while his shortcomings are minimized. But I think it is likely that Scalia’s reputation will be more analogous to that of Earl Warren or William Brennan’s. These justices are beloved by many liberals. But most conservatives view them negatively. Brennan is a particularly close analogue to Scalia, in some ways. Both were associate justices who were, for many years, seen as the leaders of their particular wing of the Court. Both wrote numerous important opinions that were praised by one side of the political spectrum and abhorred by the other.

Decades after Brennan left the court, there is still no consensus about his legacy. The same may well be true of Scalia. In the future, as today, he may well be remembered as a hero by conservatives (and some libertarians). But most left-liberals will continue to view him negatively. In addition to his gay rights opinions, this division will be reinforced by his forceful opinions in affirmative action and abortion cases. Unlike gay rights, affirmative action and abortion are likely to continue to divide left and right for a long time to come.

Scalia was a far more substantial intellectual figure than Warren or Brennan. That has won him praise even from some liberal legal scholars who think he was wrong about most substantive issues, including Cass Sunstein and Jamal Greene. But, at the end of the day, Balkin is right to argue that substance plays a much larger role than technical skill in determining justices’ historical reputations. So it is likely to be with Scalia.

And, as in the case of Brennan (who otherwise had little in common with Scalia), his substantive legacy is likely to remain controversial for a long time to come. If there is a difference, it is that some of Scalia’s critics on the left may be more likely to view him as an intellectually serious opponent than is the case with most of Brennan’s critics on the right. Scalia may enjoy greater respect from his adversaries, for that reason. On the other hand, Scalia’s sometimes-harsh rhetoric often attracts more hostility than Brennan’s more soft-spoken opinions.


A Reply to Saul Cornell on Natural Born Citizens (part 2)
Michael Ramsey

This is the second part of my comments on Professor Saul Cornell's essay  The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism  (2016 Wis. L. Rev. Forward 92).  For part 1, see here.

As discussed in the prior post, Professor Cornell's essay appears to make two main points.  First, originalist methodology is defective, especially as compared to historians' methodology, in determining original meaning.  Second, this deficiency is illustrated by errors originalists have made in interpreting the 1790 Naturalization Act (which in turn have led to misunderstanding the natural born citizen clause).  In this post, I will address the second claim.

The essay's principal target is an earlier essay by Neal Katyal and Paul Clement defending Ted Cruz's eligibility to be President.  (Cornell also criticizes my draft article The Original Meaning of Natural Born, but I do not rest my argument principally on the meaning of the 1790 Act).  He says:

Focusing on the 1790 Naturalization Act, [Katyal and Clement] conjure up a reading that is almost impossible to imagine being accepted by most lawyers and judges in the founding era.  "The Naturalization Act of 1790[,]" they assert, "expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the Untied States at some point."  Their textualist approach is patently ahistorical.  The two lawyers have unconsciously imported modern norms of gender equality into their analysis and produce an interpretation that is utterly implausible.

The 1790 Act provides that the "children of citizens of the United States" shall be considered as natural born citizens.  Katyal and Clement say this includes people who had citizen mothers and alien fathers.  Cornell says this is "utterly implausible" and that the Act only applies to people with citizen fathers -- and also that Katyal and Clement's error illustrates the deficiencies of originalist methodology.

However, Cornell himself appears to rely principally  on just four founding-era sources in opposition to Katyal and Clement: a brief passage from Blackstone's Commentaries, together with some general statements about British practice; an 1805 decision of the Massachusetts Supreme Court, Martin v. Commonwealth; a portion of a comment by Representative Livermore in the congressional debates on the Act; and a comment in St. George Tucker's 1803 treatise on the Constitution.  Leaving aside for the moment whether these sources prove his point, it's noteworthy that these are exactly the kind of sources originalists use to determine original meaning.  There is simply no daylight between his approach and the standard originalist approach.  True, Katyal and Clement do not consider these sources, and they may be criticized on this ground if the sources are informative on the particular subject at hand -- but that is not a critique of originalist methodology; it's a critique of Katyal and Clement for failing to follow originalist methology.

Further, Cornell's sources do not appear necessarily to prove what he thinks they prove.  His central claim is that under the law of coverture as it stood in the late eighteenth century, a married woman took on the nationality of her husband and "could have no separate political identity outside her husband's national allegiance."  Thus the 1790 Act shouldn't be read to include children of U.S. mothers and alien fathers because (I guess -- Cornell does not spell it out) the U.S. mothers would not be considered U.S. citizens under the law of coverture.

I'm not an expert on the eighteenth century law of married women's rights and status, and it seems that the law in this regard was a bit confused and possibly contradictory.  But  am not persuaded by Cornell's sources, none of which addresses the question directly.  His Blackstone quote describes the status of married women in general terms, without specifically addressing nationality.  The Martin case addresses a somewhat different question: whether a Massachusetts statute penalizing failure to support the state during the revolution should be applied to a married woman whose husband did not support the state.  The court concluded that she was not within the meaning of the statute because at most she had only acted at the direction of her husband.  Although there is some language in some of the opinions supporting the idea Cornell advances, it is not central to the case.  St. George Tucker's comment is interesting and worth considering separately, but it does not go to the question of married women's rights.  Livermore's quote is the most helpful to Cornell, though he also was not addressing the question directly and quote is more ambiguous when given in full.  Livermore said: 

That question [that is, the residency requirement] is introduced to prevent any abuse.  If these citizens had children they might become citizens, but not to transmit their rights of citizenship.  The child of a citizen if abroad may be useful.  But that right might be transmitted from father to son and so on to perpetuity.

Cornell relies on the last sentence to say that Livermore thought the statue only applied to children of citizen fathers.  Perhaps -- though earlier Livermore spoke generally of "citizens."  He may simply have been giving an example that he thought would be most common.  And it is not clear if Livermore's observation -- even if it means what Cornell thinks it means -- was representative.

Moreover, there is substantial evidence that women who married aliens did not lose their prior allegiance.  First, English statutes prior to 1731 had given "natural born subject status" to persons whose fathers or mothers were English subjects.  (A 1731 statute changed it to fathers only, where it remained through the founding era).  Thus English law must not have supposed that the woman lost her subject status upon marriage to an alien.  Second, the U.S. Supreme Court considered this exact question in Shanks v. Dupont in 1830.  Writing for the Court, Justice Story stated (28 U.S. at 246):

Neither did the marriage with Shanks [a British subject] produce that effect [of a loss of U.S. citizenship], because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is that no persons can by any act of their own, without the consent of the government, put off their allegiance and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband, which are clearly contrary to law.

While Dupont was decided well after the 1790 Act was passed, Story seemed to regard the law as longstanding, and he cited a New York case from 1800, Kelly v. Harrison, to the same effect (see 28 U.S. 246, n.1).  Kelly involved an Irishman who emigrated to the United States and became a U.S. citizen, leaving a wife behind in Ireland; the question was whether she was alien who could not make a claim on his estate.  As Story indicated, the court held that the wife did not become a U.S. citizen merely because her husband did.

Finally, a passage from the congressional debates immediately prior to the one Cornell cites suggests an intent to extend citizenship to children of U.S. mothers.  (Documentary History of the First Federal Congress, v. 12, p. 529).   Representative Burke wanted to make a slight change to the bill's language to clarify that both parents need not be citizens to make the child a citizen: "it is unnecessary that the father and mother would both be citizens."  He then referred to a "Statute [that] was made in W[illiam] the 3rd."  Probably he was referring to the statute of 1698, 9 Will. III, ch.20 (the only statute passed under William relating to subjectship), which gave natural born subject status to persons with English fathers or mothers.  Representative Livermore replied that Burke's change was unnecessary because the bill already had the effect Burke wanted: 'This [that is, natural born citizenship] is extended to all people and the expression sets forth the children of every citizen."

This exchange, while not crystal clear, appears to support Katyal and Clement's view of the statute, and in any event is inconsistent with Cornell's suggestion that under coverture the husband and wife could not have different allegiances.

Ironically, the strongest evidence Cornell offers against the Katyal/Clement reading is textual: if the 1790 Act gave natural born citizenship to children with U.S. mothers and alien fathers, why did it then require the father -- but not the mother -- to reside in the United States?  The Act's language again is:

And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

This language may seem to suggest that the drafters were thinking only of citizen fathers.  Otherwise it does create an asymmetry: a male U.S. citizen could go abroad, marry an alien and have children who were U.S. citizens, but a female U.S. citizen could not do so unless the alien she married happened to have lived in the United States.  But perhaps the drafters intended this asymmetry, which reduces the ability of women to transmit citizenship.  Perhaps they thought that female U.S. citizens were not likely to marry aliens other than ones who had lived in the United States, so the difference was immaterial.  Perhaps they thought that, due to the dominant role of the father in the household in that time, the father should have some connection to the United States even if citizenship came through the mother.  In any event, the text, given its natural meaning, does not appear to lead to an absurd result, despite the asymmetry it creates.

In sum, despite claims to be engaged in a different methodological enterprise, Professor Cornell's critique of Katyal and Clement follows conventional originalist/textualist methodology and invokes standard originalist sources.  In the end, though, his sources do not greatly undermine the Katyal/Clement reading -- at minimum, they surely do not render it "utterly implausible."

(With apologies to overburdened readers, I plan one additional post discussing how Professor Cornell's essay relates to my theory of the eligibility clause).


William Baude & Ryan Doerfler: The (Not So) Plain Meaning Rule
Michael Ramsey

William Baude (University of Chicago - Law School) and Ryan David Doerfler (University of Pennsylvania Law School) have posted The (Not So) Plain Meaning Rule (University of Chicago Law Review, Vol. 84, 2017, forthcoming) on SSRN.  Here is the abstract:  

Under the "plain meaning rule," courts interpreting a statute look beyond that statute's text -- but only if the text's meaning is not "plain." Though this rule has some intuitive appeal, it is quite puzzling upon further examination. We explain the puzzle, and then attempt to solve it.


Is the Syria Deal Unconstitutional?
Michael Ramsey

News outlets have reported that U.S. and Russian negotiators reached an agreement about future military operations in Syria, including a (very optimistic) "cease fire" between the Syrian government and the rebels.  Obviously, this deal is not going to be submitted to the U.S. Senate for its advice and consent.  Does that make it potentially unconstitutional, like the nuclear deal with Iran and the Paris climate agreement?

No one seems to be arguing that it is unconstitutional.  I think that's right, but it's important to ask why.

(a) It might be a nonbinding agreement.  I haven't seen the relevant documents, if there are any.  But quite possibly, the "deal" is all just statements of intent, not incorporated into any formal agreement.  If this is the case, as I suspect it is, then the "agreement" fits comfortably with the President's executive power to make nonbinding agreements.  It would not seem to raise any of the concerns I pointed out regarding the Iran nuclear deal, including (1) it is not likely to be misunderstood as a binding agreement by some of the parties; and (2) it probably does not promise specific actions at specific times in the relatively distant future.  Thus it probably does not intend to bind, and would not be understood by other parties as binding, future U.S. Presidents.

(b) Even if it is binding, the agreement might be a constitutional executive agreement.  This is not simply because it it a military agreement.  Long-term military agreements need to be approved by the Senate, like other long-term agreements.  For example, the 1817 agreement with Britain limiting armaments on the Great Lakes (the Rush-Bagot agreement) was submitted to and approved by the Senate (although President Monroe at first thought perhaps Senate approval wasn't necessary).  However, temporary military agreements such as cease fires were undertaken as executive agreements in the nineteenth century, notably in the War of 1812 and the Mexican War.  That is consistent with the idea that minor short term agreements can be done on the President's sole constitutional authority because they do not amount to treaties.  Indeed, one of the prominent international law treatises of the eighteenth century, by Christian Wolff, uses cease fires as an example of international agreements that are not treaties.

Of course, it is hard to assess the Syria deal without knowing its terms.  It's possible that it contains specific long-term obligations that are intended to be binding --  in which case it should be submitted to the Senate.  But it is easy to imagine circumstances in which it need not be.  That suggests caution in making broad statements about the need to submit "all" international agreements to the Senate.  Despite the clear command of the treatymaking clause, the Constitution's design is not that simple.


A Reply to Saul Cornell on Natural Born Citizens
Michael Ramsey

As noted earlier, Saul Cornell (Fordham - History) has an interesting and challenging essay in the Wisconsin Law Review Forward, The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism  (2016 Wis. L. Rev. Forward 92).  It sharply criticizes originalist scholarship regarding the Constitution's "natural born citizen" clause, and particularly that scholarship's reading of the 1790 Naturalization Act.  As I am one of the scholars criticized (albeit somewhat indirectly), I will undertake a response in this post and perhaps a few subsequent ones.

Professor Cornell's essay appears to make two main points.  First, originalism methodology is defective, especially as compared to historians' methodology, in determining original meaning.  Second, this deficiency is illustrated by errors originalists have made in interpreting the 1790 Naturalization Act (which in turn have lead to misunderstanding the natural born citizen clause).  In this post, I will address the first claim.

Although there may be some differences between the way legal scholars and historians approach the meaning of historical texts, I think Professor Cornell has largely failed to identify them, and indeed his account does not show any departure from what I would regard as a standard originalist approach.  He begins by saying that "[h]istorians and originalists interested in discerning [the 1790 Act's] legal meaning in 1790 approach the problem from radically different methodologies."  He then appears to identify three core components of the historian's approach.

First, "[f]or most historians, the first step in any such inquiry is to establish the range of possible beliefs this provision might have had in the founding era."  Assuming he means "range of possible meanings" rather than "range of possible beliefs" (the sentence makes little sense otherwise), I agree this the right approach and I doubt any originalists would disagree.  Of course it's key to establish a range of possible meanings.  I'm not even sure what the alternative is.

Second, he says, there must be a "holistic approach to meaning"; quoting historian Jonathan Gienapp, he says: "The meaning of individual linguistic components ... can only be understood in terms of their relations with the conceptual vocabulary of which they are part."  Again, of course that's true.  A text draws meaning from its context, including its linguistic context.  Only a caricature of originalism says otherwise.

Third, he says, there must be "a form of thick contextualism ... Historical actors, and the historians who interpret their words, must actively construct the relevant linguistic and ideological context for interpreting texts..."  I'm not entirely sure what some of this means, but it sounds similar to what originalists do in considering the backgrounds, influences and goals of the framers.  Again, context matters for originalists.  It's curious that people persist in thinking it does not.

Cornell may think that originalists do not do these things well (and he might be right about some originalist scholarship), but I think he is simply wrong that originalists do not embrace these approaches.  He says "[b]y contrast, originalists approach meaning in an atomistic fashion, looking at the meaning of words as isolated linguistic facts."  Again I'm not entirely sure what these general words mean when applied to specific disputes, but they strike me as not much more than empty insults, or at most critiques of straw men.  Rather, I think originalist scholars seek to find meaning from the way words were used in their historical context, very much not in isolation.  They may not always do a good job, but Cornell is not describing a difference in methodological theory.

(As an aside, I do think there is at least one methodological difference that sometimes exists between historians and originalist legal scholars, but it's not one Cornell identifies. It is that legal scholars are much more interested in, and tied to, the meaning of the actual text of the legal provision under examination, and are less comfortable drawing abstract conclusions from social and ideological background without a concrete foundation in the text.)

To illustrate, let's examine what he says is wrong with the originalist reading of the 1790 Act.  (To be clear, here he is mostly criticizing a short essay by Neal Katyal and Paul Clement, neither of whom is an originalist scholar).   A key interpretive question is whether the 1790 Act recognized "natural born citizen" status for persons born outside the U.S. whose mothers were U.S. citizens but whose fathers were not.  The Act recognizes as natural born citizens the "children of citizens of the United States, that may be born beyond the Sea, or out of the limits of the United States."  Clement and Katyal say this language includes children of U.S. mothers and alien fathers.  (That's important because they were writing about the eligibility of Ted Cruz, who fits this description).

Cornell says Clement and Katyal are wrong because they ignore the eighteenth century law on the status of married women and the longstanding rule of English law that "natural born" status could only be acquired from one's father.  In particular, Cornell says, under the law of coverture the citizenship of a married woman necessarily followed that of her husband.  Leave aside whether Cornell is right on this point.  Assuming he is, would ordinary originalist scholarship see this is relevant to interpreting the 1790 Act?  In my view, the answer is: obviously yes.  It is part of the background on which the 1790 Act was written.  If Cornell's view of coverture is correct, and if Clement and Katyal did not take it into account, that is a substantial originalist criticism of the Clement/Katyal essay (bearing in mind, though, that it is a short essay by two distinguished lawyers, not an extensive academic article).  I would be surprised if any originalist would say otherwise.

My point here is that Cornell is actually using standard originalist methodology to critique arguably overstated originalist claims.  He is not standing outside originalism but arguing within it.  He only imagines that he is doing something qualitatively different because he has a caricatured view of originalism.

(In a subsequent post, I'll address whether Professor Cornell is right about the eighteenth century background.  I think in some important ways he is not).



Allen Kamp: The English Legacy of the Second Amendment
Michael Ramsey

Allen R. Kamp (John Marshall Law School) has posted The English Legacy of the Second Amendment — History and Myth on SSRN.  Here is the abstract:      

According to the majority opinion of Justice Scalia in District of Columbia v. Heller, pre-Second Amendment adoption English history informs the Amendment’s meaning. The majority opinion discusses the historical background after analyzing the language of the Amendment: “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”

My paper investigates the actual historical practice in England regarding gun rights before the adoption of the Second Amendment. It focuses on four topics involving rights to bear arms in England of that era: the Declaration of Rights, the writings of Blackstone, the Game Laws, and the Militia.​

The paper concludes that although Heller purports to be based on pre-second Amendment historical practice, its description of that practice is more mythical than real.

The question, I would say, is not so much whether the practice was mythical or real, but rather whether it was a myth that the founding generation in America thought was real.


Stephen Sachs: Pennoyer Was Right
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted Pennoyer Was Right: Jurisdiction and General Law (Texas Law Review, forthcoming) on SSRN.  Here is the abstract:      

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law--that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn't be recognized elsewhere, in other states or in federal courts--any more than if they'd tried to redraw their borders.

As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law.

Reviving Pennoyer would make modern doctrine make more sense. Courts applying the Due Process Clause should avoid pitched battles between "sovereignty" and "liberty," looking instead to current conventions of general and international law. International law may not be much, but it's something: the conventional settlement of the problems of political authority that personal jurisdiction so obviously raises.

Pennoyer's reasoning can be right without International Shoe's outcome being wrong. International law and American practice might be different now than in 1878, or even in 1945. But if not, or if the rules need improvement anyway, Congress has power to improve them--providing federal rules to govern a federal system.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while its hot!")

This assessment of Pennoyer as an original matter appears to be consistent with the brief assessment of Pennoyer and its connection to international law in International Law in the U.S. Supreme Court, the book I co-edited with David Sloss and William Dodage a few years back.


Saul Cornell: The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause
Michael Ramsey

In the Wisconsin Law Review Forward, Saul Cornell (Fordham University, History): The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism  (2016 Wis. L. Rev. Forward 92). Here is the introduction (footnotes omitted): 

During the 2016 Presidential election a number of constitutional scholars debated Ted Cruz’s eligibility to be President. This was not the first time in recent American history that the meaning of the Constitution’s “natural born citizen” clause was a live issue in American law. The answer to this legal question depends on the particular theory of constitutional interpretation one favors. There has been a good deal of speculation on this issue by scholars of different methodological commitments. Much of the debate focuses on the meaning of the 1790 Naturalization Act, which raises deeper questions about the evolving debate over the legitimacy of originalism as a constitutional theory. Rather than approach the meaning of eighteenth-century constitutional and legal texts in a genuinely historical fashion, originalists have adopted a method plagued by anachronism, which invariably leads to distortion.

The problems with originalism are evident if one takes a close look at the way one of the key texts in the “natural born citizen debate,” the Naturalization Act of 1790, has been interpreted by originalists. In this Act, the First Congress declared “the children of citizens of the United States, that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” Historians and originalists interested in discerning this text’s legal meaning in 1790 approach the problem from radically different methodologies.

For most historians, the first step in any such inquiry is to establish the range of possible beliefs this provision might have had in the founding era. The entire process of historical interpretation is guided by a holistic approach to meaning. As historian Jonathan Gienapp has recently argued, “The meaning of individual linguistic components—words, phrases, or utterances—can only be understood in terms of their relations within the conceptual vocabulary of which they are a part.” Finally, genuine historical inquiry embraces a form of thick contextualism. Context is never a simple given. Historical actors, and the historians who interpret their words, must actively construct the relevant linguistic and ideological contexts for interpreting texts from among the multiplicity of potential contexts available at any historical moment.

By contrast, originalists approach meaning in an atomistic fashion, looking at the meaning of words as isolated linguistic facts. The originalist conception of context is also exceedingly thin. Originalist Lawrence Solum compares constitutional texts to messages in a bottle. In this metaphor context functions like a bucket filled with additional facts—pour the contents of the bottle into the bucket and out comes meaning. ...

(Thanks to Seth Barrett Tillman for the pointer).

Professor Cornell has some sort of harsh words for me, along with Larry Soum, Neal Katyal and Paul Clement (that's not bad company, come to think of it).  I expect I will have some further thoughts on his essay (which he did not share with me in draft form) presently.  I would note at the outset that my view of the original meaning of natural born does not depend heavily on the 1790 Act.  

I also generally agree with the methodological views Professor Cornell express in the third paragraph above, although that does not mean I agree with the way he applies these views in looking at any particular interpretive issue.  However, the fact (if it is a fact) that some originalists (possibly including me) are doing a bad job of finding original meaning does not "raise[ ] deeper questions about the evolving debate over the legitimacy of originalism as a constitutional theory."  It would just mean that originalists need to do a better job of it.

The GOP Platform and NAFTA
Andrew Hyman

Mike Ramsey wrote an interesting post recently titled Is the Republican Party Calling for Withdrawal from NAFTA?  This question arose because of the following language in the 2016 GOP Platform:

We reject the agendas of both the Kyoto Protocol and the Paris Agreement, which represent only the personal commitments of their signatories; no such agreement can be binding upon the United States ....We will not recognize as binding upon the United States any international agreement forged without the constitutionally required assent of two-thirds of the United States Senate.

Two important things to bear in mind about NAFTA are that it was approved by Congress (narrowly), and it does not purport to bind any subsequent Congress.  That's right, it has a six-month opt-out provision, and so Hillary Clinton took this position in 2008:  "I'm confident that as president, when I say we will opt out unless we renegotiate, we will be able to renegotiate."

The fact that NAFTA did not really bind the United States beyond the tiny six-month termination period is a strong argument for its constitutionality.  Some international accords containing opt-out provisions are customarily adopted as Article II treaties, but NAFTA did not have to go that route, given that it is a commercial arrangement from which we can extricate ourselves at any time without breaking any commitment.

A delegate at the New York ratification convention in 1788 put it this way:  "Congress cannot make a treaty for longer than it stands."  And true to that principle, Congress did not do so in the case of NAFTA in view of the opt-out provision.  The nation's first Secretary of State, Thomas Jefferson, confirmed the constitutional importance of opt-out provisions:  "It is desirable, in many instances, to exchange mutual advantages by Legislative Acts rather than by treaty: because the former, though understood to be in consideration of each other, and therefore greatly respected, yet when they become too inconvenient, can be dropped at the will of either party: whereas stipulations by treaty are forever irrevocable but by joint consent...."  Of course, the parties can jointly consent to include an opt-out provision in an Article II treaty, but they do not have to.

So, in answer to Mike's question, I don't think the GOP platform was calling for withdrawal from NAFTA as a constitutional matter.  At least it shouldn't have done so.  But pulling out of NAFTA as a policy matter is entirely lawful under both domestic and international law, and it is something that both of the major-party candidates have legitimately called for at one time or another as a means to insist upon renegotiation.

One last point: some scholars say that the congressional power over commerce allows Congress to approve long-term commercial treaties without two-thirds of the Senate.  But not only is this at odds with the plain language of the Treaty Clause; it is also at odds with the public understanding when the Constitution was approved in 1789.  As Roger Sherman publicly wrote in 1788, "It is provided by the constitution that no commercial treaty shall be made by the president without the consent of two-thirds of the senators present....”


Is the Republican Party Calling for Withdrawal from NAFTA?
Michael Ramsey

Co-blogger Andrew Hyman pointed out to me that the Republican Party platform has some matters of interest for treaty power scholars and originalists.  First, there's this: 

We reject the agendas of both the Kyoto Protocol and the Paris Agreement, which represent only the personal commitments of their signatories; no such agreement can be binding upon the United States until it is submitted to and ratified by the Senate. (p. 22)

Apart from that thing about the Senate "ratifying" treaties (see here: the Senate consents to ratification; the President ratifies), I sort of agree.  The Kyoto Protocol is a nonbinding agreement by its terms.  I'm inclined to think the Paris Agreement requires Senate approval under the U.S. Constitution.  It's still probably binding on the U.S. under international law, now that the President has ratified it.  But, we are told, it does not have material binding obligations (all its obligations being either non-material or non-binding).  So I guess the statement is mostly true.

Then there's this:

We will not recognize as binding upon the United States any international agreement forged without the constitutionally required assent of two-thirds of the United States Senate. (p. 10)

Well, I applaud the sentiment as a matter of original meaning, but wait a minute here:  NAFTA was "forged without the constitutionally required assent of two-thirds of the United States Senate"  (as were most recent U.S. trade deals).  Is the platform calling for withdrawal from NAFTA?  As best as I could see on a quick look, NAFTA is not directly mentioned in this regard, but it's hard for me to read the quoted language otherwise.  Perhaps it could be read to apply prospectively only, but the past tense in "forged" seems clearly to apply to deals made in the past.

It gets back to treaties later:

We intend to restore the treaty system specified by the Constitution: The president negotiates agreements, submits them to the Senate, with ratification requiring two-thirds of the senators present and voting. This was good enough for George Washington but is too restrictive for the current chief executive, who presumes to bind this country to bilateral and multilateral agreements of his devising. His media admirers portray his personal commitments — whether on climate change, Iranian weapons, or other matters — as done deals. They are not, and a new Republican executive will work with the Congress to reestablish constitutional order in America’s foreign relations. All international executive agreements and political arrangements entered into by the current Administration must be deemed null and void as mere expressions of the current president’s preferences. Those which are in the national interest but would traditionally have been made by treaty must be abrogated, renegotiated as treaties, and transmitted to the Senate for its advice and consent as required by the Constitution. The United States will withdraw from all agreements and arrangements failing those standards. (pp. 26-27)

This passage makes it sound more that sole executive agreements and nonbinding agreements are the problem.  I agree that the next President could constitutionally withdraw from these if the President wants to, though the platform seems a bit excessive in labeling "[a]ll" agreements "entered into by the current administration" as in effect unconstitutional.  It would be hard to make that case, even under the original meaning.  I wonder if the platform committee realizes how many low-level agreements are made every year.  Also this language seems -- perhaps deliberately -- to avoid dealing with congressional-executive agreements.

And the platform is tough in some other regards too -- such as this part:  

The rule of law is the foundation of our Republic. A critical threat to our country’s constitutional order is an activist judiciary that usurps powers properly reserved to the people through other branches of government. Only a Republican president will appoint judges who respect the rule of law expressed within the Constitution and Declaration of Independence, including the inalienable right to life and the laws of nature and nature’s God, as did the late Justice Antonin Scalia. We are facing a national crisis in our judiciary. We understand that only by electing a Republican president in 2016 will America have the opportunity for up to five new constitutionally-minded Supreme Court justices appointed to fill vacancies on the Court. Only such appointments will enable courts to begin to reverse the long line of activist decisions — including Roe, Obergefell, and the Obamacare cases — that have usurped Congress’s and states’ lawmaking authority, undermined constitutional protections, expanded the power of the judiciary at the expense of the people and their elected representatives, and stripped the people of their power to govern themselves. We believe in the constitutional checks and balances and that the Founders intended the judiciary to be the weakest branch. We encourage Congress to use the check of impeachment for judges who unconstitutionally usurp Article I powers. [Editor's note: "!" Also "?" because I'm not sure what Article I powers -- as opposed to state powers -- the Court has supposedly usurped.]  In tandem with a Republican Senate, a new Republican president will restore to the Court a strong conservative majority that will follow the text and original meaning of the Constitution and our laws.  (p. 10)

Mostly I like that they said "original meaning" instead of "original intent."


Stephanos Bibas: Justice Scalia's Originalism and Formalism
Michael Ramsey

Stephanos Bibas (University of Pennsylvania Law School) has posted Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules on SSRN. Here is the abstract:     

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative history or policy.

Justice Scalia’s approach was perhaps most striking and counterintuitive in criminal law and procedure. He was known to confess that as a policy matter, he favored vigorous law enforcement and punishment, but as a jurist, he championed a principled understanding of the rule of law. His approach helped to preserve individual liberty, make the law clearer and more consistent and transparent, give citizens better notice, promote democratic accountability, and check prosecutors’ and judges’ power.

Justice Scalia’s animating concerns will remain enduring touchstones of our law: the importance of protecting the roles of legislatures, juries, and the people; ensuring fair notice; and preserving liberty by limiting judicial discretion and prosecutorial power. His criminal jurisprudence is thus a microcosm of a principled judicial approach to law more generally, and he will be greatly missed.


Gary Lawson & Guy Seidman: Rational Basis Inquiry and the Federal Government's Fiduciary Duty of Care
Michael Ramsey

Gary Lawson (Boston University School of Law) and Guy I. Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law) have posted By Any Other Name: Rational Basis Inquiry and the Federal Government's Fiduciary Duty of Care on SSRN.  Here is the abstract:    

Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. All federal actors under the Constitution exercise delegated authority (from “We the People”) as agents, and thus all federal actors under the Constitution are bound by a duty of care. This duty has much affinity with the business judgment rule of corporate law, in that the scope of the duty of federal actors, as gleaned from eighteenth-century agency and corporate law, probably does not exceed avoidance of gross negligence. Building on a forthcoming book entitled “‘A Great Power of Attorney’: Understanding the Fiduciary Constitution,” which demonstrates in depth the fiduciary character of the Constitution, this article examines the contours of the duty of care that forms part of the background of every constitutional grant of power.

The forthcoming book on which this essay is based is Gary Lawson & Guy Seidman, A Great Power of Attorney: Understanding the Fiduciary Constitution (Univ. of Kansas Press, forthcoming 2017).


Charles Barzun: The Positive U-Turn
Michael Ramsey

Charles L. Barzun (University of Virginia School of Law) has posted The Positive U-Turn (Stanford Law Review, forthcoming) on SSRN. Here is the abstract:      

Theories of legal interpretation have taken a “positive turn” in recent years. Some scholars have argued that disputes over how to interpret statutes and the Constitution should be resolved by looking to the social facts that determine what our positive law requires. Most of the commentary on the positive turn has focused on the substantive claim that what the law requires as a matter of constitutional interpretation is a version of originalism. Less attention has been paid to the more interesting and provocative methodological thesis that we ought to resolve our debates about legal interpretation by looking to “our law” and that doing so requires making claims about the nature of law – specifically, claims about the social facts that determine its content. 

Because positivist theories vary with respect to which social facts matter for the purpose of determining the existence and content of law, an obvious (and obviously important) question for the positive turn is whether generating its alleged methodological benefits requires choosing from among rival positivist theories. Yet the chief proponents of the positive turn say very little on this question, and what they do say is ambiguous. 

This article thus sets out to answer that question by testing how the positive turn would work under four different positivist accounts of law. The result of the analysis is that the positive turn fails under every approach considered. Although certain aspects of the positive turn fit well with each account of law, not one of them is capable of supporting it. Instead, each approach either leads to obviously false conclusions or fails to produce the normative and methodological payoff the positive turn promises. Even in its failure, however, the positive turn is instructive because it illustrates the difficulty of endeavoring to reconcile legal theory and practice.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week."  Professor Solum adds:

Just one point: I don't think that Baude and Sachs have claimed that showing that a method of interpretation is "our law" settles the question whether it should be our law.  Some of Barzun's description of the positive turn seems to imply that it involves this very implausible claim.


Richard Reinsch on Madison and Trump
Michael Ramsey

At Liberty Law Blog. Richard Reinsch: A Tale of Two Majorities.  From the introduction:

A good explanation of the Clinton-Trump clash we are living through, and of Trump’s having taken the Republican Party by storm, is in Eric Posner and Adrian Vermeule’s 2010 brief for executive supremacy as the way we do constitutionalism. The Posner-Vermeule thesis in The Executive Unbound is that the Madisonian philosophy of separation of powers as a constraint on the presidency no longer exists, and good riddance. The more authoritative check on executive power, they say, is majority opinion and the fact that the President must face the voters every four years. This, and not Greg Weiner’s paean to Jemmy Madison, is the only source we have now for safe, effective, and informally limited government. Those wanting Madison on demand, Posner and Vermeule inform us, are whistling past the graveyard of a constitutionalism that no longer fits this American nation. 

And in conclusion:

The surest way for us to arrive at a better way for the majority to govern is to recover congressional elections that are about something—shaped by communities of people who can argue with one another, and make a choice among themselves on what they are concretely prepared to favor, tolerate, or oppose. This decision takes the form of choosing a person who will represent the community and is accordingly authorized to deliberate on its behalf. These elections, [Willmoore] Kendall notes [in his essay The Two Majorities], are the surest bridge we still have to the Founders’ Constitution. Thus congressional elections turn not only on policies but on fitness of character—that is, the virtue of the person who is to represent a community and deliberate on its behalf is of greater significance. The judgment of character made by those represented as to who should represent them, then, is the unstated premise of our institutions’ capacity to perform their constitutional functions. It is the virtue that our system requires to fulfill its constitutional end.

I hasten to add that Kendall did not lack for a sense of realism. He didn’t invent the term “flyover country” but Kendall might as well have. He makes the appropriate comparison and realistic judgment that as between presidential and congressional majorities, elite opinion and all its trappings rides with the presidency. In its stead, we get a media-driven politics with soundbite platitudes. Deliberation is something that happens inside federal agencies, participated in by government and corporate elites, and obnoxious activists. Put differently, these are the people who couldn’t live one day in a real town with a real job; they are the last bunch you would want to see at your neighborhood bbq. Their calling, as they see it, is to edify the dark recesses of opinion within insular American communities.

This put-upon group of Americans, for the most part—and this is why the two national parties have fallen into such disrepute—finds only virtual representation in Congress and is commanded by a federal rule-making apparatus composed of judicial and executive officials whose promulgations elude curtailment by Congress. What is needed is the authority to change the terms of the debate, terms that have in some respects not changed appreciably in the 50 years since Kendall’s paper was published. What type of country will we become and whose principles will dominate it through majority rule? Rather than teacher President and pupil Congress, we need a debate over what Kendall called the “destiny and perfection of America and of mankind,” and this, he added, ultimately amounts to a contest “between American conservatism and American liberalism” at its deepest level. One thing that must change is for conservatism to make real the principle of self government. Kendall’s scholarship on the deliberative nature of our institutions must be the cornerstone of that refurbished foundation.


Podcast: Jeffrey Rosen on Constitutional Interpretation
Michael Ramsey

From Constitution Daily

This week, We the People presents a special episode of “Ask Jeff”!

Podcast listeners—and viewers on Facebook Live—sent questions to Jeffrey Rosen, president and CEO of the National Constitution Center and host of We the People, on social media and right here on the Center’s blog, Constitution Daily. Jeff received and answered many great inquiries, including:

  • What are the basic approaches to constitutional interpretation?
  • Who are the most prominent proponents of a progressive, originalist approach to interpretation?
  • What constitutional issues from the Civil War and Reconstruction need more research?
  • What will Supreme Court Justice Clarence Thomas’s constitutional legacy be?
  • Would Supreme Court Justice Louis Brandeis have dissented in Citizens United?

The guest inquisitor was Tom Donnelly, senior fellow in constitutional studies at the Center.

The podcast can be found here


Marcin Matczak: Why Judicial Formalism is Incompatible with the Rule of Law (with Larry Solum's Comments)
Michael Ramsey

Marcin Matczak (Warsaw University - Faculty of Law and Public Administration; Warsaw University - Legal Philosophy) has posted Why Judicial Formalism is Incompatible with the Rule of Law on SSRN.  Here is the abstract:      

When a judge follows the letter of the law, her judgment may be considered blinkered by the man in the street. Legal professionals, however, would classify the judgment as formalistic. From a theoretical perspective, formalistic decision-making limits the number of premises on which a judge may base a verdict. It asks the judge to focus on the literal meaning of the legal text and to disregard other interpretative premises, like the purpose or function of the law, legislative history or – in civil law jurisdictions – previous court decisions.

Formalism as an art of limiting judicial choices is perceived by many as fully consistent with the rule of law. It seems to both allow the curtailment of interpretive discretion and to ensure fidelity to the will of the lawmaker. This contrasts with an all-things-considered approach, where the premises for judicial decision-making seem unlimited, discretion encouraged, and the will of the lawmaker ignored.

In this paper I show that the apparent compatibility between formalism and the rule of law is based on a particular assumption as to the nature of legal language: that this language is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria. This assumption is misguided, and its flaws are revealed by theoretical advances in the contemporary philosophy of language. Specifically, semantic externalism demonstrates that the meaning of language cannot be discovered merely by reading dictionaries; rather, it requires the investigation of the linguistic practices of a particular communicative community, and an insight into the history and function of individual legal terms.

Because the nature of legal language is different from that assumed by the formalists, the compatibility between formalism and the rule of law collapses. With such a distorted perspective of the characteristics of legal language, formalism cannot ensure fidelity to it. This paper shows that judicial decisions based on applying definitions are very often surprising to the law’s addressees; this contradicts one of the main tenets of the rule of law, namely, the predictability of court verdicts. As a consequence, the rule of law requires a different, moderately non-formalistic approach to legal interpretation. Within this approach, judges can make decisions based on a broader scope of interpretive premises and by doing so ensure a better level of predictability.

Via Larry Solum at Legal Theory Blog, who has extended critical comments, beginning: 

Matczak offers originalism as an example of formalism, citing a 2008 working paper that I wrote and ignoring subsequent published work, both by me and others.  To the extent that this citation implies that contemporary constitutional originalism is an instance of "formalism" as Matczak characterizes it, the implication is grossly misleading.  First, contemporary originalism in its strongest form explicitly does not require judges "to focus on the literal meaning of the legal text and to disregard other interpretative premises, like the purpose or function of the law, legislative history or – in civil law jurisdictions – previous court decisions."  For example, ... my work is very explicit on the role of "literal meaning" or more precisely "conventional semantic meaning."  Much of the communicative content of legal texts is provided by contextual disambiguation and various forms of contextual enrichments (such as contextual disambiguation, implicature, impliciture, presupposition, and modulation). ...

And further: 

Moreover, contemporary originalism does not assume that the language of the Constitution is "is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria."  In a recent paper, Originalist Methodology, and in other work, I have made this explicit.  Dictionary definitions are not the best evidence of semantic content, actual patterns of usage (accessed by corpus linguistics and other techniques) are far better evidence.  And semantic content is only part of the full communicative content of a text, because of the role of context as described above.

I agree with all this.  Plus there's more at the link.


Ratifying the Paris Climate Change Agreement
Michael Ramsey

Reports indicate that the President may ratify the Paris Agreement on climate change shortly: White House defends Obama evading Senate on Paris climate deal.  Is the ratification unconstitutional, as this headline implies?  I think so (see my earlier thoughts here), but it's a somewhat complicated question.

There's nothing wrong with the President "ratifying" an international agreement.  In international law, ratification is the formal consent of a country to be bound by an agreement, now usually signaled (especially in a multilateral treaty) by depositing an official "instrument of ratification" with some international body.  The President, who exclusively possesses the nation's diplomatic power, necessarily has the exclusive power to take such an action.

We sometimes say that under the Constitution, the Senate "ratifies" treaties.  (Sadly, even the Supreme Court says it).  That's simply wrong.  The word "ratify" does not appear in the treatymaking clause -- which says that the President has power to "make" treaties.  However, the President can only make treaties "by and with the Advice of the Senate ... provided two thirds of the Senators present concur."  Ratification is the final step in "making" a treaty.  So the problem isn't that the President is ratifying the agreement (something Presidents do all the time, exercising their power to "make" treaties); it's that the President is ratifying the agreement (thus "mak[ing]" it) without getting the Senate's consent.

However, that's a problem only if the agreement is a "treaty."  As I and others have written at length, the Constitution's text, international law background and post-ratification practice all strongly indicate that the framers recognized a category of international agreements that were not treaties (a summary version, with further citations, is in this article).  These agreements (now generally called "executive agreements," though I prefer "non-treaty agreements") are common in modern practice and have been endorsed by the Supreme Court.  But obviously they can't encompass every sort of international agreement, or the treatymaking clause would be meaningless (and in any event it is clear from the founding-era materials that most important international agreements were understood to be treaties that would be subject to the treatymaking clause).  So the issue is whether the Paris agreement is, in constitutional terms, a non-treaty agreement.

At Lawfare, David Wirth (Boston College) argues that it is: Is the Paris Agreement on Climate Change a Legitimate Exercise of the Executive Agreement Power?  Although I agree with the way he frames the issue, I find his analysis difficult to assess because he sets out no comprehensive theory of when a President can enter into a non-treaty agreement.  He appears to have three arguments for independent presidential power (he also argues that the agreement, or at least parts of it, may be authorized by statute or a prior treaty; I leave that argument aside for now).  Basically the three arguments are (1) the principal obligations in the agreement are nonbinding; (2) the binding aspects of the agreement are "procedural"; and (3) the obligations of the treaty are consistent with existing domestic law regarding emissions.

These claims track the arguments made by Professor Daniel Bodansky that I analyzed here.  Briefly, I think they are mostly unpersuasive, or at least incomplete.  I see no reason to think that "procedural" obligations are categorically outside the treaty power.  Professor Wirth says 

Exchanging information with other states is a Constitutional power of the President as Chief Executive and the U.S.’s top diplomat, the “sole organ” of the Nation in dealing with foreign governments.  Even in the absence of express statutory or treaty authority, the President may engage in information exchange and cooperation with foreign government in the environmental field, as demonstrated by a 1980 executive agreement with Canada on acid rain.

I agree with every word here (I'm happy to hear him endorse the theory of executive power over foreign affairs), but that does not show that the President can enter into binding agreements regarding exchanges of information.  A binding agreement binds not just this President but the next one (at least as a matter of international law).  This may be a material limit.  Suppose this President purports to enter into an agreement to share classified information with Russia.  Assuming the next President takes international law seriously, this is a substantial limit on the next President's foreign policy discretion.  That does not seem like something one President should be able to impose unilaterally on a subsequent President, even if it is in some sense "procedural."

Also unpersuasive is the suggestion that the existence of domestic authority to implement the agreement obviates the need for Senate approval of the agreement.  Professor Wirth writes: 

Domestic statutory authority, such as the Clean Air, further buttresses the U.S.’s capacity to implement these commitments. 

Perhaps so, but the ability to implement obligations under domestic law should be completely irrelevant to the President's capacity to undertake the obligations in the first place.  It's one thing to have statutory authority at the present moment; it's something entirely different to lock in that authority (to some extent, anyway) by making withdrawal of it a violation of international law.  As I wrote previously:

converting a domestic law into an international obligation is a material step.  Domestic law can be repealed without international repercussions.  However, once a provision of domestic law is embedded in international law, it cannot be repealed without violating international law and upsetting international expectations.  It is true that, as a matter of U.S. domestic law, Congress can violate international law if it chooses.  But it cannot violate international law without repercussions (at least in terms of reputation).  Put another way, undertaking an international law obligation that parallels a provision of domestic law is an international promise not to repeal the law.  I think it unlikely that the President has unilateral power to promise other nations that a law will not be repealed.

Professor Wirth's third contention on sole executive power is that the material obligations of the Paris agreement are all nonbinding, and so the agreement as a whole contains only minor binding commitments.  In general I agree with this position (see here).  My general view of the non-treaty power is that it allows the President to make agreements on minor diplomatic matters without Senate consent.  I also agree that, again as a general matter, the President can make nonbinding commitments; nonbinding commitments do not implicate the treaty power because treaties are necessarily binding (also discussed in more detail here).

However, I am not convinced that all of the binding commitments in the Paris agreement are immaterial.  Professor Wirth does not show that they are.  And that, I think, is the showing that defenders of the agreement must make.


Constitutional War Initiation and the Obama Presidency
Michael Ramsey

I have posted my new essay Constitutional War Initiation and the Obama Presidency (American Journal of International Law, forthcoming 2016) on SSRN.  It is part of the Journal's forthcoming "agora" on President Obama's war powers legacy, also including essays from Curtis Bradley (Duke) and Jack Goldsmith (Harvard), Ashley Deeks (Virginia), Ryan Goodman (NYU) and Rebecca Ingber (Boston Univ).  Here is the abstract of my essay:

This essay assesses the constitutionality of President Obama's uses of military force. It uses two baselines -- the Constitution's original meaning, and the practice of U.S. presidents between the end of the Vietnam War and the beginning of the Obama presidency. Although President Obama has been criticized for expanding the president's unilateral powers to use military force, this essay concludes that these claims may overstate. Taken as a whole, the legacy of the Obama administration may be to decrease rather than expand the war initiation powers of the presidency.

Specifically, this essay considers President Obama's use of military force under four headings: (1) the use of force against the Al Qaeda terrorist organization and its affiliates; (2) the use of force against the Islamic State; (3) the use of force against the Qaddafi government in Libya; and (4) the threatened use of force against the Assad government in Syria. It notes that the President has principally justified the first two as authorized by statute -- and, at least in the case of the Islamic State, through very aggressive readings of the authorizing statute. While aggressive statutory readings may expand the presidency's flexibility in using force, they do not expand the presidency's claims to independent constitutional power. Indeed, to the extent aggressive statutory readings substitute for aggressive claims of independent authority, they may be seen to undercut arguments for independent authority.

With respect to Libya, this essay agrees with widespread critical commentary that the President claimed independent war initiation authority beyond the powers conveyed by the original Constitution and beyond powers established by modern consistent and widely accepted presidential practice. However, it notes several limiting features of the Libya episode as a precedent for future action. Moreover, it notes that the Libya episode may be balanced by subsequent events with respect to Syria, in which the President declined to use unilateral force against the Assad regime.

To be clear, I am not retreating at all from my view that the 2011 Libya intervention was unconstitutional by just about any measure.  But as the essay explains, I think President Obama's war initiation record taken as a whole is not as aggressive, and will not set as many bad precedents, as some commentators suggest.


Reminder: Abstract Submissions for Originalism Works-in-Progress Conference Due Tomorrow
Michael Ramsey

As a reminder, anyone wanting to present a paper at the 2017 Hugh and Hazel Darling Foundation Originalism Works-in-Progress conference in San Diego next February should submit an abstract (or a draft) of their paper by tomorrow (Aug. 31).  Submissions should be emailed to Mike Rappaport (or sent to me, and I will forward them).

Anyone not presenting a paper is welcome to attend the conference.  More details, including a list of the papers selected, will be forthcoming shortly. 

Jeremy Christiansen: Originalism: The Primary Canon of State Constitutional Interpretation
Michael Ramsey

Jeremy Christiansen (independent) has posted Originalism: The Primary Canon of State Constitutional Interpretation (Georgetown Journal of Law & and Public Policy, forthcoming) on SSRN. Here is the abstract:     

Given the reach of federal constitutional law and the attention the topic garners in law reviews, law schools, and general popular discourse, a certain degree of federal-centricity is understandable in most scholarly discourse about originalism. Nevertheless, the near universal tendency of scholars to think only about the U.S. Constitution when debating originalism undermines claims by both proponents and opponents of originalism by failing to account for the massive body of originalist case law in state constitutional interpretation.

This article seeks to broaden the field of discussion about originalism by demonstrating that 38 of 50 state courts of last resort have consistently been invoking originalism, since as early as 1804. Indeed, not only have these courts expressly and consistently invoked originalism during this time period, but they also identified originalism as the primary canon of constitutional interpretation. In other words, for this super majority, originalism is supposed to be the goal of state constitutional interpretation. This is not to say that state courts are always originalist when interpreting their constitutions or that they always get a question of original meaning correct. Instead, the importance of this body of case law is for the broader debates about originalism in general. And although a full exploration of the impact of state constitutional originalism is beyond the scope of this article, there are important implications, potentially impacting topics from the traditional Bork-Scalia creation narrative of originalism, to more recent predictions about originalism’s impending demise, to assertions about originalism being partisan, to recent scholarship about originalism as law.


David Bernstein:The Courts and Tradition
Michael Ramsey

David Bernstein (George Mason University - Antonin Scalia Law School) has posted The Courts and Tradition: A Begrudging Respect on SSRN. Here is the abstract:     

This essay discusses the role of tradition in American common law and constitutional law. With regard to common law, the essay argues that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. While other countries still often treat the common law as an autonomous discipline that should largely evolve organically from precedent, in the United States this notion has been under successful attack from legal realism and its successors, including critical legal studies and law and economics, for decades. Given that how the concept of the role of the common-law judge has changed since World War II, it’s not surprising that precedent from earlier eras plays less of a role in American jurisprudence than it does elsewhere.

With regard to constitutional law, this essay argues that the role of tradition was severely undermined by Brown v. Board of Education, because the defendants in Brown and their advocates tied the constitutionality of segregation to southern tradition. Tradition was also undermined when the Supreme Court decided that traditional notions of public morality,which once served as a valid “police power” rationale for legislation, were now given little constitutional weight. Indeed, in the context of gay rights, the majority, led by Justice Kennedy, has deemed traditional notions of sexual morality to amount to mere bigotry deserving of no weight, or perhaps negative weight, in constitutional decisionmaking. While conservative Justices often appeal to tradition, to the extent they rely on originalism the appeal is not so much to tradition as to history, as modern original public meaning originalism is only a few decades old and has never won the consistent approval of the Court’s majority.


Daniel J. Hulsebosch: Taking and Restoring Dignity in the American Revolution
Michael Ramsey

Daniel J. Hulsebosch (New York University School of Law) has posted Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution (Symposium on “Dignity Takings,” in Law & Social Inquiry (2016)) on SSRN.  Here is the abstract:     

Taking a cue from Bernadette Atuahene’s concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.

UPDATE:  Linked fixed.  Thanks to Seth Barrett Tillman for the catch.


Derek Muller: 'Natural Born' Disputes in the 2016 Presidential Election
Michael Ramsey

Derek T. Muller (Pepperdine University - School of Law) has posted 'Natural Born' Disputes in the 2016 Presidential Election (Fordham Law Review, forthcoming) on SSRN.  Here is the abstract:      

The 2016 presidential election brought forth new disputes concerning the definition of a "natural born citizen." The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

(Thanks to Seth Barrett Tillman for the pointer).

What I find most noteworthy about the "natural born" disputes of 2016 is the extent to which they focused on the original meaning of the eligibility clause.  To at least some extent, it seems, originalism is (a part of) our law.


Judge Neil Gorsuch: Overrule Chevron
Michael Ramsey

Concurring in Gutierrez-Brizuela v. Lynch (10th Cir., Aug. 23, 2016), Judge Gorsuch argues that Chevron deference to administrative agencies is inconsistent with separation of powers:

Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the [Administrative Procedure Act] and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . . .

Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix. . . . Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems of the sort documented in the court’s opinion today . . .  It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design . . . .

(Via Jonathan Adler at Volokh Conspiracy).

RELATED: At Liberty Law Blog, Christopher Walker (Ohio State): Do Judicial Deference Doctrines Actually Matter? (noting Judge Gorsuch's concurrence and also this book review by Judge Brett Kavanaugh).  Professor Walker concludes:

[E]ven these raw-number findings make it hard to argue that Chevron deference does not matter in the circuit courts. Whether or not Chevron deference should be shelved is subject to considerable debate—a debate that will no doubt continue for years. But the findings of our empirical study of Chevron in the circuit courts should put to rest the argument that deference doctrines do not matter.


Barry Friedman on Justice Scalia and the Police
Michael Ramsey

At The Atlantic, Barry Friedman (NYU):  How Did Justice Scalia Shape American Policing? Donald Trump wants a Supreme Court appointee like the formidable late judge. But Scalia had a controversial and sometimes conflicted opinion on law enforcement. 

From the discussion:

[W]hen it came to the parts of the Constitution that governed policing ... Scalia often was the critical swing vote. And not infrequently he was the one writing the majority opinion.

One place Scalia’s passing might very well spell change is with regard to the Miranda ruling. ... Conservatives hate the Miranda rule, and Scalia was no exception. ...

When it comes to searches and seizures, though—the lifeblood of policing, governed by the Fourth Amendment to the Constitution—the picture of Scalia is far more complicated.

In recent years, Scalia emerged as the Fourth Amendment’s greatest champion, often ruling against the police. He was particularly steadfast in guarding the sanctity of the home, or limiting police use of new technologies. He wrote the main opinion in United States v. Jones, holding that the Fourth Amendment governed long-term GPS surveillance of a suspected drug dealer’s car. And he wrote a critical opinion saying that the police have to get a warrant before they use new technologies to gather information from inside homes—in that case the police had used a thermal heat sensor to figure out the defendant was growing pot with heat lamps. ...

[But] even though Scalia could be extremely protective of Fourth Amendment rights, the real curiosity is that he didn’t seem to think you should have any remedy if your rights were violated. He loathed the exclusionary rule—which requires tossing out evidence collected in violation of the Constitution—and played a big part in dismantling it. ...

Some commentary on Justice Scalia has accused him of following his policy preferences despite his purported attachment to originalism.  As this essay illustrates, criminal procedure is one area that is hard to square with that thesis.  If one is looking for pro-police or anti-police tendencies, Scalia seems all over the place.  But thinking in terms of originalism, his record is neither "conflicted" nor "a curiosity."  To take two of Professor Friedman's examples, Miranda and the exclusionary rule are judicial inventions; that, and not partiality to the police, accounts for Scalia's hostility to them.  But the Fourth Amendment, given its original meaning, plausibly imposes material limits on modern police practices, and so Scalia was much more sympathetic to such claims.

Ironically, Professor Friedman concludes:

Merrick Garland, President Barack Obama’s pick for the Court ... is a former prosecutor whose rulings typically are pro-police. In a Garland-for-Scalia swap, the police actually might have more license, rather than less.

(Via How Appealing).


Ian Bartrum: Wittgenstein's Poker
Michael Ramsey

Ian Bartrum (University of Nevada School of Law) has posted Wittgenstein's Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism on SSRN. Here is the abstract:   

The last two decades have seen an explosion in scholarship exploring the intersection between linguistic indeterminacy (usually vagueness), as analyzed within the philosophy of language, and legal interpretive theory. This essay claims that such indeterminacies are an inevitable, and even valuable, part of contested language games—such as our contested constitutionalism—which employ linguistic uncertainty to further different communicative or political ends. It further suggests that two particular types of constitutional indeterminacy—intentional contemporary ambiguity and incidental evolutionary vagueness—present substantial problems for public meaning theories of originalism. Resolving an intentional ambiguity seems to require at least some recourse to authorial intentions, which are beyond the scope of public meaning originalism; and historical usages can offer little guidance when new constitutional problems reveal a latent textual vagueness.

When combined with the problems of intentional vagueness—which the New Originalists already concede to modern construction—these types of indeterminacy seriously undermine the practical value of public meaning originalism as an interpretive method. Indeed, many—if not most—of our non-trivial constitutional disputes are contests over just these sorts of textual uncertainties. In all of these cases, then, the New Originalist must either resort to intentionalist theories—with all of their well-known epistemological and jurisprudential problems—or concede the question to modern judicial construction. This, in turn, means that public meaning originalism’s claims about the existence of “empirical” constraints on our constructive practices can inform only a small, and relatively uncontroversial, set of actual constitutional controversies.

An interesting and challenging paper.  Without dismissing the problems of indeterminacy in public meaning originalism, I would make two quick points.  (1) Most originalist approaches do not suppose that there will be 100% certainty on most questions; the inquiry is rather which of two competing interpretations more probably reflects the original meaning.  (2) Although public meaning originalism focuses on the meaning of the text, that does not prevent originalists from consulting historical sources, both as to the common usage of words and as to the goals and interpretations of the enactors.  These points, among others, make the inquiry more manageable than it might appear.

Also see some of my further thoughts on originalism and indeterminacy here.


Originalism, Changing Meanings, and Stable Meanings
Mike Rappaport

One of the criticisms of originalism by historians is that originalism fails to take into account that word meanings change over time.  In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed.  Therefore, originalism is problematic because it assumes that traditional word meanings are stable.

Unfortunately, this charge by historians turns out to be largely mistaken.  If some originalists assume that word meanings were stable, then that would be an argument against those originalists.  But it would not condemn originalism generally, since nothing in originalism requires that word meanings be stable.  And in fact, I believe very few, if any, originalists assume that words meanings are unchanging.

How does originalism properly address the issue of changing meanings?  If an originalist were seeking to interpret a constitutional term, then the originalist would look to the meanings that existed at the time of the Constitution.  If the traditional meaning continued to exist at that time, then that would certainly be one possible meaning.  But a good originalist would also look and see if a new meaning had developed.  If a different meaning had developed, then of course the originalist would consider that as another possible meaning.

If there were two possible meanings, that would mean the term was ambiguous.  The originalist should them employ the interpretive rules at the time to resolve the ambiguity.  One consideration in choosing between the two meaning is which one was more common.  Another would involve the evident purpose of the provision.  A third would be the structure of the document.  There are, of course, others.

The criticism of originalists for assuming stable meanings are often wide of the mark.  It is sometimes claimed that the originalist argument, which maintains that the Executive Power Vesting Clause provides the President with a limited foreign affairs powers, assumes stable meanings.  But this is not true.

This originalist interpretation argues that the language vesting the executive power in the President provides him with the powers that executives, such as the King of England, typically enjoyed in the 18th Century, minus the executive powers that were given to the Congress (such as the power to declare war) and minus the executive powers that were limited in other ways (such as the power to appoint executive officers, which was to be exercised only with the advice and consent of the Senate).

While this interpretation relies on the traditional meaning of executive power, it does not simply assume that meaning continued.  It shows that this meaning fits the structure of the Constitution, providing for an interpretation that fully accounts for the foreign affairs powers of the federal government.  And it also shows that the traditional understanding of executive power continued to be used in the Philadelphia Convention itself as well as after the Constitution was adopted by officials as different as Thomas Jefferson and Alexander Hamilton.

Stable meanings certainly make the job of originalist interpretation easier.  But good originalism does not assume that they exist and originalist interpretation can be done without them.