Derek T. Muller: Legislative Delegations and the Elections Clause
Michael Ramsey

Derek T. Muller (Pepperdine University - School of Law) has posted Legislative Delegations and the Elections Clause (Florida State University Law Review, Forthcoming) on SSRN.  Here is the abstract:      

Arizona State Legislature v. Arizona Independent Redistricting Commission might be viewed as a dispute about the control over redistricting, with a heavy emphasis on the perceived problems of and solutions to partisan gerrymandering and incumbent entrenchment. Or the case might be about the power of the people to wrest control from an unresponsive legislature and pass their own laws via ballot initiative. But that is not really this case. This Article notes that it is something more nuanced. This case is less about the ballot initiative or about partisan gerrymandering, and more about a delegation of legislative power from the legislature to an unelected agency.

The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.

This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.


Seth Barrett Tillman on Hillary Clinton and Presidential Eligibility
Michael Ramsey

Seth Barrett Tillman  (National University of Ireland, Maynooth - Faculty of Law) has posted A Response to Michael B. Mukasey and Cause of Action: With a Reply from Attorney General Mukasey on SSRN.  Here is the abstract:       

Michael B. Mukasey, a former Attorney General of the United States (and former Chief Judge of the United States District Court for the Southern District of New York), has stated that if former Secretary of State (and former Senator) Hillary Clinton is convicted under 18 U.S.C. § 2071, then she is disqualified from holding the presidency. See Transcript, MSNBC MORNING JOE (Aug. 24, 2015, 06:45:25 AM), Online. Likewise, a Washington, DC think tank has just published a white paper taking the same position. See Legal Analysis of Former Secretary of State Hillary Clinton’s Use of a Private Server to Store Email Records, CAUSE OF ACTION: ADVOCATES FOR GOVERNMENT ACCOUNTABILITY (Aug. 24, 2015), available online. Mukasey’s and Cause of Action’s position is fundamentally misconceived; indeed, neither puts forward any authority for the position that Section 2071 or any other federal statute creates or could create a disqualification in regard to any elected federal position, including the presidency.

And Mukasey concedes!

[O]n reflection . . . Professor Tillman’s [analysis] is spot on, and mine was mistaken. . . . The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.

A classy move by General Mukasey.


Richard Re: The New Holy Trinity
Michael Ramsey

Richard M. Re (UCLA School of Law) has posted The New Holy Trinity (18 Green Bag 2d, 2015) on SSRN.  Here is the abstract:      

There’s a familiar story about statutory interpretation in the Supreme Court. Once upon a time, the Court cared primarily about legislative purpose, even if it defied clear statutory text. But then Antonin Scalia came to town, became a justice, and laid down a new law: textualism. Central to Scalia’s success was his association of purposivism with a century-old precedent called Holy Trinity. Recently, however, purposivism seems to have evolved and, as a result, to have gotten the upper hand. Instead of adhering to Scalia's New Textualism, the Roberts Court has repeatedly and visibly embraced what might be called “The New Holy Trinity.” This approach calls for consideration of non-textual factors when determining how much clarity is required for a text to be clear. This apparent methodological shift merits attention -- and may have implications for constitutional law.

Via Larry Solum at Legal Theory Blog, who adds:

Highly recommended.  If Re is right, then the Supreme Court's recent statutory interpretation cases conflate interpretation and construction.  Considerations relevant to the normative question as to what legal effect the text should be given are used to determine the factual question as to what communicative content (or linguistic meaning of the text) is.


Ilya Somin on Birthright Citizenship
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: The Constitutional Debate over Birthright Citizenship.  From the discussion: 

In my view, the best recent statement of the opposite case is that by prominent conservative legal scholar John Eastman (see also related arguments by Mark Pulliam and Howard Foster). I think Eastman shows that the anti-birthright citizenship side of the debate cannot be easily dismissed.

But, ultimately, his argument fails because it relies on a dubious distinction between “complete, political jurisdiction; and… partial, territorial jurisdiction.” Eastman explains that person subject only to the latter “does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance.” Eastman argues that birthright citizenship applies only to children of parents subject to “complete political jurisdiction.”

One obvious problem with this distinction is that it is nowhere to be found in the text of the Fourteenth Amendment, “which simply refers to “the jurisdiction” of the United States. This language encompasses all forms of jurisdiction, not merely that which applies only to citizens subject to “complete political” jurisdiction. The framers could have used the phrase “complete political jurisdiction” (or similar language), but did not. Another problem with the complete jurisdiction theory is that it would enable Congress to deny citizenship even to children of legal immigrants who are not yet citizens themselves. After all, they too do not get to vote or serve on juries, and some of them might not be subject to a military draft if we had one.

I agree that John Eastman's article is a leading argument for the other side.  But also I agree with Professor Somin's response.  (Plus he has a favorable comment on and quote from my prior post. Much appreciated).

A Response to Stephen Griffin on Original Public Meaning and Executive Power, Part 2
Michael Ramsey

In a previous post, I raised the first of my two objections to Stephen Griffin's criticism of using original public meaning (OPM) to understand the phrase "executive Power" in the Constitution.  Briefly, I argued that Professor Griffin erred in thinking that OPM methodology focuses exclusively on pre-drafting uses of the relevant phrases (in this case, the use of "executive" power by authorities such as Locke, Blackstone and Montesquieu).  To the contrary, while pre-constitutional usage is important to OPM, so also is other evidence of public meaning, such as drafting and ratifying history and post-constitutional practice.

I also acknowledged, however, the OPM methodology may (depending on the person) heavily emphasize pre-drafting usage (as my scholarship often has, including with respect to executive power). Here, I will say a little in defense of that approach.

When people use words in a legal documents, or read words in a legal document, they don't read them in isolation.  Rather, they read them in the context of previous legal writing, where it has used those words in a particular way.  This, after all, is how we give meaning to any set of words -- not by thinking about what they ought to mean, but by thinking about what they have meant, as used in familiar writing or speech.  So when someone in 1788 read the words "the executive Power" in the proposed Constitution, it's natural that they asked themselves, what did "executive Power" mean when used in familiar legal and political writing of the recent past?  That is how we would expect them to understand the communicative content of the proposed Constitution.

Among the most familiar legal/political writings in eighteenth century America were the works of John Locke, Baron Montesquieu and William Blackstone.  All of them discussed executive power.  And all OPM methodology claims is that the meanings these sources gave "executive power" is an important clue as to the meaning Americans of 1787-89 attached to it.

Professor Griffin objects that these writers long pre-dated the Constitution (Locke writing in the late seventeenth century and Montesquieu and Blackstone in the mid-eighteenth century) and wrote in other countries.  Historians of the revolutionary period in America have shown, he says, that substantial changes occurred in Americans' thinking about executive power after the mid-eighteenth century, which OPM theorists ignore.

Of course any appropriate OPM approach must take into consideration such changes, and it's undoubtedly true that Americans in the 1770s and 1780s had evolving views of the best allocation of executive power.  (I talk about this in particular in The Constitution's Text in Foreign Affairs, Chapter 6).  But here it is important to distinguish (as Professor Griffin does not) between the meaning of "executive power" and the proper allocation of executive power within a government.  Political writing of the time defined "executive power" (and legislative power) not in terms of which branch exercised it, but by its nature.  How the executive power should be allocated was a separate question, and one sharply debated at the Constitutional Convention and elsewhere.  Pure separation of powers theory held that all executive power should be allocated to a single chief magistrate.  Other views contended that the powers should be more mixed (as with a chief magistrate exercising a veto over legislation, or a representative assembly having control of some "executive" decisions).

These debates took place against a linguistic backdrop provided by Locke, Blackstone, Montesquieu and similar writers who discussed executive and legislative powers.  Although written earlier and in a different country, as Professor Griffin says, these were the main reference books of the founding generation in America.  True, the founding generation did not agree in all respects with the allocation of executive power recommended by these writers -- most obviously, they thought the chief magistrate should not control war initiation and treaty making.   But in discussing these questions, they used the vocabulary of the legal/political writers with which they were familiar.  Thus, for example, at the Convention Madison objected that the Constitution should not give "executive" power to the President, at least without limitation, because that would indicate the President had war initiation power.  In taking this position, he was using the Blackstone/Montesquieu vocabulary, but objecting to their recommended allocation.  (The Constitution dealt with his objection by expressly giving Congress power to declare war, after which Madison went along with the grant of executive power to the President).

To be sure, it's possible that the founding generation rejected the Blackstone/Montesquieu vocabulary as well as some of their proposed allocations.  So OPM methodology would require attention to how "executive power" was used in America as well.  And as Professor Prakash and I outlined, there is substantial evidence that Americans continued to use it as Blackstone and Montesquieu had (basically, to mean law execution power and foreign affairs power).  To pick one example we discussed, the influential 1778 Essex Result, written during the debate over the Massachusetts Constitution, used executive power in this way.  But in any event, because Blackstone and Montesquieu were in such wide use in America, and because they gave executive power a particular meaning, I think something of a presumption lies in favor of their definition (though not their allocations), unless it is shown that their meanings were abandoned. 

In sum, OPM methodology looks at a wide range of historical evidence to determine the meaning of a phrase such as "executive Power" but it may legitimately emphasize pre-constitutional uses by authoritative works in common circulation.  These works provided at least the starting point for the founding generation's vocabulary, so it is appropriate to start with them.  Contrary to Professor Griffin, I see nothing wrong with this approach either generally or with regard to executive power.   It may be that Professor Griffin is actually critiquing faulty uses of OPM methodology (in which case I agree with him), but the fact that OPM is sometimes done badly does not mean it fails as a methodology.


Birthright Citizenship: A Reply to Professor Ramsey
Andrew Hyman

On the subject of birthright citizenship, Mike Ramsey recently wrote: "it's evident from nineteenth-century international law who might be born in the United States but not be 'subject to the jurisdiction' of the United States: children of ambassadors and other diplomatic personnel."  Okay, but what about nineteenth-century national law, as opposed to international law?

There were two federal statutes in the nineteenth century that seem like very good evidence (at least as good as any international law) as to who might be born in the United States but not be "subject to the jurisdiction thereof".  Those laws are the Civil Rights Act of 1866, and its verbatim reenactment in 1870 (the Fourteenth Amendment took effect in 1868).  Both of those federal statutes said: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."  It seems clear from those national laws that people who were "subject to any foreign power" could not take advantage of birthright citizenship.  That includes diplomats, but it probably also includes people who lawfully belong in a foreign country instead of in this one.  How could someone possibly belong in a foreign country according to the law, and yet not be subject to a foreign power?

The leading case on birthright citizenship was United States v. Wong Kim Ark.  The Court in that case did not explicitly address illegal immigration.  But the Court did explicitly say this:  "In the forefront [i.e. the beginning]...of the civil rights act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms."  The Court therefore wanted people to look not just at international law for the meaning of the Citizenship Clause, but also to the foremost national law on that subject.  And, looking at the general words "not subject to any foreign power," I am hesitant to say that people belonging outside this country are covered by those words.

The Court decided Wong Kim Ark in 1898, long after the Citizenship Clause took effect in 1868.  All I’m saying about Wong Kim Ark is that I happen to agree with its statement about the Civil Rights Act being relevant to the meaning of the Citizenship Clause, and of birthright citizenship, and of the exceptions thereto.  Also, I admit that the language of the Civil Rights Act is not crystal clear, but it does provide a significant elaboration of the Citizenship Clause.  Perhaps the greatest ambiguity in the phrase “subject to any foreign power” is whether it covers legal visitors from foreign countries aside from diplomats, in addition to covering people who are trying to immigrate here illegally.  But either way, the phrase covers the latter, and I doubt that the U.S. Supreme Court would ever overturn the conclusion in Wong Kim Ark that the phrase does not cover the former.  Let me hasten to add: I do not doubt the power of Congress to confer U.S. citizenship on the U.S.-born children of illegal immigrants, and perhaps Congress should do so in many types of cases.  I’m just saying that nothing like it is required by the Fourteenth Amendment.

Mike Ramsey seems to take the position that, if a person is even partly subject to the jurisdiction of the United States, then citizenship at birth is a constitutional right.  But, if a foreign government waives diplomatic immunity as to parking tickets for all its diplomats in the United States, then birthright citizenship kicks in per the Citizenship Clause?  That seems unreasonable.  Relatedly, suppose that Congress decides to treat people who are unlawfully present in the United States pretty much the same way as Congress already treats diplomats; would Mike then say that there’s no more constitutional right to citizenship at birth for such immigrants? 

Getting back to the Civil Rights Act and its language about being “subject to any foreign power,” one might ask what difference it makes whether a foreign citizen is trying to establish permanent residence in the United States legally or illegally?  To my mind, a person is more subject to a power that he cannot lawfully emigrate from, as compared to a power that he can lawfully emigrate from.  In that sense, people in the United States unlawfully are more subject to a foreign power than if they were here lawfully.  

Richard Samuelson on Birthright Citizenship
Michael Ramsey

At The Federalist, Richard Samuelson: Birthright for Whom?  From the conclusion:

In other words, there are very good reasons to maintain that according to American principles citizenship is reserved to people who have chosen to be American. As a practical matter, their children are also citizens, but, as the naturalization act of 1790 notes, not their grandchildren if the family has remained outside the United States, choosing not to participate in its civic life. America has traditionally not been a nation based upon bloodlines, after all. (And what is family unification if not a policy of making bloodlines paramount?) That is why we have regularly naturalized new citizens in significant numbers. That said, doing so is a choice we the people have the right to make or we cease to be our own governors. There is nothing in the 14th Amendment, reasonably construed, that suggests otherwise. The 14th Amendment can be read to ensure that the children of anyone who we have agreed to come reside with us permanently are citizens, but not those who we have admitted only on a temporary basis or those who break our laws to enter.

This is a good articulation of the originalist argument against birthright citizenship for children of illegal aliens, but I'm not persuaded (my prior views are here).  

Professor Samuelson says "it is best to be grounded in constitutional principles and a close reading of the text."  I agree, but he really has only one textual argument (which oddly he puts in parentheses): 

(It is also worth noting that in formal grammar, “the jurisdiction” implies complete jurisdiction. By contrast one would have to specify “some” or “any” jurisdiction.” ...)

He needs to make this move, because his textual argument only works if the children in question are not "subject to the jurisdiction" of the United States.  Since they obviously are subject to U.S. jurisdiction, opponents of birthright citizenship must add the word "exclusive" (or "complete") -- that is, not "subject to the exclusive jurisdiction."  That would get the result they want, because children of illegal aliens (who are typically also born citizens of the country of their parents' citizenship) are not subject to exclusive U.S. jurisdiction.  But the argument is substantially undercut by the fact that the critical word doesn't appear in the clause.

Professor Samuelson's attempt to read in "complete" (by which I assume he means "exclusive") simply doesn't work.  Whatever he means by "formal grammar," the common usage of "jurisdiction" does not operate the way he says it does.  If I go to Mexico, I am subject to "the jurisdiction" of Mexican law and Mexican courts so long as I am there; but (as a U.S. citizen) I also remain subject to "the jurisdiction" of the United States with respect to laws the U.S. has made extraterritorial.  Jurisdiction is typically concurrent with respect to citizens of one country present in another, but it remains "the" jurisdiction.

It's worth noting too that if Professor Samuelson were correct on his textual point, children of legal resident aliens would generally not be birthright citizens either.  Most countries (like the U.S.) recognize children of citizens born abroad to be citizens, and most countries (again like the U.S.) claim extraterritorial jurisdiction over their citizens.  Thus the U.S. jurisdiction over children of legal aliens is no more "exclusive" or "complete" than U.S. jurisdiction over children of illegal aliens.  But Professor Samuelson shies away from making this more expansive claim, probably because he knows that the children of legal aliens were always regarded as U.S. citizens, including under common law prior to the Fourteenth Amendment, and there is little basis for thinking the Amendment was designed to change this.

The rest of his arguments are mainly appeals to abstract principles or to what various individuals said at various times in the eighteenth and nineteenth century.  But these observations don't override the Constitution's text nor make its plain meaning implausible.


Our Supermajoritarian Constitution – Part II: The Republican Purpose of the Supermajority Rules of the Constitution
Mike Rappaport

In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian.  I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions.

In this post, I want to explore some of the context and purposes of the Constitution that also contributed to the Framers establishing a supermajoritarian constitution.

The Framers of the Constitution wanted to establish a more republican version of the English Constitution.  They not only eschewed a monarchy and an hereditary aristocracy, but they also believed that the English Constitution of the Glorious Revolution had been corrupted  (such as by giving Parliament unlimited authority and allowing the King to purchase votes in the legislature). 

At the same time, though, they were not simple democrats.  They had seen how what they perceived as excessive democracy and a lack of checks and balances at the state level had resulted in instability and poor legislation.  The problem was how to introduce the English limits on democracy without a monarchy and an hereditary aristocracy.

Supermajority rules were one of the principal means that the Framers employed.  First, various traditional English protections were changed into ones with supermajority rules.  For example, the King’s absolute veto and unilateral power to make treaties, both of which were inappropriate to a republican executive, were replaced with a provision that employed express supermajority rules (a qualified veto and the power to make treaties with a supermajority of the Senate).  Conviction for impeachment, which had resided in the aristocratic House of Lords, was placed in the more republican Senate, but now required a supermajority.

Second, unlike the English system, which allowed the King-in-Parliament to pass any laws it desired, the Constitution imposed certain rules restricting the legislature, such as the individual rights provisions of the Bill of Rights.  But these provisions were not made absolute; instead, they could be overridden by constitutional amendment through a strict supermajoritarian process.  Finally, the ordinary process for legislation (borrowing most closely from the English system) imposed tricameralism, which operates as a kind of supermajority procedure.

Thus, the Framers established a republic, not a democracy, and they did so largely through supermajority provisions that placed checks on the public without employing either a monarch or an aristocracy.

Finally, the Framers used a supermajority rule to enact the Constitution as a whole.  To establish the Constitution, 9 of the 13 states had to agree to it.  (And the Framers then used a similar supermajority rule for constitutional amendments.)  Thus, the entire process for enacting constitutional provisions – which was intended to preserve people’s rights and to promote the public interest – was entrusted not to a unanimity rule or to a majority rule, but to a supermajority rule.

(Cross posted at the Liberty Law Blog)

A Response to Stephen Griffin on Original Public Meaning and Executive Power
Michael Ramsey

In a post I noted earlier, Stephen Griffin argues that the debate over executive power shows the major shortcomings original public meaning (OPM) has as a theory of constitutional interpretation.  As someone who has used an original public meaning approach to decipher the meaning of executive power, I feel a response is appropriate.  

I'll start by saying that Professor Griffin is an outstanding scholar whose book Long Wars and the Constitution (which coincidentally I'm now reading in connection with a different project) is an enormous contribution; I'm sure his new book is equally important and insightful.  Also he has said some generous things about my scholarship, both in his recent post and elsewhere, which I appreciate.  Nonetheless, I think his current criticism is misguided on two principal grounds: that he misunderstands original public meaning, and that he misunderstands the claims it makes about executive power.

As to the first point, Professor Griffin writes:  "I am arguing rather that the OPM approach has a very specific take on what counts as relevant historical evidence that happens to be unsuited to the task of finding constitutional meaning amid the rapidly changing circumstances of the 1780s."  I think this is incorrect.  OPM, as he calls it, is not principally a theory of what "counts as relevant historical evidence."  Instead, it is a theory of what the interpreter is trying to accomplish.  Its objective is to uncover (to the extent possible) the meaning of the words in the Constitution's text.  It rejects the competing idea that the objective should be to discover what individual framers (or the framers collectively) thought about particular issues (or would have thought, had they thought about them).

This has some methodological implications for what counts as evidence, but not so restrictively as Professor Griffin seems to think.  What OPM principally rejects as evidence is speculation about what "the framers would have thought" based on broad statements of the framers' goals or principles taken at a high level of generality.  The question, as OPM understands it, is not what the framers would have thought, but the meaning of the words they wrote.  As an example, consider the debate over birthright citizenship, which I mentioned yesterday.  For an OPM approach, the question is not what the framers of the Fourteenth Amendment would have thought about children of illegal aliens, but rather the historical meaning of the relevant phrase "subject to the jurisdiction" of the United States.

But with the focus on the words, all sorts of historical evidence of meaning is admissible, including categories Professor Griffin seems to think OPM rejects.  To take the example of executive power, I agree with Professor Griffin that OPM looks closely at the way that phrase was used prior to the Constitution (including in English law, which was an important source of meaning for the framers on many things).  But OPM (at least the way I, and I think many others, would do it) would look first at the text and structure of the Constitution itself, including the relationship between the executive power clause and other closely related clauses; it would also look to the drafting and ratifying debates for evidence of what the drafters and ratifiers thought the relevant phrase meant and how it interacted with other related provisions; and it would look to post-ratification history to see how the generation that first put the Constitution into practice seemed to understand the relevant words in the text.  (To see this approach, take a look at my Yale Law Journal article with Sai Prakash on presidential foreign affairs power, or my articles on presidential war power; also I have a somewhat more developed methodological account here).

Among OPM scholars there may be some significant difference in emphasis among these sources.   But I don't think mainstream OPM analysis would reject any of them.  The main common theme is to understand the meaning of the words -- anything that helps should be welcomed.  Indeed, OPM scholars may even welcome broad generalities about what the framers were trying to accomplish, as long as they can be tied to resolution of specific debates about textual meaning.

As a result, I think Professor Griffin is writing about a caricature of OPM.  Some scholars may indeed have idiosyncratic views about the relevance of particular types of evidence, and that can be a basis for criticizing them individually, but it cannot be a basis for criticizing OPM in general.

With this said, though, I think Professor Griffin is right to this extent: OPM (or at least my version of it) does focus, more than other approaches, on the way words written into the Constitution were used prior to the drafting.  It's not an exclusive focus, but it is a very important element.  This comes out most immediately in OPM's attention to dictionary definitions, but dictionaries are only part of it (an overrated part, in my view).  The idea is that when the framers chose certain words, and not others, for the Constitution, they drew upon an existing linguistic background that they shared and knew their readers would share; similarly, when people at the time read the words that the framers chose, they read them in light of that existing linguistic background.  This is in the nature of the Constitution as a communicative enterprise.

The best evidence (in my view) of this linguistic background is the way words were used before the drafting (before they were invested with constitutional consequences).  And I do agree with Professor Griffin's comment that OPM theorists think pre-drafting meaning establishes something of a presumption: if the relevant phrase generally meant X at time A, and there is no evidence of a change in meaning up to time B, I think that's pretty good evidence that the phrase generally meant X at time B.  But the presumption is surely rebuttable, including by all the other types of evidence mentioned above.

It may be that Professor Griffin is best read not as objecting to OPM methodology in general, but rather only to its attention to pre-drafting meaning (perhaps especially pre-drafting meaning in English law).  So in my next post I will directly defend the use of pre-drafting meaning to define executive power.


Originalism and Birthright Citizenship, Again
Michael Ramsey

With the issue of birthright citizenship for children of illegal aliens back in the news, here are my views  (from the 2011-2012 campaign season):

Originalism and Birthright Citizenship

Originalism and Birthright Citizenship (Part Two)

Originalism and Birthright Citizenship (Part Three)

The short version is this:  The first sentence of the Fourteenth Amendment conveys U.S. citizenship on all persons "born ... in the United States and subject to the jurisdiction thereof."  Obviously we are talking here about persons "born ... in the United States."  Thus the children of illegal aliens are not U.S. citizens only if they are not "subject to the jurisdiction" of the United States.

But there is no sense in which children of illegal aliens are not "subject to the jurisdiction" of the United States.  So long as they remain in the United States, they are subject to U.S. law.  If they violate U.S. law, they can be arrested by U.S. law enforcement, brought before a U.S. court, and sentenced to U.S. prison.

Moreover, it's evident from nineteenth-century international law who might be born in the United States but not be "subject to the jurisdiction" of the United States: children of ambassadors and other diplomatic personnel.  Under the international law of the time (as is still largely true in modern law) foreign diplomats had immunity from local law.  They could not be arrested or brought before a U.S. court.  If they violated U.S. law, the U.S.'s sole remedy was to request the sending nation to recall them.  They were not, it was said, subject to U.S. jurisdiction.  And an ambassador's family enjoyed the same immunity.

The framers of the Fourteenth Amendment also apparently thought members of some Native American tribes were not "subject to the jurisdiction" of the United States for purposes of the Fourteenth Amendment.  That was either because the tribes had treaties with the United States that preserved their sovereignty over internal affairs (and thus their members were not subject to U.S law with respect to internal matters) or because the tribes had not yet been defeated militarily and thus were literally beyond the reach of U.S. authority.  In either event, the children were like the paradigm children of ambassadors, in the sense that ordinary U.S. legal process did not apply to them.  And likewise they were completely unlike modern children of illegal aliens, to whom U.S. legal process applies completely.

It's true, as opponents of birthright citizenship contend, that the framers of the Fourteenth Amendment's first sentence were principally thinking of freed slaves (and probably children of legal immigrants).  Illegal immigration was not a major issue in 1868, although it became one fairly soon afterward.  What the framers would have thought about birthright citizenship for children of illegal aliens is something about which we can only speculate.  But the meaning of the law they wrote is quite clear.

(For some recent thoughtful writing taking a somewhat contrary view, see here by Mark Pulliam [Liberty Law Blog] and here by Howard Foster [NRO].  On the other hand, here's John Yoo [also at NRO], basically agreeing with me.)


More from Stephen Griffin on New Originalism (and Executive Power)
Michael Ramsey

At Balkinization, Stephen Griffin continues his posts on New Orignalism: Pro-Executive Power Scholarship as a Road Test of Original Public Meaning Theory

 From the introduction:

It is sometimes said that the new originalism is indeed “new,” in the sense of still being built out and road tested (I agree that the interpretation/construction distinction still has the wrapping on).  Perhaps so and it would certainly be unfair to judge the progress of the theory by dating it to Justice Scalia’s 1986 move to original public meaning (OPM).  For his part, Scalia has always been better about giving statutory examples to back up the cogency of OPM theory rather than constitutional examples (and his recent book with Bryan Garner, Reading Law is no exception).  But if we consider the field of executive power scholarship since the early 1990s, it turns out that OPM has been around for almost a quarter of a century, certainly enough time by anyone’s standards to judge it by the quality of the specific interpretations (or constructions) of the provisions of Article II (and the “declare war” clause of Article I) that have been offered under its banner. 

And in conclusion:

Speaking generally, when you really look closely at OPM executive power scholarship, what you see is a set of presumptions being used to bulk up rather thin evidence, not a robust assemblage of eighteenth-century meanings.  The reason is not that there is a lack of the right kind of evidence about executive power.  There’s plenty of evidence about the meaning of executive power…in England.  In the colonies, it gets more complicated.  But my main point is that the presumptions are doing nearly all the work, something that is especially on display in Yoo’s work as I argue in Long Wars and the Constitution.  In other words, these scholars don’t really have evidence of what the OPM of executive power was when the Constitution was sent to the several states.  Not their fault, no one does!  In order to save an inherently flawed methodology, they are appropriating OPM evidence from an earlier period (and another country!) and shoving it into the framework of the writing and ratification of the Constitution.  This is why it is especially misleading to exclude, as these scholars sometimes do, relevant evidence from the Federal Convention.  Again speaking generally, excluding evidence from the Federal Convention is adventitious for pro-executive power scholars, especially with respect to war powers.  But it’s never a good idea to exclude relevant historical evidence, especially when the people at Philadelphia also participated actively in the ratifying conventions.
All of this is not by way of establishing that the semantic or, for that matter, “meaning as purpose” meaning of phrases like “executive power” was somehow “living,” fluid, or impossible to determine.  I am arguing rather that the OPM approach has a very specific take on what counts as relevant historical evidence that happens to be unsuited to the task of finding constitutional meaning amid the rapidly changing circumstances of the 1780s.  Historians already knew this in a sense – why didn’t leading executive power scholars in the law schools pay more attention?  In reviewing pro-executive power scholarship for my OUP Handbook chapter, this was hard for me to understand.  As you can no doubt tell by now.
While John Yoo (with whom I vigorously disagree on many points) seems to be the main target here, I feel a bit targeted myself as well, and hope to have a response at some point.  For the moment, I'll start by saying that, to the extent that Professor Griffin is talking about me, Sai Prakash, and others with a similar approach, I simply don't understand -- and emphatically reject -- the idea that "the OPM approach has a very specific take on what counts as relevant historical evidence."  I think any reader who makes it through "The Executive Power in Foreign Affairs" would concede that we consider a wide range of evidence (perhaps to a fault).
Maybe he is really only talking about John Yoo, and there is evidence of a Yoo focus in the post.  But if that's so, it's hardly fair to criticize the entire theory of original public meaning on the basis of a single scholar with whom most original public meaning theorists disagree.


David Rubenstein: Self-Help Structuralism
Michael Ramsey

David S. Rubenstein (Washburn University Law School) has posted Self-Help Structuralism (Boston University Law Review, 2015 Forthcoming) on SSRN.  Here is the abstract:      

Self-help enclaves in the law permit an actor to take otherwise unlawful action to redress another’s wrongdoing. In Self-Help and the Separation of Powers, David Pozen suggests bringing self-help to the constitutional fold. Pozen dexterously navigates his thesis through a number of separation-of-powers thickets, but he does not factor in federalism. Filling that void, this Article constructs a two-dimensional model of “self-help structuralism” — one that accounts for federalism and separation of powers simultaneously. More specifically, this Article illustrates how states engage in self-help too, often in looping feedback with the federal branches. Appreciation for this cross-dimensional dynamic offers better purchase on the idea that constitutional self-help is happening. Yet it also instigates a fresh mix of anxieties over whether to legalize the practice. For example, should states also be licensed to invoke self-help against each other, or against the federal government? Can federal acts of self-help preempt state law? More generally, what meta-principles should guide the analysis when our dual commitments to federalism and separation of powers collide? This Article takes a first pass at these and related questions. But just asking them advances the idea of constitutional self-help to new ground. Whatever political, legal, and academic battles over constitutional self-help lie ahead, they will need to be fought on the field of “self-help structuralism.” 

More broadly, this Article contributes to a larger project of cross-dimensional structuralism. Creative solutions to problems in public governance along one dimension (whether federalism or separation of powers) can have structural spillovers into the other. When separation of powers and federalism overlap and intersect — and, increasingly they do — a cross-dimensional approach of the type modeled here can be analytically necessary. Innovations that may look good in isolation can take on new hue when assayed in full structural context.

(Via Larry Solum at Legal Theory Blog).


Robert Reinstein: The Great Power of the Necessary and Proper Clause
Michael Ramsey

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted The Great Power of the Necessary and Proper Clause on SSRN.  Here is the abstract:      

The scope of Congress’s authority under the Necessary and Proper Clause is being challenged by a theory that is gaining acceptance in the courts and in legal scholarship. The “great powers” theory posits that some implied powers, even if necessary to effectuate an enumerated power, are not “proper” because of the degree of their importance. According to its advocates, powers that are great, important and substantive cannot derived from implication. This theory is said to enforce the principle that implied powers are necessarily inferior to express powers and to explain why some seemingly incidental powers, but not others, are listed as enumerated powers in Article I, Section 8.

This theory is gaining traction. It has recently been adopted by three Supreme Court Justices (including by the Chief Justice in the first Health Care Case) and defended in important scholarly works. Critics have challenged this theory as being too indeterminate to apply and contradicted by the conventional reading of McCulloch. The criticisms in this article are more fundamental -- the great powers theory is unsound historically, doctrinally and as a matter of constitutional construction.

The great powers theory originated in James Madison’s speech in the First Congress opposing the creation of the Bank of the United States. Although advocates of this theory rely on Madison’s speech, they overlook the Federalist rebuttal and the House of Representatives rejection of Madison’s views by a decisive majority. And Edmund Randolph and Alexander Hamilton each rejected Madison’s theory in their opinions on the Bank’s constitutionality. The prevailing Federalist rebuttal in the First Congress is an important precedent concerning the mainstream understanding of congressional power. That rebuttal and Hamilton’s opinion are also important for an understanding of McCulloch because Marshall’s opinion drew extensively from them. 

Madison and the theory’s present advocates rely on a method of constitutional construction that is based on a negative inference: because some seemingly incidental powers were important enough to be listed as express powers, other important but unlisted powers cannot be derived by implication. Instead of being incidental, these unlisted powers are “great substantive and independent.” But the debates over the Bank refute this method of construing the scope of congressional powers. As Randolph and others observed, listed powers that are seemingly incidental of principal powers often are independent of, and cannot be derived from, the principal powers. Moreover, many of these powers were vested in the United States under the Articles of Confederation. Considerations of the separation of powers and prudence suggest why the Framers included them as powers of Congress under the Constitution.

Finally, this article examines three important powers – the use of legal tender as the nation’s currency, military conscription and the individual mandate in the Affordable Care Act – that demonstrate the doctrinal fallacy of the great powers theory. As the county has grown and changed, new great problems emerged which could not have been foreseen by the founding generation. These great problems can sometimes be solved only through the exercise of great powers. Regardless of the degree of its importance, and even if it could be characterized as “great,” an implied power is necessary and proper if it is plainly adapted to effectuating an enumerated power and does not violate a constitutional prohibition. The constitutional powers of Congress are not inversely proportional to their importance.


Our Supermajoritarian Constitution – Part I: The Supermajoritarian Features of the Constitution
Mike Rappaport

These days the main questions in constitutional theory involve questions of interpretation – in particular, whether one should follow the original meaning of the Constitution or its evolving meaning or some mixture of the two.  (One might also see this question as involving a related question – whether one’s theory of the Constitution should be about the document or about the practices of the country over time.)

But some years ago, constitutional theory focused on a different question – what is the dominant character of the Constitution.  Some people argued that the Constitution is a fundamentally democratic document, essentially allowing a majority of the country to rule, except where the process of democratic rule is subject to infirmities.  That is one way to understand John Hart Ely’s incredibly important book, Democracy and Distrust.  The apparently majoritarian features of the Constitution – that legislation can be passed by a majority of the legislature – is the strongest support for this view.

Other people argue that the Constitution is fundamentally about protecting individual rights.  These people can point to the Bill of Rights as well as the 14th Amendment as the main support for their view.  These people might also point towards the Lockean roots of the political theory that inspired the Constitution.

In my view, however, both of these views miss the mark.  While they both capture part of the truth, the dominant character of the Constitution is that it is a supermajoritarian document.  Some years ago, John McGinnis and I wrote an article making this argument.  In this and my next post, I will briefly describe the basis for our view.

There are three principal types of provisions in the Constitution, and all of them, despite first appearances, are supermajoritarian.  First, there are provisions that are expressly supermajoritarian.  Thus, officers can only be convicted as to an impeachment if two thirds of the Senate agree; a member of the legislature can only be expelled with a two thirds vote of the house; the President’s veto can only be overridden with a two thirds vote of both houses; constitutional amendments can only be passed with two thirds of both houses and three quarters of the states; and the President can make a treaty only if ratified by two thirds of the Senate.

Second, there are provisions that appear to provide absolute protections for individual rights, such as the Bill of Rights or the 14th Amendment.  But if one thinks about it, this description turns out to be false.  These individual rights protections are not absolute.  An individual right can be overturned by passage of a constitutional amendment, which can be accomplished by enactment under a strict supermajority rule.  Thus, individual rights protections are merely provisions that are protected by strict supermajority rules.

Finally, the passage of ordinary legislation by Congress, again, turns out to be best understood as passage through a relatively weak supermajority rule.  It is true (that apart from the filibuster and other legislative rules) that each house can pass a bill with a simple majority vote.  But as Buchanan and Tullock recognized, the bicameral requirement of passage functions like a supermajority rule – we can call it a quasi-supermajority rule.  Moreover, the Constitution goes beyond bicameralism to impose tricameralism, requiring that the bill be presented to the President.  Thus, passage of ordinary legislation is subject to a type of supermajority rule.

The main provisions in the Constitution – express supermajority rules, individual rights, and passage of ordinary legislation – are all supermajoritarian.  In my next post, I will discuss the purposes and context of the Constitution and show how they strongly connect with its supermajoritarian features.

A Textual Approach to Treaty Non-Self-Execution
Michael Ramsey

My new article, A Textual Approach to Treaty Non-Self-Execution (BYU Law Review, forthcoming) is now posted on SSRN.  Here is the abstract:      

Conventional wisdom holds that the doctrine of non-self-executing treaties in the United States is conceptually confused and textually unjustified. This article disagrees. It argues that a coherent, text-based approach to non-self-execution is available and consistent with the Constitution’s text and with the Supreme Court’s leading non-self-execution decision, Medellin v. Texas. 

To reach a satisfactory textual grounding for non-self-execution, it is necessary to reject two central ideas in leading non-self-execution dicta and commentary. The first is that non-self-execution means that some treaties are not supreme law of the land (or, as it is sometimes said, not part of federal law). As discussed below, that is not a possible reading of the Constitution’s text, which says that “all” treaties are the supreme law of the land (apart from treaty provisions that conflict with superior forms of law). The second is that the unilateral intentions or preferences of U.S. treatymakers can, without more, make a treaty unenforceable by courts. As discussed below, unilateral intentions and preferences cannot change the constitutional direction that judges “shall be bound” by treaties. 

Rejecting these two propositions does not, however, reject the idea of non-self-executing treaties. This article understands “non-self-executing” to describe a treaty provision that does not of its own force provide a rule of decision for a U.S. court. This result may arise in various ways, but they share a common characteristic: the treaty provision calls for an action that, in the U.S. constitutional system, is not appropriate for courts to take. In this situation, the court is directly or implicitly instructed by the treaty’s text not to implement the treaty unless another branch provides guidance. Because the treaty is binding on the courts, this direction – contained within the treaty – is also binding on the courts. As a result, non-self-execution arises from the treaty’s text in combination with the U.S. understanding of the court’s judicial power.

This article attempts to outline the textual approach to non-self-execution in a relatively brief and summary form, relying on extensive scholarship on the Constitution’s text and history relating to non-self-execution. As such, it is designed as a “restatement” of textual approaches developed in part by others but presented here in a more simplified manner. Part I of the Article sets forth the basic constitutional rules. Part II explains how non-self-execution arising from a treaty’s text is consistent with the Constitution’s categorical rules on treaties’ status as law. Part III argues that the Court’s opinion in Medellin is consistent with a textual approach to non-self-execution.

The article is part of an excellent symposium hosted by the BYU Law Review on the ALI's revisions to the Restatement of Foreign Relations Law of the United States.  There's an impressive group of contributors (including some familiar names in historical/textualist treaty scholarship such as David Sloss, Carlos Vazquez, John Parry and David Moore).  I will post further links as the contributions become available.


Stephen Griffin on New Originalism
Michael Ramsey

At Balkinization, Stephen Griffin has begun a series of thoughtful posts on New Originalism.  Here is the introduction to the first post:

In this and the next few posts, I hope to set out my approach to the theory of constitutional change and its implications for current debates on the new originalism and the viability of the idea of the “living Constitution.”  I am moved to do so by several considerations (including that I am planning a book on the subject!).  The other main consideration is that I feel I should respond to scholars who have themselves responded to my prior work, especially my article “Rebooting Originalism.”  This article was was critical of the new originalism, but was published before all of its features became fully apparent (at least to me).  So part of this is by way of catching up with the new originalism and updating my critique.  Lately it seems my name has come up a bit more than usual, especially in a recent interesting exchange between Lawrence Solum and Saul Cornell on the value of intellectual history and in Solum’s article on constitutional construction in a highly useful symposium in the Fordham Law Review.  Solum has been wonderful about mentioning my work, particularly in a Clough Center symposium at Boston College just a few months ago.  So time to return the favor, catch up on Solum’s crucially important and leading work, and set out my own distinctive position in a systematic way.  In proceeding with reference to Solum’s work, by the way, I am not trying to slight or ignore other significant work on original public meaning, including Jack’s own seminal Living Originalism.  But I feel Solum is pushing me in particular to clarify my position.  So in what follows, I will be arranging my argument around his recent work.
Another reason is that I want to justify further some just-published, fairly harsh remarks about original public meaning theory in my contribution “The Executive Power” to the Oxford Handbook of the U.S. Constitution.  With respect to pro-executive power scholarship since the 1990s, heavily reliant on original public meaning theory, I wrote that it “involves a deliberately selective approach to the use of historical evidence.  It is not a historicist theory and so does not involve the appropriate consideration of historical context.  The highly questionable consequence of original public meaning methodology is to create an alternate version of eighteenth-century history seemingly designed to bypass the most insightful and learned scholarship on the Founding Period.” (citing in particular the work of Gordon Wood and Jack Rakove)  The distinction I draw here between interpretive works that are “historicist” as opposed to “originalist” (using original public meaning theory) is certainly not obvious.  I want to say more about this.  Relatedly, it has become more evident to me that many scholars don’t see the lay of the land the way I do, specifically with respect to the importance of theories of informal constitutional change to other issues in constitutional theory, including issues of interpretation.
Here are the posts so far: 
Jack Balkin comments here: A Note on Interpretation and Construction in the New Originalism.  His post is (as usual) insightful and hard to capture in a quick excerpt, but this is especially interesting:
I have argued that the original expected application of the adopters of the Constitution and its subsequent amendments is not binding on later generations.  The original expected application consists of how the adopting generation would have understood and applied the provisions of the Constitution, in addition to the way that they would have articulated and applied the relevant principles and purposes behind the Constitution. Thus, the original expected application is not simply a set of concrete results; it also includes the ways that the adopters would have articulated and applied the purposes and principles they believed were behind the text of the Constitution.

As a result, I have a "thin" theory of original public meaning. The original public meaning consists of the semantic meanings of text, generally accepted terms of art, and any inferences from background context necessary to understand the text.  (By contrast, a "thick" theory of original public meaning  might count as part of original public meaning the way that the public (or well-trained lawyers) understood and applied the Constitution's provisions. The thicker one's conception of original public meaning, the more original expected applications tend to control the implementation of the Constitution in the present. In the limiting case, best represented by the original methods originalism of John McGinnis and Michael Rappaport, there is little or no room for construction at all; everything can and should be done through fidelity to original public meaning.)

People often confuse two very different positions about the role of original expected applications in the New Originalism.

The first position says that because these materials are not binding on future generations, interpreters may and should ignore them. These views have little or no bearing on the best construction of the Constitution today. This gives later generations complete freedom to construct the Constitution in any way they would like.

The second position is that although these materials are not binding on future generations, they are an important resource for constitutional construction. These materials are the beginning of the constitutional tradition, and therefore people today should invoke and employ them as aspects of that tradition.

I do not accept the first position, and I do not believe that most people who call themselves New Originalists do either.

I do accept the second position.


The Senate May Propose or Concur With Amendments as it Pleases?
Andrew Hyman

On August 7, the D.C. Circuit denied a request for the court to hear en banc a challenge to the PPACA (“Obamacare”) based upon the Origination Clause in Article I of the Constitution.  Several judges dissented from that denial, and Judge Brett Kavanaugh wrote that dissent.

The Origination Clause is short and sweet: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

The issue now is whether it was okay for the Senate in 2009 to completely delete every last word of an unrelated House-originated revenue bill, in order to make room for a huge amendment now called “ObamaCare” (shorthand for the “Patient Protection and Affordable Care Act" or PPACA).  Here is the part of Judge Kavanaugh’s dissent that I found most interesting:

[W]hat happens when the original House-passed bill does not contain any revenue-raising provisions at all?  Can the Senate amend such a bill to add revenue-raising provisions?  Under the prevailing view, the original House-passed bill must itself contain revenue-raising provisions in order for the Senate to permissibly add revenue-raising provisions through its amendment process.  See  James V. Saturno, Congressional Research Service, The Origination Clause of the U.S. Constitution: Interpretation and Enforcement, at 6 (March 15, 2011). But this case does not require a definitive judicial answer to that question because the original House bill here in fact contained revenue-raising provisions.

In my view, this last sentence from Judge Kavanaugh is incorrect, because the scope of the Senate’s ability to amend revenue bills is the same as its ability to amend non-revenue bills, per the last four words of the Origination Clause.  That is, the Senate can only amend revenue bills “as on” non-revenue bills.  Thus, if the Senate cannot add revenue-raising provisions to non-revenue bills, then it cannot add revenue-raising provisions to revenue bills. 

Back in October 2013, Seth Barrett Tillman addressed this same issue here at this blog. He argued against the prevailing view that the original House-passed bill must itself contain revenue-raising provisions in order for the Senate to permissibly add revenue-raising provisions through its amendment process.  Seth wrote:

The Constitution’s text does not demand that bills for raising revenue originate in the House qua as revenue bills, but only that any bill which has the character of a revenue bill prior to final passage must have originated in the House.  It follows that there is no limit at all in regard to the Senate’s amendment power.

Seth is correct (and Judge Kavanaugh incorrect) that this is a critical issue with respect to the present case about the PPACA.  But I disagree with Seth’s conclusion, because the Origination Clause does not say the following: “All Bills for raising Revenue shall have originated in the House of Representatives....” 

The framers did not want the Senate’s amendment power to be unlimited.  Their main objective was merely to arm the Senate with an ability to strip out foreign matter.  As Theophilus Parsons explained during the Massachusetts Ratification Convention: "representatives might tack any foreign matter to a money-bill, and compel the Senate to concur or lose the supplies."  Madison said basically the same thing in Federalist 58: "The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government."  But don’t take Parsons’ word for it, or Madison's word for it.  Just read the clause.

SCOTUS may or may not take this case.  I hope they do.  If so, they ought to just say what the law is and let the chips fall where they are supposed to fall.  There would be immense pressure on Congress to address the problems that were addressed in the PPACA.  The responsibility properly belongs with Congress rather than with the Court to ensure that the country has a compassionate but economical health care policy.


MIKE RAMSEY ADDS:  Rick Hasen at Election Law Blog has interesting comments on the case here, suggesting that it might have a shot at Supreme Court review.

I'm entirely in agreement with co-blogger Andrew here, and I find Judge Kavanaugh's opinion (with all respect to one of the best originalist-textualist judges on the court of appeals) baffling.  Why does it matter whether we ignore the origination clause altogether (the D.C. Circuit panel's approach) or we say that the clause applies but that it allows the Senate effectively unlimited ability to circumvent it through delete-and-replace "amendments" (which appears to be Judge Kavanaugh's approach)?  The question is, shall we treat the origination clause as imposing some meaningful limit on the Senate (as surely it was intended to do), or shall we ignore it because it's inconvenient and made somewhat pointless by the Seventeenth Amendment?

Gordon Smith on Corpus Linguistics
Michael Ramsey

At The Conglomerate, Gordon Smith: Corpus Linguistics in the Courts (Again) (discussing a recent case on interpretation from the Utah Supreme Court).  Quoting Justice Tom Lee (concurring):

In this age of information, we have ready access to means for testing our resolution of linguistic ambiguity. Instead of just relying on the limited capacities of the dictionary or our memory, we can access large bodies of real-world language to see how particular words or phrases are actually used in written or spoken English. Linguists have a name for this kind of analysis; it is known as corpus linguistics.

The fancy Latin name makes this enterprise seem esoteric and daunting. It is not. We all engage in it even if we don’t attach the technical label to it. A corpus is a body, and corpus linguistics analysis is no more than a study of language employing a body of language. When we communicate using words we naturally access a large corpus—the body of language we have been exposed to during our lifetimes—to decode the groups of letters or sounds we encounter. The most basic corpus linguistics analysis involves our split-second effort to access the body of language in our heads in our ongoing attempt to decode words or phrases we may be uncertain of. We all do that repeatedly every day.


It is a small step to utilize a tool to aid our linguistic memory. Judges do this with some frequency as well. Naturally. If judges are entitled to consult the corpus of language in our heads (and how could we not?), we must also be permitted to supplement and check our memory against publicly available sources of language.

As the post goes on to explain, the majority opinion have a sharply differing view.

(Via Eugene Volokh at Volokh Conspiracy).


Some Examples of the General Common Law
Mike Rappaport

In my last post, I noted that there has been a growing acceptance of the general common law among originalists.  One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.

Let me explore a number of cases where the common law has been recognized as legitimate by some originalists.  Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction.  The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.

But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law.  Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law.  He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.”  It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.

But the general law in diversity cases became more problematic over time.  Over time, the federal courts extended Swift to other areas where it is less clear there was a general common law and where the states may not have thought of themselves as following that law.  Thus, Erie may have been correct to eliminate the general law in many areas, even if Swift was correct as of the time it was decided.

While diversity cases involve law that the states could control if they chose to do so, there are other sources of general law that involve areas where the states are preempted by either federal constitutional or statutory law.  One of the strongest arguments against using general common law in areas where the state has applicable law is that the state law should take priority – since the state has authority to legislate in the area.  Thus, if a state clearly indicates that commercial law should be governed by state law (and Congress does not preempt that decision to the extent it has authority to do so), then state law applies.  But if the state does not have authority in an area, because either the Constitution or federal statutes have preempted its authority, then the general law might apply.

In my view, an example of this sort, where general law governs, is precedent concerning the U.S. Constitution.  This argument, with certain variations, was first made by John Harrison.  The basic argument is that there is no other source of law for such precedent (the precedent rules cannot be plausibly found in the Constitution) and that the precedent rules had the characteristics of general law.  Moreover, either the Constitution or federal statute (or both) render the state law of precedent to be invalid as applied to federal constitutional law in federal court.  (Precedent applied in state court as to federal constitutional cases is a more complicated matter.)

A new area where people attempt to argue for a common law rule is liquidation.  James Madison argued that an unclear law did not have its meaning liquidated until a series of decision had fixed its meaning.  This liquidation appears not to have been restricted to judicial decisions, but to have extended to executive and legislative decisions.  It is possible that Madion’s notion of liquidation constituted a common law rule at the time of the Framing.  In that event, it is possible that this common law – if it has not changed in the meantime – would require constitutional issues that have been applied in a series of decisions to be followed.

The difficulty with this argument, however, is fitting it into the Constitution’s system for the common law.  More specifically, the Constitution allows the general law when either the Constitution or federal law preempts state law.  But it is not clear how state law is preempted as to constitutional issues involving liquidation.

Judge Janice Rogers Brown on Standing and Immigration Nonenforcement
Michael Ramsey

An interesting concurring opinion in Arpaio v. Obama (decided Friday), in which the D.C. Circuit held that Maricopa County, Arizona, sheriff Joe Arpaio did not have standing to challenge the President's nonenforcement of the immigration law.  Judge Brown had some strong thoughts about standing doctrine and some hints about the viability of the suit on the merits:

... [T]he generalized grievance theory and related principles of contemporary standing doctrine effectively insulate immense swaths of executive action from legal challenge. Our relentless emphasis on the need to show a concrete injury caused by executive action and redressable by judicial relief makes it virtually impossible to challenge many decisions made in the modern regulatory state. Executive branch decisions crafting binding enforcement (or nonenforcement) policies, devoting resources here or there (at taxpayer expense), or creating generally applicable norms may well escape challenge. See, e.g., Hemmer, supra, at 768–69; see also Heckler v. Chaney, 470 U.S. 821, 831 (1985) (noting the “general unsuitability for judicial review of agency decisions to refuse enforcement”).

Consider this case. The Sheriff’s claims on the merits may well raise a constitutionally cogent point. Despite the dazzling spin DHS puts on the DACA and DAPA programs, a categorical suspension of existing law—distinct from the case-by-case deferrals or targeted humanitarian exemptions cited as past precedent—complete with a broad-based work authorization, arguably crosses the line between implementing the law and making it. See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 VAND. L. REV. 671, 759–61 (2014). And this is true even if the legislature aids and abets the usurpation. See generally Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009); Consolidated Appropriations Act of 2014, Pub. L. No. 113- 76, div. F., Tit. II, 128 Stat. 5, 251 (2014) (directing the Secretary of Homeland Security to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime,” but silent as to the propriety of categorically suspending existing removal laws). Neither the aggressive entrepreneurship of the executive nor the pusillanimity of the legislative branch can alter the fundamental constraints of the Constitution. See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781, 850–56 (2013); Price, supra, at 759–61. However, although it is the denial of standing rather than its grant that undermines democratic accountability in such circumstances, concerns about the efficacy of separation of powers principles can be 12 dismissed as “generalized grievances” no one has standing to challenge.

Separation of powers concerns surely cannot justify every application of the generalized grievance doctrine. By prohibiting abstract, general claims, the doctrine aims to ensure that the President’s “most important constitutional duty, to ‘take Care that the Laws be faithfully executed’” is not transferred to the courts. Lujan, 504 U.S. at 577 (quoting U.S. CONST. art. II, § 3). But what if the Chief Executive decides not to faithfully execute the laws? In that case our doctrine falls silent. Paying a nominal filing fee guarantees access to the federal courts, but challenge the executive’s decision to undermine the rule of law and you will likely find your fee wasted.

Plus this skepticism of the originalist basis of standing doctrine:

Academic accounts suggest that, from the time of the founding until the early twentieth century, “there was no separate standing doctrine at all.” Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 170 (1992); accord JOSEPH VINING, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC LAW 55 (1978) (“The word ‘standing’ . . . does not appear to have been commonly used until the middle of . . . [the twentieth] century.”); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224–25 (1988) (“[N]o general doctrine of standing existed.”). “In early practice in England and in the United States, moreover, certain forms of action, or writs, were available to all citizens without any showing of a ‘personal stake’ or an ‘injury in fact.’” Alex Hemmer, Note, Civil Servant Suits, 124 YALE L.J. 758, 764 (2014). There were limits. Namely, plaintiffs could only proceed based on a cause of action rooted in common law or statute. See Sunstein, supra, at 169–70; Fletcher, supra, at 224. The absence of a free-standing, self-conscious doctrinal approach left room to challenge the government’s failure to meet its obligations. That type of claim, “the public action—an action brought by a private person primarily to vindicate the public interest in the enforcement of public obligations—has long been a feature of our English and American law.” Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV. L. REV. 255, 302 (1961).

Via Josh Blackman, who adds:  "I think Judge Brown is right on target. In the age of non-enforcement of the law, where Congress cannot meaningfully check the action, short of impeachment (user fees pay for DAPA, so defunding doesn’t work) courts should be able to consider these constitutional violations."


George Curtis on John Phillip Reid and American Constitutionalism
Michael Ramsey

At Liberty Law Blog, George M. Curtis III (Hanover College, History): The Contest for Constitutional Liberty.  From the introduction:

In 1993 John Phillip Reid published the fourth and final volume of his Constitutional History of the American Revolution.  The subtitles for each volume are noteworthy: The Authority of Rights (1988); The Authority to Tax (1987); The Authority to Legislate (1991); and, finally, The Authority of Law.  The shelves of many American libraries, public and private, have welcomed the accumulated weight of historical explanations of the coming of American Independence with political, economic, and social templates serving as the sources of underlying causation.  Few, too few, have offered legal and constitutional analyses, an intellectual shortcoming that would have astounded, and likely angered, American whigs watching from their perch in 1775.  Of the few who have, fewer have embraced the centerpiece of Reid’s focus on the two constitutions.

This essay seeks to restate Reid’s masterly understanding of American constitutionalism in Authority of Law for two reasons.  First, Reid’s interpretation of the immediate causes of the American decision to separate from the home country demonstrates the importance of law in the determination of human affairs.  Some may well assert that the embrace of and experience with legal history and principle precede and help to give shape and meaning to political ideas.  Insofar as this holds, constitutional idea and principles become vital for an understanding of the narrative of political history.

Second, most American historians, when they do think about the American Revolution not only do not think about it in constitutional terms, but also, if they do, think only of one constitution.  Reid changed that when he called for attention to an 18th century British constitution that was in “a state of contrariety–not a state of transition, it is always in such a state, but a state of polarity.” That polarity affected the American colonies as well, and the polarity metastasized after the conclusion of the French and Indian War as Parliament, struggling to pay for the war and organize an expanded American empire, asserted constitutional power in ways destined to clash with the growing American understanding of distinctive colonial constitutional capacities.  In brief, the signing of the Treaty of Paris in 1763 signaled the end of more than “salutary neglect.”

Here's a link to Reid's Constitutional History of the American Revolution: Authority of Law (Univ. of Wisconsin Press 1993).  And here is the book description: 

This is the first comprehensive study of the constitutionality of the Parliamentary legislation cited by the American Continental Congress as a justification for its rebellion against Great Britain in 1776.  The content and purpose of that legislation is well known to historians, but here John Phillip Reid places it in the context of eighteenth-century constitutional doctrine and discusses its legality in terms of the intellectual premises of eighteenth-century Anglo-American legal values.

The Authority of Law is the last of a four-volume work, preceded by The Authority to Tax, The Authority of Rights, and The Authority to Legislate.  In these previous volumes, Reid argued that there would have been no rebellion had taxation been the only constitutional topic of controversy, that issues of rights actually played a larger role in the drafting of state and federal constitutions than they did in instigating a rebellion, and that the American colonists finally took to the battlefield against the British because of statutes that forced Americans to either concede the authority to legislate or leave the empire.

Expanding on the evidence presented in the first three volumes, The Authority of Law determines the constitutional issues dividing American whigs from British imperialists.  Reid summarizes these issues as “the supremacy issue,” “the Glorious Revolution issue,” “the liberty issue,” and the “representation issue.”  He then raises a compelling question: why, with so many outstanding lawyers participating in the debate, did no one devise a constitutionally legal way out of the standoff?  Reid makes an original suggestion.  No constitutional solution was found because the British were  more threatened by American legal theory than the Americans were by British theory.  British lawyers saw the future of liberty in Great Britain endangered by the American version of constitutional law.

Considered as a whole, Reid’s Constitutional History of the American Revolution contributes to an understanding of the central role of legal and constitutional standards, especially concern for rule by law, in the development of the American nation.


Peter Shane: Faithful Nonexecution
Michael Ramsey

Peter M. Shane (Ohio State University Moritz College of Law) has posted Faithful Nonexecution on SSRN.  Here is the abstract:      

This paper is the abstract for a work in progress that attempts to distinguish between instances of executive underenforcement of the law that contradicts the constitutional obligation to take care that the laws be faithfully executed and legal nonimplementation that is consistent with the executive’s faithful execution obligations.

(Bonus: only 3 pages).

(Related prior thoughts on immigration nonenforcement from Professor Shane here).


Andrew Coan: Implementing Enumeration
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Implementing Enumeration  on SSRN.  Here is the abstract:

The enumeration of legislative powers in Article I of the U.S. Constitution implies that those powers must have limits. This familiar “enumeration principle” has deep roots in American constitutional history and has played a central role in recent federalism decisions of the U.S. Supreme Court. Courts and commentators, however, have seldom rigorously considered what follows from embracing it. The answer is by no means straightforward. The enumeration principle tells us that federal power must be subject to some limit, but it does not tell us what that limit should be. Nor does it tell us how the Constitution’s commitment to limited federal power should be balanced against its equally clear commitment to effective national government. Finally, the enumeration principle sheds no light on the difficult questions of judicial competence and capacity raised by a principle that requires judges to craft limits on federal power out of whole cloth. These difficulties may or may not be surmountable, but no rigorous attempt to implement the enumeration principle can avoid grappling with them.


The New Originalism: The Emergence of the General Common Law
Mike Rappaport

Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought.  One is the shift from original intent to original public meaning.  Another is the shift from a focus on constraint to other justifications for originalism.  And a third is the acceptance by some of a construction zone.

I am not a fan of the way the term “the New Originalism” is used, in part because it focuses only on a few aspects of the changes in Originalist Theory.  But let’s accept the term.  There is one aspect of the New Originalism – of recent trends in Originalist Theory – that is not usually recognized: the emergence of a belief in the general common law.  This emergence relates to some of the other themes of the New Originalism – in particular a shift from a focus on constraint to accuracy about the original meaning.

Back in the 1980s, there was a leading view among originalists about the federal common law: it was unconstitutional.  This view was applied to the federal common law of Swift v. Tyson that was eliminated by Erie v. Tompkins.  This view was also applied to the “new” federal common law that emerged with Erie.  Both of these applications were justified by plausible readings of the constitutional text and connected up with the old originalism’s distrust of judicial discretion, which federal common law provides.  While Justice Scalia was one of the leaders of this approach, he was not consistent about it; I can still remember discussing with others our disappointment that the Justice had written a federal common law opinion in Boyle v. United Technologies.

But something has changed over the years.  Many originalists have come to recognize that the Framers’ generation accepted common law and that the Constitution sometimes allows general common law (in contrast to federal common law – see below).  Much of this movement has been spearheaded by people like Brad Clark, Caleb Nelson, Anthony Bellia Jr., and John Harrison.  My own work with John McGinnis has also followed this view.

The first point to be made about the new interest in the common law is to distinguish between the general common law and federal common law.  The general common law does not constitute the supreme law of the land.  And after all, how could it?  The Supremacy Clause provides that the Constitution, federal statutes, and treaties are the supreme law of the land, not federal common law.  By contrast, the modern understanding of federal common law, which is treated as Supreme Law of the Land, is unfortunately made up and improper.

The second point is that at the time of the Framing, the common law had a different meaning than it generally does today.  It was not simply “judge made law.”  It was generally thought of as real law – and therefore was properly applied where it was applicable.  And its meaning was not whatever the judge thought was good policy.  It aspired to a more objective meaning, either conforming to the customs of the people or to judicial precedents, or both.

In my next post, I will attempt to explain a bit more about how this new common law has worked its way into modern originalist approaches.

USD Law School Ranked in Top 40 Nationally for Faculty Scholarship
Michael Ramsey

The 2015 survey of U.S. law faculty scholarly impact (inspired by Brian Leiter and now conducted by a team at St. Thomas Law School headed by Gregory Sisk) has been published.  USD Law School is tied for 35th (looking quickly at the numbers I'm not sure why we're not tied for 39th, but I won't argue).  Here is the full study, and here is Brian Leiter's overview of the top 40.  As Professor Sisk et al. explain, 

This study explores the scholarly impact of law faculties, ranking the top third of ABA-accredited law schools. Refined by Professor Brian Leiter, the “Scholarly Impact Score” for a law faculty is calculated from the mean and the median of total law journal citations over the past five years to the work of tenured members of that law faculty. In addition to a school-by-school ranking, we report the mean, median, and weighted score, along with a listing of the tenured law faculty members at each ranked law school with the ten highest individual citation counts.

What does this have to do with originalism?  As the summary above notes, the survey reports for each school the ten faculty with the highest citation count.  USD's top ten includes five members of the Center for the Study of Constitutional Originalism.

A quick scan of the top-cited professors at other schools shows many well-known originalist-oriented scholars, including (and no doubt I'm leaving some out): Akhil Amar and Jack Balkin at Yale, Richard Epstein at NYU, Michael McConnell at Stanford, John Yoo at Berkeley, Steve Calabresi and John McGinnis at Northwestern, Eugene Volokh at UCLA, Randy Barnett and Larry Solum at Georgetown, Caleb Nelson and Sai Prakash at Virginia, Brad Clark at GW, Nelson Lund and Ilya Somin at George Mason, Gary Lawson at BU, AJ Bellia and Richard Garnett at Notre Dame, Kurt Lash at Illinois, Michael Perry at Emory, and Michael Paulsen at St. Thomas.

Congratulations to all, and thanks especially to our Dean, Stephen Ferruolo, for his generous support of the Center and of all scholarship at USD.


Steven Calabresi & Sofía Vickery: The Original Understanding of the Lockean Natural Rights Guarantees (with Gary Lawson Comments)
Michael Ramsey

In the Texas Law Review, Steven G. Calabresi (Northwestern) & Sofía M. Vickery (Northwestern J.D. '11) have the article On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights Guarantees (93 Tex. L. Rev. 1299 (2015)).  Here is the abstract: 

The debate as to what unenumerated rights, if any, are protected by the Constitution is directly relevant to the most controversial issues in constitutional law today—from gay marriage, to gun-control measures, to substance-control regulation, to specific personal liberties, and finally to property regulation, to name just a few. Much of the unenumerated rights debate centers on the U.S. Supreme Court’s substantive Due Process Clause case law interpreting the Fourteenth Amendment. These cases address the question of which specific rights are implicated by the protection of life, liberty, and property in the Due Process Clause of the Fourteenth Amendment. Some Justices on the U.S. Supreme Court have written or joined opinions that argue that the answer to this question can be found by looking for rights that are deeply rooted in American history and tradition at the most specific level of generality available. State constitutional case law from 1776 up to 1868 is thus potentially of great relevance to understanding American history and tradition because by 1868, the year the Fourteenth Amendment was ratified, two-thirds of the existing state constitutions contained what we refer to as “Lockean Natural Rights Guarantees,” provisions protecting life, liberty, and property and guaranteeing inalienable, natural, or inherent rights of an unenumerated rights type. In this Article, we identify and exhaustively analyze nearly a century of state case law from the time of the Founding until 1868, in which state courts interpret and apply state constitutional Lockean Natural Rights Guarantees to an enormous variety of issues. From this robust body of state constitutional case law, we conclude that the Lockean Natural Rights Guarantees in most state constitutions had great significance with respect to the abolition of slavery and the extension of civil and political rights to individuals and minority-group members living in the northern states. At the same time, with respect to property regulation, state courts struggled to give concrete meaning to the Lockean Natural Rights Guarantees in their state constitutions, and while not discounting the possibility that some regulations could violate the Guarantees, the state courts generally deferred to the legislature. This evidence suggests that “liberty,” in the context of the Fourteenth Amendment, is best understood broadly to encompass natural rights and to require that civil and political rights be extended to minorities, a finding of particular relevance to the debate on gay marriage. However, the range of issues potentially implicated by the Lockean Natural Rights Guarantees and inconsistent rulings in many areas also suggest that determining which specific rights are implicated by the protection of liberty posed the same challenge to state courts between 1776 and 1868 that present courts face today, and that the quest to identify unenumerated rights that are deeply rooted in American history and tradition is itself somewhat quixotic.

Gary Lawson (B.U.) comments: Understanding State Constitutions: Locke and Key (93 Texas L. Rev. See Also 203 (2015)).  From the introduction: 

I have long shied away from theorizing about the Fourteenth Amendment, and I do not plan to enter that thicket today. Instead, I want to offer some cautionary remarks about potential uses (or misuses) of this excellent project—remarks that I suspect the authors will consider at worst a friendly amendment, which is certainly how they are intended. Those cautions are of two types. The first type concerns the parameters of the study itself, and the second concerns the implications of that study for interpretation of the Fourteenth Amendment.


John Roberts, Roger Taney, and David Currie on Dred Scott
Andrew Hyman

I largely agree with Chief Justice Roberts’ dissent in the Obergefell case.  But one part caught my attention as being particularly problematic.  Roberts conceded that the Supreme Court had given its blessing to the doctrine of “substantive due process” prior to adoption of the Fourteenth Amendment.  Justice Scalia has made the same concession, and it is a mistake.  Here is what Roberts wrote about this subject in Obergefell:

The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.”  Id., at 450.

Here is a fuller quote from Dred Scott:

 And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.  So, too, it will be hardly contended that Congress could by law quarter a soldier in a house in a territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law.  Nor could they by law forfeit the property of a citizen in a territory who was convicted by treason for a longer period than the life of the person convicted; nor take private property for public use without just compensation.

Read the last part of that last sentence carefully.  Was Taney suggesting that slavery could be banned in federal territories provided that the government paid compensation?  Maybe so.  Law professor David P. Currie  once wrote:  “not even Taney would say that compensated emancipation would offend the due process provision” (emphasis in original).  Taney’s opinion for the Court in Dred Scott clearly stated that the Due Process Clause and all other constitutional protections have just as much force inside federal territories as they have outside.  Beyond that, Taney was unclear about the Due Process Clause.

In 1856 (only a few months before the Dred Scott case was decided), the Court unanimously said in another case: “To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? …. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions.”  Thus, if you violate the Takings Clause, then you violate the Due Process Clause.  This is not substantive due process at all.  It is the simple command of Magna Carta ringing through the ages: “No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.”   The Takings Clause is part of the law of the land, and so the government cannot deprive people without conforming to the Takings Clause.  As far as I am aware, there is no evidence that Taney meant any more than that a violation of the Takings Clause implies a violation of the Due Process Clause.

Aside from the Bill of Rights, Taney's argument for the unconstitutionality of the Missouri Compromise was based upon enumerated powers.  He argued that none of Congress's enumerated powers were sufficient for that purpose ("The only power conferred [upon Congress over slavery] is the power coupled with the duty of guarding and protecting the owner....").  The notion that the Court in Dred Scott endorsed substantive due process is a mistaken and self-defeating argument for judges to make, if they support judicial restraint; not only is it incorrect, but the alleged stigmatizing effect of Dred Scott is counteracted by other factors such as precedent, and moreover not everything in Dred Scott ought to be stigmatized (e.g. the notion that the Bill of Rights applies in areas of the country under exclusive federal control).  The fact that even the Taney Court never stooped so low as to invoke substantive due process is a much more compelling argument against that doctrine than the (incorrect) idea that it did so.

Glenn Reynolds (and Others) on Jury Nullification
Michael Ramsey

In USA Today, Glenn Reynolds defends jury nullification: Nullifying juries more interested in justice than some prosecutors.  Among other points:

As Clay S. Conrad notes in his Jury Nullification: The Evolution Of A Doctrine, to the framers of our Constitution, jury nullification was itself a feature, not a bug. Distrustful of the bureaucracy and even of the judiciary, framing-era Americans viewed a jury’s refusal to convict as an important protection for liberty. This remained the case until, Conrad notes, juries began refusing to enforce the Fugitive Slave Act of 1850, because they thought returning escaped slaves to their owners was unjust. In response, the system began trying to get around juries’ power not to convict. These efforts increased when juries were reluctant to convict labor leaders, or to enforce Prohibition. And though there were racist juries that refused to convict racist defendants in the civil rights era, Conrad notes that those juries were part of a system that also involved racist prosecutors, racist police, and racist judges.

I haven't read Conrad's book, but if his claims are correct I would think that jury nullification is constitutionally protected.  That is, it is a core aspect of the right to trial by jury that the jury be able to acquit where it believes the law is unjust.  As Renne Lettow Lerner points out in her interesting scholarship on civil juries and original meaning, it probably isn't (and couldn't be) the case that the jury clauses were intended to assure in perpetuity a jury trial that looked exactly like juries trials of 1789.  On the other hand, though, surely at least core features of the jury trail must be protected, or the right would be meaningless -- otherwise one could have a sham trial, with none of the actual protections that the clause was supposed to protect.  The jury's ability to assess the justness of the law (assuming eighteenth century juries had that ability) seems like a core feature in this sense.

As a further aside, although I know little about the original conduct of jury trials, I do know that in the neutrality prosecutions of 1793 juries refused to convict people such as Gideon Henfield (an American who served on a French ship fighting the British even though the U.S. was officially neutral in the conflict between Britain and France).  The Henfield verdict (and others like it) were interpreted at the time as the juries' rebuke to prosecutors, who had brought prosecutions for violations of neutrality even though no statute prohibited the defendants' actions.  And, people at the time generally thought the juries had acted appropriately (although the Washington administration, which brought the prosecutions, did not).

(More responses on jury nullification from Ilya Somin and Orin Kerr at Volokh Conspiracy here and here).


More on Construction: A Response to Larry Solum
Mike Rappaport

In my previous post, I raised a question about originalist theories that employ the concept of construction.  I wrote:

The existence of construction raises an important textual question.  If a matter is within the construction zone – and there is no original meaning on the question – then is it part of the Constitution?  Put differently, if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?

And then I continued:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land (since only the Constitution, federal statutes and federal treaties are supreme law of the land).  Decisions within the construction zone would arguably not be entitled to displace either state law or federal statutes.

In the remainder of the post, I explored some possible ways that those who employ construction might address this issue.

In response, my friend Larry Solum has written a helpful response.  I would recommend that readers take a look at Larry’s post, which is interesting and constructive.  Here I certainly can’t capture all of the subtleties of Larry’s view or post. 

Despite the strength of his arguments, though, I still don’t believe that Larry’s answer resolves the issue.  In answering my question (“if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?”), Larry writes:

My view is that it depends on the nature of the underdeterminacy and the method of constitutional construction employed.  For example, if a provision is vague and the method of construction is precisification, then the answer to Rapp[ap]ort's question is "Yes, the decision is based on the Constitution, but the precise line drawn is not found in the constitutional text."  Drawing the line is the method by which we give legal effect to the text.  Similarly, if the content of the provision is clear, but the constitutional text does not provide a remedy, then the answer to Rappaport's question is "Yes."  The implementing rule gives the text legal effect.

As Larry suggest, he discusses a number of types of underdeterminacy and construction methods.  But to keep it simple, I will just address this particular answer.

Larry is certainly correct that a decision implementing a vague constitutional provision is in part based on the Constitution.  But that decision is also based on something else.  For example, imagine a vague term T that has a range of possible meanings from T3 to T8.  Now, if the judge selects something outside the range of possible meanings – say T2 or T9 – his decision would violate the Constitution.  Clearly, then, the Constitution has something to say about the correctness of the judge’s decision.

But how does the judge choose among the meanings in the permissible range from T3 and T8?  By assumption, the original meaning does not decide this matter.  That decision – what Larry refers to here as the implementing rule or as giving effect to the text – is not determined by the Constitution.

What should we say about the implementing rule (or the other methods for resolving uncertainty)? One way to think about it is to ask what type of law is the implementing rule.  There are a limited number of possibilities.  Let me discuss a few.

1. One possibility is that the implementing rule is constitutional law. But if it is constitutional law, it does not derive (entirely) from the Constitution.

2. Another possibility is that it is general law (something like federal common law). But if it is general law, how can it displace federal statutes or state law? Perhaps one has a theory that Congress and the states are disabled from passing law in this area and and therefore this law has operative effect.  (Steve Sachs call this a constitutional backdrop.)  Maybe.

3. Yet another possibility is that the Constitution delegates to judges (or other decisionmakers) the power to make the decision (perhaps based on other criteria, such as common law). For example, one might argue that it is part of the traditional power of judges to implement vague constitutional provisions (perhaps in accordance with common law rules). And that power is part of what we mean by the judicial power.

There are other possibilities.  I really don’t know what the answer is.  But I think the answer is important, especially for people who believe that many questions are within the construction zone.

In the end, my point is that the meaning of the Constitution for advocates of construction is relatively narrow.  Thus, something else must supply the answer.  And what that is – and how it fits into the Constitution’s overall scheme – is not an easy question to answer.  Larry writes that one should not assume that construction involves a direct resort to normative considerations.  About this he is certainly correct.  But the question is whether any legal considerations can be applied within our constitutional scheme to answer these questions.  Perhaps they can, but perhaps they can’t.

(Cross posted at Liberty Law Bl0g) 

Michael Morley: Non-Contentious Jurisdiction and Consent Decrees
Michael Ramsey

Michael T. Morley  (Barry University School of Law) has posted Non-Contentious Jurisdiction and Consent Decrees: A Reply to Professors Pfander & Birk on SSRN.  Here is the abstract: 

Professors James E. Pfander’s and Daniel D. Birk’s bold reinterpretation of Article III’s justiciability requirements in their recent article, "Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction," 124 Yale L.J. 1346 (2015), challenges the widely accepted principle that federal courts may adjudicate only live disputes between adverse parties. Pfander and Birk provide a fascinating analysis of the various roles that federal judges and courts have played throughout American history, and offer an elegant reinterpretation of the distinction between "cases" and "controversies" under Article III. While many of their conclusions are sound, this Response contends that their proposed reinterpretation of Article III goes too far. Even assuming that Article III grants federal courts non-contentious jurisdiction to hear certain ex parte matters, it should not extend so far as to allow federal courts to become or remain involved in matters where all interested parties affirmatively agree and seek the same relief. In other words, despite their historical pedigree, Article III should not be read as conferring non-contentious jurisdiction upon federal courts to enter consent decrees. This Response begins by questioning the utility of Pfander and Birk’s primary methodology — a largely historical analysis — in the context of Article III. It goes on to argue that Pfander and Birk erred in concluding that consent decrees are a valid exercise of the judicial power under Article III. The historical and current practices from which they derive their conclusions are susceptible to an alternate analysis: for a case or controversy to exist, the interested parties must not have not reached a complete accord on all issues in a legal dispute. Indeed, even if one accepts Pfander and Birk’s arguments, consent decrees are not justiciable under their own proposed conception of non-contentious jurisdiction. This Response concludes by demonstrating that their proposed distinction between “cases” and “controversies” can have profound effects on Supreme Court jurisdiction that may, in themselves, constitute a basis for rejecting or modifying their proposal.


Daniel Rodriguez et al.: Executive Opportunism, Presidential Signing Statements, and the Separation of Powers
Michael Ramsey

Daniel B. Rodriguez (Northwestern University School of Law), Edward Stiglitz (Cornell University Law School) & Barry R. Weingast (Stanford University, Political Science) have posted Executive Opportunism, Presidential Signing Statements, and the Separation of Powers on SSRN.  Here is the abstract:

Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not legally credit signing statements; we conclude by discussing executive opportunism broadly.


Samuel Bray: The System of Equitable Remedies
Michael Ramsey

Samuel L. Bray (UCLA School of Law) has posted The System of Equitable Remedies (UCLA Law Review, forthcoming) on SSRN.  Here is the abstract:      

The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the existing equitable remedies and remedy-related doctrines can be seen as a system. The components of the system fall into three categories: (1) equitable remedies, (2) equitable managerial devices, and (3) equitable constraints. These components interact subtly and pervasively. Together, they make the system of equitable remedies well suited to controlling a defendant’s behavior, especially in ways that are open-ended and adverbial. The system of equitable remedies is a useful and integrated whole.

This argument offers some support for an emerging body of Supreme Court cases that have sharply distinguished between legal and equitable remedies — cases such as Great-West Life & Annuity Ins. Co. v. Knudson, eBay v. MercExchange, and Petrella v. MGM. Moreover, this argument helps explain why there has been so little merger between law and equity in remedies, even as merger has happened in other aspects of American law. Finally, this argument offers a new perspective on the adequacy requirement, showing that it helps maintain the system of equitable remedies.


Reverse Broken Windows
Chris Green

I have posted my contribution to a Journal of Legal Education symposium on the Ferguson report on SSRN. Here is the abstract:

On March 4, 2015, the Department of Justice released two reports related to Michael Brown’s death at the hands of Ferguson, Missouri police officer Darren Wilson on August 9, 2014. Brown’s death produced two waves of violent protests, one immediately after the shooting, lasting a few weeks, and another beginning on November 24, 2014, after a grand jury declined to indict Wilson. 

The 86-page Brown Report exhaustively considered Brown's shooting itself, exonerating Wilson, but the 105-page Ferguson Report unearthed a a great number of racial disparities in the practices of the Ferguson police department and municipal court.

This very brief essay considers some of the implications of the Ferguson Report for how we understand the Brown Report, particularly the amazing number of witnesses initially claiming to have seen spectacular police misconduct. In short, it seems quite likely that police misbehavior over relatively low-level issues, like stop-and-frisk and arrest practice, led huge parts of the black community to disbelieve police and grand-jury assessments of the Brown-Wilson situation, encouraging the August and November waves of violence. 

The “broken windows” theory of social order holds that maintaining order on high-level issues like murder, vandalism, and assault requires the maintenance of order on low-level issues like jaywalking, trespassing, public drunkenness, and the like. A corresponding theory, I suggest, applies to perceptions of police legitimacy: the maintenance of law-enforcement officials’ credibility with respect to the most serious accusations of misbehavior — i.e., whether a police officer would summarily execute an unarmed black man like Michael Brown posing no threat to the officer — depends on police credibility with respect to everyday practices like stop-and-frisk policy. Police officers must defend themselves when attacked, and their work protecting crime victims is the first duty of government. But police cannot perform their most critical protective tasks without the trust of the citizenry, and that trust depends on police performing even their most minor tasks fairly and equitably. That did not happen in Ferguson.

Alan Dershowitz on the Iran Deal
Michael Ramsey

In USA Today, Alan Dershowitz has a surprisingly originalist assessment of the Iran deal: Mr. Obama, your Iran deal will fall apart.  (Via Elizabeth Price Foley at Instapundit).

From the introduction:

The Framers of our constitution probably would have regarded the nuclear deal with Iran as a “treaty,” subject to a two thirds ratification by the Senate. At the very least they would have required Congress to approve the agreement by a majority vote. It is unlikely that it would have allowed the President alone to make so important and enduring an international agreement.

If President Obama doesn't treat the Iran agreement with more respect, all his arguments today are beside the point. The agreement won't have the force of law.

Article II, section two of the Constitution states that the president “shall have the power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur…”  Although the Constitution did not provide a clear description of the types of international agreements the Framers viewed as “treaties,” there is evidence that they included significant and long-term commitments with foreign countries. Some early versions of the Constitution allocated treaty-making powers solely to the Senate, but Alexander Hamilton argued that “joint possession of the power in question, by the President and Senate, would afford greater prospect of security, than the separate possession of that by either of them.” He thought it unwise to give a single person all the power to shape the country’s relationship to the rest of the world. He believed that the public is much better protected from abuse under the Constitution than it was under the Articles of Confederation, which rested the power solely in the hands of Congress.

Bonus: citation to Vattel on the original meaning of "treaty."

Professor Dershowitz concludes:

Let us never forget that America is a democracy where the people ultimately rule, and if the majority of Americans continue to oppose the deal, it will ultimately be rejected, if not by this administration, th[e]n by the next. An agreement, as distinguished from a treaty[,] does not have the force of law. It can simply be abrogated by any future president. ...

I noticed that in last night's Republican presidential debate, all of the candidates that spoke to the issue said or implied that they would terminate the deal, without any suggestion that there might be domestic or international legal barriers to doing so.

Also I noticed that President Obama, in his speech at American University, called the deal a "detailed arrangement" -- which sounds like legal jargon for a nonbinding agreement.  (But he also said that the arrangement "permanently prohibits Iran from obtaining a nuclear weapon."  Well, if it's a nonbinding arrangement it doesn't "prohibit" anything; it only says that we will lift sanctions if Iran follows its guidelines.)


New Book: Oxford Handbook of the U.S. Constitution
Michael Ramsey

Recently published by Oxford Univ. Press: The Oxford Handbook of the U.S. Constitution (Mark Tushnet, Mark Graber & Sanford Levinson, eds., 2015).  Here is the publisher's book description:

The Oxford Handbook of the U.S. Constitution offers a comprehensive overview and introduction to the U.S. Constitution from the perspectives of history, political science, law, rights, and constitutional themes, while focusing on its development, structures, rights, and role in the U.S. political system and culture. This Handbook enables readers within and beyond the U.S. to develop a critical comprehension of the literature on the Constitution, along with accessible and up-to-date analysis. 

The historical essays included in this Handbook cover the Constitution from 1620 right through the Reagan Revolution to the present. Essays on political science detail how contemporary citizens in the United States rely extensively on political parties, interest groups, and bureaucrats to operate a constitution designed to prevent the rise of parties, interest-group politics and an entrenched bureaucracy. The essays on law explore how contemporary citizens appear to expect and accept the exertions of power by a Supreme Court, whose members are increasingly disconnected from the world of practical politics. Essays on rights discuss how contemporary citizens living in a diverse multi-racial society seek guidance on the meaning of liberty and equality, from a Constitution designed for a society in which all politically relevant persons shared the same race, gender, religion and ethnicity. Lastly, the essays on themes explain how in a "globalized" world, people living in the United States can continue to be governed by a constitution originally meant for a society geographically separated from the rest of the "civilized world." Whether a return to the pristine constitutional institutions of the founding or a translation of these constitutional norms in the present is possible remains the central challenge of U.S. constitutionalism today.

Mark Graber has an overview of the book at Balkinization.

Thanks for the pointer to Saul Cornell, who adds:

The new Oxford Handbook  includes an essay by Jamal Greene on interpretation  that has a pretty extensive treatment of originalism--critical but engaged--but you may differ in your view.  Many of the  other essays obviously touch on issues that intersect with originalist scholarship. I think there are even a few card carrying originalists among the authors ...