Anita Krishnakumar: The Sherlock Holmes Canon
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted The Sherlock Holmes Canon (64 Geo. Wash. L. Rev., forthcoming (2015)) on SSRN.  Here is the abstract:

Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a statutory interpretation would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend that interpretation. Failure to comment arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention — and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon. This essay examines how courts employ the Sherlock Holmes canon in practice and explores the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.


Ernest Young: Federalism as a Constitutional Principle
Michael Ramsey

Ernest A. Young (Duke University School of Law) has posted Federalism as a Constitutional Principle (University of Cincinnati Law Review, forthcoming) on SSRN.  Here is the abstract:

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and institutional checks powered by political opportunism are important in maintaining the federal system, that system is unlikely to survive and flourish unless Americans continue to feel a meaningful degree of loyalty to their states as distinctive political communities.

Also from Professor Young:  The Volk of New Jersey? State Identity, Distinctiveness, and Political Culture in the American Federal System.  Here is the abstract:

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and psychological support to sustain itself.

This article is the first comprehensive effort to assess whether contemporary American states are meaningfully distinctive from one another and whether contemporary Americans identify with their states. The death of state identity is an empirical claim, but no proponent of that claim has ever marshalled empirical evidence to support it. It is also a claim unique to legal scholarship: Scholars in political science, history, economics, cultural psychology, and other disciplines have developed extensive literatures on state political cultures. This article surveys those literatures and collects evidence on the states’ geographic, demographic, and policy diversity, states’ impact on political preferences, relative trust in state and federal institutions, state’s distinct historical narratives, and the impact of individual mobility among the states. I conclude that reports of the death of state identity are greatly exaggerated — and that has important implications for American federalism.


Michael Stokes Paulsen & Luke Paulsen: The Great Interpreter
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) and Luke Paulsen (Princeton University '14) have posted The Great Interpreter (First Things, 2015, forthcoming) on SSRN.  Here is the abstract:      

This essay examines the constitutional legacy of President Abraham Lincoln, the most important constitutional interpreter in our nation's history. The Civil War was -- in addition to so much else -- a defining act of national constitutional interpretation. The war was fought over fundamental questions of the Constitution's meaning, and over who would have final authority to determine that meaning. The most significant issues of antebellum constitutional dispute -- the present and future status of slavery; the question of who possessed constitutional power to determine that status; the nature of the "Union" and the question of whether a state lawfully could secede; matters of national-versus-state constitutional supremacy and "sovereignty" -- received their final "adjudication" not in any court of law but on the battlefields of the Civil War. It was the case of Grant v. Lee, reduced to final judgment at Appomattox Court House 150 years ago, that constituted the nation's determination of these issues, and that determined also the entire constitutional future of the United States. None of this would have happened had Lincoln not considered himself bound by his oath to advance his independent constitutional views concerning Dred Scott, slavery, Union, national constitutional supremacy, and presidential military powers -- views that frequently placed him at odds not only with the views of nearly half the nation, but often with the Supreme Court as well.


Two Questions on Congress' Power to Declare Natural Birth
Michael Ramsey

Jim Henderson (Just Sayin) sends these questions on the presidential eligibility clause:

If Senator Cruz’s eligibility depends upon his attaining “natural born citizen” status as the result of a grant of that status by Congress, what provision of the Constitution empowers Congress to do so?  

I realize the obvious answer should be the Naturalization Clause. The recent discussions [by Neal Katyal and Paul Clement] offer that the English parliamentary expansions of “natural born subject” status lend credence to a view that the Framers intended to afford to Congress, within the power to provide a uniform rule of naturalization, the power to declare persons not “natural born” by circumstance and common law, to be “natural born” by statutory status. This argument has an appeal, but as I contemplated the possibility that the Constitution extended such a power to Congress, additional questions arose. One I will refer to as the Presidentinator Question. The other is the more common limited powers question.

As to the limited powers question, we know, and should agree, that the general government set up under the Constitution is one of limited, donated, express powers. So given the more common and general understanding of “naturalization,” why isn’t the correct construction the obvious one? By obvious, I do mean the one limited to the power to make citizens of aliens.

As to the Presidentinator Question, what principle that can be justified in the law, in the history of the law, that would confer a power on Congress to create statutory “natural born citizen” status for certain categories of individuals, sufficient to meet the Qualifications Clause requirements of Article II, but that would not also empower Congress to pass this amendment to the Naturalization Act:

”Any naturalized citizen of the United States, having been elected to serve as the Governor of one of the States, shall have the status of, and in all respects be considered,  a ‘Natural Born Citizen.’”

(Note: here is his initial post on the Cruz question, and a followup here).

On the first point, Parliament's power to convey "natural born" status on those who were not natural born subjects under the common law was understood as part of its naturalization power.  The acts that conveyed that status were called acts to "naturalize" certain persons or groups of persons.  As a result, the founding generation in America likely understood the power to make a "Rule of Naturalization" as including the power to declare by statute who might be a citizen (naturalized) by birth.  And, as confirmation, the 1790 Act that made such a declaration was called a "Naturalization" act. 

The second question is a whole lot harder.  I suppose one could say that Congress does have this power (that is, to declare someone with no connections to the United States at birth to be, retroactively, a natural born citizen).  But that would be highly problematic in terms of how we understand the purposes of the presidential eligibility clause.  If the purpose of the clause was to prevent European noblemen (including, perhaps, specific European noblemen) from scheming to become President, that purpose would not be served if Congress could declare them natural born citizens retroactively.  They would just need to scheme to obtain the requisite declaration from Congress.  So I accept the premise of the question, which is that the clause should not be read to give Congress such a power.

One possibility is to say that the power to declare natural birth cannot be exercised retroactively. Unfortunately, there is no historical basis for that proposition.  The English statutes declaring natural-born status for persons born abroad were frequently retroactive (e.g., 4 Geo. II, ch. 21 (1731)).  That is, they said that persons born in specified circumstances were declared to be natural born subjects, whether already born or born in the future.  (The statute of 4 Geo. II, ch. 21 conveyed natural-born status on persons "born ... or which shall hereafter be born" abroad to an English father).   And some of the statutes conferred natural born status on specific living people.  Since the whole basis for Congress' power to declare natural birth stems from Parliament's power to declare natural birth, I see no way to say Congress' power can't be retroactive when Parliament's power obviously was.

My answer instead is this: Congress is limited to recognizing natural-born status for people with some connection to the United States at birth.  That limit is established by Parliament's practice, which was only to convey natural born status upon persons born abroad whose parents (or at least one of them) were English subjects.  Parliament never passed a naturalization statute anything like the one posed in the hypothetical above (with one exception).

The exception is significant and confirms the general practice.  In the 1708 naturalization statute (7 Anne, ch. 5 ), Parliament gave natural born status to all European protestants who would move to England and take allegiance to the English monarch.  But this grant was repealed three years later because of “divers Mischiefs and Inconveniences,” see 10 Anne ch. 9 (1711), and was not repeated.  I think it plausible to conclude that the 1708 Act was regarded as in excess of Parliament's proper naturalization power, and that the general view saw Parliament's (and thus Congress') power to declare natural birth as limited to persons with connections through their parents at birth.

So my answer to the second question is that the hypothetical statute is unconstitutional because it conveys natural born status on someone who had no connection to the United States at birth -- a power not generally exercised by Parliament and thus not included in Congress' naturalization power.

Cass Sunstein: How Star Wars Illuminates Constitutional Law (and Authorship)
Michael Ramsey

At the New Rambler, Cass Sunstein (Harvard) has this review of  How Star Wars Conquerer the Universe: The Past Present, and Future of a Mulitbillion Dollar Franchise, by Chris Taylor (Basic Books 2014): How Star Wars Illuminates Constitutional Law (and Authorship).

(Thanks to Michael Perry for the pointer).


Taking Raisins at the Supreme Court
Michael Ramsey

Today the Supreme Court hears oral argument in the raisin taking case, Horne v. Department of Agriculture.  George Will comments (harshly) here, beginning: 

In oral arguments Wednesday, the Supreme Court will hear the government defend its kleptocratic behavior while administering an indefensible law. The Agricultural Marketing Agreement Act of 1937 is among the measures by which New Dealers tried and failed to regulate and mandate America back to prosperity. Seventy-eight years later, it is the government’s reason for stealing Marvin and Laura Horne’s raisins.

Additional comments, quotes and links here from Elizabeth Price Foley.  Some earlier thoughts on this blog here.  Also, video from Ilya Somin and the Daily Show (via Eugene Volokh) (really).

Originalism bonus: Michael McConnell (Stanford) is counsel for the petitioners.


Is Marco Rubio a Natural Born Citizen?
Michael Ramsey

Recently-announced presidential candidate Marco Rubio was born in the United States but his parents were not U.S. citizens.  Does that make him a natural born citizen under the presidential eligibility clause?

My answer is, in a word, yes.

As I (and others) have argued in connection with Ted Cruz's candidacy, the most likely source of the "natural born" phrase in the eligibility clause is English law -- specifically, English law's designation of "natural born subjects."  Rubio's case is easier than Cruz's because English common law was clear that birth within sovereign territory was sufficient to make one "natural born."  (Cruz's case depends -- although I think convincingly -- on the treatment in English statutory law).

As Blackstone explained (Commentaries, vol. 1, pp. 354-55):

The first and most obvious division of the people is into aliens and natural-born subjects.  Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligence, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.  Allegiance is the tie, or ligament, which binds the subject to the king, in return for that protection with the king affords the subject.  The thing itself, or a substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

Because the status was "founded in reason and the nature of government" it arose from natural law -- hence "natural" born subject.  Later he emphasized that this rule encompassed children of aliens: “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." (Commentaries, vol. 1, pp. 361-62).  An exception existed for children of foreign diplomats, but that exception only confirmed the general rule that children of non-diplomat aliens were natural born English subjects if born in England.

A later commentary confirms:

By the common law all persons born within the power or protection of the Crown owe natural allegiance to the King, and are natural-born subjects of the realm, while all born out to the allegiance or protection of the King are aliens born, and remain aliens unless they are subsequently made denizens or naturalized.  For the law of England had always adopted to feudal or territorial principle of determining nationality by the place of birth alone.

Henry S.Q. Henriques, The Law of Aliens and Naturalization, p. 29 (1923) (and further, at p. 63: “the general effect [of the common law rule] is, that persons born within the dominions of the King, whether of English or foreign parents, are natural-born subjects, and that persons born without his dominions are aliens.”

There are, as I understand it, two possible counterarguments.  First, as discussed in an earlier post, perhaps Blackstone was wrong (that is, wrong about English common law).  He might have been (he was wrong about a number of aspects of English law).  But I also think that's probably irrelevant.  Blackstone is very clear on the point, and to the Framers Blackstone was a definitive account.   The meaning of the eligibility clause arises from the way "natural born" was understood in late eighteenth century America, not from what it actually meant in earlier English history.

A second counterargument is that we should not look to Blackstone or English law at all, but rather to continental understandings of natural law, and specifically to Emer de Vattel's 1758 treatise Law of Nations.  (See, for example, this law review note, relying on Vattel, and also here).  Vattel adopted the common European view (going back at least to Rome) that citizenship turned on ancestry not on the place of birth.  The key passage is this one (book I, ch. XIX, § 212) (1797 translation):

The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages.  The natives, or natural born citizens, are those born in the country, of parents who are citizens.  As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. .. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.  [Note that an earlier translation of Vattel, although to the same effect, did not use the phrase "natural born".]

If this is the source of the Framers' understanding, it would be problematic for Rubio; but the evidence tying Vattel to the eligibility clause is thin.  It's true that the Framers read Vattel and that he influenced their thinking about the law of nations.  But I'm not aware of any surviving evidence of anyone at the time referencing Vattel in connection with the eligibility clause or the phrase "natural born." (Of course, records might have been lost -- in any case there does not seem to have been a broad understanding in this direction.)  Further, post-ratification commentary seems instead generally to adopt the Blackstone view.  For example, St. George Tucker' s 1803 treatise observes:

Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration.

While some doubts did seem to persist regarding, for example, children born in the United States whose parents were only temporarily present, it seems clear that children whose parents had moved permanently to the United States were broadly considered "natural born" if born there.  As a result, the tie to Vattel seems speculative at best, and contrary to the apparent common view in the immediate post-ratification era.

So Rubio's case seems clear to me (but I'm open to counterarguments).

Eugene Volokh on Reading Madison
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh has another post on the challenges of reading eighteenth-century language, in this case James Madison (supposed) quote form Federalist 51:  "What is government itself, but the greatest of all reflections of human nature?"

Actually, as Professor Volokh points out, the quote is "What is government itself, but the greatest of all reflections on human nature?" -- and that likely meant something different from what it appears to mean to the modern ear.


Michael Paulsen on Justice Scalia's Worst Opinion
Michael Ramsey

At Public Discourse, Michael Paulsen (St. Thomas): Justice Scalia’s Worst Opinion.  He goes with Employment Division v. Smith:

Smith produces a strangely ironic reading of the Free Exercise Clause. According to this view of the Constitution’s protection of the “free exercise” of “religion,” there is nothing constitutionally special about the free exercise of religionReligion is just one other thing that might get in the way of government’s ordinary powers, no different in kind from any other set of beliefs or preferences that might be opposed to government policy. The right to the free exercise of religion is not a substantive freedom.  It confers no constitutional immunity from government interference. The Free Exercise Clause is merely a non-discrimination rule. Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.


Smith’s rule is not completely implausible, but it is wrong. The text of the Free Exercise Clause protects the “free exercise” of religious faith. That rather plainly makes religious freedom a substantive liberty, not a mere nondiscrimination requirement.

The text singles out religion for unique protection. Constitutionally, this means that religious exercise is not a category of conduct to be treated the same way as anything else. In addition to the text itself, there is considerable historical evidence to suggest that this was the original understanding of the Free Exercise Clause. As the distinguished religious liberty scholar Michael McConnell has demonstrated, the framers’ understanding of religious liberty prominently included the idea that such a liberty could, and often would, require exemption from the application of the ordinary laws of the secular state.

My focus is separation of powers and federalism, so my pick is Whitman v. American Trucking  -- among majority opinions, that is; for all opinions, how about the concurrence in the judgment in Gonzales v. Raich?  (I'm open to other nominations ....).

Also forthcoming from Professor Paulsen (with his son Luke Paulsen): The Constitution: An Introduction (Basic Books, May 2015).  Here is the book description from Amazon: 

From war powers to health care, freedom of speech to gun ownership, religious liberty to abortion, practically every aspect of American life is shaped by the Constitution. This vital document, along with its history of political and judicial interpretation, governs our individual lives and the life of our nation. Yet most of us know surprisingly little about the Constitution itself, and are woefully unprepared to think for ourselves about recent developments in its long and storied history.

The Constitution: An Introduction is the definitive modern primer on the US Constitution. Michael Stokes Paulsen, one of the nation’s most provocative and accomplished scholars of the Constitution, and his son Luke Paulsen, a gifted young writer and lay scholar, have combined to write a lively introduction to the supreme law of the United States, covering the Constitution’s history and meaning in clear, accessible terms.

Beginning with the Constitution’s birth in 1787, Paulsen and Paulsen offer a grand tour of its provisions, principles, and interpretation, introducing readers to the characters and controversies that have shaped the Constitution in the 200-plus years since its creation. Along the way, the authors provide correctives to the shallow myths and partial truths that pervade so much popular treatment of the Constitution, from school textbooks to media accounts of today’s controversies, and offer powerful insights into the Constitution’s true meaning.

A lucid and engaging guide, The Constitution: An Introduction provides readers with the tools to think critically and independently about constitutional issues—a skill that is ever more essential to the continued flourishing of American democracy.

(With strong blurbs from, among others, Robert George and Steven Calabresi).


Jack Balkin: Constitutional Interpretation and Change in the United States
Michael Ramsey

Jack Balkin (Yale University - Law School) has posted Constitutional Interpretation and Change in the United States: The Official and the Unofficial on SSRN. Here is the abstract:

This lecture, given at the Institut Villey in Paris, describes the processes of constitutional change in the American political and legal system.

The first part of the lecture briefly summarizes the theory of framework originalism featured in Living Originalism.

The second part of the lecture explains how the American constitutional system actually changes in practice, emphasizing two kinds of contributions to constitutional development. The first are the official contributions of laws and judicial doctrines. The second are the unofficial contributions of political parties and civil society, expressed through political mobilization, social influence, and cultural change.

American constitutional development features a dialectic of legitimation. Efforts by the political branches to build out state functions, and efforts by civil society groups to make constitutional claims spur constitutional controversies. These controversies, in turn, may generate judicial doctrine that legitimates or holds illegitimate what political actors have done. Even when courts strike down particular laws or practices, their decisions may lead to other pathways for achieving political goals that will later be declared legitimate.

The dialectic of legitimation explains the point of judicial review in the American constitutional system. Judicial review does not simply constrain or limit state power; rather judicial review legitimates, shapes and redirects political power. Indeed, modern democracies with judicial review are able to project power in ways that earlier states could never have imagined.

The third part of the lecture explains why American constitutional theory appears to feature an opposition between living constitutionalism and originalism, an opposition which is actually illusory. Both calls for a return to original meaning and assertions that Americans have a living constitution are responses to the same phenomenon—the recognition that the world that produced the ancient constitution has dissolved. This is the experience of constitutional modernity.

Constitutional modernity generates equal and opposite responses, which have been offered by both liberals and conservatives in the twentieth and twenty-first centuries-- the need to cleave to the past and its symbols and concrete manifestations, and the need to transcend the past through pragmatic adaptation to a changed world.


The CAC amicus brief in Obergefell
Chris Green

As Mike Ramsey notes, the Cato Institute and the Alexander group were not the only Obergefell amici to discuss the original meaning of the Equal Protection Clause.  David Gans's Constitutional Accountability Center also considered the issue, as Gans elaborates here. It is striking, however, how little of the CAC's evidence helps us learn what the words "nor deny to any person within its jurisdiction the equal protection of the laws" expressed during Reconstruction, the issue I discuss here and here.  

The CAC cites first at p. 12 the Joint Committee on Reconstruction's reference to "the civil rights and privileges of all citizens in all parts of the republic," a close paraphrase of the guarantee of the "privileges or immunities of citizens of the United States," rather than the Equal Protection Clause. Next, the CAC cites at p. 13 Thaddeus Stevens and Jacob Howard's references to caste legislation and equality on the much-quoted pages 2459 and 2766 of the Congressional Globe. It is true that, like the CAC,  most readers assign these discussions to the Equal Protection Clause, but as I have argued at length (see, e.g., here, citing my earlier discussions), Stevens and Howard can each can be read instead to refer to the Privileges or Immunities Clause.  The CAC then quotes Henry Raymond's paraphrase (on the somewhat-less-quoted page 2502) of both the Privileges or Immunities and Equal Protection Clauses: "securing an equality of rights to all citizens of the United States, and of all persons within their jurisdiction."  If anything, Raymond assigns priority to the Privileges or Immunities Clause in securing equality.

Like Cato (see here, also noting CAC's additional evidence), CAC at p. 19 cites newspaper evidence from the Chicago Tribune and Cincinnati Commercial, but this evidence plainly describes Fourteenth Amendment equality in terms of the privileges of citizens, rather than the language of the Equal Protection Clause.

Moving beyond 1866, the CAC cites at pp. 12-13 relatively late cases--the Civil Rights Cases from 1883, and Yick Wo from 1886. At pp. 13-14, however, CAC mentions an earlier case--Justice Field's reference to "hostile and discriminating legislation" as a circuit justice in the prisoner-haircut case, Ho Ah Kow v. Nunan, in 1879.  That should ring a bell for scholars of the Privileges or Immunities Clause, for Justice Field used the same phrase--"hostile and discriminating legislation"--to describe the Clause's prohibition in his Slaughterhouse dissent.  Moreover, even in Ho Ah Kow, Field stresses first the Privileges or Immunities Clause, not the Equal Protection Clause, in explaining why the Fourteenth Amendment contains such a ban.  The quotation of Ho Ah Kow in the CAC brief at p. 14, for instance, refers to the "fourteenth amendment," rather than specifically to the Equal Protection Clause. (For more on Ho Ah Kow in the context of other opinions from Justice Field, see here at p. 286.) Justice Field is a very unlikely source for justification of the use of the Equal Protection Clause, rather than the Privileges or Immunities Clause, as the Fourteenth Amendment's generic guarantee of equality.

As I mentioned in discussing the Cato brief, the difference between using the Privileges or Immunities Clause and the Equal Protection Clause as a grounding for a ban on class or caste legislation may not matter much in Obergefell.  For textualists, originalists, and anyone else who cares about precision in our discussions of "text and history," however, the difference matters a great deal.

Keith Whittington: State Constitutional Law in the New Deal Period
Michael Ramsey

Keith Whittington (Princeton University - Department of Politics) has posted State Constitutional Law in the New Deal Period (Rutgers Law Journal Forthcoming) on SSRN. Here is the abstract:

The 1930s is generally understood to be a period of constitutional revolution in the United States, with a restrictive conservative U.S. Supreme Court giving way to a latitudinarian liberal Court. The politics of judicial review and the substance of constitutional law in the states has rarely been considered. This article begins to integrate the states into the broader story of American constitutional development in these pivotal years. Focusing on a sample of four state courts between 1925 and 1945, this article argues that the U.S. Supreme Court and the struggle over federal constitutional law may have been more idiosyncratic and exceptional than typical of the constitutional politics of the period. Judicial review in the state courts and the elaboration of state-level constitutional law are characterized by continuity rather than transformation during this period. State courts were able to routinely use the power of judicial review to invalidate legislation across this time period, but they rarely found themselves obstructing the core policies being advanced by the other parts of the state governments.


Thomas Colby & Peter Smith: The Return of Lochner
Michael Ramsey

Thomas Colby (George Washington University Law School) and Peter Smith (George Washington University Law School) have posted The Return of Lochner (Cornell Law Review, Vol. 100, No. 527, 2015) on SSRN. Here is the abstract:

For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing. We believe that conservatives are ready, once again, to embrace Lochner — although perhaps not in name — by recommitting to some form of robust judicial protection for economic rights. Our second claim is that this impending change has been greatly facilitated by important modifications to the theory of originalism, which has served for nearly a half century as the intellectual framework for conservative legal thought. That intellectual framework has been evolving for decades, and it has now evolved to the point where it can plausibly accommodate claims that the Constitution protects economic liberty. These developments are revealing about how legal movements evolve generally. Sometimes the courts change the doctrine, and the theorists scramble to keep up. This is, roughly speaking, what happened with liberal legal thought in the second half of the twentieth century. Just when liberal legal theorists, reeling from the Lochner era, had settled on the view that the courts should exercise judicial review very sparingly — and perhaps never to enforce rights not specifically identified in the Constitution — the liberal Court began to exercise judicial review more frequently and aggressively, often to protect rights not clearly identified in the Constitution. Liberal theorists then struggled for years to develop an account of the appropriate judicial role that condemned Lochner but legitimized later cases protecting fundamental rights and vulnerable minorities. Modern conservative legal thought seems to be following the opposite progression: the theorists lead, the opinion leaders gradually sign on, and judges eventually follow. Whereas liberal judges created constitutional doctrine in the absence of a metatheory of constitutional interpretation — essentially building the house before the architectural blueprints were completed — conservatives have patiently waited for the theory to come together — for the blueprints to be drawn — before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground.


More on the Constitution and the Corker-Menendez Bill
Michael Ramsey

At Breitbart, Joel Pollack argues that the Corker-Menendez bill (officially the Iran Nuclear Agreement Review Act) would "gut[ ] the Senate’s constitutional power over treaties":

[The] Treaty Clause of the Constitution (Art. II, Sec. 2, Clause 2): “The President…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”. Instead, the legislation grants both houses of Congress the ability to approve an Iran deal by majority vote. That is a significant, and possibly unconstitutional, lowering of the bar.

(Via Elizabeth Price Foley at Instapundit, who has more comments and links here, and has further thoughts here).

In a prior post I explained why I think the bill itself is not a problem -- briefly, it only affects the President's ability to lift sanctions and does not speak (directly) to the agreement as a whole.

At the same time, I'm sympathetic to the post, because (a) it's correct that if the deal is going to be a binding agreement it should be a treaty, and (b) even though the Corker-Menendez bill does not directly set up Congress to approve the deal, people may argue that it does so implicitly.

In my view the key to keeping the situation (somewhat) constitutional goes back to Senator Cotton's letter of a couple of weeks ago.  So long as the impending deal is a nonbinding arrangement, it's (sort of) constitutional without the Senate or Congress approving.  Indeed, under the relevant statutes as I understand them the President could lift the sanctions on his own authority without any deal with Iran at all, as gesture of good faith.  The key (as Senator Cotton tried to make clear) is that with a nonbinding agreement the current Congress, or the next President, could put the sanctions back in place.  But that depends on everyone understanding that the deal is nonbinding.

Related: Greg Sargent comments on the revised version of the bill here.  The revisions do not appear to affect my view of it.

David Gans on Originalism in the Marriage Equality Cases
Michael Ramsey

At Balkinization, David Gans: Originalism in the Marriage Equality Cases. Here is an excerpt:

Jack recently highlighted a pair of dueling amicus briefs in the upcoming marriage equality cases, one filed by the CATO Institute and one by a number of “Scholars of Originalism,” that raise important questions about originalism as a form of constitutional interpretation.   These briefs debate whether original meaning or original understanding has pride of place in constitutional interpretation, what Jack calls “yet another example of the continuing debates within originalism over who has the best version.”  Jack argues that the back and forth in these briefs, and particularly the agreement that Romer v. Evans correctly interpreted the Equal Protection Clause, shows that “we are all living originalists now.”  In a thoughtful, nuanced reply, Steve Smith, one of the professors who joined the “Scholars of Originalism” brief, agrees with Jack that “original meaning cannot simply be equated with ‘original expected applications,’” but otherwise resists the pull of Jack’s view of “living originalism.”

Other amicus briefs filed in the marriage equality cases do a deeper dive into the text and history of the Fourteenth Amendment, debating what the history shows.  The brief filed by my organization, the Constitutional Accountability Center, lays out the original meaning of the Amendment, illustrating that the text, drafting history, and debates over the Fourteenth Amendment all demonstrate that the constitutional guarantee of equal protection establishes a broad guarantee of equality designed to protect all persons from state-sponsored discrimination.  (The CATO brief covers some of this ground as well, though its brief focuses more on the development of equality principles in antebellum America).  Under the text and original meaning of the Fourteenth Amendment, the Amendment’s guarantee of equality applies to all gay men and lesbians who wish to exercise their right to marry the person of their choice.  


Matthew Franck (and Me) on Due Process
Andrew Hyman

Professor Matthew J. Franck has a recent article posted online, titled "What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over 'Substance' versus 'Process,'" American Political Thought, Vol. 4, No. 1, Winter 2015.  It is also available at this link.  

Professor Franck is correct to say that the "policy judgment role now routinely assigned to the courts under the rubric of substantive due process" is not legitimate.  However, I am not quite convinced by his particular route to that conclusion, and he gives a much broader scope to due process than seems warranted.  
As I see it, Professor Franck sets up something of a straw man by suggesting that the corresponding "law of the land" clause in Magna Carta would have allowed the King to freely take or destroy life, liberty, and property, unless the word "law" satisfies principles such as being purely prospective and generally applicable.  I have two primary reactions: (1) the British parliament regularly made laws that violated those principles without believing that it was modifying or deviating from Magna Carta or allowing the King to do so; and (2) Edward Coke's leading treatise on this subject defined "law of the land" in such a way as to avoid absolute power in the King while also avoiding the principles described by Professor Franck --- and to a limited extent described by Daniel Webster if not by the courts before which Webster was arguing.  (I note that this year is the 800th anniversary of Magna Carta, which remains partly in force to this day in Great Britain.)
As to point #1 above, Professor Franck discusses (at page 26) the U.S. Supreme Court's 1884 opinion by Justice Stanley Matthews in Hurtado v. California, but overlooks the Hurtado Court's accurate description of old English law: "bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history were never regarded as inconsistent with the law of the land...."
As to point #2 above, the Court's opinion in Hurtado accurately quoted the old English jurist Edward Coke, who wrote of the clause in Magna Carta: "no man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England."  By definition, none of those types of law included the law of the King.  As Coke wrote elsewhere: "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them."  In other words, adopting a Webster-Franck-type definition of "law" is unnecessary to give teeth to Magna Carta, or to our Fifth and Fourteenth Amendments.
The Court in Hurtado also took the very bold (and improper) step of announcing not only that it would defy the commonly accepted meaning of "due process of law" as it had been understood in England, but would even apply that clause to strike down an unlimited range of substantive legislation: "Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property."  Professor Franck quotes (at p. 26) part of this revolutionary sentence, but dismisses it as a mere affirmation of the right to notice, hearing, and opportunity to defend. 
Besides missing the revolutionary implications of Hurtado, I don't think Professor Franck is correct to endorse several antebellum state cases that employed due process clauses to protect "vested" rights.  For example, New York's highest court used a due process clause to strike down legislation that prospectively prohibited sale or use of alcoholic beverages that had been manufactured before the law took effect. That 1856 decision in Wynehamer v. People was rejected by the courts of most of the other states that addressed the subject, but Professor Franck approves it; I see it as a bad precedent that could easily be extended to protect any liberty the courts like and want to preserve.  The U.S. Supreme Court correctly rejected Wynehamer, in the case of Mugler v. Kansas (as I recently mentioned here at the Originalism Blog).
Anyhow, that's enough for a blog post.  I have written two law review articles about the Due Process Clause, most recently in 2013 here.  That article of mine offers a perspective very different from Professor Franck's regarding the understanding of due process in the 1850s and 1860s, including in the Dred Scott case.

Michael Sant'Ambrogio: Standing in the Shadow of Popular Sovereignty
Michael Ramsey

Michael Sant'Ambrogio (Michigan State University - College of Law) has posted Standing in the Shadow of Popular Sovereignty (95 B.U. L. Rev. _ (2015 Forthcoming)) on SSRN. Here is the abstract:

Who may speak for a state or the United States in federal court? Recent decisions by executive officials not to defend laws they believe are unconstitutional have reignited a long-standing debate among scholars and commentators over whether other parties might have Article III standing to represent what is variously described as “a State’s,” “the government’s” or “the People’s” interest in defense and enforcement of the law. Yet there has been no examination of the implications of the American principle of popular sovereignty for Article III standing to defend such sovereign interests. The Framers broke with English political tradition by separating the sovereignty of the new American republic from its government, creating a new political form in which “the People” were said to retain sovereign authority. Scholars have examined the implications of popular sovereignty in a variety of areas of law, but they have yet to consider its implications for standing to defend sovereign interests. This article begins to fill this gap.

The article argues that in a republic founded on the principle of popular sovereignty no party may announce the sovereign people’s constitutional views — the Framers did not give any governmental actor this power. Beyond the narrow confines of clear constitutional text and long-settled commitments, the sovereign’s interest in constitutional disputes is frequently unknown. Moreover, the Framers separated the government into competitive branches to protect popular sovereignty and refine citizens’ constitutional views through public deliberation. Therefore, just as no party may speak for the sovereign, no official may speak for the government as a whole.

Consequently, executive officials defend and enforce laws based on the sovereign’s command that they “take Care that the Laws be faithfully executed,” rather than any power to speak for the sovereign or the government. This precludes standing to represent sovereign interests by parties without similar constitutional duties. Yet the people retain the power to grant such authority to others if they choose. Accordingly, the article calls for a fundamental rethinking of Article III standing to enforce and defend laws, grounding standing in express duties of government officials, rather than in their ability to wear the mantle of sovereignty.


Commas, Jane Austen and Original Meaning
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: Jane Austen and the Second Amendment.  After noting the (to modern eyes) odd use of commas in the Second Amendment, the post continues:

The commas in [the first sentence of Pride and Prejudice] are likewise odd to the modern eye, but that just reflects a shift in comma use from 200 years ago: Around 1800, commas were used in large part to indicate the flow of a spoken sentence: [Stephen] Pinker notes [in The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century] that “[w]riters used to place them wherever a pause felt natural, regardless of the sentence’s syntax.” Today, though, commas are generally used to demarcate particular syntactic features of the sentence; they aren’t used just to indicate pauses (though sometimes the syntactic comma does fall in a place where an oral pause would also be normal).

This makes sense, and shows why arguments about constitutional meaning that turn on the placement of a comma are highly suspect.

That point in turn illustrates a broader point about original meaning.    A central tenet of original-meaning originalism is that one should look to the meaning of the Constitution's words as they were understood at the time they were adopted.  But this rule is actually just a specific instance of a general approach: we should read the language as a reasonable eighteenth-century reader would have read it.  That includes not just the meaning of the words themselves but the grammar of the time -- as demonstrated by the rules of comma usage.  Original meaning requires original grammar.

And the idea of original grammar in turn supports the broader claim by John McGinnis and Mike Rappaport (in this book, ch. 7) -- the idea of "original methods" originalism.  Just as meaning comes from grammar as well as words, meaning also comes from background conventions of how to understand written language (for example, the idea of a negative implication).  To the extent interpretive conventions were part of the reasonable eighteenth-century reader's way of finding meaning, we need to use those conventions, just as we would use rules of eighteenth-century grammar (and just as we would use eighteenth-century word meanings).  It's all part of the same enterprise.

And finally, that point illustrates what I regard as a central shortcoming in the otherwise-outstanding book Reading Law, by Justice Scalia and Bryan Garner.  The book outlines a host of interpretive conventions one might use to find the meaning of legal texts.  But where do these conventions come from?  Why is it appropriate to use these conventions, and not others?  The book has, so far as I can tell, no theory of the foundation of its conventions (other than, in many cases, they've been used for a long time and/or seem to make sense).

As McGinnis and Rappaport make clear, if the interpreter seeks the original meaning the answer is that the conventions must be those in use at the time of enactment.  Using a convention not recognized at the time of enactment (or failing to use one that was recognized) may lead to a meaning that is different from the meaning that would have been understood at the time -- just as using different grammar may lead to a different meaning.  (Of course, interpreters -- especially judges -- may use interpretive conventions for reasons other than to find the original meaning, in which case the conventions may have different justifications).


Is the Corker-Menendez Bill Unconstitutional?
Michael Ramsey

The pending Corker-Menendez bill has been described as requiring Congress' approval on the proposed deal with Iran.  This article quotes Cornell law professor Michael Dorf (Dorf on Law) as raising a question whether it is constitutional.

My first reaction was: yes, it's unconstitutional.  Congress cannot require the President to obtain its approval on an international agreement.  The Constitution provides two ways for the U.S. to make international agreements: (1) through the advice-and-consent of a supermajority of the Senate, as prescribed in article II, Section 2; and (2) in some cases -- principally for short-term agreements and nonbinding arrangements -- by the President alone, under the President's Article II, Section 1 executive power.  It's true that in modern practice, approval of Congress can sometimes (especially in the case of trade agreements) substitute for Senate supermajority approval (though I deny that that is part of the original understanding).  But in no circumstances does the Constitution or practice provide for Congress' approval as the exclusive route.  As a result, if Congress purports to make its approval a condition of entering into an agreement, it infringes the constitutional power of either the Senate-plus-President or the President alone (depending on the circumstances) to make international agreements.

But on further reflection, I come to the opposite conclusion.  The Corker-Menendez bill does something different.  The prospective deal with Iran contemplates that the President will lift U.S. sanctions on Iran.  That in turn depends on the President having statutory discretion to lift the sanctions, as conveyed in prior sanctions legislation. As I understand it, the Corker-Menendez bill simply removes the President's discretion to lift sanctions for a 60-day review period after finalization of a deal (and permanently thereafter if Congress passes additional legislation).  Thus the bill is about implementation of the agreement, not approval of the agreement.

That seems comfortably within Congress' power.  I assume the original sanctions legislation is within Congress' power to regulate commerce with foreign nations.  Congress is not obligated to give the President discretion to lift the sanctions without Congress' approval.  As a result, Congress should also be able to remove the President's discretion if it changes its mind.  That's all Corker-Menendez does.

It's possible that matters would be different if the Iran deal took the form of a treaty.  Arguably Congress is obligated to implement a treaty, because by Article VI a treaty is the supreme law of the land.  But it appears that the arrangement with Iran is not even going to be a binding agreement.  At most it is a commitment by this President to lift sanctions to the extent that is within his power. Obviously such an arrangement imposes no Article VI obligation on Congress to give (or allow the President to retain) power to implement his commitment.

In sum, Congress cannot require its approval as a condition of entering into an international agreement.  But, so long as Congress acts within its enumerated powers, it can refuse to give the President authority to implement an agreement (temporarily or permanently).  There may be doubt in the case of a treaty, which is the supreme law of the land and so might impose implementation obligations on Congress.  But an agreement that is not part of the supreme law of the land imposes no such duties.

(To be clear, I'm not disagreeing with anything Professor Dorf is quoted as saying; I'm just trying to answer the question he poses).


Sam Erman & Nathan Perl-Rosenthal on American Samoans and U.S. Citizenship
Michael Ramsey

At CNN.com, Sam Erman (USC law) and Nathan Perl-Rosenthal (USC history): Not another Dred Scott case, please.  From the introduction:

Emy Afalava is a loyal American and decorated veteran. He was born in American Samoa, a U.S. territory since 1900. He has been subject to American law his whole life and thinks he should be a citizen.

The Constitution would agree. The Fourteenth Amendment declares that "All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Yet, Afalava has been denied the right to vote because the federal government insists that he is no citizen. How can it be, in the 21st century, that Americans born on U.S. soil are denied the rights of citizenship?

The article refers to a pending case in the D.C. Circuit, in which Professors Erman and Perl-Rosenthal joined an amicus brief on behalf of citizenship scholars supporting Afalava's claim to citizenship (which I also joined).  In my view Afalava's claim, as an originalist matter, is compelling.

(Thanks to Neil Weare of We the People Project for the pointer).

Fuad Zarbiyev: Textualism in Treaty Interpretation–A Genealogy
Michael Ramsey

At Opinio Juris, Fuad Zarbiyev (Curtis, Mallet-Prevost, Colt & Mosle LLP): Textualism in Treaty Interpretation–A Genealogy.  It begins:

The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.

Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?

(This is part of a symposium on the book Interpretation in International Law (Andrea Bianchi, Daniel Peat & Matthew Windsor, eds.) (Oxford Univ. Press 2015).

For what it's worth, I have  substantial doubt that international treaty interpretation is actually (as opposed to rhetorically) textualist.  My suspicion is that the modern U.S. approach to treaty interpretation as pursued by the Supreme Court (which often diverges from non-U.S. approaches) is closer to what U.S. scholars would associate with textualism -- that is, focus on the text as informed by its context.


New Book: Senator Mike Lee's "Our Lost Constitution"
Michael Ramsey

Recently published: Senator Mike Lee, Our Lost Constitution: The Willful Subversion of America's Founding Document (Sentinel 2015).  Here is the book description from Amazon: 

The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today.

In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensible provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. For example:

   • The Origination Clause says that all bills to raise taxes must originate in the House of Representatives, but contempt for the clause ensured the passage of Obamacare.

   • The Fourth Amendment protects us against unreasonable searches and seizures, but the NSA now collects our private data without a warrant.

   • The Legislative Powers Clause means that only Congress can pass laws, but unelected agencies now produce ninety-nine out of every one hundred pages of legal rules imposed on the American people.

Lee’s cast of characters includes a former Ku Klux Klansman, who hijacked the Establishment Clause to strangle Catholic schools; the Chief Justice of the Supreme Court, who called the Second Amendment a fraud; and the revered president who began his first of four terms by threat[en]ing to shatter the balance of power between Congress and the president, and who began his second term by vowing to do the same to the Supreme Court.

Fortunately, the Constitution has always had its defenders. Senator Lee tells the story of how Andrew Jackson, noted for his courage in duels and politics, stood firm against the unconstitutional expansion of federal powers. He brings to life Ben Franklin’s genius for compromise at a deeply divided constitutional convention. And he tells how in 2008, a couple of unlikely challengers persuaded the Supreme Court to rediscover the Second Amendment’s right to keep and bear arms.

Sections of the Constitution may have been forgotten, but it’s not too late to bring them back—if only we remember why we once demanded them and how we later lost them. Drawing on his experience working in all three branches of government, Senator Lee makes a bold case for resurrecting the Lost Constitution to restore and defend our fundamental liberties.

From Randy Barnett:

Senator Mike Lee knows how to tell a story. Combining historical fact and his own legal expertise with imagined dialogues and settings, Lee brings the sometimes dry and archaic debates of the constitutional convention in Philadelphia and other episodes to life, and with them the Constitution itself. This is truly an inspired, fascinating, and important book.

And from Michael McConnell: 

Mike Lee won election to the Senate by traveling around his state giving talks about the Constitution. Now he has written a most unusual book, which interweaves lively histories of what he calls the lost clauses of the Constitution with biting critiques of such modern issues as delegation of legislative power to agencies, NSA data collection, church and state, and Obamacare. Readers may not agree with all his conclusions, but they will encounter serious history and a conscientious attempt to grapple with modern issues in light of an enduring Constitution.

Bonus:  only $16.93.


Jack Balkin and Steven Smith on the Originalist Scholars' Brief in the Same-Sex Marriage Cases
Michael Ramsey

At Balkinization, Jack Balkin and my colleague Steve Smith have an interesting exchange on two originalist-oriented amicus briefs in the same-sex marriage cases.  The briefs are here, on behalf of the Cato Institute, Willliam Eskridge, Steven Calabresi and Ilya Shapiro; and here, on behalf of nine "Scholars of Originalism."

Professor Balkin comments in part (it is a long and rich post that defies excerpting):

[The Cato brief] is closest to my own position in Living Originalism.  The way I would put it is that although we are not bound by the original expectations of the framers, we should look to the principles they espoused, and draw analogies to the historical problems that they faced and sought to remedy, when we fashion constructions of the Fourteenth Amendment to resolve contemporary questions of constitutional law.  Or put in the words of Robert Bork, our "responsibility is to discern how the framers’ values, defined in the context of the world they knew, apply in the world we know."

It follows, then, that we should ask what the principles of class legislation, caste legislation, and equality before the law mean in practice in today's world in the context of gays and lesbians who seek the right to marry.

He then criticizes the originalist scholars' brief, commenting in part:

[The brief argues that] [d]enying gays and lesbians the right to same-sex marriage is not class legislation because same-sex marriage is not "marriage."  Gays and lesbians are free to marry anyone they choose, as long as the[y] engage in "marriage," which is between opposite-sex couples.

If the laws challenged here defined some class of persons (such as gay and lesbian persons) and denied such persons the legal right to marry, these laws might be considered class legislation. But traditional marriage laws do no such thing; under these laws, persons of any sexual orientation are wholly free to marry if they so choose.

I don't think that this definitional argument is an adequate response to the class legislation claim. That is because it doesn't really take seriously what it means to be gay or lesbian in our society today.  It does not perform the task set forth by Judge Bork: "discern[ing] how the framers’ values, defined in the context of the world they knew, apply in the world we know."   The argument treats being gay or lesbian as something one might discard or suppress if one wanted the benefits of a (loveless) marriage. So when the Originalism Scholars say, without any hint of irony or self-consciousness, that denying gays and lesbians the right to marry those they love can not possibly be class legislation, because denying them the right to marry does not "restrain" gays or lesbians to "a particular course of life . . . allowing only a limited enjoyment of property and relative rights," one wants to know what world they think they are living in.

Steve Smith, who joined the originalist scholars brief, has this response as a guest blogger: Are we really all living originalists now? Here is an excerpt:

If original meaning is not identical to “original expected applications,” then is there any stopping place short of the Grand Style, abstract principles approach favored by Jack and the Cato Brief?  If there isn’t, then perhaps Jack is right: whether or not we admit it, we are all living originalists (because there really isn’t anything else to be).

It is a hard question, I think.  But there at least seem to be intermediate possibilities.  Elsewhere I have cautiously proposed an approach that I reluctantly called “decisional originalism.”  This was only a tentative suggestion, and I have no reason to suppose that other signatories agree with it; they may favor other approaches or limiting principles.  Jack is surely right that there are interesting theoretical questions here.  The Scholars’ Brief acknowledges this fact as well, although, being a brief, it does not launch into an academic exploration.  Contrary to Jack’s impression, the brief nowhere suggests that he or others who share his approach are not entitled to be considered “originalists,” nor does the brief insist on any sort of originalist “purity.”  On the contrary, and for obvious reasons, it tries to be as generic as possible in its originalism, and explicitly declines to take a position on debates between “intentionalist” and “public meaning” versions of originalism.

As a result, and speaking for professors who almost certainly do not share a single view, the Scholars’ Brief itself does not say exactly what limiting principle should guide the originalist inquiry.  As it happened, this seemed unnecessary, because the interpretation offered by the Cato Brief itself would not cover traditional marriage laws such as those before the Court.  The Cato Brief argues, as noted, that the Fourteenth Amendment prohibits “class legislation.”  And although the brief is somewhat fluid about what this fluid concept means, its most pertinent definitions come from nineteenth-century sources which said that “class legislation” refers to “special codes for one class of citizens,” or to “laws restraining the activity of a class of persons, more or less strictly defined, to a particular course of life, and allowing only a limited enjoyment of property and relative rights.”

Under these definitions, ... traditional marriage laws would not be “class legislation” under these nineteenth-century definitions.  This conclusion is not a “definitional argument”, as Jack seems to think, of the kind that says “‘marriage’ just means and has to mean X”; it is an observation about what the marriage laws do and, more importantly, do not do.   And to observe that marriage laws do not enact a “special code for one class of citizens” is not to deny that the laws have a disparate impact on gay or lesbian persons; the Scholars’ Brief expressly acknowledges that impact.  But disparate impact does not equal “class legislation,” at least as that term is defined in the Cato Brief.

And on a more theoretical level he concludes:

But suppose that Jack is right (as I concede, sincerely, he might be): once we acknowledge that original meaning is not confined to “expected applications,” there is no viable stopping point short of the “grand principles” approach that he and the Cato Brief advocate and practice.  In that case I think we would face the really hard question.  What is the point of all of the deliberation and debate (with examples and counterexamples, asserted and denied), and the crafting and drafting and redrafting of constitutional provisions, if those provisions will shortly be interpreted in terms of lofty principles with implications (to be enforced, by judges, against democratic majorities) that the enactors never intended, imagined, or desired?  Why would sensible citizens and legislators engage in this peculiar exercise, bind themselves and their descendants in this profoundly unpredictable way?

. . . 

This, I think, is the really essential and intractable conundrum that “living constitutionalism” leaves us with.  Jack Balkin has written insightfully and even movingly about the imperative of maintaining continuity with our past, and with those who came before us.  To my mind, though, he has not offered any satisfying answer to this conundrum. 


Zachary Price: Law Enforcement as Political Question
Michael Ramsey

Zachary S. Price (University of California Hastings College of the Law) has posted Law Enforcement as Political Question on SSRN.  Here is the abstract :      

The scope of judicial authority to review executive enforcement choices has long befuddled courts, producing a confused and incoherent body of case law that exempts most (but not all) enforcement decisions from judicial review. This incoherence has become an urgent problem, however, as the executive branch appears increasingly inclined to charge through the door opened by limitations on judicial review of enforcement. At the level of national policy, several recent executive actions now subject to litigation — particularly the Department of Homeland Security’s efforts to halt removal of certain broad categories of undocumented immigrants — have depended on broad theories of executive non-enforcement authority. Meanwhile, at the ground level of federal law enforcement, federal prosecutors have aggressively used criminal enforcement discretion to advance regulatory goals through so-called “deferred prosecution agreements” that involve neither a conviction nor even a plea agreement. 

To bring clarity to this confused area, this paper advocates reframing the question of judicial power over law enforcement in terms of the political question doctrine, the morphous exception to federal-court jurisdiction for legal questions that properly belong to the political branches. Executive law enforcement choices may qualify as political questions in two different ways. First, the constitutional text and structure support a narrow relief-based limit on judicial power: courts may not compel executive prosecution in particular cases. The power to choose which particular enforcement suits to bring thus falls within the category of political questions that are “textually assigned” to a branch other than the judiciary. Second, broader executive enforcement choices may qualify as political questions because in many areas of modern regulation resource limitations necessitate tradeoffs between competing enforcement priorities and courts lack institutional legitimacy and competence to second-guess the priorities that executive agencies select. Such broader enforcement choices may thus fall within the category of political questions where courts lack “judicially manageable standards” for resolving disputes.

Reframing the scope of judicial authority in this way has a number of important implications, some with immediate relevance to current litigation. First, the framework developed here clarifies that courts’ capacity for review does not define the content of the executive obligation. Judicial review and executive duty are distinct issues; the law places a gap between executive officials must do and what courts can enforce. Second, the framework clarifies that judicial review is permissible in contexts where review does not involve a political question. In particular, courts may review and invalidate policies that prospectively cancel statutory requirements, because invalidating such policies involves neither compelled prosecution in particular cases nor second-guessing of executive resource-allocation judgments. Third, the framework justifies stronger judicial oversight of enforcement in areas where Congress has provided for it. Congress has done just that with respect to deferred prosecution agreements, yet courts have persisted improperly in rubber-stamping executive decisions. Fourth, by directly addressing limits on judicial power over enforcement, the framework points the way to a more coherent doctrine of Article III standing. Finally, the framework sheds new light on the political question doctrine itself. It raises the possibility that some other political questions — particularly the all important question of executive war powers — may also be judicially unmanageable because Congress has made them so, and not because the Constitution so requires.


Korematsu, National Power, and Individual Rights
Mike Rappaport

One of the key cases in modern Constitutional Law is Korematsu v. United States, where the Supreme Court held that the exclusion of Japanese citizens from large parts of the West Coast was constitutional. (While the case technically did not cover the internment of the Japanese, the exclusion of Japanese from such a large area without any individualized suspicion renders both internment and exclusion to be largely subject to the same analysis that I make here.) This case is normally thought to represent an egregious failure on the part of the Supreme Court to enforce constitutional law.

But things are more complicated than they at first seem. To begin with, the normal argument is that the Supreme Court should have struck down the exclusion and internment as a violation of the Equal Protection Clause. But the Equal Protection Clause does not apply to the federal government. For that reason, the major nonoriginalist critics of Korematsu argue strenuously that the Equal Protection principles are somehow reverse incorporated or otherwise applied to the federal government. That ignores the text and is a mistake. For more of my views on the matter, see here.

The more promising textual basis for holding the exclusion and internment as unconstitutional is that they exceed Congress’s enumerated powers. But this path is not open to the major nonoriginalist critics of Korematsu, since they embraced extremely broad national powers. Thus, those critics are not able to argue that the original basis for protecting civil liberties in the federalist structure of the Constitution is what protected against the Japanese exclusion and internment.

What power allowed either the Congress or the President to exclude and intern Japanese citizens without any substantial evidence that these individuals were dangerous? Congress has the power to declare war, to define and punish offenses against the law of nations, and to make rules for the armed forces. But the original meaning of none of these powers allows for the federal government to exclude or intern an entire race of citizens without substantial evidence of their being dangerous.

Nor does the President’s commander in chief power allow him to do it. Excluding and interning these citizens did not involve the movement of armies in a war zone. The President is commander in chief of the armed forces, not of the nation.

Presumably, Congress would claim that it is exercising its power to take necessary and proper measures to declaring war – to engage in the successful pursuit of the war. But this argument is problematic. Congress cannot simply do whatever it pleases if it believes that this will promote the war effort. It no more has this power than it has the power to do whatever it pleases if it believes that this will influence interstate commerce. The enumerated powers have real limits.

It is true that Congress does have significant power under its necessary and proper authority to conduct a war. Congress can certainly pass a law that prohibits and punishes the actions of enemy spies or saboteurs who come into the country during wartime. But that is clearly distinguishable from the exclusion and internment. The law would prohibit the actual spying or sabotaging. One might possibly – although not certainly – say that Congress could take preventive measures that restricted the actions of people who were suspected with some evidence of engaging in wrongdoing. But that would be as far as one could go. That view would not allow Congress to exercise authority as to all Japanese, nor could Congress use it for mass exclusions and internments.

Of course, this position requires the courts to draw a line under the Necessary and Proper Clause. And therefore the New Deal coalition could never endorse this view. The New Deal ended up supporting the Korematsu decision (6 of the 8 Justices appointed by Roosevelt were in the majority) and the dissenters disapproved the ruling based on a made up constitutional right.

The Constitution and the Iran Deal
Michael Ramsey

With more specifics available on the emerging deal between the U.S. and Iran, it's possible to have some less-speculative constitutional thoughts.  Here are mine:

(1)  The "deal" announced last week is itself clearly constitutional.  Despite the speculation beforehand, it is obviously a non-binding arrangement, and indeed is expressly a preliminary framework for an agreement to be reached in the future.  As the State Department's "Parameters for a Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran's Nuclear Program" describe: 

These elements form the foundation upon which the final text of the JCPOA will be written between now and June 30, and reflect the significant progress that has been made in discussions between the P5+1, the European Union, and Iran. Important implementation details are still subject to negotiation, and nothing is agreed until everything is agreed. We will work to conclude the JCPOA based on these parameters over the coming months.

In short, it is a step in the negotiations, nothing more.  Similar outlines of future agreements are common in negotiations, variously called terms sheets or memorandums of understanding, and often leaving not only details but sometimes major points open.  (Thus, the fact that the U.S. and Iran appear to have different views on when sanctions would be lifted under the agreement is -- contrary to some commentators -- not remarkable).

As a result, the announcement of "parameters" for a future deal is easily within the President's power to negotiate treaties and otherwise conduct diplomacy for the U.S.  Some scholars have argued that, as an original matter, the Senate should be more closely involved in treatymaking during the negotiation stage, but as I argue here (pp. 138-141) that view is not consistent with the Constitution's text or with the historical meaning of "advice and consent," a requirement which can be satisfied by after-the-fact review and approval.  So in fact the President isn't under any obligation even to announce the current status of the negotiations, much less to involve the Senate at this point.

(2)  The more difficult question is whether Senate approval is required once a final deal is reached.  The President has indicated he will not seek Senate approval on the ground that even the final deal will be non-binding.  The State Department "parameters" strongly suggest that course by calling the proposed deal a "Joint Comprehensive Plan of Action" rather than a word that connotes a binding agreement such as such as "Convention" or "Compact."

In general, as sketched here, my view is that the President may enter into non-binding agreements on his independent constitutional authority (so long as he is unmistakably clear that the agreement -- or "joint plan of action" -- is truly non-binding).  The requirement of clarity arises because if the U.S. position is ambiguous and the other party wrongly understands the agreement as binding, international law might treat the agreement as binding despite the U.S. intent.   And a binding agreement of this duration and magnitude would clearly require Senate approval, as it meets the eighteenth-century definition of a "treaty."

(3) Despite my general view that the President can make non-binding agreements, I have increasing reservations about his authority to make this particular agreement.  As presented in the State Department parameters, it has two troubling attributes.

First, the U.S. would undertake very specific commitments -- principally to lift sanctions in the event Iran complies with a set of specific obligations.  As the parameters state:


  • Iran will receive sanctions relief, if it verifiably abides by its commitments.
  • U.S. and E.U. nuclear-related sanctions will be suspended after the IAEA has verified that Iran has taken all of its key nuclear-related steps. If at any time Iran fails to fulfill its commitments, these sanctions will snap back into place.
  • The architecture of U.S. nuclear-related sanctions on Iran will be retained for much of the duration of the deal and allow for snap-back of sanctions in the event of significant non-performance.

These commitments are phrased in binding language (Iran "will" receive sanctions relief after completing its obligations; the sanctions "will be suspended.").  Further, the statement that the sanctions will "snap back into place" if "Iran fails to fulfill its commitments" heavily implies that the sanctions will not come back into place (by snapping or otherwise) if Iran does fulfill its commitments.  Even worse (from the perspective of claiming a non-binding agreement), the parameters indicate that:

A dispute resolution process will be specified, which enables any JCPOA participant, to seek to resolve disagreements about the performance of JCPOA commitments.

To be sure, a dispute resolution process can accompany a non-binding agreement, but it is more commonly associated with binding agreements.  

Even if the President makes clear to everyone that the obligations (on both sides) are non-binding, the degree of specificity is problematic because of the second key feature: the agreement is for a long term (10 and in some cases 15 years).  Again, this term is not only for Iran's undertaking regarding its nuclear program, but also for the U.S. forbearance on sanctions so long as Iran remains in compliance.

The combination of specific undertakings and a long term is troublesome because the term extends far  beyond the President's term in office.  As a result, it is hard to explain the theory of the "plan of action."  Where the term is short, it makes sense for the President to undertake (in a non-binding way) certain specific actions (so long as they are within the President's independent power), because the President can personally assure that they occur.  So, for example, assuming the President has delegated power to lift the sanctions on Iran, I have little doubt that the President can assure Iran he will exercise his power to lift the sanctions if Iran takes certain actions.  This makes perfect sense as a non-binding "joint plan of action."  There's no need for it to be binding on the U.S. because the President puts his own credibility at stake.

Likewise, where the U.S. undertakings are vague, open-ended or insubstantial, a non-binding agreement makes sense as an aspirational statement even if given a long term.  The President in that case is not really promising anything he cannot personally deliver because he is not promising anything specific.

The problem comes when specific undertakings are combined with a long term, as in the contemplated deal with Iran.  In this situation, the President is promising something he cannot deliver.  He is promising that sanctions will not be reimposed after he leaves office so long as Iran remains in compliance.  But the President alone cannot make this promise on behalf of the United States (that would require a binding treaty), and it's pointless to make this promise on behalf of himself personally.

Is making the promise in these circumstances unconstitutional?  Perhaps.  It is not clear why the President would think it appropriate to promise something he cannot deliver.   One argument might be that the President is in fact trying to create a binding agreement without saying so.  Another more plausible one is that the President is trying to create the effect of a binding agreement by making it practically difficult for his successor to depart from it.  As argued above, the former is plainly unconstitutional.  The latter, it seems, requires further thought.  Maybe it is part of the President's diplomatic power; Presidents have various ways to create conditions that are hard to change, and it's not obvious all or any of them are unconstitutional.  But maybe it infringes the Senate's treaty power by creating something that is too much like a treaty.  In any event, I am least persuaded that the deal's constitutionality is not assured merely if it is non-binding.


John McGinnis on Justice Breyer's Dissent in McCutcheon
Michael Ramsey

At Liberty Law Blog, John McGinnis: Justice Breyer Needs an Originalist Law Clerk.

To support his view of the First Amendment as embodying a “collective right,” Breyer [in McCutcheon] appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents.  But the materials he cites undermine his claims. ...

[with examples of citations to James Wilson, Madison and Rousseau, and concluding:]

Thus, Justice Breyer’s effort to find support for a revolution in First Amendment doctrine is alternately misleading and silly. It might not be surprising to find these claims in a brief, but it is unsettling to read them in the Supreme Court reporter.

Ilan Wurman: Law Historians' Fallacies
Michael Ramsey

Ilan Wurman (Winston & Strawn LLP; Stanford Law School '13) has posted Law Historians' Fallacies (North Dakota Law Review, forthcoming) on SSRN. Here is the abstract:

A common line of attack against originalists is that lawyers just aren’t good at doing history. But in his famous book Historians’ Fallacies, David Hackett Fischer noted that many historians aren’t good at doing history either: They often fall into one or more of numerous fallacies that he catalogued in his celebrated and often devastating three-hundred page book. This Article points out the many ways in which originalists and other legal historians fall into, but also how they may avoid, some of the same fallacies committed by the historians whose works made their way into Fischer’s book. It will then point to corresponding lessons that lawyers-turned-historians ought to employ to write better history. The belief is that lawyers, judges, and legal academics can become good — or at least better — historians.

Part I confronts two general attacks on the use of history, both of which challenge the possibility of obtaining relevant and objective historical knowledge. Part II establishes the importance of investigative questions and describes fallacies of question-framing that lead originalists astray. Part III explores fallacies of factual verification that stem from reliance on flawed types of evidence. Part IV addresses one fallacy of factual significance — which we shall call the originalist’s fallacy — that leads some originalists to misunderstand the significance of certain evidence. Part V illustrates fallacies of narration, including fallacies of anachronism and presentism, that too often create fruitless investigations and provide ahistorical answers. Part VI, although recognizing the importance of generalization, demonstrates how originalists (and other legal historians) often generalize improperly.


Constraining Executive Regulatory Authority
Mike Rappaport

At the Liberty Law Blog, I have been writing a series of posts on ways of limiting executive regulatory authority that are desirable and that might actually be enacted.  While it is not exactly originalism, I thought some readers might be interested in these posts: 

1. Congressional Reforms of Excessive Executive Power: Can They Be Enacted? 

2. Reforming Regulation: Nondelegation and the REINS Act. 

3. Reforming Regulation: Eliminating Chevron Deference and Constraining Guidances 

4. Reforming Regulation: Internal Constraints on Agencies

5. Reforming Regulation: Article III Administrative Judges and More Radical Changes

The concern among people on the right about executive power has grown mightily during the Obama years.  For what it is worth, while my own views have moved a bit over the years, I always favored eliminating Chevron,  enforcing the nondelegation doctrine, and having Article III Administrative Judges. 

Joel Alicea Replies to Randy Barnett
Michael Ramsey

At Volokh Conspiracy, Joel Alicea has this reply to Randy Barnett's response to his (Alicea's) essay in National Affairs: “Yes, you are imperiling originalism:” A response to Professor Barnett.  After noting some areas of agreement he continues:

That we ask the same questions does not mean that we reach the same answers. I believe the obligation of the living to obey the dead inheres in a regime of written law, especially one based on notions of popular sovereignty. But, more fundamentally, I think it inheres in the nature of an ordered society, which is man’s natural state and which comes with attendant obligations and duties to our forebears. Barnett misunderstands me, then, when he says that my purpose in the essay was to “defen[d] constitutional originalism against the common legal academic trope that it consists of adherence to the ‘dead hand of the past.’” My purpose was not to defend originalism against the dead hand of the past; my purpose was to justify the dead hand of the past. Or, as the title of the essay terms it, the rule of the dead.

This is a foundational disagreement between us. Barnett’s theory begins by rejecting the rule of the dead; he disclaims any right of the dead to bind the living. Rather, Barnett thinks that the living—quite apart from any duties to the dead—should obey the past only insofar as (1) the living affirmatively consent to such authority or (2) the decisions of the dead are necessary and proper.

And further:

These disagreements have significant consequences for our respective theories of originalism. Barnett’s presumption of unconstitutionality is the most obvious example of that divergence. As I say in the essay, “Barnett would grant power to the judiciary that goes beyond the original meaning of the Constitution (the past) in the name of the libertarian individualism that sustains his theory (the present).” The implications of a presumption of unconstitutionality are quite far-reaching, and it will generate different outcomes in many cases.


Jonathan Keim Reviews "The Originalist"
Michael Ramsey

At NRO, Jonathan Keim: The Originalist: A new play — superb in its acting, muddled in its writing — about Justice Antonin Scalia.  Among his criticisms:

Strand’s Scalia ... muses confidentially that originalism could “set things right again in this country,” that he is “one of the last preservationists” of the Constitution, and so forth. And Strand’s Scalia is devastated by not being appointed chief justice, because that would have “changed the world.” But no originalist — least of all Justice Scalia — would make starry-eyed claims that originalism could fix everything. Congress and the president can, do, and will continue to make bad laws. Originalists assert only that the meaning of statutes and the Constitution is fixed at the time of legislation and can be discerned and applied through faithful application of traditional legal methods. This is not quite bumper-sticker material, but it’s an eminently realistic way to view the law.


Michael Kochin: The Constitution Viewed from Without
Michael Ramsey

Michael S. Kochin (Tel Aviv University - Political Science; Claremont McKenna College, Visiting Fellow) has posted The Constitution Viewed from Without on SSRN.  Here is the abstract:      

The drive for constitutional reform in the 1780’s was largely motivated by the perception that until the Federal government was strengthened the United States would not be able to meet its foreign and security policy challenges. Once I put the foreign and security policy difficulties of the 1780’s on the table, I will address two questions: First, why does The Federalist argue for the foreign and security policy need for the Union when nobody who opposes the 1787 Constitution argues against the “perpetual Union” created by the Articles? Second, what is the pressing “crisis” in foreign and security matters that, in Publius’s view, should persuade the remaining states to ratify the constitution hastily?

(Via Larry Solum at Legal Theory Blog).

Gerard Magliocca on John Bingham and “the People”
Michael Ramsey

At Concurring Opinions, Gerard Magliocca:  John Bingham on “the People”. The central point:

In arguing against the admission of the Oregon Territory as a state, Bingham stated that the Oregon Constitution was invalid because it allowed some legal aliens to vote.  He said that this was inconsistent with Article I’s use of the term “the people of the several states.”  In his view, “the people” meant only citizens.  While some states at the time did let aliens vote, he maintained that this was unconstitutional (and represented the only constitutional limit on state authority over who was eligible to vote).  He then went on to say that when a right was fundamental the Constitution used the term “person” or something else (not “the people”) to make that point.


A Deft Maneuver by James Madison
Andrew Hyman

The Due Process Clause is a huge subject, but maybe a small aspect of it can be adequately covered in a blog post.  This is an interesting legal story, seldom told, involving the New York ratification convention that gathered at Poughkeepsie in 1788.  
Some great leaders of that era showed up, including Federalists John Jay and Alexander Hamilton, who proceeded to match wits with great Anti-Federalists like Abraham Yates and John Lansing (Hamilton, Yates, and Lansing were all delegates at the Constitutional Convention the year before in Philadelphia).  Ultimately, by a narrow vote of 30-27, the Poughkeepsie Convention approved the U.S. Constitution, "in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration."  
One of the amendments proposed by that convention of New Yorkers (on July 26, 1788) was this one:  "no person ought to be taken, imprisoned, or disseized of his freehold, or be exiled, or deprived of his privileges, franchises, life, liberty, or property, but by due process of law."  No other state proposed any "due process" clause (the word "process" typically meant proceedings such as those of a court).  The task then fell to James Madison to take all of the amendment proposals from all the states, and mold them into something that would be acceptable to both Federalists and Anti-Federalists.  Madison's proposal came in a great speech to Congress on June 8, 1789.  In his speech, Madison suggested this language: "No person shall be...deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation."  
While his proposal for a Due Process Clause roughly followed the request from New York, no state had requested any Takings Clause.  The Takings Clause became much more necessary because of a deft maneuver Madison made that somewhat relaxed the Due Process Clause: instead of the New York proposal that would have forbidden deprivations "but by" due process of law, Madison changed the language to "without" due process of law.  This change has rarely been analyzed, and it may seem tiny, but it was not apparently stylistic, and obviously was not made for conciseness.  By analogy, consider a local zoning ordinance that forbids construction projects "without required permits."  So, you must get a permit if your construction project is big enough to need one.  But imagine that the zoning ordinance instead forbids construction "but by required permits."  Then you cannot construct anything without a permit.  The difference between "but by" and "without" is thus non-trivial.  Forbid a child to have dinner "without" eating vegetables, and forbid another child to have dinner "but by" eating vegetables, and you get two children eating two very different dinners.  
In 1868, Madison's little maneuver was made more widely applicable (i.e. to the states) in the Due Process Clause of the Fourteenth Amendment.  Fast forward a few more years to the U.S. Supreme Court case of Mugler v. Kansas in 1887.  Kansas had banned sale and use of alcoholic beverages, which put Peter Mugler's brewery out of business.  The Court held that this prospective ban was not a violation of the Due Process Clause, even as to unsold beer that Mugler had legally manufactured before the ban.  I believe that the Mugler case was correctly decided, at least if we limit ourselves to the due process issue.  
But what if the Due Process Clause had instead used the language New York proposed in 1788?  Then the question would be very different and would have to be reevaluated, because enactment of the Kansas law arguably deprived people of property and liberty, regardless of what might happen later during court proceedings.  Many cases besides Mugler would have to be reevaluated as well, even including cases that involve liberty but not property, given that enactment of virtually every criminal law takes away some sort of liberty that was possessed (or "vested") prior to enactment. In sum, it's a good thing Madison modified the Due Process Clause the way he did, while adding the Takings Clause to justly compensate (pun intended) for his edits that somewhat relaxed the Due Process Clause.

Michael Morley: Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment
Michael Ramsey

Michael T. Morley (Barry University School of Law) has posted Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment (University of Chicago Legal Forum, forthcoming) on SSRN.  Here is the abstract: 

The modern “voting wars” involve repeated legal challenges alleging that proof-of-citizenship requirements for registration, voter identification laws, and other procedures aimed at protecting the electoral process violate the constitutional “right to vote.” In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting “too” burdensome. 

Section 2 of the Fourteenth Amendment offers critical — and previously overlooked — insight into the scope of the right to vote. It imposes a uniquely severe penalty — reduction in representation in the House of Representatives and Electoral College — when that right is violated. The theory of “remedial deterrence,” a type of "remedial equilibration," teaches that courts take into account the severity of the remedy for a violation of a legal provision when determining that provision’s scope. Stripping a state of its seats in Congress and votes in the Electoral College is a uniquely severe penalty, effectively nullifying the results of one or more elections, disenfranchising the people who voted for the ejected representatives, diluting the vote of each member of the state’s electorate, and potentially even changing control of Congress or the outcome of a presidential election. 

For such a dramatic penalty to be appropriate, a State’s actions would have to be especially egregious — a direct disenfranchisement of certain disfavored groups of people. Facially neutral registration or voting procedures with which a person must comply in order to vote, in contrast, are insufficient to meet this highly demanding standard. This remedial deterrence interpretation of § 2 is consistent with both the Fourteenth Amendment’s legislative history and Congress’ contemporaneous interpretation of that provision during its immediate attempt to enforce it. All of the state laws and constitutional provisions that Congress concluded violated § 2 imposed additional qualifications for voting by disenfranchising entire groups of people, such as the poor, the illiterate, or racial minorities, due to their purportedly undesirable traits. The text and structure of § 2, the debates leading to its enactment, contemporaneous interpretation and application of that provision, and the persuasive considerations underlying remedial deterrence itself all counsel in favor of construing the Fourteenth Amendment right to vote as prohibiting the actual, direct disenfranchisement of disfavored groups of people, and not administrative procedures for registration or voting.