Lash on ERAERNBER: Not Less than Equal Citizenship for Citizens Who Stay Home
Chris Green

Thanks to Kurt Lash, a friend quite able to disagree without being disagreeable, for replying to my review (parts 123456). I hope that future discussions will have a chance to touch on other aspects of our disagreement--whether the Bill of Rights (and other enumerated rights!) were rebooted in 1868, the 9A/14A relationship, what Bingham meant by "chiefly defined," the possibly-adverbial "in" in IV/2/1, Bingham's 1867 ellipsis reiteration, equal-citizenship readings of the Louisiana Cession language, the relation of the CRA1866 and CRA1875 to 14A P/I, 1866 public discussion of voting rights and 14A indeterminacy, the relative reliability of Garnes and Hall, the meaning of the Equal Protection Clause, and so on. If any book publishers are interested in a collection of essays on the Privileges or Immunities Clause, by the way, with cross-commentary among the authors, I suspect there is material out there for such a collection. By all means, let's put on some scuba gear and explore more of the iceberg.

I likely have a far greater appetite than Lash, or most readers, for spilling out all of this detail on the blog. In lieu of a comments section, I'll put my five attempts at clarification after the jump.

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Chris Green" »

Lash, Green, and the Doubtful Case Rule
Andrew Hyman

Professors Kurt Lash and Chris Green have recently been debating the meaning of the Privileges or Immunities Clause here at this blog.  I tend to agree with Lash, but am under no illusions that the debate will be resolved any time soon.

Lash supports an enumerated-rights interpretation whereas Green supports a fundamental-rights interpretation.  It seems fair to say that they agree the Clause at least covers the overlap between those two interpretations.  Since that is a point of agreement and very little doubt, the federal courts would be very well justified in endorsing that narrow common ground that is shared by those two major interpretations.

Indeed, when the Fourteenth Amendment was adopted, the Supreme Court had long since established the Doubtful Case Rule, holding that the Court would not strike down statutes in cases where the constitutionality was uncertain.  Framers like John Bingham emphatically endorsed and relied upon the Doubtful Case Rule.  In 1868, shortly before the Fourteenth Amendment was ratified, Bingham said very publicly:

It has been settled law in this country from a very early period that the constitutionality of a law should not be questioned, much less be adjudged invalid by a Court clothed by the Constitution with jurisdiction in the premises, unless upon a case so clear as to scarcely admit of a doubt....

There is virtually no doubt that either a Lash-type interpretation or a Green-type of interpretation is correct, so the common ground is judicially enforceable.

There is a catch, however. There is a third type of interpretation of the Privileges or Immunities Clause.  Aside from those defended by Lash and Green, there is the equality-only type of interpretation, but I don't think it is sufficiently plausible to affect the doubtful case analysis summarized above.  There are at least four main textual reasons why.

First, it is admittedly true that many rights listed in the original Constitution and Bill of Rights are rights of persons as opposed to rights of citizens only.  But that is no obstacle to incorporating those rights via the Privileges or Immunities Clause.  After all, no one (to my knowledge) argues that the Comity Clause allows a state to deprive citizens from other states of fundamental rights of persons that the state guarantees for all of its own inhabitants.  So why would the Privileges or Immunities Clause allow states to violate privileges or immunities just because they are sometimes rights of persons rather than rights of citizens?  Of course states could not be allowed to do that, and nothing of the sort was ever intended.

A second textual reason to dismiss the equality-only interpretations is that such interpretations could render the Equal Protection Clause basically superfluous.  It is not a plausible answer to say that the Equal Protection Clause is only directed to protecting non-citizens; obviously, the EPC refers to all people generally instead of non-citizens specifically.  Even the Fourteenth Amendment's Due Process Clause unquestionably helps all people instead of just non-citizens (i.e. if the Privileges or Immunities Clause incorporates Fifth Amendment due process then the Fourteenth Amendment's Due Process Clause would still help citizens by barring states from harming citizens outside the legal process).

A third textual reason to dismiss the equality-only interpretations is that the Privileges or Immunities Clause was obviously phrased differently from the Comity Clause, despite their similarities.  That divergence is a dead giveaway that the later clause was not meant to merely refer to the earlier one.  This point becomes even more obvious when one considers that the first draft of the Fourteenth Amendment (considered by Congress) very closely tracked the Comity Clause language, and that draft (which was well-publicized in the newspapers in every state) was later ditched in favor of language that did not as closely track the Comity Clause language.

A fourth textual reason to dismiss the equality-only interpretations is that the enumerated-rights interpretation probably incorporates the Equal Protection Clause, since the latter is an enumerated right.  This fact would explain or account for statements made in 1866-1868 that the Privileges or Immunities Clause includes an equality guarantee of some sort.

The three categories of interpretations of the Privileges or Immunities Clause (i.e. enumerated-rights, fundamental-rights, and equality-only) each comes in many different flavors, but I think the categorization is useful.  Even in the absence of exact certainty about what the Clause means, we can still easily see that the Clause has a clear core, despite ongoing scholarly debate at the periphery--which may well go on forever.

And with that, I wish everyone a very Happy Thanksgiving.

The Meaning of the Equal Protection Clause
Mike Rappaport

Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause.  While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads.  The language says no state shall deprive any person of the equal protection of the laws.  Thus, the language says there is a category called “the protection of the laws” and the Clause requires that this protection be equal.

When one looks at the traditional understanding of the protection of the laws, it turns out that it means something like the remedies that are provided to protect people’s legal rights.  For a seemingly exhaustive discussion of the evidence for this, see Chris Green’s two articles here and here.  Thus, the Clause does not protect against all unequal laws, but instead of the failure of the state to protect people’s preexisting rights.

Under this interpretation, the Equal Protection Clause was about ensuring that the law protected all persons equally.  Thus, it prohibited sheriffs in the former confederate states from looking the other way when blacks were lynched.  (One important question  that this interpretation raises, which I do not discuss here, is how equality is protected under the 14th Amendment. )

Hyman notes the modern interpretation requiring that all laws be equal and wonders where this interpretation came from.  He suggests it came from this famous speech in the Senate by Jacob Howard about the meaning of the 14th Amendment.  In the speech, Howard first notes that the Privileges or Immunities Clause protects various rights.  He then moves on to the Due Process and Equal Protection Clauses.  He writes that the last two clauses of section one of the 14th Amendment

disable a State from depriving not merely a citizen of the United States, but any person whoever he may be of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.  This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.  It prohibits the hanging of a black man for a crime for which the white man is not to be hanged.  It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the number of another caste, both castes being alike citizen of the United States.  (Italics added.)

Hyman offers an explanation for Howard’s language about abolishing all class legislation, suggesting that Howard did not actually say this on the Senate floor (even though it was in the notes of his speech).

Perhaps, but I have another explanation. I admit that Howard’s language is not entirely clear, but I think there is a reasonable argument for concluding that Howard is not saying the Equal Protection Clause requires that all laws be equal.  Instead, he is interpreting the Equal Protection Clause to be about remedies.

In the previous paragraphs, Howard has just said that blacks are entitled to the privileges or immunities of citizenship, and is here saying that the Equal Protection Clause requires these privileges to be enforced.  Thus, the first italicized sentence might be understood as focusing on the punishment – the remedy – rather than the right.  Similarly, the second italicized sentence speaks of a shield, suggesting a protection or shield for the rights of blacks.

This  interpretation is reinforced by the last sentence of the quoted language, which shifts to talking about citizens.  The Equal Protection Clause protects persons, whereas the Privileges or Immunities Clause protects citizens.  This last sentence suggests that Howard has been interweaving both the Privileges or Immunities Clause and the Equal Protection Clause in his discussion (with the former conferring rights on black and the latter requiring those rights to be protected).

Further Thoughts on Presentment and the Compacts Clause (updated by Seth Barrett Tillman)
Michael Ramsey

As a follow-up to this post, Josh Blackman has posted updates with comments, including a long one from Seth Barrett Tillman (scroll to the bottom).

The question is whether, when Congress approves an interstate compact, the approval must be presented to the President for signature or veto.  I agree with Professor Tillman (or at least, his result, and a good bit of his reasoning):  yes.

Briefly, the compact clause (Art. I, Sec. 10):  

No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State ...

And the "second" presentment clause (Art. I, Sec. 7, last paragraph): 

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States …

Approval of an interstate compact requires a "vote" reflecting the "concurrence of the Senate and the House of Repressentatives."  There's no other way to establish the consent of Congress, because Congress can only act through a vote of its two constituent bodies.  Moreover, the textual exception for adjournment strongly implies that there are no other exceptions.  So, presentment is required. That's not so hard, is it?

The main counterargument is that by this analysis Congress' recommendation of a constitutional amendment requires presentment, as it entails a "vote"  reflecting the "concurrence of the Senate and the House of Repressentatives."   To which I respond (a) well, then, that's what it requires; and (b) nonetheless, possibly something in Article V (providing the amendment mechanism) overrides Article I, Section 7.  But fairly obviously, nothing in the compacts clause overrides Article I, Section 7.

Notably, the framers did not think that anything in Article I, Section 5 (providing for adjournment) overrode the presentment clause -- else they would not have needed to add the express exception for adjournment in the presentment clause.  And Article I, Section 5 uses the same phrase as the compact clause: "consent".

It's worth noting, too, how carefully crafted these provisions are.  Obviously presentment isn't required for impeachment and conviction.  But why not?  Because neither impeachment nor conviction -- each considered independently -- are a vote to which the concurrence of both the Senate and the House are required.  So, no presentment clause exception is needed for impeachment and conviction, and there isn't one.  Ordinarily adjournment would similarly be considered a vote of a single house -- e.g., whether the Senate should adjourn would be a question for the Senate.  But per Article I, Section 5, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn..."  Thus the adjournment of the Senate is (somewhat counterintuitively) a vote requiring the "concurrence" (or "Consent") of both Houses; as a result, the framers saw that the presentment clause would require presentment of motions to adjourn unless they added a specific exception, which they did.

The framers did not always think so carefully about their language, but when they did, we should be especially attentive to the exceptions they included and the ones they did not.  There is no exception to the presentment clause for the "consent" needed to approve interstate compacts, even though there is an exception for the "consent" needed to adjourn.  That makes it an easy case for me.



My view is that 1/7/2 (the Presentment Clause) and 1/7/3 (the Second Presentment Clause) are  different procedures. When a substantive constitutional provision requires Congress to act "by law", then Congress must exclusively use 1/7/2. But absent 1/7/2-related "by law" language, Congress can use either 1/7/2 or 1/7/3 procedures -- the latter allows Congress to opt of bicameralism, but not presentment. To put it another way, the absence of a "by law" limitation in a substantive grant of congressional power is not an allowance for Congress to opt out of presentment (eg, by concurrent resolution per Treanor); rather, the absence of express "by law" language permits Congress to opt out of bicameralism (where authorized by a prior statute). Under my view  INS v Chadha  was 1/2 correct—a single House legislative veto cannot bypass the President or escape presentment. But  INS v Chadha  is also 1/2 incorrect—Congress can opt of bicameralism if authorized to do so by a prior statute. Once Congress tries to make use of that specific statutory authorization, using the vehicle of a single house order, resolution, or vote, then that single house order, resolution, or vote must be separately presented to the President—just like a bill is presented to the President. 
To put it another way ... the traditional reading of Article I, Section 7, Clause 3 is: 
Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of [other] Bill[s] [which are properly stylized when enacted per U.S. Const. art. I, § 7, cl. 2].  
But I believe, the correct reading, as a matter of original public meaning, is:  
Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation (or, more accurately, as delegated legislation) per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [per U.S. Const. art. I, § 7, cl. 2, which is a different procedure]. 
One final point ... there is almost no early commentary on 1/7/3. Likewise, there is little modern commentary. So much so, that it has disappeared from the radar of nearly all modern commentators. Here are two examples illustrating how this clause has “disappeared”. Professor Akhil Amar’s  America’s Constitution  (2005) has commentary on every provision of the Constitution of 1787—except the Counterfeiting Clause and 1/7/3. Likewise, Professor Rosenkranz wrote:
Congress acts by making laws. But the product of the action of Congress—the statute, the public law—is also called an “Act of Congress.” In grammatical terms, “act” is both a noun (“an act”) and a verb (“to act”), as it has been since before the Founding. The Constitution itself avoids this grammatical ambiguity,  always  carefully referring to federal legislative output as “Law” or “legislation” (which Congress “makes” or “passes”).  
Rosenkranz, Subjects of the Constitution  at 1215-16 (emphasis added).
Simply put, you cannot square Rosenkranz’s position with 1/7/3. 1/7/3 speaks to orders, resolutions, and votes, not to “acts”, “laws”, “legislation” or, even, “statutes”.
The intellectual status quo in regard to 1/7/3 should be unsettling—at least for originalists—particularly because the clause is directed, in some fashion, towards the legislative process. 


Laurence Claus: Law's Evolution and Human Understanding
Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Law's Evolution and Human Understanding (51 San Diego L. Rev. 953 (2014)) on SSRN. Here is the abstract: 

This is the author’s response to book conference commentary on Law’s Evolution and Human Understanding from William Edmundson, John Finnis, Michael Steven Green, Mark Greenberg, Frederick Schauer, and Lawrence Solum.

And here is a link to my colleague Laurence Claus' insightful and challenging book Law's Evolution and Human Understanding (Oxford Univ. Press 2012).  The book description from Amazon:

When should we follow the law? How can we know what law's words mean? What is law? Law's Evolution and Human Understanding presents fresh and surprising answers to these questions. In an account alive with the stories of our shared human history, Laurence Claus explains why we should discard the old idea that legal rules tell us what to do, and instead see law as a system of sayings that evolves among humans to help us better understand each other

When driving on public roads, when buying and selling, and in countless other aspects of our work and play, we depend on law to let us know what other people are likely to do and to expect of us. Through fast-paced pages of anecdote and argument, Law's Evolution and Human Understanding explains the revolutionary consequences of seeing law as truly what Oliver Wendell Holmes called it: systematized prediction. The book reveals how this vision of law can transform our thinking about the way we make moral decisions, about the way we read law, and about many other ways that law affects our lives.


Larry Solum's Legal Theory Lexicon: Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has a revised revision of this Legal Theory Lexicon entry "Originalism."  The whole entry is of course essential reading but I'll highlight these two paragraphs that focus on what seem to be central points for modern debate:

New originalists who embrace the distinction between construction and interpretation concede that the meaning of some constitutional provisions is vague, and therefore that these provisions require construction that goes beyond translation of the meaning of the text into legal doctrine.  The core commitment of originalism to fixed semantic content does not entail fixed constructions.  For example, it might be the case that the key phrases that define the constitutional seperation of powers, "judicial power," "executive power," and "legislative power," have an original public meaning that was vague.  Given this vagueness, much of the important work required to resolve a dispute about the application of these phrases must be done by constitutional construction.  This means that originalists who share the core commitment to the idea that meaning was fixed by 1789 when the Constitution was ratified may disagree about the proper method of construction of the separation of powers provisions.

Originalists disagree about other important questions as well.  In particular, there is no consensus among originalists about the normative justifications for fidelity to the original meaning.  Some originalists belive that originalism is normatively justified by popular sovereignty theory: we should adhere to the original meaning because it was ratified by "We the People."  Other originalists, like Randy Barnett, argue that the legitimacy of the Constitution is a function of the justice of its content.  And yet other originalists have argued that adherence to original meaning is justified by the rule of law values of predictability, certainty, and stability.  These disagreements about normative foundations may lead to further disagreements about the extent to which "original meaning" should trump other considerations.  For example, should constitutional actors always adhere to original meaning when it conflicts with historical practice or judicial precedent?

More than Equality, Less Than Federalizing the Common Law: A Response to Christopher Green
Kurt Lash

[Editors' note: for this guest post we welcome Professor Kurt Lash (Illinois ) with a response to recent posts by Chris Green].

My thanks to Michael Ramsey for inviting me to post this brief response to Christopher Green’s recent six-part (!) series of posts on my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge University Press 2014).  I’ve enjoyed the responses to the book I’ve received at talks around the country this year, and I invite those who can to attend the forthcoming February program sponsored by the Stanford Law School Constitutional Law Center.

I am very pleased that both Prof. Green and the Originalism Blog believe that my book warrants such a serious and extended investigation. Despite the critical nature of Green’s comments, I actually found them quite encouraging.  Green defeats an argument I do not make, and his evidence powerfully supports one of my book’s central ideas.

Those who have read both my book and Green’s posts likely already know this.  Those who have read only the latter might want to take a look at a series of posts I wrote for the Volokh Conspiracy.  There, in a few short essays, I summarize the book’s basic arguments and present some of the more critical aspects of the historical record.  In brief, the book argues that the Privileges or Immunities Clause of the Fourteenth Amendment refers to those personal rights of American citizenship that are textually expressed in the federal Constitution.  These rights include not only the substantive liberties listed in the first eight amendments, but also the equal protection rights of Article IV’s Comity Clause, the protections of the Habeas Clause, and all other personal rights listed in the federal Constitution.

For reasons I don’t quite understand, Green insists on characterizing my theory as the Incorporation, Total Incorporation and Nothing But Incorporation, or “ITINBI” approach.  This is a terribly misleading phrase.  Whatever Green’s nuanced understanding of this term, it is likely to mislead readers into thinking that I follow Justice Hugo Black’s idea that the Privileges or Immunities Clause protects nothing more than the rights of the first eight amendments which have been (or ought to be) “incorporated” into the Fourteenth Amendment.  As Green knows, this is not my approach.  Instead, I argue in favor of what I call the “enumerated rights” understanding of the Privileges or Immunities Clause.  As explained above, this reading includes all constitutionally enumerated personal rights and not just those listed in first eight amendments.

The enumerated rights understanding of the Privileges or Immunities Clause understands the text to includethe equal protection rights of Article IV’s Privileges and Immunities Clause—the so-called Comity Clause.  Throughout his six posts, Green presents evidence that the Fourteenth Amendment was understood to include the equality protections of the Comity Clause as described in antebellum decisions like Corfield v. Coryell.  Green repeatedly accuses me of ignoring or downplaying evidence suggesting that this was part of the original understanding of the Privileges or Immunities Clause.

Green is quite wrong about this.  My book presents an abundance of evidence supporting a reading of the Clause that includesthe rights of equal protection as declared in the Comity Clause and in cases like Corfield.  I am thankful for Green’s exhaustive work which provides even more evidence that this was part of the original understanding of the Clause.  I cheerfully accept everything he has to offer on this subject as a friendly addition to similar evidence I present in my book.

Of course (and here I’m not sure whether or not Green agrees), I also argue that the public that ratified the Privileges or Immunities Clause also understood that Clause to protect more than just the rights of equal protection. Speakers high and low in the critical year of 1866 declared that the rights of American citizenship included the substantive rights enumerated in the federal Constitution, including the rights of speech, press, assembly, petition, the right to bear arms, the rights of due process, protection against cruel and unusual punishments, and the rights of habeas corpus.  There was a broad consensus that if a right was announced in the federal Constitution then it ought to be considered a right of national citizenship protected against abridgement by the states.

As one might expect, this was not a unanimous view.  Radical Republicans argued in favor of a broader conception of national citizenship, one that would give the federal government control over the entire subject of common law civil rights.  On the opposite side of the spectrum, Conservative Republicans wanted to enforce the equal protection norms of the Comity Clause—and nothing else.  The broad middle, however, rejected both Radical and Conservative theories and stuck with an idea that everyone could understand and that most people embraced: States should respect those rights announced in the federal Charter--all of them, from the equal rights of the Comity Clause to the substantive rights of the first eight amendments.  My book presents no more than the tip of the iceberg of historical evidence supporting this reading.  If Green hopes to refute this copious body of evidence in his forthcoming book, he has a tough row to hoe.

On the other hand, I also argue in the book that the evidence does not support reading the Privileges or Immunities Clause as somehow transforming the equal protection rights of the Comity Clause into absolute national rights. The Moderate Republicans in the 39th Congress would never have drafted, much less passed, an amendment that nationalized the entire subject of common law liberties—a subject that would have included everything from tort, property and contract law to “the pursuit of happiness.”  Moderates wanted to secure more than equal protection, but they did not want to nationalize the entire subject of local civil rights.  For example, moderate Republicans were so intent on avoiding such a result that they successfully removed the term “civil rights” from the Civil Rights Act of 1866, lest the statute be construed as implying federal power to control the substance of civil rights in the states.

Green claims that I ignore or misconstrue evidence suggesting that framers like Jacob Howard insisted that the Privileges or Immunities Clause transformed the equal rights of the Comity Clause into the absolute rights of national citizenship.  For example, Green points to the following post-ratification 1869 speech by Jacob Howard that Green claims is “powerful evidence” Howard embraced the transformed Comity Clause theory:

The occasion for introducing the first section of the fourteenth article of amendment into that amendment grew out of the fact that there was nothing in the whole Constitution to secure absolutely the citizens of the United States in the various States against an infringement of their rights and privileges under the second section of the fourth article of the old Constitution. That section declares that--"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

There it was plainly written down. Now, sir, it seems to me, that unless the Senator from Vermont and the Senator from Massachusetts can derive the right of voting from this ancient second section of the fourth article upon the ground that the citizens of each State are entitled to all the privileges and immunities of citizens of the several States, they must give up their argument; and I assert here with confidence that no such construction was ever given to the second section of the fourth article of the Constitution.

Contra Green, there is nothing in this passage that suggests Howard believed that the equally protected rights of the Comity Clause had been transformed into absolute national rights.  Howard believed that the Privileges or Immunities Clause protected Article IV Comity Clause rights along with other enumerated rights. Howard did not believe, however, that the Fourteenth Amendment nationalized the rights of suffrage. In the passage above, Howard simply points out to his colleagues that the Comity Clause had never been understood as securing to anyone the rights of suffrage.  If the Comity Clause did not provide that right to anyone (visitor or resident), then neither did the Fourteenth Amendment.

Perhaps Green is led astray by Howard’s use of the word “absolute” in the above passage—but that reference does not signal a transformed understanding of the equality rights of the Comity Clause.  Instead, However is referring to what had been the oft-repeated concern that Congress be granted express power to directly (absolutely) enforce the Comity Clause.  Howard and his colleagues accomplished this by passing an amendment that bound the states to protect the enumerated rights of national citizenship (including those enumerated by the Comity Clause) and granted Congress power (under Section Five) to enforce these rights.  No other reading makes sense given that Howard opposed nationalizing unenumerated local civil rights.  As Howard explained soon after submitting the Fourteenth Amendment,

[If we allow congressional control of suffrage and property rights] we may go through all the details of State policy, State legislation, and individual rights, as regulated by the constitutions of the States .... What, then, becomes of State rights? ... It denies to the people of the States almost all, yes, all, substantially, of those original and immemorial rights which have been exercised by the people of the States ever since the dissolution of our connection with Great Britain.

Howard, like other Moderate Republicans, believed in Federalism.  He would never have supported an amendment that transformed the unenumerated subjects of local common law into congressionally controlled absolute national rights.  This is the only reading that makes sense of all of Howard’s speeches and statements. 

In sum, Green’s “powerful” post-ratification evidence of a transformed Comity Clause turns out to be no evidence at all.  Green’s posts are full of similar assertions about the historical record that he believes point in one direction, but that I believe point in another.  Rather than try to craft a blog post (6?) that engage all of Green’s claims, I encourage everyone to read my book (of course!) and decide for themselves. If our exchange encourages readers to dive more deeply into the history of the Privileges or Immunities Clause, then all to the better.

Chris Green is a formidable scholar (and a truly nice guy) and I look forward to the publication of his own book on the Fourteenth Amendment.  I imagine I will agree with many of his arguments.  For the moment, however, I continue to believe that there is good reason to believe that the people of 1868 embraced a simple and powerful idea: States must henceforth be bound to protect all the rights of personal liberty expressly listed in the people’s Constitution—and nothing more. 

[Further editors' note:  Chris Green's posts are here: Part 1, Part 2, Part 3, Part 4, Part 5, and Part 6.]


Josh Blackman on the OLC Memo and the Constitutional Limits of Prosecutorial Discretion
Michael Ramsey

Josh Blackman has multiple posts on the President's immigration order, including: The Constitutional Limits of Prosecutorial Discretion. Here is an excerpt: 

The Department of Justice Office of Legal Counsel’s memorandum justifying President Obama’s new executive action recognizes that prosecutorial discretion is not “unlimited.” As a result, the memo attempts to draw a line between lawful prosecutorial discretion, and unconstitutional executive lawmaking.

Citing the Supreme Court’s 1985 precedent of Heckler v. Chaney, the memo identifies four “principles governing the permissible scope of enforcement discretion.” First, as the Court noted in Chaney, enforcement decisions should reflect “factors which are peculiarly within [the enforcing agency’s] expertise.” This factor would almost always seem to be satisfied.

Second, the President “cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Specifically, the memo adds, “an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.” This argument reflects the backdrop of Congressional acquiescence, and the failure of the legislative branch to set any broad policies concerning immigration laws.

Plus this: Eight Observations About OLC Memo on Constitutionality of Executive Action on Immigration

And this: My Op-Ed in L.A. Times – Congress has itself to blame for ceding so much power to the President. Here is an excerpt: 

Last week at the Federalist Society convention, a panel was held on the President’s duty to take care that the laws are faithfully executed with John Baker, Ron Cass, John Eastman, Chris Schroeder, Neal Devins, and moderated by Judge Griffith (CADC). Most of the discussion focused on the President’s ability to defer prosecutions of deportations. Sam Stein of the Huffington Post (who was sitting next to me by the only table in the Mayflower with a power outlet) reported “Legal Panel At Federalist Society Begrudgingly Accepts Obama’s Immigration Powers.”

This headline irked many members of the Federalist Society, but Sam accurately reported the event.

The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.

My good friend John Baker made a very important point, which inspired an Op-Ed I wrote in today’s Los Angeles Times.

“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered,” Baker said. “The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”

As usual, John is exactly right on the structure of our Constitution. Throughout the 20th Century, Congress has shirked its duty to legislate and appropriate to maintain the separation of powers.

RELATED:  At Balkinization, Adam Cox and Cristina Rodriguez: Executive Discretion and Congressional Priorities. Here is an excerpt: 

... [I]n the debate leading up to the President’s announcement of administrative immigration relief, most commentators acknowledged that his prosecutorial discretion was not unlimited—that somewhere a line would be crossed from permissible effectuation of enforcement priorities and to an unconstitutional failure to enforce the law.  Yet most commentators—especially proponents of the President using his discretion to provide relief to broad categories of unauthorized immigrants—have been reluctant to specify where that line might be.  We think this is because the line cannot be drawn with precision using conventional legal analysis.  Last night the debate changed with the OLC opinion’s decision to draw a sharp line.

The OLC opinion is a fascinating and important legal document, and in our view it reflects a novel conception of the President’s enforcement authority.  The memo ties the President’s use of his prosecutorial discretion directly to “congressional priorities.”  Again and again, the memo emphasizes the importance of whether a discretionary decision is “consistent with . . . the priorities established by Congress” in the Immigration and Nationality Act.  Where the decision to grant relief tracks priorities reflected in the statute, such as keeping intact the families of citizens and lawful permanent residents, it falls within the zone of discretion. But where the relief cannot be linked to statutory provisions, the executive is constrained.  This is the reason OLC concluded that providing relief to the parents of DACA recipients would not be lawful.

ALSO:  Via Volokh Conspiracy, here is the OLC memo; Ilya Somin comments here.

A Comment in Response to Dale Carpenter Regarding Equal Protection
Andrew Hyman

Mike Ramsey recently quoted Professor Dale Carpenter as follows: “The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice.”  Perhaps it would have been wise if the clause really said that, but I don’t think it was written that way.  Presumably, Professor Carpenter means that the exclusion and hierarchy are supported by nothing but ancient practice together with current legislative action.  As I understand it, this clause of the Constitution does not endorse unreasonable exclusion and hierarchy, but neither does it authorize the federal judiciary to make such reasonableness determinations all by itself.

To start with, let us consider what a few legal luminaries have had to say about the original meaning of this clause of our Constitution.  Keep in mind that these scholars either support a non-originalist meaning of the clause, or alternatively would rely upon other constitutional clauses or values to advance equal rights.   With that caveat out of the way, consider: Professor Laurence Tribe says that “the Constitution lacks a textual basis for much of what is commonly attributed to the very notion of ‘the equal protection of the laws’….[which] was taken to mean less than ‘the protection of equal laws.’”  As far as I am aware, Professor Steven Calabresi has not altered his view that, “the Equal Protection Clause says nothing about equality in the making or implementing of equal laws.” According to Professor Kermit Roosevelt, “the most natural reading of ‘equal protection of the laws’ probably takes it to be about application or enforcement, rather than content.”  Judge Richard Posner is on that bandwagon too: “on its face the equal protection clause guarantees not legal equality but merely equal protection of whatever laws there may happen to be….”  Others could be added to the list, which should at least give pause to anyone who suggests, as Professor Carpenter does, that the U.S. Supreme Court was actually given power in 1868 to strike down whatever governmental classifications that it deems unreasonable and/or hierarchical.  A further caveat: I do not entirely agree with Professor Carpenter but also do not entirely agree with those other luminaries whom I’ve quoted; the truth lies, as it so often does, in the middle.

So where did Professor Carpenter’s notion come from?  It is certainly not original to him, so where did it originate?  As best I can tell, the historical source most commonly cited for this idea is the speech of Senator Jacob Howard introducing the Fourteenth Amendment in the Senate, in 1866.  According to the Congressional Globe, he said: “This abolishes all class legislation in the states, and does away with the injustice of subjecting one caste of persons to a code not applicable to another.”  Don’t get me wrong, these are excellent sentiments to guide legislative action, but if Howard was correct then the Supreme Court could legitimately (though unwisely) characterize virtually any legislative classification as verboten, whether it be a law that imposes special burdens or disabilities upon kleptomaniacs, or children, or police officers, or what have you.  Howard is recorded in the Congressional Globe as saying those words, but I (like those luminaries I mentioned) do not think they are fairly inferrable from the original meaning of the text of the clause.  Equally significant is that not a single solitary one of the newspaper accounts of Howard’s speech included anything like that quote in the Congressional Globe about class legislation.  See hereherehereherehereherehere and here.  However, Howard’s line about “class legislation” did show up in his handwritten draft of that speech.  Why it was omitted from all news reports remains a mystery, though it may be that he skipped over that part of his draft speech, and only included it in the Congressional Globe by altering “the transcript prior to its printing” (which is one of David Hardy’s guesses).

There were other speakers during the ratification period from 1866 to 1868 who mentioned that the Fourteenth Amendment would prohibit class legislation, but there were still others who were more careful and precise.  I myself believe that the Fourteenth Amendment does bar states from having various laws that amount to class legislation, but only if Congress has restrained the executive branch from making such discriminations.  The Equal Protection Clause does not say that “no state shall deny equal protection to any person within its jurisdiction,” although that is how the U.S. Supreme Court has interpreted it.  Can you spot the words I have omitted?


John Stinneford: Death, Desuetude, and Original Meaning
Michael Ramsey

John Stinneford (University of Florida Levin College of Law) has posted Death, Desuetude, and Original Meaning (William & Mary Law Review, Vol. 56, 2014) on SSRN. Here is the abstract: 

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.


Josh Blackman on Whether the Compact Clause Requires Presentment
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: Does the Compact Clause Require Presentment? Here is an excerpt: 

The Compact Clause of Article I, Section 10 provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

As a purely textual matter, it would not seem that the President must sign an interstate compact for it to be effective. The states only need the consent of Congress, which includes both houses. This is contrasted with the Article I, Section 7 presentment clause:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.

“Every bill” that passes both houses must be signed by the President to take the force of law. It is not clear that a “compact” is a “bill,” though it would seem to be some species of federal law for purposes of the Supremacy Clause.  Also, the phrase “Consent,” is quite different from “passed.” In other words “pass[ing]” a “Bill” seems quite different from providing “Consent” for a “Compact.” As a mater of text, I’m not sure if Presentment is necessary.

Erwin Chemerinsky on Objective Judging
Michael Ramsey

At Constitution Daily, Erwin Chemerinsky: There is No Such Thing as Objective Judging. Here is an excerpt: 

There is no such thing as objective constitutional law, or objective law in any area. Supreme Court justices inevitably must make value choices in deciding cases, and these decisions inherently are a product of their life experiences and views.

Inescapably, constitutional law involves the balancing of competing interests, and there is no “objective” way to do this. It is why a conservative, like Antonin Scalia, and a liberal, like Ruth Bader Ginsburg, will so often disagree even though they are equally smart, conscientious, and knowledgeable. No constitutional rights, not even the prohibition of racial discrimination, are absolute. Courts constantly must decide if there is a compelling or at least a legitimate government interest that justifies infringing a right or discriminating.

Is the government’s interest in protecting children sufficient to justify a law that prohibits minors under 18 from buying or renting violent video games without parental consent? Does the desire to protect the privacy and sensibility of those grieving justify forbidding offensive protests at the funerals of those who died in military service? Does the government have a compelling interest in diversity in the classroom sufficient to permit affirmative action by colleges and universities? Do laws that discriminate against gays and lesbians by denying them the right to marry advance any legitimate government interest?


Another Argument for Originalism
Mike Rappaport

In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).

Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.

If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law.  The law is not what the rule of recognition requires, as in the positivist theory.  Nor is the law what would lead to the best results in general, as some versions of the normative theory hold.  Instead, the law is determined through an idealized conception of the law.

Consider this statement by Robert Bork in The Tempting of America:

“When we speak of ‘law,’ we ordinarily refer to a rule that we have no right to change except through prescribed procedures. . . . Statutes, we agree, may be changed by amendment or repeal.  The Constitution may be changed by amendment pursuant to the procedures set out in article V.  It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges.  Though  that has been done often enough, it is in no sense proper.”

How are we to understand Bork’s argument here?  One might see it as a claim about what the law is in a positivist sense.  The rule of recognition allows changes in the law only through these prescribed procedures.

But this argument is a bit peculiar.  What about changes in the common law?  This occurs through judges.  Perhaps Bork would say that judges are allowed to change the common law – this is a prescribed procedure.  But if judges can change the common law, then why can’t they change constitutional and statutory law?  Presumably, Bork would say that written law can only be changed by the same lawgiver who enacted them.  But why?  Who says so?

Bork does not explain his argument, but one might develop it.  Bork might argue that law ought to be determined in this way – as based on the enacted written text – because that is the best understanding of law.  In other words, this is how law should function.  It is an idealized conception – a kind of natural law, if you will – but one that looks to the lawgiver as the source of norms.  While no one can know for sure, this may have been Bork’s underlying view.  And I believe it is a premise of many people’s intuitive originalist beliefs.

Jeremy Christiansen: Returning to the Original Meaning of State Prohibitions on Unreasonable Searches and Seizures
Michael Ramsey

Jeremy Christiansen (Independent) has posted Returning to the Original Meaning of State Prohibitions on Unreasonable Searches and Seizures on SSRN. Here is the abstract: 

All fifty states have search and seizure provisions in their state constitutions. And the overwhelming majority of those states have opted to interpret those provisions as including an exclusionary rule, similar to the Fourth Amendment. The problem with this approach is that it functionally excises law-abiding citizens from constitutional protection because if there is nothing to exclude there is no remedy. And where there is no remedy, there is no right. This Article will set out to provide a solution to this problem from the perspective of originalism.

Part I will first set the stage by contending that originalism is a pervasive and main-stream method of state constitutional interpretation. Nearly every state regularly invokes some iteration of originalism currently and has done so for at least 100 years. This prevalence of originalism in state constitutional interpretation provides a solid precedential platform for returning to the original meaning of search and seizure provisions.

Part II will then seek to apply originalism to uncover the original meaning of state search and seizure provisions. First, Parts II.A, B, and C will discuss how the text and structure of these provisions, along with the constitutional convention debates that accompanied their adoption, point to a nearly uniform original meaning, despite temporal and geographical distance between the various ratifications of these provisions. And the meaning this analysis leads to is that these provisions were not understood to incorporate an exclusionary rule, but were seen as a self-executing, constitutional tort. Part II.D will then examine the prevalent themes in case law discussing the tort of illegal search against both private parties and police officers, concluding that at their core, search and seizure provisions protect the people’s interests in their property, privacy, dignity, and reputation. Violations of these rights would result in the awarding of civil damages, including punitive damages where warranted.

Part III will address various critiques of the outcomes described in this Article and provide responses to those critiques. 

Part IV will then conclude.


Steven Menashi & Judge Douglas Ginsburg: Rational Basis With Economic Bite
Michael Ramsey

Steven Menashi (New York University School of Law) and Judge Douglas Ginsburg (U.S. Court of Appeals for the District of Columbia Circuit ; George Mason University School of Law) have posted Rational Basis With Economic Bite (NYU Journal of Law & Liberty, Vol. 8, No. 3, p. 1055, 2014) on SSRN. Here is the abstract: 

In The Classical Liberal Constitution, Richard Epstein argues that the normative theory of classical liberalism underlies the Constitution and gives life to its guarantees; many constitutional guarantees have been undermined, however, by unduly deferential judicial review that is satisfied if there is a "rational basis," real or hypothetical, for a law. Yet even the rational basis standard asks whether a law serves a legitimate government purpose, which entails normative assumptions about the ends a government may permissibly pursue. Before the New Deal, the Supreme Court applied a form of rationality review that was deferential but not toothless because the Court had a stronger sense of the proper scope of the police power. The contemporary Court applies more searching "rational basis with bite" but only where it thinks impermissible purposes are at play, particularly where legislation appears to target a vulnerable group. Rational basis review, therefore, is variable depending upon the Court's normative frame. 

Recently, three circuit courts applying rational basis review have held licensing laws that restrict entry into a field of economic activity are unconstitutional. These circuits have concluded that a state's purpose to protect an interest group from economic competition is illegitimate — and have struck down licensing regulations that served no other purpose. This application of "rational basis with bite" to protect economic rights suggests another normative shift, one involving public disapproval of rent-seeking and special-interest legislation. In the nearly 60 years since the Court adopted its stance of extreme deference to economic legislation in Lee Optical, a deregulation movement has focused attention on the costs of excessive regulation and public choice theory has undermined the confidence expressed by the Court in Carolene Products that democratic political processes will protect the public from undesirable legislation. The occupational licensing laws invalidated in the circuit cases are precisely the sort of special-interest legislation that the political process is unlikely to screen out. Thus, even the modern concern with "clearing the channels of political change" suggests that heightened judicial scrutiny is warranted. Epstein connects that concern with the Madisonian focus on the problem of faction. His discussion suggests other types of economic legislation should be subject to judicial review using the "rational basis with bite" standard.


Dale Carpenter on Originalism and Same-Sex Marriage
Michael Ramsey

At Volokh Conspiracy, Dale Carpenter: Inverted equal protection: same-sex marriage at the Sixth Circuit (Part I, originalism).  It's a long, thoughtful discussion of originalism and same-sex marriage, critiquing Judge Sutton's approach in the Sixth Circuit opinion.  From the core of the argument:

Principles-based originalism has been used in equal-protection doctrine to enforce the larger principles embodied in the text–like abolishing caste-creating laws and prohibiting discrimination against a group for invidious reasons unrelated to their own merits, that is, failing to treat them like “any person” who possesses equal worth and dignity. The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice. It demands reasons. And what counts as legitimate and sufficiently rational reasons evolves over time, as it has in every area of equal protection. How to reconcile the need to resist “anything goes” in equal-protection cases with the doctrine’s undoubted reliance on a broader principles-based originalism is a genuine problem. But DeBoer does not even acknowledge, much less grapple with it.

In fact, there are originalist-oriented arguments in favor of a constitutional right to same-sex marriage, as Ilya notes, including a recent article by Federalist Society co-founder Steve Calabresi. I don’t evaluate those arguments here, although suffice it to say that originalist arguments can be used plausibly and have been used in fact to reach results that would never have been anticipated by the authors of the amendment. Judge Sutton’s opinion simply does not engage the issue at the level of originalist principle. His originalist analysis is incomplete and selective.

The Sixth Annual Originalism Works-in-Progress Conference
Mike Rappaport

Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference.  The conference brings together many of the leading originalist scholars, both advocates and critics of originalism.  This year’s conference – the Sixth – is being held on February 20-21 at the University of San Diego.  Here is the line up of paper presenters and commentators:

In addition to paper authors and commentators, the Center invites all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  Each year, various leading scholars of originalism attend the conference in this capacity, significantly enhancing the level of discussion through their participation.

For last year’s conference, including a video of the proceedings, see here.

Michael Zimmer on The Supremes’ Category Mistake Plus Magical Money Thinking
Michael Ramsey

At Concurring Opinions, Michael Zimmer: The Supremes’ Category Mistake Plus Magical Money Thinking. An excerpt: 

In Citizens United, the Court made a category mistake: Because money effects speech, money is speech. Last term the Court extended that mistake in Harris v. Quinn: Money is speech even if there is no other speech. This post will see how far this category mistake plus the Court’s magical money thinking goes.

In Harris v. Quinn, the Court struck down the “fair share” agreement provision in the Illinois law providing for union representation of home health care workers as a violation of the First Amendment. The “fair share” provision provides: “When a collective bargaining agreement is entered into with an exclusive representative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective-bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.”

Nothing in this provision requires the non-member to do think, say or do anything vis-à-vis the union in terms of membership or participation in the organization. Indeed, the non-member could be engaged in a raucous and potentially effective campaign to get rid of the union and the union would have no basis to take action directly, or indirectly through the employer, to retaliate against someone who was a real pain in the side of the union. There is simply no connection between the non-member and the union other than that the service fee is deducted from the worker’s pay by the employer and forwarded to the union.

I'm sympathetic, though I'm skeptical any of this can be established by logical reasoning, as both Professor Zimmer and the Supreme Court seem to think (albeit with different conclusions).  The originalist approach, which at least offers some hope of an objective answer, is to ask whether at the time of enactment people thought of money as speech.  Whether thinking that way is a category mistake or a logical extension seems irrelevant: the rule, for an originalist, turns on how the framers viewed it, regardless of whether that was logical.  With the question framed this way, the Court's more aggressive versions of money-as-speech seem, at minimum, not proven.


Seth Barrett Tillman (and Others) on Zivotofsky
Michael Ramsey

Seth Barrett Tillman sends this comment:

You wrote: "But, Congress must always act pursuant to the powers given to it in the Constitution." See http://originalismblog.typepad.com/the-originalism-blog/2014/11/kontorovich-v-ramsey-on-zivotofskymichael-ramsey.html (11/7/2014). You considered several Article I powers (e.g., commerce & naturalisation) which might support Congress' purported power to control passport design. But you rejected those Article I powers as insufficient to authorise Congress here. 

What about the following argument ... Page 5 of my passport says: "U.S. Government Property. This passport is property of the United States. (Title 22, Code of Federal Regulations, Section 51.9)." So Congress' regulatory power over passports and, arguably, over passport design might be supported by U.S. Constitution Article IV, Section 3, Clause 2: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

I think that works.

Eugene Kontorovich comments favorably on this suggestion here: The Government Property Clause and Zivotofsky. But Marty Lederman (Just Security) is not persuaded.

RELATED:  Josh Blackman highlights originalism in the Zivotofsky oral argument: Hamilton and Story on the Recognition Power in Zivotofsky (including Justice Breyer, an "unexpected originalist").

ALSO RELATED:  This article in the National Law Journal discusses legal historian Louis Fisher's amicus brief in Zivotofsky and his campaign to get the Supreme Court to do something about Curtiss-Wright.  Of course, I agree.  Although I'm skeptical of Congress' enumerated power in Zivotofsky, my bigger concern (expressed in this discussion) is that the case not become a Curtiss-Wright-like assertion of wide ranging exclusive executive power.

AND STILL MORE:  Will Baude highlights part of his debate with John Manning that may relate to congressional power in Zivotofsky:  The Necessary and Proper Clause: Master or Servant?

Lash on ITINBI, part 6: Subsequent Interpretations
Chris Green

(1234, 5) I close my review of Kurt Lash's thoroughly-worth-reading book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, with a few comments on subsequent-interpretation evidence.

Is Subsequent-Interpretation Evidence Worth Canvassing? Lash has disparaged such evidence in general, calling it "questionable help," p. 230, and "historically perilous."  What really matters, Lash and I agree, is what a reasonable person participating in the actual act of adopting the Fourteenth Amendment would have understood it to express. I agree with Lash that the 1866 evidence is thus considerably more important than later evidence.  Given the quantity and clarity of subsequent-interpretation evidence, however--particularly the thoroughness of its textual reasoning--I find it extremely valuable as well. We should apply a discount rate, so that the further we get from 1866, the less valuable evidence becomes. This decay may be quite rapid; I would be happy to concede that, pound for pound, equally-well-reasoned and equally-numerous evidence from the period from 1872 to 1875 would be worth only, say, 5% of the value of evidence from 1866. However, because subsequent-interpretation evidence is much more abundant and much better textually reasoned, its relevance approaches the approximate order of magnitude of the 1866 evidence. As I explained in part 4, Lash's book actually led me to find a much greater store of equality-based evidence from 1866 than I had known earlier; given the obvious priority of pre-enactment evidence, perhaps the pre-CRA1875 evidence is not as important as this 1866 cache. But it is close.

Lash's book itself presents some subsequent-interpretation evidence in support of ITINBI (my shorthand for the incorporation, total incorporation, and nothing but incorporation reading of the privileges of citizens of the United States) from John Bingham's incorporation-focused March 1871 speech and from the Ohio Supreme Court's decision in Garnes from May 1872, as well as a creative ITINBI-friendly reading of Slaughterhouse and a tour through several other pieces of subsequent-interpretation evidence, such as Bingham's very confusing and difficult-to-harmonize January 1871 report against women voting and the failed Blaine Amendment of August 1876. Evidence like the March 1871 speech, Lash notes, bolsters the idea that Bingham had a consistent view about nationalizing the Bill of Rights from 1866 to 1871--it "illustrates the continuity in hs thinking from 1866 to 1871," p. 252.  I agree than consistency over time is important, but it is important both for Bingham and for other interpreters as well. Part 3 of this review discussed Jacob Howard's 1869 discussion of voting rights under the Fourteenth Amendment. It is striking that in Lash's chapter on subsequent-interpretation evidence, he notes that "in the end we are left with Jacob Howard's public explanation of the Clause as protecting the constitutionally enumerated rights of citizens of the United States as the most likely original meaning of the text," p. 232, but without commenting on subsequent-interpretation evidence from Howard himself. 

Continue reading "Lash on ITINBI, part 6: Subsequent Interpretations
Chris Green" »


Ilya Somin: Libertarianism and Originalism in "The Classical Liberal Constitution"
Michael Ramsey

Ilya Somin (George Mason University School of Law) has posted Libertarianism and Originalism in The Classical Liberal Constitution (New York University Journal of Law & Liberty, Vol. 8, No. 3, pp. 1045-1054, 2014 (Symposium on Richard Epstein, The Classical Liberal Constitution)) on SSRN. Here is the abstract: 

Richard Epstein’s The Classical Liberal Constitution is an impressive synthesis of between libertarian political theory and constitutional interpretation.

Part I of this brief essay summarizes Epstein’s important contribution to constitutional scholarship, particularly his sophisticated effort to integrate originalism and libertarianism. In Part II, I consider a possible tension in his theory: Epstein’s desire to leave room for government regulation that cures market failures could potentially be used to justify a wide range of nonlibertarian forms of government intervention that might undermine the very constitutional rights that he seeks to protect.

Part III suggests that the tension in Epstein’s theory can be partially mitigated by greater reliance on originalism with fewer policy-driven exceptions for market failures. Given real-world judges and political actors, this might result in greater economic efficiency as well as stronger protection for individual freedom approach. In the process of considering these issues, I focus on judicial interpretation of the Bill of Rights. It may be helpful to look at the original meaning not just in 1791, when the Bill of Rights was first enacted, but also in 1868, when, as a result of the Fourteenth Amendment it became incorporated against state governments. The case of the Public Use Clause of the Fifth Amendment, which Epstein and I have both written about extensively, exemplifies each of these points.


Brian Bix: New Legal Realism and the Explanation of Judicial Behavior
Michael Ramsey

Brian Bix (University of Minnesota Law School) has posted New Legal Realism and the Explanation of Judicial Behavior: Doctrine, Data, and High Theory on SSRN. Here is the abstract: 

This article was originally presented at the New Legal Realism 10th Anniversary Conference, held at the University of California-Irvine Law School in August 2014, for the panel, "Realism About Judges, Doctrine and Power."

The article explores the history of realism and the explanation of judicial behavior, with discussions of contemporary political theory approaches to judicial behavior (in particular, the "attitudinal model" of judicial behavior).

The article notes that while it is likely that most judges act in good faith when deciding cases, seeing themselves as open-minded in deciding the legal disputes before them, legal and political science observers (and others) notice patterns seemingly more related to ideology than doctrine. The idea that judicial decision-making is "political," and that in court decisions we are being governed as much by the people as by law, is now a commonplace, but the underlying reality of judicial decision-making remains complicated, with much work still to be done by empirical research. 

The article argues that there remains a role also for (non-empirical) legal theorists in this debate, to investigate and clarify what is meant by "legally determined outcomes," and to help to ascertain which issues are in fact legally determined and when even predictable outcomes might be explained by factors other than legal doctrine.


My Contribution to the Notre Dame Law Review Symposium on Bond v. United States
Michael Ramsey

Today the Notre Dame Law Review is hosting a symposium on treaty power after Bond v. United States where I'll be presenting a paper called "Congress' Limited Power to Enforce Treaties".  Here is the introduction (for now); I'll post a full draft on SSRN shortly.

This essay focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points.  First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning.  Second, Scalia’s structural policy concerns about effectively unlimited congressional power are nonetheless partly justified to the extent the Court substantially defers to Congress’ claims about what action is necessary to enforce a treaty.

Third, therefore, courts should not defer to Congress in this matter.  Although Congress has power to pass laws necessary and proper to enforce treaties, Congress must use this power in ways that can be shown to be necessary and proper.  In particular, review should occur on two dimensions.  Courts should make an independent assessment of the meaning of the treaty, including employing a presumption that the treaty does not affect purely domestic matters.  Courts should also make an independent assessment of the necessity and propriety of Congress’ legislation, prominently including in this assessment whether enforcement of the treaty is required to be done at the federal rather than the state level.

As an illustration, application of this approach in Bond v. United States would find the legislation (as applied to Bond) unconstitutional, both because the Chemical Weapons Convention did not reach Bond’s conduct and because, even if it did, state regulation was adequate to assume U.S. compliance with the Convention.  As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited that it does not pose an undue threat to federalism.

Lash on ITINBI, part 5: 1866
Chris Green

The first 4 parts of this review (1, 2, 3, 4) of Kurt Lash's very important book on the Privileges or Immunities Clause consider the differences between 1791 and 1868, the Bill of Rights's inherent unabridgeability, evidence that the IV/2/1 comity clause and the 14A were more closely related than Lash allows, and evidence that the guarantees of the privileges of citizens of the United States were understood as equality guarantees, i.e., entitlements to enjoy the same rights as similarly-situated fellow citizens of the United States.

The theory that the privileges of citizens of the United States are only those set out elsewhere in the Constitution, which I call ITINBI--incorporation, total incorporation, and nothing but incorporation--also has trouble with three very-prominent aspects of the 1866 debate over the Privileges or Immunities Clause: (a) the association of the Privileges or Immunities Clause with the Civil Rights Act of 1866, which included rights like the freedom of contract, the right to testify, and the right to own land, not enumerated expressly in the Constitution; (b) Republican non-ITINBI explanations of the lack of voting rights, and (c) Republican failure to invoke ITINBI to rebut Democratic charges of indeterminacy.

CRA1866. To his credit, Lash at 196 n.76 quotes at length Speaker of the House Schuyler Colfax's August 7 explanation of the Privileges or Immunities Clause (available in the fantastic Cincinnati Commercial collection):

We passed a bill on the ninth of April last year, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease, and sell property, and be subject to like punishments. That is the last law upon the subject.

Colfax's examples of the rights of citizens of the United States were, of course, not rights in the Bill of Rights. As Lash notes, the Cincinnati Commercial collection contained "many similar examples." Lyman Trumbull argued the same way on August 2, and Zachariah Chandler on October 22; Thaddeus Stevens on September 4 noted his agreement with Colfax. Bond quotes a similar statement from  the Old North State of October 6. McPherson quotes the American Gazette on September 28 and the Baltimore Gazette on February 3, 1867. Similar statements also were made by General John A. Logan in the Butler County, Pennsylvania American Citizen of September 5 and in a South Carolina Republican platform reported by the Charleston Daily News for July 28, 1870.

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Jonathan Adler on King v. Burwell
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: The test to textualism in King v. Burwell: A Reply to Abbe Gluck (a long post setting out the textualist argument in the Obamacase subsidies case and responding to Professor Gluck's view that textualism acutally supports the government's position).

Alison LaCroix: Redeeming Bond?
Michael Ramsey

In the current issue of the Harvard Law Review Forum, Alison LaCroix (University of Chicago Law School) has the article Redeeming Bond? (128 Harv. L. Rev. F. 31 (Nov. 2014)) (responding to Heather K. Gerken, The Supreme Court, 2013 Term — Comment: Slipping the Bonds of Federalism, 128 Harv L. Rev. 85, 90 (2014)).

From the introduction: 

Professor Heather Gerken subjects the Supreme Court’s decision in Bond v. United States to a range of pointed and well-deserved criticisms. In particular, she notes the circularity of Chief Justice Roberts’s statutory analysis, writing that “the Court thought the statute was ambiguous . . . [b]ecause it had to be.” Gerken also characterizes Bond as a return to what she terms a “relational” theory of federalism, according to which the analysis begins with the power of the states. She contrasts this approach with what she suggests is the only other alternative offered by the Rehnquist and Roberts Courts: an analysis that “defines federal power in isolation.” This federal power–driven approach “start[s] with Congress and attempt[s] to delineate the bounds of its power without reference to the states.” In the return to the relational account, Gerken finds something to praise in Bond (although she notes that the Court “takes the wrong path to get there” by focusing on state sovereignty, a concept she believes has become “a camp- fire story”). A federalism analysis that starts with the states is clear, and it avoids the problem of “how to bound the boundless.” In the end, then, Gerken endorses Bond as a demonstration that “[b]ad theory can make good law or at least halfway decent doctrine” that is “reasonably manageable and coherent.”


In my view, Bond works a significant change in the federalism case law, but not precisely in the direction that Gerken suggests. Gerken frames Bond as a crisis averted for more nationalistically inclined champions of federalism, and as a salutary opportunity to rethink how a state-focused analysis might be applied to federalism cases. But although Bond initially appears to depend on the relationship between the state side of the federalism analysis and the congressional side, it ultimately turns out to be much more about a judicially defined hierarchy of congressional powers. And while the Court labors to conceal behind a scrim of statutory interpretation its sweeping structural and supra-textual account of why the Chemical Weapons Convention Implementation Act of 1998 does not reach Carol Anne Bond’s conduct, it continues its quiet transformation of federalism doctrine.


John Manning: The Means of Constitutional Power
Michael Ramsey

In the current issue of the Harvard Law Review, John Manning: Foreword: The Means of Constitutional Power (128 Harv. L. Rev. 1 (2014)).  From the introduction:

The Supreme Court has always had a lot to say about the means used to implement the Constitution. I do not refer to headline-grabbing topics such as the freedom of speech, the right to bear arms, or the prohibition against cruel and unusual punishments. Instead, I mean the mundane but important task of constituting the government — delegating power; setting up agencies; structuring their relationship to the President; establishing rules of administrative procedure; setting up the federal courts; creating rights of action, burdens of persuasion, and statutes of limitations; instituting cooperative (or not-so-cooperative) federal-state partnerships; and the like. One might think that, by virtue of the Necessary and Proper Clause, primary responsibility for all such questions would lie at Congress’s door. But the Supreme Court, too, exercises great influence over the means of implementing constitutional power — in no small part because the Court itself establishes the rules of statutory and constitutional interpretation that structure the allocation of decisionmaking authority. Consider two examples.

First, without the benefit of any express direction from the Constitution or from federal statutes, judge-made rules of statutory construction deeply affect how federal power is carried out and by whom. In particular, such rules tell us how much authority the judiciary (or executive) has to smooth out, or even supplement, the means specified by statutory texts when the courts think a tweak or two is necessary to effectuate the purposes of legislation. Important things turn on this question — issues such as the judicial power to enforce the spirit over the letter of the law, the availability of implied rights of action, and the scope of federal preemption, just to name a few.

Second, in the exercise of Marbury-style judicial review, the Court directly passes judgment on the validity of the governmental arrangements Congress establishes. Again, since the particulars of the American doctrine of judicial review are entirely judge-made, the Court’s approach to such cases profoundly affects the distribution of power to compose the federal government. If the Court acts like a gentle Thayerian in structural constitutional cases, deferring to Congress’s judgment about the uncertain contours of principles such as federalism or the separation of powers, then Congress rather than the Court will have broad latitude to configure the government. If, however, the Court exercises independent judgment about the often open-ended reach of those principles, the Court itself will have the final say about many important questions concerning the shape of American government.

Novel approaches to both statutory interpretation and structural constitutional law, more generally, have become signatures of the Rehnquist and Roberts Courts. A central but overlooked paradox of contemporary structural constitutional law is that the Court has moved in sharply different directions in these two contexts. In matters of statutory interpretation, the Court has shifted toward a new textualism, which has sought (though not with perfect consistency) to promote Congress’s ability to specify with precision the means of constitutional power. In the past, the Court itself had asserted judicial power to reshape the letter of the law to make it cohere better with broader legislative purposes. By adhering, instead, to the words of the statute as written, today’s Court enables Congress more predictably to express its preference for outcomes that may not be so coherent — that include rough accommodations, take only baby steps toward some broader purpose, or adopt crisp rules that favor certainty over achieving a perfect means-ends fit. This regime thus gives Congress greater control over the implementation of its constitutional power.

In constitutional adjudication, by contrast, the Court has asserted greater power than before to second-guess Congress’s judgments about the composition of the federal government and the implementation of federal power. The Rehnquist and Roberts Courts have repeatedly invalidated statutory programs, but not because those programs violated some particular constitutional provision, settled course of constitutional practice, or specific line of judicial precedent. Rather, its “new structuralism” rests on freestanding principles of federalism and separation of powers. In cases involving questions as diverse as the commandeering of state officials, state sovereign immunity, presidential removal power, and standing (to name a few), the Court has moved from high levels of constitutional generality to granular prohibitions on the exercise of legislative power. Because those cases turn on abstract and often conflicting structural policies, their outcomes almost always involve large interpretive discretion and fall within a range in which reasonable people can easily disagree. By exercising independent judgment in those cases, the Court gives itself, rather than Congress, the final say about how to implement federal power.

This Foreword argues that the constitutional text itself favors an approach to both statutory and structural constitutional law that defers, within broad bounds, to congressional authority to determine how to implement constitutional power. In several important contexts, the Constitution grants implementation powers to Congress. These include the Necessary and Proper Clause, the Rules of Proceedings Clause, the Full Faith and Credit Clause, and the Enforcement Clauses of the Civil War Amendments and of the subsequent amendments modeled after them. This pattern is telling. It suggests that the people tasked their most immediate agent — Congress — with special powers to implement some but not other parts of the Constitution. In particular, the document gives Congress power to implement all federal powers — its own and those of the coordinate branches — but only specified federal rights.

Via Will Baude at Volokh Conspiracy, who has this response in the Harvard Law Review Forum: Sharing the Necessary and Proper Clause: The indeterminacy of deference.  Here is the introduction:

Few constitutional clauses have been the focus of so many hopes and fears as the Necessary and Proper Clause.

In his Foreword, Professor John Manning puts forward a powerful vision of the clause, challenging the current approach of the Supreme Court. Focusing on the text, Manning suggests that it “has the unmistakable feel of an ‘empty standard,’” and is therefore a source of great interpretive discretion.. Manning further argues that the text gives that interpretive discretion to Congress. Many of the congressional-power decisions of the Roberts and Rehnquist Courts might fail under this critique.

Constitutional text is a natural focal point for those who challenge current judicial practice, and Manning is right to ask whether the Court’s doctrines have transgressed or misread the text. But Manning’s proposed reading of the text is not the only one. To choose between them, we need additional sources or theories of meaning, and at least some of them will point to a different assessment than Manning’s.

In this Response, I argue that historical practice, McCulloch v. Maryland, and the text itself all permit, though may not require, a less deferential judicial interpretation than Manning advocates.

Lash on ITINBI, part 4: Equality
Chris Green

(Parts 1, 2 and 3) I continue my review of Kurt Lash's excellent book with some evidence in support of the view I favor--that the Privileges or Immunities Clause requires equality in the privileges of similarly-situated citizens of the United States--which, I think, Lash does not adequately rebut. I focus on two sorts of evidence which, on Lash's principles, he should take particularly seriously: evidence from the treaty provisions like the Louisiana Cession of 1803, and evidence from the 1866 public debate.  A later post will discuss subsequent-interpretation equality evidence preceding the Civil Rights Act of 1875, of which there is an enormous amount. But first let's talk about treaties and 1866.

Treaties. One of the very important contributions from Kurt Lash's scholarship on the Privileges or Immunities Clause has been his focus on provisions like the 1803 promise to Napolean to supply the "rights, advantages, and immunities of citizens of the United States" to those in the Louisiana Territory. Restrictive interpretations of this language, limiting it to rights set out in the federal Constitution, were made by Daniel Webster and his allies in rebutting the Southern-Democratic argument that it encompassed Missourians' right to legalize slavery.  

I agree with Lash that the terms "privileges" and "immunities" were themselves not sharply distinguished from each other, or from terms like "rights" or "advantages," in the context of the Privileges or Immunities Clause. The restrictive phrase "of citizens of the United States" was critical in the Fourteenth Amendment, and treaties which use the same restrictive phrase were therefore a more precise textual background for the Privileges or Immunities Clause than was Article IV. (As explained in part 3, however, Article IV as glossed used the same restrictive language as the 14A.) 

There was a great deal of evidence, however, which Lash does not confront, that the 1803 promise of the rights of citizens of the United States was understood as a promise of the rights of other similarly-situated citizens of the United States. It was a promise that the new citizens of the Louisiana Territory would not become second-class citizens.  This interpretation fits the context of Reconstruction perfectly: it was chiefly a promise that new citizens--the freedmen--would not become second-class citizens.

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Josh Blackman: The Burden of Judging
Michael Ramsey

Josh Blackman (South Texas College of Law) has posted The Burden of Judging (8 NYU Journal of Law & Liberty 1105) on SSRN.  Here is the abstract: 

Constitutional law is built on the bedrock foundation that courts should defer to the democratic process, especially in the context of economic regulations, unless the law touches on certain “fundamental rights” or affects “discrete and insular minorities.” Three important books on constitutional theory challenge and emphatically reject this principle: “The Classical Liberal Constitution” by Richard Epstein, “Restoring The Lost Constitution: The Presumption of Liberty” by Randy Barnett, and “Terms of Engagement” by Clark Neily. All three books powerfully plow through a dense hallowed ground of judicial review and economic liberty, and spring from a shared intellectual fountainhead. After reviewing these three insightful works, I develop two complementary accounts of how judges decide cases: “public choice constitutionalism,” and “the burden of judging.”

First, public choice theory presumes that many laws are the end result of “interest group” politics, aimed at concentrating benefits on favored groups and dispersing the costs. Public choice constitutionalism provides a judicially-imposed check to this rent-seeking and capture. There are shades of public choice constitutionalism embedded in our Constitution, as evidenced by the text and history of the doctrine of Enumerated Powers and Federalism, the Contracts Clause, the Takings Clause, the 14th Amendment, and elsewhere in our founding documents such as The Federalist. Through engaged judicial review, public choice constitutionalism can serve to correct “government failures” in the sense that judicially-enforced antitrust law corrects “market failures.”

Second, based on a refined understanding of public choice constitutionalism, I provide an alternate understanding to the Supreme Court’s balkanized approach to judicial review. Beyond the perfunctory task of labeling a right fundamental, or noting that strict scrutiny applies, the real judicial heavy lifting occurs at the outset—placing a burden on either the individual or the government, and calibrating the weight of that burden. Viewing scrutiny in terms of who bears the burden, and how strong the burden is, offers a more accurate description of the Supreme Court’s decisions when it avoids talking about scrutiny. More importantly, this theory helps to reconcile the Court’s varied opinions that meander among, or even disregard, the tiers of scrutiny. Instead of chiseling out the so-called tiers of scrutiny, accounting for these burdens serves as a more accurate descriptor of the manner in which governments and individuals have their constitutional rights either vindicated or vitiated. This task--not an easy one, but a necessary process that cannot be shirked--is the burden of judging.

 More from Professor Blackman here

I had the honor of contributing to a symposium issue of the NYU Journal of Law & Liberty on Richard Epstein’s recent magnum opus. My piece is called The Burden of Judging. I use this occasion to write a hybrid review, and adaptation of three important books in constitutional law.  The Classical Liberal Constitution by Richard Epstein, Restoring The Lost Constitution: The Presumption of Liberty by Randy Barnett, and Terms of Engagement by Clark Neily.

This article, perhaps more than others, sketches out some of my broader theories of constitutional law, influenced heavily by all three authors over the years. Epstein’s magnum opus offers a systematic account of how our Constitution is built on classical liberal philosophy, and how the Supreme Court’s artificial bifurcation of our rights is fatally flawed. Barnett’s massively influential restatement of constitutional law articulates that our Constitution is animated with a presumption of liberty for all rights, which courts are to enforce. Neily’s riveting narrative recounts how actual lives are harmed by judicial deference, and calls for “judicial engagement” to protect economic liberty.


Earl Maltz: The Joint Committee on Reconstruction and the Drafting of the Fourteenth Amendment
Michael Ramsey

Earl Maltz (Rutgers School of Law-Camden) has posted Moving Beyond Race: The Joint Committee on Reconstruction and the Drafting of the Fourteenth Amendment (Hastings Constitutional Law Quarterly, forthcoming) on SSRN. Here is the abstract: 

April 28th, 1866 was by any standard a pivotal moment in the evolution of American constitutional law. On that date, the Joint Committee on Reconstruction voted to replace a provision of the proposed Fourteenth Amendment that focused only on racial discrimination with the current text of section one. This decision created the predicate for much of modern constitutional law, including but not limited to the Court’s treatment of gender discrimination, abortion, gay rights, criminal procedure and freedom of speech.

This article provides a detailed analysis of the forces that shaped the Joint Committee’s decision. The article contends that the decision to abandon race specific language in favor of the current formulation of section one must be viewed through the lens of the efforts of the Republican party to put forward a detailed, politically viable plan of reconstruction in the aftermath of the Civil War. The article concludes by discussing the significance of this insight for efforts to divine the original meaning of section one.

Lash on ITINBI, part 3: "Abridge," "In," Bingham 1867 and Howard 1869
Chris Green

(Part 1, Part 2). I continue with my series on Kurt Lash's book on the Privileges or Immunities Clause; Lash defends what I call ITINBI: incorporation, total incorporation, and nothing but incorporation. This post highlights one 14A textual problem for ITINBI, one IV/2/1 textual complexity for Lash's argument for ITINBI, and two very important pieces of evidence in favor of a close relationship between IV/2/1 as understood and the 14A.

First, the "which shall abridge" language of the Privileges or Immunities Clause is in tension with ITINBI, because the set of rights set out in the federal constitution is not susceptible of abridgement by state action. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." If “abridge” means simply “shorten,” which 1868 dictionaries suggest it did, then the “privileges or immunities of citizens of the United States” set must be something states can in principle shorten. But states cannot shorten the Bill of Rights itself (or the set including other textually-enumerated rights).

Second, Lash distinguishes too sharply between “privileges or immunities of citizens of the United States” and Article IV’s “privileges and immunities of citizens in the several States,” a phrase Lash uses many times in isolation. But “in the several states” can refer adverbially to the manner in which privileges are to be enjoyed by visitors, rather than adjectivally to the set of privileges.

Recall the text of the comity clause: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Reading “in the several states” adverbially--that is, as modifying "shall be entitled," rather than adjectivally as modifying "privileges and immunities" or "citizens"--makes IV/2/1 a general guarantee of the “privileges and immunities of citizens,” a formulation of which 14A P/I is a precisification. "In the several States" says, on this reading, where the citizens of each State are to have their entitlement, not where citizens or privileges are located.

Both IV/2/1 and the 14A concern the privileges and immunties of citizens. The 14A is more specific--the privileges and immunities of citizens of the United States--but if we assign "in the several States" to "shall be entitled," the set of privileges covered by the 14A language and that of IV/2/1 can be made consistent.

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Judge Jeffrey Sutton on Originalism
Michael Ramsey

Josh Blackman excerpts Judge Sutton's comments on originalism in the recent same-sex marriegae decision.  Most notably: 

All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation—that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. See U.S. Const. art. V. If American lawyers in all manner of settings still invoke the original meaning of Magna Carta, a Charter for England in 1215, surely it is not too much to ask that they (and we) take seriously the original meaning of the United States Constitution, a Charter for this country in 1789. Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it.

Further quotes at the link.  The first part of this statement, if true, is evidence for the emerging originalism-is-the-law approach.  I'm not sure it's true, though.  I like the rest of it, especially this, which is worth repeating: 

The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so.


Daniel Hulsebosch: Constitution-Making and the Wider World in the American Revolution
Michael Ramsey

Daniel Hulsebosch (New York University School of Law) has posted The Revolutionary Portfolio: Constitution-Making and the Wider World in the American Revolution (Suffolk University Law Review, Vol. 47, 2014) on SSRN. Here is the abstract: 

This article argues that American constitution-making in the founding era was an international process. At the outset of the Revolution, the Continental Congress and the revolutionary assemblies collaborated to construct a portfolio of foundational documents that American diplomats carried across the Atlantic to seek European support. In the spring and summer of 1776, Congress drafted three of the documents: the Declaration of Independence, the Articles of Confederation, and the Model Treaty. At exactly the same time, Congress recommended that the states draft a fourth type of document: state constitutions. Two dimensions of internationalism operated in the making of this portfolio. One was classically diplomatic: The documents were designed to persuade foreign states and their subjects to acknowledge American independence. The other was cultural and intellectual: The concepts and language with which the revolutionaries drafted their portfolio were part of a common transatlantic political culture, and the resulting documents were premised on the Enlightenment goal of redesigning government within and among nations to foster commerce and reduce the propensity for war. The portfolio thereby contributed to what can be called the "Constitutional Enlightenment." This second dimension was related to the first, in that legible government would help induce Europeans to see the American states as true states. The transatlantic elements of the portfolio provided European audiences with a stylized description of governance on the ground and an aspirational program for the new governments in progress. However, this intellectual dimension was also autonomous from diplomacy because it permitted Europeans to detach the revolutionary portfolio from the human events transpiring in North America and make it the object of transnational discussion about the optimal forms of institutional design, a discussion that could in turn be brought to bear on politics in Europe. The portfolio therefore helped transform the classical study of politics into the modern and potentially revolutionary project of comparative constitutionalism.


Kontorovich v. Ramsey on Zivotofsky
Michael Ramsey

Eugene Kontorovich and I debate -- or maybe discuss, since we don't disagree all that much, except as to the right result -- the issues in Zivotofsky v. Kerry (at Jeffrey Rosen's National Constitution Center website).

To recap, a short version of my view:

(1) The President has diplomatic power from Article II, Section 1's grant of "the executive Power," but this power is not exclusive.  So Congress can pass laws that interfere with the President's diplomacy without raising constitutional problems.  For example, Congress can impose a trade embargo on a country with which the President is trying to establish good relations.  As Justice Scalia said in the oral argument, Congress is free to antagonize any country it wants to.  (Dahlia Lithwick at Slate makes fun of that comment here, but Scalia has it right).  The idea that the President has some wide-ranging exclusive power to engage with foreign nations is entirely contrary to the Constitution's text (which gives many foreign affairs powers to Congress) and history (notably including the views of Hamilton, the foremost advocate of executive power in the founding era, who described presidential and congressional power in foreign affairs as concurrent).  Thus, if Congress has the power to direct Zivotofsky's passport to show birth in Israel, the President must comply, even in the face of damage to his foreign policy.  (Professor Kontorovich and I basically agree on this point).

(2) But, Congress must always act pursuant to the powers given to it in the Constitution.  The full quote from Scalia at oral argument is "If it [the act] is within Congress' power, what difference does it make if it antagonizes foreign countries?"  Again, exactly right: it makes no difference, if Congress has power in the first place.  I doubt it does.  The only possible Article I, Section 8 powers are foreign commerce and naturalization.  Congress may have some power over passports in connection with the commerce power, but how the passport reflects Zivotofsky's birthplace seems far removed from any commercial interest Congress might have.  In our discussion, Professor Kontorovich puts much weight on the naturalization power, but I'm unpersuaded.  Again, the need to identify U.S. citizens might give Congress some power over passports.  But here it seems clear the Congress' purpose had nothing to do with the identification aspects of a passport.  Instead, it was using the passport to send a message (or rather to allow Zivotofsky to send a message) about the status of Jerusalem.  No enumerated power of Congress supports this role.

So in my view the President should win, but not on the broad grounds the President principally argues.

Lash on ITINBI, part 2: 1791/1868
Chris Green

In part 1, I ran through the sorts of evidence in Kurt Lash's book, which defends a form of what I call the "incorporation, total incorporation, and nothing but incorporation" (ITINBI) theory of the Privileges or Immunities Clause. Here, I suggest one big problem for rooting 14A privileges in the enumerations elsewhere in the constitution, and particularly in the list of personal rights in the Bill of Rights: these rights were crafted in a very different context from the one confronting Congress and the freedmen in 1868.

Someone once said that a handsaw is a good thing, but not to shave with. Using a Bill of Rights designed only to confirm and supplement limited federal power as the chief means of greatly expanding federal power by shielding new citizens of the United States from oppressive states poses a shaving-with-a-handsaw difficulty.

Handsaw shaving

The contexts of 1787 and 1791 were very different from that of 1868. The Bill of Rights (and other rights set out in the federal-constitutional text, like I/9/2) were intended to safeguard citizens against the new federal government of limited powers, and this is distinct from providing a catalogue of the rights most important against government generally. The 9A is a strong hint that the privileges of citizens of the United States are not set out exclusively in the constitutional text.

Senator John Sherman made exactly this point on February 6, 1872, the same day that his rhyming fellow Ohio Senator, Allen Turman, first deployed ITINBI against the civil-rights proposals that became the CRA1875.

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