02/25/2017

John Vlahoplus: Toward Natural Born Derivative Citizenship
Michael Ramsey

John Vlahoplus (independent) has posted Toward Natural Born Derivative Citizenship (forthcoming, British Journal of American Legal Studies Vol. 7) on SSRN.  Here is the abstract:

Senator Ted Cruz's campaign for the Republican presidential nomination again raised the question whether persons who receive derivative citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders and the First Congress to show that they are not natural born under the doctrinal and historical meaning of the term. 

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land. 

The article examines the meaning of the term "natural born" in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable theory of natural born derivative citizenship.

Thanks to Seth Barrett Tillman for the pointer.  I read an earlier draft; the attention to eighteenth-century British sources is impressive.

02/24/2017

Requiring Freedom of Speech and Press in Every State via the Commerce Clause in Combination With the Equal Protection Clause
Andrew Hyman

For originalists, a most difficult and pressing question is what to do about applying the First Amendment and other parts of the Bill of Rights against the states.  That has been done heretofore via the Due Process Clause, but that type of incorporation has been widely (and rightly) regarded as illegitimate.  If clearly illegitimate, those cases ought to be overturned, because deliberate usurpation of constitutional power is not nice, and is the most dangerous sort of precedent.  But there are alternatives to simply letting states decide for themselves what to do about these fundamental rights. 

The leading alternative has been to use the Privileges or Immunities Clause of the Fourteenth Amendment, but that Clause unfortunately makes the rest of the Fourteenth Amendment look like a model of crystalline clarity by comparison.  While I have in the past supported a rather narrow interpretation of the Privileges or Immunities Clause that would only apply against states those rights that are spelled out in the Constitution, the arguments for various other interpretations of that clause are non-trivial and plentiful, so it's quite understandable that the courts have been reluctant to go along (cf. the 2010 case of McDonald v. Chicago in which the Privileges or Immunities Clause was the basis for the deciding vote of Justice Thomas, though I doubt it was because of the amicus brief that I wrote urging that approach). 

If the First Amendment is not incorporated against the states, it would not be the end of the world.  On the contrary, the country would doubtless pass a new constitutional amendment just like it has done plenty of times already.  But there is no need for that, in my view, because Congress has ample power to get the job done.  To keep things simple, I will focus here only on the speech and press clauses.

No one, presumably, would dispute that Congress has ample power under the Commerce Clause to say that no state shall infringe the speech and press rights described in the First Amendment, with respect to journalists traveling from out of state who are speaking or writing within the scope of their employment.  The same is probably true even when opinion or news journalists from out of state are speaking or writing outside the scope of their employment, for at least two reasons: first, it is necessary and proper to avoid the difficulties of determining exactly what expression is inside or outside the scope of employment, and, second, journalism would be chilled if journalists despise visiting states where they cannot fully exercise such a fundamental right as free speech outside of their work.  Suppose, then, that Congress backstops the freedom of speech and press for journalists by enacting such a statute under the Commerce Clause (I do not know whether President Trump would sign it after characterizing the mainstream media as an enemy of the American people, but suppose he does not veto it).

One might object on Comity Clause grounds that it is unconstitutional to discriminate between in-state and out-of-state journalists.  Indeed, though “privileges and immunities” typically do not include natural rights, they can still refer to the means of protecting natural rights.  But this is no problem, because the Comity Clause only requires that a state not discriminate against citizens from out of state, and does not prevent discrimination in favor of citizens from out of state.  So the federal statute protecting journalists should withstand constitutional scrutiny (it also may be that the Comity Clause only refers to certain rights of all in-state citizens rather than just a subset like journalists).

Now, consider the Equal Protection Clause.  Presumably most lawyers would  agree that when a state inhibits the ability of everyone to speak and write freely, but makes an exception for journalists from out of state, that raises a reasonable equal protection issue.  And, because speech and press rights are fundamental, strict scrutiny of the state’s discrimination ought to be triggered in the courts.  In my view, then, the Equal Protection Clause can be used to extend the coverage beyond journalists, to everyone else in the state, including not just local journalists, but also bloggers, protesters, and all other human beings in the state.  That is because the state does not have a compelling interest in protecting speech by out-of-state journalists alone.

Now, I would like to anticipate some objections.  First of all, one might argue that the business of journalism can flourish even if reporters do nothing more than observe and then go back to their home states and report about it (by speaking and writing).  While there is some truth to that, still Congress has always been allowed under the Commerce Clause to regulate commerce based upon moral and cultural concerns rather than economic concerns.  That is evident, for example, from the Constitution itself, which explicitly allowed Congress to bar importation of slaves after the year 1808.  And there is no question that securing the speech rights of itinerant journalists is a regulation of interstate commerce.

Another possible objection is that combining the Commerce Clause and the Equal Protection Clause in this way would not be limited by the Bill of Rights, and so would place unlimited power in federal hands.  My response is that the power in federal hands would actually be reduced, because instead of the judiciary unilaterally decreeing fundamental rights based (improperly) upon the Due Process Clause of the Fourteenth Amendment, any such decree in the future would require a concurrence of Congress (in exercising the commerce power) with the judiciary (which determines how the Equal Protection Clause operates).

And how about the cases that have explicitly limited congressional power under the Commerce Clause, like U.S. v. Morrison which addressed sexual assault?  Can Congress forbid sexual assault during any interstate business trip, and then have that law extended via the Equal Protection Clause to everyone else in a state?  Well, no, because there is typically no state action when a person is sexually assaulted, whereas the Equal Protection Clause has always been understood  correctly by the courts as a limit on state action only.  Likewise, this concept of combining the Commerce Clause with the Equal Protection Clause to protect free expression would not commandeer states, because states would not be required to take any action for or against anyone; but, if a state tries to act against free speech by out-of-state journalists then the state would be stopped via the Commerce Clause, and if the state tries to act against free speech rights of anyone else, then the state would be stopped via the Equal Protection Clause.  States are stopped right now from violating free speech rights, without any suggestion that a commandeering principle has been violated.

Let’s consider one last scenario.  Suppose Congress purports to forbid people from smoking indoors in public, nationwide, on the basis that secondhand smoke would chill businessmen from visiting smoky states.  First of all, I doubt that Congress would want to do this.  Second, I doubt that the courts would deem freedom from secondhand smoke to be a fundamental right.  Third, the Equal Protection Clause would not be applicable because there would be no state action.  Fourth, the Commerce Clause would be an equally adequate (or inadequate) basis for such a federal law at virtually every public indoor place within a state, so the Equal Protection Clause would not be needed even if it were applicable.

Has Originalism Been Tried?
Mike Rappaport

Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego.  It was another very enjoyable and productive event.  University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post:

I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was one of a small but non-trivial number of critics of originalism there, and the fact that we were included also speaks well for the conference, of course.  I learned things worth learning and would be delighted to go again.

Richard continues the blog post by discussing the views of some originalists that real originalism has never been tried.  He then expresses some skepticism about advocating a hypothetical approach of this type.

I have to admit that I don’t hear a lot originalists arguing that the approach has never been tried.  I’m not sure what these people have in mind.  I suppose they could have in mind new research techniques, such as corpus linguistics, that would allow much better understandings of the original meaning of language at the time of the framing.  But this technique is mainly about allowing modern interpreters to understand the original meaning and does not suggest that people at the time of the Constitution did not practice originalism.

In my view, the original methods approach – which requires interpreters to employ the interpretive rules that were deemed applicable to the Constitution at the time of its enactment – is the proper originalist interpretive approach.  Given that this approach requires that we employ the interpretive rules that existed at the time of the Constitution, it might seem problematic to claim that originalism had never been tried.

But things are a bit more complicated than this.  At the time of the Constitution, there were differing interpretive views – most importantly, the approaches of Thomas Jefferson and John Marshall.  They each sought to justify their approaches based on original methods –  that is, based on the applicable interpretive rules at the time.  So the leading approaches followed original methods, but they differed on its content.

What should originalists do today?  In my view, we should follow the correct original methods approach.  That is, we should determine what the proper approach was at the time and follow it.  In my view, the proper approach was closer to Marshall’s approach, but was not exactly Marshall’s.

So, I am advocating both something that was tried (the original methods) and something that was not tried (employing only a quasi-Marshallian approach).  But I see nothing unrealistic or problematic about advocating this.

But I should add that there no reason to expect or require that originalism work perfectly in accord with what I expect or desire.  Even in an originalist world, where everyone accepted originalism, it would be unlikely that all originalists would agree.  In fact, one might expect different originalist parties.  One possibility is a split between liberal originalism and conservative originalism, but there are other possibilities.  Would that be real originalism, even though I would presumably disagree with some of it?  Sure.  That may be the only kind of originalism we could realistically expect, but despite the disagreement it would still be much better, in my view, than what we have now.

Richard Primus on Originalism (with a Response from John McGinnis)
Michael Ramsey

At Balkinization, Richard Primus (Michigan): Originalism as Old and New (commenting on the San Diego originalism works-in-progress, at which he was an invited commentator).  From the beginning:

One of the things I learned [at the conference] -- I think -- was something about the growth of a relatively new perspective on originalism among many leading originalists.  Over the course of my time as a law professor, I've periodically heard originalists say that originalism is a new interpretive theory, one that has never really been put into practice.  One upshot of this view is the further idea that little or nothing in judicial practice to this point in time should be adduced as evidence of serious problems with originalism as a judicial method, because nothing that's been done so far is originalism.  If judges trafficking in individual meanings have been sloppy with their history, or if looking to original meanings doesn't have a demonstrated capacity to reduce the scope of disagreement among judges (because judges interpreting original meanings seem to come down on opposite sides of a contested question pretty much in the same proportions as we'd guess they'd come down on opposite sides if they used some other method), it doesn't follow that originalists shouldn't claim that courts can in fact learn to do history properly of that originalism has the virtue of making the law more determinate than other decisionmaking methods do.  What seems like counterevidence isn't, because real originalism has never yet been tried.  And in the meantime, we should recognize that originalist theory is in its infancy and cut it some breaks accordingly.  If we let it mature, and then road-test it, it might turn out to be great.

What I noticed about this view at this weekend's conference was that it seems to be held by more leading originalists than I think was the case ten or even five years ago.  I heard this view articulated, or at least alluded to, by originalist scholars of various different stripes: young and old, diverse in terms of the particular form of originalism they favor, and so forth.  To be sure, the view isn't universally held among today's leading originalists: I'm sure any number of the originalists at the conference would disavow it.  Indeed, there are some extant theories of originalism that rely on the contrary claim that we've in fact been doing originalism all along.  (Think of methodical-postivism originalists like Will Baude and Stephen Sachs.)  But if the thirty or so originalists at this weekend's conference are a representative sample, the community of leading originalist theorists has shifted at least some appreciable distance toward the view that originalism has never yet been tried.

John McGinnis responds at Liberty Law Blog: Once and Future Originalism.  He begins:

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School [ed.: that's the University of San Diego School of Law, please] under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

Of course, originalist scholars have refined the theory over time in what William Baude has called the division of labor between the bench and the academy. But these efforts do not change the map, but fill in important details. The world of scholarship on originalism as on other subjects is inevitably fractal: even progress on one question leads naturally to other questions. There is nevertheless an essential continuity between the  interpretive method Madison endorsed and that in which many originalist conference participants were earnestly engaged.

My view is in between.  I agree with Professor McGinnis that originalism was the main interpretive approach in the early years (not by that name, of course).  But I think things began to go astray earlier than the Progressive Era -- the late nineteenth century Supreme Court began appealing to extraconstitutional considerations and issued decisions seemingly based on little more than the Justices' own intuitions, with disturbing frequency.  For example, consider the range of federal power cases resting not on the federal government's delegated powers but on supposed inherent rights of sovereignty (the Chinese Exclusion case is a prominent one).  Relatedly, the Insular Cases created an exception to the geographical reach of the Constitution based apparently just on convenience.  And, after a good start in Strauder v. West Virginia and Yick Wo v. Hopkins, the Court drifted away from the original meaning of the Fourteenth Amendment and ultimately into Plessy v. Ferguson.  (Michael Paulsen and Luke Paulsen have an appropriately harsh assessment of this period in their book The Constitution: An Introduction).

I also think Professor Primus is partly right on two grounds.  Originalism has not been done consistently at the Court for a long time, although some cases are based on originalism (increasingly so, after Justices Scalia and Thomas joined the Court).  So, regardless of early practice, it's true that there is not a consistent experience with originalism in the modern era.  Further, originalism has only recently gained the deep and careful attention of a range of scholars, so its theoretical underpinnings in the modern era are relatively new and still being developed.  I'm not sure if this adds up to the full claim he is making, but I see where he gets the idea.

Professor McGinnis concludes (and I agree [including with the view he attributes to me]):

But originalists today are not advocating a radically new and lawless philosophy.   Originalism was the law once and today has enough influence on decisions that it is, in the words of Michael Ramsey [at the conference], one of the contenders for a rule of recognition deeper than the proposition that law is whatever the Supreme Court says it.  It can become an even more plausible as a contender, if originalists accept, as Michael Rappaport and I think they should, a role for precedent under rules that mediate between the generative force of originalism and the need to recognize than any legal system makes mistakes. Then nonoriginalist decisions that are woven in the consensus fabric of American life need not be disturbed.

It should not surprise us that in a nation as heterogeneous and divided as ours has become, that no underlying interpretive methodology is likely to gain a permanent victory. But the Gorsuch nomination as well as the growing culture of originalism suggests that the Constitution’s original interpretive method is regaining dominance.

02/23/2017

Caroline Mala Corbin: Justice Scalia, the Establishment Clause, and Christian Privilege
Michael Ramsey

Caroline Mala Corbin (University of Miami School of Law) has posted Justice Scalia, the Establishment Clause, and Christian Privilege (First Amendment Law Review, Vol. 15, 2017) on SSRN. Here is the abstract:

Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion.

This symposium Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.

Via Larry Solum at Legal Theory Blog, who has additional comments and excerpts, including this in response to the claim that originalism is indeterminate:

Of course, many contemporary originalists affirm that the original public meaning of the constitutional text underdetermines some constitutional questions.  Where the text is vague or opened textured or where ambiguities cannot be resolved by contextual disambiguation, there may be "construction zones"--where the development of constitutional doctrine is not fully determined by original meaning.  Nonetheless, a very good case can be made that the determinate provisions (including much of the hard-wired or structural constitution) and the core of settled meaning of provisions that are vague have real "bite." See William Baude & Stephen E. Sachs, Originalism's Bite.

02/22/2017

Mark Tushnet on President Trump and the 25th Amendment
Michael Ramsey

At Balkinization, Mark Tushnet: The 25th Amendment Option: Law and Politics.  On interpreting the 25th Amendment:

 [The 25th Amendment provides that when] the Vice President and a majority of the Cabinet declare that the President is "unable to discharge the powers and duties of his office," and send that declaration to Congress, the Vice President immediately becomes Acting President. The (now not quite) original President then can send his own declaration to Congress, "Yes, indeed, I'm able to discharge the powers and duties," and he becomes President (again) -- unless the Vice President and a majority of the Cabinet send another declaration, "No he isn't." within four days. At that point Congress has two days (if in session) to determine by a two-thirds vote in both Houses that yes indeed he is unfit. If the vote goes against the President, the Vice President becomes Acting President (apparently until the end of the original President's term -- so Pence would have the title Acting President, not President).

The legal part of all this is, What does "unable to discharge the powers and duties" mean? The clear intention of the Amendment's drafters was to deal with situations of physical and mental disability (Garfield for the eleven weeks between his being shot and his death, Wilson after his stroke). But that's "expected applications" originalism. The text is compatible with an interpretation in which "unable" means "unfit by demonstrations of sustained and serious failures of temperament" (or something along those lines). Another way to put it is that "unable" should be interpreted in a way just short of Gerald Ford's "high crimes are whatever a majority of the House think they are" standard: If there's a reasonable case to be made that the President is unable to discharge, etc., according to some reasonable understanding of "unable," the 25th Amendment is satisfied.

This is emphatically not how textualist originalism works.  True, "unable" can have the figurative meaning "unfit" or "not able to perform effectively" in some contexts (he's "unable" to play quarterback because he throws a lot of interceptions).  But it also (and I would say more commonly) means literally "not able" -- that is, not capable of doing the thing in question because of an absolute impediment (he's "unable" to play quarterback due to a broken leg).

The question is, which meaning would a reasonable person at the time of enactment more likely give to the word as it is used in the 25th Amendment, taking into account its history and context?  The question is not whether one meaning "is compatible" with the text; the question is which meaning is more likely.

To answer this, we can consider (as the post indicates) the background that gave rise to the amendment, namely the situation of presidents who were literally "unable" to function as president (not just doing so poorly).  We can also consider the impact of the amendment if it did mean "unfit" (which would be a substantial constitutional innovation, in effect extending impeachment from "high Crimes and Misdemeanors" to general lack of competence) versus the impact if it meant only literally unable (a minor adjustment in the case of unusual circumstances).  And we can consider whether people at the time of enactment talked about it only in the latter terms, or if they also saw it as a check against unfit presidents.

Professor Tushnet derides this approach as "original expected applications" though I might think it better described as "purpose."  I agree that for an original public meaning originalist the touchstone is the text, not the purpose or the expected application.  But purpose and expected application, although they cannot override text, are important to deciding on the meaning of text.  Where a word is ambiguous (that is, it has two possible meanings, as here) they are indications of what meaning was understood.

My guess is that looking at the history would show the "unfit" meaning is not even "compatible" with the original meaning of the amendment -- given the significance of the change, if no one at the time is recorded as advancing the "unfit" meaning, that's pretty strong evidence that it was not the original public meaning.  But again, the question is not whether the "unfit" meaning is "compatible" but whether it is more likely than not to have been the original meaning.  Once the question is posed this way, I can't imagine the answer is at all in doubt.

02/21/2017

The Language of the Lame Duck Pardon Amendment
Mike Rappaport

A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons.  While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism.

But having an idea about what an amendment should do and writing the language of that amendment are two different things.  Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment.  Steve has both more taste and more talent for this task than I do.

Consider the language he came up with:

The power to grant reprieves and pardons for offenses against the United States may not be exercised unless the President shall have made a public proclamation of the same; nor, except to stay the execution of a sentence of death, from one month prior to the day for choosing the electors until noon on the 20th day of January next following, unless after the counting of the electors’ votes the President shall have been chosen to continue in office.

The language following the semicolon basically says that the President cannot pardon anyone for a month before Election Day until Inauguration Day unless he is reelected.  The first sentence prohibits secret pardons, which might be used to circumvent the restriction on lame duck pardons.  Without that prohibition, the President might issue secret pardons before the period beginning one month prior to election day.

Of course, some might believe that a prohibition on secret pardons was problematic, since perhaps they could be used for legitimate purposes.  I am not convinced, but if one disagrees, one could address the issue in another way – say by changing the amendment to allow the next President to repeal any secret pardons issued by the prior President.

I like this language.  This could be the 28th Amendment.  All we need is two thirds of both houses and three quarters of the states.

David Post on the Emoluments Clause and President Trump's Chinese Trademark
Michael Ramsey

At Volokh Conspiracy, David Post: Trump Conflicts Watch, 2: Where trademark law meets the foreign emoluments clause. From the introduction:

The Associated Press (along with Japan Times and the Voice of America’s China Service) reports that President Trump, “after suffering rejection after rejection in China’s courts,” has finally gotten something “that he has been trying to get from China for a decade: trademark rights to his own name.”

Is that an emolument? 

This Chinese trademark matter raises a different issue regarding the meaning of “emolument.” The Chinese government hasn’t engaged in a like-for-like market exchange with Trump; rather, it has conferred a legal benefit that has some, non-trivial value, on him. Is receiving trademark rights a constitutionally-prohibited “emolument … of any kind whatever … from a foreign State”?

I think it is. I’m even willing to give Trump the benefit of the doubt here, and to assume that everything that has taken place here is on the up-and-up and strictly by the book, i.e., that there’s been no quid pro quo, that this is simply a case where Trump received a benefit to which he (or anyone similarly situated) would be lawfully entitled under the relevant provisions of Chinese trademark law, and that it is simply a coincidence that, after a number of rejections, the application was approved after Trump was elected president of the United States.

...

 One clue to what [the emoluments clause] means comes from asking: What were the Founders concerned about? What’s the purpose of this clause (and its sister “domestic emoluments clause” in Art. I Sec. 7)? What’s the harm — a harm serious enough to include in the new Constitution? Why shouldn’t Jefferson be allowed to take a nice snuff box from the French king?

The answer, as Hamilton put it, is that the receipt of the gift would “weaken his fortitude [and] corrupt his integrity by appealing to his avarice,” giving him a “pecuniary inducement to renounce or desert the independence intended for him by the Constitution.” Men are avaricious; give them a nice snuff box and they’ll be more likely to treat you with special favor down the road, perhaps out of a desire not to show ingratitude, perhaps out of a desire to obtain additional valuable gifts, perhaps both. In either case, dealing with the foreign sovereign will be compromised, no longer having the interests of the people of the United States as the sole motivating factor in all decisions and actions. ...

(For a seemingly different view, see Rob Natelson here).

02/20/2017

Opinio Juris Symposium on "The Death of Treaty Supremacy" by David Sloss
Michael Ramsey

At Opinio Juris, the editors have put together an online symposium on the outstanding book The Death of Treaty Supremacy by David Sloss (Santa Clara).  Here are the contributions:

The Treaty Supremacy Rule: Is a Partial Revival Possible?, by David Sloss

Dubinsky on The Death of Treaty Supremacy, by Paul Dubinsky (Wayne  State)

Treaty Supremacy, International Legal Process, and the Origins of the International Human Rights System, by Peggy McGuinness (St. Johns)

The Modern Doctrine(s) of Non-Self-Executing Treaties, by John F. Coyle (UNC)

The Origins and Fall of Treaty Supremacy and Its Significance, by Thomas Lee (Fordham)

Treaties in Constitutional Time, by John Parry (Lewis & Clark) 

The Status of Treaties in Domestic Law, by David Stewart (Georgetown)

Bringing Human Rights Home: Reflections on the Treaty Supremacy Rule, by Carmen Gonzalez (Seattle)

The Death of Treaty Supremacy: An Invisible Constitutional Change–Introduction to Opinio Juris Book Symposium, by David Sloss

Although the book is a broad historical account, it has strong originalist implications.  From the latter post, here is the author's summary:

The book’s central claim is that an invisible constitutional revolution occurred in the United States in the early 1950s. From the Founding until World War II, the treaty supremacy rule, codified in Article VI of the Constitution, was a mandatory rule that applied to all treaties. As originally understood, the rule consisted of two elements. First, all valid, ratified treaties are supreme over state law. Second, judges have a constitutional duty to apply treaties when a treaty conflicts with state law.

...

The treaty supremacy rule was a bedrock principle of U.S. constitutional law from the Founding until World War II. However, the advent of modern international human rights law sparked a process of invisible constitutional change. ...

Thus, modern doctrine holds that the treaty makers may opt out of the rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing” (NSE). In sum, the de facto Bricker Amendment converted the treaty supremacy rule from a mandatory to an optional rule by creating an exception for NSE treaties.

Although I have some quibbles with Professor Sloss' description of the original rule, I think his account of both the founding and the re-invention of non-self-execution is basically correct.  (My thoughts on the original meaning of treaty supremacy and self-execution are here.)  I have no doubt that the current doctrine of non-self-execution is, at minimum, substantially confused and, in some applications, substantially different from the original meaning.

The question is what to do with that conclusion.  For an originalist, it may seem obvious -- the modern doctrine is too confused to be entrenched, so we should attempt to recover the original meaning (that's my idea, in this paper).  This also seems to be Professor Sloss' implication throughout the book.  But for nonoriginalists, it's not clear there is a problem.  Treaty law evolved in response to the evolving role of treaties.  That's what nonoriginalists say should happen.  People who are not usually originalists should think carefully before becoming unduly upset by this, simply because they happen to think non-self-execution is a bad idea.

For myself, I think a strict self-execution doctrine is problematic in the modern world, given the extent to which modern treaties are aspirational, multilateral, wide-ranging and deeply intrusive on purely domestic legal rules.  The non-self-execution rule that evolved in the mid-twentieth century mitigates that problem, and Congress' power to implement treaties (see here) prevents divergence between treaty law and domestic law from becoming too troubling.  I would say it works pretty well to have the U.S. treatymakers decide whether a treaty should be self-executing or non-self-executing.  That, however, is not the original meaning of the supremacy clause.

02/19/2017

Robert Natelson: The Original Meaning of the Constitution's Postal Clause
Michael Ramsey

Robert G. Natelson (The Independence Institute) has posted Founding-Era Socialism: The Original Meaning of the Constitution's Postal Clause on SSRN.  Here is the abstract:

The Constitution’s Postal Clause granted Congress power to “establish Post Offices and post Roads.” This Article examines founding-era legal and historical materials to determine the original meaning and scope of the Postal Clause. It concludes that the Clause authorized Congress to pass all legislation necessary to create, operate, and regulate a unified transportation, freight, and courier system, although it also limited congressional authority in some respects. The founding-era reasons for the postal system were revenue, promotion of commerce, and political control. The Article also corrects some incorrect claims about the Clause previously advanced by legal scholars.

Professor Natelson adds:  

Because the Postal Clause authorizes Congress to "establish . . . post Roads" I had to address Prof. Baude's 2013 thesis that eminent domain was a "great power" and therefore not implied in the Constitution's grants of power. I find the thesis lacking support in founding era law.

02/18/2017

Jennifer Mascott: Who are "Officers of the United States"?
Michael Ramsey

Jennifer L. Mascott (Georgetown University Law Center) has posted Who are "Officers of the United States"? on SSRN.  Here is the abstract: 

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proven difficult to apply to major categories of officials, leading to a circuit split this past December over whether certain administrative law judges need Article II appointments. This article challenges whether “significant authority” is even the proper standard, using two distinctive tools: (i) “corpus linguistics”-style analysis of Founding Era documents and (ii) examination of appointments practices in the Continental Congress and the First Federal Congress. Both strongly suggest the original public meaning of “officer” is much broader than modern doctrine assumes—encompassing any government official with responsibility for an ongoing governmental duty. 

This historical meaning of “officer” likely would extend to thousands of officials not currently appointed as Article II “officers,” such as tax collectors, disaster relief officials, federal inspectors, customs officials, and administrative judges. This conclusion might at first seem destructive to the civil service structure. But this article suggests that core components of the current federal hiring system might fairly readily be brought into compliance with Article II by amending who exercises final approval to rank candidates and hire them. These feasible but significant changes would restore a critical mechanism for democratic accountability and transparency intended by the Framers.

Via Larry Solum at Legal Theory Blog, who comments:

This is a very sophisticated piece from one of a new generation of originalist scholars who employ corpus linguistics (big data techniques for determining semantic meaning) as part of the investigation of "original public meaning."  One of the very first pieces to do this in a systematic way using the approach developed in linguistics, this is one of those articles that is truly "path breaking."  Highly recommended.  Download it while it's hot!

02/17/2017

Erwin Chemerinsky on Judge Gorsuch and Originalism
Michael Ramsey

In the Los Angeles Times, Dean Erwin Chemerinsky (Irvine) has a rather harsh column on Judge Gorsuch and originalism: Democrats should filibuster Gorsuch’s nomination.  It's a more ham-fisted version of this column by Cass Sunstein (discussed here), but also more obviously not a serious critique of originalism.  Here are the key paragraphs, with my comments:

Neil Gorsuch would be a very conservative Supreme Court justice, almost exactly like Antonin Scalia. Gorsuch, like Scalia, professes a belief in originalism. This is the view that the meaning of a constitutional provision is fixed at the time that it was enacted and can be changed only through the amendment process. Gorsuch has said: “Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Sounds good to me.  Note, though, that he says "almost exactly like Antonin Scalia."  This is important later.

Never in American history, thankfully, have a majority of the justices accepted originalism. If that were to happen, there would be a radical change in constitutional law. No longer would the Bill of Rights apply to state and local governments.

Nope, on two grounds.  First, originalists like Scalia accept incorporation of the Bill of Rights through the due process clause as a matter of stare decisis (see McDonald v. Chicago, Scalia concurring).  Second, many originalists agree with Justice Thomas that most of the Bill of Rights is, as an original matter, properly applied against the states through the privileges or immunities clause (examples of scholars who've done outstanding work on this include Kurt Lash, Chris Green and Bryan Wildenthal).  So an originalist majority on the Court would likely not reach the result Chemerinsky claims, especially with Justices "almost like" Scalia (or Thomas).  I suppose there are some originalists who think most of the Bill of Rights isn't incorporated, but I'm not sure who they are.

No longer would there be protection of rights not mentioned in the text of the Constitution, such as the right to travel, freedom of association, and the right to privacy. This would mean the end of constitutional protection for liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, the right to refuse medical care, the right to engage in private consensual homosexual activity.

Some of this likely would be true, depending on a particular originalist's view of the privileges or immunities clause and of stare decisis.  But some would say, that's the right result, if these rights have been invented by unelected judges.

No longer would women be protected from discrimination under equal protection.

Again, originalists are divided on the right result as an original matter --- many, including Michael Paulsen and Steven Calabresi, disagree with Chemerinsky's claim.  Scalia did seem to say, in non-judicial statements, that equal protection did not extend to women, but he accepted the extension as a matter of stare decisis.  I think it implausible in the extreme that an originalist Court "would" overturn existing precedent on this point.  Chemerinsky provides no evidence that it would.

The original understanding of the Constitution is unknowable ...

Really?  Didn't you just spend the last paragraph identifying literally 14 (count 'em!) results that adopting originalism "would" bring on?  (With more to come below).

... and even if it could be known, should not be binding today.

Note there is no argument here apart from originalism would lead to bad results, which (a) depends on it being knowable, and (b) depends on the idea (as Stephen Sachs points out) that law cannot be law if it leads to bad results.

Under an originalist philosophy, it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as “he” and the framers unquestionably intended that they would be male.

Wow, this old chestnut?  I've been through this before, but this argument is so lame I'd be embarrassed if a student made it.  (a) "he" in eighteenth century terminology could be generic (they had no "he or she" back then).  Eighteenth century statutes commonly said something to the effect that if a person violated some rule "he" would be punished in a specified way -- it's inconceivable that this statutory phrasing was meant to exclude women.  (b) The part of the Constitution actually setting out the requirements to be President (Art. II, Sec. 1, para. 5) does not say "he"; it says "person" (twice), as does the Twelfth Amendment (ten times!).  "Person" obviously includes women.  The framers (sadly) knew how to exclude women if they wanted to  -- most states at the time limited voting to "male inhabitants".  (c)  The framers "unquestionably" intended Presidents to be male?  Maybe, but what matters (in a Scalia version of originalism) is what they wrote, and they wrote "person".  Plus the framers were familiar with great women leaders -- Elizabeth I, Isabella of Spain, Catherine the Great [the latter being on the throne when the Constitution was drafted].  Who's to say that they categorically rejected the idea of a woman leader?  (d) I know of no originalist who thinks this is the right interpretation of presidential eligibility.  It's a fraud dreamed up by nonoriginalists.

Under originalism, Brown v. Board of Education was wrongly decided because the same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools.

Most originalists think Brown was rightly decided (without endorsing the nonoriginalist reasoning of the opinion).  Major scholars who've discussed the issue include Michael McConnell, Michael Paulsen and Steven Calabresi.  Justice Scalia said in an opinion (in dicta) that Brown reached the right result based on the original meaning of the text (Rutan v. Republican Party, Scalia, dissenting).  Like the "no women presidents" argument, the "Brown was wrong" argument is mostly one pushed by nonoriginalists to embarrass originalists, not one accepted by many (any?) originalists.  I concede that the Brown-was- wrong argument is not as painfully frivolous as the no-women-presidents argument: although the text seems clear, it's true that substantial post-ratification practices point the other way.  But originalists think those practices aren't decisive in the face of clear text, so whatever Dean Chemerinsky might think about the "true" meaning (except, remember, he thinks "the original meaning of the Constitution is unknowable") an originalist Court would not think Brown was wrongly decided.

Originalism never was meant to be the method of constitutional interpretation. Long ago, Chief Justice John Marshall reminded us that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.”

That quote, from McCulloch v. Maryland, does not mean what Dean Chemerinsky thinks it means.  McCulloch is actually a very originalist opinion, paying close attention to the meaning of the Constitution's words and the context in which they were written.  Marshall's point was that the original meaning of the Constitution should not be read to place strict limits on the powers of Congress, because Congress would need flexible powers to manage future events (and thus it's implausible, he said, that the Constitution was written to say otherwise).  

Throughout American history, the Supreme Court has regarded the Constitution as a living document, which is the only way a country can be governed in the 21st century under a charter written in the 18th century for an agrarian, slave society.

Well, another way a country "can be governed" is for judges to stick with the original meaning, leaving the democratically elected branches rather than courts the flexibility to "adapt the Constitution ... for ages to come", unless the people (not the judges) adopt new constitutional rights by amendment as described in Article V (as they have done on multiple occasions).  To be sure, that is a debate worth having, but it's not advanced by adopting extreme caricatures of originalism.

(Well, that was fun.  Good thing I don't want a job at UCI).

(Via Ed Whelan at NRO, who makes a separate point: the column calls for Democrats in the Senate to filibuster Judge Gorsuch; but less than a year ago, Dean Chemerinsky claimed that denying a nominee an up-or-down vote in the Senate -- which is what a filibuster does -- is unconstitutional.  (I know, because I debated him on this point).  To be clear, my position is remains the same: the Constitution does not require the Senate to do anything on a nominee (including Judge Gorsuch), so if Senate rules allow a minority to block a vote (or a hearing), the Constitution has nothing to say on the matter.  And if that "impairs the functioning of the Supreme Court" by leaving it with eight Justices (as Dean Chemerinsky said it did), the Constitution does not guarantee a perfectly efficient Court.)

Originalism Works-in-Progress Conference in San Diego
Michael Ramsey

Today and tomorrow, the University of San Diego Law School will host the Eighth Annual Hugh and Hazel Darling Foundation Originalism works-in-progress conference.  Here are the scheduled papers and commentators:

(1)  Randy Barnett (Georgetown) & Evan Bernick (Institute for Justice), The Letter and the Spirit: A Theory of Good Faith Constitutional Construction.

Commentator: John McGinnis (Northwestern)

(2) Will Baude (Chicago), Constitutional Liquidation

Commentator: Bernadette Meyler (Stanford)

(3) Mitch Berman (University of Pennsylvania), Our Principled Constitution

Commentator: Stephen Sachs (Duke)

(4) Jud Campbell (Richmond), Natural Rights and the First Amendment

Commentator: Fred Schauer (Virginia)

(5)  James Fox (Stetson), Black Originalism: Constitutional Citizenship, Constitutional Rights, and the Second Founding

Commentator: Ryan Williams (Boston College)

(6) Michael McConnell (Stanford), The Structure of Article Two

Commentator: Saikrishna Prakash (Virginia)

(7) Ilya Somin (George Mason), The Original Scope of Federal and State Power over Immigration

Commentator: Richard Primus (Michigan)

See here for more information.  We are honored that so many distinguished scholars have come to San Diego to discuss originalism, and we are grateful to the Darling Foundation for making it possible.

02/16/2017

James Sample: Textual Rights, Living Immunities
Michael Ramsey

James J. Sample (Hofstra University, Maurice A. Deane School of Law) has posted Textual Rights, Living Immunities (Southern Illinois Law Review, 2016) on SSRN.  Here is the abstract:      

Is the Supreme Court, especially, but not exclusively, in the Chief Justice Rehnquist through Chief Justice Roberts eras, applying the interpretive methods of textualism and originalism consistently in cases involving, on the one hand, the delineation of rights and remedies, and on the other, the development of defenses and immunities? Conversely, does the Court selectively apply these methods asymmetrically? Framed more provocatively, is the Court developing jurisprudence marked by limited originalist and textualist rights, but also malleable living immunities? Whether there is a definitive answer to that question is uncertain, but even assuming, arguendo, that such an answer exists, the aspiration is beyond the scope of this Article. Indeed, the goals of this Article are much more modest: to ask the question and to scratch its surface.

02/15/2017

David Weisberg: A Unique, Stand-Alone Second Amendment Implies that both Heller and McDonald were Wrongly Decided
Michael Ramsey

David E. Weisberg (Independent) has posted A Unique, Stand-Alone Second Amendment Implies that both Heller and McDonald were Wrongly Decided on SSRN.  Here is the abstract:      

D.C. v. Heller (2008) held that the District violated the Second Amendment by prohibiting operable handguns in the home for self-defense. McDonald v. Chicago (2010) held that, because the Second Amendment is incorporated in the Fourteenth and thus applies against the States, a similar handgun ban in Chicago also violated the Second Amendment. Both decisions are incorrect.

The Second Amendment is the only constitutional provision with a prefatory clause. The logic of Heller implies that the amendment would have exactly the same legal force if its prefatory clause were deleted and its operative language were simply appended to the First Amendment. This implication is bizarre and unacceptable; it reveals a fundamental misunderstanding of the amendment’s unique tripartite structure. “The right of the people to keep and bear arms” referred to in the Second Amendment is: (1) created by state law, (2) exercised by the people, and (3) protected from federal infringement. The right is not created by the Second Amendment itself; nor is it a natural right of self-defense.

Heller is incorrect for two reasons: (1) the Second Amendment applies only to States, not to the District, and (2) even if the amendment applied to the District, there was no District law creating a right to possess handguns which was infringed by the federal government. McDonald is incorrect because the Second Amendment cannot be “incorporated” in the Fourteenth. Of the first eight amendments, only the second is tripartite. The others are binary, declaring rights persons have against the federal government. One can coherently apply a right, which was formerly applied against only the federal government, against a state government. One cannot coherently apply a prohibition created by state law against the State that created the prohibition.

02/14/2017

Clark Neily versus Mark Pulliam on Judicial Engagement
Michael Ramsey

At City Journal, an exchange between Mark Pulliam and Clark Neilly

The legal Right today is broadly divided into two camps: those who support a more engaged judiciary, one willing to overturn state and federal legislation in the interest of enforcing enumerated and unenumerated constitutional rights; and those who believe in a judiciary that takes a more limited view of the constitutional text.

We have invited two experienced litigators—Clark Neily and Mark Pulliam—to explain and debate these positions.

Read “Against ‘Judicial Engagement’” by Mark Pulliam

Read “Rules of Engagement” by Clark Neily

Neily, an attorney with the Institute for Justice, has made a career out of challenging the constitutionality of laws and regulations. In his book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, Neily calls for “meaningful judicial engagement,” arguing that “the structure of the Constitution rejects reflexive deference to the legislative branch.”

By contrast, longtime attorney Mark Pulliam, a contributing editor to the Library of Law and Liberty, has derided judicial engagement as “faux originalism.” According to Pulliam, the approach preferred by Neily and other libertarian academics would, at worst, “unmoor constitutional law from the text of the Constitution and empower unelected judges to be society’s Platonic Guardians.”

02/13/2017

John Mikhail on Emoluments
Michael Ramsey

I missed this post from last month at Balkinization (even though it links to one of mine) -- John Mikhail (Georgetown): A Note on the Original Meaning of "Emolument".  Central point:

Although these passages [from The Federalist] cited by President Trump's lawyers] clearly indicate that “emolument” was sometimes used to refer to salary or other benefits associated with discharging the duties of an office, that finding is insufficient to prove the precise point at issue, at least as it is framed by Trump's lawyers.  That question is not whether “emolument” could have been used in this restricted fashion, but whether it must have been -- whether, in other words, "salary or benefits associated with an office" was somehow built into the very definition or semantic content of "emolument" at the time.  

None of the foregoing passages, however, entails or even strongly implies that the original meaning of “emolument” must necessarily exclude a wider category of payments or benefits, which might cause the Trump Organization’s businesses to violate the Foreign Emoluments Clause.  Furthermore, there is ample evidence that “emolument” was often used at the founding in a much wider sense, one that went beyond the duties of an office and encompassed the fruits of ordinary market transactions.

This conclusion is in some tension with this article by Rob Natelson, noted here.

(Via Larry Solum at Legal Theory Blog).

02/12/2017

Justice Jackson and Washington v. Trump
Michael Ramsey

Josh Blackman has set forth an amazingly complex, helpful and insightful series of posts on the Ninth Circuit's decision in Washington v. Trump (so many that I'm not even going to try to link to all of them, and will just say "read his blog").  So it's a little unfair to pick out one small piece and object to it.  Nonetheless, that's what I'm going to do.

Professor Blackman criticizes the Ninth Circuit panel decision for failing to cite the statute apparently authorizing the President's order and for failing to discuss Justice Jackson's famous three-category structure from the classic Steel Seizure case ((1) congressional approval; (2) zone of twilight; (3) congressional disapproval).  He writes:

Had the panel even bothered to engage with the statute, it would have realized we are in Jackson’s first zone, and that judicial scrutiny must be at an absolute[ ] minimum. The court should have presumed that when Congress afforded the President this power, it did not think Due Process controlled, for it failed to put in any review mechanisms (in contrast to countless other provisions of the immigration laws). There is every indication that, at least with respect to denial of entry, Congress agreed the President had plenary power.

I cannot accept that "judicial scrutiny must be at an absolute minimum" whenever the President acts pursuant to congressional approval.  If that were so, there would be almost no scope for judicial review of presidential orders, because presidential orders usually rest on some sort of congressional approval.  Presidential orders detaining people that the President thinks are suspicious, or prohibiting speech the President thinks is dangerous, would not subject to judicial scrutiny "at an absolute minimum" just because Congress has authorized them.  When an individual rights provision of the Constitution is in play (as it is in Washington v. Trump), the President's action isn't insulated by Congress' delegation.  The fact that Congress "did not think Due Process controlled" is largely irrelevant for the judiciary's independent review of the order's compliance with individual rights.  If Congress' statute delegated the power to infringe individual rights, then the delegation is unconstitutional, and while Congress presumably did not think it was unconstitutional, Congress could be wrong.  That's the meaning of an independent judiciary.

Of course, we can debate what level of judicial scrutiny is appropriate for alleged infringements of individual rights, but the proposition that Jackson's categories somehow lead to the "absolute minimum" seems mistaken.

It's true, as Professor Blackman quotes, Jackson wrote in Steel Seizure

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.   In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

I think it overreads this passage to find in it a license for minimal judicial scrutiny of presidential infringements of individual rights.  Rather, I think Jackson meant only that a separation of powers challenge to a presidential act done with the approval of Congress would face a heavy burden of persuasion.  Steel Seizure was not an individual rights challenge, and so Jackson had no reason to consider the role of courts in enforcing individual rights limits on the President.  Instead, Jackson was probably thinking of the fairly unusual situations where one might plausibly mount a separation of powers challenge even where the President acted with congressional approval -- either because Congress' delegation violated nondelegation principles or because Congress was trying to delegate a power it did not itself possess.  These are sometimes persuasive arguments, but they depend on unusual situations.  That, I think , is all Jackson meant.

I doubt that Professor Blackman believes that presidential action in the domestic sphere, where authorized by Congress, should receive only "absolute minimum" scrutiny (see here).  That Washington v. Trump involves national security and foreign affairs issues should not change the analysis.  It's the same Constitution.  Jackson's categories may be a useful way to frame the issues, but they should not be used to underwrite judicial abdication in foreign affairs.

I'll say as well, though, that I think the whole "level of scrutiny" issue in the Trump case is misconceived.  It's not the Ninth Circuit's role, in a due process analysis, to assess whether the President's order is wise (at any level of "scrutiny").  The question instead is whether the order deprives affected individuals of liberty (in the constitutional sense), and if so, whether that deprivation was accompanied by appropriate procedures.  Answering these questions does not entail an assessment of the merits of the President's order.  (Perhaps the question whether a stay should be granted turns on that question, a point I leave aside).  To that extent, at least, I think the panel asked the wrong question.  Even if the President's order is unsupported by evidence, it is constitutional if it does not deprive anyone of liberty without due process of law.  And even if the President's order is supported by evidence, it is unconstitutional if it deprives someone of liberty without due process of law.

On this ground, I agree with commentators who see the panel opinion as too broad, as apparently approving an injunction against the order even as applied to non-U.S. citizens outside the U.S. without either visas or green cards.  I do not see how people in this category plausibly could claim a constitutionally protected liberty  to travel to the U.S. (either as an original matter or under Supreme Court precedent).  And if they cannot, then there can be no due process clause violation as to them -- even if a court thinks the President's order is unsupported by evidence.  If the clause does not apply, then we are in an area of presidential discretion (either because the President has independent executive power, as I've argued, or because Congress has authorized the President's order).  Here indeed we are in an area of "absolute minimum" judicial scrutiny because there is no individual rights objection (to be clear, I'm only considering the due process objection, which is what the panel rested on) and because, as to a separation of powers objection, we are in Jackson's category one.  Thus it is the President's decision, for better or worse, not the courts'.

(As discussed here, though, I think this analysis may change once we consider people who have received some pre-existing approval to travel to the U.S. and have had that approval revoked).

Mark Greenberg: What Makes a Method of Legal Interpretation Correct?
Michael Ramsey

Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants (Harvard Law Review Forum, forthcoming) on SSRN.  Here is the abstract:      

William Baude and Stephen Sachs argue for the importance of the “law of interpretation” – legal standards that govern how statutes, constitutional provisions, and other legal materials are to be interpreted. Their article begins by following and developing a cluster of arguments I have elaborated in recent work – arguments that emphasize the importance of distinguishing between, on the one hand, the linguistic meaning of legal texts and, on the other, the content of the law. But Baude and Sachs’s view about the most important implication of these arguments is very different from mine. Their central message is a practical, lawyerly one: we can avoid the abstract and theoretical complexities and normative and linguistic disputes that have typified central debates over legal interpretation by instead looking to law for the answers. Baude and Sachs’s goal here is not to take a position on what the law of interpretation requires with respect to the relevant issues, but to argue that the answers are there to be found in the law. 

It is an important and understudied idea that legal interpretation can, to an extent, be governed by ordinary legal standards. And Baude and Sachs develop the idea in fruitful and interesting ways. The dependence of legal interpretation on legal standards is relatively limited and superficial, however. As I will argue, the crucial point is that answers to questions about legal interpretation depend on how the content of the law is determined at a more fundamental level than legal standards.

Once we carefully distinguish between the linguistic meaning of the legal texts and the content of the law, it becomes clear that the main goal of legal interpreters is to find the latter. Because legal interpretation seeks the content of the law, which methods of legal interpretation are correct depends ultimately on the way in which the content of the law is determined by more basic facts (including, for example, facts about the enactment of statutes and the decision of cases). There can be legal standards that specify how these more basic facts determine the content of the law, but such legal standards play a subsidiary role in the full explanation of how the content of the law is determined. For the legal standards that make up the law of interpretation – like other legal standards – themselves depend on the way in which the content of the law is determined at the fundamental level – the province of jurisprudential theories such as those of HLA Hart and Ronald Dworkin (theories of law, for short). As a result, one cannot resolve key questions about Baude and Sachs’s law of interpretation – to what extent and why law can alter the way in which the content of the law is determined, what that “law of interpretation” requires, how to find it, and how much of it there actually is – without addressing the central jurisprudential question of how the content of the law is determined. Attempting to explain how legal standards are determined by pointing to further, second-order legal standards only pushes back a step the core question of how the more basic facts determine legal standards.

02/11/2017

Due Process, Commerce, International Travel, and Trump
Andrew Hyman

Regarding co-blogger Mike Ramsey's recent posts about "Originalism and Trump's Travel Ban," I am not convinced that the commerce power is insufficient to substantively support international immigration or travel restrictions upon refugees, and am also not convinced that the general executive power is sufficient to deprive all aliens of this liberty even if the most protective procedures are used.  This is not an argument for substantive due process (for which the kindest descriptor is "grossly illegitimate"), but rather an argument for constitutional limitations upon the bare executive power. A while back, I posed a question about the Commerce Clause: would anyone argue that Ford Motor Company might be exempt from federal regulation when it transfers manufacturing equipment from its property in Michigan to its property in Canada, merely because no buying or selling was involved in that transfer?  It certainly seems like commerce to me, because transnational commercial activities pretty clearly fall with the scope of the Commerce Clause.  I admit that an international  traveler's "purpose" may not be to engage in commerce, but that is nevertheless a very substantial "effect."  When people enter the U.S. they bring at least the demand part of "supply and demand" (and very often the supply part too), whether they want to or not.  Unlike in Wickard v. Filburn, there is actually a state (or national) line being crossed here, so it's clear to me that the commerce power does the job.

Regarding insufficiency of the general executive power, the Constitution presumably means that that power can be addressed by Congress via the Necessary and Proper Clause, but does not have to be addressed by Congress via the Necessary and Proper Clause.  So the question is whether immigration and international travel limitations are within the executive power even if Congress says nothing about it at all.  And the answer seems to be clearly "no" assuming the Due Process Clause is triggered, because then "law" is required, and the executive power is inherently insufficient to make "law" (regardless of what process or procedures are employed).  Additionally, it would not make sense to circularly argue that the executive power can execute any law whatsoever enacted under the Necessary and Proper Clause to effectuate that very same executive power; limitations from old English law might somewhat ameliorate this circularity problem, but they cannot give the president lawmaking power.

Of course, if international travel and immigration restrictions are within federal power (especially in view of the Migration or Importation Clause), that still leaves the question of which Bill of Rights limitations (if any) might be involved.  I will skip that issue, in this post.
 
I will say that the Trump administration would stand a much better chance of overcoming many of the quibbles of the Ninth Circuit by re-drafting executive order 13769, for example by explicitly exempting permanent resident aliens (i.e. "denizens").  A severability clause is always something worth considering too, and consulting with congressional leaders never hurts; if lots of findings of fact can be put into a new EO then that might be worth considering as well (e.g. the FBI is predicting an imminent "terrorist diaspora").

Randy Barnett & Evan Bernick: The Judicial Duty of Good-Faith Constitutional Construction
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) and Evan Bernick (Institute for Justice) have posted The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction on SSRN.  Here is the abstract:

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the judge-constraining virtues of originalism and exposes the citizenry to arbitrary judicial power. In this Article, we respond to this challenge with a theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” Our theory draws upon a familiar concept in contract law that is used to handle the problem of contractual discretion: the duty of good-faith performance.

We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens — a relationship characterized by discretionary powers in the hands of officials and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given them in “this Constitution” in good faith. This means that judges engaging in constitutional construction or implementation must seek to give legal effect to both the Constitution’s “letter” (consisting in its original public meaning) and its “spirit” (consisting in the original function or purpose of its particular provisions.)

Therefore, when original meaning interpretation alone is not enough to resolve a controversy, the judicial duty of good-faith construction consists in (a) accurately identifying the spirit of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists of a court exploiting the discretionary process of implementing the Constitution by evading either its original letter or spirit (or both) to recapture an opportunity forgone by adopting the written Constitution as amended.

This is one of the papers that will be presented at the originalism works-in-progress conference in San Diego next weekend.  More from Randy Barnett at Volokh Conspiracy here.

02/10/2017

McGinnis and McConnell on Gorsuch and Originalism
Michael Ramsey

At Liberty Law Blog, John O. McGinnis: Gorsuch Nomination: Potentially the Best News for Originalism since 1987.

Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism that holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory. Gorsuch has himself written an excellent university press book on assisted suicide. His opinions often engage with the latest law review articles as well as the latest case law on a subject. This academic breadth matters more than one might think.   Even if the Supreme Court makes correct decisions today, they will last only if our constutional [sic] culture becomes an originalist culture, as it was for the century before progressivism. Originalism has been ascending in academic respectability for the last two decades, in no small part thanks to Antonin Scalia. Another justice who takes the academic case for originalism seriously will provide fuel for continued ascent.

At Defining Ideas, Michael McConnell: Neil Gorsuch: An Eloquent Intellectual.

Judge Gorsuch is a longstanding proponent of the view that the Constitution must be interpreted according to its text as it was understood by those with authority to enact it. In his words: “Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” (Cordova v. City of Albuquerque (2016)). That sometimes leads to conservative results, but not always. As one liberal law professor wrote: “He is way too conservative for my taste, but his decisions are largely principled and fair from his originalist’s view of constitutional interpretation. . . . That approach can result in decisions that don’t reliably fall into any one place on the liberal-to-conservative spectrum.”

If the Constitution, fairly interpreted, does not speak to an issue, Judge Gorsuch leaves it to the political process. As he wrote in tribute to his mentor Justice Byron White, we should have “confidence in the people’s elected representatives, rather than the unelected judiciary, to experiment and solve society’s problems, so long as the procedures used were fair and the opportunity to participate was open to all.”

02/09/2017

Originalism and Trump's Travel Ban (part 2)
Michael Ramsey

In part 1 of this series, I argued that the constitutional authority for President Trump's travel ban is best grounded (as an originalist matter) on the President's executive power in foreign affairs.  In this post, I will consider whether the Constitution contains (as an original matter) an individual rights limitation on the exercise of that power.  (Readers might suspect that I delayed this post until after the Ninth Circuit's decision in Washington v. Trump, but in fact I've just been busy at my day job).

For this purpose, I leave aside any statutory issues with the travel ban (Josh Blackman has excellent analysis here and here), and I also leave aside claims based on the free exercise and equal protection clause as unpromising as an original matter (or really any matter) for the reasons outlines here by Peter Margulies at Lawfare.

The most plausible candidate for limiting the President’s power here, in my view, is the due process clause.  Quite arguably, the targets of the travel ban have not received any process, as the ban was imposed by executive decree, not based on the actions of individuals and without any judicial process (or individualized executive process) associated with it.

The due process clause only requires due process in the case of a deprivation of "life, liberty or property."  It seems implausible that non-citizens outside the United States have any liberty interest in coming to the United States.  Among other things, it seems likely that the founding generation did not understand non-citizens outside the United States to be protected by the Constitution, and in the specific context of alien admission, English law did not recognize a right of aliens to come to England (absent royal permission).  Or, put in modern terms that may nonetheless capture something of the clause’s original meaning, non-citizens abroad have no reasonable expectation to be allowed to come to the United States.  (This is a conclusion Justice Scalia reached for a plurality of the Court in Kerry v. Din).  As a general matter, then, the due process clause does not seem implicated by a travel ban.

However, the situation may be very different for people who already had a right to travel to the United States – namely visitors with validly issued visas or lawful U.S. residents with “green cards.”  Although these people might not have a constitutional right to travel to the U.S., they do have a statutory right (or rather, a right granted by executive action pursuant to statute).  As I understand it, the right is not absolute -- it still could be denied for specific individualized matters that might support denial of entry -- but it is a conditional right.  They are being deprived of this right by a blanket executive action.  But the right they obtained was not one defeasible by blanket executive action; it was one defeasible only in certain individualized circumstances.  Thus, there seems to be a good argument that they have been deprived of a liberty right.

It remains to ask what process would be due.  I would not expect an originalist to use the modern Mathews v. Eldridge balancing test, something the Supreme Court invented in the 1970s.  The question should be what procedures were thought "due" for historical analogues (but see Connecticut v. Doehr [Scalia, concurring} [using Mathews test in case where procedure had no historical analogue]).  I can think of two.  First, in English law, the monarch could make an alien into a "denizen" (basically, in modern terms, a lawful permanent resident).  Would due process attach to the monarch's decision to "unmake" a denizen?  (I confess to having no idea).  Second, and perhaps more directly analogous, in eighteenth century practice the executive could grant safe conducts to aliens, which created an obligation of secure passage into sovereign territory under international law. Would a revocation of a safe conduct implicate due process?  (Again, I don't know the history, but it seems like a place to start).

In any event, whatever process might be due, it seems that in this situation there was no process at all, aside from an executive order based on speculation that some people within the class of visa/green card holders might be dangerous.  That seems inadequate.  The executive could not, I assume, order that all visa/green card holders from specified countries be detained indefinitely on the ground that some people in that group might be dangerous.  The President's order, of course, does not go that far, but it does (by the above reasoning) seem nonetheless to implicate a liberty right.  As a result, perhaps some process is due beyond simply a blanket prohibition.

(For what it's worth, the Ninth Circuit seemed to think the due process claims in Trump v. Washington were the most weighty.  Se analysis here by Will Baude and here by Josh Blackman).

 

Stephen Sachs on Sunstein on Originalism
Michael Ramsey

A further response to Cass Sunstein's critique of originalism from Stephen Sachs (Duke), via Will Baude at Volokh Conspiracy: Stephen Sachs on the wrong way to criticize originalism.  A key point:

Sometimes the law has bad consequences. Is Sunstein denying that? (Is he a natural lawyer in disguise?) Sometimes even our law has bad consequences. That was surely true in 1788. But are those times wholly past? The danger in the originalism-causes-bad-things argument is that it risks being complacent about the moral state of things right now. People who are pro-life might not think our current practices are all that moral; neither might advocates for animals (of whom Sunstein is one), for prisoners, for drone victims, and so on. As [Mike] Rappaport asks, has the living constitution really done away with every deep injustice that might give rise to similar questions?...

The danger in suggesting that our law won’t produce desperately bad things–and in making the non-production of bad things a criterion for determining our law–is that it might lead us to overlook how bad things really are. ...

Sometimes legal rules really do take consequences into account. But Robert Bork’s America arguments blur the line between legal rules and policy preferences—which is an incredibly important line for lawyers and law professors to uphold!

(For previous comments on Sunstein, see here (Mike Rappaport), here (Ilya Somin) and here (me)).

I think Professor Sachs may mistake the nature of (much) nonoriginalism.  Nonoriginalism does "blur the line between legal rules [or at least constitutional rules] and policy preferences."  Nonoriginalism is "natural lawyer[ing] in disguise."  Like originalism, it may be limited by precedent, institutional competence concerns, and the like.  But ultimately its touchstone is the speaker's intuition of the correct result.  I think the typical nonoriginalist response to Sachs' comments would not be to deny that current law [that is, current Supreme Court doctrine] allows bad things, but to say that current law, to the extent it allows bad things, is wrong and should be re-interpreted.  Indeed, that is the (supposed) advantage of nonoriginalism over originalism: the former allows us to reach the results we like, whereas the latter may impose results we don't like.

The reason this is not really an argument for nonoriginalism is that nonoriginalism does not actually (in the real world) reach the results I (or Cass Sunstein) like; it reaches the results that judges like.  And, as Mike Rappaport says, those "could easily" be bad results.

02/08/2017

A Comment on Congress' Power over Aliens
MIchael Ramsey

Regarding my post on the source of constitutional power over admission of aliens, David Weisberg writes:
 
In a search for constitutional underpinnings supporting a travel ban, I think it's very helpful to consider Art. I, Sec. 9, para. 1: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year [1808]...."  It is obvious from the formulation that Congress is presumed to have the power to prohibit migration or importation of slaves; there is no explicit grant of that power in that clause or anywhere else in the Constitution.  If Congress has a pre-existing power to prohibit the migration or importation of slaves, and that power is not explicitly granted to Congress for just that specific purpose, I think the most reasonable understanding would be that Congress has a power to exclude anyone at all from migrating to the U.S.  That power would, I think, go a long way toward justifying something like Trump's travel ban.
 
The Commerce Clause gives Congress the power to regulate commerce with foreign nations, but the Migration Prohibition Clause (if I can call it that) deals with both “migration” and “importation”.  I think there is an importance difference between those two concepts.
 
The O.E.D. definitions: 
 
Migration: “esp. of persons, a tribe: the action of moving from one country, locality, etc., to settle in another; also, simply, removal from one place of residence to another.”  This definition has been valid at least since 1646.
Importation: “The action of importing or bringing in. a.Commerce.  The bringing in of goods or merchandise from a foreign country[.]”  This definition has been valid at least since 1601.
 
No part of the definition of “migration” refers to any kind of commercial transaction.  If we assume the founders were careful with their language, I don't think they would have understood "migration" to be an instance of commerce with foreign nations.
 
Here are two different scenarios (I apologize for the graphic nature, but it’s unavoidable).  If someone captures or buys slaves abroad, and then "imports" them into the U.S. for re-sale here, that certainly is "commerce with foreign nations" within the Commerce Clause.  But, if I myself go abroad and buy a slave for my personal use back home, or I send someone to do that for me, and the slave is then brought to the U.S., and I never sell him, I think that is different from the first scenario and is probably outside the Commerce Clause.  I or my agent conducted commerce in a foreign nation (when the slave was bought), but I don't think that, in bringing him back to the U.S., I or my agent conducted commerce with a foreign nation.  I would think "migration" covers the second scenario, and that's probably why it's in the clause.
 
 Again, I don’t think there is any commercial aspect to the “migration” of people, so I don’t think the power of Congress to prohibit the migration of slaves is an instance of the commerce power.  It’s a different power, and the Migration Prohibition Clause assumes that it’s a pre-existing power of Congress. 

Originalism and Trump’s Travel Ban (Part I)
Michael Ramsey

In this post and a second one, I will consider originalist approaches to the constitutionality of the President's ban on travel to the U.S. by citizens of seven foreign nations.  The first step (which I will address in this post) is to find a constitutional source for the President's power.  The second step (addressed in the next post) is to ask whether any of the Constitution's individual rights provisions limit that power in ways relevant to the travel ban.

One might suppose that the source of the President's power is easily identified:  authorization by statute, specifically 8 U.S.C. 1192(f).  (See this extensive discussion of the statutory issues by Josh Blackman).  But the matter is not so easy, because then we must find a constitutional source for Congress' power, and that source is not obvious.

In the modern era, courts have said that Congress has essentially plenary power over the admission of aliens to the United States.  The plenary power doctrine is doubtful on originalist grounds, however, as the Constitution’s text does not convey such a power expressly, and the roots of the modern plenary power doctrine lie in late-nineteenth-century ideas about inherent powers of sovereignty that do not claim to have a basis in the Constitution’s original meaning.  (See Chapter 4 of International Law in the U.S. Supreme Court).  An originalist approach to thinking about the travel ban would need first to identify something in the Constitution to give Congress power in this area.

There are three main positions.  One is that the Constitution itself contains the idea of inherent national sovereignty, and implicitly conveys such sovereign powers on the federal government, principally on Congress through the necessary and proper clause.   This is somewhat different than the nineteenth-century idea of sovereign powers, which were admitted to be outside the Constitution, but it likely leads to similar results: a comprehensive congressional authority over admission of aliens.

In contrast, some scholars – notably Ilya Somin – deny that the federal government has comprehensive power over aliens; in this view, Congress can exercise power over aliens only through its expressly enumerated powers, and those powers provide sharply limited and incomplete power of exclusion.  The founding design and assumptions instead were that states would principally address issues related to aliens.  (Professor Somin will be presenting a paper defending this view at the upcoming originalism works-in-progress conference in San Diego).

An intermediate position holds that Congress’ power over aliens must indeed rest on enumerated powers (or actions necessary and proper to effectuate enumerated powers), but that its enumerated powers – principally the commerce power and the naturalization power – are broad enough to add up to effectively comprehensive power.

I have, at least tentatively, a different view.  None of the leading views seems satisfactory.  The first, inherent powers, is inconsistent with the Tenth Amendment, with the design of enumerated powers, and with numerous statements and assumptions of the founding era about the sources of congressional power.  (See Chapters 1-2 of The Constitution’s Text in Foreign Affairs).  The third position may depend on an unduly broad reading of enumerated powers, in particular with respect to aliens traveling for neither commercial nor immigration purposes.  And the second position seems implausible as a matter of design, at least with respect to aliens from hostile or potentially hostile nations.

 My view instead is that admission of aliens may, in the first instance, be an executive power.  It was so understood under eighteenth-century English law, as part of the English monarch’s power over foreign relations; theorists such as Montesquieu, who described the “executive” power as including foreign relations power, probably would have included admission of aliens within the powers of dealing with foreign nations.  That is especially so as the power of admission is connected to national security, again associated with executive power.

Of course, the American framers did not assign all of the monarch’s foreign affairs power to the President (they specifically excluded or limited, for example, war power and treatymaking power).  But the Constitution does vest the President with “the executive Power,” and I have argued at length that this vesting includes foreign affairs powers that were historically understood as executive and that were not assigned elsewhere by the Constitution’s text.  Although various objections have been raised to this reading, I find none of them persuasive (see here for some responses). On this theory, one could argue that admission of aliens, an executive foreign affairs power not assigned elsewhere in the text, is a presidential power. 

Both the executive branch and Supreme Court do to some extent identify exclusion of aliens with executive power.  In the travel ban case, the President’s executive order refers to powers granted to the President by both statutes and the Constitution, and the Justice Department's briefing in the case (summarized well here by Byron York) also seems to lean heavily on independent executive power in addition to congressional authorization.  In a key case, Knauff v. Shaughnessy (1950), the Supreme Court said:   "The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation."

The problem for originalists is that the Court in Knauff followed that statement with a citation to the much maligned (by originalists) Curtiss-Wright case, which associated executive power in foreign affairs with extraconstitutional powers.  And Curtiss-Wright has been a long-time favorite of the executive branch.  So modern arguments for finding an executive power over admission of aliens likely rest on Curtiss-Wright.  And no originalist, in my view, should rest anything on Curtiss-Wright.

But the theory of executive power in foreign affairs shows how some of Curtiss-Wright's claim for executive foreign affairs power can be grounded on the Constitution's text and original meaning, despite Curtiss-Wright's failure to do so.  Not all of Curtiss-Wright can be so defended, and I have identified various areas that cannot (for example, attempts to make executive agreements and executive policy preemptive of state law, see here).  Admission of aliens, however, seems a reasonable candidate to include within the President's constitutionally vested executive power.  (Andy McCarthy makes the point briefly here).

If that's correct, it in turn provides a grounding for Congress' power to legislate regarding the exclusion of aliens.  Congress' "necessary and proper" power includes not just laws necessary and proper for carrying into execution its own enumerated powers, but also for "carrying into Execution ... all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."  That includes powers vested in the President -- and thus, by the theory developed above, the power over admission of aliens.  Thus Congress does have comprehensive power to legislate regarding admission of aliens, as modern cases have said, but the originalist case for it is more complicated than modern law has recognized.

Of course, this is just the first step of an originalist analysis.  Even if the President's order is based on executive foreign affairs power, Congress could limit it in the exercise of its own enumerated powers.   And the President’s constitutional powers are limited by Constitution’s guarantees of individual rights.  I’ll turn to the latter issue in a second post.

02/07/2017

Sunstein’s Critique of Originalism
Mike Rappaport

In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism:

But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about.

For example, originalism could easily lead to the following conclusions:

States can ban the purchase and sale of contraceptives.

The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.

The federal government can discriminate against women -- for example, by banning them from serving in high-level positions in the U.S. government.

States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.

Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.

States can establish Christianity as their official religion.

Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.

The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions -- and originalists have to do real work to explain why they reject them.

The usual response to this argument from originalists is to context whether these claims are really true about originalism.  One might argue that the original meaning does not lead to some of these results, that others are protected by precedent, and yet others are appropriately struck down.  Mike Ramsey does a great job of responding to Sunstein’s charges here.

But I want to address Sunstein’s argument in a different way.  Perhaps it was just carelessness, but notice the language above that I italicized: “originalism could easily lead to the following conclusions.”  Even if Sunstein were right about this, what would that prove?

Consider the main alternative to originalism: nonoriginalism.  Obviously, this is not a single interpretive approach, but put that to the side.  Could nonoriginliast “easily lead” to those conclusions?  Of course, it could.  In fact, to the extent that nonoriginalism is about pursuing discretion on the part of judges to pursue what a good constitution would be – which is a big part of nonoriginalism – nonoriginalism clearly would allow these results.

It is true that  there are different types of nonoriginalism, but if one is defining the interpretive approach without regard to specific political results – for example, an interpretive approach with the goal of reaching progressive or conservative results – then most forms of nonoriginalism will fail Sunstein’s test.  Consider, for example, the pluralist or modalities approach of Phillip Bobbit.  This approach has various modalities that one can consider and the judge generally has great discretion in deciding which one to employ.  Could it lead to the consequences Sunstein deplores? Of course.

Now, I suppose Sunstein might attempt to defend himself by saying that we should follow precedent.  But precedent is no solution.  Unless Sunstein wants to follow all precedent rigorously – something I doubt he would affirm, since it would have precluded many important cases such as Brown and Obergerfell – he has a problem again.  Precedents can be overturned so the system might lead to the results Sunstein dislikes.

In the end, there is no way out for Sunstein, unless he wants to define his position as simply favoring progressivism.  Yes, an interpretive approach explicitly designed to reach progressive results will make Sunstein happy.  But the power-grabbing arbitrariness of this approach would be too obvious to command much assent.

Robert Natelson: The Original Meaning Of ‘Emoluments’ in the Constitution
Michael Ramsey

Robert G. Natelson (The Independence Institute) has posted The Original Meaning Of ‘Emoluments’ in the Constitution on SSRN.  Here is the abstract: 

This Article explores the original meaning of the word “Emolument(s)” in the Constitution. It identifies four common definitions in founding-era political discourse. It places the constitutional use within its context as part of a larger reform movement in Britain and America and as driven by other historical events. The Article examines how the word was employed in contemporaneous reform measures, in official congressional and state documents, in the constitutional debates, and in the constitutional text. 

The author concludes that the three appearances of “emoluments” in the Constitution had a common meaning, which was “compensation with financial value, received by reason of public employment.”

My general view is that whatever Rob Natelson concludes has a presumption of correctness.

02/06/2017

Eric Posner Regrets? [updated]
Michael Ramsey

In the New York Times, Eric Posner writes: Gorsuch Must Condemn Trump’s Attack on a Judge.  From the introduction:

Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, must publicly condemn the president’s attack on the judge who blocked his immigration order. Judge Gorsuch’s sterling credentials notwithstanding, his supporters in the legal community should withdraw their backing for his nomination if he fails to do so.

After Judge James Robart’s ruling Friday evening, Mr. Trump wrote on Twitter, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Mr. Trump may be right that the order will be stayed or overturned — the legal merits are tricky, and Judge Robart has not heard full briefing of them yet. But the attack on Judge Robart’s integrity is indefensible.

Federal judges have frustrated American presidents since the founding. Thomas Jefferson fulminated against judicial overreach and tried to get a Supreme Court justice impeached. Andrew Jackson disregarded a judicial order from the Supreme Court, Abraham Lincoln suspended the writ of habeas corpus and Franklin D. Roosevelt tried to pack the Supreme Court with his own appointees after it blocked many of his New Deal reforms. In his 2010 State of the Union address, President Obama criticized an opinion of the Supreme Court on campaign finance reform in front of some of the justices.

But, by and large, presidents have respected the federal judiciary. As far as I know, no president has publicly challenged the integrity of a judge who has ruled against him. Mr. Trump, as in so many other cases, has broken new ground.

And quoting from one of Judge Gorsuch's opinions:

The framers lived in an age when judges had to curry favor with the crown in order to secure their tenure and salary and their decisions not infrequently followed their interests. Indeed, the framers cited this problem as among the leading reasons for their declaration of independence. … To this day, one of the surest proofs any nation enjoys an independent judiciary must be that the government can and does lose in litigation before its ‘own’ courts like anyone else.

Right you are, Judge Gorsuch. Now say it again.

(Thanks to Michael Perry for the pointer).

I was nodding agreement ... but then I thought:  wait, who was the author that, not so long ago, said we lived "After the Madisonian Republic"?  Who embraced an executive "unbound" by law and saw us on the road to plebiscitary democracy?  Who thought the appropriate guide for the U.S. executive was not the American framers with their quaint unworkable ideas of separation of powers but the Weimar-era German writer Carl Schmitt?  Yes, that was Eric Posner in 2010 (see my review here).

No modern academic has done more to exalt the executive and belittle separation of powers than Professor Posner.  Perhaps in doing so he was not thinking he would see the sort of executive he sees now, but perhaps he should have thought about that more carefully.  (One could say the same for Carl Schmitt).  So no, you cannot spend 200+ pages arguing for an unbound executive in 2010 and then, when you get one you don't like, credibly rediscover Madison's Republic.  

And in the end, Posner gets it wrong anyway.  The way to defend separation of powers is to defend separation of powers.  The role of a judge or Justice (or nominee) is not to comment extrajudicially on the political actions of the President (however comment-worthy they may be).  The role of a judge is to speak to executive action through judicial opinions when a case or controversy arises, as Judge Gorsuch has done.  No more need be said.  The alternative would further politicize the judiciary, leading judges down a road where they might be expected extrajudicially to condemn every sort of presidential mischief or else be held implicitly to condone it. 

UPDATE:  At his blog, Professor Posner has a post, pre-dating his New York Times article, discussing the relationship between The Executive Unbound and the Trump presidency: The Executive Unbound, Trumped (thanks to Will Baude for the pointer).  He also has a post responding to various criticisms of his New York Times article, here, and some further thoughts (which I don't find persuasive) on Judge Gorsuch's supposed obligation to condemn the President's comment, here.

From the former post:

The popular interpretation of The Executive Unbound was always a caricature. The Executive Unbound compared two systems of government: the “liberal legalism” model in which Congress takes the lead in making policy within a system of separation of powers; and the “presidential primacy” model in which most policymaking takes place in the executive branch, by regulatory agencies under the broad supervision of the president. Our argument was that while the liberal legalism model remains the official story, the presidential primacy model more accurately depicts the workings of the government.

... We argued that the long-term trajectory in favor of presidential power—more generally, the centralization of power within the national government in the office of the presidency—reflects economic, political, and technological trends that are (more or less) inevitable, and in the face of which the separation of powers system gridlocks. To that extent, if you want government to govern, you need to learn to live with presidential primacy.

While the title of the book and some passages may have led readers to think that the book imagines that the president is subject to literally no constraints from Congress and the courts, that was never the argument. The book would make little sense if it was. One chapter discusses presidential power during emergencies; the argument that the president’s freedom of action expands during emergencies would make little sense if the president’s freedom of action was already at a maximum during normal times. The book observes that most of the expansion of executive power took place through voluntary delegations by Congress, which, at least formally, retains the power to withdraw those delegations or impose additional constraints on them. And the book describes a historical process that is still going on; it does not claim that we have reached an endpoint of maximal presidential power, whatever that would mean.

I think that's generally a fair description except that in the last quoted sentence I would say that "the book celebrates a historical process that is still going on..."

02/05/2017

Ilya Somin on Cass Sunstein on Originalism and Unpopular Outcomes
Michael Ramsey

At Volokh Conspiracy, Ilya Somin has further responses to Cass Sunstein's criticism of originalism (my response is here).  Among other points, 

Another problem with Sunstein’s argument is that it could easily be turned against living constitutionalism no less than originalism. Most versions of living constitutionalism give judges considerable scope reinterpret the Constitution in order to address modern social needs. Many of the results Sunstein fears originalism might produce could easily be rationalized by living constitutionalists as necessary responses to changing social conditions.

For example, a living constitutionalist might believe that a religious revival could help alleviate a variety of modern social pathologies, and that state promotion of Christianity could aid in that process. If so, perhaps we should indeed let states establish Christianity as an official religion and otherwise promote its spread. A recent survey found that almost a third of the public believes that “being Christian” is a “very important” part of “being truly American.” Living constitutionalist judges who feel the same way could readily decide that we should overrule or at least greatly narrow precedents constraining state promotion of Christianity.

Similarly, a living constitutionalist could conclude that, under modern conditions, racial, ethnic, and religious profiling is an essential tool for combatting crime and terrorism. Therefore, we should loosen or even eliminate constitutional restrictions on discrimination by law enforcement. They could also cite social science studies suggesting that ethnic diversity reduces social trust and social capital, and thereby rule that states should be given a freer hand in promoting racial and ethnic segregation. This latter possibility actually has historical precedent. In the early 20th century, Progressive living constitutionalists did in fact argue that the state and federal governments should be allowed to engage in extensive discrimination in part based on supposed scientific evidence indicating that it would alleviate various social pathologies.

And in conclusion:

Finally, if we are going to judge constitutional theories by their consequences (as I believe is often justified), then we should pay less attention to scenarios where judges might do something “out of the mainstream” and more to situations where the mainstream itself has gone badly wrong. The political and legal system have lots of resources for blocking terrible outcomes that are at odds with the dominant views of legal elites and majority public opinion. That includes most of the scenarios that Sunstein describes. His examples derive their intuitive force precisely from the fact that majority public and elite opinion finds them outrageous. That very outrage, of course, makes them less likely to happen.

The really difficult challenge for constitutional theory is how to address situations where the mainstream itself has gone badly wrong. Most of the Supreme Court’s worst decisions occurred precisely because mainstream opinion at the time supported them.

Jud Campbell: Republicanism and Natural Rights at the Founding
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted Republicanism and Natural Rights at the Founding (32 Constitutional Commentary 85 (2017)) on SSRN.  Here is the abstract:     

Today we tend to think about natural rights as non-positivist claims to limits on governmental authority — typically claims derived from religion, morality, or logic. These “rights,” by their very definition, exist independent of governmental control. Indeed, that is what makes them “natural.” This Essay, responding to Randy Barnett's Our Republican Constitution, sketches a different view of Founding-Era natural rights, their relationship to governmental authority, and their enforceability. With the exception of certain “rights of the mind,” natural rights were not really “rights” at all, in the sense of being determinate legal privileges or immunities. Rather, embracing natural rights meant embracing a mode of reasoning. And the crux of the idea — in stark contrast to the modern notion of “natural rights” — was to create a representative government that best served the public good. The Founding-Era idea of “natural rights” thus called for judicial deference to legislative judgments, and it favored broader governmental power just as much as limits to that power. In short, natural rights called for good government, not necessarily less government.

02/04/2017

Originalism and Unpopular Outcomes: A Reply to Sunstein
Michael Ramsey

Earlier I noted Professor Cass Sunstein's Bloomberg View column posing seven challenges for originalists.  Here again is his list:

[O]riginalism could easily lead to the following conclusions:

  1. States can ban the purchase and sale of contraceptives.
  1. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
  1. The federal government can discriminate against women -- for example, by banning them from serving in high-level positions in the U.S. government.
  1. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
  1. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
  1. States can establish Christianity as their official religion.
  1. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.

He added:

The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions -- and originalists have to do real work to explain why they reject them.

As to six of them, I think not much work is needed.  To begin, this is something of an academic exercise: none of the first six is going to come before any actual judge.  No government entity wants to do any of these things, and no one thinks such a case would be worth making.

But in any event, the force of the "propositions" comes only from the assumption that originalists do not follow precedent.  Sunstein admits that Justice Scalia followed unconstested and deeply entrenched precedent, but says "other originalists" do not.  It's true that some academic originalists categorically reject precedent (though others do not); academics have the luxury of taking positions that are, well, academic.  I'm not aware of any originalist judge or Justice who categorically rejects precedent -- some may point to Justice Thomas, but in fact Justice Thomas does follow apparently nonoriginalist precedent in multiple areas.  For example, he accepts the application of the equal protection clause to the federal government.

There is considerable debate among originalists as to how far to follow precedent and as to the theoretical justification for doing so.  One approach, suggested by my colleague and co-blogger Mike Rappaport, is that, at minimum, originalists should accept nonoriginalist rulings that are so widely embraced that, in the absence of judicial adoption, they would be enacted by constitutional amendment.  The idea is that, but for the mistaken ruling, a constitutional amendment would have been adopted -- but it was preempted by the Court.  And of course all originalists would respect a constitutional amendment.

I think this is very attractive as a minimum (some would go further in preserving precedent, as Scalia did).  But even this bare minimum takes care of six of Sunstein's seven examples.  When even the narrowest view of precedent covers the examples, and no "practicing" originalist rejects precedent altogether, I think one cannot say originalism "could easily" lead to the bad outcomes Sunstein suggests. 

(I would add that at least one of the six "propositions," and perhaps more, do not follow from originalism in any event, even without regard to precedent.  In my view Brown v. Board of Education reflects the original meaning of the Fourteenth Amendment, as Michael McConnell of Stanford has persuasively argued, and as Scalia believed.  Various leading originalist scholars, including Michael Paulsen and Steven Calabresi, have argued that the Fourteenth Amendment also bars discrimination against women.  Likewise many originalist scholars believe that the Fourteenth Amendment incorporates the establishment clause against the states (though I know Justice Thomas has his doubts).  Nonoriginalists like Sunstein make casual "scare" arguments about what originalism "could easily" require, but often there are actual originalist arguments to the contrary).

As to Sunstein's seventh proposition, I think it does not belong with the others, and indeed putting it there is something of a slight of hand.  Some parts of the Endangered Species Act and the Clean Water Act are undoubtedly constitutional under the original meaning of the commerce clause, and parts are likely protected by the precedent of Wickard v. Filburn.  But the outer boundaries of those Acts have not been tested at the Supreme Court and are not part of settled law -- instead, they are being actively litigated (see Mark Pulliam here on the cave bug litigation).  Regardless of what one thinks of the merits, these disputes are an entirely different matter -- for better or worse, originalism might well make a practical difference to the outcome.

02/03/2017

Jeffrey Rosen on Judge Gorsuch
Michael Ramsey

In The Atlantic, Jeffrey Rosen: A Jeffersonian for the Supreme Court.  From the introduction:

Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, is one of the most respected conservative legal intellectuals on the federal bench. Like Justice Antonin Scalia, he has the ability and the ambition to lead America’s constitutional debate by following a clear vision of textualism and originalism, based on the premise that judges should separate their political from their constitutional conclusions.

But unlike the Hamiltonian Justice Scalia, the more Jeffersonian Gorsuch seems more willing to return to constitutional first principles and to question the constitutional underpinnings of the post-New Deal administrative state. At the same time, he clerked for Justice Anthony Kennedy and seems more likely than any other nominee to persuade Kennedy to vote with the conservatives rather than the liberals as long as he remains on the Court. And his record suggests a willingness to transform the law and to enforce constitutional limitations on the excesses of Congress and the president. For all of these reasons, Gorsuch’s appointment gives conservatives reason to celebrate, and liberals reason to fear, that Trump couldn’t have made a more effective choice.

There’s no doubt, however, that the principled Gorsuch would be willing to rule against Trump or a Republican Congress if he felt they exceeded their constitutional bounds—if Trump issued executive orders that clashed with the text of federal immigration laws, for example, or if Congress passed laws banning abortions that don’t involve crossing state lines that exceeded its power to regulate interstate commerce. As Gorsuch said at the White House while accepting Trump’s nomination, “a judge who likes every outcome he reaches is very likely a bad judge.” And because of Gorsuch’s appealing and collegial personality and temperament, he could certainly join with the liberal and conservative justices on the Roberts Court to form a united front against clear and present threats to the First Amendment or to the constitutional order. At a time when progressives are rediscovering the virtues of Madisonian checks on populist excesses and federal power, Gorsuch may be precisely the kind of bipartisan Jeffersonian justice the country needs.

02/02/2017

Cass Sunstein on Originalism and Unpopular Outcomes
Michael Ramsey

At Bloomberg View, Cass Sunstein (Harvard): Originalists Put Politics Over Principle.  Despite the title, the core argument is that originalism leads to unpopular -- and unacceptable -- results:

If [originalism] is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about.

For example, originalism could easily lead to the following conclusions:

  1. States can ban the purchase and sale of contraceptives.
  1. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
  1. The federal government can discriminate against women -- for example, by banning them from serving in high-level positions in the U.S. government.
  1. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
  1. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
  1. States can establish Christianity as their official religion.
  1. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.

The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions -- and originalists have to do real work to explain why they reject them.

These are fair questions (although note the important "could" in the lead-in sentence above: originalism. like other methods of interpretation, "could" lead to a lot of outcomes; surely the question is whether originalism "must" or "would likely" lead to these outcomes).

In a later post, I will try to do some "real work" to explain why originalists should (or maybe "could easily"?) reject at least most of these propositions.

Sunstein continues (more in keeping with his title):

The larger irony is that while there are careful, reasonable and nonpolitical arguments for certain forms of originalism, the views of many self-proclaimed originalists line up, not with those of We the People in 1789, but with those of the right-wing of the Republican Party in 2017. Whether we’re speaking of campaign-finance laws, commercial advertising, gun rights, affirmative action, gay rights, property rights or abortion, originalism has failed to prevent judges from voting in accordance with their political predilections.

Any president deserves a degree of deference with respect to Supreme Court nominees, and Trump’s model, Justice Scalia, was a genuinely great judge. But part of his greatness consisted in his willingness, on important occasions, to abandon originalism -- and to vote in ways that defied easy ideological categorization.

Too often, today’s originalists read the Constitution to fit with the latest Republican Party platform, while solemnly proclaiming their reverence for the founding period and their own political neutrality. That’s shameful -- and it’s a sham.

He does not name names or provide examples, and that seems unfair.  If it happens "too often" should there not be some examples?  Merely listing some areas where Republican Party preferences and originalism coincide is not sufficient.  As discussed recently on this blog, and as Sunstein seems to concede, Justice Scalia went against conservative preferences in numerous cases (while voting in ways consistent with conservative preferences in others).  Yet Scalia is widely celebrated as the exemplar of originalist judging -- does that not suggest that "today's originalists" actually applaud departures from the "latest Republican Party platform" when required by the Constitution's original meaning?  (As, of course, they should).

 

02/01/2017

Gorsuch Roundup
Michael Ramsey

A sampling: 

Neal Katyal in the New York Times: Why Liberals Should Back Neil Gorsuch [via Instapundit]

Adam Liptik in the New York Times: In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style

Ilya Somin at Volokh Conspiracy: Thoughts on the Gorsuch pick

Jonathan Adler at Volokh Conspiracy: A supreme nomination to the Supreme Court

Ed Whelan at NRO: A Supreme Successor to Justice Scalia (concluding "Neil Gorsuch has an impressive judicial record as an originalist" and you know that's not an easy compliment to win from Ed Whelan).

Brent Kendall in the Wall Street Journal: Judge Neil Gorsuch Backs Scalia’s ‘Originalist’ Approach.

Robert Barnes in the Washington Post: Neil Gorsuch naturally equipped for his spot on Trump’s Supreme Court shortlist ("Like Scalia, Gorsuch is a proponent of originalism — meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written — and a textualist who considers only the words of the law being reviewed [ed.: and the context in which they were written!], not legislators’ intent or the consequences of the decision.").

And from earlier: this profile, linked here -- The Administrative Law Originalism of Neil Gorsuch.  And this assessment from SCOTUSblog.

Apparently the coming irrelevance of originalism was proclaimed too soon.

Here's why I think both sides of the political debate should be happy, or at least accepting, of a textualist/originalist like Judge Gorsuch (assuming that's what he is).  With a textualist you get what the law says, and with an originalist you get what the law  meant when enacted.  To be sure, in close cases, people being human, you may end up with the judge's policy intuition.  But in general a textualist/originalist has a commitment to something objective, beyond policy intuition in the particular case, and so is more likely to go beyond policy intuition.  As a result, a "conservative" textualist originalist will (as this essay said of Scalia) not infrequently end up with "liberal" results -- at least, more often than a nonoriginalist conservative.  So liberals shuold welcome a textualist/originalist nomination, at least as compared to the likely alternative.

Doesn't this mean, though, that conservatives should be wary?  True, Justice Scalia reached more liberal results that, say, Chief Justice Rehnquist.  But the textualist originalist offers conservatives something they want:  an anchor.  The "conservative" Justice who follows policy intuition may reach all conservative results, but that person is also more likely than the textualist originalist to "drift left," as other Republican appointees have.  The textualist originalist has an anchor in a ideological (meant in a good way) commitment to methodology over results.  Thus Justice Scalia reached fewer liberal results than, say, Justice Souter.

In sum, the textualist originalist has something for each side.