10/21/2014

Renee Lettow Lerner: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial
Michael Ramsey

Renee Lettow Lerner (George Washington University Law School) has posted The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial (William & Mary Bill of Rights, Vol. 28, p. 811, 2014; GWU Law School Public Law Research Paper No. 2014-52) on SSRN. Here is the abstract: 

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

10/20/2014

Steven Calabresi: Gay Marriage and the Fourteenth Amendment from the Originalist Perspective
Michael Ramsey

Steven Calabresi (Northwestern University - School of Law) has posted Gay Marriage and the Fourteenth Amendment (Northwestern Public Law Research Paper No. 14-51) on SSRN. Here is the abstract: 

This essay examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

10/19/2014

Randolph May & Seth Cooper: Intellectual Property Rights Under the Constitution's Rule of Law
Michael Ramsey

Randolph May (The Free State Foundation) and Seth Cooper (The Free State Foundation) has posted Intellectual Property Rights Under the Constitution's Rule of Law (Perspectives from FSF Scholars, Vol. 9, No. 31) on SSRN. Here is the abstract: 

Today, the rule of law is all but universally recognized as a fundamental attribute of a free and just society. A “government of laws, not of men” places important limits on government power in order to ensure the protection of individual rights. And a proper understanding of fundamental rule of law precepts plays an important role in securing Intellectual Property (IP) rights.

American constitutionalism supplies the basic conditions for America’s unique conception of the rule of law – designed to ensure the protection of life, liberty, and property. Intellectual property is a form of property expressly provided for under the Constitution. In theory and in practice, intellectual property is readily conformable to the key components of the rule of law and American constitutionalism, such as according due process and equal protection and protecting vested rights. When IP’s critics argue otherwise, including some who otherwise consider themselves respectful of private property rights, they disregard or misunderstand fundamental elements of American constitutionalism and the rule of law.

This paper, which is part of a series of works on foundational principles of intellectual property, addresses some of the due process, equal protection, Takings Clause, and vested rights implications for IP rights.

10/18/2014

Richard Re on Ebola, Epidemics, and Federalism
Michael Ramsey

At Re's Judicata, Richard Re: Ebola, Epidemics, and Federalism. Here is an excerpt: 

The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.

Donald Wilkes: Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I
Michael Ramsey

Donald E. Wilkes, Jr.  (University of Georgia Law School) has posted Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 (54 Am. J. Legal Hist. 200 (2014)) on SSRN. Here is the abstract: 

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament). 

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during James I's reign. What was the origin and significance of the term High Court of Parliament? What was the parliamentary privilege of freedom from arrest, the violation of which could lead to the granting of habeas corpus relief by the House of Lords or the House of Commons? What was the civil arrest system in effect in seventeenth century Englanda system which made it likely that from time to time the parliamentary privilege from arrest would be violated and the parliamentary habeas remedy thereupon invoked? What other remedies, apart from habeas corpus, were available to deal with infringements of the parliamentary arrest privilege? And what were the contours of the parliamentary habeas corpus remedy itself, which appears not to have been successfully invoked prior to the reign of James I?

Parts II and III conclusively demonstrate that in the reign of James I the High Court of Parliament at times functioned as the High Habeas Court of Parliament. Part II provides an in-depth account of the habeas corpus proceedings in the House of Lords in the reign of James I, while Part III does the same for the habeas corpus proceedings in the House of Commons during the reign.

The Article concludes with a detailed discussion of the three major changes this work mandates in our understanding of English legal history. 

10/17/2014

Gerard Magliocca Replies on the Arizona Redistricting Case
Michael Ramsey

At Concurring Opinions, Gerard Magliocca replies to my earlier post on his views of the Arizona State Legislature case. Here is an excerpt: 

In several places the Constitution clearly says that only “the Legislature” can do something.  For the regulation of congressional districts, though, the Constitution says that “[T]he Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  I submit that this is not clear as Mike suggests.  Why is that?  Because governors have always had the power to veto redistricting plans (as the Supreme Court held in Smiley v. Holm and as the practice was going back to the Founding), whereas they have not had the power to veto, for example, ratifications of constitutional amendments under Article V.  As a result, Article I, Section IV must mean “prescribed in each State by the Legislature thereof” consistent with the lawmaking process set forth in the state constitution.

Buckner Melton: In Blount, the Senate Never Said that Senators Aren't Impeachable
Michael Ramsey

Buckner F. Melton Jr. (Independent) has posted Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren't Impeachable (Quinnipiac Law Review, Vol. 33, 2014 [invited response], forthcoming) on SSRN.  Here is the abstract:

This paper responds to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014) (available on SSRN).

The Senate motion in Blount that supposedly stands for the proposition that legislators aren’t impeachable — the motion to dismiss the House’s Blount impeachment — contains no subtleties to trap the unwary; no intricate analysis is needed. The frequent claim — made by both academic historians and lawyers, including Mr. Cassady — that the Senate decided, in the Blount case, that senators aren’t civil officers, or that members of Congress aren’t subject to impeachment, is simply flat-out wrong. Yet people keep on making it.

My main point in this response to Mr. Casssady is simple: If senators can be impeached, then the notion that an impeached senator can be removed from the Senate but not disqualified from returning to the Senate seems counterintuitive. And if senators can be barred from future Senate service, then so should all convicted and disqualified impeachment defendants, whatever their government position.

This paper will appear with 3 other responses to Mr. Cassady — by Professors Peter C. Hoffer, Brian C. Kalt, and Seth Barrett Tillman. (The latter two responses are posted on SSRN in draft form.)

Via Seth Barrett Tillman, who comments:

Melton’s (maximalist) position is that the Constitution’s “office” language (i.e., at least that language relating to impeachment and disqualification) extends to Senators and to other elected officials. My (minimalist) position is very different. I have argued that the Constitution’s “Officer of the United States”-language and “office ... under the United States”-language reach only appointed officers, and do not encompass any elected officials (e.g., President, Vice President, members of Congress, and federal electors). That said, I have a deep and abiding respect for Melton’s paper and evidence, which is based on careful analysis and early American materials. This is an important paper by the leading authority on the Blount impeachment. Although a good many academics have assumed that the maximalist position is correct or have based their support on a cursory analysis of text, history, precedent, and structure, Melton’s article is the first fulsome reasoned defence of the maximalist position.

Additionally, Melton has argued that a wide array of a scholars (including historians and legal academics) have misstated the Senate’s holding in Blount. On this point, he and I are ad idem
 
As an aside, Buckner Melton Jr. is the author, among other works, of The Quotable Founding Fathers: A Treasury of 2,500 Wise and Witty Quotations from the Men and Women Who Created America (Potomac 2005).
 
As a further aside, an interesting footnote from the article:
 
The title of this article is chosen not only for bluntness in the face of a widespread scholarly misconception, but also to educate non-southerners in the typical southern pronunciation of the surname Blount. I further have had it on good authority from some of William Blount's descendants, including one William Blount Walker of Macon, Georgia, that the pronunciation indeed rhymes with blunt.
 
I didn't know that.

10/16/2014

Two Conversations with Erwin Chemerinsky on the Supreme Court
Michael Ramsey

Orin Kerr has this interesting question-and-answer exchange with Erwin Chemerinsky regarding Chemerinsky's new book on the Supreme Court.  As Professor Kerr relates,

After reading Chemerinsky’s summary at Politico and the LA Times, I wondered if he was just criticizing the Supreme Court for not agreeing with his policy preferences. So I decided to ask Chemerinsky if that was a fair summary of his book, and if not, why not. Chemerinsky graciously agreed to answer my questions for publication here at the Volokh Conspiracy.

A sample:

Chemerinsky’s answers raised the broader question of whether his view of the Constitution was just his view of public policy dressed up in constitutional garb. So I asked him: Outside of the book, are there instances in which your view of the Constitution’s commands and your personal policy preferences diverge? And if so, what are they? He replied:

There are certainly instances in which I have a policy preference, but cannot reconcile them with the Constitution. I favor term limits for justices, but I believe it would violate the Constitution and would necessitate a constitutional amendment. I am not saying that there never is a difference between how one reads the Constitution and what one prefers from a policy perspective. But I do reject the idea that there is an objective, correct way to read the Constitution, or that one’s reading of the Constitution is divorced from one’s views about desirable policy...

The term limits answer is an easy escape.  The question should be, are there any contested questions of constitutional law in which your policy preferences diverge from your constitutional conclusions? 

If not, you are not really doing constitutional law; you are doing policy.  (Or, as  Mike Rappaport calls it, you are acting as a lawyer with your policy preferences as the client).  I don't necessarily think that's a bad thing (it depends on your theory of the role of judges in a democratic society), but I wish people would be forthright about it.  (Chemerinsky comes pretty close sometimes, including in this interview).  Also I wish people who have that view would stop talking about constitutional interpretation, since they are obviously not interpreting anything but rather arguing policy.

Sahil Kapur has a somewhat less confrontational interview with Dean Chemerinsky here: How To Fix The Supreme Court: Lessons From A Disenchanted Legal Scholar.

Mila Sohoni: The Power to Privilege
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Power to Privilege (University of Pennsylvania Law Review, Vol. 163, 2015, Forthcoming) on SSRN. Here is the abstract: 

A new and startling development has recently occurred in the law of delegation: Congress has for the first time expressly delegated to an administrative agency the power to write rules of privilege. Privileges abound in federal law, but until now they have been defined either by statute or by judicial opinion. The type of law that Congress has now authorized agencies to create — the regulatory evidentiary privilege — is a true novelty in our system of law.

This article is the first to grapple with the implications of migrating the power to write rules of privilege from Congress and the courts, on the one hand, to the executive branch, on the other. It begins by describing an underappreciated aspect of the administrative state: that the law of privilege is becoming increasingly important to the functioning of administrative agencies. As a result, administrative agencies are actively pursuing control over the law of evidentiary privilege in order to further their substantive mandates.

Granting agencies that sought-after control through a privilege delegation will imperil key federal and state regulatory and governance interests. First, privilege delegations will reduce agency accountability. A delegated authority to write privileges that enables an agency to shield its own communications from disclosure will allow the agency to insulate itself from external review and oversight. Second, privilege delegations will erode state interests in allowing litigants and the public broad access to information. Agencies promulgating regulatory evidentiary privileges are likely to displace state laws that would permit disclosure to a greater extent than would be the case if Congress and the courts retained the privilege pen. Third, privilege delegations threaten to undercut state sovereignty. When Congress authorizes federal agencies to privilege the communications of state officials, it obstructs the capacity of the states to monitor state agents and thereby produces a type of harm akin to prohibited Congressional commandeering of state governance.

After establishing the risks attendant to privilege delegations, the article offers some principles that should govern the choice of institution responsible for drafting any new set of privileges that may be invoked by executive branch agencies. Finally, the article explains why this innovation in delegation provides a unique opportunity to test prevailing scholarly models of why and to whom Congress chooses to delegate. When it delegates the power to privilege to an agency, Congress is substituting a new delegate — a politically accountable executive agency — for an old delegate — the politically unaccountable federal courts. Accounts of delegation grounded in party competition have greater explanatory power for this swapping of delegates than alternative accounts.

10/15/2014

The Court’s Alleged Power to Ignore the Original Meaning
Mike Rappaport

In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism.  Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism.

But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument.  I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning is unclear, the Court may also claim the power to decide based on other considerations, such as government practice, but it does not assert the power to ignore unambiguous provisions.)

This point does not mean that nonoriginalism is illegal, because the Court can decide cases that conflict with the original meaning simply by staying silent about the matter.  Certainly, the Court has not followed the original meaning in many cases, without claiming the authority to ignore the original meaning.

But this limitation (that the Court can ignore the original meaning by remaining silent) does not make the basic point unimportant.  One significant effect of this point is that a large percentage of the academic theorizing about the U.S. Constitutional Law – which assumes that the courts can depart from the original meaning of the Constitution – is inconsistent with the rule of recognition.  That is, this theorizing is inconsistent with the law of the land at present.  This is an important conclusion and one that nonoriginalists have largely failed to address.

An interesting question involves the continuing existence of the Court’s practice of deciding cases in a manner inconsistent with the original meaning without addressing the issue.  As there are now at least two originalists on the Supreme Court, one can expect that these justices will attempt to prevent a Supreme Court majority from simply asserting a constitutional interpretation that ignores the original meaning.  The originalists will criticize the majority’s decision, and in many cases this will force the majority to respond.  How they will do so will have an important effect on the content of the law.  There are several possible responses:

  1. One possibility is that the majority will openly acknowledge that it is asserting the power to ignore the original meaning, even in cases where no precedent is involved. I predict this will not happen, because it would be politically damaging to the majority’s approach.
  1. Another possibility is that the majority will agree with the dissenters, changing its mind on interpretive matters. This does not mean the majority will always agree with the two originalists on results, but that it will use similar interpretive approaches.  This strikes me as very unlikely as well.
  1. A third possibility is that the majority will continue to remain silent as to the authority to violate the original meaning in certain cases by simply not responding to the dissenters. This may be difficult to do, but it is certainly a possibility.
  1. Another possibility is that the majority will claim to be following the original meaning, but will read the original meaning as containing an abstract provision that allows modern judges to provide significant content to the provision.  This strikes me as the most likely possibility.

Under this last possibility, all of the justices will sound like originalists, but will not change their interpretations.  This approach resembles the perspective of Jack Balkin.  In my view, this is something of an improvement for originalists, but it does not mean full victory – it merely means that the debate is shifted to a different ground – whether or not the original meaning of a provision is abstract.

(Cross posted at the Liberty Law Blog) 

More on Charles Beard and the Constitution
Michael Ramsey

The current issue of the UC Davis Law Review has two articles from the 2013 Annual Meeting of the American Society for Legal History's session “Law and Counterrevolution: Charles Beard and the Origins of American Constitutionalism”:

(1) Aaron Knapp (Boston University), The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787 (47 UC Davis L. Rev. 1859 (2014)). From the introduction: 

Did the Federalists wage a counterrevolution in 1787? Although its popularity in the legal academy has waned in recent decades, the idea that the movement for constitutional reform in 1787 had counterrevolutionary dimensions dates straight back to the Antifederalists, who often accused their counterparts of betraying the spirit of ’76’s republican promise. In the constitutional historiography, scholars trace the idea to Charles Beard’s An Economic Interpretation of the Constitution of the United States, wherein Beard depicted the nation’s constitutional founding as an economic counterrevolution waged by and on behalf of protocapitalist creditors and public securities holders. Beard’s critics over the years have challenged him either by purporting to show that the Federalists in fact sought to secure the Revolution’s gains, or by discrediting An Economic Interpretation’s evidentiary basis. The former approach too often confuses rhetoric for reality, while the latter sidesteps the question of whether some kind of alternative, non-economic revolt against the revolutionary heritage occurred in 1787. Those historians who take the position that a counterrevolution did take place in 1787 have either cleaved to Beard’s materialism and thereby committed the same reductionist sins; or, to the other extreme, so far enlarged the concept of a counterrevolution as to place within its historical ambit virtually every post-Revolutionary American who at one time or another preferred order to liberty, or who opposed equal rights for women or blacks.

(2) Gerald Leonard (Boston University School of Law), Fletcher v. Peck and Constitutional Development in the Early United States (47 UC Davis L. Rev. 1843 (2014)).  From the introduction: 

One hundred years after Charles Beard’s An Economic Interpretation of the Constitution of the United States, few scholars attend actively to that book or its specific claims. Yet it has become conventional wisdom that the movement for a new Constitution in 1787 was no democratic movement but a conservative effort to rein in the allegedly reckless policy impulses of the state governments. Power would be transferred substantially to the center, where an elite might better control the direction of policy. This conservative movement had important, Beardian economic dimensions, particularly its determination to secure the rights of the propertied against the supposed desires of the unpropertied to redistribute wealth. But closely allied to this economic conservatism was necessarily a legal conservatism, perhaps even a legal counterrevolution, as Aaron Knapp’s essay for this Symposium argues. The Contracts Clause of the new Constitution was only the most explicit protection in the document for traditional rights of property and contract as against the state governments’ demonstrated readiness to interfere with contract performance and debt collection. The triumph of the Framers of 1787, then, appears to some an abiding victory for a fundamentally conservative structure of American law and a major defeat for serious advocates of equality and democracy.

Also, at Liberty Law Blog, Herman Belz (Univ. of Maryland -- History) surveys two recent symposia on Beard's An Economic Interpretation of the Constitution of the United States -- one held at the University of Virginia School of Law (published in the Summer 2014 issue of Constitutional Commentary and one in the Fall 2013 issue of American Political Thought.

10/14/2014

Randy Barnett on the Origination Clause Litigation
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has an update on the origination clause challenge to the Affordable Care Act. (It is currently on petition for rehearing en banc after rejection by a panel of the D.C. Cirucit.  Professor Barnett explains how -- in his view, but it sounds right to me -- the panel erred).

Here is an earlier post on the litigation.

Gerard Magliocca on Arizona Redistricting
Michael Ramsey

Gerard Magliocca has two great posts on the Arizona State Legislature case at Concurring Opinions, here and here.  But, he ends up persuading me the opposite of what he intends (at least in the first post).  After laying out the competing arguments, he comes down on the side of the lower court, in favor of the constitutionality of the redistricting commission:

Why do I think that [this] interpretation is better?  Mainly on structural grounds. The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering.   In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act.  Thus, the only plausible remedy is through an initiative or referendum in states that permit them.

Yes, if one were drafting a new Constitution, or a constitutional amendment, this would be a good argument.    But calling it a "structural" argument should not disguise its character as purely an argument from policy.  So, as is often true, we can decide the case based on what we think is the best policy, or we can decide the case based on the language of the Constitution.

Notably, in his second post (which may show some retreat from his first), Professor Magliocca appears to assume that in other instances where the Constitution gives a power to state "Legislature[s]," the state could not amend its Constitution by popular initiative to give the power entirely to another entity.  I find this to be very powerful evidence that when the framers wrote "Legislature" they meant, well, the legislature.  (Professor Magliocca has a response, but it seems strained to me).

10/13/2014

Peter Markowitz: The Power of State Citizenship
Michael Ramsey

Peter L. Markowitz (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Undocumented No More: The Power of State Citizenship (Stanford Law Review, Vol. 67, 2015) on SSRN.  Here is the abstract:     

An estimated eleven million undocumented immigrants live in the United States. These individuals have become integral members of American families and vital components of the American economy. Yet repeated efforts to meaningfully reform the nation’s immigration laws — to more fully integrate these individuals into American society — have failed to garner sufficient political support in Congress. The prospects for significant congressional action on immigration remain bleak into the foreseeable future because our nation’s debate on immigration has been warped by powerful, but largely inaccurate, themes of criminality, lax border enforcement, and national security threats. These themes have been crafted and cemented in large part by aggressive restrictionist state immigration laws in places like Arizona and Alabama. Until recently, integrationists have failed to similarly capitalize on the power of states to shape both the nation’s policies and, perhaps more importantly, the nation’s discourse on immigration. Recently, however, immigrant advocates have begun looking to the power of inclusive state citizenship schemes to reorient our nation’s immigration conversation.

This article explores the outer boundaries of state power to promote the integration of immigrants and to reorient the nation’s conversation around more accurate and helpful themes of family, democracy, and economic vitality. Specifically, I explore the constitutional power of states to extend state citizenship to undocumented immigrants. The article argues that the federalist structure enshrined in the Constitution and prevailing interpretations of the Fourteenth Amendment leave untouched the historic power of the states to define the boundaries of their own political communities more generously than the federal government. In addition, the article argues that such state citizenship schemes could deliver substantial tangible support for the integration of undocumented immigrants though traditional levers of state power: granting state political rights, granting access to state programs and benefits, and granting state protections against discrimination and mistreatment. Perhaps most importantly, state citizenship could be a powerful expressive tool for states to reorient our national conversation on immigration in ways that may, in the long term, be the key to eventually unlocking substantial federal reform.

 

10/12/2014

Matthew Estrin on the Arizona Legislature Case
Michael Ramsey

Reader Matthew Estrin sends this comment on the Arizona State Legislature case (the question being, does Article I, Section 4 -- which says the "Times, Places and Manner" of elections for the U.S. House of Representative shall be "prescribed in each State by the Legislature thereof" -- allow districts to be drawn by a independent commission):

I know that the case as well as the discussion has all been about the meaning of "Legislature" but I was thinking the proper focus should be on the meaning of "State." In requiring that we have a republican form of government, the founders didn't just distinguish our government from a monarchy and aristocracy; they also distinguished us from the ancient Athenian direct democracy. To be sure, we have direct democracy avenues (e.g. referendums) but at our heart there is a separation between the government as an institution, the State, and the people, even if the people hold the power through elections.

This can further be seen in the Tenth Amendment. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." There is a distinction between the States and the people. They are not one in the same.

This, to me, shows a strong indication that in giving the power to the State that itself distinguished the government from the people. Legislature, therefore, was only really meant to distinguish between the branches of government.

I know there may be some textual arguments against this. Namely that by saying "...in each State" instead of "...by each State" that evidences the use of state in a geographical sense. But I'm not completely convinced that the founders were that particular in phrasing the Constitution, or that it wasn't one of style to avoid saying "...by each State, by the Legislature thereof" which is kind of clunky.

Some Thoughts About Same Sex Marriage
Andrew Hyman

I’d like to flag an interesting new manuscript by Professor Steven Calabresi, available at SSRN here.  Among other things, Calabresi argues that cases regarding the definition of “marriage” do not fall within the scope of “law or equity” (which is a term in Article III of the Constitution) and therefore those cases must be decided by state courts rather than federal ones.  Although I don’t know enough to say whether Calabresi is correct, his position certainly does have some disturbing implications, for example that a state court could hypothetically approve of excluding interracial couples from the word “marriage.”  That’s kind of a scary prospect, even though Calabresi carefully distinguishes the case of Loving v. Virginia because it involved not just a definition but a criminal penalty regarding interracial marriage.

An important but often overlooked aspect of this same sex marriage (“SSM”) controversy is that in some states it is basically a free speech issue.  For example, here’s what the  Supreme Court of California said in 2009:

The Attorney General’s contention ... rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .”

Even if states have no free speech rights, it is still kind of disturbing that the federal judiciary would basically muzzle the states, especially without any support from Congress.  And, if corporations have free speech rights, why not states?  Professor David Fagundes has pointed out that states do have some free speech rights, although the Equal Protection Clause was adopted later than the First Amendment and so would apparently override the First Amendment.  Banning governmental use of the innocuous term “civil union” seems like judicial overkill to me, whether or not states have First Amendment rights.

Of course, in many states, the marriage laws in question go beyond mere nomenclature.  That raises another interesting question: may states adopt policies that help to ensure children will preferably have a mother and father?  I am surprised that we have a U.S. Supreme Court (SCOTUS) that is on the verge of issuing a resounding “no,” in opposition to long tradition, in opposition to continued public debate, and in opposition to collection of further data and further experience.  But, for me, there is a deeper question: does SCOTUS really have constitutional authority to do this even without any support from Congress?

I have a forthcoming law review article that addresses this last question in general, with only a footnote about SSM.  What I have discovered is that the framers of the Equal Protection Clause definitely wanted the views of Congress to be a critical factor in the Court’s equal protection analysis.  Instead, courts have completely shut out Congress, and in so doing they have effectively stricken the last three words from the Clause, like this: “No state shall deny to any person within its jurisdiction equal protection.”  The missing last three word are “of the laws” and those “laws” most definitely were intended to include the laws of Congress (that’s why the clause does not say “of its laws”).  Even if we pretend that current equal protection doctrine is 100% correct − with its tiers of scrutiny and independent judicial judgment − my feeling is that the courts are really jumping the gun on this one.

Patrick Charles: History in Law, Mythmaking, and Constitutional Legitimacy
Michael Ramsey

Patrick J. Charles (U.S. Government - Air Force) has posted History in Law, Mythmaking, and Constitutional Legitimacy (Cleveland State Law Review, Vol. 62, 2014) on SSRN.  Here is the abstract:     

Defining what constitutes myth and history has been an ongoing debate among historians for over a century. The debate centers as to whether there can truly ever be such a thing as an objective historical account. Given that all historical inquiries grow out of the respective historian’s ideological mind, it is argued the writing of history is not so much about truth-seeking as it is about the ideological leanings of the respective historian. In other words, critics of objective history frequently claim that one historian’s truth is another’s falsity.

In any case there is an argument to be made that all history is myth and all myth is history. No matter how much of the evidentiary record is uncovered, no historian can ever fully reconstruct the past as it was. In their totality, those moments in history are lost forever. The best any historian can do is build upon those evidentiary remnants which remain. Still, at one level or another, historians will have to make a number of assumptions about the past. In some instances the assumptions will be small or minute because the evidentiary record is rich with information about the past, allowing the respective historian to recreate an event or time period in excruciating detail. In other instances the assumptions can be substantial, especially when the evidentiary record is barren, requiring the respective historian to fill the evidentiary gaps. But whenever historians make any assumptions about the past — whether they be minor or substantial — they are perpetuating myth in some form or another.

Given these problems, this article builds upon a previous work — "Historicism, Originalism and the Constitution" — and argues that history is much better suited as a philosophical and moral guide towards understanding the law’s development. This in turn minimizes mythmaking and the creation of poor constitutional constructs. This does not mean, however, that to legally reason from subjective historical accounts or myth can never be a legitimate enterprise. As this article outlines, there is at least two scenarios (and perhaps others) where the acceptance of myth is constitutionally legitimate.

Note: The article is part of last spring's mini-symposium "History and the Meaning of the Constitution."  I'm told that if anyone is  interested in responding, they may be able do so through the Cleveland State Law Review's new online companion Et Cetera, see http://www.clevstlrev.org/.

Further note:  Here is a link to Patrick Charles' book Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence (McFarland 2014) on Amazon.

10/11/2014

Justice Stevens Reviews Judge Katzmann (and Slams Justice Scalia); Josh Blackman Comments
Michael Ramsey

In the New York Review of Books, Justice John Paul Stevens: Law without History? (reviewing [favorably] Judge Robert Katzmann's Judging Statutes (Oxford 2014).  But actually the review is an extended attack on Justice Scalia's view of statutory interpretation, particularly his rejection of legislative history.

Josh Blackman comments here: Stevens: Scalia is a Textualist Because He is Trying To Promote The Non-Delegation Doctrine, Notwithstanding Whitman v. American Trucking.

Two thoughts:

(1) Again, when it comes to statutory interpretation, everyone's an originalist (or at least everyone claims to be).  The argument between Stevens/Katzmann and Scalia would -- if they were talking about the Constitution -- be an intramural fight among originalists: how much to weight framers' intent, reflected in non-textual sources, versus the original meaning of the text?  As Stevens puts his position, paraphrasing Katzmann, "it is appropriate [to use legislative history] to seek to understand the intent of Congress [that is, the enacting Congress] when confronted with vague or ambiguous statutory provisions."  Well, sure, then is it not appropriate to use drafting and ratifying history to seek to understand the intent of the framers when confronted with vague or ambiguous statutory provisions?

(2) As to Scalia's view, and contra Stevens, I have a hard time seeing it as founded on a broader theory of law such as non-delegation (other than perhaps rhetorically).  Obviously Scalia uses drafting and ratifying history -- the constitutional counterpart of legislative history -- to understand the meaning of the Constitution.  Rather, I think his concerns are methodological and practical. 

On method, Scalia's view (which I share) is that undue focus on the enactors' "purpose" shifts the inquiry from what the text means to what would be a reasonable rule (because surely the enactors were reasonable).  And that in turn shifts the inquiry -- in practice, although without admitting it -- to what the judge thinks is best (because surely the judge is reasonable, and thus what he believes is probably what the enactors believed).  Focus on the text, to the contrary, keeps the inquiry centered on what was actually enacted and not what seems reasonable to any particular person.

But this isn't an argument against using legislative history (for statutes or the Constitution); it's just an argument for using it carefully, to aid in finding the meaning of the enacted text and not as a substitute for the enacted text.  In this sense, Scalia's absolute rejection of legislative history for statutes (but not for the Constitution) is an overreaction -- perhaps well justified -- to prior modes of statutory interpretation that had lost touch with the text almost entirely.

The second objection is practical -- in Scalia's view, modern legislative history is simply not helpful in finding the meaning of a statute because it is so extremely unreliable and subject to manipulation.  This is a core point underlying Scalia's different treatment of statutory and constitutional legislative history.  When the Constitution and key amendments were adopted, the legislative history was relatively simple and straightforward.  It can be taken more-or-less at face value, adjusting for the known biases of the easily identifiable people who contributed to it.  In contrast, modern legislative history is generated in such an opaque process, and runs to such great length, that no one can really know where ti came from or what is in it until it comes time to pick through it for a helpful excerpt.

Whether these considerations call for a complete rejection of modern legislative history, or only for extremely cautious use, can be debated among textualists.  I am doubtful, though, that any philosophical commitment of textualism (including Scalia's textualism) requires the total rejection of legislative history.

RELATED:  Norm Ornstein comments on textualism and Judge Katzmann's book in The Atlantic: How Activist Judges Undermine the Constitution.  Again note that he is a statutory originalist, seeking the understanding of the framers (enactors), although he would look to their purpose and intent rather than just their enacted words.

10/10/2014

Ajay Mehrotra: Revisiting the Intellectual Roots of the Beardian Thesis
Michael Ramsey

Ajay Mehrotra (Indiana University Maurer School of Law) has posted Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis (29 Constitutional Commentary 475 (2014)) on SSRN. Here is the abstract: 

A century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

This article was part of a special symposium on the 100th Anniversary of Charles Beard’s An Economic Interpretation of the Constitution, hosted by the University of Virginia’s Miller Center and law school.

10/09/2014

David Upham Reviews Kurt Lash on Privileges or Immunities
Michael Ramsey

At Law and Liberty, David Upham (Univ. of Dallas - Politics) reviews (somewhat favorably) Kurt Lash's The Fourteenth Amendments and the Privileges and Immunities of American Citizenship (Cambridge Univ. Press 2014).  From the introduction:

The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was.

...

In the construction of a scholarly consensus, Professor Kurt Lash’s new book represents an important step forward. He presents what is perhaps the most extensive study into the “original meaning” of the Clause. Relying on Professor Lawrence Solum’s terminology, Lash identifies this “meaning” as “the likely original understanding of the [Clause’s] text at the time of its adoption by competent speakers of the English language who were aware of the context in which the text was communicated for ratification.”

In seeking this original meaning, Lash explores an extensive array of evidence—some of which has been largely overlooked by scholars. Of particular note, he highlights the way in which the New Orleans Race Riot of August 1866 shaped the ratification debates. This mob violence, directed at citizens exercising their freedoms of speech and assembly, led Republicans to emphasize how the Amendment would provide needed protection for these liberties. Lash also calls scholarly attention to the analogous provisions of various territorial treaties (e.g., the Louisiana Treaty) wherein the United States had pledged to admit the inhabitants to the rights and immunities of “citizens of the United States.”

Professor Lash's view, which I find attractive, is the "total incorporationist" view -- that is, that (as Professor Upham puts it) "privileges of citizens of the United States (a term first prominently used in antebellum territorial treaties), represented federally-conferred privileges—including 'all constitutionally enumerated personal rights,' such as those found in the first eight amendments to the federal Constitution."

Upham is (to say the least) not convinced: 

Nonetheless, despite the obvious importance of this work, and the extensive evidence [Lash] presents, I believe that his principal conclusions are disproven by a preponderance of the very evidence on which he relies.

The balance of the review defends this claim at length, and with enough force that I remain undecided, despite my attraction to Lash's thesis.

UPDATE:  Kurt Lash replies (forcefully) here: The Fourteenth Amendment, Original Meaning Originalism and How to Approach the Historical Record: A Response to David Upham. Also, in the comments, an interesting exchange among Professors Upham and Lash and Andrew Hyman.

10/08/2014

Originalism and the Good Constitution at the Cato Institute
Mike Rappaport

Last week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution.  The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center.  You can watch the video here.

Roger took issue with our book from a natural rights perspective.  He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy.  But I believe that Roger is mistaken.  The book’s approach is that we should read the original meaning of the Constitution in a straightforward way, without bringing in some external preference for democracy, as Robert Bork seemed to.  While Roger no doubt differs with us on the Constitution’s meaning, the book is not primarily about the specific content of constitutional clauses, but is instead focused on issues related to the normative defense of the Constitution, how one should determine its meaning, the role of precedent, and the importance of the constitutional amendment process.

Brianne adopted the approach of the Constitutional Accountability Center, which argues for an originalist methodology, but views many constitutional provisions as having abstract meanings that require modern judges to give them content.  But John and I are skeptical of this approach.  In our article, The Abstract Meaning Fallacy, we criticize a fallacy, that we associate with Ronald Dworkin and Jack Balkin, that concludes that constitutional provisions have abstract meanings without sufficiently considering the other possible meanings.  In particular, we believe that many constitutional provisions sound at first like they might have abstract meanings, but upon examination of the history turn out to have more concrete meanings.

Despite our differences with the commentators, we very much enjoyed the discussion and felt that it brought out many of the most important issues.

(Cross posted at the Liberty Law Blog)

Josh Blackman on Balkin on Noel Canning and Originalism
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: Balkin on Noel Canning and Originalism (criticizing this post by Jack Balkin, noted here).  From the core of the argument:

The thread that holds together Jack’s entire post is that the original meaning of the Constitution does not place such checks on “presidential power in domestic policymaking.” If you accept that position (which I don’t), then Balkin’s opinion follows nicely. In this case, Scalia is rejecting all of this tradition, which is inconsistent with original practice.

But, if you contend that the original Constitution does not permit the intra-session recess appointments, then Jack’s theory doesn’t hold. I don’t agree that our original Constitution enables the President to have strong domestic policymaking power, where the Congress is at odds. As I discuss in my paper Gridlock and Executive Power, Scalia gets the better argument about how “gridlock” is a feature designed into our Constitution. The ability of a recalcitrant Congress to check a President whose appointments they don’t agree with is baked into the Constitution.

10/07/2014

The Supreme Court's OT 2014-15: Not Much Originalism (Plus a Correction)
Michael Ramsey

As the Supreme Court opens its 2014-15 term, my projection is: this is not going to be a big year for originalism.  Unlike last year, which featured major cases like Noel Canning and Bond, I think there is significantly less on the docket of originalist interest.

Two cases have some potential: Zivotofsky v. Kerry, the Jerusalem passport case, and Arizona State Legislature, the meaning-of-legislature case.  (Both have been discussed previously on this blog.)  Here are the questions presented:

Zivotofsky v. Kerry:

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

With little precedent on point, this one is likely to get into questions of the original meaning of executive power and early historical practices.  I will have more to say in due course.

Arizona State Legislature v. Arizona Independent Redistricting Commission:

(1) Whether the Elections Clause of the United States Constitution [Art. I, Sec. 4]  and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

Again, there's not much precedent directly on point, so the debate is likely to involve questions about what the framers meant by "Legislatures" of the States.

On a quick review, I don't see other cases likely to produce significant originalist discussion.

RELATED CORRECTION:  Garrett Epps writes that my prior post on the Arizona Legislature case misread his post; he did not intend to indicate support for the lower court (which read "Legislature" to include an independent commission not controlled by the legislature).  To the contrary, he says, he thinks it's a close case.  Apologies. 

10/06/2014

Brad Masters: Reconciling Originalism with the Father of Conservatism
Michael Ramsey

Brad Masters (Brigham Young University - J. Reuben Clark Law School) has posted Reconciling Originalism with the Father of Conservatism: How Edmund Burke Answers the Disruption Dilemma in N.L.R.B. v. Canning (Brigham Young University Law Review, Vol. 2013, No. 4) on SSRN. Here is the abstract: 

Recent scholarship argues that conservative and originalist jurisprudences contradict each other. In some cases, original, founding principles are invoked to overturn long-standing traditions. When that occurs, conservative values, such as respect for precedent, are challenged. The problem, as that scholarship points out, is that the same judges that espouse this disruptive originalism also claim to be conservative. As the polemic goes, good Burkean conservatives should reject originalism in favor of a precedent-based approach. This Comment challenges that scholarship by engaging in a more thorough analysis of Edmund Burke's philosophy. After a deep examination of Burke's thoughts on precedent and his doctrine of prescription, I argue that arguments pitting Burke against originalism go too far. Instead, Burke's attitude toward “canonized forefathers” leaves room for an approach that simultaneously respects precedent while drawing upon founding wisdom. I offer an articulation of this approach, which I call Burkean Originalism, in this Comment. Essentially, Burke would resolve these difficulties by investigating both founding wisdom and the established tradition. With a presumption in favor of precedent, Burke would only invalidate longstanding tradition when doing so is consistent with founding principles, reliably determined, and if the consequences are not substantial.

10/05/2014

Robert Turner (and Jon Stewart) on War Powers
Michael Ramsey

At Constitution Daily, Robert Turner (Virginia): The So-Called “Islamic State” and the Constitution: What Can the President Do? Part One and Part Two.

On executive power, he writes:

... [I]n interpreting an 18th century document, it is important to understand that words sometimes change their meaning over time. Thus, modern readers might be surprised to learn that a signer of the Constitution described it in a letter to a friend as “awful”—unaware that the word originally meant “to fill one with awe” (or, in the modern vernacular, awesome). Thomas Jefferson once used the words “terrific character” to mean “cruel” and “vindictive,” which was true to the Latin root terrificus (“to frighten”). Today, awful and terrific have very different meanings, and we can be led astray if we fail to appreciate such changes when we seek to understand historic document.

...

A classic example of this is the term “executive power.” Today, most Americans assume that when in Article II, Section 1, of the Constitution the Framers vested “The executive Power” in the president, it conveyed the power to “execute” or carry out the laws that would be enacted by Congress. But, to men raised on the writings of John Locke, Montesquieu, and Blackstone, the term “executive power” also included the general management of the nation’s external intercourse—what Locke described as authority over “war, peace, leagues, and alliances.” As Professor Quincy Wright noted in his classic 1922 treatise, The Control of American Foreign Relations: “[W]hen the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant . . . .”

Thus, when in April 1790 President George Washington asked Secretary of State Thomas Jefferson where the Constitution had vested the details of foreign policy not specifically addressed in the instrument, Jefferson noted that the Constitution had “declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate . . . .” From this, he reasoned: “The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

Of course, I agree (see here [111 Yale L.J. 231], which sets out a good bit of the historical evidence Professor Turner is relying on).  Professor Turner and I disagree a little on how this plays out in the war powers area (see his earlier post here), although as to the Islamic State we agree that it doesn't all need to be resolved, as there's a fair argument Congress has approved.

RELATED: At CNN, Paige Hymson: How Thomas Jefferson would have handled ISIS -- relying on Professor Turner to suggest that, as with the so-called Barbary pirates in 1801, congressional approval may not be needed because ISIS has declared war on the US: "'Jefferson's belief was that when war is declared against the United States we don't need Congress' approval to fight back,' said Turner."  I agree with that too.

ALSO RELATED:  Via Kristen Boon at Opinio Juris, here's Jon Stewart's take, on the Daily Show.

10/04/2014

Supreme Court Will Hear Argument in the Arizona Legislature Case
Michael Ramsey

On Thursday the Supreme Court indicated that it will hear arguments in the Arizona State Legislature case that Seth Barrrett Tillman and I discussed here earlier.  From Lyle Denniston at SCOTUSblog:  Fate of Non-Partisan Redistricting on the Line (and this related commentary at Constitution Daily).  (Note this is an appeal not a certiorari, but the Court could have decided it without full briefing and argument, as the appellees suggested).

In addition to the merits, the Court will consider the question of legislative standing.

I've generally been pretty dismissive of legislative standing without thinking about it too much.  But this case seems like as good a claim for legislative standing as could be found: the plaintiff is the legislature as a whole, not just some individual members; the case concerns the (alleged) loss of a legislative privilege (the ability to draw House districts) that's of specific interest to the legislature; the case turns on the interpretation of a constitutional provision, not on the assessment of difficult facts or application of a political judgment; and a court can easily redress the injury (if it finds an injury) by invalidating the redistricting commission.

Scott McLamee Reviews Zephyr Teachout's "Corruption in America"
Michael Ramsey

In Inside Higher Ed, Scott McLemee: Snuffing Corruption, part 1 and part 2 (reviewing Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (Harvard University Press 2014)).

Thanks to Seth Barrett Tillman, who is quoted in the reivew, for the pointer.

10/03/2014

Jack Balkin on Scalia and Noel Canning
Michael Ramsey

At Balkinization, Jack Balkin: Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization.

This is a outstanding long post and no excerpt could begin to capture it, but here is the introduction:

When Noel Canning v. NLRB was decided last June, several commentators noted that the 5-4 vote marked a victory for living constitutionalism (represented by Justice Breyer's opinion) and a defeat for originalism (represented by Justice Scalia's concurrence, which read like a dissent).

In fact, Breyer's opinion isn't particularly living constitutionalist. It is traditionalist. It is strongly rooted in past practice. It argues that we should not disturb conventions that are of long-standing. If living constitutionalism is the idea that the Constitution should be interpreted to keep abreast of changing times and conditions, Breyer’s Noel Canning opinion doesn't seem all that interested in *that* project. The opinion argues, instead, that there is a long history of interpreting the recess appointments clause in a particular way, and we should retain it unless there are strong considerations otherwise.  If you applied the logic of this opinion to same-sex marriage, you would quickly discover that Breyer sounds much more like a conservative traditionalist than a living constitutionalist.  Indeed, I can easily imagine parts of Breyer's opinion being quoted by conservatives to criticize liberals in later cases.  (You read it here first.)
 
Conversely, Scalia's opinion, although framed in the language of originalism and textualism, is the truly revolutionary opinion. Here (in marked contrast to many of his other writings) Scalia is skeptical of arguments from tradition. He argues that deferring to an imagined tradition tends to favor stronger parties (Presidents, who can act decisively) over weaker ones (Congress, which faces collective action problems). He asserts that there is no unbroken history of established practice. And even if there is such a history, (1) it may not be worthy of our respect because it reflects past usurpations of power; and (2) we should disregard it in favor of the text. Scalia’s argument in Noel Canning is radical, not in the sense of being left-wing, but radical in the sense of seeking to return to the root of things and argue them once again based on first principles.  But of course, that’s what originalism is—radical, not conservative.
 
And from the conclusion:
 
Whether one agrees with Scalia or not, his opinion is far more attuned to the new realities of party polarization than Breyer's majority opinion, and therefore it has a far greater claim to be an attempt to keep the interpretation of the Constitution in line with changing circumstances. Because of political polarization and conflict extension, presidents will increasingly be tempted to use recess appointments as a means of circumventing the other party, whether the opposition party controls either the Senate or (as in this case,) the House.  In order to prevent these end-runs from occurring, the Court must adopt an interpretation of the Recess Appointments Clause that prevents most recess appointments.  Although it is couched in the language of originalism and textualism-- and therefore would seem to be a timeless claim about the correct interpretation of the Constitution at any point in history--it is an adaptation to changed circumstances.  But that should hardly be surprising. Self-styled originalist arguments by legal officials and movement advocates-- no matter how much they may present themselves as timeless truths--are often responses to perceived defects in current conditions.  That is because—although originalist academic theory may be separated from politics—originalism in practice is very often tied to reform projects in politics.

10/02/2014

John McGinnis on Republican Constitutionalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Constitutional Interpretation in Republican and Mixed Regimes.  From the introduction:

In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods.  This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty.  In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history.   The distinctive interpretative method of republican constitutionalism is originalism:  the meaning chosen by the people when the constitution is passed binds the people at later times.

In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element. Support for a mixed regime can be traced to Aristotle, and, in modern constitutionalism, the aristocratic element is supplied by the judiciary, whose current judgments constrain the people.

10/01/2014

Originalism and Ideology
Mike Rappaport

I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting:

By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.]  While a review of those cases confirms the conventional view that the Court's liberal bloc voted for criminal defendants more frequently than the Court's conservatives in non-unanimous cases, the more interesting pattern is the variation among the Court's conservatives in non-capital criminal cases in which the five conservatives disagreed among themselves. In the fifty-five non-capital criminal cases in which the Court's conservatives did not vote as a bloc, Justices O'Connor, Scalia, and Kennedy each voted for the defendant twenty-four times, Justice Thomas voted for the defendant in eighteen cases, and Chief Justice Rehnquist in fourteen cases. In several of the most important constitutional decisions of that period, including but not limited to the jury cases, the conservative originalists voted for defendants while the pragmatist conservatives ruled for the government. The jury cases are therefore part of a larger pattern that reveals the relationship between originalism, politics, and criminal law to be far more complicated than is commonly believed.

The question whether the justices vote based on their ideology or on the law is an interesting one.  I tend to have mixed views on this matter.  On the one hand, I believe that justices do, as a general matter, vote based on ideology in cases where they care about the outcomes.  That, of course, does not mean the opinions read that way, but in my view the underlying cause of their votes is ideology.

That said, I believe that the justices will vote based on a view of the law if they are strongly committed to that legal view.  Thus, Justices Scalia and Thomas are committed originalists and therefore will often vote based on their view of the original meaning, even if it leads them to vote in favor of specific results which they would not otherwise support.  In the block of cases reviewed in this article, Justices Scalia and Thomas supported the original meaning of (1) the right to a jury trial in a criminal case and (2) the right to confront witnesses, and this original meaning often provided more protection to criminal defendants than court precedent did.  As a result, these justices ended up voting for criminal defendants more often than their ideologies would otherwise have suggested.

Christopher Walker: An Empirical Study on Agency Statutory Interpretation
Michael Ramsey

Christopher Walker (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Faithful Agency in the Fourth Branch: An Empirical Study on Agency Statutory Interpretation (Stanford Law Review, Vol. 67, Forthcoming) on SSRN. Here is the abstract: 

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. Such broad delegation creates a principal-agent problem in the modern administrative state. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected regulatory state is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent theory to the regulatory state, we know very little about whether federal agencies are faithful agents.

This Article is the first comprehensive investigation into this black box of agency statutory interpretation. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their responses shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered both challenge some theories on agency statutory interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use interpretive rules, legislative history, and judicial deference doctrines in agency statutory interpretation, the principal-agent relationship between Congress and federal agencies should improve as should the judicial branch’s ability to monitor and faithfully constrain lawmaking in the Fourth Branch.

09/30/2014

Two Essays from Judge Jeffrey Sutton
Michael Ramsey

Judge Jeffrey Sutton (Ohio State University (OSU) - Michael E. Moritz College of Law; U.S. Court of Appeals for the Sixth Circuit) has posted Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) on SSRN. Here is the abstract: 

Review of Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013).

In claiming that Americans are looking for rights in all the wrong places, Professor Emily Zackin targets two flawed mindsets: (1) that the exclusive source of new individual rights is the federal Constitution, as opposed to the state constitutions; and (2) that constitutional rights in general are exclusively negative, just libertarian prohibitions on governmental action, not affirmative calls for the government to act.

The first point returns to a once dominant, then forgotten, now reemerging, insight — that constitutional rights do not originate solely in the U.S. Constitution or come only from decisions of the U.S. Supreme Court. There are fifty-one constitutions and fifty-one high courts, and all of them protect a wide variety of individual rights. The second point, the central thesis of Zackin’s book and the useful insight offered in it, acknowledges that the American constitutional law tradition focuses on negative protections — structural and individual-rights limitations on government — but claims that this perspective does not describe that tradition in full. To get the full picture, she urges, one must account for a strain of positive constitutional rights dating from the nineteenth century and found in most state constitutions, rights that operate by compelling governments to act, not by prohibiting them from acting. To support the point, Zackin offers three examples of positive-rights traditions in the states’ constitutions: the right to a free and adequate public education, the rights to safe working conditions and fair pay, and the right to a clean environment. The book purports to tell what is, not what should be. But some will take Zackin’s description to suggest, if not to call for, a norm-changing view: that the American constitutional tradition ought to account for such positive rights and appreciate the possibility of more.

Also from Judge Sutton: Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) on SSRN. Here is the abstract: 

Friedrich A. von Hayek was primarily an economist and political philosopher, but I plan to discuss another side of him: Hayek the constitutional theorist. Hayek had a lot to say about constitutions in general, and the American Constitution in particular.

Note: A version of this essay was presented at the Ninth Annual Friedrich A. von Hayek Lecture at New York University School of Law on October 17, 2013.

09/29/2014

Jessie Allen: Law and Artifice in Blackstone's Commentaries
Michael Ramsey

Jessie Allen (University of Pittsburgh - School of Law) has posted Law and Artifice in Blackstone's Commentaries (4 Journal of Law: A Periodical Laboratory of Legal Scholarship No. 3 Chapter One, Summer 2014) on SSRN. Here is the abstract: 

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

09/28/2014

Genevieve Lakier: The Invention of Low-Value Speech
Michael Ramsey

Genevieve Lakier (University of Chicago Law School) has posted The Invention of Low-Value Speech on SSRN.  Here is the abstract:

It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech —was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently.

By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.

By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts understand what it means to guarantee freedom of speech, and to what kinds of expression the guarantee applies.

Via Andrew Koppleman at Balkinization, who adds:

[Justice] Murphy [in Chaplinsky v. New Hampshire] was merely making an offhand claim to shore up the value judgment that underlay his holding.  The modern Court, in yet another exercise in phony originalism, elevates that claim to official doctrine, and purports to be relying on an ancient understanding when in fact it is doing nothing of the kind.  The value judgments in the present doctrine may or may not be defensible, but they need to be defended as such, not cloaked behind bad history.

09/27/2014

Michael Salamone: The Influence of the Federalist Society on the Supreme Court
Michael Ramsey

Michael Salamone (Washington State University) has posted Community and Persuasion: The Influence of the Federalist Society on the Supreme Court (APSA 2014 Annual Meeting Paper) on SSRN. Here is the abstract: 

Since its organization in the early 1980s, the Federalist Society has sought to influence the federal courts by promoting conservative and libertarian legal scholarship. Qualitative accounts provide evidence that the Federalist Society has succeeded in this goal by acting as a political epistemic network. Here, I investigate the organization’s influence on a large-N scale. I argue that, if the Federalist Society does indeed proliferate legal arguments throughout its network, we should expect to see shared language among its members. Using plagiarism detection software, I compare the opinions of Justices Scalia, Thomas, and Alito and Chief Justice Roberts – the Supreme Court’s four Federalist Society members – to the opinions of those trying to influence them (in this preliminary analysis, judges on the U.S. Courts of Appeals) in order find the degree to which they share common phrases. While I find no independent effect of Federalist Society participation on shared language, I do find that these four justices borrow language from judges nominated by Reagan and W. Bush (both sympathetic to the Federalist Society vision) at a higher rate than they do from judges nominated by other presidents.