David Martin: Why Immigration's Plenary Power Doctrine Endures
Michael Ramsey

David A. Martin (University of Virginia School of Law) hs posted Why Immigration's Plenary Power Doctrine Endures (Oklahoma Law Review, forthcoming) on SSRN.  Here is the abstract:

This article originated as part of a symposium at the University of Oklahoma College of Law held on the occasion of the 125th anniversary of the Supreme Court’s decision in Chae Chan Ping v. United States, often called The Chinese Exclusion Case. Immigration law’s plenary power doctrine, traditionally traced to that decision, has persisted despite a steady and vigorous stream of scholarly criticism; its vitality is reflected in the Court’s 2015 decision in Kerry v. Din. This essay undertakes to explain why. 

Contrary to some accounts, the Court’s strong deference to the political branches does not derive from the concept of sovereignty. Justice Field’s opinion for the Chae Chan Ping Court invoked sovereignty not to trump rights claims but to solve a federalism problem – structural reasoning that locates the immigration control power squarely in the federal government rather than the states, even though that power is not explicitly enumerated in the Constitution. In any event, that a power is labeled sovereign does not necessarily entail that it lies beyond judicial review or deserves extraordinary deference. 

The Chae Chan Ping Court’s deference to the political branches instead rested primarily on the close linkage between foreign affairs and immigration control decisions. This essay illustrates why such linkage is more significant than is often appreciated, even today, as the federal government seeks to work in a complex and uncertain global context, where many powers and enforcement tools taken for granted in the domestic arena simply are not reliably available. The Court implicitly remains willing to give the political branches leeway to use immigration authorities in rough-hewn ways, even though deference does mean that some governmental acts deriving from illicit motives rather than genuine foreign affairs considerations may go unremedied in court. The Court adheres to a strong deference doctrine out of concern that lower courts, if given wider authority to review, will overvalue individual interests and undervalue governmental interests. In an increasingly dangerous world, the Supreme Court is unlikely to overrule the plenary power doctrine. Academics and activists should respond by focusing more attention on policy analysis and advocacy addressed to the political branches, forums where constitutional values can be pursued and successfully – if unevenly – vindicated, as Justice Field recognized.

Another reason the plenary power doctrine endures, in my view, is that originalists have not developed a serious alternative account of the Constitution's allocation of immigration power.  This is a great project awaiting someone to take it on.


Bingham's Lack of Precision on Due-Process Cases
Chris Green

Last month I noted how impressed I was by Jacob Howard's (procedural) recapitulation of earlier due-process cases in 1862. I particularly noted the clarity of Howard's explanations relative to those of John Bingham, who attempted in February 1866 to use the Fifth Amendment to support his implausible claim that his proposed amendment would simply enforce the existing Constitution. Asked what he meant by "due process of law," Bingham replied, "I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions." Unlike Howard, who carefully explained cases like the Supreme Court's decision in Murray's Lessee (1856) and Justice Curtis's trial-court opinion in Greene v. Briggs (C.C.D.R.I. 1852), Bingham refused to give further details.

Today I ran across further evidence of Bingham's relative lack of crispness in recalling due-process cases--his misremembering of Murray's Lessee as "McMillan's Lessees" in July 1866, during a dispute with Thaddeus Stevens, who wanted to preserve the right to jury trial in tax-fraud cases. Bingham's taunting of Stevens using the wrong case name--"I ask when and where the case of McMillan's Lessees was ever challenged, much less reversed, in any court in America"--makes Bingham seem especially foolish. The episode is evidence that Justice Curtis's interpretation of due process was still generally known and followed among congressmen in 1866, but it also suggests that we should probably not rely on John Bingham for precise details about the law. 

Richard Primus on Justice Scalia and English History
Michael Ramsey

Richard Primus has a followup post at Balkinization that's no better than the previous one critiqued here by Mike Rappaport (I agree with that critique in full).

In The Perils of Originalism: Notes from Zivotofsky II, Professor Primus explains that "it is important to point out, on a regular basis, how flagrantly awful even the most respected and prominent originalists can be at rendering their historical evidence."  His example is Justice Scalia's opening paragraph in dissent in Zivotofsky v. Kerry, which states: 

Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs. The royal prerogative included the “sole power of sending ambassadors to foreign states, and receiving them at home,” the sole authority to “make treaties, leagues, and alliances with foreign states and princes,” “the sole prerogative of making war and peace,” and the “sole power of raising and regulating fleets and armies.” 1 W. Blackstone, Commentaries *253, *257, *262. The People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.

Why is this paragraph so "flagrantly awful"?  Primus continues:

... [T]he picture of eighteenth-century British government that Justice Scalia offered to frame the point is fully make-believe.  By the time of the Hanoverian Kings, Parliament was thoroughly involved in foreign policy. Indeed, the Parliamentary settlement that installed the Hanovers in the first place came with statutory limits on what these new Monarchs would be allowed to do in the domain of foreign affairs.  Through the eighteenth century, Parliamentary Ministries approved and disapproved alliances, granted and refused foreign subsidies, and as a practical matter authorized war and peace, to say nothing of building the overseas Empire.  George II had little interest in that last little endeavor, being much more focused on Europe, but the Crown’s disinterest didn’t matter much, because the Ministers in Parliament were driving.  George III, who was more interested in the Empire than his grandfather had been, would have been shocked to learn that he had a free hand in foreign affairs, given his constant experience of having to deal with Parliament.  To say nothing of the consternation that news of the King’s exclusive foreign-affairs power would have caused throughout the capitals of Europe, as governments wondered why they were spending so much money retaining London agents for the purpose of lobbying Parliament to make favorable foreign-affairs policy. 

Primus is right about all this, of course, as I'm sure Justice Scalia (and anyone who's taken even a casual look at eighteenth-century English history, or just seen The Madness of King George) knows.  But Scalia in Zivotofsky isn't claiming to describe "eighteenth-century British government" as it existed in practice.  He's describing (as he says) "the law of England" in its formal sense, as set forth in Blackstone, the most widely read legal authority in founding-era America.  Scalia's point is not that the American framers rejected the actual practice in England (however they may have understood it); it's that in framing the formal allocation of powers in the U.S. Constitution they rejected the formal concentration of foreign affairs powers that Blackstone described.

And of course Scalia is absolutely correct about this.  Indeed, Primus concedes later in his post:

Technically, in the eighteenth century and also today, foreign-affairs powers in the United Kingdom’s system were and are classified as matters of “royal prerogative.”  Blackstone used that term at one of the pages that Scalia’s opinion cites.

Well, yes.  That's exactly what Scalia says.  But, Primus complains, "everyone from Blackstone to John Adams to Louis XIV knew that in the British system Parliament had a lot of actual power over foreign affairs."  Of course it did.  But Scalia isn't talking about actual power.  Nothing in Scalia's paragraph denies that parliament had "a lot of actual power over foreign affairs."  It simply isn't relevant to his point, which is that the American framers rejected Blackstone's description (and the formal law), not that the American framers rejected the actual practice.

So what exactly is Primus' problem with Scalia's paragraph?  He doesn't deny that most foreign affairs powers were "technically" (meaning formally) classified as matters of royal prerogative.  He doesn't deny that Blackstone described them in this way.  He doesn't deny that the American framers rejected the concentration of foreign affairs powers that Blackstone described.  Ultimately he agrees with everything Scalia says.  At most, his complaint must be that Scalia should have had an additional sentence saying something to the effect of "Even in England parliament had much more power over foreign affairs in actual practice than indicated by the formal allocation of authority Blackstone described."  Perhaps that would have made the paragraph more complete (especially if it were designed for a law review article rather than a dissent).  But I have a hard time seeing how anyone could call its omission "flagrantly awful," or indeed even thinking that it mattered much.

Note too that the actual British practice doesn't undermine Scalia's central point that in the U.S. Constitution's original meaning foreign affairs power is divided.  So in a post lamenting originalism's inability to understand the Constitution, Professor Primus points to a paragraph in which the originalist author correctly describes the Constitution.

To be clear, I think Justice Scalia's opinion in Zivotofsky is ultimately unpersuasive.  And I think the opening paragraph that Primus quotes overstates in one important respect: the British monarch did not have complete control over foreign affairs, even under the formal system as Blackstone described it, because parliament had control over expenditures.  But again I'm struck by how some very smart people let their distaste for originalism lead them to play wholly implausible games of "gotcha."  (See also here).


Primus on the Inaccuracy of Madison’s Notes
Mike Rappaport

In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate.  In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary.

Primus acknowledges that original public meaning originalists should not be much affected by the inaccuracy, because Madison’s Notes are not very relevant to their theory, which focuses on word meanings.  But he still believes originalists are likely to be upset:

Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask in the glory of the Founders, (3) the (Levinsonian) Protestant-democratic promise that we can go to the real, popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars, and (4) the sense, when one is immersed in the original sources, that one is in some way inhabiting the heroic world of characters whose stories are central to American national identity.  The idea that Madison’s journal is unreliable can threaten all four.  It threatens (1) in a diffuse but powerful way, by destabilizing a text that people as a matter of practice treat as if it were stable authority.  It threatens (2) because the idea that Madison deliberately shaded his story recasts him as a villain, or at least an angle-playing pol, rather than a statesman.  It threatens (3) because it reminds us that reconstructing history is difficult; it requires a lot more work than reading a text or two, and that recognition threatens to throw us back into the arms of a professional elite—a scholarly one—that has the skills and has invested the time to be able to say, with the sort of authority that Bilder’s book can command, when an old text can be trusted and when it cannot be.  And it threatens (4) because it reminds us that the long-ago heroic world of the Founders is considerably less accessible to us than we might have hoped.

Wow.  I can’t speak for other originalists, but I disagree with most of this. Consider his claim of the allegedly four important appeals of originalism.  As a group, those are not important appeals to me.

Let’s start with (2) basking in the glory of of the Founders and (4) inhabiting the heroic world of characters central to American national identity.  I don’t share these appeals.  In fact, in my work with John McGinnis, we have disclaimed these appeals in two significant ways.  First, we have argued that the goodness of the Constitution is not due to the influence of a few great men, but instead because of the supermajoritarian enactment process.  If one wanted to point towards other influences, it would be the enlightment and proto classical liberal views that prevailed in American, not the glory of the Founders.  Second, speaking of the Founders, we have argued that many of them were slave owners and that slavery was a central defect of the Founding.  In fact, it was only with Reconstruction that the constitutional document (if not the nation) corrected this defect.

Now consider (3), the promise we can go to the popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars.  Nope, that one does not drive me either.  In fact, McGinnis and I argue that the Constitution was a legal document and therefore one needs to understand the professional language of the law to discern it.

Finally, I should note that reason (1), stability, is something that appeals to me.  But it is not of overriding importance.  What is more, I find Primus’s claim that the inaccuracy of Madison’s Notes destabilizes the text at best underdeveloped.  In what important way does it destabilize the text, especially for someone who adheres to an original public meaning approach?

John McGinnis on the Constitution and Civic Virtue
Michael Ramsey

At Liberty Law Blog, John McGinnis has a three-part series: The Constitution’s Design for Promoting Civic Virtue.  From the introduction: 

At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:

John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.

Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest.  The constitutional structure thus maintains itself and does not necessarily depend on any religious system.

Nothing in the text of the Constitution assumes any level of religious belief on the part of the American people.   The Constitution emphatically does not call for the people to adhere to any particular religion or any religion at all. It prohibits all religious tests for any federal office and permits Presidents to affirm rather than take a religious oath to defend the Constitution.

Rather than rely on religion or indeed some thick conception of secular, communitarian virtue, like Sparta, the Framers built the Constitution on the bedrock of human nature.  As Hamilton said “man will only serve the public interest, if the structure of government interests his passions in doing so.”  Paradoxical as it might seem, Hamilton’s view reflects an important element of Protestant theology at the time which emphasized that politics had to recognize the consequences of the fallen nature of man.   Given the unknowability of who actually was among the elect, even many religious believers would have acknowledged it perilous to make the Constitution depend on the uncertain religious state of the populace.

Instead of relying on religion, the Constitution has a different design to elicit the virtues needed for civic life and its preservation. First, the Constitution creates a commercial republic to make sure the self-interest of man helps promote virtue.  It is remarkable that except for national defense, almost all the enumerated powers of the federal government were meant to facilitate a continental market—to make commerce regular.

Part I is here.

Part II is here.

Part III is here.

In conclusion:

Let me end with our current period and on a practical note. If I am right, we can revive a flourishing civic life by restoring the Constitution and not wait on a religious revival. Sociologists tell us that religious belief, at least as measured by adherence to organized religion, is declining. Yet enthusiasm for constitutional fidelity is rising. From the 1960s to the 1980s, a constitutional challenge such as that mounted against Obamacare would have been unimaginable even though religious belief was more widespread. Today, but not back then, a Republican President is required by his political base to nominate someone part of that culture of constitutional fidelity. And note that this culture created in no small part by the secular, civic association—the Federalist Society.  We saw a remarkable instance of that culture’s power when President George W. Bush was forced to withdraw Harriet Miers, a candidate who had no proven record of sound constitutional interpretation.

As Obergefell reminds us, our legal culture is far from perfect but it is a lot better than in the years of the Warren or even the Burger Courts, when religious adherence was somewhat higher but support for interpreting the Constitution as written was feeble both academically and politically.

The reasons for this greater enthusiasm for constitutional fidelity lie in the fact that after the Reagan Administration, respect for free markets, federalism and limited government—matters at the core of our Constitutional order– generally grew even as the society has become less, not more religious. Thus our Constitution was not made for a people who must be faithful to a religion but instead a people who need to have the civic virtues to be faithful to the Constitution. And those virtues in turn are likely to be generated by following the Constitution as written. It is to that virtuous circle for civic virtue that we need to return.


Donald Dripps: "Perspectives on the Fourth Amendment" Forty Years Later
Michael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted "Perspectives on the Fourth Amendment" Forty Years Later: Toward the Realization of an Inclusive Regulatory Model (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:      

The Minnesota Law Review published Anthony Amsterdam’s celebrated Holmes Lectures just over forty years ago. Those lectures defended a normative, or at least very generally historical approach to the definition of “searches and seizures,” and a “regulatory model” as opposed to an “atomistic model” for assessing when "searches and seizures" are reasonable or “unreasonable.” Fourth Amendment jurisprudence substantially, but not yet completely, adopts these normative and regulatory templates. 

The Article argues that technological and institutional changes may finally usher in a Fourth Amendment regime much like the one Professor Amsterdam defended. Technological change is driving a practical merger of historical and normative interpretive approaches. A sophisticated historical approach concerns itself less with founding-era rules than with the values those rules reflected. The contemporary quest for historical value judgments is unlikely to veer very far from the quest for sound value judgments today. As examples, the Article considers historical analogues to GPS location tracking and to third-party subpoenas, and concludes that while historical evidence cuts against the third-party doctrine and in favor of the mosaic theory, history neither clearly requires nor clearly forbids either doctrine. 

Although some strands of Fourth Amendment doctrine still reflect the atomistic approach, technological and institutional changes have the potential to usher in a thoroughly regulatory regime. It should come as no surprise that rapid technological and institutional changes occasionally undermine the justification of particular rules, driving a turn toward Fourth Amendment law articulated as rules subject to rapid revision, including occasional reversions to general standards. Institutional reform injunctions are now applying the regulatory perspective even in areas where the Supreme Court has clung to atomism. 

These changes are underway, and should be encouraged. Toward that end, this article proposes two illustrative reforms. The first is making the Fourth Amendment third-party doctrine depend on the availability of an individual opt-out. The second is a federal program to certify local police departments for compliance with constitutional standards. 

Time may falsify my prophecy. In that case, Professor Amsterdam would have framed the issues for half a century without the vindication of practical success. "Perspectives on the Fourth Amendment" would still be ranked among the masterpieces of legal scholarship for just that — for framing deep and abiding issues with immense learning, acute analysis, and exquisite rhetoric.

(Via Larry Solum at Legal Theory Blog).


Frederick Schauer: Is Law a Technical Language?
Michael Ramsey

Frederick Schauer (University of Virginia School of Law) has posted Is Law a Technical Language? (San Diego Law Review, forthcoming) on SSRN. Here is the abstract:

This essay, the written version of the Nathanson Lecture at the University of San Diego, asks how much of legal language is ordinary language, and how much of it is technical language. The topic is important and pervasive, because it forces us to confront the question of how much, if at all, an interpreter of legal language should take account of the goals of particular laws and the goals of the legal system generally in deciding just what a law means. To the extent that legal language is ordinary language, it is possible for an interpreter at the first stage of interpretation to decide what that language simply means, and then at a subsequent stage (as proponents of the distinction between interpretation and construction maintain) to decide what a legal outcome ought to be. But if legal language is a technical language, then the interpretation-construction distinction collapses, and right from the beginning, as Lon Fuller most prominently insisted, the interpreter must consider just what laws in particular and law in general are aimed at achieving. So although it is obvious that certain terms are constituted by law – habeas corpus, assumpsit, corporation, trust, bill of attainder – the larger question is whether all of law and all of legal language should be understood in substantially the same way. The aim of this lecture is to open up the question of legal language as technical language for broader and deeper exploration, and to suggest that resolution of the ordinary language versus technical language question reaches into almost all of the domains of legal interpretation.


Larry Alexander: Legal Positivism and Originalist Interpretation
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Legal Positivism and Originalist Interpretation (Revista Argentina de Teoria Juridica, 2015, forthcoming) on SSRN.  Here is the abstract:      

The topic I have been assigned for this keynote address is the relationship between legal positivism and originalist theories of interpretation. Fortunately for me, there is indeed a relationship between these two things, and a strong one at that. Or so I shall contend.

My plan is as follows: I shall first give an account of legal positivism. That account will be brief, no more than a sketch, but hopefully not a caricature. But it will be sufficient for demonstrating the relationship between legal positivism and originalist interpretation.

After my brief portrayal of legal positivism, I shall turn my attention to originalist interpretation. I shall show why legal positivism supports originalism. And I shall conclude by discussing various objections to originalism, objections that nevertheless can be successfully parried.


Gerard Magliocca on the Seventeenth Amendment
Michael Ramsey

At Balkinization, Gerard Magliocca: The 17th Amendment and Federalism.  From the introduction:

In recent remarks at Princeton, Justice Scalia commented in a Q&A that federalism is dead and that the culprit was the Seventeenth Amendment, which ended the election of national Senators by state legislatures. While many conservatives hold this view and some have advocated the repeal of direct Senate elections, I think this is a false claim that rests on a misunderstanding of politics and history.

Try out a simple thought experiment. The California Legislature is controlled by Democrats, thus any Senator elected by them would be a Democrat. Does anybody think that this Democrat would be more interested in federalism than Diane Feinstein and Barbara Boxer are? I doubt it. Why is that?  Because Democrats in California share the views and interests of the national party for the most part.

And further: 

... [T]he Seventeenth Amendment didn't actually do much to protect federalism. National power increased significantly from 1791 to 1913.  (In part, this was because in many states Senators ran the political machine that elected the state legislature, not the other way around.) Likewise, there is no indication that Senators thought differently about federalism once they were elected directly by the people, if you compare, say, 1920 versus 1910.

Maybe.  I agree this is a somewhat underexamined claim by federalists.  But as to the first point, state legislators, even if aligned with the national party on most things, still have to run the state, and so (I expect) will think in practical terms about running the state in a way that modern Senators may not.  As to the second point, true, but the real growth of the federal government at the expense of the states began in the 1930s.   How much of that can be charged to the Seventeenth Amendment is a fair question, but it seems undeniable that the period after the amendment was adopted saw much greater growth of national power than the period before.  (Note: Professor Magliocca has several other interesting points but these two seem like his strongest).


Philip Hamburger on Adrian Vermeule on Philip Hamburger
Michael Ramsey

Philip Hamburger  (Columbia University - Law School) has posted Vermeule Unbound (Texas Law Review, forthcoming) on SSRN (responding to Adrian Vermeule's review of his book Is Administrative Law Unlawful?).  Here is the abstract:      

After espousing administrative power as a sort of unbound power, Adrian Vermeule attacks my critique of administrative power in an unbound manner. It therefore is difficult to avoid wondering whether there is a connection. On behalf of an indefensible power, is it necessary to adopt an indefensible mode of argument? Administrative power must be unlawful if this is its best defense against my book.


Does Inaccuracy in Madison’s Notes Matter?
Mike Rappaport

Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize.  While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article.  I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.

The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is.  If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem.  By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.

Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach.  Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution).  An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.

If one is looking for the public meaning, why would one care about Madison’s Notes and their possible inaccuracy?  Some people suggest logically it should not matter.  But I think that is mistaken.  Madison’s Notes could tell us a variety of things about the Constitution.  They could tell us about:

(1) the meaning of words at the time,

(2) the interpretive rules that were employed,

(3) the legal system at the time in general,

(4) the values of people at the time,

(5) how different clauses were interpreted.

The essential point, though, is that there is nothing special about this information because it comes from the drafters.  If we have similar information from equally learned and knowledgable people who were not at the convention and was published in a newspaper, that information would be equally important.  There is nothing sacrosanct about the drafters.  And the same holds for the ratifiers, even though their act make the Constitution the law of the land.  We are not looking for their intent. 

Thus, if Madison’s Notes are not accurate in certain places, that might mislead us.  But as a practitioner of the original methods version of original public meaning, that does not tell terribly upset me.  I don’t place tremendous emphasis on the Notes.  Instead, I look to all of the evidence of the time – evidence from Ratifying Conventions, from newspaper articles, from letters, from dictionaries, etc.  All of these pieces of evidence have problems, so it is not a big deal that Madison’s Notes also have problems.

The Bin Laden Raid, Originalism and Nonoriginalism
Michael Ramsey

At Opinio Juris, Deborah Pearlstein argues that if the raid that killed Osama bin Laden violated the UN Charter, it violated U.S. law: Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land.  Michael Dorf appears to take a similar view at Verdict: Are the “bin Laden” Memos the New Torture Memos? (I say "appears" because it's not clear whether he's talking about a violation of domestic law or a violation of international law).

I agree, as a matter of the Constitution's original meaning.  And I see a broader point about nonorignalism as well.

To begin, the argument is that the raid violated Article 2(4) of the UN Charter, which prohibits use of force against the "territorial integrity or political independence" of a member nation (in this case Pakistan), subject to an exception (Article 51) for self-defense.  Let's assume this argument is correct (although in fact I think it's very weak under the original meaning of the Charter).  The UN Charter is a treaty, meaning that it is part of the "supreme Law of the Land" under Article VI of the U.S. Constitution.  But it is a non-self-executing treaty, say the courts (and I agree for reasons I'll get to shortly).  At minimum that means it is not judicially enforceable in U.S. court.  According to the CIA, apparently that also means it is not binding on the President.  Professor Pearlstein disagrees:

This view embraces a fundamental misunderstanding of the doctrine of self-execution, before and even after the Supreme Court’s 2008 decision in Medellin [v. Texas]. A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without implementing legislation. Non-self-executing does not mean non-binding as law, nor could it. The Supremacy Clause is clear: “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made … shall be the supreme law of the land.” The President would never suggest, for example, that because Bivens actions are not available to enforce some violations of the Constitution against the federal government – that the Constitution itself is not binding on the President. Quite the contrary, the President is legally bound by his obligations under the Constitution, and under “all treaties made,” no matter what subsequent enforcement mechanisms may be available.

I think this is right, although it requires a little more analysis.  (The following is based on my forthcoming article on non-self-execution).  "[A]ll" treaties are supreme law of the land, per Article VI.  The reason some are not judicially enforceable is that they are not addressed to the judiciary, but instead are addressed to other branches of government -- either expressly, or because they create obligations only other branches can fulfill.  For example, a treaty provision that calls on Congress to enact legislation would be non-self-executing (and wouldn't create any obligations on the President either, until Congress enacts implementing legislation).  So actually it is very often true that a non-self-executing treaty provision does not create any obligations for the President.

Article 2(4) of the Charter is a little different, because it does not appear to create obligations only for Congress.  It's reasonable to conclude that Article 2(4), addressing military decisions within the President's core constitutional power, involves matters textually committed to the President (and to Congress if a declaration of war is involved) not subject to judicial review.  It is, in a sense, a political question.  Does that mean the Charter provision is part of U.S. law binding on the President, but just nonjusticiable?  I think so.  The framers were clear that giving treaties the status of supreme law made them the equivalent of statutes for domestic law purposes (for citations, see my forthcoming article).  Thus the President's take-care obligation should extend equally to them, to the extent treaty provisions govern something within the President's executive power to implement -- as Article 2(4), as applied to the bin Laden raid, does.  (There's a wrinkle here about whether Congress' post-9/11 AUMF authorizes the President to violate treaty law, which I'll ignore for simplicity).  In sum, if the raid violated Article 2(4) the President was bound (as a matter of domestic law) not to authorize it, just as if it violated a U.S. statute.

But let's be clear: this is a textualist/originalist argument (though Professors Pearlstein and Dorf don't say so).  I don't see nonoriginalism being able to reach such a clear conclusion.

The core goal of most versions of nonoriginalism is to update the founding document in light of modern practice, values and circumstances.  Here there have been substantial changes in circumstances.  In the eighteenth century, treaties were typically bilateral, focused on particular issues of mutual interest; there were not very many of them, and getting out of them did not entail enormous structural costs, particularly when they were violated by the other party.  In the post-World War II era, however, multilateral treaties are more common.  They (the UN Charter in particular) aren't based on mutual promises between two nations, but rather serve as a framework for international interaction among many nations with sharply differing outlooks about many things including the value of compliance.  Whether the President should be inflexibly bound, as a matter of domestic law, to comply with every aspect of such treaties in all instances is doubtful as a matter of realistic foreign relations, and in any event it's a wholly different question from the issues of treaty compliance faced by the framers.  There's a strong argument that, at least when vital U.S. interests are at stake, modern circumstances require the President to have some flexibility.

Further, the principal concern underlying inclusion of treaties in the supremacy clause wasn't U.S. compliance with treaty obligations; it was states complying with treaty obligations.  As is well known, states routinely violated U.S. treaty obligations in the Confederation period, creating all sorts of problems for the national government, which wanted the treaties enforced but lacked power to enforce them.  Article VI of the Constitution was designed to fix that problem. It's less well known -- but highlighted in this outstanding article by David Moore -- that the founding generation was willing to have the national government violate international law obligations when practicality suggested it.  And in any event, Congress under the Constitution can violate a treaty (even a self-executing treaty) by passing a later-in-time statute, so it's unclear why we should be so concerned not to give the President similar flexibility.

Finally, U.S. courts, including the Supreme Court, have said (in dicta) that non-self-executing treaties are not only not judicially enforceable but are not federal law absent implementation by statute.  The Court said in Medellin, for example, that "This Court has long recognized the distinction between treaties that automatically have effect as domestic law [meaning self-executing treaties], and those that . . . do not by themselves function as binding federal law [meaning non-self-executing treaties]."  (552 U.S. at 504).  I agree with Professor Pearlstein that this distinction is inconsistent with the text and original understanding.  But I do not see how it is necessarily inconsistent with the modern Constitution, updated to take into account modern values and circumstances.

The response from nonoriginalists, I take it, would principally be that inflexible compliance with international law by the President is a core value that should be constitutionalized (this seems to be Professor Dorf's point).  But that is ultimately a policy judgment with which one might reasonably disagree.  So I don't see how nonoriginalism reaches such a firm conclusion about the bin Laden raid (and I note that commentators are quite willing to use textualist/originalist arguments when it suits them).  And assuming the CIA is operating in a nonoriginalist world, its conclusion therefore seems defensible.

UPDATE: At Just Security, Marty Lederman also argues that the Charter, though non-self-executing, is binding on the President as a matter of domestic law.


Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution
Mike Rappaport

While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States.  In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution.  Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.

Steve Calabresi has a new article out that ably defends the U.S. Constitution.  Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.

Federalism.  The main problem with a system of federalism is that it can too easily lead to secessionist movements, as is illustrated in many places in the world today, including the UK and Canada.  Calabresi argues that two features of the U.S. constitutional system mitigate these problems.  The U.S. employs a large number of states and those states do not reflect cultural and political views.  By contrast, imagine the U.S. system if it had four states – the Northeast, the South, the Midwest, and the West.

Secessionist movements would be much stronger in the latter world for two reasons.  Under our current system, a bunch of states need to form together to establish a secessionist movement and that is more difficult with a large number of states.  Moreover, some of the states are mixed culturally and politically and that makes it less likely that the states will join or agree with the movement.  While the U.S. had a devastating secessionist movement leading to the Civil War, the fact that there were border states (and many of them did not secede) is one of the reasons the Union was preserved.

Presidentialism. The main problem with a presidentialist system is that it can devolve into a presidential dictatorship.  As Calabresi states, “the sad fact is that almost every other democracy in the world that sought to copy the U.S. presidential system has degenerated at some point or another into a presidential dictatorship.”  Sad, indeed.

But again the problem is that those countries “have rarely copied other critical features of our constitutional system that check and balance presidential power.”  Calabresi identifes four critical checks and balances.

First, “American presidents are elected for only a four-year term with a two-term limit, and midterm elections must be held two years into a four year presidency and again six years into an eight-year presidency.”  Those midterm elections constitute a critical check on a new president, as I argued in this piece.

Second, the American system has a strong congressional system of oversight. Congress has the subpoena power and the Senate can confirm or reject presidential appointments.

Third, American presidents cannot declare states of emergency or propose national referenda (unlike the Weimar Republic or the President of France).

Fourth, U.S. presidents are subject to judicial review by a life-tenured federal judiciary headed by the Supreme Court "whose members today serve an average of twenty-six years in office."  The Supreme Court is "almost always dominated by the appointees of prior presidents that often belonged to the opposite political party from the incumbent president.”

The lesson that Calabresi teaches in this essential article is that it is not individual features of the system that are important, but the overall system and the checks and balances that it establishes.

Allegiance and Illegal Immigration
Andrew Hyman

The Constitution says that immigrants are entitled to birthright citizenship only if they are "subject to the jurisdiction" of the United States.  Mike Ramsey has  written here at this blog that, “[T]here is no sense in which children of illegal aliens are not ‘subject to the jurisdiction’ of the United States.”  But, as I have mentioned before, this word “subject” can be defined in many different ways (see this dictionary).

The best definition of the word “subject” in this context is “owing allegiance”.  Earlier this year, Professor Rob Natelson wrote a piece in the American Thinker explaining that the U.S. Supreme Court adopted this “allegiance” definition in 1884 and has never repudiated it.  The concept of "allegiance" was traditionally used to determine whether a person is a “subject” of the crown.

In England there were four different kinds of allegiance, as detailed by Lord Coke in Calvin’s Case.  The pertinent one here is called “local allegiance” or in Latin “ligeantia localis”.  So our question about illegal immigration should boil down to whether an illegal immigrant to the United States owes a local allegiance to the U.S. according to accepted legal doctrine in 1868.  If you look at that last link I just gave, Lord Coke explained that “ligeantia localis” occurs “when an alien that is in amity cometh into England….”  I very much doubt that someone is in amity who jumps ahead of line and sneaks across the U.S. border while evading American law enforcement.  I could be mistaken about this.  It could be that such a person is technically in amity as long as he carries no weapon, or is not a soldier, or something like that, but I doubt it.  As far as I know, there is no sense in which illegal aliens have ever come into the United States in "amity", unless taken by force (such as during the illegal slave trade).

The question whether the child of a resident illegal alien is subject to the jurisdiction of the U.S. is not easy.  As Professor Natelson says (at the link above), “Anyone who tells you this is an easy question is not telling you the truth.  It is an extraordinarily difficult question.”  And the answer to that question is certainly not provided by the ambiguous quote from Jacob Howard that recently appeared at this blog.  Professor Natelson is correct that "anyone who reads Senator Howard’s comment in context can see that it actually is ambiguous."

Podcast: Is the death penalty unconstitutional?
Michael Ramsey

At the National Constitution Center's Constitution Daily website, John Stinneford (Florida) and Elizabeth Wydra (Constitutional Accountability Center) debate whether the death penalty is unconstitutional (with originalist-oriented arguments on both sides).


Heather Gerkin and Richard Primus on Mary Bilder on Madison
Michael Ramsey

At Balkinization, two great posts on Mary Sarah Bilder's outstanding book Madison’s Hand: Revising the Constitutional Convention:

Heather Gerkin: James Madison as an Unreliable Narrator (describing this conference on the book).  

While the book is understated and even-handed, it is sure to kick up controversy. That’s because it raises an important question: What do we make of the fact that Madison is an unreliable narrator? What do we make of the fact that the notes on which so many have relied were altered in self-interested ways? That Madison papers over controversy and shows what Professor Bilder calls a “discomfiting willingness” to conceal his responsibility for mistakes? That his story apparently changed not only due to his own effort to paint his place in history, but due to Jefferson’s pernicious influence?

I suspect that many will be shocked by Madison’s conduct, and these revelations certainly ought to spawn a spirited methodological discussion among originalists. Those who dislike originalism will also be tempted to pounce. The “read the mind of the Framers” variant of originalism is now passé, but still. If the views of one person are this hard to untangle, how do we gauge the views of a nation? Moreover, the book makes clear there is a gap between original public meaning and the true intent of the Framers, as things were passed for reasons that we might not guess from the text.

And Richard Primus pounces: Madison's Journal and the Appeals of Originalism.

I suspect that Gerken is correct that something in Bilder’s point will bother many originalists, even public-meaning originalists.  Not all originalists—I’m confident that some public-meaning originalists who are thoughtful and self-aware about their originalism won’t be rattled, precisely because they understand that on an original-public-meaning view there’s no reason to care whether Madison was an unreliable narrator of the Convention.  But I do think that many originalists would in fact by rattled by Bilder’s book and by the more general point it represents.  So it’s worth thinking a bit about just what the problem might be. Why would originalists care that the journal is in many respects unreliable?


Here’s a hypothesis offered as a partial explanation—only partial, to be sure. It’s that internalizing what we ought to know about the limits of Madison’s journal would mean admitting something deeply inconvenient about originalism—not about any particular theory of originalism, but about many of the reasons why originalism is appealing in the first place.  And by treating Madison's journal as if it were a stable narrative, we act in accordance with those same things that make originalism appealing.

Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask in the glory of the Founders, (3) the (Levinsonian) Protestant-democratic promise that we can go to the real, popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars, and (4) the sense, when one is immersed in the original sources, that one is in some way inhabiting the heroic world of characters whose stories are central to American national identity.  The idea that Madison’s journal is unreliable can threaten all four.  It threatens (1) in a diffuse but powerful way, by destabilizing a text that people as a matter of practice treat as if it were stable authority.  It threatens (2) because the idea that Madison deliberately shaded his story recasts him as a villain, or at least an angle-playing pol, rather than a statesman.  It threatens (3) because it reminds us that reconstructing history is difficult; it requires a lot more work than reading a text or two, and that recognition threatens to throw us back into the arms of a professional elite—a scholarly one—that has the skills and has invested the time to be able to say, with the sort of authority that Bilder’s book can command, when an old text can be trusted and when it cannot be.  And it threatens (4) because it reminds us that the long-ago heroic world of the Founders is considerably less accessible to us than we might have hoped.

I think Professor Bilder's book is an enormous contribution, and so, I expect do most originalists (see here from Larry Solum).  I think it is not common to regard Madison's notes as canonical, particularly as to some abstract principles from which specific guidance can be deduced.  Indeed, I'm tempted to say that people who think otherwise have a cartoonish view of originalism.


John McGinnis on Originalism and Framers' Intent
Michael Ramsey

At Liberty Law Blog, John McGinnis: Public Meaning Originalism Is Not Indifferent to Evidence About the Intent of the Framers (responding to this post by Frank Buckley).  An excerpt:

Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.

On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.

And further:

One rule of the time [that the Constitution was adopted] attested by jurists was to consult intent if the meaning collected from the words alone were ambiguous. That rule would provide a specific reason to examine intent even within the public meaning paradigm.

I agree, despite what I wrote here and here (and elsewhere) focusing on text over intent.  I think, though, there's substantial difficulty in determining a single collective intent, especially if one proceeds at a relatively high level of generality, as Professor Buckley tends to.


Damon Root on Birthright Citizenship
Michael Ramsey

At Reason, Damon Root: Trump v. the Constitution (defending a broad view of birthright citizenship).  From the core of the argument:

... As Sen. Howard explained to the Senate back in 1866, the Citizenship Clause "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Notice that Howard specified two types of aliens whose U.S.-born children would not qualify for birthright citizenship, "ambassadors" and "foreign ministers." What makes ambassadors and foreign ministers different from other aliens residing on U.S. soil? Simple: Ambassadors and foreign ministers have diplomatic immunity and are therefore not "subject to the jurisdiction" of the United States. Instead they remain subject to the jurisdiction of their home governments.

By contrast, "every other class" of aliens, including permanent resident aliens, temporary resident aliens, and illegal aliens, is subject to U.S. jurisdiction, which is another way of saying that those aliens must obey U.S. law or else face punishment in the U.S. legal system. Thus, according to Sen. Howard, the vast majority of U.S.-born children qualify for automatic birthright citizenship. The only exceptions are the U.S.-born children of diplomats, foreign ministers, and, we might add, invading foreign troops, who are subject to the laws of war, not to the laws of the particular nations that they're fighting.



This understanding of the Citizenship Clause is amply supported by the debates surrounding the passage and ratification of the 14th Amendment. For example, the first senator to rise in opposition to Howard's citizenship proposal was Edgar Cowan of Pennsylvania, a conservative Republican with ties to President Andrew Johnson. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan fretted. "Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?"

Cowan's concerns were promptly addressed by Republican Sen. John Conness of California. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness responded, "that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law." Even the children of unpopular immigrants, Conness made clear, including the Chinese and the Gypsies, "shall be citizens."

In short, both the supporters and the opponents of the Citizenship Clause understood it to secure birthright citizenship to all but an extremely narrow group of U.S.-born children. The two sides only disagreed about whether this broad grant of birthright citizenship was a good idea to begin with. The original meaning of the Citizenship Clause went unchallenged.

I basically agree, although I less heavily on the drafting debates and more on the Amendment's language itself.  But I think this discussion captures the only plausible meaning of "subject to the jurisdiction" of the United States.


A Cartoonish View of Nonoriginalism?
Michael Ramsey

In an earlier exchange regarding originalism and Brown v. Board, Michael Dorf  complains that I have a “cartoonish” view of non-originalism, because I seem to think it largely produces the result people want it to produce.  As he puts it, I (in this post) and Asher Steinberg, who also had an interesting post in the exchange, appear to

entertain cartoonish ideas about what it means to reject originalism. Perhaps they imagine that we nonoriginalists think the Constitution mandates whatever the progressive wing of the Democratic Party favors as a matter of policy at any particular moment. That's a fantasy, however. Serious participants in constitutional theory who consider themselves either nonoriginalist or who can accept those versions of semantic originalism that allow for considerable value evolution at the level of construction or otherwise are not, ipso facto, natural lawyers all the way down. We recognize that there is space between the ideal Constitution we might want and the actual Constitution we have.

Below I'll set out my view in a little more detail, and readers can decide if it is cartoonish.

To begin, I'm excluding versions of nonoriginalism that purport to derive results almost entirely from precedent or that apply a very strong version of judicial restraint.   I’m thinking only of versions that see an active role for courts in developing constitutional law.  Further, I’m addressing only situations where the Constitution is reasonably contested, not whether the President must be at least 35 years old or whether each state gets two Senators.  My contention is that, although versions of nonoriginalism may vary in their stated approaches, they generally produce – and are designed to produce – the outcome, in any reasonably contested case, that the interpreter thinks is the correct policy outcome.  (This is not to say that nonoriginalism is simplistic; to the contrary, often the arguments are very complex and sophisticated.  But the outcomes are usually predictable).

That is so for two related reasons.  First, nonorginalism expressly incorporates the goal of sound public policy.  Indeed, as I understand it, that is the principal argument in its favor – it allows judges to update the Constitution to take into account new values and circumstances, rather than being stuck with the proverbial dead hand of the past.  Of course there are different views of which values should be taken into account and how the updating should be described.  But whether we are talking about David Strauss’ common law constitutionalism, or Justice Breyer’s application of abstract constitutional values, or Dworkin’s or Jim Fleming’s moral reading, or Judge Posner’s economics-based pragmatism, the common ground is that the judge (or scholar) will determine the best rule based on modern values and circumstances.

Second, it’s true that most versions of nonoriginalism do not count only sound public policy as their touchstone, generally acknowledging an array of other factors that may include text, history, practice, institutional competence, etc.  However, typically no priority is assigned to them, resulting in a grab-bag of incommensurate factors.  It’s only human that, among a host of unranked and often malleable and inconsistent considerations, the best policy outcome would, as a practical matter, prove decisive.

The essential point is that, apart from policy considerations, nonoriginalism has no touchstone.  For originalism, the touchstone is the original meaning (or original intent, if you prefer).  An array of factors may be used in pursuit of the touchstone, but ultimately there is a single interpretive goal.  Nonoriginalism has no counterpart, and as a result its touchstone becomes, expressly or implicitly, the best policy outcome.

If you think this oversimplifies, consider: how many nonoriginalist arguments take the form of “I think affirmative action is a great policy but unfortunately the Constitution, read properly, prohibits it.”  (Or substitute any currently contested issue: corporate speech, compelled union dues, strict gun control).   Indeed, I’m at something of a loss to see how nonoriginalism could produce that kind of argument.  If someone believes that affirmative action is the right way to solve racial problems in this country and that the proper way to interpret the Constitution is to update its provisions (in this case, those relating to race) to take account of modern values and circumstances, what would cause that person nonetheless to think affirmative action is unconstitutional?

Perhaps I am missing something, and I’m happy to become more enlightened and less cartoonish.  It would help if nonoriginalists would identify a couple of cases which they think reached bad policy results but whose outcomes they think are nonetheless compelled (not just plausibly reached, but compelled) by nonoriginalism.

To be clear, as I’ve said before, this is not necessarily a critique of nonoriginalism.  One can argue, I think quite plausibly, that this is exactly what judges should be doing (see here from Judge Posner, who’s admirably unapologetic about it). 

Also, to forestall objections, I readily admit that a somewhat similar claim could be made against originalism.  One could say that, because original meaning is often unclear and so many factors (text, drafting debates, ratifying debates, founding-era usage, post-ratification practice, pre-ratification background) can be used to identify it, ultimately one can pick whatever “originalist” outcome one wants to reach for policy reasons.  And one could point to the alignment between originalist outcomes and conservative/libertarian policy preferences as proof.  I don’t entirely disagree.  But the difference is that originalist arguments, in claiming to rest on something objective, should be capable of being defeated on non-policy grounds. 


Postscript:  Professor Dorf has rather testy a “postscript” to his post in which he complains that I unfairly accuse him of not understanding the difference between original meaning and original expected applications.  To the contrary, I’m sure he understands it well -- indeed, he's a leading authority on it.  My point was that his post on Brown relied for its force on original expected applications.  The reason he says Brown is in such great tension with originalism is that the framers of the Fourteenth Amendment did not (he says) think the Amendment would require de-segregated schools.  As he put it in his initial post, “Brown is at least a prima facie problem for originalists because the framers and ratifiers of the Fourteenth Amendment appeared to accept de jure segregation.”  Although some originalists argue to the contrary, he continues, “most historians believe these arguments fail, at least if meant to tell us anything about the concrete intentions and expectations of the framers and ratifiers.”  (emphasis added).   

Thus I said, I think quite fairly, that his argument relied on the framers’ expectations, which (as he knows) modern originalism does not necessarily consider decisive.  Indeed, in the post Professor Dorf goes on to acknowledge that much of the tension between Brown and originalism may dissipate if one follows more modern versions of originalism (but, he says, these versions are not real originalism).  So I'm not saying he doesn't know the difference (of course I would not say that); I'm saying that the premise of his post (tension between Brown and originalism) relies on old-style originalism.  I don't think he need be offended by that.

Richard Epstein on Spokeo v. Robins
Michael Ramsey

At Defining Ideas, Richard Epstein: The Common Law In The Supreme Court (discussing the recently argued case Spokeo v. Robins, on congressionally created standing).  From the heart of the analysis:

The traditional law of defamation also recognizes that in some cases it is not possible for the defamed person to identify the source of his business loss. In 1938, in Ellsworth v. Martindale-Hubbell Law Directory, the North Dakota Supreme Court allowed an attorney to sue for general damages when his legal ability had been misrepresented in Martindale-Hubbell, a major legal directory to which people looked in order to find lawyers in distant locations. The plaintiff could not identify the potential trading partners who declined to do business with him because of the errors in Martindale-Hubbell. Nonetheless, the North Dakota court said that potential clients could hardly be expected to call him out of the blue to say that they would not hire him. It therefore remanded the case to the trial court to give the plaintiff the opportunity to prove whether his decline in business income was attributable to the defendant’s publication of the false report.

Spokeo is therefore a modern variation on that ancient theme. The plaintiff believes that the false [credit] report [issued by the defendant] has hurt him, and thus wants damages for that loss. However, he faces serious difficulties in showing that some harm actually occurred. It is very difficult to link up his failed job search with the entry errors. If tried, an astute defendant’s lawyer would list all sorts of independent reasons why the plaintiff came up dry. The examination would go through each failed job candidacy to try and pinpoint why the plaintiff was not chosen: bad interview, other strong candidates, bad fit for the job, and so on. ...

It is now possible to see how legislation might help fill the gap. The huge factual uncertainties may make it impossible to prove general damages at common law, but should they shut him out altogether? Against this backdrop, Congress does not need to identify concrete harms that elude common law judges. But it does have a decided institutional advantage in being able to come up with a statutory range of general damages precisely to overcome the shortfall. What the statute does is to liquidate in advance all uncertain claims of this sort. The plaintiff now needs to prove much less to make his case, but by the same token he receives much less in damages for that weakened claim.

At this point, the statutory scheme starts to make sense. Accordingly, the constitutional debate about standing now becomes a distraction. No longer is it necessary to moot the question of whether a bare statutory violation counts as a “concrete harm.” General damages at common law are meant to remedy a concrete harm. Nor does this issue pose any special difficulty under the standing requirement of Article III, which states that “The judicial power shall extend to all cases in law and equity.” Standing is nowhere mentioned in the text of Article III. So long therefore as general damages are allowed at law, the case is actionable at law, just as it would be in any state court.

(Via Glenn Reynolds at Instapundit).


Lawson on the New Originalism
Mike Rappaport

In a new  article by Gary Lawson discussing Jim Fleming’s book on constitutional theory, Lawson takes issue with a well known claim by Keith Whittington about the new and old originalism that Fleming accepts.  (For one discussion of the new originalism, see here.)  Whittington had claimed in 2004 that:

The new originalism is distinct from the old in that it is no longer primarily a critique of the Warren Court’s rights jurisprudence. The new originalism is more comprehensive and substantive than the old. It is more concerned with providing the basis for positive constitutional doctrine than the basis for subverting doctrine.

Lawson writes:

Thus, I think Professor Fleming gets it precisely backwards when he characterizes the new originalism as a move from anti-Warren Court tirades to a governing judicial philosophy. He has taken bad guidance from Keith Whittington, who postulated – with absolutely zero evidence that I can see – precisely such a move as the explanation for the emergence of the new originalism in the Reagan and post-Reagan years. That is the sort of thing that sounds nice to political scientists who like that kind of explanation. It just happens to be, I believe, wildly false, and indeed backwards, as an account of the emergence of the new originalism.

Lawson also writes:

The new originalists, most of whom I personally have known at least casually since the 1980s, were engaged in an intellectual rather than political enterprise.

The real move reflected in the new originalism was from originalism as a theory of adjudication and governance to originalism as a theory of interpretation and meaning. To be sure, virtually all of the new originalists (essentially everyone except me) put forth originalism both as a theory of interpretation and as a theory of governance, but new originalists generally acknowledge that those are distinct moves that require distinct lines of reasoning to defend.

In other words, the new originalists were thinking about interpretation and meaning.  And in their different ways, they were focused on the most accurate reading of the words rather than the political results.

Lawson refers on page 22 of his article to a number of different new originalists, including me.  In my case, I believe he is correct.  I have come to carefully distinguish between discovering the meaning of the document and the goodness of the results that the document produces.

But there is more to the story.  I do remember in the early 1980s encountering originalism in a serious way for the first time.  Even then, before developing my views further, I do believe that I thought that meaning differed from adjudication.  But I must admit that I was very skeptical of meanings that seemed uncertain (and therefore seemed to give judges discretion).

How would I have justified this view?  At the time, most old originalists thought of originalism as having a core purpose of constraining judges.  I don’t think that was true of me.  Instead, I think I would have said that if a provision seemed open ended, such as Privileges or Immunities Clause of the 14th Amendment seemed to, it could not serve as a basis for meaning, because the judge would just bring in his own values.

But as time passed and I eventually became an academic, I became more thoughtful and careful about these matters.  And I came to accept that the framers might have enacted unclear terms into the Constitution.  But I also accepted two claims that allowed me to understand more about the supposedly unclear provisions.  First, the more I learned, the more I realized that so called unclear terms often had more determinate meanings than they seemed to have at first.  Second, I also came to accept the 51/49 view – the view that one should follow the more likely meaning of an unclear provision in close cases, and therefore even when there was uncertainty, there was often a meaning.

Steven Smith: The Image of Liberty
Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted Constitution Day: 'The Image of Liberty' on SSRN. Here is the abstract:   

This Constitution Day talk compares the state of constitutional governance today to that of the Roman Empire, as famously discussed by the historian Edward Gibbon, and discusses alternative strategies that might be contemplated by those who believe that current American governance does not conform to the requirements of the historical Constitution.

The whole essay is amusing and enlightening (as always, from my colleague Professor Smith).  Here's an excerpt on living constitutionalism:

Here is a generalization that I think is accurate. In recent decades, it seems, most constitutional scholars have believed that the modern administrative state and the actively progressive judiciary are, for the most part, very good things. Maybe even necessary things. But the scholars have also realized that nagging questions of legitimacy or authority need to be addressed. The scholars have had to ask: In a government in which "We the People" are supposed to be the ruling authority, where do the courts get their license to do the manifestly good and necessary things they do, like impose same-sex marriage on the entire nation?

So the question needs to be noticed, but given that the desirable conclusion is obvious and known in advance, it has seemed that as long as a colorably credible justification can be given, the challenge of legitimacy has been deflected. It=s as if the courts had been charged with violating their constitutional responsibilities, and are thus entitled to a presumption of innocence: so any moderately plausible defense is enough to warrant acquittal. And the courts should then be free to get on with their beneficent business.

In short, if you know in advance what the desirable or even necessary conclusion is, any barely passable argument will probably be good enough. And the more abstruse, and thus hard to see through, the better.

Conversely, if we do not start with a commitment to arriving at a particular, presumptively desirable destination, and if instead we ask how governance truly committed to rule by "the People" would work, the whole modern enterprise looks different, and much more dubious. Now it will not be enough that a lawyer or scholar or judge can come up with an ingenious rationale for connecting some desired result to the Constitution. The question, rather, will be whether a political community sincerely committed to self-governance would want to encourage or authorize important political decisions to be made on the basis of that sort of ingenious rationaleB one that the people who enacted the constitutional provision would most likely never have thought of. The very creativity and complexity of modern constitutional theory will already be a cause for suspicion. Why would the straightforward exercise of self-governance by "We the People" call for such creativity and complexity?

Now you may think I am being overly critical here, but I believe that in one respect I am actually being excessively charitable. That is because most of the rationales for creative judicial progressivism that lawyers and scholars devise are not really very ingenious at all. In fact, most modern constitutional rationalizations are (sometimes quite elaborate) variations on a common strategy, which consists of treating the Constitution as a sort of repository of grand or abstract principles --  like equality, or liberty, or dignity. With just a little effort and creativity (not very much, really) these principles can then be used to justify outcomes that may have been unimaginable to the legislators and citizens who debated and enacted a constitutional principle.


Seth Barrett Tillman on Justice Jackson and the Pharoah's Dreams
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Justice Jackson’s Biblical Metaphor in Youngstown.  It begins:

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring):

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.

Id. at 634 (emphasis added).

As usual, Justice Jackson’s writing is beautiful and engaging. But is his metaphor apt and sensible?

First, Pharoah’s dreams were only enigmatic to Pharoah’s courtiers; Joseph—if we take the text at face value—knew precisely what the dreams meant. Thus, the dreams were not inherently “enigmatic”. Rather, they were only enigmatic to some people. ...

Jackson, like Holmes, is evidence that great stylists are not to be trusted.  Moreover, note that in Youngstown Jackson's unstated and undefended premise is that if judges can't figure out what the Constitution means, they can intervene anyway (recall that he voted to invalidate the President's action) rather than just leaving the matter to the political branches.

More from Eric Segall on Practical Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism on the Ground Part II (responding to my post, which in turn responded to his initial post on "Originalism on the Ground").

Professor Segall makes multiple good and challenging points but this seems to be the heart of it:

Second, to the extent that Mike [Ramsey] thinks that original meaning can provide helpful answers to modern questions, he needs to address the difficult issue of applying fixed original meaning to new facts. As Justice Scalia said in Minnesota v. Dickerson, the Founders might not have accepted the “indignity” of being frisked by the police pursuant to arrest (as allowed by Terry v. Ohio), but because guns have become much smaller and more powerful since then, what is a “reasonable” search may have changed. Similarly, in Citizens United, Justice Scalia said that even if the Founders would have believed for-profit-corporations had no free speech rights beyond those affirmatively granted by the state, the nature of corporations has changed so dramatically that a different result may be required today.
But, if what is “reasonable” changes or how we view corporations changes as society does, why not “liberty,” “marriage,” and “sovereignty,” etc? But once that move is allowed, then we have to inquire how original meaning, assuming it is ascertainable, applies to changed facts and new circumstances. And, once judges or scholars cross that great divide, originalism falls into itself, and originalism and the living Constitution become indistinguishable.
I will try to put together some useful further thoughts in due course.  For now I'll start by saying that I definitely do not think that, if the original meaning of the Constitution shows that people who organize as corporations thereby lose their constitutional rights, originalism can allow a change in the "nature of corporations" to produce a different result today.  I agree with Professor Segall that if you accept a different result today, you are applying an evolving Constitution.  (The "reasonable search" example may be different because that language might -- in its original meaning -- invite an evolving application).


Josh Blackman on Judge Posner on Constitutional Interpretation
Michael Ramsey

Josh Blackman reports on Judge Richard Posner's comments at the  Loyola Constitutional Law Colloquium on Randy Barnett's new book Our Republican Constitution: Securing the Sovereignty of the People.

Among other things, Posner said he was not interested in the text or history of the Constitution, does not think that the 14th Amendment guarantees Birthright Citizenship. He adds that he first tries to seek a “sensible” solution without concern for precedent, and then checks if precedent “blocks” the sensible solution.

Some excerpts:

On the value of text and history:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

On the 7th Amendment:

There are things that are in the text of the Constitution that are absurd. One is the idea that if the matter in controversy is at least $20, you have the right to a jury trial. That is absurd. $20 in the 18th century meant something very different than in the 21st century. What the Supreme Court should say when people bring jury cases for $20 is that provision is archaic and will not be enforced.

On birthright citizenship:

Another example is the controversial provision recently being discussed is the 14th Amendment is birthright citizenship. What about these foreigners come here–pregnancy tourists–who want to have their child born in the United States, so he will have refuge if things go bad in his country. But I don’t think that is a necessary interpretation. I’m perfectly happy with these people, I don’t care. Doesn’t bother me in the slightest. But I don’t think it is required by law. I think the Supreme Court would say, what they meant was that the children of the former slaves would be citizens. That is what they meant. They didn’t want a southern state to say “no more slaves, but children of slaves, citizens, no.” That’s what they were worried about. They weren’t worried about tourist pregnancies.

As a quibble on the last point, I think the Fourteenth Amendment's framers likely were familiar with the 1845 case Lynch v. Clarke -- basically a "tourist pregnancy" case holding that the child born in the U.S. to non-citizens was a U.S. citizen -- and understood that the Amendment constitutionalized that result.  Nonetheless. it's likely right that the framers did not think about the situation of children born to people not admitted to the country legally (the parents in Lynch were legally present).  But again this is an illustration of original meaning distinguished from original intent.  The question, for most modern originalists, is not what the Amendment's framers specifically had in mind (what Judge Posner thinks is relevant) but what the language they enacted meant at the time of enactment.

Also ( I can't help adding), if Judge Posner really thinks text and history are unimportant (point #1 above), why does it matter to him what the framers of the Fourteenth Amendment thought (or wrote) about birthright citizenship?  Apparently the argument is: "What the framers meant is irrelevant, plus they supported me."  If one really believes (and thinks one's audience believes) the former, why bother with the latter?


Gary Lawson: Could Fleming Be Right This Time?
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?) on SSRN.  Here is the abstract:      

Professor Jim Fleming’s new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, purports to critique all forms of originalism from the perspective of Professor Fleming’s “moral reading” of, or “philosophic approach” to, the Constitution. I propose a somewhat different opposition: empirical reading versus moral reading. Empirical reading is necessarily originalist, but it focuses directly on the need to ground interpretation in theories of concepts, language, and communication. In this short comment, I outline the research agenda for a theory of empirical reading, explore the extent to which empirical readings and moral readings of the Constitution are compatible (spoiler alert: it’s an empirical question), and situate empirical reading within the development of originalist theory.


Ed Whelan and James Fox on Kurt Lash on Privileges or Immunities
Michael Ramsey

At NRO, Ed Whelan has started a series of posts on Kurt Lash's book The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.  Here they are so far:

Part 1

Part 2

Related:  James W. Fox Jr. (Stetson University College of Law) has posted Publics, Meanings & the Privileges of Citizenship (Constitutional Commentary, Vol. 30, pp. 567-610, 2015) on SSRN.  Here is the abstract:      

In this essay I review Kurt Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Lash has written perhaps the most important work to date on the background of the Fourteenth Amendment’s Privileges or Immunities Clause. This essay summarizes the basic insights and arguments of the book and then presents a critique of it on two levels. First, it argues that the background of the Privileges or Immunities Clause is more ambiguous than Lash suggests and that this background does not support Lash’s rejection of natural rights interpretations of the Clause. Second, and more fundamentally, the essay argues that Lash — consistent with some other contemporary originalists — assumes an overly narrow concept of the historical public in his pursuit of the public meaning behind the Clause. Given the formal and informal exclusions of women and minorities from public discourse and decision-making, it is impossible to speak of a unitary “public.” We should consider instead how to identify and incorporate multiple publics and to consider what such a multi-public or counterpublic approach to historical meanings might look like.


Ian Bartrum: James Wilson and the Moral Foundations of Popular Sovereignty
Michael Ramsey

Ian C. Bartrum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted James Wilson and the Moral Foundations of Popular Sovereignty (Buffalo Law Review Forthcoming) on SSRN.  Here is the abstract:      

This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our understanding of Wilson’s account by revealing its roots in moral sentimentalism.

With these roots established, I am able to offer a historically contextualized normative account of popular sovereignty. I identify two justifications: (1) “free and independent” citizens provide the most reliable epistemological connection to natural law; and (2) the purpose of government is to provide citizens the necessary freedom to make autonomous moral judgments. With these justifications in place, I am able to offer two suggestions on how the structure of popular sovereignty can guide our modern constitutional constructions: (1) The federal government — not the states — should remain the primary and presumptive guardian of individual rights; and (2) we should identify sovereignty, not privacy, as the common theme underlying both textual and unenumerated rights. To that end, the judicial inquiry should focus on whether we can justify a particular intrusion into moral agency in terms of some greater benefit to moral autonomy writ large.


David Gans on Originalism and Fisher v. University of Texas
Michael Ramsey

At Balkinization, David Gans: Scholars’ Brief in Fisher v. University of Texas Urges New Look at Text and History of the Fourteenth Amendment.  It begins:

On Monday, Constitutional Accountability Center filed an amici curiae brief in the Supreme Court in Fisher v. University of Texas, urging the Court to reaffirm that the Fourteenth Amendment permits the sensitive use of race to foster equality in education and to uphold the University of Texas’s use of race as one factor among many in its holistic admissions policy.  Our brief, filed on behalf of CAC and six of the nation’s most prominent constitutional scholars—Bruce Ackerman, Jack Balkin, Burt Neuborne, James Ryan, Eric Schnapper, and Adam Winkler—demonstrates that the text and history of the Fourteenth Amendment permit the government to take race into account in certain circumstances in order to ensure equality of opportunity for all persons regardless of race. 


Eric Segall Has Some Questions for Originalists
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism on the Ground (posing ten questions for those who "consider themselves to be originalists in a meaningful way").  Here are some thoughts on possible answers.

The first six questions, though also worth considering individually, can be grouped generally as claiming that substantial areas of Supreme Court doctrine (from free speech to commandeering and the Eleventh Amendment) can't be justified -- and have not been justified -- under originalism, which plays little if any role in their development.  Professor Segall asks, in various ways, whether this undermines or marginalizes the originalist project.

I accept his premise that plenty of Supreme Court cases and doctrine don't find much support in originalism. (Others may have a different view, and I think he may overstate his claim, but the basic proposition seems correct).  I don't see why this is a problem for originalism.  The originalist project, at least for many people, isn't descriptive; it seeks to change the way the Court and the legal culture think about judicial decisionmaking.  It's true that in areas with extensive non-originalist doctrine it may be difficult to decide how best to advance the originalist project.  But that's a tactical question, not a fundamental challenge.  If a particular area of doctrine hasn't been justified on originalist grounds -- say affirmative action, one of Professor Segall's examples -- then (originalists would say) it should be so justified or it should be abandoned (or at least not extended).  It seems to me that this would be true of any approach to adjudication that tries to get courts to do something other than what they are now doing.  For example, if you think courts should decide cases principally in ways that favored less powerful groups, you would find plenty of cases and doctrine that don't apply that view; you'd just say they should come out differently.

Questions 7 and 9-10 go to the issue of how much constitutional evolution one can accept and still be an originalist (specifically, he asks, is Jack Balkin an originalist?).  Here my answer starts with the definition Larry Solum has pressed in various places (see here), and which Professor Segall quotes in a different question: 

I believe that the best understanding of "originalism" is that it is a family of constitutional theories that is unified by agreement on two ideas.  The first of these ideas is the Fixation Thesis:  the communicative content (or linguistic meaning) of the constitutional text is fixed at the time each provision is framed and ratified.  The second idea is the Constraint Principle: constitutional actors should be constrained by the fixed communicative content of the text.

One can accept these two ideas and still have wide disagreements, in particular on (a) how much fixed content there is, and (b) what should be done when the fixed content doesn't resolve the issue posed in a particular case or field? I think Professor Balkin accepts Solum's two principles, but (a) he has a thin view of what is fixed and (b) he has a broad view of judges' authority to develop principles in areas where matters are not fixed.  On that assessment, he is an originalist. But he is likely to differ in results from many originalists who disagree with him about (a) or (b), or both.  That's what makes him innovative (and controversial).

Question 8 goes to my main area of interest: how originalism  works as a practical matter. Segall asks:

I do not understand how either the Fixation Thesis or the Constraint Principle applies to constitutional provisions with hopelessly vague language and contested histories. I am thinking about bans on “unreasonable searches and seizures,” the “establishment of religion,” the denial of the “equal protection of the laws,” and “cruel and unusual punishments,” among many others. I would like to know how you would expect judges to, for example, be guided by either of these Principles when deciding whether lethal injections that cause X amount of pain we know about and possibly Y amount of pain we don’t know about, constitute “cruel and unusual punishment” or whether the Constitution extends habeas protections to places like Guantanamo Bay where the United States does not exercise formal sovereignty but does exercise complete control ...?

I have three responses.  First, if the provisions have "hopelessly vague language and [hopelessly] contested histories" then originalism cannot give them meaning.  What that means for adjudication is contested among originalists, with the principal candidates being (a) judges can construct meaning and (b) judges lack authority to intervene against the political branches in the absence of a constitutional violation.  (I like the second one).

Second, sometimes constitutional language and history is not hopelessly vague and contested (or at least it is not hopelessly vague and contested as to some controversies and applications).  In such cases, originalists say, we should apply the original meaning.  The fact that original meaning doesn't supply an answer in all cases is not a reason to ignore it when it does supply an answer.

Third, and most importantly, a key disagreement is: how often are constitutional provisions hopelessly vague and contested?  Professor Segall's implication is that this happens very frequently, maybe most of the time.  Perhaps.  But I think the difficulties of reaching originalist answers are often overstated.  Among other things, (1) originalist analysis only seeks to find the more likely original meaning among various possibilities, not a meaning that is undoubtedly correct or entirely free from dispute; (2) many constitutional clauses have seemed obscure only because their history had not been closely studied, and as originalist scholarship proliferates we gain better tools for assessing them; and (3) originalism may contain interpretive principles and default rules that help resolve close cases (what John McGinnis and Mike Rappaport call "original methods").  My own scholarship has been principally devoted to finding original meaning in areas of supposedly great doubt, such as foreign affairs; in general I've found that originalist answers can be found to many practical questions, although others remain elusive or indeterminate.


Brown, Jim Crow and Originalism
Mike Rappaport

Michael Dorf recently argued that originalism cannot justify Brown v. Board of Education (1954) and any constitutional interpretive theory that fails to justify Brown should  be rejected. His argument has provoked many responses.

One response has been to question the claim that any single result should determine the acceptability of a constitutional theory. Any constitutional interpretive theory that limits interpreters will some of the time lead to bad results. Moreover, virtually all constitutional theories recognize that the original Constitution allowed (and to some extent protected) slavery, and that certainly was a bad result.

Another response is to question the claim that originalism cannot justify Brown. In my view, there are strong (although not conclusive) originalist arguments in favor of Brown made by Michael McConnell and others. I would add that McConnell and others often treat Congress’s passage or at least allowance of segregated schools in the District of Columbia as strong evidence against the originalist case for Brown. But that is not true.  As I argue in this paper, the equality requirements of the Fourteenth Amendment did not apply to the federal government and therefore actions by the federal government do not reflect anyone’s view of the Fourteenth Amendment’s content. 

Yet another response is to note that other theories, such as living constitutionalism or Bobbit’s modalities theory, might not justify Brown, at least under various interpretations. In other words, it is not clear that the proper application of these theories would justify Brown and therefore those theories also fall prey to Dorf’s criticism.

Here, I want to raise a different response to Dorf’s claim about Brown. When people make the argument about the importance of Brown, they are usually implicitly assuming that, without that decision, Jim Crow as a whole would have been constitutional. But I don’t buy it. There are two basic problems with this implicit assertion.

One problem is that, even if Brown was wrongly decided, there is a very strong argument that Plessy v. Ferguson was wrongly decided. Brown involved government-funded education, which might not have been a right that was protected against discrimination. By contrast, Plessy involved the right to contract, which was thought to be a core right that would have been protected. Moreover, Plessy relied on the idea of separate but equal. Even if one believed that this was a plausible understanding of equality, there was another understanding—one which forbade all racial discriminations as to civil rights—that would have led to the opposite result in Plessy. And that understanding of equality should have been preferred, because it furthered the purpose of the Fourteenth Amendment as means of protecting the rights of the former slaves. Without Plessy, much of Jim Crow would not have been allowed.

Moreover, one cause—if not the main cause—of Jim Crow was the denial of the right to vote to blacks, denials that often contravened the original meaning of the Constitution. To begin with, the Fifteenth Amendment prohibited racial discrimination as to voting. While it might not have reached every manipulation that the Southern states used against black voting, it certainly would have prevented many of them. Yet, the Supreme Court refused to enforce the Fifteenth Amendment, most notably in the 1903 case of Giles v. Harrison, where the Progressive Justice Holmes refused to order the registration of blacks who were wrongly denied the franchise.

Even more clearly, section 2 of the Fourteenth Amendment required that states that denied the right to vote to blacks should have their representation reduced in the Congress. Yet, neither the Congress nor the courts ever reduced their representation. This provision was probably broader than the Fifteenth Amendment and so would have reached all of the manipulations of the Southern states.  Had the Southern states had their representation reduced, this would have either led them to confer rights or significantly reduced their power at the national level to block civil rights legislation.

Ultimately, if the original meaning had been enforced, the heart of Jim Crow would have been cut out without Brown. That is not to say that the decision was unimportant. But the common assumption that without it Jim Crow would have been untouched is deeply mistaken. The original meaning would have greatly, if not perfectly, protected blacks, even without Brown.

Originalism and the Stability of Constitutions
Mike Rappaport

In a previous post, I discussed the view of Barry Weingast and his coauthors as to what makes for the stability of a constitution. Weingast argued that there are three basic conditions needed for constitutional stability. First, the Limit Condition: having a constitution that imposes significant limitations on what the government may do, so that people do not have strong incentives to take extraconstitutional action to prevent the other party from securing power. Second, the Consensus Condition: having a constitution that makes clear what are constitutional violations, so that the people can unite together to stop the government from taking such unconstitutional actions. Third, the Adaptation Condition: having a constitution that allows for adaptation so that when social or other changes occur, the constitution can be modified to continue to satisfy these three conditions.

I want to argue that these conditions are much better satisfied when the constitution is interpreted in an originalist way.  Here I will be talking about the U.S. Constitution.

The Limit Condition is better satisfied by following the original meaning of the Constitution. If the original meaning is not followed, then it becomes unclear what limits the Constitution actually imposes. Interpreters can modify its meaning to a significant degree.  Thus, people may fear the exercise of power by a government because that government may exercise dangerous powers that are currently not allowed, but will be permitted when the Supreme Court (or other actor) reinterprets the Constitution. 

It is true that a nonoriginalist interpretation of the Constitution might impose a significant number of constitutional limitations. But the Constitution’s original meaning also imposes significant limitations and these are worth more under originalism than the nonoriginalist interpretations are worth under nonoriginalism, since the originalist limitations can only be  changed with a constitutional amendment.

The Consensus Condition is also better satisfied by following the Constitution’s original meaning. Under originalism, there is an objective meaning to the Constitution. By contrast, under nonoriginalism, the matter turns to a significant degree under what the interpreters believe would be a good idea – interpreters who are appointed by the government. It is true that people sometimes disagree about the original meaning, but the original meaning is more constrained than the evolved meaning under nonoriginalism.

Finally, the Adaptation Condition is also better satisfied by following the Constitution’s original meaning. Unlike the judicial updating of living constitutionalism, the supermajoritarian process of constitutional amendment protects against changes in the Constitution that could pose dangers to important parts of the country. While many people argue that the supermajoritarian amendment process is too strict, John McGinnis and I maintain that it works fine so long as the Supreme Court does not supersede it with judicial updating.

Originalism and Female Presidents, Again
Michael Ramsey

The question whether the Constitution allows only male Presidents (because it refers to the President as "he" in Article II) apparently is back.  In addition to Mike Rappaport's recent post, there is excellent analysis from Rob Natelson (A woman as president? The gender-neutral Constitution) and John McGinnis (Martha Could Have Succeeded George).  And Chris Green sums it up well here, as quoted in US News

“If we take the original meaning, historically ‘he’ was used to refer to both men and women,” says Green, currently a visiting fellow at Princeton University. “The idea that ‘he’ refers only to men, and that we must say ‘he or she’ to refer to a gender-unspecified person, is new.”

Exactly right.  My comments on the issue, from a couple of years ago, are here: Dean Chemerinsky's Lame Critique of Originalism.  I wrote:

[Dean] Chemerinsky argues:

The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.

Preposterous.  I would think that pretty much anyone who has (figuratively) set pen to paper in the modern era knows that until quite recently “he” was used generically to include both men and women when the gender was unknown.  In our more sensitive times we’ve modified that practice to take into account the potential offense it gives women (rightly so, in my view, although we’ve struggled to come up with a satisfactory alternative).  But there isn’t the slightest doubt it was the grammatical custom in the framers’ era.  As Wikipedia puts it:

Problems of usage arise in languages such as English, in contexts where a person of unspecified or unknown sex is being referred to, but the most natural available pronouns (he or she) are gender-specific. In such cases a gender-specific pronoun may be used with intended gender-neutral meaning, as he has been used traditionally in English, although she is now sometimes used instead … 

If there were any doubt, the Constitution sets out (in Article II, Section 1) the specific qualifications to be President; not only is “male” not one of them, but the relevant section speaks of a “Person” with the given characteristics being eligible.

No Person except a natural born Citizen … shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years …

Moreover, the founding generation knew how to limit things to men when they wanted to: typically voting was extended to “adult male citizens” with certain qualifications. 

I’m not aware of any originalist or originalist-oriented scholar who thinks Chemerinsky's view is even plausible, much less that an originalist "would have to say" what Chemerinsky argues.

To reiterate the conclusion: no one who takes originalism seriously thinks it even plausible that the Constitution might bar women from the presidency.  This is a talking point by non-originalists who want to discredit originalism but don't bother to understand it.

And to be clear: it's not because barring women from the presidency is a bad outcome.  Of course it is a bad outcome, but originalism does not guarantee good outcomes.  Sometimes it will lead to results we will find uncomfortable under modern morality.  This just isn't one of those times.


Does the Constitution Allow a Female President? Originalism Says Yes. Some Types of Nonoriginalism May Say No.
Mike Rappaport

This might seem like an odd question, but a journalist recently asked me my opinion about the matter.  It turns out that Article II of the Constitution refers to the President as a him.  For example: “He shall hold his Office during the Term of four Years.”  If this “he” meant only a male person, there would be a strong argument that the President had to be a male.

But I believe that this interpretation is mistaken.  It is my understanding that the term “he” at the time of the Constitution had multiple meanings or usages.  While one of those was to refer to a male person, another was to use the term “he” to mean “he or she.”  Under that usage, a female President would be constitutional.

The same issue arises as to members of Congress as well.  For example, Article I, section 2, clause 2 provides “No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”  (Emphasis added.)

There are strong reasons for preferring the “he or she” meaning over the “he” meaning.  Most importantly, the Constitution contains explicit qualifications for serving in Congress and in the presidency.  These are normally thought to be the exclusive qualifications set by the Constitution.  Reading in another qualification – maleness – would thus conflict with the constitutional structure.

This conflict is especially evident in the language of Article I, section 2, clause 2 quoted above.  The provision speaks of “no person” who does not satisfy certain qualifications, thereby suggesting that persons may serve, not just males.  Moreover, the provision could have easily added that no person can serve “who shall not be a male” as a qualification.

While the original meaning appears to indicate that females can serve as members of Congress or as President, I am not sure that all versions of nonoriginalism support this result.  Consider the view that we should interpret the Constitution based on the modern meaning of its terms.  In an effort to induce writers not to use “he” to mean “he or she”, feminists and others have suggested that “he” always means a male person and does not have the “he or she” meaning.  Suppose they have succeeded in changing the meaning of the word he.  Then, under the modern meaning interpretive view, they might have had the unintended effect of prohibiting women from serving as President or in Congress.  Another example that illustrates the weakness of the view that interprets the Constitution based on the modern meaning of the words.

The Stability of Constitutions
Mike Rappaport

What makes for the stability of a constitution?  In the United States, we take stability for granted, but “the median country faces violent political change about once every eight years.”  So what promotes constitutional stability?

Over the past several years, Barry Weingast has argued (along with some other authors, especially Sonia Mittal) that there are three basic conditions that are needed for constitutional stability.  Satisfying these conditions operates to promote a self stabilizing constitution.

1. The Limit Condition. The first condition concerns the fact that citizens are fearful of governments that pose a threat to their assets and well being. When a regime threatens citizens, they often will support extra constitutional actions to prevent the government from taking hostile actions.  Self stabilizing constitutions address this problem by lowering “the stakes of politics . . . by placing limits on legitimate government actions.”  In other words, if a constitution places significant limits on the actions that the government can take, then people have less to lose if the other party prevails.  They will then have less incentive to take violent or extra-constitutional actions to prevent a government they fear from governing.

2. The Consensus Condition. The second condition allows citizens to unite together to remove officials and governments that violate the constitutional limits. Since diverse citizens may disagree amongst themselves as to what the appropriate limits are, it is important to have focal points that people will agree upon.  Thus, the clearer the constitutional rules, the more likely there is to be agreement among the people and among the different branches of the government so that they check a government that exceeds its limits.

3. The Adaptation Condition. The third condition involves how the constitution responds to the shocks, such as technological innovations and demographic change, that all countries face.  The constitution must allow for it to adapt to these changes so that the three conditions are successfully maintained over time.

This question of what makes for a stable constitution is one that most constitutional theorists have ignored.  Yet, it is an essential issue for the development and maintenance of a successful, long term constitution.  The U.S. Constitution does well in terms of these conditions.  But, as I will argue in my next post, it does much better if it interpreted according to its original meaning.