The Originalism Blog

Jamal Greene: Fourteenth Amendment OriginalismMichael Ramsey

Jamal Greene (Columbia University Law School) has posted Fourteenth Amendment Originalism (Maryland Law Review, forthcoming) on SSRN. Here is the abstract:

This essay, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time; the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies; and the Reconstruction era holds an awkward and contested place within our national memory. These limitations are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.

Professor Greene presented a version of this paper at the University of San Diego Law School's originalism works-in-progress conference in February.

Michael Franc on Senator Reid and the Origination ClauseMichael Ramsey

At NRO, Michael G. Franc: Is the Constitution a Republican Plot?

It's one of the clearest, easiest-to-understand provisions in the Constitution.  And Harry Reid's Senate flounts it routinely.

The Origination Clause in Article I, Section 7 states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” In addition to clarity, this provision has an even greater virtue: It serves a very good purpose.

Christopher Slobogin and Orin Kerr on "An Equilibrium-Adjustment Theory of the Fourth Amendent"Michael Ramsey

The Harvard Law Review Forum has posted the final versions of Christopher Slobogin's An Original Take on Originalism (responding to Orin S. Kerr's article An Equilibrium-Adjustment Theory of the Fourth Amendment (125 Harv. L. Rev. 476 (2011)) and Orin Kerr's reply Defending Equilibrium-Adjustment.

David Hardy: Fourteenth Amendment Incorporation and Judicial Role ReversalsMichael Ramsey

David T. Hardy has posted McDonald v. Chicago: Fourteenth Amendment Incorporation and Judicial Role Reversals (Working Paper Series) on SSRN.  Here is the abstract:

McDonald v. Chicago, which incorporated the Second Amendment right to arms, was the first Supreme Court ruling to address incorporation in many decades. It was an unusual ruling, in that the Court’s “conservative wing” took what had been traditionally the liberal approach, while its “liberal wing” suddenly became very conservative. Indeed, Justice Thomas staked out the most liberal position, while Justice Stevens staked out the most conservative one, and for good measure Justice Scalia found that precedent can trump originalism. It was, in short, "the world turned upside down."

This article outlines the virtues, and problems, of the three major opinions in McDonald, and suggests solutions to some of the problems uncovered. The plurality opinion by Justice Alito is certainly faithful to precedent, although it highlights some illogical aspects of substantive due process incorporation. The concurrence by Justice Thomas is faithful to legislative history and original public meaning, but would have required overruling more than a century of case law. The dissent by Justice Breyer opens by proposing a very complicated, and perhaps ultimately meaningless, legal test with no basis in precedent, and alternately sets forth a very narrow application of the existing test – an application so narrow as to call into question almost all the Court’s past rulings on the issue.

Originalism on the Web: Justice Scalia at the University of ChicagoMichael Ramsey

At the University of Chicago Law School's website, Jerry de Jaager has this account of Justice Scalia's visit to the law school, including (of course) some comments on originalism.

Daniel Hemel: Executive Action and the First Amendment's First WordMichael Ramsey

Daniel Jacob Hemel (Yale Law School '12) has posted Executive Action and the First Amendment's First Word (Pepperdine Law Review, forthcoming, Vol. 40, 2013) on SSRN.  Here is the abstract:

In recent years, textualist scholars have advanced the argument that the First Amendment only applies to legislative action, and thus that executive authority is unencumbered by the First Amendment’s prohibitions. According to this argument, the words “Congress shall make no law” cannot be construed to limit the powers of the executive branch. This brief Article seeks to show why the textualist argument is logically flawed. If Congress can make no law abridging First Amendment freedoms, then it cannot empower the executive to do the same. Statutes authorizing executive action either (a) do not empower the executive to abridge First Amendment freedoms, in which case executive actions abridging First Amendment freedoms are ultra vires, or (b) do empower the executive to abridge First Amendment freedoms, in which case the statute itself violates the First Amendment. In either case, executive actions abridging First Amendment freedoms are unconstitutional. Importantly, this Article’s thesis only applies where the executive acts pursuant to legislative authorization under Article I of the Constitution. Where the executive acts pursuant to its own Article II inherent authority, then the textualist scholars’ argument is stronger. When, for example, the President acts as “Commander in Chief,” a strict textualist could conclude that the President is not bound by the First Amendment. Notably, federal courts’ deference to the executive in First Amendment cases involving military matters already seems to reflect the principle that the force of the First Amendment’s prohibitions might hinge on the source (Article I vs. Article II) of the executive authority being exercised.

Seems right to me.  A similar and less easily resolved challenge is whether a treaty (not made by "Congress," and law of its own force under Article VI) can infringe First Amendment rights.

(Via Legal Theory Blog).

Is the Provision of Health Insurance Interstate Commerce Under the Original Meaning? Mike Rappaport

A couple of days ago, Mike Ramsey argued that the provision of health insurance is interstate commerce.  Ramsey writes:  

My insurer (in California) is Anthem Blue Cross, which claims to be the largest health insurer in California; it's a subsidiary of WellPoint, Inc., a company headquartered in Indianapolis with health insurance operations in at least 14 states.  This all sounds pretty interstate to me, and I think my insurance situation is fairly typical, although I know little about the details of the health insurance industry and I could be persuaded otherwise.  (It would be different if WellPoint were just a passive investor in independent insurance operations within various states, but my sense is that this is an integrated and centrally-managed operation.)  

Let’s assume, as I think plausible, that the sale of insurance is commerce.  But is it interstate commerce?  It seems clear that the sale of insurance by a California corporation to California residents would be intrastate insurance.  How does the ownership of the California corporation change things, if at all?

The mere fact a corporation has shareholders from other states seems unlikely to turn the sale of insurance from a California corporation to Californians into interstate commerce.  After all, that would make all actions of publicly held corporations interstate.  But why doesn’t the existence of these out of state shareholders make the corporation’s actions interstate?  One very plausible reason is that there is a formal distinction between the shareholders of the corporation and the corporation itself.  It is the corporation, not the shareholders, that are engaged in the action.  It matters where the business is located, not its shareholders.  And the corporation is providing the insurance in California. 

If that analysis is true, then how does it apply to an Indiana Corporation that owns and centrally manages a California subsidiary?  Under this analysis, the fact that an Indiana Corporation owns the California subsidiary does not matter.  It is the California subsidiary that is legally making the decisions to provide the insurance and the insurance is occurring in California. 

 But it might be argued, as Mike Ramsey implies, that if the decisions are actually made in Indiana – “if its a centrally managed operation” – then the provision of insurance is not occurring only in California but also in Indiana.  This is possible, but the opposite conclusion is also possible.  It is true that one might say that the decisions in fact are made in Indiana.  But legally, based on my limited memory of corporate forms, the decision is technically made by the California corporation (ultimately the President or the Board) and that might be what counts.  It is not clear to me which of these two possibilities is the right answer here.  

 What then are the implications for the provision of health insurance by Anthem?  First, Anthem might not be centrally managed in Indiana and therefore would be engaged in intrastate commerce.  Second, Anthem might be centrally managed, and then whether it is engaged in interstate commerce would depend on how one answers the question I raised in the previous paragraph.  Finally, I should note that some health insurance corporations may not be subsidiaries of corporations in other states and those health insurers will then be engaged in intrastate commerce.  (Some would attempt to claim that the intrastate provision of health insurance can be regulated under the Necessary and Proper Clause as affecting the interstate market for health insurance, but I am skeptical of this power except in the most exceptional cases.)   

(Cross Posted at the Liberty Law Blog)

The Doubtful Constitutionality of the Anti-Counterfeiting Trade AgreementMichael Ramsey

At Lawfare, Jack Goldsmith has posted The Doubtful Constitutionality of ACTA as an Ex Ante Congressional-Executive Agreement.  It begins:

Dozens of scholars have written a letter to complain about the constitutional basis for President Obama to ratify the Anti-Counterfeiting Trade Agreement (ACTA).  ACTA, for those who don’t know, is a controversial trade pact designed to tighten domestic enforcement of global intellectual property rules.  The administration originally maintained that it had the authority to join ACTA for the United States as a sole executive agreement, without authorization from Congress or consent by the Senate.  (Many argued that the Constitution did not authorize the president to join ACTA by sole executive agreement – including Larry Lessig and me, here.)

The Obama administration has apparently dropped the sole executive agreement argument and now claims that the Congress authorized him to enter into ACTA.  In a letter a few months ago to Senator Wyden, Legal Advisor Harold Koh suggested that Congress had authorized the executive branch to negotiate and conclude [ACTA] in Section 8113(a)(6) of the 2008 PRO-IP Act.

My take is that Professor Goldsmith and the scholars' letter are right to object to ACTA's constitutionality.  ACTA, which imposes substantial on-going legal obligations on the United States, is a "treaty" in the sense understood by the founding generation (even though it's called an "Agreement").  As an originalist matter, then, ACTA ought to be approved by two-thirds of the Senate under the Constitution's Article II, Section 2.  Neither Congress (by majority vote) nor the President has the power to make treaties, so even a treaty made by the President with the approval of Congress (but not two-thirds of the Senate) doesn't meet the constitutional requirements.  (See Chapter 10 of The Constitution's Text in Foreign Affairs).

It's true, of course, that modern practice includes so-called congressional-executive agreements, especially in the trade area.  NAFTA and similar free trade agreements are examples of approval by a majority of Congress but not two-thirds of the Senate.  This practice is deeply entrenched, so even though it's not consistent with the original meaning, if you give weight to custom and practice it may well be defensible.

But the President's ACTA argument would take this practice a very big step further.  NAFTA and similar agreements have all been signed first and specifically approved by Congress afterward, on an up-or-down vote on the agreement's actual text.  They are, in the terminology of the field, "ex post" congressional-executive agreements.  But ACTA hasn't and isn't going to be approved that way.  As Professor Goldsmith explains, the President claims Congress implicitly authorized ACTA in advance ("ex ante") on the basis of some non-specific language in a congressional statute that did not directly mention a trade agreement.  It's true that some other agreements have (arguably) been approved this way in the past, but there isn't the entrenched practice of the sort seen with NAFTA.

Goldsmith and the scholars' letter argue persuasively that the vague statutory language can't be read to approve ACTA.  But even if it could, there should be serious constitutional concerns.  The founding generation was generally skeptical of treaties and established a difficult supermajoritarian process for their approval.  That process has already been watered down a bit in the trade area through congressional-executive agreements.  But requiring a specific bicameral vote on a definite set of commitments (as with NAFTA) is still a fairly high barrier.  Allowing Congress to use vague language to delegate to the President power to make unspecified agreements in the future undermines the constitutional rule to a much great extent.

Marshall and Madison on Immigration Power, Part 2Michael Ramsey

This post continues earlier thoughts on the 1799 exchange between John Marshall and James Madison over the Alien Acts, and the implications of this exchange for our understanding of the immigration power.  (Again, thanks to Kurt Lash for pointing out the significance of these documents; and again I am assuming that Marshall was the author of the defense of the Alien Acts written on behalf of the Federalist minority of the Virginia Legislature, although there's some debate on that matter).

In my earlier post I noted that neither Marshall nor Madison gave any credence at all to the idea that Congress might have an inherent extraconstitutional authority over aliens as a consequence of national sovereignty.  They both assumed that the structure of delegated powers indicated in the original Constitution and confirmed in the Tenth Amendment applied to power over aliens.  But since the Constitution's text doesn't mention power over aliens directly, where did they think it could be found?  Some thoughts:

1.  Neither Marshall nor Madison suggested that Congress had a single unified power over aliens.  As described previously, Marshall's defense of the Alien Acts identified three textual powers that (he said) gave Congress power over supposedly dangerous aliens (the target of the Alien Acts).  Two of Marshall's clauses (the war power and the power to punish offenses against the law of nations) clearly did not apply to aliens generally.  The third, the power to protect states against invasion, might be read that way (if one thought of unwelcome immigrants as invaders), but that doesn't seem to have been Marshall's meaning.  He said that the power allowed removal of dangerous aliens because "[t]o cause to depart from our territory the individuals of a nation from whom invasion was apprehended, is most obviously a measure of precaution dictated by prudence and warranted by justice."  (p.19).  That is, in the particular situation removal was warranted in anticipation of impending nation-to-nation hostilities.  This wouldn't amount to a general power over aliens.  Madison, in response, of course denied that Congress had even as much power over aliens as Marshall contended.  His position was essentially that Congress had power only over enemy aliens (that is, citizens of a nation with which the US was at war).

2.  Neither Marshall nor Madison discussed the naturalization clause as a possible source of Congress' power.  That's a bit problematic for people who think that clause is the best candidate for a general textual power over immigration.  Notably, David Currie's account of the congressional debates over the Alien Acts similarly indicates that the naturalization clause wasn't regarded as a likely source of Congress' power.  (The Constitution in Congress: The Federalist Period, pp. 258-259).  I wouldn't say that that completely settles it.  The naturalization clause still looks good: under the 1790 Naturalization Act, eligibility for naturalization turned principally on how long an alien had lived in the United States.  (The first of the 1798 Alien Acts added more requirements, but time in the US remained a central qualification).  Thus one obvious way for Congress to exercise control over naturalization was to control who could come into and remain in the US.  Further, the naturalization clause gives power to "establish a uniform Rule of Naturalization," and any rule that turned on time spent in the country wouldn't be entirely "uniform" if states had different rules on admitting and removing aliens.  That might be enough to make Congress' control over aliens' entrance and residency necessary and proper to the naturalization power.  But apparently it didn't seem a worthwhile argument in 1798-99 -- naturalization clause proponents need some explanation, or some more weighty evidence in their favor, I'd say.

3.  Marshall and Madison both thought the states had some power over aliens.  Both referred to Virginia's 1792 statute on dangerous aliens.  Marshall pointed out (p. 21) that:

Our [i.e., Virginia's] laws expressly authorize the executive to apprehend and secure or compel to depart this commonwealth, all suspicious persons being the subject of any foreign power or state, from whom the President of the United States shall apprehend hostile designs against the said states.

No one, Marshall said, thought the Virginia law was unconstitutional.  Madison agreed (p. 11), but distinguished the Virginia law as applying to aliens with "hostile designs" while "the act of Congress relates to aliens, being the subjects of foreign powers and states, who have neither declared war, nor commenced hostilities, nor from whom hostile designs are apprehended."  (Madison's distinction was actually pretty weak, as there did not appear to be a great deal of difference between the Virginia statute and the Alien Act; Madison seemed to be implying that a broader statute at the state level might be unconstitutional, but he didn't say why, and it obviously wasn't because he thought the power was reserved to Congress.)  Madison did elsewhere seem to affirm that the power over aliens was (or could be) a residual power of the states (p. 11, responding to the Federalist argument that if Congress couldn't regulate aliens no one could, which would be absurd).

Further, Marshall in particular seemed to understand Article I, Section 9 (the migration clause) to imply a state power to refuse admission to aliens.  That clause provides:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight.

One of the arguments against the Alien Acts was that they violated the migration clause by prohibiting migration prior to 1808.  But, Marshall said, pointing to the Virginia statute, the aliens in question were not ones Virginia had "thought proper to admit," since they were removable under state law as well as under federal law: "No law of this state authorizes the migration in to it of persons of the description comprehended in the act of the United States. ... [T]he state of Virginia does not admit, but excludes from her territory all those who are contemplated by the alien law."  (He also argued that Section 9's general prohibition on laws against migration didn't apply to specific laws responding to national security threats).  Marshall's account of the migration clause assumes that states have the constitutional power to "choose to admit," or to not admit, aliens generally (which seems consistent with the clause's text).

4.  Finally, it's interesting that the 1792 Virginia law specifically refers to a determination of dangerousness by the US President.  Congress' Act also delegated almost complete discretion to the President: "[I]t shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States ... to depart out of the territory of the United States." There are surely hints here that the President has a special role in dealing with aliens, but neither Marshall nor Madison develops the idea in the arguments.

Of course, this exchange as a whole was about the removal of aliens rather than the initial decision to admit them; at best it's reflective of thinking among legislators in Virginia, and in any event it took place a decade after the Constitution's ratification.  And it's somewhat inconclusive, in that neither author attempts a comprehensive theory of the power over aliens.  But with these qualifications, it seems to offer support for two additional conclusions (beyond the rejection of inherent power): Congress might not have a comprehensive power over aliens, and the states seemed to have some, though perhaps not unlimited, power to remove or refuse to admit aliens.  In other words, it's consistent with the tentative thoughts Mike Rappaport outlined here.

Taniguchi v. Kan Pacific and a Statute's Historical MeaningMichael Ramsey

In yesterday's opinion in Taniguchi v. Kan Pacific Saipan Ltd., the Supreme Court decided that the phrase "compensation of interpreters" in the Court Interpreters Act, 28 U.S.C. 1920 (6), does not include compensation of persons who translate written documents.  (As a result, it concluded, costs of written translations cannot be awarded as costs against the losing party in litigation; Section 1920(6), allowing awards for "compenstation of interpreters," applies only to oral translations).

Significantly, the Court's majority (Justice Alito, writing for himself and five others) understood the question as involving Section 1920(6)'s original meaning -- that is, the meaning of "interpreters" in 1978, when the statute was enacted (pp. 5-7):

The question here is: What is the ordinary meaning of "interpreter"?

Many dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined "interpreter" as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as "[o]ne who translates orally from one language into another." American Heritage Dictionary 685 (1978).The Scribner-Bantam English Dictionary defined the related word "interpret" as "to translate orally." Scribner-Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of"interpret" as "to translate what is said in a foreign language." Random House Dictionary of the English Language 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined "interpreter" as "[o]ne who translates languages," but then divided that definition into two senses: "a. [a] translator of books or writings," which it designated as obsolete, and "b. [o]ne who translates the communications of persons speaking different languages; spec. one whose office it is to do so orally in the presence of the persons; a dragoman." 5 Oxford English Dictionary 416 (1933); see also Concise Oxford Dictionary of Current English 566 (6th ed. 1976) ("One who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence"); Chambers Twentieth Century Dictionary 686 (1973) ("one who translates orally for the benefit of two or more parties speaking different languages: . . . a translator (obs.)").

Pre-1978 legal dictionaries also generally defined the words "interpreter" and "interpret" in terms of oral translation. The then-current edition of Black’s Law Dictionary, for example, defined "interpreter" as "[a] person sworn at a trial to interpret the evidence of a foreigner . . . to the court," and it defined "interpret" in relevant part as "to translate orally from one tongue to another." ...

The Court also noted that other parts of the statute use "interpreter" in a way that appear to mean only oral translations.

Regardless of whether a textualist approach should focus on a statute's meaning at the time of enactment (see this exchange with Professor Tom Bell), the Taniguchi opinion appears to confirm that the Court's statutory textualism does focus in this way.  Though Justice Alito says several times that he is investigating the phrase's "ordinary" meaning, he relies on enactment-era (or earlier) sources -- carefully seeking out 1978 editions of the leading dictionaries -- and does not consider whether the meaning might have changed in the intervening 30-plus years.  The question, to his mind, is what "interpreters" meant in 1978.

As I've noted before, that approach seems fairly uncontroversial as applied to statutes; it's interesting that, as applied to the Constitution, it gets called "originalism" and becomes the subject of all sorts of theoretical objections.

Marshall and Madison on Immigration Power, Part 1Michael Ramsey

I've now had time to read and think about John Marshall's comments on Congress' power over immigration (or, strictly speaking, the comments in the 1799 report of the minority of the Virginia Legislature, attributed to Marshall), recommended by Kurt Lash in the context of previous posts on the immigration power.

To recap, the Federalist-dominated Congress enacted the Alien and Sedition Acts in 1798, which among other things authorized the removal of aliens the President identified as dangerous to the United States.  The Virginia Legislature passed a resolution objecting to the Acts as beyond Congress' constitutional power.  In response, Henry Lee submitted "An Address of the Fifty-Eight Federal Members of the Virginia Legislature," dissenting from the Legislature's resolutions (thus, defending Congress' power to pass the Alien and Sedition Acts).  The Address itself did not identify an author, but Professor Lash and others argue persuasively that the author was John Marshall.  (In this post, I will assume that is correct).  James Madison then wrote a response to the Address (and to other arguments against the resolution) which was adopted by the Legislature's majority.

Two points stand out in my reading.  I'll discuss the first in this post.  As Professor Lash indicates, the "Address" and Madison's response are powerful evidence against the idea of inherent or extraconstitutional immigration powers arising merely from national sovereignty (as suggested, for example, in this post by Patrick Charles).  Marshall, defending Congress' power to pass the Alien Acts, does not even hint at an inherent congressional power.  The Address opens with a theoretical discussion of federalism, arguing that matters of national concern should be left to the national government.  It then says, though, "it is admitted, that if in the formation of our constitution a different arrangement is made, that arrangement, however inconvenient, must be sacredly obeyed till constitutionally changed."  (p. 17).  Marshall continues by observing that "[t]he government of the United States ... possesses only delegated powers, and it is proper to enquire whether the power now under consideration [that is, the power over aliens] be delegated or not."

The Address then argues that the power to remove dangerous aliens stems from three specific textual powers: the power to declare war and grant letters of marque and reprisal; the power to punish offenses against the law of nations; and the power to protect the states against invasion. (pp. 18-19).  It also argues (p. 17) that although the power to exclude dangerous aliens isn't mentioned expressly in the Constitution, that alone does not foreclose it: the Tenth Amendment, it specifically says, requires powers to be delegated but omits the word "expressly" (found in the comparable clause of the Articles of Confederation), thus showing that under the Amendment powers may be delegated implicitly.

This presentation, it seems to me, devastates the claim that the founding generation understood Congress to have an inherent power over immigration that arose from national sovereignty outside the Constitution and in spite of the Tenth Amendment.  Marshall, who was defending Congress' exercise of power over aliens, had every incentive to make that argument if it was at all plausible.  He did not.  Instead, he conceded both that the national government had only delegated powers and that the Tenth Amendment applied to the question of immigration power.  Operating wholly within the framework of delegated powers, he argued that three specific clauses contained the power at issue (that is, the power to remove dangerous aliens) -- although notably his arguments did not expressly claim or implicit add up to a general congressional power over immigration.

Madison's response to Marshall confirms the general rejection of inherent national powers.  First Madison re-asserts in uncompromising terms (p. 2) the doctrine of delegated powers:

in all contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th [Tenth] Amendment, now a part of the Constitution, which expressly declares, "that the powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Madison notes his opponents' reliance on "a late doctrine, which opens another source of federal powers, not less extensive and important, than it is new and unexpected."  But this alternative view, which he works hard to refute, is not the idea of inherent powers -- rather, it is Hamilton's idea of Congress' "general welfare" power found (supposedly) in Article I, Section 8 but not tied to Congress' other enumerated powers (a point Marshall did not argue).  Madison's response spends no time at all discussing or refuting the idea of inherent national power over immigration, apart from his unqualified restatement of the delegated powers doctrine quoted above.  Instead, in addition to refuting the "general welfare" argument, he engages the three specific clauses Marshall listed as sources of Congress' power and rejects each of them.

Madison's response is consistent with the natural reading of Marshall's Address -- that Marshall accepted the idea of delegated powers both generally and as applied to power over aliens, and that Marshall thought the national power over aliens, if it existed, had to come (implicitly) from a specific textual grant of power to the national government.

Of course, one can debate the value of post-ratification evidence to the Constitution's original meaning.  My view is that the ratification-era evidence against inherent national powers is so strong that one need not look at post-ratification history at all.  But for those inclined to credit arguments in favor of inherent national power, the Marshall-Madison exchange of 1799 seems hard to explain.  Marshall was a moderate nationalist, defending the exercise of congressional power over aliens -- he had every institutional and rhetorical reason to advance an inherent powers argument if he thought it would have any traction.  Yet he did not make the argument (and Madison did not think the argument worth a detailed response apart from a citation to the Tenth Amendment).  Either Marshall did not think of the argument or he thought it so unpersuasive as to be not worth mentioning (and indeed, he implicitly conceded it by arguing purely in terms of delegated powers and acknowledging the applicability of the Tenth Amendment).  In either event, it seems difficult to escape the conclusion that inherent national power over aliens was not a background assumption of the founding generation, as Marshall and Madison understood it.

Of course, that underscores the mystery of how the founding generation actually did think about the power over aliens, which I will consider in the next post.

Brett Bellmore: Is Insurance "Interstate"?Michael Ramsey

Brett Bellmore sends the following, continuing the discussion of the originalist case for the individual mandate (see here):

I must admit that I've never been comfortable with the N&P argument for the federal government getting to exercise unenumerated powers. (Maybe we ought to amend the Constitution to incorporate a "convenient and eh, whatever" clause, but we haven't yet.) But I can at least understand it where a regulation targets interstate commerce, and incidentally impacts some part of intrastate commerce.

However, how does the ACA fall into this category? I've got insurance with BC/BS of South Carolina. This *can* involve an element of interstate commerce, if the insurance happens to cover me when I'm in another state. But as a simple matter of actual fact, my insurance company has paid out tens of thousands of dollars for my treatment, and not one cent of it was ever out of state. Most people's experiences are much the same.

Health insurance is almost entirely intra-state, the inter-state component is small and incidental. This isn't a matter of incidentally impacting matters beyond the enumerated power, virtually the entire impact of the law is on intra-state commerce. The intra-state commerce isn't an incidental target of the regulation, it's the primary target.

This isn't Congress regrettably regulating some intra-state commerce to make the inter-state regulation effective. This is Congress totally blowing off the distinction, simply not caring about anything following "To regulate..."

This is deciding that most of the language in the interstate commerce clause is void, and just using a claim that they're regulating the intra-state commerce to get at interstate commerce as an excuse. And not even a premeditated excuse, they didn't even bother to consider such matters when they wrote the ... law, they just proceed on the basis that if they feel like regulating something, they can.  ...

Two points in response:   (1) I agree it's an core question for originalists whether the insurance market is principally interstate or principally intra-state.  If the latter, the individual mandate seems like a large stretch, for the reasons stated above.  But I'm not sure that's right on the facts.  My insurer (in California) is Anthem Blue Cross, which claims to be the largest health insurer in California; it's a subsidiary of WellPoint, Inc., a company headquartered in Indianapolis with health insurance operations in at least 14 states.  This all sounds pretty interstate to me, and I think my insurance situation is fairly typical, although I know little about the details of the health insurance industry and I could be persuaded otherwise.  (It would be different if WellPoint were just a passive investor in independent insurance operations within various states, but my sense is that this is an integrated and centrally-managed operation.)  

(2) I wonder if Mr. Bellmore's quarrel is really with McCulloch v. Maryland (which an originalist could quarrel with, but it would take a very weak view of precedent to back away from it now).  Nonetheless, I like his counterpoint of the "convenient and eh, whatever clause": there must be some limit to Congress' ability to leverage interstate commerce to reach whatever it wants, or the necessary-and-proper clause renders the rest of Article I, Section 8 irrelevant.  That's the core power of the "there must be some limit" argument in the health care litigation.  I don't dispute that; I only expressed some doubts about whether the ACA is the place to draw the line (assuming my view of the industry in (1) is right).   Again, I think the focus must be on the "proper" part of the clause: the problem with the individual mandate, if there is one, must be not that it isn't sufficiently related to interstate commerce to be "necessary" [in the McCulloch sense], but that it is such an intrusive form of regulation upon individuals that it isn't "proper."  Put another way, if you think the problem is just that insurance isn't "interstate" (or "commerce"), then an individual mandate in sectors that clearly are "interstate" and "commerce" like cars or broccoli should be constitutional.  I don't think most people who object to the health care mandate think that's the right answer, so it seems that this case really turns on the nature of the mandate, not the nature of the product.

RELATED: David Kopel: The PPACA in Wonderland.

UPDATE:  Brett Bellmore adds:

A few large companies? I'm not sure that's an accurate description. Sounds more like a bunch of franchises renting out the nationwide name, to me. But that's one of the questions here. If you locally sell something in Iowa, and you locally sell something in Georgia, I suppose you can call this part of a national market, in that the intra-state transactions are happening in all parts of the nation. But does that mean they're not intra-state anymore? Not by my understanding of "intra-state."

Jeremy Bailey on Charles Thach's "Creation of the Presidency, 1775-1789"Michael Ramsey

Jeremy Bailey: Founding Executive Power in America (reviewing Charles Thach, The Creation of the Presidency, 1775-1789 [Liberty Fund 2007, originally published 1923]).  Bailey says: "Thach’s slender volume is an essential tool for anyone interested in understanding the forming of the presidency.  To my knowledge, it is simply the best short reference on the subject."  I agree, and that's an astonishing statement to make in 2012 about a book first published in 1923.  In developing my views on executive power I owe an enormous debt to the great work of Charles Thach -- all the greater for it being only 177 pages long.

Though Thach's work has numerous lessons, his central proposition is that the grant of "executive Power" in Article II, Section 1 has substantive content -- indeed, that it's hard to understand the Constitution in any other way.  Anyone who thinks it doesn't have substantive content needs to read Thach and come to terms with his timeless, understated yet overpowering statement of the most important step in understanding constitutional executive power.

Timothy Sandefur Responds to Mike Rappaport on Originalism and PrecedentMichael Ramsey

At the Pacific Legal Foundation's PLF Liberty Blog, Timothy Sandefur: Does Originalism Really Lead to an All-Powerful Supreme Court? (responding to this post by Mike Rappaport at Liberty Law Blog).  To oversimplyfy a bit, the debate addresses whether originalism can encompass binding precedent (Sandefur says no, Rappaport says yes).

The Intersection of Originalism and Jot-for-Jot IncorporationAllen Rostron

[For this post we welcome guest blogger Allen Rostron, the William R. Jacques Constitutional Law Scholar and Professor of Law at the University of Missouri–Kansas City School of Law. You can reach him by e-mail at rostrona@umkc.edu.]

Across the nation, judges have been busy producing a steady stream of opinions fleshing out the meaning of the right to keep and bear arms in the aftermath of the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. One of those opinions contains a brief passage raising an intriguing question, about the interaction between originalism and the incorporation doctrine, that has largely escaped notice.

After the Supreme Court struck down Chicago’s handgun ban in McDonald, the city responded by revising its ordinances to allow possession of handguns but to impose various requirements for a firearm permit, including completion of at least one hour of training at a firing range. Chicago also prohibited the operation of shooting ranges within the city limits, prompting a lawsuit, Ezell v. City of Chicago, claiming that this violated the right to keep and bear arms by forcing permit applicants to journey outside the city to visit a range for their training.

While the district court saw no significant burden on the right to keep and bear arms, the Seventh Circuit disagreed. It gave Chicago a chance to present evidence justifying the ban on firing ranges, but indicated that the challenged ordinance was probably invalid. Chicago relented and repealed its ban on firing ranges.

Buried in the Seventh Circuit opinion, however, was an important but questionable assertion about originalism and incorporation of the right to keep and bear arms. The opinion, authored by Judge Diane Sykes, observed that Heller requires an originalist approach to interpreting the Second Amendment. In other words, when deciding whether a federal law violates the Second Amendment, judges should be asking what the right to keep and bear arms meant at the time when the Bill of Rights was proposed, debated, and ratified. So far, so good. But Judge Sykes went on to suggest that when considering whether a state or local government action violates the right to keep and bear arms, as incorporated into the Fourteenth Amendment, the analysis must be “carried forward in time” to the period when that Amendment was added to the Constitution.

That sounds perfectly sensible. Justice Scalia’s opinion in Heller obviously endorsed quite strenuously the notion that courts should strive to determine a constitutional provision’s original meaning. If one accepts that premise, then interpretation of the Second Amendment should be based on what the founding generation thought about gun rights, and interpretation of the Fourteenth Amendment’s incorporated right to keep and bear arms should be based on the understandings that prevailed eight decades later. As Judge Sykes put it, we must look “at the relevant historical moment – 1791 or 1868.”

The problem is that this disregards one of the key elements of what the Supreme Court decided about incorporation in McDonald. The Court declared that every incorporated right, including the right to keep and bear arms, must mean exactly the same thing as applied to state and local governments through the Fourteenth Amendment as it means when applied to the federal government through the Bill of Rights. The majority of the Court in older cases like Malloy v. Hogan (1964) and Duncan v. Louisiana (1968) had taken that same “jot-for-jot” or “one-size-fits-all” approach to incorporation. But until McDonald, some uncertainty lingered about whether incorporation always must operate in that way, or whether courts instead have the flexibility to tailor a right so that it is stronger (or weaker) or broader (or narrower) when applied to state and local governments via incorporation. The majority in McDonald eliminated that uncertainty, insisting that the strength and scope of every incorporated right must be exactly the same within the Fourteenth Amendment as within the Bill of Rights.

The Seventh Circuit therefore cannot be correct in advising that judges should look to 1791 when considering a Second Amendment challenge to a federal law but should focus on 1868 in cases concerning state or local laws. The Supreme Court’s decision in McDonald clearly ruled out such a two-track approach. Even if the meaning of the right to keep and bear arms in 1868 remained very close to what it was in 1791, this is a matter on which close is not good enough. McDonald demands that the right, in every contour and dimension, must be exactly the same regardless of whether the Second Amendment applies directly or through incorporation.

The way to achieve that perfect symmetry, while being faithful to the originalist approach, would be to assume that jot-for-jot incorporation of fundamentally important freedoms like the right to keep and bear arms was a part of the Fourteenth Amendment’s original meaning. In other words, an originalist judge could strive to interpret the Fourteenth Amendment according to what it meant to people in 1868, but conclude that those people understood the Amendment as calling for important rights to receive the same degree of protection that such rights enjoyed under the measures ratified as the Bill of Rights in 1791. Voilà! Looking for the original meaning of 1868 leads us straight to the original meaning of 1791, and we wind up with jot-for-jot incorporation happily reconciled with the originalist theory of interpretation. The end result is a unitary right to keep and bear arms, with 1791 as the key historical moment for the analysis regardless of whether a federal, state, or local government action is at issue. Of course, events, pronouncements, or sources from the 1860s or any other era might still be cited to help bolster conclusions about what the right meant in 1791, but 1791 is ultimately the only point in time that really matters.

The Seventh Circuit’s error on this point is quite understandable, for Justice Alito’s and Justice Thomas’s opinions in McDonald dwelled at length on historical evidence about what people thought of the right to keep and bear arms circa 1868, giving the impression that 1868 was the crucial point in time for a case about a local gun law like the Chicago handgun ban. But that is because McDonald needed to resolve the preliminary issue of whether the right to keep and bear arms was fundamentally important enough to deserve incorporation. To determine whether that right was part of what it meant to receive due process of law under the Fourteenth Amendment, the key point in time was 1868. But once the Supreme Court in McDonald made the threshold decision to incorporate the right, the need to focus on 1868 was over, and 1791 became the crucial time for the lower courts to consider in assessing everything else about the right and deciding what gun laws should be upheld or struck down.

I suspect that this flaw in the Seventh Circuit’s reasoning, while interesting in theory, will never actually make a difference for the outcome of any real cases. As I explained in an article recently published in the George Washington Law Review, I think the courts have largely been pretending to follow the Supreme Court’s direction to use historical analysis of original meaning to decide cases about the right to keep and bear arms. Judges instead decide cases principally on public policy grounds. Sometimes they dress their analysis in the garb of historical inquiry, but often they do not even bother to do so. Investigation of original meaning does not truly drive the decisionmaking, simply because the available evidence of original meaning is inadequate to answer clearly the specific questions that arise today concerning gun laws. What would people in 1791 (or 1868, for that matter) have thought about laws that prohibit people from possessing guns while subject to domestic violence restraining orders or after being convicted of misdemeanor crimes of domestic violence? What would they have thought of a law that prevents a person from purchasing a handgun from a licensed gun dealer until the age of 21? No one really knows.

In the end, a judge who is inclined to uphold a particular sort of gun law is going to find justification for doing so regardless of whether she treats 1791 or 1868 as the crucial time frame for the analysis. And likewise, a judge who wants to strike down a law is going to find a basis for doing so no matter what year is the target of her historical inquiry. Fretting about whether 1791 or 1868 is the correct year on which to focus is much ado about nothing if, as I suspect, the investigation of original meaning is largely a pretext that conceals what actually drives judges’ decisions in gun cases.

MICHAEL RAMSEY ADDS:  Professor Rostron seems right to point out "jot-for-jot incorporation" as a bit of a dilemma for originalists.  As he suggests, Justice Alito's opinion in McDonald adopted it purely as a matter of precedent, on the strength of the Malloy case and others.  (See 130 S.Ct., p. 3048).  That's a convenient pragmatic solution but it doesn't solve the problem from the perspective of an originalist who doesn't accept the authority of precedent or who takes a narrow view of precedent (after all, there was no precedent requiring jot-for-jot incorporation of the Second Amendment, only jot-for-jot incorporation of other amendments).

Further Thoughts on Insurance and CommerceMichael Ramsey

A reader sends these thoughts on Dan Coenen's article The Originalist Case for the Individual Mandate and my further comments:

It strikes me that Coenen does not define what he means by originalism (there are no citations to you, Jack [Balkin], [Mike] Rappaport, etc. about different modes of originalism).

The briefs of the challengers, and the tenor of arguments, really struck me as pragmatic/slippery slope arguments first, and originalist arguments as an afterthought. Randy [Barnett]'s unprecedented argument was premised on working within existing precedents from the New Deal, and not resorting to originalism.

At best, the challengers's briefs made some references to The Federalist, Blackstone, and "the Founders," "the Framers," "the Founding generation," etc. But I am not sure if this case, unlike Heller or McDonald, is really about originalism.

Also, do you think that citing a Marshall opinion or McCulloch or Gibbons v. Ogden is an originalist argument? This strikes me as a tough argument.

I'll take on the last point (since I agree with the others).  It's obviously a difficult question how far into post-ratification history one can go and still get useful information about the understandings of the founding era.  My view is that evidence from the McCulloch/Gibbons era (1819-1824)  is weak but not irrelevant.  Some of the key leaders of the founding were still alive at that point, as were many people who had known and been heavily influence by leaders of the founding.  Marshall himself was an important voice in the ratification debates, as well as in some of the early debates over implementing the Constitution.  Moreover, many of the constitutional issues resembled ones prominent in the founding era.  As with all post-ratification evidence, I would be careful to consider the post-ratification political and institutional biases of the speaker (for Marshall, as a moderate nationalist, anti-Jeffersonian and leader of the judiciary), and I'd discount the circa-1820 evidence even more for its relative remoteness from the founding.  But I don't see reasons for originalist inquiry to disregard it altogether -- that time (and especially people such as Marshall) still had material ties to the founding.

I do think that by the end of the 1830s the link to the founding was so thoroughly broken that evidence from that time would be questionable -- by then the founders were gone and the leading constitutional issues, especially expansion and slavery, were of a very different cast from the founding era.

More on Insurance and CommerceMichael Ramsey

In response to my post on Dan Coenen's "The Originalist Case for the Individual Mandate" and Larry Solum's comment that "one of the key questions for originalists [should] be whether insurance contracts constitute 'commerce,'" Brett Bellmore writes:

I would have thought that the key question would, instead, be whether insurance contracts, (Let alone the decision not to enter into them!) constitute interstate commerce.

Two comments:  (1) In Paul v. Virginia, Justice Field said that insurance contracts, in addition to being not commerce, also weren't interstate:

[Insurance contracts] like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different States. The policies do not take effect -- are not executed contracts -- until delivered by the agent in [the state of the insured's residence]. They are, then, local transactions, and are governed by the local law. They do not constitute a part of the commerce between the States any more than a contract for the purchase and sale of goods in Virginia by a citizen of New York whilst in Virginia would constitute a portion of such commerce.

Like many things Justice Field wrote, I find this unpersuasive.  An insurance contract isn't like a local purchase-and-sale because it's an on-going obligation (like a loan), and when entered into by parties in different states the continuing obligation crosses state lines.  Thus it's interstate, as I think cross-border loans were always understood as interstate.  So it's right that this is an important question to ask, but I think the answer favors the individual mandate.

(2) I agree with Mr. Bellmore's implication that the decision not to enter into an insurance contract isn't commerce nor is it interstate.  Indeed, I don't really see a plausible counterargument.  But that's not the end of the discussion, because Congress' necessary-and-proper power could potentially reach a non-interstate non-commercial (in)activity.  Thus the difficult question is whether the mandate is necessary (and proper!) to regulation of the interstate insurance market.

 

Jack Balkin: The Roots of the Living ConstitutionMichael Ramsey

Jack M. Balkin (Yale Law School) has posted The Roots of the Living Constitution (Boston Univ. Law Review, forthcoming) on SSRN.  Here is the abstract:

This essay discusses David Strauss's The Living Constitution (2010), comparing his theory of common law constitutionalism with the account of living constitutionalism featured in my 2011 book, Living Originalism.

Strauss’s short book focuses primarily on Supreme Court decisions and common law adjudication to explain American constitutional development. As a result, its portrait of the processes of constitutional change is incomplete.

An emphasis on common law decisionmaking inevitably deemphasizes other important features of American constitutional development. These include (1) the role of political parties, social movements, interest groups, civil society organizations, and litigation campaigns in changing popular and elite understandings of the Constitution and eventually reshaping constitutional law; (2) the importance of the judicial appointments process and strategies of partisan entrenchment in changing legal doctrine and generating constitutional revolutions; and (3) the role that federal judges play as part of the national political process in legitimating, policing and maintaining the existing constitutional regime.

These features of constitutional development, in which federal judges play only one part, are the real motors of change in America's living Constitution. They offer a better descriptive account of constitutional development in the United States than the model of common law reasoning. Equally important, attention to these institutional features offers a better normative account of constitutional change. These institutional features help explain how the work of courts -- when properly viewed as only one part of a larger system of constitutional development -- can promote the democratic legitimacy of the political system as a whole.

Via Balkinization, where Professor Balkin has additional comments.

Dan Coenen: The Originalist Case for the Individual MandateMichael Ramsey

Dan T. Coenen (University of Georgia Law School) has posted The Originalist Case for the ‘Individual Mandate’: Rounding out the Government’s Argument in the Health Care Case on SSRN. Here is the abstract:

The Supreme Court has now received the briefs and heard the oral arguments in the landmark case that concerns the federal health care law. Much attention has focused on the law’s minimum coverage provision, or so-called "individual mandate," and in particular its constitutionality under the Commerce Clause and the Necessary and Proper Clause. This Article offers two observations about the arguments made to the Court on that issue. First, it shows that the challengers of the minimum coverage provision adopted a strategy of emphasizing originalist reasoning, while the federal government focused its defense of the law on practical considerations and modern precedents. This difference in tactics, it is suggested, may prove to be of great consequence to the outcome of the case in light of the current Court’s marked receptivity to originalist analysis. Second, the Article suggests that – contrary to the impression created by the submissions of the parties – there are in fact powerful originalism-based reasons for concluding that the minimum coverage provision is constitutional. Indeed, according to the treatment offered here, these arguments have their roots in in all key elements of originalist discourse – the text of the Constitution, the background understandings that gave rise to the relevant clauses, and early congressional and judicial precedents. To be sure, different observers who take different views of constitutional analysis will reach different conclusions about the constitutionality of minimum coverage provision. But this Article contends that originalism-based arguments that were not fully aired before the Court cut strongly in favor of the provision’s constitutionality.

Via Larry Solum at Legal Theory Blog, who comments:

I would think that one of the key questions for originalists would be whether insurance contracts constitute "commerce". The briefs in support of the challenge to the individual mandate provisions of the Affordable Care Act assume that United States v. South-Eastern Underwriters Association, the New Deal era case extended the commerce power to insurance, is good law, but Paul v. Virginia, the 19th Century case holding to the contrary, might be defended on originalist grounds. Coenen's piece briefly touches on this issue (page 41, footnote 173), but does not examine the correctness of South-Eastern Underwriters as an originalist matter.

I don't have a strong view on the issue Professor Solum raises, but I wouldn't see Paul v. Virginia as indicative of anything:  it's an 1869 opinion by Justice Field, who wasn't much of an originalist (among other things, he's the author of Chae Chan Ping v. United States [the Chinese Exclusion Case], which couldn't be bothered to find an originalist explanation for the federal power over immigration).  Almost the entirety of Field's argument in Paul is as follows:

Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration.

Compare this analysis, such as it is, to Chief Justice Marshall's description of commerce in Gibbons v. Ogden (deciding whether navigation was commerce):

The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.

Of course I don't claim that Marshall was right about everything, and even if he was right that commerce meant more than just buying and selling commodities it still might not include insurance ... but I'll take Marshall over Field as a starting point, in any event.

John Danaher on Larry Solum's Semantic OriginalismMichael Ramsey

At Philosophical Disquisitions, John Danaher: Solum on Semantic Originalism.  A long and thoughtful post, well worth reading in full.

Kurt Lash Comments on Federal Immigration Power (Updated)Michael Ramsey

In response to our various posts on federal immigration power, Kurt Lash writes to point out two important sources. 

The first is the Report of the Minority of the Virginia Legislature (1799), defending the Alien and Sedition Acts (anonymous, but attributed to John Marshall).  I’m not sure if it’s available in full online, but it’s discussed in this article by Professor Lash and Alicia Harrison (which Professor Lash is too modest to mention but I’ll mention it anyway). 

The second is Madison's Report to the Virginia House of Delegates in which Madison defends Virginia's opposition to the Alien and Sedition Acts and responds to Marshall's arguments. 

Professor Lash comments: 

If you care to dig into their arguments--especially their agreement about delegated federal powers and state power over all immigrants except those identified as "enemy" aliens-- I think you will find a great deal in support of your intuitive rejection of "inherent and exclusive" federal power over immigration.

One quick point--it seems that both Marshall and Madison viewed the executive as having exclusive federal power only over "enemy" aliens--and this as part of his powers as commander in chief.  Note also how no one sees the foreign commerce clause as having any relevance whatsoever (or, as you predicted, power over naturalization).

UPDATE: Here is a link to the 1799 Report of the Minority mentioned above.  Thanks to Andrew Hyman for the pointer.

Troy Booher: Utah OriginalismMichael Ramsey

Troy L. Booher (Zimmerman Jones Booher LLC) has posted Utah Originalism (25 Utah Bar J. 22,  2012) on SSRN. Here is the abstract:

Originalism would seem to suggest a different role for state judges in interpreting state constitutions than it does for federal judges interpreting the U.S. Constitution, especially in light of recent arguments that originalism requires judges to employ original methods in discerning the original understanding of particular provisions. Using Utah as an example, this short paper discusses a few arguments employed by originalists when discussing the U.S. Constitution that appear to yield different results when applied to state constitutions.

Some originalists point out that federal judges are not politically accountable, that the U.S. Constitution is extremely difficult to amend, and that judicial review was quite narrow in 1789 to argue that federal judges had and have no authority (i) to elaborate the meaning of constitutional text beyond how that text was originally understood or (ii) to invalidate legislation that is arguably constitutional. Based upon such considerations, Justice Scalia has argued that judges may not employ the common law method when interpreting constitutional text, but instead have authority only to discern and apply its original understanding.

But the history of the Utah Constitution is quite different. In 1896 when Utah became a state, the justices of the Utah Supreme Court were directly elected, the Utah Constitution was relatively easy to amend in the event citizens disagreed with a judicial interpretation of the Utah Constitution, and, perhaps more important, the scope of judicial review was understood to be much greater than it was in 1789. While those considerations alone are not decisive, they suggest that a mechanical application of originalist arguments concerning the U.S. Constitution to discussions of how to interpret state constitutions is unwarranted.

Via Larry Solum at Legal Theory Blog, who has some skeptical thoughts.

 

 

More from Michael Greve on John Marshall and TextualismMichael Ramsey

At Liberty Law Blog, Michael Greve has two long posts (here and here) continuing our discussion of John Marshall and originalism.  Not wanting to prolong the debate, which I think has been very useful (at least to me), I'll just say that I remain of the view that many (but far from all) of Marshall's decisions rest comfortably on the Constitution's text, although Marshall of course also used other forms of argumentation as well.  His least successful opinions, I think, are ones (like the preemption holding in McCulloch) that he tried to carry off without much text in his favor.

One further point is that, despite the title of his initial post ("John Marshall: Living Constitutionalist"), I don't read Professor Greve to be arguing that Marshall was actually a living constitutionalist.  His point is that Marshall relied on constitutional purposes rather than limiting himself to things based in the text alone.  It's a plausible version of originalism to look to non-textual purposes (though I have some views on its drawbacks).  It's a very different matter to argue, as a living constitutionalist would, that original meaning and purposes can be disregarded to take into account modern conditions.  I don't think Marshall made that claim, and I don't think Greve claims he did.  Marshall was an originalist even if he wasn't always a textualist.

Andrew Hyman: The Due Process PlankMichael Ramsey

Andrew T. Hyman has posted The Due Process Plank (Seton Hall Law Review, Vol. 43, forthcoming 2013) on SSRN.  Here is the abstract:

The Republican Party’s national platform of 1860 is useful for interpreting the Fourteenth Amendment of the U.S. Constitution, which was written just six years later by a Republican-controlled Congress. However, the platform is frequently misunderstood. The due process plank of the platform is often portrayed as supporting the doctrine called substantive due process, but a close look at the platform shows that it did not actually support that doctrine. The due process plank aimed to protect liberty in free federal territories, rather than in areas like the District of Columbia where substantive due process would have applied equally. Congress largely stopped supporting slavery 150 years ago, in 1862, but not because of any substantive penumbra of the Due Process Clause.

Correcting “Plenary Power” Misconceptions in Arizona v. United States—The Founding Generation’s and Federal-State Immigration PowersPatrick Charles

In response to the posts on immigration by Mike Ramsey and myself (Mike Rappaport), Patrick Charles is submitting a guest post.  Some of Patrick's other works are available here.  

In two posts on Arizona v. United States, Michael Ramsey and Michael Rappaport provided some interesting commentary on federal-state immigration powers.  Ramsey, who posted first, makes a number of comments that do not comport with the historical record, including (1) there is no link between immigration powers and the Naturalization Clause, (2) the Supreme Court’s plenary power doctrine seems to be in violate of the Tenth Amendment, (3) any “admit or not admit” powers was “originally understood as an executive power of the President,” and (4) immigration plenary power does not support a “dormant” foreign affairs doctrine (agreeing with Julian Ku).  Rappaport then follows suit through mostly a textualist approach, and correctly points out that the Constitution does not grant any specific “immigration” powers.   It is for this reason that Rappaport concludes:

“[T]he Constitution does not allocate the power over immigrants to one entity, but instead to a variety of entities, including the Congress, the President, and the states.  Congress has the power to regulate commerce with foreign nations and that probably allows it to prevent immigrants from entering the United States through commercially regulable entities, such as ships and international highways.  Thus, this explains, if nothing else does, the Constitution’s prohibition on the migration or importation of persons.” (emphasis added)

Both Ramsey and Rappaport’s claims are problematic for anyone who has examined the historical record or read the volumes of historical scholarship in this area.  I will say, however, that Ramsey and Rappaport’s claims are amenable compared to that of Peter J. Spiro who audaciously claims the Founders maintained “no views of any kind on federal control of immigration, the power over which is not found in the Constitution itself.”  Not true, not true at all. This author alone has addressed such frequent misconceptions in two law review articles—The Plenary Power Doctrine and the Constitutionality of Ideological Exclusion (Texas Review of Law and Politics), and Recentering Foreign Affairs Preemption in Arizona v. United States (Cleveland State Law Review).

To truly understand the Founders’ view of immigration and sovereignty, one must begin with the Declaration of Independence.  One of the grievances stipulated that the crown “endeavored to prevent the population of these States; for that purpose obstructing the Laws for migrations hither.”  This grievance was in reference to the crown usurping what was seen as colonial authority.  It is a historical point of emphasis that as eighteenth century American political thought progressed, the idea of virtual representation made less sense, and the colonists sought to establish a government built upon the “consent of the governed” with equitable principles diffused throughout.  Obviously, one of subjects of “consent” was the rules respecting immigration, which was intertwined in international law.  The Declaration’s reference to “Laws of Nature” and “Nature’s God” had nothing to do with individual natural rights, and everything to do with the law of nations, what was often referred to as the “laws of Nature” or “Nature’s God.”  In fact, following the Declaration, the Continental Congress offered our first amnesty to Hessian auxiliaries:

“Whereas it has been the wise policy of these States to extend the protection of their laws to all those who should settle among them, of whatever nation or religion they might be, and to admit them to the participation of the benefits of this practice, as well as its salutary effects, have rendered it worth of being continued in future times…Resolved, Therefore, that these states will receive all such foreigners who shall leave the armies of his Britannic majesty in America, and shall chuse to become members of any of these states; that they shall be protected in the free exercise of their respective religions, and be invested with the rights, privileges and immunities of natives, as established by the laws of these states....” (emphasis added)

In conjunction with the drafting of the Declaration of Independence, the Continental Congress authorized the drafting of the Articles of Confederation.  The Articles were not drafted for another year (1777), and not ratified for another seven years (1783), yet were only in full force for four years (1783-1787).  One of the reasons for dispensing with the Articles were the negative implications it could lead to in terms of foreign affairs, naturalization, citizenship, and immigration.  This historical fact is unquestioned by historians. 

Certainly, Ramsey, Rappaport and others are correct that the Constitution says nothing of “immigration” or “alien” powers, but such powers were unquestionably vested with the federal government in order to prevent foreign embarrassments.  It was an attribute of national sovereignty consistent with the law of nations.  In terms of any Tenth Amendment argument, not only does this stance fail to understand what prompted the adoption of the Constitution, but no state constitution I know of ever claimed concurrent or any authority over immigration, migration, or alien powers (this excludes the states’ power to grant or not grant their respective privileges and immunities). This fact makes it problematic for the textual originalist, and serves as another example as to why textualism is often doctrinally problematic as a starting and end point.  (I have addressed this before on Originalism Blog when analyzing the Press Clause here). 

Just to drive the “textualist” problem home with the words “immigration” or “migration,” upon a full text search for the words “immigration” or “migration” in a digital database of all American broadsides and pamphlets through 1800, only a handful of “immigration” hits appeared contemporaneous with the Constitution.  The same held true for “migration” when one limited the search to legal documents, books, and treatises (there were plenty of references to the term in non-legal works).  And in almost every case, the word “migration” came from a reprint of the Declaration of Independence’s text.

San Diego Originalism Conference to be held Feb. 15-16, 2013Michael Ramsey

I’m pleased to make the following conference announcement on behalf of my colleagues at the USD Originalism Center:

On February 15-16, 2013, the Center for the Study of Constitutional Originalism at the University of San Diego Law School will hold its Fourth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference. The conference will include approximately 6 unpublished papers on originalism, with separate commentators, and then questions from the other participants at the conference.

We invite submissions of originalism works-in-progress for the Fourth Conference.  A work in progress is a draft paper in article form that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of a one to three page abstract (and, if you like, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference. Submissions should be sent to Mike Rappaport (mrappaport@gmail.com); they may be sent now, if possible, but in any event by the end of August.

We will ask that the selected papers be circulated to conference participants in mid January, 2013.  The Center will cover travel expenses, lodging, and meals for paper authors and commentators.

In addition to paper authors and commentators, all scholars who do work on originalism are invited to attend and participate in the conference by reading the papers and joining in the discussion.  The Center will provide the principal meals for those attending the whole conference but not giving a paper or serving as a commentator.

This has been a great conference in the past, and I'm sure will be next year as well.  For information on the Third Annual Conference, held this past February, and a videotape of the proceedings, see here.  For information and videotapes of the first two conferences, see the Center's Website. For Stanley Fish's discussion of the Third Conference on his New York Times Blog, see here.  I look forward to seeing a great group of scholars in San Diego next February (which is, I might add, a pretty nice time of year out here).

Is There a Power to Regulate Immigration? Some Preliminary ThoughtsMike Rappaport

Mike Ramsey has a post discussing Congress power to regulate immigration under the original meaning of the Constitution.  I largely agree with Mike, but would like to develop the argument a bit more.  I should note that my argument here is not based on extensive research.  Instead, it is my sense of the original meaning now and what I believe that a more exhaustive review would establish. 

The original meaning of the Constitution does not give Congress the power to regulate immigration as such.  Let’s repeat this: there is no specific power over immigration.  So the Supreme Court appears to have badly misinterpreted this issue by claiming that Congress has the power to regulate immigration based on its inherent powers.  See The Chinese Exclusion Case (1889)

If the Constitution does not grant a specific power to Congress to regulate immigration, then does that mean Congress has no power over immigration?  Could the Framers really have intended to preclude Congress from exercising such power? 

Here I think the answer is complicated, but the short answer is that the Constitution does not allocate the power over immigrants to one entity, but instead to a variety of entities, including the Congress, the President, and the states.  Congress has the power to regulate commerce with foreign nations and that probably allows it to prevent immigrants from entering the United States through commercially regulable entities, such as ships and international highways.  Thus, this explains, if nothing else does, the Constitution’s prohibition on the migration or importation of persons.

But this certainly does not cover all immigration.  A person walking over the border through the country-side would likely not involve commerce.  This action certainly could be restricted by the states.  But what if a state does not want to restrict the immigrants?  Could the Constitution really leave this to the states?  And I think the answer is, yes!  At the time of the Framing, the country generally embraced new immigrants, since it had plenty of room and needed labor.  It was not focused on preventing immigrants from entering.  (I also make this point in this article.)

Finally, as Mike Ramsey, suggests, one might conclude that the President enjoys, as part of his executive power, the authority to grant passports.  And therefore Congress can, under the Necessary and Proper Clause, prohibit entry into the United States without the President’s permission.  I am not as confident as Mike is of this type of argument, but it is certainly a very plausible interpretation.  But note an important implication of it.  Congress cannot control which immigrants the President allows to enter.  Instead, it can only impose penalties for those who enter without his permission.  Thus, it does not get us the current immigration power.  Again, this is a plausible result, given that the Framers were not focused on preventing immigration.

The politics of this position are interesting.  Conservatives are thought to be against unrestricted immigration and therefore should dislike this interpretation.  Liberals might like it for favoring immigration, but oppose it because they like broad national authority.  However one settles the politics, what is interesting is that the original meaning here does not clearly favor the conservative political position -- even though the original meaning is often assumed to further conservative political positions generally.   

(Cross Posted on the Liberty Law Blog)

The Greater Originalist: Scalia, Thomas, and the Legitimacy of PrecedentMike Rappaport

As Mike Ramsey indicated, Tim Sandefur had a post up recently claiming that Justice Thomas is the greater originalist, not Justice Scalia (as Lee Strang had claimed).  I don't necessarily disagree with Sandefur -- I think that both Scalia and Thomas have their virtues.  But I do strongly disagree with one aspect of Sandefur's post where he says: 

But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach, but it’s logically valid. On the contrary, I know of no evidence that the framers believed that precedents should be clung to even where it contradicts the Constitution’s meaning.

(emphasis added).  Well, I do know of some evidence that the Framers believed that precedents both would and should be followed as to the Constitution.  I discuss it in this article (co-authored with John McGinnis), where we show that precedent was a widely followed practice of long-standing within the Anglo-American legal system at the time of the Constitution, that several Framers anticipated it would be applied to the Constitution, that no Framer argued it would not be applied to the document, and that it was applied in the early years under the Constitution.  We also explain the textual basis for following precedent.     

While I believe that certain precedent rules should be applied to the Constitution, that does not mean that all precedent approaches are equally legitimate.  Justice Scalia has been criticized for not adopting a consistent approach to following precedent and that may be true.  But the claim that all precedent is unconstitutional or illegitimate is, in my view, quite mistaken. 

(Cross Posted at the Liberty Law Blog)

Greve on Originalism and Chief Justice MarshallMike Rappaport

Over at the Liberty Law Blog, my co-blogger, Michael Greve, has criticized Mike Ramsey’s and Clarence Thomas’s view of preemption.  (Given the numerous people named Michael in this post, I will refer to people by their last names.)  Ramsey has respond on his own here.  But Greve has also criticized the Originalism Blog, saying:  

Truth be told, I can’t think of a single Marshall opinion (let alone a Story opinion—Martin v. Hunter’s Lessee or Swift v. Tyson, anyone?) that would pass muster on the originalism blog. The reason is no great mystery: every notable Marshall opinion either starts with or soon turns on the purpose of the statute or constitutional clause at issue. And by the lights of (positivist, clause-bound, textualist) originalism, that is verboten. 

I am tempted to respond to Greve’s discussion of originalism (and the Originalism Blog) as Inigo Montoya responded to Vizzini: "You keep using that word. I do not think it means what you think it means."

Originalism, even the type that exists on the Originalism Blog, is not generally inconsistent with Chief Justice Marshall’s opinions.  In fact, I think Marshall was in the main a leading originalist/textualist.  Consider, as just one example, Marshall’s opinion in Sturges v. Crowningshield:

Before discussing this argument, it may not be improper to premise, that, although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerons in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.

As this quotation suggests, Marshall believed that the words were extremely important and were to be respected.  Thus, Marshall was a textualist.  But Marshall also recognized that when the words were ambiguous – or when they conflicted – that reference to structure and purpose should be employed.  I generally agree with this last direction.  The key point here is that one can only consider purpose and structure when the words are ambiguous! 

Of course, Marshall had other fish to fry, and he was, in addition to being an originalist/textualist, also someone who sought to strengthen the national government, the federal judiciary, and economic rights.  So Marshall’s other goals may have led him – either consciously or subconsciously – to misinterpret the Constitution, but that does not change the fact that his methodological principles were mainly originalist/textualist. 

"Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?"Michael Ramsey

At Opinio Juris, Peter Spiro asks the question, and answers:

Quite possibly.  Here’s the Third Circuit’s merits opinion in United States v. Bond [decided May 3], involving a conviction under the Chemical Weapons Convention Implementation Act of 1998.  The court upheld the conviction against a Tenth Amendment attack, this after the Supreme Court last year found Ms. Bond to have standing to press the federalism claim.

As Professor Sprio notes, both the lead opinion and one concurrence called for the Supreme Court to clarify the scope of Missouri v. Holland (which allowed Congress' power to implement treaties to reach matters not otherwise within Congress' enumerated powers).  The concurrence observes:

With its shockingly broad definitions, [the Act] federalizes purely local, run-of-the-mill criminal conduct.  The statute is a troublesome example of the Federal Government’s appetite for criminal lawmaking.  Sweeping statutes like [this one] are in deep tension with an important structural feature of our Government:  “The States possess primary authority for defining and enforcing the criminal law.”

It continues:

I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it

Jonathan Adler has more here, at Volokh Conspiracy.

UPDATE:  Michael Greve discusses Bond at the Liberty Law Blog: United States v. Bond: From Broccoli to Vinegar.

Timothy Sandefur: Is Justice Scalia the Truer Originalist?Michael Ramsey

At the Pacific Legal Foundation's PLF Liberty Blog, Tim Sandefur: Is Justice Scalia the Truer Originalist? (commenting on Lee Strang's article arguing that Scalia is a more faithful originalist than Justice Thomas).  Sandefur disagrees:

Thomas believes that originalism can trump precedent. Not always, to be sure—and Thomas has been willing to stick with bad precedent when he believes that worse consequences would flow from overruling it. But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach, but it’s logically valid. On the contrary, I know of no evidence that the framers believed that precedents should be clung to even where it contradicts the Constitution’s meaning. Strang’s only argument on his point is to say that the phrase "the Judicial Power" in Article III, section 1 of the Constitution "requires federal judges to give constitutional precedent, including nonoriginalist precedent, ‘significant respect.’" But even if one accepts this, it hardly requires a justice to stick with a constitutional interpretation that he believes to be wrong. To read it that strongly would make precedent trump even the Constitution—and that would mean that whatever the Court says just is what the Constitution means—and that, of course, contradicts the basic premise of originalism.

Michael Greve on PreemptionMichael Ramsey

At Liberty Law Blog, Michael Greve has an interesting post objecting that I (and Justice Thomas) have too narrow a view of preemption.  In particular, he says, a textualist approach to preemption, reflected in Justice Thomas’ concurring opinion in Wyeth v. Levine, conflicts with Chief Justice Marshall’s approach in such great cases as Gibbons v. Ogden and McCulloch v. Maryland. 

To restate, the view I expressed is that the conflict necessary for a federal law to displace a state law under Article VI's supremacy clause should arise from the federal statute's text, not from a judicial guess as to the statute’s purpose.  That arises partly from Article VI itself, which gives supreme status to what was enacted, not what may have been intended.  And as a practical matter, statutes often don’t have a single readily-determinable purpose beyond their text; statutes often reflect compromises between competing goals -- or, put differently, an accommodation of various interests.  If a court picks one of those interests as the overriding “purpose” and treats it as if it had been enacted, the court creates a statute very different from the one actually passed.  On the other hand, if a conflicting federal purpose does follow unmistakably from the text, the state law should be preempted – this isn’t a call for a clear statement rule or particular magic words.  (Crosby v. National Foreign Trade Council is a good example of the conflicting purpose being manifest in the text).

Is this view contrary to Gibbons and McCulloch, and indeed all of Marshall’s jurisprudence, as Professor Greve extravagantly claims?  I don’t think so.  Let’s start with Gibbons.  The question there was whether New York’s steamboat monopoly prevented a ship with a federal coasting license from operating between New York and New Jersey.  Marshall found the state law preempted.  Here is the core of the preemption discussion (pp. 213-15) – to me it seems well anchored in the statute’s text:

The first section [of the federal statute] declares that vessels enrolled by virtue of a previous law, and certain other vessels enrolled as described in that act, and having a license in force, as is by the act required, "and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade."

This section seems to the Court to contain a positive enactment that the vessels it describes shall be entitled to the privileges of ships or vessels employed in the coasting trade. These privileges cannot be separated from the trade and cannot be enjoyed unless the trade may be prosecuted. The grant of the privilege is an idle, empty form, conveying nothing, unless it convey the right to which the privilege is attached and in the exercise of which its whole value consists. To construe these words otherwise than as entitling the ships or vessels described to carry on the coasting trade would be, we think, to disregard the apparent intent of the act.

The fourth section directs the proper officer to grant to a vessel qualified to receive it, "a license for carrying on the coasting trade," and prescribes its form. After reciting the compliance of the applicant with the previous requisites of the law, the operative words of the instrument are,

"license is hereby granted for the said steamboat Bellona to be employed in carrying on the coasting trade for one year from the date hereof, and no longer."

... 

The word "license" means permission or authority, and a license to do any particular thing is a permission or authority to do that thing, and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license. …

Notwithstanding the decided language of the license, it has also been maintained that it gives no right to trade, and that its sole purpose is to confer the American character.

The answer given to this argument that the American character is conferred by the enrollment, and not by the license, is, we think, founded too clearly in the words of the law to require the support of any additional observations. The enrollment of vessels designed for the coasting trade corresponds precisely with the registration of vessels designed for the foreign trade, and requires every circumstance which can constitute the American character. The license can be granted only to vessels already enrolled, if they be of the burthen of twenty tons and upwards, and requires no circumstance essential to the American character. The object of the license, then, cannot be to ascertain the character of the vessel, but to do what it professes to do -- that is, to give permission to a vessel already proved by her enrollment to be American, to carry on the coasting trade.

It's true that there may be another way to read the statute – that the license signifies only federal approval, subject to additional state requirements as applicable.  I think that’s a strained reading, as the statute says federally licensed ships “shall be … entitled to the privileges” of coastal trading, which sounds like an affirmative right to trade, not a mere conditional approval.  But in any event Marshall said the preemption came from the text, not from an extra-textual exploration into purpose: “The word ‘license’ means permission or authority” and a “license … transfers to the grantee the right to do whatever it purports to authorize.”

McCulloch is more difficult.  There the question was whether the state could tax a federal entity (the Bank of the United States).  Even without an express statement, Congress’ creation of the Bank unmistakably carries with it a direction that the state not prevent the Bank from operating – as, for example, by imposing a discriminatory and confiscatory tax.  That was arguably the situation in the case, as Maryland demanded $15,000 – quite a sum at the time – to operate, and state banks were not charged that amount.

But Marshall went further, saying that all state taxes of the Bank (and apparently all state taxes of federal entities) were preempted because “the power to tax is the power to destroy.”  (He may have meant this as a constitutional rule – the opinion is unclear – but I’ll treat it as a preemption holding).  This result seems dubious as a textual matter – it does not automatically follow from any particular text, and indeed is an unfortunate example of adjudication by aphorism.

We can easily imagine that if Congress had proposed an express statutory tax exemption for the Bank, the states would have resisted with enough political force to block it.  (Especially because at that time Senators were appointed by the states).  The law as actually enacted might well be a compromise between the national interest in an unconstrained Bank and the state interest in taxing entities doing business in the state.  For the Court to then say that even a reasonable non-discriminatory tax would be preempted would award the nationalists a victory they couldn’t win in Congress.  And it would preempt the state law due to a conflict with something that wasn’t (and as a practical matter wouldn’t have been) enacted – contrary to Article VI.

Moreover, allowing some state taxes would hardly be a disaster – Congress could pass an exemption if it wanted to, and if the danger to the Bank from state taxes was real Congress would surely do so quickly and easily.  So although McCulloch may have reached the right result on the particular facts, I agree that Marshall’s reasoning isn’t textualist enough for my taste.

That doesn’t worry me.  We shouldn’t make a fetish of Marshall.  He was a great man and a great Chief Justice, to be sure, and much closer (even in 1819) to the thinking of the founding era than we are.  But that doesn’t mean he didn’t make mistakes, or allow his own position and impulses (which were moderately nationalist) to govern his reasoning at times.  (For some delightful gentle-yet-devastating criticism, see David Currie’s classic The Constitution in the Supreme Court: The First Hundred Years).

At the same time, I think Greve grossly overstates the extent to which Marshall’s reasoning in general was non-textual (even saying that he "can’t think of a single Marshall opinion" likely to pass textualist muster).  In addition to Gibbons, how about Hodgson v. Bowerbank (Article III’s grant of alienage jurisdiction means what it says) or Hepburn v. Ellzey (District of Columbia isn’t a “state” for Article III purposes)?  Or, for that matter, Marbury, which rests in significant part on the language of Article III and Article VI.  More importantly, I don’t think any of the cases Greve mentions have fatal textualist objections – Brown v. Maryland, or Justice Story’s opinions in Martin v. Hunter’s Lessee or Swift v. Tyson (though the latter is quite a complicated question).  Although these opinions may discuss how their results are consistent with the enactors’ likely purposes – surely a legitimate point to make – at bottom they all invoke plausible interpretations of specific text.

I'll conclude with a note on Wyeth v. Levine, the modern preemption case Professor Greve criticizes in his post and in his important and insightful book The Upside-down Constitution.  The question there was whether the FDA's labeling requirements for a prescription drug preempted additional labelling requirements at the state level.  I don't have a strong view on the outcome, although it does seem that (as the majority opinion said) there was some ambiguity about whether the FDA-approved label was a minimum requirement or (as in Gibbons) a license.  But I don't think it's a big deal if the Court erred slightly in the state's favor.  It would surely not be a problem for the FDA to clarify that it intended a maximum as well as a minimum.  And national entities are much more likely to correct errors in that direction than the other, so it makes sense to hold them to their text, and let their broader purposes, if there are any, be added through the political process rather than the courts.

Todd Zywicki: Would the Constitution Look Different If the Framers Had Known that Senators Would Be Elected in Partisan Elections?Michael Ramsey

Todd J. Zywicki (George Mason Law School) has posted The Senate and Hyper-partisanship: Would the Constitution Look Different if the Framers Had Known that Senators Would Be Elected in Partisan Elections? (Georgetown Journal of Law and Public Policy, Symposium on Hyperpartisanship and the Law) on SSRN.  Here is the abstract:

This article is a contribution to the symposium "Hyperpartisanship and the Law," sponsored by the Georgetown Journal of Law and Public Policy. The article considers the implications of direct election of United States Senators via partisan elections for the Constitution. As originally designed, the Senate was elected by state legislatures and the Framers anticipated (naïvely perhaps) that the Senate would be comprised of men chosen on the basis of distinction and ability rather than partisan allegiances. That system was changed in 1913 with the enactment of the Seventeenth Amendment, which adopted direct election of Senators. This article asks whether the Constitution would look different if the Framers had anticipated that Senators eventually would be elected by direct election as opposed to indirect election.

In particular, I focus on the distinctive powers given to the Senate within the federal constitutional structure and the reasons articulated for why those powers were given to the Senate: the power to try impeachments, to confirm nominees, and to ratify treaties, as well as the role of the Senate in the system of bicameralism and federalism. Although it is impossible to know for sure what the Framers would have done had they anticipated direct election in partisan elections I argue that it is likely that they would not have given the power to try impeachments to the Senate in the form that they did, it is reasonable that they might have changed the system of nomination and confirmation, and is likely that they would have retained the Senate’s major role in treaty confirmation. Although direct election dramatically diluted the value of bicameralism, it is likely that they would have retained a bicameral structure for most matters anyway. Finally, it is extremely likely that had they anticipated that Senators would be directly elected they would have built in additional explicit constitutional safeguards for the protection of federalism.

Josh Blackman: Originalism at the Right Time?Michael Ramsey

Josh Blackman (South Texas College of Law; The Harlan Institute) has posted Originalism at the Right Time? (Texas Law Review See Also, 2012) on SSRN.  Here is the abstract:  

In Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make an unconventional claim — that the Fourteenth Amendment, as it was originally understood, prevents the government from enforcing laws that discriminate on the basis of sex. The authors fault Justices Ginsburg and Scalia, and everyone else for that matter, for failing to recognize two demonstrable things: first, that Section One of the Fourteenth Amendment was from its inception a ban on all systems of caste; and second, that the adoption of the Nineteenth Amendment in 1920 affected how we should read the Fourteenth Amendment‘s equality guarantee.

In this Response, I focus on the second, and in my estimation, more controversial claim: that the adoption of the Nineteenth Amendment in 1920 — fifty-two years after the ratification of the Fourteenth Amendment — should affect the way the Fourteenth Amendment‘s equality guarantee was originally understood. It is incontrovertible that subsequent amendments to the Constitution affect earlier provisions. However, to contend as Calabresi and Rickert do, that the adoption of the Nineteenth Amendment should impact the original understanding of the Fourteenth Amendment — as an originalist, rather than as a popular constitutionalist argument — strikes me as somewhat anachronistic. Is this originalism at the right time?

To ascertain the original public meaning of a text, one should consider how the provision was understood at the time of its enactment. This task requires the selection of the proper time in which to seek the text‘s semantic content. Though there seems to be one important chronological limitation, both logically and jurisprudentially: any such inquiry would have to be temporally constrained, at the latest, by the date of the enactment of the law.

In many respects Calabresi and Rickert’s methodologies bear many similarities to Jack Balkin’s Living Originalism, in that both focus on the original meaning of a law but look to events that postdate the law’s enactment to give the text legal effect. This approach echoes a broader trend in originalism discerned by then-Solicitor General Kagan, who said today “we are all originalists.” Though we may all be originalists, we all do not do it the same way — in fact, some of us don’t even do it at the right time. I close by analyzing what is originalism when everyone is an originalist in his or her own way — especially when some of the originalism is unmoored from things that are original and rely on occurrences that postdate the enactment of the law.

I especially like the phrase "originalism unmoored from things that are original."

(Via Larry Solum at Legal Theory Blog, who says "highly recommended.")

FURTHER NOTE:  Professor Blackman also has this review  of Adam Winkler's book Gunfight: The Battle over the Right to Bear Arms in America in the print version of the Texas Law Review, Volume 90 (2012).

 

Originalism and Generational ChangeMike Rappaport

Recently, we have linked to a number of legal thinkers who might be described as conservative nonoriginalists -- Charles Fried, Harvie Wilkinson, and perhaps Justice Sam Alito.  They appear to have differing philosophical viewpoints -- a certain kind of deontology, pragmatism, and Burkianism -- but all seem to reject originalism as the primary basis for constitutional law.  What is going on?

Originalism has grown mightily in recent years -- greatly expanding among libertarians and even increasing among liberals.  But one has the impression that the great majority of conservatives are originalists.  Does this trinity suggest otherwise? 

I don't think so, but part of what may be occurring is a generational disagreement.  My sense is that a very large percentage of conservative constitutional law scholars who are relatively young are originalists.  But people who grew up in an earlier period, such as Fried and Wilkinson, might be unlikely to be originalists given how criticized and unpopular the theory was when they were developing ideas about constitutional law.  Justice Alito is more of an intermediate case -- he is younger than the others and certainly spent some time at OLC in its originalist heyday, but he did attend Yale Law School when originalism was near universally condemned and Bickel, who appeared to influence him, was no originalist.     

Now that originalism has gained greater prominence, it is no surprise to see these older conservative nonoriginalists attacking it.  But that does not mean they are moving against it.  They always were against it; they just didn't feel the need to criticize back when it was less influential.

(Cross Posted at the Liberty Law Blog)