04/22/2014

Can Congress Stop a Foreign Ambassador from Entering the United States?
Michael Ramsey

The Hill reports:

President Obama on Friday signed legislation aimed at stopping Hamid Aboutalebi, Iran's would-be U.N. ambassador, from entering the United States.

The bill, offered by Sen. Ted Cruz (R-Texas) and passed unanimously in both chambers of Congress, blocks admittance to the U.S. by representatives to the United Nations determined to have "engaged in terrorist activity" against the U.S. or its allies.

Aboutalebi has admitted that he worked as a translator and negotiator for the student group that held Americans hostage in 1979 at the U.S. Embassy in Iran for 444 days. His nomination drew cries of outrage from lawmakers on both sides of the aisle who accused Tehran of using the nomination as a deliberately provocative act.

But, the account continues, the President said in a signing statement he would treat the bill as “advisory” because otherwise it would be unconstitutional as infringing on the President’s foreign affairs power:

Obama, in a signed statement attached to the measure, warned the legislation curtailed his "constitutional discretion" and that he planned to treat the law as "advisory."

... [T]he president ... warned the legislation could "interfere" with his discretion to receive or reject ambassadors, a duty explicitly outlined in Article II of the Constitution. 

Obama noted that former President George H.W. Bush attached a similar signing statement in 1990 to legislation that barred entry of any U.N. representatives who had engaged in espionage against the United States. In that statement, Bush said "curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution.”

On the merits, the President seems correct.  Unlike in the Jerusalem passport case, the power at stake here – to receive ambassadors – is expressly given to the President in what appear to be mandatory terms (he “shall” receive ambassadors).  There is a slight complication in this particular case because the ambassador is an ambassador to the UN, not to the United States, but that probably isn’t enough to make a constitutional difference: the President should have authority to "receive" him into the United States, even if not "receiving" him personally. 

I am not aware of any early practice supporting Congress. And moreover, like in the Jerusalem passport case, I'm doubtful there's an enumerated congressional power in the first place, even leaving aside the exclusivity of the President's power.   If Senator Cruz has a constitutional argument for Congress’ authority, I haven’t seen it.

I can’t help noting that this incident supports the argument Professor Prakash and I made in our Yale Law Journal article on executive foreign affairs power: that the ambassador reception clause isn’t redundant even if the President also has a generic authority over foreign affairs from Article II, Section 1.  Unlike the general Article II, Section 1 power, the specific reception power is exclusive & so can’t be overcome even by a statute within Congress’ enumerated powers.  (We argued that the reception clause made clear that Congress could not also receive ambassadors, but we didn’t think of the case of Congress seeking to prevent the President from receiving an ambassador).

On the other hand, the President should simply have vetoed the law.  I don’t see how signing the law can be consistent with the President’s duty to uphold the Constitution (if the President is convinced the law is unconstitutional).  (See Saikrishna Prakash: Why the President Must Veto Unconstitutional Laws).  That seems particularly true when the unconstitutional provision is a standalone (as I believe it was here).  It might be a different situation if Congress included an unconstitutional provision in a complex bill also containing many sections that the President believed to be constitutional and beneficial.  Also, perhaps it would be different if the Supreme Court had said that similar laws are in fact constitutional (though I doubt it).  But in the standalone circumstance, I see no textualist/originalist (or even pragmatic) justification for failing to veto.

04/21/2014

Supreme Court Will Review the Jerusalem Passport Case (again)
Michael Ramsey

The case asks whether Congress by statute may require the State Department to issue a passport to a U.S. citizen born in Jerusalem reflecting birth in “Jerusalem, Israeli.”  The President prefers to keep the political status of Jerusalem ambiguous, and the D.C. Circuit held the statute unconstitutional as infringing on the President’s diplomatic power.  On Monday the Court agreed to hear the case, now called Zivotofsky v. Kerry.  (In an earlier appeal of the same case, then called Zivotofsky v. Clinton, the Court – reversing the D.C. Circuit – found the constitutionality of the statute not to be a political question.)

As I argued when the D.C. Circuit decided the case, I think the court of appeals got the right answer for the (somewhat) wrong reason:

According to the court (Karen LeCraft Henderson writing a thorough and scholarly opinion), the President has exclusive power over recognition -- a power found not so much through text and "originalist evidence", which she finds inconclusive after careful consideration, but from longstanding practice dating to the Washington administration.  While Congress has power to legislate regarding passports, the court says, it cannot do so in a way that infringes the recognition power.  The law at stake infringes that power, because sovereignty over Jerusalem is contested and the President, as part of the recognition power, is entitled to avoid taking a position on that question.

I have less confidence that the Constitution directly gives the President an exclusive recognition power (though it might, through the ambassador reception clause).  See here for further skepticism from Jack Goldsmith at Lawfare.  Rather, I think the decisive issue is Congress' power.  The court assumes Congress has power over passports without much textual analysis.  ("Neither party has made clear the textual source of the passport power in the Constitution, suggesting that it may come from the Congress’s power regarding immigration and foreign commerce.").  It may be that Congress has some power over passports from these sources, but the Act in question has nothing to do with either of them.  Instead, it is an attempt to direct U.S. policy regarding the sovereign status of Jerusalem.  Or, put even more sharply, it is an attempt to force the President to make a diplomatic statement endorsing Israel's sovereignty over Jerusalem.

That is the exercise of a diplomatic power, not the exercise of a power over immigration or commerce.  And no other enumerated power even arguably allows Congress to exercise diplomatic power in this context.  In sum, I think the court made the case harder than it needed to be by assuming Congress had an Article I power to pass the law in the first place.  (Similarly Professor Goldsmith, who finds the case a difficult one in the post noted above, appears to assume an Article I power).

There is still the question of the source of the President's power, but this is (for me anyway) an easy one: the President's Article II, Section 1 "executive Power" includes diplomatic power, which in turn includes the power to formulate and announce the United States' position (or lack of position) on the status of Jerusalem.

So I come out in the same place as the court: the President has the exclusive power to speak for the United States on the status of Jerusalem. But rather than saying the President's power overrides Congress' power (which seems a tricky claim given the admitted lack of textual support), I would say the President has the power and Congress doesn't.  And, contrary to Professor Goldsmith, I think that conclusion rests firmly on the Constitution's text.

It’s not entirely clear whether the case in its current posture squarely presents the question of Congress’ power.  Here is the question presented (from the petitioner’s brief):

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

My view is that the statute doesn’t impermissibly infringe an exclusive presidential power so much as it exceeds Congress’ enumerated powers.  The question is probably open-ended enough that the Court can go that way if it wants.  At the oral argument in the previous case, several Justices expressed some skepticism on the source of Congress’ power (see this account of the prior oral argument from Dahlia Lithwick), although the previous opinion did not touch the issue.

The problem with the D.C. Circuit opinion, in my view, is that it may suggest other acts of Congress, though clearly within Congress’ enumerated power, infringe the recognition power.  For example, in regulating foreign commerce, I think Congress can treat foreign territory as belonging to a particular sovereign (or not) even if the President doesn't want to take a position, or takes a different position.  In this sense, the President's recognition power isn't exclusive, so long as Congress is acting pursuant to its own independent powers.  For this reason, Supreme Court review seems like a good result (in addition to further signaling that the Court is interested in separation of powers matters).

UPDATE:

Further thoughts from Peter Spiro (at Opinio Juris) here, including:

To use the vocabulary of the foreign relations canon, a Supreme Court ruling against the executive branch in Zivotofsky could severely “embarrass” the President in the conduct of foreign relations. Think unruly crowds outside U.S. embassies.

That would have been inconceivable 20 years ago. But foreign relations law is being normalized. (For an excellent take on the shift, see Harlan Cohen’s piece here.) Foreign affairs has long been immune to judicial activism; maybe no longer. The Court may still hesitate to the extent it sees some real, even uncabinable, damage to the Middle East peace process in siding with Congress on the question. The easier path would have been to duck the case altogether. By accepting review, it may already have tipped its hand in a new direction.

Unlike (I think) Professor Spiro, I applaud the "normaliz[ation]" of foreign relations law (which I would call having a rule of law in foreign affairs).  Of course, it should be an actual rule of law, not a rule of whatever judges think best.  But like the Court in the first round of this case, I don't see why courts can't play their constitutional role in foreign affairs cases, as in other cases -- as indeed they did, in foreign affairs cases from near the founding era.

But I still think the President should win this one.

Ralph Rossum (and Others) on Clarence Thomas
Michael Ramsey

At Liberty Law Forum, Ralph Rossum (Claremont McKenna) discusses his book Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (Univ. of Kansas Press 2013), with repsonses essays by Keith Whittington (Sowing the Seeds of an Originalist Future), Lee Strang (The Jurisprudence of Constitutional Restoration is Originalism, but not all Conceptions of Originalism) and Adam White ("Just, Wise and Constitutional": Justice Thomas' Legacy in Law and Politics).

04/19/2014

Randy Barnett: We the People: Each and Every One
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) has posted We the People: Each and Every One (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about "popular sovereignty," "popular consent," "higher law," and "higher-lawmaking." In this essay, I examine these claims and find them to be both highly under-theorized and deeply problematic. Ackerman’s own presentation of what he considers to be an informal process of constitutional amendment illustrates the importance of formality in protecting the rights retained by the people. And he assumes a collective conception of popular sovereignty without considering the serious normative problems raised by majority and supermajority rule. Rule by a majority or supermajority is not the answer to the problem of constitutional legitimacy; it is the problem that requires a normative solution. As an alternative to collective or majoritarian conceptions of popular sovereignty, I identify an individualist conception that yields fundamentally different conclusions about the purpose of a written constitution, including the importance of written amendments in safeguarding the rights retained by a sovereign people, each and every one. Finally, in a Postscript I respond to Professor Ackerman’s reply to this essay.

04/18/2014

James Pfander & Daniel Birk: Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Daniel D. Birk (Northwestern University School of Law) have posted Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system.

In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments.

Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.

04/17/2014

Will Baude on Justice Black
Michael Ramsey

At Volokh Conspiracy, Will Baude: The Greatness of Justice Hugo Black.

Was Black a "proto-textualist-originalist," as Will Baude says (and as Noah Feldman argues more stongly in Scorpions, his great book about the Roosevelt Justices)?  Maybe.  Some of his opinions, like Youngstown Sheet and Tube v. Sawyer, are textualist classics.  But others, especially in federalism and criminal procedure, are just awful from a textualist standpoint.  Like many people, his commitment to textualism seemed more firm when it got him where he wanted to be.

Brianne Gorod on the Cell Phone Search Cases
Michael Ramsey

At the Constitutional Accountability Center, Brianne Gorod: The Supreme Court Cases Everyone with a Cell Phone Should Be Watching (previewing Riley v. California and United States v. Wurie, to be argued April 29).  On the originalist perspective, she writes:

The Fourth Amendment protects people’s “papers” and “effects” from “unreasonable searches,” and the contents of our phones are the modern version of “papers and effects.”  The Fourth Amendment also provides that warrants authorizing searches must, among other things, “particularly describ[e] the place to be searched, and the persons or things to be seized,” and it was adopted to prevent the government from searching people’s papers and effects in the absence of individualized, justified suspicion that a specific search would produce evidence of wrongdoing.  Stated simply, the Framers wanted to strip the government of the arbitrary power to rifle through a person’s belongings in the hope of finding something incriminating.  Thus, the searches at issue in these cases were exactly the sort of generalized searches that the Framers abhorred—and adopted the Fourth Amendment to prevent.

The two cases are probably the most important of the April arguments and the most interesting on originalist grounds.  As I've mentioned a couple of times, the key scholarship on this subject is from my colleague Don Dripps.  (And see here and here for more on the issue from the Constitutional Accountability Center).

The application of original meaning to new technology is obviously important here, but I doubt that it's all that difficult, at least in theory.  I agree that "the contents of our phones are the modern version of "papers and effects,'” so the question should be whether, if Riley and Wurie were holding a big stack of papers instead of a phone, could the police look through it?  (I'm not venturing an opinion on the answer).

04/16/2014

David Kopel (and Others) on New Issues in Gun Rights
Michael Ramsey

The Harvard Law Review Fourm has four commentaries on "New Issues in Gun Rights":

Good Cause Requirements for Carrying Guns in Public, by Joseph Blocher

The Second Amendment as a Normal Right, by Alan Gura

Does the Second Amendment Protect Firearms Commerce?, by David B. Kopel

Peruta, the Home-Bound Second Amendment, and Fractal Originalism, by Darrell A.H. Miller

04/15/2014

Originalism and McCutcheon Part III: Does Congress Have Power to Regulate Campaign Contributions?
Mike Rappaport

For the first two posts in this series, see here and here.

My last post on originalism and McCutcheon will address whether Congress has the power to pass laws that restrict campaign contributions. This is a complicated area and one that I have not studied. So take what I say with some caution.

There are at least two issues: regulations of campaign contributions as to congressional elections and as to presidential elections. (One might, of course, draw further distinctions, such as those relating to contributions to political parties or for primaries.)

As to congressional elections, the Constitution allows Congress to regulate “the Times, Places and Manner of holding Elections for Senators and Representatives.” This might allow regulations of campaign contributions, but it has also been argued that this only covers elections, not campaigns. Bradley Smith writes:

Legal statutes and texts in the 18th century frequently discussed the “time, place and manner of election.” Rob Natelson’s extensive historical research finds that these statutes encompassed the times, places and mechanics of voting, registration lists, districting, qualifications of electors and candidates, prohibitions on misconduct at the polls, and the rules of decision (i.e. plurality or majority vote). They did not encompass the conduct of the campaign preceding the election.

Smith derives further support for this conclusion from a comparison of the time, place and manner language with the more limited language allowing Congress to determine the “Time of chusing” the electoral college.”

Why [does this provision] not [include] “place” and “manner”? Because these are specifically provided for in detailed instructions on the electoral college. If, however, “manner” was intended to include events leading up to the election–that is to say, the campaign and other events not included in the detailed instructions on operation of the Electoral College-then we would have expected the “Manner” clause to appear in Article II as well as Article I.

Congress’s power to regulate campaign contributions as to presidential elections is considerably weaker. The Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” This suggests that the power lies with the states, not Congress. Congress is given power, but only limited authority as to the Time of chusing the Electors, and the Day on which they shall give their Votes.

It is not clear how Congress can regulate campaign contributions as to presidential elections. Various judges have simply asserted that they can do so, such as Justice Black who wrote in Oregon v. Mitchell “it is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.” 400 U.S. 112, 124 (1970). Similarly, Judge Posner wrote that “Article II, §1 . . . has been interpreted to grant Congress power over Presidential elections coextensive with that which Article I ,§4 grants it over congressional elections,” citing to Justice Sutherland’s opinion in Burroughs v. United States.

Of course, one might attempt to justify congressional authority under the Necessary and Proper Clause or the regulation of commerce, but these bases seem quite weak.

In the end, I don’t have a firm position on these matters, not having studied them. But it does seem clear that there is at least a plausible basis that Congress lacks authority to regulate campaign contributions as to congressional elections and an even stronger one as to presidential elections.

(Cross posted at the Liberty Law Blog)

Thoughts on McGinnis and Rappaport's "Originalism and the Good Constitution," part 3
Michael Ramsey

Here is a third thing I like about Originalism and the Good Constitution, before getting to the book's main point (see here and here for parts 1 and 2):

The authors argue persuasively that precedent is not only not inconsistent with originalism, but is (at least in a weak form) required by originalism.  They say (p. 154):

Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent.  But if originalism cannot be reconciled with precedent, it becomes a theory of limited appeal and usefulness.  Originalism would then require ignoring precedent even when doing so has enormous costs.  It would also conflict with the practice of almost every justice and judge in the nation's history. ...

... We argue that nothing in the Constitution forbids judges from following precedent.  Rather, the Constitution allows for precedent in two ways.  First, the Constitution, as a matter of judicial power, incorporates a minimal notion of precedent.  While this minimal incorporation has important theoretical implications ... it is so minimal that it does not have significant practical consequences for current judicial disputes about precedent.  Second, the Constitution treats precedent as a matter of federal common law that is revisable by congressional statute.  Thus. the courts initially and Congress ultimately possess significant discretion over which precedent rules should be adopted.  The Constitution thereby allows either extremely weak or extremely strong precedent.

I mostly agree.  The authors rest their case principally on the observation that judges in England, the colonies and the newly independent states routinely used precedent, albeit with varying degrees of strength.  As a result (they say, and I agree), it is very probable that the founding generation understood Article III's "judicial Power" given to federal judges to include (a) some at least minimal obligation to respect precedent and (b) a common law power to develop approaches to precedent for the future.  As they say (p. 168):

The term "judicial power" [MDR note: no capital "p"?!] in Article III is, at least on its face, ambiguous.  It might be understood narrowly to mean the power to say what the law is in a particular judicial proceeding.  But it might be understood more broadly to include certain traditional aspects of the judicial office that were widely and consistently exercised.  Such core aspects of an office often come to be identified with the power that the officer exercises.  One prominent example is the view of many originalists that executive power is not simply the narrow view to execute the law but also includes many of the traditional power of executive, such as the foreign affairs power.  [Thanks for the cite, n.78]

The authors go on to say that given the historical application of precedent "it is likely that, when the Constitution was enacted, a judge refusing to give any weight to a series of cases all decided in the same way would have been deemed not merely to have been mistaken, but to have improperly exercised judicial authority."  (I agree with all this, especially the part about the executive power).  They then say (p. 171) that while only a minimal respect for precedent is required of the judicial power, "the history recounted in this chapter ... strongly suggests that the Constitution does not prohibit precedent, [but] the historical variation of precedent rules also indicates that the Constitution does not enact most of the rules.  Treating precedent as a matter of common law allows for precedent to operate under the Constitution without requiring identification of a single, unchanging approach ..."

I'm not sure if they are saying here that the "judicial Power" vests federal courts with the traditional power of judges to develop varying rules of precedent in common law fashion, but that's how I would put it.

My only quibble is that I'm skeptical of their claim that Congress could enact rules of precedent.  Maybe so, because ordinarily Congress can override common law.  But maybe not: deciding how precedent is applied might be a judicial power that isn't subject to legislative revision.  As far as I know, there isn't any history of legislatures directing courts how to apply precedent.  The authors' claim that Congress has this power seems to rest almost entirely on the syllogism (1) precedent rules are common law; (b) Congress can override common law; (c) therefore Congress can override precedent rules.  But I am very doubtful of arguments that purport to establish historical meaning by what appears to us to be logically compelled reasoning.  The founders' logic might have been different from ours.  Perhaps they thought of precedent as a different sort of common law over which legislatures could not intervene because it involved the power to decide cases.  At minimum, the book's claim here seems unproven.  (But in any event this is a minor and hypothetical point.  The main contribution here is the powerful argument about the judicial power -- and duty -- of precedent under the Constitution's original meaning).

04/14/2014

New Book: Kurt Lash's "The Fourteenth Amendment and the Privileges and Immunities of American Citizenship"
Michael Ramsey

From Cambridge University Press, Kurt T. Lash (University of Illinois): The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.  Here is the book description from Amazon:

This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of "the privileges and immunities of citizens of the United States," from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.

Some impressive endorsements:

"There has been a great deal of commentary on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, but that meaning has remained uncertain and contested. Kurt Lash's approach to the question has been to do something not previously attempted by historians or legal scholars: read all the available literature by antebellum and Reconstruction-era contemporaries on the subject. As a result he has gone far toward producing a definitive account of the Clause's history, and shown how contemporaries understood the "rights" contained in that Clause as sharply distinct from those contained in the Privileges and Immunities Clause of Article IV of the Constitution. Building on that distinction, Lash has fashioned a compelling argument as to how the original meaning of the Privileges or Immunities Clause should be understood." 

-- G. Edward White, David and Mary Harrison Distinguished Professor and University Professor, University of Virginia School of Law

"Kurt Lash is a rare combination - a scholar with profound legal knowledge, the courage to tackle big questions, and the ability to understand historical change. The Fourteenth Amendment and the Privileges Immunities of American Citizenship instantly takes its place as essential reading for anyone who thinks or writes about the sources, evolution, and application of the Fourteenth Amendment, America's second constitution." 

--Garrett Epps, University of Baltimore and correspondent for The Atlantic

"The Fourteenth Amendment and the Privileges and Immunities of American Citizenship is a deep and important book. It will surely revolutionize our understanding of the original public meaning of the enigmatic "privileges or immunities" clause of the Fourteenth Amendment. Lash argues that language that seems opaque to contemporary readers was a phrase of art, which establishes a clear ceiling and floor on the meaning of the clause. His claims are sure to be controversial, but they demand answers. If you want to understand the Fourteenth Amendment, you will need to read this book." 

--Lawrence Solum, Georgetown Law

An early contender for most important originalist book of 2014.

04/13/2014

Glenn Harlan Reynolds: The Second Amendment as Ordinary Constitutional Law
Michael Ramsey

Glenn Harlan Reynolds (University of Tennessee College of Law) has posted The Second Amendment as Ordinary Constitutional Law (Tennessee Law Review, Vol. 81, p. 409, 2014) on SSRN.  Here is the abstract: 

In recent years, the Second Amendment has gone from a subject of scholarly and political debate with no real judicial role, to a clearly established individual right that is being enforced in lower courts. This Essay, the foreword to a forthcoming Tennessee Law Review symposium on the Second Amendment, explores how that happened, and what is likely to come next.

04/12/2014

Beth Colgan: Reviving the Excessive Fines Clause
Michael Ramsey

Beth A. Colgan (Stanford Law School) has posted Reviving the Excessive Fines Clause (California Law Review, Vol. 102, No. 2, 2014) on SSRN.  Here is the abstract:

Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.

04/11/2014

Thoughts on McGinnis and Rappaport's "Originalism and the Good Constitution", Part 2
Michael Ramsey

This post continues my thoughts on Originalism and the Good Constitution by John McGinnis and Michael Rappaport (part 1 is here).

One of the most important parts of Originalism and the Good Constitution is methodological rather than normative.  In Chapter 7, the authors argue that original meaning depends not just on the original meaning of the words themselves but on the original methods of interpretation.  As they say (p. 119),

word meanings and grammatical rules do not exhaust the historical material relevant to constitutional interpretation.  There are also interpretive rules, defined as rules that provide guidance on how to interpret the language in a document.  It is our position that originalism requires modern interpreters to follow the original interpretive rules used by the enactors of the Constitution as much as the original word meanings or grammar rules.

As an example, they point to the rule that text be construed where possible to avoid surplusage; we should only use that rule, they say, if it were used at the time the relevant language was adopted.

If the question is, what did the language mean at the time is was adopted, then this point seems absolutely right (and indeed I have some trouble understanding the argument against it).  As McGinnis and Rappaport say, everyone (I think) agrees that, to find the meaning at the time of enactment, one would use the ordinary rules of grammar, as well as the word meanings themselves, existing at the time of enactment.  Otherwise, one would run a serious risk of misreading the text, just as one would if one did not use the word meanings existing at the time of enactment.  Meaning arises not just from the words themselves but from the way the words are put together.  For example, one might misread an eighteenth-century text by putting too much emphasis on the placement of a comma, if the rules about comma placement were different (as they seem to have been) in the eighteenth century compared to today.

But what is true of grammar seems equally true of rules like the rule disfavoring surplusage, which is in a sense a rule of legal grammar.  If there was a drafting rule "avoid surplusage" at time x, then there is a good reason to read things written at time x in a way that does not create surplusage.  But if there wasn't such a rule, and indeed if perhaps people at time x liked surplusage because it ensured clarity, there isn't much (any?) justification for reading things written at time x in a way that avoid surplusage.  At least, I can't think of one.

This point (which seems obvious once it's made, but wasn't before) can fix one troubling aspect of Scalia and Garner's great book Reading Law: The Interpretation of Legal Texts.  In large part Reading Law sets forth, explains and justifies a catalogue of interpretive rules that (the authors say) should be used to understand legal texts.  But where do these rules come from?  Why should these, and not others, be used?  The authors do not explain, at least not directly, although they hint that the rules arise from and are justified by traditional legal practices.  As McGinnis and Rappaport make clear, the explanation (to an originalist) should be that the interpretative rules were in place when the text was enacted and thus form part of its original meaning.

Of course this may mean that different interpretive rules should be applied to different texts if the texts were enacted at different times.  (Scalia and Garner do not seem to contemplate this possibility).  I also think that there is likely to be great difficulty in establishing whether a particular interpretive rule was widely accepted at a particular time (and how widely accepted would it need to be?).  McGinnis and Rappaport rightly say that recognizing the original interpretive rules as a component of the original meaning may reduce ambiguity (because it supplies further tools for resolving ambiguity).  But it also opens up a wide new field of disagreement and difficult historical inquiry.

George Will on Calling a Constitutional Convention
Michael Ramsey

In the Washington Post, George Will: Amend the Constitution to Control Federal Spending (disussing a proposal for an amendment by the Goldwater Institute).  Of course, Congress would not likely approve such an amendment, so 

[The proposal] provides ... two amendment procedures, one of which has never been used — the calling of a convention by two-thirds of the state legislatures. Many prudent people — remembering that the 1787 Constitutional Convention’s original purpose was merely to “remedy defects” of the Articles of Confederation — recoil from the possibility of a runaway convention and the certainty that James Madison would not be there to make it turn out well. The compact, however, would closely confine a convention: State legislatures can form a compact — a cooperative agreement — to call a convention for the codified, one-item agenda of ratifying the balanced-budget amendment precisely stipulated in advance.

...

Congress has no discretion — it “shall” call a convention “on the application of the legislatures of two thirds of the several states.” A convention called in accordance with the institute’s compact would adopt its limited agenda with the force of federal and state law, any deviation from which would render the convention — which is limited to a 24-hour session — void. The compact designates as the sole delegates to the convention the governors of participating states, officials who will not run the political risk of wrecking the convention by ignoring the law.

Constitutional?  See here.

04/10/2014

Some Thoughts on McGinnis & Rappaport's "Originalism and the Good Constitution"
Michael Ramsey

This Friday (April 11) USD Law School and the Center for the Study of Constitutional Originalism will host a roundtable on Originalism and the Good Constitution by John McGinnis and Michael Rappaport (Harvard Univ. Press 2013).

Our outstanding line-up of participants includes: Vikram Amar (UC Davis), Stephen Gardbaum (UCLA), Bernadette Meyler (Stanford), Robert Nagel (Colorado), Robert Pushaw (Pepperdine), Lawrence Rosenthal (Chapman), and Amanda Tyler (Berkeley), as well as USD's Larry Alexander, Steve Smith, Laurence Claus, Don Dripps, and Maimon Schwarzschild.  (And also me, and the authors).

In a few posts, I'll offer some thoughts about the book -- initially some very favorable ones, with perhaps some skepticism later.

To begin, I like that McGinnis and Rappaport frame the core question of constitutional adjudication as a choice among (a) originalism, (b) a "living constitution," or, as they frequently call it, "judicial updating", or (c) judicial deference to political branches.  (They don't do so expressly at the outset, which might have been better, but the comparative evaluation runs throughout the book.)

I think this is the right way to think about it.  First, these are the three basic families of constitutional interpretation.  Essentially everyone's approach is a version of one of these, or a combination of them.  (Some might say that adherence to precedent is a fourth, but I disagree; each of these approaches must decide how to deal with prior mistaken decisions, but adherence to precedent can't stand alone as an interpretive theory because precedent does not decide many important cases).

Second, I like McGinnis and Rappaport's phrase "judicial updating" (and I wish they had always used it to the exclusion of the living constitution).  The living constitution is a unfortunate metaphor because it masks what is really happening in non-originalist constitutional adjudication: judges changing the meaning of the Constitution to suit modern circumstances.  "Judicial updating" captures the process exactly, and puts the spotlight on judges as the agents of constitutional change.  (To be sure, the Constitution is changed by other actors as well, including the executive, but in the modern U.S. system the judiciary is the primary agent).  Further, "judicial updating" captures the common element of a wide range of non-originalist theories of adjudication, including process-based theories, moral rights theories, pragmatic approaches, and common-law constitutionalism.  Though very different in their prescriptions, they share the central idea that judges should bring the Constitution into line with modern values and circumstances.

Third, McGinnis and Rappaport see the choice among these three approaches as a normative choice.  I agree.  I don't think anything compels any particular choice; the question is which will produce a better constitutional system.  In particular, I don't think that originalism can claim our allegiance simply from the way the Constitution was enacted, or what its ratifiers intended.  Thus, the book's project -- to show why originalism is the best way (in terms of modern outcomes) to interpret the Constitution -- frames the question exactly right.

And finally, there's this challenge (laid down on p. 205): "Living constitutionalism, in contrast [to originalism], has no plausible theory of why its process of constitutional interpretation likely leads to good results."  

Again, whether or not there is a response to this challenge, it seems exactly the right way to think about about it.  (And of course, the question for me -- or anyone -- isn't whether judicial updating would be the best approach if were the judge, but whether judicial updating is the best approach when the judge is as likely to be someone with opposite political and judicial intuitions from me).

Originalism and McCutcheon: Part II -- Possible Alternative Bases for Protecting Contributions

In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech.  In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom of association and (2) contributions as the speech of the contributor.  While I believe the arguments in my first post provide possible ways of protecting certain campaign contributions under the original meaning of the First Amendment, I am skeptical that either of these alternatives provide strong support for such protection. 

The Supreme Court has for at least the last half century recognized a doctrine of freedom of association.  People often speak about this doctrine as if it were a distinct right.  But an examination of the First Amendment reveals no express right to “freedom of association.”  Thus, it is not clear how the First Amendment protects freedom of association.  

It is possible that one might be able to derive some kind of freedom of association right from the original meaning of the First Amendment.  Some people argue that freedom of association derives from freedom of speech whereas others claim it comes from freedom to petition and assemble.  I could imagine an argument for freedom of association that is similar to the argument I made in my first post (for how one might derive protection for contributions for speech purposes).  But the point is that deriving this protection would itself require a good deal of work and is therefore unlikely at this point to provide the needed originalist support for constitutionally protecting contributions. 

Another possible basis for protecting campaign contributions is to view them as the speech of the contributor.  That is, the contribution expresses the contributor’s support for the candidate.  I am skeptical of this argument.  I used to question whether symbolic conduct was speech, but Eugene Volokh has provided evidence that certain types of symbolic conduct, such as burning people in effigy, constituted speech for purposes of the First Amendment.  But that does not mean all conduct did and I doubt that giving money is properly viewed as symbolic.  

(Cross posted at Liberty Law Blog)

Richard Primus: The Limits of Enumeration
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted The Limits of Enumeration (Yale Law Journal, Vol. 124, Forthcoming) on SSRN.  Here is the abstract:

According to a well-known principle of constitutional interpretation here identified as the “enumeration canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the enumeration canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time, and there is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. The enumeration canon should be set aside. This Article explains why setting aside the enumeration canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.

04/09/2014

Originalism and McCutcheon: Part I: The Meaning of Abridging the Freedom of Speech
Mike Rappaport

Mike Ramsey writes that the opinions of the plurality and Justice Thomas in McCutcheon v. FEC do not employ an originalist methodology. Regarding Justice Thomas’s opinion, Mike writes:

The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn't the question an originalist asks.  The question is (or ought to be) whether "the freedom of speech" in the founding era included campaign contributions.  (I'm not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era's view makes analytic sense to us (or to any individual Justice) should be irrelevant.

Mike is certainly correct that one needs historical evidence and originalist analysis about this matter.  Unfortunately, there is relatively little written on the original meaning of the freedom of speech, with the principal exception in recent years of several pieces by Eugene Volokh.  (I have toyed with writing on the subject, but have not done so as of yet.)  It is difficult for the justices to write originalist opinions without such scholarship.  Thus, they either rely on doctrine, as Chief Justice Roberts’s plurality opinion does, or argue for a change in doctrine, assuming the general doctrinal framework, as Thomas’s concurrence does.

How would one analyze the question from an originalist perspective?  Let's put aside for now whether there is an enumerated power to support the legislation, an issue I plan to discuss in a future post.  Do the aggregate limitations at issue in McCutcheon abridge the freedom of speech?

This question obviously depends on the meaning of "abridging freedom of speech" at the time of the First Amendment (at least for actions of the federal government).

One immediate issue is that the giving of a gift, that is to be used for purposes of speaking, does not appear to be in the core of freedom of speech.  After all, it is not itself speech.  This is sometimes described as the issue of whether "money is speech." *

But the fact that a gift for speech purposes can be described as not involving speech does not mean it is not covered by the original meaning of the First Amendment.  It is very likely that a law prohibiting the sale of ink for newsprint or of paper used for writing manuscripts would have been deemed a law "abridging the freedom of speech or the press."  Similarly, a law that prohibited gifts that were earmarked for speech might very well have been deemed a law that abridged the freedom of speech.

The unconstitutionality of such a law might have been analyzed in two ways.  First, it might have simply been seen as a law “abridging freedom of speech.”  The original meaning of the phrase might have been this broad.

Some support for this conclusion might come from an examination of the laws that existed at the state level at the time.  It appears, although I haven’t done the research, that there were no restrictions on people donating money to others for purposes of speaking (other than laws against bribery).  This is a first step in arguing that such laws abridge freedom of speech.  It is only a first step, rather than the whole argument, because we do not know that the people at the time would have regarded such laws as abridging the right of freedom of speech (as opposed to simply being bad policy).  Still, if such laws did not exist, it would be important, because “the freedom of speech” is often thought to refer to a system of rights that existed at the time.  If there were no laws against such donations and if such donations were deemed to be beneficial, this would be some evidence for the unconstitutionality of such laws.

A second possibility might involve what Richard Epstein in his new book, The Classical Liberal Constitution, terms an anti-circumvention principle.  It is possible that there was an original interpretive rule that required interpreters to read prohibitions broadly to prevent circumventions of those prohibitions.  Thus, one might conclude that a law that prohibited gifts for speech purposes was unconstitutional, not because it technically constituted a restriction on speech, but because it was being used to circumvent the right to freedom of speech.  For example, Epstein cites (p. 48) the early case of Brown v. Maryland involving a Maryland tax on importers of goods.  Was this tax forbidden by the constitutional provision prohibiting state taxes on imports?  Epstein argues that it should be under an anti-circumvention principle.  To rely on this interpretive principle, one would of course need evidence that such a principle existed at the time of the Constitution.  But such a principle might have existed, especially given the true meaning of Marshall's statement that "it is a Constitution we are interpreting" – that is, that one should not expect details (such as circumventions) to be addressed in a brief document.

In the end, I do not mean to argue that laws against contributions that fund speech violate the original meaning.  Rather, I am simply exploring some of the possible ways that one might reach that conclusion.

 

* In this post, I assume that the aggregate limitation only restricts the giving of money for speech, but that is not clear, since the contributions might support activities which are not properly analyzed as speech.

(Cross posted at the Liberty Law Blog)

Keith Whittington Blogging at Liberty Law Blog
Michael Ramsey

Prominent Princeton political scientist and originalist Keith Whittington is blogging at Liberty Law Blog, with a number of posts of interest.

Here are two:

How I Learned to Stop Worrying and Love Substantive Due Process -- Sort Of

What Did John Marshall Accomplish in Marbury v. Madison?

04/08/2014

Seth Barrett Tillman on Originalism and Campaign Finance
Michael Ramsey

Regarding my post on McCutcheon v. FEC, Seth Barrett Tillman writes:

I would think that prior to reaching the question of whether or not the First Amendment provides a defense in relation to a civil or criminal action brought under federal election law, a committed originalist would first want to entertain the question under what head of power does Congress have authority to regulate campaigns and elections conducted by state officials. Article I, Section 4, Clause 1 states:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators."

The language here is ambiguous to the modern reader. As an original matter, it is hardly clear that this clause empowers Congress (even, in conjunction with the Necessary & Proper Clause) to regulate conduct relating to campaign speech, as opposed to granting Congress authority over election machinery run by state officials. In a recent fulsome analysis by one well-regarded legal scholar, the author suggests that this clause (as an original matter) should not be read as encompassing all election-related activities. See Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Const. L. 1 (2010).

So even if an originalist has doubt about the reasoning in the plurality opinion or in Thomas' concurrence in McCutcheon, an originalist might be more than comfortable with the holding.

In my own publications, I have tried to show why Teachout-Lessig-Breyer's broad-ranging corruption-based rationale for congressional power over federal elections has to overcome substantial objections based on historical events contemporaneous with the enactment of the Constitution and during the Washington administration. See, e.g., Seth Barrett Tillman, Why Professor Lessig's Dependence Corruption is not a Founding-Era Concept, 13 Election Law Journal (forthcoming circa June 2014) (peer reviewed), http://ssrn.com/abstract=2342945, and National Constitution Center Constitution Daily (Oct. 23, 2013, 7:00 AM), http://blog.constitutioncenter.org/2013/10/why-lessigs-dependence-corruption-is-not-a-founding-era-concept/.

He adds:

One more article touching on the original meaning of the Times, Places, and Manner Clause is Bradley A. Smith, Separation of Campaign and State, 81 Geo. Wash. L. Rev. 2038 (2013) (citing Natelson's article). Smith is blogging on this paper over at the Volokh Conspiracy. See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/07/separation-of-campaign-and-state/.

Related:  Larry Lessig's thoughts on McCutcheon are here: Originalists Making It Up Again: "McCutcheon" and "Corruption."

Also:  Professor Smith has a further post up at Volokh Conspiracy: The Power to Regulate Elections, Not Campaigns.

Some Responses on McCutcheon and Campaign Finance Legislation (Updated)
Michael Ramsey

Michael Perry writes: 

I share your originalist misgivings about the plurality and Thomas opinions in McCutcheon. However, a reader of your most recent post on the matter might conclude that you have bought into the "expected applications" version of originalism, and I doubt you mean to do that!  So, you might want to say something further about the version of originalism you are bringing to bear in expressing your misgivings about the McCutcheon opinions.

I'm not as negative about the use of "expected applications" as many people (including, I think, Professor Perry) are.  I agree that the founding generation's expected applications of their language are not in themselves binding.  The question is the meaning of the text (which is what was adopted as law).  But -- in my view -- the original expected applications are evidence of the text's meaning.  They are not conclusive evidence.  But how members of the founding generation expected the text to apply to situations which they fully understood is evidence of what they thought the text meant; and evidence of what they thought the text meant is evidence of what its ordinary meaning was.

To take an example in my area of scholarship, suppose the question is whether Article II, Section 1's grant of "the executive Power" to the President gives the President powers in addition to those specifically listed in Article II, Sections 2 & 3.  If we find that important members of the founding generation expected the President to have powers not listed in Article II, Sections 2 & 3, that is evidence of what they thought "the executive Power" meant.  It's not conclusive (they might have been wrong about what executive power commonly meant), but we would need some good reason for thinking they were wrong.

In any event, I didn't mean to take a position on expected applications in writing about McCutcheon.  If I were exploring the campaign finance question, I would want to know first whether "the freedom of speech" had been understood to include contributions in the period before the Philadelphia convention, in England or America.  (This is the approach I've taken in thinking about executive power, for example).  It seems particularly useful in the free speech context, because the clause is commonly thought to refer to and incorporate a pre-existing idea of free speech.  As far as I know, no one has looked into this question (and neither the plurality nor the concurrence in McCutcheon did).

At the same time, though, I think it would also be relevant (not conclusive, and perhaps less persuasive) if people in the post-ratification era thought contributions were covered (or not covered) by the clause.  I would also want to know why they thought this (that is, what was their textual argument and how plausible was it), what institutional or personal reasons they had for thinking this, and how common and well-accepted it was.  I'm not sure if this inquiry is what some people reject as mere "expected applications," but I would not categorically reject it.

Another reader (wishing to remain anonymous) writes:

Regarding your blog post about McCutcheon, I agree with you that the Court did not seem to ask the key originalist questions: what does "the freedom of speech" mean as an original matter, and does that meaning encompass campaign contributions? I would note, however, that almost none of the Court's free speech jurisprudence appeals to original meaning. It seems the animating force behind the Court's jurisprudence in the post-WWII era has been John Stuart Mill, as opposed to any serious originalist inquiry.

I think that's largely right until recently.  But it may be changing.  More recent cases have taken a historical approach, asking (not always successfully) whether particular categories of speech (or their analogues) were or were not part of "the freedom of speech" in the founding era and thereafter.  I'm thinking here of cases such as Brown v. Entertainment Merchants, United v. Stevens and United States v. Alvarez.  The approach is not fully originalist but it has originalist overtones.  Will Baude had an excellent post on this a while ago.  At least, the Court seems to be signalling more interest in historical/originalist arguments (except, not in McCutcheon).

UPDATE:

Michael Perry responds:

I agree with you about this:

"But -- in my view -- the original expected applications are evidence of the text's meaning.  They are not conclusive evidence.  But how members of the founding generation expected the text to apply to situations which they fully understood is evidence of what they thought the text meant; and evidence of what they thought the text meant is evidence of what its ordinary meaning was."

Of course, it is a different question altogether--as Gary Lawson has emphasized more than once--whether/when "what the text meant" should be the basis of constitutional decisionmaking. [Note: and I agree with that. --MDR] But with respect to the question "what the text meant," I concur in what you say in the passage above about expected applications:  probative, not conclusive.  

John Mikhail on the Necessary and Proper Clauses
Michael Ramsey

At Balkinization, John Mikhail is undertaking a series of posts on his important new article The Necessary and Proper Clauses (Georgetown Law Journal, forthcoming).  Here is his first.

My initial thoughts on the article (to which Professor Mikhail indicates he'll respond) are here.

04/07/2014

John Ohlendorf on Northwest v. Ginsberg
Michael Ramsey

John Ohlendorf (author of this excellent article on preemption) send this comment on my prior post on Northwest, Inc. v. Ginsberg

I thoroughly agree, first, that Ginsberg looks like it came out right, and, second, that the fact that Congress can (and not infrequently does) include an express preemption clause in its legislation pretty well does in the frequent claim that preemption is just too complicated and fact-based for Congress to be effectively involved in the process, and accordingly that preemption must not have much to do with fidelity to Congress.

But regarding whether we can reliably infer from Congress's failure to include an express preemption clause that it meant to foreclose preemption (or foreclose anything but "impossibility" preemption), I had two additional thoughts.  First, Congress can (and not infrequently does) expressly bar preemption, as well, so in any given piece of legislation that contains neither a preemption nor a savings clause, it seems to me that we at best have two contrary implications that cancel each other out.  And second, Abbe Gluck and Lisa Bressman's path-breaking empirical study of Congress's drafting process is a pretty strong piece of evidence that, here as elsewhere, Congress is pretty thoroughly and blissfully ignorant of any stable set of preemption default rules the Court might be trying to craft. (Gluck and Bresseman actually cite preemption doctrine as a success story for Congressional knowledge of statutory interpretation defaults, but if you dig into their data, it turns out that Congress is pretty clueless).

Originalism and Campaign Contributions
Chris Green

I second Mike Ramsey's call for more originalist scholarship on campaign-finance issues, especially those related to campaign contributions. In my very limited investigation, I became intrigued by--but have not had the chance to track down to any depth--the intellectual background to Ex Parte Curtis, 106 U.S. 371 (1882), which upheld a ban on political contributions between subordinates and superiors within the federal government. The case was 8-1, with Justice Bradley dissenting.  The petioner made a very strong claim for the First Amendment right of all citizens, in the employ of the federal government or not, to contribute their money as they wished. After quoting the First Amendment, the petitioner claimed,

Indubitably, it would be a violation of this provision for Congress to enact that none of the 100,000 government officials should give anything to the Methodist church (for instance), though left free to hold such religious tenets as they pleased, and to preach and pray accordingly. The exercise of religion is not free, unless everyone can give of his means freely, without control, in its support, and to promulgate its doctrines.

In like manner, freedom of speech and of the press is abridged if every citizen cannot, at will, contribute to cause the speech to be made, that it may be disseminated, to accomplish the 'political purpose' for which it is intended.

Freedom of the press is not simply the right to print. It is, pre-eminently, the right to publish; which, necessarily, involves the right to receive aid, from whomsoever has the means and desire to give, that the publication may be effected.

So, the right to assemble includes the right to hire Faneuil Hall, or any other convenient place, in which to hold the meeting; and the right of every citizen who makes one of that assembly, or chooses to aid its object (political or other) to give toward the hire of the hall, and other expenses.

The court (opinion here) rejected Curtis's challenge to the statute, but without, I think, disagreeing with his analysis of contributions as a core element of political association and the freedom of speech. Rather, restrictions on contributions were allowed on the same grounds as restrictions on other activity by office-holders, such as restrictions on commercial activity by employees of the Department of the Treasury.  Justice Bradley's dissent, however, clearly agreed with Curtis that political contributions were part of the freedom of speech: 

Among the necessary and proper means for promoting political views or any other views are association and contribution of money for that purpose, both to aid discussion and to disseminate information and sound doctrine. To deny to a man the privilege of associating and making joint contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs. The freedom of speech and of the press, and that of assembling together to consult upon and discuss matters of public interest, and to join in petitioning for a redress of grievances, are expressly secured by the Constitution. The spirit of this clause covers and embraces the right of every citizen to engage in such discussions and to promote the views of himself and his associates freely, without being trammeled by inconvenient restrictions. 

1882 isn't, of course, 1791, but I would encourage others to investigate the extent to which these sorts of ideas pre-dated Curtis. When did these ideas first emerge, and what dissent did they engender, if any, and on what grounds? Inquiring originalist minds should want to know.

John McGinnis on Thickening Originalism
Michael Ramsey

At Liberty Law blog, John McGinnis: Thickening Originalism.  From the introduction:

The most important recent development in originalism has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law. This recognition has led to at least four different ways in which originalism has been thickened.

Stephen Vladeck: Military Courts and Article III
Michael Ramsey

Stephen I. Vladeck (American University - Washington College of Law) has posted Military Courts and Article III  (103 Georgetown Law Journal, 2015, forthcoming) on SSRN.  Here is the abstract:

The Supreme Court has held that non-Article III federal adjudication is permissible only in the three categories of cases in which the Court has previously allowed it — all cases before federal “territorial” courts; criminal prosecutions in military tribunals; and “public rights” adjudication before non-Article III judicial or administrative bodies. And although the Justices have repeatedly grappled with the outer bounds of this last category in recent years, they have generally accepted the first two as settled. Scholars have followed suit, with virtually all of the extensive literature in the field focusing on the specific scope of the public rights exception, or on the search for cross-cutting theories of Article III.

As a result, it has been decades since any concerted effort has been undertaken to rationalize the scope of the military exception — whether to the Constitution’s text or purpose or to more prudential considerations. And although the similarly neglected territorial courts have remained largely untouched over the past quarter-century, the same period has witnessed significant expansions in the scope of both court-martial and military commission jurisdiction to encompass offenses and offenders not previously thought to be amenable to military, rather than civilian, trials. Given these expansions, the litigation that they have provoked, and the tension they have placed upon the military exception, the time has long since passed for a reassessment of where and how military courts fit into our understanding of Article III — and the exceptions thereto.

This article undertakes such a reassessment. It demonstrates not only that these expansions cannot be reconciled with the underlying justifications for the military exception, but that they only further illuminate a series of deeper puzzles raised — and never answered — by the Supreme Court’s historical articulation of the military exception. As it explains, one way to resolve these puzzles — and to place the military exception on far sounder philosophical, analytical, and constitutional footing going forward — is to appreciate the long-neglected role of international law in at once authorizing and circumscribing departures from Article III. And although this conclusion has already started to emerge in litigation over the Guantánamo military commissions, its implications for courts-martial have not yet been appreciated.

04/06/2014

Derek Muller: Scrutinizing Federal Electoral Qualifications
Michael Ramsey

Derek T. Muller (Pepperdine University - School of Law) has posted Scrutinizing Federal Electoral Qualifications (Indiana Law Journal, Vol. 90, forthcoming) on SSRN.  Here is the abstract:

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and scraps of judicial precedents in litigated cases. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people, and to Congress. It then concludes that while states do have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power to election officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.

(Thanks to Seth Barrett Tillman for the pointer).

04/05/2014

Matthew Downer & Suzanna Sherry: The People or the Court
Michael Ramsey

Matthew P. Downer (Vanderbilt University - Law School) & Suzanna Sherry (Vanderbilt University - Law School) have posted The People or the Court: Who Reigns Supreme, How, and Why? (4 Journal of Law (1 New Voices) 31 (2014)) on SSRN.  Here is the abstract:

This Paper considers the normative and descriptive claims, proposed frameworks, and fundamental flaws in Barry Friedman’s "The Will of the People" and Larry Kramer’s "The People Themselves". Both authors endorse The People, rather than the Supreme Court, as the ultimate arbiters of constitutional meaning. Their historical narratives, however, could hardly clash more sharply: Friedman argues that The People seized their current authority to direct the Court, whereas Kramer argues that The People abdicated that authority after initially reigning supreme. In short, where Kramer sees a sharp decline in The People’s influence, Friedman sees a steady increase. To Kramer, today’s Court determines constitutional meaning. To Friedman, The People still reign supreme.

Descriptive conflicts aside, Friedman and Kramer both fail to adequately construct a workable framework to facilitate their popular constitutionalism. Specifically, neither sufficiently defines who constitutes The People nor what, if anything, constrains the substance of popular will. Even a Court dedicated to their normative ideal would have little clue how to proceed.

Finally, both suffer fundamental flaws. Kramer lacks the very faith he promotes. He grounds his normative ideal in The People’s trustworthiness. He urges The People to have enough faith in themselves to reclaim constitutional authority. Yet, he refuses to trust the decision The People already made — the decision to delegate some constitutional authority to the Court. Where Kramer lacks faith, Friedman lacks uncommon insight and persuasive evidence. His claim that the Court generally serves majoritarian ends is not new and should not surprise us. After all, justices only ascend to the Court by surviving a fundamentally majoritarian process. He then claims, but fails to persuasively demonstrate, that The People established and enforce the Court’s majoritarianism by threatening discipline and violent upheaval.

04/04/2014

Northwest v. Ginsberg: "Real" Preemption
Michael Ramsey

The Supreme Court's other decision this week was Northwest, Inc. v. Ginsberg, holding that the federal Airline Deregulation Act preempted a state-law good-faith-and-fair-dealing claim by Ginsberg, whom Northwest expelled from its frequent flyer program.  (SCOTUSblog analysis by Ronald Mann here).  The Court (by Justice Alito) unanimously reversed the Ninth Circuit (Beezer, Trott and Rymer -- not a liberal panel, but relying on prior circuit precedent).

The result seems right to me, but I'm more interested in the ADA's preemption provision, which says:

a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

This is an express preemption provision, deliberately written broadly to, as the Court said in a prior case, "ensure that the States would not undo federal deregulation with regulation of their own."  My reaction is:  there's nothing hard about including such language in a statute, if Congress wants to, and the courts (other than the Ninth Circuit, apparently) don't have difficulty applying it.

Why, then, do courts also think it's necessary to ponder the "objects and purposes" of a federal statute to decide whether a state law -- though not directly in conflict -- is an "obstacle" to them?  As I've argued previously (see here and here), the "objects and purposes" part of preemption doctrine seems to depend on a conclusion that somehow Congress has difficulty expressing itself when it wants to displace state law, and so the courts must look beyond the text to find some unexpressed intent.  Perhaps that is true in some areas or on some occasions where the state activity isn't something Congress would anticipate.  But in the ordinary course, surely (a) Congress knows what states are doing or can easily anticipate what they might do, and (b) can write preemption language -- including broad language as in the ADA -- into the statute.

If that is so, then Congress' failure to write preemptive language into a statute seems to imply a decision not to preempt.  In any event, given the ease with which Congress can be clear and (if desired) sweeping, refusal to find unexpressed preemption would not place much of a burden on Congress (and it would get rid of a lot of contentious "objects and purposes" preemption cases).

(For some contrary views, see here [Daniel Meltzer] and here [John Ohlendorf].  But I have this one on my side).

Cleveland State University Symposium: "History and the Meaning of the Constitution"
Michael Ramsey

Cleveland-Marshall College of Law will host this year's Cleveland State University Law Review Symposium, entitled History and the Meaning of the Constitution, on April 18.  The speakers are:

Patrick Charles (U.S. Air Force historian), "History as a Guidepost to Interpreting the Constitution"

Sheldon Gelman (Cleveland-Marshall), "Court-packing and the 'Switch in Time': Recent Developments"

Scott Gerber (Ohio Northern), "Liberal Originalism: The Declaration of Independence and Constitutional Interpretation"

Lee Strang (Toledo), "Originalism's Promise and Limits"

(thanks to Patrick Charles and Scott Gerber; also noted at Legal History Blog).

04/03/2014

McCutcheon v. FEC and the Silence of the Originalists
Michael Ramsey

The Supreme Court's decision yesterday in McCutcheon v. FEC (invalidating aggregate campaign contribution limits under the First Amendment) has little of originalist interest.  Chief Justice Roberts' plurality (for himself and Justices Scalia, Kennedy and Alito) purports to be a doctrinal application of the Court's prior decision in Buckley v. Valeo; Justice Thomas' concurrence would overrule Buckley, but not, so far as I can tell, on originalist grounds.  (SCOTUSBlog analysis by Lyle Denniston here).

The originalist silence is troubling.  I previously expressed some doubts about McCutcheon, and I still have them.  The core of the case (as with prior campaign finance cases) is the proposition that campaign contributions are speech.  Well, maybe they are, but that isn't obvious from the ordinary definition of speech, so I would think there should be some historical support for that conclusion; but none is offered.

Justice Thomas' opinion highlights the problem.  He argues that, because contributions are a form of speech, the Court in Buckley erred in treating restrictions upon them somewhat more leniently than restrictions on actual speech.  His argument, though, isn't that the language and understandings of the founding era establish this equivalence -- it's that equivalence can be demonstrated by analytic reasoning.  Here is the core of his argument (some citations omitted): 

As I have explained before, “[t]he analytic foundation of Buckley . . . was tenuous from the very beginning and has only continued to erode in the intervening years.” Shrink Missouri, supra, at 412 (THOMAS, J., dissenting). To justify a lesser standard of review for contribution limits, Buckley relied on the premise that contributions are different in kind from direct expenditures. None of the Court’s bases for that premise withstands careful review. The linchpin of the Court’s analysis was its assertion that “[w]hile contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U. S., at 21. But that “‘speech by proxy’” rationale quickly breaks down, given that “[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender’s message—for instance, an advertising agency or a television station.” Colorado I, supra, at 638–639 (opinion of THOMAS, J.). Moreover, we have since rejected the “‘proxy speech’” approach as affording insufficient First Amendment protection to “the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.” 

[The opinion continues in this vein for some time, addressing and rejecting other arguments for treating pure speech and contributions differently].

From an originalist perspective, this seems a mistaken exercise.  The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn't the question an originalist asks.  The question is (or ought to be) whether "the freedom of speech" in the founding era included campaign contributions.  (I'm not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era's view makes analytic sense to us (or to any individual Justice) should be irrelevant.

To illustrate, consider an analogous question: are pictures "speech" that is protected by the First Amendment? An originalist cannot solve that question by analytic reasoning, although no doubt there are various inconclusive analytic arguments why they are (or aren't).  The question should be how "the freedom of speech" was defined at the time of enactment.   If it included pictures, then they are protected; if it didn't, then they aren't.  So with campaign contributions.

Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.

Derek Muller on the Political Question Doctrine and the Guarantee Clause
Michael Ramsey

At Jurist, Derek Muller (Pepperdine Law):  Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning.  It begins:

A novel judicial opinion written on dubious legal grounds can serve as an empty vessel into which hopeful litigants everywhere pour hope. The Tenth Circuit's opinion in Kerr v. Hickenlooper—authorizing legislative standing and finding the Guarantee Clause justiciable—has done just that. But it is unlikely that its holdings will withstand further judicial scrutiny.

And from later on:

The Tenth Circuit's analysis—if affirmed on appeal—would have extraordinary consequences. It would create many more opportunities for individual legislators in each state—and perhaps those in both houses of congress—to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves—which has been a large part of most states' governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves—effectively ushering in a power shift away from the people—and their ability to enact policy objectives via popular vote—and towards the federal court system.

I agree (my prior thoughts on this case here).  The opportunities for judicial mischief opened up by this decision are jaw-dropping.

I also agree with Professor Muller (as a doctrinal matter) on the standing issue as well.  I mentioned this case's political question holding in my first-year Constitutional Law course and then asked my students what other doctrine might prevent a court from reaching the merits.  They almost literally leaped out of their chairs shouting "standing!" (which we had covered a few weeks earlier).  I then had to explain how the Tenth Circuit dealt with the standing issue.  This was not an entirely satisfactory discussion for any of us.

04/02/2014

Lawrence Rosenthal: The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control
Michael Ramsey

Lawrence Rosenthal (Chapman University - School of Law) has posted The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control (Washington University Law Review, Forthcoming) on SSRN.  Here is the abstract:

Second Amendment jurisprudence was revolutionized by the Supreme Court's 2008 decision in District of Columbia v. Heller. Relying on what it characterized as the "original meaning" of the Second Amendment, the Court recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.

This article takes Heller’s conclusions about the original meaning of the Second Amendment as given, and assesses whether they have produced – or even are capable of producing – an authentically originalist Second Amendment jurisprudence. It assesses as well the implications of Heller for gun control. Some six years after the Court announced a new era in Second Amendment jurisprudence in Heller, the outlines of a new Second Amendment jurisprudence – one that contemplates surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role – are starting to come clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment’s preamble and its operative clause. It explores as well the constitutional case for a quite robust regime of gun control.

04/01/2014

Ethan Bercot: The Use of History in the Supreme Court’s Establishment Clause
Michael Ramsey

In the current issue of the Georgetown Law Journal, Ethan Bercot (Georgetown University Law Center, J.D. expected 2014) has the note Forgetting to Weight: The Use of History in the Supreme Court’s Establishment Clause (102 Geo. L. J. 845).  Here is the abstract:

History matters. It especially matters in the context of interpreting the First Amendment’s Establishment Clause. Since nearly the founding of the republic, jurists and commentators have recognized that the historical understanding of the Establishment Clause should guide contemporary interpretation. James Madison, in one of his final statements on church-state relations, acknowledged that debate on the topic was properly illuminated by history. “[O]n this question,” he wrote in an 1833 letter, “experience will be an admitted umpire.”

Madison’s reliance on history is instructive not merely because of his influence on constitutional matters, but also because he wrote in an era that bears marked similarities to the modern debate on the Establishment Clause’s mean- ing. Madison’s letter was addressed to Reverend Jasper Adams, an Episcopal minister. Adams had recently delivered a sermon to his fellow clergymen arguing that religion, particularly Christianity, was a fundamental pillar of civil society and government and that religion could not flourish without government support. The sermon was largely a foray into a decade-old debate between Thomas Jefferson and Justice Joseph Story. Jefferson had attempted to dismantle the then widely held assumption that Christianity was a part of the received common law; Justice Story offered the main rebuttal. Relying on Story’s Commentaries, Adams argued that “establishment,” as used in the common law of England and the colonies, meant “the preference and estab- lishment given by law to one sect of Christians over every other.” Consequently, the reference to “establishment” in the First Amendment also had a non-preferential meaning. In Adams’s estimation, the disestablishment language in many states’ constitutions only intended to “disclaim all preference of one sect of Christians over another,” and the First Amendment “leaves the entire subject [of religion] in the same situation in which it found it.”