New Book: "A Less Perfect Union: The Case for States' Rights" by Adam Freedman (with a Review by Michael Greve)
Michael Ramsey

Adam Freedman's book A Less Perfect Union: The Case for States' Rights (Broadside Books 2015) is now published.  Here is the book description from Amazon: 

The Constitution's stated purpose is to create "a more perfect union." but what if our union has become too perfect? what if our national government has become too powerful? what if our states are losing the very rights and freedoms that made our country what it is?

"States' rights" has become a dirty phrase in American politics. Over the past few decades, especially since the civil rights movement, liberals have been amazingly successful in painting states' rights as a smoke screen for racist repression. It is a convenient way to demonize small government conservatives and tar them with the brush of segregation.

Yet as Adam Freedman reveals in this surprising and essential book, states' rights has been an honorable tradition—a necessary component of constitutional government and a protector of American freedoms since the birth of our nation. In fact, states' rights has historically been the rallying cry for just about every cause progressives hold dear: the abolition of slavery, union rights, workplace safety, social welfare entitlements, and opposition to war.

In A Less Perfect Union, Adam Freedman provides an illuminating history of states' rights, from the Constitutional Convention through the Civil War and the New Deal to today. He reveals how hard the Founders fought to keep power in the hands of the states, the surprising role of states' rights as a weapon against slavery, and the federal government's eventual abandonment of all constitutional limitations on the scope of its power. Surveying the latest developments in Congress and the state capitals, he finds a growing sympathy for states' rights on both sides of the aisle, as the federal government usurps more and more control.

But Freedman goes further, boldly arguing that a return to states' rights is the only way to check the tyranny of federal overreach, take power out of the hands of the special interests and crony capitalists in Washington, and realize the Founders' vision of freedom. With concrete policy proposals, A Less Perfect Union lays out an achievable vision of a nation in which states are free to address the health, safety, and economic well-being of their citizens without federal coercion and crippling red tape.

As states' rights issues continue to drive the national conversation as we approach 2016 and beyond, A Less Perfect Union is essential reading for anyone frustrated by the federal government's daily infringement of the quintessentially American right of local self-government.

Via Michael Greve at Liberty Law Blog (with a pointer to his [generally favorable] review in the Wall Street Journal).


Two Reasons the Iran Deal Is Unconstitutional
Michael Ramsey

In the Wall Street Journal, David Rivkin and Lee Casey argue that "The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make."  (Via Elizabeth Price Foley at Instapundit, who has further quotes and  favorable comments).  Jack Goldsmith responds at Lawfare: More Weak Arguments For The Illegality of the Iran Deal.

I agree with most of Professor Goldsmith’s comments, including: (a) I think objections to the UN Security Council resolution are misplaced, as it appears to the bind the U.S. to future action regarding U.S. sanctions [at least that’s what John Bellinger says, and I would not want to argue with him], and (b) I see no constitutional objection to the President telling Iran that he will take certain actions that are within his constitutional and statutory powers [as Goldsmith has argued previously].

But I still think the Iran deal is constitutionally problematic, for two reasons (neither of which Professor Goldsmith addresses):

1.  The deal’s constitutionality appears to depend on it being non-binding.  A number of commentators have assumed that it is.  But it appears ambiguous  at best on this point.  It’s true that the text (introduction to Article I) declares that “Iran and E3/EU+3 will take the following voluntary measures...”  But standing alone that language seems unclear – does it mean that the parties need not take the measures unless they voluntarily want to in the future, or that the parties are voluntarily (i.e., without coercion) entering into the agreement?  On a quick read, nothing else in the agreement refers to it as non-binding, and many of its measures are described in obligatory terms.  (For example, Section 26, the U.S. “will refrain” from re-imposing sanctions once sanctions are lifted.)  Although the U.S. negotiators previously referred to the pending deal as nonbinding, Iran insisted in response that it was intended to be binding (this was in March/April of this year).  I’m not aware that the U.S. has recently and unequivocally described the deal as nonbinding (and even if it did, it’s not clear that the unilateral view of the U.S. negotiators would be conclusive).

In my view, the President has a constitutional obligation to make clear, to both the other parties to the agreement and to Congress, that the agreement is nonbinding.  For reasons set forth here, the President does not have independent constitutional power to make a binding agreement in these circumstances.  But if the U.S. is not clear that the agreement is nonbinding, the agreement might be regarded as binding under international law despite the unexpressed U.S. intentions.  Moreover, as Congress considers whether to approve lifting U.S. sanctions, Congress needs to understand whether Iran’s commitments under the deal are binding (especially because if the U.S. commitments aren’t binding, neither are Iran’s).

As a result, at minimum the deal is unconstitutional unless the administration makes clear (and gets agreement from the other parties) that the deal is nonbinding.

2.  Even if the deal is nonbinding, the President has still exceeded his authority by making commitments on which he cannot deliver.  As noted, I entirely agree with Professor Goldsmith that the President, exercising his executive power over foreign affairs, may agree that he will take actions within his constitutional and statutory power if Iran undertakes specified actions (all in a reciprocal and nonbinding way).  But the Iran deal promises U.S. actions beyond President Obama’s term in office, and as a result promises actions over which he has no control.  To take two examples --

As noted, under Section 26:

The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions.

Under Section 28:

Senior Government officials of the E3/EU+3 [which includes the U.S.] and Iran will make every effort to support the successful implementation of this JCPOA including in their public statements.

Both sections reflect ongoing commitments by the U.S. for the ten-year life of the deal.  At minimum, these sections purport to direct future U.S. Presidents to support the deal, and at least arguably they direct future Congresses not to re-impose sanctions.  Even if these directions are not binding as a matter of international law, they create diplomatic expectations which seem constitutionally unsound.  Nothing in the Constitution empowers the President to speak for future Presidents.

It may be argued that, whatever the Constitution’s original meaning, Presidents have entered into many nonbinding commitments on important matters, sufficient to establish a constitutional precedent.  I’m skeptical, however, that many prior nonbinding commitments have contained specific directions to future Presidents, as opposed to undertakings by the current President.  (And even if they have, they may simply represent previous constitutional violations).

In sum, the Iran deal is unconstitutional (a) because the President has not taken sufficient action to assure that it is nonbinding under international law, and (b) even if it is nonbinding under international law, it should be only a commitment of the current President and should not purport to be an undertaking of future Presidents for whom the current President cannot speak.


William Marshall: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action
Michael Ramsey

William P. Marshall (University of North Carolina at Chapel Hill - School of Law) has posted Actually We Should Wait: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action (2014 Utah Law Review 773 (2014)) on SSRN.  Here is the abstract:      

Although once committed to diminishing the expansion of presidential power, President Obama has become a proponent of energetic unilateral executive-branch action. Faced with a relentless and uncompromising opposition in Congress, the President has come to believe that it is only through the exercise of his unilateral powers that he will be able to accomplish his agenda and meet the promises that he made to the American people.

Some defend President Obama’s expansive use of presidential power because Congress has been so defiant. According to this view, the President should have the authority to aggressively use executive power when Congress does not act responsively or appropriately. This article contests that position. It agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good. It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.

Part I of this article provides the necessary background by briefly describing the partisan political gridlock faced by President Obama and identifying some of the unilateral uses of presidential power employed by the Obama administration in its efforts to overcome or circumvent its political opponent's obduracy. Part II places the Obama administration's actions in context by discussing why presidential power had already become so expansive and why it continues to expand. Part III discusses the paradoxical role that congressional obstruction plays in relation to presidential power. Part IV identifies some of the concerns related to the centering of power in the presidency and questions whether, for whatever reasons, including congressional obstruction, presidential power should be expanded in a manner that accentuates those concerns. Weighing the concerns of government breakdown and harm to the national interest on one side versus aggrandized presidential power on the other, it contends that the constitutional answer to this question, with minimal exceptions, should be no.


Gregory Maggs: Judge Bork's Remarkable Adherence to Unremarkable Principles of National Security Law
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted Judge Bork's Remarkable Adherence to Unremarkable Principles of National Security Law (13 Ave Maria L. Rev. 5-19 (2015)) on SSRN.  Here is the abstract:

The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox and The Tempting of America, are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork’s judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations. 

This essay discusses Judge Bork’s opinions in four important D.C. Circuit cases: Demjanjuk v. Meese, Persinger v. Islamic Republic of Iran, Finzer v. Barry, and Tel-Oren v. Libyan Arab Republic. In these cases, Judge Bork identified and followed nine very traditional principles of law concerning national security and foreign relations. These principles were so clear and well-established that at the time they seemed unremarkable. Indeed, while scrutinizing nearly every other aspect of Judge Bork’s records, proponents and opponents of his nomination to the Supreme Court said very little about his opinions in these cases. How Judge Bork addressed the law in the area of national security and U.S. foreign relations is a subject that deserves a fresh look in light of important Supreme Court litigation arising out of the War on Terror. In a series of cases, often decided by the narrowest of margins, Justices of the Supreme Court have effectively rejected each of the nine traditional principles that Judge Bork applied in his D.C. Circuit opinions. Contrasting the Supreme Court’s controversial decisions in these cases to Judge Bork’s very different and more restrained approach reveals another aspect of what was lost when the Senate failed to confirm Judge Bork’s nomination to the Supreme Court in 1987.


Bernadette Meyler: Law, Literature, and History
Michael Ramsey

Bernadette A. Meyler (Stanford Law School) has posted Law, Literature, and History: The Love Triangle (UC Irvine Law Review, forthcoming) on SSRN.  Here is the abstract:

A decade ago, at the end of her characteristically astute provocation of law and literature scholars in “Law, Literature, and the Vanishing Real,” Julie Peters suggested moving beyond the law/literature dichotomy into both “law, culture, and the humanities” and global “disciplinary tourism.” By silently glossing over “literature” in favor of the broader terms “culture” or the “humanities,” new formulations of the area of study might, she indicated, help to dispel the “interdisciplinary illusion” fueling the opposition between and relation of law and literature, dispensing with the notion shared by scholars of both law and literature that the “real” is located just over the methodological divide between the fields. Peters’ essay valuably rejected the binary that appears in far too many versions of law and literature scholarship. Its aspiration to put aside disciplinary boundaries among sectors of the humanities in studying “law, culture, and the humanities” or “law and the humanities” tout court has not, however, proved entirely feasible, nor is it necessarily desirable.

As those familiar with “law and society” know, the turn toward a broader category — like culture, or the humanities, or society — may not remain unvexed, as questions arise respecting the unity of the umbrella term and its framing in opposition to law. Moreover, from within the parameters of law, and particularly those of legal pedagogy, “law and the humanities” designates not precisely a decomposition of the boundaries between law and its outside, but a gesture toward one form of law’s outside, the humanistic, as opposed generally to the social sciences. Despite the proliferation of the “law and” fields, many — including law and the humanities — still appear from the vantage point of legal pedagogy as a superficial carapace that can be shed when financial exigencies press law schools to cut costs and reduce tuition.

This Article aims to demonstrate the centrality of the humanities to the core of law school pedagogy today. At the same time, by focusing on two areas within the humanities — literature and history — it tries to show how disciplines still matter, both as engines and impediments. Examining the shifting passions that bind law, literature, and history to each other, it foregrounds the dynamic quality of disciplinary relations as the attraction of fields for each other waxes and wanes. This dynamism itself advances the possibilities for new births of knowledge. Although unstable and of unknown fate, the love triangle of law, literature, and history continues to spawn fertile offspring.


Daniel Farber: The Declaration, the Constitution, and the Interpreter's Dilemma
Michael Ramsey

Daniel A. Farber (University of California, Berkeley - School of Law) has posted The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning on SSRN.  Here is the abstract:      

The Declaration of Independence is one of the paradigm texts in American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Essay considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists generally privilege the historical meaning of texts. 

Yet originalist Justices on the Court have acknowledged that iconic meaning also exists and can sometimes be more relevant. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), these originalist Justices turned to iconic meaning over historical meaning, endorsing dynamic interpretation of monuments -- even those containing texts. Ironically, then, they found fluidity in the meaning of texts that are literally carved in stone. 

The Essay closes with a discussion of the interpreter’s dilemma: the tension between fidelity to the past (served by historical meaning) and affirmation in the present (served by iconic meaning).


Thomas Colby: In Defense of the Equal Sovereignty Principle
Michael Ramsey

Thomas Colby (George Washington University Law School) has posted In Defense of the Equal Sovereignty Principle (Duke Law Journal, Vol. 65, 2016, forthcoming) on SSRN.  Here is the abstract:     

The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains “a fundamental principle of equal sovereignty among the States.” For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true, and made little effort to substantiate it. Naked as it was, the Court’s conclusion prompted savage criticism not only from the left, but also from the right. The consensus critical reaction was epitomized by Judge Richard Posner’s remark that “the court’s invocation of equal sovereignty is an indispensable prop of the decision. But...there is no doctrine of equal sovereignty. The opinion rests on air.” Critics also worried that, because there are countless federal laws that can be said to treat the states disparately, the Court’s brand-new equal sovereignty principle is, as Justice Ginsburg put it in her strident dissent, “capable of much mischief.” This Article contends that the critics of Shelby County are only half right — and that the Shelby County majority, despite its cursory analysis, is half right too. The critics are correct that the Court seemingly pulled the equal sovereignty principle out of thin air — that it played a little too fast and loose with precedent and failed to wrestle adequately with constitutional text, structure, and history. Nonetheless, this Article concludes — after performing the thorough examination of the traditional sources of constitutional law that was missing from the ipse dixit of Shelby County — that there is indeed a deep principle of equal sovereignty that runs through the Constitution. In James Madison’s words, the Constitution contemplates “a government of a federal nature, consisting of many coequal sovereigns.” Properly understood, however, the equal sovereignty principle is not a guarantee of state equality in all respects. It guarantees only equal sovereignty — equal capacity for self-government — which makes it more fundamental, but also less expansive, than critics have feared.


Ilya Somin on the Constitution and the Iran Deal
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Is the Iran deal constitutional? (following up on my post here). This is a key point:

In the slightly longer run, however, the constitutional objections to the agreement might make it easier for a future administration to repudiate it. Opponents of the deal could potentially begin laying the groundwork for such a move by taking the position that it will not be legally binding unless and until it gets affirmative congressional approval.

At least, the administration should be pressed to explain why it thinks the deal is constitutional.  (I have not seen an official defense, if there is one.)


Final (?) Thoughts from Kurt Lash in the Lash-Root Exchange
Michael Ramsey

At Liberty Law Blog, Kurt Lash: Equality and the Civil Rights Act of 1866: A Final Response to Damon Root.

Lawrence Solum on Allen Kamp on Constitutional Interpretation and Technological Change
Michael Ramsey

At Legal Theory Blog, Larry Solum notes this essay by Allen Kamp (John Marshall Law School): Constitutional Interpretation and Technological Change (49 N.England L. Rev. 201 (2015)), and comments: 

Kamp may be claiming that there would be universal agreement that if the original meaning of the First Amendment were limited to "speech" in the sense of oral communication and "press" in the sense of material produced by printing presses, then it would nonetheless be normatively justified to adopt an amending judicial construction that extended to all forms of expression.  My sense that is many academic originalists would not agree.  

Of course, that would not be the end of the matter from an originalist perspective.  One might believe that "speech" actually meant "expression."  Or one might believe that the original meaning of the Ninth Amendment sanctions the protection of expression outside the enumerated right to free speech and press.  And some originalists believe that the constraining force of the constitutional text is defeasible and that one of the defeasibility conditions authorizes Courts to follow precedent that is inconsistent with original meaning, but not to extend such precedents beyond their current bounds (narrowly construed).

But assuming that none of those outs is available, then I should think that if the text only protects oral communication and the use of printing presses, then judges should be constrained by the text.  In any event, that would be my view.

Agreed, but I would be inclined to take the view that, as Professor Solum suggests, the freedom of speech includes spoke and written communication.  Otherwise it would appear that the First Amendment did not protect handwritten communication, which seems unlikely.


Root, Lash, Bingham, Criteria, and Context
Chris Green

As Mike Ramsey notes just below, the Root-Lash debate continues. As explained here and here, I am generally in agreement with Root that the Privileges or Immunities Clause extends beyond the rights enumerated in the Constitution. But it is important to note the full complexity of the record and to avoid overreading the evidence. The Civil Rights Act of 1866 protected what many congressmen saw as rights of citizens of the United States. Representatives James Wilson and William Lawrence, Senator Lyman Trumbull, and Speaker of the House Schuyler Colfax on the campaign trail (see p. 14 of the Cincinnati Commercial collection), for instance, stated that rights in the Civil Rights Act of 1866, like the constitutionally-unenumerated right to contract, were paradigm cases of rights of citizens of the United States. The way such rights were discussed is powerful evidence that such rights were secured--and, importantly, secured not merely against racial discrimination--by the Privileges or Immunities Clause. The proponents of the Civil Rights Act spoke of such rights of citizens of the United States in unqualified terms, and this evidence is indeed extremely important background to the Privileges or Immunities Clause. But the Civil Rights Act itself is plainly limited to racial discrimination: it covered constitutionally-unenumerated rights, to be sure, but it guaranteed freedmen only the "same right ... as is enjoyed by white citizens." Root's argument would be far stronger were he to acknowledge this difference. As citizens of the United States, the freedmen had such rights absolutely, but they only had them under the Civil Rights Act of 1866 to the extent white citizens did too. We must distinguish the views of the proponents of the Civil Rights Act--views which were also expressed in the Privileges or Immunities Clause--from the Civil Rights Act itself.

Further, it is important to remember the difference between examples and definitions. Even if we know that the right to contact was considered a right of citizens of the United States in 1866, we still need to ask, "in virtue of what?" Just as Socrates demanded of Euthyphro the "general idea" of piety--"a standard to which I may look, and by which I may measure actions, whether yours or those of any one else, and then I shall be able to say that such and such an action is pious, such another impious"--we need a standard for what makes a right count as a right of citizens of the United States. My book, for instance, defends the local or national prevalence of a right among other similarly-situated fellow citizens of the United States as the relevant criterion. Root might disagree. But we need to know the framers' textually-expressed criterion for membership in the "privileges or immunities of citizens of the United States" set, not merely their list of such privileges.

Root's argument would also be more useful if he made it easier for readers to check out the context of his evidence. Bingham's reference to the right "to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil" came at the end of his March 1871 speech on the Civil Rights Act of 1871. Two pages earlier, however--these are Congressional Globe pages, which were quite large--Bingham said that the rights of citizens of the United States were "chiefly defined" in the Bill of Rights, which he then read in full to the House of Representatives, and were not the same as the rights protected by the Comity Clause of Article IV. It is important as well to remember that Bingham had two months earlier, writing on behalf of the House Judiciary Committee, rejected voting rights for women under the Privileges or Immunities Clause by using a Comity-Clause-focused theory that, on its face, contradicted his view in March. I attempt my reconciliation of Bingham's views at pages 59-62 and 74-75 of my book, leaning on the "chiefly," but it is heavy sledding. (Lash's attempt is at pages 236-41 and 246-52 of his book.) Free-labor, Comity-Clause-and-Corfield-focused, Comity-Clause-focus-rejecting, and enumerated-rights-only readings of the Privileges or Immunities Clause all can claim some support from different bits of Bingham in 1871, but precisely because of the contrary evidence, it would be too much to say, as Root does, that there is "no problem" for Bingham here.

Update 7/21: Some similar points from Lash (citing this post!) here.

Update 7/23: Root replies to Lash, largely quoting the beginning of this post. Always happy for a debate to end with one side complaining "Why don't you agree with Green's third paragraph?" and the other "Why don't you agree with Green's first paragraph?"

A Further Reply from Damon Root on Economic Liberties and the Fourteenth Amendment
Michael Ramsey

Round four (or perhaps five, depending how you are counting) in the Lash-Root exchange: Damon Root, Why the 14th Amendment Protects Economic Liberty: A Further Reply to Conservative Law Professor Kurt Lash.  From the core of the argument (responding to Professor Lash's claim that the principal protection for economic liberties comes from the equal protection clause):

Let's return to the Civil Rights Act of 1866. It says that all persons born on American soil are citizens of the United States and that all U.S. citizens "of every race and color...shall have the same right, in every state and territory...to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens."

In Lash's view, this law is nothing more than an equal-protection measure. "Yes," he writes, "economic rights were protected—equally. But, no, they were not protected absolutely in the manner proposed by Root and the libertarians."

In other words, according to Lash, if a local government passed a law forbidding both blacks and whites from exercising their right to contract, such a law would be perfectly acceptable because it would not violate Lash's equality-only reading of the Civil Rights Act.

But that result would be absurd and the framers of the Civil Rights Act intended no such absurdity. The framers of the Civil Rights Act understood their legislation to serve a dual function, one that (A) protected fundamental rights from state abuse, and (B) required the states to guarantee equal treatment under the law to all citizens. In the words of Congressman James Wilson of Iowa, who sponsored and managed the Civil Rights Act in the House of Representatives, "citizens of the United States, as such, are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of the law." (Emphasis added.)

So yes, the Civil Rights Act compelled the states to treat citizens equally regardless of race. But the act also compelled the states to respect "the great fundamental civil rights" mentioned or acknowledged in the act itself, such as the unenumerated economic right to make contracts.


Alexander Kasner: The Original Meaning of Constitutional Inventors
Michael Ramsey

Alexander J. Kasner (Stanford Law School '15) has posted The Original Meaning of Constitutional Inventors: Resolving the Unanswered Question of the MadStad Litigation (68 Stanford Law Review Online 24 (2015)) on SSRN.  Here is the abstract:      

In litigation that garnered national attention, a “garage inventor” of a new design for motorcycle windshields challenged the Leahy-Smith America Invents Act (AIA) as unconstitutional under the U.S. Constitution’s Patent Clause. The basis of the challenge in the case — MadStad Engineering, Inc. v. U.S. Patent & Trademark Office — uncoils as a pleasing syllogism: the AIA transitioned the American patent system from first-to-invent to first-inventor-to-file. The plaintiff argued that the Patent Clause, in enumerating to Congress authority to grant patents, limited the right to “inventors” who were the first, in time, to invent. To complete the circuit: a first-inventor-to-file system is unconstitutional insofar as it grants patent rights to inventors who were second to conceive but first to reach the patent office.

The suit was dismissed at the district court level on standing grounds, with the court relying almost entirely upon the newly minted precedent of Clapper v. Amnesty International, USA. The U.S. Court of Appeals for the Federal Circuit affirmed this dismissal last year. The central constitutional question of the suit, however, persists unresolved, as the appellate court took care “not [to] reach MadStad’s constitutional arguments.” Some critics have argued that the plaintiff’s interpretation is impractical; others have contended that potential plaintiffs cannot demonstrate a sufficient causal link to the alleged injury suffered. In what follows, I use the MadStad litigation to draw out a concentrated analysis of what modern courts might consider dispositive for purposes of discerning the metes and bounds of the Patent Clause: the text and the original understanding.


Ingrid Wuerth on Zivotofsky v. Kerry
Michael Ramsey

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted Zivotofsky v. Kerry: A Foreign Relations Law Bonanza (109 American Journal of International Law, 2015, forthcoming) on SSRN.  Here is the abstract:       

This short paper on Zivotofsky v. Kerry gives an overview of the case and analyzes its significance for international law in constitutional interpretation and for the Supreme Court’s “normalization” of foreign relations law. 

In terms of the overall significance of the case, it is a bonanza of foreign relations issues and doctrine: the executive Vesting Clause, the President as the “sole organ” of the nation, the need for the nation to speak with “one voice,” Curtiss-Wright, Youngstown, diplomatic history and practice, the Republic of Texas, secrecy and dispatch, Citizen Genet, the Spanish-American war, international law in constitutional interpretation, formalism and functionalism, the list goes on and on! Although the actual impact of the case on the outcome of inter-branch disputes remains to be seen, the case will be cited and debated in so many areas of foreign relations law that it is destined to become a classic in the field. 

The case also provides strong support for the use of international law in constitutional interpretation. All of the Justices write or join opinions which rely on modern international law to define “recognition,” a category of conduct which now has great constitutional significance because the Court holds that the President’s power over it is exclusive. With the exception of Justice Thomas, the Justices rely on contemporary international law to define the scope of recognition without providing a methodological reason for doing so, and often without tracing or linking contemporary international law back to 18th international law.

As for the normalization of foreign relations law – a trend recently identified and explored at length by Ganesh Sitaraman and myself [Ed.: see here] -- the case is a decidedly mixed bag. Contrary to the normalization trend, the case holds for the government and it also favorably cites some exceptionalist cases. On the other hand, the case is ultimately decided on quite narrow reasoning, the famous Curtiss-Wright dicta is roundly criticized, and much of the Court’s functional reasoning is narrowly tailored to the context of recognition.

As my comment here indicate, I think Professor Wuerth is too modest regarding Zivotofsky and the "normalization" hypothesis; in my view it fits well with her analysis of the trend in foreign relations law toward more formalistic (or at least legalistic) analysis, and with something of an originalist/textualist revival.


Kurt Lash Replies to Damon Root
Michael Ramsey

The latest in the Kurt Lash-Damon Root exchange on the Fourteenth Amendment and economic liberties: Root Digs a Deeper Hole: The Equal Protection of Economic Privileges and Immunities.

Whatever one thinks on the merits, this exchange is very helpful in clarifying and focusing the debate.

Further thoughts from Randy Barnett here.


Garrett Epps in the Atlantic on Clarence Thomas
Mike Rappaport

In the Atlantic, Garrett Epps has a piece on Clarence Thomas.  I like Epps.  He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful.  And his book on the 14th Amendment was quite enjoyable.  But Epps's politics are far to the left of Clarence Thomas's and therefore it is not surprising that he is very critical of Thomas.  In fact, I think Epps was quite unfair to Thomas.  I thought I would respond to some of his major points.

First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC.  Epps notes that the “experience left him embittered.”  While Epps sort of presents both sides, he neglects an obvious inference.  The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false.  To be clear, I don’t know what happened between the two.  But the failure to note this obvious explanation for Thomas’s reaction is disappointing. 

Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.”  This complaint is curious.  Thomas joined the three other dissents, which did mention these precedents.  Thomas wrote separately to discuss the original meaning.  Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again. 

Third, Epps notes that Thomas is unusual in that he cites the Declaration of Independence.  Epps criticizes Thomas, writing that “the Declaration of Independence is not actually a source of law, any more than is Locke’s Second Treatise of Government or a “1756 editorial in the Boston Gazette,” other sources that Thomas cites.  But Epps again is not on strong ground.  Sometimes Thomas uses the Declaration of Independence (or Locke’s Second Treatise) as evidence of what constitutional terms, like liberty, mean, and that is entirely unproblematic.  At other times, Thomas has seemed to cite the Declaration as either a source of law or at least a source of binding American principles.  While I don’t agree with Thomas on these occasions, I find it curious that Epps is making this criticism.  Epps is a nonoriginalist who seems to believe that judges can look to other sources, such as modern values and the opinions of the judge, as sources of law.  Certainly, the Declaration is a less problematic source of law than those sources.

Finally, Epps concludes his attack by claiming that Thomas

does not take part in the arguments before the Court. His decisions rest on unusual grounds, often not even mentioned in the briefs; he will not even air his idiosyncratic ideas at a time when others might engage them. He does not tend to limit himself to the issue presented or the factual context within which it is embedded.

He is, in other words, not a judge at all. He seems instead to operate as a kind of would-be Platonic guardian, eager to govern the nation according to his own personal opinions—opinions to which law, and fact, and indeed reasoned argument, are all but irrelevant.

Once again, Epps’s criticisms are off the mark.  Yes, it is true that Thomas does not spar with the lawyers and justices at oral arguments, but why is this important?  Most appellate practitioners recognize that oral arguments are largely beside the point.  In fact, in many cases in the federal circuit courts, oral arguments are not even allowed. 

Epps claims that Thomas does not tend to limit himself to the issue presented and his arguments rest on unusual grounds.  Assuming that is correct, Epps neglects that Thomas is a great dissenter.  These features, assuming they are true, are characteristic of dissents.  Thomas is attempting to persuade the other justices and the public of his originalist views of the Constitution.  One might think that Epps, as a critic of much of our existing political culture, would be praising such unconventional approaches, not criticizing them (even if Epps disagrees with Thomas’s views on law).

Epps says Thomas is not a judge.  But Thomas, more than any other Justice, purports to follow the Constitution’s law as an originalist understands it – the Constitution’s original meaning.  It is the nonoriginalist justices – the one’s Epps likes – who substitute their views for the Constitution and therefore fail to be judges.  Thomas does not seek “to govern the nation according to his own personal opinions,” but according to the Constitution.

Update:  I changed my description of Epps's politics to make it more accurate. 

(Cross posted at the Liberty Law Blog) 

Harvard Journal of Law and Policy Summer Issue Now Published
Michael Ramsey

The latest issue of the Harvard Journal of Law and Public Policy (Vol. 38, No. 3, Summer 2015) is now published.  It has one of the most important originalist articles of the year, which I've discussed before: Stephen Sachs, Originalism as a Theory of Legal Change.  From the introduction:

Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It’s a theory of our law: a particular way to understand where our law comes from, what it requires, and how it can be changed.

This view starts with a common assumption of legal systems, that the law stays the same until it’s lawfully changed. A statute that’s hundreds of years old can still be good law today, simply because it was properly enacted at some earlier time and has never been amended or repealed. If you start with an old statute book and add everything enacted since, you should end up with the code as it stands today.

To an originalist, what’s true of old statutes is also true of our old Constitution, and indeed of our old law generally. Whatever rules of law we had at the Founding, we still have today, unless something legally relevant happened to change them. Our law happens to consist of their law, the Founders’ law, including lawful changes made along the way. Preserving the meaning of the Founders’ words is important, but it’s not an end in itself. It’s just a means to preserving the content of the Founders’ law.

Not everyone agrees with this picture, of course; not even all “originalists.” People use the word “originalism” in lots of different ways. But treating originalism as a claim about law, not just interpretation, gets us past some of the debates that have occupied the field—and it helps us see the way to more fruitful areas for agreement.

Also in the volume is this important article by co-blogger Mike Rappaport: Why Non-Originalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause, which was cited in draft form in Justice Scalia's Noel Canning concurrence.

(As these and other articles show, this publication has some of the best and most influential writing available.)


Is the Iran Deal Unconstitutional?
Michael Ramsey

Is the deal announced yesterday with Iran unconstitutional?

In a word: probably.

Here is my assessment.  To begin, the Constitution’s text provides the way to make major international agreements – through supermajority approval in the Senate, as set forth in Article II, Section 2: “The President … shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”  This is, moreover, the way the framers and ratifiers understood it: every discussion of international agreement-making in the founding era assumed it would take place through the Senate as Article II, Section 2 describes.  Some argued that this was not enough protection against harmful treaties, and wanted a higher bar – three-quarters of the Senators present, or two-thirds of all Senators, not just of those present.  No one contemplated that treaties could be made in an alternate, less demanding way.

Making major international agreements in the way the text prescribes is not just an eighteenth-century relic; it is the usual course for the United States today (subject to some exceptions noted below).  And the usual course is that if an agreement cannot get two-thirds approval in the Senate, there is no agreement.  Thus the Senate rejected the Comprehensive Nuclear Test Ban treaty in 1999 despite heavy lobbying by President Clinton. For many years the Law of the Sea Convention has remained unapproved because it lacks sufficient votes in the Senate (even though a majority of Senators support it).  The U.N. Arms Trade Treaty, which went into effect in 2014 without U.S. ratification, is so strongly opposed in the Senate that the President has not submitted it for approval, despite U.S. signature on the treaty and the President’s support for it.  And even where the Senate has given consent, it sometimes came only after a difficult campaign.  Most prominently, the New START Treaty, a centerpiece of the Obama administration’s arms control policy, gained supermajority Senate consent in 2010 only by a narrow margin after considerable suspense and debate.

Why might the Iran deal be different?  I see three possible arguments (it remains to be seen which one the administration will emphasize).

(1)  The deal is an executive agreement, done on the President’s independent authority.  Historically presidents have made (and the Supreme Court has approved) some international agreements made on independent presidential authority.  There is a textual basis for this practice.  Article I, Section 10, addressing the powers of the states, distinguishes between “Treaties” and “Agreements or Compacts.” States cannot make the former, but they can make the latter with approval from Congress.  One implication of this section is that the framers recognized a category of “agreements” other than treaties – and thus outside the treatymaking clause of Article II, Section 2.  Perhaps the President’s diplomatic power includes these “non-treaty” agreements.  In my view, the originalist case for such a power is quite strong.

The problem for the administration here is that the agreements made by prior Presidents under this power have been minor and typically limited to settlements of claims, arrangement of military affairs, diplomatic recognition, and other matters within the President’s military and recognition powers.  No President has ever made a long-term arms control agreement on his own authority.  If Presidents could make major long-term agreements on their own authority, simply by calling them agreements instead of treaties, that would wholly undermine the Article II, Section 2 process and make a mockery of the framers’ assumption that the Senate supermajority would check ill-advised presidential treatymaking.

(2) The deal is a nonbinding “political commitment” rather than a treaty.  The essential feature of a treaty is that it is a binding commitment under international law.  Historically presidents have also made nonbinding arrangements without Senate approval – and, in my view, these are within the President's constitutional power.  Suppose President Obama tells Iran that if Iran takes certain actions or makes certain promises, he will use his statutory authority to suspend sanctions on Iran.  He would be free to change his mind (as would Iran), but assuming he wanted an amicable relationship with Iran, he presumably wouldn’t.  Proposing or undertaking this sort of reciprocal action does not require Senate approval because no treaty has been made.  And it is likely within the President’s executive diplomatic power, because it has been accomplished simply through an exercise of diplomacy. (See prior discussion here [from Jack Goldsmith and Marty Lederman] and here; see also this post from Julian Ku assuming that yesterday's deal is nonbinding).

The problem with this defense is twofold.  First, a nonbinding agreement – being nonbinding – does not limit future Presidents (at least legally, although there may be political and diplomatic constraints).  This was the central point of Senator Tom Cotton’s famous (or infamous) open letter to the Iranian leaders in March.  Cotton was right on the essentials: a nonbinding agreement is just an undertaking by President Obama as to his own conduct.  The President cannot use a nonbinding agreement to bind successors.

Second, the Iran deal doesn’t look like a nonbinding agreement.  Iran appears to understand it as a binding agreement.  And at least some of its terms appear to (purportedly) constrain U.S. action in the future, beyond the end of President Obama’s term.  It’s likely that a vocal defense of the agreement as nonbinding would substantially undermine the deal.

(3) Congress has approved (or will approve) the deal.  Despite Article II, Section 2, in modern times Congress has approved some very important international agreements by a simple majority vote in both Houses rather than a supermajority vote in the Senate.  Mostly these have been trade agreements such as NAFTA; it is assumed that the pending Trans Pacific Partnership will be approved this way.  If Congress affirmatively approves the Iran deal, that would substantially boost its constitutionality.  Although a majority of Congress is less of a check on the President than a supermajority of the Senate, it remains a substantial check, and one with strong historical support.

I assume, though, that Congress won’t expressly approve the deal.  Can the administration claim Congress has implicitly approved it?  Under the legislation passed last May, Congress will consider the question of lifting sanctions pursuant to the deal.  If Congress approves lifting the sanctions, arguably that would constitute an approval of the deal as a whole (even if Congress doesn’t say so expressly).  But again I assume this is unlikely.

What if Congress votes to disapprove lifting the sanctions, but the President vetoes the legislation and the veto is not overridden?  Or what if Congress fails to act at all?  The President may argue that Congress’ failure to enact disapproving legislation constitutes approval, or “acquiescence,” in the deal.  However, this argument appears to confuse two issues.  Prior to May, the President had statutory authority to suspend sanctions; the May legislation limited that authority by giving Congress a right to disapprove.  If Congress fails to disapprove suspension within the statutory period (either because it does not act or because the President’s veto isn’t overridden), the President regains his prior authority to lift the sanctions.  But that doesn’t speak to Congress’ approval of the deal as a whole.  In particular, it does not speak to Congress’ view of whether a future President could re-impose sanctions.

Professor David Golove previously made a similar argument which may prove especially attractive to the administration.  In his view, the May legislation already approved the deal, by assuming the deal would take place and reserving Congress’ ability to disapprove it if it wanted to.  One might describe this as authorizing the deal, subject to a “veto” by Congress; if Congress fails to exercise the “veto,” then the prior approval stands.

I think, though, this reading of the May legislation isn't plausible.  It’s important to recall that, whatever the administration may now say, in March and April of this year it described the developing deal with Iran as a nonbinding arrangement (see further discussion here from Goldsmith and Lederman).  (Presumably it did so to forestall constitutional objections, since it made clear that it did not plan to seek Congress’ approval).  Thus the context of the May legislation was that the President planned to make a nonbinding arrangement without Congress’ approval and, pursuant to that arrangement, exercise his statutory power to suspend the sanctions.  Thus the point of Congress’ legislation was to limit the President’s power to suspend sanctions pursuant to a nonbinding agreement (which it assumed the President would conclude on his own authority).  To now argue that the legislation approved a binding agreement takes it completely out of context.

Returning to the Constitution’s text, the basic design is that major international agreements require Senate approval to guard against ill-advised undertakings by the President alone.  Substituting approval by a majority of Congress for a Senate supermajority is already a softening of the constitutional regime.  But the President isn’t (I assume) going to get approval by a majority of Congress.  Trying to find approval in Congress’ failure to act, or claiming (as Professor Golove appears to) that Congress inadvertently approved a deal it didn’t intend to approve, goes far beyond the constitutional design. If we are going to rely on extraconstitutional approval by Congress to substitute for the constitutionally-required approval by the Senate, fidelity to teh constitutional design seems to require at least that Congress’ approval be directly and honestly obtained (as it was, for example, with NAFTA and the other congressional-executive trade agreements).  The alternative is essentially unilateral presidential agreement-making (see this article by Oona Hathaway): the President’s lawyers will almost always be able to claim some way in which Congress arguably implicitly approved his action.


More of Lincoln on Departmentalism vs. Judicial Supremacy
Mike Rappaport

Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again!  In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers” (emphasis added).  I noted that one might interpret this as expressing the view that a series of decisions might bind the other branches of the government.

Seth Barrett Tillman alerts me to this longer statement by Lincoln, from his Speech on the Dred Scott Decision, given at Springfield, Illinois, on June 26, 1857:

Judicial decisions are of greater or less authority as precedents according to circumstances. That this should be so, accords both with common-sense and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts, which are not really true; or if wanting in some of these, it had been before the court more than once, and had there been affirmed and reaffirmed through a course of years,—it then might be, perhaps would be factious, nay, even revolutionary, not to acquiesce in it as a precedent.

But when, as is true, we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful to treat it as not having yet quite established a settled doctrine for the country.

This statement provides more information about Lincoln’s view.  First, it is clear that he believes that some individual precedents, depending on the circumstances, should be followed.  Second, the italicized portion of the quote suggests that he believes that a series of decisions over time, even if lacking some of the other favorable indicia he mentions, would be binding.  This suggests that the reading of Lincoln’s inaugural that I previously offered may have been correct.

Of course, that Lincoln said it does not mean it is correct, as a matter of law or morality at the time (although some people seem to act as if it does).  But Lincoln was a very smart and experienced lawyer and his statements tell us something about the law in the middle of the 19th Century.

(Cross posted at the Liberty Law Blog)

Damon Root Replies to Kurt Lash
Michael Ramsey

At Reason, Damon Root replies (sharply) to Kurt Lash's review of his book: Yes, the 14th Amendment Protects Economic Liberty.  From the introduction:

Lash's complaint boils down to this: "Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment's Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights." According to Lash, the 14th Amendment offers no such protection. State and local officials, in his view, should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.

The problem with Lash's view is that he's wrong on the history and wrong on the law. Lash's slipshod take on the 14th Amendment falls apart under scrutiny.

Let's start with Lash's claim that "the views and political make-up of the Congress that produced the Fourteenth Amendment made it extremely unlikely that they would produce a clause nationalizing the general subject of unenumerated civil rights in the states." According to Lash, the Republicans of the 39th Congress, who passed the legislation that became the 14th Amendment, went to great efforts "to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights."

But that's absurd. None other than Republican Congressman John Bingham of Ohio, the author of the 14th Amendment’s Privileges or Immunities Clause, openly stated that the 14th Amendment protects unenumerated economic rights against infringement by the states. "The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States," Bingham explained to the House of Representatives, include the "constitutional liberty...to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

 To fully appreciate why protecting economic liberty mattered to the framers and ratifiers of the 14th Amendment, it's necessary to first understand the historical context that led to the amendment’s creation. Here's the story in brief ...
And in conclusion:

Which brings us back to Lash. In the professor's view, the 14th Amendment cannot be read to protect unenumerated rights. Yet Senator Jacob Howard, a leading Republican who played a crucial role in the amendment's passage, plainly discredits this view. According to Howard, the 14th Amendment compels the states to respect both "the first eight amendments" (enumerated rights) and other fundamental rights that "are not and cannot be fully defined" (unenumerated rights).

In short, the evidence all points in the same direction: The 14th Amendment was designed to protect a broad range of fundamental rights from state abuse, including the very sort of unenumerated economic rights that Professor Lash tries—and fails—to disparage.


Saul Cornell: Originalism as Thin Description
Michael Ramsey

Saul Cornell (Fordham University -- History) has this response essay in the Fordham Law Review Res Gestae: Originalism as Thin Description: An Interdisciplinary Critique (responding [harshly] to Lawrence B. Solum, Intellectual History as Constitutional Theory, 101 Va. L. Rev. 1111 (2015), which in turn commented [harshly] on Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism, 82 Fordham L. Rev. 721 (2013)).  

From the introduction:

Although, I suppose, Solum is technically correct to say it may be argued that intellectual history could provide a theory of constitutional interpretation, that was not the thesis I advanced. In fact, my essay made the opposite argument. My argument was fairly simple: if one wishes to understand what the Constitution meant at a particular point in the past, one needs a rigorous historical method to recover the range of meanings it might have had for various groups living at the time. I argued that intellectual history provided a tried and true method for accomplishing this goal. The relevance of this historical information to constitutional theory and jurisprudence is not itself a historical question, but a legal and political one. My goal was not to enhance the importance of history to constitutional theory, but to diminish it.

There is little point in responding to Solum’s facile critique of intellectual history and to his glib dismissals of the work of eminent scholars such as David Hollinger, James Kloppenberg, and Quentin Skinner. Until Solum takes the time to read deeply and thoughtfully the literature of intellectual history, and obtains more than a smattering of familiarity with the scholars he criticizes, there is nothing to be gained from engaging with a critique based on a superficial reading of a few texts, some of which are now almost half a century old. Any serious evaluation of these scholars would require a careful examination of their theoretical writings, empirical scholarship, and the complex connections between theory and practice in their writing.

In a brief essay it would be impossible to address all of the theoretical and methodological flaws in Solum’s simplistic model of constitutional communication…

And in conclusion:

One of the biggest problems with Solum’s model is his failure to attribute any agency to individual historical actors. In Solum’s theory, individuals are used by language; they do not use language. Originalism in this sense is literally an “idiotic” constitutional theory. It treats most Americans in the Founding era as if they were voiceless: empty vessels for holding linguistic and contextual facts. By ignoring human agency, originalists, including Solum, are guilty of succumbing to the “enormous condescension of posterity,” a pernicious and ahistorical bias that the great English historian E.P. Thompson warned against in his classic study, The Making of the English Working Class.  By effectively silencing discordant voices and turning what was a lively and raucous public debate into a dull placid affair, Solum produces an ideologically distorted vision of the Founding. This approach drains politics from one of the most politically contentious moments in American history. To the extent that it was possible to fix the constitutional meaning for any provision of the Constitution (apart from the most trivial constitutional questions), such a process was a function of political and ideological forces, not the neutral philosophical application of a set of universal truths about language.

The time has surely arrived to abandon the simplistic approach to language and history associated with nearly all versions of originalism, including Solum’s semantic originalism. Rather than dismiss intellectual history, Solum and other originalists would do well to master a few of its more basic techniques.


Annaleigh Curtis: Why Originalism Needs Critical Theory
Michael Ramsey

Annaleigh E. Curtis (Harvard Law School '16) has posted Why Originalism Needs Critical Theory: Democracy, Language, and Social Power (Harvard Journal of Law and Gender, Vol. 38, No. 2, 2015) on SSRN.  Here is the abstract: 

So much of the debate over originalism and its merits has focused on determining the meaning of the text that commentators have overlooked the potential problems with that meaning in itself, whatever it turns out to be. Suppose for the sake of argument that we can determine the original meaning of some bit of text. Our language at any given time provides a snapshot, not merely of what is meant by some string of words, but of who is in power, who is left out, and what is thought important. Uncovering the meaning of a statute written in a language that is itself undemocratic, then, is no help to originalists if they take seriously their own commitment to democracy. To put this another way, the semantic context of the words that end up in statutes and constitutions is not politically neutral, so a theory like originalism that relies on semantic context for interpretation will not be politically neutral either. This Note presents a problem for originalism’s semantic theory as applied to its political theory instead of the other way round.

I argue here that the existence of hermeneutical injustice as a pervasive feature of our collective linguistic and conceptual resources undermines the originalist task at two levels: one procedural, one substantive. First, large portions of society were (and continue to be) systematically excluded from the process of meaning creation when the Constitution and its Amendments were adopted, so originalism relies on enforcement of a meaning that was generated through an undemocratic process. Second, the original meaning of some words in those texts may be substantively objectionable as a result because they fail to capture the relevant experiences of affected people at the time even if they accurately capture the conceptual understanding of reasonable people at the time, and this substantive failing may infect the text’s democratic legitimacy. To the extent that it can be overcome, overcoming this epistemic problem will require originalists to take seriously the insights of critical theory, understood in this context as a normative inquiry into the historical context of the language and meaning of statutory text. Because originalists are already committed to a nominally descriptive inquiry into this context, and because this nominally descriptive inquiry masks the inherently normative aspects of the hermeneutical landscape, the switch to an explicitly normative inquiry may prove quite painless.


Kurt Lash on Damon Root's "Overruled"
Michael Ramsey

At Liberty Law Blog, Kurt Lash has two long posts (here and here) reviewing (critically) Damon Root's Overruled: The Long War for Control of the Supreme Court

Heroic stories need a bad guy for the hero to struggle against and overcome. Root supplies two. The first is the New Deal Supreme Court and its creation of the doctrine of “judicial deference” in matters involving commercial and economic regulation. The central goal of the libertarian fight for “control” of the Supreme Court is judicial protection of what libertarians believe is the fundamental right to economic freedom. Accomplishing this requires overruling the Supreme Court’s 19th century decision in The Slaughterhouse Cases (1873) and ratcheting up the modern Court’s application of deferential “rational basis review” in cases involving the right to pursue a trade. Much of Root’s book involves describing the libertarian long game in trying to achieve these results.

The second and somewhat surprising bad guy in Root’s book is constitutional federalism. This traditional theory of divided government power has long thwarted libertarian efforts to expand the protections of the Fourteenth Amendment and force states to recognize a fundamental right to economic freedom. Throughout the book, Root characterizes federalist resistance to the libertarian agenda as driven by misguided conservative theories of judicial deference or a “Bible-thumping” fear of freedom.


Overruled is devoted to challenging not only the expansion of federal power by judicial Progressives, but also to challenging the theory of state autonomy and the rights of local self-government. Federalism stands in the way of the libertarian ideal of national economic freedom by insisting that local economic policies be reserved to the people in the several states. Accordingly, despite their making common cause against unduly expansive theories of national power, libertarianism and federalism seem doomed to a death struggle. As J.K. Rowling might write, either must die at the hand of the other for neither can live while the other survives.

In Part 2, Professor Lash turns specifically to the Fourteenth Amendment's privileges or immunities clause:

Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights. The Supreme Court has repeatedly rejected such a reading, initially in The Slaughterhouse Cases (1873) and again in New Deal-era decisions like United States v. Carolene Products (1938). Root insists that such cases be overruled, and that advocates of federalism give up their wrongheaded efforts to limit judicial interference with the rights of local self-government.


I now want to focus on constitutional text, in particular on the Fourteenth Amendment’s Privileges or Immunities Clause. This single clause supports the entire theory of contemporary libertarian constitutionalism. If Root is wrong here, he is wrong everywhere else...

Lash (author of an important book on the clause) then argues at some length that Root is in fact wrong about the original meaning of the clause.

And in conclusion:

It is possible that Obergefell is but the first step in the direction of libertarian constitutionalism. Perhaps the next shoe to drop will be Justices Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor embracing and enforcing economic freedoms against overbearing commercial regulation.

Or not. That’s the problem. When there are no textual or historical constraints on judicial decision-making, it is difficult to say which social concerns will be constitutionalized and which will remain subject to democratic decision-making. We become subjects waiting for the Supreme Court to tell us what we may or may not do, what we may or may not discuss and decide.

Thus the irony of contemporary libertarian constitutional theory: What begins as a theory of limited government power and maximum individual autonomy ends as a theory of maximum federal power and minimum individual influence.

Federalists know this. They struggle against the lawless interpretive methodology that grounds so much of contemporary constitutional jurisprudence as much as they struggle against modern federal regulatory power, and for the same reason. The only just power of any government, or any branch of government, comes from the consent of the governed.  In the United States, that consent is found in a written Constitution ratified by the People themselves, one establishing a dual federalist system of government.

There is good reason to think that, at least at the present moment, libertarians will get closer to their goal of individual freedom by joining, not fighting, the federalist cause.


Nick Rosenkranz on Constitutional Structure
Michael Ramsey

At Volokh Conspiracy, Nicholas Quinn Rosenkranz: Los Angeles v. Patel and the constitutional structure of judicial review.  From the introduction:

Lost in the shuffle of Supreme Court commentary last week was Los Angeles v. Patel, a case that is ostensibly about unreasonable searches under the Fourth Amendment, but that is, more fundamentally, about the proper structure of judicial review.


In this post, I will discuss the court’s holding that “facial challenges can be brought under the Fourth Amendment.” The opinion on this point is disappointing, both because it is wrong and because it misses a perfect opportunity to think deeply about the constitutional structure of judicial review.

Also I like this line:  "Doctrinal arguments can and should help courts avoid reinventing the wheel, but only if some prior case in fact invented the wheel. "


Six Posts on Departmentalism and Judicial Supremacy
Mike Rappaport

Yesterday, I completed my series of posts on departmentalism and judicial supremacy.  My main point is that the issue turns largely on the history and that, while more research is needed, one real possibility is that the correct rule is a moderate judicial supremacy.

Here are the original five posts:

Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions

Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy

Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History

Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System

Departmentalism versus Judicial Supremacy – Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedent

And here is one more responding to Michael Paulsen:

Paulsen on Departmentalism versus Judicial Supremacy

Seth Barrett Tillman: Ex Parte Merryman -- A Short Reply to Andrew Hyman and Others
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Ex Parte Merryman: A Short Reply to Andrew Hyman and Others on SSRN.  Here is the abstract:       

I recently posted a short paper taking issue with the standard restatement of Ex parte Merryman.  [Ed.:  here]. This paper is a short reply to several responses which I have received from Andrew Hyman (posted at the Originalism Blog [ed.: here]) and others.

This paper addresses the myths that make up Merryman scholarship. The first and primary Merryman myth is that Lincoln ignored or defied a judicial order from Taney to release Merryman. The second Merryman myth is that Lincoln ignored Taney’s opinion. The third Merryman myth is that Lincoln could have and should have upheld rule of law values by seeking clarity from the courts by appealing Taney’s Merryman decision to the (full) U.S. Supreme Court. The fourth myth is that General Cadwalader, who was in overall command of Fort McHenry, ignored or defied Taney by not showing up for the first day’s hearing on May 27, 1861, and that he defied Taney by not producing Merryman as he was ordered to do. 

Lest there be any confusion . . . some have argued that the President—in certain circumstances—has an independent power to interpret the Constitution, and a concomitant power to defy court orders if the President comes to a good faith conclusion that the courts have erred. I have not here or elsewhere opined on the correctness of this departmentalist view. This view may be the best or the correct understanding of the original public meaning of the Constitution, and it may not. Instead, I make only the more limited claim that Merryman and what we currently know about Lincoln’s actions in connection with the Merryman litigation and its aftermath are too ambiguous to lend support to a strong departmentalist view of the Constitution. It may be that there is support for a Merryman power, but wherever that support may be, it is not to be had in Merryman.


Justice Scalia and the Eighth Amendment
Andrew Hyman

In a recent blog post, I mentioned the Punishments Clause and would like to follow up on that. Justice Scalia once wrote:

What it abstracts ... is not a moral principle of "cruelty" that philosophers can play with in the future, but rather the existing [1791] society's assessment of what is cruel.  It means not… "whatever may be considered cruel from one generation to the next," but "what we consider cruel today [in 1791]"; otherwise it would be no protection against the moral perceptions of a future, more brutal generation.  It is, in other words, rooted in the moral perceptions of the time.

In defense of Justice Scalia’s view, David Tucker has written that the generation of 1791 was not immersed in a philosophy of moral relativism to the extent that we are today, and therefore "did not think moral values reflected subjective choices."   Moreover, much of human history does bear out Scalia’s concern that societies often regress and rot, instead of inevitably progressing toward perfection.

Scalia once tempered his interpretation of the Punishments Clause by saying that "public flogging and handbranding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality."  But he eventually recanted: "what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional."  So, if anyone has an opinion about this, and would like to change it one way or another, Scalia might sympathize.

By 1791, many heinous forms of punishment such as ear cropping and hand branding were already falling out of widespread use on account of their perceived cruelty, although flogging was still widely practiced when the Fourteenth Amendment took effect in 1868.  Personally, if I had to choose between a few lashes and a long spell in prison, the former has some serious appeal.

In the end, I suppose the most principled originalist approach might be to say that courts may strike down a state-inflicted punishment only if it is "cruel" according to both recent sentiment as well as the values that prevailed in 1868 (and of course it would have to be unusual as well).  This would give effect to the presumption of constitutionality, while giving weight to how the framers used the term as well as weight to the possibility that the framers wanted future Americans to reevaluate the framers' own perceptions of cruelty.  It is true that this interpretation would not provide as much protection as Scalia's interpretation against the moral perceptions of a future and more brutal generation, but still it would provide some such protection by forbidding deviations and aberrations that even such a brutal generation would generally view as "cruel".  At the same time, this interpretation would rein in the practice of striking down statutes under the Eighth Amendment even though they were not deemed cruel in 1868.

Departmentalism versus Judicial Supremacy – Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedents
Mike Rappaport

In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be.  Let me remind the reader of two points from my prior posts:  First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment.  Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).

While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was.  One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided.  Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.

One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent.  A single precedent did not appear to obligate a court to follow that precedent.  Such a precedent needed to be considered, but it was not binding.  Rather, it was a series of precedents that obligated a later court to follow the precedent.  See here.

One might believe that the same principle applied to interbranch differences.  And therefore the executive and legislature might be obligated to follow the judicial decisions only when there has been a series of decisions reaching the same result.

There is, moreover, a theoretical reason that one might believe that the same rule would apply for the bindingness of judicial precedents on courts and on the executive and legislative branches.   When a series of decisions becomes binding on future courts, one might say that that series had come to be recognized as “the law.”  Before the series had been completed, the judicial decisions were simply the views of a few courts.  After the series, those decisions state the law.  And as the law, it might make sense that it would be binding not merely on future courts, but also on the executive and the legislature.

While I have not investigated to what extent the executive and legislative branches were bound by a series of decisions, there is some mild support for this from a President who the departmentalists see as their champion: Abraham Lincoln.  In his first inaugural, Lincoln wrote:

the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

This statement is not entirely clear, but it might mean that a single decision cannot bind the entire government, but that a series of decisions over time can.

This understanding of the bindingness of judicial precedents then represents something of an intermediate position between departmentalism and judicial supremacy.  I consider it a type of judicial supremacy because a series of judicial decisions can bind the other branches, but it is a much weaker form than what exists today.

Ultimately, the right answer to this issue will turn on two matters that I have mentioned, but not sought to resolve fully: the practices at the time of the Framing and whether the obligation (or not) of the political branches to follow judicial precedents is a matter of constitution law or common law.'

It is also worth emphasizing one additional point.  If the obligation of the executive and legislature to follow judicial precedents is a matter of constitutional law, then the practice at the time of the Constitution will be frozen into place.  By contrast, if that obligation is a matter of common law, then it is possible that the obligation might have changed over time – as we now seem to assume that a single decision of the Supreme Court decides the matter and the Court will not accept cert simply to reiterate a previously decided issue.

Larry Solum on the Press Clause
Michael Ramsey

At Legal Theory Blog, Larry Solum has interesting comments on this paper: Jasper L. Tran (George Mason University), The Press Clause and 3D Printing: A Constitutional Manufacturing Right (14 Northwestern Journal of Technology and Intellectual Property (2015), forthcoming).

The question is whether 3D printers are covered by the First Amendment's freedom of the press; Professor Tran does not approach the question principally from an originalist perspective, but he mentions the original meaning in passing.  Professor Solum then takes on the originalist question in an extending inquiry that isn't easy to summarize but is well worth reading.


Randy Barnett on Originalism and Judicial Deference
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: How deference leads to activism (or scuttling originalism) [following up on my post here, which in turn commented on Professor Barnett's post here].  From the conclusion: 

In essence, some defenders of “judicial restraint” would have judges ignore wherever the Founders or later generations spoke in sweeping, abstract, or general terms because they do not fit some preconceived notion of specificity. Only the more specific provisions of the text, they claim, are “law-like” enough to pass muster. This has proven to be a highly effective way for judgesto allow other constitutional actors to escape the constraints imposed upon them by the text. Is this not  form of “activism”?

This is not to deny that judges have far exceeded the constraints imposed upon them by the meaning of the text, and have been doing this for a long time. Indeed, this is my claim. When this happens, however, they are to be condemned by constitutional conservatives for violating the constraints imposed upon them by the text of the Constitution, not for failing to defer to the will of the majority. Justices should be selected for their demonstrated commitment to being constrained by the original meaning of the text–whether to uphold or invalidate laws–not by their assertions of judicial self-restraint.

I agree (although I might read some of the Constitution's "sweeping, abstract, or general terms" in a somewhat less sweeping manner).


James Fox: Counterpublic Originalism and the Exclusionary Critique
Michael Ramsey

James W. Fox Jr. (Stetson University - College of Law) has posted Counterpublic Originalism and the Exclusionary Critique (Alabama Law Review, Vol. 67, 2016) on SSRN.  Here is the abstract: 

This Article proposes a new form of originalism — Counterpublic Originalism — as a method to better incorporate excluded communities into the narratives of constitutional history. Looking at a broad range of originalists, from conservative (McGinnis & Rappaport, Calabresi & Rickerts) to progressive (Amar, Balkin), I find that each wrongly assumes some version of a single “public” at the time of ratification, a “public” comprised of the very elites who were benefiting from the exclusionary practices. Focusing on the Reconstruction period, I argue that there was no definitive “public” but instead a series of partial publics, some (white men) who were legally and socially privileged and dominant, and others (feminists, African-Americans) who operated as dissenting communities that developed their own normative discourse and challenged dominant views and interests. I then argue that these dissenting communities, or counterpublics, provide important sources of public discourse and activity that spoke to precisely the questions and ideas raised in constitutional amendments, and particularly in the Reconstruction Amendments. In the process I also challenge the Supreme Court’s and scholarly treatment of African-American materials on the meaning of the Second Amendment during Reconstruction.


Mark Pulliam Guest Blogging at Liberty Law Blog
Michael Ramsey

My colleague and some-time boss from my law firm days, Mark Pulliam (now turned legal commentator) is guest blogging this month at Liberty Law Blog.  His first post is Guardians of the New Class (about the Supreme Court and the Rule of Law).


Philip Hamburger: Chevron's Last Days?
MIchael Ramsey

At Powerline, Philip Hamburger: Chevron's Last Days?  From the introduction: 

This week’s writing on the wall — or at least what one can read between the lines — does not bode well for Chevron deference. When the Supreme Court upheld the IRS’s interpretation of Obamacare in King v. Burwell, it did not rely on Chevron. The government asked the Court to apply Chevron deference, but the Court exercised its own judgment about what the statute meant, and this already was interesting, for it suggested that the Court was unwilling to uphold so significant an agency interpretation under Chevron. Four days later, when the Court rejected the EPA’s interpretation of the Clean Air Act in Michigan v. EPA, it relied on Chevron, but only to reject the agency interpretation.

And from further along:

Indeed, what really is at stake here is not simply the Constitution, but the very legitimacy of the federal judiciary. Whatever their failings in departing from the Constitution, federal judges generally enjoy the reputation of being unbiased. But what if, in fact, they are systematically biased in favor of the government? Of course, this is not to say they are personally biased, but Chevron forces them to engage in institutional bias. This is the allegation of my essay “Chevron Bias.” It points out that in their Chevron deference, the judges have abandoned their duty of independent judgment. It adds that where the government is a party to a case (as in Michigan v. EPA), Chevron requires the judges to favor one of the parties — the most powerful of parties. This is systematic prejudice, and it delegitimizes the entire judiciary.

This is why Chevron is in play. Many judges, on the Supreme Court and below, are becoming deeply concerned about Chevron, lest it require them to give up their independent judgment and even become systematically biased.

Michael Perry: Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment on SSRN.  Here is the abstract:      

In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?

This brief paper is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.

I found the first part of the paper (rejecting the equal protection argument) especially interesting because, as I've argued previously, I think the equal protection argument is the only plausible textualist/originalist route to requiring states to recognize same-sex marriage.  But Professor Perry's contrary argument is pretty persuasive.  (And I won't add any spoiler about what he thinks is the better argument).


George Will Turns James Madison's Words Upside Down and Inside Out and Backwards Too
Andrew Hyman

In a strange effort to extract from James Madison the notion that the Constitution means whatever five judges --- or modern society --- currently say its words now mean, George Will writes this:

In 1824, in retirement 37 years after serving as the Constitutional Convention’s prime mover, James Madison, 73, noted that the 1787 “language of our Constitution is already undergoing interpretations unknown to its founders.” He knew that the purport of the text would evolve “with the changeable meaning of the words composing it.”

Actually, Madison meant the exact opposite.  Here is the full context, from his letter to Henry Lee (dated June 25, 1824):

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.  In that sense alone it is the legitimate Constitution.  And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.  If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis in the code of law if all its ancient phraseology were to be taken in its modern sense.  And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.  Not to look farther for an example, take the word ‘consolidate’ in the Address of the Convention prefixed to the Constitution.  It there and then meant to give strength and solidity to the Union of States.  In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union.

It is obvious that Madison meant the opposite of what George Will attributed to him.  Moreover, Will argues that “No one today thinks that branding and ear cropping, which were punishments practiced when the Eighth Amendment was ratified, are today compatible with this amendment.”  That may be true, but the present consensus as to the cruelty of branding and ear cropping are entirely consistent with the definition of “cruelty” that prevailed in 1791.

Let’s see how the most popular English lexicographer of the eighteenth century defined the word “cruel.”  In 1773, Samuel Johnson defined that word to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting.”  Johnson did not suggest that inhumanity, hard-heartedness, and the rest must be evaluated in England as of 1773, or in England as of the date when the word “cruel” was first used there, or that society’s view about what is inhuman or hard-hearted cannot change.  Surely he understood that these things do change, even while the definitions may remain the same.  Johnson’s definition of  “cruel” is perfectly consistent with the notion that branding and ear-cropping are cruel from today's perspective, though not cruel from the perspective of 1773.  The sense in which the Eighth Amendment was accepted and ratified by the nation presumed Johnson’s definition, but did not presume that inhumanity or hard-heartedness would have to be evaluated with reference to sentiments or conditions prevailing in England as of 1773.  That is my opinion (perhaps Justice Scalia or Justice Thomas have a different view); the framers of the Constitution could have easily written about “punishments that were considered cruel and unusual at common law” or "the cruel and unusual punishments" but chose not to do so. Contra George Will, the definition of the word “cruel,” and the sense in which that word was used in the Eighth Amendment, have not changed one iota since 1791; nor has the original meaning of the word "unusual," which means "unusual" as of now, in view of the past.  Of course, if a particular punishment is alluded to elsewhere in the Constitution as being acceptable, then application of the Eighth Amendment needs to be modified accordingly; and, the Excessive Fines Clause also needs to be considered so that it does not become superfluous in view of an overly expansive interpretation of the Punishments Clause.  All of this allows courts today to hold that branding and ear cropping are constitutionally forbidden.

My main objection to the same sex marriage decision (Obergefell) is that the meaning of the words and phrases in the Equal Protection Clause and the Due Process Clause have been given a very different sense and very different definitions from the ones that were intended in 1868 when they were approved. Courts today are obligated by oath to use the definitions and senses that were intended when the Constitution was written.  “In that sense alone it is the legitimate Constitution.”  The Due Process Clause simply requires all of the proceedings that are owed according to the law of the land, including whatever validly enacted state statutes may be on the books now.  The Equal Protection Clause simply guarantees people the equality described in the statutes of his or her state and nation, including whatever necessary and proper acts of Congress may be in force now. That is all these two clauses clearly meant in 1868, and therefore that is all they should mean now.  And, as Kurt Lash has persuasively argued, the Privileges or Immunities Cause does not clearly mean any more than that rights now constitutionally applicable against Congress also apply against the states.  This simple timeless content in the second sentence of the Fourteenth Amendment is now almost completely unrecognizable in the jurisprudence of the U.S. Supreme Court, and every new innovation and usurpation has had one common theme: increased judicial power, discretion, and politicization.

By the way, Matthew Franck also has some reactions to this column by George Will, over at NRO Bench Memos.