Gerard Magliocca on Ratifying the Equal Rights Amendment
Michael Ramsey

At Concurring Opinions, some interesting questions from Gerard Magliocca.  First: The Ratification of the ERA. From the introduction:

A few months ago, Nevada ratified the Equal Rights Amendment proposed by Congress in 1972.  I have no idea if this was done for symbolic reasons or from a genuine desire to see the ERA ratified.  Nevada’s action, though, raises an interesting constitutional problem about ratification deadlines.

In some constitutional amendments, the amendment’s text says that the proposal is not ratified unless enough states approve within seven years. In other amendments, the deadline is in the resolution proposing the amendment rather than in the amendment itself. The ERA falls into the later category.  Not enough states ratified the ERA in the seven year period, and not enough have done so now even with Nevada’s yes vote.

Suppose, though, that a few more states ratify the ERA. Enough that there is no doubt that there are 38 yes votes.  Can Congress then repeal the original time limit and declare the amendment valid?

And further: The Original Understanding of the ERA. From the introduction:

Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?

The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.

Not so for our hypothetical 28th amendment. So what should we say here?


David Strauss Guess What: You are an Originalist After All
Eric Segall

[Editor's note:  For this guest book review, we welcome Professor Eric Segall, the Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law, and a prominent critic of originalism.]

The most recent entry in the “originalism is our law” sweepstakes is Ilan Wurman’s “A Debt Against the Living: An Introduction to Originalism.”  [Ed.:  see also here for a podcast discussion of the book.]  This 135-page book is an excellent “introduction” to many difficult questions pertaining to constitutional interpretation.  However, as is the case with so much scholarship these days, its conclusions are “originalist” only if originalism and pluralistic theories of constitutional interpretation, including what the author refers to as “living constitutionalism,” are one and the same.

The book tackles two important questions: how should we read the Constitution, and is the Constitution worth keeping today. The author has a wonderful Hemmingwayish turn of phrase which makes the style of the book accessible to any reader interested in constitutional interpretation. Law students would benefit from reading the book (provided they are well-supervised, see below).

Wurman argues that we first need to understand what the Constitution says before we can decide whether to keep it. I’m willing to go with that chronology as a logical matter, but this review tackles the second question first.

Wurman describes three major theories of constitutional legitimacy: the “libertarian school,” the “progressive-originalist school,” and the conservative school.” (p.47). Libertarians argue that the Constitution “must protect natural rights.” Progressive-Originalists believe that the Constitution “must allow for responsiveness to contemporary politics.” Conservatives believe that legitimacy “is rooted in an act of popular sovereignty when the people ratified the Constitution in 1789.” (pp. 48-49). These theories correspond to the work of Randy Barnett, Jack Balkin, and Keith Whittington, Mike Rappaport and John McGinnis, respectively.

The descriptions are as accurate as 18 pages will allow. Wurman treats each scholar fairly and concludes that the Constitution is legitimate because each theory has something important going for it. He concludes that if “the Constitution protects natural rights, creates a republican form of government, and is rooted in an act of popular sovereignty, then prudence demands that we obey it today, whatever its imperfections.” (p.81).

Fair enough, though I wish Wurman had spent more time than he does on the exclusion of women and minorities from the ratification processes. His essential response is a shrug of the metaphorical shoulder. Well, no one is perfect and we must accept the founders’ world that they were living in not some make-believe place: “The Founding was as legitimate as could be for its time.” (p.64). Maybe, but the question is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.

The other half of the book explains why we should all be originalists. Wurman again accurately describes the major justifications originalists normally employ. In a nutshell, Wurman argues that Randy Barnett and others argue that the fact that the Constitution was written down shows that the people who ratified it intended it to govern our behavior until the document was changed. Therefore, it only makes sense to interpret the document as it was originally intended (pp.26-27).  Moreover, all communication, according to Wurman and Keith Whittington, is “always interpreted by its original public meaning” because that is the very nature of the act of communicating (p.29-31). Finally, “rule of law” values such as consistency and transparency require “that we live by those public meanings.” (p.31) Put all three elements in a hopper and presto we have originalism!

This is much more controversial than Wurman allows (other countries with written constitutions don’t see originalism as inevitable) but I will let some other reviewer take that on. The more important aspect of the book is Wurman’s discussion of how judges should interpret the Constitution and the relationship between “interpretation” and “construction.”

Wurman explains that many modern originalists believe that in many (maybe most) litigated constitutional cases, the text and history will be too vague, ambiguous and/or contested to resolve today’s pressing problems. Thus, determining what the Constitution meant at ratification is “interpretation” but deciding what legal effect that interpretation yields given a certain set of facts is “construction.” (p.20). Although originalism may limit the range of plausible meanings, it will nevertheless “run out” when a judge is trying to answer a specific constitutional question. (p.20).  In that case, what is a judge to do?

Again, Wurman faithfully describes the dominant originalist replies to this problem. Randy Barnett thinks judges should construct constitutional outcomes with reference to a strong presumption of liberty; Judge Bork thought that we should presume legislation is constitutional if text and history don’t clearly show that it isn’t; and McGinnis and Rappaport (who deny the interpretation/construction distinction) argue that judges can use “original interpretative conventions” such as cannons of interpretation to resolve hard cases. (pp.84-96). Wurman makes a compelling case that, as these scholars all suggest their answers are grounded in text and history, construction really is originalist after all. (pp.86-87). Fair enough.

Although Wurman leans towards the “original interpretative methods” theory, he sees value in all three and concedes that “different contexts might require use of one or the other.” (p.94). He then asks the question we have all been waiting for: “what do we do when we’ve used all our interpretative rules and cannons and the constitutional answer still isn’t clear?” (pp. 94-95). Before we examine his answer, we must circle back to what Wurman says generally about originalism and living constitutionalism.

Throughout the book, Wurman criticizes Professor David Strauss and his theory of common law constitutional decision-making. In the first several pages of the book, Wurman argues that Strauss sides with Thomas Jefferson who famously said, “The earth belongs to the living, and not to the dead.” (pp.1-2). Strauss describes the Supreme Court’s constitutional doctrine as similar to the common law model where precedent, not text or original meaning, plays a dominant role (p.122). In turn, Wurman describes this as a “living constitutionalism” model and strongly implies that it gives too short shrift to the original meaning of the text. The problem with Strauss’ theory is that “it is unclear why judges should be permitted to make freewheeling policy choices contrary to the policy choices of our representatives ….” (p.124).

Okay, so how does Wurman suggest judges decide hard cases. His answer comes in two parts. First, he embraces the notion of “liquidation.” He concedes that the “first few times” a judge has to resolve a hard constitutional issue, he will choose “among the competing plausible options.” (p.95). This choice will “in some sense be arbitrary.” (p.95). Over time, however, after “a series of mature deliberations made by many constitutional actors,” similar “cases within that same context will presumably accord such collective decisions determinative weight and the matter will be settled.” (p.95). How this liquidation method of constitutional decision-making is different than Strauss’ common law constitutionalism, which Wurman describes as living constitutionalism, is elusive at best, and Wurman never tells us.

Wurman’s second answer to the hard cases problem (read virtually every constitutional case the Supreme Court decides) revolves around Professor Christopher Greene’s “sense-reference” distinction, and Wurman’s rejection of original expectations originalism. An originalist is not bound by what the people living in 1787 or 1868 expected the text to mean in concrete factual situations, except for those provisions where the text is clear such as the President must be 35. For the unclear provisions (the ones that lead to litigation), the Constitution “enshrine[s] a sense that does not change with time. But the facts and conditions to which the sense applies-the referents of the constitutional provisions-can change.” (p. 40.).  Wurman goes on to argue that “we are not bound by [the framers’] factual errors.” (p.114). Thus, and this is familiar territory to people well-versed in the originalism debates, the “sense” of the Fourteenth Amendment is equality, and if the people in 1868 made the factual error of thinking segregation was consistent with equality, judges in 1954 may correct that “error” consistent with originalism. (p. 113-115).  To be fair, Wurman also discusses Michael McConnell’s historical justification for Brown and Michael Klarman’s response (pp. 110-1130), but at 5 pages he doesn’t do justice to that debate.

In hard cases, judges should look to prior judicial doctrine and decisions made by other constitutional actors to see if the meaning of the text in issue has been liquidated. If not, judges are free to determine the “sense” of constitutional provisions, which in the case of the equal protection, due process, and privileges or immunity clauses, basically means equality, fairness, and identifying fundamental or natural rights, to come up with the best constitutional solution. This is, of course, common law constitutionalism and living constitutionalism all the way down. In Wurman’s own words: “Originalists recognize that original meaning often requires that the application of the text evolve as modern circumstances evolve, more still, they often recognize that originalism doesn’t always lead to specific answers. Conversely, living constitutionalists almost universally agree that the text and its original meaning matter in constitutional interpretation-even though they think original meaning is less determinate than originalists tend to think and that it should be less dispositive.” (p.8).

The last disclaimer is a non-starter. The Court’s actual constitutional law docket cannot be answered through original meaning in any serious sense, and virtually all living originalists concede that where the Constitution is crystal clear, judges should normally apply that meaning. The originalism debate only matters to those cases likely to reach judges. In that subset of cases, we are all living common law constitutionalists as Wurman describes, which is maybe why Wurman says at the beginning that “to my liberal readers, take heart! You might find that originalism as it is now understood is quite an attractive theory (p.8).  Guess what David Strauss, you are an Originalist after all, “as originalism is now understood.”

No, not really. The truth is that Randy Barnett, Jack Balkin, Will Baude, and most “New Originalists” are actually living constitutionalists, as many of us have been arguing all along.

Approaching Deadline for Submissions for the 2018 Originalism Works-in-Progress Conference
Michael Ramsey

On February 16-17, 2018, the Center for the Study of Constitutional Originalism at the University of San Diego School of Law will hold the Ninth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.  The Call for Papers page is here

The deadline to submit abstracts/drafts for the 2018 Originalism Works-in-Progress conference is August 31, 2017 (a week from Thursday).

Submissions should take the form of a one to three page abstract (and, if you like, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Please send submissions to the originalism center director, Mike Rappaport (mrappaport@gmail.com), or to me.


Lawrence Solum: Corpus Linguistics, Immersion, and the Constitutional Record
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record on SSRN.  Here is the abstract: 

This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: 

(1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice.

(2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied.

(3) The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting and ratification process, and the early history of implementation of the constitutional provision.

These three methods each provide different inputs into the process of constitutional interpretation and construction. Because each method can be checked against the others, the combination of the three methods results in what can be called "triangulation."


Introducing Originalism: A Conversation with Ilan Wurman
Michael Ramsey

From Law and Liberty podcasts, Introducing Originalism: A Conversation with Ilan Wurman:

Ilan Wurman joins this edition of Liberty Law Talk to discuss his new book, A Debt against the Living: An Introduction to Originalism.

From a prior post:  Here is the book description for Ilan Wurman's new book:

Thomas Jefferson famously wrote that the earth belongs to the living. His letter to James Madison is often quoted for the proposition that we should not be bound to the 'dead hand of the past', suggesting that the Constitution should instead be interpreted as a living, breathing document. Less well-known is Madison's response, in which he said the improvements made by the dead - including the US Constitution - form a debt against the living, who benefit from them. In this illuminating book, Ilan Wurman introduces Madison's concept of originalism to a new generation and shows how it has shaped the US Supreme Court in ways that are expected to continue following the death of Justice Antonin Scalia, one of the theory's leading proponents. It should be read by anyone seeking a better understanding of originalism and its ongoing influence on the constitutional jurisprudence of the Supreme Court.


Emoluments Clause Originalism from Daniel Hemel and Leah Litman
Michael Ramsey

Daniel Hemel (Chicago) and Leah Litman (UCI) at Take Care Blog: The Plaintiffs in CREW v. Trump Deserve To Have Their Claims Heard. From the introduction:

The Trump Justice Department has told a federal district court in New York that it lacks jurisdiction to hear the claims of plaintiffs who are challenging the President’s violations of the Emoluments Clauses in Citizens for Responsibility and Ethics in Washington v. Trump. On Friday, we and 19 other scholars of administrative law, constitutional law, and federal jurisdiction joined an amicus brief explaining why the Trump administration’s arguments miss the mark. The brief, filed by New York attorneys Andrea Likwornik Weiss and Gregory Felt, is available here, and you can see a full list of amici in the appendix. As we conclude: “Under settled Supreme Court and Second Circuit case law, the plaintiffs easily clear the constitutional and prudential hurdles to the adjudication of their substantive claims.”

Our brief only addresses whether the district court should resolve the case on the merits; other amicus briefs (from legal historiansmembers of Congressformer government ethics officers, and a leading scholar of public corruption) address the substance of the plaintiffs’ claims under the Emoluments Clauses. That might make the arguments in our brief seem like a sideshow to the main act, but we think they’re more than that—for two reasons. First, the Justice Department spends more than half of the argument section in its motion to dismiss urging the district court to dismiss the case on justiciability grounds. That is, the administration’s primary strategy is to try to make the case go away before the district court considers the merits. Second, if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word “emolument” as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round.

The brief's standing argument is purely doctrinal but look again at the last two sentences in the introduction: "if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word 'emolument' as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round."  That's pure originalism (and indeed basically pure textualist original meaning originalism) from two conventional scholars at top law schools.  Again, originalism is part of our law.


Rob Natelson on a Convention of the States
Michael Ramsey

In The Hill, Rob Natelson: How a ‘convention of states’ could tweak the Constitution. From the introduction: 

Representatives of state legislatures from across the nation will converge in Phoenix, Arizona on Sept. 12 to participate in a traditional American institution called a “convention of states.” 

Conventions of states are valuable. They help ensure Washington, DC doesn’t dictate all decisions on every subject. 

The purpose of the meeting in Phoenix is to plan for another, even more important convention — one to propose adding a balanced budget amendment to the U.S. Constitution. The latter event is likely within the next two to three years. ... 


A Mea Culpa Regarding Fourth Amendment  Seizures Without Searches
Andrew Hyman

Mark Pulliam recently repudiated an old outdated opinion of his in support of Lochner, as mentioned here at the Originalism Blog.  Mark's essay reminded me that I need to follow in his footsteps, by confessing an old error in a footnote to a law review article of mine over a decade ago.  It's an interesting issue, so why not blog about it?  

Here's what I wrote a long time ago: "the Fourth Amendment does apply to searches without seizures, as well as to seizures without searches...."  I now think the latter part is probably wrong.  However, it remains part of standard doctrine; for example a 2015 treatise on constitutional law stated, "There can be searches without seizures and seizures without searches, and the Fourth Amendment imposes separate requirements for each."  

Here's what the Fourth Amendment says (emphasis added):  

The right of the people to be secure in their perons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Notice the conjunction "and" that I have put in bold, as distinguished from the word "or."  The Amendment would apparently have imposed a general reasonableness requirement on seizures that do not involve searches, had the conjunction been "or" instead of "and."  If police engage in a search that results in no seizure, then I agree with standard doctrine that the constitutional reasonableness requirement applies, because the object of the search is a seizure even if the latter does not end up happening.  But what about a seizure that is not the result of any search --- not even a search for another thing under the plain view doctrine? 

Consider an example of a seizure without a search that would have been familiar in 1792 (when the Bill of Rights took effect): the arrest of a person in public without searching him.  Suppose a man is arrested like that after he very obviously dumps trash on a public sidewalk.  In this "trashy" example, I now doubt that the Fourth Amendment applies to seizing (i.e. arresting) that man; if it does not apply then judges cannot scrutinize the anti-littering statute for reasonableness, nor can judges strike down that anti-littering statute because they think it unreasonably lacks an exception for a man who dumps trash on a public sidewalk after the trash was first dumped illegally on his own adjacent private property.  If the Fourth Amendment does not apply to an arrest in public without any search, then of course the person who is arrested still can resort to other constitutional rights including habeas corpus, the right to indictment (in federal court), and speedy trial.

According to Eric R. Carpenter, "Seizures Without Searches: Defining Property Seizures and Developing a Property Seizure Model", 41 Gonz. L. Rev. 167 (2013), the first U.S. Supreme Court case regarding a "pure property seizure" without any search was United States v. Place, 463 U.S. 696 (1983).  In that case, the Court held that a police dog sniffing suitcases in a public place is not a "search" under the Fourth Amendment.  The luggage had been seized for 90 minutes prior to the dog sniff.  After the sniff alerted the dog to narcotics, the police obtained a warrant, the luggage was searched, and Mr. Place was arrested.  Although the Court held that the pre-warrant sniffing was not a "search," it nevertheless held that the length of the 90-minute pre-sniffing seizure was unreasonable and therefore unconstitutional.  Assuming the Court was correct that a dog sniff is not invasive enough to be a search, could the Fourth Amendment be applicable to a seizure of luggage in public without any search?  I used to think so.  Now I doubt it.

Of course, the police should have and could have gotten the luggage sniffed faster, and maybe that delay was unreasonable in every sense of the word, but perhaps the Fourth Amendment does not ban unreasonable seizures that did not result from any search, instead leaving legislators and law enforcement officers and state constitutions with the (immense) power of determining reasonableness under such circumstances.   There's also the Takings Clause to bar police from simply grabbing from you whatever they want. 

The Constitution does not say "unreasonable searches or seizures." Moreover, it says that any valid warrant must describe "the place to be searched", which would be impossible if no search is involved.  

So, I withdraw my old statement that the Fourth Amendment applies to pure seizures without searches, because I'm not so sure anymore.  Incidentally, the notion that the Fourth Amendment may not apply to "pure" seizures also has implications for seizures that do result from searches.  In particular, supposing that there must be some sort of search for the Fourth Amendment to apply, the reasonableness analysis ought to focus mainly on the search and its relationship to the seizure, rather than on the seizure by itself, because it would be rather absurd to say that a particular type of seizure would be constitutional if unaccompanied by any search, but would be unconstitutional if accompanied by the most reasonable possible search.  

More from Asher Steinberg on Textualist and the Supreme Court's 2016 Term
Michael Ramsey

Asher Steinberg at The Narrowest Grounds: Supreme Court 2016 Term in Review: (Apparent) Mistake, Another Textualist Possibility Unexplored in SW General.  From the introduction:

Have you ever said to someone, "I don't think that means what you think it means," or more declaratively, "that doesn't mean what you think it means"?  If so, you're familiar with the concept of linguistic mistake, as distinct from linguistic accident, or what lawyers call scrivener's or drafting error.  When you tell someone that what they said doesn't mean what they think it means, what you mean is that you think they intended to say precisely the words they said, but that, because they seem to intend to convey something other than what they said means, they are likely mistaken about the meaning of the words they said.

For example, if a wise but unpolished student writes on an exam, "the Court shouldn't of avoided the Chevron question in Esquivel-Quintana, that was a really lame move," it is possible that the student intended both to use a semicolon and write "shouldn't have" and accidentally wrote "shouldn't of" and used a comma in a hurry.  But it is just as possible and probably more likely that this student intentionally wrote "shouldn't of" because he mistakenly believes, as many people do, that "shouldn't of" is a grammatical construction that means "shouldn't have," and also quite likely that the student intentionally used a comma because he mistakenly believes that commas can link independent clauses that can only be linked by semicolons.  When Congress makes that sort of an error, it hasn't engaged in scrivener's error, properly understood.  The metaphorical scrivener's metaphorical pen didn't slip; the text Congress enacted was the text it meant to enact.  Congress was just mistaken about the meaning of the words it deliberately used.

On the other hand, if your boss (or Congress) tells you to file an appeal in no less than seven days, you won't think he meant to say what he said, or is mistaken about the meaning of what he said; you'll likely believe he meant to say "more" and accidentally said less.  You won't think he mistakenly believes that "less" means more, since no one fully conversant in English does.  When Congress makes this sort of an error, it has engaged in scrivener's error.  The scrivener's pen did slip, those members of Congress and staffers who read the text didn't catch it, and Congress voted for and enacted a text other than the text it intended to enact.

And from the conclusion:

Textualists are not concerned with actual intentions, only "objectified" or apparent ones.  Actual intentions are for intentionalists.  However, for a linguistic mistake to be apparent, it first must be possible.  We simply don't know anyone who mistakenly thinks that "less" means "more," so when Congress says "no less than seven days" and seems to have meant "no more," we don't say that Congress seems to have been mistaken about the meaning of "no less"; we say that Congress seems to have accidentally written "no less" and think of the problem in terms of scrivener's error, for which we require certainty.  Linguistic-mistake readings of statutes are only viable when the mistake in question is conceivable, and to be conceivable, it helps if we know of some cases where it's happened.  One reason that it's so easy to assume someone thinks "principle" means "principal" is that many people do.  And one reason Scalia was willing to read "defendant" to mean "criminal defendant" in Bock Laundry is that people sometimes mean defendant that way "in normal conversation."  Indeed, many non-lawyers may mistakenly believe that the only people called "defendants" are criminal defendants.  Some of them are probably in Congress.

Senator Thompson, then, is relevant to a claim that Congress's apparent intention in writing "notwithstanding subsection (a)(1)" was to communicate the idea "but as to subsection (a)(1)," not because he shows that it was Congress's intention, but because he shows that it could have been the intention of a normal speaker using Congress's words.  Once you read Thompson confidently asserting that "notwithstanding subsection (a)(1)" meant that (b)(1) only limited (a)(1), not (a)(2) or (a)(3), it's no longer so hard to imagine a Holmesian normal speaker of English mistakenly thinking "notwithstanding" means "but as to."  Apparently, it happens.  

* Acknowledgements to Mitchell Berman's typology of legislative intent in "The Tragedy of Justice Scalia"—one of the few truly excellent and practically useful bits of interpretive scholarship in the last few years—for suggesting much of this post, though I dissent from his judgment of Scalia as a tragic figure.

From prior posts in this series, see here and here.


Joel Trachtman: Terminating Trade Agreements
Michael Ramsey

Joel P. Trachtman (Tufts University - The Fletcher School of Law and Diplomacy) has posted Terminating Trade Agreements: The Presidential Dormant Commerce Clause versus a Constitutional Gloss Half Empty on SSRN.  Here is the abstract: 

The U.S. Constitution does not explicitly allocate authority to terminate treaties made pursuant to the Treaty Clause or as congressional-executive agreements. All modern trade treaties of the U.S. are made as congressional-executive agreements. The conventional wisdom among a number of U.S. foreign relations law scholars, as evidenced by the Restatement (Third) of Foreign Relations Law, is that, while congressional or Senate participation is required to make these treaties, the President has the independent power to terminate them. This position, while it may be correct as it pertains to treaties in other fields, takes insufficient account of the fact that, under the Commerce Clause, commerce is an area of exclusive congressional power. This paper argues that the exclusive congressional power over commerce is inconsistent with independent Presidential authority to terminate trade agreements. It also examines existing statutory authority for entry into and operation of trade agreements, and finds no statutory authority for the President to terminate trade agreements. Therefore, the President lacks authority, without new authorization from Congress, to terminate existing trade agreements.

Professor Trachtman is a giant in the field, but this approach strikes me as misconceived.  While it may be true that in modern practice all trade agreements are made as congressional-executive agreements, that's not because people think the President lacks power over international commerce.  In the post-ratification era -- and indeed until the mid-20th century -- trade agreements were made as treaties.  Moreover, in the modern period, many agreements relating to commerce are made as treaties, including bilateral investment treaties, tax treaties, and intellectual property treaties.  (See my discussion of the historical and modern practice here: The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice). So it is emphatically not the case that "under the Commerce Clause, commerce is an area of exclusive congressional power." Under the commerce clause, the regulation of commerce by statute is an exclusive congressional power (or at least, it's exclusive of the other branches of the federal government; states can regulate, even in modern practice, so long as they do not run afoul of the relatively narrow dormant commerce clause doctrine).  But regulation of commerce by treaty is a power of the President with the advice and consent of the Senate.

That's not to say that the President  necessarily can terminate trade agreements.  My view is that this question cannot be answered in the abstract, but rather must be answered agreement-by-agreement on the basis of the language of the particular statute implementing the agreement.  There is not an easy answer based on the constitutional relationship between Congress and the President -- in part because the congressional-executive trade agreement is a modern innovation.


Jud Campbell: Natural Rights and the First Amendment
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted Natural Rights and the First Amendment (Yale Law Journal, forthcoming) on SSRN. Here is the abstract:

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding-Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding-Era elites shared understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

This was one of the papers at the 2017 originalism works-in-progress conference in San Diego.  Congratulations to Professor Campbell.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download it while it's hot!"


Asher Steinberg on Textualism and Legislative History
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: Supreme Court 2016 Statutory Term in Review: Disregarding Legislative History's Textualist Uses in SW General.  From the introduction: 

Textualists believe in using legislative history to interpret statutes—even when, if not for a statute's legislative history, they would otherwise find the statute's text clear.  What grounds could I have for making such a provocative remark?  It's famously true, of course, that textualists reject the notion of legislative history as authoritative gloss.  That's because textualists believe a statute's legal meaning is what its language means in some objective sense, not what Congress intended to convey by it.  But textualists have always granted that legislative history can help us work out what statutory language means, if only because legislative history, like any other writing or speech, can serve as evidence of how particular words or phrases are used, and thus what those words or phrases mean.  Here, for example, is Justice Scalia discussing the point in a published dialogue with John Manning five years ago:

And by the way, I don't object to all uses of legislative history. If you want to use it just to show that a word could bear a particular meaning--if you want to bring forward floor debate to show that a word is sometimes used in a certain sense--that's okay. I don't mind using legislative history just to show that a word could mean a certain thing. We are trying to ascertain how a reasonable person uses language, and the way legislators use language is some evidence of that, though perhaps not as persuasive evidence as a dictionary. That is using legislative history as (mildly) informative rather than authoritative: “the word can mean this because people sometimes use it that way, as the legislative debate shows,” rather than “the word must mean this because that is what the drafters said it meant.”
There's an interesting ambiguity here.  Scalia's clear that he's not persuaded by arguments that statutory language must mean this because that's what the drafters said it meant.  It's unclear, though, whether he's open to arguments that statutory language can mean this because that's what the drafters said it meant to them, or whether the only sorts of legislative history he'll consider for this purpose are statements that incidentally use a word or phrase in a certain way, rather than defining it or glossing it.  
I think it's likely that Scalia would at least be reluctant to use gloss as evidence of linguistic meaning; Scalia seemed to distrust legislative gloss apart from his concern that it not be deemed controlling.  Earlier in his response to Manning's question on legislative history, he complains about legislative history that "simply declares what the committee or sponsor intends a word or phrase to mean: 'Subsection B means this or that.' That statement is meant to be authoritative; its one and only function is to tell us how that committee or sponsor wants the bill to be interpreted. When judges attribute that intention to Congress as a whole, they are not ascertaining meaning . . . ."  However, if legislative history can be evidence of what a word in a statute can mean, what's better evidence, as far as legislative history goes, than a definitive statement by that statute's drafters on what they think that word means in that statute?  A floor speech in which a Senator uses a statutory term to mean something or another only shows what the term can mean in a context that may bear little resemblance to the context in which it's used in the statute; we may also be generally suspect of informal usage as a proxy for meaning in the statute's relatively formal and technical context.  On the other hand, a statement by the drafters that some snippet of statutory language means something to them would seem much stronger evidence of what that language at least can mean to reasonable people in the context of the statute itself.
Bracketing for the moment Scalia's possible hostility to using legislative gloss as evidence of linguistic meaning, it's at least clear that Scalia was open to using some legislative history as evidence of what statutory language can mean, but not open to using legislative history as authoritative evidence of what statutory language does mean.  This use of legislative history to suggest linguistic possibilities, but not to resolve linguistic debates, has an intriguing corollary; for Scalia at least, legislative history is much more probative when a statute seems clear than when it's ambiguous.  When Scalia already knew from other sources that a statute was ambiguous, legislative history had no work to do for him; it could at most redundantly confirm that a statute could mean what a dictionary or his own understanding of the language already told him it could mean.  But when a statute seemed clear, legislative history could productively dispel that appearance of clarity and show him that a "word can mean this because people sometimes use it that way."  
This seems counterintuitive given textualists' devotion to the plain meaning rule, but the internal textualist logic is perfectly sound.  As textualists don't think a statute means what Congress intended, the usual way people use legislative history—as a solvent of ambiguity if the statute's text isn't clear—makes no sense for textualists.  There's just no reason for textualists to say that if a statute's ambiguous, it means what "Congress" (really, certain involved committees or members) said it meant.  But textualists are interested in what statutory language means, and absent argument that Congress is so linguistically incompetent that its usage is worthless evidence of linguistic meaning, it makes no sense to have a rule by which legislative history is disregarded so long as a statute seems clear prior to considering evidence of alternative usage in legislative history.  That would be tantamount to saying that courts should decide whether a statute's clear on less than all the relevant evidence.  Indeed, on Scalia's understanding of legislative history's uses, it would seem that the only time when legislative history matters, at least in any dispositive way, is when a statute would seem clear if not for legislative history.


Herman Belz on the Evolution of Originalism
Michael Ramsey

At Liberty Law Blog, Herman Belz (Professor Emeritus of History, University of Maryland): Originalism Historically Conceived.  A wide-ranging post, with principal focus on Jonathan Gianepp's criticisms of originalism:

Another critic, the Stanford historian Jonathan Gienapp, invites historians and legists to reflect on original intent jurisprudence in a recent series of essays.  Gienapp instinctively perceives originalists as conservatives driven by presentist aims who need a “methodological corollary” to pursue those aims. Referring to the pioneering 1980s scholarship of Berger and Bork as “Originalism 1.0,” Gienapp says its goal was to recover what the Constitution’s Framers intended. When challenged on conceptual grounds, conservative judges and legal theorists later introduced the concept of “original public meaning,” referred to by Gienapp as “Originalism 2.0.”

Under the latter approach, constitutional text and discourse are understood in the manner employed by a competent speaker of the language at the time of the Constitution’s framing and ratification. Gienapp dismisses Originalism 2.0 as “studying word usage,” which leads to semantic nitpicking. It omits the historical context of American constitutionalism, according to Gienapp. Because it “claims to have escaped history,” the new originalism poses an urgent threat to the practice of history. Debates over it have “gravitated . . . towards the philosophical foundations of historical meaning.”

Originalists, he says, in insisting that “the document’s meaning could not evolve with the times” but must remain “fixed and constant over time,” have “stopped trying to beat historians at their own game—by re-writing the rules by which that game is played.” Instead of fighting a losing empirical battle, originalists “stake out different conceptual foundations altogether.” In D.C. v. Heller (2008), for example, the new originalists sought to engage historians on a “non-historical turf,” dismissing historians’ contextual reading of the Second Amendment as a misunderstanding of the concept of original meaning.

Gienapp exhorts historians to fulfill their professional obligation and rise to the originalist challenge. The dispute is not over Founding-era facts, he says, but over “what methods are needed to identify the original historical meaning of a historical text.” The new originalists, conceiving of historical knowledge in terms of cognition, profess “a certain kind of historical meaning” that they believe makes them “immune from historical critique.” In other words, Gienapp avers, public meaning originalism defines history as “a form of knowing that rather than a form of knowing how.

(Thanks to Mark Pulliam for the pointer).


Ilan Wurman on Madison’s Case for Originalism
Michael Ramsey

Ilan Wurman at Newsmax: Madison Rebutted Jefferson with “Debt Against the Living” Proposition. From the introduction:

It has become fashionable to argue that we are no longer bound to the Constitution — at least not to the Constitution of our Founders.

“Why do we care about the Framers of the Constitution?” asks law professor David Strauss of the University of Chicago. The Constitution “was the product of the Framers’ times and the Framers’ sensibilities. What possible reason can we have for allowing its provisions to rule us today?” Paul Brest, a former dean of Stanford Law School, similarly wrote in a famous article, “We did not adopt the Constitution, and those who did are dead and gone.” And Georgetown law professor Louis Seidman wrote in The New York Times only a few years ago that we should “give up on the Constitution.”

Many of these academics rely on a famous letter from Thomas Jefferson to James Madison, in which Jefferson wrote that “the earth belongs to the living,” that “the dead have neither powers nor rights over it.” This letter from Jefferson is well known: it is often quoted for the proposition that we should not be bound by the “dead hand of the past,” that a constitution that is not a “living, breathing document” is not a legitimate constitution worthy of our obedience today.

Few, however, have heard of James Madison’s reply to Jefferson, in which Madison made a powerful case for constitutional obedience: “If the earth be the gift of nature to the living,” Madison wrote, “their title can extend to the earth in its natural state only. The improvements made by the dead form a debt against the living, who take the benefit of them. This debt cannot be otherwise discharged,” Madison continued, “than by a proportionate obedience to the will of the Authors of the improvements” — by a kind of originalism.

Ilan Wurman is the author of the new book A Debt against the Living: An Introduction to Originalism (noted here).


Ilya Somin on Presidential War Power and North Korea
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Can Trump unleash “fire and fury” on North Korea without congressional authorization? Short answer, no:

The Constitution  very clearly reserves to Congress the power to start a war. The Founders did not want any single man to be able to take the nation to war on his own. Even Alexander Hamilton — the strongest supporter of sweeping presidential power among the framers  — understood that only “the Legislature have a right to make war” and that “it is . . . the duty of the Executive to preserve Peace till war is declared.”


It is possible that the president has the power to initiate small-scale military actions that fall short of qualify as “war,” even without congressional authorization. In my view, this could justify the very limited air strike  Trump launched against Syria back in April, though some scholars disagree. Regardless, a conflict with North Korea is unlikely to be limited in this way. Secretary of Defense James Mattis – who, unlike Trump, tends to know what he’s talking about – has said that a conflict with North Korea “would lead to the end of its regime and destruction of its people” and that it “would be probably the worst kind of fighting in most people’s lifetimes.” That sure sounds like a war to me! I don’t think you have to be a lawyer or a constitutional law maven to recognize that a conflict that costs many thousands of lives and may well involve the use of nuclear weapons qualifies as “war” by any reasonable standard.

Agreed (See The Constitution's Text in Foreign Affairs, chs. 8-9).  But, a qualifier:

Trump would not need congressional authorization if North Korea strikes first, or if it is about to do so. In that event, Trump would not be initiating war, but merely  waging one already begun by the enemy.

I agree here also.  (As did Hamilton).

And a further qualifier:

With notable exceptions, such as the Korean War, presidents have generally sought advance congressional authorization for large-scale military actions comparable to the one now under discussion. That is what happened in the cases of the Vietnam War, the post-9/11 invasion of Afghanistan, and both Iraq wars. Unilateral presidential military actions typically involved situations where the enemy attacked or declared war first (as in the 1989 Panama intervention) or cases where the expected military action was brief and on a very small scale, involving little or no combat (as in the case of President Clinton’s 1994 intervention in Haiti, among many other examples).

Unfortunately, this norm has frayed in recent years, in considerable part because President Obama initiated two large-scale wars without congressional authorization – his 2011 intervention in Libya and the still-ongoing war against ISIS. In January, I warned that these  precedents were a dangerous “loaded gun” that  Obama left to Trump, and urged Congress to reassert its war powers.  Whether it will actually do so remains unclear.

I do not fully agree here, for the reasons set out in this article.  The 2011 Libya intervention was not a "large scale war" at least in terms of U.S. involvement (although perhaps it was in its consequences for Libya); more importantly, the Obama administration expressly defended it on the grounds that it was small scale.  The Obama administration defended the ISIS conflict principally as authorized by Congress' 2001 authorization to use military force (AUMF) against al-Qaeda and its affiliates.  (The Trump administration has continued this defense of its authority to use force against ISIS).  True, this argument may seem a stretch of the AUMF, but it's not precedent for presidential use of force where there is no remotely plausible claim to AUMF authorization.  Thus I do not believe there is any precedent from the Obama administration that would be useful to support a unilateral presidential attack on North Korea.


Josh Blackman: David Souter the Originalist
Michael Ramsey

At Josh Blackman’s Blog: David Souter the Originalist. From the introduction:

Unlike Justice Stevens, who has filled his retirement from acting status by writing books and railing against Justice Scalia, Justice Souter has continued to perform yeoman’s work through sitting by designation on the First Circuit. At this point, Souter has probably heard more cases on the First Circuit as an Associate Justice than he did during his brief five-month stint there from May to October of 1991. Yesterday, he authored the panel opinion in a fascinating case I have been following for some time.

The case involves Congregation Jeshuat Israel, which occupies the Touro Synagogue in Newport, Rhode Island (the same Synagogue that George Washington wrote to two centuries ago) and Congregation Shearith Israel in New York. Part of the dispute concerns the ownership of the rimonim, “a pair of finials with attached bells made of silver and gold and designed to surmount the shafts around which the Torah scrolls were rolled.” Specifically, the court had to determine whether the word “paraphernalia” in a contract written in 1903 embraced the remonim. To do so, Justice Souter employed an analysis that could only be described as originalist: how was the word understood at the time the document was drafted.

Originalism (though not by that name) is standard practice in legal interpretation outside of constitutional law (contracts, wills, statutes, treaties).  I would not say it's the exclusive practice, but it is a leading practice.  The burden for nonoriginalists in constitutional law is to explain why originalism is not appropriate in constitutional law even though it is standard practice elsewhere.  That is not an impossible burden, but it is the right one.


Justice Thomas Lee and Stephen Mouritsen on Corpus Linguistics and Judicial Interpretation
Michael Ramsey

Justice Thomas Lee and Stephen Mouritsen are guest-blogging at The Volokh Conspiracy on corpus linguistics.  Here is their first post: Judging Ordinary Meaning with Corpus Linguistics. From the introduction:

We are grateful to Eugene Volokh for the invitation to discuss corpus linguistics generally and our forthcoming article, “Judging Ordinary Meaning,” in particular.

Corpus linguistics is an empirical approach to the study of language that involves large, electronic collections of texts known as corpora (the plural of corpus). Corpus linguists draw inferences about language from data gleaned from real-world language in its natural habitat — in books, magazines, newspapers and even transcripts of spoken language. Through corpus analysis we can test our hypotheses about language through rigorous experimentation with observable and quantifiable data and arrive at results that are replicable and falsifiable.

In our article we rely on the (comparatively) new tool of corpus linguistics to examine a very old problem — how to discover the “ordinary meaning” of a legal text.

And in conclusion:

Using the tools of a linguistic corpus, we can measure the comparative frequency of a given sense of a given word in given context. We can design a corpus search that takes into account the syntactic and semantic context of the word or phrase in question. We can search for sample sentences that share similar pragmatic contexts with the text under examination. We can create linguistic corpora to model the speech or writing of a wide variety of speech communities and registers, and we can build corpora from the surviving texts from any period in history.

By incorporating corpus methods into the search for ordinary meaning, we can turn a largely intuitive and opaque inquiry into an empirical and transparent one.

Writing in 2011, language commentator Ben Zimmer stated (with some qualification) that “the corpus revolution promises to put judicial inquiries into language patterns on a firmer, more systematic footing.” We agree. And over the course of the coming week, we look forward to outlining the promise of corpus linguistics for questions of legal interpretation, as well as some important limitations.

Their second post:  Corpus linguistics and a dictionary-based jurisprudence. From the introduction:

We’re talking this week about the application of corpus linguistics to questions of legal interpretation and the search for the ordinary meaning of the words in a statute. Before diving into the corpus tools that can be brought to bear on this question, it is worth highlighting one of the existing (and increasingly common) approaches to finding ordinary meaning — the citation of general-use, unabridged English dictionaries.

The increasing reliance on dictionaries in legal interpretation has been well documented (herehere and here). But dictionaries cannot tell us the “ordinary meaning” of words in their statutory context. This is not a failing of dictionaries or the lexicographers engaged in the harmless drudgery of creating them. As Professors Henry Hart and Albert Sacks observed in their influential “Legal Process” lectures:

A dictionary, it is vital to observe, never says what meaning a word must bear in a particular context. Nor does it ever purport to say this. An unabridged dictionary is simply an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne …

More to come.


Mark Pulliam: Leaving Lochner Behind
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Leaving Lochner Behind.

What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.

“Wisdom,” Felix Frankfurter once remarked, “too often never comes, so one ought not to reject it merely because it comes late.” Allow me to explain.

Unlike most of my conservative colleagues, until recently I harbored sympathy for the pre-1937 notion that certain economic liberties are protected by the U.S. Constitution, even if they are not specifically mentioned (or, in constitutional law parlance, enumerated). ...


... Since the Framers believed in freedom, and drafted a Constitution to preserve that freedom, I was willing to presume that they intended to protect voluntary contractual arrangements from political interference. Influenced significantly by [University of San Diego Law School Professor] Bernard Siegan’s vigorous defense of Lochner in his seminal 1980 book, Economic Liberties and the Constitution—a revelation in its day—I willingly suspended my disbelief and became an avid fan of the Lochner jurisprudence.

When, decades later, I revisited the subject of Lochner, as I did in a 2015 article in National Review, I toned down my 1982 zeal for substantive due process, stating simply that “most economic liberties and property rights unjustifiably lost their status as ‘fundamental rights’ in the 1938 Carolene Products decision, and the Court has improperly abdicated its duty to protect those rights.

Unlike my conservative colleagues, such as Ed Whelan, who support judicial restraint across the board, and libertarians who embrace the theory of unlimited “unenumerated rights” pioneered by Roger Pilon and Randy Barnett, I found myself awkwardly straddling both camps. I was the atypical conservative who supported Lochner (judicial protection for economic liberties) but not an open-ended license for making up new rights. ...


After some reflection, I reluctantly—and belatedly—acknowledged that my straddle was untenable. The two camps are incompatible.

Given a choice between judicial restraint and judicial engagement, I chose restraint. Mea culpa. Frankly, in making this decision, I was swayed by an increasingly mutinous judiciary and the Left’s capture of legal academia.

Let me spell out other factors I considered.  ...


Tyler Broker: Free Speech Originalism
Michael Ramsey

Tyler Broker (University of Arizona - James E. Rogers College of Law, JD) has posted Free Speech Originalism on SSRN.  Here is the abstract:

The “originalist” view of constitutional law is the view that in determining how constitutional language is applied, the judiciary functions best when adhering, without significant deviation, from the “original” meaning of the language. In the view of its adherents, originalism provides the only reasonable lens through which to interpret the Constitution’s text given other alternative methods rely too much on the personal views of judges or impermissibly blur the line too far between unelected judge and legislator. This appeal towards greater objectivity is powerful, and it largely explains why originalism continues to maintain such strong support across the ideological spectrum, including among multiple members on the United States Supreme Court (“the Court”).

When applying a strict originalist view towards the First Amendment’s free speech clause, the lack of a First Amendment strike down of the Sedition Acts, and other categorical restrictions made during the pre-modern era, appear as convincing evidence of original intent for expansive and heavy-handed restraints on speech. Consequently, the modern era of free speech jurisprudence, beginning with Justice Oliver Wendell Holmes’ dissent in Abrams, appears as a “decisive break” with original intent because of the era’s expansive view of protection.

This Article attempts to draw on a common variable between the pre-modern and modern era periods of free speech jurisprudence: an evidence-based, procedural test of the effects of speech. If viewed through the lens of this test, first established by the Founders, the highly restrictive jurisprudence of the eighteenth and nineteenth centuries and the expanse of protections of the modern era become a progression compatible, and without significant deviation, from original constitutional intent. Moreover, this Article will demonstrate that if the evidence-based test was applied today in accordance with its original intent as a limiting principle on government authority, the protection of speech would not only be broader than it currently exists, but significantly deeper as well.

From the beginning, the Founders established substantive and procedural protections to ensure that disfavored speech actually caused non-speculative harm. Their commitment to an evidence test are demonstrated by the swift political blowback and legal amending during and after the passage of the Sedition Act. In what has been traditionally understood as expansions in free speech protections starting with Justice Holmes in more modern times is actually better understood as a consistent legal test applied to increasingly reliable information about the demonstrable effects of speech. In other words, the gradual increase in free speech protections has been dependent upon increases in evidence and science, rather than changes in free speech policy, and this is precisely what the Founders intended.

Part I examines the underlying theory of free speech in the founding era as well as documenting the struggle between the Founders over how such a theory was to be applied in American society. Part II traces the development of the evidence-based test during the Nineteenth Century “pre-modern” era. Part III, details the struggle over the modern application of the evidence-based test beginning with Justice Holmes’ dissent in Abrams. Part IV, reveals how the modern struggle ultimately led to a subversion of evidence-based reasoning for categorical and value-based analysis. Part V outlines what an evidence-based test in the 21st Century should look like, and how it may be satisfied.




Reactions to Tillman and Blackman’s Amicus Brief on Emoluments and the President
Michael Ramsey

Gautham Rao (American University, History) & Jed Handelsman Shugerman (Fordham) at Slate: Presidential Revisionism: The New York Times published the flimsiest defense of Trump’s apparent emoluments violations yet. From the introduction:

The Framers of the Constitution were deeply committed to preventing the corruption of their new republic. In fact, their anger over the corruption of the British monarchy and Parliament was a driving force behind the American Revolution. So the Framers built systemic safeguards to prevent American officials from falling prey to corruption.


Joshua Blackman and Seth Barrett Tillman, authors of an amicus brief defending Trump [in the emoluments clause litigation], assert counterintuitively that [the emoluments] clause does not apply to the office of the president. Why? They articulated their position in the New York Times last week: First, they argue that the office of the president is not “an office under the United States.” Second, they point out that Presidents Washington and Jefferson accepted a handful of diplomatic gifts. (For Washington, it was barely a literal handful: a key and a painting.) Blackman and Tillman claim we should pay more attention to what presidents did than what the Constitution plainly states. They are wrong on both points.

[substantial historical analysis follows]

And Brianne J. Gorod at Take Care Blog: A Little More on Alexander Hamilton and the Foreign Emoluments Clause. From the introduction:

Earlier this month, I wrote a piece for this blog on the debate about whether the Foreign Emoluments Clause, which applies to all persons “holding any Office of Profit or Trust” under the United States, applies to the President.  As I explained in that piece, there’s a “big problem” with one of the major pieces of documentary evidence relied on by those who argue that it doesn’t apply.  My colleague Brian Frazelle and I have now done a little more digging, and the problem with that evidence has gotten even bigger.

To briefly recap: most people agree that the Foreign Emoluments Clause applies to the President, but a few—determined to engage in an uphill battle against both the language and purpose of the Clause—maintain that it doesn’t.  Seth Barrett Tillman, a leading proponent of this cramped understanding of the Clause, relies on a number of pieces of evidence in support of this claim (Gautham Rao and Jed Shugerman ably demolish much of that evidence here), but one of the major pieces of evidence on which Tillman relies is a list of “persons holding office under the United States and their salaries” put together by Treasury Secretary Alexander Hamilton.  According to Tillman, that list “did not include any elected officials in any branch.”  Thus, he says, the document shows that “officers under the United States are appointed,” and thus the President—an elected official—is “not an officer under the United States” and is not covered by the Foreign Emoluments Clause.  In the New York Times, for example, Tillman wrote that this document was one of “three good reasons to believe that [the Clause] does not” apply to the President.  

As I discussed in my previous post, Tillman’s document is not the only one that’s relevant to understanding Alexander Hamilton’s views on who was, and was not, an “officer under the United States.”  In fact, an “abbreviated version” of the list of officeholders and their respective compensation was printed in the American State Papers (a collection of legislative and executive materials from early in the nation’s history), and that “abbreviated version” does include the President.    

Why the two documents, and what to make of them?  In an amicus brief he recently filed in litigation brought by CREW and others in the Southern District of New York, Tillman acknowledged the existence of this American State Papers document, but he dismissed it as “an entirely different document (but bearing a similar name).”  He denigrated its significance on the ground that it “was not signed by Hamilton” and is “undated.”  It was, he says without any supporting evidence, explanation, or citation, “drafted by an unknown Senate functionary.”  Ultimately, Tillman concedes that it is “probative of the legal meaning of Office . . . under the United States,” but not as probative as the other document that does not list the President.


Daniel Cohen: The Distribution of Power in the Appointments Clause
Michael Ramsey

In the current edition of the Virginia Law Review, Daniel S. Cohen: Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause. Here is the abstract:

Judge Merrick Garland’s thwarted Supreme Court nomination has divided legal scholars over the meaning of the Appointments Clause. While some believe that the Senate and the President share the power to appoint principal officers, others contend that the President alone has the power to nominate and appoint them. To the former scholars, Article II, Section 2, enables the President to nominate whomever he or she wishes, but it also empowers the Senate to confirm or reject whomever it wishes. Accordingly, the appointment power is divided between the two, meaning it is only exercised when both branches utilize their respective and discretionary powers. To the latter scholars, the same text gives the President the sole power to nominate and to appoint, with appointment subject to the Senate’s mandatory duty to advise and decide on whether to consent. Therefore, advice and consent is a check by which the Senate prevents the President from abusing his or her appointment power, triggered by the President’s decision to nominate. This Note argues that the latter scholars are correct because the Founders’ intent, the Constitution’s text, the doctrines of separation of powers and checks and balances, and long-standing Senate practice indicate that the appointment power is solely a presidential power. For Judge Garland, this conclusion means the Senate violated its duty to hold hearings and to provide an opportunity for a vote on his nomination. More importantly for the nation, it means that the Appointments Clause requires the Senate to apply to every nominee the process that it has designed for securing its consent. Thus, the precedent established by the 114th Senate of blocking all Supreme Court nominations during presidential election years, which will likely be followed and perhaps extended to mid-term election years, contravenes the nation’s fundamental constitutional structure. By failing to perform its duty, moreover, the 114th Senate also deprived the nation of the benefits that the advice and consent process provides, such as greater accountability for the Senate’s confirmation or rejection of nominations and a more functional government. In doing so, the Senate has placed political expediency ahead of the public interest.


Asher Steinberg on Textualist Pathologies
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: Supreme Court 2016 Statutory Term in Review: Textualist Pathologies in Advocate Health Care Network.  From the introduction:

I'm going to do a review of the Court's most methodologically interesting OT 2016 statutory cases, less the ones I've already written on.  I was inspired to write this series of posts by a good column in The Hill by Professor Jonathan Nash [ed.: noted here], who describes Justice Kagan's opinion in Advocate Health Care Network v. Stapleton as a "tour de force in textualist interpretive technique."  I'm not even sure if Advocate Health Care is a good textualist opinion; it seems to turn almost entirely on a basic mistake.  But it is, I think, a very representative opinion of how textualism is practiced today.  Advocate Health Care exhibits three textualist pathologies that we textualists should cure ourselves of:  conflating literal meaning with legal meaning, overconfidence about what a statute literally means, and overaggressive application of the anti-surplusage canon.

All good points; here is the discussion of literal meaning:

Suppose Kagan were right that "a disabled veteran includes a former National Guardsman" literally means that every former National Guardsman is a disabled veteran.  ...   If we think that she's right about literal meaning in the disabled-veteran case, is it necessary that we find that reading "utterly untenable" and conclude it "could not possibly have been what Congress wanted" before we reject the statute's literal meaning?  I don't think so, because literal meaning doesn't exhaust meaning.
Suppose the disabled-veteran hypothetical read a little differently.  In light of a dispute in the courts about whether a veteran with PTSD can count as a disabled veteran, Congress amends its disabled-veteran statute to say that "a disabled veteran includes a veteran suffering from PTSD."  Assuming that the statute literally means that disabled veterans include all veterans with PTSD, must we read the statute that way?  I don't think so.  It is possible—the mind doesn't rebel against it—that Congress wanted to protect every veteran with PTSD, however slight.  But maybe what it meant was only that veterans with PTSD can be disabled veterans; they still have to suffer from PTSD badly enough to be "disabled," as the statute elsewhere defines disability, and an extremely mild case of PTSD won't suffice.  This is possibly the more plausible guess about what Congress meant.  But if we follow Justice Kagan, we will have to say that because it's only more plausible than the statute's literal meaning and not absolutely compelled by absurdity doctrine, we're stuck with the statute's literal meaning.

This, I think, is mistaken, because literal meaning isn't all that meaning is.  A statute's meaning can consist of what the statute implies, but doesn't literally say.  For example, if it weren't explicitly addressed, the disabled-veteran statute would literally embrace veterans of any country's armed forces.  But no one would think the statute means that disabled veterans of the Syrian Army receive disabled-veteran benefits.  Limitation to service in the United States' armed forces is implied.  This is a cousin of what linguists call quantifier-domain restriction:  the idea that if you say "everybody will be at the party," the quantifier "everybody" is impliedly restricted to only extend over some "domain" or subset of persons that "everybody" literally signifies, like your circle of friends in the place where you live.

Similarly, when the Court claimed in Yates that "any tangible object" only meant record-keeping objects because the phrase was preceded in a list by words like "record" and "document," the Court was using noscitur a sociis to restrict the domain over which "any" extended, though "any tangible object" literally means any tangible object and definitely does not literally mean any record-keeping object.  I happen to think the Court restricted "any tangible object" in a way that no one would ever use the phrase, literally or otherwise, but I have no objection to restricting the phrase's domain in principle.  We would at least all agree, for example, that if a child's told to pick up "every object" off his bedroom floor, he isn't being told to move the furniture or search for dust mites, though "every object" most definitely includes furniture and dust mites.  To claim that the child really has been told to pick up his furniture and that the only reason he shouldn't is because his parent obviously misspoke and meant to say something like "pick up every object on your floor, except the furniture and dust mites," is quite confused.  The parent expressed herself perfectly well and explicitly exempting furniture was unnecessary; the implicit limitation on "every object," given the communicative context, was not only comprehensible, but all but unambiguous.

If these sorts of domain restriction are part of statutory meaning, not just instances where we determine that what Congress wrote was an absurd mistake, then it seems permissible to limit "a disabled veteran includes a veteran who suffers from PTSD" to "a disabled veteran includes a veteran who suffers from PTSD and is disabled by virtue of it."  We shouldn't have to prove that Congress couldn't possibly have meant what it literally said (assuming that what it literally said was that all veterans with PTSD are disabled); we should only have to show that the better reading of what the statute implies and thus means is that veterans with PTSD must be disabled, just as the Yates Court only had to show that its limited reading of "any tangible object" was the phrase's most likely reading given its context.  ...

...  But if we accept the claim that a definitional clause like "a 'disabled veteran' includes a former National Guardsman" literally means that all former National Guardsmen are disabled veterans, it does seem that we have to acknowledge that definitions of this sort can imply a limiting condition borrowed from the terms they define, e.g., that the disabled-veteran clause implicitly means "a disabled veteran includes a former National Guardsman who is disabled."  To claim instead that we're only sure in that case of what Congress meant to write but mistakenly didn't fails to explain why we so naturally read the clause as if it in fact ended "who is disabled."  By contrast, when Congress famously and absurdly wrote that CAFA appeals had to be filed "not less than seven days" after the appealed order's entry, one didn't naturally read the statute as if it read "not more than seven days"; it was obvious that Congress had meant to write "not more," but no one would have ever claimed that Congress implied "not more" by writing "not less."

While textualists are at times quite cognizant of the fact that literal meaning can be implicitly delimited or modulated by context, at other times—as in this opinion—they seem to believe that a statute means whatever it literally means unless what it literally means is absurd.  That need not be a tenet of textualism.  It would be more correct, and perfectly textualist, to say that a statute means what its language means unless what its language means is absurd and transparently not what Congress meant, and to say that what a statute's language means is not always coextensive with what its language literally means, given that meaning can encompass implication.


Josh Blackman on the Take Care Clause [Updated]
Michael Ramsey

At Josh Blackman's blog: The Topsy Turvy Take Care Clause.

From 2014-2016, I was one of the few scholars who maintained that President Obama’s non-enforcement of the law ran afoul of his duty to take care that the laws are faithfully executed. Specifically, I charged that his inaction with respect to immigration (DACA and DAPA) and Obamacare (delay, suspension, and modification of the mandates) were not good faith exercises of the law. I developed these arguments at length, in law review articles, op-eds, amicus briefs, media appearances, and debates. For the most part, other scholars scoffed at my position, simply invoking the talisman of prosecutorial discretion. Other disparaged the notion that the Take Care clause was even justiciable.

Then Donald Trump happened. Almost overnight, the Take Care Clause had a renaissance. A blog by that name–which is quite fond of reviewing my work–sprouted up overnight. Countless posts charge that the President is not acting in good faith.

More recently, Noah Feldman used his influential Bloomberg column to assert that if President Trump declines to make the cost-sharing reduction (CSR) payments to insurers, he will violate his duty to faithfully execute the laws ...


...  Here, however, I part company with the take-carers. Congress never appropriated the funds to make those payments. Where there is no law to execute, the President is under no duty to act. To the contrary, as I wrote in Unraveled, President Obama’s decision to make those payments, without an appropriation, was itself a violation of the Take Care Clause. 

Additional discussion of the CSR payments by Professor Blackman:

D.C. Circuit Permits 16 States to Intervene in House of Representatives v. Price. What comes next?

New in National Review: “President Trump Must End Illegal Obamacare Payments to Congress and Insurers”

From the latter:

Over the weekend, President Trump fired a warning shot: “If a new HealthCare Bill is not approved quickly, BAILOUTS for Insurance Companies and BAILOUTS for Members of Congress will end very soon!” Within moments of the tweet, Obamacare supporters discovered a new clause of the Constitution with which to thwart the president’s agenda: Goodbye Foreign Emoluments Clause, hello Take Care Clause. Under our Constitution, the president has a duty to “take Care that the Laws be faithfully executed.”

Were Mr. Trump threatening to stop making payments that are required by Obamacare, I would hop on the bandwagon. The “BAILOUTS,” however, are not part of the law the president has a duty to enforce. To faithfully execute the law, in fact, President Trump must stop these payments. ...

Agreed: the larger point being that the President's duty to take care that the laws are faithfully executed only requires (and only allows) the President to use his constitutional executive powers to enforce the laws; it does not invest him with additional powers even where those powers would be conducive to enforcing the laws.  So, in the CSR payments situation, as I understand it, the President lacks power to make payments not authorized by law, even if those payments would facilitate the operation of a law he has a duty to enforce.

UPDATE:  A clarification from Marty Lederman:

For what it's worth, no one (least of all DOJ in the House v. Burwell case) is arguing that the Executive can "make payments not authorized by law."  The dispute is purely one of statutory interpretation, i.e., whether there is an appropriation to make such payments, or not.


Saul Cornell Strikes Back (against Wrenn v. DC)
Michael Ramsey

At Take Care Blog ("Ensuring the President 'shall take Care that the Laws be faithfully executed'"), Saul Cornell (Fordham University, Department of History): Slavery and the Right to Travel Armed: A Short History Lesson (commenting on the recent D.C. Circuit decision in Wrenn v. District of Columbia, which was critical of some of Professor Cornell's scholarship). Key points:

The scope of the right to keep and bear arms outside of the home after District of Columbia v. Heller remains one of the most contested issues in American law. It is thus easy to see why gun rights champions have applauded Wrenn v. District of Columbiaa ruling that struck down the District of Columbia’s may-issue gun carrying scheme. Under DC’s law and others in places like California, New York, and Maryland, an individual must demonstrate a “good” or “proper” reason for being publicly armed in order to obtain a carry permit.  

Wrenn cuts against the growing consensus among courts that limiting the right to travel armed to individuals who have a good reason is not only consistent with Heller, but continues the dominant tradition in Anglo-American law for the last seven hundred years. To get around seven hundred years of history is no easy matter, but the decision in Wrenn does so by a highly selective culling of historical evidence and a shocking ignorance of the most important facts about Anglo-American criminal law and its history. 

Recent constitutional scholarship has demonstrated that the permissive vision of a broad right to carry emerged in the antebellum South, frequently in decisions rendered by pro-slavery judges. Given this fact it is not surprising that Wrenn’s justification for a right to carry cites these southern cases to support its gun rights conception of the Second Amendment. The only non-southern case cited, Thompkins v. Johnson, deals with a slave owner trying to recover a runaway slave in Pennsylvania. In that case the court concluded that the slave owner had a right to both arm himself and travel armed so that he could recapture his slave. In its opinion, the court reminded Americans: “the law of the land recognizes the right of one man to hold another in bondage, and that right must be protected.”


The court also erroneously interprets the common law tradition and it ignores recent evidence about the statutory restrictions on traveling armed that were enacted by legislatures outside of the slave south. The court adopts a gun rights fantasy in place of history. According to Wrenn, “under surety laws, put simply, everyone started out with robust carrying rights. Those reasonably accused were then burdened.”

This view is the opposite of the historical reality. The dominant tradition outside of the South restricted the right to travel armed. This right was generally limited to a small list of context-dependent exemptions. 

To see the falsity of Wrenn’s gun rights historical fantasy one need only examine the standard legal texts of the Anglo-American legal tradition and read them with some degree of historical sophistication, i.e. without presentist assumptions. Bans on traveling armed in populated areas were categorical violations of the King’s Peace. Consider the view of Michael Dalton, one of the most influential legal authors in the Anglo-American world, who wrote that: “All such as shall go or ride armed (offensively) in Fairs, Markets, or elsewhere; or shall wear or carry any guns, dags or pistols" violated the King’s Peace. “Any Constable, seeing this, may arrest them, and may carry them before the Justice of the Peace, and the Justice may bind them to the peace.” 

Wrenn turns this historical reality upside down, conjuring up a right where none existed.  ...

(Aside:  unclear what this has to do with the President's duty to "take care that the laws be faithfully executed.").


Forthcoming Book: "A Debt against the Living: An Introduction to Originalism" by Ilan Wurman
Michael Ramsey

Forthcoming from attorney and Stanford Constitutional Law Center associate fellow Ilan Wurman: A Debt against the Living: An Introduction to Originalism (Cambridge University Press August 31, 2017 [but available for preorder now]).  Here is the book description from Amazon:

Thomas Jefferson famously wrote that the earth belongs to the living. His letter to James Madison is often quoted for the proposition that we should not be bound to the 'dead hand of the past', suggesting that the Constitution should instead be interpreted as a living, breathing document. Less well-known is Madison's response, in which he said the improvements made by the dead - including the US Constitution - form a debt against the living, who benefit from them. In this illuminating book, Ilan Wurman introduces Madison's concept of originalism to a new generation and shows how it has shaped the US Supreme Court in ways that are expected to continue following the death of Justice Antonin Scalia, one of the theory's leading proponents. It should be read by anyone seeking a better understanding of originalism and its ongoing influence on the constitutional jurisprudence of the Supreme Court.

With very positive blurbs from an all-star lineup: Robert George, Jack Balkin, Randy Barnett, Ralph Rossum, Will Baude, George Will and Mitch Berman.

I read an earlier draft version -- it is very well done, and accessible to the non-specialist.


John Marshall on the Pardon Power
Michael Ramsey

Stephen Sachs comments:

Your post made me think of this Marshall passage from United States v. Wilson, 32 US 150 (1833):
Whether the pardon reached the less offence or not, the first indictment comprehended both the robbery and the putting life in jeopardy, and the conviction and judgment pronounced upon it extended to both. After the judgment no subsequent prosecution could be maintained for the same offence, or for any part of it, provided the former conviction was pleaded. Whether it could avail without being pleaded, or in any manner relied on by the prisoner, is substantially the same question with that presented in the second point, which is, "that the prisoner can, under this conviction, derive no advantage from the pardon, without bringing the same judicially before the court by plea, motion or otherwise."

The constitution gives to the president, in general terms, "the power to grant reprieves and pardons for offence against the United States."

As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.

Is there any thing peculiar in a pardon which ought to distinguish it in this respect from other facts?

We know of no legal principle which will sustain such a distinction.

A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.

It may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanours. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment.

The pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show that this, like any other deed, ought to be brought "judicially before the court by plea, motion or otherwise."

More on Presidential Self-Pardons

David Weisberg responds to Andrew Hyman: 
I have argued that Pres. Trump has power, under the Constitution, to pardon himself.  Andrew Hyman takes the position  that the president has no such power.  I think his arguments are ill-founded.
Mr. Hyman argues that the use of the word “grant” in Art. II, Sec. 2—“The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.”—implies that the president cannot pardon himself, because a grant necessarily involves two people: a grantor and a grantee.  Therefore, the Constitution should be understood as not permitting the president to “grant” a pardon to himself.
In support of the idea that a valid grant necessarily involves two persons, Mr. Hyman refers to cases of real property conveyance.  He acknowledges that, even in the real property context, some courts have held that a grantor can be the same person as the grantee, but he apparently accepts a holding of the Colorado Supreme Court that “the general rule [is] that a grantor and grantee cannot be the same person for purposes of conveying property[.]”
The real property cases, I think, provide no helpful guidance for interpreting the word “grant” in the Pardon Power Clause.  In the real property context, a “grant” from Mr. A to Mr. A is inherently problematic because Mr. A is granting to himself something—i.e., a piece of property—that he already owns.  That is a puzzler.  But, in the context of the Pardon Power Clause, there is no analogous problem or puzzle: the president would be granting himself something—i.e., a pardon for federal offenses—that he most definitely does not already possess.  The two cases are, in that sense, entirely different.
Mr. Hyman asserts that the president could properly self-pardon if the Pardon Power Clause stated that the President “shall have Power to Pardon Offenses against the United States, except in Cases of Impeachment.”  But this formulation materially alters the plain meaning of the Clause, because it omits entirely reprieves, which the president is explicitly empowered to grant.  How would Mr. Hyman’s hypothetical clause read if it included reprieves?  It would be incoherent: the President “shall have Power to Reprieve and Pardon Offenses against …etc.”  But offenses aren’t reprieved; convicted criminals who have been sentenced to death are reprieved.  The word “grant”—or some close synonym like “issue”—must be used in the Clause if the president is to have the power to grant reprieves.
Finally, Mr. Hyman and others refer to the maxim that no one is permitted to be a judge in his or her own case.  This maxim is inapposite.  Granting a pardon is a political act; it is not a judicial act.  The validity of a pardon—e.g., the validity of a presidential self-pardon—is a question of law for the courts.  But the granting of a pardon is not a question of law and cannot be compelled or forbidden by the courts.  In granting a pardon to himself, the president would not be acting as a judge.  He would be acting as a pardoner.

Brianne Gorod on the Domestic Emoluments Clause
Michael Ramsey

Brianne J. Gorod at Take Care Blog: New White Paper on Trump and the Domestic Emoluments Clause. From the introduction:

Six months into Donald Trump’s presidency, the legal troubles faced by this President and his Administration appear to be growing on a daily basis.  While much of the current focus is, quite reasonably, on dealings between Trump’s campaign and his businesses and foreign governments, no one should forget that dealings between Trump’s businesses and governments here at home also raise serious legal questions.

As others and I discuss in a new white paper released today, the Domestic Emoluments Clause—which prohibits the President from receiving any “emolument” from “the United States, or any of them,” other than his fixed compensation from the federal government—is a critically important provision in our Constitution.  And its implications for Trump and his businesses are significant.

When the Framers drafted the Constitution, they were deeply concerned about the corrosive and destructive effects that corruption could have on the young nation.  On one hand, the Framers were concerned with foreign nations and how they might try to meddle in the nation’s internal affairs—hence, their adoption of the Foreign Emoluments Clause and its prohibition on federal officials accepting benefits from foreign governments without first obtaining the consent of Congress.  On the other, they were also deeply worried about corrupting forces within the nation itself.  And with good reason: their experience under British rule had taught them how leaders could be tempted to put their own interests above the interests of the people they were supposed to serve.


The President May Not "Grant" Himself a Pardon
Andrew Hyman

Can the President of the United States pardon himself or herself? This has been the subject of much recent discussion, including here at the Originalism Blog where Mike Ramsey and also Mike Rappaport both leaned a bit toward “no” for different reasons.  I agree that the answer is no, but for a reason that is different from any I have seen written about at this blog or elsewhere.

Before addressing the difficult question of whether the President can pardon himself, let’s get the easy issue out of the way: he can be pardoned by the Vice-President. Section three of the Twenty-Fifth Amendment is very clear about this. It says that the powers of the presidency, including the pardon power, devolve upon the Vice-President whenever the President decides to voluntarily take a break from the office by becoming unavailable. During that period, the Vice-President would be free to pardon the President, and then the President could take back the reins of the presidency. This understanding of vice-presidential power has been explicitly endorsed by the executive branch since 1974, if not earlier. The New York Times also mentioned it favorably a few days ago.

But now suppose the President would like to pardon himself, perhaps because the Vice-President does not want to do it, or in order to spare the Vice President the sort of stigma that befell Gerald Ford when he pardoned Richard Nixon. The idea of a self-pardon is not absurd at all. In England, the King could not be charged with crimes nor be impeached, and so it would have made sense for the authors of the U.S. Constitution to limit that immunity---without entirely destroying it---by making the President subject to impeachment, as well as subject to prosecution and conviction under state law, while still allowing the President to pardon himself for violations of federal law. That may seem like an obnoxious concept, but it would offer a President substantial protection from prosecution by an overzealous and vengeful successor President, and would also protect the President from statutes that impose criminal penalties for official presidential acts(this link shows Ohio Senator and future SCOTUS Justice Stanley Matthews suggesting a self-pardon power).  So the notion is plausible, but of course that does not mean that the Constitution allows it, and I do not think it does.  

The Supreme Court stated in the 1974 case of Schick v. Reed that “We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.” This is a reasonable rule of interpretation. The Constitution itself says that the President “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” I believe the key word here is not "pardon" but rather the word "grant" which means to agree to give or allow something requested, or to give something from a grantor to a grantee.  The strong implication is therefore that two people are involved in a grant.  Whereas it was a common concept in 1789 to forgive one's self for wrongdoing, it was not common in 1789 to say that one grants something to one's self.  This is apparently why no one in the late 1780s so much as hinted that a president could grant a pardon to himself, despite considerable public discussion about the pardon power (e.g., according to George Mason’s widely published "Objections to the Constitution", “The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt”). 

It is true that on several occasions courts have said that a grantor and grantee may be the same person, but generally speaking this must be affirmatively stated by positive law.  For example, in a 2004 case, the Colorado Supreme Court said, “The [lower] court also noted that Taylor's conveyance to himself was contrary to the general rule that a grantor and grantee cannot be the same person for purposes of conveying property….[But,] section 38-31-101 expressly allows the owner of property to become both the grantor and the grantee for purposes of establishing a joint tenancy. This concept directly conflicts with the four unities doctrine and the notion that one could not be a grantor and a grantee.”

Regarding the ancient principle that no one can be a judge in his own case, I agree with Mike Ramsey that this was a common law principle applicable to various judicial proceedings, and was not applicable in executive and legislative proceedings.  And I agree with Mike Rappaport that the idea of a royal self-pardon against criminal process would not necessarily have been nonsensical, because "perhaps the King still had this power, but it was simply unnecessary to use."  Even if it was nonsensical in England, I think a self-pardon might well have made sense in the U.S. Constitution if the clause in question had said something like the President “shall have Power to Pardon Offenses against the United States, except in Cases of Impeachment.”  But the clause does not say that, and instead uses the word "grant" which implies that two people are involved: a grantor and a grantee.  The old English legal lexicographer Giles Jacob wrote in 1729 that requisite to every good grant is that there is agreement and acceptance of the thing granted, between grantor and grantee, which again implies that two people are involved.  Not one.

Abbe Gluck: Justice Scalia’s Unfinished Business in Statutory Interpretation
Michael Ramsey

Abbe R. Gluck (Yale Law School) has posted Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up (Notre Dame Law Review, Vol. 92, No. 5, 2017) on SSRN. Here is the abstract:

Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all.

Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions — the presumptions favored by textualists — with no defined method of choosing among them. These doctrines of the field are not treated as precedent or even as law that a higher court or Congress is entitled to make. Instead, they occupy the unique status of being viewed as inherently personal to the individual judge, a status not shared by any other doctrines applied by Article III courts. The doctrines do not have a theorized jurisprudence that legitimates their source, ties them to a sovereign lawmaking power, or even indicates where the rules come from. Justice Scalia himself was never willing to admit that many canons — including ones he himself invented — are judicial creations, and hence, federal common law; to the contrary, he argued that treating them as common law might be unconstitutional.

Justice Scalia’s incomparable contributions to statutory interpretation deserve great recognition. But even though his successful effort to create the modern field was ostensibly grounded in the rule of law, he either never really wanted formalism to succeed, or did not fully appreciate its implications. What would it take to make statutory interpretation truly formalist? Why did Justice Scalia’s vision fall short? Answering these questions is essential to understanding his legacy, what textualism really is, and what he wanted it to be.

At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download it while it's hot!"


David Weisberg on Presidential Self-Pardons
Michael Ramsey

David Weisberg comments:

The question whether the president could pardon himself must be answered in the affirmative, because if the Framers intended to exclude such pardons they could have very easily included the requisite language in the Constitution.  “[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  Delete the period and add: “and in Cases in which he himself is accused of such an Offense.”  If that’s what they meant, why isn’t that what they wrote?
To argue that the president can’t pardon himself because it would make no sense for a king (who was not subject to the criminal law at all) to pardon himself is to overlook one supremely important fact: in creating the presidency, the Founders were very deliberately not creating a monarchy.  A monarchy is something they were striving to avoid, not to replicate.  Therefore, the fact that a king in some sense could not pardon himself tells us, I think, nothing about what the Founders intended with regard to the president’s pardon power.  Again, why didn’t they include the appropriate language in the document itself?
Note:  At NRO, Andy McCarthy and Michael Stokes Paulsen reach similar text-driven conclusions.

Lochlan Shelfer: How The Constitution Shall Not Be Construed
Michael Ramsey

Lochlan Shelfer (Independent) has posted How the Constitution Shall Not Be Construed (Brigham Young University Law Review, Vol. 2017, No. 2, 2017) to SSRN. Here is the abstract:

The dominant historical narrative of the Ninth Amendment views the Clause as an exclusively “Federalist” provision with one purpose: to protect against the fear among Federalists that the very enumeration of any rights in a Constitution would imply that the universe of unenumerated natural rights was left unprotected, or that federal power would be expanded by implication.

This narrative of the Ninth Amendment, however, is incomplete in that it ignores the Clause’s Anti-Federalist side. This Article argues that the Ninth Amendment was proposed and ratified partly in response to the Anti-Federalist fear that particular rights-guaranteeing provisions of the Constitution could be used, by means of negative implication, to deny the existence of analogous or functionally similar rights. Thus, the Ninth Amendment instructs readers not to interpret particular words or clauses in the Constitution to imply that similarly situated, analogous, or functionally similar rights are therefore left unprotected. This history suggests that, contrary to the arguments of a number of Ninth Amendment scholars, the Ninth Amendment applies to procedural and positive rights, in addition to natural rights, and the Ninth Amendment instructs readers how to interpret particular words of the Constitution, and not just the fact of the enumeration of rights.


Can the President Pardon Himself?
Mike Rappaport

Recently, the question whether the President can pardon himself has been in the news.  I have always found that to be a difficult question.  But unfortunately the framing of the question these days often leads people to misunderstand the issue.

The Pardon Clause provides the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  Defenders of the view that the President can pardon himself argue that there is no limitation on the pardon power in the text of the Constitution.  They further argue that the explicit exception for cases of impeachment shows that no other exceptions are allowed.

This textual argument is then contrasted with a nontextual argument against presidential self pardons.  For example, Laurence Tribe, Richard Painter and Norman Eisen argue that the traditional common law principle that no person may be a judge in their own case shows that the pardon power does not cover self pardons.  But this principle does not appear to be in the constitutional text.  So we are left with an apparent dispute between a strong (or hyper) textualism and an apparent non-textualism.

In my view, this is not really the issue.  Let’s start again.  The textual argument in favor of self pardons assumes that the pardon power means the “power to pardon any person.”  But it is not clear that it does.  If one wants to understand the pardon power, the first place to look is the pardon power under the English law that the colonists inherited and that the Framers took as the precursor to American law.

Could the King pardon himself?  That is a hard question.  On the one hand, it appears that the King was thought to be immune from legal process and therefore the power to self pardon was unnecessary.  On the other hand, perhaps the King still had this power, but it was simply unnecessary to use.  Since it is not obvious which of these understandings is correct, the pardon power is unclear.  Thus, the question isn’t one of text versus non-text, but of what the text, which was based on historical terms, meant.

Moreover, it is even possible the apparently non-textual principle “that no person may be a judge in their own case” might be relevant.  Suppose that the pardon power might have had two meanings – one where the King could self pardon and one where he could not.  In choosing between the two meanings, it is perfectly legitimate to consider a well-accepted common law principle.  Such principles were used at the time of the Framing to resolve ambiguities.  This principle may even have wider application.  If it was unclear what the pardon power meant – there were not two distinct usages, but just a lack of clarity about what the power meant as to the issue of self pardons – then it is likely that an interpretive rule also allowed a traditional principle to resolve the uncertainty.

After writing most of this post, I came upon Mike Ramsey’s post on the same issue.  I was very happy to see that Mike had a very similar take upon the matter.  It is good to see that modern originalist analysis has a core.

Jill Wieber Lens: Justice Thomas, Civil Asset Forfeitures, and Punitive Damages
Michael Ramsey

Jill Wieber Lens (Baylor University - Law School) has posted Justice Thomas, Civil Asset Forfeitures, and Punitive Damages on SSRN. Here is the abstract:

For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.

This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages. Justice Thomas seems eager to re-evaluate the constitutionality of civil forfeitures despite their long history. Justice Thomas has never, however, publicly entertained the possibility that history does not justify the constitutionality of punitive damages. No obvious reason exists to explain the distinction.

The Essay also generally examines the similarities between civil forfeitures and punitive damages, and cautions that even with Justice Thomas’s vote, any enthusiasm that the Court will find civil forfeitures unconstitutional should be tempered. The Court—minus Justice Thomas—eventually defined some constitutional limitations for the civil imposition of punitive damages, but little reform resulted until legislatures got involved.


Evan Bernick on "Understanding the Fiduciary Constitution" by Lawson and Seidman
Michael Ramsey

At the Library of Law and Liberty, Evan Bernick: Getting to the Essence of the Constitution (reviewing A Great Power of Attorney”: Understanding the Fiduciary Constitution, by Gary Lawson and Guy Seidman).  From the introduction:

Gary Lawson and Guy Seidman’s important new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, seeks to explain what the Constitution of the United States is. ...

As one might guess from the title, Lawson and Seidman find that the Constitution is a fiduciary document—a legal instrument, familiar in private law, that empowers one person (the fiduciary) to control or manage the assets or legal interests of another (the beneficiary or beneficiaries) in order to promote the latter’s interests. As private law imposes a stringent set of duties on fiduciaries to protect beneficiaries against abuses of discretion, so the Constitution imposes similar duties upon government officials who are empowered to act on behalf of “We the People.” When James Iredell described the Constitution as a “great power of attorney” at the North Carolina ratifying convention in 1788, he was offering not merely an attractive analogy but an interpretive key to the document that he hoped would become the law of the land.

The implications of Lawson and Seidman’s conclusion are profound. But let me start by summarizing their empirical evidence before tracing some of the implications their conclusion has for constitutional meaning.

Most of the book is taken up with organizing the evidence that the coauthors (together with Robert Natelson, their frequent collaborator) have been amassing for years and have set forth in numerous articles and one book focusing on the fiduciary roots of the Article I’s Necessary and Proper Clause.  Lawson and Seidman begin by detailing the contours of fiduciary relationships and documents during the late 18th century. They then discuss how fiduciary principles were used by Americans to conceptualize the relationship between legitimate governments and their citizens. Then they move to the Constitution itself, specifying the ways in which its content and structure reveal its character as a fiduciary document. Lastly, they sketch how the various duties that attached to fiduciaries might be applicable to governmental actors under “this Constitution.”

And in conclusion:

Professor Randy Barnett and I have drawn upon the work of Lawson, Seidman, and Natelson to articulate a theory of good-faith constitutional construction that we plan to flesh out in a series of articles (and projected book.)  As the term “good faith” suggests, our theory is informed by fiduciary theory.

We argue that constitutional actors have a duty to follow their constitutional instructions in good faith, and to forebear from exercising their discretion under the Constitution’s letter (its text, consisting in its original public meaning) to undercut its original spirit (understood as the function or functions that a hypothetical member of the public would have reasonably understood particular provisions to serve). When constitutional actors cannot arrive at a determinate answer through interpretation, we argue that they should turn to the spirit of the relevant text to construct a rule that resolves the question at hand. I do not mean to suggest that Lawson, Seidman, or Natelson would agree with our approach—only to indicate the possibility that fiduciary theory could guide construction as well as inform interpretation.

The authors of “A Great Power of Attorney” are at pains, as I said, to disclaim any intention but that of shedding some light upon the meaning of an old document. What they have done is demonstrate to the satisfaction of this reviewer that it would be careless indeed for anyone who thinks and writes seriously about the Constitution’s meaning to neglect its character as a fiduciary instrument that creates a fiduciary government. That is a great achievement in and of itself.

(Thanks to Andrew Hyman for the pointer).