Andrew Koppelman: Scalia and Garner on Interpretation
Michael Ramsey

Andrew Koppelman (Northwestern University School of Law) has posted Passive Aggressive: Scalia and Garner on Interpretation (Boundary 2: An International Journal of Literature and Culture, Vol. 41, Summer 2014) on SSRN. Here is the abstract: 

Antonin Scalia’s coauthored treatise on legal interpretation is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia.


John McGinnis on the Udall Amendment
Michael Ramsey

At Liberty Law Blog, John McGinnis comments on the proposed constitutional amendment being discussed by the Senate: Seizing the Opportunity to Revisit the Republic’s First Principles and The Silver Lining of a Very Bad Proposed Amendment.  From the latter:

... [T]rying to pass an amendment implicitly accepts that the way to change the Constitution is to pass a constitutional amendment, not simply get the Supreme Court to say what you think the Constitution should have said.  As Mike Rappaport and I have written, one of the great costs of judicial updating of the Constitution is that it has eroded the amendment process.

A debate about a constitutional amendment reminds us that We the People, not They the Justices, are responsible for constitutional change.   Trying to pass a constitutional amendment also forces advocates of change to persuade their fellow citizens. It requires them to make deals with those who may not fully share their principles in order to get a consensus to pass an amendment. The higher politics of amendment is necessarily a politics of compromise, the opposite of winner-take-all, bare majoritarian politics that can be so destructive of social cohesion.


Justin Driver on Bruce Murphy on Scalia
Michael Ramsey

In The New Republic, Justin Driver (Univ. of Chicago Law School): How Scalia's Beliefs Completely Changed the Supreme Court, and therefore, the country (reviewing -- unfavorably -- Bruce Allen Murphy, Scalia: A Court of One).  From the introduction:

... Scalia’s legacy ... would not be especially apparent from aggregating the landmark opinions that he has written on the Court’s behalf. This discrepancy does not mean that Scalia’s résumé is altogether lacking in this regard. During the last decade alone, Scalia has issued major opinions redefining the Second Amendment’s protection for firearms possession in District of Columbia v. Heller and the Sixth Amendment’s Confrontation Clause in Crawford v. Washington. Even accounting for Scalia’s many memorable opinions written in dissent would inadequately trace his legal imprint.

Instead of his influence being confined to a discrete set of writings or narrow doctrinal categories, Scalia has shaped modern American law in ways more overarching and even elemental. Elena Kagan, when she was dean of Harvard Law School, expressed this point vividly while presiding over Scalia’s return to his alma mater in 2007. “His views on textualism and originalism, his views on the role of judges in our society, on the 
practice of judging, have really transformed the terms of legal debate in this country,” Kagan said. “[Scalia] is the justice who has had the most important impact over the years on how we think and talk about the law.”

(Via Ed Whelan at NRO, who has favorable comments [on the review]: Devastating New Republic Review of Scalia Biography).

Also: Will Baude has thoughts here.

Further Thoughts on War Powers and the Islamic State
Michael Ramsey

Ilya Somin argues here that Congress must authorize the conflict with IS.  I agree with everything he says, especially (a) that reliance on the 2001 AUMF is a terrible argument and (b) that "[c]laims that large-scale air attacks don’t count as warfare were specious when the administration trotted them out in defense of its intervention in Libya in 2011; and they have not improved with age." But he does not discuss what I think are the better arguments the President could make.

Executive powers historian Louis Fisher has thoughts here, especially on why this is a war.  I agree with everything he says too  (as I usually do), but I don't think anything he says is inconsistent with what I said earlier.

Andrew Hyman emails to object to my reliance on the 2002 AUMF: 

The 2002 AUMF says: "The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to … defend the national security of the United States against the continuing threat posed by Iraq[.]"
Seems to me that the key word here is "continuing".  If that word were absent, then the AUMF could last forever.  Certainly the Obama administration has taken the position that Iraq posed no threat before ISIS moved into Iraq --- or moved back into Iraq --- from Syria.
That's a good point, and I agree with the basic premise that the threat must be "continuing" and some content must be given to that word.  So yes, if this were an entirely new threat -- if, say, Iraq had settled down and become a stable democracy for 10 years -- I agree that the AUMF could not suddenly spring back to life if Iraq got involved in a new conflict with, say, Iran.  But that's not the case here: as I argued previously, IS is just a new version -- a continuation -- of the forces the U.S. fought pursuant to the AUMF in 2007-08.
It's true that the President withdrew our forces in 2011 and made some statements he may now regret about the end of the war and the dawn of stability in Iraq.  But in hindsight we now see (and he now sees) that this was mistaken; the old threat never went away, and is now back with renewed force.  I think the President and the nation are entitled change their assessment of the facts and treat this as a continuation after a brief respite rather than a new conflict, despite some wishful thinking about the supposed end of the prior conflict.  It's quite common for conflicts to appear to die down for a while and then flare up again.  Again, the key is the common identity of the old enemy and the new enemy.  It's that fact on the ground that makes this a "continuing threat posed by Iraq."
Finally, Eli Lake at The Daily Beast  rounds up more commentary against the relevance of the 2001 AUMF.  Matt Welch (Reason) isn't impressed either: Obama's B.S. Justification for his Illegal War: The 2001 AUMF.  I think the 2001 AUMF argument is so bad it wouldn't be worth talking about if the administration wasn't making it. 


The President Does Not Need Further Authorization from Congress to Attack the Islamic State
Michael Ramsey

In an earlier post, I pointed out the challenges to arguing that the President needed Congress' approval to attack the Islamic State (IS).  Further reflection and some further events have convinced me that the answer is in fact fairly clear: no further authorization is needed.

To begin, I'll assume (a) that a conflict with a quasi-state entity such as IS is a war, (b) that the actions the President intends to take amount to war in the constitutional sense, and (c) under the original meaning of the declare war clause Congress must authorize all presidential initiations of war.  (I'm not sure either (a) or (b) is true, but assuming them simplifies the discussion.  For my argument on (c), see The Constitution's Text in Foreign Affairs, Chs. 11 & 12, and Textualism and War Powers, 68 U. Chi. L. Rev. 1543.)

The President can make two arguments, both independently persuasive.  First, Congress has authorized the use of military force against the threat posed by Iraq (the 2002 AUMF).  Under that authorization, President Bush not only ousted Saddam Hussein but also fought the Sunni insurgency that arose in western Iraq after a post-Saddam government was installed in Baghdad.  President Obama continued the latter conflict until he withdrew U.S. forces in 2011.  The IS is a direct descendant of the Sunni insurgent forces previously engaged by the U.S. in western Iraq -- indeed, it appears that it's really the same force, under a new name and a new leader (after prior leaders were killed by the U.S. and its Iraqi allies).  This detailed article traces the evolution of the group.  (Yes, its Wikipedia.  Students, don't do this on your research papers).  It states directly: "ISIS is the successor to … al-Qaeda in Iraq (AQI)—formed by Abu Musab Al Zarqawi ... which took part in the Iraqi insurgency against American-led forces and their Iraqi allies following the 2003 invasion of Iraq."

As a result, the 2002 AUMF covers the existing and contemplated conflict with IS (assuming it covered Bush's war against the Sunni insurgents in 2007-08, which I think everyone agrees it did).  If Obama had not withdrawn U.S. forces in 2011, it would be obvious that the current conflict is a continuation of the old (authorized) one.  But I do not see how what turned out to be a temporary U.S. disengagement terminated the 2002 authorization.  Surely a President can withdraw temporarily from a conflict without losing his authorization to reengage if he thinks (in the language of the AUMF) it is "necessary and appropriate" in order to "defend the national security of the United States against the continuing threat posed by Iraq".  Of course it would be different if the President had withdrawn at the direction of Congress (as was the case of Nixon in Vietnam), but that is not the case here.

Second, in my view of the Constitution's original meaning, the President does not need authorization to respond to a declaration of war against the United States.  The constitutional limit is only on war initiation and does not extend to wars begun by the other side.  Hamilton made this point strongly in connection with the U.S. engagement with Tripoli in 1801: "[W]hen a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary."  (see 69 U. Chi. L. Rev. 1629 & n. 319).  Note: this argument depends on the additional proposition that the President, in responding to an enemy's declaration, can not only defend against attacks but also take the offensive.  That was Hamilton's view, and I agree.  See this article (93 Cornell L. Rev. 169).

In my earlier post I raised the question whether IS had declared (by word or deed) war on the United States, but I equivocated on the answer.  Now I think it's more clear, based on the intervening beheading of U.S. journalists and IS's accompanying statements.  IS appears to regard itself as at war with the United States and to intend the beheadings as acts of war.  Moreover, the President's executive foreign affairs power gives him authority to judge the status of the U.S.-IS relationship; if he reasonably thinks their actions amount to a declaration of war, that judgment seems sufficient.

As a final point, does this analysis change if the President attacks IS in Syria?  I think not.  Attacking in Syria is part of the conflict in Iraq, since IS is using Syria as a base to attack Iraq.  So whether the President has Congress' authorization from the 2002 AUMF or is acting on his own, he is entitled to extend the war as needed to encompass the enemy's bases. 

It would be different if, in attacking IS in Syria, the President initiated a conflict with the Syrian government.  That, I think, would require Congress' approval as the start of war with a new enemy.  But IS is itself at war with the Syrian government, and its bases -- though geographically in Syria -- are not in areas controlled by the Syrian government.  An attack on IS in Syria would not have as its goal any coercion of the Syrian government (indeed, it might be welcomed by Syria, although I do not think overt or tacit approval by the Syrian government is required).

In sum, I am persuaded that the President does not need further congressional approval to attack IS (in Iraq or Syria), both because such attacks are authorized under the 2003 AUMF and because the President has independent authority to respond to IS's declaration of war against the U.S.

FURTHER NOTE:  Josh Blackman comments on the issue here, strongly suggesting that congressional authorization is needed.  He also notes that the adminstration is (apparently) claiming authorization under the post 9/11 2001 AUMF (authorizing the use of military force against the perpetrators of the 9/11 attacks and those that supported them).  See this post from Ben Wittes at Lawfare.  I agree with Blackman, Wittes and Robert Chesney that this argument is weak.  As Ben Wittes puts it,  

I have always supported the administration in taking a broad view of what it means to be an “associated force” under the AUMF. But “associated” does not mean “not associated” or “repudiated by” or “broken with” or even “used to be associated with.”

It's significant that the adminstration appears to be backing away from an Article II independent power to conduct the IS operation.  Even though I think in this particular case there is a good argument for Article II power, hesitancy to deploy it undermines the broader views of Article II authority that are, in my view, inconsistent with the original design.


Neil Buchanan on Textualism
Michael Ramsey

At Dorf on Law, Neil Buchanan: Hate Crimes, Chemical Weapons, and the Internal Revenue Code. Here is an excerpt: 

In his post here yesterday, Professor Dorf raised an interesting and important question about statutory interpretation, suggesting that perhaps current practices are "unduly influenced by textualism."  Discussing the Sixth Circuit's opinion in United States v. Miller, a hate crimes case, and Bond v. United States, a 2014 Supreme Court case interpreting a chemical weapons law, Professor Dorf suggested that even apparently clear statutory language can still be ambiguous in ways that might change the outcomes of cases.

The point is subtle, but exceedingly important.  Conventional wisdom, as Professor Dorf describes it, requires a two-part inquiry, in which "one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation."  This Chevron-style approach essentially says that apparent statutory purpose is always trumped by clear statutory language, no matter how clearly the two might diverge.  Professor Dorf's suggestion, with which I agree, is that knowing the purposes of a statute "can create ambiguity where the words alone do not appear to contain any."  That is, there is nothing wrong with the two-step approach, but we need to be more complete about our inquiry into what even apparently clear words of a statute could mean.

This is a very impressive post, of which the excerpt is only a small taste, but there really isn't anyway to capture it without reading all of it.  I am not sure, though, that he is saying anything textualists would disagree with.

Professor Dorf's post, linked above, is also well worth reading.


Originalism and the Two Narratives of Halbig (Updated)
Michael Ramsey

Halbig v. Burwell, the ACA subsidies case, has two competing narratives.  In one version, it is an epic battle between textualism and contextualism.  The statute (says one side) clearly says subsidies are available only for insurance exchanges "established by [a] State" and the federal exchange is obviously not established by a state.  But (says the other side) surely Congress could not have intended a situation in which subsidies were not available on the federal exchange, so to make sense of the statute one should not read it narrowly but with regard to what makes the most sense of Congress' intent.  Which side you are on depends on whether you pick text or intent.  See this post by Curt Levey: Obamacare Subsidies Rulings: It’s the Theory of Statutory Interpretation, Stupid (calling for a textual approach over an intent approach); compare this post by Rick Hasen: Bad Readers: The Judges that Ruled against Obamacare are Following Scalia Down a Terrible Path of Interpretation (calling for an approach based on the statute's "purpose" and "looking at the whole statute to make it coherent").

In the second version, it's a battle between good and bad textualism -- bad textualism being an approach that looks only to a single phrase in a single section, disregarding the rest of the statute and its clear (textual) import taken as a whole.  Which side you are on depends on whether you are a good textualist who looks to the whole statute and its enacting context, or a bad (and perhaps politically driven) textualist who looks to a single phrase in isolation.  See these posts by Abbe Gluck and Neil Siegel.

Which narrative prevails may go a long way in determining the ultimate result.  Narrative (1) might generate a Supreme Court majority for the challengers; narrative (2) likely would cause the Court to shun the case (assuming the en banc D.C. Circuit eliminates the circuit split.)

But I'm interested in a broader point: everyone is approaching this case as an originalist.  Every argument I have seen for allowing federal subsidies depends on the proposition that the Congress that enacted the ACA wanted federal subsidies (with the counterargument being that, even if so, Congress did not make that sufficiently clear in the text).  The debate is between text and intent, or between literal meaning and (original) contextual meaning. 

These debates are familiar to constitutional originalists, but they are usually regarded as internal debates among originalists, of only passing interest compared to the larger debate between originalism and non-originalism in constitutional interpretation.  Because Halbig is a statutory case, though, the only question seems to be how to identify the enacting Congress' prescription. 

That is not because non-originalist arguments would be implausible here.  Consider this one: regardless of what the enacting Congress thought of this particular issue (which probably can't be determined anyway), it's very likely that the enacting Congress assumed most or all states would create an exchange.  It has turned that a large number of states did not.  So we are in a different world from the enactors, and the law must be made to work for our world, not their world.  As a result, the best outcome is to allow subsidies on the federal exchange without regard to what the enactors wanted.

I would not be surprised if a number of the subsidies' defenders actually think of the problem in this way.  But that is not the way they argue it.  Why not?  Because for statutes, originalism is the dominant approach, even though we don't realize it because we don't use that name.

UPDATE: Simon Lazarus (Constitutional Accountability Center) makes some similar observations toward the end of this piece in the New Republic, which I had not previously seen:

ACA opponents ... evidently believe their chances of winning all five members of the Supreme Court’s conservative bloc will rise, if this brow-furrowing squabble over dense legislative terminology can be framed as an epochal front in a three-decade-old holy war between two schools of jurisprudential theory about how judges should interpret statutes.

“Purposivist” disciples may be tempted to seize upon the ACA premium assistance challenges to skewer their philosophical adversaries. ...  But thus broadening the stakes in these lawsuits is a mistake. The better—and accurate—tack is that opponents’ route to interpreting federal exchanges into self-immolation is so hyper-blinkered that it flouts bedrock axioms common to all legitimate interpretational theologies


New Book: Erwin Chemerinsky's "The Case Against the Supreme Court"
Michael Ramsey

Erwin Chemerinky's book The Case Against the Supreme Court (Viking 2014) is set for official release September 25.  Here is the book description from Amazon:

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country’s leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and United Citizens, are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times.

Only someone of Chemerinsky’s stature and breadth of knowledge could take on this controversial topic. Powerfully arguing for term limits for justices and a reassessment of the institution as a whole, The Case Against the Supreme Court is a timely and important book that will be widely read and cited for decades to come.


Franita Tolson: Protecting Political Participation Through the Voter Qualifications Clause of Article I
Michael Ramsey

Franita Tolson (Florida State University - College of Law) has posted Protecting Political Participation Through the Voter Qualifications Clause of Article I (Boston College Law Review, forthcoming) on SSRN.  Here is the abstract:    

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.


Jeffrey Toobin on Textualism and Halbig v. Burwell
Michael Ramsey

At The New Yorker, Jeffrey Toobin: Will Textualism Kill Obamacare?  From the introduction:

The case [Halbig] is the latest chapter of the legal assault on Obamacare, but it is also the most prominent instance of a larger fight over an ascendant legal theory known as textualism. This approach, which was pioneered and advocated by, most prominently, Justice Antonin Scalia, holds that courts should interpret laws based solely on their own terms, and not on the basis of the intent of the legislators who create the statute. As Scalia has written, “We are governed by laws, not by the intentions of legislators.” The words of the statute should always prevail, Scalia believes, over “unenacted legislative intent.”

That sounds right so far, but he then concludes:

The five appellate judges who voted to uphold the law were originally nominated by Democratic Presidents; the two who voted against it were chosen by Republicans. This reflects the real division over the Affordable Care Act–a political, rather than judicial, conflict. Textualism is not a dispassionate guide to a result; it’s merely a vehicle to a preferred outcome—the destruction of Obamacare.

I do not follow this conclusion at all.  Might it not be the case that Republican-appointed judges favor textualism as a legal theory and Democratic judges (at least in this case) don't?  Where is his proof that textualism wouldn't be a "dispassionate guide to a result" if everyone were following it?

To be sure, if textualism is ambiguous or if -- properly applied -- it points to the opposite result in Halbig, then Toobin might have a point.  (Abbe Gluck and Neil Siegel, among others, have made this argument).  But Toobin doesn't show either to be true.  Rather, what he says is consistent with textualism being a neutral approach that in this case, at least as the D.C. Circuit panel saw it, happens to lead to a conservative result.

To be clear, I am still not expressing any view on the merits of Halbig.

(Via Larry Solum at Legal Theory Blog, who also has some critical thoughts).

RELATED:  Corey Adwar has this commentary at Business Insider.

Brian Kalt on Benjamin Cassady and the Disqualification Clause
Michael Ramsey

Brian C. Kalt (Michigan State University College of Law) has posted The Application of the Disqualification Clause to Congress: A Response to Benjamin Cassady (Quinnipiac Law Review, forthcoming) on SSRN.  Here is the abstract:

This article is a response to Benjamin Cassady’s recent article, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify. It agrees with Your Crook that disqualification does not apply to election to the House or Senate, and that voters should have as free a hand as the Constitution will allow to elect representatives and senators that others in Congress might find scurrilous. The article focuses, however, on disagreements and distinctions. Part I critiques the nature of the structural claims in Your Crook. Part II examines the importance of the legal-process question: who decides whether a particular person is disqualified from a particular post? Part III looks at other elements of the constitutional structure that Your Crook does not consider. Part IV similarly fleshes out the question of disqualification and the presidency. Finally, Part V takes issue with Mr. Cassady’s application of the term “pardon” to the election of a previously disqualified or expelled person.

Thanks to Seth Barrett Tillman, who adds:

This paper is responding to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014) [noted here]

Professor Kalt's paper will run with 3 other responses to Cassady. The responses will be by: Buckner F. Melton, Jr., Professor Petter C Hoffer, and by me. See Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. (forthcoming circa Dec. 2014), available at http://ssrn.com/abstract=2484377 [noted here].

Melton's and Hoffer's papers are not yet posted on SSRN.


Herbert Hovenkamp: Inventing the Classical Constitution
Michael Ramsey

Herbert Hovenkamp (University of Iowa - College of Law) has posted Inventing the Classical Constitution on SSRN. Here is the abstract: 

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would make every participant a winner. The participants have liberty and property rights antecedent to the state, but choose to give up as little of these as needed to empower government. Because insisting on either unanimous consent or individual voter participation on every issue is impractical and unwise, republican representative government comes into existence. But then it is essential that this government act consistently with the social contract and not be captured by factions, or special interests. 

The result is constitutionalism that is wary of legislation as excessively vulnerable to special interest capture, suspicious of non-unanimous direct democracy tools such as initiatives and referenda because they often disrespect individual rights, and severely critical of most forms of economic regulation. With this distrust of legislation comes a reliance on judges to get the right answer, striking down statutes as unconstitutional even when the court's mandate is not explicitly stated in any constitutional language.

This article argues, first, that the Constitution was not classical in its inception. Historically it was "pre-classical," particularly on matters of private contract and property rights and government intervention in the economy. That conclusion is consistent with its text, but even clearer from contemporary perspective, as well as early court interpretation.

Second, a distinctively "classical" perspective on the Constitution came later, as the influence of Adam Smith's Wealth of Nations and his English and American followers filtered through American academies. The adoption of classical views resulted from the Jacksonian movement, which began in the 1820s. It took root in federal constitutional doctrine with Jackson's appointment of Chief Justice Roger B. Taney, an economic liberal. Classical liberal views increasingly influenced both state and federal constitutional thought well into the twentieth century, although state courts interpreting their own constitutions led the way. These included a strong antiregulatory bias favoring private markets, suspicion of monopoly, development of a technical and narrowly focused patent system as an exception to this hostility toward monopoly, legislative capture justifications for judicial review, and a strong view of liberty of contract. As these doctrines expanded, however, constitutional doctrine began to depart more significantly from constitutional texts.

Third, one defining element of classical political theory -- the "social contract" -- never captured an important following in American mainstream constitutional thought, not even during the early national period or the later heyday of constitutional classicism. While judges and constitutional writers sometimes spoke of a social "contract" or "compact," they almost always meant the text of a constitution or some other authoritative document. They rarely advocated for a social contract doctrine that would enable them to jump off the ratified text to some unnamed fundamental principle. Even the academic and judicial architects of economic substantive due process during the Gilded Age and Progressive Era did not typically rely on the social contract idea, and some of them forcefully rejected it.

Fourth, and concluding, the idea that classical constitutional doctrine was displaced by "progressive" constitutionalism is also wrong, or at least wildly exaggerated. The constitutional revolution that occurred during the first four decades of the twentieth century was certainly supported by self-identified "progressives." But support for change was broader and much more centrist, driven by changes in economic theory that today are accepted by liberals and conservatives alike. This makes it impossible to go back.


Jonah Gelbach on Isolated Textualism and the Halbig Litigation
Michael Ramsey

I've been mostly avoiding much comment on the Halbig (Affodable Care Act subsidies) litigation, on the ground that I don't intend to read the entire Affordable Care Act, but this post is too ill-conceived to pass up.

At Balkinization, Jonah Gelbach (U. Penn. Law School) guest-posts The Methodological Absurdity of Isolated Textualism: Halbig, King, and How Not To Read. His central point is that the plaintiffs' case in Halbig depends on "isolated textualism," that is, reading "one little bit at a time, with no consideration of the rest of the law."  This, Professor Gelbach says, is an approach "that is not just indefensible, but which, outside the particulars of the Halbig and King litigation, no one does defend."

Gelbach provides the following analogy:

To see why, let’s ask what would happen if we applied ... isolated textualism to the Internal Revenue Code generally, by considering how much tax would have been owed by a married couple filing jointly and having $17,000 in taxable income in 2013.

The opening sentence of the U.S. Internal Revenue Code, 26 U.S.C. 1(a), imposes a tax of 15% on the first $36,900 in “taxable income” of married couples who file joint tax returns. ... Using [the challengers'] approach to reading text—one little bit at a time, with no consideration of the rest of the law—the couple owes 15% of their taxable income, and that’s it. 
But that’s not the tax the IRS would have sought to collect. To understand why, all you have to do is what any law student taking Federal Income Taxation should learn on day one: keep reading. Subsequent parts of 26 U.S.C. 1 operate jointly to create an additional tax bracket that applies a tax of 10% of the first $17,850 of a married-filing-jointly couple’s taxable income (see this IRS page). Consequently, no one suggests the IRS is behaving unlawfully when it collects less than 15% in taxes from such couples. ...
Gelbach supposes this to be a knockdown argument (he has several other similar examples), but I am unpersuaded.  Of course, no textualist suggests that a single textual provision should be read without considering the rest of statutory text.  See Scalia & Garner, Reading Law, pp. 167-169 ("Whole-Text Canon").  And where (as in Gelbech's examples) there is a general rule followed by a direction to treat a specific instance separately, the specific direction is treated as an exception to the general rule (even if it is not expressly so stated).  Scalia & Garner, Reading Law, pp. 183-188 ("General-Specific Canon").
In Halbig, the plaintiffs claim that because the health care subsidies are available only on "an Exchange established by the State" they cannot be available on the exchange (healthcare.gov) established by the federal government.  Gelbech faults this argument for not reading the rest of the statute.  But Gelbach's complaint, and his tax code analogies, work only if there is something else in the text of the ACA that contradicts the language on which plaintiffs rely.
Maybe there is.  (I haven't read the statute and don't intend to).  But Gelbach in his post does not point to anything.  So I assume there isn't.  And if there isn't, his entire argument falls apart.  The plaintiffs' case doesn't depend on "isolated textualism"; it depends on the propositions that (a) one provision of the statute says that subsidies are only available on state exchanges, and (b) no other provision of the statute says otherwise.
That's not to say that the plaintiffs' position is necessarily correct, but I don't see the fundamental textualist flaw Gelbach claims to have uncovered.


Cass Sunstein: There Is Nothing that Interpretation Just Is
Michael Ramsey

Cass Sunstein (Harvard Law School) has posted There Is Nothing that Interpretation Just Is on SSRN. Here is the abstract: 

Some people believe that the very idea of interpretation requires judges to adopt a particular method for interpreting the Constitution. The problem with this view is that in constitutional law, the general idea of interpretation is compatible with a range of different approaches, and among them, none is mandatory, in the sense of having some unique or privileged connection with the general idea. Any particular approach must be defended on the ground that it would make our constitutional order better rather than worse. No one should doubt that there are legitimate questions about the institutional capacities of judges, and about the virtues and vices of a deferential role on their part; the answers to those questions can motivate a view about constitutional interpretation. But they do not depend on an understanding of what interpretation necessarily requires.

I sort of agree with this, and sort of don't.  It depends on what one means by "interpretation."

I would put it this way:

(1) When it was drafted and ratified, the Constitution had a meaning.  We can debate what the best way to find that meaning is (looking at text, looking at intent, etc.).  Perhaps it had more than one meaning, depending on how one defines "meaning."  But in any event, that meaning (or those meanings) became fixed at the time of ratification.

(2) Today, when judges decide what the constitutional rule is going to be, they can (a) try to find and apply the meaning at the time of ratification; or (b) do something else.  I agree with Sunstein that there is no nature of interpretation (no thing "that interpretation just is") compeling our choice.  And I further agree that "[a]ny particular approach [that is, any choice between (a) or (b)] must be defended on the ground that it would make our constitutional order better rather than worse."

(3) In considering this choice, I don't find it helpful at all to debate what interpretation is, or indeed even to use the word "interpretation."  The question, rather, is what judges (and other actors) ought to be doing when they decide the content of a constitutional rule.  To say they should be "interpreting" the Constitution provides no answer, because "interpreting" has contested meanings.  The useful way to think about it is whether they should be finding the original meaning, and if not, what else they should be doing.

(4) However, if judges are not finding the original meaning, they are changing the meaning from what it once was (or, recognizing that the meaning has been changed from what it once was).  That statement doesn't arise from the nature of interpretation; it arises from the nature of meaning.  As a result, they need an explanation for why they prefer the new meaning to the old meaning, and why they are authorized to make that change.

(I am especially influenced in my thinking here by two papers from the February 2014 Originalism Works-in-Progress conference by Larry Solum and Steve Sachs.)


The Drafters and the Ratifiers
Mike Rappaport

It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters.  I am not so sure.

To begin with, this distinguishing between the drafters and the ratifiers appears to turn on an original intent (versus an original public meaning) understanding of originalism.  Under an original public meaning apprach, it is the meaning that a reasonable and knowledgeable person would give to the Constitution.  And that meaning is no more likely to be that of the ratifiers than the drafters.

But some people favor the original intent approach.  Yet, even under this approach, it is not clear that ratifiers matter more than the drafters.  The usual argument is that the drafters simply wrote the Constitution, but it had no authority until it was enacted into law, which only the ratifiers could do.

Let’s assume for a second that this argument is correct.  Even if it were true, it would not apply to constitutional amendments.   Constitutional amendments are enacted through a process that requires both proposing (that is drafting) and ratification.  There are two methods for proposing an amendment: one method has the Congress propose an amendment; another method has a convention do so.  There are also two methods for ratifying an amendment: one method has the state legislatures ratify an amendment; another method has state conventions do so.

Thus, the constitutional amendment process requires both proposing and ratification.  It is entirely unjustified to argue that the ratifiers count for more than the proposers.  It is true that the proposal would not count as law unless ratified.  But it is equally true that the ratifiers could not enact an amendment if it is not proposed in accordance with the constitutional amendment process (if, for example, a majority of both houses of Congress proposed the amendment rather than two thirds of both houses, as the Constitution requires).

Now, lets return to the original Constitution.  The original Constitution was enacted through a different process than amendments are.  The drafting convention in Philadelphia largely acted on its own authority, providing in the document that the ratification by 9 of the 13 states by state conventions would enact the Constitution for the ratifying states.  While the drafting convention did not have authority based on an existing constitution (as the drafting congress or convention does in the amendment process), it did govern the ratification process – the ratifying conventions it required and the 9/13 rule it established were both followed.  Thus, the original drafting convention was an essential part of the constitutional enactment process – both writing the proposed constitution and specifying the process.

The original drafting convention cannot be dismissed as not having a key role in the enactment process.  Yes, it is true that the draft of the Constitution was a mere proposal before it was ratified.  But the ratifiers were following the rules set by the proposal and were not in a position to take these actions without the proposal.  Thus, both the drafters and ratifiers were essential.

(Cross posted at the Liberty Law Blog)

Judge Katzmann Takes on Justice Scalia
Michael Ramsey

Judge Robert Katzmann (U.S. Court of Appeals, Second Circuit) has a new book Judging Statutes (Oxford Univ. Press 2014).  From the publisher's description: 

  • Major but concise work by a distinguished federal judge--and the only one with a Ph.D. in political science--on a highly contested issue
  • Offers a powerful challenge to Antonin Scalia's textualist approach
  • A spirited and compelling defense of why judges must look at the legislative record behind a law--and not merely the statute itself
  • Of interest to concerned citizens, law students, government students, lawyers, judges, and legislators

I am not convinced that a textualist approach requires the strict blindness to legislative history on which Justice Scalia insists -- although it surely requires that that the legislative history be used for the purpose of finding the text's meaning, not for contradicting it.  More notably, though, this appears to be a debate within a methodology of (statutory) originalism.  Why look at the "legislative record" unless you are interested in what the enactors meant to accomplish?  As noted here previously, originalism isn't controversial when we are talking about statutes.

(Via How Appealing).


Adrian Vermeule Reviews Philip Hamburger's, "Is Administrative Law Unlawful?"
Michael Ramsey

Adrian Vermeule (Harvard Law School) hs posted No: Review of Philip Hamburger, 'Is Administrative Law Unlawful?' (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

Philip Hamburger has had a vision, a dark vision of lawless and unchecked power. He wants us to see that American administrative law is “unlawful” root-and-branch, indeed that it is tyrannous -- that we have recreated, in another guise, the world of executive “prerogative” that would have obtained if James II had prevailed, and the Glorious Revolution never occurred. The administrative state stands outside, and above, the law.

But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.

But wait ... I thought that the modern reality is (or ought to be) that the executive (and so at least the administrative state that's controlled by the executive) is "unbound" by law (though checked by politics).  I read that right here.

(Thanks to Seth Barrett Tillman for the pointer).


Jeffrey Pojanowski: Reading Statutes in the Common Law Tradition
Michael Ramsey

Jeffrey Pojanowski (Notre Dame Law School) has posted Reading Statutes in the Common Law Tradition (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract: 

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters should no longer understand themselves as bearers of the common law tradition.

Contemporary debate in statutory interpretation thus offers a choice between continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. This neat frame, however, misses important parts of the picture. This Article argues that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation.

More broadly, we need not understand the debate between formalists and dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. There are good reasons — reasons grounded in common law thought — for believing that statutory formalists have a stronger argument than their dynamic critics. Given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the common law tradition and its virtues to persist in our legal system.


Climate Change Negotations, Executive Agreements, and Treatymaking Power
Michael Ramsey

A number of posts have noted this report in the New York TimesObama Pursuing Climate Accord in Lieu of Treaty.

Josh Blackman: President Bypassing Treaty Clause For Climate Change Accord?

Jack Goldsmith (Lawfare): Behind the NYT Climate Accord Story

Julian Ku (Opinio Juris): Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

Greg Weiner (Liberty Law Blog): The Very Definition of Tyranny

Here's my quick assessment from an originalist perspective:

(1) The President can enter into any nonbinding agreement that he wants, on his own authority.    A nonbinding agreement (also called a "political commitment" -- see here for the definitive article by Duncan Hollis and Joshua Newcomer) is by definition not a treaty, because a treaty is binding (as a matter of international law).  As a result, a nonbinding agreement is not covered by the treatymaking clause, and instead falls within the President's executive diplomatic power.  (Note: this conclusion is different from Hollis and Newcomer's, but they do not adopt an originalist approach).  So, if as the NYT report hints, this is just a political commitment, or voluntary undertaking, the President is on firm constitutional ground. 

(2) The President has some limited independent power to enter into binding executive agreements (something Presidents have done since very near the founding).  That's because the founding generation apparently recognized some kinds of binding international agreements that nonetheless were not treaties, and thus not covered by the treatymaking clause.  (Note the different treatment of "Treat[ies]" and "Agreement[s] or Compact[s]" in Article I, Section 10).  It remains a bit unclear what these non-treaty agreements were, but the best evidence -- from Vattel and other eighteenth century international law writers -- suggests that they were minor, short term agreements.  It seems unlikely that anything contemplated by the current climate change negotiations fit this description, but it's possible.

(3) But, regardless, the President cannot unilaterally enter into any international agreement that has domestic effect in U.S. law.  Article VI lists the things that are the "supreme Law of the Land," and international agreements made by the President alone are not listed (only statutes, treaties, and the Constitution itself).  Relatedly, the President may be able to make political commitments and executive agreements through the grant of "executive Power"; but the core meaning of executive power is that it does not include its opposite, lawmaking (legislative) power.

(4) The Supreme Court has departed from point (3) to some extent, allowing executive agreements settling claims against foreign governments and foreign companies to have domestic effect in U.S. law.  Some people have read these decisions (U.S. v. Belmont, U.S. v. Pink, Dames & Moore v. Regan, and American Insurance Association v. Garamendi) to have broader application to executive agreements more generally.  But the Court in Medellin v. Texas described these prior cases as focused narrowly on settlements, and declined to extend them.  In my view, an originalist approach -- even if strongly inclined to respect precedent -- is not obliged to extend precedent to new situations.  As a result, an originalist approach would not accept executive agreements with domestic legal effect outside of settlement agreements (which are not part of the climate change negotiations).

As a result, my view is that the President has very broad power to make political commitments regarding climate change, but very narrow power to make binding commitments as a matter of international law and no power at all to alter U.S. domestic law.

I discuss the President's power in these areas, and outline an approach to originalism and precedent, in The Supremacy Clause, Original Meaning, and Modern Law (Ohio St. L.J. 2013). 


Lee Strang: Originalism's Promise, and Its Limits
Michael Ramsey

Lee Strang (University of Toledo College of Law) has posted Originalism's Promise, and Its Limits (Cleveland State Law Review, Forthcoming) on SSRN. Here is the abstract: 

In this Symposium Essay, I summarize originalism’s promise and limits. Part II succinctly explains originalism’s promise. Part III briefly describes originalism’s limits. Part IV then suggests that originalism’s limits contribute to its promise.


More from Ilya Somin on Elitism and Populism
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Justice Scalia on elitist and populist versions of originalism (responding to posts by Mike Rappaport and me).

Christina Mulligan et al.: Founding-Era Translations of the United States Constitution
Michael Ramsey

Christina Mulligan (Brooklyn Law School),  Michael Douma (James Madison University), Hans Lind (Yale University) and Brian Patrick Quinn (Independent) have posted Founding-Era Translations of the United States Constitution on SSRN.  Here is the abstract:

Before its ratification, the United States Constitution was translated into German and Dutch for the German- and Dutch-speaking populations of Pennsylvania and New York. Although copies of both the German- and Dutch-language translations have been preserved, they have largely escaped analysis — and public awareness — until now. This paper provides historical context for these translations and analyzes how they might aid our interpretation of the U.S. Constitution in the present day.

Supplemental to this article is an appendix containing the German and Dutch translations, as well as extensive commentary on the translations, available at http://ssrn.com/abstract=2486282.

Will Baude comments here: What do we learn from the Founding-era translations of the Constitution?


Gerard Magliocca on Halbig and Originalism (and Larry Solum's Response)
Michael Ramsey

At Concurring Opinions, Gerard Magliocca: Halbig and Originalism

At issue [in Halbig, the Obamacare subsidies litigation] is a major provision in the most visible statute passed by Congress in years (if not decades).  And we cannot agree what that provision was trying to accomplish just four years after it was enacted.  Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case?  Was there a drafting error, or was this intentional?  If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

Larry Solum responds (persuasively, from my perspective) at Legal Theory Blog.  A number of good points, including this one:

First, I don't know of any originalist who claims that we can know with certainty the original meaning of each and every provisions of the constitutional text.  Some provisions, e.g., the privileges or immunities clause of the 14th Amendment, are textually opaque.  This does not mean we can or should give up.  And there may be a preponderance of evidence on a disputed provision, but thoughtful originalists certainly know (better than most) that some originalist work is very difficult.

Professor Magliocca has further thoughts in response here.

Michael Dorf Responds to Eugene Volokh on the Perry Indictment
Michael Ramsey

At Dorf on Law, Michael Dorf: Separation of Powers Does Not (Necessarily) Immunize the Veto Power -- Wherein I Respond to Eugene Volokh's Reply to My Analysis of the Rick Perry Indictment.

Professor Volokh's post is noted here (the question being whether the legislature can ever criminlaize the use of a veto).

Professor Dorf poses this hypothetical, which seems like a good one:

Imagine a scenario ... [in which] U.S. intelligence learns of a foreign terrorist plot that would exploit a key vulnerability in domestic defenses; Congress acts swiftly to pass a bill appropriating funds for an emergency fix; but the President, secretly acting on behalf of the terrorists, allows the bill to sit on his desk for nine days, and then vetoes it, during which time the devastating terrorist attack occurs. Isn't this a pretty clear case of Presidential treason via the veto power?

But I say no.


Justice Scalia and United States v. Sprague
Michael Ramsey

Where does Justice Scalia stand on the question (recently debated here and elsewhere) whether originalism should seek the original legal meaning of the Constitution (that is, as understood by legal experts) or simply the original meaning as understood by non-experts?

Ilya Somin argues, on the basis of a passage in District of Columbia v. Heller, that Scalia favors a "populist" meaning.  But Mike Rappaport shows that in other cases, Justice Scalia relies on legal meaning.

Here is the key passage from Heller:

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Sprague itself is an interesting if largely forgotten case, unanimously picking textualism over unexpressed purpose and living constitutionalism.  The defendant, convicted of alcohol-trafficking during Prohibition, claimed that the Eighteenth Amendment was invalid because it had been approved by state legislatures instead of by a constitutional convention.  As the Court described:

The appellees ... say that it was the intent of its framers, and the Constitution must therefore be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions, and that the Eighteenth is of this character.  They reach this conclusion from the fact that the framers thought that ratification of the Constitution must be by the people in convention assembled, and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new national government.  From this and other considerations hereinafter noticed, they ask us to hold that Article V means something different from what it plainly says.

Amazingly, the district court agreed (albeit on somewhat different grounds) and held the Eighteenth Amendment invalid.  As the Supreme Court further described:

[The District Court] quashed the indictment not as a result of analysis of Article V and Amendment X, but by resorting to "political science," the "political thought" of the times, and a "scientific approach to the problem of government."  These, it thought, compelled it to declare the convention method requisite for ratification of an amendment such as the Eighteenth.

But the Court had no sympathy for either view.   In a crisp opinion by Owen Roberts, it followed the plain language:

The United States asserts that Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.  A mere reading demonstrates that this is true.  It provides two methods for proposing amendments.  Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the states, must call a convention to propose them.  Amendments proposed in either way become a part of the Constitution

"when ratified by the legislatures of three-fourths of the several states or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . ."

The choice, therefore, of the mode of ratification lies in the sole discretion of Congress ...

If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler that so to phrase Article V as to exclude implication or speculation.  The fact that an instrument drawn with such meticulous care and by men who so well understood now to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence  that no qualification was intended.

So, first, Sprague wasn't about legal meaning versus populist meaning; it was about textual meaning versus implications from non-textual sources.  The full quote from Sprague adds the point that "where the intention is clear [from the text], there is no room for construction and no excuse for interpolation or addition."  Second, Sprague's approach tracks Scalia's position in Heller, which was that the text should prevail over the purpose/intent arguments pressed by Justice Stevens in dissent.  Indeed, in Heller itself Scalia relied on legal meaning and interpretive conventions -- most notably that a preamble cannot alter the unambiguous meaning of the text's operative clause.

I think the key to both opinions is that the meaning is found in the text, not in hidden and unexpressed intents.  This is what both opinion authors surely had in mind.  To read either opinion as taking a position on the legal meaning/populist meaning is to go well beyond what was at stake in the cases.

Ironically, though, the plain language Justice Roberts wrote in Sprague and Justice Scalia repeated in Heller does appear to take such a position.  It's hard to read "normal and ordinary [meaning] as distinguished from technical meaning" as anything other than contrasting popular meaning and legal meaning. 

My view is that this re-affirms the importance of not taking dicta too seriously.  People (including Justices) repeat attractive phrases without thinking closely about their implications, so long as the implications are not concrete and immediate.  As a result, I don't think the Heller/Sprague quote necessarily reflects what Justice Scalia thinks of the specific issue of legal versus popular meaning.

As an aside, US v. Sprague is interesting for a different reason.  The Court of the 1930s is criticized (rightly) for not being originalist or textualist.  But Sprague shows its Justices could unite behind a  strong bit of textualist originalism -- refusing even to engage purposive or normative arguments -- when there was no political pull in the other direction.

RELATED:  John McGinnis comments on the legal meaning/popular meaning debate: The Constitution as Law Nested in Other Law.  Jon Roland also comments: Lay vs. legal versions of originalism, including this point:

The alternatives are misframed by use of the terms "elitist" and "populist", which are distinctly modern terms, not 18th century terms. The proper distinction is between (legally) "learned" and "unlearned", and that is the way even lay persons would have distinguished the two approaches. We find no significant evidence that any laypersons in the founding era insisted on "unlearned" use of what are legal terms because they are used in a law, which makes them legal terms by definition. The average man in the street in 1787, if asked for the meaning of a term he didn't know, and told it was being used in a law, would either ask someone he trusted who was learned in the law, or look it up in a copy of Blackstone. I find not a single instance of anyone in the era insisting on his own lay meaning over that of legally learned person. That just is not the way the people of that era thought.

I would add that the term "elitist" distorts the role of the legal meaning.  The legal meaning of the text was (and is) available to those who investigate it, whether they are lawyers or laypersons, ordinary or elite.  Appealing to it does not hide or unsettle the meaning.  The key distinction (what was really at issue in Sprague) is between legal meaning of the text -- which can be looked up -- and unexpressed intent or purpose, which can only be speculated about and invoked by elite decisionmakers when convenient.


Justice Scalia, Ordinary Meanings, and Legal Meanings
Mike Rappaport

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.  

It might seem that Justice Scalia supports the ordinary public side of this issue.  In DC v. Heller, Justice Scalia wrote that: 

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Thus, Scalia seems to side with the view that legal meanings are not followed.  But Scalia seems on weak ground here.  First, Sprague is a 20th century case, which is no evidence of the original meaning, and Gibbons does not really support him.  

Second, Scalia himself has regularly relied on the legal meanings of terms in the Constitution.  For example, in Crawford v. Washington, one of Scalia’s premier originalist opinions concerning the Confrontation Clause, he quotes with approval that 

the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. . . . As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine.  The Sixth Amendment therefore incorporates those limitations. 

The common law is the legal meaning.  One cannot assume that the general public understood that meaning and therefore Scalia here seems to be contradicting his methodological statement in Heller. 

In Giles v. California, another originalist Confrontation Clause opinion written by Scalia, Scalia does it again.  The issue is whether a witness who is rendered unavailable to testify by the defendant can have his testimony excluded based on the Confrontation Clause.  Scalia writes that 

the manner in which the [common law] rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded.

Once again, the content of the Confrontation Clause turns on technical questions under the common law – knowledge that the ordinary public would not have know.  I am confident that I could produce numerous other examples of Justice Scalia interpreting texts in accordance with technical legal meanings. 

Perhaps Justice Scalia is just being inconsistent.  But there is another possibility.  Perhaps when he says that the Constitution’s “words and phrases were used in their normal and ordinary as distinguished from technical meaning,” he does not mean to exclude legal meanings.  Perhaps he had “hypertechnical constructions” in mind. 

But Justice Scalia’s statement in Heller is curious and, given this other evidence, is only used problematically as evidence against legal meanings.  

(Cross posted at the Liberty Law Blog)

Mark Graber: Constructing Constitutional Politics
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment on SSRN. Here is the abstract: 

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.


Julio Esteban Altamirano: The Rise and Fall of Our Constitutional Legal Systems
Michael Ramsey

Julio Esteban Altamirano (Independent) has posted The Rise and Fall of Our Constitutional Legal Systems: Part I: And a Potential Solution to the Debate between Professor Goldsworthy and Kirby J of the High Court of Australia? on SSRN. Here is the abstract: 

The following paper will address the debate between Professor Jeffrey Goldsworthy and Kirby J of the High Court of Australia as it relates to the debate on which constitutional interpretive methodology is legitimate. Professor Goldsworthy arguing against radical non-originalism whilst Kirby J in defence of his progressivist approach to constitutional interpretation.

The paper defines with some discussion of the various approaches to constitutional interpretation including: originalism, moderate originalism, non-originalism, etc…

Professor Goldsworthy argues that radical non-originalism or progressivism as a methodology of constitutional interpretation results in the destruction of the rule of law, democracy and in the Australian context federalism by arguing that this form of constitutional interpretation effects illegitimate change, that is, by allowing the Constitution to be interpreted according to the changing needs of society, the definition of progressivism or radical non-originalism in constitutional interpretation, would enable the judiciary to avoid s 128 of the Australian Constitution (the referendum procedure), "…in a haphazard fashion…" resulting in the destruction of these vital constitutional principles – the rule of law, democracy and in the Australian context federalism.

The paper also seeks to define the rule of law from a Diceyan perspective and also what is meant by democracy to clarify on the debate and determine whether codification of judicial review would enhance such principles, also as enshrined in section 128 of the Australian Constitution.

The paper will propose the codification of judicial review or constitutional interpretation and codifies the interpretive methodology of McHugh J and submit that by codifying Kirby’s J radical non-originalism and submitting it to a constitutional referendum as approved would in fact enhance the rule of law, democracy and in the Australian context federalism, thus, providing a solution to the debate between Professor Goldsworthy and Kirby J of the High Court of Australia.

The hypotheses, can progressivism or radical non-originalism actually enhance the rule of law, democracy and federalism rather than resulting in their destruction contrary to what Professor Goldsworthy claims?

And would the reforms so mentioned be constitutional from a separation of powers perspective? In the answering of the latter question, the separation of the powers doctrine is defined and introduced with discussion on whether codification of judicial review would breach the separation of powers doctrine.


Eugene Volokh on the Perry Indictment
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: Why the Gov. Rick Perry prosecution unconstitutionally intrudes on the gubernatorial veto power (concluding "so long as the constitution grants the governor the power to veto laws, I don’t think the legislature can criminalize such vetoes, and thus free itself from the constraints that the state Constitution imposes on it.").

I know nothing about Texas law, but I agree this is the right analysis under federal law.  In my Constitutional Law course I routinely use the veto as an example of a power the President may excercise in the face of express congressional disapproval.  And if Congress cannot directly prohibit a veto, likewise it should not be able to attach penalties to the use of a veto.  As Professor Volokh says, the remedy for misuse of the veto (for personal gain, for example) is impeachment.

In this post, linked by Professor Volokh, Mike Dorf at Dorf on Law argues the opposite.  In particular:

The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: "But I have a license to operate a motor vehicle."

Well, no, it isn't like that at all, because the license to operate a motor vehicle isn't granted by the Constitution.   The President's (or Governor's) constitutional authority can only be limited by other constitutional provisions. 

(Professor Dorf get some pushback along these lines in the comments, and has some interesting responses).


John McGinnis on Justice Sutherland's Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Justice Sutherland's Uncertain Trumpet.  From the conclusion:

Sadly, the hero of my youth has become for my middle age another figure with feet of clay. His dissent in Blaisdell shows he had it in him to be a fine originalist. Why in these other important cases has he so failed this jurisprudential test? One explanation is the usual one. Sutherland was results oriented. He was an internationalist and Curtiss-Wright’s location of foreign affairs authority in the President facilitated internationalism at the time.  He had served as a Senator and Burroughs’ ratification of election regulation advanced confirmed power in the national government.

Another explanation may be that the rise of living constitutionalism in the Progressive Era affected conservative as well as liberal justices. Justices may be even more the prisoners of the jurisprudential theories of their time than of their political ideology. Perhaps that explanation should give us hope today, as originalism continues its comeback in the academy and in the courts.

Professor McGinnis generously cites this post in which I sharply criticize Sutherland's foreign affairs opinions.

Seth Barrett Tillman: Originalism & the Scope of the Constitution's Disqualification Clause
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Originalism & the Scope of the Constitution's Disqualification Clause (Quinnipiac Law Review, Forthcoming, Vol 33, Issue 1, circa Dec. 2014) on SSRN.  Here is the abstract:

This paper discusses the scope of the Constitution’s Disqualification Clause (Article I, Section 3, Clause 7) and the original public meaning of its “office . . . under the United States” language. In a recent paper in this journal, Benjamin Cassady argued that this clause bars disqualified former presidents, vice presidents, and officers of the United States from subsequent election or reelection to the presidency and vice presidency. Here, I take the contrary position: disqualified former presidents, vice presidents, and officers of the United States are not barred from any elected positions, state or federal. Rather, such disqualified former presidents, vice presidents, and officers of the United States are only barred from holding statutory or appointed federal offices. Finally, I address some issues relating to best methodological practices and the use of structural and other intuitionist modalities of interpretation when constitutional text is reasonably clear.

I primarily rely on evidence contemporaneous with the ratification of the U.S. Constitution, including: the drafting traditions of the Committee of Detail and the Committee of Style, statutory drafting traditions going back to the First Congress, official Executive Branch communications from Secretary Alexander Hamilton to the Senate, and President Washington’s gifts from foreign government officials. These are all Founding-era precedents involving the Constitution’s “Office . . . under the United States” language, i.e., the operative language in the Disqualification Clause.

I expect this paper will appear in conjunction with papers from Professor Brian C. Kalt, Professor Peter C. Hoffer, and Buckner F. Melton, Jr.

I am ever hopeful that my paper (and those of the prominent commentators mentioned above) will draw some response from both Mr Cassady and those commentators upon who his paper relied.

 Here is the paper by Benjamin Cassady mentioned in the abstract.


Timothy Sandefur on Elitist and Populist Versions of Originalism
Michael Ramsey

At Freespace, Timothy Sandefur comments (critically) on Ilya Somin's post on elitism and populism: An example of "elitist versus populist originalism" (with an interesting account of the opinions in Wayne County v. Hathcock, the Michigan eminent domain case).  On the broader question, he observes:

But surely the populace is on notice that terms in the Constitution are very important, are pored over by lawyers and judges, and are interpreted in light of other precedents. They are therefore ultimately responsible for choosing words that avoid results they don't like, such as incorporating the Berman interpretation of "public use" into their state Constitution. If they fail to take such precautions, then the law presumes that they've done what they've done intentionally. If they later decide that was a mistake, then either (a) the precedent on "public use" was wrongly decided, and should be overruled for that reason, or (b) the people can use the tools at their disposal to alter the constitutional wording. But I see no way that this problem breaks down along epistemological grounds, or that it can be understood along the axis of elites versus populism. This problem is better understood as an ordinary problem of constitutional interpretation--does "public use" include economic development or not?--than as some deeper problem of interpretation, or at least, a problem of interpretation that turns on the question of elites versus the populace.

And trying to analyze it in terms of the latter, and to take a position on the side of such a vaguely defined concept as "populism," seems to invite the eradication of all law, essentially. What I mean by that is, law consists almost entirely of a very refined and specialized use of language. That refinement and specialization is within the grasp of the ordinary person, but most ordinary people don't bother trying it: they (rationally) leave that task to legal experts. If the experts do something wrong, then the people can use their retained power to fix the problem. But to say that there is some fundamental problem with the lawyer's technical use of language does not help. What, after all, are we to replace it with? Daily polls of what people think the terms mean? Then who will take the polls? And who will interpret these polls? And then aren't the interpreters doing just what judges already do: figuring out what people think the words mean?

Ilya Somin responds here, with a further response from Tim Sandefur here.

Without endorsing everything Tim Sandefur says, I think he and I are aligned on the basic proposition that law is (in part, anyway) a specialized use of language, and so it really doesn't make sense to interpret legal language in a way that does not recognize it as a specialized use of language.

John McGinnis and Michael Rappaport make a similar point in Originalism and the Good Constitution (p. 134):

The reader of a legal document knows that documents are often subject to legal methods that may affect their meaning.  While this is true of legal documents, it is not less true of other specialized documents.  For example, the reader of a postoperative report would recognize that the interpretive conventions  of the medical profession govern its meaning.  Similarly, the reader of the US Constitution would recognize that its meaning depends on interpretive rules that were generally deemed applicable to written constitutions of this type.

Brian Tamanaha: The Mounting Evidence Against the ‘Formalist Age’
Michael Ramsey

Brian Tamanaha (Washington University in Saint Louis - School of Law) has posted The Mounting Evidence Against the ‘Formalist Age’ (Texas Law Review, Vol. 92, No. 1667, 2014) on SSRN. Here is the abstract: 

In Beyond the Formalist-Realist Divide (2010), I challenge the widely held view that American legal culture at the turn of the twentieth century was dominated by belief in legal formalism, which the legal realists came on the scene to shatter in the 1920s and 1930s. Our image of the “Formalist Age,” I argue, is not historically accurate — many prominent jurists in the period expressed consummately realistic views of law and judging. This essay is a concise presentation of the historical evidence that supports my position, citing a major work completed since the publication of my book that adds support to my argument. While presenting this evidence, I respond to assertions by Professors Al Brophy and Frederick Schauer that the many realistic statements I convey in the book are merely examples of early realism, which are insufficient to refute the conventional image of the formalist age.

What I show is that, not only is the evidence of realism explicit and plentiful — as realistic as anything legal realists would say three decades later — but also that realistic views of law and judging were uttered by the very jurists who have been identified as leading legal formalists. The story of the formalist age does not hold up.


Ilya Somin on Elitist and Populist Versions of Originalism
Michael Ramsey

Ilya Somin follows up on our prior exchange with this long and interesting post: Elitist and Populist Versions of Originalism.  From the introduction:

My recent exchange with Michael Ramsey about originalism and laws banning interracial marriage turned on the point that the original meaning of the Fourteenth Amendment more clearly bans such laws if it is interpreted in accordance with the understanding held by legal elites at the time of enactment than those held by the general public. This highlights a more general divergence between different versions of originalism: some originalists adopt elitist versions of the theory, which privilege the understanding of the Constitution held by a small group of framers or legal experts, while others are more populist. This divide is often ignored, even by constitutional theorists. But it is an important issue nonetheless. There are serious arguments for both elitist and populist versions of originalism. And the difference between the two approaches has important implications for constitutional interpretation.

I agree with much of what he says.  Here are a few further thoughts:

1. I think the most common version of modern public meaning originalism embraces something like the view Professor Somin rightly associates with Gary Lawson and Guy Seidman: a search for the meaning of the constitutional text to a hypothetical “reasonable person,” who is “conversant with legal traditions and conventions of the time.”  This is not really "elitist," because it reaches (one hopes) the conclusion that most people of the time would reach if they investigated the words' legal meanings.  It's true that the shared understandings of legal elites is good (though not necessarily conclusive) evidence of such a meaning; but evidence also comes from dictionary definitions, the structure of the text, the previous use of the words and phrases in legal and political discourse, and other background assumptions about legal and constitutional structure and tradition.

2.  A competing view might be that the "reasonable observer" should not be "conversant with legal traditions and conventions of the time" -- what Professor Somin would call the "populist" version.  One would look only to the plain meaning of the text, without considering its legal context.  Perhaps a useful example is the ex post facto clause, which to someone not knowledgeable of the legal context might have encompassed any retrospective law but upon investigation of the legal context appears to have meant only retrospective criminal laws.  So perhaps a better way to think about the divide is not between elitist and populist meanings, but between legal and non-legal meanings.

3.  Professor Somin says that "many originalists simply rely on the understanding of the general public at the time of ratification, without resorting to hypothetical constructs, or limiting the inquiry to those who might be reasonable."  I'm not sure this is true, and if true I'm unclear how these originalists hope to find such an understanding -- we simply don't have access to what the "general public at the time of ratification" thought about particular constitutional phrases.  (To continue the example, how would one determine what the general public in 1788-89 thought "ex post facto laws" meant?)  For the most part, we have to use a "reasonable observer" as a proxy for the public consensus.  To the extent we have information about public understandings, that's useful evidence, but in general I think we at best have evidence about particular people's understandings, not the public as a whole.

4.  Professor Somin suggests that the more populist versions of originalism may align better with originalism's theoretical justifications:

But there is also a strong case for the populist approach. Unlike a medical or engineering text, the Constitution derives its legitimacy (at least on many theories) from the approval of We the People. Indeed, many originalists defend originalism on the basis that the original meaning is the one that was enacted by democratic political processes, and had the consent of the public. The meaning the public approved was that understood by the general population, not the views of a small elite of experts.

Perhaps.  But the Constitution was not approved by referendum; it was approved by elected representatives -- the ratifying conventions, for the original constitution, and the state legislatures, for the amendments.  True, the members of these bodies were not all members of the legal elite -- but some of them were, and their debates were focused on the legal meaning of the text in a way that the public at large was not.  The conventions and state legislatures may have been influenced by the results their constituents wanted, but they were probably not so concerned about how their constituents understood particular phrases.  

Again consider the ex post facto clause: the ratifiers may have cared whether their constituents thought all retrospective laws should be banned, but in considering the text, their concern would have been the likely legal meaning of the phrase, not what their constituents thought the phrase meant.   So I would think that versions of originalism based on the understandings of the ratifiers (that is, of the conventions and the legislatures) would lean more to the legal rather than the populist meaning.


Adam Lamparello: NLRB v. Canning and the Case for Originalism
Michael Ramsey

Adam Lamparello (Indiana Tech - Law School) has posted With All Deliberate Speed: NLRB v. Canning and the Case for Originalism on SSRN. Here is the abstract:  

Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power between the federal and state government, democracy should be more localized, not centralized.

If states were divided into local, or mini-democracies, citizens might have a stronger voice in governance. If mini-democracies were comprised of members of difference races, ethnicities, income brackets, and sexual orientations instead of homogenous and entrenched majorities, laws might reflect the diverse perspectives of its citizens. If wealthy citizens and corporations could not buy access to lawmakers, inequality might lessen. Most importantly, if the Supreme Court rejected living constitutionalism and allowed local lawmakers to craft their own unenumerated rights jurisprudence, citizens might be allowed to meaningfully self-govern. Is any of this possible? Yes. The Constitution — and originalism — makes it possible. Right now, however, the concept of local democracies and participatory governance is little more than an aspiration. Democracy has become a privilege for the wealthy, a mere aspiration for the middle class, and a pipe dream for the poor. As democracy becomes more illusory and inequality widens, the ‘American dream’ is becoming just that: a dream.