Steven Begakis: Rediscovering Liberty of Contract
Michael Ramsey

Steven Begakis (independent) has posted Rediscovering Liberty of Contract: The Unnoticed Economic Right Contained in the Freedom of Speech (Loyola of Los Angeles Law Review, forthcoming) on SSRN. Here is the abstract:     

The Free Speech Clause of the First Amendment protects — and therefore, the U.S. Supreme Court should recognize and enforce — the liberty to form a contract, balanced against the right of the states, under their historic police powers, and the U.S. Congress, under its enumerated legislative powers, to prohibit and punish the formation of contracts that are contrary to a sufficiently important public policy.

This article demonstrates that the liberty to form a contract is secured by the text of the First Amendment, is implicit in the U.S. Supreme Court’s commercial speech jurisprudence, is justified by reference to originalist and traditionalist theory, and finds the most appropriate textual vehicle in the First Amendment. Moreover, recognizing a federal contract freedom would solve a historical and constitutional paradox — the fact that contract freedom, while fundamental to the Framers of the Constitution, currently receives no legal protection from the Court.

No court has ever recognized such a right in the First Amendment, and no scholar has ever proposed its recognition. Yet my proposal sounds strange, and is strange, because after West Coast Hotel — and especially after Lee Optical — it has become a veritable article of faith to modern theorists that Lochner was totally, irredeemably wrong. Because we moderns start with the baseline assumption that “liberty of contract” cannot be in the Constitution, our natural inclination is to think that the Free Speech Clause could not possibly protect a liberty of contract formation. But this inclination is in tension with certain historical and constitutional facts.

I'm skeptical.  This is the sort of claim for which I would like to see founding era confirmation -- that is, good evidence that people in the founding era thought of the First Amendment in this way.


Richard Primus: The Cost of Text
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted The Cost of Text (Cornell Law Review, forthcoming) on SSRN (commenting on Christopher Serkin & Nelson Tebbe’s article Is the Constitution Special?).  Here is the abstract:     

Prominent scholars have suggested that the major reason why constitutional decision making departs from the wording of enacted constitutional clauses more often than statutory decision making departs from the wording of enacted statutory clauses is that the U.S. Constitution has a large share of broadly worded clauses, such that constitutional text under-determines constitutional interpretation. I suspect that two other factors do more to account for the observed difference. One is the greater role of judicial precedent in constitutional interpretation, which results largely from the mere fact that the U.S. Code is orders of magnitude more extensive and more prolix than the U.S. Constitution and therefore gives rise to many more questions of first impression. The other is that constitutional cases are more apt than statutory cases to make judges feel that there is something big to lose from a decision that is unfortunate on its merits. The desire to avoid deeply unfortunate results is a major driver of a decision maker's willingness to buck preexisting authority, including the authority of enacted texts. Put another way, judges depart from texts when the cost of adhering to those texts is high. And the propensity of American legal practice to make the highest-stakes issues into issues of constitutional law means that the costs of unfortunate decisions are liable to skew high in constitutional contexts.


Vikram Amar on the Separation of Powers Restoration Act
Michael Ramsey

At Justia, Vikram Amar  Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2016”: A Sign of the Times.  From the introduction:

A few weeks ago, the U.S. House of Representatives, on a near party-line vote, passed a bill—“the Separation of Powers Restoration Act of 2016” [ed.: text here] —that would, among other things, undo a major Supreme Court ruling of three decades ago, Chevron U.S.A. v. Natural Resources Defense Council. A version of the bill is now before the Senate Judiciary Committee.

Congressional efforts by Republicans to overturn Chevron (and by Democrats to preserve it) are noteworthy not just because Chevron is a very significant Supreme Court case—perhaps the most important ruling that most folks in the country have never heard of—but also because this episode is yet another instance (like the Independent Counsel Act, presidential power to issue executive orders, and executive non-enforcement discretion) in which the political parties’ views about the proper constitutional roles of the three branches of the federal government seem to depend who occupies or is likely to occupy the White House for the foreseeable future.

But is it constitutional?  As described by Professor Amar, the Act "directs federal courts not to afford agencies interpretive deference, but instead tells courts to decide the meaning of all federal law de novo (that is, without any deference to other bodies’ interpretations), unless a federal statute specifically says otherwise with respect to implementation of that statute."  Can Congress tell courts what to consider in interpreting federal law?  Professor Amar's take: 

The question of what, if any, level of deference to give to agencies when they are interpreting federal statutes really is a question of statutory interpretation, which Congress should be able to control. This Supreme Court is often intent on not letting Congress tell it what to do or not do (and sometimes wrongly takes constitutional offense when Congress is simply trying to lay down a guide for interpreting its own statutes, as in Clinton v. New York), and some might suggest that Chevron saves courts time (by relieving them of what otherwise might be difficult choices between competing reasonable interpretations), but I don’t think any workload increase generated by the undoing of Chevron creates any arguable separation of powers violation. For these reasons, I would expect in this instance the Court to accept and follow Congress’s wishes.

I'm not sure it's that easy a question.  It seems more akin to a statute purporting to abolish precedent in statutory cases.  I think courts, perhaps rightly, might think that infringes on the judicial power. 


Drew Starling & Sean Nadel on "A Newer Originalism"
Michael Ramsey

At the U.S. Intellectual History Blog (I like that there is such a thing!), Drew Starling (Ph.D. candidate in history, University of Pennsylvania) and Sean Nadel (J.D. candidate, Columbia): A Newer Originalism: Book History and Constitutional Interpretation.  From the introduction:

The recent passing of Justice Antonin Scalia has given new relevance to debates about constitutional interpretation with some questioning whether originalism will simply fade away. Though the survival of originalism, absent its most renowned advocate, is still an open question, many of the criticisms of originalism will persist. Let us suppose that Lawrence Solum and Jack Balkin are right–that originalism will outlive its now-deceased standard-bearer–must it maintain the same shape that it had during his lifetime? Towards the end of Justice Scalia’s career, some legal scholars began advocating that originalists and new originalists abandon “law-office history” in favor of the methodological rigors of intellectual history. Above all, the methods advocated have been those of James Kloppenberg, Quentin Skinner, and David Hollinger, which privilege the linguistic context and semantic content of texts and, in this case in particular, the Constitution.

While the adoption of such methods would undoubtedly better ground legal arguments from history, they alone are insufficient, especially given originalism’s shift from a focus on discovering the original intentions of the framers of the Constitution to new originalism’s focus on the original public meaning of the text. Such a shift entails a change in belief as to where meaning inheres. Theoretically speaking, for originalists, the author endowed the text with fixed meaning at the time of writing. For new originalists, the meaning of a text is determined by the ways in which particular historical or imagined historical readers would have made sense of it.

With the adoption of such a method, the history of reading and reception, to which Saul Cornell has briefly alluded, becomes key, as do the history of the book’s methodologies more broadly speaking. Book historians, following the cue of bibliographers, have long grown accustomed to the notion that ideas never travel through reified space. They are not transmitted telepathically, but are mediated by a number of actors–authors, copyists, editors, translators, publishers, compositors, and printers, just to name a few–each with his or her own intentions in doing whatever he or she does. They are also mediated by the material realities of textual transmission–the physical form that the ideas are given by which they are transmitted to readers–and the interpretive apparatuses with which they are surrounded. Increasingly historians of the book are making intellectual historians aware of the fact that the meaning of a text, formed by a reader, is not only determined by the semantic content on the page. Following bibliographer D. F. McKenzie, we may say that “forms effect meaning,” too. While readers are not passive vessels into which information is poured, their reading is constrained in many ways. To study reading, or in this case, original public meaning, is, in part, necessarily to study the material forms and interpretive apparatuses that legal documents and documents relating to the Constitution have been given.

And after an extended discussion of the "book history" of The Federalist, 

In conclusion, editional differences make a difference. If one is to read The Federalist as an aid to understanding the original public meaning of the Constitution, one must, first, understand the original public meaning of The Federalist, itself.  While the methodologies of intellectual history certainly can go a long way in aiding our ability to reconstruct historical meanings of texts, they alone are insufficient. Many intellectual historians have begun to heed the calls of book historians, who have claimed that the historical meanings of texts cannot be understood by an examination of their semantic contents alone, rather we must also consider the material forms that texts were given, and the ways in which forms shaped readers’ horizons of expectation when approaching texts. To understand the original public meaning of The Federalist is not only to understand the words written by its authors, but it is, necessarily, to understand the words read by its readers, the meanings of which were informed by the different forms that the text took in its various editions. What, then, are we asking? Of course, we do not expect lawyers, judges, and justices to become historians. However, it is important that members of the legal profession pay attention to the ways in which forms, both of original historical documents and of modern editions, affect the ways in which texts are read. Engaging with the histories of publishing, reading, and reception may deepen our understanding of the original meaning of texts, what readers could possibly have known about them and their authors, and how such information would have shaped their reading. Nevertheless, this is not a one-way street. Historians can also do more to make their work relevant and useful, both theoretically and thematically.  If legal professionals and historians take up the challenge, and if originalism does, indeed, survive its most renowned advocate and practitioner, then, perhaps, it can be reborn on a more epistemologically sound footing.

A great post.  Via Jeremy Kessler at Balkinization.



Alex Loomis: The Power to Define Offences Against the Law of Nations
Michael Ramsey

Alex Loomis (Harvard Law School JD '17) has posted The Power to Define Offences Against the Law of Nations on SSRN. Here is the abstract:   

Congress has the power to “define and punish...Offences against the Law of Nations.” Everyone agrees this clause empowers Congress to punish universally recognized offences under international law, piracy being the clearest example. But Congress has the power to “define” offences against the law of nations too. Surely punishing an offence presupposes defining it. So what does “define” add?

This paper provides an answer. The Constitution’s text and structure, early constitutional history, and modern foreign relations doctrine all suggest Congress has the power to define offences against the law of nations that preexisting international law does not proscribe. Congress may pass laws prohibiting private conduct that violates international law, as well as any private conduct that, while itself not illegal under international law, the United States has a duty to punish. Any ambiguity about the United States’ obligation to punish the conduct in question does not restrict Congress’s power to define and punish. Congress likely even has the power to create new offences against the law of nations in order to foster changes in customary international law.

A really outstanding student note.  It all seems persuasive, except I do not agree with the proposition in the last sentence of the abstract (and have taken the contrary position in an amicus brief).


Laurence Tribe: A Multidimensional Reappraisal of Separation of Powers Doctrine
Michael Ramsey

In the Yale Law Journal Forum, Laurence H. Tribe: Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine (126 Yale L.J. F. 86 (2016)).  From the introduction:

The time is ripe for a reappraisal of the separation of powers as the organizing principle of our federal government. Most of the relevant doctrinal architecture has been constructed over the past seven decades. Perhaps because of Justice Robert H. Jackson’s incomparable brilliance as a writer, the two-dimensional landscape famously described in his concurring opinion condemning President Truman’s seizure of the U.S. steel industry has dominated discourse about the interaction of the three federal branches. Charting presidential conduct on the vertical axis of a map whose horizontal axis measures Congress’s position ranging from approval to disapproval gave Jackson an elegantly simple and memorable way to classify presidential actions from the most strongly defensible to the most constitutionally vulnerable.

The resulting classification scheme became a convenient triptych describing the geography of a “flatland” constitutional universe—one constructed in a two-dimensional space, carved into three simple zones. Missing from that triptych has been an analytical guide for navigating what is in truth the multidimensional universe of relevant constitutional values and relationships. This Essay sets out a proposed approach to developing such a guide.

And in conclusion:

I do not doubt that Justice Jackson was right as a descriptive matter when he noted the fluid and highly contextual ebb and flow of executive power—but I do believe he erred as a normative matter when he focused his gaze downward to search for legal answers solely in this shifting tide. If instead he had followed the impulse that guided him in West Virginia Board of Education v. Barnette—if he had looked up at the firmament that he had invoked in that decision less than a decade before Youngstown—he could have seen how “the fixed star[s] in our constitutional constellation” might help mark the lawful shape of presidential power.

(Via Michael Dorf at Dorf on Law, who has extensive insightful comments).


Ethan Blevins: A Fixed Meaning of 'Religion' in the First Amendment
Michael Ramsey

Ethan Blevins (Pacific Legal Foundation) has posted A Fixed Meaning of 'Religion' in the First Amendment on SSRN.  Here is the abstract:   

A Fixed Meaning of 'Religion' in the First Amendment is one of very few attempts in First Amendment literature to advocate for a fixed meaning of "religion" in the First Amendment based on original intent and understanding. Despite its seeming importance as a threshold issue, the Supreme Court has never clearly defined this key word. This article’s novel definition focuses on the worship of supernatural agents. The definition aims to remain true to the original understanding and intent behind the term while creating a workable test for a pluralistic society. The article analyzes and criticizes the major scholarship proposing a definition and then offers a novel approach. While the debate may seem initially like an academic one, defining religion is key to determining the nature and scope of religious freedom.


Renée Lerner: The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury
Michael Ramsey

Renée Lettow Lerner (George Washington University Law School) has posted The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury (Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015)) on SSRN. Here is the abstract:

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.

Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.



North Carolina Law Review Symposium on Magna Carta
Michael Ramsey

The North Carolina Law Review has published papers from this symposium: Celebrating 800 Years of Magna Carta.  They are:

Magna Carta: The First Eight Hundred Years, by Alfred Brophy, William P. Marhsal & John V. Orth (94 N.C. L. Rev. 1409 (2016))

Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter, by Mary Sarah Bilder (94 N.C. L. Rev. 1545 (2016))

Magna Carta's American Adventure, by A. E. Dick Howard (94 N.C. L. Rev. 1413 (2016))

The Magna Carta Betrayed?, by Jed S. Rakoff (94 N.C. L. Rev. 1423 (2016))

Magna Carta and the Forest Charter: Two Stories of Property What Will You Be Doing in 2017?, by Paul Babie (94 N.C. L. Rev. 1431 (2016))

The Myth of Magna Carta Revisited, by R. H. Helmholz (94 N.C. L. Rev. 1475 (2016))

Blackstones's Magna Carta, by Wilfred Priest (94 N.C. L. Rev. 1495 (2016))

“The Whole of the Constitutional History of England is a Commentary on this Charter", by Charles Donohue Jr. (94 N.C. L. Rev. 1521 (2016))

Magna Carta for the World? The Merchants' Chapter and Foreign Capital in the Early American Republic, by Daniel Hulsebosch (94 N.C. L. Rev. 1599 (2016))

The Past Is Never Dead: Magna Carta in North Carolina, by John V. Orth (94 N.C. L. Rev. 1635 (2016))

The Conservative Magna Carta, by Mary Ziegler (94 N.C. L. Rev. 1653 (2016))

Magna Carta for the Masses: An Analysis of Eighteenth-Century Americans' Growing Familiarity with the Great Charter in Newspapers, by Sally E. Hadden (94 N.C. L. Rev. 1681 (2016))


Mark Frassetto: The Law and Politics of Firearms Regulation in Reconstruction Texas
Michael Ramsey

Mark Anthony Frassetto (Counsel, Everytown for Gun Safety) has posted The Law and Politics of Firearms Regulation in Reconstruction Texas (4 Texas A&M L. Rev.  __ (2016)) on SSRN. Here is the abstract:     

In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts.

More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.


Aaron-Andrew Bruhl: The Jurisdiction Canon
Michael Ramsey

Aaron-Andrew Bruhl (William & Mary Law School) has posted The Jurisdiction Canon (Vanderbilt Law Review, forthcoming) on SSRN. Here is the abstract:

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject‐matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject‐matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.

This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes, first, a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of influences including docket composition, interest‐group activity, and the (potentially shifting) attitude of the Supreme Court toward the civil justice system. This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.

From an originalist perspective, I think it is very hard to justify many of these types of canons, which look like little more than federal courts disfavoring things the federal courts don't like.


Lawrence Solan: Can Corpus Linguistics Help Make Originalism Scientific?
Michael Ramsey

In the Yale Law Review's online forum, Lawrence Solan: Can Corpus Linguistics Help Make Originalism Scientific?  (126 Yale L.J. F. 57 (2016)). Here is the introduction (footnotes omitted):

James Phillips, Daniel Ortner, and Thomas Lee begin their engaging essay, Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical, by pronouncing originalism “the predominant interpretive methodology for constitutional meaning in American history.” They then describe and attempt to justify a new tool to improve originalist methodology: a large corpus of Founding-era documents, representative of a host of genres available to educated people of that period. As their title suggests, the brand of originalism they set out to improve is the version at times dubbed “the new originalism”—an iteration that seeks to construe the Constitution in accordance with the understanding of the state constitutional convention members who read its words and heard its supporters at the time.

This brief Essay expresses support for the project, but also focuses on its limitations in advancing originalist argumentation. While better empirical tools for determining original public meaning are valuable, they only get us so far, as a) there may be multiple original public meanings or no clear meaning that emerges from the corpora; b) we are lacking a coherent theory to justify when one original public meaning rather than another should be relied upon; and c) for abstract concepts such as “abridging the freedom of speech,” which we are likely to encounter in the constitutional context, it is unclear whether the original meaning ought to be interpreted thickly to include specific examples of the concept or thinly to define only the concept itself.

(Related post here).



Stephen Griffin on Justice Scalia
Michael Ramsey

Stephen Griffin (Tulane School of Law) has posted Justice Scalia: Affirmative or Negative? (101 Minnesota Law Review Headnotes 52 (2016)) on SSRN. Here is the abstract:

This short essay, part of an online symposium on Justice Scalia, assesses Scalia’s contributions to constitutional theory, especially the theory of constitutional interpretation. Drawing on some recent biographies, I argue that Scalia repeatedly deployed a rhetorical strategy known as preemptive argument. A preemptive argument attempts to occupy the argumentative terrain so that counter-arguments cannot get off the ground. Scalia made two preemptive moves that were highly influential – that original public meaning was sharply different from original intent and that the debate between contending positions in constitutional interpretation is best characterized as originalism versus nonoriginalism. I contend that both moves had a deleterious impact on the progress of American constitutional theory. I conclude with some thoughts on why Scalia often seemed so negative on the progress of American constitutionalism in general.


Richard Ekins: Objects of Interpretation
Michael Ramsey

Richard Ekins (University of Oxford - Faculty of Law) has posted Objects of Interpretation (Constitutional Commentary, forthcoming) on SSRN. Here is the abstract:

This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.

(No paper available for download, possibly due to issues at SSRN, but too good to pass up).


Eric Segall (and Ed Whelan) on Justice Ginsburg
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Ginsburg and the Emperor’s New Clothes.  From the core of the post:

Should Justice Ginsburg have spoken out is of course the real question. One of the leading experts on legal ethics in the country, Professor Steve Gillers, said no because the "rule of law" requires "the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated."  Professor Sanders agrees, writing that we need the public to trust the Court because the Justices are our best bulwark against tyranny, and without them we wouldn't have same-sex marriage, the right to choose, and other outcomes that progressives favor. In his words, "progressives do not want to live in a world where we have completely erased the line between politicians and judges." I assume Professor Sanders would agree that most conservatives don't want to live in that world as well. ...

Notice that neither Professor Gillers nor Professor Sanders actually said that Court decisions are free of political and even sometimes partisan influence, just that the public needs to believe that is the case. ...

In Bush v. Gore, the Justices handed George W. Bush the 2000 election based on what most people think were quite sketchy constitutional arguments. We all know (or at least are petty sure) that at the time all five Justices in the majority (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) all thought the country was better off with a Bush rather than a Gore Presidency while the four dissenters (Ginsburg, Stevens, Breyer, and Souter) would have preferred the opposite outcome. What is to be gained by the Justices pretending that law rather than all things considered values (including law) drove the decision? 


So, back to Justice Ginsburg. We know that she would rather have Hilary Clinton as President rather than Donald Trump, and we know that in virtually any case that came before her where that choice was presented she would vote for Hilary. What are we teaching our children and the "public" referred to by Professor Gillers when we demand that she not admit what is really true? Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions. As Professor Mark Tushnet put it so well, why do "people who acknowledge that Justices have political views that do influence their decision-making think there's something important about maintaining the facade that they don't?"

There is great separation-of-powers and federalism value in having a third branch of government act as a veto council over the other two branches and the states. ...

 And from a different perspective, a somewhat similar conclusion from Ed Whelan at NRO:

[T]he “living Constitution” approach that Ginsburg subscribes to—under which the Constitution will be said to mean whatever she wants it to mean—is nothing more than the thinly disguised imposition of her strongly held policy preferences. In short, for living-constitutionalists, the reality of impartiality is an illusion (even if it’s an illusion that some of them subjectively believe in—or at least find it useful to pretend to believe in).
Having embraced a constitutional approach that makes a sham of actual impartiality, why—other than to deceive us yahoos—should Ginsburg try to maintain the false appearance of impartiality? Let’s give her credit instead for exposing, once again, how nakedly political she is.


Daniel Hulsebosch: English Liberties Outside England
Michael Ramsey

Daniel J. Hulsebosch (NYU Law School) has posted English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire (Oxford History of English Law and Literature 1500-1700, ed. Lorna Hutson, Chapter 38) (Oxford University Press, Forthcoming) on SSRN.  Here is the abstract:     


We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant.

Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems.

Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human pr


Curtis Bradley: Doing Gloss
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) has posted Doing Gloss on SSRN. Here is the abstract:

In discerning the Constitution’s separation of powers among the three branches of the federal government, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice. There is substantial uncertainty, however, about the proper methodology for determining such “historical gloss.” In order to make progress on the methodological questions, the Essay contends that we first need to consider the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of non-judicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As the Essay explains, these differing justifications have differing methodological implications. This Essay considers in particular the differing implications that these justifications have for what constitutes relevant “practice” for purposes of determining gloss, and for the extent to which there must be a showing of institutional “acquiescence” in the practice. As will be shown, disaggregating the justifications for gloss helps explain variations in the types of evidence that courts have credited in discerning gloss. Perhaps most notably, it helps explain why courts are often less demanding in requiring evidence of institutional acquiescence than commonly-recited standards for gloss would tend to suggest.


Other Advisory Acts That Are Constitutional: The Legislative Veto and the White House Staff
Mike Rappaport

In a previous post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding.  That it was technically nonbinding would not prevent the relevant decisionmaker -- say the President -- from choosing to follow the referendum's result.

This aspect of the Constitution is not unique.  There are various other areas where technically nonbinding acts are allowed (and often followed), even though they would be unconstitutional if they were binding.  One involves the legislative veto.  A binding legislative veto, where a house of Congress by itself takes action, is unconstitutional (as a violation of bicameralism and presentment).

But each house of Congress expresses its views in various ways that are generally followed by the executive.  There are many legislative vetoes written into laws that might be interpreted to be binding.  Everyone understands that they cannot be enforced, but they are included anyway and are often (and perhaps consistently) followed "voluntarily."  One might argue that the provisions are unconstitutional if they are interpreted to require compliance with a house's decision.  But nothing would be changed if the state provisions stated that compliance with the decision was voluntary.  And then they would be clearly be constitutional.  An even clearer example involves earmarks, where the congressional committee lists spending decisions in committee reports, which are clearly nonbinding, but have been regularly followed in the past.

Another example of substantial nonbinding authority involves the White House Staff.  The White House Chief of Staff is one of the most powerful people in the government, yet constitutional law does not treat him as an "officer of the United States."  If here were such an officer,, then the Appointments Clause would normally require that an important officer like him be appointed with the advice and consent of the Senate.

But constitutional law treats the Chief of Stafff as a nonofficer on the ground that he only exercises advisory authority.  If the Chief of Staff calls the EPA Administrator and tells her to do something, the claim is either that the Administrator is not obligated to follow the instruction or, if she is, that is because the Chief of Staff is merely conveying the President's orders.

Jeffrey Toobin and Ralph Rossum on Justice Thomas' Abortion Dissent
Michael Ramsey

At The New Yorker, Jeffrey Toobin: Clarence Thomas Has His Own Constitution.

The truth is that Thomas’s view of the Constitution is highly idiosyncratic. Indeed, one reason he wrote so many opinions (often solo dissents and concurrences) was that no other Justice, including Scalia, shared his views. Thomas is a great deal more conservative than his colleagues, and arguably the most conservative Justice to serve on the Supreme Court since the nineteen-thirties.

While some Justices are famous for seeking consensus with their colleagues, Thomas seems to go out of his way to find reasons to disagree—often in the most provocative ways. ...

Far more than even Scalia did, Thomas endorses originalism—the belief that the Constitution should be interpreted as its words were understood at the time it was written. By a vote of 5–3, the Court struck down Texas’s restrictions on abortion clinics in Whole Woman’s Health v. Hellerstedt, but neither of the other dissenters (Roberts and Samuel Alito) joined Thomas’s opinion. What’s most extraordinary about Thomas’s dissenting opinion in the abortion case is not that he objects to the ruling; as he noted, “I remain fundamentally opposed to the Court’s abortion jurisprudence.” But Thomas also took the opportunity to reject more than a century of the Court’s constitutional jurisprudence.

He doesn’t respect the Court’s precedents. He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. 

 For a different take, at Liberty Law Blog, Ralph Rossum: The Court’s Last Shreds of Legitimacy.  From the introduction:

His second significant opinion was delivered last week; however; his dissent in Whole Woman’s Health v. Hellerstedt was not about whether there is a constitutional right to abortion but rather about how “the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion”—is destroying the principle of the rule of law.

Thomas’s dissent is a lament to the failed “promise of a judiciary bound by the rule of law.” It concludes with these words: “The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where law, properly speaking, has any further application.’ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.”

Just as Thomas concludes his opinion by quoting the late Justice Antonin Scalia, so he begins it. Justice Breyer’s majority opinion, he writes, “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Stenberg v. Carhart (2000) (Scalia, J., dissenting).” In fact, Thomas quotes Scalia seven times in his dissent, and there is a reason.  In United States v. Virginia (1996), Scalia attacked the Court’s use of intermediate scrutiny, declaring that it applies it “when it seems like a good idea to load the dice.” Thomas’s entire dissent builds on Scalia’s critique and the devastating consequences for the rule of law that flow from it. “[T]he label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it ‘rational basis,’ intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.”

Thomas pointed out that ‘[t]hough the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960s did the Court begin in earnest to speak of ‘strict scrutiny’ versus reviewing legislation for mere rationality, and to develop the contours of these tests.”  Over time, “the tiers of scrutiny proliferated into ever more gradations,” with Craig v. Boren (1976) adding intermediate scrutiny for sex-based classifications and with Casey adding the undue-burden test, “ yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review.” Yet, the use of these “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means (United States v. Virginia, Scalia, J., dissenting)” is, for Thomas, simply “illegitimate.” “The Constitution does not prescribe tiers of scrutiny. The three basic tiers—‘rational basis,’ intermediate, and strict scrutiny—‘are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’”

RELATED:  In the Weekly Standard, Adam White: Justice Thomas, Undaunted.


The Improper Comments of Ruth Bader Ginsburg
Mike Rappaport

Supreme Court Justice Ruth Bader Ginsburg is now 83 years old.  One often hears it said that she ought to step down.  By now, Ginsburg has a set response to this criticism: She says that she is not the only old justice.  She notes that Kennedy is about to turn 80 and Breyer is going to turn 78.

I have no idea whether Ginsburg is too old to perform her duties.  What I do know is that Ginsburg appears increasingly prone to making politically inappropriate statements.

In an interview last week, Ginsburg made several improper statements. First, Ginsburg gave what the New York Times describe as “an unequivocal endorsement of Judge Garland,” who President Obama had nominated for the Court but the Senate has refused to consider.  It is normally considered improper for a Supreme Court justice to comment on a politically charged issue of this type.

In addition, Ginsburg also asserted that the Senate had an obligation to assess Judge Garland’s qualifications, stating “that’s their job” and “there’s nothing in the Constitution that says the president stops being president in his last year.”  Not only do I regard this comment as mistaken, it is once again inappropriate.  The President remains the President, of course.  The Senate has simply decided not to act on this nominee.  Ginsburg’s argument reads like Democratic Party talking points.

Second, Ginsburg made critical comments about Republican presidential nominee Donald Trump.  She stated “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”  She also suggested that if Trump were elected, it would be time to move to New Zealand. 

How can this not be criticized?  If a conservative justice said the same thing about Hillary Clinton, the New York Times would go crazy.  Or imagine that a conservative justice made a criticism about Clinton’s e mails.  If there is a lawsuit involving the Trump Campaign or even the Trump Administration, shouldn’t Ginsburg be recused?  Could one really argue that she is not biased or does not at least give the appearance of being biased?

Other statements made by Justice Ginsburg also seem problematic.  They don’t really reveal anything we did not know, but they still seem to violate norms for the justices.  She asserted that the one case she most wanted overturned was Citizens United.  She also noted the possibility of revisiting Heller v. United States.  She claimed that Friedrichs v. California Teachers Associated, which deadlocked at 4-4 due to Justice Scalia’s death, was a much better result than the Court would have reached with Justice Scalia on the Court.

In the end, Ginsburg sounds like a Democratic party activist.  Critics of her jurisprudence might say that is the way her judicial opinions and votes read as well.  But there is a traditional norm of not making extra-judicial statements of the sort she increasingly makes.  The Justice ought to keep these type of opinions to herself.

John McGinnis on Judge Posner's Apology
Michael Ramsey

At Liberty Law Blog, John McGinnis: Posner’s Inadequate Apology for Dismissing Study of the Constitution.  A key pout:

Judge Posner [in his apology, see here] expresses sorrow if his previous statement is understood as saying that the Constitution is irrelevant or to be forgotten. But he goes on to say:

What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise. This vagueness justifies judges in making a “living Constitution."

But one can only credibly contend that provisions are vague if one had studied the meaning of the Constitution carefully.  And as Mike Rappaport and I have argued, on careful examination many provisions that may seem vague or abstract are not so read in their original legal context. To be sure, some of that meaning is lost on a modern ordinary reader, but this is precisely why the Constitution repays years of attention.


Evading the Treaty Power?
Michael Ramsey

I have posted my essay Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements (11 Florida Int'l U. L. Rev. 371 (2016)) on SSRN.  Here is the abstract:     

The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist.

In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).

The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.

Put a little more strongly, I think the Iran agreement and the Paris agreement are both of dubious constitutionality on these grounds.  The issue is difficult, however, because the pure view that all international agreements must be made through the treaty making power is, in my assessment, wrong.  Both executive agreements and nonbinding agreements are part of the President's power under the Constitution's original understanding, as I explain in the essay.  Thus the challenge is identifying when they go too far.

For a different perspective on the Paris agreement, see this important new article by Daniel Bodansky and Peter Spiro, noted here.  (They think of the agreement as implicitly approved by Congress, rather than (as I do) a sole executive agreement whose main commitments are nonbinding.)  My view is, I think, consistent with the way the State Department thought about the agreement (the Department worked hard to make the material commitments nonbinding), though perhaps not the way the Department should have thought about the agreement.


Larry Solum's Legal Theory Lexicon: "Textualism"
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon discusses Textualism. From the introduction:

Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who were competent speakers of the language and who knew that they were reading a statute (or court decision, etc.).

But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. 

And further: 

Another way to understand plain meaning is to contrast this idea with others.  Here are some:

  • Literal Meaning.  The literal meaning of a text is provided by its semantic content alone, with no consideration of context.  Literal meaning is sparser than plain meaning, because the conventional semantic meaning of many words and phrases is very sparse, with contextual disambiguation or precisification enriching the plain meaning.
  • Purposive Meaning.  Sometimes we use the word "meaning" to represent the purpose for which a text was written.  Purposive interpretation is a rival of textualism.
  • Reasonable Meaning:  The plain meaning of a text may not be the best meaning (from the perspective of some policy goal or normative theory).  The plain meaning of a text may not be the "reasonable"or "desirable" meaning.



Fred Smith Jr.: Undemocratic Restraint
Michael Ramsey

Fred O. Smith Jr. (University of California, Berkeley Law School) has posted Undemocratic Restraint on SSRN. Here is the abstract:

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.

The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?

This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.

In my view, every one of these "prudential" restraints, to they extent it is truly just prudential,  is unconstitutional.  (Regular readers will not be surprised by this conclusion). Courts have a constitutional duty to apply the law, including the law of the Constitution, to cases properly before them (that is, those with their "judicial Power").  Courts do not have discretion to not apply the law because they think it might be inconvenient (or imprudent).  Thus the "re-categorization" identified in the paper is in fact a constitutional requirement.


Daniel Bodansky & Peter Spiro: Executive Agreements Plus
Michael Ramsey

Daniel Bodansky (Arizona State University Sandra Day O'Connor College of Law) and Peter J. Spiro (Temple University - James E. Beasley School of Law) have posted Executive Agreements Plus (Vanderbilt Journal of Transnational Law, forthcoming) on SSRN.  Here is the abstract:

Can President Obama join the Paris climate change agreement without seeking the approval of the Senate or Congress? According to the conventional, tripartite paradigm for analyzing the president’s treaty-making power, this question is conceptualized as an issue of the president’s independent constitutional power. If the Paris Agreement is not approved by the Senate as an Article II treaty or by Congress as a congressional-executive agreement, then it must be a sole executive agreement.

This article challenges the conventional, tripartite paradigm as both conceptually inadequate and historically inaccurate, and proposes a fourth category of international agreements, which it christens “executive agreements plus” (EA-plus). EA-plus are neither congressional-executive agreements nor sole executive agreements; they fall somewhere in between. They are supported, but not specifically authorized, by congressional action. The article argues that EA-plus have a long, heretofore undiscovered pedigree. It explores the Obama Administration deployment of the concept, applies it to the Paris Agreement, and argues that, if President Obama accepts the Paris Agreement, it will be as an EA-plus rather than as a sole executive agreement.

(Via Larry Solum at Legal Theory Blog).

This may be right to some extent as a descriptive matter; it's basically the Supreme Court's idea in Dames & Moore v. Regan.  But it is very subversive of the constitutional order on international agreements -- much more so than either sole executive agreements (which I've argued are consistent with the Constitution's original meaning, if kept within proper bounds) or congressional-executive agreements (which maintain a strong democratic check on independent executive power even if they are not consistent with the Constitution's original meaning).  The core problem with "EA-plus" is that the President can claim all sorts of ambiguous congressional action or inaction as "supporting" a presidential agreement, and thus claim to be operating under a democratic check that in fact does not exist.  (Among other things, if the President were really operating with congressional support, the President should be able to get express congressional endorsement).

I have a forthcoming article that discusses the Paris Agreement, although not specifically in these terms; I haven't posted it yet but will shortly.  For some preliminary thoughts, see here and here.


Josh Blackman on Judge Posner and the Constitution
Michael Ramsey

Josh Blackman: Judge Posner Apologizes For Statements He Made Many Times Before About Constitution.  He notes:

Last week, Judge Posner caused quite an uproar with his Slate column suggesting that studying the Constitution was a pointless exercise. ...

In a follow-up column, Posner offers this apology:

Some of my contributions this year have drawn an unusual number of criticisms, focused on language I used that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law—that it should be forgotten; that constitutional law is and must and maybe should be entirely a judicial creation, like fields of common law.

That was not my intention, and I apologize if carelessness resulted in my misleading readers.

I would be inclined to chalk this up to a misunderstanding, but Posner–who is one of the most effective legal writers on planet earth–said in his Slate column what he had previously said many times before. ...

And in conclusion:

Ironically, as much as Posner loved to ridicule Scalia, here Nino is having the last laugh. Posner came clean with his absolute disregard for the text and history of the Constitution, and now after a complete repudiation, he is forced to backtrack–unconvincingly. As Will Baude would say, “Originalism is our law.”


Utah v. Strieff and State Constitutional Originalism
Jeremy Christiansen

[Editor's note: for this guest post we again welcome Jeremy Christiansen (see here for a previous post).  Mr. Christiansen was a law clerk at the Utah Supreme Court at the time it decided Strieff.]

The internet has been all ablaze following Justice Sonia Sotomayor’s scathing dissent in Utah v. Strieff.  Numerous commentators have criticized the majority’s decision (e.g., here, here, here, and here), which held that evidence found incident to an arrest after discovering an outstanding arrest warrant was admissible under the attenuation exception to the exclusionary rule, despite the fact that the warrant check was run only after a unconstitutional stop by the officer.

Evan Bernick over on the Federalist Society Blog (here), joins in and uses Strieff, rightly, to highlight a remedial problem that has been growing for decades.  As Bernick notes, “[t]he rise of qualified immunity and the decline of the exclusionary rule has given us a status quo of rights without remedies that undermines the supremacy of the Constitution and is extraordinarily menacing to the countless Americans who find themselves at the mercy of arbitrary police power.”  Amen.  But I have to, partially, part ways with Bernick over the conclusion that there is “[n]o easy solution to [the] problem.”

I am not sure my solution is necessarily “easy,” whatever that means.  But I do think there may be a solution, and it lies in state constitutional law.  In a forthcoming article in the Hawaii Law Review, I argue that the majority of state constitutions share an original meaning as to their search and seizure provisions (every state has such a provision).  Unsurprisingly, these constitutions generally did not originally contemplate an exclusionary remedy—they contemplated a constitutional tort remedy (As Akhil Amar has been arguing for years with respect to the Fourth Amendment).  And perhaps even more importantly, that tort remedy seems to have been not only self-executing (eliminating sovereign immunity problems) but also unfettered by any sort of modern conception like qualified immunity.

          First, textually and structurally, these state constitutional provisions clearly applied more broadly than an exclusionary-rule paradigm permits.  The text protects “the people,” or “the citizens,” or “[e]very person,” or “[e]very subject,” and is in no way limited to criminal defendants.  That stands in structural contradistinction to the rights of “the accused,” found in every state constitution.  There is nothing to suggest that search and seizure rights would be as limited as they have functionally become.

          Second, state case law from the relevant time period overwhelmingly backs this point up, as has been noted by other scholars (e.g., here).  When state supreme courts were facing the novel idea of an exclusionary remedy for search and seizure violations, they almost uniformly rejected it, noting that the remedy lies in tort.  So, for instance, as early as 1875, in the then-Kingdom of Hawaii, a defendant attempted to have her conviction tossed out because the search warrant used to find the evidence “was issued on an insufficient affidavit.”   Rex v. Eser, 3 Haw. 607, 607 (1875).  The Supreme Court of the Kingdom of Hawaii affirmed the conviction, holding that “[t]he questions raised as to the proper method of taking out and executing a warrant to search for [illegal contraband], can be decided in an action for damages by the prisoner against the officer serving it, but not in the case before the Court.”  Id. at 608.  Courts only grew more explicit about tort remedies as time went on.  See, e.g., People v. Mayen, 205 P. 435 (Cal. 1922).

          Third, the case law from the eighteenth and early nineteenth centuries confirms that state constitutions provided a tort cause of action as a remedy for unreasonable searches and seizures (including punitive damages if the violation was willful), and that plaintiffs brought these claims successfully.  See, e.g., Doane v. Anderson, 15 N.Y.S. 459, 460 (Gen. Term 1891); Weyer v. Wegner, 58 Tex. 539 (1883), Frazier v. Parsons, 24 La. Ann. 339, 341 (1872); Hang Lung Kee & Co. v. Bickerton, 4 Haw. 584 (1883); Larthet v. Forgay, 2 La. Ann. 524, 525 (1847); Anonymous, 12 Am. Dec. 31 (Ala. 1821).

Fourth, this tort cause of action was likely “self-executing,” meaning that it was in no need of legislative action before it could be enforced.  The right to be free from an unreasonable search or seizure under the state constitution was “vouchsafed to the citizen by the constitutional provision[].” State v. Tonn, 191 N.W. 530, 535 (Iowa 1923) (emphasis added); Krehbiel v. Henkle, 121 N.W. 378 (Iowa 1909) (holding it was “thoroughly well settled” that “a violation of this right . . . therefor gives the injured party a right of action”).  The self-executing nature of this cause of action likely takes care of any sovereign immunity problems.  See, e.g., Gray v. Va. Sec’y of Transp., 662 S.E.2d 66, 73 (Va. 2008) (expressing the common state constitutional sentiment that where a provision is “self-executing” it “thereby waive[s] the [State]’s sovereign immunity”).

          Fifth, courts that elaborated on the rights protected by search and seizure provisions were deeply worried about dignitary, privacy, and reputational harms associated with unreasonable searches and seizures.  The Strieff majority never makes any mention of the harm visited on someone whose Fourth Amendment rights are violated, seemingly downplaying them by calling the officer’s conduct mere “errors in judgment [that] hardly rise to a purposeful or flagrant violation” of the Fourth Amendment.  But it is Justice Sotomayor’s dissent that is in tune with the concerns that state supreme courts saw as being at the heart of illegal searches and seizures (privacy and dignitary harm).  Justice Sotomayor notes that “few may realize how degrading a stop can be when the officer is looking for [evidence of a crime.”  She goes on about the “indignity of the stop” and being implicitly told one “look[s] like a criminal,” as well as the “humiliation[]” associated with having your body potentially probed “[a]s onlookers pass by.”  Compare that with the observations of the Alabama Supreme Court in 1821: “Can we conceive of any act better adapted to wound the sensibility and destroy reputation?  It is the natural and immediate consequence of the unlawful and malicious entry and search of the plaintiff’s dwelling.  He may have sustained no pecuniary loss; but the injury fixes on him the eye of public suspicion, inflicts a rankling wound on his feelings, and tends to prostrate his character.”  Anonymous, 12 Am. Dec. 31.  Other courts, in upholding damage awards, similarly concluded that illicit searches and seizures represented a “wrong to [a person’s] reputation and an insult for which the law gives a remedy.”  Krehbiel v. Henkle, 129 N.W. 945, 945 (Iowa 1911); see also Doane, 15 N.Y.S. at 460 (upholding damages award and recognizing that the plaintiff’s “privacy” was harmed and that she was “grossly humiliate[d]” and “could not have been subjected to a coarser indignity”); Larthet, 2 La. Ann. at 526 (1847) (upholding damages award that exceeded property damage because “the jury undoubtedly assessed [the damages] with reference also to the injury to the plaintiff’s feelings, and the disturbance of his family”).  This list goes on and on.  And it is significant, because the severe privacy, dignitary, and reputational costs associated with a demeaning police shake-down provide a solid basis for securing a meaningful damages award.

          Finally, unlike with modern qualified immunity doctrines, state courts of the past seemed to be unimpressed with an argument that the violation was done in good faith.  To be sure, one court cautioned that “[s]uits in damages against sheriffs, whose duties are delicate, are cautiously entertained, lest the efficiency of the law be impaired,” Frazier, 24 La. Ann. at 341.  “[B]ut,” the court continued, “the declaration in the constitution, that the ‘right of the people to be secure in the persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated,’ would be a mockery” if courts were too lenient on offending officers.  Id.  This stands in stark contrast to the majority’s reasoning in Strieff: that the officer “was at most negligent” making only “two good-faith mistakes.”  Justice Sotomayor’s dissent sounds much more like state court judges of the mid eighteenth century.  Compare Sotomayor’s Dissent at 7 (“The majority cases [the officer’s] unconstitutional actions as ‘negligent’ . . . . But the Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better.”), with Simpson v. MCaffery, 13 Ohio 508, 522 (1844) (en banc) (“A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end.  But the [Ohio search and seizure provision] tolerates no such abuse of power, nor excuses such act.”).

 I agree that the exclusionary rule is justifiable only in terms of its (alleged) deterrent effect, and thus it makes no sense to exclude evidence where it is unlikely to have such an effect.  But the reality of the toxic mixture of qualified immunity and an exclusionary-rule remedy for Fourth Amendment violations is that many, many people are, subject to arbitrary police power with no recourse.

My proposed solution is that state courts (at the behest of enterprising plaintiffs’ lawyers) begin to rely on the original meaning of their state constitutions as a means of filling the remedial gap left by the “rise of qualified immunity and decline of the exclusionary rule.”  State constitutional rights are independent of federal rights.  So perhaps we could engage in a trial period in which the two systems exist simultaneously: an exclusionary remedy in criminal proceedings via the Fourth Amendment, and a true tort remedy (unencumbered by qualified immunity) via state constitutions.  This would allow the courts and the public to weigh the costs and benefits in a comparative way that would be more helpful than trying to compare immunity-burdened tort regimes (like Bivens and § 1983) with an exclusionary-rule one.  In this way, (as Bernick recognizes is necessary) I think we can more closely hue to Chief Justice Marshall’s observation, that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receive an injury.”  Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803); see also Sotomayor’s Dissent at 12 (“[U]nlawful police stops corrode all our civil liberties and threaten all our lives.”).

National Referenda and the U.S. Constitution
Mike Rappaport

One interesting aspect of the Brexit decision was that it involved a legally nonbinding referendum. The UK Parliament was not legally bound to follow the result, but nearly everyone accepts the result, with a statement like, the people have spoken and we have to follow it. I think part of the reason for this is that prior to the vote, it was recognized that this decision would be decisive, even though it was technically nonbinding. Thus, it would be morally illegitimate not to follow the decision because one did not like the result. Keith Whittington makes a similar point about the ratification conventions at the time of the Constitution.

Would it be constitutional for the United States to hold a similar nonbinding referendum? Let's imagine that the U.S. was faced with a decision that would be consistent with the Constitution -- say deciding whether to withdraw from NATO or the UN or the WTO. It is clear that some political actor -- whether the Congress or the President or the President and the Senate, depending on the circumstances -- would have the authority to make this decision. Could there be a nonbinding referendum held on the matter?

The principal issue is whether Congress would have an enumerated power to establish the referendum. I believe that it would. Let's assume that the issue is whether to withdraw from NATO and that the President was the political entity with the authority to make the decision. Congress could then argue that it would be helpful for the President, in making his decision, to know what the American people thought of the issue, and therefore there should be a referendum. Congress could then argue that this referendum was necessary and proper to carrying into execution the President's authority under the Constitution.

This seems like the correct constitutional argument here. It is analogous to Congress deciding to authorize a public opinion poll on the same issue.

Of course, if Congress were authorizing the referendum (or the public opinion poll) in order to delegate the decision to the American people, then one might argue it was not necessary and proper to an enumerated power. But so long as Congress argues that it is simply acquiring the information to help the President make his decision, then the referendum would seem to be constitutional.

Steven Lubet on the Living Constitution in Williams v. Pennsylvania
Michael Ramsey

In the National Law Journal, Steven Lubet: Court Rightly Embraced a ‘Living’ Constitution in Death Penalty Case.  From the introduction:

How should we interpret our Constitution? Is it a living document, to be read in the context of present conditions and current knowledge, or should it be strictly limited by the "original meaning" on the day it was ratified? Although the debate may be unresolvable, the case of Williams v. Pennsylvania, recently decided by the U.S. Supreme Court, provides an almost textbook example of the contrast between the two methods. Justice Anthony Kennedy took a decidedly "living Constitution" approach to the case, while Justice Clarence Thomas addressed the central issue on originalist grounds. The difference was a matter of life or death.

Thomas' extreme version of originalism, which is fixed in an era long before psychology and cognition science emerged as rigorous disciplines, makes progress impossible. If a likely cause of judicial prejudice was unappreciated in the late 18th century, Thomas' jurisprudence would take no account of it today. No matter how much we have come to know about predisposition and unconscious bias, that information could play no part in constitutional decision-making. History, in Thomas' view, trumps science.

Kennedy's approach is far wiser and much sounder, relying on living insights into judicial (and other) decision-­making that were unavailable to the founding generation. Bias, Kennedy observed, is too "difficult to discern in oneself." Thus, Thomas' originalist presumption of nearly absolute judicial impartiality must give way to informed psychology. "When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate," wrote Kennedy, "a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome."

(via The Faculty Lounge).

I agree that the case presents the debate pretty well (assuming that Justice Thomas is right about the original meaning, and also sharply rejecting the gratuitous proposition that Thomas here represents an "extreme" version of originalism).  But I don't find the answer so obvious.  Do we want judges to apply the law as it was enacted, with all the defects that may entail, or do we want judges to create new law based on their intuitive conclusions, including about "informed psychology" (with all the defects that may entail)?


Symposium on Justice Thomas' 25 Years on the Court (and a Dissent from Eric Segall)
Michael Ramsey

At NRO, an on-line symposium celebrating Justice Thomas' 25th anniversary on the Court (officially, July 1).  Contributions from Randy Barnett, Josh Blackman, Richard Epstein, Orrin Hatch, Mario Loyola, Carrie Severino, Ed Whelan and John Yoo.  A bit from Randy Barnett's contribution:

When I am asked which Supreme Court justice I most admire, I usually decline to answer and insist that I don’t look for heroes among Supreme Court justices, past or present. Indeed, I do not care much for most of the justices who are viewed by others as heroes, such as “the great chief justice” John Marshall or “the great dissenter” Oliver Wendell Holmes Jr. But sometimes I relent and identify one justice I admire more than all the others: Justice Clarence Thomas.

My admiration for Justice Thomas stems from his unrelenting commitment to the text of the Constitution, which leads him to follow its original meaning, even where that meaning deviates from the interpretations adopted by previous justices. Because of this commitment, Justice Thomas is far more willing than any other justice on the Court to reverse these precedents that have expanded the powers of Congress beyond the original meaning of the text.

This judicial stance has distinguished Justice Thomas from originalism’s most vocal defender on the Court, the late Justice Antonin Scalia. Justice Scalia freely admitted that he was more committed to the doctrine of stare decisis — standing by legal precedents — than was his good friend Clarence.

And from Carrie Severino:

I love Justice Thomas because he’s a radical.

He is more willing than any living justice (and probably most of the dead ones) to reconsider the Court’s precedents — to go back to constitutional roots — rather than join a game of legal “telephone” in which today’s rulings would be unrecognizable to the Framers of our nation’s charter.

Frustrated with the legal landscape they inherited from FDR’s New Deal justices and from the Warren Court’s unbridled activism, conservative legal minds nonetheless often find themselves thinking inside the box. Not so Justice Thomas.

Some have calculated that every term he suggests overturning at least two different lines of Supreme Court precedent. As he said in an interview once, legal precedent holds force for him “but not enough to keep me from going to the Constitution.”

Unfortunately, Thomas often makes his calls for constitutional fidelity alone, like a Biblical prophet crying out in the wilderness. But that doesn’t bother him, first because he didn’t take an oath to try to create coalitions, to make friends on the Court, or to please the chattering classes. He took an oath to “support and defend the Constitution.” And second, while his penchant for telling the unvarnished truth is not a strategy for winning votes, even in the long term, his written opinions often are a bellwether of constitutional thought.

At Dorf on Law, Eric Segall has a different view: Justice Thomas’ America: Originalist or Republican?  In conclusion: 

Randy Barnett goes out of his way to praise Justice Thomas for willing to overturn generations of Supreme Court precedent if text and history so demand. But that precedent is the result of a complex combination of prior Justices' calculations of law, politics, social reactions, counter-reactions and values. Certainly times change and with those changes so should Court decisions. But it takes a special insight, a special intelligence, and a special feeling of superiority to think that one's own perspective on the complex relationships between vague text, contested history, and the rights and privileges of our people and the our governments can be resolved neutrally through an originalist methodology, and then end up with the political platform of the 1992 Republican Party. I envy that kind of insight.


What Is the Relevance of the Declaration of Independence for Interpreting the Constitution?
Michael Ramsey

The U.S. Declaration of Independence is a magnificent inspirational document.  I read it to my kids every Fourth of July, whether they want to hear it or not.  But I don't think it offers much help in interpreting the Constitution.

True, it is a document of the founding era, written and adopted by educated people of the same background, education and outlook as the people who wrote the Constitution (indeed many of the very same people).  So the way it uses language may be relevant to the way the Constitution uses language, to the extent the language they use overlaps.  But in this sense it is no different from and no more significant for constitutional interpretation than other documents of the founding era written by educated people of the same background, education and outlook as the people who wrote the Constitution.  And in fact the language of the Declaration and the Constitution does not overlap very much, at least not in useful ways.

Some people would  give the Declaration greater weight, as a reflection of values that inspired the Constitution, and thus of values that we should read into the Constitution even if they are not expressly there in the Constitution's text.  But I am skeptical.  The two documents are very different.  The Declaration is fundamentally a rhetorical document, meant to persuade the world -- and more immediately and significantly, to persuade wavering Americans -- that the revolutionaries' cause was just.  The Constitution is fundamentally a legal document, meant to spell out a form of government to which Americans would be bound, and by which that government would be bound.  Perhaps the  Constitution implemented the rhetorical ideals of the Declaration, but perhaps it didn't (and perhaps it was the worse for that).  The way to see if the Constitution implemented the ideals of the Declaration is to look at the Constitution's text, not to assume that it did.

When I hear people appeal to the ideals of the Declaration in interpreting the Constitution, I suspect that they are trying to find something in the Constitution that isn't there, and so must be found by other means than reading the text.  Of course, if they are using the ideals of the Declaration to reinforce what's in the Constitution's text, that's fine -- but also isn't adding all that much.

ADDED:  A possibly dissenting view from Randy Barnett: What the Declaration of Independence Really Claimed (though I don't disagree with anything he says in the post).


Vincent Muñoz: If Religious Liberty Does Not Mean Exemptions, What Might it Mean?
Michael Ramsey

Vincent Phillip Muñoz (University of Notre Dame) has posted If Religious Liberty Does Not Mean Exemptions, What Might it Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty (Notre Dame Law Review, Vol. 91, No.4, 2016) on SSRN. Here is the abstract:

Is religion special, and does it, accordingly, deserve unique constitutional protections? A number of leading scholars now say it is not, and it doesn’t. In his recent thought-provoking article, “What if Religion Is Not Special?” Micah Schwartzman contends that “religion cannot be distinguished from many other beliefs and practices as warranting special constitutional treatment.” He thus rejects the originalist construction of Free Exercise exemptions championed by Michael McConnell, at least insofar as it extends exemptions exclusively to religious entities.

But what if religious liberty does not mean exemptions? And if religious liberty does not mean exemptions, what protection would the First Amendment offer? Can religion retain its special Free Exercise status while not dictating constitutional exemptionism?

This article addresses those questions by taking a different approach to religion’s specialness, one that does not presume the Free Exercise Clause means exemptions. It attempts to set forth an alternative paradigm for the constitutional protection of religious liberty by explaining why the founders thought religion is special and by articulating their attendant constitutionalism of religious freedom. In doing so, it continues a line of inquiry, begun elsewhere, that attempts to distinguish the founders’ natural rights constitutionalism from what I call modern moral autonomy exemptionism.

The article, first, documents the founders’ shared understanding that religious liberty is a natural right possessed by all individuals. Secondly, it explains what the American founders meant when they labeled aspects of religious liberty an “unalienable” natural right. The article next clarifies the founders’ understanding of religion’s special constitutional status, which for them primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Finally, the article attempts to further clarify the founders’ constitutionalism of religious freedom by explaining how they understood natural rights to have natural limits.


Glenn Harlan Reynolds: Of Coups and the Constitution
Michael Ramsey

Glenn Harlan Reynolds (University of Tennessee College of Law) has posted Of Coups and the Constitution on SSRN.  Here is the abstract:      

Military coups d'etat are a relatively common means of government turnover in many countries, but not in the United States. This paper looks at a number of factors in the United States' Constitution and political culture that make military coups less likely, as well as at some changes in both that may reduce the degree of protection. It also offers some suggestions on how to ensure that Americas coup-resistance remains strong.


John McGinnis and Peter Shane on the Treatymaking and Appointments Clauses
Michael Ramsey

John McGinnis and Peter Shane tackle the appointments and treatymaking clauses for the National Constitution Center's Interactive Constitution, here.  (This the format I noted in this post).  Professor McGinnis' outstanding quick originalist assessment of the treatymaking power, with which I almost entirely agree:

Just as the President can fire executive officials pursuant to executive power that was not limited by the Appointments Clause, the President can terminate treaties according to their terms, because that traditional executive power was not limited by the Treaty Clause. However, he cannot terminate treaties in violation of their terms, because the Supremacy Clause makes treaties the supreme law of the land.

(Agreed.  See The Constitution's Text in Foreign Affairs [CTFA], ch. 8.)

The Supreme Court is correct that President and the Senate can make treaties beyond the enumerated powers. The Treaty Clause is an executive power in Article II, and does not come with the limitations of Article I. Moreover, as Alexander Hamilton noted, its abuse is carefully guarded by a substantial supermajority rule -- one that does not apply to legislation.

(Agreed.  CTFA, ch. 15, and at greater length, this article)

While the Court's decisions upholding executive agreements are not incorrect, the practice of executive agreements needs to be more clearly circumscribed. The high hurdle posed by advice and consent under a supermajority rule was meant to prevent foreign entanglements. Thus, purely executive agreements should be permitted only when they are one-shot agreements, like prisoner exchanges or claim settlements, or when they are based solely on independent presidential authority, like the authority to recognize foreign nation states. See Michael B. [sic] Ramsey, The Constitution's Text in Foreign Affairs 191-217 (2007).

(Mostly agreed, and thanks for the cite!  But, I do not agree that the Court's executive agreement decisions -- Pink, Belmont and Dames & Moore -- are "not incorrect."  They are not incorrect in recognizing an executive agreement power, but they are wrong, wrong, wrong in holding executive agreements to be preemptive.  See Article VI.  Also here.)

For similar reasons, the notion that Congress and the President together can strike international deals so long as they make a congressional-executive agreement is wrong, and would deprive the Treaty Clause of much of its force. Perhaps the practice in some areas of congressional-executive agreements, like trade agreements, is so settled that it should not be reversed. But practice has never embraced the complete interchangeability of treaties and executive agreements, and such interchangeability cannot be squared with the Constitution's express requirements for making treaties.

(Agreed.  CTFA, ch. 10.)

In contrast, Professor Shane's contribution tries to make the treatymaking clause seem hard to understand:

To the uninitiated reader, the Treaty Clause might be thought to imply that treaties represent the sole permissible instrument for formalizing the nation's international obligations, or that the Senate, because of its "advice and consent" role, would be a full partner with presidents in the negotiation of treaties. Neither is the case. The Washington and Adams Administrations used executive agreements, without Senate consent, both in arranging for the international delivery of mail and in settling claims arising from the seizure of a U.S. ship by a Dutch privateer. Such agreements, sometimes pursued unilaterally and sometimes with statutory authority, now far outnumber treaties as instruments of international commitment. As for actual treaties, when the Senate failed to provide Washington prompt advice concerning the negotiation of peace between Georgia and the Creek Indians, he established the now-uniform practice of presenting to the Senate for its consent only treaties that have already been completed.

Perhaps the "uninitiated reader" would find these developments puzzling, but they are not mysterious.  As to advice and consent, the appointments clause strongly indicates that "advice and consent" can be given on a definite proposal (in that case, a nomination, which the clause envisions the President alone making).  Thus, there's no reason to suppose that the treatymaking clause cannot also accommodate "advise" on a definite proposal (in the form of a signed treaty).  And practice in the states prior to the Constitution also indicates that executives could satisfy a requirement of "advice" by presenting a fully formed plan of action.  (See CTFA pp. 139-141).  Thus Washington's approach was entirely constitutional.

Similarly, on executive agreements, the Constitution's text -- Article I, Section 10 -- indicates that there are some international agreements that are not treaties.  This terminology comes from well-known international law writing of time.  Thus the treatymaking clause does not preclude the President from making non-treaty agreements.  And as a result, the practice of the Washington and Adams administrations on this point was also entirely constitutional.  (See CTFA, ch. 9).

On the appointments clause, Professors Shane and McGinnis have a similar dynamic, with similar results.

Via Liberty Law Blog, where Professor McGinnis has further thoughts, including: 

[My contribution] sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the [appointments] Clause. Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law.


I hope this essay highlights one of the greatest problems of constitutional jurisprudence—the Supreme Court’s tendency to expand its own powers. This tendency, is, of course, even more obvious in its jurisprudence of unenumerated rights, which allows justices to pick and choose what rights they believe are fundamental. But it is important to understand that the structural provisions of the Constitution have been distorted by the same will to power.


Eric Segall Responds on Scalia and Snake Oil Originalism
Michael Ramsey

In response to this post, Eric Segall comments:

Thanks for engaging my work on The Originalism Blog, but I have to say this time you didn't address my main point and didn't summarize the piece accurately.

What made Scalia a snake-oil salesman was the combination of his originalist and judicial deference rhetoric. It is simply not enough for there to be a tie when it comes to outcomes based on originalist sources given Scalia's constant "committee of nine lawyers" rhetoric. My accusation stems from both sides and you only dealt with one.

I could list legions of cases where good faith originalists could disagree about the validity of a law, but a judge who talked the talk of deference like Scalia did would have had to say a tie goes to the law.

Even if I'm wrong, you should have addressed this argument.

Fair enough, I did not address the deference point (although I leave it to readers to decide whether Professor Segall's original post was more about Scalia's nonoriginalism or Scalia's nondeference).  Here is what Professor Segall said about Scalia and deference:

One scholarly response to the argument that Scalia constantly voted in a non-textualist, non-originalist way through huge swaths of constitutional law is that in many of the areas of law listed above, there are plausible, even if not persuasive, originalist arguments in support of Scalia's votes (arguments excavated by extremely motivated law professors, not Scalia himself). 

Even if there are such arguments, which I seriously doubt, such speculations were not available to Scalia, who also spent much of his career arguing that life-tenured federal judges should not invalidate decisions by other political actors absent clear text or strong historical evidence. For some so-called New Originalists like Randy Barnett or Ilya Somin, who openly admit that they believe in strong judicial review by, in Scalia's words, "a committee of nine unelected lawyers," maybe reasonable historical evidence may be enough to sustain judicial aggression. But Justice Scalia never argued for that position. Instead, in most of the areas of law listed above, he simply either ignored or mischaracterized historical evidence while often stridently accusing other Justices of playing fast and loose with the rules of the constitutional game.

I think this is partly true and partly not.  I agree that Scalia's democracy rhetoric sits a little uncomfortably with his originalism.  Pure democracy and originalism are not allies, in the sense that originalism envisions unelected judges overturning the enactments of modern majorities.  I think, though, there is less inconsistency here than appears at first.  Scalia's criticism was that "nine unelected lawyers" should not make social policy (that being a job, in our separated-powers system, for the elected branches).  However, he did think that the "nine unelected lawyers," acting as a court, should undertake a court's role of applying enacted law, according to its text and original meaning, even if that meant overturning democratic acts.  They key, to him, was whether the "unelected lawyers" were functioning as a court or as a committee to determine social policy.  Now Professor Segall might respond that in fact Scalia also acted as a committee to determine social policy (but that returns us to the question whether Scalia was dishonest, the subject of my original post).

I also agree that Scalia can be criticized for not articulating or implementing a burden of proof for showing the Constitution's original meaning.  Suppose one concludes that there are two possible original meanings of the text on a particular issue, one of which would invalidate a statute and one would not.  If one further concludes that the meaning leading to invalidation is 51% likely (versus 49% for the other), should a judge invalidate the statute?  Practitioners of originalism need an answer to this question.

It's not obvious to me, though, that the answer is the judge should defer; nor is it obvious to me that Scalia would necessarily have to reach that conclusion.  Scalia opposed judges making social policy.  Invalidating a law based on a 51% likelihood of unconstitutionality isn't making social policy (assuming unconstitutionality is based on original meaning).

Nonetheless, I agree it's a problem  that Scalia (to my knowledge) never  comprehensively addressed this point.  If he accepted judges invalidating statutes based on very close questions of original meaning, he might have admitted more of the tension between originalism and democracy.  If he had expressly demanded a higher standard for invalidity, he might have further developed his arguments in the areas Professor Segall rightly criticizes (such as affirmative action).

As an aside, the article Professor Segall links above -- Gil Seinfeld, The Good, the Bad, and the Ugly: Reflections of a Counterclerk in the Michigan Law Review First Impressions -- is an outstanding, balanced and entertaining critique of Justice Scalia.  On affirmative action, Professor Seinfeld also says this:

I don’t mean to intimate by any of this that the Justice was not a man of principle. I think he was. Nor do I mean to suggest that he was meaningfully worse along this dimension than many of his colleagues. I don’t think that’s true. What I think is that, as is true of many men and women of principle and of many other able and respectable jurists, Justice Scalia’s instincts about what was right and what was wrong sometimes overwhelmed him and caused him to discard the principles that he applied honorably in many other contexts (including cases in which those principles commanded results he disfavored).