The Originalism Blog

Keith Werhan: Popular Constitutionalism, Ancient and Modern Michael Ramsey

Keith Werhan (Tulane University, School of Law) has posted Popular Constitutionalism, Ancient and Modern (UC Davis Law Review, Vol. 46, No. 1, 2012) on SSRN.  Here is the abstract:

This Article examines the contemporary controversy over theories of public constitutionalism through a classical Athenian lens. Theories of popular constitutionalism share in common to varying degrees the project of democratizing the practice of judicial review. Athens invented the practice of judicial review, and just as in America, it became essential to its democracy. The classical Athenian practice of judicial review aligned precisely with strong theories of popular constitutionalism, that is, theories that largely would transfer the power of constitutional review from politically insulated courts to the People themselves or to their representatives. The article shows how strong popular constitutionalism fit the highly participatory, direct democracy of classical Athens, as well as the theoretical underpinnings and institutional design of the classical democracy. The article argues, however, that because the American institutional design and conception of democracy differ fundamentally from those of the Athenians, theories of strong popular constitutionalism are out of sync with the American system. The Article argues as well that the comparison between Athens and America suggests that moderate theories of popular constitutionalism hold considerably more promise. These theories would keep judicial review in place, and thus would respect the institutional design of an independent and professional judiciary as the ultimate protector of individual rights for America’s liberal democracy. But these theories also would legitimate public participation in the shaping of the federal judiciary and their constitutional decision-making, and thus to some extent would democratize the exercise of judicial review. The article argues that this balancing between majority rule and the protection of individual rights is true to American constitutionalism, as well as to the founders’ instinct of tempering their Madisonian Constitution with enough of a classical Athenian sensibility to launch the American federal government as an authentically democratic enterprise. 

Seth Barrett Tillman: Model Legislative Veto ActMichael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Model Legislative Veto Act on SSRN.  Here is the abstract:

This is a Model Legislative Veto Act. It is a single page and it is (in my view) consistent with the original public meaning of U.S. Constitution Article I, Section 7, Clause 3. It is not consistent with INS v. Chadha.

Friedman and Lakier respond on the Commerce Clause and the Power to Prohibit CommerceMichael Ramsey

Barry Friedman and Genevieve Lakier send the following response to Andrew Hyman regarding their article on Congress' lack of power to prohibit interstate commerce (background: in an important new article noted here, Professors Friedman and Lakier argue that the original meaning of Congress' power to "regulate" interstate commerce did not include the general power to prohibit interstate commerce in particular items; Andrew Hyman commented here that this interpretation is problematic because Congress obviously had power to prohibit items in foreign commerce).  Friedman and Lakier respond:

It may seem implausible to contemporary eyes to interpret the meaning of the word “to regulate” to mean different things depending upon the object it modifies—although this may have to do more with how we are accustomed to reading the Commerce Clause than the words themselves.  (After all, don’t we commonly use the same verb differently, when used to modify different objects in a list?  Say I go away for a weekend and tell the babysitter to “take care of the kids, dogs, and plants” while I’m away. We wouldn’t assume that what I meant was that the babysitter should treat the kids, dogs, and plants exactly the same, would we?)  

What the bulk of the historical evidence demonstrates, however, is that however plausible or implausible it may appear to contemporary eyes, the Framers did not intend or assume that the verb regulate would mean the same thing when used to modify “Commerce with Foreign Nations,” “Commerce . . . among the several States” and “Commerce . . . with the Indian Tribes.”  

This is clearest with respect to the Indian Commerce Clause, which was included in the Commerce Clause only relatively late in the process of drafting, was considered at the convention to pose a relatively distinct problem, and has, as a result, never been interpreted as equivalent in scope to the other clauses.   The fact that Congress may possess the power to ban the sale to Indian tribes of commodities such as liquor and firearms thus does not tell us anything about whether Congress possesses the power to ban the interstate markets in these goods, given the different purposes the two powers were intended to serve. 

The same principle applies to the Interstate Commerce Clause. As we argue in the article, both positive and negative evidence supports the conclusion that the Framers did not believe Congress would possess the power to ban the interstate trade in slaves—or presumably anything else.  Certainly this is what David Lightner concludes in both his article and book on the topic.  We did not misconstrue his conclusions: it is true that Lightner notes that, in drafting the Commerce Clause as they did, the Founders made it possible for opponents of slavery to make textualist arguments in favor of a federal ban on the interstate slave trade similar to those Andrew Hyman makes here.  But Lightner nevertheless concludes that “the preponderance of the evidence is against the … thesis that the founding fathers intended to give Congress the power to destroy slavery by abolishing the interstate slave trade.”  One of the pieces of evidence he uses to reach this conclusion is the silence of Southern delegates about the possibility of a federal ban on the interstate slave trade. 

Lightner does, of course, note the possibility that southerners did not raise the possibility of a federal ban on the interstate slave trade because the interstate slave market was, at the time, of relatively minor significance when compared to the market in foreign slaves. Lightner complicates this explanation, however, when he points to several remarks made by southerners during the drafting and ratification debates that suggest that not only were at least some southerners thinking about the interstate slave trade, but that they believed it provided slaveholders an important defense against federal efforts to wipe out the foreign slave trade.  Most notable in this regard is a statement that David Ramsay of South Carolina made during that state’s ratification convention.  Ramsay asserted that “Though Congress may forbid the importation of negroes after 21 years, . . . . we have other sources of supply—the importation of the ensuing 20 years, added to the natural increase of those we already have, and the influx from our northern neighbours who are desirous of getting rid of their slaves.”  Statements like these lead Lightner to conclude that those who participated in the framing and ratification debates did not intend to grant, or believe that they were granting, Congress the power to ban interstate markets.  Other historians have concluded the same thing, as we note in the article.

Of course, the evidence is not cut-and-dried.  There is, as Andrew Hyman points out, the quote from the abolitionist English writer, Harriet Martineau, who interviewed Madison in 1835.  In a memoir she later wrote of her trip to the United States, Martineau wrote that, during that interview, Madison told her that he “believed that Congress has power to prohibit the internal slave-trade.”  That is all that Martineau wrote on that topic, however.  We do not agree that an uncorroborated, one-sentence claim that, for that matter, lent support to Martineau’s political position, “easily counterbalances” Madison’s own words on the matter.  In any case, evidence of this sort can provide only ancillary, not primary, historical support.   And, as we lay out in the article, the evidence from the drafting and ratification debates, the purposes we know the Interstate Commerce Clause was intended to serve, as well as federal practice in the century following the Framing all support the conclusion that Congress’s power to regulate interstate commerce was not originally intended to include the power to ban it.   Text alone cannot trump history.   The danger with textualist approaches is the risk that, by focusing too much on the meaning of individual words, they fail to pay sufficient attention to the purposes that the text was intended to serve. 

Roger Cotterrell: Jack Balkin’s Constitutional FaithMichael Ramsey

Roger Cotterrell (Queen Mary University of London, School of Law) has posted Jack Balkin’s Constitutional Faith (Public Law [2013] pp. 443-9) on SSRN.  Here is the abstract: 

This paper is a review of two books by Jack M. Balkin on the United States Constitution, the interpretive practices that surround it, and its place in American culture. The paper offers a commentary ‘from abroad’ on Balkin’s sophisticated perspective on the Constitution in its cultural context and in American political life; it focuses in particular on his discussion of the possibilities and problems of maintaining a popular faith in and a professional commitment to the Constitution as the fundamental underpinning of the American polity. Balkin highlights the intensely quasi-religious aura that often surrounds the US Constitution – a phenomenon that, to foreign observers, often seems hard to understand. This commentary applauds Balkin’s emphasis on cultural bases of law but queries how far the religious analogies of redemption that he uses to reinterpret constitutional faith in a critical yet affirmative way, can offer a secure foundation and reliable guidance for constitutional practice to meet an uncertain political future.

New Recess Appointments DecisionMichael Ramsey

The Third Circuit has joined the D.C. Circuit in finding the President's recess appointments to the National Labor Relations Board unconstitutional: NLRB v. New Vista Nursing and Rehabilitation (opinion here).  As John Elwood describes at Volokh Conspiracy, the reasoning is somewhat different than the D.C. Circuit's.  Nonetheless, much of the decision appears to be heavily textualist- and originalist-based.  Judge Greenaway dissented.

(Via How Appealing).

Originalism and Affirmative Action Part II: The Weakness of The Critics’ ArgumentMike Rappaport

In my last post, I started to discuss the arguments made by various academics who maintain that the original meaning of the Constitution clearly allows affirmative action. Their arguments are based on a set of federal statutes passed at the time of the 14th Amendment that are said to have provided race based benefits to blacks. In this post, I want to explain why I argue these statutes are weak evidence in favor of affirmative action.

There are two basic reasons why this evidence is weak. First, these statutes are federal statutes and therefore not subject to the 14th Amendment. Second, the statutes relied upon by the critics are not good evidence of race based action.

Let me start with the fact that the statutes are federal statutes. The Equal Protection Clause and the Privileges or Immunities Clause (the two provisions that might impose equality requirements) only applied to the states, not to the federal government. Thus, when Congress passed these laws there is no reason to believe that it was interpreting or implementing the 14th Amendment, because the Amendment did not apply to the federal government.

The critics reply that it is unlikely that a Congress that enacted the 14th Amendment would have violated the principles in that amendment when passing federal statutes. This seems like a potentially strong argument at first, but not upon examination. This argument assumes that the same rules ought to apply to the states and the federal government. But clearly the enactors of the 14th Amendment did not believe that, since they did not apply the Amendment to the federal government.

Understanding Congress’s actions in this area requires offering an explanation for why the 14th Amendment was applied to the states, but not to the federal government.  In my view, the Amendment was applied to the states, but not the federal government, based on two considerations.  First, Congress needed a strict limitation on the states to stop racially discriminatory actions, but did not need one as to the federal government, because the latter was thought to be more trustworthy regarding the treatment of minorities.  Second, there was not full agreement on the content of the equality requirement.  While people were willing to compromise on that requirement as to the states, because of the need for a constitutional restriction on the states, they did not feel the same need to compromise as to the federal government.  Under this view, then, the fact that Congress might have passed laws that benefited (or harmed) blacks would not be indicative of the meaning of the 14^th Amendment, because the Amendment neither applied to the federal government nor was intended to do so.

The second reason the critics’ evidence is weak is that the statutes they offer (apart from being federal statutes) are not in the main race based.  Some of the statutes are simply not best interpreted as involving race based benefits.  For example, Congress passed the Freedmen’s Bureau Acts, which provided benefits to former slaves and war refugees.  While the critics view these statutes as providing race based benefits to blacks, that is a weak interpretation.  The benefits are not provided to blacks, but to former slaves (and refugees who could be white).  As a first take, this is not a racial category, since some blacks were free.  Of course, the overlap between race and former slaves is close, so we would want to examine the law closely to make sure it is not a subterfuge secretly intended to provide benefits on racial grounds.  But there are good reasons for providing benefits to former slaves that have nothing to do with race.  Such slaves were freed with no physical or human capital and therefore providing them with benefits was necessary to  allow them to become independent citizens.

The critics also point to a few other federal statutes.  Some of these statutes are clearly not race based.  A few are hard to interpret – they may or may not be race based – but that indicates that they are not strong evidence of race based action, since they might not be race based.  Finally, one or two statutes are likely to involve some race based measures, but these statutes rely on race in a considerably narrower way than does modern affirmative action.

Overall, then, one or two narrow statutes – that involve the federal government – are pretty weak evidence that the 14th Amendment allows race based statutes. The question, though, is whether there is evidence that the 14th Amendment prohibits affirmative action. In my last post on this matter, I will turn to this question.

(Cross Posted at the Liberty Law Blog)

Sopan Joshi: The Presidential Role in the Constitutional Amendment ProcessMichael Ramsey

Sopan Joshi (Northwestern Law '13) has this Note in the current issue of the Northwestern University Law Review: The Presidential Role in the Constitutional Amendment Process (107 Nw. U. L. Rev. 963 (2013).  Here is the abstract:

The President should have the power to veto constitutional amendment proposals. After all, Article I, Section 7 of the Constitution provides that “[e]very Order, Resolution, or Vote” requiring “the Concurrence” of both houses of Congress must be “presented to the President” for approval or veto. Constitutional amendment proposals unmistakably require the concurrence of both houses of Congress (by two-thirds majorities, no less). Yet all three branches of the federal government, with varying degrees of consistency, have decided that constitutional amendment proposals need not be presented to the President. I argue that Article V, which defines the amendment process, is bound by Article I, Section 7’s strictures and the President is thus empowered to veto congressional amendment proposals as both a textual and a normative matter. Recognizing the implications of this conclusion, I propose broad definitions of presentment and approval to rescue the validity of the existing twenty-seven amendments while requiring all future constitutional amendment proposals to be presented to the President for approval or veto.

(Thanks to Seth Barrett Tillman for the pointer).

Aaron Caplan: Assembly and PetitionMichael Ramsey

Aaron H. Caplan (Loyola Law School Los Angeles) has posted Assembly and Petition (Book Review) (Journal of Legal Education, forthcoming) on SSRN.  Here is the abstract:

Two books published in 2012 – Liberty’s Refuge: The Forgotten Freedom of Assembly by John D. Inazu and Reclaiming The Petition Clause by Ronald J. Krotoszynski, Jr. – are devoted to explaining the final clauses of the First Amendment. They share a central complaint: namely, that current doctrine fails to give much independent force to either clause, instead channeling all inquiries into a speech clause that does not effectuate the distinct goals of the assembly and petition clauses. Yet the two books have curiously little to say to each other. The cases the authors cite and the slices of legal and social history they explore have almost no overlap.

This joint review (forthcoming in the Journal of Legal Education) describes the two books, identifying some of the more intriguing puzzles identified by each. It closes with some ideas about what it means for two nearly simultaneous books about “forgotten” clauses of the First Amendment to pass silently like ships in the night.

Andrew Hyman on Anthony Kennedy on Adolf HitlerMichael Ramsey

At RedState, Andrew Hyman: Anthony Kennedy on Adolf Hitler.

A few days ago, U. S. Supreme Court Justice Anthony Kennedy gave an interview with Ray Suarez of  PBS.  The interview is both illuminating (about Kennedy), and depressing.

A notable point from the post, from my perspective, is that the Nazi-era rule requiring that yellow stars be worn by Jews, which Kennedy discusses, was an executive decree -- that is, it (like almost everything Hitler did) violated separation of powers.  I think it is not widely appreciated (or at least not as widely understood as it should be) the extent to which Hitler's rise and consolidation in power arose from failure to enforce the separation-of-powers and federalism provisions of the Weimar constitution (which itself was not as protective of those principles as it should have been).

An interesting (if rather dense) read on the collapse of Weimar constitutionalism is Peter Caldwell's Popular Sovereignty and the Crisis of German Constitutional Law (Duke Univ. Press 1997).

Originalism and Affirmative Action Part I: The Critics’ ArgumentMike Rappaport

Recently, I completed a draft of an article on affirmative action and the original meaning of the 14^th Amendment.  I thought I would put up a couple of posts on the article.  For the syllabus or to download the article, see here.  While I did not write the article with the University of Texas v. Fisher case in mind, it is clearly relevant to the case.

The article responds to various scholars who have argued that the original meaning of the Constitution clearly permits affirmative action.  These scholars actually make two claims:  first, that the Constitution’s original meaning strongly supports the constitutionality of affirmative action, and second that the originalist justices – Justices Scalia and Thomas – are behaving like hypocrites because they are both originalists and believe that government affirmative action is unconstitutional.

For example, consider Cass Sunstein’s claim that originalism:

strongly suggests that affirmative action policies were originally regarded as legitimate.  Hence there is no historical warrant for the [originalist] view that affirmative action is generally unconstitutional.  On the contrary, history supports affirmative action.  In the aftermath of the Civil War, Congress enacted programs that provided particular assistance to African-Americans, and this makes it extremely difficult to attack affirmative action on [originalist] grounds.

[The originalist justices] have abandoned their own favorite principles of interpretation.  Astonishingly, the Court’s most enthusiastic [originalists], Justices Scalia and Thomas, have voted to strike down affirmative action programs without devoting so much as a sentence to the original understanding of the Equal Protection Clause.  Both justices usually pay a great deal of attention to history, particularly when they are voting to invalidate the actions of other branches of government.  But on affirmative action their judgments do not depend on history at all.  They don’t seem to care about it.

Sunstein and the other scholars base their argument on a set of federal statutes that were passed at the time of the enactment of the 14^th Amendment.  In my next post, I will show that these statutes are weak evidence of the original meaning, because they are federal statutes, they are in most cases not clearly race based, and they are merely expected applications.  Thus, Sunstein’s confidence here about the original meaning is not at all justified.

But Sunstein is right about one thing.  Justices Scalia and Thomas have not explained how they reconcile their colorblindness position with the original meaning.  (Perhaps the other justices and the briefs have not raised the issue and they felt no need to raise it on their own.)  My argument, however, shows that if the originalist justices address the issue, there is significant evidence to support their position.

(Cross posted at the Liberty Law Blog)

Jeffrey Rosen Reviews "The Federalist Society"Michael Ramsey

Michael Avery and Danielle McLaughlin have published this new book: The Federalist Society: How Conservatives Took the Law Back from Liberals.  Jeffrey Rosen (George Washington) reviews it here, in the NTY Sunday Book Review.  From the opening of the review:

More than two decades ago, when I was a law student, I used to sneak into meetings of the conservative Federalist Society for lunchtime conversations about constitutional issues. Although neither conservative nor a Republican, I had libertarian leanings and appreciated the society’s openness to debating its political opponents. I felt slightly illicit in crossing ideological lines: once, when the dean spotted me leaving a meeting, I felt as if I’d been caught walking out of an X-rated movie.  But the discussions themselves were always intellectually engaging, and my fellow law students seemed more interested in converging around a shared approach to interpreting the Constitution than in squabbling about partisan differences.

(Via How Appealing)

Further Conversation on Natural Born CitizensMichael Ramsey

Regarding last week's posts on natural born citizens (see here and here), below are two reader questions to which I have only tentative answers. 

First, from Michael Thomas:

One question you do not address is: In a Presidential election, who is the final arbiter of whether a candidate is qualified?  Is it the Supreme Court, the college of electors, the Parties?

That's an excellent (and tough) question, and I think originalists might have various answers depending on what they think of Marbury v. Madison and of the political question doctrine.  I tend to be generally favorable to Marbury-style judicial review (which I think is fully supported by the text and original understanding); and I tend to be sharply critical of the political question doctrine in constitutional cases (per Ch. 16 of The Constitution's Text in Foreign Affairs).  So I'm inclined to say the Court can be the final arbiter of qualifications assuming there is someone with standing to bring a challenge.  But I can see a good argument as well for a political solution -- perhaps that would come not from the electors (I'm not sure how they would have the authority), but from the body entrusted to count and accept the electoral ballots. 

Unfortunately the Twelfth Amendment is a little unclear on who counts the votes -- the President of the Senate, or the Congress as a whole.  Here's a tentative suggestion.  The relevant text is:  "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the [electoral] votes shall be counted; -- The person having the greatest number of votes for President, shall be President ..." (and if no "person" has a majority, the House chooses the President).  I assume "person" here means "eligible person."   So if the House concludes that no eligible person has received a majority, it can proceed to pick the President; and if instead it concludes that the person with a majority of electoral votes is an eligible person (and so does not pick a President), perhaps that judgment should be conclusive.

Second, from Matthew Estrin [edited slightly]:

I have a concern regarding what Parliament's "ability" to extend who is a "natural born" subject encompassed.
 
... [I]t was my understanding that the rules for membership in parliament were by statute, not constitution. I think it was the Act of Settlement in 1701 that enacted the rule regarding only natural born citizens being eligible to be an MP. There really is not set constitution per se. Further until recently parliament was the final arbiter of so called constitutional questions. Accordingly Parliament was supreme in determining what their "constitution" said, but also in it's ability to change it simply by an Act of Parliament. So their decision to extend it doesn't raise the same Constitutional and structural issues that arise when we interpret our Constitution.
 
All this combined seems to me, to make Parliamentary decisions, like extending "natural born" status, to be somewhat unpersuasive regarding what our Constitution means. The founders made a very clear decision to make a more binding set of rules (as opposed to simple Acts by Congress) and more importantly to separate legislative and judicial functions that fundamentally changes what the law is, who decides what it is, who can change it, and how it can be changed. These differences make the term "natural born" more static and seems to take it out of Congress' hands to change it in regard to Constitutional meaning.
 
Do you think this difference in governmental structure changes the usefulness of Parliament's actions in determining the original meaning to the US Constitution?

Also an excellent and tough question.  To begin, I think it's absolutely right to be cautious of directly translating Parliament's power to Congress' power, for exactly the reason the questioner states.  The framers specifically distrusted Parliament's unchecked power to interpret and alter the English constitution.  So, yes, it's important to be very careful here, and to be clear that I'm making an argument about a specific legal phrase, not a more general argument about the relationship between parliamentary power and congressional power.

Second, it's correct that the limit on foreign-born persons being members of parliament or holding other offices comes from the Act of Settlement.  The Act, though, didn't use the phrase "natural born subject"; it just said "no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging … (except such as are born of English Parents)" may hold the designated offices.  It was Blackstone who described this limit as encompassing "natural born subjects". 

So I would say (I think) that the key act was the British Nationality Act of 1730, which did use the phrase "natural born subject" (see discussion here).  That Act "declared" (its word) children born abroad to be natural born subjects if they had an English father.  I would not see this as altering the English constitution as developed by the Act of Settlement, but rather as reflecting the understanding that a "natural born subject" was someone who was a subject at birth by whatever laws then existed (common law and statutory).  That's the way this source puts it (admittedly a much later source, albeit an English one):  "Some persons born out of the dominions of the King, though aliens by common law, have been made natural-born subjects by statute." (p. 66).  It's also consistent with the fact that Parliament continued tinkering with the definition, for example extending the category of "natural born subject" further in the British Nationality Act of 1772 (13 Geo 3, ch. 21).

I would be more persuaded by the counterargument that the question suggests if it appeared that "natural born subject" had a fixed categorical meaning in eighteenth-century English law.  It might then be highly plausible that the American framers wanted to constitutionalize that category, rather than giving discretion to Congress, for exactly the reasons the question suggests.  (And that would be a problem for Ted Cruz).  But I think the short of it is that "natural born subject" did not have a fixed categorical meaning in eighteenth-century English law -- it just meant people entitled to birth citizenship by common law or statute.  So I'm skeptical that it should be given any more fixed meaning than that in the Constitution, even though (as the question points out) there are some significant issues in translating English parliamentary practice into constitutional rules.

On the other hand, as I said at the outset, I think the issue is a difficult one, and the question gives further reasons to think so.  Thanks to both readers for provoking further thoughts on the matter.

Robert Reinstein: The Haitian Revolution and American ConstitutionalismMichael Ramsey

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism (American Journal of Legal History, 2013) on SSRN.  Here is the abstract:

The Haitian Revolution and its aftershocks had a profound impact on American constitutionalism. The six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power and changed the nation’s approach towards the law of nations. The Executive took effective control over the nation’s most important dimensions of foreign policy, creating and employing instruments of power that are used to this day. For the first time, presidents unilaterally provided funds and military equipment to a foreign belligerent, intervened in a foreign civil war, negotiated secret commercial, diplomatic and military agreements with a foreign nation and the leader of a rebellion, used military force abroad, expanded the treaty and recognition powers and, with the acquiescence of the Supreme Court, violated accepted doctrines of the law of nations. These actions formed a blueprint for executive dominance over foreign policy, war and international law.

This forgotten history is essential for a contemporary understanding of the foundations of modern presidential power over foreign affairs and war. Many of the most controversial questions presidents face in the modern era — whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, adhere to the requirements of international law — were first faced in the American reactions to the Haitian Revolution. Those decisions set precedents for the expansion of executive power whose legacies still exert a deep if unrecognized influence today.

This article also illuminates the relationship of slavery to American foreign policy in the early Republic. The near-universal abhorrence and fear of a slave revolt was a powerful force in executive foreign policy decisions. But two other factors also influenced presidents in dealing with the Haitian Revolution — trade and geopolitics. When these other forces overcame domestic pro-slavery demands, presidents supported blacks fighting for their freedom and helped to create independence from the crucible of a slave revolt. However, when these forces were aligned with, or at least did not conflict with, the existential threat of a permanently successful slave revolt, the determination to isolate or crush the Haitian Revolution prevailed. As Haiti lost its strategic and economic importance to the United States, a consensus developed in the executive, legislative and judicial branches that, in the legal contemplation of the American government, the nation of Haiti did not exist.

Brief Filed in Bond v. United StatesMichael Ramsey

Via Nick Rosenkranz at Volokh Conspiracy, the petitioner's brief in Bond v. United States was filed yesterday.

For all the talk about recess appointments, Bond is likely to be the most important originalist-oriented structural constitutitional case at the Supreme Court next year.

Here is a list of posts in a debate on the Bond case at Volokh Conspiracy earlier this year, featuring Professor Rosenkranz and NYU Professor Richard Pildes, with additional commentary from other Volokh Conspiracy bloggers.

The "Natural Born" Citizen Revisited: Three PossibilitiesMichael Ramsey

Discussions earlier this week of Senator Ted Cruz and the natural born citizen requirement (see here and here) seem to call for a clearer outline of the original meaning of the presidential eligibility clause.  After further thought, below I sketch three possibilities.

To begin, a quick summary of key facts:

The eligibility clause (Article II, Section 1) provides that “[n]o person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”  The question, of course, is what “natural born Citizen" means (and specifically, in Senator Cruz’s case, whether it includes a person born outside the United States to a U.S. citizen mother and a non-citizen father, where a U.S. statute provided in such a case for citizenship at birth).

The phrase “natural born Citizen” appears to derive from the common phrase “natural born subject” in English law (a status which among other things gave eligibility to certain offices, such as membership in parliament, that were not available to citizens naturalized after birth).  As Blackstone explains (vol. I, Ch. 10), the “natural” in “natural born subject” traditionally referred to those who were subjects by the law of nature, as reflected in common law.  And the ancient traditional rule was that only those born on English territory were natural born citizens: 

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. .. The thing itself, or a substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

Or as Blackstone says later, "And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances..."  (As Blackstone further explained, there was a common-law exception for children of English ambassadors born abroad, because the ambassador, "though in a foreign country, owes not even a local allegiance to the prince to whom he is sent.")

But as Blackstone further describes, the rights of natural born subjects were extended by statute early on (under Edward III) to those born abroad of two English parents.  Then, in the early eighteenth century, parliament made birth subjects of children born abroad with an English father.  According to Blackstone, as a result these children “are now natural-born subjects themselves, to all intents and purposes, without exception.” 

Finally, in 1790, the first U.S. Congress gave birth citizenship to children born abroad of two U.S. parents, whom the statute said would be “natural born citizens.”

From this sketch, I think there are three possibilities:

Version 1.  The “natural” in “natural born” citizen/subject still meant in the eighteenth century (as it had much earlier) a citizen/subject by the law of nature (as opposed to a citizen/subject by statute).  For people in the English tradition that would have meant people who were citizens under common law.  That in turn meant only people born within the sovereign’s territory (and children of English ambassadors).  In this view, the statutory expansions gave some children born abroad the same rights and duties as natural born subjects, but those children remained nonetheless only statutory subjects (since a statute could not alter the law of nature).  Notably, only this version gives content to the word “natural” in “natural born.”  So Ted Cruz loses.   

Version 2.  Although version (1) is the correct view of the traditional English rule, by the late eighteenth century parliament had expanded the traditional category of “natural born” to include children born abroad of English fathers.  When the American founders thought of the “traditional” English rule, they actually thought of the eighteenth-century rule as stated in Blackstone, their chief legal authority.  Hence “natural born” in 1788-89 America meant what it then meant in England: born in the territory, or born abroad to an English father.  That explains the 1790 Act.  But Ted Cruz still loses.

 Version 3.  Another way to look at it is that eighteenth-century English practice established the rule that parliament could expand the category of “natural born” by statute.  That appears to be the power parliament claimed in making natural born subjects of children born abroad with English fathers.  According to Blackstone, at least, the statute did not just give them the rights of natural born subjects; rather he said that by statute children born abroad “are” natural born subjects.  In this view, parliament could have made natural born subjects of the children of English mothers.  It chose not to – perhaps because the Roman/continental rule made citizenship follow the father’s status; perhaps because there simply weren’t very many English women (as opposed to men) living or traveling abroad and having children with foreigners.  But in any event “natural born” had come to mean those children parliament made subjects at birth, whoever they were.  Translated to U.S. constitutional terms, that would mean whomever Congress chooses (from time to time) to make citizens at birth are natural born.  And Ted Cruz wins.

* * *

Two further points.  First, the discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later).  That may be modern usage, but it’s not the eighteenth century meaning.  Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise.  For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.”  That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized.  So the question isn’t whether Ted Cruz is naturalized.  He is – from birth, by statute.  The question is whether someone naturalized at birth by statute is a natural born citizen.  Put this way, I find version #3 above the most plausible. Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute).  And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high offices.

Second, much modern discussion relies on the excellent 2011 Congressional Research Service (CRS) study of the matter, treating it as largely settling the question.  But Senator Cruz should read the report closely before he relies on it.  As to original meaning, the report concludes (p. 25):

The overwhelming evidence of historical intent, general understandings, and common law principles underlying American jurisprudence thus indicate that the most reasonable interpretation of “natural born” citizens would include those who are considered U.S. citizens “at birth” or “by birth,” either by the operation of the strict “common law” of jus soli derived from English common law (physically born in the United States and subject to its jurisdiction, without reference to parentage or lineage), or under existing federal statutory law incorporating longstanding concepts of jus sanguinis, the law of descent, including those born abroad of U.S. citizen-parents.

But as Blackstone’s discussion shows, the “longstanding concepts of jus sanguinis” include only those born abroad to two citizen parents or (depending on how one defines “longstanding”) those born abroad to a citizen father.  “Longstanding concepts of jus sanguinis” do not include those born abroad with just a citizen mother.

Here, though, I think the CRS report is wrong, or at least under-inclusive.  Parliament’s extension of natural-born-subject status to certain children born abroad did not turn on “longstanding concepts of jus sanguinis.”  Blackstone, at least, does not even mention this basis for the extension.  Rather, he says, it was a policy decision “[t]o encourage also foreign commerce.”  Thus eighteenth-century English practice stands not for the proposition that “natural born” combines traditional principles of  jus soli and jus sanguinis (which might be problematic for Senator Cruz) but rather for the proposition that parliament could define by statute who was “natural born,” by saying who was a citizen at birth. 

And so, again, Ted Cruz wins.

Jack Balkin on Originalism and Living ConstitutionalismMike Rappaport

Jack Balkin has posted an essay from a conference held in Jerusalem on his new book Living Originalism.  One can only marvel at the number of conferences and symposia on the book.

As many readers know, Jack is an advocate of originalism, but of a different type of originalism.  Under Jack’s view, originalism is compatible with living constitutionalism: hence the title of his book, Living Originalism.  While Jack’s book is innovative and interesting, Jack may be the only originalist who believes that these two positions are compatible.

Jack’s position, however, is also distinctive in other respects.  One can draw a distinction between two different types of interpretive theories: positive theories and normative theories.  Positive theories are theories of the actual meaning of a document.  Normative theories are theories of what it would be desirable for the document to mean.

Virtually all originalists believe that the positive theory of interpretation is originalist.  Some originalists also believe that the normative theory of interpretation is originalist as well, although some originalists do not.  (For example, John McGinnis and I argue that the actual meaning of the Constitution is its original meaning and that this meaning is the desirable meaning as well.)  Thus, virtually all originalists believe that the original meaning of the Constitution is the actual meaning of the Constitution, and reach this conclusion without considering values or normative matters.

Jack, however, has a different perspective.  He appears to argue that there is no positive theory of interpretation.  Instead, one must choose a theory of the meaning of the Constitution by reference to values:

Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute “original meaning” for purposes of  constitutional interpretation. There is no natural and value-free way to make this selection. It cannot be settled by the meaning of “meaning,” much less the meaning of “original.” It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have (page 828).

This is, as I say, an unusual position among originalists, even among originalists (like Jack) who are described either as new originalists or constructionist originalists.

Now, one of the interesting things about Jack’s theory is his attempt to reconcile originalism with living constitutionalism.  How can he do it?  Well, the answer is actually based on his theory of meaning.  Jack adopts a very thin or minimal theory of meaning, which means that the original meaning decides relatively very little of the content of the Constitution.  What supports this theory of meaning?  As Jack explains, it is his view of the proper values –  his view that the Constitution ought not to decide too many issues up front:

My (selective) account of original meaning flows from my view about how written constitutions work over long periods of time and what makes them legitimate for generations long after their adoption.  Constitutions are basic plans for politics that have to be carried out over time by many different generations, who may not share the adopters’ cultural presuppositions and worldview. Not everything can be settled at the outset; therefore adopters must put their trust in later generations to carry out the plan and adapt it to new circumstances (page 829).

Thus, how does Jack reconcile originalism and living constitutionalism?  In short, he believes that living constitutionalism is a good idea and therefore adopts a theory of meaning that allows for it.  If one can adopt the theory of meaning based on one's values, then one can have great influence over the Constitution's original meaning.

(Cross posted at the Liberty Law Blog)

Further Thoughts on Originalism and Natural Born CitizensMichael Ramsey

At NRO, Ed Whelan: Ted Cruz, Originalism and the "Natural Born Citizen" Requirement (responding to the New Republic article by Noam Scheiber, noted here).  Here's his core conclusion:

Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)

Meanwhile, at Opinio Juris, Peter Spiro says: There Are Lots of Reasons to Oppose Ted Cruz for President.  His Birthplace Isn't One of Them.  He argues:

Some argue that “natural born” means born within the territory of the United States – ie, a citizen under the Fourteenth Amendment. But John McCain’s candidacy put that line to rest, since Canal Zone-born McCain had citizenship only by statute ...  Nobody seriously asserted his ineligibility. George Romney’s 1968 run supplies a less well-developed precedent, Romney having been born in Mexico to US-citizen parents.

I'll have more to say on the originalist argument shortly, but for now I just want to point out how weak Professor Spiro's argument from practice is.  First, there was some discussion of McCain's eligibility and it was fairly inconclusive.  Larry Solum wrote, for example, that

the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law - a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

But more importantly, under most theories of custom, a practice is not established by a few isolated incidents, which is all we have here (just two serious candidates in the last 50 years, apparently -- and neither of those was actually elected).  The Supreme Court routinely finds unconstitutional things that have been done much more often than twice in a half-century.

That's not to say that longstanding practices can't establish a binding custom (see here for my thoughts on that point).  But, despite Professor Spiro's attempt to declare the matter settled and originalism irrelevant here, I think this is an area where originalism will come to the forefront.  (If you don't think so, just consider how much originalist arguments have dominated the recess appointments debate -- an area where there is much more consistent practice than in presidential eligibility).

More on Recess AppointmentsMichael Ramsey

Three interesting further arguments on recess appointments:

First, Peter L. Strauss (Columbia Law School) has posted The Pre-Session Recess (126 Harv. L. Rev. F. 130 (2013)) on SSRN.  Here is the abstract:

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to the NLRB and to the Consumer Financial Protection Bureau outside that practice.

This brief contribution to the Harvard Law Review Forum explores historical realities unexamined by the Canning court, as well as Congress's consistent practices under the 20th Amendment to the Constitution and that amendment's text to argue that the Second Session of the 112th Congress was necessarily in recess -- "the" recess if one wishes -- from January 3, 2012 until mid-January, when it first actually assembled. A resolution of the First Session, not being the "law" the 20th Amendment requires validly to postpone the assembly of the Congress cannot affect that proposition, and hence the January 4 Recess Appointment President Obama made comfortably fit established historical traditions of intersession recess appointments regularly made since early in the 19th Century.

(Thanks to Michael Perry for the pointer).

Second, Gerard Magliocca has this post at Balkinization: Defining "the recess" (discussing the "the recess" language in Article I, Section 3).

And third, Amelia Frenkel (NYU Law School J.D. candidate '14) has this Note in the May 2013 NYU Law Review: Defining Recess Appointments Clause "Vacancies" (88 NYU L. Rev. 729 (2013)).  Here is the abstract:

The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate.” Throughout American history, the Clause has been the subject of intense constitutional focus, as well as political jockeying between the legislative and executive branches. The recess appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau in January 2012 brought new attention to the issue, raising novel constitutional questions about the propriety of modern uses of the recess appointment power. This Note addresses the question of whether the President is constitutionally empowered to make recess appointments to newly created offices and concludes that he is not.

(Via How Appealing).

Is Ted Cruz a Natural Born Citizen?Michael Ramsey

At The Atlantic, David A. Graham says Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S. (because his mother was a U.S. citizen when he was born):

In short, the Constitution says that the president must be a natural-born citizen. "The weight of scholarly legal and historical opinion appears to support the notion that 'natural born Citizen' means one who is entitled under the Constitution or laws of the United States to U.S. citizenship 'at birth' or 'by birth,' including any child born 'in' the United States, the children of United States citizens born abroad, and those born abroad of one citizen parents who has met U.S. residency requirements," the [Congressional Research Service]'s Jack Maskell wrote.

(Via Peter Robinson at Ricochet)

That's probably correct as an original matter.  "Natural born" can be reasonably understood as the opposite of "naturalized," (also a constitutional phrase, from Congress' power "to establish a uniform Rule of Naturalization"),  and Senator Cruz was (by statute) a citizen at birth.  And there's a sensible underlying policy: a citizen at birth, unlike someone who has been naturalized, is less likely to feel a prior allegiance to a foreign power.

But I'm not sure it's as clear as Graham claims.  In his classic article Originalism and the Natural Born Citizen Clause, Lawrence Solum doesn't find the argument entirely conclusive.  The counterargument is that (as Professor Solum suggests) the constitutional phrase refers to people who would be citizens according to the traditional English common law view of who were "natural born subjects."  Congress could presumably extend citizenship beyond the traditional boundaries to those who were not common law citizens, but these people would be in effect "naturalized" at birth by statute rather than being "natural" born (that is, citizens by the law of nature).

The relevant discussion in Blackstone's Commentaries is Book I, Ch. 10, and its implications are not obvious.  According to Blackstone, the traditional rule was that "[n]atural born subjects are such as are born within the dominions of the crown of England."  But he further noted that a series of statutes (some fairly recent) had had extended the rule such that "all children, born out of the king's ligeance [i.e., abroad], whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes ..."

So does this mean (a) that (at most) people born abroad whose fathers are natural born citizens are themselves natural born citizens [which doesn't include Senator Cruz] or (b) that the legislature can at will redefine the category of "natural born citizen" by statute? 

Blackstone's discussion seems to show that someone in Cruz's position (born abroad to a citizen mother and non-citizen father) would not have been a "natural born subject" of England in the eighteenth century.  But I think (b) is still the correct answer.  Blackstone's discussion of the laws (7 Ann. c.5 and 4 Geo. II c. 21) extending subject status indicates that as general matter those who are subjects at birth by the operation of recent statutes were called "natural born" even if they weren't within the traditional category of natural born subjects.  Presumably that would also be true of people whom future statutes made subjects at birth.  Thus ultimately I think Graham is right, but it's not as easy a question as some people think.

UPDATE:  Noam Scheiber has this somewhat unfair post at The New Republic:  Meet the Most Important Ted Cruz Birther: Ted Cruz.  Ted Cruz is eligible to be president under almost any reading of the Constitution—except his own.  The point appears to be that Cruz' eligibility is obvious under a living constitution approach (relying heavily on Professor Peter Spiro of Temple Law School and Opinio Juris) but that the question is harder for originalists and Cruz has proclaimed himself an originalist.

I agree with this as far as it goes (see above), but Scheiber doesn't present any analysis whatsoever on the Constitution's original meaning.  While that meaning isn't crystal clear, even my quick review of Blackstone suggests that there's a good argument in Cruz' favor.  Scheiber heavily implies that Cruz is being disingenuous, but I see no evidence of that.

Natelson: The Origins and Meaning of Vacancies that May Happen During the Recess in the Constitution's Recess Appointments ClauseMike Rappaport

Robert G. Natelson (The Independence Institute & Montana Policy Institute) has posted The Origins and Meaning of 'Vacancies that May Happen During the Recess' in the Constitution's Recess Appointments Clause on SSRN. Here is the abstract:

There has been longstanding uncertainty about the meaning of “the Recess” and “Vacancies that may happen” in the Constitution’s Recess Appointments Clause. This Article finds that both “the Recess” and close variants of “Vacancies that may happen” were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that “the Recess” means only the inter-session recess and that a vacancy “happens” only when it first arises.

I was pleased to see that Rob Natelson, who pursues a different methodology than I do, appears to have reached the same conclusions that I reached concerning the Recess Appointments Clause.  I am reading this paper now and should have comments in the future. 

New Book: Stephen Griffin's Long Wars and the ConstitutionMichael Ramsey

At Balkinization, Stephen Griffin has a long post describing his forthcoming book Long Wars and the Constitution (avaliable for pre-order at Amazon; projected publication date May 13).  Here is part of his description:

Although I have something to say about what happened prior to World War II, especially with respect to the eighteenth century, in understanding the situation we face in contemporary times, I think it is most critical to reach an understanding of what happened in the Cold War, our last “long” war.

...[A]lthough I argue there is little doubt contemporary presidents have departed from the historical meaning of the Constitution, I do not think there is a way to return to the practices that prevailed in the early republic.  So whatever problems we may have, there is no meaningful eighteenth century fix, any more than we could recreate an eighteenth century military.  I do not mean to say that there are no solutions.  Rather, there are no solutions that anyone in the eighteenth century would find familiar.

I also reject what might be called the “presumption of equal relevance” – the idea that each use of presidential war power, especially in the nineteenth century, is equally relevant to the circumstances we face today.  I largely agree with the “1950 thesis” that Truman’s commitment of troops to Korea without authorization from Congress marked a sharp break in our constitutional tradition.  But the crucial point is not so much the power Truman asserted but rather that he had new state capacities and resources available to him (and all post-World War II presidents) that were not available to prior presidents.  The critical variable of state capacity has been mostly ignored in previous studies of presidential war powers.  Once we take it into account, it will alter our perspective and understanding of the use of war powers since 1945.

And here is the description from Amazon:

In a wide-ranging constitutional history of presidential war decisions from 1945 to the present, Stephen M. Griffin rethinks the long-running debate over the “imperial presidency” and concludes that the eighteenth-century Constitution is inadequate to the challenges of a post-9/11 world.

The Constitution requires the consent of Congress before the United States can go to war. Truman’s decision to fight in Korea without gaining that consent was unconstitutional, says Griffin, but the acquiescence of Congress and the American people created a precedent for presidents to claim autonomy in this arena ever since. The unthinking extension of presidential leadership in foreign affairs to a point where presidents unilaterally decide when to go to war, Griffin argues, has destabilized our constitutional order and deranged our foreign policy. Long Wars and the Constitution demonstrates the unexpected connections between presidential war power and the constitutional crises that have plagued American politics.

Contemporary presidents are caught in a dilemma. On the one hand are the responsibilities handed over to them by a dangerous world, and on the other is an incapacity for sound decisionmaking in the absence of interbranch deliberation. President Obama’s continuation of many Bush administration policies in the long war against terrorism is only the latest in a chain of difficulties resulting from the imbalances introduced by the post-1945 constitutional order. Griffin argues for beginning a cycle of accountability in which Congress would play a meaningful role in decisions for war, while recognizing the realities of twenty-first century diplomacy.

Damon Root on McBurney v. YoungMichael Ramsey

At Reason, Damon Root: The Supreme Court vs. Freedom of Information: The justices undermine a core constitutional protection in McBurney v. Young.

Jack Balkin: Must We Be Faithful to Original Meaning?Michael Ramsey

Jack M. Balkin (Yale University - Law School) has posted Must We Be Faithful to Original Meaning? (Jerusalem Review of Legal Studies, 2013) on SSRN.  Here is the abstract:

This essay responds to essays written for a symposium on Living Originalism that will appear in the Jerusalem Review of Legal Studies. It expands and develops the book's argument for fidelity to original meaning.

First, the essay explains why interpretive fidelity requires, at a minimum, fidelity to the basic framework -- the Constitution's original semantic meaning and the Constitution’s choice of rules, standards, and principles. This is a hypothetical imperative, not a categorical one. If Americans want to follow the plan of their Constitution, this is the least that fidelity requires. But they need not continue to do so. As they did with the Articles of Confederation, Americans could reject their present Constitution through a new act of constituent power. The argument assumes, however, that Americans are not deluded or disingenuous in asserting that they continue to accept their Constitution as amended.

Second, the article argues for a "thin" theory of original meaning that both leaves room for and necessitates constitutional construction by subsequent generations. To be sure, framework originalism makes use of background context to infer some aspects of original meaning that are not explicitly stated by the text, but it limits these inferences to those necessary to make sense of the basic framework and its economy of delegation and constraint.

A "thin" account of original meaning makes the best sense of Americans' actual practices of constitutional development. It is also the most consistent with the democratic legitimacy of an ancient constitution over time. A theory of original meaning that is too thick will increasingly undermine democratic legitimacy as time goes on. It will fail to make use of the institutional capacities of later generations to adapt government to technological, social and economic change. The problems of the increasing democratic deficit of originalism over time and of the limited institutional capacities of adopters are best solved by a thin theory of original meaning, which leaves ample room for constitutional construction.

The essay concludes by comparing different theories of originalism -- including Living Originalism -- with different theories of Jewish law that explain or justify disagreement or change over time. An important difference must be noted at the outset: According to Jewish tradition, the Torah is the word of God, and therefore cannot be mistaken, while a political constitution is the work of fallible human beings.

Nevertheless, the different rabbinic solutions to (or explanations of) disagreement and change in the Talmud correspond to different positions in American constitutional scholarship. The argument of Living Originalism, it turns out, is closest to the position of Rabbi Moshe Shmuel Glasner (the Dor Revi'i), who argued that while the Written Law does not change, the Oral Law must be dynamic in order to "not to tie the hands of the sages of every generation from interpreting Scripture according to their understanding."

Sean Croston: The Chairman or the BoardMike Rappaport

This paper address an issue that I have often mentioned to my Administrative Law classes, but which has been neglected.  The abstract does not suggest an originalist inquiry, but clearly the issue would be relevant to a textualist and originalist approach.   

For the past 130 years, Congress has alternated between two competing structural visions of ideal administrative agency design — single-administrator versus multi-member organization. Over time, Congress has frequently reacted to strong arguments from both sides by approving various arrangements that conflate the two models, particularly with respect to the important but often-overlooked authority to appoint “inferior officers” within multi-member agencies. In many cases, the Chairmen (or their equivalent) of these multi-member Boards and Commissions retain some or all power to select high-ranking agency staff, while their fellow Board or Commission members have authority over agency rulemaking, adjudication, and other key functions. While such power-sharing arrangements may have kept the peace in some sense for many years, recent events call into question the constitutional integrity of these mixed-management models.

Most importantly, on June 28, 2010, the Supreme Court issued its decision in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), a hotly-contested 5-4 ruling involving several challenges to the appointment and removal of the Public Company Accounting Oversight Board at the Securities and Exchange Commission (SEC). The slip opinion and Justice Breyer’s accompanying dissent ran over 100 pages, many of them disputing controversial “for cause” removal standards at independent agencies. But two interesting paragraphs near the end of the majority opinion have received little attention in subsequent analyses. These paragraphs settled a fairly novel challenge to the Board appointments, which alleged that they were invalid because the SEC Chairman made them only after obtaining the Commission’s approval.

In the course of rejecting this particular challenge, the Court set forth sensible new criteria for determining the “Head” responsible for making appointments of senior staff within a multi-member agency for purposes of the Constitution’s Appointments Clause: the “Head” is generally the person or entity that sets the agency’s internal policies and has final say over the exercise of the agency’s rulemaking, adjudicatory, and investigatory powers. But upon applying these standards to the organizational structures of current multi-member agencies, it becomes relatively clear that the constitutional “Heads” of most of these agencies are their respective Boards or Commissions, acting jointly. This conclusion casts serious doubt upon the constitutionality of a number of Chairman-initiated appointments long set by statute.

In short, the Court’s reasoning suggests that only the purest forms of the two competing organizational models will pass constitutional muster: a full multi-member Commission or Board (acting jointly) must direct all appointments and removals of subordinate officers, or an agency must be controlled by a single administrator who likewise directs all appointments and removals of subordinate officers. The currently popular half-and-half model whereby multi-member agency Chairmen control appointments and removals or have the sole power to initiate those appointments or removals does not appear to comply with the Appointments Clause, as interpreted by the Court.

In addition, the Court’s reasoning raises new questions about the constitutionality of the frequently-used “approbation” model, whereby multi-member Boards or Commissions cannot initiate and may only approve inferior officer appointments (or removals), which must be initiated by their Chairmen. These conclusions could have far-reaching effects if litigators recognize and begin to rely upon the Supreme Court’s standards set forth in PCAOB. 

Lawrence Lessig: What an 'Originalist' Would Understand 'Corruption' to MeanMichael Ramsey

Lawrence Lessig (Harvard University - Edmond J. Safra Center for Ethics; Harvard Law School) has posted What an 'Originalist' Would Understand 'Corruption' to Mean: The 2013 Jorde Lecture (California Law Review, Forthcoming) on SSRN.  Here is the abstract:

How we understand the "corruption" of Congress goes a long way to showing why, and how that "corruption" can be remedied. In this paper, Professor Lessig describes the originalist roots to his conception of "dependence corruption," and shows why that conception is neither a version of "equality" nor inconsistent with modern First Amendment jurisprudence.

Fourth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress ConferenceMike Rappaport

Recently, the Fourth Annual Originalism Works in Progress Conference was held at the University of San Diego Law School.  And now the video proceedings of the seven papers are available.  The papers given at the conference, which involved various aspects of originalism, were as follows: 

• James Allan (Queensland), Australian Originalism without a Bill of Rights: Going Down the Drain with a Different Spin
  • Commentator: Grant Huscroft (Western Ontario)
• William Baude (Stanford Constitutional Law Center), Rethinking the Federal Eminent Domain Power
  • Commentator: Martin Redish (Northwestern)
• Thomas Colby (George Washington), Originalism and the Ratification of the Fourteenth Amendment
  • Commentator: Michael McConnell (Stanford)
• Allan Hutchinson (Osgoode Hall), Originalist Sin
  • Commentator: Larry Solum (Georgetown)
• Gregory Maggs (George Washington), Using Dictionaries from the Founding Era as a Source of the Original Meaning of the Constitution
  • Commentator: Lawrence Solan (Brooklyn)
• Gerard Magliocca (Indiana), John Bingham and the Drafting and Defense of the Fourteenth Amendment
  • Commentator: Earl Maltz (Rutgers)
• John McGinnis (Northwestern), Is Judicial Restraint an Originalist Method?
  • Commentator: Randy Barnett (Georgetown)

Andrew Hyman on Friedman and Lakier on the Commerce ClauseMichael Ramsey

Andrew Hyman comments:

Regarding the article by Friedman and Lakier ['To Regulate,' Not 'To Prohibit': Limiting the Commerce Power, noted here], they argue that the power to regulate interstate commerce does not include power to shut interstate markets down.  Friedman and Lakier properly concede that "it was clear that the power to 'regulate' foreign commerce included the power to ban it."  But they argue that regulation of interstate commerce is different from regulation of foreign commerce.  An important quotation alluded to (but not explicitly included) in their article is that the Constitution gives Congress power, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...."  It seems implausible to me that one single instance of one single word ("regulate") simultaneously has very different meanings. 

Further, I don't believe that the enumerated powers are a use-it-or-lose-it proposition; a much stronger argument than that would be needed to rebut the almost certain meaning of the plain text of Article I, Section 8.  The authors of this law review article do provide a long and ambiguous 1829 quote from James Madison to support their argument.  But that Madison quote is easily counterbalanced by an 1835 Madison statement (a year before he died); according to his interviewer, "He believed that Congress had power to prohibit the internal slave trade".  The interviewer, Harriet Martineau, elsewhere wrote that Madison "had no doubt whatever of such power being possessed by Congress, through the clause which authorises it to 'regulate commerce among the several states'."

Additionally, Friedman and Lakier have misconstrued historian David Lightner, citing Lightner for the proposition that “the silence of the Southern states on this issue” in 1787-1789 proves the Commerce Clause did not give this power to Congress.  What Lighter actually wrote is that southerners would not have accepted the Commerce Clause if they thought it could be used by Congress to destroy slavery, but they didn’t think it would do so because “the interstate slave trade was of minor significance in 1787 and slaveholders had no inkling of how it would burgeon in the next century.”  Lightner concludes, "The founding fathers had, however inadvertently, created a constitutional loophole with huge potential as an antislavery weapon."  So, Lightner was not saying that the silence of the Southern states on this issue proved anything about the meaning of the Commerce Clause.

The textual point here seems especially devastating.  I'd add that I'm fairly certain the power "To regulate Commerce ... with the Indian Tribes" also was commonly understood to encompass banning commerce in particular items.  Perhaps Professors Friedman and Lakier have a response, but I'm not sure what it would be.

Update:  Rob Natelson adds:

Regulating the Indian trade was, in fact, generally understood to include banning trade in certain kinds of items, notably liquor and firearms.  On the meaning of the Indian Commerce Clause, see http://constitution.i2i.org/sources-for-constitutional-scholars/indian-commerce-clause/

 

More on McBurney and Article IVChris Green

I had a couple of notes on McBurney v. Young, from the Supreme Court yesterday, which Mike mentions below. I did a short podcast on the case here; for my reaction to the argument, see here.  

The Supreme Court in McBurney at page 6 saw FOIA rights as political rights: "The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power." Mike mentions Stewart Jay's article on the original meaning of Article IV, which Jay thinks applies even to political rights like voting and office-holding, and, one would think, FOIA rights too.  But it's hard to square the inclusion of political rights in Article IV with Jay's approval of the very widespread residency limits on such rights (see pages 56 to 59 and notes 268 to 271). Residency requirements are citizenship requirements, at least under the Fourteenth Amendment's "and of the state wherein they reside" state citizenship rule, which I take it was generally seen as declaratory of earlier law (see, e.g., here).

More on Prosecutorial DiscretionMike Rappaport

As Mike Ramsey recently noted, President Obama’s order not to enforce the immigration laws against certain illegal immigrants (who came to the US as children) has been challenged.  The basis of the challenge is that Obama's order is inconsistent with the governing statute.  The District Court recently held that the plaintiffs are likely to prevail in their claim, although it has ordered additional briefing on a jurisdictional issue.  The court wrote that the statute used the word “shall” and therefore imposed a mandatory duty on the executive.

Let’s assume that Congress did take away the President’s prosecutorial discretion.  Is that constitutional?  Mike is skeptical that Congress can take away prosecutorial discretion, but I am not.  In my opinion, Congress can do so, at least under the Constitution's original meaning.  First, the President is normally required to follow laws that Congress passes.  Even if the President does not like the law, that does not give him the right to ignore it.  The King of England once asserted that power, but the Glorious Revolution ended it and the Take Care Clause adopts that principle for the U.S. Constitution.  Thus, if Congress says that all persons who are 65 years of age and meet certain conditions are entitled to Social Security benefits, the President cannot ignore the statutory directive.  Similarly, if Congress says persons meeting other conditions are not entitled such Social Security benefits, the President must also respect that requirement.

Second, it is important to distinguish cases of criminal prosecution, civil lawsuits, and civil entitlements (like Social Security).  The strongest case historically for allowing prosecutorial discretion involves criminal prosecution.  The executive will often not have the resources to bring all cases and there are a variety of factors that are involved, such as ease of proving guilt and the wrongfulness of the action.  It is not clear how these various factors should be weighed against one another.  In the absence of Congress specifying how to allocate the executive’s limited resources, it is assumed the prosecutor enjoys discretion to take these factors into account and to weigh them.

Third, but what if the Congress attempts to take away this discretion?  To do so, it must make a decision as to how the executive should behave.  One law that was reviewed by the Supreme Court in Dunlop v Bachowski (1975) involved a provision of a labor statute which provided that upon filing of a complaint by a union member, the Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation has occurred, he shall bring a civil action.   This provision, which requires the Secretary to bring actions whenever he believe there is probable cause of a violation, significantly takes away his discretion.  I think that this is constitutional and would be constitutional even if it involved criminal prosecutions.  The reason there has been prosecutorial discretion traditionally is that it makes sense to grant that discretion because it is so hard to adopt a sensible alternative arrangement.  The provision in Dunlop could lead to serious problems if applied more generally.  But that does not mean it is unconstitutional.

Thus, if it turns out that the immigration statute takes away the President's discretion, then I believe the statute would be constitutional.

(Cross posted at the Liberty Law blog)

Supreme Court Decides Privileges and Immunities CaseMichael Ramsey

Yesterday's decision in McBurney v. Young unanimously reaffirmed the Court's underexamined approach to the Article IV privileges and immunities clause, holding (per SCOTUSblog) that:

Virginia’s Freedom of Information Act, which grants Virginia citizens access to all public records, but grants no such right to non-Virginians, does not violate the Privileges and Immunities Clause, which protects only those privileges and immunities that are “fundamental.”

But if Stewart Jay is right, that's the wrong (originalist) way to look at it.  Here again is the provocative abstract from his recent paper:

The Privileges and Immunities Clause of Article IV provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” According to Alexander Hamilton, the clause was “the basis of the union,” which may seem odd given its minor significance in modern constitutional law. Part of the reason for its relative unimportance today is the development of constitutional doctrines unforeseeable in the eighteenth century: the invention of the Dormant Commerce Clause and the enactment of the Fourteenth Amendment, which prohibit much of the interstate discrimination that Article IV’s clause was intended to prevent. However, a major explanation for the unseemly fate of the clause lies with early judges who were not faithful to its original purpose. Courts and scholars have perpetuated their errors.

The clause had one overriding purpose: to assure that Americans were not treated as aliens when in states away from their place of citizenship. It was intended to preserve the benefits that Americans had as British subjects, to be afforded the same as local residents anywhere in the country. The advantages of citizenship (or being a subject) were many, ranging from the protection of life, limb, and property to commercial advantages and access to public resources. The multifarious meanings of “privileges” and “immunities” in eighteenth-century writings show that they encompassed every kind of advantage that came from citizenship. This is why Hamilton could claim the clause was “the basis of the union".

There is compelling reason to conclude that the Privileges and Immunities Clause was intended to guarantee Americans traveling or temporarily residing in another state, or doing business or owning property outside their home states, that they would be treated exactly like the local people, without exception, and regardless of whether the right was recognized by other states, including their own. No court and no scholar has ever reached this conclusion, but it is amply supported by the evidence presented here.

Professor Jay is an outstanding and cautious scholar, so if he says something with this level of confidence, it's likely true.  Perhaps the Court can be encouraged at some point to take a closer look at the issue.

Barry Friedman & Genevieve Lakier: 'To Regulate,' Not 'To Prohibit'Michael Ramsey

Barry Friedman (New York University School of Law) and Genevieve Lakier (University of Chicago Law School) have posted 'To Regulate,' Not 'To Prohibit': Limiting the Commerce Power on SSRN.  Here is the abstract:

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.

More Material on Recess AppointmentsMichael Ramsey

At Volokh Conspiracy, John Elwood comments on the cert. petition and posts a helpful list of materials on the issue.  Some notable obervations:

[The government's petition sets forth] a detailed argument, defending the appointments on originalist grounds and seeking to refute the D.C. Circuit’s conclusion that recess appointments can only be made during intersession recesses and only to fill vacancies that arose during the recess. It looks to me like it incorporates a fair amount of research into founding-era recess appointments that had not been undertaken even as recently as Edward Hartnett’s important 2005 article on the subject. For example, the brief cites a couple of recess appointments by President Washington (Pet. 25 n.10) that it argues conflict with the view that the vacancy must arise during the recess of the Senate, neither of which Hartnett mustered during his fairly detailed discussion of the first President’s practices (see pp. 384-387).

The post also links to this Reuters report that "Gary Lofland, the Seattle attorney representing Noel Canning, said they would encourage the court to take the case."

Michael Stokes Paulsen: The Plausibility of PersonhoodMichael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The Plausibility of Personhood (74 Ohio State Law Journal 14 (2012)) on SSRN.  Here is the abstract:

Is a living human embryo or fetus a “person” within the legal meaning of the term, as used in the Fourteenth Amendment to the U.S. Constitution? This article argues that this question is close, difficult, and exceedingly important. Roe v. Wade, of course, answered the question “no,” yet the Court acknowledged that, if the legal personhood of the fetus could be established, the case for a right to abortion “collapses” – “for the fetus’ right to life would then be guaranteed specifically by the Amendment.” The Court nonetheless gave the question only passing attention in Roe, and subsequent scholarship for the most part has not addressed the question in a serious, balanced, systematic fashion.

This article examines the issue of the constitutional personhood of the human fetus from the perspectives of the full range of usually-accepted methods of constitutional interpretation – text, structure, evidence of historical intention, precedent or practice, and policy – and concludes that the case for personhood is at least plausible and arguably much stronger than the case for the opposite conclusion that was the essential first premise of Roe.

Update on Immigration and Prosecutorial Discretion (and Recess Appointments)Michael Ramsey

The challenge to President Obama's order not to enforce the immigration laws against certain illegal immigrants (Crane v. Napolitano) has taken another step forward: the trial judge found the challengers have a likelihood of success on the merits (in the context of a request for a preliminary injunction).  However, the court ordered additional brief on a jurisdictional issue (whether the challenge -- which is brought by immigration enforcement agents -- should be resolved administratively as an employment matter).

On the merits, the court's opinion finds that the word "shall" in the relevant statute is mandatory, leaving no room for discretion.  This leads to a constitutional question: is it unconstitutional for Congress to eliminate prosecutorial discretion?  That argument gets rejected, with the court giving this analysis:

When the Executive “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and “[c]ourts can sustain exclusive [executive] control in such a case” only if that particular subject matter “is within [the Executive’s] domain and beyond control by Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–40 (1952) (Jackson, J., concurring). Because Section 1225(b)(2)(A) expressly requires immigration officers to initiate removal proceedings against applicants for admission who are not “clearly and beyond a doubt entitled to be admitted,” the Court can uphold DHS’s discretion to refrain from initiating removal proceedings under those circumstances only if Congress does not have power to legislate in the area of immigration law with regard to the removal of aliens.

Congress’s power over immigration is rooted in the Constitution, is inherent in the powers of sovereign nations, and is an incident of international law. U.S. Const. art. I, § 8, cl. 4 (“The Congress shall have power . . . [t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.”); Chae Chan Ping v. United States, 130 U.S. 581, 603–07 (1889) (“That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”); ...  Congress unquestionably has the ability to legislate in the area of immigration law with regard to the removal of aliens. Because immigration law is not “within [the Executive’s] domain and beyond control by Congress,” Congress has the ability to eliminate DHS’s discretion with respect to when to initiate removal proceedings against an alien, and DHS cannot implement measures that are incompatible with Congressional intent.

On a quick read, that doesn't seem clearly right to me.  The question isn't whether immigration is an area "within [the Executive’s] domain and beyond control by Congress," but whether immigration enforcement (and thus, more broadly, law enforcement) is.

Further, as I have tentatively suggested, immigration may be an area where the President has a stronger degree of constitutionally protected discretion.

(Via Paul Mirengoff at PowerLine.  Also, commentary here from William Jacobson at Legal Insurrection).

(For academic commentary on the broader issues, see here).

SOMEWHAT RELATED: The administration's petition for certiorari from the U.S. Supreme Court in the recess appointments case, filed yesterday, is here.  (Via SCOTUSblog).

More on Originalism and Same Sex Marriage: A Response to Mike RamseyMike Rappaport

My position on the constitutional question of whether gay marriage is required is that there are reasonable interpretations on both sides of this issue.  One danger of such a position is that it puts one in a no win position, but – hey – you have to go where the evidence leads you.  Mike Ramsey (with arguments I mainly agree with) has been responding to critics of the argument that the 14^th Amendment does require same sex marriage.  Here I want to respond to Mike’s criticisms of the arguments that I offered for why one might conclude that same sex marriage is not required.

Mike focused on one small part of my post addressing the issue whether sexual orientation is like race.  Rather than get into this issue – perhaps I will in the future – I want to note that Mike fails to address the basic question as to how we identify what moral rules are sufficient for justifying the law drawing a distinction under the 14^th Amendment.  This is a potentially independent reason for not requiring gay marriage.  I had noted that at the time of the Amendment traditional moral rules would have been deemed to be a sufficient basis for a law to draw a distinction.  (Under one theory, a law that drew a distinction based on traditional morality would not be seen as class legislation.)

One response that Mike appears to make is that there were moral objections to interracial behavior.  Mike writes: “But many laws that discriminated on the basis of race involved behavior that people at the time thought was immoral.  For example, consider the various rules that prevented blacks and whites from associating in public.”  Thus, he seems to suggest that relying on traditional morality proves too much, since it seems to allow laws that discriminate based on race.

But Mike's argument does not indicate that traditional moral principles could not serve as a constitutional basis for drawing distinctions.  One way to read the 14^th Amendment is that it treated racial distinctions as extremely problematic – as paradigmatic instances of arbitrary laws – but left other distinctions to be determined by more general principles.  Put differently, racial distinctions were core cases of class legislation, but other distinctions were not.  In that event, one needs a method of determining what moral distinctions were permissible.  Allowing traditional moral distinctions  has much to be said for it as an interpretation of what the 14^th Amendment allowed.

One might wonder what justifies treating racial distinctions that some might regard as justified by traditional morality differently than other aspects of traditional morality.  But, first, it is not clear that traditional morality generally, as opposed to morality in some areas of the country, approved general racial distinctions.  Second, it is not uncommon for people to use a term such as equality in the manner described – as adopting a principle (prohibiting class legislation and allowing traditional morality to stand as showing that something is not class legislation) while at the same time treating a core case as being prohibited under that principle (race discrimination is prohibited, even though some regard it as traditional morality).

I said at the beginning of this post, I think there are reasonable arguments on both sides of this issue.  So I am disagreeing with Mike not because I believe his argument in favor same sex marriage is wrong, but because he seems to claim that the argument against same sex marriage is unreasonable.

(Cross posted at the Liberty Law Blog)

Mike Ramsey clarifies:  I did not mean to suggest that the originalist argument against a constitutional right to same-sex marriage is unreasonable.  My claim is only that the originalist argument in favor is plausible.