Lawrence Solan & Tammy Gales
Michael Ramsey

Lawrence M. Solan (Brooklyn Law School) and Tammy A. Gales (Hofstra University) have posted Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? (The International Journal of Legal Discourse, forthcoming) on SSRN.  Here is the abstract:      

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning”. The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis. 

We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States, at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss. 

We look first at linguistic literature based largely on intuition, then at dictionary definitions, and finally at a corpus. Examining hundreds of examples from the Corpus of Historical English (COHA) developed at Brigham Young University, we find that the verb “defraud” is virtually always used to describe a situation in which the object of the fraud is also the target of the ultimate loss. Analyses based on the intuitions of linguists and on dictionary definitions are consistent with this result, although less robust. We conclude that if the Court wishes to be faithful to the ordinary meaning of the statutory language, it should rule that the statute does not apply to this situation.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!").


Justice Scalia & John Manning on Statutory and Constitutional Interpretation
Michael Ramsey

From 2012, but recently posted on SSRN, Antonin Scalia (U.S. Supreme Court) and John Manning (Harvard Law School): A Dialogue on Constitutional and Statutory Interpretation (80 Geo. Wash. L. Rev. 1610 (2012)).  Here is the abstract:      

This dialogue addresses oft-discussed questions of statutory and constitutional interpretation.  The topics include the reasons for treating statutory text as determinative, the arguments for not treating legislative history as authoritative evidence of statutory meaning or legislative intent, the permissibility of excising absurd results and/or scrivener’s errors from a statute’s scope, the proper method of interpreting often-technical legal texts, and the differences between statutory and constitutional interpretation (with emphasis on the proper role for The Federalist in constitutional adjudication).

It's mostly about statutory interpretation, but there's this of note on constitutional interpretation (Scalia responding to a question about why he would use "legislative history" such as the Federalist Papers to interpret the Constitution although he refused to use legislative history to interpret statutes):

I cite The Federalist, but not because it's legislative history. I don't rely on the views of its authors because they were present at the writing of the Constitution-because since they wrote it, they must know what it means. That's not the reason. One of the authors, John Jay, did not attend the Philadelphia Convention.

Nor do I rely on The Federalist because the ratifiers must have known and agreed with it. (That's the kind of unrealistic assumption the practitioners of legislative history use.) I rely on it because it sets forth the views of intelligent, well-informed persons of the time, which are entitled to great weight on the basis of their experience and their closeness to the process. For similar reasons, I'll consider what Thomas Jefferson says, though he also was not present at the Constitutional Convention and though his words were most unlikely to have been before the ratifying conventions. His words won't be conclusive, but they may supply a persuasive indication of what the Constitution meant to the people at the time. That's quite different from legislative history.


More on Originalists Against Trump
Michael Ramsey

At The Atlantic, Conor Friedersdorf: The 'Originalists Against Trump' Manifesto.  He adds this argument: 

The few prominent originalists who support Donald Trump fail to understand not only the shortcomings listed [in the anti-Trump statement], but the catastrophe that will befall the originalist cause if the GOP rallies around a president as he subverts originalism. In that case, neither major political coalition would be defending the approach. It is far better, from an originalist perspective, to have one major party working on behalf of originalism, even if that party does not control the presidency for the next four years, than to have the only party that might plausibly advance that agenda be overtaken by a man who neither understands nor respects the Constitution.

There are plenty of reasons to oppose Trump but I am not persuaded that this is one.  True, if Republicans "rall[y] around [Trump] as he subverts originalism," that would be bad for originalism.  But I'm doubtful this will happen.  I don't think Republicans (especially Republican intellectuals and Republican congressional leaders) are likely to rally around Trump.  More likely, they will chart an independent course, perhaps in alliance with Democrats who would seek to use the Constitution to limit potential Trump excesses.

Further, I don't think it's ultimately a productive situation to have only one major party working for orignalism.  As the originalists-against-Trump statement says, originalism need not be a partisan issue.  But for it not to be, Democrats need to see some advantage to it.  Here's one advantage: it limits the power of the President.  A Trump presidency would highlight that point.  That might not be a bad thing.

(Thanks to Michael Perry for the pointer).


William Baude & Stephen Sachs: Originalism's Bite
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen Sachs (Duke University School of Law) have posted Originalism’s Bite (forthcoming, Green Bag 2d) on SSRN. Here is the abstract:     

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.

Bonus: only 6 pages long.


Originalists Against Trump
Michael Ramsey

A group of originalist scholars has posted a statement condemning Trump and his treatment of the Constitution. Here is Originalists Against Trump's full statement: 

We, the undersigned lawyers and scholars, are committed to the original meaning of the Constitution of the United States. We write to oppose the election of Donald Trump.

Our Constitution vests in a single person the executive power of the United States. In light of his character, judgment, and temperament, we would not vest that power in Donald Trump.

Many Americans still support Trump in the belief that he will protect the Constitution. We understand that belief, but we do not share it. Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.

  • The President must take care that the laws be faithfully executed; he admires dictators as above the law.
  • The President must serve as Commander in Chief, enforcing rules for the government and regulation of the land and naval forces; he praises armed repression and makes light of the laws of war.
  • The President must hold a public trust on behalf of all Americans; he courts those who would deny to others the equal protection of the laws.
  • The President must preserve, protect, and defend the Constitution; he has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.

We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so. More importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.

Whatever reasons there might be to support Donald Trump, the Constitution is not among them.

We are under no illusions about the choices posed by this election—or about whether Hillary Clinton, were she elected, would be any friend to originalism. Yet our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.

Originalism is a commitment to the Constitution, not to any one political party. And not every person who professes support for originalism is therefore prepared to be President. We happen to see Trump as uniquely unsuited to the office, and we will not be voting for him.

We urge all like-minded Americans to vote their consciences in November. And we call on them, through their voices and their ballots, to deny the executive power of the United States to a man as unfit to wield it as Donald Trump.


Prof. Jonathan H. Adler
Case Western Reserve University School of Law

Prof. William Baude
University of Chicago Law School

Prof. Josh Blackman
Houston College of Law

Prof. Steven G. Calabresi
Northwestern University Pritzker School of Law

Oren Cass
Domestic Policy Director, Romney-Ryan 2012

Prof. Bernard J. Dobski
Assumption College

Prof. Richard A. Epstein
New York University School of Law
Hoover Institution
University of Chicago Law School

Prof. Christopher Green
University of Mississippi School of Law

Josh Hammer

Jameson Jones

Prof. Richard Kay
University of Connecticut School of Law

Prof. Benjamin Kleinerman
James Madison College, Michigan State University

Prof. Stephen F. Knott
Author of Washington and Hamilton: The Alliance That Forged America

Yuval Levin
The Ethics and Public Policy Center

Prof. Nathan B. Oman
William & Mary Law School

Prof. Michael Stokes Paulsen
University of St. Thomas School of Law

Prof. David G. Post
Temple University Law School (ret.)

Prof. Jeremy A. Rabkin
Antonin Scalia Law School, George Mason University

Prof. Stephen E. Sachs
Duke University School of Law

Kristen Silverberg
Former U.S. Ambassador to the European Union

Prof. Steven D. Smith
University of San Diego School of Law

Prof. Stephen F. Smith
Notre Dame Law School

Prof. Ilya Somin
Antonin Scalia Law School, George Mason University

Prof. Kevin C. Walsh
University of Richmond School of Law

Adam White
Hoover Institution

Prof. Greg Weiner
Assumption College

Prof. Keith E. Whittington
Princeton University

George F. Will

Prof. Michael P. Zuckert
University of Notre Dame

(Institutional affiliations are for identification purposes only; this statement does not represent the views of these or any other institutions. For further information or to be added as a signatory, please contact originalistsagainsttrump@gmail.com .)

Plus comments from signers Ilya Somin (here) and Josh Blackman (here).

Some people may infer that I support Trump from the fact that my name is not on the list.  They would be mistaken.  There are various reasons not to sign a group statement that have nothing to do with its conclusion.

While not conclusive, I would add this point: it's not clear to me that a Trump presidency would be bad for the Constitution or for originalism.  As the statement says, "our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration."  I think we might emerge from a Trump presidency with renewed appreciation for our system of separation of powers, federalism, limited government, an independent judiciary and the rule of law.  In particular, I think people on the left might do so.  And if these values are to prevail, they must prevail on the left as well as the right.  So in truth the idea of President Trump does not worry me as much as it seems to worry many people.  (Plus it would be a big boost for people who write about the limits of executive power).  But that doesn't mean he gets my vote.


Justice Scalia and Congress’s Power to Regulate Immigration
Mike Rappaport

In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas.  But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds.  One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration.

In Arizona v. United States, Justice Scalia started strong, initially questioning the federal government’s general authority to regulate immigration.  That also led him to recognize, again rightly in my view, that the states would then enjoy more power over immigration.

But unfortunately Justice Scalia then made an enormous mistake.  While he recognized that Congress first passed a general immigration law only in 1882, he wrote:

I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States.  As this Court has said, 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.’”  Fong Yue Ting v.  United States, 149 U. S. 698, 705 (1893). . . . That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”

This is extremely weak.  First, what international law says about the United States is not the relevant question.  What is relevant is what the Constitution says about the matter, and the Constitution does not give Congress authority over immigration.  Congress does have the power to enforce offenses against the law of nations, but that would not confer power to regulate immigration (since immigration is not an offense under international law).  Second, there is no conflict with international law.  The entire immigration power would be shared between the federal government and the states, which would meet any international law expectations for the country.  Third as I have stated before, the Migration and Importation Clause does not acknowledge a general immigration power, but is best read as merely recognizing that Congress has some power over immigration through its Commerce Clause authority.  Congress could, for example, regulate ships that are coming from other nations and pass restrictions on immigration as to those ships.  Congress could also regulate immigration coming through the territories (which was a large part of the US in the early years) through its power to pass legislation as to the territories.

Claiming that the federal government possesses an immigration power through an inherent attribute of sovereignty is a stake in the heart of the enumerated powers and the Tenth Amendment.  This isn’t even reading an acknowledged power broadly, like the Commerce Power.  It is just making up a new power where there is no textual indication.  It is hard to believe that the Tenth Amendment does not forbid this.

Interestingly, Justice Thomas did not join Scalia’s opinion, even though Thomas largely agrees with Scalia on the preemption questions in the case.  One interesting possibility is that Thomas did not join Scalia because Thomas does not agree that the federal government has, as an original matter, the power to regulate immigration as part of its inherent sovereignty.

Scalia’s position in this case is especially unfortunate, as he had an alternative ground to found his position: judicial precedent.  Scalia could have simply argued that judicial precedent had recognized such a power for more than a century and therefore he would follow it.  But he did not do that; instead, he addressed the original meaning issue and failed miserably.

Even Homer nods, and one should not make too much about this mistake.  Justice Scalia was a giant and one can only expect so much.  But if we are going to discuss his problematic opinions, this was one of the worst from an originalist perspective.

Chris Kozak: Originalism, Human Trafficking, and the Thirteenth Amendment
Michael Ramsey

Chris Kazak (Michigan State University College of Law JD '17) has posted Originalism, Human Trafficking, and the Thirteenth Amendment (XI Southern Journal of Policy & Justice, 2017, forthcoming) on SSRN.  Here is the abstract:     

Human trafficking is often described as a form of “modern slavery” that violates the Thirteenth Amendment. Congress has passed an expansive scheme of civil and criminal human trafficking legislation on the premises that human trafficking is a “contemporary manifestation of slavery” and that the Thirteenth Amendment gives the U.S. Government power to eradicate it. But is this legally accurate? This Article argues that it is. Moreover, it argues that an originalist analysis of the Thirteenth Amendment leads to this conclusion. While human trafficking is not slavery in an originalist sense — because traffickers do not own their victims — the original meaning of the Amendment’s prohibition on involuntary servitude reaches the condition of every person who is forced to work for another. In addition, unlike other human-rights guarantees in the Constitution, the Amendment has historically pierced the state-action barrier and constricted purely private conduct — and originalism does not require otherwise. Finally, an originalist understanding of the Amendment’s enforcement clause permits Congress not only to punish particular forms of involuntary servitude, but also to attack four historical “markers” of involuntary servitude, in the same way that Congress has always been able to act against the historical “badges and incidents” of slavery.


The Journals Clause
Seth Barrett Tillman

Perhaps you might know that I have had occasion to write on the Constitution’s usage in regard to office and officer. Recently, I let it be known that I hoped other scholars might allow me to pass to them the intellectual baton, and we would see where they go with it. So I was pleased (albeit surprised) when an academic wrote me:

[Y]ou mentioned in your response that you’d encourage students looking for research projects to dive into the office/officer debates. Quite a few of the new members of the [law review] are indeed looking for research projects and some have asked for advice. Do you have any specific points of research or questions you’d recommend? I understand if you’re hoarding all of the good ones for yourself, but thought I would ask.

What struck me about this question was: (1) the somewhat disappointing realization that no one had asked me this question before; and (2) the writer’s expectation that I (and perhaps others) might be hoarding “good” ideas.

So it got me thinking: Do I “hoard” ideas? I don’t think I do. But that’s a low bar. The test ought to be: Do I actively promote interesting ideas?

So in the interest of promoting interesting ideas, I am going to put one forward here.

I have had the itch to write a paper on the Journals Clause for many years. But it was always near the bottom of the list, and if it began to rise to the top, some intervening event or publication by another required (I thought) my more immediate attention. After all these years, I would still like to find time to write that paper, but if the past is prelude, I expect I will not find that time (particularly, as I am increasingly pressed to write more on Irish law).

So what is the idea? The Journals Clause (a/k/a Article I, Section 5, Clause 3) states:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

The key word in the clause is “keep”. The standard view is that it means “maintain” or something akin to “maintain”. There is not a lot of post-ratification discussion of the clause—except for the debate on the Senate Expunging Resolution from circa 1837. As to preratification, the consensus view is that the clause was grounded in norms relating to accountability & responsibility, and publicity & transparency. See, e.g., David F. Forte, House Journal, in The Heritage Guide to the Constitution (2d ed. 2014). That’s the standard narrative.

The problem with the standard narrative’s interpretation of the Journals Clause (as with so many other constitutional provisions) is that it is a very poor fit against the actual language and original meaning of the clause. To see that, you first have to understand what a parliamentary journal is. A parliamentary journal is the legislative equivalent of a judicial docket: it is a barebones record of motion practice before the body, and it records decisions (i.e., legislative orders) taken by the body. But just as judicial orders do not customarily record judicial reasoning (in extensio), parliamentary journals do not customarily record debate (in extensio). This functional equivalence between parliamentary journals and court dockets should not be surprising: the 18th century houses of the British parliament were courts of record, as were many of the colonial parliamentary houses. See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) (explaining long-established Connecticut practices). As to achieving some semblance of political responsibility by publishing the “Yeas and Nays,” that could be undone by simple majority action—i.e., by committing the contested portions of the journal to “secrecy”.

Let me now suggest a wholly different view of the clause. It is a view I am attracted to, but I admit I cannot prove it (at least not today, while I am in Ireland). Still I suspect a dedicated researcher might find materials supporting my thesis. But a note of caution: there are some risks here too. If my position is entirely wrong, you could spend a lot of time, and find nothing for all your efforts. And that will not make much of a paper.

I suggest “keep” does not mean maintain. Perhaps “keep” means “control,” “own,” or “possess”. Without the Journals Clause, it might be argued that a House or Senate journal is property of the United States to which the Executive Branch might lay claim, particularly between breaks between biannual Congresses and also during (proper parliamentary) recesses between sessions (as opposed to mere adjournments within a single parliamentary session). The effect of the Journals Clause is to vest each house of Congress with something akin to a property right and also to command each house to “possess” its Journal, not against the public, but against the President and his minions. In a sense, the Journals Clause is an analogue to the House Officers Clause and Senate Officers Clause, which exclude the President from participating in the selection of House and Senate officers. See Article I, Section 2, Clause 5 (House Officers Clause); Article I, Section 3, Clause 5 (Senate Officers Clause). The irony here is rich. The ever-expanding and progressive chronological additions to each house’s official journal (along with other congressional records) have been regularly archived with the National Archives and Records Administration—which is exactly what Congress was commanded not to do (assuming my hypothesis is correct).

So if you are a law student writing a research paper or student note, a student or fellow in some non-law programme, an academic, or just an aficionado of ideas, and if you should use this idea … then cite my Originalsm Blog post, for having had the germ of the original idea, in a footnote (and, perhaps, in the main text); send me a preliminary draft and a reprint when finalized; post your paper on SSRN and BEPRESS; and when next you are in Dublin, you are buying.

Matthew Waxman: The Power to Wage War Successfully
Michael Ramsey

Matthew C. Waxman (Columbia Law School) has posted The Power to Wage War Successfully (Columbia Law Review, forthcoming) on SSRN.  Here is the abstract:      

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. It was in that address that he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers issues of its day — namely a national draft and intrusive federal economic regulation. It also shows, however, how he struggled unsuccessfully to define when war powers should turn off, or revert to peacetime powers. The story of Hughes’s defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of wars against transnational terrorist groups.

In my view, and with all respect to Hughes, it should be clear that as an original matter the power to wage war is not the power to wage war successfully.  Indeed, that proposition is the antithesis of the framers' idea of limited government.  But Hughes' view -- that Congress' powers expand as needed to accomplish what he thought ought to be accomplished -- is typical of the Progressives' outlook of the time.


Greg Weiner on Limiting the Court, Empowering Congress
Michael Ramsey

At Liberty Law Blog, Greg Weiner: The Constitutional Work Before Us.  From the introduction:

The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.

And in conclusion:

The current campaign has made the case for Congress in striking terms. The presidency can be seized by impulsivity. Corrupting five of nine justices—that is, corrupting them constitutionally, with inflated notions of importance—takes little imagination. That the most consistent complaint against Congress is inactivity is a compelling reminder of the difficulty of coopting the totality of the legislative branch. If power is the problem, then dispersal, and consequently Congress, is the answer.

There will be voices for constitutionalism in Congress next January. How many depends on how many more fires Trump or Clinton set. But there was no such voice at the debate Sunday night. So deprive those on the stage, one of whom will occupy the White House, of power. Deprive the justices that one of them will appoint of power. Then restore it to the legislative branch where, constitutionally, it already belonged.


Stephen Gardbaum: What Is Judicial Supremacy?
Michael Ramsey

Stephen Gardbaum (UCLA School of Law) has posted What Is Judicial Supremacy? (Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., Elgar Publishing), forthcoming) on SSRN.  Here is the abstract:      

Judicial supremacy is a concept frequently employed in both domestic and comparative constitutional theory but rarely carefully defined and systematically analyzed. Scholars typically either assume its meaning or quickly state how they are using the term before warming to their major theme, focusing on some other aspect of judicial supremacy: how did it emerge, what explains its acceptance by other branches of government, is it or should it be tempered in practice by courts not straying too far from the popular will, is it a good, bad, or practically necessary feature of a constitutional system? Jeremy Waldron's observation that the term has "no canonical definition" suggests that it is not always used in uniform fashion but rather in somewhat different ways in different contexts. Moreover, this range of uses helps to explain why, on only slightly closer inspection, various critics or skeptics of "judicial supremacy" around the world ― departmentalists, "hollow hopers," constitutional dialogists ― do not all seem to be making the same point, but appear to be interlocutors in a number of discrete conversations, differing in both the type and content of their arguments and the positions they are marshaled to support.

This chapter attempts to provide the systematic analysis of the concept that is mostly missing and that is a prerequisite for understanding and assessing the several debates in which it plays a central role. It also aims to evaluate its usefulness as a concept in the toolbox of comparative constitutional theory. Part II identifies and disaggregates four distinct senses or conceptions of judicial supremacy in the relevant literatures, what I shall refer to as "interpretive," "attitudinal," "decisional," and "political supremacy" respectively. It also shows that corresponding to each of the meanings is a distinct opposing or skeptical position. Part III illustrates the multiple meanings by looking at recent resolutions of the same-sex marriage issue by different institutions and mechanisms ― courts, legislatures, popular referenda, courts and legislatures ― in many constitutional systems over the past decade. Part IV attempts to asses the utility of judicial supremacy as a concept in comparative constitutional theory by asking what and how much is at stake in the debates between each conception and its critics. The chapter concludes that, as delimited by the four senses identified, although not as sometimes exaggerated or conflated, it is indeed a useful, non-unitary concept. Its essential status in the field, however, likely turns on further comparative experience.


John McGinnis on Justice Scalia and Precedent
Michael Ramsey

At Liberty Law Blog, John McGinnis: Scalia Failed to Create a Rule of Law for Precedent.  From the introduction:

. . .  Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.

In the constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the  original meaning of the Constitution was one in which he argued for following precedent:  “I am an originalist, not a nut.”  Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule.  It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.

And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule.  As a result, he is open to the criticism that he picked and chose among precedents he liked (or at least could live with) and those he hated. ...

I agree that (a) Justice Scalia had no comprehensive theory of precedent, coming dangerously close to respecting precedents he liked and rejecting those he didn't, and (b) this is a serious problem for his jurisprudence as a whole.  I also think that many criticisms that purport to attack Scalia's use of originalism are actually attacks on his use of precedent.  For example, one common attack is that he embraced constitutional limits on regulatory takings without adequate originalist justifications.  But as Michael Lewyn shows here, Scalia's regulatory takings jurisprudence was based on precedent, not originalism.  That isn't a full defense, though, because Scalia did not explain why he chose to extend the regulatory takings precedents rather than abandon them.


The “Interstate Pressure Clause” and Protection of Endangered Species
Andrew Hyman

At this blog, I have previously argued that the Constitution does not allow the federal government, without consent of the states, to infringe upon the powers that are otherwise reserved to the states, through the process of making and executing treaties.  That same issue was addressed in U.S. Supreme Court cases like Missouri v. Holland (1920) and Bond v. United States (2014).  Missouri v. Holland involved federal power to protect migratory birds, and the Court said such protection is fine, even though that power is normally reserved under the Tenth Amendment.

The judiciary’s approval of almost unlimited power under the Treaty Clause has been accompanied by a similar stance as to the Commerce Clause.  But, in November 2014, a U.S. District Court in Utah struck down an Endangered Species Act regulation that purportedly protected the Utah Prairie Dog under the Commerce Clause.  The Pacific Legal Foundation has links to briefs in the case, which is pending in the Tenth Circuit, here (click on “Documents”).

I am not involved in the case, and tend to agree with the plaintiffs that the Commerce Clause cannot reasonably be extended so far.  Putting this together with my opinion about the Treaty Clause, I deny the constitutionality of both Missouri v. Holland as well as the Endangered Species Act.   This is an uncomfortable position for me to be in, because I very much support rescuing endangered species, and I do not think the individual states will always do a decent job if left to their own devices.  Despite feeling uncomfortable, I strongly oppose reading my personal preferences into the Constitution, and of course the amendment process is always available under Article V, onerous though it may be.

But, there may be a nice escape hatch to get out of this predicament, because the Constitution apparently provides a way to develop a truly effective national policy on endangered species, as well as many other matters of a similar type.  To understand this overlooked constititutional opportunity, one can look back to an important incident during the founding era, documented (for example) in a new book by Harvard legal historian Michael J. Klarman, titled The Framers' Coup: The Making of the United States Constitution (Oxford U. Press, 2016).  Rhode Island was the last of the 13 colonies to ratify the Constitution, and they had to be pressured by Congress to ratify.  In particular, the U.S. Senate passed in 1790 a bill forbidding importation of products from Rhode Island, barring U.S. ships from docking in Rhode Island and vice versa, and threatening other very stern measures; the House carefully delayed consideration of the bill so that it would still be pending when Rhode Island took the key vote in favor of ratifying the Constitution (see Klarman’s pages 527-529).     

So, the founding generation must have understood that the Commerce Clause of the Constitution could be used for purposes of pressuring states to do things that they might otherwise not do.  And that includes protecting endangered and threatened species.  This becomes even more clear from another constitutional provision: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress."  Now that the United States is more economically interconnected than ever, Congress has an almost limitless menu of ways to commercially pressure states to do things.

Another provision of the Constitution that is often overlooked is the one that says this: “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State….”  (though “No State shall enter into any Treaty”).  Congress could easily use its powers under the Commerce Clause (or at least its power to approve state taxes on imports) to pressure recalcitrant states into agreements about Endangered Species, and all sorts of other things.  I suspect that such agreements would result in a much smaller federal administrative bureaucracy that would focus more on monitoring and coordinating states, that would allow states much greater leeway in formulating and accomplishing national goals, and that would replace the more heavy-handed, centralized, and unconstitutional arrangement that we have now. So those members of the judiciary who are tempted to overstretch the Constitution in order to protect the Utah Prairie Dog should relax, in my view.

In recent decades, the federal government has often used a carrot rather than a stick to get states on board with federal programs, mainly by conditioning receipt of federal funds upon cooperation by the state.  But the U.S. Supreme Court has said that the condition must be related at least to the purpose of the federal expenditure.  In South Dakota v. Dole (1987), for example, the Court said: “the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended - safe interstate travel.”  In contrast, it tentatively seems to me that the ability of Congress to approve state taxes on imports from another state is not limited by any relatedness principle, even though the purpose of coercive federal action under the Commerce Clause may perhaps have to be related to interstate commerce.

D.C. Circuit Channels Justice Scalia, Finds Consumer Financial Protection Board Unconstitutional
Michael Ramsey

Per Judge Brett Kavanaugh [Randolph concurring, Henderson not joining the constitutional holding] in PHH Corporation v. Consumer Financial Protection Board (holding unconstitutional the statutory provision making the CFPB's director independent of the President).  From the introduction to the opinion [the opinion itself being 102 pages long]: 

This is a case about executive power and individual liberty. The U.S. Government’s executive power to enforce federal law against private citizens – for example, to bring criminal prosecutions and civil enforcement actions – is essential to societal order and progress, but simultaneously a grave threat to individual liberty. The Framers understood that threat to individual liberty.

When designing the executive power, the Framers first separated the executive power from the legislative and judicial powers. “The declared purpose of separating and dividing the powers of government, of course, was to ‘diffus[e] power the better to secure liberty.’” Bowsher v. Synar, 478 U.S. 714, 721 (1986) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). To ensure accountability for the exercise of executive power, and help safeguard liberty, the Framers then lodged full responsibility for the executive power in the President of the United States, who is elected by and accountable to the people. The text of Article II provides quite simply: “The executive Power shall be vested in a President of the United States of America.” U.S. CONST. art. II, § 1. And Article II assigns the President alone the authority and responsibility to “take Care that the Laws be faithfully executed.” Id. § 3. As Justice Scalia explained: “The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government 4 but to preserve individual freedom.” Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting).



The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They exercise enormous power over the economic and social life of 5 the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.

To help mitigate the risk to individual liberty, the independent agencies, although not checked by the President, have historically been headed by multiple commissioners, directors, or board members who act as checks on one another. ...

In other words, to help preserve individual liberty under Article II, the heads of executive agencies are accountable to and checked by the President, and the heads of independent agencies, although not accountable to or checked by the President, are at least accountable to and checked by their fellow commissioners or board members. No head of either an executive agency or an independent agency operates unilaterally without any check on his or her authority. Therefore, no independent agency exercising substantial executive authority has ever been headed by a single person.

Until now.

... In this case, the single-Director structure of the CFPB represents a gross departure from settled historical practice.  Never before has an independent agency exercising substantial executive authority been headed by just one person. The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. ... 

This new agency, the CFPB, lacks that critical check and structural constitutional protection, yet wields vast power over the U.S. economy. So “this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. at 699 (Scalia, J., dissenting).

In light of the consistent historical practice under which independent agencies have been headed by multiple commissioners or board members, and in light of the threat to individual liberty posed by a single-Director independent agency, we conclude that Humphrey’s Executor cannot be 10 stretched to cover this novel agency structure. We therefore hold that the CFPB is unconstitutionally structured.

(Via How Appealing).

That all seems correct as a matter of original meaning, for the reasons stated by Justice Scalia in the Morrison v. Olson dissent.  (Fittingly, Ted Olson is counsel for the claimants in the case).  Whether it is consistent with precedent (even under a narrow view of non-originalist precedent as I've sketched here) is a different matter.  See this comment by Stuart Benjamin at Volokh Conspiracy: D.C. Circuit buries Supreme Court precedent [he says that like it's a bad thing]:

Today the D.C. Circuit rejected as unconstitutional the for-cause removal protection for the head of the Consumer Financial Protection Bureau (CPFB). Brett Kavanaugh’s opinion relies on historical practice (because it finds the constitutional text doesn’t resolve the question). The opinion found inapposite the examples of single heads with removal protection (e.g., the single head of the new Federal Housing Finance Agency). One arguable historical precedents for placing great power in the hands of a single official whom the President could not remove freely (that is, the President could remove only for cause) is the independent counsel statute, as independent counsels were removable only for cause. This historical example has a particular legal pedigree: the Supreme Court upheld the independent counsel law in Morrison v. Olson.

And therein lies a story. Rehnquist wrote the majority opinion, and Justice Scalia dissented (joined by nobody). I regard that dissent as the best and most persuasive opinion Scalia ever wrote, and I’m not alone in that judgment. My sense is that over time more and more people have come to be persuaded by the dissent.

But today it reached a new level. When it invokes Morrison, Kavanaugh’s opinion mainly cites Scalia’s dissent as authority. ...


John McGinnis on the Future of Substantive Due Process
Micahel Ramsey

At Liberty Law Blog, John McGinnis, Substantive Due Process Is Ready for Takeoff.  From the introduction:

Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution.  Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage.  More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.

And from the conclusion:

But whatever Kennedy personally thinks, Clinton’s filling of the Scalia vacancy means the death of legal restraints on a doctrine that Nelson Lund and I have argued has the potential to become “the  most anticonstitutional doctrine” in all of constitutional law. Without rooting the choice of fundamental rights in tradition or, even better, in the text of the Constitution itself, justices will look to their own preferences.

That subjectivity does not imply that a majority of Supreme Court will immediately create their own ideal set of rights. Modern justices may well be concerned to avoid strong political backlashes. But the result will not be law-abiding justices, just cannier and in some ways more dangerous ones.  Indeed, the most effective way for the left to replace traditional moral principles is to “boil the frog.” Year by year, decade by decade, new constitutional rights can chip away at traditional moral principles, preventing the possibility of any comeback.

Plus, in the comments, a very interesting discussion about the right to wear a hat.


The Inconsistency of Justice Scalia’s Originalism
Mike Rappaport

With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles.  I certainly think it is important for all justices, especially originalist justices, to follow originalist principles.  But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.

It is hard to be a justice.  One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing.  The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them.  Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.

In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation).  That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing.  Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided.  It is much harder to be the originalist.

It was all the harder to be an originalist in the early years when Scalia wrote.  He had to both develop the principles as well as apply them in a world that had largely done neither.

Some have criticized Justice Scalia for a variety of decisions that they say cannot be justified under originalism.  I have written several articles attempting to justify under originalism various positions which (as it turns out) Justice Scalia adopted, including a prohibition on state affirmative action, a requirement of paying compensation for certain regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity.

In other areas, however, I believe that there is little that can be said for Justice Scalia’s position.  In my next post, I will discuss one of these areas – Justice Scalia’s position concerning the federal government’s immigration power.  Interestingly, the critics have said very little about this area.

Michael Gilbert: Entrenchment, Incrementalism, and Constitutional Collapse
Michael Ramsey

Michael D. Gilbert  (University of Virginia School of Law) has posted Entrenchment, Incrementalism, and Constitutional Collapse (Virginia Law Review, forthcoming) on SSRN.  Here is the abstract:      

Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: entrenched law is difficult to change. Scholars and legal designers have long understood this idea, which can be called the first status quo bias of entrenchment. I show that a second bias lurks: entrenchment confines changes that do take place to incremental steps. As entrenchment deepens, the scope of potential change to law collapses on the status quo. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters’ preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts fundamental questions of legal design in new light, and it may explain why some constitutions endure while others collapse.


Michael Lewyn: When Scalia Wasn't Such an Originalist
Michael Ramsey

Michael Lewyn (Touro College - Jacob D. Fuchsberg Law Center; University of Pittsburgh - School of Law) has posted When Scalia Wasn't Such an Originalist (32 Touro L. Rev. 747 (2016)) on SSRN.  Here is the abstract: 

Although Justice Scalia generally described himself as an originalist, his opinion in Lucas v. South Carolina Coastal Council rejected originalist arguments. Why? This article suggests that pre-Lucas precedent and the ambiguity of the historical record might justify his methodology.

A brief and -- in my view -- effective assessment.  Where Scalia is criticized for departing from originalism, is it often the case that he was following precedent.


Justice Kagan on Justice Scalia (Video)
Michael Ramsey

At Volokh Conspiracy, David Bernstein: Justice Kagan’s beautiful remarks at the Antonin Scalia Law School dedication.  He writes:

On Thursday, my law school held a dedication ceremony, attended by six Supreme Court justices, honoring the renaming of George Mason University’s law school as the Antonin Scalia Law School. Justice Elena Kagan spoke at the dedication, and her remarks are well worth watching. She began, “I’m deeply honored to participate in this dedication of the Antonin Scalia Law School. Although, I have to admit, the name strikes me as a little bit formal: I’m wondering if I can substitute the word ‘Nino.’ It’s so fitting — so right — that a fine law school like this one should bear Justice Scalia’s name.”

[With video embedded].

To adapt some of the thoughts I expressed yesterday in a talk at the University of California San Diego's Osher Institute (sorry, no public video), I wonder if part of Justice Scalia's legacy may be carried on by Justice Kagan as a form of liberal textualism.  Justice Kagan seems influenced by Scalia to an extent, and she may be an intellectual leader of a future liberal majority court (see this essay by Jeffrey Toobin: The Supreme Court after Scalia).

I actually think Scalia would like that idea very much.


Josh Blackman Debates Originalism at Indiana University (Video)
Michael Ramsey

From Josh Blackman's blog: Debate on "Originalism" at Indiana University Mauer Federalist Society Chapter.  He writes:

On September 20, 2016, the Indiana University Mauer School of Law Federalist Society chapter hosted me for a debate on originalism. My good friend Steve Sanders offered a competing vision of originalism and textualism. Enjoy!

The debate video is here


Constraining the White House Staff
Mike Rappaport

We live in a world where an increasing number of things that are supposed to be done by the Congress are done by the executive.  Treaties are supposed to be approved by the President with the ratification of two thirds of the Senate, but the President makes many agreements on his authority based on a variety of claims.  Legislation is supposed to be passed by Congress but agencies do most of the legislating through rulemaking.  And wrongdoing by executive officials is generally reviewed by executive officials rather than by congressional impeachment.  Some of these actions may be constitutional under the original meaning, but some are not.

Another way that the executive takes action that is supposed to be shared with Congress is through appointments.  The Constitution provides that appointments are to be made by the President with the advice and consent of the Senate, but the President often makes appointments on his own.  Sometimes this was done through a broad understanding of the Recess Appointments Clause (which a majority fo the Supreme Court accepted, but see here for what I regard as the better view).

At other times, the President makes unilateral appointments of the White House staff on the ground that these staff members – however important their positions seem to be – do not constitute officers of the United States under the Appointments Clause.  The reason is that these staff members are said merely to give advice, to engage in nonbinding conversations with officials, or to convey messages from the president to officials – actions that would not involve the exercise of substantial authority and therefore would not implicate the Appointments Clause under the Supreme Court case of Buckley v. Valeo.   The public policy problem is that the number of these White House staff members is growing and therefore the power of the federal government is increasingly exercised by people who have not secured the consent of the Senate.  Again, some of these actions concerning appointments may be constitutional under the original meaning and some may be unconstitutional. 

What can be done about this?  The simplest way to address it would be to pass a limit on appropriations to pay members of the White House staff.  This would be clearly constitutional and would limit the staff.  But the President would be likely to resist such legislation with a veto.

Another possible law that might be employed would be to limit the actions of the staff.  While the White House staff can communicate messages from the President to lower officials without being subject to the Appointments Clause, the White House staff cannot give orders to these officials, without being subject to the Appointments Clause.  Thus, Congress might prohibit any staff member from giving orders to such officials (and subject a violation of the prohibition to a civil or criminal sanction).  Perhaps Congress could go further.  They might believe that White House staff sometimes uses uncertainty about whether the President has issued an order as a means of exercising control over officials.  Therefore, they might require that the staff member make explicit, in each conversation, whether the advice/order is from the President, and make it a a civil or criminal violation to fail to do so (or to misrepresent the nature of the communication).  While the President might resist this law, it would probably be constitutional and would place limits on the power of the White House staff.

2017 Originalism Works-in-Progress Papers and Commentators Announced
Michael Ramsey

The University of San Diego's Center for the Study of Constitutional Originalism has announced the papers and commentators for the Eighth  Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 17-18, 2017 at the University of San Diego Law School.   They are:

1. Randy Barnett (Georgetown) & Evan Bernick (Institute for Justice), The Letter and the Spirit: A Theory of Good Faith Constitutional Construction.

            Commentator: John McGinnis (Northwestern)


  1. Will Baude (Chicago), Constitutional Liquidation 

            Commentator: Bernadette Meyler (Stanford)


  1. Mitch Berman (University of Pennsylvania), Our Principled Constitution

             Commentator: Stephen Sachs (Duke)


  1. Jud Campbell (Richmond), Natural Rights and the First Amendment

              Commentator: Fred Schauer (Virginia)


  1. James Fox (Stetson), Black Originalism: Constitutional Citizenship, Constitutional Rights, and the Second Founding

               Commentator: Ryan Williams (Boston College)


  1. Michael McConnell (Stanford), The Structure of Article Two

              Commentator: Saikrishna Prakash (Virginia) 


  1. Ilya Somin (George Mason), The Original Scope of Federal and State Power over Immigration

              Commentator: Richard Primus (Michigan) 


John Stinneford: The Original Meaning of 'Cruel'
Michael Ramsey

John F. Stinneford (University of Florida - Levin College of Law) has posted The Original Meaning of 'Cruel' (Georgetown Law Journal, Vol. 105, forthcoming) on SSRN.  Here is the abstract:      

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.” The word refers to the effect of the punishment, not the intent of the punisher. In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.

This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence. First, it clarifies the Eighth Amendment’s intent requirement. To violate the Cruel and Unusual Punishments Clause, some government official must possess intent to punish but not necessarily intent to punish cruelly. Second, it demonstrates how to determine whether a given punishment is so harsh that it violates the Eighth Amendment. The question is not whether a punishment is unjustly harsh in the abstract but whether it is unjustly harsh in comparison to the traditional punishment practices it has replaced. Third, it shows how to sort between those unintended effects of punishment that may properly be considered part of the punishment and those that may not. If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual. Finally, this Article establishes that the core purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not the coarsening of public sensibilities. Historically, governmental efforts to protect public sensibilities by making punishment less transparent have increased the risk that the offender will experience undetected cruel suffering. When the government undertakes such efforts, it should bear the burden to show that they do not significantly increase this risk.

The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, long-term solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.

(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended!  Download it while it's hot!")

Professor Stinneford presented an earlier version of this paper at the originalism works-in-progress conference in San Diego last February -- it is an outstanding contribution.


Randy Barnett and Rob Natelson on a Simulated Convention of the States
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Why don’t we restore the Constitution so every election is not “make or break”?  Fro mthe introduction:

Why does this and every election in recent years seem like a “make or break” election? One reason is that we have abandoned so many of the constraints imposed by the Constitution on our government that everything now rides on who holds office. No longer can we be confident that, when the government is controlled by the party we oppose, what it can do while in power will be limited by constitutional–rather than purely electoral–constraints. This was not the way it was supposed to be in a constitutional republic, and is not the way it needs to be in the future. The founders gave us a constitutional means to restore the constraints that the Constitution imposes on the national government: an Article V convention of the state. And we need not wait to hold one. We could restore constitutional government in just a year or two.

So what’s stopping us? For some, if not many, the fear is that such a convention would be dangerous and damaging. ...  In an effort to address these concerns, last week, Citizens for Self-Government held an ambitious simulated Article V Convention in Williamsburg, Virginia, for which I served as a legal advisor. ...

With video, plus a link to this article by Rob Natelson, another legal advisor to the project: What Would an Article V Convention of States Actually Be Like? (with a report on what amendments the Convention proposed).


Philip Hamburger: English Experience and American Administrative Power
Michael Ramsey

Philip Hamburger  (Columbia University - Law School) has posted English Experience and American Administrative Power (Missouri Law Review, forthcoming) on SSRN (responding to this article by Paul Craig [Oxford]).  Here is the abstract:      

In opposition to my thesis about the unconstitutionality of federal administrative power, Paul Craig lobs three critiques from across the pond. His two main arguments concern the English history of prerogative and administrative power – though in addition he makes a conceptual point about the distinction between legislative and judicial power. It will be seen that Craig’s account repeatedly misunderstands the history and even the conceptual framework.

Nonetheless, his article usefully draws attention to some important issues. This therefore is a good occasion not simply to respond, but more broadly to explore some questions about prerogative and administrative power. In particular, this Article examines how general constitutional principles that cut against administrative power were reconciled with the survival of localized instances of such power.

And here is the abstract of Professor Craig's article:

Administrative law is rightly regarded, together with constitutional law, as one of the twin pillars of public law. This is equally true for civil law regimes as it is for those grounded in the common law. The conceptual and normative foundations of administrative law should be examined with care, in the same way as for any other body of legal doctrine. Philip Hamburger recently posed a provocative challenge to administrative law in the USA, as attested to by the title to the book, which asks whether administrative law is unlawful. His thesis is grounded in English administrative law, as it developed in the seventeenth century and eighteenth centuries, when lawyers in the American colonies would have been familiar with it. Indeed this analysis occupies approximately half of the book. It is perfectly legitimate for Hamburger to pose searching questions concerning the legitimacy of administrative law. It is by the same token equally fitting to subject this analysis to close critical scrutiny, which is the purpose of this article. This is more especially so given that there is much that is imperfectly understood about English doctrinal history in this area, and the misconceptions in this respect bear analogy to those revealed in Jerry Mashaw’s seminal work on the foundations of US administrative law.

The ensuing analysis does not consider the fit between Hamburger’s argument and modern US administrative and constitutional law. There has been valuable literature on this by those better versed than I in such issues, and I agree with their arguments. What follows is directed towards the central parts of Hamburger’s thesis that are built on English administrative law. It will be argued that his thesis is misconceived, and does not represent the reality of this law in the seventeenth century or thereafter, with which American colonists might have been familiar. The argument presented below is also of more general relevance, since it will be shown that Hamburger’s thesis is predicated on certain conceptual distinctions that are untenable. The structure of the argument is as follows.

Part I of the article contains a brief overview of the doctrinal and institutional foundations of English administrative law. This is followed in Part II by consideration of rulemaking. Hamburger’s thesis concerning “extralegal rulemaking”, which is said to be derived from English law, is set out. It has an expansive dimension insofar as the thesis is premised on elision between prerogative and administrative rulemaking. This is mistaken, and did not represent the legal or constitutional reality in the seventeenth century or thereafter. Hamburger’s thesis is also premised on a qualifying dimension, in which he seeks to limit the force of his argument concerning “extralegal rulemaking” through definition of the term legislative. This facet of the argument is problematic from a conceptual perspective. This is followed by examination of the reality of such rulemaking in England from the sixteenth century onwards in four areas: health, safety and trade regulation; flood protection; poor relief; and excise. The American colonists would probably have been aware that Parliament had authorized executive actors, the King or specific commissioners, to adopt regulations to protect health and safety, to prevent flood damage, and other matters. This was not regarded as extralegal.

The focus in Part III shifts to adjudication, and the analysis is structured symmetrically with Part II. Thus the discussion begins with Hamburger’s thesis on “extralegal adjudication”, which he derives from early English law. His argument contains an expansive dimension, in that it is based on an elision between prerogative and administrative adjudication. This elision is mistaken, and did not represent legal or constitutional reality. Hamburger’s argument also contains, as in the context of rulemaking, a qualifying dimension, in which he limits the force of his principal argument concerning “extralegal adjudication”, through definition of the term judicial. This aspect of the argument is beset with conceptual difficulty and does not cohere with the reality of administrative adjudication in England. This reality is revealed through examination of four areas: bankruptcy, excise, inclosure and turnpikes.

Discourse concerning doctrinal foundation and transformation is valuable, but fraught with difficulty. There are issues concerning the level of abstraction or detail at which the inquiry is posed; there are decisions to be made as to what is central and what is merely interstitial; and there are judgments as to the significance of institutional and doctrinal facets of the subject when considered in the relevant temporal frame. These difficulties are exacerbated when the subject matter of the inquiry dates back over 300 hundred years, which is the approximate time span in which administrative law developed in England and thereafter the UK. Whether there has been change depends on identification of the foundational tenets of the subject. Paint the foundational picture one way and you have radical disjunction with the past. Paint it differently and you have a stronger seam of continuity, notwithstanding change.

Matters become more complex yet again when the scholar has a particular normative agenda and seeks to draw succour from historical sources. There is nothing wrong with having such an agenda; indeed we all do to some greater or lesser degree. This does not diminish the relevance of the point being made here. The stronger the normative agenda, the greater the attendant danger that the historical material will, albeit unwittingly, be read so as to lend it support. The stakes are necessarily raised when the normative agenda seeks to call into question the “legality” of a body of law broadly conceived. Close scrutiny of such arguments is more especially warranted in such instances. The message from this article is that whatsoever US courts and commentators choose to make of Philip Hamburger’s thesis in the modern day they should not believe that it represents the legal and constitutional realities from England that American colonists, or the framers of the American constitution, would have been familiar with.


Ashutosh Bhagwat: Free Speech and 'a Law of Rules'
Michael Ramsey

Ashutosh Avinash Bhagwat (University of California, Davis - School of Law) has posted Free Speech and 'a Law of Rules' (First Amendment Law Review, forthcoming) on SSRN.  Here is the abstract:  

In 1989, Justice Antonin Scalia published an essay in The University of Chicago Law Review titled “The Rule of Law as a Law of Rules.” The essay sets forth, and defends, one of the primary jurisprudential themes of Justice Scalia’s three decades as a Supreme Court Justice: the need for and obligation on judges, especially Supreme Court Justices, to articulate clear rules in resolving cases, rather than relying on vague balancing or multifactor tests. Or alternatively, as no one but Justice Scalia could have put it, the essay explains why throughout his career Justice Scalia opposed “the’ol’ totality-of-the-circumstances test” under which “[t]he law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be.” 

Justice Scalia’s commitment to clear rules over mushy standards is as important an element of his First Amendment jurisprudence as of his administrative law and separation-of-powers opinions (the sources of the earlier quotes). It was, for example, undoubtedly the driving force behind his majority opinion in Employment Division v. Smith, severely limiting the scope of the Free Exercise Clause, and in Brown v. Entertainment Merchants Association, extending full First Amendment protection to the sale of violent video games to children. And there are many other examples.

Generally, a commitment to clear rules is a good thing, especially in the area of free speech where vague standards risk chilling protected speech. However, this article identifies some unexpected barriers to the “law of rules” approach. The reason, essentially, is that simple rules can very easily lead to unacceptable results. Faced with such results, a justice committed to clear rules might be pushed to adopt complex, arbitrary ones, even irrational ones, to avoid them. The result is epicycles within epicycles. My intention is to demonstrate that in at least some areas – notably sexually oriented expression, hate speech, and government funding of speech– this is precisely where Justice Scalia ended up. The problem is that an excessively complex body of rules, such as I identify, sacrifices many of the most powerful advantages that rules enjoy over standards. I finish by speculating as to why Justice Scalia had such a difficult time formulating clear rules in the free speech arena, concluding that the likely reason is that unlike in many other areas of jurisprudence, Justice Scalia lacked an underlying theory of how and why we protect free speech. Workable, clear rules, I conclude, need an underlying theoretical scaffolding. Absent that, ad hocery is inevitable — a point that Justice Scalia may well have recognized, and been the reason why he wrote so few free speech opinions in comparison to other areas of constitutional jurisprudence.


Adam Lamparello & Charles E. MacLean: Originalism and the Criminal Law
Michael Ramsey

Adam Lamparello (Indiana Tech - Law School) and Charles E. MacLean (Indiana Tech - Law School) have posted  Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitution (Akron Law Review, forthcoming) on SSRN.  Here is the abstract:      

Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”

Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so. In United States v. Windsor, Scalia lamented as follows:

"We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."

The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.


Mitchell Berman: The Tragedy of Justice Scalia
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Law School) has posted The Tragedy of Justice Scalia (Michigan Law Review, Vol. 115, 2017, forthcoming) on SSRN.  Here is the abstract:      

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of originalism and sketches a living constitutionalist alternative. It concludes by arguing not only that Scalia was a tragic figure who combined elements of greatness with deep flaws, but also that his life and judicial performance hold lessons of profound importance for all who care about our law and our legal culture.


Could President Trump Unilaterally Withdraw the U.S. from its International Agreements?
Michael Ramsey

At Opinio Juris, Julian Ku: Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

Professor Ku concludes that a President Trump could for the most part constitutionally withdraw the U.S. from international agreements by giving the notice required.  I mostly agree with his assessment as a matter of the Constitution's original meaning, but with a few qualifications.

Although the Constitution says nothing directly on the matter, I think the best general assessment of the original meaning is this:  (a) The President can withdraw from all treaty and treaty-like undertakings according to their terms.  The Constitution does not say directly who has power to decide to trigger withdrawal provisions, but the President has residual executive power in foreign affairs -- and moreover is charged with executing treaties as part of the supreme law of the land.  Deciding whether to withdraw from a treaty under its terms is part of executing the treaty and directing U.S. foreign affairs, so the power is with the President.  (b) The President cannot terminate treaties in violation of their terms because treaties are part of the supreme law of the land (even if non-self-executing, see here); therefore, Presidents must take care that they are faithfully executed, and violating them is not faithful execution. (c) The President can terminate non-treaty agreements even in violation of their terms because they are not part of the supreme law of the land (unless they are incorporated into a statute).  

As applied to some obligations President Trump might want to terminate:

(1) Mutual defense treaties.  I agree with Professor Ku that the President may terminate such treaties by giving the prescribed notice.  President Carter terminated the Taiwan treaty in this way, and that is constitutional under the rules sketched above (as I argued in The Constitution's Text in Foreign Affairs).

(2) Nonbinding agreements.  Again I agree with Professor Ku that the President may terminate nonbinding agreements.  However, he says:

I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.

I agree regarding the Iran deal, but the Paris Agreement is much more complicated.  As explained here, as a whole the Paris Agreement is a binding international obligation, even though the more important provisions of it are not binding.  Moreover, the Paris Agreement by its terms only allows a notice of withdrawal after three years.  So if President Trump wants an immediate withdrawal, he would have to violate the Agreement (I am assuming that the Agreement will take effect before the next President takes office; I see no constitutional barrier to the President withdrawing the U.S. ratification if the treaty has not taken effect).

However, the Paris Agreement is not a treaty and therefore is not supreme law of the land.  Perhaps, as a matter of U.S. domestic law, the President can terminate it, even though that entails violating international law.  But some commentators have argued that the President's constitutional "take care" obligations extend to international law as well as to the supreme law of the land (the take care clause is not drafted in parallel with the supremacy clause, suggesting that it might be broader).  I have taken this position, very tentatively, with regard to customary international law.  Whether that would extend as well to violating non-treaty agreements is a more difficult question.

Further, though, in my view there is a plausible argument the Paris Agreement is unconstitutional because it should have been adopted as a treaty (see here).  Maybe, then, President Trump can withdraw from the agreement on this ground, as his duty to uphold the Constitution presumably overrides any duty he might have to international law.

(3) Congressional-executive agreements.  Professor Ku suggests that there might be some difficulty with the President withdrawing from trade deals:

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

Here I disagree, and accept what appears to be the more conventional view: the President can unilaterally withdraw.  First, it may be true that in order to carry into effect a withdrawal from (say) NAFTA, various changes would need to be made to U.S. law.  But even if that is true, that would not prevent the President from withdrawing from the agreement.  It would simply be the case that certain benefits conveyed by Congress in order to implement the agreement would remain on the books in the U.S. -- but they would no longer be required by any international agreement.  I expect that there are a number of NAFTA benefits that are implemented but executive order pursuant to a delegation, and the President could terminate these.  And Mexico, for example, could change its laws to deny NAFTA benefits to the U.S. upon the President's withdrawal.  The agreement is fundamentally distinct from the implementing legislation, and the President can terminate one even though he lacks authority to terminate the other.

Second, the fact that the trade agreements are negotiated under a congressional delegation of authority does not imply any limitation on the President.  All trade authority delegated to the President is discretionary.  The President is not under any statutory obligation to complete any trade deal.  That being so, I don't see why he would be under any statutory obligation to keep a trade deal in place.  Importantly, neither the NAFTA implementation act nor (as far as I know) the acts implementing other trade deals contain language incorporating the agreement in its entirety into U.S. law.  (Even if they did, that incorporation would also incorporate the withdrawal-by-notice provision.)  The implementing acts simply say Congress "approves" the deal; they do not say a deal shall be made.  For example, the NAFTA implementation act, section 101(b), says only:

    The President is authorized to exchange notes with the Government of Canada or Mexico providing for the entry into force, on or after January 1, 1994, of the Agreement for the United States....

Under this provision the President is not required to provide for the agreement's entry into force.  Since nothing expressly requires the deal to remain in force once it becomes effective, I think it hard to imply such an obligation.  Again, the key is that the President would not violate any U.S. law by withdrawing from the agreement.  

It would, of course, be a different matter if an implementation act required the approval of Congress to withdraw from the agreement, but as far as I know, no such provision exists in any U.S. statute.  Professor Ku points to Section 125 of the WTO implementation act, but it is somewhat different.  It provides a way for Congress to terminate the agreement, including over the objections of the President.  That doesn't say anything about the President's ability to terminate the agreement over the objections of Congress (if anything, by failing to address the President's power to withdraw, it implies that the power is not limited).

So in sum I think President Trump could withdraw from any international agreement he wanted to, provided that in the case of treaties (and perhaps in the case of other binding agreements that are not unconstitutional) he observed the formalities for withdrawal specified in the agreement.

I leave it to readers to decide whether that is a reason to vote for him or a reason to vote against him.


Constitutional Change, Article V, and the Presidential Election
Mike Rappaport

Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election.  The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago.  Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.

It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.

It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine.  Many nonoriginalists resist being described as living constitutionalists.  Strauss embraces it.  He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.

Strauss believes two main things about constitutional change.  First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions.  In fact, he believes that constitutional amendments are largely irrelevant.  Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution.  The way that is actually practiced – where judges follow a common law like system – is better.

My view obviously differs from Strauss’s, but more as to normative matters than as to descriptive ones.  As a matter of description, I agree to a significant extent with Strauss that the Courts do in fact effect most of the constitutional change in the country through nonoriginalist interpretation of the Constitution.  This has been going on at least since the New Deal, but perhaps to a lesser degree for a considerably longer period.

The difference is that I believe this is a bad system.  It would be far better if constitutional change occur through the amendment system.  Although the amendment system is strict, it has many virtues.  First, the amendment system ensures that constitutional amendments are supported by a consensus of the nation.  To secure this consensus, people must compromise on their constitutional goals.  Second, this consensus requirement means that people can feel more secure that the Constitution will not be changed in ways that they strongly dislike.  Third, the amendment system makes use of a limited veil of ignorance.  Because amendments typically last for so long, it is often difficult to determine how the amendment will apply to people in the future.  This forces people to evaluate an amendment based on its public interest rather than on whether it benefits them.

By contrast, under Supreme Court judicial updating, constitutional change largely occurs through a majority vote of 9 people.  There is little reason to believe these decisions will be supported by a consensus.  Nor are these changes enacted by a veil of ignorance.  If the Supreme Court does not like the way its decision applies in the future, it can overturn or modify its prior decision.

Charles Reid: America's First Great Constitutional Controversy
Michael Ramsey

Charles J. Reid Jr. (University of St. Thomas School of Law (Minnesota)) has posted America's First Great Constitutional Controversy: Alexander Hamilton's Bank of the United States on SSRN.  Here is the abstract:      

This article aims at a careful reconstruction of what has been called America’s first great constitutional controversy — the 1791 debate over Alexander Hamilton’s Bank of the United States. This article reviews this debate both at the congressional level and within the executive branch. The debate over the bank led to the articulation of theories of constitutional interpretation that are with us still. On the one hand, we find theories of interpretation that stress implied constitutional powers and an expansive role for the federal government. On the other hand, we encounter theories of interpretation that emphasize limited federal authority and a preeminent role for the states. These debates included not only well known figures, such as Alexander Hamilton, Thomas Jefferson, and James Madison, but other leading figures of the time less well known today, such as Fisher Ames, Theodore Sedgwick, and Elbridge Gerry.


Ilya Somin on Donald Trump’s Supreme Court List and Originalism
Michael Ramsey

Ilya Somin at Volokh Conspiracy: Donald Trump’s expanded Supreme Court list changes nothing.  From the introduction:

On Friday, Donald Trump issued an expanded list of potential Supreme Court nominees, adding ten more names to the list of eleven options he put out back in May. Whether you like the names on the expanded list or not, it does not change any of the reasons why Trump is a menace to the Constitution. It also does nothing to change the reality that Trump’s longterm agenda is deeply inimical to originalism, limited government, and efforts to ensure that the federal judiciary will protect those values.

The most prominent name on the new list is Utah Senator Mike Lee, ironically also a leading #NeverTrump conservative.  . . . Senator Ted Cruz has cited the expanded list as one of his principal reasons for belatedly endorsing TrumpRegardless of what Cruz might say, the list changes nothing. 

Voicing concerns over Trump’s list of nominees:

To the contrary, he has a wide-ranging repressive agenda that would undermine the Constitution at many points. And much of that agenda is an outgrowth of views he has consistently held since long before the 2016 campaign. Unlike the Supreme Court list, it is probably not just a campaign ploy.

Given these types of commitments, it seems likely that Trump will seek to appoint judges who will allow him to do what he wants in all these areas, not originalists or limited government conservatives who might rein them in.

Trump’s threat to originalism:

 . . . As prominent originalist constitutional scholar Randy Barnett points out, “puts it, “[i]f Trump takes over the Republican Party it’s likely to become a right-wing nationalist party of the kind you see in Europe.”

In the long run, such a party would have little use for originalism, free markets, property rights, or constitutional constraints on government power, more generally. To the contrary, all of these things are likely to be obstacles to its authoritarian nationalist agenda. And, like other parties throughout our history, a Trumpist GOP would, over time, appoint judges who are in generally line with its objectives. That’s a far greater threat to constitutional originalism and limited government than even a Hillary Clinton victory is ever likely to be.

For originalists, limited-government conservatives, and libertarians who care about the judiciary, one or two distasteful Supreme Court appointments are a far lesser danger than having both major parties adopt judicial philosophies inimical to their goals. 

And, concluding:

In sum, originalists backing Trump because of his Supreme Court list are trading their principles for a mess of pottage they might never get to eat. And even if Trump does serve up a helping or two, it will not be worth the awful long-term price.

Without expressing an opinion on the larger question, these comments seems doubtful on two narrower grounds.  First, it seems unfair to call the lists "a mess of pottage."  I think the general consensus is that the lists are quite strong.  On the new list, in addition to Senator Lee, there are two well respected court of appeals judges with originalist/textualist orientations -- Neil Gorsuch and Timothy Tymkovich.  I'm not familiar with all of the people named, but I think it would be hard for conservative/libertarian-leaning orignalists to be too disappointed with a pick from the lists.

There is also the question whether a President Trump would actually pick from his promised lists.  Professor Somin thinks not, but I'm inclined to disagree.  At least as to the first pick, it would be one of the new President's first actions; departing from the lists would constitute an open break with congressional Republicans and the Republican base, who at this point are heavily invested in getting someone who is at least quasi-originalist.  My guess is that Trump doesn't care enough about the Supreme Court to provoke a rupture over it.

Whether that justifies overlooking the other issues Professor Somin raise is, of course, a different question.


Jonathan Adler on the Emoluments Clause and Hillary Clinton
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: Is the Emoluments Clause a problem for Hillary Clinton?

The issue is whether the Clinton Foundation’s acceptance of gifts from foreign governments while Hillary Clinton served as secretary as state violated [the foreign emoluments clause] (assuming, of course, that gifts to the Foundation were, in some sense, also gifts to her). Additionally, it would seem, there would also be a question as to whether the Clinton Foundation could accept such gifts if Hillary Clinton is elected president.


The meaning and current application of the Emoluments Clause might not seem like much of an issue to you, but it is to two of my colleagues, Jonathan Entin and Erik Jensen [see here and here].

For background, Professor Adler also points to this exchange on the foreign emoluments clause at the National Constitution Center's Interactive Constitution, by  Seth Barrett Tillman and Zephyr Teachout.

Whether or not Clinton violated the clause (by having the Foundation accept the gifts), I'm surprised that people would think (as I guess some do) that such a violation would make her ineligible to the presidency.  The emoluments clause says nothing about the consequences of a violation, and the presidential eligibility clause says nothing about ineligibility due to prior violations of the Constitution.  The constitutional remedy for a violation would presumably be impeachment, if Congress chose to pursue it.


Josh Blackman and Ilya Somin Debate the Constitutionality of DAPA
Michael Ramsey

Josh Blackman: Debate on the Constitutionality of DAPA with Ilya Somin at the George Mason Federalist Society

From the post:

On 9/14/16, Ilya Somin and I [that is, Josh Blackman] debated the constitutionality of DAPA and the Take Care Clause at the George Mason Federalist Society Chapter. It was a special treat to verbally-joust with my former professor at my alma matter. As well, the event was moderated by my former International Law Professor, Jeremy Rabkin. The debate was replete with references to the Statue of Liberty (built at an immigration checkpoint), Donald Trump (no wall will be built), and of course Star Wars (Ilya is fond of comparing me to the wayward Anakin Skywalker; of course, he is Obi Wan).

The debate can be watched here.


Eric Segall on Justice Scalia's Legacy
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Scalia 1 and Justice Scalia 2: A Modest Proposal.  From the introduction:

Jack Balkin of Yale Law School recently posted an essay about Justice Scalia's legacy which sets forth four criteria for ascertaining what a Justice's long term reputation is likely to be. Balkin argued we should look at 1) how useful the Justice is likely to be to future generations; 2) Is the Justice central to the political regime in which he lived; 3) Did the Justice take positions that are likely to end up on the "right side of history"; and 4) Did the Justice have promoters and "acolytes" willing to strongly defend his positions.

I think these criteria are fine for the task at hand, and so does my friend Ilya Somin, who responded to Balkin with his own post on the Volokh Conspiracy. 

And the key point:

One thing Scalia did do was talk the talk of originalism and textualism in his writings, his dissents, and his public speaking engagements. And, he did that very well. So, here is my proposal. From now on, I hope academics will refer to "Scalia 1" and "Scalia 2."  Scalia 1 was the witty academic, fun public speaker, and caustic dissenter who made detailed and interesting arguments in favor of judges leaving elected officials alone unless they violated the clear text or original meaning of the Constitution. Scalia 2 was the judge who voted to overturn the acts of those very same officials all the time through huge swaths of constitutional law even though neither the clear text nor the original meaning supported those decisions.

Whatever Scalia's legacy ends up being, if we don't keep the two Scalias straight, we are not doing justice to the actual man.