The Originalism Blog

Commerical Speech Debate with Eugene Volokh, Alan Morrison, and Elizabeth Wydra Michael Ramsey

On HuffPost Live, First Amendment, Inc., a debate by Eugene Volokh, Alan Morrison, and Elizabeth Wydra on the First Amendment and commerical speech.  The introductory caption says:

It's been nearly 40 years since Ralph Nader convinced the Supreme Court to protect commercial speech, but from campaign finance restrictions to smoking labels, corporations are now using First Amendment to take down regulations they don't like. 

Protection of commercial speech is often flagged as a non-originalist doctrine that political conservatives hypocritically favor.  But I think the originalist basis for it (or at least for some version of protection) is stronger than commonly assumed -- as Professor Volokh, among others, has pointed out.  (Mike Rappaport has more on the issue here and here).

Justice Thomas on Intrastate Commerce (and Some Broader Points about Federalism)Michael Ramsey

In the otherwise unremarkable preemption case American Trucking Associations, Inc. v. City of Los Angeles, decided by the Supreme Court last week, Justice Thomas made two notable points in concurrence.  The Court unanimously held that the City's regulations of off-site parking by trucks using the Port of Los Angeles were preempted by the Federal Aviation Administration Authorization Act (FAAA) -- understandably, since FAAA declares that it preempts any state “law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”

Justice Thomas objected that:

The Constitution grants Congress authority “[t]o regu­late Commerce . . . among the several States.” Art. I, §8, cl. 3 (emphasis added). Section 14501 of Title 49 is titled “Federal authority over intrastate transportation.” (Em­phasis added.) The tension between §14501 and the Constitution is apparent, because the Constitution does not give Congress power to regulate intrastate commerce. United States v. Lopez, 514 U. S. 549, 587, n. 2 (1995) (THOMAS, J., concurring). Nevertheless, §14501(c)(1) purports to pre-empt any state or local law “related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” By its terms, §14501(c) would pre-empt even a city ordinance establish­ing a uniform rate for most transportation services originating and ending inside city limits, so long as the services were provided by a motor carrier. Such an extraordinary assertion of congressional authority cannot be reconciled with our constitutional system of enumerated powers.

As applied to the facts of the case, Thomas continued:

Drayage trucks that carry cargo into and out of the Port of Los Angeles undoubtedly operate within the “channels of interstate commerce”—for that is what a port is. Congress can therefore regulate conduct taking place within the port. But it is doubtful whether Congress has the power to decide where a drayage truck should park once it has left the port or what kind of placard the truck should display while offsite. Even under the “substantial effects” test, which I have rejected as a “‘rootless and malleable standard’ at odds with the constitutional de­sign,” Gonzales v. Raich, 545 U. S. 1, 67 (dissenting opin­ion) (quoting United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring)), it is difficult to say that placards and parking arrangements substantially affect interstate commerce. Congress made no findings indicating that offsite parking—conduct that falls within the scope of the States’ traditional police powers—substantially affects interstate commerce. And I doubt that it could.

He nonetheless joined the Court's opinion because the City had not raised the argument.  One might be tempted to dismiss the concurrence as idiosyncratic -- but it might also point the way for future federalism challenges (challenges which might be more palatable to the Court than the challenges to the Affordable Care Act, or even to the federal marijuana laws in Gonzales v. Raich).

(Some related comments here by Ilya Shapiro at Cato@Liberty, who adds: "here’s an easy practice tip: Don’t just assume that the federal government has the power to pass the law you don’t want applied to your client.")

Thomas also made a related point that seems obvious but has eluded some commentators:

The Supremacy Clause provides the constitutional basis for the pre-emption of state laws. Art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the su­preme Law of the Land”). Because the Constitution and federal laws are supreme, conflicting state laws are with­out legal effect. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000). However, the constitu­tional text leaves no doubt that only federal laws made “in Pursuance” of the Constitution are supreme. See Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (“As long as it is acting within the powers granted it under the Constitu­tion, Congress may impose its will on the States” (empha­sis added)); Wyeth v. Levine, 555 U. S. 555, 583–587 (2009) (THOMAS, J., concurring in judgment).

Given this limitation, Congress cannot pre-empt a state law merely by promulgating a conflicting statute—the pre­empting statute must also be constitutional, both on its face and as applied…

I've heard it argued that the "in Pursuance thereof" language in Article VI does not have this effect -- that is, that it means simply laws enacted according to the procedures specified in the Constitution.   But that does not seem the best reading of the text -- it's hard to say that a law is "in pursuance" of the Constitution when it is actually contrary to the Constitution.  I don't know of any history supporting the limited view, and there's a good bit supporting Justice Thomas' account.  For example, Hamilton in Federalist 33:

But it will not follow ... that acts of the [federal government] which are not pursuant to its constitutional powers, but which are invasions of the residual authorities of the [states], will become the supreme law of the land.  These will be merely acts of usurpation, and will deserve to be treated as such (emphasis in original).

Additional founding era authorities are collected in The Constitution's Text in Foreign Affairs, pp. 459 n. 14.

FURTHER NOTE:  On the other hand, I think Justice Scalia, writing for the majority, has the preemption analysis mostly right in yesterday's decision in Arizona v. Inter-Tribal Council of Arizona.  Here's my view from back when review was granted (arguing, as the Court later found, that the federal voter regsitration law preempts additional voter registration requirements Arizona sought to impose). 

But Thomas' dissenting opinion in Inter-Tribal Council is worth considering: he argues, relying heavily on founding era sources, that the states have exclusive power to set voting qualifications and to determine whether those qualifications are met.  As a result, he concludes (in accordance with his opinion in the trucking case) that there is no preemption because the federal voter registration law is unconstitutional.

Justice Scalia's majority opinion does not really engage the question, saying only:

The [Elections] Clause [Art. I, §4, cl. 1] empowers Congress to pre-empt state regula­tions governing the “Times, Places and Manner” of holding congressional elections. …

The Clause’s substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relat­ing to “registration.” Smiley v. Holm, 285 U. S. 355, 366 (1932); see also Roudebush v. Hartke, 405 U. S. 15, 24–25 (1972) (recounts); United States v. Classic, 313 U. S. 299, 320 (1941) (primaries). In practice, the Clause functions as “a default provision; it invests the States with responsi­bility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.” Foster v. Love, 522 U. S. 67, 69 (1997) (citation omitted). The power of Congress over the “Times, Places and Manner” of congressional elections “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” Ex parte Siebold, 100 U. S. 371, 392 (1880).

That's pretty close to just assuming that Congress has power to pass voter registration laws.  And I admit that in my prior analysis of the case I (like the City in the trucking case) did assume the federal law was constitutional and that the only question was whether the state law conflicted with it.  As Ilya Shapiro says, we all need to learn from Justice Thomas that the first question in a preemption case is whether the federal law is constitutional.

Originalism, Double Jeopardy, and the Dual Sovereignty DoctrineMike Rappaport

Over at the Volokh Conspiracy, Orin Kerr notes the cert petition, coauthored by UCLA legal historian Stuart Banner, arguing that the dual sovereignty doctrine of double jeopardy law – which holds that a prosecution by the state for a crime does not bar the federal government from prosecuting for the same crime, and visa versa -- conflicts with the Constitution’s original meaning. This doctrine strikes many, when they first hear of it, as ridiculous but it is always taught as black letter law.

At first glance, the originalist evidence seems pretty strong, but I haven’t examined it closely. Still, it would be interesting to see that this counterintuitive doctrine turns out to be made up by the Supreme Court in the 1850s. 

The modern Supreme Court addressed the doctrine in 1959, with the different Justices playing their normal parts. That liberty loving man,* Justice Frankfurter, held that the dual sovereignty conformed to the original meaning, dismissing all of the English evidence. The originalist Justice Black, by contrast, dissented, claiming that Frankurter had misread the early evidence.

Finally, some might wonder whether long standing precedent should stand in the way of the Court reversing course on this one (assuming the original meaning really supports such reversal). I don’t think it should. There is no significant reliance issue here. It is not even clear that any laws would need to be changed in response to such an overruling.

*Sarcasm

Lee J. Strang Reviews Huscroft & Miller on OriginalismMichael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted The Challenge of, and Challenges to, Originalism (reviewing The Challenge of Originalism: Theories of Constitutional Interpretation, (Grant Huscroft & Bradley W. Miller, eds., Cambridge University Press, 2011.)) on SSRN.  Here is the abstract:

The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics.

The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism’s relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them.

The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates.

In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism’s sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism’s continuing and broad-based allure — the reason it presents a challenge — the Constitution’s writtenness.

As I've noted previously, the Huscroft & Miller volume is an outstanding collection of essays by some on the top originalist scholars worldwide (including a couple of my colleagues).

Brendan Lim: An Australian Reads 'Living Originalism' Michael Ramsey

Brendan Lim (Yale Law School) has posted Review Essay: An Australian Reads 'Living Originalism' (34 Sydney Law Review 809 (2012)) on SSRN.  Here is the abstract:

The work under review, by Yale Law School's Jack Balkin, sets forth a theory of constitutional interpretation reconciling originalism with living constitutionalism. It claims that the United States Constitution is best comprehended as an enabling framework for a project of governance, which successive generations must build out over time. Using rules, standards, principles and silences as distinctive textual devices, the original framers effected an allocation not only of constraint, but of delegation. Ascertaining the balance of the allocation calls for originalist methods, while making constructional choices within its bounds commits one to living constitutionalism. Construction is said to be a task shared by the courts, political branches and ordinary citizens, underwritten and legitimated by a deep political and cultural attachment to the Constitution. This essay considers the utility of the theory in Australia. Drawing on Professor Balkin's ideas, it engages with a current debate about how to understand the legitimacy of the Engineers' Case, and, with reference to Roach v Electoral Commissioner and Rowe v Electoral Commissioner, explores the under-theorised question of how ordinary statutes can affect constitutional meaning.

Peter Martin Jaworski: Originalism All the Way Down: Or, the Explosion of ProgressivismMike Rappaport

Peter Martin Jaworski (Georgetown University) has posted Originalism All the Way Down: Or, the Explosion of Progressivism (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN.

Here is the abstract:

At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and statutes. Whenever the meaning of a ruling, or some part of it, is not immediately apparent — maybe because the still-standing precedent is decades old and written in a manner that would now be anachronistic, or because the Justice writing the opinion was laconic — should we try to discern what the Justices intended or meant to say? Should the guide, instead, be what a reasonable person would understand by the text at the time of the promulgation of the relevant ruling? If the ruling still stands, but is decades old, shall we breathe life into it by reading it in accordance with contemporary values? Shall we make use of records of oral argument, or what Justices may have said extra-judicially, or will we restrict ourselves to the text of the ruling alone?

In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions — variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation — appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.

I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy — are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent.

In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism — not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.

Via Legal Theory Blog. 

Larry Alexander: Constitutional Theories Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Constitutional Theories: A Taxonomy and (Implicit) Critique (San Diego Legal Studies Paper No. 13-120) on SSRN.  Here is the abstract: 

I am honored to have been invited to present this Madison lecture, and I want to thank my hosts, Robby George and Brad Wilson, for their hospitality and for the excellence achieved by the Madison program under their stewardship.

My charge was to present something on constitutional theory. Now, as you shall see, I do work in one corner of constitutional theory; and, of course, I believe it is the right corner to work in, and that all constitutional theorists should be working in my corner. The baleful truth, however, is that most constitutional theorists reject that claim, and this despite several articles of mine urging them to do otherwise. So, to date I have failed in my normative aspirations regarding constitutional theory. And this lecture will steer clear of preaching to the unconverted.

What I intend to do instead is to categorize the extant approaches to constitutional theory, including mine. I am going to taxonomize rather than criticize — although, I confess, some criticisms will seep through, albeit mainly implicitly.

Chemerinsky on Originalism and BradwellChris Green

Erwin Chemerinsky’s review of Judge Wilkinson’s book, which Mike Ramsey notes below, makes a lot of useful points, but I did want to point out a couple of infelicities. He gives a hybrid definition of originalism, both in terms of the nature of constitutional meaning—unchanging—but also in terms of our access to that meaning—that decisions about original meaning should proceed by ignoring sources after the Constitution’s adoption. Chemerinsky says at page 102 (and in the abstract), "Originalists believe that the meaning of a constitutional provision is fixed at the time of its adoption and is changeable only by constitutional amendment. Under this view, Article I of the Constitution means the same thing as it did in 1787 or the First Amendment means the same thing as it did in 1791, and nothing that has happened since should matter in deciding their meanings."

While the first part--the fixity of constitutional meaning--is properly characteristic of originalism, the latter thesis, about how we go about "deciding" what that meaning is, does not seem right to me. For instance, in investigating the historical meaning of the recess appointments clause, one would be remiss to ignore sources even as late as 2005. Obviously, events in 2005 are not constitutive of constitutional meaning expressed in 1787, but they are relevant to deciding what that 1787 meaning is. A fortiori, sources from, say, the 1790s may be relevant sources of information. Just because the focus of the investigation—the meaning expressed by the constitutional text at the time of adoption—is historically confined to the Founding does not mean that our evidence must be so confined.

Secondly, Chemerinsky at page 107 claims that the Equal Protection Clause is particularly difficult to decipher, repeating Judge Wilkinson's argument that such difficulty is a mark against originalism. Chemerinsky cites Bradwell v. Illinois, 83 U.S. 130 (1873), as an instance of the sort of case that would be difficult for originalists to decide under the Equal Protection Clause. But Bradwell was not an Equal Protection Clause case--it involved a challenge to the exclusion of women from practicing law based on the Privileges or Immunities Clause. Matthew Carpenter's argument for Bradwell argued, in fact, that the Privileges or Immunities Clause was the only clause of the Fourteenth Amendment that would prevent a state from excluding freedmen from practicing law. See 83 U.S. at 136. This is not to say, of course, that the Equal Protection Clause is easy to interpret--for my take on the dog-that-didn't-bite relevance of Bradwell to that question, see here at 273-74--but better care with original materials is needed from those like Chemerinsky who make sweeping claims about the nature of the historical record.

Erwin Chemerinsky: The Inescapability of Constitutional TheoryMichael Ramsey

Erwin Chemerinsky (University of California, Irvine, School of Law) has posted The Inescapability of Constitutional Theory (University of Chicago Law Review, Vol. 80, No. 2, 2013, forthcoming) (reviewing Judge J. Harvie Wilkinson's Cosmic Constitutional Theory) on SSRN.  Here is the abstract:

The Constitution inevitably must be interpreted. There are countless issues — such as whether the president can fire cabinet officials or rescind treaties or assert executive privilege — where the document is silent, but a constitutional answer is necessary. So much of the Constitution is written in broad language that must be given meaning and applied to specific situations. What "Commerce . . . among the several States" or "liberty" or "cruel and unusual punishments" or "equal protection of the laws" — and countless other phrases — are must be defined and applied. The assurances of freedom and equality in the Constitution are not absolute, and it is necessary to decide what justifications are sufficient to allow the government to infringe rights or discriminate. Obviously, for all of these reasons, courts must interpret the Constitution, but so must all government officials, all of whom take an oath to uphold the Constitution.

A constitutional theory is an approach that is used to interpret and give meaning to the Constitution. Over the last few decades, two competing constitutional theories have been originalism and nonoriginalism. Originalists believe that the meaning of a constitutional provision is fixed at the time of its adoption and is changeable only by constitutional amendment. Under this view, Article I of the Constitution means the same thing as it did in 1787 or the First Amendment means the same thing as it did in 1791, and nothing that has happened since should matter in deciding their meanings. By contrast, nonoriginalists believe that the Constitution’s meaning evolves by both interpretation and by amendment; loosely speaking, nonoriginalists believe in a "living Constitution." Of course, there are many variants of each of these approaches, and there are other constitutional theories as well. There is a huge scholarly literature debating these and other theories of constitutional interpretation.

Judge J. Harvie Wilkinson III, a former law professor and highly respected judge on the United States Court of Appeals for the Fourth Circuit, has written a provocative book arguing against constitutional theory. In it, he identifies several of the most prominent constitutional theories and presents powerful critiques of them. He concludes that "[w]hat’s needed is not yet another theory but an escape from theorizing" (p 115). He contends that constitutional theories have been harmful to democratic governance. He says that "the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive" (p 4).

In one sense, Judge Wilkinson is surely correct. Throughout American history, justices and judges have decided cases with-out having a "cosmic constitutional theory." In deciding constitutional cases courts always look at the Constitution’s text (which rarely provides answers), the Framers’ intent (if any can be ascertained), the structure of the Constitution, precedent, and social needs. The vast majority of constitutional cases have been decided without any invocation of a constitutional theory. Moreover, no theory ever has been developed for deciding what is a "compelling" or an "important" or a "legitimate" government interest, even though such determinations are at the core of litigation about individual rights and equal protection. No theory exists for deciding what is an “unreasonable” search or arrest, even though judges in courts across the country make that determination countless times everyday.

Yet, in another sense, Judge Wilkinson is profoundly wrong because there is simply no way to avoid a constitutional theory in deciding, or having views on, constitutional issues. Justices and judges — and executives and legislators — need to decide how they will go about giving the Constitution meaning. For example, as explained above, a fundamental question is whether the meaning of a constitutional provision is fixed when it is adopted or whether its meaning can evolve by interpretation; this deter-mines what materials and what arguments are even relevant in interpreting a constitutional provision. In deciding what is cruel and unusual punishment, should the focus be solely on what the Framers deemed objectionable or should the inquiry be about "evolving standards of decency"? There is no way to avoid that question, and whatever the answer, that is a constitutional theory. More generally, there needs to be an approach to deciding when courts should defer to the political process and when they should overrule it. This, too, is a constitutional theory. Judge Wilkinson’s underlying thesis — that constitutional theory is unnecessary and harmful (p 4) — is wrong because constitutional theory is inescapable.

This Review is divided into three parts. First, I briefly summarize Judge Wilkinson’s argument. Second, I argue that despite his protestations to the contrary, Judge Wilkinson has a constitutional theory; it is one that calls for great judicial deference to the elected branches of government. Third, I contend that Judge Wilkinson’s theory is neither defended nor desirable.

Intellectual humility from Justice ScaliaChris Green

Justice Scalia's short concurrence in the human-gene-patentability case this morning strikes an amusing note of humilty about the Justice's ability to understand "the fine details of molecular biology" in the Court's opinion, saying of them, "I am unable to affirm those details on my own knowledge or even my own belief." While some have mocked Scalia for the concurrence, one could see this as a nice application of knowledge as the norm of assertion (see here at pp. 22-23): judges and others lacking knowledge should abstain from speaking on a subject.

The Fourth Amendment in the 21st CenturyMike Rappaport

Over at NRO, Andrew McCarthy criticizes Rand Paul’s new legislation that provides that:

1. The collection of citizen’s phone records is a violation of the natural rights of every man and woman in the United States, and a clear violation of the explicit language of the highest law of the land.

2. The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause.

McCarthy first questions sarcastically whether people have natural rights to privacy as to their phone records (“A citizen’s “natural right” to telephone-usage records that are actually the property of third-party service providers? I wonder what Saint Augustine would have made of that.”) I am skeptical of natural rights, but putting that to the side I think McCarthy is on weak ground here. There is no reason to believe that natural rights would not apply to modern technology. That the records are the property of third party service providers is a better point. But in a world where it mattered who owned the records, perhaps people would insist on a contractual right to privacy in their records, which might change things.

My main focus here, however, is the issue concerning the Constitution. McCarthy writes that the original text does not protect such phone records, because the 4th Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects.” I am not an expert in the original meaning of the Amendment but McCarthy has a point. The records are unlikely to be persons, houses, or papers, and probably not effects as well, which Webster’s 1828 dictionary defines effects as “goods; movables; personal estate.”

If this analysis is correct, then this suggests that the original meaning of the 4th Amendment does not provide protection. What should an originalist say about this?

One possible answer is to say that it is time – and it has long been time – for an updating of the Amendment. Not by the Courts, but by the American people. A recognition that the Amendment does not cover any of these matters in the slightest – nor wiretapping and other matters covered by the Courts in the 1960s and before – would lead to a discussion of what a newer Amendment should cover. Balancing privacy and security involves difficult issues and debating them, in the context of modern technology, would be desirable. More desirable, I would add, them having the Supreme Court decide these matters as they wished.

So, if Rand Paul’s legislation does not enforce the original meaning of the 4th Amendment, does that mean it is unjustified? Absolutely not. In fact, if we are to have a debate about privacy in the modern world, debating legislation of this kind is essential. What is more, if Paul’s legislation became popular and were enacted, that would be useful as well, because it would help us understand how such principles operate in the modern world. We might reasonably want to observe a rule before enacting it  into the Constitution without some understanding of how it operates in the real world.

In the end, then, McCarthy and Paul might both be right. The original meaning of the 4th Amendment probably does not cover these actions, but Paul's legislation (or some other legislation) might make sense.

(Cross posted at the Liberty Law Blog)

Erik M. Jensen: Did the Sixteenth Amendment Ever Matter? Does It Matter Today? Michael Ramsey

Erik M. Jensen (Case Western Reserve University School of Law) has posted Did the Sixteenth Amendment Ever Matter? Does It Matter Today? (Northwestern University Law Review, forthcoming) on SSRN.  Here is the abstract:

This article, prepared for a symposium on the centennial of the ratification of the Sixteenth Amendment, argues that the Amendment was legally and politically necessary in 1913, if there was going to be a modern income tax, and that it remains significant today. The Amendment provides that “taxes on incomes” need not be apportioned among the states on the basis of population, as would otherwise be required for direct taxes. An apportioned income tax would be an absurdity, and, if there were no Amendment, Congress could not enact an unapportioned tax on income from property, the sort of tax that was struck down by the Supreme Court in 1895 in Pollock v. Farmers’ Loan & Trust. The Pollock result was changed by the Sixteenth Amendment, but the core of the case has never been overturned. Indeed, in 2012, in National Federation of Independent Business v. Sebelius, Chief Justice Roberts favorably cited Pollock on a constitutional issue. All of that is to say that, without the Amendment, an unapportioned tax on the income from property would continue to be invalid, which makes the Amendment quite important indeed. Furthermore, a tax on property that is not a “tax on incomes” remains subject to the apportionment rule (and therefore almost certainly an impossibility). The Amendment remains important not only for what it says, but also for what it does not say.

David Upham on Natural Law and OriginalismMichael Ramsey

At Liberty Law Blog, David Upham (guest blogging): The Propriety and Necessity of Natural Law to Originalism.  From the core of the argument:

In one important, but limited respect, commentators generally acknowledge that natural-law considerations belong to, and are thus proper to, the originalist inquiry.  The originalist seeks to know what the authors of a constitutional provision understood, meant, or intended by that provision; and some provisions of the Constitution were understood to (partly) instantiate and secure certain principles of natural right.  Therefore, to understand these provisions, the originalist must understand these principles, even if he deems those principles erroneous or even ridiculous.  So, for instance, whether he was a Lockean or not, Justice Benjamin Curtis was probably correct in Dred Scott to interpret the word “property” in the Due Process Clause to not encompass any “property” prohibited by the Founders’ natural-right principles; that is, the alleged property in human beings.

But besides this occasional role, natural law may be necessary, in a broader sense, to the entire originalist enterprise.  For a century now, judicial fidelity to the Framers’ intent/meaning/understanding has been subject to withering, sustained criticism by progressive jurisprudence.  Perhaps not coincidentally, the rejection of originalism happened roughly contemporaneously with the American academy’s nearly unanimous repudiation of natural law.  In the face of the progressive critique, a plausible natural-law theory may be necessary (in the Hamiltonian sense of expedient, not absolutely necessary) to bolster the theoretical justification of originalism.

David Fontana on Originalism and the Federalist Society (Updated)Michael Ramsey

At the Daily Beast, David Fontana (George Washington Law): A Small Right-Wing Conspiracy: The Federalist Society (discussing Michael Avery and Danielle McLaughlin's new book The Federalist Society: How Conservatives Took the Law Back from Liberals).  From the body of the discussion:

... [I]deas articulated by the organization were not first crafted by the Federalist Society. Take one notable example: how judges should interpret the Constitution. The idea of "originalism" goes back at least as far as Chief Justice John Marshall’s opinions in the early 19th century. Justice Hugo Black was known in the 20th century as a leading originalist. In the decades before the Federalist Society was created, the legal historian Raoul Berger and also [Robert] Bork were known for writing important scholarly defenses of originalist approaches to the Constitution.

Originalism might have been well known, but the best ideas are worthless unless messengers can find the right way to communicate them. The genius of the Federalist Society is that its structure as a tight-knit group of legal elites has permitted it to take ideas like originalism and make them more compelling by finding the right messengers to project them into broader debates. It is the small right-wing conspiracy behind the Federalist Society that makes it as worthy of study as much as the ideas it communicates.

One quibble among several:  Professor Fontana says that originalism is "a doctrine stating that the basic meaning of the Constitution was set at the time the document was created at the end of the 18th century."  No, originalism is the view that the meaning of a constitutional provision is fixed at the time it is adopted, whenever that may be.  Quite a bit has happened to the document since the 18th century.

(Thanks to Bob Gaglione [San Diego Federalist Society]) for the pointer.)

Note: revised slightly after posting for clarification.

UPDATE:  David Fontana responds:

I certainly know that originalism is related to enactment-timed meaning; but would you not agree that originalists would think that the "basic meaning" then relates to the initial enactment of the document, since that is when most of the document and structure was created? "Basic meaning" being set in the eighteenth century does not mean that "final meaning" or "exclusive meaning" was set then.  There might have been a clearer way to state it, but I don't imagine that it is a controversial point.

Well, I guess it depends on what one means by "basic meaning." Of course it's true that much of the basic constitutional structure of government, especially separation of powers and federalism, was set in the eighteenth century.  But the Fourteenth Amendment had a profound effect on the constitutional design (and in my view anyway, the Sixteenth and Seventeenth Amendments did as well).  So I'm not sure whether there is an overarching "basic meaning" that can be ascribed to a single period.  In any event, my complaint (a minor one) was mainly that the phrasing made it sound like originalism was peculiarly focused on the eighteenth century, which is formulation some people use as a sneer against it.

Mary Ziegler: Originalism Talk Michael Ramsey

Mary Ziegler (Florida State University College of Law) has posted Originalism Talk: A Legal History (FSU College of Law, Public Law Research Paper No. 638) on SSRN.  Here is the abstract:

Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles.

The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.

Seth Barrett Tillman: Are Supreme Court Justices 'Officers of and under the United States'?Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Are Supreme Court Justices 'Officers of and under the United States'?: A Proposed Answer for Professor Blackman on SSRN.  

As Professor Tillman frames the question:

The question is not a simple one: good originalist arguments can be put forward supporting both views.  I tend to elide over this question in most of my recent publications, which focus on the President, VP, and members of Congress (and their staff). I have a forthcoming publication, coming out circa September 2013, making some fleeting attempt to answer this question. See Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 60 CLEVELAND ST. L. REV. (forthcoming circa Sept. 2013), available [here].  The question is interesting because-if a Justice of the Supreme Court holds a public trust under the United States, and is not an officer under the United States, then a Supreme Court Justice is not (textually) subject to the Incompatibility Clause (which uses Office under the United States language). In those circumstances, it would seem to follow that a Supreme Court Justice could simultaneously hold a seat in Congress-as a matter of original public meaning. A result which is surprisingly counter-intuitive.

New Scholarship from Gary LawsonMichael Ramsey

Gary Lawson (Boston U. Law) is one of the nation's top originalist scholars, and one of the most amusing and engaging writers in legal academics.   He's published a number of short accessible pieces recently, and I'm not sure we have noted them all, so I've collected them here:

Gary Lawson, Dead Document Walking, 92 B.U. Law Review 1225 (2012) (from the symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution).

Gary Lawson, No History, No Certainty, No Legitimacy ... No Problem: Originalism and the Limits of Legal Theory, 64 Florida Law Review 1551 (2012) (responding to Martin H. Redish & Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative, 64 Florida L. Rev. 1485 (2012)).

Gary Lawson, Night of the Living Dead Hand: The Individual Mandate and the Zombie Constitution, 81 Fordham L. Rev. 1699 (2013) (symposium on NFIB v. Sebelius).

Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. Law Review 1 (2013) (not yet available on line, although the Administrative Law Review promises it soon).

Alexander White: Congress’s Limited and Defined Role in the Process of Amending the ConstitutionMichael Ramsey

Alexander White (Columbia Law School J.D. '13) has this Note in the current issue of the Columbia Law Review: Keep ’Em Separated: Article I, Article V, and Congress’s Limited and Defined Role in the Process of Amending the Constitution (113 Colum. L. Rev. 1051 (2013)).  Here is the abstract:

In August 2011, President Barack Obama signed the Budget Control Act, allowing the United States to continue borrowing money to fulfill its legal obligations. The Act includes a provision that raises the debt ceiling by an additional $1.5 trillion if both houses of Congress pass a Balanced Budget Amendment.

This Note argues that the use of the Article V amendment process to achieve a legislative result is constitutionally suspect, and that legislation enabling the achievement of an Article I result via the Article V process is similarly problematic. More broadly, the Note argues that the text, history, and doctrine surrounding Article V indicate that it was meant to be wholly separate from Article I, and that permitting the conflation of Article I and Article V would be harmful to our constitutional design.

This Note analyzes two failed attempts to amend the Constitution, positing that failure would have been less likely had Congress been free to use its Article I power to influence the Article V amendment process. It discusses the ratification of the Fourteenth Amendment as an exception that proves the rule, arguing that the uncertain status of the Southern states in the wake of the Civil War justified otherwise questionable congressional behavior. This Note concludes that the centuries-old practice of separating Article I from Article V ought to be preserved.

(Thanks to Seth Barrett Tillman for the pointer.)

Louis J. Sirico: The Supreme Court and the Constitutional ConventionMichael Ramsey

Louis J. Sirico (Villanova University School of Law) has posted The Supreme Court and the Constitutional Convention (Journal of Law and Politics, Vol. 27, No. 1, 2011) on SSRN.  Here is the abstract: 

This article offers the first extensive study of the Supreme Court’s reliance on the debates of the Constitutional Convention. It begins with an account of the historical record of the Convention. It then catalogues instances in which the Court has referred to the debates, supplies information on the purposes for which the Court engaged in this reliance, and offers five findings based on the data. The article also offers a limited qualitative analysis of three prominent cases arising at different times in the Court’s history: Dred Scott v. Sandford, Morrison v. Olson, and U.S. Term Limits, Inc., v. Thornton. It analyzes how the Court employed the Convention records in these cases. The article concludes with some conclusions about the role of constitutional history as a method of persuasion in briefs and judicial opinions.

Will Baude: Is Fingerprinting Unconstitutional?Michael Ramsey

At Prawfsblog, Will Baude (guest blogging) asks how (and whether) Justice Scalia's dissent in Maryland v. King distinguishes DNA sampling from fingerprinting:  (When) Was Fingerprinting Unconstitutional?

He offers, and casts doubt on, three possibilities:  "1 Fingerprinting is not a search ...  2. Fingerprinting really is for identification purposes ..."; and "3.  Fingerprinting was unconstitutional for a long time (and maybe still is?..."

This is not my field, but I wonder if the right answer is (1) -- which he seems to think is the least plausible.

(As an aside, Will Baude is guest blogging at Prawfsblog all this month and likely will have interesting things to say about the big upcoming Supreme Court cases.)

Andrew Hyman on the Health Care Act and the Origination ClauseMichael Ramsey

Andrew Hyman makes this interesting contribution to the debate over the limits (if any) imposed on the Senate by the origination clause:

In her very interesting article about the ACA and the Origination Clause, Professor Kysar quotes James Madison from Federalist #58: "The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government."  This seems clearly to confirm that the Senate cannot propose tax increases via amendment to any House Bill. 

During the constitutional convention, Madison suggested that Senate amendments may be invalid if they are not germane, and that "the question will turn on the degree of connection between the matter and object of the bill...."  There Madison was (1) speaking during secret proceedings, (2) about a version of the clause different from the final version, while (3) saying that such disputes would be difficult to settle.  That is all in stark contrast to his statement in Federalist 58, which was very public, very clearly about the final version of the Clause, and hinted at no difficulties in making the determination.

The Senate amendments to the ACA changed the bill from revenue-neutral to revenue-increasing, so clearly the ACA violated the principle described in Federalist 58.  But Professor Kysar points out that the Framers also rejected language that would have prevented the Senate from increasing or decreasing "the sum to be raised."  Actually, that language was rejected because, as Madison explained, he wanted the Senate to be able to "diminish the sums to be raised", and there's no indication that the language was rejected so that the Senate could increase the sums to be raised.  Moreover, it seems reasonable to suppose that the Origination Clause was understood to mean that the Senate could not amend a revenue bill so as to raise more revenue, for the simple reason that the Senate could not amend a non-revenue bill to raise more revenue (note that the Origination Clause limits Senate amendments of revenue bills to those amendments that the Senate can make "on other bills").

There are at least four possible ways to strike down the ACA under the Origination Clause: (1) because the Senate amendments were not germane; (2) because the Senate did not concur to anything the House said; (3) because the Senate increased taxes beyond what the House proposed; and (4) because the original House bill was revenue-neutral instead of revenue-raising.  The more I think about it, the more significant that third point becomes.

Update on Recent Recess Appointments ScholarshipMichael Ramsey

Here are two recent articles siding with the challengers in the recess appointments litigation:

Ryan David Doerfler (Harvard Law School) has posted Go Big or Go Home: The Constitutionality of Recess Appointments Following Pro Forma Sessions of the Senate (Administrative Law Review, Vol. 65, No. 4, 2013) on SSRN.  Here is the abstract:

In Canning v. NLRB, the D.C. Circuit held that the Recess Appointment Power, which permits the President to “fill up all Vacancies that may happen during the Recess of the Senate,” extends only to vacancies that arise during the recess between official sessions of the Senate. This essay advances two principal theses. The first is that the restrictions on the Recess Appointment Power articulated in Canning are compelled by the constitutional text. The second is that those restrictions are the only restrictions that the judiciary is in a position to enforce vis-à-vis the President’s appointments. As to the first thesis, this essay argues that, because of the cursory nature of the linguistic analysis up to this point, most parties to the debate have become convinced (or perhaps better have managed to convince themselves) that the text of the Recess Appointment Clause is ambiguous. It is not, for reasons this essay articulates. As to the second thesis, this essay argues that the less sweeping objection levied against the President’s appointments, that the period of adjournment during which they were issued was simply too brief to constitute a “Recess,” is difficult for a challenger to advance without contradiction, let alone for a court to accept and enforce.

And in the Virginia Law Review's online forum In Brief, Noel J. Francisco and James M. Burnham: Noel Canning v. NLRB - Enforcing Basic Constitutional Limits On Presidential Power.  From the introduction: 

At the outset, we would like to address a common misconception about the power to make recess appointments. Many commentators have approached this issue with the premise that the recess appointments power is an important presidential power that must be shielded from Senate infringement. It is not. The historical record is clear that the appointments power is not a presidential prerogative. Quite the contrary. Angry about the monarch’s widespread abuse of appointments, the Founders created a joint appointment power that was to be shared between the President and the Senate. As Alexander Hamilton wrote in The Federalist No. 67, “The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate.” Recess appointments were a creature of necessity, impelled by the primitive modes of communication and transportation available at the time. The “auxiliary” recess appointment power thus existed solely to keep the government running during the Senate’s lengthy, annual intersession break. It was never intended to provide the very “absolute power of appointment” that the Founders abhorred and had explicitly rejected.

With that background in mind, we will now provide a brief overview of the three basic, independent reasons why the President’s January 4, 2012, “recess” appointments were invalid.

Kathryn Fort: Tribes, Popular Originalism, and the Supreme Court

Kathryn Fort (Michigan State University - College of Law) has posted The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court (St. Louis University Law Journal, Vol. 57, No. 297, 2013) on SSRN.  Here is the abstract:

Writing history is perilously tricky, weighing narratives, presenting facts, and making stories. This is particularly true when the history directly affects the legal rights of a present-day community. When the Supreme Court of the United States writes history, it imbibes the narrative with both cultural and legal authority, and the story the Court creates needs to be both persuasive and perceived as factual. The Court is not a body of historians, obligated to write nuanced history. However, the Court’s opinions and factual reiterations legitimize those facts and history. Once the Court releases an opinion, the history in it achieves a high level of popular authority.

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court's cobbled historical narrative and their veneration for the Founders has affected American Indian tribes. Tribes barely exist in the Constitution, and the Founders “original” understanding of tribes was that they would inevitably disappear.

The “vanishing Indian” stereotype, promulgated in the early Republic, reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes, and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal peoples, and forces tribes into a past where they only exist to disappear.

Akhil Amar and Neal Katyal on Taking DNA SamplesMichael Ramsey

In the New York Times, Akhil Reed Amar and Neal K. Katyal:  Why the Court Was Right to Allow Cheek Swabs.  From the introduction: 

Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results...

(Thanks to Michael Perry for the pointer.)

Rebecca Kysar: The 'Shell Bill' GameMichael Ramsey

Rebecca M. Kysar (Brooklyn Law School) has posted The 'Shell Bill' Game: Avoidance and the Origination Clause (Washington University Law Review, Vol. 91, 2014, forthcoming) on SSRN.  Here is the abstract:

With increasing frequency, many important revenue laws, such as the Affordable Care Act and the American Taxpayer Relief Act of 2012, begin as “shell bills". The Origination Clause of the Constitution aims to place decisions over tax policy closer to the people by requiring that bills raising revenue begin in the House of Representatives, but the Clause also allows the Senate to amend such bills. The Senate has interpreted its amendment power broadly, striking the language of a bill passed by the House (the shell bill) and replacing it entirely with its own unrelated revenue proposal. According to a new challenge against the Affordable Care Act, this shell bill game is an unconstitutional sleight of hand because it obfuscates the bill’s true origins in the Senate.

The constitutional fate of the Affordable Care Act and myriad other revenue laws, as well as the intra-congressional balance of power over revenue policy, turns on the interpretation of the Senate’s power to amend revenue legislation, an analysis heretofore unexplored in the academic literature. This article draws upon constitutional text, history, and congressional and judicial precedent to conclude that such amendment power is broad and, accordingly, that the Affordable Care Act does not violate the Origination Clause. This article also proposes a conceptual framework for analyzing existing jurisprudence interpreting the Origination Clause — a “legislative process avoidance” doctrine, whereby the Court deflects searching review of lawmaking procedures. Grounded in constitutional text and history, theories of judicial review, and longstanding principles guarding congressional purview over internal rules, this legislative process avoidance doctrine further supports deference to the Senate’s expansive interpretation of its amendment power without rendering the Clause a nullity. Separation of powers concerns also show the doctrine’s promise in other constitutional contexts, such as the interpretation of gaps in the lawmaking process left open by Article I, Section 7.

(Thanks to Seth Barrett Tillman for the pointer.)

(For some counterpoints previously noted, see here.)

Sopan Joshi Responds to Seth Barrett TillmanMichael Ramsey

On presentment and constitutional amendments, Sopan Joshi offers this response to Seth Barrett Tillman's comment (here):

Seth Tillman offers a unique perspective on Article I, Section 7, Clause 3, arguing that it does not merely extend the presentment requirement to cover bicameral activity labeled something other than a "bill" (which is the traditional interpretation of that Clause), and hence does not cover constitutional amendment proposals. The Clause reads in relevant part:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States.

As I understand Tillman, had the Framers used "is" instead of "may be," he would have no quarrel with the position that the Clause applies to amendment proposals. But because the Framers chose the latter, then the relevant portion of the Clause, in his view, should be read (alterations are Tillman's, not mine):

Every [final] Order, Resolution, or Vote [of a single house] to which the [prior] Concurrence of the Senate and House of Representatives may be necessary [as bicameral congressional authorization for subsequent single-house action] . . . shall be presented to the President [so that his veto might act upon the subsequent single-house action just as it acted upon the prior authorizing legislation].... [Tillman, 83 Tex. L. Rev. 1265, 1321 (2005)].

I think this is a bit more weight than "may be" can bear.

The Framers used "may be" at several points in the original Constitution, in many instances as a direct substitute for "is" (or "are"). To wit,

Article I, Section 2: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union"

Art. I, Sect. 8: "The Congress shall have Power...To provide for organizing...the Militia, and for governing such Part of them as may be employed in the Service of the United States"

Art. I, Sect. 10: "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 its inspection Laws"

Art. II, Sect. 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress"

Art. IV, Sect. 2: "[Slaves] shall be delivered up on Claim of the Party to whom such Service or Labour may be due"

Would the meaning of any of these provisions change were we to substitute "is" (or "are") for "may be"? I think not, which is why I fear Tillman "may be" wrong to infer a meaningful difference between the two. This is not to take away from the ingenuity or validity of his thoroughly researched and well-laid-out position in the Texas Law Review. At heart, the real question is whether one, like James Madison, chooses to interpret Art. I, Sect. 7, Cl. 3 in the most straightforward (Tillman might say simplistic or naive) manner, or instead chooses to take Tillman's leap of faith and read into the Clause much more than it seems to say. I'm sorry to say that I'm with Madison on this one. 

Lee B. Kovarsky: A Constitutional Theory of Habeas Power Michael Ramsey

Lee B. Kovarsky (University of Maryland Francis King Carey School of Law) has published A Constitutional Theory of Habeas Power in the current issue of the Virginia Law Review (June 2013, Volume 99, Issue 4). Here is the abstract:

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ - they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum of habeas process.

I argue that Article III combines with the Suspension Clause to guarantee habeas process and to specify the exclusive conditions by which Congress may restrict it. My 'Habeas Power Theory' has two global principles: (1) that the constitution entitles all federal prisoners to some quantum of habeas (or substitute) process before an Article III judge; and (2) that, absent a formal suspension, the constitution does not permit Congress to restrict judicial power to determine what constitutes proof of lawful custody. 

By cohering the new writ history, decisional law, and maxims of federal jurisdiction, I sketch a theory for how judges ought to use habeas to test different forms of federal power - for immigration, military, and criminal custody. 'Habeas Power' represents an entry in a new thread of habeas literature, growing out of the War-on-Terror litigation and focusing on what one might call the 'core features' of the writ. Methodologically, the Article embraces the renewed emphasis on pre-Revolutionary English writ practice and habeas suspension statutes. It is also the scholarship’s most extensive treatment of habeas jurisdiction as an Article III remedial power over federal custody. By formulating the habeas authority as a power of judges, I try to square an affirmative constitutional guarantee of habeas process with more established maxims of federal jurisdiction.

Supreme Court Decisions on DNA Samples and on PreemptionMichael Ramsey

In today's decision in Maryland v. King, the Court approved warrentless taking of DNA samples after an arrest; Justice Scalia dissented (joined by Ginsburg, Sotomayor, and Kagan, but not Thomas).  Analysis from Lyle Denniston and SCOTUSblog is here.  Scalia's opinion is principally policy-driven; the originalist analysis is almost all contained in section I.A., as follows:

At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application. The first Virginia Constitution declared that “general warrants, whereby any officer or messenger may be commanded to search suspected places without evi­dence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.” Va. Declaration of Rights §10 (1776), in 1 B.Schwartz, The Bill of Rights: A Documentary History 234, 235 (1971). The Maryland Declaration of Rights similarly provided that general warrants were “illegal.” Md. Decla­ration of Rights §XXIII (1776), in id., at 280, 282.

In the ratification debates, Antifederalists sarcastically predicted that the general, suspicionless warrant would be among the Constitution’s “blessings.” Blessings of the New Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary History of the Ratification of the Constitu­tion 345 (J. Kaminski & G. Saladino eds. 1981). “Brutus” of New York asked why the Federal Constitution con­tained no provision like Maryland’s, Brutus II, N. Y. Jour­nal, Nov. 1, 1787, in id., at 524, and Patrick Henry warned that the new Federal Constitution would expose the citi­zenry to searches and seizures “in the most arbitrary manner, without any evidence or reason.” 3 Debates on the Federal Constitution 588 (J. Elliot 2d ed. 1854).

Madison’s draft of what became the Fourth Amendment answered these charges by providing that the “rights of the people to be secured in their persons . . . from all un­reasonable searches and seizures, shall not be violated by warrants issued without probable cause . . . or not particu­larly describing the places to be searched.” 1 Annals of Cong. 434–435 (1789). As ratified, the Fourth Amend­ment’s Warrant Clause forbids a warrant to “issue” except “upon probable cause,” and requires that it be “particula[r]” (which is to say, individualized) to “the place to be searched, and the persons or things to be seized.” And we have held that, even when a warrant is not constitutionally necessary, the Fourth Amendment’s general prohibition of “unreasonable” searches imports the same requirement of individualized suspicion. See Chandler v. Miller, 520 U. S. 305, 308 (1997).

That does not seem to me to get very far in answering the particular question posed by the case, and indeed this may be an example of a question where technological changes put the matter beyond originalist capacity to answer.  (Further commentary from Orin Kerr at Volokh Conspiracy can be found here and here).

Meanwhile, in Hillman v. Maretta the Court unanimously decided that the Federal Employees’ Group Life Insurance Act of 1954 (FEGLIA) – which permits a federal employee to name a beneficiary of life insurance proceeds and specifies that an employee’s death benefits accrue first to that beneficiary ahead of other potential recipients – preempts (quite obviously, one would think) a Virginia statute that provides a different result if the employee had a change in marital status and the named beneficiary is the former spouse.  (Analysis from Tejinder Singh at SCOTUSblog is here).  The Court goes on a bit about the federal statute's "purposes and objectives," prompting this concurrence in the judgment from Justice Thomas:

The Court correctly concludes that §20–111.1(D) of the Virginia Code (Section D) is pre-empted by the Federal Employees’ Group Life Insurance Act of 1954 (FEGLIA), 5 U. S. C. §8701 et seq. But I cannot join the “purposes and objectives” framework that the majority uses to reach this conclusion. Ante, at 6. That framework is an illegitimate basis for finding the pre-emption of state law, see Wyeth v. Levine, 555 U. S. 555, 583 (2009) (THOMAS, J., concurring in judgment), and is entirely unnecessary to the result in this case, because the ordinary meanings of FEGLIA and Section D directly conflict. Accordingly, I concur only in the judgment.

The Supremacy Clause establishes that federal law “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary nothwithstanding.” Art. VI, cl. 2. “Where state and fed­eral law ‘directly conflict,’ state law must give way.” PLIVA, Inc. v. Mensing, 564 U. S. ___, ___ (2011) (slip op., at 11) (quoting Wyeth, 555 U. S., at 583). As I have noted before, courts assessing whether state and federal law conflict should not engage in a freewheeling inquiry into whether state law undermines supposed federal purposes and ob­jectives. Id., at 588. Such an approach looks beyond the text of enacted federal law and thereby permits the Federal Government to displace state law without satisfying an essential precondition to pre-emption, namely, the Bi­cameral and Presentment Clause. Id., at 586–587. Pre­emption analysis should, therefore, instead hew closely to the text and structure of the provisions at issue, and a court should find pre-emption only when the “‘ordinary meaning’” of duly enacted federal law “effectively repeal[s]contrary state law.” PLIVA, supra, at ___–___ (slip op., at 14–15, 17).

Applying these principles, it is clear that the ordinary meaning of FEGLIA directly conflicts with [the Virginia law]….

Absolutely right, in my view (but I still don't think there is a hyphen in "preemption").

David Rivkin & Elizabeth Price Foley on the Case against Judicial DeferenceMichael Ramsey

David B. Rivkin Jr. and Elizabeth Price Foley (Florida International University) have this article in the June 10, 2013 issue of the Weekly Standard: The Case Against Deference -- Judges should be unafraid to review government actions.  From the introduction:

For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.

The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.

Fortunately, a younger generation of conservative lawyers has come to recognize that there is no principled distinction between inventing new rights, unmoored from the Constitution’s text or history, and refusing to uphold constitutionally anchored limits on government power. In both instances, judges are ignoring the Constitution and engaging in​—​for lack of a better term​—​judicial activism. Judicial deference may have reined in judicial power, but at an unacceptable constitutional price. For both doctrinal and pragmatic reasons, the concept needs rethinking. 

The issue was discussed last week at interesting length by Greg Weiner and Mike Rappaport here and here, with further thoughts here (Weiner) and here (Rappaport).

David Upham Blogging at Liberty Law BlogMichael Ramsey

David Upham (University of Dallas -- Political Science) will be guest blogging at Liberty Law Blog this month (announcement here from Richard Reinsch).  Professor Upham is an outstanding originalist scholar (see this recent article) and so will likely have things of originalist interest to say.

Stephanos Bibas: Justice Kennedy's Sixth Amendment Pragmatism Michael Ramsey

Stephanos Bibas (University of Pennsylvania Law School) has posted Justice Kennedy's Sixth Amendment Pragmatism (McGeorge Law Review, Vol. 44, Pg. 211, 2013) on SSRN.  Here is the abstract:

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.

 The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.

Seth Barrett Tillman on Presidents Vetoing Constitutional AmendmentsMichael Ramsey

From Seth Barrett Tillman:

This is a short response to Sopan Joshi, Andrew Hyman, and others who have written on Article I, Section 7, Clause 3 and Article V, and the interplay (if any) between the two. In other words, the question here is “whether congressional concurrent resolutions proposing constitutional amendments are subject to presentment?” 

Article I, Section 7, Clause 3 states:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

There is very little commentary in regard to what this clause meant as a matter of original public meaning. I wrote an article on this topic in 2005, and there are now a total of three other articles discussing this topic in significant detail: one by Ginnane (1953), one by Black (1978), and one by Joshi (2013). In terms of older materials, we have a short squib by Madison from his convention notes and another squib from Judge Tucker. That’s about it. What these commentators do not do is to parse the words of this clause in order to see precisely how these words reach the meaning they ascribe to the clause.  Hollingsworth v. Virginia (U.S. 1798) only adds to the confusion because the decision’s legal rationale is left unclear (or, at least, unclear to most modern readers).

Here is an example of what I mean. 1/7/3 starts with:

“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary.” (emphasis added).

Now according to the received wisdom, the purpose of this clause was to make sure that bills, acts, and statutes are subject to presentment even if Congress labels the bills something other than a bill. In other words, according to the received wisdom, 1/7/3’s purpose is to block feared congressional efforts to evade presentment. There are lots of historical problems with this theory, but here, instead, I want to focus on text. If the purpose of 1/7/3 is to block congressional efforts to evade presentment in the lawmaking process, then the clause should have been written as:

“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives is necessary.”

Whatever the Framers knew or did not know in 1787 at the Philadelphia Convention, you can be sure each and every one of them knew that in order to pass a statute, it absolutely had to pass in each House. In short, the “may be necessary” language does not cohere with the received wisdom as to the meaning of 1/7/3. (Nor does it cohere with the language of the Presentment or Veto Clause (1/7/2).) The received wisdom is not merely a poor fit. The received wisdom is the legal equivalent of hammering a square peg into a round hall. It is no fit at all.

I am not going to opine in this particular blog post on what 1/7/3 means. [I have over 100 pages on that issue in an article appearing at 83 Texas Law Review 1265 (2005).] And I am not going to take a position in regard to whether or not congressional concurrent resolutions proposing constitutional amendments are subject to presentment as a matter of original public meaning. Id.

My point is more limited. For Joshi or Hyman or anyone else to answer that question, they first need an account of the scope of 1/7/3 which explains its actual wording. Because they have not done that, they cannot meaningfully answer the question at hand. And that’s hardly a surprising result. How 1/7/3’s veto/presentment rules relate to Article V cannot be answered until we first know what 1/7/3 means. And to know what 1/7/3 means, we have to start our inquiry with its actual words. That is not just best practice among originalists—or, even, simply a matter of fair academic inquiry—that’s the rule of law.

Mitchell Berman & Kevin Toh: Pluralistic Nonoriginalism and the Combinability Problem Michael Ramsey

Mitchell N. Berman (University of Texas School of Law) and Kevin Toh (San Francisco State University) have posted Pluralistic Nonoriginalism and the Combinability Problem (Texas Law Review (Forthcoming)) on SSRN.  Here is the abstract:

The commonly-held assumption that there exists a genuine dispute between originalists and nonoriginalists can appear surprisingly infirm when closely scrutinized. Many contemporary originalists speak in terms of what the constitutional law is or consists of. Their claim (to a first approximation) is that the original public meaning of the constitutional text is our ultimate constitutional law. In contrast, most contemporary nonoriginalists tend to speak in terms of what constitutional interpreters should do. These nonoriginalists (often termed “pluralists”) urge that judges do and should decide cases based on a variety of considerations or facts, including: semantic facts concerning what the constitutional text means; historical facts regarding what courts and other state actors have said and done in the past; sociological and psychological facts about present-day Americans' behavior and thoughts; moral facts regarding what justice demands; prudential facts regarding what would make the legal system work better; and so on. In short, originalists seem committed to a theory of law, whereas nonoriginalists appear to advocate a theory of adjudication, and the two need not be construed as incompatible.

In order to determine whether originalists and nonoriginalists really do disagree with each other, it will be useful to translate nonoriginalist views about what judges should do into claims about what the constitutional law is. In this essay, produced for a symposium on “constitutional foundations,” we attempt to effectuate just such a translation — that is, we devise an explicit nonoriginalist conception of constitutional law that can serve as a clear competitor to the originalist conception. According to the conception of law that we deem faithful to the spirit of nonoriginalists' adjudicative prescriptions, the constitutional law consists of some combination of semantic, historical, sociological, psychological, moral, and prudential facts. Some influential originalists have already anticipated such a nonoriginalist conception of law by arguing that any such combination of different kinds of facts suffers from incoherence, impossibility, or some analogous fatal defect. “The combinability problem” is the name we give to this problem that allegedly ails all pluralist nonoriginalist conceptions of law. We disambiguate several versions of the combinability problem and disarm each in turn. Furthermore, with a view toward blunting what we consider the most potent version of the combinability problem, we offer an avowedly tentative and very partial enumeration of the ultimate legal norms of the American legal system.

Barry Cushman: NFIB v. Sebelius and the Transformation of the Taxing PowerMichael Ramsey

Barry Cushman (Notre Dame Law School) has posted NFIB v. Sebelius and the Transformation of the Taxing Power (Notre Dame Law Review, Vol. 89, 2013, forthcoming) on SSRN.  Here is the abstract:

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other justices had concluded that the provision was not a legitimate exercise of the Commerce Power, the Court held that it was a valid exercise of the Taxing Power.

The origin of the distinction between taxes and penalties in Taxing Power jurisprudence is found in the 1922 decision of Bailey v. Drexel Furniture Co., more commonly known as the Child Labor Tax Case. There the Court invalidated a provision of the 1919 Revenue Act imposing an excise of ten percent on the net profits of all firms employing children under specified ages in various tasks, for longer than specified hours, or at night work. Bailey was followed in other, similar cases in the 1920s and 1930s, and the Court continued to treat those precedents as good law throughout the remainder of the 20th Century.

Chief Justice Roberts did not reject the authority of the Child Labor Tax Case. Instead, he reviewed the features of the Child Labor Tax that had prompted Chief Justice Taft and his colleagues to conclude that the measure imposed a regulatory penalty, and then offered several distinctions between the ACA and the earlier exaction. But a review of the reaction of child labor reformers to the 1922 decision suggests that contemporaries would not have regarded those distinctions as constitutionally significant. For child labor advocates in the 1920s did not believe that if they revised the measure to remove those objectionable features, the tax would then pass constitutional muster. Instead, they regarded the idea of such a constitutional excise as hopeless, and turned their attention to an unsuccessful effort to amend the Constitution to permit Congress to enact federal child labor legislation.

This article, a version of which was delivered as the Constitution Day Lecture at the University of Notre Dame in September of 2012, proceeds as follows: Part I provides an overview of the relevant twentieth-century Taxing Power precedents. Part II reviews the decisions of the lower federal courts concerning the construction and constitutionality of the ACA as a taxing measure. Part III canvasses the arguments made in the briefs submitted to the Court, observing that the decisive Taxing Power issue received scant attention from the parties. Part IV scrutinizes Chief Justice Roberts’s efforts to distinguish the Child Labor Tax Case, concluding that if the assessment of that decision by contemporary observers was accurate, each of those distinctions is insufficient. Part V draws on the contemporaneous analysis of Professor Thomas Reed Powell to isolate the core principle emerging from the Child Labor Tax Case and its progeny: that a nominal tax is in fact a regulatory penalty where it imposes an exaction triggered by departure from a detailed and specified course of conduct, and the exaction is sufficiently onerous to induce those engaged in the targeted conduct generally to alter their behavior. Part VI presents an argument, not considered by the Court, that the ACA might be understood to impose a regulatory penalty so defined. If that understanding is correct, then the Court may have effectively overruled the Child Labor Tax Case and its progeny sub silentio, thereby substantially transforming Taxing Power doctrine. Part VII explores an alternative, albeit considerably less likely possibility: that contemporary child labor reformers misunderstood the Child Labor Tax Case, and could have successfully revised and defended a new Child Labor Tax by altering one or more of the distinguishing features identified by Chief Justice Roberts. If that is so, then that unfortunate generation of social activists squandered fifteen years in fruitless pursuit of a constitutional amendment authorizing Congress to regulate the labor of children, when a much easier and more expeditious solution lay right before their eyes.

A Response on Presidents Signing Constitutional AmendmentsMichael Ramsey

Sopan Joshi (author of this article) responds to these comments by Andrew Hyman:

Thanks to Andrew Hyman for his thoughtful post.

Hyman first argues that a constitutional amendment does not “take effect” when passed by Congress and it is thus outside the scope of the Presentment Clause in Article I, Section 7. Although the amendment itself does not immediately take effect, the constitutional amendment proposal certainly does. Consider a hypothetical: suppose each of the legislatures in all 50 states “ratify” a constitutional amendment banning abortion (or, if you prefer, legalizing gay marriage). Further suppose, however, that Congress did not first adopt the amendment proposal by two-thirds votes in each chamber. Would the amendment be valid? I think the clear answer is “no,” and I suspect that Hyman agrees. A congressional proposal is the necessary first step in the amendment process; without it, subsequent state “ratification” is constitutionally meaningless. But that means that the congressional proposal itself has some legal effect. And if it has legal effect, then it must have “take[n] effect,” no?
 
Alternatively, Hyman argues that Article V’s use of the word “whenever” somehow grants Congress a freewheeling license to bypass presentment. This strikes me as a bit of a stretch. I read “whenever” as simply saying that Congress may initiate the amendment process at its sole discretion, just as it can, say, create lower federal courts “from time to time.” But it by no means follows that Congress has the power to unilaterally control the process once initiated. By way of analogy, when I tell my four-year-old daughter that we can go to the park to play “whenever she wants,” I most certainly do not mean that she may leave the house by herself and without informing me. Parental accompaniment, like presidential presentment, operates as a default background rule; only explicit language to the contrary can overcome it. “Whenever” falls far short.
 
Finally, Hyman argues that the phrases “application by the legislatures” and “ratified by the legislatures” in Article V somehow imply that the executive is not involved. This argument proves too much. As I discuss in my article, the President is not mentioned in any of the grants of congressional power. Yet nobody could seriously argue that congressional exercise of those powers is immunized from presentment. In short, the quoted phrases tell us nothing about whether the President is or is not involved in the amendment process. Hyman is correct that the natural consequence of my position is that the President must also have the power to veto a congressional resolution calling for a constitutional convention. Contrary to Hyman’s assertion, though, the President’s exercise of that power would not “thwart Congress in doing its constitutional duty.” Rather, it would be keeping in line with constitutional separation of powers. After all, if the convention were truly meant to be “automatic,” then the Framers could have simply bypassed Congress altogether. They did not. And by requiring bicameral action of Congress to call a convention, the Framers necessarily incorporated the presentment requirement as well.