James Ely and Nick Sibilla on Sveen v. Melin and the Contracts Clause
MIchael Ramsey

In the Wall Street Journal, James Ely (Vanderbilt) and Nick Sibilla (Institute for Justice): The Supreme Court’s Chance to Rebuild a ‘Constitutional Bulwark’.  From the introduction:

An obscure dispute over life insurance could breathe new life into a long-neglected constitutional safeguard for economic freedom.


Sveen v. Melin [Ed.: argued Monday 3/19; SCOTUS analysis hereis the first Contract Clause case to appear before the high court in more than 25 years. By accepting this case, the justices may be signaling a willingness to restore the clause, which has fallen into disuse, to its historical vigor.

Unlike some other disputed constitutional provisions, the clause is unequivocal: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” James Madison called it a “constitutional bulwark in favor of personal security and private rights.” The Contract Clause was one of the few curbs on state government power placed in the original Constitution.

And in conclusion: 

Sveen v. Melin gives the justices a path to return to the clause’s original meaning. A ruling for Ms. Melin would set an important precedent that could advance liberal priorities as well as conservative ones. With a reinvigorated Contract Clause, laws that impose rent control, alter franchise agreements, abolish teacher tenure, or modify public employees’ benefits could all be scrutinized for infringing existing contracts. Restoring the Contract Clause to its rightful place in the constitutional order would also help ensure respect for the rule of law.

(Via How Appealing).


Jeffrey Pojanowski on Joseph Postell on the Administrative State
Michael Ramsey

At Liberty Law Blog, Jeffrey Pojanowski: A New Classic in Administrative Skepticism (reviewing Bureaucracy in America by Joseph Postell [Univ. of Missouri Press 2017]).  Here is the introduction: 

Not long ago, Americans were entertaining the prospect of a 2020 presidential race between Donald Trump and Oprah Winfrey. Although the Oprah boomlet appears to have fizzled, one could not avoid thinking that a country contemplating a choice between two television celebrities takes its presidential elections literally, but not seriously. Were the President a mere figurehead, we might shake our head in wry bemusement, but in the past 100 years the importance of the federal executive has grown exponentially, aided by a Congress happy to delegate power while disclaiming responsibility. In response, an increasing number of scholars and jurists have criticized the rise and rise of the administrative state. Joseph Postell’s history, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, is an important new contribution to this discussion.

To put the point more strongly, Bureaucracy in America is essential reading for the new critics of the administrative state, and their critics as well. In fact, it may be even more important than the book that launched the revival in administrative skepticism, Philip Hamburger’s Is Administrative Law Unlawful?Hamburger’s insistence on analogizing between the contemporary administrative state and English monarchical power, while rhetorically powerful, skips over much of 200 years of American constitutional and administrative law. Consequently, one major line of criticism focuses on whether Hamburger gets his English history right. Another contends that English history is irrelevant, given that subsequent American history and doctrine shows the administrative state to be lawful. If the administrative state’s critics are litigating details of the Star Chamber while ceding the field on American legal history and practice from 1787 to 1987, its defenders have little to fear.

By contrast, Postell, an associate professor of political science at the University of Colorado, carefully traces the history of American administrative law from the colonies to today. In doing so, he challenges two defenses of the contemporary administrative state: 1) that it is not an innovation on our original constitutional order, and 2) that any departure from original order was good and necessary—even inevitable. Bureaucracy in America contests the first point robustly. The case he makes on the second is more indirect and ambiguous, yet nevertheless illuminates our current predicament and potential responses to it.

And here is the book description from Amazon: 

The rise of the administrative state is the most significant political development in American politics over the past century. While our Constitution separates powers into three branches, and requires that the laws are made by elected representatives in the Congress, today most policies are made by unelected officials in agencies where legislative, executive, and judicial powers are combined. This threatens constitutionalism and the rule of law. This book examines the history of administrative power in America and argues that modern administrative law has failed to protect the principles of American constitutionalism as effectively as earlier approaches to regulation and administration.


Maggie Gardner: Abstention at the Border
Michael Ramsey

Maggie Gardner (Cornell Law School) has posted Abstention at the Border (Virginia Law Review, forthcoming) on SSRN.  Here is the abstract:

The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.

This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.

In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.

Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue.

Agreed as to the first proposition, but I don't think it goes far enough.  As Marshall said, it is the province and duty of the courts to say what the law is.  Discretionary abstention not based on a direction from Congress or the Constitution is abdication (and contrary to the judicial oath).  But some individual doctrines may be justifiable on constitutional, statutory or interpretive grounds.  For that reason, the article's suggestion to consider the various "comity" doctrines individually and specifically, rather than as an undifferentiated idea of discretionary abstention, is the right way to start.


Matthew Steilen: How to Think Constitutionally About Prerogative
Michael Ramsey

Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posed How to Think Constitutionally About Prerogative: A Study of Early American Usage (Buffalo Law Review, forthcoming) on SSRN.  Here is the abstract:

This Article challenges the view of "prerogative" as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke's account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers and legislative debates, this Article argues that early Americans almost never used "prerogative" as Locke defined it. Instead, the early American understanding of "prerogative" appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis Americans based their claims to enjoy rights of self-taxation on their colonial charters, which were issued by the King's prerogative. The primary connotations of "prerogative" for Americans were thus self-government and the benefits of government, principally the protection of property and liberty. Drawing on this innovative view, the Article then proffers several principles for constructing the powers of the President. It argues that the Article II Vesting Clause should be treated as a substantive grant of executive power, but conceived narrowly as the power to carry out the law, not as a grant of prerogative. It is the enumerated powers in Article II that establish presidential prerogatives. These powers should be treated as "defeasible" in the sense that they may be regulated by statute and judicial decision, within limits the Article describes. This framework is consistent with the series of modern statutes regulating presidential emergency powers, including the War Powers Resolution and the National Emergencies Act.


Paul Moreno on Paul Finkelman on Marshall, Story and Slavery
Michael Ramsey

At Liberty Law Blog, Paul Moreno (Hillsdale College, constitutional history): Failed Attempt to Cut Marshall and Story Down to Size (commenting [unfavorably] on Paul Finkelman,   Supreme Injustice: Slavery in the Nation’s Highest Court [Harvard University Press 2018]).  From the introduction:

What if William Lloyd Garrison, the fiery abolitionist editor and activist, had gotten a Ph.D. and become an academic? He would be Paul Finkelman, the itinerant law professor now president of Gratz College in Philadelphia. Finkelman has spent this career making the argument that the Constitution was a pro-slavery document, regularly pounding the Founding for its racism. Indeed, he used Garrison’s famous description of the Constitution as a “covenant with death” as the subtitle of an essay on the Constitutional Convention.

Historian Don E. Fehrenbacher, on the other hand, has more convincingly shown that the Constitution was an anti-slavery document that was interpreted and administered in a pro-slavery way, creating what he called, in his 2001 book, The Slaveholding Republic. (This was the view of anti-slavery constitutionalists like Frederick Douglass and Abraham Lincoln.)

In Supreme Injustice: Slavery in the Nation’s Highest Court, Finkelman now extends his analysis to the antebellum Court and claims that it “invariably voted against liberty and in favor of slavery.” While not without merit, the new book displays the rhetorical overkill that characterizes Finkelman’s earlier work.

Its title is somewhat misleading. Supreme Injustice (given as the Nathan I. Huggins lecture series at Harvard) is really about three justices: John Marshall, Joseph Story, and Roger B. Taney. The bombshell revelation here is that John Marshall owned hundreds of slaves, and actively bought and sold them throughout his life. His biographers have all either ignored or denied this fact—Jean Smith, for example, wrote that Marshall owned a few slaves for domestic work, and G. Edward White said that Marshall was “not a slave owner.” But Finkelman tries to turn this discovery into the dominant theme of Marshall’s life and career. ...

And on Story:

Justice Story ... has always been regarded as an ardent opponent of slavery. The author does concede that he was, in his early years. “In 1819-20 he was truly a just judge,” writes Finkelman sanctimoniously. He offers no explanation as to why Story became more accommodating to slavery later; but again, the 1819-20 period looks pivotal. More to the point is the question of whether Story really did alter his views.

The key case here is Prigg v. Pennsylvania (1842). Story upheld the constitutionality of the Fugitive Slave Act of 1793 and struck down the “personal liberty laws” of free states, which might have obstructed that Act in an effort to protect their free black citizens. On the other hand, Story held that states could not be compelled to cooperate in the enforcement of the Fugitive Slave Act. Most commentators have seen Prigg as a compromise, with the no-commandeering provision bolstering abolitionist forces. As the leading textbook in U.S. constitutional history puts it, Prigg appeared to be “a major victory for the slave interest . . . yet Story’s opinion also contained a discordant note that proved to have antislavery potential.” Finkelman admitted as much in an earlier article in Civil War History whose subtitle was, “Anti-Slavery Use of a Pro-Slavery Decision.”


Here again it appears that nationalism trumped liberty, this time with Justice Story. But this hardly makes Story a friend of slavery. Daniel Webster was similarly vilified by the Garrisonians for his support of the Fugitive Slave Act. Abraham Lincoln, too, accepted the fact of the Constitution’s fugitive slave clause and recognized the rights of slaveholders under it. But Lincoln also pointed out that the Constitution must protect the rights of free blacks. “In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man may not in any case be surrendered as a slave?” he said in his First Inaugural address. Lincoln called for legislation to protect the privileges and immunities of all American citizens. It is likely that these would also have been part of Story’s position on the fugitive slave question.

(Thanks to Mark Pulliam for the pointer).

RELATED: Also at Liberty Law Blog, Allen Guelzo (Gettysburg College, history): The Constitution: A Pro-Slavery or Anti-Slavery Document?

Curiously, the most vehement arguments construing the Constitution as a pro-slavery document came from abolitionists. William Lloyd Garrison denounced the Constitution as an “infamous bargain” that trampled the “solemn and heaven-attested Declaration [of Independence], that all men are created equal.” Frederick Douglass was even more explicit, itemizing the Three Fifths Clause, the 20-year breathing room given to the importation of slaves, the fugitive clause, and even the provisions for suppression of domestic insurrection as deliberately written to befriend slavery.

Modern neo-abolitionist historians have taken up the Garrison-Douglass argument, beginning with Paul Finkelman, who develops an even longer list of provisions in the Constitution which betray a pro-slavery bias—the Electoral College and the direction that assessment of direct taxes, both of which are calculated by using the Three Fifths clause, the ban on export taxes (to favor cotton as an export commodity), and the limitation of civil suits and “privileges and immunities” to “citizens” (Article 3, Section 2). “A careful reading of the Constitution,” Finkelman insists, “reveals that the Garrisonians were correct: the national compact did favor slavery. . . . No one who attended the Philadelphia Convention could have believed that slavery was temporary.” Similar arguments are made by David Waldstreicher, who notes that “Of its eighty-four clauses, six are directly concerned with slaves and their owners,” while “five others had implications for slavery.” In fact, Waldstreicher adds, the motivation for many of the Founders in their Revolution was a desire to protect slavery from what they perceived as increasing British imperial hostility to it, beginning with the Somerset decision in 1772. Hence, in “growing their government, the framers and their constituents created fundamental laws that sustained human bondage.”

But in conclusion:

The original abolitionist argument was less a matter of serious constitutional argument and more a sensationalist strategy for awakening Americans to the encroachments of “the Slave Power.” The neo-abolitionist case is a more serious one, but it is marred by a highly partisan reading of the Constitution’s provisions, arising in some measure from a hostility to Constitutional originalism (so that if the Constitution is to be read through an originalist lens, originalism could be embarrassed into supporting slaveholding). The arguments of Lincoln, Fehrenbacher, and Oakes could be construed as suffering from an equal-but-opposite optimism about the Constitution’s pro-freedom intentions. But the proof surely lies in the slaveholders’ response to the election of Lincoln to the presidency in 1860: they were so convinced that the Constitution would not protect slavery that they attempted to secede from the Union, and then wrote a replacement Constitution which did expressly legitimize slavery. Their actions spoke louder than the neo-abolitionists’ words, and testified that the Constitution is a freedom document, after all.


The Supreme Court and the "Modern Liberal Judicial Activist’s Favorite Tool"
Andrew Hyman

A few days ago, over at the great blog Bench Memos, longtime blogger Ed Whelan wrote  the following:

Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—"substantive due process"—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: "[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law."

Ed is a great blogger and legal scholar, with whom I agree very often, but I believe this characterization is amiss.  It's true that liberal activist justices have cited Taney’s opinion to justify the modern doctrine of substantive due process (SDP), and here is William O. Douglas lauding Taney for making SCOTUS almost as powerful as Xi Jinping:

Substantive due process had its beginnings in state court decisions construing 'due process' as used in state Constitutions. Taney in his Dred Scott opinion gave the idea wings when he said ‘[A]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law,' 19 How. 393, 450.  That view – expanded and refined – meant that the judiciary judged legislation by whether it was reasonable, rational, or desirable.  As Edwin Borchard once said, "if the due process decisions on substantive law prove anything, they demonstrate that the Court's judgment is the product of the will. It is the social and economic predilection which speaks."

But, if a pro-slavery majority of the U.S. Supreme Court in Dred Scott really did engage in an SDP attack upon congressional power in 1857, then the victors in the subsequent Civil War would likely have wanted the Fourteenth Amendment’s Due Process Clause to attack the states in the same way. After all, leading Republican politicians like James F. Wilson were keen to "turn the artillery of slavery upon itself."  In reality, Taney was not advocating anything like SDP, and Justice Souter perhaps inadvertently conceded this point in 1997:

Dred Scott was textually based on a Due Process Clause (in the Fifth Amendment, applicable to the National Government), and it was in reliance on that Clause's protection of property that the Court invalidated the Missouri Compromise. 19 How., at 449–452. This substantive protection of an owner’s property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, id., at 451–452, the implication being that the Government had no legitimate interest that could support the earlier congressional compromise.

As Souter said, Taney’s (awful and weak) enumerated powers argument was ostensible support for Taney’s assertion of a due process violation.  Not vice versa.

Each one of the several awful and weak arguments presented by Taney and his concurring justices against the Missouri Compromise provided independent support for Taney’s allegation of a due process violation, in view of the unanimous SCOTUS opinion the year before stating that the first step in a due process analysis is that, “We must examine the Constitution itself to see whether this process be in conflict with any of its provisions.”  Incidentally, many scholars have agreed with Edward Corwin that when Taney briefly mentioned due process he "carries with him only two of his associates, Grier and Wayne," which again would mean that SCOTUS did not rely upon SDP in Dred Scott (the same conclusion is reached by the many scholars who have described Taney’s statement about due process as "dicta").

Judge Ethan Greenberg perceptively wrote in 2010 that Taney cited the Due Process Clause "in a very loose way in an effort to dress up what was an inherently weak and flawed argument for invalidating the Missouri Compromise," and did not rely upon SDP. Saying that Taney did rely upon SDP may somewhat stigmatize SDP, but it also somewhat legitimizes SDP which is not something that even one of the nine justices in Dred Scott sought. 

Taney’s remark about due process was "meager and somewhat obscure" according to Don Fehrenbacher, so we may never know with 100% certainty exactly what Taney meant.   Gerard Magliocca has speculated that Taney was using the Due Process Clause as a tool to help construe the scope of implied congressional power, versus creating an exception to express congressional power.  Other scholars have speculated that the Missouri Compromise would have satisfied Taney’s due process complaint if that federal statute had defined a misdemeanor or felony instead of simply banning slavery in the territories.  Either way, Dred Scott is no precedent for substantive due process.   

If Taney’s due process remark is correctly described as mainly based upon a flawed enumerated-powers argument (as Justice Souter reasonably supposed), then perhaps one could try to correspondingly describe modern substantive due process rulings as nothing more than (similarly flawed) lack-of-state-police-power arguments. But the latter description masks a fundamental difference: the enumerated powers analyzed by Taney, such as those in the  Property Clause, are actually part of the Constitution, whereas the Constitution has no State Police Power Clause, so looking to the latter would not comply with the unanimous SCOTUS opinion in Murray v. Hoboken Land (1856) that I already quoted above: “We must examine the Constitution itself to see whether this process be in conflict with any of its provisions.”

Administrative Law Judges and the Constitution
Mike Rappaport

Recently, there has been controversy in the federal circuit courts about the constitutionality of the current arrangements for administrative law judges (ALJs), and now the Supreme Court has accepted cert in the Lucia case which raises some of these issues. There are two main questions that these cases raise: whether the appointment of the ALJs conforms to the Appointments Clause and whether the removal restrictions on ALJs is consistent with the executive power being vested in the President.

There are two ways to look at this question. One way is to ask what the Constitution’s original meaning requires; the other is to ask what is likely to be the resolution under existing law.

Existing law has placed real, but limited restraints on government through the separation of powers. From the New Deal until 1976, the Supreme Court essentially stopped enforcing the separation of powers (especially against congressional laws). These Supreme Court actions allowed significant departures from the prior constitutional regime, including broad delegations of “quasi-legislative and quasi judicial authority” and restrictions on the President’s direction/removal authority.

Then in 1976, in Buckley v. Valeo, the Supreme Court once again started to enforce the separation of powers, holding that the Congress could not appoint officers of the United States. Since that time, the Supreme Court has occasionally struck down congressional laws and other actions on separation of powers grounds, but in the main these decisions have not significantly interfered with the administrative state. Probably the most important Supreme Court decision was INS v. Chadha, which held the legislative veto unconstitutional. But that decision has still allowed the administrative state to operate, and in some ways has enhanced the power of agencies.

One can imagine two alternatives to this post-Buckley approach of the current Supreme Court. One is the pre-Buckley approach of allowing everything. While that pre-Buckley approach would have allowed some things that the Supreme Court has struck down (such as Bowsher and Free Enterprise Fund), it is not clear how big a change that would have made (except for legislative vetoes). The real danger is that this hands off approach would have emboldened Congress to pass a slew of laws that would have departed even further from the traditional separation of powers regime.

The other alternative is to follow the Constitution’s original meaning. One problem with this alternative is that the original meaning in this area (at least for some issues) is not clear. That said, I believe the most likely possibilities would require a radical departure from the existing approach. In particular, agency adjudication in a wide variety of circumstances would be unconstitutional, requiring instead that adjudications be conducted by Article III courts. It is obvious to me that the current Supreme Court would not go near this approach, because it would involve such a departure from existing practices.

While this approach would change things significantly, I still think it would allow the administrative state to continue to function. In this article, I argue that administrative adjudication should be conducted before independent article III judges instead of before ALJs. Those article III judges would have expertise about matters and could often employ streamlined procedures.

Lee Strang: The Original Meaning of 'Religion' in the First Amendment
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted The Original Meaning of 'Religion' in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics (Brigham Young University Law Review, Vol. 2017).  Here is the abstract: 

Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy.

This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This affords a first-cut illustration of the extent to which corpus linguistics can make originalism’s methodology more rigorous. Second, this Essay utilizes the tools of corpus linguistics to provide additional evidence of the original meaning of “religion” in the First Amendment. Third, based on this experience, it describes some of the challenges originalist scholars will likely face employing corpus linguistics.


Originalism and Corpus Linguistics
Mike Rappaport

This past weekend I attended a BYU conference on Corpus Linguistics at the beautiful Sundance Resort in Utah.  It was a great setting to discuss the application of this field to originalist constitutional interpretation.

As I have previously mentioned, corpus linguistics is a part of linguistics which uses databases and sophisticated software to study the “real life” use of language. While people often use dictionaries to determine word meanings, corpus linguistics is often far superior as a means of understanding how people actually use words. One problem of dictionaries is that they fail to give significant information about how common a particular meaning or usage is. Another problem is that they do not typically provide information about phrases or how words are used in the context of other words. Corpus linguistics does all of this. While it is not a fault of dictionaries, dictionaries are also often misused by judges, including Supreme Court justices.

How useful will corpus linguistics be for originalist scholarship? A number of articles are now being produced which suggest that the answer is very useful. While corpus linguistics will not be able to substitute for all other methods of originalist scholarship (which it does not seek to do), it is likely to be an important aspect of such scholarship. One benefit of corpus linguistics is the compilation of databases. The BYU sponsored database (which has not yet been released to the public) has produced a large amount of materials from exactly the relevant period – 1760 to 1799.  The database includes three portions – one that is focused on ordinary language documents, another that is focused on legal materials, and a third that is focused on the writings of some significant founders. Another benefit of corpus linguistics is that it allows a variety of searches, including ones that show the “key word in context” and the investigation of other words that are used most often with the word one is investigating.

A recent paper written by Utah Supreme Court Justice Thomas Lee and James Phillips sought to use corpus linguistics to shed light on some originalist controversies. (The paper was given at the recent Originalism Works in Progress Conference at USD.)  Here let me focus on two questions they explored which enhance our understanding of the original meaning. First, they looked at the dispute over the original meaning of the Commerce Clause – did it have the narrow meaning of trading goods or a broader understanding (such as including manufacturing or all economic activity)?  Lee and Phillips conclude that the trade sense was by far the most common. In the three databases, the trade sense existed 86%, 84%, and 58% percent of the time. The other senses were exceedingly low (no more than 10%).  By itself, this does not prove that the trade sense was employed, but it does represent an important piece of evidence that supports the trade sense.

The second question involves the meaning of public use in the Takings Clause, as debated in the (in)famous Kelo case. The question is what does the constitutional requirement that a taking only occur for the public use mean. Under Justice Thomas’s position, takings are for the public use only when the government, military, or public owns or directly employs the property for a purpose.  Under the Supreme Court majority position, a taking is for the public use when it increases the convenience of or helps in some way the government or public, including indirect benefits.

Lee and Phillips again conclude that corpus evidence supports the narrower position, with 54%, 45% and 42% of the uses following the sense Justice Thomas supports. The majority’s sense is supported only 8%, 1%, and 0%. (There was a large number of cases where it was hard to classify.) This provides some important (albeit not dispositive) evidence on the issue.

Jack Balkin: The Topics in Constitutional Interpretation
Michael Ramsey

Jack M. Balkin (Yale University - Law School) has posted Arguing About the Constitution: The Topics in Constitutional Interpretation (Constitutional Commentary, forthcoming) on SSRN.  Here is the abstract:

Constitutional construction is the element of constitutional interpretation that implements and gives effect to the Constitution. Two features of legal practice help ensure that construction is guided by and furthers the Constitution. The first is an interpretive attitude of fidelity to the Constitution and to the constitutional project; the second is a set of techniques derived from the common law. Lawyers and politicians adapted common law techniques for construing legal texts to the U.S. Constitution once it became a legal document. American lawyers still employ descendants of these techniques today. These techniques are what classical rhetoric calls topoi or “topics” that are characteristic of American constitutional law. These topics are tools for the analysis of legal problems and for the generation of legal arguments. They involve commonplace but incompletely theorized justifications for constitutional interpretation.

Constitutional topics connect the text of the Constitution to its implementation; they allow people with very different views to argue that their proposed interpretations are faithful interpretations of the Constitution and further the Constitution. The article explains the topical approach to constitutional argument and contrasts it with Philip Bobbitt’s well-known theory of “modalities” of constitutional argument. Unlike Bobbitt’s model, the topical approach is consistent with many different kinds of constitutional theories, including originalist theories.

This is one of the papers presented at the Originalism Works-in-Progress Conference in February.  Professor Balkin has additional thoughts here: Originalism as a Topic versus Originalism as a Theory.


New Book: "The Justice of Contradictions," by Richard Hasen
Michael Ramsey

Recently published, by Richard Hasen (UCI, law & political science): The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale Univ. Press 2018) [release date is listed as March 20 but it appears to be available now].  Here is the book description from Amazon: 

Engaging but caustic and openly ideological, Antonin Scalia was among the most influential justices ever to serve on the United States Supreme Court. In this fascinating new book, legal scholar Richard L. Hasen assesses Scalia’s complex legacy as a conservative legal thinker and disruptive public intellectual.

The left saw Scalia as an unscrupulous foe who amplified his judicial role with scathing dissents and outrageous public comments. The right viewed him as a rare principled justice committed to neutral tools of constitutional and statutory interpretation. Hasen provides a more nuanced perspective, demonstrating how Scalia was crucial to reshaping jurisprudence on issues from abortion to gun rights to separation of powers. A jumble of contradictions, Scalia promised neutral tools to legitimize the Supreme Court, but his jurisprudence and confrontational style moved the Court to the right, alienated potential allies, and helped to delegitimize the institution he was trying to save.

Impressive blurbs also, although I notice they are all from liberal scholars (Adam Winkler, Bert Neuborne, Erwin Chemerinsky, David Cole, Norman Ornstein).  It will be interesting to see what conservatives scholars say.


Jennifer Mascott: The Dictionary as a Specialized Corpus
Michael Ramsey

Jennifer Mascott (George Mason University - Antonin Scalia Law School, faculty) has posted The Dictionary as a Specialized Corpus (B.Y.U. L. Rev., forthcoming 2018) on SSRN.  Here is the abstract:

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word is used in relation to terms throughout the English language. Such evidence provides a crucial interpretive launchpad, even for corpus-based researchers looking for a collection of possible word meanings to analyze in a database of ordinary-language documents.


Lynn Uzzell on Madison's Notes
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell (University of Virginia/University of Richmond, American politics & political theory):  Madison’s Notes: At Last, a New and Improved Look.  From the introduction: 

The Library of Congress last week released new digital scans of James Madison’s Notes of the Constitutional Convention, and they are exquisite. Researchers now have an invaluable resource for discovering the true worth of Madison’s Notes, which he revised throughout his life, and which were not published until 1840, four years after his death. Famously, he wanted them to be made public only after those who framed the Constitution had died. Sensing that his semi-official record of the deliberations in Philadelphia in 1787 would be a political football, he hoped that the passage of time might diminish this effect.

Of course, even so, the Notes were controversial as soon as they entered the public realm. Alexander Hamilton’s son tried to discredit them, starting in 1840. He has had many successors, but Madison’s Hand, the 2015 book by Boston College law professor Mary Sarah Bilder, has been the most systematic and the most successful attempt thus far to cast suspicion on the Notes. According to Bilder’s book, the Notes Madison kept during the proceedings were not originally intended as an objective record but were a subjective diary. Bilder also alleged that he frequently omitted material that he wished to keep hidden—sometimes replacing whole sheets merely to redact material—and that he invented speeches that had never been spoken. Supposedly it was all done (as Gordon Lloyd outlined in his review of this book for Law and Liberty) in service of the Madisonian and Jeffersonian struggle against the Federalists during the 1790s.

And from further along:

To originalists of every variety I would say: there are several reasons you should care about the repeated attempts to discredit Madison’s Notes.

One is that the natural foe of originalism, however construed, is judicial fiat, and its historiographic counterpart can be found in these efforts to deny the reliability of the Notes. The proper role of historians, like the proper role of judges, is to exercise judgment, not will. The many attempts to debunk the Notes have relied not on Madison’s actual writings but on creative conjectures, speculations, and innuendo. They have been rife with factual errors, distortions, and serious omissions of fact. ...

(Plus four other reasons).  In conclusion:

For too long, Madison’s detractors have faced little accountability. Until now there was no easy way to check their claims. Researchers have found it exceedingly difficult to gain access to the papers labeled a “Top Treasure” by the Library of Congress, and prior reproductions of these pages have been of poor-to-middling quality. When I wrote to my congressman, Virginia Republican Bob Goodlatte, to describe this sad state of affairs, his office responded to my suggestion that a new set of high-resolution scans was long overdue. They persuaded the Library of Congress to prioritize the Notes within its existing digitization project, and the result is last week’s release of these high-resolution, color images.

With these sharper images, scholars can confidently assert that Madison’s Notes are far more trustworthy and unbiased than the spate of scholarship that has repeatedly sought to discredit them. However, given the bias against the Notes shown by various historians, and the indifference shown by various originalists, the question remains: Will there be sufficient numbers of scholars, writers, and historians who care about uncovering the truth?

An interesting counterpoint to efforts, within and outside originalism, to deemphasize or discredit Madison's notes.  Only one quibble -- the essay states: "The late Justice Antonin Scalia famously avoided any reference to the Convention debates when drafting his opinions."  As I've documented in my recent article on Scalia's originalism, that's not entirely true.  Scalia did sometimes (but not often) rely on the debates, without fully explaining his view of their relevance.

(Thanks to Mark Pulliam for the pointer).


Randy Kozel: Precedent and Constitutional Structure
Michael Ramsey

Randy J. Kozel (Notre Dame Law School) has posted Precedent and Constitutional Structure (Northwestern University Law Review, Vol. 112, No. 4, 2018) on SSRN. Here is the abstract:

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical context. This understanding informs the treatment of precedent in concrete disputes as well as the locus of authority over the rules of precedent within the federal system. It also explains why the Supreme Court may legitimately reaffirm constitutional precedents even when they are flawed.


Neal Goldfarb on Artis v. DC (part 2)
Michael Ramsey

At LawNLinguistics, Neal Goldfarb: Artis v. District of Columbia, part 2: Units of meaning and dictionary definitions.  An interesting and complex post that's difficult to summarize, but here's a bit of it:

This is my second post about Artis; the first one discussed Justice Gorsuch’s choice of what dictionaries to cite in his dissenting opinion. ...

Artis involves the federal supplemental-jurisdiction statute (about which, read my previous post). That statute provides that the limitations period for state-law claims as to which supplemental jurisdiction is invoked “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” At issue before the Supreme Court was what the statute means in saying that the limitations period is “tolled.” ...

THE MAJORITY OPINION BEGINS by saying that when toll is used “in the context of  a time prescription,” it “ordinarily…means that the limitations period is suspended (stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off.” The authority cited to support that statement is Black’s Law Dictionary, which the opinion describes as saying that “‘toll,’ when paired with the grammatical object “statute of limitations,” means “to suspend or stop temporarily” This definition, the opinion says, “captures the rule generally applied in federal courts,” The opinion also points to several statutes that use the verb toll in this way, and notes that in contrast, neither the defendant nor the dissent identified any federal statute in which toll was used differently.

The dissent’s textual argument, on the other hand, relies mainly on the dictionary definitions [of toll]  that are the subject of my previous post: “to take away, bar, defeat, or annul” (OED) and “to take away; to vacate; to annul” (Webster’s Second (W2)). In this respect, the dissent tracked the defendant’s argument, which had cited the OED’s definition and similar definitions from other dictionaries, including Webster’s Third (W3).

After identifying the divergent views, the post favors the former:

 ... Under the traditional approach to lexicography, which is based on the principle of com­po­sition­ality, the relevant unit of meaning is the word. Each word in a sentence is assumed to have a meaning of its own, and that the meaning of the sentence is seen as being determined by the meanings of the individual words and how they are grammatically combined. And this almost certainly represents the understanding of virtually all lawyers and judges about how language works. But while it is in many respects a useful way of thinking about language, it glosses over a major complication.

Many words, including most of those that are used the most frequently, have multiple possible meanings, and when such a word is used in a sentence, its meaning in that context depends largely on what the rest of the sentence says. So there is a chicken-and-egg problem: how can in­dividual words be regarded as basic units of meaning when the meaning of a word in a particular context is itself affected by the context?

The answer that is suggested by the work in corpus lexicography is that rather than assuming that the relevant unit of meaning is the word, the focus should be on phrases and other multiword expressions. Perhaps the most vivid demonstration of what such an approach would entail is provided by transitive verbs—precisely the category that is relevant in Artis. When we start looking at phrases consisting of a transitive verb and its direct object, we can see that the verb’s meaning in context varies depending on which noun serves as its direct object ...


Edward Foley: Constitutional Preservation and the Judicial Review of Partisan Gerrymanders
Michael Ramsey

Edward B. Foley (Ohio State University - Moritz College of Law) has posted Constitutional Preservation and the Judicial Review of Partisan Gerrymanders on SSRN. Here is the abstract:

This essay makes three contributions to the debate over whether the Constitution contains a judicially enforceable constraint on gerrymanders. First, it directly tackles the Chief Justice’s fear of the judiciary appearing partisan, observing that the same fear would exist if the Constitution explicitly banned gerrymanders and explaining why an implicit ban should be no less judicially enforceable than an explicit ban under Marbury v. Madison. Second, invoking the idea of “institutional forbearance” in the important new book How Democracies Die, the essay shows how the Elections Clause can be construed to protect congressional districting from abuses of legislative discretion committed by state legislatures. Together, these two points lead to a third: the most essential duty of the Court, according to originalist theories of constitutional interpretation, is to preserve the Constitution against changes that would undermine its provisions or its overall core commitment to the creation of a federal republic for the United States; thus, insofar as virulent gerrymanders increasingly threaten the measure of popular sovereignty that elections to the federal House of Representatives were designed to achieve, the preservationist function of originalism requires judicial invalidation of those gerrymanders.

At Legal Theory Blog, Larry Solum has a long paragraph of comments, beginning: 

It may be that originalism does function to preserve a republic, but it is not the case that contemporary originalist theory would accept that argument that legal doctrines that serve the functions that originalism serves are consistent with and/or required by originalism. ...

Agreed.  I would say that originalism permits/requires invalidation of gerrymanders to the extent the Constitution's original meaning permits/requires invalidation of gerrymanders, and if the article is claiming something more, it is misunderstanding originalism.




Legal Theory Lexicon: Strict Construction and Judicial Activism
Michael Ramsey

At Legal Theory Lexicon, Larry Solum's Legal Theory Lexicon: Strict Construction and Judicial Activism.  From the introduction:

This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that sometimes seem to have very little content as used in popular discourse.

A case can be made for a revised and conceptually more coherent version of each of these concepts.  Whether constitutional theorists will be able to agree on consistent and clear definitions remains to be seen.

On strict construction, after giving various possible definitions:

It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly descriptive and better names can be given to the view that "strict construction" could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.

I want to add an important qualification to this discussion.  It is entirely possible that "strict construction" once had a coherent meaning that has been "lost" with the passage of time.  If so, then "strict construction" may yet have an important role to play as a concept in constitutional history, and possibly, via that history, in contemporary theories of constitutional interpretation.

Similarly, on judicial activism, after considering some possible definitions:

One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.

And near the conclusion:

Can we rescue these concepts?  Here is a proposal for coherent and clear definitions:

  • Strict Construction as Judicial Constraint by the Text and Judicial Restraint If Language is Unclear.  We might define strict construction as the conjunction of two distinct ideas.  The first element would be constraint by text.  Thus, a construction would not be strict if it was inconsistent with the linguistic meaning of the text of a statute, constitution, or other legal text.  The second element would be constraint in cases where the text was not clear, e.g., where the text was vague, open-textured, or otherwise lacked a clear and discernible meaning.
  • Judicial Activism as Judicial Invalidation of Action by Legislative or Executive Officials. This definition has the consequence that "judicial activisim" would, for many constitutional theorists, be a value neutral term.  Many constitutional theories favor judicial activism in the stipulated sense: for example, originalists favor judicial activism when the orignal meaning of the constitutional text requires invalidation of a statute enacted by Congress.

The "lexicon" entries, although ostensibly aimed at law students, are incredible helpful to academic writers and commentators as well.  When they concern something I know something about, I almost always agree, or mostly agree (as I do here).

I might offer slightly different prospective definitions, though.  To me, a "strict construction" is a narrow, limited reading of the text.  In terms of the Constitution, that leads to a narrow view of its grants of power (a strict construction of the vesting of "executive Power" might think it gave the President only the power to execute law and not additional powers such as foreign affairs power) and it leads to a narrow view of constitutional rights (a strict construction of the freedom of speech might prohibit only content-based regulation of political speech, or perhaps only prior restraints).  I recall that Justice Scalia sometimes used the phrase (negatively) in contrast to a "fair construction," which he favored.

"Judicial activism" I think might also carry the connotation of judges invalidating executive or legislative action without clear basis in the text.  It would seem odd to me to label as judicial activism a judicial ruling that someone who is 34 years old cannot be President.  That definition might risk sliding into defining judicial activism as "things I think are wrong," as Professor Solum suggests.  But I think many people think there are correct rulings which nonetheless lack clear basis in the text.


New Book: "Habeas Corpus in Wartime" by Amanda Tyler
Michael Ramsey

Recently published, by Amanda L. Tyler (UC Berkeley): Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford Univ. Press 2017).  Here is the book description from Amazon:

Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law, particularly during World War II when the United States government detained tens of thousands of Japanese American citizens and later during the War on Terror. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.

With blurbs from, among others, Jack Goldsmith (Harvard), Michael Lobban (LSE History), Jack Rakove (Stanford History& Political Science) and David Shapiro (Harvard).

The first 6 chapters cover the English law background, the inclusion of habeas corpus in the U.S. Constitution's suspension clause, and habeas corpus in early post ratification history.  Very interesting and useful to originalist-oriented scholarship.


Kevin Cole: Privileges, Justifications, and the Positive Law Model of the Fourth Amendment
Michael Ramsey

Kevin Cole (University of San Diego School of Law) has posted Privileges, Justifications, and the Positive Law Model of the Fourth Amendment on SSRN.  Here is the abstract:

Justice Gorsuch has recently shown considerable interest in what William Baude and James Stern call "The Positive Law Model of the Fourth Amendment." The model gives central effect to subconstitutional law in determining whether particular police activity constitutes a search or a seizure requiring Fourth Amendment justification. The model promises a solution to "third-party doctrine," which has long been criticized but seems increasingly problematic in a digital age. This brief comment explores how justifications in criminal law and privileges in tort law impact Baude and Stern's model. It concludes that justifications and privileges cause some difficulty for the model, particularly in the area of seizures, but that further elaboration of the model may address these difficulties.

The Baude & Stern paper is here: The Positive Law Model of the Fourth Amendment (129 Harvard L. Rev. 1821 (2016).  More commentary from Professor Baude, relating to Justice Gorsuch's comments in Byrd v. United States, here: Yes, the Positive Law Model of the Fourth Amendment is Originalist.  Orin Kerr discussed Justice Gorsuch's comments here:  Three Reactions to the Oral Argument in Byrd v. United States (scroll down to point (3)).


James Cleith Phillips et al.: Investigating the Original Meaning of “Officers of the United States” with the Corpus of Founding-Era American English
Michael Ramsey

James Cleith Phillips (The Becket Fund for Religious Liberty; Ph.D candidate, University of California, Berkeley - Department of Jurisprudence & Social Policy), Jacob Crump (BYU, JD candidate '18) and Benjamin Lee (linguistic analyst, Department of Linguistics & English Language, BYU) have posted Investigating the Original Meaning of “Officers of the United States” with the Corpus of Founding-Era American English on SSRN.  Here is the abstract:

With the Supreme Court set to decide Lucia v. SEC this term, it has a chance to revisit the meaning of “officers of the United States.” Forty years of court precedent argue the term means one exercising significant government authority, though that precedent did not seek to determine the terms original meaning. Recent scholarship by Jenn Mascott contends that the term’s original meaning is much broader, encompassing anyone employed by the government who has a continuing duty. 

To find such, Professor Mascott performed, in part, “corpus linguistic-like” analysis on the papers of six founders, covering 1783-1789, a total of about 7.7 million words from 16,000 texts. By turning to the new beta version of the Corpus of Founding Era American English, we take this analysis one step further on several different dimensions. First, we survey a larger number of dictionaries to try and get a preliminary idea of the attested senses of “officer” at the founding. Next, we expand the time period of our corpus linguistic inquiry from 1760-1799. Third, across this time period we look not only at these six founders’ papers, but also documents from the Evans Early American Imprint Series, which contains texts from more ordinary Americans, a wider variety of types of texts, and on a wider variety of subjects than the founders’ writings. Additionally, we also look at legal documents from Hein Online’s collection. In all, these three different sources consist of about 150 million words from 120,000 texts. Finally, we expand our search beyond just “officer(s)” or “officer(s) of the United States” to include officer within 5 words of the words public or civil; other officer(s) of (the) (federal) government; officer(s) of (the) (federal) government; and variations on publicly employed. We sample approximately 150 instances from each of these four searches, balancing across all three sources of documents (Founders, Evans, and Hein).

We find the original meaning of “officers of the United States” is messy, but arguably closer to Professor Mascott’s views than the Supreme Court’s. In other words, a definition of "officer of the United States" that is a person exercising significant government authority appears too narrow. But a definition that was anyone working for the government would be too broad. We note the limitations to our methodology and thus our findings.

Here is a link to Jennifer Mascott's paper:  Who Are "Officers of the United States"? (Stanford Law Review, forthcoming).



Jonathan Siegel: The Constitutional Case for Chevron Deference
Michael Ramsey

Jonathan R. Siegel (George Washington University Law School) has posted The Constitutional Case for Chevron Deference (Vanderbilt Law Review, forthcoming) on SSRN.  Here is the abstract:

Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set by the possible meanings of the statute.


More from Seth Barrett Tillman on Emoluments
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has three new SSRN posts on the emoluments issue.

(1) Presidential Electors and the Brief of the Legal Historians in CREW v. Trump:

The first filed of the three Foreign Emoluments Clause cases was CREW v. Trump. Five academics (the “Legal Historians”) filed an amicus brief (the “Legal Historians Brief”) in support of the plaintiffs. The Legal Historians Brief stated: “As holders of an office ‘of trust’ under the United States, [presidential] electors [like the President] would also be subject to the [Foreign Emoluments] [C]lause.” 

The Legal Historians claim regarding presidential electors is perplexing. They cite no authority for this position. More troubling is that there is a substantial body of authority taking the position that presidential electors are state positions, not federal positions, and so entirely beyond the scope of the Foreign Emoluments Clause and its Office... under the United States-language. The Legal Historians did not discuss this line of authority. 

There is a more recent line of academic authority, initially put forward by Vasan Kesavan, that notes that the Constitution’s Religious Test Clause distinguishes offices under the United States from public trusts under the United States. Kesavan argues that the position of presidential elector, although a federal position, is a public trust under the United States, as opposed to an office under the United States. Again, this alternative view was not discussed by the Legal Historians. 

Failing to discuss academic authority and nonbinding federal case law is not best practice. But it is certainly within the norms of the legal profession, particularly in a brief where space is scarce. Failing to discuss contrary Supreme Court authority is another matter entirely. In 1867, in United States v. Hartwell, the Supreme Court held: “The term [‘office’] embraces the ideas of tenure, duration, emolument, and duties.” Presidential electors fail — each and every element — of this four-factor test.

(2) The Foreign Emoluments Clause, the Teachings of the American Civil War, and a Response to Mike Stern: The Aftermath of the Hamilton Documents Imbroglio:

Four score and six years after the founding of the nation, during the Civil War, Congress passed a statute. The statute mandated that certain officeholders take a loyalty oath — this was a second oath, in addition to the ordinary oath prescribed by Congress pursuant to Article VI. The statute extended to “every person” holding “any office of honor or profit under the government of the United States.” The oath was passed during the Thirty-Seventh Congress. That Congress terminated on March 3, 1863. During that Congress, Senator James Asheton Bayard, Jr. (Delaware-Democrat) failed (or, perhaps, refused) to take the newly prescribed loyalty oath. Bayard was reelected in 1863. 

When the first regular session of the new Congress met, Senator Sumner (Massachusetts-Republican) put forward a resolution requiring all senators to take the newly prescribed loyalty oath. Bayard refused to do so on a point of principle. Bayard contested the constitutionality of the statute (at least, as applied to members of Congress) and also its construction: i.e., Did the statute’s language reach members of Congress? Bayard made a variety of arguments. Bayard opened a copy of American State Papers, which was by then some three decades old, and on January 19, 1864, on the floor of the Senate, he proceeded to state...

(3) The Foreign Emoluments Clause—Where the Bodies are Buried: 'Idiosyncratic' Legal Positions (59 South Texas Law Review __ (forthcoming 2018):

In 2017, three sets of plaintiffs in three different federal district courts brought civil actions against the President of the United States: each action alleged that the President has and continues to violate the Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause provides: 

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

There are only a handful of federal cases discussing the Foreign Emoluments Clause. Not one of these cases has any extensive discussion of the scope of the Foreign Emoluments Clause or the scope of the clause’s Office of Profit or Trust under the United States language (“Office-language” or “Office . . . under the United States-language”). Not one of these cases, expressly or impliedly, affirms or denies that the clause applies to the President. Likewise, there is no decision by any court of record (of which I am aware) which affirms or denies that the clause’s Office-language, or closely similar language in any other constitutional provision, encompasses the presidency. If the courts were to reach the merits, the issue at hand—i.e., the scope of the clause’s Office-language—is entirely one of first impression. Still, there has been some discussion of the clause and its Office-language, primarily, but not exclusively, amongst academics. Such discussion has appeared in the Department of Justice’s Office of Legal Counsel memoranda, academic articles, popular magazines focusing on news, politics, and law, and in amicus briefs. 

Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.


Jennings v. Rodriguez Cuts Back on the Constitutional Doubt Canon
Michael Ramsey

Speaking of the constitutional doubt canon (see here from last week) ... Tuesday's opinion from the Supreme Court in Jennings v. Rodriguez took a somewhat narrow view of it.  The lower court had found a statutory right to periodic bail hearings for aliens being detained pending removal; the conclusion was that, absent such a right, the statute authorizing detention would "raise serious constitutional concerns."  Wrong, said Justice Alito, writing for himself, Roberts, Kennedy, Thomas and Gorsuch:

The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark v. Martinez, 543 U. S. 371, 385 (2005). In the absence of more than one plausible construction, the canon simply “‘has no application.’” Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001)).

The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.

The Court sent the case back to the Ninth Circuit to decide whether the statute, lacking the right to bail hearings, is constitutional.  As discussed in the previous post, I'd rather get rid of the canon altogether, but a strict prerequisite of textual ambiguity is a useful step.  The alternative, as shown in the lower court opinion, is courts rewriting statutes to avoid constitutional doubt -- something well outside the judicial function.




Originalism, Minorities, and Women
Mike Rappaport

At the Originalism Conference recently, Christina Mulligan presented a well received paper on the objections to originalism from racial minorities and women and how such objections might be addressed.

It was an interesting paper and canvassed the whole range of objections, without asking whether or not they were well considered.  While it is annoying for originalists to find weak criticisms taken as seriously as strong ones, I nonetheless found the strategy useful.  If one is attempting to engage with people who believe a range of things, it will sometimes be better to give the best response rather than to tell them that their criticism is mistaken.

Some of the criticisms by minorities are important.  One significant criticism of the Constitution is that it was written by white men at a time when much of the country practiced slavery and women were treated as second class citizens.  John McGinnis and I devoted a chapter of our book, Originalism and the Good Constitution, to this issue.  We basically argued that the original Constitution was seriously defective and did not obligate black slaves, but that the defects of the Constitution were largely corrected by the Reconstruction Amendments.

One of the criticisms that Mulligan addresses derives from the claim that most originalists in the academy are white males.  Based on this claim, it might be thought that originalism is biased against women and minorities and that white male originalists are unconcerned with the interests of these groups.  I found this to be a disturbing criticism.  The white male originalists in the academy that I know are neither biased against women and minorities, nor unconcerned with their interests.  And the suggestion that they are is outrageous.

But what of the fact that most originalists in the academy are white males?  That is true, but the question is what it proves.  My sense is that people who are on the right in the academy tend to be white males.  Thus, to the extent that originalists are on the right, it is no surprise that they tend to be white males.

Yet, not all originalists are white males.  In fact, the person I regard as the leading originalist in the world today is a black man, Justice Clarence Thomas.  It is significant that among people who criticize originalism as anti-minority, so little is made of the fact that arguably the leading originalist is a black man.  If one made this point in the academy today, many people would scoff at the idea that Clarence Thomas is black.  Sure he is black, they would say, but he is not a genuine black man.  He has the views of a white man.  He is a conservative originalist.

But this response is revealing.  It suggests that whether a person is a racial minority is not the primary question.  The question instead is whether that person has progressive views.  That originalists do not tend to be progressive is an important fact, but it is different than the claim that originalists tend not to be minorities.

I tend not to focus on the racial identity or sex of scholars or judges.  But if one is concerned about such things, then it is striking fact about originalism that arguably the world’s leading originalist is a black man.  But it is seldom, if at all, mentioned.

Rebecca Roiphe & Bruce Green: Can the President Control the Department of Justice?
Michael Ramsey

Rebecca Roiphe (New York Law School) and Bruce A. Green (Fordham University School of Law) have posted Can the President Control the Department of Justice? (Alabama Law Review, forthcoming) on SSRN. Here is the abstract:

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

First, I say it's "a historical perspective" not "an historical perspective."  Just as it's "a hippopotamus" not "an hippopotamus."(Sorry, just a pet peeve I can't resist).

Second, more seriously, this interesting paper raises an important question encountered here before.  It's familiar view that longstanding custom can relax a constitutional requirement, especially in the separation of powers area.  This is, of course, Justice Frankfurter's concurrence in the Steel Seizure case, among many others.  But this paper's argument is that longstanding practice can create a constitutional requirement where the Constitution's text doesn't impose one.

This issue came up in the context of Judge Garland's nomination to the Supreme Court.  One of the arguments then was that, even if the Constitution itself did not impose a duty on the Senate to consider the nomination, past practice imposed such an obligation.

I doubted this was true, however (even assuming there was such a past practice) [further thoughts here].  My view was that even if practice can relax constitutional obligations, it can't create them.  That's because the relevant political actors may be behaving the way they are out of convenience, not out of a sense of legal obligation.  In the Garland situation, even if the Senate had uniformly given nominees a hearing in the past, that did not suggest anyone felt a legal obligation to do so.  In contrast, where the political actors relax a constitutional obligation, they necessarily are taking the view that as legal matter the obligation should be relaxed.

One example I gave is the two-term limit for Presidents.  This was a custom established by George Washington and followed until Franklin Roosevelt.  It was probably a good idea.  But I think few people thought it was a legal obligation.  Roosevelt's standing for a third term did not violate a constitutional obligation.  And when people wanted to make it a constitutional obligation, they amended the Constitution.  (Another example is the Senate filibuster -- again, a longstanding practice but one we generally assume could be changed).

I could not think of any examples where the Supreme Court had found a longstanding practice to create (as opposed to relax) a constitutional obligation.  I'm still looking for examples, as it seems an important point.  (A reader suggested Chief Justice Roberts' commerce clause opinion in NFIB v. Sebelius, but that seems more an interpretation of textual limitation rather than a creation of a nontextual obligation.)

So my initial reaction on this paper is that the practice does not create an obligation.  Assuming that the Constitution's original meaning is that the Department of Justice is under the President, a practice of independence from the President doesn't create a new rule; it just creates a practice -- arguably a good one -- and the decision whether to depart from that practice is a political rather than a constitutional one (until it is incorporated into a constitutional amendment).


Janus v. AFSCME Argument Today (Updated)
Michael Ramsey

The Supreme Court hears argument today in Janus v. AFSCME, the union dues case.  The question presented is "Whether Abood v. Detroit Board of Education should be overruled and public-sector 'agency shop' arrangements invalidated under the First Amendment."

As I've mentioned earlier, this case appears very problematic from an originalist perspective.  Commentary generally assumes that the five center-right Justices are inclined to hold that compelled payment of union dues to public sector unions violates the freedom of speech.  The argument is that compelling an individual to give financial support to an entity that takes public positions on matters of public concern is effectively unconstitutional compelled speech.  Abood held (to oversimplify) that this is sort of true and sort of not true, depending on what positions were being taken.  The project in Janus is to get rid of the Abood intermediate position and hold that such compelled payments are always unconstitutional.

The problem from an originalist perspective is that it's not clear (and certainly not demonstrated in the briefs in Janus) that the original meaning of the First Amendment says anything about compelling payments (as opposed to compelling speech).  As Eugene Volokh and Will Baude point out in an interesting amicus brief, taxpayers are routinely compelled to pay money to the government, which uses some of that money to fund speech with which the taxpayers disagree (see further discussion from Professor Volokh here; also here from Eric Segall).  No one thinks that poses a First Amendment problem.  The government could collect taxes from Mr. Janus and then pay that money to the AFSCME union, with the AFSCME union using the money to fund its speech with which Mr. Janus disagrees.  If that arrangement is constitutional (and surely it is), then why would it be unconstitutional if the government authorizes AFSCME to collect money from Mr. Janus directly?

This argument proves a little less conclusive than Professors Volokh and Baude may think, because if "the freedom of speech" drew this distinction at the relevant time, it shouldn't matter whether we now find it a bit irrational.  To an originalist, constitutional rights come with the extent and limits recognized at the time of adoption, whatever we may now think of them.  But that observation highlights the crucial point: no one (so far as I am aware) has shown that compelled payments were understood as contrary to "the freedom of speech" at the relevant time.

Of course, no one has shown that compelled payments are consistent with "the freedom of speech" either.  But as Volokh and Baude argue, Abood held that some compelled payments are consistent with the freedom of speech.  To overrule that conclusion, the Court would seem to need some evidence it was wrong -- and an originalist should need some originalist evidence.

The reasons that Janus is a problem for originalism, then, it that the originalist-oriented Justices seem likely to overrule Abood without any originalist reasons for doing so. That outcome, if it occurs, weakens originalism by suggesting that it is just a tool for conservative results, to be discarded when it does not lead to conservative results.  Originalism would emerge much stronger if Janus came out the other way (or if at least someone in the majority in Janus explained its originalist foundation).

UPDATE:  According to SCOTUSblog, Justice Gorsuch said nothing in oral argument, an interesting development.  But also according to SCOTUSblog, the union's attorney tried to appeal to Gorsuch by "warn[ing] of an 'untold specter of labor unrest throughout the country' if Janus prevails."  I don't know Gorsuch personally, but that sounds like the wrong approach.  I think you need an originalist argument to make a difference here.


Garrett West: Congress's Arrest Power and the Limits of Liquidation
Michael Ramsey

E. Garrett West (Yale Law School, students) has posted Revisiting Contempt: Congress's Arrest Power and the Limits of Liquidation (forthcoming) on SSRN. Here is the abstract:

This Article presents the first sustained challenge to the conventional wisdom. Beginning with the Constitution’s text, I argue that this power has no basis the enumerated powers of each chamber. What’s more, the express provision of other unicameral powers (say, the power to punish members) reinforces this absence, and the Constitution’s other rights-protecting provisions make it unlikely that such a power exists by implication. The Article then responds to two other arguments in favor of the inherent contempt power. First, defenders argue that both Parliament and the pre- and post-revolutionary state legislatures had the power; therefore, this authority should be inherent in Article I’s grant of “legislative power.” Conceding the empirical claim, I challenge the conclusion. Put simply, the Constitution’s commitments to popular sovereignty and separation of powers undermine the relevance of pre-constitutional precedent. Second, defenders argue that Congress must have this inherent contempt power by implication; otherwise, it could not perform its constitutional functions. Applying the doctrinal means-end test — that contempt be the “least possible power necessary to the end proposed” — I argue that Congress has less-constitutionally-problematic ways to serve the interests asserted.

The Article contributes to the literature on interpretive methodology. Because the inherent contempt power has been exercised by Congress since 1795, some argue that the Constitution’s meaning has been “liquidated” or “glossed” to allow the power. This generally unchallenged constitutional practice, pursued in the teeth of contrary constitutional text, raises thorny questions about interpretive methodology. First, I argue that decisions that do not result from inter-branch contestation and settlement should not be considered authoritative liquidations of constitutional meaning. Second, I argue that, even if the meaning of the Constitution has been liquidated, it can be de- and re-liquidated if practice shifts over a period of time. Third, I argue that if the constitutional justification for past assertions turns on a structural argument that no longer obtains (as here), then that precedent can be ignored without issue. These three assertions bolster the substantive point: Neither chamber of Congress may unilaterally arrest, detain, and try private citizens or executive branch officials for contempt.


Benjamin Flowers: An Essay Concerning Some Problems with the Constitutional-Doubt Canon
Michael Ramsey

Recently published, in the Washington & Lee Law Review Online, Benjamin M. Flowers (Jones Day): An Essay Concerning Some Problems with the Constitutional-Doubt Canon (74 Wash. & Lee L. Rev. Online 248 (2018)).  Here is the abstract:

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public understands legislative enactments. But it doesn’t. Thus, the only possible justification for the constitutional-doubt canon is stare decisis.

Agreed.  Regular readers won't be surprised that I have nothing good to say about the constitutional doubt canon.  It seems another made-up bit of judicial imperialism-disguised-as-modesty without foundation in constitutional structure or founding-era practice.  If courts think a statute might be unconstitutional (or that it probably is unconstitutional) their job is to decide whether it is or not.  As Chief Justice Marshall said in Marbury: "It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."  This in turn follows from the oath to support the Constitution (Art. VI, para. 3) and the supremacy clause (Art. VI, para. 2): on one hand, courts must apply the Constitution at the expense of unconstitutional statutes; on the other, they must apply as supreme law statutes that are not unconstitutional.  So if there is constitutional doubt, they need to resolve it, not fail to apply a statute that is close to unconstitutional.

I was disappointed that Justice Scalia and Bryan Garner endorsed the canon in Reading Law (pp. 247-251), albeit a bit weakly.  (I like that they quoted in a footnote Judge Easterbrook's view that the canon is "noxious," "wholly illegitimate" and "a misuse of judicial power").  Scalia and Garner conceded that the canon could not be defended on the basis of finding Congress' intent, and instead claimed it was a "judicial policy of ... minimizing conflicts with the legislature."  But I cannot see how courts would think that they are justified in developing "judicial policy" to not enforce statutes, nor how doing so reduces conflicts with the legislature.

There's a more legitimate canon -- dating at least to Mossman v. Higginson in 1800 -- that statutes may be construed not to be unconstitutional.  In light of this canon, I don't see how the constitutional doubt canon avoids any conflict with the legislature.  Courts can decide if a proffered reading of an ambiguous statute is unconstitutional, and if so, can avoid a conflict with the legislature by construing the statute a different way. What the constitutional doubt canon avoids is the court having to make difficult constitutional calls in close cases.  But making life easy for courts isn't a constitutional value.

More broadly, the avoidance canon illustrates a problem for Reading Law, previously noted by John McGinnis and others.  The book presents a list of canons and pronounces some of them valid and others not valid.  But it never explains a general theory of why some canons are valid and some aren't.  True, some are valid as common sense ways to find the meaning of legal texts, and some are valid as interpretive tools that were in common use in the founding era.  But the constitutional doubt canon isn't either of these (Scalia and Garner's earliest citation of it is from 1909).  

Maybe (as Flowers' essay says at the end) the canon can be defended as a matter of stare decisis.  But I doubt even that.  Surely there is no reliance interest in it.  Its only beneficiaries are judges who don't feel like deciding hard constitutional questions.


Eric Segall Asks "What is Originalism?"
Michael Ramsey

At Dorf on Law, Eric Segall: What is Originalism circa 2018? (an entertaining account of his presentation and the reaction to it at the San Diego originalism works-in-progress conference last weekend).  An excerpt:

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.


I identified a number of well-known originalists in the room, including Randy Barnett and Evan Bernick, Will Baude and Steve Sachs, the three Mikes (Ramsey, Rappaport and McConnell), Kurt Lash, and Steve Smith. Jack Balkin was also present, but other than Barnett, no one really knows why Balkin calls himself an originalist. Anyway, my point was that Baude and Sachs believe cases like Brown v. Board of Education, Lawrence v. Texas and the same-sex marriage decisions show that "originalism is our law," while none of the three Mikes or Barnett, or almost anyone else in the room take that position. Their views are emphatically not that originalism is our law, but that it should be our law.

I also observed that Barnett's and Bernick's libertarian form of originalism with strong judicial engagement is worlds away from other more deferential kinds of originalism. Moreover, Rappaport's and McGinnis's "original methods" theory, which calls for judges to only apply the interpretative methods of the founders, is a distant relative to some of the forms of originalism advocated by others in the room.

Thanks to Professor Segall for his kind words about the conference (and for his outstanding contribution to it).  I'll say in very brief response (1) I don't know that it's a problem that originalism is more a family of related approaches rather than a single unified approach; and (2) while I do think originalism is a family, I also think it is unified by a set of core commitments, and can appear more fragmented when one focuses on the more novel theories and the more difficult constitutional provisions.


Daniel Smyth on the Origination Clause (Updated)
Michael Ramsey

In the British Journal of American Legal Studies, Daniel Smyth: The Original Public Meaning of Amendment in the Origination Clause Versus the Patient Protection and Affordable Care Act (6 Br. J. Am. Leg. Studies 301 (2017)).  Here is the abstract: 

Robert Natelson recently published his article, The Founders’ Origination Clause and Implications for the Affordable Care Act, in the Harvard Journal of Law & Public Policy. This article argued the original understanding of the scope of the Senate’s power to amend the House of Representatives’ bills for raising revenue in the Origination Clause permits complete substitutes that are new bills for raising revenue, such as the Patient Protection and Affordable Care Act (PPACA). The original understanding of a constitutional word or provision is what the ratifiers of the Constitution thought was the meaning of the word or provision. When the Senate originated PPACA as an amendment to the House’s Service Members Home Ownership Tax Act of 2009, the Senate replaced the entire House bill, except for the bill’s number, with PPACA.

I consider the original public meaning—not the original understanding—of a constitutional word or provision, unless unrecoverable, to be the controlling meaning of that word or provision. The original public meaning is the meaning that a “reasonable speaker of English” during the founding era would have ascribed to the word or provision. My article argues the original public meaning of amendment is clear and disallows complete substitutes. For instance, founding-era dictionaries indicate an amendment was a change or alteration to something that transformed the thing from bad to better. This definition suggests an amendment must not be a complete substitute because an amendment must preserve at least a part of the thing being amended so that there is something to transform from bad to better.

My article further argues the preponderance of evidence suggests the original understanding of the scope of an amendment actually disallows complete substitutes. For example, much evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and state conventions suggests the dominant view among the founders was that an amendment to the Articles of Confederation, the legal compact between 13 states enacted in 1781, could not be a complete substitute.

My conclusion argues PPACA or any other such complete substitute violates the original public meaning of the scope of an amendment.

UPDATE:  Link was bad; now fixed (link goes to the journal website; click on "Latest Issue of the British Journal of American Studies").


A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 2
Seth Barrett Tillman

[Note:  This is Part 2 of my response to Professor Nourse's article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power.  Part 1 is here.]

This is not the place for a full defense of my views regarding the Constitution’s divergent Office-language. That has been done several times elsewhere. Here, I will respond to Nourse’s charge that I have engaged in intellectual “gerrymandering.” What is meant by this charge? Nourse provides helpful examples. Article II, Section 1, Clause 1, the Executive Power Vesting Clause, states: “The executive power shall be vested in a President of the United States of America.” In reading this clause, in his Morrison v. Olson dissent, Justice Scalia has stated: “this [language] does not mean some of the executive power, but all of the executive power.” Scalia, in effect, is changing the language of the clause to: “All the executive power shall be vested in a President of the United States of America.” Nourse challenges this type of textual enrichment as unsupported by the text. In other words, such enrichment is both reliant on unsupported assumptions of coherence across the Constitution’s text and reliant on unstated preferences of the interpreter. I agree. Nourse also objects to: “intratextual arguments . . . that come from excising particular words from one ‘home’ clause and moving that enrichment to a different ‘receiving’ clause, where the term takes on a new meaning.” I agree with this too: such a strategy poses dangers.

Consider the Impeachment Clause: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Now some read this clause as suggesting that the clause’s use of Office, standing alone, is equivalent to the clause’s “Officers of the United States” language. In other words, such interpreters engage in textual enrichment. Such people read the clause either as:

The President, Vice President and all Civil Officers shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.


The President, Vice President and all Civil Officers of the United States, shall be removed from [the] Office of the United States [that they are holding] on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Others assume redundancy—they assume that the latter “Officers of the United States” language also covers the presidency and vice presidency. They read the clause as:

The President, Vice President and all other Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

All this textual enrichment—assuming Office is coextensive Officer of the United States—and assuming Officers of the United States also encompasses the President and Vice President—relies on just the sort of assumptions and inferences Nourse objects to. So do I. So does Story, as discussed in Part 1 of my response. The meanings above are textually possible. It is also textually possible, as Story has stated, that the President and Vice President hold “office,” but they are not encompassed by the category of “Officers of the United States” or “Civil Officers of the United States.” The clause-bound text does not answer this question.

Let’s look at another clause: the Elector Incompatibility Clause (art. II, § 1, cl. 2). It states: “[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector” (emphasis added). Some think the clause uses redundant language. They think the clause means: “[N]o Senator or Representative, or Person holding any other Office of Trust or Profit under the United States, shall be appointed an Elector.” In other words, they think the clause’s “Office of Trust or Profit under the United States” language extends to senators and representatives. The positions of senator and representatives need not have been separately listed as they were included by the clause’s Office-language. Others think the Constitution’s divergent office language does not extend to members of Congress. Is the clause’s language redundant? That question cannot be answered from the text of the Elector Incompatibility Clause (standing alone). There is a second question. Does the clause’s “Office of Trust or Profit under the United States” language extend to the President and Vice President? Here too, the text of the clause (standing alone) supplies no determinate answer. The fact that some elected federal positions were listed (Senators and Representatives), but not others (President and Vice President), might mean the latter positions are excluded from the scope of the clause. But such an inference is not obvious.

Finally, there is the Foreign Emoluments Clause. Again, the clause states:

[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

How does Nourse read the clause?

The President, Vice President, and no Person holding any other Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Here it is Nourse that is engaged in just the sort of pragmatic enrichment she decries in Justice Scalia (who, you will remember, added “all” to the Executive Power Vesting Clause). Talk about unstated assumptions and unstated preferences! Not only does Nourse not recognize the clause’s ambiguity in regard to the presidency, she affirmatively states (pp. 40-41) that the contrary reading (i.e., the reading which excludes the President—a position not expressly mentioned by the clause—from the scope of the clause) is “verging-on-the-silly.”

Nourse’s sole defense of her interpretation of the Foreign Emoluments Clause—where she pragmatically enriches the text by adding language about the presidency—is that: “Article II, Section 4 provides that the President ‘shall be removed from Office by Impeachment’ for ‘high crimes and [m]isdemeanors.’ [Likewise,] Article I, Section 3, Clause 7 provides that the ‘Judgement in cases of Impeachment shall not extend further than to removal from Office’” (p. 28). Here too, Nourse is engaged in just the sort of weak intratextualism she decries in others. She assumes that “Office,” standing alone, in the Impeachment Clause, and “Office,” standing alone, in the Disqualification Clause are co-extensive or sufficiently similar with the Foreign Emoluments Clause’s “Office of Profit of Trust under [the United States]” language to make comparison and enrichment meaningful. I do not suggest that such a view is stupid; it is not. Others have held this view in the past. I do suggest that Nourse’s interpretation is not the only possible one. The text is not determinate. There are competing reasonable views. Given that competing reasonable views are consistent with the clause’s text, I have turned to historical practice in the Federalist Era regarding diplomatic gifts to presidents, the Hamilton document, and other contemporaneous and roughly contemporaneous extrinsic evidence. But the merits of that debate are beside the primary point. The primary point I am making here is that Nourse does not understand my position, and that in seeking to argue the contrary, she has engaged in just the sort of interpretive strategies that she says she opposes.

A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 1
Seth Barrett Tillman

[Note: This post is a section of a forthcoming paper in South Texas Law Review, where I respond to several of my critics.  A longer version of this response is posted on SSRN, here.]

Professor Victoria F. Nourse recently published in the California Law Review the article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, in which she criticized my work on the emoluments clauses.  She wrote (pp. 27-28, footnotes omitted):

At least one constitutional textualist/originalist argued that the [foreign emoluments] clause did not even apply to the President because the clause says “Office,” and based on a survey of the use of the term “office” throughout the Constitution, the term “office” typically applies to unelected members of the executive branch, not the President. He claimed that many other scholars, originalists and others, agreed with the position that “office” means the same thing throughout the Constitution. …

First, let us take the argument that the clause does not apply to the President. This is a classic form of textual gerrymandering—an argument that takes text out of context to create a new meaning. Let us assume that, in some parts of the Constitution, the term “office” means a lower ranking, unelected, member of the [E]xecutive [B]ranch. The problem comes in moving that definition from one part of the Constitution (call this the home clause) to another part (the receiving clause). Once isolated from the home clause, the term “office” is recontextualized within the receiving clause. If the home clause only covers unelected officials, then the receiving clause is now deemed to cover unelected officials. Such inferences, however, can rewrite the Constitution. The transferred home context effectively amends the new receiving context—the Foreign Emoluments Clause—by inserting the term “unelected.” Of course, that is not the actual text of the Constitution. The term “unelected” does not exist in the Foreign Emoluments Clause; it has been added by the interpreter.

Under “analytic textualism,” one asks whether a pragmatic addition such as “unelected” is falsified by any other text in the Constitution. And, yes, there is powerful evidence that the President can be covered by the term “Office.” No one doubts that the President can be impeached. And so, no one should doubt that the term “Office” in the Foreign Emoluments Clause can easily be interpreted to cover an elected official like the President. Article II, Section 4 provides that the President “shall be removed from Office by Impeachment” for “high crimes and [m]isdemeanors.” Article I, Section 3, Clause 7 provides that the “Judgement in cases of Impeachment shall not extend further than to removal from Office.” This falsification procedure allows us to see that the claimed textual enrichment is not the “only possible” interpretation; in fact, it is not a terribly plausible enrichment at all: even President Trump’s lawyers now admit that the Foreign Emoluments Clause does in fact cover the President.

I trust the fair minded reader and, in time, even Professor Nourse, will not object to my stating that Nourse does not actually understand my position in regard to the Constitution’s divergent Office-language. Because she does not understand it, she fails to fairly characterize it. Although, I wholeheartedly agree with the textual falsification method put forward by Professor Nourse, she has not actually falsified anything I have argued. It might help the reader if I point out that at no point does Nourse ever quote any actual language from any of my publications where I take the positions which she incorrectly asserts are mine.

First, Professor Nourse states that my view is that the term “Office,” as used in the Constitution, does not extend to the President. I have made no such claim. After all, such a position is a nonstarter: the Constitution (Art. II, Sec. 1) squarely states the President holds an “office.” What could be more clear? Rather, my view is that the President does not hold an “office . . . under the United States.”  (My position is aptly summarized by Professor William Baude on Jotwell, including a helpful chart.)

Second, Nourse states that my view is that the term “Office,” as used in the Constitution, “applies to unelected members of the executive branch.” I have made no such claim. My view is that Office and officer, standing alone without modifiers, include those holding office under the United States (i.e., appointed positions in all three branches) as well as those holding certain elected positions: e.g., President, Speaker of the House, and Senate President Pro Tem. (My view is that rank-and-file members of Congress, in the House and Senate, are not encompassed by the word “Office,” as used in the Constitution.)

Third, after telling her readers that my position is that “Office” means the same throughout the Constitution, Nourse tells her readers that I claim to have found support for my position among other scholars who take the same position. This also is not correct. I report the position others to distinguish my position from their position. These other scholars have argued that the Constitution’s divergent Office-language is coextensive. I disagree with that position. My position is that divergent language accommodates different meanings.

Fourth, Nourse states that “This falsification procedure [which she puts forward] allows us to see that the claimed textual enrichment [put by forward by Tillman] is not the ‘only possible’ interpretation . . . .” I ask: Why is “only possible” in quotation marks? Who is she quoting? Given that the only scholarship she is discussing in that section of her paper is my scholarship, the reader is likely to think I am being quoted. Nourse cites only a single Tillman-authored publication, and I do not use the quoted language in my article.

For what it is worth, I do not believe that by interpreting the text of the Constitution, standing alone, one ought to conclude that there is only a single possible interpretation in regard to the Constitution’s divergent Office-language. In fact, I have repeatedly made a very different claim. In my Northwestern University Law Review article, which is my only publication actually cited by Nourse, I stated:

I do not suggest that the Constitution’s text, drafting history, and ratification debates are free from all ambiguity on the meaning of Office . . . under the United States. Fortunately, we can turn to two incidents from President George Washington’s first Administration to understand the meaning of this somewhat opaque phrase.

My position is that where the constitutional text is ambiguous, one turns to early practice and history. I would add that the practices of George Washington and his administration, and that of the First Congress are entitled to special consideration. My methodological outlook is hardly an outlier.

Finally, Nourse concludes that my use of intratextualism (with its assumptions of coherence) is methodologically unsound, and that my conclusion in regard to the scope or reach of the Foreign Emoluments Clause is not “terribly plausible.” My response, beyond what I have written above, is that my using intratextualism in this fashion predates my publications, predates original public meaning originalism, and even predates original intent originalism. It is far older.

In his Commentaries on the Constitution, Justice Joseph Story wrote:

[T]he [Impeachment] [C]lause of the Constitution now under consideration does not even affect to consider the[] [President and Vice President] officers of the United States. It says, “the President, Vice-President, and all civil officers (not all other civil officers) shall be removed,” &c. The language of the clause, therefore, would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than as included in the description of civil officers of the United States. Other clauses of the Constitution would seem to favor the same result, particularly the clause respecting appointment of officers of the United States by the executive, who is to “commission all the officers of the United States;” and the sixth section of the first article which declares that “no person holding any office under the United States shall be a member of either house during his continuance in office;” . . . .

In short, Story concludes that the President is neither an officer of the United States nor holds an Office under the United States (which is a superset of the Foreign Emoluments Clause’s more limited Office of Profit or Trust under the United States-language). At the very least, Story thinks this position is plausible and supported by the text of the Constitution. Indeed, although not discussed by Story, the drafting history of the Impeachment Clause also confirms Story’s interpretation: an early draft of the Impeachment Clause applied to “other Civil officers of the U.S.,” but the “other” was dropped by the Committee of Style.  Nor was Story alone—a fair number of later commentators followed Story’s lead.  Nourse says (in effect that) Story’s view (a view with which I agree) is not plausible. But saying that it is implausible does not make it so; nor does her more strongly condemnatory language.


Anthony Gaughan on Indicting the President
Michael Ramsey

At The Faculty Lounge, Anthony Gaughan (Drake Univ. Law School): Indicting the President.  From the introduction: 

The constitutional question is straightforward: Is a sitting president immune from criminal indictment by federal or state prosecutors? Or, to put it another way, is the House of Representatives the only institution with the constitutional authority to bring criminal charges against the president?

I think the answer to both questions must be yes. The Constitution’s text, historical precedent, and compelling public policy considerations weigh strongly in favor of the conclusion that Congress is the only appropriate venue for adjudicating the alleged crimes of a sitting president. Any other approach entails enormous risks to our constitutional order. Indeed, in the toxic environment of contemporary American politics, the special counsel’s filing of criminal charges directly against the president would plunge the United States into dangerously uncharted territory with unpredictable consequences for our democratic institutions.  

Professor Gaughan makes several textual points including this one:

Yet another reason to doubt the constitutionality of a pre-impeachment indictment of the president is Article I’s explanation that the president is “subject to indictment, trial, judgment and punishment, according to law” after “conviction” and “removal from office.” A plain reading of Article I thus suggests that the president is only amenable to punishment after leaving office.


Eric Segall: A Non-Originalist Separation of Powers
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted A Non-Originalist Separation of Powers (University of Richmond Law Review, forthcoming) on SSRN.  Here is the abstract:

Since the end of World War II, some of the Supreme Court’s most important constitutional law cases have focused on the appropriate relationship between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation of powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance.

This article suggests that the Court is right to focus on factors other than text and original meaning when deciding cases implicating the allocation of powers among the three branches of the federal government. The executive branch has changed so dramatically since the founding that there is little wisdom from 1787 that can help judges resolve most separation of powers problems today.


More from Neal Goldfarb on "Pragmatic Enrichment"
Michael Ramsey

Following up on this post, Neal Goldfarb (LawNLinguistics) comments: 

For me, what's significant about the role pragmatic enrichment plays in legal interpretation is that that it provides the response to simple-minded textualist arguments such as Roberts's in PDK Laboratories and Barron's in Barron v. Baltimore. The simplistic argument is, "But the text doesn't say that." And the response is that the text is semantically underspecified: it doesn’t expressly spell out the semantics of the proposition that it expresses, and the missing element needs to be inferred. In Barron, the missing element was the agent/target_of_prohibition: the entity doing the taking to which the clause applies. And inference is involved even in the supposedly literal reading. For example, it presumably went without saying that the Fifth Amendment didn’t apply to takings by nongovernmental entities or by foreign governments.

In ordinary communication, pragmatic enrichment is pretty much an automatic process that goes on below the level of conscious awareness.* But legal interpretation is an explicit deliberative process (see my post Comprehension, ordinary meaning, and linguistics). So the question arises whether and to what extent pragmatics (the field of study, not the pragmatic phenomena that are studied) plays a role in legal interpretation where the semantic meaning is underspecified. The function of the underlying pragmatic processes is mainly if not entirely to enable the listener/reader to infer the message that the speaker/writer intends to communicate. In the case of legal interpretation there's no speaker/writer in the ordinary sense,  and therefore arguably no communicative intentions in the ordinary sense. But I think that pragmatic processes are at work anyway; IMO, people can't help but draw inferences about intention, even if the intention they are inferring is being imputed to the lawmaker.

 If that's an accurate description of the process of determining ordinary meaning, it arguably suggests that the process inherently includes an element of Legal Process purposivism. Because what intention is likely to be imputed to the lawmaker, other than what an intention to do what is reasonable in the situation (taking into account all specifically known relevant factors about the lawmaker's preferences)?  And if that is going on under the surface, maybe it would be better to bring it out into the open. So it could well be that the result of combining textualism with a linguistically/cognitively informed model of determining ordinary meaning is that purposivism becomes part of the DNA of textualism—perhaps to a greater degree than is reflected in Scalia’s notion of objectivized intent

*It's possible that there are kinds of enrichments that may (at least according to some people) involve some level of conscious inference; I don't have a level of familiarity with the literature that would let me know that off the top of my head. And there's a variety of views about the details of how pragmatic processes work and even where the line is between pragmatics and semantics.