Randy Barnett Responds to Joel Alicea
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Am I “imperiling” originalism? A reply to Joel Alicea (responding to this essay in National Affairs).  From the conclusion:

So, as near as I can tell from our past conversations, the difference between him and me boils down to exactly how “clear” must the Constitution be before judges may protect the sovereignty of the people from abuses by today’s legislatures. To the extent he puts the burden on the individual rather than the legislature, at the end of the day, it is Alicea who privileges rule by today’s majority (or minority) over the generally-worded protections provided in the past by the Founders and by the Republicans who gave us the Thirteenth, Fourteenth, and Fifteenth Amendments. So too if he maintains, as did Footnote Four, that only the “specific prohibitions” of the text warrant judicial scrutiny of legislatures, not its more general statements.

New Book: "Equal Citizenship, Civil Rights, and the Constitution" by Christopher Green
Michael Ramsey

Co-blogger Chris Green's important new book on the privileges or immunities clause is now published: Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (Routledge, 2015).  Here is the book description from Amazon:

The Privileges or Immunities Clause of the Fourteenth Amendment is arguably the most historically important clause of the most significant part of the US Constitution. Designed to be a central guarantor of civil rights and civil liberties following Reconstruction, this clause could have been at the center of most of the country's constitutional controversies, not only during Reconstruction, but in the modern period as well; yet for a variety of historical reasons, including precedent-setting narrow interpretations, the Privileges or Immunities Clause has been cast aside by the Supreme Court. This book investigates the Clause in a textualist-originalist manner, an approach increasingly popular among both academics and judges, to examine the meanings actually expressed by the text in its original context. 

Arguing for a revival of the Privileges or Immunities Clause, author Christopher Green lays the groundwork for assessing the originalist credentials of such areas of law as school segregation, state action, sex discrimination, incorporation of the Bill of Rights against states, the relationship between tradition and policy analysis in assessing fundamental rights, and the Fourteenth Amendment rights of corporations and aliens. Thoroughly argued and historically well-researched, this book demonstrates that the Privileges or Immunities Clause protects liberty and equality, and it will be of interest to legal academics, American legal historians, and anyone interested in American constitutional history.


UPDATE:  Recommended by Larry Solum's Legal Theory Bookworm.


James Fox on Black Originalism
Michael Ramsey

At The Faculty Lounge, James Fox (Stetson Law) has a series called Black Originalism (see here for part 2 and here for part 3 [discussing the very interesting Syracuse Convention of 1864]).  Professor Fox describes the project in this way:

By the 1860s African Americans had built a well-established discourse and activist community in the North.  It developed with the abolitionist movement, but it also functioned as a support network for building African-American civil society in the Jim Crow culture of the North.  With the end of slavery, southern black communities immediately engaged in public discussions and debates about the meaning and implementation of freedom and citizenship.  And with Reconstruction, black representation in local, state, and national government was brief but substantial. The ideas discussed and advanced within the black public sphere provide an important source for how freedom and citizenship were being thought about at the time by the people for whom it meant the most.  And while historians have been exploring black history from this period for a number of years, very little of this has made its way into legal or constitutional analysis.

The main exception to this has been the use of African-American sources in the Second Amendment cases, Heller and McDonald, relying in part on work by scholars (Akhil Amar, Robert Cottrol & Raymond Diamond, and others), and in Justice Thomas’s opinions on affirmative action (e.g. Grutter).  Both the majority opinion and Justice Thomas’s concurrence in McDonald cite black newspapers and black conventions to support an individual rights reading of the amendment as incorporated through the Fourteenth Amendment.  I don’t know about you, but this struck me as odd. 

First, it seems strange that the main use of sources from Reconstruction-era black history is to support the right to bear arms and not more “traditional” civil rights such as access to public facilities.  This is especially so given that, from what I was aware, the writings and speeches of African Americans from the period barely touch on the right to bear arms, compared to questions such as voting, education, public accommodations, etc.  (Arms-bearing was important, it just was not front-and-center the way other issues were--more on that later.)  Second, it struck me as odd (and interesting) that it was the conservative wing of the court employing originalist analysis that has made the most use of these sources. Liberals have generally overlooked those sources, even when they use other historical materials.

This got me thinking about the possibilities of what could be called “Black Originalism.”  Originalism is generally seen as incompatible with, and even hostile to, the interests and concerns of African Americans, as Jamal Greene as so nicely shown.  Yet non-originalists (livingists, if you will) have not done a very good job of considering, let alone incorporating into constitutional interpretation, the sources and meanings of black history either.  Perhaps, then, it is worthwhile to look at sources from black orators and writers from the period surrounding the Reconstruction Amendments and see how they might speak to constitutional meanings.  If we do, what might we see?  What was the role of an individualist right to bear arms?  How important were ideas of suffrage, access to public facilities, education?  To what extent did these ideas map discussions in the dominant society, and in what ways did they differ for black Americans?  How did ideas of gender play out in discussions of freedom and citizenship?


"The Originalist" Playwright John Strand Interviewed at SCOTUSblog
Michael Ramsey

At SCOTUSblog, Kali Borkoski has an interview with The Originalist author John Strand.  Here is the first question:

Question: You say that Justice Antonin Scalia intrigued you because he’s “kind of a lightning rod.  Half the country thinks of him as a monster and half thinks of him as a hero.” When you set out to write the play, was the goal to create a biographical story about Justice Scalia, or to write an allegory about deep divisions?

Strand: As a playwright, I was intrigued by the character of Justice Scalia, but not with an unauthorized biography in mind. The Originalist is not a bio play, or a documentary, or a law lecture (for which I am utterly unqualified and no theater audience would tolerate, anyway). I wanted to use this combative, almost operatic figure to explore how two people on opposite sides of a political, social, and even legal spectrum can take a step toward one another, begin to listen, learn to hear and respect the other’s argument. Is there still a political “middle” and what does it cost to meet there?

RELATED:  This review of the play at Slate thinks it is far too favorable to Scalia.

James Fleming: For Moral Readings and Against Originalisms
Michael Ramsey

James Fleming (Boston University - School of Law) has posted Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (J. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, Oxford University Press, 2015) on SSRN. Here is the abstract:

In recent years, some have asked, “Are we all originalists now?” In this book, I put forward a sustained critique of originalism — whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a “moral reading” of the United States Constitution or what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. I refer to conceptions of the Constitution as embodying abstract moral and political principles — not codifying concrete historical rules or practices — and of interpretation of those principles as requiring normative judgments about how they are best understood—not merely historical research to discover relatively specific original meanings. In the book, I argue that a moral reading or philosophic approach, as a conception of fidelity to the Constitution as written, is superior to originalism, however conceived. Furthermore, through examining the spectacular concessions that originalists have made to their critics, the book shows the extent to which all now acknowledge that constitutional interpretation requires normative judgments. I also ponder the reasons for the grip of originalism in this constitutional culture as contrasted with its rejection elsewhere. The reasons commonly offered demonstrate the grip of the aspiration to constitutional fidelity, not that of originalism itself. And those reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as honoring our constitutional commitments to abstract aspirational principles, not an authoritarian originalist conception of fidelity as following the relatively specific original meanings of the founders. If we aspires to fidelity to our imperfect Constitution, we should be moral readers.


Richard Re on Justice Alito and Constitutional Oath in American Railroads
Michael Ramsey

At Re's Judicata, Richard Re: Justice Alito on the Constitutional Oath in American Railroads. Here is an excerpt: 

Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.


Michael Dorf on Libertarianism and the US Constitution
Michael Ramsey

At Dorf on Law, Michael Dorf: How Biased Towards Libertarianism is the US Constitution? Here is an excerpt:

My latest Verdict column [Ed.: titled Economic Liberty Never Really Died] discusses  a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution. Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner. 

The main point of my column is not, however, to defend liberal constitutional scholars against Professor Sherry. My chief aim is to examine an unspoken premise that she and Epstein share: namely, that implementing economic libertarianism in the name of the Constitution would require a substantial change to our existing constitutional regime. I challenge this assumption in two ways. I note that: (1) while the SCOTUS has not accepted the invitation of the economic libertarians to revive Lochner as a matter of substantive due process, the Court has in fact been very friendly to the deregulatory agenda of economic conservatives while using other doctrines; and (2) the main contribution of the American Constitution to economic libertarianism comes not from judicial enforcement of the Constitution or courts more generally, but from the hard-wired features of the U.S. Constitution—its multiple “veto players”—that tend to stymie efforts to adopt progressive policies.


Ted Cruz and Originalism as (Part of) Our Law
Michael Ramsey

At Opinio Juris, Peter Spiro comments

[The natural born Citizen clause] is a terrific case study for demonstrating constitutional evolutions outside the courts. No court will ever touch the question at the same time that particular cases show us where the law is.

One recent addition to the mix: [Neal] Katyal and Paul Clement have this piece on the Harvard Law Review Forum arguing that Ted Cruz qualifies as “natural born”. If Katyal and Clement say he is natural born, then he is natural born, merits aside. Bipartisan pronouncements from legal policy elites become a source of the law.

But in my view the Katyal and Clement essay says more about originalism than it does about evolving constitutionalism.

Katyal and Clement are not originalists; they are advocates (former Acting Solicitor General under President Obama and former Solicitor General under Bush 43).  Yet their argument is almost entirely originalist.  They begin by saying:

While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings.

They then rely on:

(1) British statutes from the eighteenth century (adding "The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’s Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.");

(2) Immediate post-ratification practice in the 1790 Naturalization Act (adding "The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress.").

(3) The Framers' purpose, based on the likely intent of John Jay, who apparently first suggested the clause; and ...

... that's it, except for a passing reference to the Senate's unanimous resolution that John McCain was eligible despite birth in the Panama Canal zone.

In sum, Katyal and Clement make an almost purely originalist argument.  To be sure, it's not novel to do so -- many people have made originalist arguments about the clause (including me).  What's noteworthy, though, is that Katyal and Clement are acting not as constitutional theorists or originalist bloggers but as advocates trying to persuade the greatest number of people of Senator Cruz's eligibility.  As Professor Spiro says, they are speaking as members of the "legal policy elite," putting a stamp of constitutional approval on the candidacy.  And in that capacity, their judgment is that originalist arguments are persuasive and sufficient.

Now this does not necessarily show that originalism is our law (as Will Baude has argued), but it does strongly suggest that originalism is at least a part of our law -- enough that leading members of the "legal policy elite" think it makes their case on this subject.

John McGinnis on Constitutional Construction
Michael Ramsey

At Liberty Law Blog, John O. McGinnis, The Judiciary Should Interpret, Not Construct, the Constitution.  Here is the introduction: 

My recent paper, The Duty of Clarity, has substantial implications for an important current controversy in originalist theory—whether the judiciary should engage in construction as opposed to interpretation of constitutional provisions. The judicial duty of clarity suggests that the judiciary cannot engage in construction during the course of judicial review.  Construction takes place only when a provision is unclear, and the duty of clarity permits the judiciary to invalidate a provision only when it clearly conflicts with the Constitution.

The controversy over the role of construction and interpretation arises from recent developments in originalist theory. Some theorists, often called the New Originalists, like Randy Barnett, Larry Solum, Jack Balkin, and Keith Whittington, have sought to recast originalism by making a strong distinction between language in the Constitution that is clear and language that is not. For clear language, interpretation governs, and the process of interpretation seeks to discover the semantic meaning of a provision at the time it was enacted. Unclear language, in contrast, creates a so-called Construction Zone, when conventional legal meaning runs out. Within the Construction Zone, the constitutional decision maker must necessarily appeal to materials extraneous to the semantic meaning of the Constitution. As a result, according to many New Originalists, the Construction Zone allows the judiciary to invalidate legislation even when the semantic meaning of the Constitution does not require invalidation.

And in conclusion: 

In short, if a central thesis of the New Originalists—that interpretation runs out when a provision is irreducibly ambiguous or vague—is accurate, only the legislature rather than the judiciary can “construct” the constitutional order when the meaning of the Constitution is unclear. The judiciary’s role in the course of judicial review is confined to interpreting the Constitution. That is an important role, but one circumscribed by law.

This seems to me to be an important criticism of New Originalism, well and concisely put.


Joel Alicea on Originalism, Barnett and Balkin
Michael Ramsey

At National Affairs, Joel Alicea has a long essay titled Originalism and the Rule of the Dead.  Here is the introduction: 

The conservative legal movement is in the midst of a great debate about its future. For decades, originalism -- the theory that the original meaning of the Constitution is binding on today's interpreters -- has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.

Since its inception, originalism has insisted on obedience to the past in order to vindicate the sovereignty of the living. It has demanded that today's majorities adhere to the original meaning of the Constitution, recognizing that this is essential if those majorities are to govern themselves. In this, originalism has stood against the all-too-understandable impulse to break free of past constraints and empower the present. It has spurned calls for a "living Constitution," the meaning of which changes to reflect the values of society or of a chosen elite.

The new trend in originalism abandons this heritage. It self-consciously rejects the authority of the past and the duties rightfully imposed by our forebears, elevating instead the will of the present and the ideologies of its theorists. Having internalized the basic assumptions of living constitutionalism, it is but one step away from becoming what has always been considered originalism's intellectual adversary.

If originalism is to avoid collapsing into that which it has always opposed, legal conservatives must begin by remembering why they believe in originalism. They must look to originalism's past in order to preserve its future.

And from the conclusion:

Barnett and Balkin look to the history of the Constitution, but originalism is about more than history. They stress the importance of the constitutional text, but originalism is about more than words. By embracing the dead-hand argument, Barnett and Balkin replace originalism's core philosophical assumptions with those of living constitutionalism. To the extent that legal conservatives adopt Barnett and Balkin's views, they adopt premises antithetical to their own.

Legal conservatives would do better to hold fast to the principles that have served them well, to safeguard that which it has been their special duty to defend. They would do better to insist on the rule of the dead.


Sonja West: The 'Press,' Then & Now
Michael Ramsey

Sonja West (University of Georgia School of Law) has posted The 'Press,' Then & Now on SSRN. Here is the abstract:

Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view. 

It starts by expanding the scope of the relevant historical evidence. Discussions about the original meaning of the “press” typically focus only on the ratifying generation’s explicit rhetoric. This approach, however, fails to consider valuable evidence about colonial and early-American lived experiences with the printing press. To members of the framing generation, this new evidence reveals, the press was a tool of limited access, available only to certain speakers, controlled by gatekeeper printers, and used primarily for matters of public concern. Early Americans may have spoken of press freedom as open and inclusive, but printing, as they actually knew it, was not. Rather, it played a specific societal role. 

Historical evidence is only of true value, moreover, if it is used to address the right question. This article thus shifts the pertinent question from “what” members of the founding generation were protecting — technology or trade — to “why” they sought to protect it. History reveals that they saw the Press Clause as having two functions — an individual, self-expressive function and a structural, government-monitoring function. At the time, a singular notion of the “press” embodied all of these concepts (a technology as well as an expressive and a structural function), leaving no need to distinguish among them. Today, however, that conceptual overlap no longer exists. For a variety of reasons — including advances in communication technologies, expansion of access to these technologies, growing complexity of government, and development of journalistic standards — press functions and press technology are now unique concepts.

Today’s advanced mass communication technologies, buoyed by our modern robust speech jurisprudence, provide individuals with extensive expressive channels. Modern journalistic practices, meanwhile, fill a more dedicated and refined watchdog role. To be sure, some overlap still exists. Broad use of mass communication technology can lead to government scrutiny, and journalism has expressive qualities. But the primary uses of the two have diverged significantly since the late-1700s. An interpretation of the Press Clause that is faithful to the original goals of press freedom should reflect these modern realities.

Green and Bingham
Andrew Hyman

Professor Chris Green kindly posted a response to my blog post about Congress's alleged power to define what "privileges" and "immunities" are covered by the Fourteenth Amendment.  My main point was that Congress generally has no definitional power under the Privileges or Immunities Clause with regard to either enumerated or unenumerated rights; Congress simply has no role with regard to either.  Perhaps Professor Green believes Congress has such definitional power with respect to unenumerated rights, but if so then I respectfully disagree.

Professor Green is entirely correct that it's very important to ask whether the Privileges or Immunities Clause involves unenumerated rights, and I am happy to engage on that point, and to argue that it does not.  It seems to me that none of the five examples that Professor Green has given include the key phrase “privileges [and/or] immunities of citizens of the United States.”  The closest of those five examples (by far) is Green's lead example, where Congressman John Bingham said something very similar. That remark by Bingham in 1867 (which incidentally was not widely published like President Andrew Johnson's veto message was in 1866) referred not merely to rights related to prevalent rates of taxation, but rather referred explicitly to the Comity Clause right of equal treatment which is emphatically an enumerated rather than unenumerated right.

No one disputes that various statesmen in 1866 believed United States citizenship implied various unenumerated natural rights, but whether they believed any of those unenumerated rights were judicially enforceable against Congress is quite another question, as is whether they believed those unenumerated rights were “privileges [and/or] immunities of citizens of the United States.”  The phrase "privileges and immunities" typically referred in the Comity Clause not to all natural rights possessed by native citizens but only those rights that native citizens could actually vindicate against their own state; that is one important reason why political leaders of that era could sometimes distinguish “privileges [and/or] immunities of citizens of the United States” from the broader set of rights belonging to U.S. citizens.

UPDATE (3/23): Just to be crystal clear, I am absolutely not drawing any sharp distinction between rights on the one hand versus "privileges and immunities" on the other hand.  All I am saying is that the latter are a subset of the former.  This has been established Comity Clause doctrine for well over a century.


An Additional Response to Katyal & Clement
Michael Ramsey

Mario Apuzzo also has a response to Katyal & Clement on natural born citizens.  (Thanks to Charles Kerchner for the pointer).

I take his point to be principally that English common law, not English statutory law, should inform the constitutional meaning (similar to this post).  Although it's a minor point, this additional comment is worth noting:

Katyal and Clement argue that John Jay [who apparently first suggested the "natural born" language] had children born out of the United States while he was on diplomatic assignment and that he would not have disqualified his own children from being natural born citizens.  This is a really baseless point since Jay's children would have been born out of the United States to parents who were serving the national defense of the United States and therefore reputed born in the United States.

I agree (although I think that should read "serving in a diplomatic capacity" not "serving the national defense").  The Jay argument is unhelpful and it's unfortunate that Katyal and Clement repeat it (which they do, text at fn. 14).  There's no doubt that under English common law the children of English diplomats born abroad were natural born subjects despite the general common law rule that "natural born" meant only birth within the realm (Blackstone, vol. 1, p. 361, referring to the "children of the king's embassadors born abroad"). So whatever Jay may of thought about the eligibility children of diplomats does not help us decide between looking to English common law and looking to all of English law including statutes.

Perhaps Will Baude is Too Timid
Andrew Hyman

In a recent op-ed for the New York Times, Will Baude (law professor and until recently Volokh Conspiracy blogger) suggested a contingency plan for President Obama in case the judiciary finds Obamacare -- or parts of it -- to be unlawful.  Taking a page from Lincoln's first inaugural address, Baude speculated that Obama could enforce such judicial decisions only with respect to the particular parties.
Professor Baude's suggestion has run into some skepticism, including from Noah Feldman, Nick Bagley, Josh Blackman, James Taranto, and Andy Grewal (Baude provides hyperlinks here).
But I think Professor Baude may be too timid in his Lincolnesque approach, and perhaps ought to try something a bit more Hamiltonian.  If the president is honestly convinced that SCOTUS is violating the Constitution by willfully defying statutory language that is plainly legitimate, then why should the president even enforce such a SCOTUS decision as to the particular parties in the case? In Federalist 78, Hamilton wrote of SCOTUS that, "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."  Accordingly, Obama could instruct the U.S. Marshals Service to sit on its hands instead of effectuating the judgment for one of the parties.  That's called checks and balances, though not of the usual sort.  Of course, there would be risks for Obama in such an unusual approach, including possible impeachment, not to mention the precedent for Bush 45, or for President Fiorina.  But the same is true of the Lincolnesque approach that Baude has suggested.
Instead of providing a link directly to Federalist 78 for the Hamilton quote, here is a link to (apparently) the only opinion by a Supreme Court Justice that has ever had the nerve to repeat it. Hint: that judge is currently the subject of a play at Arena Stage in Washington D.C.
UPDATE (3/23): Professor Baude has emailed to say that he does not think Hamilton was right, citing a law review article that Baude wrote several years ago.
MIKE RAMSEY ADDS:  Here are a couple of posts supporting Professor Baude's position, from Stephen Carter (at Bloomberg View) and Kevin Walsh (Mirror of Justice).

Helen Knowles:The Least Dangerous Branch and Popular Constitutionalism
Michael Ramsey

Helen Knowles (Skidmore College, Government) has posted Remember, it is the Supreme Court that is Expounding: The Least Dangerous Branch and Popular Constitutionalism on SSRN. Here is the abstract:

This article undertakes critical analysis of the similarities between “popular constitutionalism” and The Least Dangerous Branch. It does so by focusing not on the book’s treatment of the counter-majoritarian problem but, rather, on the passive virtues discussion. In so doing it suggests that Alexander Bickel – at least, the Alexander Bickel who wrote The Least Dangerous Branch – was far more accepting of the US Supreme Court’s power of judicial review than the scholarly “obsession” (as it is sometimes referred to) with the counter-majoritarian problem might lead us to believe.


John Coates: Corporate Speech and the First Amendment
Michael Ramsey

John C. Coates IV (Harvard Law School) has posted Corporate Speech and the First Amendment: History, Data, and Implications on SSRN.  Here is the abstract:      

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

(Thanks to Seth Barrett Tillman for the pointer).


Hyman, Johnson, Bingham, Wilson, Trumbull, Colfax, and Stevens
Chris Green

Andrew Hyman notes that Andrew Johnson, vetoing the Civil Rights Act of 1866 on March 27, 1866, claimed that the freedmen were unworthy of "all the privileges and immunities of citizens of the United States." After interpreting Johnson as referring only to constitutionally-enumerated rights with that phrase, Hyman notes, "as far as I am aware, no supporter of the Fourteenth Amendment during that era disagreed with or contradicted Johnson's understanding of the term 'privileges and immunities of citizens of the United States.' "

I am less confident than Hyman exactly what Johnson meant in referring to "the rights of citizens as contemplated by the Constitution of the United States." By itself, the context does not require that all the rights of citizens of the United States are in the Constitution, merely that Johnson thought that the freedmen were unworthy of those rights that were.  

Whatever Johnson meant, however, it is perfectly plain that lots of very important framers of the Fourteenth Amendment referred to constitutionally-unenumerated rights as rights of citizens of the United States.

My essay on the enumerated-rights-only view of the Privileges or Immunities Clause, serialized on this blog and now forthcoming in the William and Mary Bill of Rights Journal, canvasses several chunks of such evidence. Consider just a few examples from the most important Republicans: the author of the Privileges or Immunities Clause (John Bingham), the chairmen of the House and Senate Judiciary Committees (James Wilson and Lyman Trumbull), the Speaker of the House (Schuyler Colfax), and the representative who presented the Fourteenth Amendment to the House  on behalf of the Joint Committee on Reconstruction (Thaddeus Stevens).

1. Bingham. In the context of his ellipsis theory of Article IV, John Bingham used the phrase "privileges and immunities of citizens of the United States" in January 1867 to refer to rights related to prevalent rates of taxation. See here at 16. 

2. Wilson.  On March 9, 1866, he described the Civil Rights Act, which contained constitutionally-unenumerated rights like the right to contract and the right to own real estate: "[T]his bill refers to those rights which belong to men as citizens of the United States and none other..." See here at 29.

3. Trumbull. Responding to Johnson on April 4, 1866, he said (see here at page 30), 

[W]hat rights do citizens of the United States have? To be a citizen of the United States carries with it some rights; and what are they? They are those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights in this bill, and they belong to them in all the States of the Union. The right of American citizenship means something.

4. Colfax. He explained on August 7, 1866 (see here at 28),

We passed a bill on the ninth of April last year, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease, and sell property, and be subject to like punishments. That is the last law upon the subject.

5. Stevens. On September 4, 1866, he specifically concurred with Colfax's explanation of the Civil Rights Act.  See here at 29.

Update (3/23): Hyman replies, stressing the supposed difference between "privileges and immunities" and "rights."  But Johnson himself--in the very evidence which Hyman relies upon to establish the supposed limitation to constitutionally-enumerated rights!--restates the issue in terms of "rights": "the rights of citizens as contemplated by the Constitution of the United States." Many, many Republicans and others made similar moves, describing the Privileges or Immunities Clause in terms of "rights and immunities," rights and privileges," or simply "rights." The bulk of the evidence in my new book would be incomprehensible were we to draw such a sharp distinction. Colfax and Stevens, of course, spoke in the context of the Privileges or Immunities Clause as proposed, which they very clearly associated with the unenumerated rights of the Civil Rights Act. Pages 14 to 20 of Kurt Lash's book, following pages 64-65 of Michael Kent Curtis's much older book, show this equation of "privileges," "immunities," and "rights" quite clearly.

The fact that the Comity Clause was itself an enumerated right cuts no ice in favor of an enumerated-rights-only reading of the "privileges and immunities of citizens of the United States" in Bingham's 1867 comments. Bingham said that the Comity Clause required comity regarding the privileges and immunities of citizens of the United States, among which were the rates of taxation prevalent in each state. He wasn't talking about comity regarding comity.  Bingham clearly didn't think the clause covered only comity regarding enumerated rights--which the notion that "privileges and immunities of citizens of the United States" means "privileges and immunities enumerated in the Constitution" requires. 

Congress’s Power (or Powerlessness) to Define the Privileges and Immunities of Citizenship
Andrew Hyman

People interested in the Privileges or Immunities Clause may like to read a new Note from the Harvard Law Review, suggesting a role for Congress in determining what is included in the phrase “privileges or immunities of citizens of the United States.” The HLR Note is titled Congress’s Power to Define the Privileges and Immunities of Citizenship, 128 Harv. L. Rev. 1206 (Feb 10, 2015).   In my view, this Note in the HLR is missing some important ingredients.

It is amazing how many journal articles that focus exclusively upon this Clause of the Fourteenth Amendment somehow overlook the origin of the key quoted phrase.  Less than a month before the phrase first appeared in a draft of the Fourteenth Amendment, President Andrew Johnson doubted, in the official message accompanying his veto of the Civil Rights Act, whether newly-freed slaves possessed the “requisite qualifications to entitle them to all the privileges and immunities of citizens of the United States.”   You can search through Hein Online, and find only seven scholarly articles quoting that statement by President Johnson --- the HLR Note not among them.  

The veto message stated that the question would not arise (about requisite qualifications) if one assumes that the Constitution always deemed native-born persons to be citizens of the United States; Johnson thus took the position that the privileges or immunities of citizens of the United States exist automatically as a result of U.S. citizenship, not as a result of statutory selection.  That is a big deal, and goes to the core of what the new Note in the HLR is about.  Yet Johnson was not done explaining his terminology.  He added that a foreigner, upon completing the naturalization process, receives a “coveted prize” by attaining “the rights of citizens as contemplated by the Constitution of the United States,” as distinguished from the rights listed in the Civil Rights Act which the foreigner may be given even before citizenship is granted.  This confirms that Johnson, in a formal and widely-reported way, defined the “privileges and immunities of citizens of the United States” as the rights that attach to U.S. citizenship under the Constitution.  It therefore seems clear that Congress generally has no substantive role by virtue of the Privileges or Immunities Clause; as far as I am aware, no supporter of the Fourteenth Amendment during that era disagreed with or contradicted Johnson's understanding of the term "privileges and immunities of citizens of the United States."  

The HLR Note does refer to a Congressman Charles Phelps (who was an opponent of the Fourteenth Amendment); Phelps argued that Congress would have power to define the privileges or immunities of citizens of the United States "in like manner" as it has power to define who are citizens.  However, the HLR Note neglects to mention that Phelps' statement (on May 5, 1866) was followed by the addition of the Citizenship Clause to the Fourteenth Amendment (on May 30, 1866), thus removing power from Congress.  The HLR Note also mentions a speech by Congressman Andrew Rogers (another opponent of the Fourteenth Amendment), but Rogers did not specify which branch of the federal government would determine what the privileges and immunities of U.S. citizens are, though it is true that Rogers took a very different position than Johnson did.  Anyway, the HLR Note is interesting, allbeit incomplete and mistaken, in my opinion.

Ilya Somin Reviews Frank Buckley's "The Once and Future King"
Michael Ramsey

In The Independent Review, Ilya Somin reviews (courteously but skeptically) The Once and Future King: The Rise of Crown Government in America by Frank Buckley.  From the introduction:

Frank Buckley is a Canadian-born academic who has long been a leading legal scholar in the United States. Despite (or perhaps because of) living in America for many years, he has not lost his affection for queen and parliament. In The Once and Future King, he offers a penetrating analysis of the dangerous growth of executive power in three predominantly English-speaking democracies: Great Britain, Canada, and the United States. Executives in all three nations have increased their authority at the expense of the legislature in recent decades. But Buckley contends that Britain and Canada’s parliamentary regimes are better able to limit the dangers of executive aggrandizement than America’s separation-of-powers system.

Buckley’s book has many strengths and undoubtedly qualifies as a major contribution to the debate over comparative constitutional design. On some key issues, however, he overrates the benefits of parliamentary systems and undervalues those of presidentialism.

(Update: Link missing before, now fixed.  Apologies).


A Comment on the Presidential Eligibility Clause Debate
Seth Barrett Tillman

Statutes limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Ambiguities should be resolved in favor of eligibility to office, and constitutional and statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility. 
67 C.J.S. Officers § 23 (2012) (footnotes omitted) (emphasis added); cf. 62 C.J.S. § 273 (2011) (“[A]n appointed or elected person should not be prevented from taking office unless clearly ineligible.” (emphasis added)); see also CASES OF CONTROVERTED ELECTIONS, DETERMINED IN COMMITTEES OF THE HOUSE OF COMMONS, IN THE SECOND PARLIAMENT OF THE REIGN OF QUEEN VICTORIA 587 (Thomas Falconer & Edward H. Fitzherbert eds., London, Saunders & Benning 1839) (reproducing committee debate from disputed Galway election of 1838, where Mr. Austin (counsel for the sitting member who prevailed) stated: “In all cases respecting eligibility, eligibility is to be aided, and ineligibility ought to be strictly proved. Severe penalties are imposed by the acts of parliament creating disqualification, and they are not favoured.”); cf. Jordan Steiker, Sanford Levinson & Jack M. Balkin, Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility, 74 Tex. L. Rev. 237, 242ff (1995) (noting several textual difficulties in regard to President Washington's eligibility, including his purportedly being a resident of the United States for 14 years in 1789, when he took office).

A Response to Clement & Katyal on Natural Born Citizens
Michael Ramsey

Jim Henderson (Just Sayin) responds to Neal Katyal and Paul Clement on Ted Cruz and presidential eligibility: Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars.  (Thanks to William Rawle for the pointer).  It's a strong counterpoint, but I am not persuaded.  From the core of the argument:

[Katyal and Clement's] conclusion rests on a fallacious conflation of English statute law and English common law. The significance of that conflation cannot be overstated. As noted, under English common law, only persons born within the realm were entitled to status as “Natural Born Subjects.” Hard choices faced those living with such a reality. Called to service, engaged in mercantile trade, traveling for study, many reasons provoked Natural Born Subject to remove to other lands. Living abroad – even in service to country and Crown – would risk that offspring would suffer disinheritance of title and property. So Parliament necessarily, wisely, granted to specific categories of persons born abroad status as Natural Born Subjects.
In fact, Clement and Katyal gloss over this dichotomy. English statutory law, enacted by Parliament, extended “Natural Born Subject” status to additional classes of persons not within the English common law’s sweep of the term. It is from that premise – Parliament’s expansion of the scope of “Natural Born Subject” – that Clement and Katyal illogically leap. The leap is illogical because they refer to the vaunted role of English common law in understanding our early legal history and as a source work for understanding the Constitution but then invoke English statute law to give meaning to our Constitution’s “Natural Born Citizen” provision. 
The post correctly describes the relationship between English common law and English statutory law on the subject, but in my view draws the wrong conclusion from it.   I agree it is essential to Katyal & Clement's argument to look at both common law and statutory law, but I don't think it's a "leap," much less an "illogical" one.  We should look at both for the same reason: they are part of the Constitution's legal background.   The meaning of words in the Constitution is informed by the way those words were used in the whole corpus of English law, both common law and statutory law.  There is no sound basis for excluding statutory usage (where the founding generation in America was familiar with it, as was clearly the case here) as evidence of constitutional meaning.  What "natural born" meant in eighteenth-century English law was a combination of common law and statutory law.
The post continues: 
... [T]he decision of Congress [in the 1790 Naturalization Act, relied on by Katyal & Clement] to extend Natural Born Citizen status to persons who were not, in fact, by operation of the common law, Natural Born Citizens was not a proper exercise of the Naturalization Clause power. The essence of naturalization is to make one a citizen that is not a citizen. So the power of Congress is limited to that task, making, as it were, citizens out of whole cloth. But therein lays the rub for Clement and Katyal, while Parliament had power to grant Natural Born Subject status to persons denied that status by operation of common law, our Legislative Branch is one of limited and defined powers. For Clement and Katyal to succeed, they must identify a legitimate ground upon which Congress could expand the meaning of the Natural Born Citizen provision.
Again, I think this formulation asks exactly the right question but then gives the wrong answer.  I agree that a key to the eligibility clause debate is the power of Congress.  But I would define Congress' naturalization power by reference to Parliament's naturalization power.  Parliament's power is the obvious antecedent of Congress' power in this situation.  There is no "essence" of naturalization apart from the meaning eighteenth-century legal usage placed on that term.
There is no doubt that (a) Parliament had power to declare persons born abroad to English parents to be "natural born"; (b) this power was described as part of Parliament's power of "naturalization" (the relevant statutes were called acts to "naturalize" persons born abroad); and (c) the founding generation in America knew this.  Accordingly, absent strong contrary evidence, I think it follows that Congress' naturalization power included what Parliament's naturalization power included: the power to declare a person born abroad to be "natural born" based on the allegiance of his parents.

Joel William Hood: Resurrecting the Non-Delegation Doctrine
Michael Ramsey

Joel William Hood (Brigham Young University - J. Reuben Clark Law School) has posted Before There Were Mouseholes: Resurrecting the Non-Delegation Doctrine on SSRN. Here is the abstract:

There are now over five-hundred federal agencies and departments. Some are executive, others independent, but most are a far cry from the strict separation of powers originally conceived in the United States Constitution and envisioned in other founding-era documents. The purpose of this paper is to examine those documents and other fundamental writings that influenced the delegates to the Federal Convention of 1787 in order to demonstrate that the non-delegation doctrine was — and still is — an integral and inherent part of separation of powers. In fact, it is the doctrine upon which the bedrock principle of separation of powers was laid. This assertion invites the reader to critique in new light the Court’s decisions regarding the administrative state since J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).

This night light is magnified through the following evidence: Non-delegation doctrine debate during Federal Convention; Non-delegation amendment included in James Madison's original 17 amendments for the Bill of Rights; State constitutions at the time of the ratification of the Constitution; Philosophical background of the Framers (Locke and Montesquieu); 18th-century dictionaries.


Suja Thomas: Why Originalism Does Not Strictly Govern Same Sex Marriage

Suja A. Thomas (University of Illinois College of Law) has posted Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage) on SSRN.  Here is the abstract:      

Originalism has played a part in many court decisions including on the issue of whether states can ban same sex marriage. For the most part, the argument goes that the modern constitutional meaning trumpeted by supporters is not the original public meaning of the constitutional provision. Regarding same sex marriage, for example, originalists argue that the original public meaning of the Fourteenth Amendment's equal protection clause was the protection of African-Americans from discrimination by states, not the protection of gays and lesbians from discrimination by states. So, the equal protection clause did not and cannot protect gays and lesbians from such discrimination. These arguments assume that originalism should play a significant role in the interpretation of all provisions in the Constitution. This essay argues that this assumption is misplaced. The interpretation of the Constitution must begin with the text. The text of the Seventh Amendment is the only part of the Constitution that explicitly incorporates originalism, doing so through the use of the words "common law" and "preserved" in the context of limiting the authority of the judiciary and the jury. The express inclusion of originalism in the Seventh Amendment necessarily limits the use of originalism for the interpretation of the rest of the Constitution. Originalism must play a lesser role or no role in the interpretation of the rest of the Constitution, including the Fourteenth Amendment. While acknowledging that some role for originalism in the interpretation of the Constitution has been generally accepted, this essay argues that originalism does not strictly govern the Constitution outside of the Seventh Amendment, and nor should it same sex marriage.


David Upham and William Rawle on Natural Born Citizens
Michael Ramsey

At Liberty Law Blog, David Upham: Ted Cruz: A Probable Natural-Born Citizen of the American Republic.  From the introduction:

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

From the core of the argument:

In particular, [Clement and Katyal] cite certain English statutes and Congress’s 1790 Naturalization Act, which affirmed that children born to subjects or citizens abroad were to be deemed natural-born subjects or citizens for all intents and purposes.

But the fact that these provisions are found in “naturalization” acts strongly indicates that such foreign-born persons were not truly “natural” but had to be naturalized by force of the statute.  That is to say, the statutory provisions seemed designed to make someone “natural” who was not otherwise natural. They resemble later adoption statutes that “deemed” the child’s new guardians to be his “parents” for all intents and purposes.

I agree that the text poses more of a challenge that Clement and Katyal admit.  The phrase "natural born Citizen" suggests that there is a category of people who are born citizens but are not natural born citizens.  And further, "natural" is often understood as the opposite of "made so by statute."

Nonetheless, I agree with Clement and Katyal that the parliamentary practice is decisive.  Parliament plainly understood itself to have the power to declare persons born abroad to English parents to be "natural born."  Perhaps that is a odd use of the word "natural," but that is the way parliament used it.  If the American framers wanted to restrict presidential eligibility to persons recognized as citizens by common law (but not by statute) they would not have used the phrase "natural born." Anyone with any familiarity with English law and practice (including via Blackstone) would have understood that the status of "natural born" could be conveyed by statute.

Professor Upham's solution is as follows:

But let me suggest another way in which Cruz’s eligibility could be vindicated.  This way depends on recalling (1) that “natural-born” membership depends on the relationship between one’s birth and sovereignty, and (2) that, in a republic, the locus of sovereignty is in the bodies of the citizens themselves.

All authorities seemingly concurred that the offspring of the King, regardless of place of birth, were plainly the King’s “natural-born subjects.”  No statute was ever needed to make such persons “subjects.”  Indeed, as Blackstone added, even the King’s ambassadors, because of their representative capacity, likewise carried abroad, by extension, the movable bodily sovereignty of the King: “the children of the king’s embassadors born abroad were always held to be natural subjects.” Unlike children born abroad to ordinary subjects, these children required no parliamentary naturalization at all—they were always deemed “natural-born.”

In our republic, however, the citizens became the sovereign.  As Chief Justice John Jay wrote in Chisholm v. Georgia,  “at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country…; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.”  If so, then the citizens of the American Republic arguably carry with their bodies abroad this sovereignty just as the King and His ambassadors had.  Consequently, since 1776, any child born to a member of the sovereign citizenry of the United States is as much a “natural-born citizen” of our Republic as a child born to the sovereign King was the natural-born subject of the British monarchy.

Ted Cruz, then, is probably a natural-born citizen of the United States, not because he was a citizen “from birth.”  Rather, he is a natural-born citizen because at his birth, he was the offspring of one of the Queens or Kings that compose the American Sovereign.

I would be more persuaded by this argument if there were any evidence that anyone in the founding era had this understanding of natural birth.  So far as I know, however, to the contrary everyone at the time understood that the U.S. citizenship of people born abroad to U.S. parents depended upon a statutory grant (hence the 1790 naturalization statute, and its successors, which established such citizenship).

Related:  Reader William Rawle points to these two additional sources: 

The Library of Congress Legislative Reference Service report on the eligibility of George Romney (who was born in Mexico to U.S. citizen parents).

James Bayard's 1833 work A Brief Exposition of the Constitution of the United States, which discusses the eligibility clause here.  Bayard observes (without citation or further explanation):

It is not necessary that a man should be born in this country, to be a "natural born citizen." It is only requisite he should be a citizen at birth and that is the case with all the children of citizens who have ever resided in the country, though born in a foreign country.

John McGinnis: The Duty of Clarity
Michael Ramsey

John O. McGinnis (Northwestern University - School of Law) has posted The Duty of Clarity (Northwestern Public Law Research Paper No. 15-14) on SSRN. Here is the abstract:

This article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.

The best categorization of this duty of clarity and clarification is that it was an aspect of the judicial power granted under Article III of the Constitution. Thus, the article rejects James Bradley Thayer’s form of judicial deference - that legislation should be uphold on the basis of any interpretation that could be embraced by “a rational person” - as extreme and unwarranted. Thayer followed a jurisprudential tradition that developed subsequent to the Framing in which judicial review was fundamentally a political rather than a legal exercise and in which judges necessarily made law in the interstices of a written text’s unclear commands without any clear framework of discipline provided by legal rules. As a result, Thayer’s concept of constitutional deference has a larger scope and effect than it did at the jurisprudence of the Founding where judges were not seen as lawmakers in that sense and where the judicial duty of clarity has jurisprudential roots in natural law rather than positivism. But the article also rejects the notion that judicial review permits judges to overturn legislation based on their own view of the Constitution, even if their interpretation is not clearly the best one. The duty of clarity casts doubt on the legality of constitutional construction as opposed to constitutional interpretation in the course of judicial review, because constitutional construction can occur only when the meaning of the Constitution is unclear.


Bruce Ackerman and Louis Fisher on Executive Power and the Obama Administration
Michael Ramsey

From the National Constitution Center, a podcast featuring Bruce Ackerman (Yale) and Louis Fisher (Constitution Project) on American foreign policy, Iran and the Constitution.

(Also, quotes from James Madison on his birthday, and 10 fascinating facts).

Schalk & Kopf and Obergefell
Chris Green

I noted here and here the failure of the petitioners' briefs in Obergefell, and the briefs of their amici, to deal with the use of tradition in Heller v. Doe. A search through the 4084 pages of briefs so far shows another interesting near-total omission: only one of the 78 briefs so far (here at 30 n.14) mentions the European Court of Human Rights' 2010 rejection of a similar claim in Schalk & Kopf v. Austria. That court's 1981 decision in Dudgeon v. UK was, of course, very important in Lawrence. The failure to mention Schalk & Kopf, especially in briefs stressing European law, is thus quite striking. Human Rights Watch (here at 5) even quotes Justice O'Connor's statement that "We are going to be more inclined to look at the decisions of (the) European court—and perhaps use them and cite them," but without itself inviting the Court to look at the European precedent most directly on point.

Update (3/17): Seth Tillman writes to clarify that Justice O'Connor was not herself referring to the European Court of Human Rights, but the European Court of Justice, when she referred to "(the) European court."  Human Rights Watch's brief at this point cites a law-review article, including the parenthetical, relying on a now-broken web link. I think it is still true that Schalk & Kopf is "the European precedent most directly on point." Because the context of the Human Rights Watch brief was merely the importance of non-US law, Schalk & Kopf's non-citation is thus still quite striking.

Update 2 (3/18): The trickle of amicus briefs continues--three more, but no Schalk & Kopf (or Heller). 81 briefs and 4205 pages, for those keeping score.

Update 3 (3/23): One last Schalk- and Heller-less amicus brief; 82 briefs and 4261 pages total now.

Ethan Ranis: The Bare Minimum for Solum’s Originalism
Michael Ramsey

In the current issue of the Texas Law Review, Ethan Ranis (J.D. Candidate, University of Texas School of Law, 2015): Loose Constraints: The Bare Minimum for Solum’s Originalism (93 Texas L. Rev. 765). Here is the abstract:

What does or does not constitute originalism continues to be important when drawing lines in legal academic debate. In order to cast some light on this issue, Mr. Ranis examines Lawrence B. Solum’s theory of originalism and seeks to identify the ‘bare minimum’ theory that Solum would consider to be originalist. Mr. Ranis concludes that Solum’s current definition of originalism is too vague to truly capture the state of current constitutional debate.


Now Playing: "The Originalist"
Michael Ramsey

From the New York Times theatre reviews: ‘The Originalist,’ a New Play About Justice Antonin Scalia by John Strand. Highlights:

The play is set in the Supreme Court term that ended in June 2013 with a major victory for gay rights. In the play, Justice Scalia debates that case and others with a liberal law clerk, and their odd-couple relationship, with antagonism shading into affection, gives the play its shape.

“This is a boxing match,” said Ms. Smith, the director. “What the play does is what any good play does: It humanizes the combatants.”

Mr. Strand, the playwright, has written other works that drew on history, but less directly. He adapted Molière’s “The Miser” to comment on the Reagan era, and his farce “Three Nights in Tehran” concerned the Iran-contra affair. Still, he said, he was a little nervous about imagining recent history involving a prominent figure like Justice Scalia.

“We’re taking a risk,” he said. “We’re probably crossing a line.”

The play is generally a fair presentation of Justice Scalia’s legal views. It leans heavily, Mr. Strand said, on Joan Biskupic’s evenhanded biography “American Original.”

“It was never my goal,” Mr. Strand said, “to mock him or slam him or set him up as a straw man and then slice him apart the way some conservatives would expect a theater to treat a character like Scalia.”

Related:  In the Washington TimesAntonin Scalia helps D.C. actor Edward Gero prep for lead role at Arena Stage.


Neal Katyal & Paul Clement: On the Meaning of “Natural Born Citizen"
Michael Ramsey

Neal Katyal & Paul Clement have published the article On the Meaning of “Natural Born Citizen" in the Harvard Law Review Forum.  From the beginning (footnotes omitted): 

While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings. The Supreme Court has long recognized that two particularly useful sources in understanding constitutional terms are British common law and enactments of the First Congress. Both confirm that the original meaning of the phrase “natural born Citizen” includes persons born abroad who are citizens from birth based on the citizenship of a parent.

As to the British practice, laws in force in the 1700s recognized that children born outside of the British Empire to subjects of the Crown were subjects themselves and explicitly used “natural born” to encompass such children.. These statutes provided that children born abroad to subjects of the British Empire were “natural-born Subjects . . . to all Intents, Constructions, and Purposes whatsoeverThe Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’sCommentaries,. a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.

 No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790 provided that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .”

The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress. That is particularly true in this instance, as eight of the eleven members of the committee that proposed the natural born eligibility requirement to the Convention served in the First Congress and none objected to a definition of “natural born Citizen” that included persons born abroad to citizen parents. ...

I agree.  This analysis substantially tracks what I've written (here and here) in the past.

(Via How Appealing).


A Comment on Justice Alito's Concurrence in the Amtrak Case
Seth Barrett Tillman

Just an interesting point . . . Justice Alito wrote:

Department of Transportation v. Association of American Railroads, No. 13-1080, 575 U.S. ____, slip op. (Mar. 9, 2015) (Alito, J., concurring):

Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 (“[A]ll executive and judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution”); Art. II, § 3, cl. 6 (The President “shall Commission all the Officers of the United States”). . . . There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.

Id. at 2–3.

Unless an “inferior Office[r]” is at issue, Article II of the Constitution demands that the President appoint all “Officers of the United States” with the Senate’s advice and consent. Art. II, § 2, cl. 2. This provision ensures that those who exercise the power of the United States are accountable to the President, who himself is accountable to the people.

Id. at 8.

If we take J Alito’s writing at face value—and I think we should—then the President and Vice President are not “officers of the United States.” Full stop. Alito’s position is not new. It has deep roots in prior American judicial decisions. See, e.g., United States v. Mouat, 124 U.S. 303, 307 (1888) (Miller, J.) (“Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.”); United States v. Smith, 124 U.S. 525, 532 (1888) (Field, J.) (same); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 130 S. Ct. 3138, 3155 (2010) (Roberts, C.J.) (“The people do not vote for the ‘Officers of the United States.’ Art. II, § 2, cl. 2.”).

This view has many implications for our understanding of the Appointments Clause and for other provisions in the Constitution using the phrase “officer of the United States” (and its close variants). See, e.g.Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1372 (Fed. Cir. 2006) (Gajarsa, J., concurring in part and concurring in the en banc judgment) (“It is plain that the President is not an ‘officer of the United States’ for Appointments Clause, Commission Clause, or Oath of Office Clause purposes.”). And this view is supported by early scholarship. See, e.g., 1 Joseph Story, Commentaries on the Constitution of the United States 578 (Melville M. Bigelow ed., William S. Hein & Co., Inc. 5th ed. photo. reprint 1994) (1891) (“[T]he [Impeachment] clause 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.”). But see Akhil Reed Amar, America’s Unwritten Constitution 577 n.17 (2012) (“Under Article II, section 4, only ‘civil Officers’ are impeachable. (Presidents and vice presidents are also mentioned separately in th[e] [Impeachment] clause, perhaps to blunt any argument that their role atop—or in the VP’s case, potentially atop—the military chain of command removes them from the category of ‘civil’ officers.)”); Steven G. Calabresi, Closing Statement, A Term of Art or the Artful Reading of Terms?, 157 U. Pa. L. Rev. PENNumbra 154, 155 (2008) (“Original meaning [in regard to the Constitution’s Office-language] is thus about what the ordinary citizen on the street would have thought words meant. It is not about the understanding of someone as erudite as Justice Story.”).

However, there is now an established line of originalist scholarship asserting that the President is an “officer of the United States.” See, e.g., Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 136 n.143 (1995) (“[Professor] Manning’s key suggestion is that an Acting President is not, as such, an ‘Officer of the United States.’ This is a novel claim—which itself should worry a self-described traditionalist—and an odd one. If an acting President, wielding the full and awesome executive power of the United States, is not an ‘Officer of the United States,’ what is he?” (citation omitted) (emphasis added)); see also Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, 157 U. Pa. L. Rev. PENNumbra 134, 145 (2008) (“Washington’s failure to commission [himself, his Vice President, and his successor] thus looks far more like an understandable oversight on his part than it does like a deliberate decision in favor of the highly implausible conclusion that Presidents and Vice Presidents are not officers of the United States.”); Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol’y143, 148 (2009) (“The Constitution uses the phrase ‘Office under the United States’ or its equivalents multiple times to distinguish federal officers from officers under the authority of a state, not to distinguish, in a highly obscure manner, the President from other officers. All federal officers, executive and judicial, occupy ‘offices under the United States’ and are ‘officers of the United States.’” (footnote omitted) (emphasis added)).

My own view is that Justice Alito—and Justices Story, Field, and Miller—have it exactly right. Perhaps we might hear at The Originalism Blog or elsewhere from any of those who have taken a position at odds with that recently expressed by Justice Alito? 

MIKE RAMSEY ADDS:  Sasha Volokh has this lengthy comment on Justice Alito's concurrence, although not generally from an originalist perspective: Does the Amtrak statute violate pretty much all of separation of powers? Justice Alito’s take.

Larry Alexander: Was Dworkin an Originalist?
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Was Dworkin an Originalist? (The Legacy of Ronald Dworkin, Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

In this essay I endorse the conclusion reached earlier by Jeffrey Goldsworthy that Ronald Dworkin was an originalist regarding the meaning of canonical legal texts. I briefly canvas the evidence for that claim. I then ask how the truth of that affects Dworkin’s fit-acceptability account of the nature of law.

I first digress to give my own broad-brush view of the jurisprudential debate between legal positivists and natural lawyers, a view that sees their positions as complementary rather than antagonistic. I then explain why I believe the natural law view must fail and why legal positivists must make an unpalatable choice between a gunman model and a model based on deception. Finally, I situate Dworkin’s “third way” jurisprudence and point out its fatal flaws.

I conclude the essay by circling back to Dworkin’s originalism and pointing out how devastating it is for Dworkin’s view that law consists of those principles that best justify the community’s past and present coercive political decisions.


The Iran Negotiations and Non-Binding Agreements
Michael Ramsey

At Just Security, Jack Goldsmith and Marty Lederman argue that (a) the Iran agreement is expected to be a non-binding agreement, and (b) non-binding agreements come within independent presidential powers under the Constitution.  I agree with both points, but I think substantial concerns remain.

Taking the second point first, here is the originalist argument.  Article II, Section 2 gives the Senate shared power over treaties, which were understood as (at least) important long term agreements that bound the United States under international law.  At minimum, the overwhelming negative implication of the treatymaking clause is that the President alone cannot make important long term agreements that bind the United States under international law.   There may be other ways to bind the United States under international law -- Duncan Hollis has a useful "primer" at Opinio Juris, and for now I am forbearing on a reply to co-blogger Andrew Hyman on congressional-executive agreements. But for now the key is that the President alone cannot make something that would be considered a "treaty" under eighteenth-century international law.  (If the constitutional language isn't enough, the founding-era commentary is overwhelming -- see sources collected at 77 N. Carolina L. Rev. 133).

But a non-binding agreement (otherwise known as a "political commitment") is not a treaty.  The core characteristic of a treaty in eighteenth-century international law (as today) was that it was binding.  Article II, Section 2 does not preclude non-binding agreements.  Nor does anything else in the Constitution directly mention them.

So who has power to make non-binding agreements?  Article II, Section 1 vests the President with "executive Power."  As I have argued extensively here, and also here [Chapter 3], in the eighteenth century "executive" power included diplomatic power (and generally power over interactions with foreign nations).  Some of this "executive" power is taken away from the U.S. chief executive -- e.g., war power (to Congress) and treatymaking power (shared with the Senate).  But other executive foreign affairs powers, not otherwise mentioned in the Constitution, remain part of the President's Article II, Section 1 power.  Non-binding agreements (I might prefer to call them "diplomatic arrangements") are part of that power.

Now to the first point.  It appears that the administration contemplates a non-binding agreement with Iran.  As Professors Goldsmith and Lederman point out, at Monday's press briefing,  the State Department spokeswoman (after some badgering) expressly characterized it that way.  Further, she repeatedly used the term "political commitment," which is a technical synonym for a non-binding agreement.  And finally, given the Constitution's overwhelming clarity that the President cannot make important binding agreements on his own authority, I see no plausible constitutional argument for his Iran strategy apart from the characterization of the agreement as non-binding.  (It would be nice, though -- as Jennifer Rubin says here -- if the President's defenders were generally more clear on this point).

If this is correct, then the Senators' letter to Iran (whether or not appropriate) is basically accurate.  As I noted earlier, it uses "executive agreement" instead of "non-binding agreement," but I think it intends the latter.  Senator Cotton, the principal author, has this essay in USA Today accurately using the term "non-binding" in reference to the prospective agreement. (See also here from PolitiFact, finding the letter "mostly true").  Indeed, as I argued earlier, the biggest mistake of the letter is its implication that an agreement would be binding on President Obama, and only become revocable in the next administration; that's incorrect because a non-binding agreement is non-binding, period.

Finally, why do substantial concerns remain?  Because it is not clear that the negotiations have the proper form and context for a non-binding arrangement.  First, Iran seems to misunderstand what is being negotiated, apparently characterizing it as binding under international law.  Second, although the State Department spokeswoman did finally say the word "non-binding," the briefing as a whole seems somewhat evasive.  Third, some commentary has not focused as precisely as it should on binding versus non-binding agreements.  And, most importantly, preliminary reports of the deal suggest that it might have an express long duration of perhaps 10 years.

The last point is highly problematic, and is at the heart of the Senators' letter.  Giving an arrangement a fixed term -- especially a fixed term that extends far beyond the current President's time in office -- conveys a false impression of bindingness.  Ultimately a non-binding agreement is a commitment by the particular President who makes it that that President will conform U.S. policy (to the best of his ability) to the approach agreed upon.  Because the President's commitment has no status in international law, it has no claim upon a future President, or upon Congress.  As a result, reference to a extended express fixed term is wholly out of place in a political commitment.

The point of the letter is precisely to correct the mis-impression that might be created by these circumstances, and especially the purported fixed term.


More on the Senators' Letter to Iran
Andrew Hyman

I agree with Mike Ramsey that the recent letter signed by 47 senators was a reasonable exception to normal practice, given President Obama's tendency to overstretch constitutional limits.  It puts the world on notice that presidential power in this area is limited, and that seems like a rather harmless and straightforward thing to do.  If anything, the letter overestimated presidential power, as Mike described.

However, I would like to briefly disagree with a statement that Mike made in his otherwise excellent book, at page 214:  "the ratification debates, seem to assume that Article II, Section 2 is the only source of treatymaking power."  Likewise, Mike recently reiterated here that, "a congressional-executive agreement, approved by a majority of both houses of Congress... is [not] allowed under the Constitution's original meaning...."

It is true that people during the ratification period generally expected that two-thirds of the Senate would be needed even to make a commercial treaty.  For example, Roger Sherman stated publicly that, "It is provided by the Constitution that no commercial treaty shall be made by the president without the consent of two-thirds of the senators present."  However, it is likely that Sherman was referring there only to long-term treaties that could not be legitimately characterized instead as mere "agreements".  I come to this conclusion for two reasons....

The widely-circulated treatise by Emmerich de Vattel titled "The Law of Nations" drew a definite distinction between long-term "treaties" on the one hand, versus short-term deals that could be classified as either "treaties" or "agreements" on the other hand.  The Constitution itself uses both words.  I would not assume that Sherman's statement was referring to the short-term deals.

This point comes much more clearly into focus if we consider the remarks of Gilbert Livingston at the New York ratification convention.  He said: "Congress cannot make a treaty for longer than it stands."  A separate transcript of that same New York convention records Livingston as having said: "Congress cannot make a treaty for a longer time than they stand for."  There is no doubt he said it, and little doubt what he meant.

People like Livingston and Sherman thought that long-term commitments required 2/3 Senate approval even for commercial deals (and even if approval by the House of Representatives is required along with that of 2/3 of the Senate).  But for short-term deals, Congress could proceed by ordinary legislation, unless the President prefers to use an Article II treaty (e.g. for reasons of secrecy or urgency).  Reciprocal legislation was a common notion back then, and no one thought it required an Article II treaty.

This leaves the question about what the difference is between a long-term deal and a short-term deal.  Given that widespread sentiment was to inhibit foreign entanglements, the framers and ratifiers would have been very unlikely to have considered a lasting deal to be long-term if it can be easily and totally revoked by either party at any time. 

In that sense, NAFTA seems constitutional to me, as a matter of original meaning.  This is because Congress can completely get out of NAFTA at any time, with a mere six months' notice, without incurring any penalty.  In other words, Congress could easily overturn NAFTA this year, under not just domestic law, but also under international law, because NAFTA itself explicitly says so.

How all of this applies to an Iran deal is unclear, because no deal has been struck yet.  However, it is not encouraging that Senators have been kept out of the loop.  Harry Truman once blasted Woodrow Wilson on this very point, saying that Wilson "made the serious error of not including any Republicans or any senators from either party in his delegation" to the Paris Peace Conference (Truman also said Wilson was "intransigent and childish" in responding to the Senate's complaints about that treaty).  I hope history is not repeating itself.

Christopher Peters: Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication
Michael Ramsey

Christopher Peters (University of Baltimore - School of Law) has posted Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication (General Principles of Law: The Role of the Judiciary (Laura Pineschi, ed., Springer 2015) (Forthcoming)) on SSRN. Here is the abstract: 

American proponents of legal formalism, such as Supreme Court Justice Antonin Scalia, worry (quite reasonably) that unfettered judicial discretion poses a threat to democratic legitimacy, and they offer formalism – the mechanical implementation of determinate legal rules – as a solution to this threat. In this chapter from a forthcoming edited volume (General Principles of Law: The Role of the Judiciary [Laura Pineschi, ed., Springer 2015]), the author contends that formalist interpretive techniques are neither sufficient nor necessary to impose meaningful constraint on judges. Both the text and the “original meaning” of legal rules are endemically underdeterminate, leaving much room for judicial discretion in the decision of cases. But meaningful judicial constraint can and does flow from other sources in American adjudication. Judges are constrained by the dispute-resolving posture of their task, which requires that they be impartial as between the litigants and responsive to the litigants’ participatory efforts. And they are constrained by the need to be faithful to the substantive principles that justify legal rules, even when those rules themselves are indeterminate. Judicial constraint in the American system thus stems not primarily from formalist interpretative methods, but rather from largely unwritten procedural principles of judicial impartiality, responsiveness, and faithfulness.