05/27/2015

Reasonable Regulation of the Right to a Jury Trial
Mike Rappaport

I have been blogging about the original meaning of the Seventh Amendment.  Here I want to discuss another issue concerning its meaning: how much the Amendment allows the legislature to change the rules governing jury trials?

One concern about the Seventh Amendment is that it might be thought to freeze in place the precise common law at the time.  If the legal system changes in other ways, then those frozen rules might not have a coherent relation with the rest of the system.

I am not sure that I find this complaint that serious.  Assuming that the common law rules were frozen in place, if the courts enforced those rules, the legal system would have to grow around those rules, rather than growing in a way that renders those rules obsolete.   Moreover, other constitutional clauses also freeze certain rules in place and we normally assume that it is a good thing.

But let’s put the policy issue aside and explore the original meaning.  I don’t think the Seventh Amendment “right of trial by jury” necessarily freezes all the details of the right.  The most likely way that the right to trial by jury would not freeze all the details is if the Amendment protected the right against infringement, but allowed reasonable regulation of the right that did not undermine its fundamental features.  Under this principle, the legislature could make certain changes to the details of the right, but could not deprive individuals of the core of the right.  Obviously, drawing the distinction in particular cases might sometimes be difficult.

One would, of course, need evidence to draw this inference.  One bit of evidence is that this distinction between infringing a right and reasonably regulating a right was often draw in the early years of the republic and it may therefore have been a background principle underlying some or all of the constitutional clauses.  One does want to be careful about this.  Some clauses used the term “abridge” and the abridge/regulate distinction work better there than in the absence of this language.

A more difficult issue involves the second of the clauses in the Seventh Amendment: “and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”  This does not speak of a right, but to the rules of the common law.  It is possible that the background rule might still kick in, but I think this is less likely, not only because it does not use the language of right, but also because this provision appears to be added in for extra emphasis (after all, it might be thought otherwise redundant of the right to a jury trial).

John Mikhail: The Constitution and the Philosophy of Language
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers (Virginia Law Review, Vol. 101, No. 4, 2015) on SSRN. Here is the abstract:

The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including James Wilson, Alexander Hamilton, John Marshall, Theodore Roosevelt, and Franklin Delano Roosevelt, and which rests on an implied power to promote the general welfare. To pursue this objective, the Article relies on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, who writes about truth-functional connectives, bald French kings, and the like, might seem like unlikely ally to enlist in this endeavor. As this Article seeks to demonstrate, however, underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the Government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. After a general introduction, the Article first summarizes some key aspects of Grice’s philosophy of language and then briefly illustrates their relevance for constitutional law. The remainder of the Article is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is implicitly vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the Government of the United States?

05/26/2015

Stay Denied in Immigration Enforcement Discretion Case
Michael Ramsey

Josh Blackman has details on today's Fifth Circuit decision in Texas v. United States (2-1, opinion by Judge Jerry Smith).

On the constitutional issue, the majority says:

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.

If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification. Regardless of whether the Secretary has the authority to offer those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.

That's consistent with my view of the case, which is basically that the President can decline to prosecute (or, in the immigration context, decline to remove) but as a constitutional matter that's simply a non-action that does not change anyone's status or rights.

Which “Common Law” Does the Seventh Amendment Protect?
Mike Rappaport

In my last post, I cited to Renee Lettow Lerner’s paper describing how the Seventh Amendment Jury Trial Right had been given a narrow meaning.  Here I want to address one of the issues concerning the original meaning of the Seventh Amendment.  The Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

One of the most important Seventh Amendment issues is the meaning of “common law.”  When the Seventh Amendment was being debated, some people opposed it on the ground that the common law right to a jury trial differed in the states and therefore it was not clear which version of the right should be protected and which version would be protected by the Seventh Amendment.

Lerner points out that Justice Story held that “the common law” meant the common law of England based in part on the argument that the term was in the singular and that English common law was the source of all American common law.  This is a plausible argument, but was certainly not the only possibility.

A second possibility is that the common law should have been understood as the general law.  The general law was a conception of the common law that looked to the decisions of the various common law jurisdictions.  If there was disagreement between the jurisdictions, the court would have to decide which was the better view, considering the prevalence of the view as well as whether it was desirable.  This gave the court discretion to decide on the meaning of the common law, but if that is how the common law functioned, it is not for us to reject it for that reason.  Under this view, then, the court would decide which view of the common law was the correct one and that view would be constitutionally protected.

A third possibility is that the common law referred to the core of the decisions of the various states.  A judge would look to whether a right was protected in all of the states (or at least in a predominant number of them).  The common law would be understood as a reference to the core of the right protected in different jurisdictions.

Determining which of these possible interpretations is the strongest would require additional work.  But we should not automatically assume that the first possibility – the English common law – was the correct one.

New Book: "The Grasping Hand" by Ilya Somin
Michael Ramsey

Forthcoming from Ilya Somin: The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain (Univ. of Chicago Press 2015).  Here is the book description from Amazon: 

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for  "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution - even if the government cannot prove that the expected development will ever actually happen. The Court's decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
      
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and "blight" condemnations are unconstitutional under both originalist and most "living constitution" theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. 
 
The Supreme Court's unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed. 
 
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.

(With blurbs from, among others, George Will, Richard Epstein and James Ely; also recommended by Larry Solum's Legal Theory Bookworm).

Although the book is not all about original meaning, it has substantial sections of originalist interest, as Professor Somin has extensive material on the way "public use" was understood in the eighteenth and nineteenth centuries.  (He presented these sections of the book at the originalism works-in-progress conference last year).

05/25/2015

We Can Make Decisions Like the Irish
Andrew Hyman

Before the recent Irish vote on same-sex marriage fades away in our collective memory, a few things ought to be said.  For starters, the Irish have laudably utilized the democratic process to deal with this subject, whatever one thinks of the outcome. That same ability may imminently be taken away from the American people, on the theory that five judges are better positioned and better informed to decide this issue for 300 million people, than those 300 million people ourselves.

Some readers of this blog may claim that the Equal Protection Clause forbids us from handling the issue as the Irish have done, i.e. democratically or through republican legislation.  To which my answer is: there are many reasons to reject that claim.  
 
One could start with the fact that intermediate scrutiny does not apply to this sort of classification, because it obviously does not involve discrimination against either men, or against women, as a class.  But perhaps the Court could recognize a new suspect class, which brings me to deeper reasons for rejecting the claim.
 
The EPC plainly does not refer to the "equal protection of equal laws".  It would have been very easy for the framers to have included the latter word "equal" had they wanted to.  And those who advocate a reading of the EPC that guarantees "protection of equal laws" have never explained why they prefer that formulation to "protection of THE equal laws" which is closer to the actual text.
 
These points become doubly obvious when you consider that the "protection of equal laws" formulation essentially renders the last three words of the EPC superfluous.  The clause could then just as well say that no state shall "deny equal protection to any person within its jurisdiction", which would automatically require equal laws.
 
This is all elementary textual interpretation, and I hope my friend Mike Ramsey will take a moment to explain why he thinks it is unconvincing, if indeed it is unconvincing.  I have only encountered one remotely plausible objection to this elementary analysis, and it is not based at all upon the clause's text but rather upon the consequences of that text.
 
The objection is this: if we interpret the EPC as allowing unequal laws, then cases like the great Brown v. Board of Education would be impossible.  However, that objection can easily be countered by looking, once again, at the clause's text.  To the extent that the EPC imposes a limitation upon state laws, that is because the framers deliberately required states to comply with the equal protection of federal laws (i.e. "of THE laws") rather than merely equal protection of the state's own laws (i.e. "of ITS laws").  That wording was a deliberate decision, explicitly discussed repeatedly by the 39th Congress.  Looked at in this way, Brown v. Board of Education was entirely justified by the Civil Rights Act of 1866, which was reenacted in 1870 pursuant to the Fourteenth Amendment, and which forbade most (if not all) racial discrimination.
 
According to the original meaning of the Equal Protection Clause, the American people have no less right than the Irish people to decide the issue of same sex marriage.  And on this Memorial Day, I am more than a little concerned that the right of self-government that the founders of this country tried so hard to secure, is being dissolved by people who do not see its central role in our history, and its central role in what has made the country worth fighting for.

The Failure of Originalism to Preserve the Civil Jury Trial
Mike Rappaport

Recently, the Center for the Study of Constitutional Originalism at the University of San Diego hosted the presentation of a paper on the constitution right to a jury trial by Renee Lettow Lerner.  Lerner’s paper is entitled: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial and here is the abstract:

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

Lerner’s paper does a great job of reviewing the history and decline of these jury trial clauses.  She shows that the courts, both at the federal and state level, have generally been willing to undermine or narrowly construe the jury trial rights.  This does not seem all that surprising, since the lesser the jury right, the more power judges have.  In this way, the paper is similar to papers that have been written about other constitutional clauses that have been interpreted in nonoriginalist ways by judges who have not liked the original meaning of the clauses.

But what is the original meaning of the Jury Trial Clause in the Seventh Amendment of the Federal Constitution?  In my next post, I will address some of the issues.

Michael Dorf on Congressional Powers and the Dormant Commerce Clause
Michael Ramsey

At Dorf on Law, Michael Dorf: Congressional Power to Authorize Dormant Commerce Clause Violations. From the introduction:

My most recent Verdict column discusses the dissents of Justices Scalia and Thomas in Monday's SCOTUS decision in Comptroller of the Treasury of Maryland v. Wynne. They argue there that the Dormant Commerce Clause (DCC) "is a judicial fraud." As I explain in the column, this claim is quite overstated. One might reasonably think that the DCC is on balance a bad idea or has taken a wrong turn or something of that sort, but the notion that it is a "fraud" rests on the further supposition that textual extrapolation and structural inference are illegitimate, indeed fraudulent, means of constitutional interpretation or construction. But Justices Scalia and Thomas do not make that further supposition in other contexts--e.g., with respect to federal commandeering of the states and state sovereign immunity--so it is hard to take seriously their invocation of it in this context.

 Here I want to address another argument made by Justice Scalia in his Wynne dissent. He says: "The clearest sign that the negative Commerce Clause is a judicial fraud is the utterly illogical holding  that congressional consent enables States to enact laws that would otherwise constitute impermissible burdens upon interstate commerce. [Citation]. How could congressional consent lift a constitutional prohibition?" This is another example of Justice Scalia substituting adamant rhetoric for analysis.

 To begin, Justice Scalia is right that as a matter of doctrine, Congress may authorize states to enact regulations that, absent such authorization, would violate the Dormant (or negative) Commerce Clause. But that is not "utterly illogical." Quite the contrary, it follows very logically from the core purpose of the DCC.

I agree -- of the arguments one could make against the dormant commerce clause, Justice Scalia's point doesn't seem the most compelling.  From a while back, here are my textualist arguments against the dormant commerce clause; note that Justice Scalia's argument on congressional authorization isn't one of them.

To take a somewhat analogous situation, most people think that the declare war clause means that Congress exclusively has the power to declare war, and thus that the President does not have that power.  But Congress routinely authorizes the President to initiate hostilities, which (as I argue here) is in effect authorizing the President to declare war.  Most people do not find a constitutional problem with that (again subject to non-delegation issues), and I agree.  Similarly, even if you think the Constitution gives Congress exclusive decisionmaking power over (some types of) regulations of interstate commerce, it would still be quite plausible to argue that Congress, pursuant to that power, could delegate some of it back to the states.

The problem with the dormant commerce clause is, rather, that there simply is no textual basis for it.  It is a "judicial fraud," in Scalia's words, because its very name creates a false impression of textual foundations.  It is a false claim to a negative implication.  The declare war clause, as noted, both grants a power to Congress and -- by negative implication -- denies that power to the President.  This approach to interpretation was well understood in the founding era, and it is basically undeniable that the framers understood the declare war clause to have this effect.  So one might think, then, that the grant of power to Congress to regulate interstate commerce carries a similar negative implication that states cannot regulate interstate commerce (unless Congress allows them to) -- and, hence, the "dormant" (or "negative") commerce clause.

The problem is that the dormant commerce clause doctrine has absolutely nothing to do with Congress' power to regulate interstate commerce.  No one thinks that the scope of Congress' power to regulate interstate commerce has any relationship whatsoever with the scope of the dormant commerce clause doctrine (as it is currently understood or as it could be understood).  The breadth of things that Congress can regulate under its interstate commerce power and that the states can also regulate without running afoul of the dormant commerce clause doctrine is vast.

As a result, the collection of rules we call the "dormant commerce clause" does not arise from a negative implication of the commerce clause.  That would be more obvious if we called it something else (as we should).  But calling it something else would make clear its lack of textual foundation.  

05/24/2015

Jack Balkin Interviews David Sehat on "The Jefferson Rule"
Michael Ramsey

At Balkinization, Jack Balkin: The Jefferson Rule: An Interview with David Sehat. From the introduction:

I recently spoke with historian David Sehat about his new book, The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon & Schuster 2015).

JB: Your last book was about religious freedom. Why did you decide to write a book about how the founders have been used (and misused) in American political rhetoric?

David Sehat: People in politics often refer to the Founders to justify their particular vision of religious freedom.  My first book called into question that impulse.  But as I finished that first book, the 2009 Tea Party began.  I found the historical malapropism and anachronism of the Tea Party pretty astonishing, but I knew enough to realize that what they were doing wasn't entirely new.  So I decided to write a book about how the rhetoric about the Founders began and to evaluate its consequences over time.

JB: You describe Jefferson as being the first President to really wrap himself in the founding, all the while changing its political meaning to suit his political program. He plays St. Paul to the founders' Jesus. He turns the principles of 1787 into the principles of 1798. One of the big themes of your book is that this general approach to the founders has had unfortunate consequences for American politics from Jefferson's day to the present. Why do you think that's so?

And here is the book description from Amazon:

In The Jefferson Rule, historian David Sehat [Georgia State] describes how liberals, conservatives, secessionists, unionists, civil rights leaders, radicals, and libertarians have sought out the Founding Fathers to defend their policies.

Beginning with the debate between Thomas Jefferson and Alexander Hamilton over the future of the nation, and continuing through the Civil War, the New Deal, the Reagan Revolution, and Obama and the Tea Party, many pols have asked, “What would the Founders do?” instead of “What is the common good today?” Recently both the Right and the Left have used the Founders to sort through such issues as voting rights, campaign finance, free speech, gun control, taxes, and war and peace. They have used an outdated context to make sense of contemporary concerns.

This oversimplification obscures our real issues. From Jefferson to this very day we have looked to the eighteenth century to solve our problems, even though the Fathers themselves were a querulous and divided group who rarely agreed. Coming to terms with the past, Sehat suggests, would be the start of a productive debate. And in this account, which is by turns informative, colorful, and witty, he shows us why.

05/23/2015

Final Version of "Congress's Limited Power to Enforce Treaties"
Michael Ramsey

The revised and final version of my article Congress's Limited Power to Enforce Treaties (90 Notre Dame L. Rev. 1539 (2015)) is now published and posted on SSRN.  Here is the abstract: 

This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Congress’s power to enact laws necessary and proper to carry into execution the treatymaking power can be read to include the power to enforce treaties because treatymaking and treaty enforcement are inevitably intertwined. As the Framers understood from experience, a nation with a reputation for unreliable treaty enforcement would be impaired in its ability to make future treaties, as potential partners would regard it as untrustworthy. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. But this structural point is overstated, both because treatymaking itself is constrained by the need for supermajority Senate consent and because federal power can be exercised through self-executing treaties regardless of limits on Congress. Indeed, structural considerations cut at least as strongly the other way, for it seems unlikely after the experiences of the Articles of Confederation that the Framers would have accepted a category of treaties whose enforcement could not be assured at the national level.

Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. If Congress alone can decide what a treaty means and what its enforcement requires, Congress may use the treaty to claim powers not contemplated by the treatymakers. Congress could thus invoke the treaty while circumventing the supermajority constraint on treatymaking.

Third, therefore, courts should not defer fully to Congress in this matter; instead, they should assure that Congress’s actions do not exceed what is justified by the treaty. Although Congress has power to pass laws necessary and proper to preserve the United States’ reputation for treaty compliance, Congress must use this power in ways that do not unduly infringe federalism. In particular, this Article suggests two types of judicial limitations. Courts can make an independent assessment of the meaning of the treaty, including employing a presumption that treaties do not affect purely domestic matters. Courts can also review the necessity and propriety of Congress’s enforcement legislation, prominently including in this assessment whether enforcement of the treaty is appropriately done at the federal rather than the state level. As a result, Congress’s power to enforce treaties, while broad, need not be unlimited.

As an illustration, application of this approach in Bond v. United States would find the federal legislation (as applied to Bond) beyond Congress’s power, both because the Chemical Weapons Convention did not reach Bond’s conduct and because even if it did, state regulation was adequate to assure U.S. compliance with the Convention. As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited so that it does not pose an undue threat to federalism.

This is part of an symposium issue of the Notre Dame Law Review on Bond v. United States, also featuring excellent contributions by Duncan Hollis, Paul Stephan, Saikrishna Prakash, Edward Swaine, Roger Alford, David Sloss, and Julian Ku & John Yoo.

05/22/2015

John McGinnis on Originalism and Precedent
Michael Ramsey

At Liberty Law Blog, John McGinnis: Originalists Need a Distinctive Theory of Precedent. Discussing the recent dormant commerce clause decision, he observes: 

None of the justices [in Comptroller v. Wynne] offer an adequate reconciliation of originalism and precedent. Characteristically, Justice Thomas is untroubled by the enormous amount of precedent on the dormant commerce clause that his opinion rejects, but he has never shown why originalism must wholly reject the relevance of precedents. Justice Scalia accepted some precedent in the case—the notion that state laws that are facially discriminatory against citizens of others states are unconstitutional—but rejected the more flexible dormant commerce doctrine that the Court has long employed. His approach to precedent here is also characteristic– characteristically ad hoc. He has never found rules for precedent that are integrated with his theory of originalism rather than with his jurisprudential desire for clear rules.

Justice Samuel Alito’s opinion was no better in its analysis of precedent and original meaning. ...  Justice Alito was content to note that the dormant commerce clause can be traced back to some dicta in Chief Justice John Marshall’s opinion in Gibbons v. Ogden and has been followed in scores of opinions. These correct observations do not offer a rule for precedent that best advances originalism.

And in conclusion:

But I am not faulting the justices alone. Originalist scholars have not devoted as much attention as they should to determining the content of such rules.  If originalism is going to be successful, ... a lot more work needs to be done. A mature orginalism is an orginalism that comes to terms with precedent.

As Professor McGinnis notes, he and Mike Rappaport have done the most to assess the relationship between originalism and precedent.

My preliminary thoughts on the matter can be found in this article.  It sketches an approach I would described as "strong and narrow" -- that is, that precedents should have very strong binding force, but only as to their particular holdings and not as to their (arguable) implications.  (The article does not not make a case for using this approach; it only outlines what this approach would look like and argues that it is feasible.)  The article's approach is similar, I think, to what Justice Scalia adopts for the dormant commerce clause (but as Professor McGinnis says, Scalia does not embrace that approach across the board).

05/21/2015

More from (and on) Michael Paulsen
Michael Ramsey

It seems to be something of a Michael Stokes Paulsen week.

Here is part 2 of his Public Discourse summary of constitutional law: Citizens, Unite! Part Two of Your Constitutional Primer.  (Part 1 is here).

And here is a further guest post at Volokh Conspiracy: Taking impeachment seriously as a constitutional “check”.

Meanwhile, in National Review Ed Whelan reviews (very favorably)  the Paulsens' book: A New Book Revitalizes Our Understanding of the Constitution, with particular attention to questions of judicial supremacy: 

We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning. This mistaken concept of judicial supremacy is often confused with the power of judicial review — the ability of courts to review the constitutionality of laws and regulations that they are asked to apply. It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.

Thus, Abraham Lincoln, in his first inaugural address, famously defended his rejection of the Dred Scott ruling: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln’s actions as president were faithful to his words. In defiance of the dual holdings of Dred Scott, he signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens). Lincoln also refused to obey Chief Justice Taney’s order, in Ex parte Merryman, to release a prisoner from military custody.

The Court did not propound the myth of judicial supremacy until 1958. But when it did so (in Cooper v. Aaron), it tried to concoct a venerable history. It falsely contended that Marbury v. Madison — the landmark 1803 ruling that expounded the power of judicial review — “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” Even more brazenly, without any mention of Lincoln’s compelling refutation (or of Thomas Jefferson’s and Andrew Jackson’s similar contestations), the Court asserted that the concept of judicial supremacy had “ever since [Marbury] been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

….

The Constitution: An Introduction, an impressive book by the father-son duo of Michael Stokes Paulsen and Luke Paulsen, dispels with admirable clarity this and other common and “thoroughly engrained misconceptions about the Constitution, constitutional history, and constitutional law.” 

Daniel Crane: Debunking Humphrey's Executor
Michael Ramsey

Daniel A. Crane (University of Michigan Law School) has posted Debunking Humphrey's Executor on SSRN.  Here is the abstract:

The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s statutory design that ostensibly justified the Commission’s constitutional independence. It was to be non-partisan and a-political, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This article reconsiders Humphrey’s Executor from a different angle. At the end of a one hundred years natural experiment, the Commission bears almost no resemblance to the Progressive-technocratic vision articulated by the Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative. Rather, it is essentially a law enforcement agency beholden to the will of Congress. This finding has potentially important implications for agency design, constitutional doctrine and theory, and understanding of agency functioning.

 

05/20/2015

Michael Paulsen on Constitutional Law (UPDATE: And on Judicial Supremacy)
Michael Ramsey

At Public Discourse, Michael Stokes Paulsen: Everything You Need to Know About Constitutional Law.

It’s final exam time at the nation’s law schools. That means it’s time for professors to concoct fiendish hypotheticals for essay exams and for students to cram, trying to sort out the various three-part, two-pronged, quadruple-somersault doctrinal “tests” and “tiers of scrutiny” with which the Supreme Court’s judicial decisions have cluttered the Constitution, and prepare to spit back the doctrinal gobbledygook in some equally incoherent form on the test.

This is what passes for “Constitutional Law” in our law schools these days: a hopeless mash-up of confusing half-truths, quarter-truths, and outright untruths, taught as “law.” For the desperate law student, I offer this super-duper two-part mini-review of everything you really need to know about constitutional law: part one today, and part two tomorrow.

UPDATE -- RELATED:  Professor Paulsen is guest-blogging on his new book at Volokh Conspiracy, with his open posts focusing on judicial supremacy:

The myth of judicial supremacy

Lincoln versus judicial supremacy

The constitutional case for interposition and nullification

David Sloss on Non-Self-Executing Treaties
Michael Ramsey

At Just Security, David Sloss (Santa Clara): Non-Self-Executing Treaties in the Draft Restatement of Foreign Relations Law.  From the introduction:

At its annual meeting on May 18–20, the American Law Institute (ALI) will consider portions of a draft Restatement (Fourth) of Foreign Relations Law. Unfortunately, the most recent draft of the Restatement on Treaties appears to endorse a variant of non-self-execution (NSE) doctrine that is unconstitutional. This essay distinguishes among five possible interpretations of NSE declarations. Under two of those interpretations, NSE declarations are clearly constitutional. Under one other interpretation, NSE declarations are probably constitutional. Under the last two interpretations, NSE declarations are probably unconstitutional. The April 2015 Discussion Draft on Treaties appears to endorse the most constitutionally problematic interpretation of NSE declarations.

I'm largely (though  not entirely) in sympathy with Professor Sloss (who takes a strongly textualist/originalist approach to treaty law).  In any event, this is an important critique of the pending revision of the Restatement.

05/19/2015

Comptroller v. Wynne: Originalism versus the Dormant Commerce Clause
Michael Ramsey

An interesting orignialist debate in yesterday's opinion in Comptroller v. Wynne, which sustained (5-4) a dormant commerce clause challenge to Maryland's taxation of out of state residents.  Justice Scalia and Thomas in dissent  again assaulted the entire concept of the dormant commerce clause. Here's Scalia:

The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause. It contains only a Commerce Clause. Unlike the negative Commerce Clause adopted by the judges, the real Commerce Clause adopted by the People merely empowers Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3. The Clause says nothing about prohibiting state laws that burden commerce. Much less does it say anything about authorizing judges to set aside state laws they believe burden commerce. The clearest sign that the negative Commerce Clause is a judicial fraud is the utterly illogical holding that congressional consent enables States to enact laws that would otherwise constitute impermissible burdens upon interstate commerce. See Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 421–427 (1946). How could congressional consent lift a constitutional prohibition? See License Cases, 5 How. 504, 580 (1847) (opinion of Taney, C. J.).

The Court’s efforts to justify this judicial economic veto come to naught. The Court claims that the doctrine “has deep roots.” Ante, at 5. So it does, like many weeds. But age alone does not make up for brazen invention. And the doctrine in any event is not quite as old as the Court makes it seem. The idea that the Commerce Clause of its own force limits state power “finds no expression” in discussions surrounding the Constitution’s ratification. F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 13 (1937). For years after the adoption of the Constitution, States continually made regulations that burdened interstate commerce (like pilotage laws and quarantine laws) without provoking any doubts about their constitutionality. License Cases, supra, at 580–581. This Court’s earliest allusions to a negative Commerce Clause came only in dicta—ambiguous dicta, at that—and were vigorously contested at the time. See, e.g., id., at 581–582. Our first clear holding setting aside a state law under the negative Commerce Clause came after the Civil War, more than 80 years after the Constitution’s adoption. Case of the State Freight Tax, 15 Wall. 232 (1873). Since then, we have tended to revamp the doctrine every couple of decades upon finding existing decisions unworkable or unsatisfactory. See Quill Corp. v. North Dakota, 504 U. S. 298, 309 (1992). The negative Commerce Clause applied today has little in common with the negative Commerce Clause of the 19th century, except perhaps for incoherence.

Here's Thomas, getting into the details of the case: 

According to the majority, a state income tax that fails to provide residents with “a full credit against the income taxes that they pay to other States” violates the Commerce Clause. Ante, at 1. That news would have come as a surprise to those who penned and ratified the Constitution. As this Court observed some time ago, “Income taxes . . . were imposed by several of the States at or shortly after the adoption of the Federal Constitution.” Shaffer v. Carter, 252 U. S. 37, 51 (1920). There is no indication that those early state income tax schemes provided credits for income taxes paid elsewhere. Thus, under the majority’s reasoning, all of those state laws would have contravened the newly ratified Commerce Clause.

It seems highly implausible that those who ratified the Commerce Clause understood it to conflict with the income tax laws of their States and nonetheless adopted it without a word of concern. ...

Justice Alito, for the majority, responds to Scalia: 

JUSTICE SCALIA would uphold the constitutionality of the Maryland tax scheme because the dormant Commerce Clause, in his words, is “a judicial fraud.” Post, at 2. That was not the view of the Court in Gibbons v. Ogden, 9 Wheat, at 209, where Chief Justice Marshall wrote that there was “great force” in the argument that the Commerce Clause by itself limits the power of the States to enact laws regulating interstate commerce. Since that time, this supposedly fraudulent doctrine has been applied in dozens of our opinions, joined by dozens of Justices. Perhaps for this reason, petitioner in this case, while challenging the interpretation and application of that doctrine by the court below, did not ask us to reconsider the doctrine’s validity.

JUSTICE SCALIA does not dispute the fact that State tariffs were among the principal problems that led to the adoption of the Constitution. See post, at 3. Nor does he dispute the fact that the Maryland tax scheme is tantamount to a tariff on work done out of State. He argues, however, that the Constitution addresses the problem of state tariffs by prohibiting States from imposing “‘Imposts or Duties on Imports or Exports.’” Ibid. (quoting Art. I, §10, cl. 2). But he does not explain why, under his interpretation of the Constitution, the Import-Export Clause would not lead to the same result that we reach under the dormant Commerce Clause.

And he responds to Thomas: 

JUSTICE THOMAS also refuses to accept the dormant Commerce Clause doctrine, and he suggests that the Constitution was ratified on the understanding that it would not prevent a State from doing what Maryland has done here. He notes that some States imposed income taxes at the time of the adoption of the Constitution, and he observes that “[t]here is no indication that those early state income tax schemes provided credits for income taxes paid elsewhere.” Post, at 2 (dissenting opinion). “It seems highly implausible,” he writes, “that those who ratified the Commerce Clause understood it to conflict with the income tax laws of their States and nonetheless adopted it without a word of concern.” Ibid. This argument is plainly unsound.

First, because of the difficulty of interstate travel, the number of individuals who earned income out of State in 1787 was surely very small. (We are unaware of records showing, for example, that it was common in 1787 for workers to commute to Manhattan from New Jersey by rowboat or from Connecticut by stagecoach.) Second, JUSTICE THOMAS has not shown that the small number of individuals who earned income out of State were taxed twice on that income. A number of Founding era income tax schemes appear to have taxed only the income of residents, not nonresidents. For example, in his report to Congress on direct taxes, Oliver Wolcott, Jr., Secretary of Treasury, describes Delaware’s income tax as being imposed only on “the inhabitants of this State,” and he makes no mention of the taxation of nonresidents’ income. Report to 4th Cong., 2d Sess. (1796), concerning Direct Taxes, in 1 American State Papers, Finance 429 (1832). JUSTICE THOMAS likewise understands that the Massachusetts and Delaware income taxes were imposed only on residents. Post, at 2, n.

Scalia and Thomas have interesting points on rebuttal.  Scalia:

The Court adds that “tariffs and other laws that burdened interstate commerce” were among “the chief evils that led to the adoption of the Constitution.” Ante, at 5. This line of reasoning forgets that interpretation requires heeding more than the Constitution’s purposes; it requires heeding the means the Constitution uses to achieve those purposes.

Thomas: 

The majority quibbles that I fail to “sho[w] that the small number of individuals who earned income out of State were taxed twice on that income,” ante, at 28, but given the deference we owe to the duly enacted laws of a State— particularly those concerning the paradigmatically sovereign activity of taxation—the burden of proof falls on those who would wield the Federal Constitution to foreclose that exercise of sovereign power.

Further commentary from Damon Root (at Reason) here.

UPDATE: Michael Greve comments here, with some harsh words for Scalia, Thomas, and originalist dormant commerce clause doubters.

05/18/2015

Ganesh Sitaraman & Ingrid Wuerth:The Normalization of Foreign Relations Law
Michael Ramsey

In the current issue of the Harvard Law Review, Ganesh Sitaraman (Vanderbilt) & Ingrid Wuerth (Vanderbilt) have the article The Normalization of Foreign Relations Law (128 Harv. L. Rev. 1897 (2015).  Here is the abstract:

The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism — the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy — was not always the prevailing view. In the early twentieth century, a revolution took place in foreign relations law. Under the intellectual leadership of Justice Sutherland, the Supreme Court adopted the idea that foreign affairs are an exceptional sphere of policymaking, separate from domestic law and best suited to exclusively federal, and primarily executive, control. The exceptionalist approach has dominated foreign relations law since that time, but it has always had questionable foundations.

Since the end of the Cold War, there has been a second revolution in foreign relations law, one whose scope and significance rival the Sutherland revolution, but one that has gone largely unrecognized. Over the last twenty-five years, the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This “normalization” of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued — counterintuitively — during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to undermine justiciability, federalism, and executive dominance — the very heart of exceptionalism.

This Article documents the normalization of foreign relations law over the last twenty-five years. It demonstrates how normalization can be applied to a wide variety of doctrines and debates in foreign relations law, ranging from the proper interpretation of Youngstown to the applicability of administrative law doctrines in foreign affairs to reforms in the foreign sovereign immunity and state secrets regimes. Ultimately, this Article argues that courts and scholars should embrace normalization as the new paradigm for foreign relations law.

Plus responses at the Harvard Law Review Forum from Carlos Vazquez (Georgetown), Curtis Bradley (Duke) and Stephen Vladeck (Texas).

This is likely the most important article on foreign affairs law this year.  Although it's about the modern Court, it's also of textualist/originalist interest.  In particular, the authors are (in my reading) a bit vague as to what they mean by "normalization," beyond some general sense that questions of foreign affairs  law are treated more like ordinary legal questions (whatever that means).  When I look at their description of the shifts in modern foreign affairs law, what I see (in part, at least) is increasing attention by the Court to text and original meaning, in both constitutional and statutory law.

To pick a couple of examples highlighted in the article:  In Zivotovsky v. Clinton the Court disregarded an expansive, highly discretionary version of the political question doctrine based on the old Warren Court precedent Baker v. Carr; in its place, the Court described a narrower version of the doctrine based on the roles the Constitution assigns to the judiciary and to other branches.  In Medellin v. Texas, the Court rejected the executive branch's claim to be able to displace state laws that inconvenienced executive foreign policy; the Court, relying on foundational principles of separation of powers it traced to James Madison, insisted that only Article VI lawmaking, not presidential policy, could preempt state law.  (The Court was in my view somewhat less successful in that case in creating a text-based foundation for treaty non-self-execution, although I think it tried).   In Republic of Argentina v. NML Capital, a statutory case, the Court read the Foreign Sovereign Immunities Act as it is written, to allow intrusive discovery orders against a sovereign government by a U.S. court; the Court dismissed arguments by Argentina and the U.S. executive branch warning of grave foreign policy consequences, saying they should be addressed to Congress.

The common thread in these cases, and others like them, is that the Court is worrying less about foreign policy consequences and instead is simply deciding cases according to the controlling legal texts.  One could call this "normalization" depending on what one thinks the Court "normally" does; I would call it deciding more in accordance with the rule of law.

05/17/2015

Jack Balkin et al. on Fidelity and Change in Constitutional Interpretation
Michael Ramsey

At Balkinization, Jack Balkin: 

Here's the video of a panel at Boston College's Clough Center on Fidelity and Change in Constitutional Interpretation, featuring Katharine Young (Boston College), Lawrence Solum (Georgetown) and myself, moderated by James Fleming (Boston University), and introduced by Richard Albert (Boston College).

The discussion ranges widely-- from the debate over originalism in American constitutional interpretation to the interpretation of the South African Constitution to the legacy of Ronald Dworkin. I begin (at 8:50) by making the provocative claim that the debate over originalism and living constitutionalism is over, that the two are the same, and that we are all living originalists now.

05/16/2015

Eugene Volokh on the Free Press Clause
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: The Free Press Clause as protecting all users of mass communications — responding to the redundancy objection.  From the introduction:

In my new article on the history of the Free Press Clause, I argue that the freedom of the press was seen near the time of the Framing (and near the time of the ratification of the 14th Amendment, as well as in between and largely since) as protecting the right to use the press as technology — everyone’s right to use mass communications technology. It was not seen as protecting a right of the press as industry, which would have been a right limited to people who printed or wrote for newspapers, magazines, and the like.

One common response (which just came up on Thursday in some comments) is that arguments such as mine would make the freedom of the press a “constitutional redundancy” (to use Justice Potter Stewart’s phrase, from an article in which he was arguing for the “press as industry” interpretation). After all, the argument would go, the Free Speech Clause already protects people’s right to communication, in a wide range of media. What does the Free Press Clause then add?

05/15/2015

Stewart Jay: The Curious Exclusion of Corporations from the Privileges and Immunities Clause of Article IV
Michael Ramsey

Stewart Jay (University of Washington School of Law) has posted The Curious Exclusion of Corporations from the Privileges and Immunities Clause of Article IV (Hofstra Law Review, forthcoming) on SSRN. Here is the abstract:      

Since the mid-nineteenth century, courts consistently have held that corporations cannot be citizens for purposes of the Privileges and Immunities Clause of Article IV of the U.S. Constitution. Judges reasoned that because corporations were not humans, they were unable to be “citizens” eligible for the clause’s protection against discriminatory treatment by states. Yet the Supreme Court also held that corporations were citizens for purposes of federal judicial jurisdiction, as well as “persons” under the Fourteenth Amendment. Extending these constitutional protections to corporations is based on the idea that businesses are owned by actual people who are harmed when their companies suffer from arbitrary treatment by government. Precisely the same rationale was a major reason for including the Privileges and Immunities Clause in the Constitution.

This essay examines the history of the exclusion of corporations from Article IV, and compares it to the Court’s extension of Fourteenth Amendment rights and diversity jurisdiction in federal courts to business entities. In hindsight, it would have been more logical for the Court to have likewise decided that corporations should be treated as citizens for purposes of Article IV. When interstate corporations are harmed by state discrimination, the actual losers are individual shareholders. While it is highly unlikely that the Court would reverse more than 150 years of precedent and apply the clause to corporations, a study of the history involved reveals significant changes in attitudes about corporations and citizenship since the creation of the Constitution.

A great followup to this outstanding paper on the privileges and immunities clause by Professor Jay. Note that accepting his argument would help the effort to have Article IV do the important work of the dubious (to many originalists) dormant commerce clause.

05/14/2015

The Federalist Society's Third Annual Executive Branch Review Conference
Michael Ramsey

Speaking of executive power, the Federalist Society's 2015 conference on executive power will be held June 18, 2015 in Washington DC.  Here is the conference program: 

Third Annual Executive Branch Review Conference: The Role of Congress

Thursday, June 18, 2015 

 The Mayflower Hotel, 1127 Connecticut Ave N.W. Washington, DC 20036

 This is a FREE event

The theme of the conference, what role does and should Congress play vis-a-vis the administrative state, will be developed in a series of addresses, debates and panel discussions. Experts will discuss incentives for Congressional action and inaction, reducing delegation from Congress to the agencies through more precise statutory language, the tools of Congressional oversight, and more. The conference will also include breakout sessions by selected practice groups to provide detailed discussion about executive branch activities in particular areas of the law.

Keynote:  Hon. Mitch McConnell, Senate Majority Leader

Other Confirmed Speakers:

    • C. Boyden Gray, Ambassador
    • Eugene Scalia, Gibson Dunn and Crutcher
    • David Rivkin, Baker & Hostetler LLP
    • Prof. Jonathan Adler, Case Western Reserve University School of Law
    • Adam White, Boyden Gray & Associates
    • Todd Gaziano, Pacific Legal Foundation
    • Prof. Sally Katzen, New York University School of Law
    • Michael Bopp, Gibson Dunn and Crutcher
    • David Quinalty, U.S. Senate Committee on Commerce, Science, and Transportation
    • Kelly Cole, National Association of Broadcasters
    • Andy Levin, T-Mobile
    • David Redl, U.S. House of Representatives Committee on Energy and Commerce

Go here to register.  (And again, it's free).

Timothy Grinsell Reviews Richard Ekins' "The Nature of Legislative Intent"
Michael Ramsey

At The New Rambler, Timothy Grinsell (Univ. of Chicago, Linguistics): The Best of All Possible Congresses (reviewing [favorably] Richard Ekins, The Nature of Legislative Intent [Oxford 2012]). From the review:

Ekins thus sets out to defend the scholastically unpopular position that legislative intent is neither a contradiction nor a useful fiction, but a necessary part of lawmaking. In order to mount this defense, Ekins confronts three questions: does legislative intent exist, what is it like, and how do we find it? In answering the first question, at least, Ekins has made a fresh contribution to a debate that had almost gone stale. His two most important additions are a defense of the legislature as an intentional group and a linguistically informed treatment of intention in communication.

The argument against the existence of legislative intent, embraced by many philosophers but also by lawyers and judges like Antonin Scalia, is intuitive. There are many legislators’ intents, and there is no clear way to add them together. Therefore, there is no legislative intent. In political scientist Kenneth Shepsle’s memorable phrase, “Congress is a ‘they,’ not an ‘it.’”

Ekins persuasively responds that trying to add intents together is the wrong way to think about legislative intent. Rather, relying on work in the philosophy of agency, Ekins argues that groups like the legislature have intent because they coordinate in particular ways. “Group action is the coordinated pursuit of a common purpose by means of a jointly accepted plan of action” (53). Translating from Oxfordese (in which most of the book is written, alas), this means that members of an intentional group share a goal, they each intend to do their agreed-upon part to achieve that goal, and they agree to refrain from frustrating other group members in the pursuit of their allotted tasks. For example, two people agreeing to make sausage together might form an intentional group. One person grinds the meat, one person stuffs the casings, and they try not to get in each other’s way.

And here is the book description from Amazon:

Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent group intention.

This book argues that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. The book argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation.

Developing a robust account of the nature and importance of legislative intention, the book represents a significant contribution to the literature on deliberative democracy that will be of interest to all those thinking about legal interpretation and constitutional theory.

(Via Brian Leiter).

05/13/2015

Congress Does Have Considerable Power to Regulate Abortion
Andrew Hyman

In response to this interesting blog post by Mike Ramsey, I  agree that the Commerce Clause does not provide a solid originalist basis for congressional regulation of abortion, but in my view other clauses do.  I use the word "regulate" broadly so as to include deregulation, which of course is how the word is used in the Constitution.   Congress has considerable authority to counteract the regulations that the U.S.Supreme Court has imposed against the states.

In the District of Columbia and all other areas under exclusive federal jurisdiction, the plenary congressional power to regulate is obvious. Within the states, Congress can rein in the federal courts, just as Congress can rein in its own role under the Commerce Clause.  Before detailing how Congress could do this, I would like to mention Chris Green’s recent blog post about this subject.  Chris says: “The debates leading to the Civil Rights Act of 1871 make clear … that Congress may supply ‘protection of the laws’ if states have not supplied it.”  I disagree with relying so heavily upon post-enactment behavior, and (for reasons explained here) do not believe that the authors of the Fourteenth Amendment, which took effect in 1868, generally understood that the Equal Protection Clause would go beyond an equality requirement.
 
Some people have suggested that Congress should call a fetus a "person" under the Fourteenth Amendment, and thus invoke the Equal Protection Clause or the Due Process Clause to affirmatively protect the unborn against contrary state legislation, but that is not what I have in mind.  Using the DP Clause would be problematic because of the illegitimacy of substantive due process.  And using the EP Clause would be problematic because a fetus (even if a person) is not similarly situated to someone who has been born.

What Congress could say, for example, is that current medical knowledge is inadequate to determine exactly when a right to life begins or when it eclipses a woman's freedom to end a pregnancy, and therefore all federal officials are instructed, for purposes of interpreting and carrying out their duties under all federal statutes and regulations, that any human being who has developed past the embryonic stage of development is entitled to enjoy a right to life except in the most unusual extenuating circumstances supported by credible evidence (there's no need for Congress to get more specific than that).  Congress could accomplish this, and allow states to adopt a similar policy, by saying pursuant to the Exceptions Clause and Section Five of the Fourteenth Amendment that the jurisdiction of the federal courts does not extend to reducing any such entitlement on constitutional grounds, regardless of whether it is a state-conferred entitlement enforceable against private parties, or a federally-conferred entitlement only enforceable against public officials.  Jurisdiction aside, Congress could require that the federal executive branch not enforce any such purported reduction without identifying a clear basis for it in the Constitution and federal laws.

This way, in each state, the people, their legislators, their judges, and their governor would collectively have greater freedom to exercise their best judgment on this difficult matter.  It is hard for me to see how this kind of federal statute would be outside the power of Congress, under an originalist view.  While the power of Congress in this area is not plenary, it is not miniscule either, though it seems that Congress has not yet gone beyond miniscule steps.  There are other techniques Congress could use too, such as requiring federal courts to leave state abortion regulations alone unless a supermajority of the Supreme Court (e.g. seven judges out of nine) find a clear conflict with the Constitution.

Nathan Coleman Reviews Lance Banning's "Founding Visions"
Michael Ramsey

At Law & Liberty, Nathan Coleman (University of the Cumberlands -- History) reviews (very favorably) Lance Banning's posthumous Founding Visions: The Ideas, Individuals, and Intersections that Created America (Todd Estes, ed., Univ. Press of Kentucky 2014).  From the introduction to the review:

In the forward to Founding Visions: The Ideas, Individuals, and Intersections that Created America, Gordon Wood writes that Lance Banning (1942-2006) was “no ordinary historian.” The essays compiled in this volume by Todd Estes, one of Banning’s most able students, makes Wood’s remark abundantly clear. Known for his graciousness and kindness to students and colleagues alike, and for an unassuming and affable nature, Banning epitomized the idea of the gentleman scholar. These essays will remind readers of Banning’s continuing importance to our understanding of the Founding. For undergraduate and graduate students, they are testaments to how the historian’s craft should be practiced.

And from the conclusion:

As Banning’s essays illustrate, had he never published The Jeffersonian Persuasion or Sacred Fire of Liberty he still would have made a sizable and lasting historiographical contribution to how we understand Madison and the Founding. Finally, this collection—and Banning’s entire corpus, really – serves as a potent and timely antidote against an increasingly trivial profession that forces the past to fit modern theoretical constructs. Understanding the intellectual and political world of the Founders, especially as they themselves comprehended it, remains vital to our own appreciation of who we are today. For that reason alone, this volume should be required read

Here is the book description from Amazon:

Lance Banning was one of the most distinguished historians of his generation. His first book, The Jeffersonian Persuasion: Evolution of a Party Ideology, was a groundbreaking study of the ideas and principles that influenced political conflict in the early American Republic. His revisionist masterpiece,The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic, received the Merle Curti Award in Intellectual History from the Organization of American Historians and was a finalist for the Pulitzer Prize. 

Banning was assembling this collection of his best and most representative writings on the Founding era when his untimely death stalled the project just short of its completion. Now, thanks to the efforts of editor Todd Estes, this illuminating resource is finally available. Founding Visions showcases the work of a historian who shaped the intellectual debates of his time. Featuring a foreword by Gordon S. Wood, the volume presents Banning's most seminal and insightful essays to a new generation of students, scholars, and general readers.

05/12/2015

The Fourteenth Amendment and Federal Abortion Prohibition
Chris Green

I agree with most of what Michael Ramsey says just below about the Commerce Clause and the Pain-Capable Unborn Child Protection Act. I have argued, however (here and here), that the Equal Protection Clause is about literal protection from violence. I argue here at pp. 308-09 that had the Violence Against Women Act been structured to provide a federal civil remedy only in cases where states had failed to supply one, it would have been constitutional. The debates leading to the Civil Rights Act of 1871 make clear (see pp. 248-51) that Congress may supply "protection of the laws" if states have not supplied it. The more difficult issue, which tripped up the law in United States v. Harris in 1883, is whether Congress may supply protection even if states may be doing do adequately. 

The two categories of argument about abortion--fetal personhood and the mother's bodily integrity--have constitutional analogues as well. Michael Paulsen discusses at some length here whether a human fetus is a "person" under section 1. There are also complications analogous to Judith Jarvis Thomson's famous self-defense-style violinist hypotheticals. Even if DeShaney came out the other way, as I advocate, states would not be required to protect burglars against homeowners' uses of defensive force, even though burglars are uncontroversially persons. To rebut the argument that states are likewise not required to forbid the use of force by women to defend their bodily integrity against the fetus, more argument would be needed. See here at p. 300 for a bit more on this point.

Does Congress Have Power to Regulate Late-Term Abortion?
Michael Ramsey

Glenn Reynolds and Jonathan Adler say no.  Here's Professor Adler:

The U.S. of House of Representatives is preparing to consider a bill — the Pain-Capable Unborn Child Protection Act (PUCPA) — that would prohibit most abortions performed after 20 weeks from conception.  …

… [E]ven if one assumes that a prohibition on post-20-week abortions would be constitutional if enacted by a state, that does not mean that Congress can enact such a measure. The federal government, after all, is a government of limited and enumerated powers. Whereas states retain residual police power authority to protect public health and welfare, the federal government has no such authority. Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it’s a matter generally left to the states.

The Commerce Clause — specifically, the power to “regulate commerce . . . among the several states” is used by Congress as something of a catch-all justification for all manner of federal laws.  So it’s understandable why members of Congress would invoke it here. Yet as the Supreme Court has reaffirmed on multiple occasions, including in NFIB v. Sebelius, it is not a power without limits. It is one thing to use the commerce power to regulate economic activity, or control a significant industry, quite another to limit a controversial medical procedure.

Abortion is not commerce, and not all abortions necessarily occur within the scope of commerce, let alone commerce “among the several states.” As Glenn Reynolds notes, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.” For this reason, conservative Republicans who urge courts to respect the limits on federal power — and who argued the individual mandate exceeded the scope of Congress’ Commerce Clause power — should be embarrassed to support the invocation of commerce here.

I think that's right as a matter of original meaning.  The commerce clause directly allows regulation of commerce "among the several States," which local provision of abortion services is not.  Chief Justice Marshall made clear in Gibbons v. Ogden that intra-state commerce is not a power of Congress; it was in this context -- though upholding the clearly inter-state regulation at issue -- that he famously said "the enumeration presupposes something not enumerated":

Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

While Congress' necessary-and-proper power presumably allows it to reach somewhat beyond purely interstate commerce to regulate intra-state commerce that is closely tied to inter-state commerce, that isn't the situation here; I take it that the abortion providers are principally local, and in any event if Congress' goal is to prevent interstate commerce effects, it could prohibit interstate travel for the purpose of obtaining a late-term abortion.  A flat ban sweeps far more broadly than is plausibly necessary, even if one accepts Marshall's weak definition of necessary in McCulloch v. Maryland.  Local provision of abortion services do not "concern[ ] more than one state."  The alternative would be the complete erosion of Gibbons' line between interstate commerce and intrastate commerce.

I'm much less convinced that this is the right answer under current law, however.  The modern Court's only limits on Congress' commerce power have been for activity that is non-economic: Lopez, Morrison, Sebelius.  Cases such as Perez and Katzenbach v. McClung suggest that any economic activity, given the interconnectedness of the modern economy, may have enough of an effect on interstate commerce to come within Congress' power.  Professor Adler says "abortion is not commerce" but I'm doubtful -- don't abortion providers charge for their services, at least for those who can afford to pay?  Professor Reynolds says that allowing federal power here would result in there being effectively no limits on federal power, but I'm doubtful about that too -- an economic/non-economic distinction would provide limits, and yet allow regulation of the economic activity of providing abortion services.

To be clear, I don't think modern law establishes the constitutionality of PUCPA beyond doubt (I don't think doctrinal law establishes very many things beyond doubt, because the Court can read precedents in various ways depending on its inclinations).  But Congress seems to me to have a plausible case for its power under modern law.

That raises an interesting dilemma for originalist members of Congress: should they follow originalism or nonoriginalist modern law?  Glenn Reynolds says the former:

It's possible, of course, that the Supreme Court would uphold regulation of abortion under the [commerce] clause. In the past, it has, absurdly, upheld federal commerce power to punish a farmer for growing too much wheat on his own land, to feed to his own family and livestock, on the ground that if he didn't grow his own he would be forced to buy the wheat on the open market, which would drive up prices and thus affect interstate commerce. With the bar set that low — and with liberal abortion-rights justices being fans of broad government power, while conservative limited-government justices oppose abortion — there's a good chance that the law would pass Supreme Court scrutiny, whether it really ought to or not.

But members of Congress take their own oath to preserve the Constitution, which imposes an independent obligation on them to take the Constitution seriously, not just to do whatever the Supreme Court will let them get away with. If, as Republicans in Congress keep telling us, they support limited government, then they need to support limits on government even when those limits stand in the way of doing something they want to do.

I wrote about this dilemma here in the context of presidential actions; but the question seems similar from Congress' perspective.  (See here for extensive writing on the subject by Joel Alicea). And at the least, the answer does not seem obvious to me.  The law in this area is nonoriginalist; should one be bound by what one thinks the law should be, rather than what the law is?

Perhaps one should be bound by what one thinks the law should be, even if the actual law is (arguably) more permissive, to set a good example.  But I am not convinced that the best way to reestablish the Constitution's original meaning is always for conservatives to follow the original meaning. Possibly there will be a consensus on originalism only when it's clear (to liberals) that liberals have something to gain from it.

05/11/2015

New Book: "Imperial from the Beginning" by Saikrishna Prakash
Michael Ramsey

Forthcoming from Saikrishna Prakash (Virginia) Imperial from the Beginning: The Constitution of the Original Executive (Yale Univ. Press 2015).  Here is the book description from Amazon: 

Eminent scholar Saikrishna Prakash offers the first truly comprehensive study of the original American presidency. Drawing from a vast range of sources both well known and obscure, this volume reconstructs the powers and duties of the nation’s chief executive at the Constitution’s founding. Among other subjects, Prakash examines the term and structure of the office of the president, his power as constitutional executor of the law, his foreign policy authority, his role as commander in chief, the president’s authority during emergencies, and his relations with the U.S. Congress, the courts, and the states. This ambitious and even-handed analysis counters numerous misconceptions about the presidency and fairly demonstrates that the office has long been regarded as monarchical.

The official publication date is May 26; the Kindle edition is available from Amazon now.

(Thanks to Seth Barrett Tillman for the pointer).

05/10/2015

Josh Blackman on Magna Carta
Michael Ramsey

At Josh Blackman's Blog, Magna Carta and the Constitution (video) (specifically, "the influence of Magna Carta on our Constitution, through the lens of the Supreme Court ... [in particular,] 8 provisions of Magna Carta that have been cited by SCOTUS.").

05/09/2015

Lawrence Solum on Patrick Charles on Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum comments (critically) on Patrick Charles' essay The 'Originalism is Not History' Disclaimer: A Historian's Rebuttal (noted here).  He begins:

Charles raises important issues.  Recommended.

However, I would strongly suggest that readers not rely on Charles's representations as to what is claimed by originalists.

05/08/2015

Antonio F. Perez: A Whole Text Reading of the War Powers Clauses
Michael Ramsey

Antonio F. Perez  (Catholic University of America (CUA) - Columbus School of Law) has posted A Whole Text Reading of the War Powers Clauses: Why the Constitution's Text Obviates Esoteric War Powers Debates and Encourages Policy Flexibility and Democratic Accountability (Georgetown Journal of Law & Public Policy, Vol. 12, Pp. 861-72 (2014)) on SSRN.  Here is the abstract: 

This paper is a lightly-footnoted and modestly expanded version of my presentation at the Georgetown Journal of Law & Public Policy Symposium’s panel on Executive War Powers, Syria, and President Obama’s “Red Line” — Did President Obama Have the Power to Use Force in Syria without Congressional Approval? While criticizing the President’s policy decision, this paper argues that the President would have been well within his authority to use force. Relying on a whole text reading of the relevant constitutional provisions, it argues that the President’s authority to use force is virtually plenary, while Congress’s authority is limited to governing the legal effects of war and limiting executive discretion solely through the power of the purse. It rejects functional arguments in constitutional interpretation, but it recognizes that functional arguments in our modern Age of Terror happily confirm conclusions that can be reached by textualist modes of constitutional interpretation. Finally, it argues that these conclusions reinforce constitutional and democratic accountability and are not seriously undermined by any possible international law limits to presidential discretion.

I agree that the text, in isolation, can be read in the way the author proposes.  But I don't think it must be read in that way; the text is subject to two possible meanings.  As a result, it's important to investigate how people of the time appeared to read it.  On a quick read, Professor Perez largely does not deal with the way the founding generation appeared to read it (other than to dismiss evidence from the drafting convention as irrelevant because it was not public).  I think this is a mistake, because the founding-era evidence is very strong in favor of a shared understanding of limits on the President's war power.

RELATED:  Via Opinio Juris, here is video of a panel on war powers in which Julian Ku (Hofstra) also expresses a broad view of the President's power to use force.  As he summarizes: 

In 2008, then-candidate Barack Obama stated that he believed the President cannot constitutionally use military force absent congressional authorization except in response to an imminent attack or threat.  But since he has taken office, the President has abandoned this view, most notably in a legal memo from his Justice Department justifying military intervention into Libya.   In my view, this shift provides strong evidence that the strict congressionalist view of presidential war powers is untenable.   I concede that there may be other limits on unilateral presidential use of force (e.g. congressional prohibitions, long-term interventions amounting to a “war”, etc.) but we should no longer take seriously the strict congressionalist position articulated by Candidate Obama in 2008.

I mostly agree with Candidate Obama as a matter of original meaning.  I'm not sure what Professor Ku means in calling this position "untenable" beyond the reasonable observations that (a) people tend to get a broader view of presidential power once they become President and (b) without judicial oversight it's hard to enforce constitutional limits on the President.  As to the Libya action, it seems (to me) an entirely tenable position that the President should have gotten congressional approval -- and if approval was not forthcoming, he should not have taken the action; it also seems clear in retrospect that the Libya action was not necessary to national security and arguably was detrimental to it.

To connect Libya and Syria: I think one can tell a story here about constitutional limits on the President. The Libya action was strongly criticized in commentary as contrary to the Constitution and the War Powers Act.  That criticism was fairly recent when the Syria situation arose (and the Libya intervention had not led to a policy success).  Rather than establishing a precedent for unilateral action, the Libya action seemed at that point to suggest presidential overreach.  The President may have been reluctant to undertake another arguably unconstitutional unilateral action, especially one with dubious chances of success.  Since Congress seemed unlikely to approve, the President decided not to act -- which, whatever the policy merits, was the correct constitutional outcome.  How much truth there is to this story is debatable, but it is at least one way of looking at the matter.

05/07/2015

Patrick Charles: The 'Originalism is Not History' Disclaimer
Michael Ramsey

Patrick J. Charles (Government of the United States of America - Air Force) has posted The 'Originalism is Not History' Disclaimer: A Historian's Rebuttal (63 Cleveland State Law Review Et Cetera 1, May 2015 ) on SSRN.  Here is the abstract:      

A number of originalists are on record asserting the disclaimer that “orginalism is not history,” therefore claiming that originalism does not suffer from the problems typically associated with history-in-law. This Article challenges that assertion, both on the grounds that originalism relies on historical evidence in reaching legal determinations — therefore falsely giving rise to the presumption that originalism and history are one and the same — and also on the grounds that originalists, when advocating before the courts, do not make a distinction between originalism and history. This Article further argues that if originalists want to issue an accurate disclaimer, it should state that “originalism is not intended to be accurate history.” This would correct many of the public’s misconceptions as to what does and what does not constitute originalism.

05/06/2015

Vorchheimer and Symmetric Gender Distinctions
Chris Green

Some social-media discussions of Obergefell yesterday provoked me to look more closely at what, exactly, the Supreme Court has said about the application of intermediate scrutiny to symmetric gender distinctions. Are they encompassed within "classifications" in Craig and its progeny (on the most sensible reading of those precedents)? Craig was decided in December 1976, but a few months before, the Third Circuit upheld gender-segregated schools in Vorchheimer v. Philadelphia.

The Supreme Court granted cert, but with Justice Rehnquist, who would have upheld even the gender discrimination in Frontiero, recused. The Court ended up affirming by an equally divided court. Distinguishing Craig, Philadelphia took the position (see 1977 WL 189424, *26-*27) like that floated by John Bursch in Obergefell, and which I have defended: that "classifications" in the context of gender distinctions, unlike the racial context, should not include symmetric segregation requirements (or, presumably, symmetric integration requirements), and so only rational-basis scrutiny was proper. The Court reviewed this history in note 1 of MUW in 1982 and in note 7 of US v. Virginia in 1996, making clear that it was not resolving the question left open by the 4-4 vote in Vorchheimer.

Assistant SG Paul Bender, arguing in US v. Virginia for ratcheting up the Craig standard to strict scrutiny, specifically mentioned Vorchheimer at oral argument. Justice Kennedy said that he doubted that single-sex education, even if genuinely equal, could survive strict scrutiny, and Bender replied by restating the issue as "the extent of the strict scrutiny doctrine":

In the race area, the Court has made the decision that racial classification, racial separation is inherently unequal. The Court has never faced that question except in the Vorchheimer case, which was affirmed by four to four as to whether the same thing is true in the gender area.

Justice Ginsburg asked,

[M]ay I ask you specifically with respect to this case, do you have any quarrel with Judge Phillips, who said in dissent that if we were starting from scratch we could have in this area what we couldn't have in the race area, that is, genuine freedom of choice plan, where you would have a VMI for both sexes, and you would have a military academy for men and a military academy for women, and we're starting them all on the same day, and they all have equal funding and equal engineering and math programs. Would that be constitutional?

Bender replied, "We have no problem with that. If they're equal." In the opinion, Justice Ginsburg's footnote 7 said, in response to amici touting the benefits of single-sex education, "We do not question the Commonwealth's prerogative evenhandedly to support diverse educational opportunities." She then cited note 1 of MUW, which noted Vorchheimer, just at the CA4 dissent had done.

Bursch's position is essentially that the Court's "do not question" is best construed as "do not subject to heightened scrutiny" and Bender's "We have no problem" is best construed as "We have no argument for heightened review." Certainly Bender did not explain what Justice Kennedy was worried about: whether single-sex education could survive strict strutiny. Nor did Ginsburg explain why it could survive "exceedingly persuasive justification" scrutiny.

One reason to construe the Virginia Court this way is that in rejecting the VWIL alternative to VMI, it relied centrally, not on Brown v. Board of Education from 1954, but on Sweatt v. Painter from 1950. Brown and its progeny, of course, made clear that Korematsu's disfavor for "legal restrictions which curtail the civil rights of a single racial group" applies to segregation too. Sweatt and its companion case McLaurin, however, applied only the "but equal" part of the the separate-but-equal rule of Plessy and its progeny. (The Vorchheimer plaintiffs as well relied on Sweatt, not Brown.)

Part VI of Virginia argued at length that VWIL was akin to the inadequate alternative law school in Sweatt. If, however, the Court in Virginia had accepted a simple (gender segregation):(gender disfavor)::(racial segregation):(racial disfavor) analogy, it would not have had to compare VWIL with VMI at all. If gender separation connoted inferiority as in the racial case, the case would have been quite easy indeed.

Having thought about Vorchheimer for all of one day, these issues are, of course, nowhere near free from doubt to me. Only one amicus brief even mentioned Vorchheimer. In difficult cases at the Supreme Court--especially those argued in April--I find myself at the end of June almost always rooting for reargument. It is hard to imagine the Court digesting this material adequately in two months.

Update: The MUW oral argument also fleshes out a bit what was at stake in its footnote 1. Looking back at Vorchheimer, the Court clearly had in mind a lack of scrutiny for gender segregation, not its satisfaction:

Court: If Mississippi now started an all-male school, and had a female school too, the decision below wouldn't necessarily outlaw that system.

Mr. Colom: It possibly could, Your Honor, because you would still have to have the Craig v. Boren standard applied, because you would still have a gender classification.

Court: But you could say that there was no discrimination. And you don't have to have a justification until you've got a discrimination, do you?

Mr. Colom: I understand you have to have a justification when you have a gender classification, and that would have to be justified.

Court: Well, you have to have an unequal gender classification.

Mr. Colom: There are some suggestions of that in the lower court decisions.

Court: Well, you must have thought so or you wouldn't have made the argument based on Vorchheimer.

Mr. Colom: Yes, sir. We made several arguments in the alternative. [General laughter.]

Also in this vein is footnote 8 of the National Women's Law Center amicus brief in MUW, 1982 WL 608477, *16: "The question whether disparate treatment based on sex might still exist if Mississippi were to create an 'all-male institution comparable to MUW,' 646 F.2d at 1119, is not presented by this case and should not be decided in the abstract by the Court." It's the possible non-existence of "disparate treatment based on sex," not the possible existence of an exceedingly persuasive justification for such disparate treament, that the brief wanted the Court to leave open, and which I think the Court did leave open.

David Gray: Dangerous Dicta
Michael Ramsey

David Gray (University of Maryland Francis King Carey School of Law) has posted Dangerous Dicta (Washington and Lee Law Review, Vol. 72, 2015 (forthcoming)) on SSRN. Here is the abstract: 

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is also dangerous. That is because the security of the people guaranteed by the Fourth Amendment presently is imperiled by the rapidly expanding surveillance capacities of governments and their agents. Meeting challenges posed by these technologies will require a sustained investment in constitutional remedies capable of reclaiming and preserving that security. The Heller Court’s reading of the Fourth Amendment threatens the ability of courts to fashion and enforce those remedies, which leaves each of us and all of us more vulnerable to the kinds of broad and indiscriminate surveillance that are anathema to the Fourth Amendment.

This essay takes on the Court’s dangerous dicta in Heller. It does so on textualist grounds. By applying well-established canons of interpretation, and considering historical evidence, it argues that rights secured by the Fourth Amendment are fundamentally collective. This does not mean that individuals cannot seek Fourth Amendment protections or raise Fourth Amendment claims. Any right of the people must in some way devolve to protections for persons. Rather, the point is that the Fourth Amendment targets government practices, which, if left to the unfettered discretion of government agents, would leave all of us and each of us insecure in our persons, houses, papers, and effects. This is precisely what is at stake in governments’ use of modern surveillance technologies, which suggests a critical role for the Fourth Amendment in ongoing efforts to regulate the deployment and use of those technologies.

05/05/2015

Jack Balkin Interviews the Paulsens on "The Constitution: An Introduction"
Michael Ramsey

At Balkinization, Jack Balkin interviews Michael and Luke Paulsen on their book The Constitution: An Introduction.  In response to the first question -- why did you write this book? -- Michael Paulsen explains:

The story of how the book came to be is fairly straightforward.  I had given a lecture at an institute at Princeton way back in the winter of 2006 -- on Lincoln, Presidential Power, and the Emancipation Proclamation (topics eventually addressed in this book!).  Following the lecture, at the usual academic dinner, the college profs and law profs began arguing about just how and when their students got such messed up notions about the U.S. Constitution.  The law profs blamed the colleges; the college profs blamed the high schools; everybody blamed the shallow media and textbook treatments generally. 
 
I ventured that "somebody" really ought to write a book trying to set forth the essentials of the Constitution -- origins, meaning, history, interpretive disputes -- in a straightforward, smart, concise, and reader-friendly way that would correct many myths and half-truths.  The idea would be to reach generalreaders -- students, non-lawyer citizens, journalists,real people -- with (hopefully) sound factual information and reasonable analysis, teeing up all the major historical and modern debates in an intelligent way.  Such a book could not be superficial and sloppy -- it would have to be "smart enough" for academics, even if not aimed merely at academics.  But it had to be accessible and readable, too.  And it would also have to be fair and not a screaming ideological screed.  
 
Of course, my dinner companions challenged me to write it.  I took the idea home to Luke, my then-thirteen-year-old son, who liked the idea.  He'd just finished eighth grade Government, and we'd occasionally laugh together at the textbooks that said things like "The Supreme Court invented the idea of 'judicial review' in Marbury v. Madison, which held that the Supreme Court is the supreme interpreter of everything in the Constitution and can determine what it means and change it over time."  (The hazards of being a law professors' son, I suppose.  I'd like to think that our discussions were part of his early education,and not a bizarre form of child abuse!)
 
Luke and I decided to take up the idea as a summer vacation project.  We underestimated how long it would take -- by a factor of about eight years! -- but we wrote it almost exclusively during summer breaks, a large part of it at our island cabin in extreme northern Minnesota.  Originally, the book might have been aimed at younger students -- high-school age or so -- but our ambitions and the book's sophistication grew over the years.  (Luke went from being a high school freshman to a Princeton Phi Beta Kappa computer scientist, and now a software engineer in Silicon Valley.  His legal acumen grew tremendously over this time.  He may be one of the most sophisticated lay constitutional interpreters never to have been corrupted by a law school education!)  
 
UPDATE:  Here is part 2 of the interview.

05/04/2015

Iran Thinks the Coming Nuclear Deal Will Be Binding -- And That Matters
Michael Ramsey

This post repeats some of what I have said before on the pending nuclear deal with Iran, but it seems increasingly important in light of (a) the recent exchange between Jack Goldsmith (Lawfare) and Andy McCarthy (NRO) and (b) Iranian Foreign Minister Zarif's remarks at NYU last week.

First, Goldsmith and McCarthy:  

To oversimplify, McCarthy argues that the pending deal fundamentally undermines the Constitution's original design by cutting the Senate out of the process; Goldsmith responds that because the pending deal is not binding under international law, and because the President has statutory authority to lift U.S. sanctions on Iran, there is no constitutional problem.  The full exchange is here:

The Corker Bill Isn’t a Victory — It’s a Constitutional Perversion (McCarthy)

Andrew McCarthy's Distortion of the Corker Bill (and the Constitution) (Goldsmith)

Responding to Jack Goldsmith on the Corker Bill & the Nature of Obama’s Iran Deal (McCarthy)

 Another Response to Andrew McCarthy on the Corker Bill Iran Review (Goldsmith)

Professor Goldsmith's bottom line (from the last post):

Yes, Obama’s aim is to permanently lift U.S. sanctions.  But that does not make the international deal he is pursuing a legally binding agreement, and it does not require Senate approval for the deal.  Such Senate approval is only necessary for (certain) agreements that are binding under international law, and this agreement with Iran is no such agreement.  I believe that McCarthy is confounding the deal’s aim to lift sanctions permanently with the deal’s status under international law.  The content of the deal will be an agreement to permanently lift sanctions if Iran meets compliance goals (that is the permanent part), but in form the deal is the functional equivalent of a handshake (that is the legally non-binding part).

I agree with Goldsmith, at least in theory.  But the facts underlying that theory look increasingly shaky.  From the Washington Post's report on Foreign Minister Zarif's talk at NYU (which was after the Goldsmith/McCarthy exchange):

“I believe the United States will risk isolating itself in the world if there is an agreement and it decides to break it,” said Zarif, who earlier this month returned to a hero’s welcome in Tehran after reaching a temporary framework agreement in Switzerland with the United States and five other world powers.

“Whether you have a Democratic or Republican president, the United States is bound by international law, whether some senators like it or not,” he added. “And international law requires the United States live up to the terms of an agreement it enters into.”

Zarif noted that most international agreements are simple executive orders that do not require Congress to ratify them.

So Iran apparently doesn't understand the pending agreement as "the functional equivalent of a handshake."  Iran (through its foreign minister) thinks (1) that the agreement will be binding under international law, and (2) that the U.S. President has independent authority to make such a binding agreement.  That fundamentally undermines Professor Goldsmith's defense of the coming deal, because Iran is likely correct on (1) and wrong on (2).

On the first point, as I understand the international law rule (and I'm not an expert on the point), a nation is bound to an agreement made by an agent with apparent authority to bind the nation, even if the nation's domestic law in fact does not grant such authority.  (It's easy to understand why international law would have that rule -- otherwise one party to an agreement could never be sure there actually was an agreement without becoming an expert in the other country's law).  So if the U.S. President acts in a way that causes Iran to believe he has authority to bind the U.S., the U.S. may be bound.  Put another way, why is Professor Goldsmith so sure the pending agreement won't be binding?  Apparently the U.S. has been sufficiently opaque on that point that its principal counterparty remains completely in the dark as to the U.S. view (assuming Goldsmith is right about the U.S. view).

This matters because Andy McCarthy is completely right (and Foreign Minister Zarif is completely wrong) on the second point.  While it may be true, in terms of sheer volume, that "most international agreements" the U.S. makes don't require Congress' (or the Senate's) approval, that says nothing about the need for approval of this particular agreement.  As I and others have argued, low-level, short-term diplomatic arrangements can, under the Constitution's original understanding, be made on the President' s independent authority.  Further, under the Supreme Court's decision in Dames & Moore v. Regan, settlement agreements -- and perhaps other kinds of agreements -- can be made by the President with Congress' implicit "acquiescence."  Thus the President does have substantial authority to make certain kinds of agreements on his own authority, and those kinds of agreements may be quite numerous.  

But the pending deal with Iran is not a low-level short term arrangement, and it is not a settlement agreement, and it does not have Congress' implicit acquiescence.  Nothing in the Constitution's original meaning or context suggests that the President has independent power to make long-term agreements on important matters such as arms control.  The Supreme Court has never approved the President's independent authority to make anything other than settlement agreements (and in Medellin v. Texas the Court indicated that it read its prior precedents on executive settlement agreements narrowly).  And practice does not support an independent presidential power to make important long term agreements: to the contrary, the practice is that such agreements are either approved by a supermajority of the Senate or (especially in the case of trade agreements) by a majority of Congress.

As a result, I am coming to think that McCarthy is right on the substance, even though Goldsmith is right on the law.  The President can enter into a nonbinding agreement on his own authority (as Goldsmith rightly says).  And the President can enter into some binding agreements on his own authority.  But he cannot (as McCarthy rightly says) entering a binding agreement on this topic on his own authority.  And crucially, if the President enters into this agreement without making clear that it is non-binding, it likely will be treated as binding -- and hence unconstitutional.