The best elements of constitutional originalism are keenly aware of the dangers associated with the view that any word can have whatever meaning that the justices, the legislators or the president decide to give it. They know that without some check on this exercise, the effort to find a principled basis for limited government will necessarily fail. There is much to be said in favor of this view, so that it become in my view utterly untenable to claim, for example, that the term “commerce” is broad enough to encompass agriculture, mining and manufacture, when in ordinary English the term is used in opposition to these three kinds of activities that our Constitution designedly left to the control of the States. In similar fashion, it is not possible to read the term “private property” as though it encompasses only the right or exclusive possession to land, animals or chattels, when the term has always been used in both common and Roman law —the Framers were far from ignorant to the classical tradition—to cover the rights of use, within the boundaries of nuisance law, and the right of disposition whether by sale, lease, mortgage or gift.
The constant effort to expand the meaning of commerce and restrict the meaning of private property are key components of the Progressive agenda, by combining an expansion of federal power with a contraction of the domain of protected private rights in the second. A faithful originalism is on solid ground when it resists the constant effort to redesign terms so as to turn a classical liberal constitution into a modern progressive one, without going through the process of formal amendment. More generally, there is no necessary connection between the conservative insistence on judicial restraint and classical liberal theory. A Constitution drafted by defenders of limited government should not by interpretation be converted into an open-ended charter of government power.
If the originalists are on sound ground on this issue, they are on far weaker ground if they think that the close examination of the written text, standing alone, is sufficient to unlock the meaning of general constitutional provisions. It is at this point, that the defenders of judicial restraint show insufficient respect to the well-developed interpretive tradition that treats any constitutional text as creating the initial presumption whose gaps are filled in by a conceptual analysis that links the basic textual provisions to the larger constitutional purposes of limited government. These ends are, of course, the control of force and fraud, the common defense, and the provision of public goods, such as roads and other infrastructure, whose creation was contemplated under the Constitution.
George A. Rutherglen (University of Virginia School of Law) has posted The Origins of Arguments Over Reverse Discrimination: Lessons from the Civil Rights Act of 1866 on SSRN. Here is the abstract:
Disputes, disagreement, ambiguity, and ambivalence have marked the law of affirmative action since it came to prominence in the Civil Rights Era, nearly 50 years ago. These current controversies might be attributed to modern attitudes, and in particular, the need to delay enforcement of a strict colorblind conception of prohibitions against discrimination until the continuing effects of racial and ethnic discrimination have been eliminated. But a look at the origins of the civil rights law in Reconstruction belies this modernist perspective, which foreshortens debates to the aftermath of Brown v. Board of Education rather than rediscovering their origins in Reconstruction. This article attempts to rediscover those origins by re-examining the legislative history and immediate reception of the Civil Rights Act of 1866 as it bears upon race-conscious remedies for racial discrimination. The argument proceeds in three parts. The first concerns the 1866 Act itself and the congressional debates over it, which featured charges of special treatment despite the neutral terms of the act. The second compares the act to the legislation authorizing the Freedmen’s Bureau, where arguments of special treatment carried more force, so much so that the authorization for the bureau had to remain temporary and it lapsed well before Reconstruction ended. The third part briefly considers the implications of this comparison for modern civil rights law, and in particular, for constitutional arguments over affirmative action. No one-to-one correspondence exists between the legislative debates in 1866 and constitutional arguments today, but the debates then have left their traces now in concerns over special remedies for discrimination, and in particular, over how long they last.
The Center for the Study of Constitutional Originalism at the University of San Diego recently had its Fifth Annual Hugh and Hazel Darling Foundation Works in Progress Conference. The videotape for the conference should be available in the near future. While we are waiting, I thought I would offer an excerpt of my remarks at the beginning of the conference, discussing the progress of originalism as an academic field.
It is a real pleasure to see how this conference has grown over time. . . .
The success of the conference is no doubt a reflection of the success of originalism as an academic area. Originalism continues to grow, showing all the indicia of a prospering academic field. Every year, it produces a large number of articles. And now, there are a growning number of books on originalism that have recently been published or are scheduled for publication, such as those by Jack Balkin, Frank Cross, Kurt Lash, Sai Prakash, Justice Scalia and Bryan Garner, and my own work with John McGinnis. And of course there tend to be symposia on these works, with the symposia on Jack Balkin’s book constituting its own mini-field.
The subject of originalism also continues to attract scholars, including younger ones who are developing new theories. Stephen Sach’s piece for this conference – offering a new theory of originalism (Originalism as a Theory of Legal Change) – is a significant example.
That new theories are regularly being proposed means, of course, that there may be a large number of different theories out there. While some have argued that this aspect of originalism is a problem for the argument of constraint – which it might or might not be – it is a sign of success in an academic field, showing interest, new ideas, and progress.
Another characteristic of a growing field is that it spreads into new areas. This has also been true of originalism. Originalism has become of interest not merely to constitutional law professors, but also to scholars in the area of criminal procedure. And scholars from other disciplines, such as philosophers and historians, have become increasingly interested in the subject, even if in some cases only to criticize originalism.
One area I want to highlight is the growth of interest in originalism in comparative constitutional law. Obviously, we have a paper on this subject by Yvonne Tew, but last year’s conference also included two papers in this area. And I have noticed, even though it is certainly not my area, a significant debate on the subject about whether originalism is and should be an American phenomenon, with different positions being advocated by Jack Balkin, Jamal Greene, Lael Weis, and others, including of course Yvonne.
(Cross posted at the Liberty Law Blog)
The fifth paper at the USD originalism works-in-progress conference was by Christopher Yoo (Univeristy of Pennsylvania Law School): "The Unitary Executive at the Constitutional Convention: James Wilson and the Creation of the American Presidency." The commentator was Jack Rakove (Stanford History).
This paper is part of a revival in interest in James Wilson, the "forgotten founder" (see also this new article and this new set of collected works). It argues (and I agree) that in particular he had underappreciated influence on the drafters' design of the presidency and executive power.
The question that struck me is this: if it's true that Wilson had greater influence on the design of the executive than previsously appreciated, what are the implications? Does this mean that we should pay more attention to Wilson's background and/or later writings in trying to assess the Constitution's grants of executive power? Or does Wilson remain -- despite his role -- just one person among many whose thoughts and words help understand the meaning of the relevant phrases. The paper does not attempt to answer this question (and I don't have an answer), but the paper did make me think about it.
The Supreme Court decided two treaty cases yesterday: Lozano v. Montoya Alvarez (involving the Hague Convention on Civil Aspects of Child Abduction) and BG Group plc v. Republic of Argentina (involving the bilateral investment treaty between the U.K. and Argentina). In both cases, the Court stated as an uncontroversial proposition that the meaning of the treaty turned on the intent of the parties as reflected in the treaty's text and context.
Justice Breyer in BG Group, p. 10 (for seven Justices, but the dissent did not contest the point):
As a general matter, a treaty is a contract, though between nations. Its interpretation
normally is, like a contract’s interpretation, a matter of determining the parties’ intent. Air France v. Saks, 470 U. S. 392, 399 (1985) (courts must give “the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties”)...
Justice Thomas for a unanimous Court in Montoya Alvarez, p. 8:
For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas, 552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10.
As I have said before about statutes, this is just originalism without the name. Why it is so much less controversial here than in constitutional interpretation is worth some thought (although, to be sure, some treaties are interpreted very differently -- and much more like living constitutions -- by some advocates and decisionmakers).
In particular, some scholars and commentators (including some at the conference on history and the constitutional law I recently attended) seem to believe that constitutional originalism is not only unwise but logically or practically incoherent, because it is simply impossible to derive legal rules from the historical understandings of the drafters and ratifiers. I wonder, then, what these people think about treaties and statutes.
As an aside, on the merits in Montoya Alvarez, the unanimous Court seemed to have it right: Justice Thomas concluded that the treaty did not allow equitable tolling because it did not do so expressly and equitable tolling was not part of the international "backdrop" against which the treaty was drafted and ratified. The opinion has this notable point about "backdrops" [pp. 9-10]:
... [T]here is no general presumption that equitable tolling applies to treaties. Congress is presumed to incorporate equitable tolling into federal statutes of limitations because equitable tolling is part of the established backdrop of American law. Rotella v. Wood, 528 U. S. 549, 560 (2000) (“[F]ederal statutes of limitations are generally subject to equitable principles of tolling”). It does not follow, however, that we can export such background principles of United States law to contexts outside their jurisprudential home.
It is particularly inappropriate to deploy this background principle of American law automatically when interpreting a treaty. … It is our “responsibility to read thetreaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996).
Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention....
Will Baude recently raised the question, why is the result in Brown v. Board of Education so important? He writes:
In the abstract, a legal interpretive theory ought to be able to say “theories generate results; results don’t generate theories.” In other words, it is a mistake to judge an interpretive theory simply by the moral goodness of the results it produces: If one had a theory of moral goodness sufficient to judge all of the results of an interpretive theory, one may as well just use it directly. Law’s promise is the ability to transcend moral disagreement.
And yet in practice almost every constitutional theorist feels the need to say that Brown is right. The two exceptions I can think of are Adrian Vermeule and Earl Maltz, though my very very small sample size suggests that the next generation of law students may not view Brown as similarly canonical.
This is a complicated question, but part of the reason people place so much emphasis on Brown is that they make it more important than it was. They treat the issue of Brown’s constitutionality as identical with the issue of Jim Crow’s unconstitutionality. If denying Brown meant that Jim Crow was constitutional, that is an extremely uncomfortable result. Of course, one might counter (as Will suggests) that the validity of a legal theory differs from the desirability of its results, but in the context of arguing for or against originalism, the view that originalism would allow such an enormous evil as Jim Crow just appears to be extremely problematic.
It is therefore important to note that the issue of the constitutionality of Brown is not the same as the unconstitutionality of Jim Crow. Even if Brown was not the original meaning, that does not mean that most of Jim Crow was constitutional. This is a true for a variety of reasons.
First, the case against Brown says nothing about the meaning of the voting rights provisions of the Reconstruction Amendments – the 15th Amendment and section 2 of the 14th Amendment. If blacks had been able to exercise the right to vote in the South, which those two provisions would have strongly supported had they been enforced, then blacks might have enjoyed much more political power and could have fought politically against Jim Crow. That by itself would have significantly undermined Jim Crow.
Second, the case against Brown involves two questions – whether separate but equal was allowed by the 14th Amendment and whether a publically provided education was a civil right. Start with whether separate but equal was allowed. The equality provision of the 14th Amendment – wherever one finds it – is ambiguous between one meaning of separate but equal and another meaning of no racial distinctions. There are strong reasons for the latter meaning, including that it is the likely meaning of the Civil Rights Act and that meaning better promotes the purpose of promoting equality between the races.
Third, the other question – whether receiving a public education was a civil right – is a more difficult question, but there is a reasonable case that such publically provided education should be treated as a civil right.
But whether or not public education is a civil right, a holding that separate but equal was unconstitutional would have meant that many aspects of Jim Crow – such as the segregation of railroad cars involved in Plessy v. Ferguson – were unconstitutional. Once again, Jim Crow would have been far different if those types of segregation had been outlawed.
The bottom line here is that Jim Crow involved a variety of state powers and that the original meaning would have attacked several of them even if one concluded that the original meaning did not fully support Brown. Even if Brown was not the original meaning, there is a strong case that the original meaning would have prohibited both the effective disenfranchisement of blacks and the segregation of many aspects of public life. (And of course Jim Crow involved not merely separate and equal, but separate and unequal, which is unconstitutional under all theories.) That by itself would have been a significant attack on Jim Crow.
In a future post, I will argue that recent scholarship has buttressed the case for concluding that the original meaning supports Brown.
The fourth paper at the USD originalism works-in-progress conference was by Lawrence Solum (Georgetown), titled "The Fixation Thesis: The Original Meaning of Constitutional Text" (I believe it is not yet available on line). Mitch Berman (Texas) was the commentator.
This is a hugely important paper about framing arguments over constitutional meaning, although it doesn't have any novel theory (and indeed arguably is close to tautological). The point is, simply, of the "fixation thesis" is nothing more (or less) than that the Constitution had a fixed communicative content at the time it was adopted.
Most people, if pressed, would probably agree; Mitch Berman, the commentator and no friend of originalism, seemed to -- and the paper struggles a little to find someone who doesn't. (As an aside, it might be that as to some parts of the Constitution (a) the meaning is vague or ambiguous; (b) the meaning delegates to future generations the power to give content; or (c) the meaning has been lost. None of these possibilities refute the thesis -- the first two just say that the fixed meaning lacks definite substance in some cases, and the latter doesn't deny a fixed meaning but just says we can't find it).
The fixation thesis in itself doesn't say anything about modern constitutional meaning. But taking this claim as a starting point has consequences for the debate over modern meaning. If a constitutional provision had one meaning at time x (adoption), and now is now given a different meaning at time y (now), something happened in the interim to change the meaning. This then connects with Steve Sachs' paper for the conference, which asks about the validity of constitutional change. The question becomes framed as: was the "something" that changed the meaning a valid way to change it?
The answer might well be yes (obviously it is, if the "something" is a duly ratified amendment). If you believe in precedent, then you might think an erroneous court decision changes the meaning (but think that is acceptable). Similarly, one might conclude that sustained unquestioned executive branch practice should change constitutional meaning. Or that modern pragmatic considerations should change the meaning, if the initial meaning becomes impractical in light of modern circumstances. The point is that the change must be justified against a initial baseline of the meaning at the time of adoption.
Although this might all seem sort of obvious, it often gets lost in debates over modern constitutional meaning. It's frequently said that there are various ways of finding modern meaning, including original meaning but also later practice, precedent, institutional capacity, moral and pragmatic considerations, etc. While that is true, putting it this way tends to collapse all these "methods" into a single enterprise called modern interpretation in which all can be invoked (if supportive) but without any priority or elaborated justification. The fixation thesis implies (and Sachs' paper says directly) that the initial communicative meaning is a baseline and the other methods must be justified as reasons to depart from it.
I think I had always thought this implicitly (it's sort of an unstated premise of most of my scholarship, which focuses on what Solum calls the communicative meaning of particular constitutional provisions, typically without making claims about what that means for modern law). It's very helpful to have it spelled out.
Ilan Wurman (clerk, U.S. Court of Appeals for the Fifth Circuit) has posted The Original Understanding of Constitutional Legitimacy (Brigham Young University Law Review, forthcoming) on SSRN. Here is the abstract:
This Article argues that three influential schools of originalism, which we might label as libertarian, progressive, and conservative, adhere to particular understandings of constitutional legitimacy, which then inform their particular constitutional hermeneutics. The Article demonstrates that as originally understood by the Founders, however, constitutional legitimacy depended on all three conceptions advocated by these schools of thought — that is, the Constitution had to protect natural rights, it had to enable self-government, and it had to be ratified by popular sovereignty. Further, the Article gives considerable treatment — remarkably for the first time in the law review literature — to James Madison’s letter in response to Thomas Jefferson’s famous “dead hand of the past” argument, in which we might find an understudied ground for constitutional obedience: prudence.
The discussion on the Founders’ original understanding of constitutional legitimacy provides two principal insights: First, it provides us with a more holistic case for constitutional obedience than several modern originalist theories whose narrower theories of legitimacy may be unpersuasive standing alone. Second, it demonstrates that broader hermeneutics are necessary as an originalist matter, or simply because we find the Founders’ understanding more persuasive. The Article will also suggest, in the conclusion, that the more holistic account of constitutional legitimacy might provide a new justification for originalism.
From Eric Posner: Originalism Class 8: Accounting for Change (responding to this post). Will Baude replies: Originalism and the rule that government actors don't change the Constitution -- including this important, but I think controversial, observation:
I would say our current legal rules honor an important relevant principle in the text: government agents are not authorized to make constitutional change. They take an oath, and it is an oath to apply “this Constitution” that we have, and that reflects an important limit on the power that we the people have delegated to them. The people may well have a right to ignore the Constitution, but the government officials who happen to be their agents do not.
Well, first, judges make constitutional change, though perhaps they shouldn't, and perhaps there is a difference between judges and other government officials. (But judges also take an oath to support "this Constitution"). And, second, lots of people think that constitutional change can be made through repeated practices of the executive branch (for example, executive branch practice was a central argument in the recess appointments case). Again, perhaps constitutional change shouldn't be made this way, but I'm puzzled by the claim that it isn't.
Chad M. Oldfather (Marquette University - Law School) has posted Methodological Pluralism and Constitutional Interpretation on SSRN. Here is the abstract:
This article takes up a significant yet surprisingly overlooked question: What accounts for the Supreme Court’s lack of methodological uniformity in constitutional interpretation? The question can be phrased in other ways: Why do strong methodological pronouncements in one case go unfollowed and unacknowledged in the next? Why, to use an example, does the originalist analysis of District of Columbia v. Heller not create a presumption that subsequent Second Amendment cases must also be analyzed via an originalist approach?
An easy answer suggests itself — the justices simply do not want to bind themselves to someone else’s preferred methodology. They hold strongly divergent views, and advocate on behalf of those views in their opinions. Each justice might be willing to adhere to a single approach, but only so long as it is the one he or she favors.
This easy answer turns out to be, at best, incomplete. There are many respects in which the Court does adhere to its past methodological choices, such as with Chevron deference or the tiered-scrutiny framework. This adherence is both unremarkable and, more generally, consistent with the application of stare decisis, which, properly understood, entails being bound by some past court’s preferences. Given that, we might imagine that stare decisis ought to apply to broader interpretive commitments. Indeed, a recent wave of scholarship has argued in favor of the application of stare decisis to the process of statutory interpretation, while at the same time demonstrating that a number of state courts have achieved methodological uniformity in that domain. Along the way, several of these scholars have suggested that their arguments might apply to constitutional interpretation as well.
In attacking these questions, this article attempts, first, to unpack the relationship between stare decisis and interpretive methodology, and to understand when stare decisis will apply to methodology and when it will not. It concludes that, at least at the broad level of determining constitutional meaning, stare decisis and interpretive methodology are an inherently unstable combination. The attainment of methodological uniformity, it turns out, is better analyzed and understood in terms of consensus. Simply put, large-scale methodological uniformity results not from the doctrinal pressure of stare decisis, but rather as a product of a settled understanding that a given method is the appropriate way to engage in legal reasoning.
Second, the article explores explanations for the methodological pluralism that characterizes the Court’s decision making. That pluralism may be a product of a tacit consensus that pluralism is the most legitimate approach to constitutional interpretation. But it may also be a default position reached due to the lack of any mechanism for forcing consensus, or the product of external, political limitations on the Court’s ability to consistently follow the logic of any single methodology. More likely still is the possibility that each of these explanations is at least partially correct.
Michael Greve adds this comment:
I yield to no one in my admiration and affection for the great judge but the tension here is obvious. Bob Bork shaped antitrust law for sure and for the good of all–but it is pure, unadulterated federal common law, unsupported by any text and completely divorced from the authors’ intent–which was a constitutional intent. Judge Bork’s genius was precisely to de-constitutionalize the subject and to bring it down to efficiency theorems, administered by judges from the University of Chicago Law School.
The antitrust law initiated by Bob Bork is the just pride of American law, and a gold standard around the world. It is also a screaming scandal to any originalist and textualist theory of what courts ought to do.
Whether there is a contradiction in Bork's work depends significantly on whether one views the original meaning of the antitrust statutes as in effect delegating common-law lawmaking authority to the federal courts. It's not wholly implausible to think they did, and if so, there's no contradiction (except perhaps Bork's failure to acknowledge that some parts of the Constitution also might delegate to future federal courts).
Amanda L. Tyler (University of California, Berkeley - School of Law) has posted The Counterfactual that Came to Pass: What If the Founders Had Not Constitutionalized the Privilege of the Writ of Habeas Corpus? on SSRN. Here is the abstract:
What if, this Essay asks, the Founding generation had not constitutionalized the privilege of the writ of habeas corpus? As is explored below, in many respects, the legal framework within which we are detaining suspected terrorists in this country today — particularly suspected terrorists who are citizens — suggests that our current legal regime stands no differently than the English legal framework from which it sprang some two-hundred-plus years ago. That framework, by contrast to our own, does not enshrine the privilege of the writ of habeas corpus as a right enjoyed by reason of a binding and supreme constitution. Instead, English law views the privilege as a right that exists at the pleasure of Parliament and is, accordingly, subject to legislative override. As is also shown below, a comparative inquiry into the existing state of detention law in this country and in the United Kingdom reveals a notable contrast — namely, notwithstanding their lack of a constitutionally based right to the privilege, British citizens detained in the United Kingdom without formal charges on suspicion of terrorist activities enjoy the benefit of far more legal protections than their counterparts in this country.
Randy Kozel has another post at PrawfsBlawg on originalism and precedent: When Should Originalism Fall Back on Precedent?. From the beginning:
In a previous post, I suggested that originalism might benefit from recognizing a fallback rule of deference to judicial precedent. The idea would be to preserve a first-order commitment to the Constitution's original meaning, but to acknowledge that when the original meaning cannot confidently be discerned, the best approach is to fall back on precedent. Underlying this argument is a dedication to judicial constraint, doctrinal stability, and a view of constitutional law as transcending the personalities of individual judges.
Among the (many) questions raised by this fallback rule is when it kicks in. That is, how should a judge determine when to fall back? I find this question to be fascinating and complex, and I'm continuing to work through it. With apologies to Peter King, here's what I think I think.
I don't think we disagree as much as he thinks we do. As he says, I agree that the Fifth Amendment bars private-use takings as a result of the original settled meaning of "public use." The question is whether anything happened in the nineteenth century to unsettle that meaning. What I found especially interesting about his paper is that courts apparently did begin to allow private-use takings (premised on indirect public benefit) in the early- to mid-nineteenth century -- much earlier than I had thought. My question (and I only meant to raise a question) is whether that is enough to cast doubt on the meaning of the Fourteenth Amendment as applied to takings.
After reading his post, I'm more clear that Professor Somin takes the view that the privileges or immunities clause directly adopts the textual right expressed in the Ffith Amendment (as it was understood in 1867-68). If that's right, then I think he is on strong ground in saying that the adoption of a different meaning by a minority of courts probably isn't enough to unsettle it (although I'd like to know more about the circumstances of those decisions and how they were received and defended). My main point, though, is that that's not the only way to understand the privileges or immunities clause.
He has the following especially interesting paragraph in response:
Moreover, it is strange to interpret incorporation as only including those rights that were “deeply rooted” in the practice of all or the vast majority of state governments. The whole purpose of incorporation (and of the Fourteenth Amendment more generally) was to force states to change some of their deeply rooted practices. For example, the incorporation of the First Amendment’s Free Speech Clause was intended to force southern state governments to stop their longstanding policies of censoring abolitionist speech and speech advocating equal rights for African-Americans. Under Ramsey’s approach, the incorporation of the First Amendment would not include the a right to engage in abolitionist speech, because a significant minority of states had a longstanding practice of repressing such speech. Similarly, part of the purpose of incorporating the Takings Clause was to prevent states from abusing the property rights of African-Americans and southern whites who had supported the Union during the Civil War. Allowing states to take property for whatever reasons they want was incompatible with that objective.
To be clear, the "deeply rooted" approach is not my approach (in the sense that I think it's correct): I only think it is a plausible view of privileges or immunities that should be considered. But he makes some good points against it, and raises the important question of the extent to which the clause was supposed to change state practices. In this regard, his point connects with an argument Chris Green made in his paper at the conference (which I'll mention in a separate post) that perhaps the Amendment could be read to adopt the views of the Northern states on what rights were "privileges or immunties."
Starting today, the Stanford Constitutional Law Center will be hosting a conference on "The Role of History in Constitutional Law." Here is the program:
Friday, February 28, 2014
1:15 pm The History of the Use of History in Constitutional Law – SLS Room 190
What role has history played in previous debates about constitutional interpretation? Has that role changed over time? If so, why? Can this historical perspective inform contemporary debates about the use of history in constitutional interpretation?
Bob Gordon (moderator), Stanford Law School
Lawrence Friedman, Stanford Law School
Mary Sarah Bilder, Boston College Law School
Suzanna Sherry, Vanderbilt University Law School
Ted White, University of Virginia School of Law
3:15 pm Originalism: Theory, Techniques, and Problems – SLS Room 190
How is originalism defined and practiced? What are its justifications, its methods, its strengths, and its weaknesses? How can the theory and practice of originalism be improved? Is there, and should there be, hope of methodological consensus?
Michael McConnell (moderator), Stanford Law School
Helen Irving, University of Sydney Law School
Keith Whittington, Princeton University, Department of Politics
Michael Paulsen, University of St. Thomas School of Law
Saul Cornell, Fordham University, History Department
Saturday, March 1, 2014
8:45 am Liquidation: Theory, Techniques, and Problems – SLS Room 190
James Madison wrote in Federalist No. 37 that laws “are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” What role should precedent and longstanding practice play in constitutional interpretation? What are the justifications, methods, strengths, and weaknesses of “liquidation”?
Jenny Martinez (moderator), Stanford Law School
Bernie Meyler, Stanford Law School
Neil Siegel, Duke University School of Law
Steve Sachs, Duke University School of Law
Will Baude, University of Chicago Law School
10:30 am History and the 14th Amendment – SLS Room 190
How can and should history affect our understanding of the14th Amendment? Does interpreting the 14th Amendment raise unique questions about the use of history in constitutional interpretation?
Nathan Chapman (moderator), University of Georgia Law School
Garrett Epps, University of Baltimore School of Law
John Harrison, University of Virginia School of Law
Kurt Lash, University of Illinois College of Law
12:00 pm Lunch – SLS Law Café
Keynote Lecture: Keith Whittington, Princeton University
A Critical Guide to Originalism
1:15 pm Case Studies in the Supreme Court’s Use of History – SLS Room 190
Focusing on several prominent historical controversies in the Supreme Court, how have the justices performed when using historical evidence? Are their methods and analysis faithful to the historical discipline? What do these case studies reveal about efforts to use history in constitutional law?
Elizabeth Magill (moderator), Stanford Law School
Eugene Volokh, UCLA School of Law
Jack Rakove, Stanford University, Department of History
Mike Ramsey, University of San Diego School of Law
2:45 pm History in the Future – SLS Room 190
How is the use of history in constitutional interpretation changing, and where might it be headed? Are scholarly views converging or diverging? How are others within and outside the academy likely to respond?
The Honorable Consuelo Callahan (moderator), Judge, U.S. Court of Appeals for the Ninth Circuit
Barry Friedman, New York University School of Law
Mike Rappaport, University of San Diego School of Law
Sai Prakash, University of Virginia School of Law
4:15 pm Closing remarks by Michael McConnell
Marc O. DeGirolami (St. John's University School of Law) and Kevin C. Walsh (University of Richmond - School of Law) have posted Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory on SSRN. Here is the abstract:
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?
This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.
Josh Blackman comments: What do you mean Posner and Wilkinson have no legal theory?
Will Baude's post on this week's session of his course (with Eric Posner) on originalism: Originalism and 'Accounting for Change'. He invokes this article by Originalism Blog co-blogger Chris Green: Originalism and the Sense-Reference Distinction. Baude comments:
Green’s article remains one of the most important and underrated contributions to originalist theory. The key point is that in trying to figure out when changed circumstances can be accommodated by the text, we should look to what philosophers call the “sense” of the provision (as distinct from its “reference”). If the Constitution says that Congress can create “armies,” then those armies can be of all different sorts (including air units) even though there was no specific example of an aerial army at the time of the founding. If the Constitution refers to “property,” that can include cars, not just buggies. And if the Constitution refers to “cruel and unusual punishments,” then that depends on the test for cruel and unusual punishments, not simply a list of what punishments people might have thought flunked the test.
The result is that some change can be accommodated by the text and some cannot. It is a problem to be solved by looking at the text. As Green puts it, “The choice of language is a choice about what sorts of changes should make a difference to the set of future applications.”
We were surprised and puzzled by Randy Barnett’s post complaining that we had not fairly represented his views on originalism in our book Originalism and the Good Constitution. His focus was on a few brief paragraphs in the introduction that could not comprehensively discuss these issues, but in any event we do not believe our comments were inaccurate or disrespectful. We believe that Randy has misinterpreted our discussion.
1. Randy first objects that we refer to originalists who believe in construction as “constructionist originalists.” Randy criticizes this as an “argument by labeling.” Randy states: “I call myself an originalist (of the original public meaning variety). Period.” But there are many theories of originalism and not all of the original public meaning theories embrace construction. A term was needed to refer to these theories and we do not believe there is anything derogatory about the term constructionist originalism. Some people refer to these theories as the new originalism, but there are new theories of originalism, including ours, that do not embrace construction. Hence the need for a more specific term.
2. Randy also objects to our assertion that theorists who believe in contruction argue that interpreters are only bound by the original meaning when it is clear. Randy writes that he “propose[s] no such ‘clear statement’ approach to constitutional interpretation.” But we did not use the term “clear statement,” nor were we implying it. One of the main differences between our original methods view and the view of advocates of construction is that original methods believes that close cases – where the evidence just slightly favors one interpretation (what we call a 51%-49% situation) – should be resolved based on the stronger interpretation whereas advocates of construction seem to believe that construction should resolve that situation. Thus, in our view, advocates of construction apply construction rather than interpretation in cases where the evidence is close, thereby applying interpretation only when the evidence is clear. Even those who adhere to construction have used the term “clear” in this sense.
3. Randy also objects to our claim that constructionists believe that when a provision is ambiguous or vague, interpreters may resort to extraconstitutional materials. Randy appears to largely accept the substance of our claim as to vagueness, which he says may sometimes require construction. While he objects to our claim about ambiguity, he still acknowledges that there may be rare cases of “irresolvable ambiguity” where construction is needed.
More importantly, when we refer to ambiguity and vagueness here, we are not discussing the situation where a term is ambiguous or vague upon initial examination, as Randy seems to interpret us to mean. What we mean is that the term is ambiguous or vague after some analysis. If the ambiguity can be resolved, then this is not what we mean by an ambiguity here. Thus, we continue to believe that advocates of construction hold that terms that are ambiguous or vague (after analysis) require construction.
4. Randy also complains about our characterization that constructionist originalists want to replace original meaning with construction. He says they merely want to supplement originalism. We do not think we are drawing a contrast between replacement and supplement in the phrase he quotes. But assume we are: If we are right that originalists should always choose the better meaning, those who adhere to construction are replacing a bit of the original meaning though the use of extra-constitutional material rather than simply relying on the original meaning. To be sure, we are here describing construction from within our theory, not within his. But how can we be expected to do otherwise? We would note that Randy and others often describe our theory of original methods originalism as containing a theory of original methods construction (which Randy does in this very post), which is true within their theory, but not within ours.
We are saddened by this dispute, because we are obviously on the same side as Randy on the most important matters of constitutional theory and we have the greatest respect for Randy’s contributions.
Yes, you read that right. Justice Scalia is going to be the subject of a play entitled, The Originalist.
In the Notre Dame Law Review, Saikrishna Bangalore Prakash (University of Virginia School of Law) has the article The Appointment and Removal of William J. Marbury and When an Office Vests (89 Notre Dame L. Rev. 199 (2013)). Here is the abstract:
Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s delivery argument was a post-hoc rationalization, having nothing to do with his actions in March of 1801. John Adams’s midnight appointments incensed Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities. To Jefferson, the failure to deliver commissions to some of those appointees mattered not a whit. What seems to have been far more significant is his sense that the justices of the peace served at his pleasure. Acting on this belief, he simultaneously removed them all and recess appointed most of them, save for more than a dozen, including William J. Marbury. This Article also addresses whether William J. Marbury and the other midnight appointees who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of considering these theories, the Article discloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed the second theory, namely that appointments vest before the act of commissioning. Moreover, well before Marbury v. Madison, the Adams Administration likewise concluded that appointments could vest prior to any commission being issued or delivered. Despite this convergence, the Article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he appoints. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the grantee may decide the means of exercising it.
(Via Dan Ernst at Legal History Blog)
The third paper at the USD originalism works-in-progress conference was by Ilya Somin (George Mason University Law School) on Kelo v. City of New London and takings for private use. Its central claim is that takings for private use (e.g., giving blighted land to a private re-developer) are precluded by the original meaning of the Fifth and Fourteenth Amendments. Michael McConnell (Stanford Law) was the commentator.
This is the second chapter in Professor Somin's forthcoming book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press). I don't think it is publicly available yet, but as it is fairly well developed I feel comfortable saying a few words about it.
The chapter is notable in reviewing state court decisions applying state versions of the Fifth Amendment takings clause in the early to mid-nineteenth century. This is an important contribution and points the way for much future scholarship -- I think we are only beginning to understand what was going on in the early state courts regarding individual rights, and what state courts had to say may shed light both on post-ratification views of the language of the Bill of Rights and on the legal culture that formed the backdrop of the Fourteenth Amendment. It's somewhat unclear, though, what conclusions we can draw from Professor Somin's research.
As to federal takings, the Fifth Amendment's text ("nor shall private property be taken for public use, without just compensation") seems reasonably clear. First, the language seems to build in an assumption that private property could only be taken for public use. True, the text does not literally say that, but the contrary reading would be absurd (why require compensation for public use takings but allow uncompensated private use takings?). An assumption so evidently underlying the text seems to become part of the text, if the text is to be given its full context. So I think Professor Somin rightly rejects the literalist argument of Jed Rubenfeld (see 102 Yale L.J. 1077 (1993)) to the contrary. Second, "public use" seems on its face to require, well, "use" by the "public": if the people (or the government as representative of the people) aren't entitled to do things on or with the property, as is the case when the property is given to a private entity, the amendment is not satisfied. The fact that the public might benefit indirectly from the new private use (because, for example, it helps remedy a blighted area) does not make the "use" one by the public.
As Professor Somin recounts, most states had public use takings clauses paralleling the Fifth Amendment from the eighteenth century, and early practice seemed to conform to the obvious meaning of "public use." Although sometimes property was taken and given to private entities, it was in an context where the public would have a right to use it after the taking -- for example, mill acts, by which land was taken by damming a stream to work a privately-owned mill, but the mill was required to be open to the public. At this time, though, there apparently was not much state court litigation, so the interpretation of the Fifth Amendment rests mostly on its plain text.
As Professor Somin further describes, later state cases diverged -- some adopted a "narrow" view holding that public use meant use by the public, but others adopted a broader view that public use could be satisfied by indirect public benefits. The former appears to have been the majority view. But the problem remains what conclusion to draw from that, once we turn to the Fourteenth Amendment and state takings.
Although Professor Somin does not put it this way, I think it depends on what one thinks of the privileges or immunities clause (which is where I assume most originalists would find a federal constitutional limit on state takings). If the clause directly incorporated the text of the Fifth Amendment, then I think the result is clear. The Fifth Amendment text itself is clear (as I argue above) and the mixed practice of the mid-nineteenth century is not enough to overturn it.
On the other hand, if the clause only constitutionalized deeply rooted practices (having significant overlap with but no direct correspondence with the actual text of the federal rights), then I think Professor Somin's claim is more problematic. The divided practice he identifies seems not to show a deeply rooted right, even if the "narrow" view commanded a majority. It seems doubtful that the minority of states adopting a broad view would have understood the Amendment as requiring them to conform their land use law to the majority approach.
In sum, this was an unusual paper in that it made me more skeptical of its claim than I had been before I read it. I don't mean that as a criticism -- actually it's a tribute to Professor Somin's careful research and forthright reporting of his results.
The most contestable premise of the Scalia/Garner book [Reading Law] is the premise that all sides accepted uncritically, namely that the job of a judge is not to discern legislative intent because there is no such thing (except perhaps as a useful fiction). Richard Ekins’ recent book, The Nature of Legislative Intent, makes that premise difficult to maintain. Ekins skillfully defends the ancient idea that a legislature can intend to change law, and the job of courts is to give effect to that intent. The law created by a statute is not merely the assemblage of signs of which the text is constituted. Rather, law is the set of propositions to which the text points. Positive law is a reason for the actions of judges (and others) even when the text by itself is not fully determinate.
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.
Regarding this post on alternatives to originalism, Tom Bell (Chapman Law) writes:
You wrote of constitutional interpretation, "there is no third way. Academic attempts to find one are illusions. You can try to figure out what the original meaning is, or you can try to figure out what the best result is. The question is which one judges should be doing."
With all due respect, my friend, I think you commit the error of the excluded middle. See The Constitution as if Consent Mattered. The third -- and better! -- way is to read the constitution as if it were a contract between the federal government and its living subjects, giving the text its plain, present, public meaning. This we do not for results but because it maximizes the consent, and thus the justifiability, supporting the exercise of governing power.
This is my second post on the papers at last weekend's originalism works-in-progress conference (first post here).
The second paper of the conference was by Steve Sachs (Duke Law School), Originalism as a Theory of Legal Change, with comments from Richard Fallon (Harvard Law School). Unfortunately, as far as I know, the paper is not yet publicly available, so I'll make only a couple of general comments.
The bottom line is that this is going to be one of the most important articles -- quite possibly the most important -- in originalism theory in 2014. (Its spot in the "originalism top ten for 2014" seems assured.) It's a very ambitious attempt to justify originalism by reference to legal practices, not (as I'm inclined to do) by reference to normative claims. Also -- and this is an odd thing to say about a draft article on legal theory that's 74 pages and 259 footnotes -- it's fun to read.
In the current issue of the Harvard Law Review, Jeremy Waldron (NYU School of Law) has the article Never Mind the Constitution (127 Harv. L. Rev. 1147) in which he reviews Louis Michael Seidman's On Constitutional Disobedience (Oxford University Press 2012). Here is the abstract:
The dust jacket of Louis Michael Seidman’s new book consists of a sepia facsimile of the 1787 manuscript version of the Constitution of the United States, with a red cross-out scrawled all over it and the word “NOT” interpolated in red at the top somewhere near the end of the preamble. These visuals set up the book’s title, which appears in stark white on a black smear of crayon across the middle of the original text.
On Constitutional Disobedience appears in a series published by Oxford University Press. The series is called “Inalienable Rights,” and it includes, among other works, Laurence Tribe’s The Invisible Constitution, David Strauss’s The Living Constitution, Michael Klarman’s Unfinished Business: Racial Equality in American History, Richard Posner’s Not a Suicide Pact: The Constitution in a Time of National Emergency, and Richard Epstein’s Supreme Neglect: How to Revive Constitutional Protection for Private Property. It is a series of books mostly devoted to various ways in which the Constitution might be interpreted, and various problems in constitutional law that, in the authors’ opinions, deserve greater attention. Some of these works are more abstract than others, some of them are devoted more to theory than to doctrine, but it is fair to say that they are all focused on the distinctive problems and possibilities of American constitutional law. They accept the constitutional framework — the 1787 document and the 1791 and 1865–68 Amendments — and their questions are mostly about how we should read all that and what we should do with it.
Professor Seidman’s book is also (mostly) about American constitutional law. He is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center, and he is the author of Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review and Constitutional Law: Equal Protection of the Laws. But in this new book, Seidman emphatically refuses to assume the framework that the other books in the series assume. As Geoffrey Stone, the series editor, says in a preliminary “Editor’s Note”: “Mike Seidman’s On Constitutional Disobedience asks a very different question: Why should we care at all what the Constitution says?” (p. xii). Seidman proposes that the Constitution should be treated with less reverence, and that its dictates and principles should be obeyed less often, particularly when there is reason to believe that we now know much better than the Framers from 1787 how to deal with the problems we face.
But the practical upshot of Seidman’s dissatisfaction with constitutional authority is not always clear. Sometimes he proposes that we should ignore the Constitution “systematically” (p. 5). He seems to think we should put the document aside as a guide to action, stop quarrelling over its interpretation, stop using it as a distraction from real-world politics, and treat it, at best, the way we treat the Declaration of Independence — as an inspiring piece of rhetoric, but one whose poetic appeal belies its historic distance from the quandaries we have to deal with. Sometimes — in a less incendiary tone — he suggests we should simply stop feeling guilty about the many areas in which we already ignore the Constitution’s commands and in which we have already abandoned our quarrels about its meaning. We should be more candid about this than we are, and less anxious about how the world would look if the Constitution were taken less seriously.
Seidman’s recommendations are, in the first instance, recommendations for Americans, who pride themselves — perversely, in his opinion — on having the oldest constitution currently in force in the world (p. 11). But the case he presents is also a case against constitutionalism in general, and it might apply as much to the South African Constitution of 1996 and to the constitutions with which we are so anxious to endow new democracies created in our image. This general implication of Seidman’s argument is not something he dwells on, but it peeps out occasionally in various reassurances scattered throughout this short and provocative book — reassurances that we have little to fear from abandoning the U.S. Constitution when we consider how well countries like New Zealand and the United Kingdom do without anything remotely like our formal constitutional arrangements.
I shall talk about these universalistic implications in Part III of the Review. There I shall try to show that Seidman’s case as a whole looks less convincing when taken in this broader context. But first, in Parts I and II of the Review, I want to set out Seidman’s argument so far as American constitutional law is concerned. For it is certainly there that the book will have its greatest impact, even if the impact is just that of a provocateur or gadfly. In Part I, I shall set out Seidman’s critique of American constitutionalism, and in Part II, I will see what can be gleaned so far as Seidman’s normative prescriptions are concerned. I hasten to add that the case I shall describe in Part I does not stand or fall on the success of the prescriptions described in Part II. Evaluation is different from prescription; and the case that Seidman brings against American constitutionalism might succeed in making us uneasy with various practices we have been wedded to even though, at this stage, there is nothing much to be done about them. Seidman, I think, would be disappointed (and rightly so) if people inferred from the inadequacy of his prescriptive argument that his evaluation of our constitutional practice must be flawed. We might, however, get a better grip on what is wrong with Seidman’s argument as a whole by paying attention to constitution-making at the front end rather than by dwelling on the impossibility of kicking our own long-established constitutionalist habit. And that is what I shall consider in Part III.
Last Friday we at the University of San Diego were honored to welcome an outstanding group of scholars to the Fifth Annual Hugh and Hazel Darling Foundation conference on originalism works-in-progress. The conference discussed seven papers on originalist topics. Time permitting, I plan to say a few words about each.
The first paper was by David Upham (University of Dallas, Political Science): Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause. Jack Balkin (Yale Law School) served as commentator.
(1) A staple anti-originalist argument is that Loving v. Virginia, which found unconstitutional Virginia's ban on interracial marriage, cannot be defended on originalist grounds (and thus that originalism is a flawed interpretive method). And the central reason for that claim is the supposed historical fact that most states after the ratification of the Fourteenth Amendment had bans on interracial marriage.
Professor Upham's paper shows, I think definitively, that the supposed historical "fact" simply isn't true. To the contrary, he demonstrates:
That contra the Supreme Court’s claim in Casey [v. Planned Parenthood] (and the argument of Virginia’s attorneys in Loving), within five years of the [Fourteenth] Amendment’s ratification, racial-endogamy laws [i.e., laws banning interracial marriage] were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials — including virtually every Republican judge to face the question — concluded that African Americans’ constitutional entitlement to the status and privileges of citizenship precluded the making or enforcing of such laws.
To be sure, this fact standing alone doesn't show that Loving was rightly decided on originalist grounds, and Upham doesn't claim it does. But it does destroy the strongest originalist argument against Loving.
More broadly, the collapse of this supposed historical fact should invite skepticism of other conventional anti-originalist historical assumptions. It's common for non-originalists to claim or assume that originalism requires distasteful results as a way generally to discredit originalism. Sometimes originalism does require distasteful results. But sometimes these assumptions have nothing behind them.
Further, claims about what originalism must require often persist even after it's conclusively demonstrated that originalism does not so require. It will be interesting to see how often people continue to claim Loving is inconsistent with originalism.
(2) I am less confident about Professor Upham's explanation of why people at the time thought bans on interracial marriage violated the "privileges or immunities of citizens of the United States." Here is his proposed definition of the rights this language protects:
For purposes of this study, I propose, as a working hypothesis, the following two-part definition. First, these rights were privileges of citizenship, not universal human rights; these rights were enjoyed by citizens as a matter of right but by aliens only as a matter of indulgence, if at all. Second, these rights were, more specifically, privileges of United States citizenship in at least two ways: (1) each state in the Union had recognized these rights from 1776 through the 1820s; and, (2) by force of Article IV and/or perhaps other law, during that same time, a bona-fide citizen of any state had a right to enjoy these privileges in all the other states of the Union, even if the citizen was a mere sojourner therein. In other words, the states had been united in recognizing, for the benefit of their own citizens, these privileges of citizenship and united in extending these rights to citizens of each of the United States.
Perhaps this is right, but it suggests to me that we are far from any consensus definition of privileges or immunities. In particular, a number of things might not be considered privileges or immunities under this definition that have widely been thought to be included. In any event, though, Professor Upham's paper is a big part of reconstructing that definition, not just as it relates to interracial marriage but more generally.
Robert J. Pushaw (Pepperdine University - School of Law) has posted Obamacare and the Original Meaning of the Commerce Clause: Identifying Historical Limits on Congress's Powers (University of Illinois Law Review, Vol. 2012, No. 1703, 2012) on SSRN. Here is the abstract:
Recently, Akhil Amar and Jack Balkin revived the idea that the exercise of unbridled Commerce Clause power is consistent with its original meaning. They assert that, in the eighteenth century, the word “commerce” meant “intercourse” — all interactions, not merely economic but also social and political. In this article, Professor Pushaw argues that the historical conclusions of Professors Amar and Balkin are hardly the most logical ones that can be drawn from the evidence. Drawing upon his prior work with Grant Nelson, wherein they compiled abundant historical documentation on the usage of "commerce,” Pushaw demonstrates that the Framers and Ratifiers most likely understood “commerce” as including only commercial interactions — voluntary sales of products and services and related activities intended for the marketplace. Furthermore, contrary to the assertions of Amar and Balkin, the Constitution’s drafters refused to grant Congress general legislative authority to enact any laws it deemed in the national interest or of interstate concern (the tentative Virginia Plan approach). Instead, they restricted Congress by enumerating its powers, thereby leaving all powers not listed to the states or the People (i.e., beyond the reach of any government, the better to promote freedom). It is this vision of popular sovereignty, limited government, federalism, and liberty that structures our Constitution.
Part I of the article examines the Commerce Clause’s original “meaning” (the ordinary definition of its words), “intent” (its drafters’ purposes), and “understanding” (the way its Ratifiers and early implementers comprehended it). Part II describes how the Supreme Court initially embraced this conception of “commerce,” abandoned it after Reconstruction in favor of a narrow definition that confined Congress to regulating only trade and transportation, and invented the vacuous “substantially affects” test in the late 1930s. Part III illustrates the practical consequences of adopting different approaches to the Commerce Clause in the context of the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”), which imposes an “individual mandate” on Americans to purchase health insurance.
At Volokh Conspiracy, Randy Barnett: Off to a bad start: Originalism and the Good Constitution.
I am now beginning to read John McGinnis and Mike Rappaport’s book Originalism and the Good Constitution for my Georgetown seminar, “Recent Books on the Constitution.” ... Unfortunately, this one gets off to a bad start when describing alternative approaches to originalism. And by “alternative approaches” I mean mine. ...
Catherine Y. Kim (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Immigration Separation of Powers and the President's Power to Preempt on SSRN. Here is the abstract:
This article explores the unique separation-of-powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt State law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting State laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to executive decisions, while at the same time imposing significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, however, the Court departed from these existing doctrinal restrictions to hold that a conflict with the potential exercise of executive prosecutorial discretion suffices to displace State law. In doing so, it signaled an unprecedented expansion of the executive’s power to preempt, one without apparent limit.
This article argues that considerations unique to immigration law undermine the utility of existing doctrinal frameworks for limiting executive preemption. Nonetheless, some restriction remains warranted. Given the limitations of the existing doctrines, it proposes a new approach to cabining executive authority in this context.
Steven G. Calabresi (Northwestern University - School of Law) and Sofia Vickery (Northwestern University - School of Law) have posted On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Provisos on SSRN. Here is the abstract:
The debate as to what unenumerated rights, if any, are protected by the Constitution is directly relevant to the most controversial issues in constitutional law today — from gay marriage, to gun control measures, to substance control regulation, to specific personal liberties, and finally to property regulation to name just a few. Much of the unenumerated rights debate centers on the U.S. Supreme Court’s substantive due process clause caselaw interpreting the Fourteenth Amendment. These cases address the question of which specific rights are implicated by the protection of life, liberty, and property in the Due Process Clause of the Fourteenth Amendment? Some justices on the U.S. Supreme Court have written or joined opinions that argue that the answer to this question can be found by looking for rights that are deeply rooted in American history and tradition at the most specific level of generality available. State constitutional case law from 1776 up to 1868 when the Fourteenth Amendment was ratified is thus potentially of great relevance to understanding American history and tradition, because by 1868, the year the Fourteenth Amendment was ratified, two-thirds of the existing State constitutions contained what we refer to as “Lockean Provisos,” provisions protecting life, liberty, and property and guaranteeing inalienable, natural or inherent rights of an unenumerated rights type. In this Article, we identify and exhaustively analyze nearly a century of State case law, from the time of the Founding until 1868, in which State courts interpret and apply State constitutional Lockean Provisos to an enormous variety of issues. From this robust body of State constitutional case law, we conclude that the Lockean Provisos in most State constitutions had great significance with respect to the abolition of slavery and the extension of civil and political rights to individuals and minority group members living in the Northern States. At the same time, with respect to property regulation, State courts struggled to give concrete meaning to the Lockean Provisos in their State constitutions, and while not discounting the possibility that some regulations could violate the Proviso, the State courts generally deferred to the legislature. This evidence suggests that “liberty,” in the context of the Fourteenth Amendment, is best understood broadly to encompass natural rights and to require that civil and political rights be extended to minorities, a finding of particular relevance to the debate on gay marriage. However, the range of issues potentially implicated by the Lockean Provisos and inconsistent rulings in many areas also suggests that determining which specific rights are implicated by the protection of “liberty” posed the same challenge to State courts between 1776 and 1868 that present courts face today and that the quest to identify unenumerated rights that are deeply rooted in American history and tradition is itself somewhat quixotic.
Andrew offers some interesting thoughts about the Equal Protection Clause and gay marriage. He and I had an exchange about a year ago about the Equal Protection Clause in general. That exchange was pretty detailed, and I won't rehash it in full. Suffice it to say that on my view of the Equal Protection Clause, which confines it to literal protection and the right to a remedy, it's easy to dispense with the gay-marriage question for the Equal Protection Clause. The case doesn't rely on anything as slender as the application of anti-surplusage canons to "of the laws," but on historically-well-established meanings expressed by the entire phrase "protection of the laws" (see here at 43-69), especially in the context of a jursdictional limit and the allegiance-for-protection contractual tradition (same article at 34-43). That doesn't end the originalist inquiry regarding gay marriage and the Fourteenth Amendment, though, because equality concerns arise again in the guise of the Privileges or Immunities Clause if the clause bans (as it does: see here at 255-77 and here at 123-158) second-class citizenship.
Andrew says it's possible for most states to be acting unconstitutionally at the time of the framing, but not for all of them--that would be "a bridge too far." For what it's worth, I think it quite implausible indeed that a distinction with the pedigree of traditional limits on marriage--that is, a distinction drawn by every society in history until the Netherlands in 2001--could be unconstitutionally arbitrary, whatever our views about whether those limits ought to be changed now. But in principle, it's possible for all of the framers to be wrong about a fact material to constitutional application. Compare, e.g., the framers' unanimous 1787 guesses about the relative populations of North Carolina and Maryland embodied in the constitutional text of I/2/3 (until the census, Maryland to get 6 representatives, and North Carolina 5) with the reality once the census was taken (Maryland received 8 representatives, and North Carolina 10). For more on this theoretical point, see here at 583-85, making basically the same point as Mike Ramsey's application to the gay-marriage issue here.
At CNN Opinion, Neil Weare: Citizenship Is a Birthright in U.S. Territories (discussing an interesting pending case, Tuaua v. United States (D.C. Cir)). As he explains:
Tens of thousands of Americans who hold U.S. passports are denied legal recognition as U.S. citizens. The reason? They happen to be born in the U.S.territory of American Samoa instead of somewhere else in the United States.
It’s not widely known (I didn’t know it until recently) that people born in American Samoa are, by statute, designated “U.S. nationals” but not “U.S. citizens.” If they want to be U.S. citizens, they have to be nationalized like people from other countries.
But, as the suit points out, the first sentence of the Fourteenth Amendment says that “All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This obviously included U.S. territories in the western United States at the time. As Weare further argues, it’s somewhat difficult to see how, under the Amendment’s original meaning, it doesn’t also include overseas territories such as Samoa, which are clearly (a) part of U.S. territory and (b) subject to U.S. jurisdiction. (The culprit here, of course, is the Supreme Court’s convenient but somewhat dubious set of opinions in the Insular Cases, which held that certain overseas territories acquired after the Spanish-American War did not receive the full protection of the Constitution).
Aaron T. Knapp (Boston University - Department of History) has posted The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787 (UC Davis Law Review, Vol. 47, No. 5, 2014, Forthcoming) on SSRN. Here is the abstract:
Based on a paper given at the American Society for Legal History 2013 Annual Meeting, this article asks whether we can speak of a historically distinct constitutional “counterrevolution” taking place in 1787-88. It finds we can, but contends that neither economic interests, nor political ideology, nor general cultural trends in the decade after Independence, fundamentally impelled this counterrevolution’s leading figures. Rather, a counterrevolutionary jurisprudence did. At the heart of this jurisprudence lay a new set of attitudes about the relationship between law and coercion that, notwithstanding the enormous outpouring of scholarly commentary on the framing and ratification of the Constitution in the last century, has managed to escape the attention of legal scholars and constitutional historians alike. The attitudinal transformation among reformers proceeded in two nested intellectual shifts — the first discursive, the second positional — which together form the basis for what I shall call the legal counterrevolution of 1787. The article’s historical analysis of the American constitutional founding through the conceptual prism of what leading Federalists styled “the coercion of law,” exposes underappreciated original understandings of the Supremacy Clause, the scope of Article III jurisdiction, and judicial review under the Constitution.
Courts around the country have been increasingly inclined to strike down state constitutional provisions that limit "marriage" to one man and one woman. This is being done primarily under the Equal Protection Clause of the federal Constitution. I have written here before about this subject, and am grateful for this opportunity to discuss the issue in a somewhat different way.
As a matter of principle, I still believe that the Equal Protection Clause only protects types of equality that comport with laws that existed (somewhere) in the United States around 1866, when the Equal Protection Clause was proposed by Congress. Thus, for example, schools were desegregated in Massachusetts and Iowa as of 1866, so that form of equality is a plausible subject of nationwide enforcement nowadays under the Equal Protection Clause. Same goes for interracial marriage; the vast majority of the Supreme Court’s equal protection jurisprudence is consistent with at least some state laws that were in force as of 1866. Under this principle, I do not think that same sex marriage can be legitimately required under the Equal Protection Clause, in the face not just of history, but additionally against the present democratic sentiment within a state.
Justice Robert Jackson once wrote in an unpublished draft opinion that, “Constitutions are easier amended than social customs, and even the North never fully conformed its racial practices to its professions.” Accordingly, it is not difficult for me to accept that the Equal Protection Clause professed things that were then inconsistent with an aspect of the laws in a majority of states, but inconsistency with the laws of every single state is a bridge too far.
Properly understood, the Equal Protection Clause is not a license for judges to enforce whatever principles of equality that they (or even a majority of states) may now favor, be it marriage equality regardless of gender, or income equality regardless of occupation, or sentence equality regardless of crime, or grade equality regardless of schoolwork. Advocates of unlimited judicial discretion often quote an opinion for the Court in which Justice Stanley Matthews wrote: “the equal protection of the laws is a pledge of the protection of equal laws.” The Court’s complete sentence was not so sweeping: “These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.” The idea that the Equal Protection Clause is “a pledge of the protection of equal laws” cannot possibly be a complete interpretation of the Clause, because such an interpretation would essentially shorten the Clause to read that no state shall “deny to any person within its jurisdiction equal protection”. The deleted words would have no effect whatsoever. Unfortunately, courts sometimes mangle the Equal Protection Clause in exactly that way (e.g. Judge Jack Weinstein once wrote that “The Fourteenth Amendment to the United States Constitution provides that no state may deny equal protection to any person within its jurisdiction”).
The words “of the laws” in the Clause must have some force, and so the interpretation often attributed to Justice Matthews must be incomplete. The words “of the laws” would have appropriate force if we interpret the word “the” not in a generic sense (e.g. “the morning is a nice time of the day”) but rather as a definite article referring to particular laws known to the people who adopted the Fourteenth Amendment. That would include not just the laws circa 1866 of a single state, but rather all the laws in the country circa 1866; after all, the Equal Protection Clause uses the words “of the laws” rather than “of its laws” (a point very familiar to framers of the Fourteenth Amendment). In short, the Equal Protection Clause must mean that no state may deny to anyone within its jurisdiction equal protection, with equality understood from known laws of 1866. If we were to replace “1866” with whatever the current date is, then we would have an absurd scenario in which the states could now decide to pass whatever racist laws they want, as long as they do so jointly (or an implausible scenario in which Congress would have power under not just Section Five but also under Section One of the Fourteenth Amendment).
Suppose that I am all wrong in my firm belief about the Equal Protection Clause. Even under an unconvincing supercharged interpretation of the Equal Protection Clause, saving constructions and severability of statutes must have limitations, and courts have no power to redefine a word ("marriage") that is manifestly different from what the word meant to legislators. If courts possessed carte blanche to adopt whatever constructions are necessary to render a statute constitutional, then there would never be any need to strike down any statute whatsoever.
But, again, suppose that I am wrong. Suppose not only that the Equal Protection Clause is completely untethered from the other laws in force in 1866, but also suppose that courts may adopt entirely new meanings of words to save statutes from unconstitutionality. Still, if a state legislature wants to treat civil unions the same as "marriages" in all but name, then that would seem perfectly constitutional. The courts have not required states to call all disabled people "healthy people" nor required states to call all African-Americans "white people" nor required states to call all women "men", nor (by the same token) is there any plausible legal reason why courts should require all states to call gay couples "marriages". If the mere title of being "married" is so important, then single people would be entitled to that designation as well.
Disclaimer: the preceding essay has been about the constitutionality of statutes, not about whether they are wise or foolish.
[Note: for my somewhat contrary view, see here --ed.]