Originalism and McCutcheon Part III: Does Congress Have Power to Regulate Campaign Contributions?
Mike Rappaport

For the first two posts in this series, see here and here.

My last post on originalism and McCutcheon will address whether Congress has the power to pass laws that restrict campaign contributions. This is a complicated area and one that I have not studied. So take what I say with some caution.

There are at least two issues: regulations of campaign contributions as to congressional elections and as to presidential elections. (One might, of course, draw further distinctions, such as those relating to contributions to political parties or for primaries.)

As to congressional elections, the Constitution allows Congress to regulate “the Times, Places and Manner of holding Elections for Senators and Representatives.” This might allow regulations of campaign contributions, but it has also been argued that this only covers elections, not campaigns. Bradley Smith writes:

Legal statutes and texts in the 18th century frequently discussed the “time, place and manner of election.” Rob Natelson’s extensive historical research finds that these statutes encompassed the times, places and mechanics of voting, registration lists, districting, qualifications of electors and candidates, prohibitions on misconduct at the polls, and the rules of decision (i.e. plurality or majority vote). They did not encompass the conduct of the campaign preceding the election.

Smith derives further support for this conclusion from a comparison of the time, place and manner language with the more limited language allowing Congress to determine the “Time of chusing” the electoral college.”

Why [does this provision] not [include] “place” and “manner”? Because these are specifically provided for in detailed instructions on the electoral college. If, however, “manner” was intended to include events leading up to the election–that is to say, the campaign and other events not included in the detailed instructions on operation of the Electoral College-then we would have expected the “Manner” clause to appear in Article II as well as Article I.

Congress’s power to regulate campaign contributions as to presidential elections is considerably weaker. The Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” This suggests that the power lies with the states, not Congress. Congress is given power, but only limited authority as to the Time of chusing the Electors, and the Day on which they shall give their Votes.

It is not clear how Congress can regulate campaign contributions as to presidential elections. Various judges have simply asserted that they can do so, such as Justice Black who wrote in Oregon v. Mitchell “it is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.” 400 U.S. 112, 124 (1970). Similarly, Judge Posner wrote that “Article II, §1 . . . has been interpreted to grant Congress power over Presidential elections coextensive with that which Article I ,§4 grants it over congressional elections,” citing to Justice Sutherland’s opinion in Burroughs v. United States.

Of course, one might attempt to justify congressional authority under the Necessary and Proper Clause or the regulation of commerce, but these bases seem quite weak.

In the end, I don’t have a firm position on these matters, not having studied them. But it does seem clear that there is at least a plausible basis that Congress lacks authority to regulate campaign contributions as to congressional elections and an even stronger one as to presidential elections.

(Cross posted at the Liberty Law Blog)

Thoughts on McGinnis and Rappaport's "Originalism and the Good Constitution," part 3
Michael Ramsey

Here is a third thing I like about Originalism and the Good Constitution, before getting to the book's main point (see here and here for parts 1 and 2):

The authors argue persuasively that precedent is not only not inconsistent with originalism, but is (at least in a weak form) required by originalism.  They say (p. 154):

Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent.  But if originalism cannot be reconciled with precedent, it becomes a theory of limited appeal and usefulness.  Originalism would then require ignoring precedent even when doing so has enormous costs.  It would also conflict with the practice of almost every justice and judge in the nation's history. ...

... We argue that nothing in the Constitution forbids judges from following precedent.  Rather, the Constitution allows for precedent in two ways.  First, the Constitution, as a matter of judicial power, incorporates a minimal notion of precedent.  While this minimal incorporation has important theoretical implications ... it is so minimal that it does not have significant practical consequences for current judicial disputes about precedent.  Second, the Constitution treats precedent as a matter of federal common law that is revisable by congressional statute.  Thus. the courts initially and Congress ultimately possess significant discretion over which precedent rules should be adopted.  The Constitution thereby allows either extremely weak or extremely strong precedent.

I mostly agree.  The authors rest their case principally on the observation that judges in England, the colonies and the newly independent states routinely used precedent, albeit with varying degrees of strength.  As a result (they say, and I agree), it is very probable that the founding generation understood Article III's "judicial Power" given to federal judges to include (a) some at least minimal obligation to respect precedent and (b) a common law power to develop approaches to precedent for the future.  As they say (p. 168):

The term "judicial power" [MDR note: no capital "p"?!] in Article III is, at least on its face, ambiguous.  It might be understood narrowly to mean the power to say what the law is in a particular judicial proceeding.  But it might be understood more broadly to include certain traditional aspects of the judicial office that were widely and consistently exercised.  Such core aspects of an office often come to be identified with the power that the officer exercises.  One prominent example is the view of many originalists that executive power is not simply the narrow view to execute the law but also includes many of the traditional power of executive, such as the foreign affairs power.  [Thanks for the cite, n.78]

The authors go on to say that given the historical application of precedent "it is likely that, when the Constitution was enacted, a judge refusing to give any weight to a series of cases all decided in the same way would have been deemed not merely to have been mistaken, but to have improperly exercised judicial authority."  (I agree with all this, especially the part about the executive power).  They then say (p. 171) that while only a minimal respect for precedent is required of the judicial power, "the history recounted in this chapter ... strongly suggests that the Constitution does not prohibit precedent, [but] the historical variation of precedent rules also indicates that the Constitution does not enact most of the rules.  Treating precedent as a matter of common law allows for precedent to operate under the Constitution without requiring identification of a single, unchanging approach ..."

I'm not sure if they are saying here that the "judicial Power" vests federal courts with the traditional power of judges to develop varying rules of precedent in common law fashion, but that's how I would put it.

My only quibble is that I'm skeptical of their claim that Congress could enact rules of precedent.  Maybe so, because ordinarily Congress can override common law.  But maybe not: deciding how precedent is applied might be a judicial power that isn't subject to legislative revision.  As far as I know, there isn't any history of legislatures directing courts how to apply precedent.  The authors' claim that Congress has this power seems to rest almost entirely on the syllogism (1) precedent rules are common law; (b) Congress can override common law; (c) therefore Congress can override precedent rules.  But I am very doubtful of arguments that purport to establish historical meaning by what appears to us to be logically compelled reasoning.  The founders' logic might have been different from ours.  Perhaps they thought of precedent as a different sort of common law over which legislatures could not intervene because it involved the power to decide cases.  At minimum, the book's claim here seems unproven.  (But in any event this is a minor and hypothetical point.  The main contribution here is the powerful argument about the judicial power -- and duty -- of precedent under the Constitution's original meaning).


New Book: Kurt Lash's "The Fourteenth Amendment and the Privileges and Immunities of American Citizenship"
Michael Ramsey

From Cambridge University Press, Kurt T. Lash (University of Illinois): The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.  Here is the book description from Amazon:

This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of "the privileges and immunities of citizens of the United States," from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.

Some impressive endorsements:

"There has been a great deal of commentary on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, but that meaning has remained uncertain and contested. Kurt Lash's approach to the question has been to do something not previously attempted by historians or legal scholars: read all the available literature by antebellum and Reconstruction-era contemporaries on the subject. As a result he has gone far toward producing a definitive account of the Clause's history, and shown how contemporaries understood the "rights" contained in that Clause as sharply distinct from those contained in the Privileges and Immunities Clause of Article IV of the Constitution. Building on that distinction, Lash has fashioned a compelling argument as to how the original meaning of the Privileges or Immunities Clause should be understood." 

-- G. Edward White, David and Mary Harrison Distinguished Professor and University Professor, University of Virginia School of Law

"Kurt Lash is a rare combination - a scholar with profound legal knowledge, the courage to tackle big questions, and the ability to understand historical change. The Fourteenth Amendment and the Privileges Immunities of American Citizenship instantly takes its place as essential reading for anyone who thinks or writes about the sources, evolution, and application of the Fourteenth Amendment, America's second constitution." 

--Garrett Epps, University of Baltimore and correspondent for The Atlantic

"The Fourteenth Amendment and the Privileges and Immunities of American Citizenship is a deep and important book. It will surely revolutionize our understanding of the original public meaning of the enigmatic "privileges or immunities" clause of the Fourteenth Amendment. Lash argues that language that seems opaque to contemporary readers was a phrase of art, which establishes a clear ceiling and floor on the meaning of the clause. His claims are sure to be controversial, but they demand answers. If you want to understand the Fourteenth Amendment, you will need to read this book." 

--Lawrence Solum, Georgetown Law

An early contender for most important originalist book of 2014.


Glenn Harlan Reynolds: The Second Amendment as Ordinary Constitutional Law
Michael Ramsey

Glenn Harlan Reynolds (University of Tennessee College of Law) has posted The Second Amendment as Ordinary Constitutional Law (Tennessee Law Review, Vol. 81, p. 409, 2014) on SSRN.  Here is the abstract: 

In recent years, the Second Amendment has gone from a subject of scholarly and political debate with no real judicial role, to a clearly established individual right that is being enforced in lower courts. This Essay, the foreword to a forthcoming Tennessee Law Review symposium on the Second Amendment, explores how that happened, and what is likely to come next.


Beth Colgan: Reviving the Excessive Fines Clause
Michael Ramsey

Beth A. Colgan (Stanford Law School) has posted Reviving the Excessive Fines Clause (California Law Review, Vol. 102, No. 2, 2014) on SSRN.  Here is the abstract:

Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.


Thoughts on McGinnis and Rappaport's "Originalism and the Good Constitution", Part 2
Michael Ramsey

This post continues my thoughts on Originalism and the Good Constitution by John McGinnis and Michael Rappaport (part 1 is here).

One of the most important parts of Originalism and the Good Constitution is methodological rather than normative.  In Chapter 7, the authors argue that original meaning depends not just on the original meaning of the words themselves but on the original methods of interpretation.  As they say (p. 119),

word meanings and grammatical rules do not exhaust the historical material relevant to constitutional interpretation.  There are also interpretive rules, defined as rules that provide guidance on how to interpret the language in a document.  It is our position that originalism requires modern interpreters to follow the original interpretive rules used by the enactors of the Constitution as much as the original word meanings or grammar rules.

As an example, they point to the rule that text be construed where possible to avoid surplusage; we should only use that rule, they say, if it were used at the time the relevant language was adopted.

If the question is, what did the language mean at the time is was adopted, then this point seems absolutely right (and indeed I have some trouble understanding the argument against it).  As McGinnis and Rappaport say, everyone (I think) agrees that, to find the meaning at the time of enactment, one would use the ordinary rules of grammar, as well as the word meanings themselves, existing at the time of enactment.  Otherwise, one would run a serious risk of misreading the text, just as one would if one did not use the word meanings existing at the time of enactment.  Meaning arises not just from the words themselves but from the way the words are put together.  For example, one might misread an eighteenth-century text by putting too much emphasis on the placement of a comma, if the rules about comma placement were different (as they seem to have been) in the eighteenth century compared to today.

But what is true of grammar seems equally true of rules like the rule disfavoring surplusage, which is in a sense a rule of legal grammar.  If there was a drafting rule "avoid surplusage" at time x, then there is a good reason to read things written at time x in a way that does not create surplusage.  But if there wasn't such a rule, and indeed if perhaps people at time x liked surplusage because it ensured clarity, there isn't much (any?) justification for reading things written at time x in a way that avoid surplusage.  At least, I can't think of one.

This point (which seems obvious once it's made, but wasn't before) can fix one troubling aspect of Scalia and Garner's great book Reading Law: The Interpretation of Legal Texts.  In large part Reading Law sets forth, explains and justifies a catalogue of interpretive rules that (the authors say) should be used to understand legal texts.  But where do these rules come from?  Why should these, and not others, be used?  The authors do not explain, at least not directly, although they hint that the rules arise from and are justified by traditional legal practices.  As McGinnis and Rappaport make clear, the explanation (to an originalist) should be that the interpretative rules were in place when the text was enacted and thus form part of its original meaning.

Of course this may mean that different interpretive rules should be applied to different texts if the texts were enacted at different times.  (Scalia and Garner do not seem to contemplate this possibility).  I also think that there is likely to be great difficulty in establishing whether a particular interpretive rule was widely accepted at a particular time (and how widely accepted would it need to be?).  McGinnis and Rappaport rightly say that recognizing the original interpretive rules as a component of the original meaning may reduce ambiguity (because it supplies further tools for resolving ambiguity).  But it also opens up a wide new field of disagreement and difficult historical inquiry.

George Will on Calling a Constitutional Convention
Michael Ramsey

In the Washington Post, George Will: Amend the Constitution to Control Federal Spending (disussing a proposal for an amendment by the Goldwater Institute).  Of course, Congress would not likely approve such an amendment, so 

[The proposal] provides ... two amendment procedures, one of which has never been used — the calling of a convention by two-thirds of the state legislatures. Many prudent people — remembering that the 1787 Constitutional Convention’s original purpose was merely to “remedy defects” of the Articles of Confederation — recoil from the possibility of a runaway convention and the certainty that James Madison would not be there to make it turn out well. The compact, however, would closely confine a convention: State legislatures can form a compact — a cooperative agreement — to call a convention for the codified, one-item agenda of ratifying the balanced-budget amendment precisely stipulated in advance.


Congress has no discretion — it “shall” call a convention “on the application of the legislatures of two thirds of the several states.” A convention called in accordance with the institute’s compact would adopt its limited agenda with the force of federal and state law, any deviation from which would render the convention — which is limited to a 24-hour session — void. The compact designates as the sole delegates to the convention the governors of participating states, officials who will not run the political risk of wrecking the convention by ignoring the law.

Constitutional?  See here.


Some Thoughts on McGinnis & Rappaport's "Originalism and the Good Constitution"
Michael Ramsey

This Friday (April 11) USD Law School and the Center for the Study of Constitutional Originalism will host a roundtable on Originalism and the Good Constitution by John McGinnis and Michael Rappaport (Harvard Univ. Press 2013).

Our outstanding line-up of participants includes: Vikram Amar (UC Davis), Stephen Gardbaum (UCLA), Bernadette Meyler (Stanford), Robert Nagel (Colorado), Robert Pushaw (Pepperdine), Lawrence Rosenthal (Chapman), and Amanda Tyler (Berkeley), as well as USD's Larry Alexander, Steve Smith, Laurence Claus, Don Dripps, and Maimon Schwarzschild.  (And also me, and the authors).

In a few posts, I'll offer some thoughts about the book -- initially some very favorable ones, with perhaps some skepticism later.

To begin, I like that McGinnis and Rappaport frame the core question of constitutional adjudication as a choice among (a) originalism, (b) a "living constitution," or, as they frequently call it, "judicial updating", or (c) judicial deference to political branches.  (They don't do so expressly at the outset, which might have been better, but the comparative evaluation runs throughout the book.)

I think this is the right way to think about it.  First, these are the three basic families of constitutional interpretation.  Essentially everyone's approach is a version of one of these, or a combination of them.  (Some might say that adherence to precedent is a fourth, but I disagree; each of these approaches must decide how to deal with prior mistaken decisions, but adherence to precedent can't stand alone as an interpretive theory because precedent does not decide many important cases).

Second, I like McGinnis and Rappaport's phrase "judicial updating" (and I wish they had always used it to the exclusion of the living constitution).  The living constitution is a unfortunate metaphor because it masks what is really happening in non-originalist constitutional adjudication: judges changing the meaning of the Constitution to suit modern circumstances.  "Judicial updating" captures the process exactly, and puts the spotlight on judges as the agents of constitutional change.  (To be sure, the Constitution is changed by other actors as well, including the executive, but in the modern U.S. system the judiciary is the primary agent).  Further, "judicial updating" captures the common element of a wide range of non-originalist theories of adjudication, including process-based theories, moral rights theories, pragmatic approaches, and common-law constitutionalism.  Though very different in their prescriptions, they share the central idea that judges should bring the Constitution into line with modern values and circumstances.

Third, McGinnis and Rappaport see the choice among these three approaches as a normative choice.  I agree.  I don't think anything compels any particular choice; the question is which will produce a better constitutional system.  In particular, I don't think that originalism can claim our allegiance simply from the way the Constitution was enacted, or what its ratifiers intended.  Thus, the book's project -- to show why originalism is the best way (in terms of modern outcomes) to interpret the Constitution -- frames the question exactly right.

And finally, there's this challenge (laid down on p. 205): "Living constitutionalism, in contrast [to originalism], has no plausible theory of why its process of constitutional interpretation likely leads to good results."  

Again, whether or not there is a response to this challenge, it seems exactly the right way to think about about it.  (And of course, the question for me -- or anyone -- isn't whether judicial updating would be the best approach if were the judge, but whether judicial updating is the best approach when the judge is as likely to be someone with opposite political and judicial intuitions from me).

Originalism and McCutcheon: Part II -- Possible Alternative Bases for Protecting Contributions

In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech.  In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom of association and (2) contributions as the speech of the contributor.  While I believe the arguments in my first post provide possible ways of protecting certain campaign contributions under the original meaning of the First Amendment, I am skeptical that either of these alternatives provide strong support for such protection. 

The Supreme Court has for at least the last half century recognized a doctrine of freedom of association.  People often speak about this doctrine as if it were a distinct right.  But an examination of the First Amendment reveals no express right to “freedom of association.”  Thus, it is not clear how the First Amendment protects freedom of association.  

It is possible that one might be able to derive some kind of freedom of association right from the original meaning of the First Amendment.  Some people argue that freedom of association derives from freedom of speech whereas others claim it comes from freedom to petition and assemble.  I could imagine an argument for freedom of association that is similar to the argument I made in my first post (for how one might derive protection for contributions for speech purposes).  But the point is that deriving this protection would itself require a good deal of work and is therefore unlikely at this point to provide the needed originalist support for constitutionally protecting contributions. 

Another possible basis for protecting campaign contributions is to view them as the speech of the contributor.  That is, the contribution expresses the contributor’s support for the candidate.  I am skeptical of this argument.  I used to question whether symbolic conduct was speech, but Eugene Volokh has provided evidence that certain types of symbolic conduct, such as burning people in effigy, constituted speech for purposes of the First Amendment.  But that does not mean all conduct did and I doubt that giving money is properly viewed as symbolic.  

(Cross posted at Liberty Law Blog)

Richard Primus: The Limits of Enumeration
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted The Limits of Enumeration (Yale Law Journal, Vol. 124, Forthcoming) on SSRN.  Here is the abstract:

According to a well-known principle of constitutional interpretation here identified as the “enumeration canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the enumeration canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time, and there is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. The enumeration canon should be set aside. This Article explains why setting aside the enumeration canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.


Originalism and McCutcheon: Part I: The Meaning of Abridging the Freedom of Speech
Mike Rappaport

Mike Ramsey writes that the opinions of the plurality and Justice Thomas in McCutcheon v. FEC do not employ an originalist methodology. Regarding Justice Thomas’s opinion, Mike writes:

The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn't the question an originalist asks.  The question is (or ought to be) whether "the freedom of speech" in the founding era included campaign contributions.  (I'm not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era's view makes analytic sense to us (or to any individual Justice) should be irrelevant.

Mike is certainly correct that one needs historical evidence and originalist analysis about this matter.  Unfortunately, there is relatively little written on the original meaning of the freedom of speech, with the principal exception in recent years of several pieces by Eugene Volokh.  (I have toyed with writing on the subject, but have not done so as of yet.)  It is difficult for the justices to write originalist opinions without such scholarship.  Thus, they either rely on doctrine, as Chief Justice Roberts’s plurality opinion does, or argue for a change in doctrine, assuming the general doctrinal framework, as Thomas’s concurrence does.

How would one analyze the question from an originalist perspective?  Let's put aside for now whether there is an enumerated power to support the legislation, an issue I plan to discuss in a future post.  Do the aggregate limitations at issue in McCutcheon abridge the freedom of speech?

This question obviously depends on the meaning of "abridging freedom of speech" at the time of the First Amendment (at least for actions of the federal government).

One immediate issue is that the giving of a gift, that is to be used for purposes of speaking, does not appear to be in the core of freedom of speech.  After all, it is not itself speech.  This is sometimes described as the issue of whether "money is speech." *

But the fact that a gift for speech purposes can be described as not involving speech does not mean it is not covered by the original meaning of the First Amendment.  It is very likely that a law prohibiting the sale of ink for newsprint or of paper used for writing manuscripts would have been deemed a law "abridging the freedom of speech or the press."  Similarly, a law that prohibited gifts that were earmarked for speech might very well have been deemed a law that abridged the freedom of speech.

The unconstitutionality of such a law might have been analyzed in two ways.  First, it might have simply been seen as a law “abridging freedom of speech.”  The original meaning of the phrase might have been this broad.

Some support for this conclusion might come from an examination of the laws that existed at the state level at the time.  It appears, although I haven’t done the research, that there were no restrictions on people donating money to others for purposes of speaking (other than laws against bribery).  This is a first step in arguing that such laws abridge freedom of speech.  It is only a first step, rather than the whole argument, because we do not know that the people at the time would have regarded such laws as abridging the right of freedom of speech (as opposed to simply being bad policy).  Still, if such laws did not exist, it would be important, because “the freedom of speech” is often thought to refer to a system of rights that existed at the time.  If there were no laws against such donations and if such donations were deemed to be beneficial, this would be some evidence for the unconstitutionality of such laws.

A second possibility might involve what Richard Epstein in his new book, The Classical Liberal Constitution, terms an anti-circumvention principle.  It is possible that there was an original interpretive rule that required interpreters to read prohibitions broadly to prevent circumventions of those prohibitions.  Thus, one might conclude that a law that prohibited gifts for speech purposes was unconstitutional, not because it technically constituted a restriction on speech, but because it was being used to circumvent the right to freedom of speech.  For example, Epstein cites (p. 48) the early case of Brown v. Maryland involving a Maryland tax on importers of goods.  Was this tax forbidden by the constitutional provision prohibiting state taxes on imports?  Epstein argues that it should be under an anti-circumvention principle.  To rely on this interpretive principle, one would of course need evidence that such a principle existed at the time of the Constitution.  But such a principle might have existed, especially given the true meaning of Marshall's statement that "it is a Constitution we are interpreting" – that is, that one should not expect details (such as circumventions) to be addressed in a brief document.

In the end, I do not mean to argue that laws against contributions that fund speech violate the original meaning.  Rather, I am simply exploring some of the possible ways that one might reach that conclusion.


* In this post, I assume that the aggregate limitation only restricts the giving of money for speech, but that is not clear, since the contributions might support activities which are not properly analyzed as speech.

(Cross posted at the Liberty Law Blog)

Keith Whittington Blogging at Liberty Law Blog
Michael Ramsey

Prominent Princeton political scientist and originalist Keith Whittington is blogging at Liberty Law Blog, with a number of posts of interest.

Here are two:

How I Learned to Stop Worrying and Love Substantive Due Process -- Sort Of

What Did John Marshall Accomplish in Marbury v. Madison?


Seth Barrett Tillman on Originalism and Campaign Finance
Michael Ramsey

Regarding my post on McCutcheon v. FEC, Seth Barrett Tillman writes:

I would think that prior to reaching the question of whether or not the First Amendment provides a defense in relation to a civil or criminal action brought under federal election law, a committed originalist would first want to entertain the question under what head of power does Congress have authority to regulate campaigns and elections conducted by state officials. Article I, Section 4, Clause 1 states:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators."

The language here is ambiguous to the modern reader. As an original matter, it is hardly clear that this clause empowers Congress (even, in conjunction with the Necessary & Proper Clause) to regulate conduct relating to campaign speech, as opposed to granting Congress authority over election machinery run by state officials. In a recent fulsome analysis by one well-regarded legal scholar, the author suggests that this clause (as an original matter) should not be read as encompassing all election-related activities. See Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Const. L. 1 (2010).

So even if an originalist has doubt about the reasoning in the plurality opinion or in Thomas' concurrence in McCutcheon, an originalist might be more than comfortable with the holding.

In my own publications, I have tried to show why Teachout-Lessig-Breyer's broad-ranging corruption-based rationale for congressional power over federal elections has to overcome substantial objections based on historical events contemporaneous with the enactment of the Constitution and during the Washington administration. See, e.g., Seth Barrett Tillman, Why Professor Lessig's Dependence Corruption is not a Founding-Era Concept, 13 Election Law Journal (forthcoming circa June 2014) (peer reviewed), http://ssrn.com/abstract=2342945, and National Constitution Center Constitution Daily (Oct. 23, 2013, 7:00 AM), http://blog.constitutioncenter.org/2013/10/why-lessigs-dependence-corruption-is-not-a-founding-era-concept/.

He adds:

One more article touching on the original meaning of the Times, Places, and Manner Clause is Bradley A. Smith, Separation of Campaign and State, 81 Geo. Wash. L. Rev. 2038 (2013) (citing Natelson's article). Smith is blogging on this paper over at the Volokh Conspiracy. See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/07/separation-of-campaign-and-state/.

Related:  Larry Lessig's thoughts on McCutcheon are here: Originalists Making It Up Again: "McCutcheon" and "Corruption."

Also:  Professor Smith has a further post up at Volokh Conspiracy: The Power to Regulate Elections, Not Campaigns.

Some Responses on McCutcheon and Campaign Finance Legislation (Updated)
Michael Ramsey

Michael Perry writes: 

I share your originalist misgivings about the plurality and Thomas opinions in McCutcheon. However, a reader of your most recent post on the matter might conclude that you have bought into the "expected applications" version of originalism, and I doubt you mean to do that!  So, you might want to say something further about the version of originalism you are bringing to bear in expressing your misgivings about the McCutcheon opinions.

I'm not as negative about the use of "expected applications" as many people (including, I think, Professor Perry) are.  I agree that the founding generation's expected applications of their language are not in themselves binding.  The question is the meaning of the text (which is what was adopted as law).  But -- in my view -- the original expected applications are evidence of the text's meaning.  They are not conclusive evidence.  But how members of the founding generation expected the text to apply to situations which they fully understood is evidence of what they thought the text meant; and evidence of what they thought the text meant is evidence of what its ordinary meaning was.

To take an example in my area of scholarship, suppose the question is whether Article II, Section 1's grant of "the executive Power" to the President gives the President powers in addition to those specifically listed in Article II, Sections 2 & 3.  If we find that important members of the founding generation expected the President to have powers not listed in Article II, Sections 2 & 3, that is evidence of what they thought "the executive Power" meant.  It's not conclusive (they might have been wrong about what executive power commonly meant), but we would need some good reason for thinking they were wrong.

In any event, I didn't mean to take a position on expected applications in writing about McCutcheon.  If I were exploring the campaign finance question, I would want to know first whether "the freedom of speech" had been understood to include contributions in the period before the Philadelphia convention, in England or America.  (This is the approach I've taken in thinking about executive power, for example).  It seems particularly useful in the free speech context, because the clause is commonly thought to refer to and incorporate a pre-existing idea of free speech.  As far as I know, no one has looked into this question (and neither the plurality nor the concurrence in McCutcheon did).

At the same time, though, I think it would also be relevant (not conclusive, and perhaps less persuasive) if people in the post-ratification era thought contributions were covered (or not covered) by the clause.  I would also want to know why they thought this (that is, what was their textual argument and how plausible was it), what institutional or personal reasons they had for thinking this, and how common and well-accepted it was.  I'm not sure if this inquiry is what some people reject as mere "expected applications," but I would not categorically reject it.

Another reader (wishing to remain anonymous) writes:

Regarding your blog post about McCutcheon, I agree with you that the Court did not seem to ask the key originalist questions: what does "the freedom of speech" mean as an original matter, and does that meaning encompass campaign contributions? I would note, however, that almost none of the Court's free speech jurisprudence appeals to original meaning. It seems the animating force behind the Court's jurisprudence in the post-WWII era has been John Stuart Mill, as opposed to any serious originalist inquiry.

I think that's largely right until recently.  But it may be changing.  More recent cases have taken a historical approach, asking (not always successfully) whether particular categories of speech (or their analogues) were or were not part of "the freedom of speech" in the founding era and thereafter.  I'm thinking here of cases such as Brown v. Entertainment Merchants, United v. Stevens and United States v. Alvarez.  The approach is not fully originalist but it has originalist overtones.  Will Baude had an excellent post on this a while ago.  At least, the Court seems to be signalling more interest in historical/originalist arguments (except, not in McCutcheon).


Michael Perry responds:

I agree with you about this:

"But -- in my view -- the original expected applications are evidence of the text's meaning.  They are not conclusive evidence.  But how members of the founding generation expected the text to apply to situations which they fully understood is evidence of what they thought the text meant; and evidence of what they thought the text meant is evidence of what its ordinary meaning was."

Of course, it is a different question altogether--as Gary Lawson has emphasized more than once--whether/when "what the text meant" should be the basis of constitutional decisionmaking. [Note: and I agree with that. --MDR] But with respect to the question "what the text meant," I concur in what you say in the passage above about expected applications:  probative, not conclusive.  

John Mikhail on the Necessary and Proper Clauses
Michael Ramsey

At Balkinization, John Mikhail is undertaking a series of posts on his important new article The Necessary and Proper Clauses (Georgetown Law Journal, forthcoming).  Here is his first.

My initial thoughts on the article (to which Professor Mikhail indicates he'll respond) are here.


John Ohlendorf on Northwest v. Ginsberg
Michael Ramsey

John Ohlendorf (author of this excellent article on preemption) send this comment on my prior post on Northwest, Inc. v. Ginsberg

I thoroughly agree, first, that Ginsberg looks like it came out right, and, second, that the fact that Congress can (and not infrequently does) include an express preemption clause in its legislation pretty well does in the frequent claim that preemption is just too complicated and fact-based for Congress to be effectively involved in the process, and accordingly that preemption must not have much to do with fidelity to Congress.

But regarding whether we can reliably infer from Congress's failure to include an express preemption clause that it meant to foreclose preemption (or foreclose anything but "impossibility" preemption), I had two additional thoughts.  First, Congress can (and not infrequently does) expressly bar preemption, as well, so in any given piece of legislation that contains neither a preemption nor a savings clause, it seems to me that we at best have two contrary implications that cancel each other out.  And second, Abbe Gluck and Lisa Bressman's path-breaking empirical study of Congress's drafting process is a pretty strong piece of evidence that, here as elsewhere, Congress is pretty thoroughly and blissfully ignorant of any stable set of preemption default rules the Court might be trying to craft. (Gluck and Bresseman actually cite preemption doctrine as a success story for Congressional knowledge of statutory interpretation defaults, but if you dig into their data, it turns out that Congress is pretty clueless).

Originalism and Campaign Contributions
Chris Green

I second Mike Ramsey's call for more originalist scholarship on campaign-finance issues, especially those related to campaign contributions. In my very limited investigation, I became intrigued by--but have not had the chance to track down to any depth--the intellectual background to Ex Parte Curtis, 106 U.S. 371 (1882), which upheld a ban on political contributions between subordinates and superiors within the federal government. The case was 8-1, with Justice Bradley dissenting.  The petioner made a very strong claim for the First Amendment right of all citizens, in the employ of the federal government or not, to contribute their money as they wished. After quoting the First Amendment, the petitioner claimed,

Indubitably, it would be a violation of this provision for Congress to enact that none of the 100,000 government officials should give anything to the Methodist church (for instance), though left free to hold such religious tenets as they pleased, and to preach and pray accordingly. The exercise of religion is not free, unless everyone can give of his means freely, without control, in its support, and to promulgate its doctrines.

In like manner, freedom of speech and of the press is abridged if every citizen cannot, at will, contribute to cause the speech to be made, that it may be disseminated, to accomplish the 'political purpose' for which it is intended.

Freedom of the press is not simply the right to print. It is, pre-eminently, the right to publish; which, necessarily, involves the right to receive aid, from whomsoever has the means and desire to give, that the publication may be effected.

So, the right to assemble includes the right to hire Faneuil Hall, or any other convenient place, in which to hold the meeting; and the right of every citizen who makes one of that assembly, or chooses to aid its object (political or other) to give toward the hire of the hall, and other expenses.

The court (opinion here) rejected Curtis's challenge to the statute, but without, I think, disagreeing with his analysis of contributions as a core element of political association and the freedom of speech. Rather, restrictions on contributions were allowed on the same grounds as restrictions on other activity by office-holders, such as restrictions on commercial activity by employees of the Department of the Treasury.  Justice Bradley's dissent, however, clearly agreed with Curtis that political contributions were part of the freedom of speech: 

Among the necessary and proper means for promoting political views or any other views are association and contribution of money for that purpose, both to aid discussion and to disseminate information and sound doctrine. To deny to a man the privilege of associating and making joint contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs. The freedom of speech and of the press, and that of assembling together to consult upon and discuss matters of public interest, and to join in petitioning for a redress of grievances, are expressly secured by the Constitution. The spirit of this clause covers and embraces the right of every citizen to engage in such discussions and to promote the views of himself and his associates freely, without being trammeled by inconvenient restrictions. 

1882 isn't, of course, 1791, but I would encourage others to investigate the extent to which these sorts of ideas pre-dated Curtis. When did these ideas first emerge, and what dissent did they engender, if any, and on what grounds? Inquiring originalist minds should want to know.

John McGinnis on Thickening Originalism
Michael Ramsey

At Liberty Law blog, John McGinnis: Thickening Originalism.  From the introduction:

The most important recent development in originalism has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law. This recognition has led to at least four different ways in which originalism has been thickened.

Stephen Vladeck: Military Courts and Article III
Michael Ramsey

Stephen I. Vladeck (American University - Washington College of Law) has posted Military Courts and Article III  (103 Georgetown Law Journal, 2015, forthcoming) on SSRN.  Here is the abstract:

The Supreme Court has held that non-Article III federal adjudication is permissible only in the three categories of cases in which the Court has previously allowed it — all cases before federal “territorial” courts; criminal prosecutions in military tribunals; and “public rights” adjudication before non-Article III judicial or administrative bodies. And although the Justices have repeatedly grappled with the outer bounds of this last category in recent years, they have generally accepted the first two as settled. Scholars have followed suit, with virtually all of the extensive literature in the field focusing on the specific scope of the public rights exception, or on the search for cross-cutting theories of Article III.

As a result, it has been decades since any concerted effort has been undertaken to rationalize the scope of the military exception — whether to the Constitution’s text or purpose or to more prudential considerations. And although the similarly neglected territorial courts have remained largely untouched over the past quarter-century, the same period has witnessed significant expansions in the scope of both court-martial and military commission jurisdiction to encompass offenses and offenders not previously thought to be amenable to military, rather than civilian, trials. Given these expansions, the litigation that they have provoked, and the tension they have placed upon the military exception, the time has long since passed for a reassessment of where and how military courts fit into our understanding of Article III — and the exceptions thereto.

This article undertakes such a reassessment. It demonstrates not only that these expansions cannot be reconciled with the underlying justifications for the military exception, but that they only further illuminate a series of deeper puzzles raised — and never answered — by the Supreme Court’s historical articulation of the military exception. As it explains, one way to resolve these puzzles — and to place the military exception on far sounder philosophical, analytical, and constitutional footing going forward — is to appreciate the long-neglected role of international law in at once authorizing and circumscribing departures from Article III. And although this conclusion has already started to emerge in litigation over the Guantánamo military commissions, its implications for courts-martial have not yet been appreciated.


Derek Muller: Scrutinizing Federal Electoral Qualifications
Michael Ramsey

Derek T. Muller (Pepperdine University - School of Law) has posted Scrutinizing Federal Electoral Qualifications (Indiana Law Journal, Vol. 90, forthcoming) on SSRN.  Here is the abstract:

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and scraps of judicial precedents in litigated cases. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people, and to Congress. It then concludes that while states do have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power to election officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.

(Thanks to Seth Barrett Tillman for the pointer).


Matthew Downer & Suzanna Sherry: The People or the Court
Michael Ramsey

Matthew P. Downer (Vanderbilt University - Law School) & Suzanna Sherry (Vanderbilt University - Law School) have posted The People or the Court: Who Reigns Supreme, How, and Why? (4 Journal of Law (1 New Voices) 31 (2014)) on SSRN.  Here is the abstract:

This Paper considers the normative and descriptive claims, proposed frameworks, and fundamental flaws in Barry Friedman’s "The Will of the People" and Larry Kramer’s "The People Themselves". Both authors endorse The People, rather than the Supreme Court, as the ultimate arbiters of constitutional meaning. Their historical narratives, however, could hardly clash more sharply: Friedman argues that The People seized their current authority to direct the Court, whereas Kramer argues that The People abdicated that authority after initially reigning supreme. In short, where Kramer sees a sharp decline in The People’s influence, Friedman sees a steady increase. To Kramer, today’s Court determines constitutional meaning. To Friedman, The People still reign supreme.

Descriptive conflicts aside, Friedman and Kramer both fail to adequately construct a workable framework to facilitate their popular constitutionalism. Specifically, neither sufficiently defines who constitutes The People nor what, if anything, constrains the substance of popular will. Even a Court dedicated to their normative ideal would have little clue how to proceed.

Finally, both suffer fundamental flaws. Kramer lacks the very faith he promotes. He grounds his normative ideal in The People’s trustworthiness. He urges The People to have enough faith in themselves to reclaim constitutional authority. Yet, he refuses to trust the decision The People already made — the decision to delegate some constitutional authority to the Court. Where Kramer lacks faith, Friedman lacks uncommon insight and persuasive evidence. His claim that the Court generally serves majoritarian ends is not new and should not surprise us. After all, justices only ascend to the Court by surviving a fundamentally majoritarian process. He then claims, but fails to persuasively demonstrate, that The People established and enforce the Court’s majoritarianism by threatening discipline and violent upheaval.


Northwest v. Ginsberg: "Real" Preemption
Michael Ramsey

The Supreme Court's other decision this week was Northwest, Inc. v. Ginsberg, holding that the federal Airline Deregulation Act preempted a state-law good-faith-and-fair-dealing claim by Ginsberg, whom Northwest expelled from its frequent flyer program.  (SCOTUSblog analysis by Ronald Mann here).  The Court (by Justice Alito) unanimously reversed the Ninth Circuit (Beezer, Trott and Rymer -- not a liberal panel, but relying on prior circuit precedent).

The result seems right to me, but I'm more interested in the ADA's preemption provision, which says:

a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

This is an express preemption provision, deliberately written broadly to, as the Court said in a prior case, "ensure that the States would not undo federal deregulation with regulation of their own."  My reaction is:  there's nothing hard about including such language in a statute, if Congress wants to, and the courts (other than the Ninth Circuit, apparently) don't have difficulty applying it.

Why, then, do courts also think it's necessary to ponder the "objects and purposes" of a federal statute to decide whether a state law -- though not directly in conflict -- is an "obstacle" to them?  As I've argued previously (see here and here), the "objects and purposes" part of preemption doctrine seems to depend on a conclusion that somehow Congress has difficulty expressing itself when it wants to displace state law, and so the courts must look beyond the text to find some unexpressed intent.  Perhaps that is true in some areas or on some occasions where the state activity isn't something Congress would anticipate.  But in the ordinary course, surely (a) Congress knows what states are doing or can easily anticipate what they might do, and (b) can write preemption language -- including broad language as in the ADA -- into the statute.

If that is so, then Congress' failure to write preemptive language into a statute seems to imply a decision not to preempt.  In any event, given the ease with which Congress can be clear and (if desired) sweeping, refusal to find unexpressed preemption would not place much of a burden on Congress (and it would get rid of a lot of contentious "objects and purposes" preemption cases).

(For some contrary views, see here [Daniel Meltzer] and here [John Ohlendorf].  But I have this one on my side).

Cleveland State University Symposium: "History and the Meaning of the Constitution"
Michael Ramsey

Cleveland-Marshall College of Law will host this year's Cleveland State University Law Review Symposium, entitled History and the Meaning of the Constitution, on April 18.  The speakers are:

Patrick Charles (U.S. Air Force historian), "History as a Guidepost to Interpreting the Constitution"

Sheldon Gelman (Cleveland-Marshall), "Court-packing and the 'Switch in Time': Recent Developments"

Scott Gerber (Ohio Northern), "Liberal Originalism: The Declaration of Independence and Constitutional Interpretation"

Lee Strang (Toledo), "Originalism's Promise and Limits"

(thanks to Patrick Charles and Scott Gerber; also noted at Legal History Blog).


McCutcheon v. FEC and the Silence of the Originalists
Michael Ramsey

The Supreme Court's decision yesterday in McCutcheon v. FEC (invalidating aggregate campaign contribution limits under the First Amendment) has little of originalist interest.  Chief Justice Roberts' plurality (for himself and Justices Scalia, Kennedy and Alito) purports to be a doctrinal application of the Court's prior decision in Buckley v. Valeo; Justice Thomas' concurrence would overrule Buckley, but not, so far as I can tell, on originalist grounds.  (SCOTUSBlog analysis by Lyle Denniston here).

The originalist silence is troubling.  I previously expressed some doubts about McCutcheon, and I still have them.  The core of the case (as with prior campaign finance cases) is the proposition that campaign contributions are speech.  Well, maybe they are, but that isn't obvious from the ordinary definition of speech, so I would think there should be some historical support for that conclusion; but none is offered.

Justice Thomas' opinion highlights the problem.  He argues that, because contributions are a form of speech, the Court in Buckley erred in treating restrictions upon them somewhat more leniently than restrictions on actual speech.  His argument, though, isn't that the language and understandings of the founding era establish this equivalence -- it's that equivalence can be demonstrated by analytic reasoning.  Here is the core of his argument (some citations omitted): 

As I have explained before, “[t]he analytic foundation of Buckley . . . was tenuous from the very beginning and has only continued to erode in the intervening years.” Shrink Missouri, supra, at 412 (THOMAS, J., dissenting). To justify a lesser standard of review for contribution limits, Buckley relied on the premise that contributions are different in kind from direct expenditures. None of the Court’s bases for that premise withstands careful review. The linchpin of the Court’s analysis was its assertion that “[w]hile contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U. S., at 21. But that “‘speech by proxy’” rationale quickly breaks down, given that “[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender’s message—for instance, an advertising agency or a television station.” Colorado I, supra, at 638–639 (opinion of THOMAS, J.). Moreover, we have since rejected the “‘proxy speech’” approach as affording insufficient First Amendment protection to “the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.” 

[The opinion continues in this vein for some time, addressing and rejecting other arguments for treating pure speech and contributions differently].

From an originalist perspective, this seems a mistaken exercise.  The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn't the question an originalist asks.  The question is (or ought to be) whether "the freedom of speech" in the founding era included campaign contributions.  (I'm not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era's view makes analytic sense to us (or to any individual Justice) should be irrelevant.

To illustrate, consider an analogous question: are pictures "speech" that is protected by the First Amendment? An originalist cannot solve that question by analytic reasoning, although no doubt there are various inconclusive analytic arguments why they are (or aren't).  The question should be how "the freedom of speech" was defined at the time of enactment.   If it included pictures, then they are protected; if it didn't, then they aren't.  So with campaign contributions.

Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.

Derek Muller on the Political Question Doctrine and the Guarantee Clause
Michael Ramsey

At Jurist, Derek Muller (Pepperdine Law):  Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning.  It begins:

A novel judicial opinion written on dubious legal grounds can serve as an empty vessel into which hopeful litigants everywhere pour hope. The Tenth Circuit's opinion in Kerr v. Hickenlooper—authorizing legislative standing and finding the Guarantee Clause justiciable—has done just that. But it is unlikely that its holdings will withstand further judicial scrutiny.

And from later on:

The Tenth Circuit's analysis—if affirmed on appeal—would have extraordinary consequences. It would create many more opportunities for individual legislators in each state—and perhaps those in both houses of congress—to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves—which has been a large part of most states' governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves—effectively ushering in a power shift away from the people—and their ability to enact policy objectives via popular vote—and towards the federal court system.

I agree (my prior thoughts on this case here).  The opportunities for judicial mischief opened up by this decision are jaw-dropping.

I also agree with Professor Muller (as a doctrinal matter) on the standing issue as well.  I mentioned this case's political question holding in my first-year Constitutional Law course and then asked my students what other doctrine might prevent a court from reaching the merits.  They almost literally leaped out of their chairs shouting "standing!" (which we had covered a few weeks earlier).  I then had to explain how the Tenth Circuit dealt with the standing issue.  This was not an entirely satisfactory discussion for any of us.


Lawrence Rosenthal: The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control
Michael Ramsey

Lawrence Rosenthal (Chapman University - School of Law) has posted The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control (Washington University Law Review, Forthcoming) on SSRN.  Here is the abstract:

Second Amendment jurisprudence was revolutionized by the Supreme Court's 2008 decision in District of Columbia v. Heller. Relying on what it characterized as the "original meaning" of the Second Amendment, the Court recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.

This article takes Heller’s conclusions about the original meaning of the Second Amendment as given, and assesses whether they have produced – or even are capable of producing – an authentically originalist Second Amendment jurisprudence. It assesses as well the implications of Heller for gun control. Some six years after the Court announced a new era in Second Amendment jurisprudence in Heller, the outlines of a new Second Amendment jurisprudence – one that contemplates surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role – are starting to come clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment’s preamble and its operative clause. It explores as well the constitutional case for a quite robust regime of gun control.


Ethan Bercot: The Use of History in the Supreme Court’s Establishment Clause
Michael Ramsey

In the current issue of the Georgetown Law Journal, Ethan Bercot (Georgetown University Law Center, J.D. expected 2014) has the note Forgetting to Weight: The Use of History in the Supreme Court’s Establishment Clause (102 Geo. L. J. 845).  Here is the abstract:

History matters. It especially matters in the context of interpreting the First Amendment’s Establishment Clause. Since nearly the founding of the republic, jurists and commentators have recognized that the historical understanding of the Establishment Clause should guide contemporary interpretation. James Madison, in one of his final statements on church-state relations, acknowledged that debate on the topic was properly illuminated by history. “[O]n this question,” he wrote in an 1833 letter, “experience will be an admitted umpire.”

Madison’s reliance on history is instructive not merely because of his influence on constitutional matters, but also because he wrote in an era that bears marked similarities to the modern debate on the Establishment Clause’s mean- ing. Madison’s letter was addressed to Reverend Jasper Adams, an Episcopal minister. Adams had recently delivered a sermon to his fellow clergymen arguing that religion, particularly Christianity, was a fundamental pillar of civil society and government and that religion could not flourish without government support. The sermon was largely a foray into a decade-old debate between Thomas Jefferson and Justice Joseph Story. Jefferson had attempted to dismantle the then widely held assumption that Christianity was a part of the received common law; Justice Story offered the main rebuttal. Relying on Story’s Commentaries, Adams argued that “establishment,” as used in the common law of England and the colonies, meant “the preference and estab- lishment given by law to one sect of Christians over every other.” Consequently, the reference to “establishment” in the First Amendment also had a non-preferential meaning. In Adams’s estimation, the disestablishment language in many states’ constitutions only intended to “disclaim all preference of one sect of Christians over another,” and the First Amendment “leaves the entire subject [of religion] in the same situation in which it found it.”


Ian Bartrum: Two Dogmas of Originalism
Michael Ramsey

Ian C. Bartrum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Two Dogmas of Originalism (Washington University Jurisprudence Review, vol. 7, iss. 2, forthcoming) on SSRN.  Here is the abstract:

In the early 1950s, Willard Quine mounted an influential attack on logical positivism and the effort to perspicuously distinguish “science” from “metaphysics.” Quine argued that positivism of this sort depends on two “ill-founded” dogmas: (1) Kant’s distinction between “analytic” and “synthetic” truths, and (2) the notion that meaningful linguistic statements must bear a logical relationship to sensory experience. Both dogmas, Quine argued, wrongly assume that we can successfully translate one linguistic term into another without semantic remainder. In short, there is more to language — and life — then logic.

In this piece, I argue that two similar — and equally ill-founded — dogmas underlie modern originalist interpretive theory. The New Originalists, particularly Larry Solum, have identified two essential commitments of modern originalism: (1) the “fixation thesis”, which asserts that constitutional text has a “semantic meaning”, which can be fixed empirically at the time of its ratification; and (2) the “constraint principle”, which asserts that this “semantic meaning” must constrain judicial efforts to construct the legal rules that will apply to modern controversies. Regarding (1), I argue that historical “fixation” (even if possible) is not in fact a significant part of the shared interpretive practice that gives the Constitution meaning. As to (2), I contend that reductionist efforts to legitimize constitutional interpretation in terms of a single foundational referent — history — tend to undermine the complexity and hard-won stability of our longstanding democratic traditions.


Will Baude on Originalism and Free Speech
Michael Ramsey

At Volokh Conspiracy, Will Baude: Should Free Speech Doctrine Use "Purely Historical Tests'? (responding to this post by David Han criticizing the Court's use of history in First Amendment law).  Professor Baude concludes:

... [A] test that looks to what the First Amendment “has permitted” “from 1791 to the present,” sounds like an attempt to at least approximate the original meaning of the constitutional provision. That has all of the usual benefits (and drawbacks) of versions of originalism. If the First Amendment struck a balance between the power to govern and the right to speak, neither Congress, nor Congress in cooperation with federal judges, should be the one to decide that the balance protects too much (creating new unprotected categories) or too little (eliminating traditional categories).

But at a broader level, it seems to me unlikely that the use of historical categories is doing nothing to restrain the Court’s ability to make broad normative judgments. I highly doubt that if asked to consider the “value” and “costs” of the speech itself — divorced from the historical rules of free speech — that most of them would vote in favor of dog-fighting videos, hateful funeral protests, or violent video games in the hands of children. That suggests that cases like [United States v.] Stevens actually function to express a value judgment of their own — that judges should faithfully implement constitutional law rather than making it according to their will. It seems to me our constitutional doctrine needs more of that, not less.

Andrew Kent: Citizenship and Protection
Michael Ramsey

Andrew Kent (Fordham University School of Law) has posted Citizenship and Protection (Fordham Law Review, Vol. 82, 2014) on SSRN.  Here is the abstract:

This symposium essay discusses the role of U.S. citizenship in determining who would be protected by the Constitution, other domestic laws, and the courts. Traditionally, within the United States both noncitizens and citizens have had more or less equal civil liberties protections (putting to one side the question of immigration law). But outside the sovereign territory of the United States, noncitizens have historically lacked such protections. This essay sketches the traditional rules that demarcated the boundaries of protection, then addresses the functional and normative justifications for the very different treatment of noncitizens depending on whether or not they were present within the United States.


More Statutory Originalism
Michael Ramsey

Following up on Chris Green's great post on statuory originalism in the Hobby Lobby argument, here's another example of statutory originalism in a recent case (by coincidence, also involving the Affordable Care Act).  In Halbig v. Sebelius, argued to the D.C. Circuit last week, the question is whether the Act allows tax subsidies on federally-established insurance exchanges when by its language it appears only to allow subsidies on exchanges established by the states.  (See discussion here).   As this report notes,

The Obama administration said Congress intended for everyone who qualified to get subsidies regardless of whether they were in state-run or federal exchanges.  [Full audio linked here, at How Appealing].

(More detail on the argument here, from Bloomberg, to similar effect).  

The point, again, is that statutory cases conventionally take an approach that -- if taken in constitutional cases -- would be called (often derisively) "originalism."  People who don't like constitutional originalism need either to reject the conventional view of statutory interpretation or to explain why statutes and constitutions are different.  (The latter project, of course, can be undertaken, but it's not self-evident).

Erwin Chemerinsky et al.: Cooperative Federalism and Marijuana Regulation
Michael Ramsey

Erwin Chemerinsky (University of California, Irvine School of Law), Jolene Forman (American Civil Liberties Union of Northern California), Allen Hopper (ACLU of Northern California), and Sam Kamin (University of Denver Sturm College of Law) have posted Cooperative Federalism and Marijuana Regulation (UCLA Law Review, 2015, Forthcoming) on SSRN.  Here is the abstract:

The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. Since 1996 twenty states have legalized marijuana for medical purposes and, in November 2013, Colorado and Washington legalized marijuana for adult recreational use. In the fall of 2013, the federal Department of Justice (“DOJ”) announced it will not prioritize enforcement of federal marijuana laws in states with their own robust marijuana regulations, specifying eight federal enforcement priorities to help guide state lawmaking. This announcement has been widely interpreted to signal that the federal government will not enforce its stricter marijuana laws against those complying with the new Washington and Colorado laws so long as the new state regulatory regimes effectively prevent the harms the DOJ has identified as federal priorities. Yet even if the federal government voluntarily refrains from enforcing its drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound. Banks, attorneys, insurance companies, and potential investors concerned about breaking federal law are reluctant to provide investment capital, legal advice, or numerous other basic professional services necessary for businesses to function and navigate complex state and local regulations. And consumers face the risk of severe legal consequences.

The Article explains why, even if it wished to do so, the DOJ could not simply shut down all state marijuana legalization efforts using the federal government’s preemption power under the Supremacy Clause. We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states. The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria – criteria along the lines that the DOJ has already set forth – to opt out of the federal Controlled Substances Act (“CSA”) provisions relating to marijuana. In opt-out states certified by the Attorney General, state law would exclusively govern marijuana-related activities and the CSA marijuana provisions would cease to apply. Federal agencies could continue to cooperate with opt-out states and their local governments to jointly enforce marijuana laws, but state law rather than the CSA would control within those states’ borders. Equally important, nothing would change in those states content with the status quo under the CSA. This proposed approach embodies the best characteristics of federalism by allowing some states to experiment while maintaining a significant federal role to minimize the impact of those experiments on other states.


John Mikhail: The Necessary and Proper Clauses (with my comments)
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted The Necessary and Proper Clauses (Georgetown Law Journal, Vol. 102, No. 4, 2014) on SSRN.  Here is the abstract:

The Article's main purpose is to provide a new and more accurate account of the origins of the Necessary and Proper Clauses. I refer to the Necessary and Proper “Clauses” rather than to the Necessary and Proper “Clause” to emphasize that the relevant constitutional text is comprised of three distinct provisions, only the first of which concerns the enumerated powers in Article I, Section 8:

1.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

2.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States”

3.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in . . . any Department or Officer [of the United States]”

James Wilson was probably the most skilled and accomplished lawyer at the constitutional convention, and he appears to have devoted great care and attention to drafting these clauses for the Committee of Detail. Just why he drafted these clauses in this manner and how they influenced the subsequent development of American constitutional law are the primary subjects of this Article and of the broader research project of which it forms a part.

Among other things, the Article contends that the second Necessary and Proper Clause is particularly important for understanding the basic design of the Constitution. Unless it is treated as surplusage, this second clause indicates that the Constitution vests powers in the Government of the United States that are not merely identical or coextensive with the powers vested in Congress or other Departments or Officers of the United States. Because these additional powers are not specified or enumerated in the Constitution, they must be understood to be implied or unenumerated powers. The existence of implied or unenumerated powers is thus explicitly recognized by the precise text of the Constitution, much like the existence of unenumerated rights. Moreover, these “other powers” are distinct from the powers encompassed by the first Necessary and Proper Clause, which by its terms are limited to whatever instrumental powers are necessary and proper to carry into effect the “foregoing powers” vested in Congress by Article I, Section 8.

The second Necessary and Proper Clause was intended to achieve precisely this objective: to declare and to incorporate into the Constitution the doctrines of implied and inherent powers that Wilson, Robert Morris, Gouverneur Morris, Alexander Hamilton, and other prominent nationalists at the convention had advocated throughout the previous decade, and that Wilson, in particular, had defended on behalf of the Bank of North America in 1785. Recent scholarship on the Necessary and Proper Clause has tended to skip over this preconvention history, but it is essential for understanding why the nationalists were so committed to implied powers, and how they managed to ensure that the Constitution delegated both express and implied powers to the United States.

Part I introduces the central theme of the Article by distinguishing the main components of the Necessary and Proper Clause and by recalling some of the distinct roles these provisions played during the formative era of American constitutional law. Part II explores the intellectual origins of these provisions by examining the genesis of Resolution VI of the Virginia Plan and by tracing some of the important links between its key legislative proposal and the political philosophy of the nationalists. Part III takes a close look at the drafting history of the Necessary and Proper Clause in the Committee of Detail, focusing on the contributions of Wilson, which previous scholarship has frequently ignored. Drawing on extensive historical research, Part IV examines the eighteenth-century origins of the phrases “necessary and proper” and “all other powers,” demonstrating inter alia that these were familiar features of the sweeping clauses in corporate charters and other legal instruments with which Wilson and other framers were intimately acquainted.

In sum, the Article contends that the basic design of the Constitution and the influential debates over the scope of federal power that occurred during the founding era cannot be understood properly unless one recognizes that there are three Necessary and Proper Clauses, not merely one or two. The framers could easily have drafted a Necessary and Proper Clause that gave Congress the authority “to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other powers vested by this Constitution in any Department or Officer of the United States.” The fact that they did not do so requires us to come to grips with the exact language they did adopt, and to ask a simple but penetrating question that goes to the heart of the framers’ constitutional design: What powers are vested by the Constitution in the Government of the United States? Whatever answer is given to this question, it cannot be adequate or sufficient merely to point to the enumerated powers of Congress in Article I, Section 8; the other powers vested by the Constitution in the Departments or Officers of the United States; and the instrumental powers to carry all of these powers into execution, which are given to Congress by the Necessary and Proper Clause. To remain faithful to the text, structure, and history of the Constitution, one must also provide a convincing account of the “other powers” vested by that Constitution in the Government of the United States, to which the second Necessary and Proper Clause refers.

(Thanks to Seth Barrett Tillman for the pointer).

I heard an earlier version of this paper presented at last year's originalism works-in-progress conference in San Diego.  It's an interesting project that discusses some underemphasized history and raises an important textual point about the necessary and proper clause (or, as Professor Mikhail rightly observes, the three necessary and proper clauses).  But I had some doubts then, and I still do.  In particular:

(1) The claim that the second part of the clause is redundant without Professor Mikhail's explanation seems overstated.  Obviously there are powers given to the U.S. government that are not "foregoing powers".  To pick just a few examples, the President and the Senate together have the power to make treaties and appointments (Art. II); Congress has power to establish inferior courts (Art. III); Congress has power to make regulations regarding U.S. property (Art. IV); the "United States" has the obligation -- and thus one presumes the power -- to guarantee to each state a republican form of government (Art. IV).  So the second part of the clause isn't redundant of the first part.

Is the second part of the clause redundant of the third part (powers given to a "Department or Officer")?  Perhaps.  But that conclusion depends on thinking that "Department" includes (a) the President; (b) the President combined with the Senate; (c) Congress acting with the President's approval; (d) the Supreme Court; and (e) in the guarantee clause, at least, "the United States."  It's not obvious, to me anyway, that "Department" unambiguously had such a broad sweep, although it was used broadly in some contexts.  "Department" is used twice in other parts of the Constitution -- in the opinions clause, where it appears as "executive Departments" and means subdivisions of a branch, and in the inferior officers appointments clause, where -- whatever it means -- it does not seem to refer to a combination of branches as would exercise, for example, the treatymaking power.

Thus, for example, it seems to me that if the necessary and proper clause had only its first and third provision and not the second, one could easily argue that it did not include the power to support the treatymaking power, because the treatymaking power is not (a) a "foregoing power" nor (b) exercised by any single Department or Officer.  As a result, I'm inclined to see the whole clause as a catchall -- akin to saying powers of individuals, of parts of the government, or of the government as a whole -- just to be sure all delegated powers are included, but not with any greater significance.

This is a crucial point, because the paper rests fundamentally on the proposition that the second part of the clause is redundant; I don't think it is (or at least, I think it is an understandable belt-and-suspenders provision).  I agree that the clause is awkwardly phrased, because presumably it could just have said "all powers granted by this Constitution."  But awkward phrases (or stylistic flourishes) don't amount to troubling redundancies.

(2) Even if the second part of the clause is redundant, I don't see how Professor Mikhail's argument solves the problem.  If the national government has inherent or implied powers, those powers must vest in some part (or parts) of the government -- just as delegated powers do.  For example, if there is an inherent power to pass legislation in the national interest (chartering a bank, for example), that power doesn't vest in the undifferentiated "Government of the United States," but rather in Congress (with the President's approval or by a veto override).  In that sense, it's no different from delegated powers of Congress that are not "foregoing power[s]" (for example, Congress' Article IV powers).  If Congress is a "Department," then the idea of inherent powers does not solve the redundancy.  (If Congress isn't a Department, then there isn't any redundancy in the first place).

(3) Professor Mikhail may be right that James Wilson thought that in drafting the clause he had done something clever to preserve the idea of inherent national powers.  I agree that Wilson likely believed in inherent powers (and perhaps Hamilton and others did as well).  The idea of inherent powers had enough currency that the antifederalists were openly afraid of it; these fears almost derailed ratification at several points and ultimately led to the Tenth Amendment.  But the question is not what Wilson subjectively believed -- it's whether the phrasing of the clause established a public meaning in support of inherent national powers.  

On that point, the evidence seems extremely thin.  Madison and others repeatedly argued that the national government had only defined and delegated powers.  By time the Tenth Amendment was proposed and adopted, it was regarded as stating a truism contained in the original document.  I'm not aware that anyone pointed to the second part of the necessary and proper clause in particular during any of this debate as a source of unenumerated powers.  So even if Wilson privately read it that way, I don't see how that establishes its public meaning.

In sum, it's an excellent and provocative paper, but I'm not persuaded.  (I am persuaded, though, that the phrasing of the clause is worth additional thought.)


Responding to Tim Sandefur
Mike Rappaport

Over at his blog, Tim Sandefur asks some questions about my new book with John McGinnis, Originalism and the Good Constitution. While I can’t answer all of his questions in a single post, let me address his first two basic points. Start with his first point:

What, then, do we do about existing precedent that diverges from the original meaning? A die hard Originalist might say, Jettison this precedent. But Rappaport and McGinnis don’t. They argue that where precedent diverges from the original meaning, we should continue to follow such precedent if overruling it would impose “enormous costs,” and where the existing precedent is “entrenched,” meaning that a strong consensus supports that precedent today.

My question is this: this escape hatch from the apparent requirements of Originalism is not based on anything intrinsic to the Originalist commitment. It’s ordinary cost-benefit analysis, and notably contemporary in its focus. What connection is there between the Originalist notion of fidelity to the original language, and this apparent permission to escape from that commitment?

In our view, the original meaning of the Constitution allows precedent. It does not, for the most part, specify what that precedent is. Instead, it treats precedent rules as a matter of common law that is revisable by congressional statute. Since precedent rules can be enacted by statute, we discuss what we believe would be the best precedent rules based on our preferred normative approach – welfare consequentialism (a form of utilitarianism). We do not justify this precedent approach based on the Framers’ values, but there is no need to do so. Ordinary legislation today does not have to follow the Framers’ view about what is good legislation (so long as it is constitution). Similarly, precedent rules do not have to follow the Framers’ view about precedent.

Now consider his second question. He writes: In a Northwestern Article, McGinnis and Rappaport

argue in favor of Originalism, not from the premise that we’re obligated to follow the original meaning, but because doing so produces the best results, overall. They are therefore not really categorically distinct from their Living Constitution opponents, but instead stand in relation to those opponents as the Rule Utilitarian stands in relation to the Act Utilitarian. The Living Constitutionalist says to reach a decision based on the best outcome—like the Act Utilitarian—while Rappaport and McGinnis say to follow an interpretive methodology that will tend to reach the best outcomes—like the Rule Utilitarian. They aren’t really normative originalists at all. My question: is that correct?

The answer is that we are originalists, but we seek to justify that originalism with a normative argument. I don’t really understand what Sandefur means by being a real “normative originalist.” You might favor following the original meaning, because you believe it is the law; or because you believe it promotes justice; or for a variety of other reasons. But then you favor the original meaning for a reason, and that reason is your normative premise. For us, our normative premise is welfare consequentialism and that is how we justify following the original meaning.

(Cross posted at Liberty Law Blog)

Lexmark v. Static Control: The End of Prudential Standing?
Michael Ramsey

In Tuesday’s Supreme Court decision in Lexmark v. Static Control – largely overlooked amid the Hobby Lobby coverage – Justice Scalia (for a unanimous Court) struck a major blow against the nebulous and ill-grounded doctrine of “prudential standing.”  The case is a federal statutory (Lanham Act) claim for false advertising between two makers of printer ink cartridges; the district court and the court of appeals differed on whether plaintiff Static Control was within the “zone of interest” of the Lanham Act, a question that both courts thought implicated the doctrine of prudential standing.  Justice Scalia set them straight:

The parties’ briefs treat the question on which we granted certiorari as one of “prudential standing.” Because we think that label misleading, we begin by clarifying the nature of the question at issue in this case.

From Article III’s limitation of the judicial power to resolving “Cases” and “Controversies,” and the separation­-of-powers principles underlying that limitation, we have deduced a set of requirements that together make up the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). … Lexmark does not deny that Static Control’s allegations of lost sales and damage to its business reputation give it standing under Article III to press its false­advertising claim, and we are satisfied that they do.

Although Static Control’s claim thus presents a case or controversy that is properly within federal courts’ Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control’s claim on grounds that are “prudential,” rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that “a federal court’s obligation to hear and decide” cases within its jurisdiction “is virtually unflagging.” Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) …

In recent decades, however, we have adverted to a “prudential” branch of standing, a doctrine not derived from Article III and “not exhaustively defined” but encompassing (we have said) at least three broad principles: “‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalizedgrievances more appropriately addressed in the representative branches, and the requirement that a plaintiff ’s complaint fall within the zone of interests protected by thelaw invoked.’” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 12 (2004) …

 … [However,] [w]hether a plaintiff comes within “the zone of interests” is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff ’s claim. …

In sum, the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under §1125(a). In other words, we ask whether Static Control has a cause of action under the statute. That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control’s suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created merely because “prudence” dictates.

This is a welcome clean-up of standing doctrine that’s exactly right on rule-of-law grounds.  A constitutional statute is by Article VI the supreme law of the land, binding on the courts.  If such a statute authorizes a claim, the courts must apply the statute.  The Court’s invention of nebulous non-statutory “prudential” barriers to a congressionally authorized suit lets the Court pick and choose which claims to hear without any basis for such a power in either the Constitution or laws made “in Pursuance thereof.”

Is Lexmark the end of prudential standing?  Quite possibly.  Justice Scalia added this footnote:

The zone-of-interests test is not the only concept that we have previously classified as an aspect of “prudential standing” but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits “claiming only harm to [the plaintiff ’s] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574 (1992). While we have at times grounded our reluctance to entertain such suits in the “counsels of prudence” (albeit counsels “close[ly] relat[ed] to the policies reflected in” Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982), we have since held that such suits do not present constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–346 (2006); Defenders of Wildlife, supra, at 573–574. They are barred for constitutional reasons, not “prudential” ones. The limitations on third-party standing are harder to classify… This case does not present any issue of third-party standing, and consideration of that doctrine’s proper place in the standing firmament can await another day.

After losing both generalized grievances and zones of interest, prudential standing seems at most to contain limits on third-party-standing, which I think (and Scalia seems here to hint) are properly Article III questions as well.  (Perhaps we can now get this malign and confusing doctrine out of the Constitutional Law casebooks.)

Lexmark parallels the Court’s similarly welcome cut-back of the political question doctrine in Zivotofsky v. Clinton (discussed here).  Again, the political question doctrine (in its pre-Zivotofsy version) allowed courts to invent reasons not to hear a case – reasons that lacked foundation in either a statute or the Constitution but instead arose from the court’s own intuitive sense of whether hearing the case would be a bad idea.

Judicial conservatives tend to like these doctrines, but they shouldn’t.   Doctrines that overtly allow courts to dismiss claims on grounds of judicial convenience undermine the rule of law, even if (in a particular case) they might allow a court to get rid of a claim judicial conservatives don’t like. And these doctrines are inconsistent with the Constitution’s original meaning, which grants no power to the courts to limit the effect of Article VI’s supreme law.