06/30/2016

Eric Segall Responds on Scalia and Snake Oil Originalism
Michael Ramsey

In response to this post, Eric Segall comments:

Thanks for engaging my work on The Originalism Blog, but I have to say this time you didn't address my main point and didn't summarize the piece accurately.

What made Scalia a snake-oil salesman was the combination of his originalist and judicial deference rhetoric. It is simply not enough for there to be a tie when it comes to outcomes based on originalist sources given Scalia's constant "committee of nine lawyers" rhetoric. My accusation stems from both sides and you only dealt with one.

I could list legions of cases where good faith originalists could disagree about the validity of a law, but a judge who talked the talk of deference like Scalia did would have had to say a tie goes to the law.

Even if I'm wrong, you should have addressed this argument.

Fair enough, I did not address the deference point (although I leave it to readers to decide whether Professor Segall's original post was more about Scalia's nonoriginalism or Scalia's nondeference).  Here is what Professor Segall said about Scalia and deference:

One scholarly response to the argument that Scalia constantly voted in a non-textualist, non-originalist way through huge swaths of constitutional law is that in many of the areas of law listed above, there are plausible, even if not persuasive, originalist arguments in support of Scalia's votes (arguments excavated by extremely motivated law professors, not Scalia himself). 

Even if there are such arguments, which I seriously doubt, such speculations were not available to Scalia, who also spent much of his career arguing that life-tenured federal judges should not invalidate decisions by other political actors absent clear text or strong historical evidence. For some so-called New Originalists like Randy Barnett or Ilya Somin, who openly admit that they believe in strong judicial review by, in Scalia's words, "a committee of nine unelected lawyers," maybe reasonable historical evidence may be enough to sustain judicial aggression. But Justice Scalia never argued for that position. Instead, in most of the areas of law listed above, he simply either ignored or mischaracterized historical evidence while often stridently accusing other Justices of playing fast and loose with the rules of the constitutional game.

I think this is partly true and partly not.  I agree that Scalia's democracy rhetoric sits a little uncomfortably with his originalism.  Pure democracy and originalism are not allies, in the sense that originalism envisions unelected judges overturning the enactments of modern majorities.  I think, though, there is less inconsistency here than appears at first.  Scalia's criticism was that "nine unelected lawyers" should not make social policy (that being a job, in our separated-powers system, for the elected branches).  However, he did think that the "nine unelected lawyers," acting as a court, should undertake a court's role of applying enacted law, according to its text and original meaning, even if that meant overturning democratic acts.  They key, to him, was whether the "unelected lawyers" were functioning as a court or as a committee to determine social policy.  Now Professor Segall might respond that in fact Scalia also acted as a committee to determine social policy (but that returns us to the question whether Scalia was dishonest, the subject of my original post).

I also agree that Scalia can be criticized for not articulating or implementing a burden of proof for showing the Constitution's original meaning.  Suppose one concludes that there are two possible original meanings of the text on a particular issue, one of which would invalidate a statute and one would not.  If one further concludes that the meaning leading to invalidation is 51% likely (versus 49% for the other), should a judge invalidate the statute?  Practitioners of originalism need an answer to this question.

It's not obvious to me, though, that the answer is the judge should defer; nor is it obvious to me that Scalia would necessarily have to reach that conclusion.  Scalia opposed judges making social policy.  Invalidating a law based on a 51% likelihood of unconstitutionality isn't making social policy (assuming unconstitutionality is based on original meaning).

Nonetheless, I agree it's a problem  that Scalia (to my knowledge) never  comprehensively addressed this point.  If he accepted judges invalidating statutes based on very close questions of original meaning, he might have admitted more of the tension between originalism and democracy.  If he had expressly demanded a higher standard for invalidity, he might have further developed his arguments in the areas Professor Segall rightly criticizes (such as affirmative action).

As an aside, the article Professor Segall links above -- Gil Seinfeld, The Good, the Bad, and the Ugly: Reflections of a Counterclerk in the Michigan Law Review First Impressions -- is an outstanding, balanced and entertaining critique of Justice Scalia.  On affirmative action, Professor Seinfeld also says this:

I don’t mean to intimate by any of this that the Justice was not a man of principle. I think he was. Nor do I mean to suggest that he was meaningfully worse along this dimension than many of his colleagues. I don’t think that’s true. What I think is that, as is true of many men and women of principle and of many other able and respectable jurists, Justice Scalia’s instincts about what was right and what was wrong sometimes overwhelmed him and caused him to discard the principles that he applied honorably in many other contexts (including cases in which those principles commanded results he disfavored).

Michael Perry on Fisher v. University of Texas
Michael Ramsey

Michael Perry (Emory University School of Law) has posted Fisher v. University of Texas at Austin: An Imagined Opinion, Concurring in the Judgment on SSRN. Here is the abstract:

In Fisher v. University of Texas at Austin, decided on June 23, 2016, the Supreme Court of the United States ruled that the race-based admissions system at issue in the case did not violate the Equal Protection Clause. Whether the ruling was correct is one question; whether, even if the ruling was correct, the reasoning was correct is, of course, a different question.

This brief paper is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the judgment. Justice Nemo believes that her concurring opinion is in alignment with the theory of judicial review elaborated and defended in this paper: Michael J. Perry, “A Theory of Judicial Review,” http://ssrn.com/abstract=2624978.

For another concurring opinion by Justice Nemo — her concurring opinion, last June, in the same-sex marriage case — see Michael J. Perry, “Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment,” http://ssrn.com/abstract=2624022

06/29/2016

Eric Segall on Justice Scalia’s “Snake Oil Originalism" (with my comments)
Michael Ramsey

Eric Segall at Dorf on Law: Supreme Ghosts, Snake Oil Originalism, and the 2015-2016 Term.  A central point is that Justice Scalia did not actually practice originalism:

Justice Scalia was of course best known for his frequent rants about how important text and history (read original meaning) are to judges who have to decide constitutional law cases. But the truth is that he did not come close to voting in an originalist fashion during his long career. I have set forth the proof of this accusation in long version here, and Judge Posner and I sketched it more briefly on this blog here

In the areas of affirmative action, freedom of speech generally and campaign finance reform specifically, federalism, gun rights, takings, standing, and voting rights, among many others, Justice Scalia voted to strike down laws where neither the text nor the original meaning behind the text supported his votes. Scalia once said he was a "feint-hearted" [sic] originalist but later walked that back and then said he was an "honest" originalist. The truth is that he was a snake-oil originalist who sold a product he did not use himself.

Professor Segall points to affirmative action as one place where Justice Scalia did not take an originalist approach:

One of the most important cases this term demonstrates Scalia's hypocrisy. In his thirty years on the bench, Justice Scalia voted to strike down every affirmative action plan he ever saw, and no doubt he would have done the same in Fisher v, Texas. Scalia always argued that the Constitution is color-blind, and thus the government using racial criteria to foster diversity and equality was constitutionally indistinguishable from the government using racial criteria to completely exclude an entire race of people from a government benefit. But at no time in his career did Scalia try to justify this strong policy preference with reference to the original meaning of the text of the Fourteenth Amendment. Given the ambiguous text of the that Amendment (which does not mention race) and the fact that the Amendment did not stand for color blindness from 1868-1954, and given Scalia's dislike of the "living Constitution," when exactly did the meaning of the 14th Amendment change? Scalia never provided an answer, which would be fine for "living constitutionalists" but not for someone who thinks the Constitution is frozen in time.

Finally, a critique of Justice Thomas’s Fisher dissent:

Justice Thomas, who seemed very lonely this term often dissenting all by himself, ended his dissent in the abortion case Monday with a quotation from the man whose shadow hung over the term so darkly: "The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application." The constant finger pointing and chest thumping by Scalia and Thomas over the years that they applied "law" but the other Justices were doing something else marginalized both of them throughout their careers. Constitutional law is now and has always been about the clash of values. Maybe Thomas wouldn't have been so lonely this term, and maybe Scalia would have authored a few more majority opinions, if they had been more transparent about their own values.

My reaction: I'm not unsympathetic to the claim that Scalia was not as faithful to originalism as he might have been.  But Professor Segall seems to overstate his case in several respects.  First, it seems obvious that Scalia used originalism a lot of the time, even if not all the time.  So the claim that he "sold a product he did not use himself" is clearly off the mark.  The question is whether he used it all the time, or just much of the time.  Realtedly, Scalia believed in stare decisis to an extent, so sometimes when he appeared to be nonoriginalist he may simply have been accepting nonoriginalist precedent (for example, he accepted that the equal protection clause applied to the federal government).  One could say he selectively picked his precedents, but that's a different claim.

Still, Segall may be right that Scalia did not firmly ground all of his decisions in originalism (or precedent).  That claim needs to be examined more closely, though.  I would think in terms of three categories: (a) cases where Scalia offered an orignalist justification for his view, but that justification seems unpersuasive to some people; (b) cases where Scalia did not offer an originalist justification but it's not obvious what the originalist answer is (because originalist materials in the area are underexamined or because the issue is not easily understood in originalist terms); and (c) cases where a consensus originalist answer is evident but Scalia nonetheless took a nonoriginalist approach to reach the opposite conclusion.  (A fourth category is where he followed strong nonoriginalist precedent).

To make his claim stick, Professor Segall needs to show a large number of cases in category (c).  But I'm not sure there are any cases in that category.  For example, gun rights -- one of his main examples -- is clearly in category (a).  Heller is an originalist opinion.  Professor Segall may not agree with it, but that doesn't make it wrong, and more importantly that doesn't make it dishonest.  I agree that Scalia did sometimes get the originalist answer wrong (in my view) (see here, for example, sharply criticizing his view in Bond v. US), but I don't see any reason to suppose bad faith.  Originalists disagree on hard questions.

More troublesome, to my mind, are the various issues on which Scalia took a strong view without offering a complete originalist (or precedent-driven) justification.  Affirmative action seems to fall in that category.  Professor Segall is right that Scalia never gave a complete originalist defense of his view, seeming instead to rest on what he thought was the obvious meaning of equality as colorblindness.  However, Scalia was not manifestly wrong on this point; originalist scholarship on the equal protection clause generally, and on affirmative action specifically, remains unsettled and incomplete.  I think he can be fairly charged with making too simplistic a conclusion, but that seems quite different from bad faith.  (A number of Professor Segall's other examples seem to belong in this category as well, and I would add a few more that he doesn't mention).

Thus the key to a charge of bad faith is the third category: where Scalia chose a nonoriginalist meaning over a consensus originalist meaning (without a basis in nonoriginalist precedent).  But are there any such cases?  I invite suggestions.

06/28/2016

Evan Bernick: Reason's Republic
Michael Ramsey

Evan Bernick (Institute for Justice) has posted Reason’s Republic (NYU Journal of Law & Liberty) on SSRN. Here is the abstract:

Judicial review matters. Although a number of scholars have endeavored over the years to demonstrate that the courts offer only a “hollow” hope to advocates of significant social change, courts remain the last hope of legal redress for victims of unconstitutional government conduct. To amend Justice Robert Jackson’s oft-cited opening statement at the Nuremberg trials, judicial review can serve as a means of ensuring that power offers a tribute to reason — that particular exercises of government power are consistent with the rational principles set forth in our Constitution. When judges fail to give effect to constitutional limits on government power, people may be deprived of their liberty, their property, and even their lives arbitrarily — for no better reason than that the holders of political power will it to be so. Given the gravity of the stakes, it is of the utmost importance that judicial review be performed properly. And it is unsurprising that no end of accounts of how judicial review should be performed have been put forward.

Professor Tara Smith’s new book, Judicial Review in an Objective Legal System [Ed.: available here], stands out in a crowded field because of the boldness of its central claims and the elegance and persuasiveness of the arguments she advances in support of them. Smith contends that objectivity in the performance of judicial review is both possible and necessary — that judges can and must arrive at accurate knowledge of what our Constitution means and hold government officials to its terms. Absent objectivity, Smith argues, the rule of law established by the Constitution gives way to the rule of men: Government power is put in the service of will rather than reason, and might trumps individual rights. Drawing upon the twin disciplines of epistemology and political philosophy, Smith synthesizes an approach to judicial review that is tailored to ensure that we live under “a government of laws, and not of men.”

In this essay, I will begin by summarizing the principal features of Smith's account of judicial review; proceed to consider several potential objections to her proposed approach; and conclude by applying Smith’s approach to three areas of constitutional law that are in desperate need of a dose of objectivity.

06/27/2016

Lawrence Solan on Public Meaning Originalism
Michael Ramsey

Lawrence Solan at Balkinization: The Corpus and the Constitution

Professor Solan begins with news out of Brigham Young University:

Linguists at Brigham Young University are launching a 100 million word corpus of general Founding-era English, which it has named “COFEA.”

A recent essay in the Yale Law Journal Forum by Associate Chief Justice Thomas Lee of the Supreme Court of Utah and his two law clerks (James C. Phillips and Danial M. Ortner) introduces the project as a potentially useful tool in the area of “public meaning originalism,” sometimes called “the new originalism.”  (essay here). 

He then notes the difficulty of interpretation using the corpus:

The difficulty, which both sides recognize, is the extent and nature of interpretive decisions that must be made after consulting the corpus.  Having a corpus of English from the founding-era is akin to having access to all of the file cards amassed by a lexicographer of the time, assuming the lexicographer to have accumulated large numbers of examples of the words that the dictionary will define. Sometimes that information will be sufficiently uniform to tell future generations how a word was understood at the time and what those who ratified the Constitution likely had in mind when they voted.  At other times, though, the corpus will reveal a range of meanings for a word, some closely related, some seemingly distant from one another.  Whether one chooses the “ordinary,” prototypical meaning of a term, or a more expansive sense of that word’s meaning for purposes of constitutional analysis is not a neutral decision.  For example, how much attention should courts pay to the statistical distribution of “keep and bare arms” over military and non-military contexts?  Such decisions are not linguistic.  They are, rather, legal or political.

Then, the advantages: 

At least when it comes to the contemporary laws, reviewing a corpus of general English appears to be a much more promising practice for learning about ordinary usage than does the current judicial trend of arguing about which dictionary best captures the word’s ordinary sense.  One reason for this is that the interpretive issues in play in most difficult statutory cases are more subtle than those on which the lexicographer is likely to focus in drafting a definition for broad, general usage.

And, in conclusion:

Whether or not one practices “original public meaning originalism” as a method of constitutional interpretation, constitutional analysts of all intellectual and political stripes pay at least some attention to how constitutional language was understood in the eighteenth century.  At the very least, having more information about this understanding should help to focus debate by providing information about the interpretive choices at the time of the founding.

06/26/2016

Chris Land: The Cornerstone of the Origination Clause
Michael Ramsey

Chris Land (University of Minnesota School of Law, student) has posted Ways and Means Resolutions: The Cornerstone of the Origination Clause on SSRN. Here is the abstract:

The Origination Clause is a modern constitutional backwater, even though it was one of the most fiercely debated topics at the 1787 Constitutional Convention and a centerpiece of British parliamentary custom and usage.

This Article, for the first time, examines the role that Ways and Means resolutions played as agenda-setting vehicles for revenue legislation in the British House of Commons and colonial assemblies. These procedural instruments authorized the Crown to begin collecting taxes at the amended rates set by the unicameral resolution and set the stage for subsequent budgetary legislation enacted into law. Though only passed by the lower house and subject to further amendment, these resolutions were powerful agenda-setting devices within the legislative process that today offers a glimpse into the core meaning of the Origination Clause.

Part I places these issues into context, while Part II of this Article traces the development of Origination Clause jurisprudence from the early British period through the Constitutional Convention. Part III analyzes British and colonial practice surrounding Ways and Means resolutions and considers their effect as agenda-setting devices. Part IV considers the force of this agenda-setting purpose in light of germanity and Origination Clause precedent. Finally, Part V concludes by translating these ideas into the modern Congressional context and offers solutions for restoring substantive meaning to this important constitutional provision.

06/25/2016

Amy Coney Barrett: Countering the Majoritarian Difficulty
Michael Ramsey

Amy Coney Barrett (Notre Dame Law School) has posted Countering the Majoritarian Difficulty (Constitutional Commentary,  forthcoming) on SSRN. Here is the abstract:

This Essay, written for a symposium on Randy Barnett’s new book Our Republican Constitution [Ed.: book available here], questions whether courts are well suited to the role Barnett would have them assume. Barnett is deeply skeptical of democratic majorities, and he argues that judicial deference to them is inconsistent with the basic premises of the Constitution. Rather than affording statutes a presumption of constitutionality and reviewing them under the lenient “rational basis” test, Barnett insists that courts ought to treat statutes as presumptively unconstitutional and review them under the more aggressive pre-New Deal standard. I express doubt about the historical support for Barnett’s approach, contend that it conflicts with the realities of the legislative process, and observe that Barnett might be overly optimistic about the institutional capacity of courts. That said, Barnett’s book brings welcome attention to the often misunderstood concept of judicial restraint. Many who embrace a general rule of deference to democratic majorities will nonetheless agree with Barnett that such deference does not authorize a court to distort statutory or constitutional text to save a statute. Fidelity to the law means going where it leads, and sometimes it leads to the conclusion that a law is unconstitutional.

06/24/2016

Evan Bernick on Concealed Carry and Originalism
Michael Ramsey

At Huffington Post, Evan Bernick has an outstanding and insightful addition to the conversation on Peruta v. San Diego, originalism, and concealed carry: Against Narrow and Hidebound Originalism: On Peruta v. San Diego and the Right to Armed Self-Defense.  An excerpt:

Conservative and libertarian originalists might be inclined to praise the majority’s methodology, even if they regret the outcome. This inclination should be resisted. In only pursuing the question whether concealed-weapons bans were thought to be unconstitutional hundreds of years ago, the Peruta court undermined the rule of law and compromised the rights of ordinary Americans who seek to defend themselves and their families. The court also revealed that originalism of a certain variety—an originalism tethered to the original expected applications of constitutional concepts—is incapable of keeping government officials within constitutional limits today.

...  Indeed, for reasons explained by Professor Christopher Green in a thoughtful recent post on the Originalism Blog, it is possible for everyone at the time of the ratification of a particular constitutional provision to agree about how that provision ought to apply in a particular instance but nonetheless be wrong. [Ed.: see also here from Mike Rappaport].

Fidelity to the law of the land necessarily entails departing in appropriate cases from the beliefs and expectations of those who came before us. As Green puts it, “the sense originally expressed by the text of the Constitution is what the phrase ‘this Constitution’ in Article VI makes binding, not the original reference or collection of things referred to by the Constitution.” We must add to and subtract from the collection of referents (things of a certain kind) that the Framers associated with particular concepts as needed when either the facts change or our knowledge of particular concepts develops.

And as applied to Peruta

The Ninth Circuit’s opinion in Peruta discloses the perils of relying upon original expected applications in evaluating the constitutionality of government conduct. During the time periods surveyed by the majority, courts consistently affirmed the right of citizens to carry firearms in public openly for protection. Thus, the carrying of firearms in public for self-defense was regulated but not prohibited. But because California law prohibits openly carrying firearms, San Diego and Yolo Counties’ requirement of a particularized reason for granting an application for a concealed-carry license effectively prohibits most law-abiding citizens from carrying firearms for self-defense outside the home. In focusing narrowly on the question whether concealed-weapons bans were thought unconstitutional in the past and failing to consider whether that conclusion was dependent on a social fact that is no longer present in California—namely, the existence of a legal regime that allows people to openly carry firearms—the majority missed the forest for the trees.

And in conclusion on originalism:

The enduring appeal and influence of originalism is attributable in substantial part to its promised capacity to maintain the rule of law. But the rule of law, understood as a legal regime in which the limits of government power are set by fixed, publicly-known principles of reason rather than the mere will of men, is incompatible with an interpretive approach that grounds legal authority in the subjective beliefs or expectations of any person or group of people. The rational principles in our law can only be given effect by the federal judiciary by means of objective constitutional interpretation. Objectivity in constitutional interpretation consists in disciplined, logic-guided, context-sensitive inquiry into the meaning of the Constitution’s language. Defining constitutional concepts like “the right of the people to keep and bear Arms” entails not only careful study of historical facts about word usage and linguistic practice but a firm grasp of the political philosophy that the Constitution is designed to implement as well as the function that each of its provisions plays in implementing that philosophy. (Though judges may not appeal to that political philosophy in contravention of the Constitution’s text.) It also requires us to draw upon any knowledge that we have subsequently acquired about particular concepts and their referents.

There's a lot I agree with here (and reading the whole post is important to get the full scope of the argument) -- but there are also some things I don't.  As to Peruta, if the rule at the founding was that open carry was allowed and concealed carry was not, the implication should be that a state can ban concealed carry but if it does, it can't ban open carry.  That's consistent (I think) with what the majority said in Peruta, although it implies something about California's gun laws that a lot of people who like Peruta aren't going to like.

On the broader point, I agree with Bernick (and Chris Green) that the controlling law is the text (given its original meaning), not what the framers thought the text would accomplish.  However, perhaps in disagreement with them, I think what the framers thought the text would accomplish is highly relevant to determining what the text's original meaning was.  To my mind, a conclusion contrary to what the framers thought the text meant should be disfavored (thought not precluded); it would require strong contrary evidence and probably some sort of unusual circumstances.  (As an aside, I don't think this issue is directly implicated by Peruta; the key issue in Peruta, I would say, is whether the court should have considered the concealed carry rule in isolation or in conjunction with the rest of California's gun laws -- which is something of a technicality).

I think there is a danger in dismissing too quickly what the framers thought about their text.  It's too easy to substitute what we think the text means (to us) for what we think the text meant in the founding era.  And I find particularly worrying the admonition that originalism "requires us to draw upon any knowledge that we have subsequently acquired about particular concepts and their referents."  That seems to me an invitation to substitute our wisdom (such as it is) for the framers'.

06/23/2016

Ilya Somin on Originalism, Regulatory Takings and Murr v. Wisconsin
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Thoughts on the California amicus brief in Murr v. Wisconsin – an important takings case currently before the Supreme Court.  It begins:

In April, the state of Nevada filed an amicus brief that I coauthored on behalf of Nevada itself and eight other state governments in Murr v. Wisconsin, a major property rights case currently before the Supreme Court. The case addresses an important question about when property owners are entitled to compensation under the Takings Clause of the Fifth Amendment: whether a regulation that might otherwise be a taking might cease to be one merely because the owner of the affected lot also happens to own other property contiguous to it. Our brief is an unusual example of state governments standing up for property rights in the Supreme Court.

Recently, a group of nine other states, led by California, filed an amicus brief supporting the other side in the case, and in part responding to ours (pp. 23-26). While I am grateful to California for focusing on our arguments, I think their attempted rebuttal does more to highlight the weaknesses in Wisconsin’s position than to bolster it.

On the originalism aspects:

California contends that, because the original understanding of the Fifth Amendment did not contemplate compensation for regulatory takings, the Framers did not have “any view regarding the definition of the relevant property parcels” in such cases. Therefore, [its brief] suggest[s] that the text and original meaning imposes no constraints on state manipulation of parcel boundaries in order to avoid paying compensation. This argument ignores the actual text of the Fifth Amendment, which simply states that “just compensation” must be paid whenever private property is “taken” by the government, without making any distinction between different types of takings. It also ignores the scholarship we cite in our brief indicating that regulatory takings were in fact contemplated by the Founding Fathers, and by early court decisions, as part of the then-dominant “natural law” understanding of property rights (4-5). Whatever was true when the Fifth Amendment was first enacted in 1791, regulatory takings were a well-understood and widely accepted concept by the time it became applicable to the states as a result of the adoption of the Fourteenth Amendment in 1868. And most regulatory takings (including the one in this case) are initiated by state and local governments.

California also completely ignores the extensive early case law we cited indicating that takings compensation should follow parcel boundaries (6-9). Even if regulatory takings were not specifically contemplated at the time of the Founding, that does not mean the Supreme Court should just disregard the original understanding of the importance of individual parcels in American takings law.

The originalist foundation of regulatory takings doctrine is an important topic; among other things, the supposed lack of such foundation has been used by critics like Cass Sunstein to accuse Justices Scalia, Thomas and others of inconsistency in their pursuit of originalism.  It would be great if this case were to offer an opportunity for the Court (or at least some Justices) to set out an originalist defense (which was, one must admit, sadly lacking in the key modern case Lucas v. South Carolina Coastal Council).

06/22/2016

Originalism and the Second Amendment
Mike Rappaport

I thought I would weigh in on the dispute between Mike Ramsey and Chris Green on originalist theory and the Second Amendment. Ramsey writes:

"Suppose that it's right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could be unconstitutional today? I can't imagine how, as an originalist matter, that could be so. Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error. But here the language is at best ambiguous on the right to concealed carry (even if one thinks "bear[ing] Arms" means carrying them in public). If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me."

In response, Chris Green argues that if the Second Amendment had a certain meaning, it would not necessarily bind us if the people at the time applied it in an incorrect way. The meaning would be binding, not the application.

Understood in this way, I don't think Mike and Chris are necessarily disagreeing. I interpret Chris as arguing that only the meaning of the language is binding as such. And I interpret Mike as saying, that might be true, but the consensus in favor of one interpretation of the language is such strong evidence, that nothing could realistically outweigh it. And therefore the meaning of the Second Amendment language could theoretically be different than the consensus, but it is extremely unlikely to be so.

Chris, however, points out one way the consensus at the time of the Framing allowing prohibitions on concealed carry could be overridden (or shown not to be dispositive). If it turned out that prohibitions on concealed carry were never paired with prohibitions on open carry, then we would not know that such concealed carry prohibitions were constitutional when combined with open carry prohibitions. The concealed carry prohibitions might have been allowed only because people were allowed to open carry. That is, the Second Amendment might allow certain restrictions on the manner of exercising one's rights, if they allowed people alternative ways of exercising that right. (Compare the time, place and manner test of the First Amendment.)

I agree with Chris here, assuming the contingencies he specifies actually held. This shows that it is always important to keep in mind the distinction between the meaning of a provision and the evidence in favor of a meaning. Sometimes the evidence can look conclusive, but under certain circumstances, it might not be.

MIKE RAMSEY ADDS:  My initial thoughts may have been stated imprecisely.  I don't disagree with anything Mike Rappaport or Chris Green say on this point, though we may have different emphases.  

The Interactive Constitution on the Declare War and Commander-in-Chief Powers
Michael Ramsey

The Interactive Constitution is an interesting project of the National Constitution Center, described here:

In the Interactive Constitution, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of the Constitution. Here’s how the Interactive process works: Scholars are selected with guidance from leaders of the American Constitution Society and the Federalist Society—two prominent constitutional law organizations that represent different viewpoints on the Constitution. Leaders of each organization recommend scholars to write about each provision of the Constitution. The pairs of scholars find common ground, writing a joint statement of what they agree upon about that provision’s history and meaning. Then the scholars write individual statements describing their divergent views on that part of the Constitution.

The Interactive Constitution is a three year project. So far, we have completed Interactive materials for the first 15 Amendments of the Constitution. During the course of the next two years, we will complete Interactive materials all of the provisions of the Constitution. In the meanwhile, yet-to-be completed provisions of the Constitution are annotated with materials from Annenberg Classroom.

In a recently posted part of the project, Stephen Vladeck and I write on the declare war clause and the commander-in-chief clause.  We don't end up disagreeing on much, especially on the declare war clause.  Perhaps the editors should have picked someone more pro-executive than I am.  I do try to explain the strongly pro-executive view, even though I don't accept it.  And I have a somewhat more expansive idea of what military actions the President can take short of war, as outlined in this article. On the commander-in-chief power, I argue that the President has a narrow set of exclusive powers, basically in line with this article.  This is more than Professor Vladeck wants to acknowledge, but still less than the strong pro-executive position.

In any event, the project is an excellent one, even if our exchange is less contentious than some might hope.

06/21/2016

New Book: "The Bill of Rights: The Fight to Secure America's Liberties" by Carol Berkin
Michael Ramsey

Recently published, by Carol Berkin (Baruch College, History): The Bill of Rights: The Fight to Secure America's Liberties (Simon & Schuster 2016).  Here is the book description from Amazon:

“Narrative, celebratory history at its purest” (Publishers Weekly)—the real story of how the Bill of Rights came to be: a vivid account of political strategy, big egos, and the partisan interests that set the terms of the ongoing contest between the federal government and the states.

Those who argue that the Bill of Rights reflects the founding fathers’ “original intent” are wrong. The Bill of Rights was actually a brilliant political act executed by James Madison to preserve the Constitution, the federal government, and the latter’s authority over the states. In the skilled hands of award-winning historian Carol Berkin, the story of the founders’ fight over the Bill of Rights comes alive in a drama full of partisanship, clashing egos, and cunning manipulation.

In 1789, the nation faced a great divide around a question still unanswered today: should broad power and authority reside in the federal government or should it reside in state governments? The Bill of Rights, from protecting religious freedom to the people’s right to bear arms, was a political ploy first and a matter of principle second. The truth of how and why Madison came to devise this plan, the debates it caused in the Congress, and its ultimate success is more engrossing than any of the myths that shroud our national beginnings.

The debate over the Bill of Rights still continues through many Supreme Court decisions. By pulling back the curtain on the short-sighted and self-interested intentions of the founding fathers, Berkin reveals the anxiety many felt that the new federal government might not survive—and shows that the true “original intent” of the Bill of Rights was simply to oppose the Antifederalists who hoped to diminish the government’s powers. This book is “a highly readable American history lesson that provides a deeper understanding of the Bill of Rights, the fears that generated it, and the miracle of the amendments” (Kirkus Reviews).

At the L.A. Review of Books, Stephen Rohde has a positive review: A Stronger Constitution: Carol Berkin’s “The Bill of Rights”.  From the introduction:

In The Bill of Rights: The Fight to Secure America’s Liberties, Carol Berkin, the presidential professor of History at Baruch College and a member of the history faculty of the Graduate Center of CUNY, Emerita, combines prodigious research and an engaging writing style to provide a fresh look at the fierce political battles over amending the brand new Constitution to add express protections for individual rights. In a relatively brief but erudite account of this pivotal period in American history, Berkin has mastered key source materials to present a nicely paced story laced with lively wit and sure-footed assessments of her important subject.

Berkin considers the Declaration of Independence and the Bill of Rights “the two greatest written legacies of the Revolutionary generation.” She insists that the “men who produced the Bill of Rights were neither demigods nor visionaries. They were mere mortals, some brilliant, some quite ordinary, most of them wealthier and better educated than their neighbors.” Berkin’s most powerful insight is to place readers in the very specific circumstances the Founders faced. For them there was no guarantee that the new government they were building would last. Instead of viewing the Bill of Rights as just a lofty statement of high-minded principles, Berkin demonstrates through contemporaneous letters and speeches how these 10 amendments helped quell widespread opposition to the new Constitution and ensure popular support for the new and more energetic federal system of government.

(Via Legal History Blog).

Note: Professor Berkin is also the author of A Brilliant Solution: Inventing the American Constitution (Mariner Books 2003).

06/20/2016

Call for Papers: Originalism Works-in-Progress Conference, February 2017
Michael Ramsey

[Editor's note: the following announcement is posted on behalf of me, my colleagues Michael Rappaport and Steven Smith, and the USD Center for the Study of Constitutional Originalism.]

On February 17-18, 2017, the Center for the Study of Constitutional Originalism at the University of San Diego Law School will hold its Eighth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.

We invite all interested scholars to submit a work-in-progress for the Eighth Annual Conference.  A work in progress is a draft paper in article or book chapter form that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of a one to three page abstract (and, if you like, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Submissions can be sent to us now, if possible, but in any event by the end of August.  We will ask that the selected papers be circulated to conference participants in late January, 2017.  The Center will cover travel expenses, lodging, and meals for paper authors and commentators.  The Call for Papers page is here.  

In addition to paper authors and commentators, we would like to invite all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  The Center would be happy to pay for the principal meals for those attending the entire conference but not giving a paper or serving as a commentator.  

We hope you will be able to join us in San Diego.  Also, feel free to forward this invitation to anyone you believe would be interested.  If you have any questions, do not hesitate to contact any of us. 

06/19/2016

New Book: The Emergence of One American Nation, by Donald Fraser
Michael Ramsey

Recently published: Donald J. Fraser, The Emergence of One American Nation: The Revolution, the Founders, and the Constitution (Fraser & Associates, 2016).  Here is the book description from Amazon: 

Divisiveness is the hallmark of American politics today. Red state versus blue; liberal versus conservative; secular versus religious; the list goes on. Sometimes it seems we are no longer one nation, but in fact we are. Division and argument have always been a part of the American scene, no more so than at our founding.

In the Emergence of One American Nation, Donald J. Fraser explores the difficulties that the founding generation confronted in molding the United States into one nation. At the heart of that endeavor was the effort to create and ratify a new Constitution for the country, one to replace the failed Articles of Confederation. Fraser not only explains the American leaders’ process of constitution making, but places it clearly in the context of the separation from Great Britian, the drafting of the Declaration of Independence, and fighting the Revolutionary War. 

Fraser’s work not only tells of the events that led to the creation of one American nation, but also includes engaging portraits of the individuals who helped bring about the revolution and the new political order under the Constitution, including Franklin, Washington, Adams, Jefferson, Madison, Hamilton, and a host of lesser known but interesting characters.

06/18/2016

Evan Bernick on the Role of the Judiciary
Michael Ramsey

At Huffington Post, Even Bernick: The Constitution’s Keystone: Why Our Independent Judiciary Was No ‘Afterthought’ (responding to this New York Times Op-Ed by Barry McDonald [Pepperdine]: Eight Justices Are Enough).  Professor McDonald argues in part: 

The Supreme Court today is both political and powerful in ways that would be unrecognizable to the framers of the Constitution. They penned a mere five sentences creating a “supreme Court” and defining its jurisdiction. The judicial branch was something of an afterthought for them, because they believed that in a democracy the elected branches would be responsible for governing the country.

Judicial review, in its modern sense, did not exist. As the framers envisioned it, the justices appointed to the Supreme Court would mainly interpret and apply federal law when necessary to resolve disputes involving the rights of individuals. And though the framers’ views on the court’s role in interpreting and enforcing the Constitution are the subject of debate, it seems most likely that when disputes required determining whether a federal law comported with the Constitution, the court’s interpretation was supposed to bind only the parties in the particular case — not the legislative and executive branches generally.

Bernick responds:

McDonald proceeds from false premises about the Constitution’s substantive mission and the constitutional role of the judiciary, and he arrives at conclusions that are incompatible with judges’ constitutional duty.

Professor McDonald’s analysis is driven by what I have referred to as the “myth of majoritarianism”—the belief that the Constitution’s primary substantive mission is the facilitation of majority rule. Gallons of scholarly ink have been spilt in the course of efforts to reconcile the Constitution’s purportedly majoritarian character with the existence of an independent judiciary, staffed by unelected judges who are empowered to give authoritative expositions of law that bind elected officials. The myth of majoritarianism is responsible for an enduring academic obsession with the“countermajoritarian difficulty” that judicial review supposedly poses in a majoritarian democracy.

Although it has many adherents, the myth of majoritarianism is both false and pernicious. The Constitution authorizes and circumscribes government power in order to protect individual rights from the minoritarian tyranny of the few and the majoritarian tyranny of the many. No more does the government created by “We the People” have the authority to deprive individuals of the “blessings of liberty” that (according to the Preamble) the Constitution was “ordain[ed] and establish[ed]” to “secure,” than does the Declaration of Independence, by stating that governments derive their “just powers” from the “consent of the governed,” confer legitimacy upon governments that systematically violate “unalienable rights.” The Constitution’s mission of rights-protection is evident in both its explicit protections for individual rights and its structural limits on democratic decision-making, which create numerous chokepoints through which legislation must pass and which serve to prevent any government entity from attacking individual rights unopposed.

Once we understand the function of the Constitution’s architecture, we can appreciate how an independent judiciary serves as its keystone.

Earlier, Lyle Denniston had some similar thoughts at Constitution Daily: Constitution Check: Was the Supreme Court only an afterthought for the Founders?  He argues:

[The Court's power] is generally understood to mean the power to decide what the Constitution means and to enforce it against the actions of Congress and the Executive Branch.  It is true that this authority was questioned during the constitutional ratification period, but it is also true that those directly involved in writing and promoting the basic document did not share that skepticism.  They believed that an independent system of courts was vital to human liberty, and the rights guaranteed by the Constitution.   To them, it was hardly an afterthought.

Historians generally accept that Alexander Hamilton’s essay No. 78, in the Federalist Papers, was a true reflection of what the founding generation believed about the judiciary.  And it was less than a generation later – a mere 15 years – that Chief Justice John Marshall famously declared that “it is emphatically the province and duty of the judicial department to say what the law is.”  That was what Marbury v. Madison stood for in 1803, and stands for today.

In every generation, it seems, revisionist ideas come back into vogue in the nation’s public discourse about the Constitution, and not uncommonly the suggestion arises that the Supreme Court is far too powerful and needs to be put back into the limited place that, supposedly, the founding generation wanted it to have.

This is sometimes offered as “originalist” thinking about what the Constitution truly meant in the 18th Century.  True, there were “anti-Federalists” who fretted back then about the power that the new Supreme Court would have, as Hamilton recognized and as he sought to answer in Federalist 78.  Hamilton’s view[s], surely, were closer to the prevailing sentiment at the time than were those who simply did not want the new Constitution even to be ratified.   They did not get their wish.

It seems to me, though, that there is a big difference between the Court playing the active role that Hamilton envisioned and what the modern Court does.

06/17/2016

Fact-Sensitivity of the Constitutional Referent
Chris Green

Apropos of Mike Ramsey's post below and Will Baude's request that I call my office, I think I want to take Mike Dorf's side here.  It is possible for everyone at the time of the Founding to agree about a constitutional outcome, but nonetheless to be wrong.  Everyone at the time the Constitution was drafted (at least, everyone who mattered when the interim rules of Art. I, sec. 2, cl. 3 were drafted) thought that it was constitutional to give more representatives to Maryland than to North Carolina. But that conclusion depended on the incorrect-but-apparently-universal belief among the relevant Founders that Maryland's free-population-plus-three-fifths-of-its-enslaved-population was larger than North Carolina's (see here at 1623). The constitutional rule is "according to their respective numbers," and that applies to the actual facts, even if all of the relevant Framers got those facts wrong. Similarly, as Mike Dorf explains, if "bear" in the context of the Second Amendment means "bear in the home or in public, subject to governmental restrictions as to manner," then it might be permissible to regulate the manner of public arms-bearing  (e.g., by requiring open carrying), even if it would not be permissible to ban public arms-bearing altogether. Whether concealed-carry bans are constitutional might depend on whether they are paired with open-carry bans. If they were not paired with open-carry bans at the Founding, then the Founders' partly-fact-dependent conclusion would not be binding on us today, because it was not actually baked into the Constitution itself.

"Semantic originalism" is a term which I think Ronald Dworkin invented in his reply to Scalia's Tanner Lectures to make a point which I think works better if put in terms with a longer philosophical pedigree. I use "original textually-expressed sense," building on a tradition in the philosophy of language going back to Gottlob Frege (and beyond; a very influential seventeenth century logic textbook by Arnauld and his colleagues made the same distinction) to make the same point (at least, a point which I think is the same as Dworkin's!).  It's not absolutely clear quite what Dworkin meant by the term, but he distinguished between "semantic originalism" and "original expectations originalism"; I take Dorf's "First Order Originalism" to be likewise anchored solely in original expectations (Fregean referent, Carnapian extension, and Millian denotation, as I would put it), rather than higher-order notions like meaning (Fregean sense, Carnapian intension, or Millian connotation, as I would put it). 

As I see it, the sense originally expressed by the text of the Constitution is what the phrase "this Constitution" in Article VI makes binding, not the original reference or collection of things referred to by the Constitution. Building cars changes the referent of "car," but not its sense. Banning open carry might likewise change the referent of the category "the right of the people to keep and bear arms," while leaving the binding sense expressed by those words (as originalists rightly insist) unchanged.

Michael Dorf on Originalism and Concealed Carry (with my Comments)
Michael Ramsey

Michael Dorf at Dorf on Law: Second Thoughts About the Ninth Circuit's Second Amendment First-Order Originalism. It begins:

Late last week, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit rejected a Second Amendment challenge to a California law that requires one to demonstrate "good cause" to county officials in order to obtain a license to carry a concealed firearm. The ruling,Peruta v. County of San Diego, is notable in part for what it does not decide. The plaintiffs argued that the SCOTUS rulings in District of Columbia v. Heller and McDonald v. City of Chicago protect an individual right to possess firearms for self-defense that applies outside as well as inside the home, and that in combination with another California law generally forbidding open-carry of firearms, the good-cause requirement operates as a de facto ban on public-carry for anyone who cannot show a special reason for a concealed-carry permit.

The en banc opinion by Judge Fletcher does not exactly reject that argument but concludes that it is not presented because the plaintiffs did not challenge the law restricting open-carry. [ . . . ] The court then concludes that there is no right to carry a concealed firearm.

Professor Dorf then discusses Judge Fletcher’s historical methodology:

The opinion carefully parses sources dating back to the end of the thirteenth century to show that there has never been a right to carry a concealed firearm: not in England; not in colonial America; not at the Founding; not in the period leading up to the adoption of the Fourteenth Amendment; and not since. With respect to the state of the law when the Fourteenth Amendment was adopted, the court concludes that "an overwhelming majority of the states to address the question — indeed, after 1849, all of the states to do so — understood the right to bear arms, under both the Second Amendment and their state constitutions, as not including a right to carry concealed weapons in public."

Judge Fletcher is not by any means a thoroughgoing originalist, but Heller and McDonald purport to find the individual right to possess firearms in the home in the historical understandings of the Second and Fourteenth Amendments, so Judge Fletcher turns the tables on the proponents of gun rights: If history is the basis for finding a right to firearm possession in the home, then it is also the basis for rejecting a right to carry a concealed firearm in public.

The post moves to discuss first-order originalism and its place in Second Amendment interpretations:

But do Heller and McDonald really command what we might call first-order originalism in all Second Amendment cases? By first-order originalism I mean an approach that seeks to answer every question about the scope of the Second Amendment (or the Fourteenth, when state and local laws are at issue) by a historical test.

There is some support for first-order originalism in Heller itself. For example, in discussing permissible limits on the right to possess firearms, the Heller opinion states:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[I]f the longstanding-ness of limits on firearms possession by felons or on bringing firearms into sensitive places like government buildings validates those limits, then one can sensibly argue that the longstanding-ness of prohibitions on concealed carrying of firearms validates a permit requirement to carry a concealed firearm.

And yet there is something wrong with first-order originalism even for a right that is justified in originalist terms. [ . . . ] The question is not to be resolved by looking to history as a first-order matter. Rather, history establishes the scope of the right as a semantic matter: the Second Amendment covers weapons "in common use," but in giving content to "common use" courts should ask what weapons are in common use today, not what weapons were in common use in 1791 or 1868.

I think Heller and McDonald were wrongly decided. Moreover, I'm not an originalist of any sort. However, I do think that if one is going to be an originalist, semantic originalism makes a lot more sense than first-order originalism. Many questions will be unanswerable by first-order originalism, because they only arise in modern circumstances. Moreover, fashioning sensible doctrine requires the courts to make the law cohere, which is not always possible using a strictly historical test.

My thoughts: I'm not at all following this distinction between "semantic originalism" and "first order originalism" (plus I have a hard time not thinking of "first order" originalism as a Star Wars reference).   It seems to me that the straightforward question is whether the right to "keep and bear Arms" is "infringed" by concealed carry restrictions.  And since concealed carry restrictions were known in the founding era, we can assess that question by asking what the founding era thought of concealed carry restrictions.  That's basically the way Judge Fletcher framed the issue.  Whether he got the right answer or not is a different matter, but David Kopel thinks he did, and I would not argue with Professor Kopel on this issue.  

Suppose that it's right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right.  Is Professor Dorf suggesting that they nonetheless could be unconstitutional today?  I can't imagine how, as an originalist matter, that could be so.  Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error.  But here the language is at best ambiguous on the right to concealed carry (even if one thinks "bear[ing] Arms" means carrying them in public).  If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.  I'd be surprised if many actual originalists disagree with this analysis, whatever Professor Dorf thinks they should think.

06/16/2016

Eric Posner, Michael McConnell et al. Discuss Presidential Power
Michael Ramsey

At Intelligence Squared, a debate, with the resolution being: The President has usurped the Constitutional Power of Congress.  Pro: Michael McConnell (Stanford) and Carrie Severino (Judicial Crisis Network); con: Adam Cox (NYU) and Eric Posner (Chicago). 

Here is a description of the debate:

The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a robust-and fearsome-list of powers. James Madison assumed that "[i]n republican government, the legislative authority necessarily predominates," and he cautioned that the legislative department may tend to "draw[] all power into its impetuous vortex." But modern politics and law seem to tell a quite different story. With executive orders, administrative regulations, creative interpretations of federal statutes, and executive agreements with other nations, it may seem that the President, not Congress, is, in effect, wielding the most potent legislative power. Indeed, the Supreme Court is currently poised to decide whether President Obama's unilateral immigration actions usurped Congress's power and flouted his duty to "take Care that the Laws be faithfully executed." But some argue that this is nothing new: they say that the President is not exercising legislative power; he is simply exercising his well-established executive discretion. Is Congress still the most powerful branch, or is this the era of the imperial presidency? Has the President usurped Congress's legislative power?

I'm not sure if the right phrase is "has usurped" or "has been handed."

(via ericposner.com).

06/15/2016

A Reply on "The Garland Affair"
Robin Bradley Kar & Jason Mazzone

[Editor's Note: For this guest response, we welcome Robin Bradley Kar, Walter V. Schaefer Visiting Professor of Law at the University of Chicago Law School and Professor of Law and Philosophy at the University of Illinois College of Law, and Jason Mazzone, the Lynn H. Murray Faculty Scholar in Law and Co-Director, Program in Constitutional Theory, History and Law, also at the University of Illinois College of Law.  This post responds to several posts on this blog (see here and here) criticizing Professor Kar and Mazzone's article on the Garland nomination.  In accordance with usual practice (although it is not a constitutional rule!) I will let our guest responders have the last word.]

We would like to thank Michael Ramsey for his recent attention on this blog to our essay, The Garland Affair, which discusses the history of U.S. Supreme Court appointments and the bearing of that history on President Obama’s attempt to appoint a replacement for Justice Scalia. We offer historical evidence that it is unprecedented for the Senate to attempt a deliberate interpresidential transfer of Supreme Court appointment powers (in this case from President Obama to an unelected successor) absent contemporaneous questions about the status of the nominating President as the most recently elected president.

Ramsey focuses attention on the constitutional issues we raise in our essay. This reply will, accordingly, focus on those same issues. Nonetheless, we emphasize that constitutional issues are only one part of The Garland Affair. Our primary claim is that a deliberate interpresidential transfer of Supreme Court appointment powers in current circumstances contravenes more than two centuries of historical tradition. Hence, even if the tradition we identify has not ripened into a constitutional rule, departing from this unbroken historical tradition would mark a much sharper departure from history and internal norms of senatorial fair dealing than has thus far been recognized. In our essay, we go to great lengths to describe the pragmatic costs of such a break to the impartiality and appearance of impartiality of the Judiciary; to well-settled forms of democratic deliberation as they relate to Supreme Court appointments; and to the functioning of our constitutional form of governance. Ramsey is right, though, that we make the further argument that this tradition may have also ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. If so, then the Senate Republicans’ current plan violates the Constitution as well.

When addressing our constitutional arguments, Ramsey acknowledges that our historical arguments are “strong”. He nevertheless questions our assertion that the evidence we present casts doubt on whether the Senate has the constitutional “power to deliberately divest a sitting President of his Supreme Court appointment powers” as opposed to a constitutional power to provide “advice and consent” on particular candidates (i.e., by confirming, rejecting, or resisting them on the merits, using a wide array of senatorial procedures). According to Ramsey, our characterization of the issue “assumes the conclusion” because—in Ramsey’s word’s—“[t]he President’s ‘appointment powers’ are to nominate a candidate and to appoint a nominee if the Senate gives advice and consent.” But it seems to us that Ramsey’s presentation of the issue itself assumes a conclusion. The Appointments Clause actually says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . .  Judges of the [S]upreme Court  . . . .” The Appointments Clause also explicitly gives Congress the power to divest the President of some appointment powers and to “vest them as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” On the other hand, the Appointments Clause does not give Congress (or any other body) the same divestment power with respect to Supreme Court appointments. So there are two possibilities here. Either—as Ramsey assumes—the Senate’s power to provide “advice and consent” with respect to Supreme Court nominees includes a further power to deliberately divest Presidents of their Supreme Court appointment powers (a power which Congress nevertheless explicitly lacks and no other body is explicitly granted when it comes to Supreme Court appointments). Or it doesn’t. Where text is ambiguous, historical practice can provide needed clarification. Here, as we show in our essay, history would resolve this textual ambiguity in favor of a rule against divestment of Presidents’ Supreme Court appointment powers except in the highly unusual circumstances where there are contemporaneous questions about the status of the nominating President as the most recently elected President.

If this history has further ripened into a constitutional rule, as it may well have, then the Senate therefore lacks the constitutional power to do what it is currently trying to do. Put simply, it cannot deliberately divest President Obama of his Supreme Court appointment powers using any procedures—though it can and should consider and confirm, reject or resist particular candidates based on their merits (such that the end result might actually be no appointment or an appointment only of a second- or third-choice nominee). When it comes to disambiguation, our view does not assume any conclusion in the way that Ramsey’s interpretation does. We explicitly rely on historical evidence to avoid the need for any such assumptions.

Second, Ramsey suggests that “although some Republican Senators may be guilty of rhetorical excess, I think it wrong to say (as Kar and Mazzone do) that the Senate is ‘simply refus[ing] to consider any nominee from a particular President.” Ramsey explains that he is “confident that if the President were to nominate Paul Clement (or even a more moderate but originalist oriented judge) the Senate would consider the nominee.” If this assessment is accurate, it would be a major concession. It would suggest that Senate Republicans are actually resisting Garland on the merits, rather than, as they have repeatedly said, seeking to let the American people weigh in on the appointment through their choice of President in November. If Senators are doing what Ramsey suggests, then that fact raises a number of obvious questions: How exactly do Senate Republicans know to reject Garland, but not Clement, on the merits even though these Senators are not willing to meet with Garland or learn more about his judicial philosophy? And might not the public, told it is being given the opportunity to weigh in on the next appointment, legitimately ask whether Senate Republicans are simply lying? At what point do actions like these go beyond advice and consent with respect to particular nominees to become, as we suggest, an effort to divest President Obama of his undisputed constitutional powers to choose nominees? Finally, why is the Senate breaking its own Rule 31, which suggests that advice and consent is given by the full Senate in response to particular nominees?

Ramsey’s suggestion that Senate Republicans may secretly be using nominees’ explicit commitment to originalist methodology as a litmus test for judicial impartiality raises additional concerns. We agree, of course, that it would be disturbing and rejection-worthy if, after a full vetting, the Senate were to find that Judge Garland is not committed to interpreting the Constitution correctly. We should not allow Justices onto the Court who are willing to let personal or political bias intervene in their legal opinions. But can much more be said than that?

If one is a legal positivist and believes that the content of law is determined completely by social facts, then, as William Baude’s recent work suggests, originalist methodologies may be part of what objectivity in legal judgment requires in our legal system. But Baude’s work is contestable, as is the precise form of originalism that the social facts would require and whether particular judges who do not express an explicit commitment to “originalism” are nevertheless following the right methodology. (Would “living originalist” Jack Balkin satisfy the litmus test? Would “practical originalist” Samuel Alito? Would “faint-hearted” originalist Antonin Scalia? And what about the many judges that Baude claims are implicitly doing the right thing without calling themselves “originalists”?) When questions like these are contestable by the best legal minds, how can the Senate require more of a Justice than to express commitment to getting the law right, using whatever methodologies are appropriate given the right answers to hard questions like these? And if identifying what the law is requires some moral or political insight, as Ronald Dworkin suggests, then perhaps there are normative grounds to accept some form of originalism. Once again, however, that is contestable, as is the precise form and scope that originalist reasoning should play if accepted on these grounds.

More generally, evaluation of methodological approaches and their relationship to impartiality should not occur behind closed doors. Besides the fact that secrecy means we don’t get to know precisely what Senators actually understand originalism and impartiality to be, truly democratic assessment of a nominee’s methodology and its impartiality demands public discussion. How wonderful it would be to have, for example, a confirmation hearing in which a candidate is asked some methodological questions: Do you consider originalism to be the correct methodology to interpret the Constitution? If so, what kind of originalism do you have in mind? How would you go about conducting originalist analysis? What do you do if that analysis does not yield a clear answer to a concrete question? Please give us an originalist interpretation of the following provision of the Constitution: _______” How wonderful to have prominent scholars testify that originalism should be a litmus test and explain why and in what precise form. If, as Ramsey suggests, Garland is disqualified on the basis of methodology, then wouldn’t a confirmation hearing bear that out—such that Obama could then proceed to select a different candidate who is more appropriately dedicated to getting the law right?   

But let us now return to the main issue raised by Ramsey’s remarks, which is whether the unbroken line of senatorial practice that we identify in our essay has ripened into a constitutional rule. The alternative—as Ramsey suggests—is that we have identified only a long-standing and unbroken “courtesy” that the Senate has given every past President in President Obama’s circumstances. If so, then the current Senate Republican plan, which promises not to consider any Obama nominee, is merely a breach of internal senatorial norms of courtesy and fair dealing that have otherwise prevailed since the earliest days of the Republic. As noted, that breach would generate grave pragmatic risks, which have not yet been fully appreciated, and which we discuss in more detail in our essay. But the plan may not raise a further constitutional violation.

So which one is it and how might we know? Ramsey’s other arguments are dedicated to raising doubts about whether the precise historical traditions we identify have ripened into constitutional rules. All of these doubts are essentially epistemic: Ramsey points out that it is hard (perhaps even impossible) to know when historical facts require a conclusion of constitutional ripening. We agree. In fact, in our essay, we point out that this is initially true of all ripening arguments—including all those that have been successful in the past.  Rather than arguing that the Senate Republicans’ current plan definitively violates the Constitution, we therefore propose a more modest conclusion. We suggest that this unprecedented breach from more than two centuries of U.S. tradition presents a “hard” constitutional question—i.e., a novel and unprecedented constitutional question that cannot be definitively settled either way based on the available historical and legal evidence.

But this fact clearly cuts both ways. It explains why Ramsey is right to wonder whether ripening has taken place and it explains why it would be irresponsible for Republican Senators simply to dismiss any risk of a constitutional violation outright. In our essay, we therefore conclude:

Fortunately, there remains an easy way to avoid the pragmatic and constitutional risks that loom large. The Senate can simply follow the path that its predecessors have taken in every analogous situation in the past [including the case of Abe Fortas] and proceed to full Senate consideration of President Obama’s nominee (or nominees) to fill the Supreme Court vacancy. The Senate can similarly exercise its undisputed power to confirm, reject or resist Obama’s particular Supreme Court nominees on the merits. Any further efforts to deliberately and completely divest President Obama of his constitutionally-designated power to appoint Justices to the Supreme Court should, however, be abandoned.

One last point. From among his epistemic arguments, the one that Ramsey finds the most compelling is to question whether historical traditions can ripen into constitutional rules when they “create a constitutional limitation that does not exist in the Constitution itself” as opposed to relaxing “stricter separation of powers rules apparently imposed by the Constitution.” If this were true, then it would still be a hard question whether the historical tradition we identify has ripened into a constitutional rule. There is, moreover, nothing we can find in the ripening jurisprudence that suggests the limitation Ramsey proposes. To the contrary, in his concurrence to NLRB v. Noel Canning, Justice Scalia wrote much more generally that: “Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” 134 S. Ct. 2550, 2594 (2014) (Scalia, J. concurring, joined by Thomas, Alito & Roberts, JJ.). In NFIB v. Sebelius, Justice Roberts similarly explained that the Commerce Clause did not give Congress the authority to enact the individual mandate provision of the Affordable Care Act in part for the simple reason that “sometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’s action.” 132 S. Ct. 2566, 2586 (2012) (citation omitted). Here, precedent for the Senate Republicans’ plan is entirely lacking.

The deeper point, though, is that first principles matter. Because the federal government is one of limited and enumerated powers, there is a pressing question here: From where precisely does the Senate get the unprecedented power that it is currently asserting to completely and deliberately extinguish President Obama’s Supreme Court appointment powers? Neither text nor history point to any such senatorial authority.

 We thank Professor Ramsey for offering us a chance to reply here.

Note: For those who are interested in further discussion of these issues, we note coverage in the NY Times (“Study Calls Snub of Obama’s Supreme Court Pick Unprecedented”) and the Huffington Post (“The Senate Republicans, Merrick Garland, and the Lessons of History”). As Ramsey has noted earlier, Ed Whelan has also posted a six-part critique of our essay in the National Review (“Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 6”—with links to earlier posts). Those critiques focus primarily on the non-constitutional aspects of our argument. Our response, also published in the National Review, is here.

Jeffrey Pojanowski & Kevin Walsh: Enduring Originalism
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) & Kevin C. Walsh (University of Richmond School of Law) have posted Enduring Originalism (Georgetown Law Review Vol. 105, 2016) on SSRN. Here is the abstract:

Why should anyone be a constitutional originalist today? Why won’t originalism go away? These questions are related and important, and this Article tackles them head-on.

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, then originalism is not the law and perhaps should be abandoned in favor of what is.

The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought — which is also the framers’ tradition — supplies a solid jurisprudential foundation for constitutional originalism in our law today.

This isone of the papers from the San Diego Originalism Works-in-Progress conference last February.  Very interesting.

06/14/2016

Judge Brett Kavanagh on Three Scalia Dissents that Will Become Law
Michael Ramsey

Patrick Gregory of Bloomberg BNA reports: Kavanaugh: 3 Scalia Dissents Will Become Law of Land.  From the introduction:

Three dissents by the late U.S. Supreme Court Justice Antonin Scalia will one day be the law of the land, D.C. Circuit Judge Brett M. Kavanaugh predicted...

Those dissents span four decades and issues of executive power, detention of U.S. citizens and deference to federal agencies.

But they all have one theme—liberty, Kavanaugh said.

Kavanaugh made the predictions during a keynote speech at an administrative law conference hosted by George Mason University law school, Arlington, Va.

The school will be named the Antonin Scalia Law School beginning July 1.

(I agree with all three dissents, but I won't spoil the suspense by saying what they are...).

06/13/2016

David Kopel on the Ninth Circuit's Concealed Carry Decision
Michael Ramsey

Last week in Peruta v. San Diego, the en banc Ninth Circuit held that law prohibiting concealed carrying of firearms do not violate the Second Amendment (as incorporated by the Fourteenth Amendment).  At Volokh Conspiracy, David Kopel has an excellent extensive analysis, including these observations:

All 11 judges agreed that since the 1840s, American courts have interpreted the Second Amendment as allowing laws against the concealed carrying of arms. Heller itself said so, with approval. The majority opinion marshaled much precedent and scholarship in support of this point. Among the many sources cited was my article “The Second Amendment in the Nineteenth Century,” 1998 BYU Law Review 1359.

As the majority accurately stated, New Jersey was first to enact a ban on concealed carry, in 1686. Four centuries later, in 1966, New Jersey prohibited open carry. The enormous temporal gap illustrates the difference between concealed carry and open carry throughout most of American history.

No colony followed New Jersey. Nor did any state, until about three decades after the Second Amendment was ratified. The concealed carry ban in the new state of Kentucky was soon ruled unconstitutional in Bliss v. Commonwealth  (Ky. 1822). But as the Peruta majority accurately explicates, from 1849 onward, the rule was that concealed carry could be prohibited or restricted. …

The majority concluded the historical litany, “Finally, and perhaps most importantly, in Robertson v. Baldwin, 165 U.S. 275 (1897), the United States Supreme Court made clear that it, too, understood the Second Amendment as not protecting the right to carry a concealed weapon.” That case, with involved a merchant seaman and the 13th Amendment, said that all of the Bill of Rights, “from time immemorial,” had “been subject to certain well-recognized exceptions, arising from the necessities of the case.” For example, “the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.”

As he further explains, the key difference between the majority and the four-judge dissent is whether to take into account the fact that California also bans open carry of firearms (so that, if there is no right to concealed carry, there is no ability to carry at all):

According to the dissenters, the Second Amendment expressly guarantees the right to bear arms; legislatures may regulate but not prohibit the right. So in the 19th-century cases, the legislature could choose to ban concealed carry while not even requiring a permit for open carry. The dissenters wrote that today, legislatures ought to allowed to reverse that preference: to restrict open carry, while allowing concealed carry under a fair and reasonable licensing system. (Citing Eugene Volokh, “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda,” 56 UCLA L. Rev. 1443 (2009).)

One reason to prefer concealed carry today might be to avoid the waste of police resources caused by people who have an anxiety disorder about guns and who call 911 because they see someone lawfully carrying openly. The medical term for anxiety disorders about firearms is “hoplophobia.” Ninan & Dunlop, Contemporary Diagnosis and Management of Anxiety Disorders (2006). Of course there are many people who dislike guns, spiders, snakes, etc., without the dislike rising to the level of a phobia.

The logic of the majority opinion would eventually force California to broadly allow open carry, once a case squarely forces the 9th Circuit to decide whether “the right to keep and bear arms” includes the right to bear arms in public places. Although the majority was agnostic on this unaddressed issue, the textual, historical and precedential basis for recognizing a right to bear arms is overwhelming; the only significant cases that hold to the contrary are cases that asserted that no one (or only National Guard members) have arms rights at all. The holding of Peruta does not foreclose a correct result about open carry in a future decision.

So in conclusion:

The dissent respected the Supreme Court’s Heller precedent. While regulation might be the subject of pro/con argument, prohibition of the right to keep and bear arms is categorically void. Although the Heller parties and amici had submitted much pro/con social science (as ably summarized in Justice Breyer’s dissent), the court was not interested. A categorical ban on the exercise of an express constitutional right is necessarily void. If a textual right is considered harmful today, the text should be changed, by the amendment process. Judges should not make their own “assessments” of the social value of an express constitutional right, even a controversial one, such as the right to bear arms.

06/12/2016

Gautnam Bhatia on Indian Constitutionalism
Michael Ramsey

Gautam Bhatia (Yale Law School) has posted The Conservative Constitution: Freedom of Speech and the Constituent Assembly Debates on SSRN. Here is the abstract:

The framing of India’s Constitution is popularly considered to be a transformative moment: the culmination of a decades-long movement for political and economic self-determination, and the marker of a transition from a colonial regime maintained by coercion to a democratic republic. The crowning glory of the Constitution-making process, which reflects this transformation, is Part III: the fundamental rights chapter. Guaranteeing core civil and political rights such as the right to freedom of speech and expression, life and personal liberty, and equality before law, Part III of the Constitution appears to place the autonomous, self-determining individual at the heart of the Constitutional order. Nonetheless, the rights guaranteed by Part III are not absolute. They are subject, in many cases, to “reasonable restrictions.” Over the course of its history, the Supreme Court has tended to interpret these clauses in a way that the restriction has often swallowed up the right, and the State has been allowed a more or less free rein to pass rights-infringing statutes, or take rights-infringing executive acts. The question then must be asked: is the Court’s civil rights jurisprudence consistent with the transformative character of the Constitution? In this essay, I will argue that it is: for the reason that a closer look at the framing of the Constitution reveals that Part III was not intended to be transformative in the classical sense of creating a set of rights to serve as a bulwark in service of liberal individualism. By examining the Constituent Assembly Debates around the framing of the free speech clause, and placing it in both its historical context of colonial free speech law, as well as the future trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that as far as the nature and structure of fundamental rights is concerned the framing is better understood as conservative, than a transformative moment; and that consequently, the Supreme Court’s conservative approach to freedom of speech is more, rather than less, consistent with the intent of the framers.

06/11/2016

Josh Blackman on Chief Justice Marshall, Marbury and the Due Process Clause
Michael Ramsey

At Josh Blackman’s Blog, Josh Blackman: #SCOTUS Holds that CJ Marshall’s Decision in Marbury v. Madison violates the Due Process Clause.

Professor Blackman begins with a discussion of Williams v. Pennsylvania (decided by the Court earlier this week):

In Williams v. Pennsylvania, the Chief Justice of the Pennsylvania Supreme Court ruled on a capital case that he participated in three decades earlier as a district attorney. The Due Process Clause required his recusal, the Court held, in light of his “personal involvement” in the case.

So, then, what of Chief Justice Marshall's participation in Marbury v. Madison?

As soon as I read this, I immediately thought that the majority opinion would also explain that John Marshall–who failed to deliver William Marbury’s commission as Secretary of State–was required by the Due Process Clause of the 5th Amendment to recuse! I was pleasantly surprised that Justice Thomas’s dissent made the same point:

Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is Marbury v. Madison, 1 Cranch 137 (1803), in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003).

And applying Justice Kennedy's majority opinion in Williams to Chief Justice Marshall:

Well, it was John Marshall who applied the Great Seal to Marbury’s commission, and this (not delivery) was the final act that made the commission final. (See this amicus brief I wrote about the chronology of Marbury’s commission). Without the seal, Marbury would have had nothing to complain about. I would say that is “significant, personal involvement” with respect to a “critical decision.”

I kind of think Marshall's participation in Marbury was arguably a due process violation.  It was a longstanding principle of English common law that no man should be the judge of his own cause.    As Secretary of State, Marshall failed to perform his duty to deliver the commission.  That was a pretty big error, if delivery of the commission was necessary to complete the appointment (not so much, if the commission vested on signature).  In Marbury, Marshall held (some might say he went out of his way to hold) that delivery was not necessary to complete the appointment.  Very convenient for him!  (On the other hand, Justice Thomas is probably right about the common law).

06/10/2016

Kar & Mazzone's Response to Whelan on the Senate and Appointments
Michael Ramsey

At NRO, Robin Bradley Kar and Jason Mazzone have a lengthy response to Ed Whelan's six-part critique of their article on filling Supreme Court vacancies.  It begins: 

In our essay, we consider Senate Republicans’ current plan to transfer President Barack Obama’s constitutionally designated power to appoint a replacement for Justice Scalia to an unknown successor. We set forth evidence showing that the Senate has never before attempted or effected such a deliberate inter-presidential transfer of power except in circumstances where there were contemporaneous questions about the status of the nominating President as the most recently elected President. No such questions exist with respect to President Obama’s nomination of Judge Garland to replace Justice Scalia. Hence, the Senate Republicans’ current plan marks a much greater departure from more than two centuries of historical precedent than has thus far been recognized. 

Whelan does a nice job of summarizing our main points in his first introductory post. As virtually all commentators—including Republican leaders—agree, history matters when determining the propriety and prudence of the Senate Republicans’ current plan. History can help clarify internal senatorial norms of fair dealing. History can also ripen into a constitutional rule that informs the best interpretation of constitutional text and structure. Accordingly, the historical tradition we identify clarifies pragmatic and constitutional risks with the Senate Republicans’ current plan that have not yet been fully appreciated. We suggest that Senate Republicans should rethink their current plan in light of these facts and—at the very least—explain why such risks do not weigh in favor of adhering to the practices the Senate has always followed with respect to Supreme Court appointments from the earliest days of the Republic. Our analysis and conclusions are deliberately apolitical. Were Senate Democrats to hatch a plan to transfer a Republican President’s Supreme Court appointment power to an unelected successor, we would deem it equally unprecedented and unwise. We also offer no view on whether, at the end of an appropriate process, Senators should vote to confirm Judge Garland.

In his series of posts, Whelan promises to show that our essay “provide[s] no reason for Senate Republicans to reconsider their course on the Garland nomination” (emphasis added). But for reasons we discuss below, Whelan does not deliver on this promise. Whelan brings his characteristic intelligence to bear on these issues, and he engages very carefully with our evidence and conclusions. As the leader of one of the nation’s preeminent conservative think tanks, Whelan has plenty of incentive to show we are wrong. Despite all of this, our analysis emerges undented—thus suggesting that the problem we describe in the essay is perhaps even more acute than we initially posited.

(The response is also available on SSRN here).

It's a strong response on the historical aspects of the debate, on which I have no particular expertise to comment.  I'll add just one thought:

Professors Kar and Mazzone describe the question as whether the Senate has "power to deliberately divest a sitting President completely of his Supreme Court appointment powers."  (This is from section 4 of their response, but it's repeated in substantially those terms elsewhere).  I think this is tendentious phrasing for two reasons.  First, it assumes the conclusion.  The President's "appointment powers" are to nominate a candidate and to appoint a nominee if the Senate gives advice and consent.  That is all the Constitution's text says on the matter.  Clearly President Obama retains these powers.  Kar and Mazzone want to use practice to create an additional presidential power to (I guess) make a nomination the Senate seriously considers, or maybe it's to fill the vacancy (they still seem a little unclear on what the President's power is).  It seems that they should instead state the issue in a straightforward way that doesn't assume any powers: must the Senate give individualized consideration to nominees?  The Constitution's text does not impose any such requirement (as I have argued), but perhaps practice does. 

Second, although some Republican Senators may be guilty of rhetorical excess, I think it wrong to say (as Kar and Mazzone do) that the Senate is "simply refus[ing] to consider any nominee from a particular President."  I'm confident that if the President were to nominate Paul Clement (or even a more moderate but originalist-oriented judge) the Senate would consider the nominee.  The Senate majority is refusing to consider the President's nominee, not because it holds a grudge against the President or doubts the President's legitimacy, but because it lacks confidence in the President's willingness to nominate a person with the judicial philosophy that the majority prefers.  So I would say that the question is whether the Senate can decide categorically that it doesn't think the President will nominate the sort of people the Senate wants to see appointed, or whether the Senate has to make this determination individually, and vote down nominees one by one.

Put that way, Kar and Bradley would have a reasonable argument that in the past the Senate has always considered Supreme Court nominees individually (subject to the exceptions they explain away).  As indicated here, I would still have trouble seeing this as a constitutional rule as opposed to just a courtesy.  But it does seem worth pointing out, as a matter of political science if not law, that something new is (or at least might be) going on here (regarding Supreme Court nominations; my impression is that this happens all the time for other nominations).  That, however, does not make it unconstitutional.
 

06/09/2016

Ed Whelan on Kar & Mazzone on the Senate and Appointments
Michael Ramsey

At NRO, Ed Whelan has a six-part series sharply critiquing Robin Bradley Kar & Jason Mazzone's article The Garland Affair: What History and the Constitution Really Say About President Obama's Powers to Appoint a Replacement for Justice Scalia.  It's too detailed to excerpt effectively, but here are the posts:

part 1

part 2

part 3

part 4

part 5

part 6

As Whelan summarizes in part 1,  Professors Kar and Mazzone purport to find a historical practice that:

Whenever a Supreme Court vacancy has existed during an elected President’s term and this President has acted prior to the election of a successor, the sitting President has been able to both nominate and appoint someone to fill the relevant vacancy—by and with the advice and consent of the Senate. [Kar & Mazzone's phrasing]

Particularly in part 3, he takes a look at their data (contained in an appendix) and doubts that such a practice exists (in particular, Kar and Mazzone seem to have trouble accounting for the failed nomination of Abe Fortas to be Chief Justice).

My prior thoughts on the Kar/Mazzone article are here: Can Custom Create a Constitutional Duty?  I think it's problematic on two grounds:

(1)  While it may be the case that historical practice can produce a constitutional rule (and it may even be the case that originalists should be willing to consider such rules as modifying the original meaning in some situations), reliance on historical practice is difficult because it may be impossible to say what the relevant historical practice is.  The Kar/Mazzone article illustrates this problem, as Whelan explores.  To give two examples, (a) they consider only nominations by an elected President, and (b) they consider only nominations for "actual" vacancies (that is, not ones where a Justice resigns effective upon the confirmation of a successor).  But why should these situations be excluded from consideration?  (Whelan calls it "gerrymandering," and there's something to that.  But I think the problem is deeper: it's not that Kar and Bradley are neessarily doing it wrong; it's that there is literally no way to decide which is right (that is, how narrowly or broadly to read the prior practice).

I explore this problem in more detail in this article: The Limits of Custom in Constitutional and International Law.

(2)  I think there is further difficulty with Kar and Mazzone's contentions that Whelan only touches on.  He asks (in part 5): how are we to know this practice, even if exists, is a constitutional rule?  I would add this:  it is commonly argued that practice can establish a constitutional rule, but that argument usually arises when the practice relaxes  a rule set forth in the text.  That is, practice is permissive.  Kar and Mazzone want to make practice constraining (that it mandate rather than allow action).  This seems to me to be very unusual, at least in the separation of powers area.  As I put it in my prior post:

[T]his [article] raises an interesting theoretical question I had not considered before.  Is it possible for custom to create a constitutional limitation that does not exist in the Constitution itself?  Constitutional custom, of course, is often invoked, especially in separation of powers debates.  But the paradigm is for custom to relax stricter separation of powers rules apparently imposed by the Constitution.  The most cited invocation of custom, for example, is Justice Frankfurter's "historical gloss" in the Steel Seizure case, where he contended that Congress' implied consent to a longstanding executive practice might convey power to the executive even where the Constitution did not expressly do so.  Most other examples I can think of are similar: presidential war powers (the President is arguably allowed to use military force in ways not contemplated by the original Constitution); executive agreements (the President can make international agreements without the Senate's consent in ways not contemplated by the original Constitution); independent agencies (Congress can create agencies protected from presidential oversight in ways not contemplated by the original Constitution); recess appointments (per Noel Canning, President can make recess appointments in ways not contemplated by the original Constitution).

Professors Kar and Mazzone suggest something very different: that customary practice might create a constitutional limit on one branch's actions that the original Constitution does not impose.  Is this an argument that is commonly made?  I cannot think of many examples.  Consider, for example, the longstanding practice (before 1940) that a twice-elected President would not stand for election a third time.  Did this practice create a constitutional rule where one did not previously exist, or was it just a practice?  I would say the latter -- it took the 22nd Amendment to make it a constitutional rule.  (Otherwise Franklin Roosevelt's last two terms were unconstitutional, which I think Professors Kar and Mazzone probably do not want to claim).

Among other problems with finding a limiting rule from practice, it's hard to know what the people creating and following the practice think about it.  If they themselves do not think of it as a constitutional rule, but only as a courtesy, then it can't become a customary rule.  In international law, where limits do arise from custom, this is reflected in the idea of "opinio juris" -- the practice isn't binding unless the relevant actors think it is binding.  So even if Kar and Mazzone are right about the practice, is there any evidence that the Senate in following the practice thought it was creating a binding rule?

On further reflection, I think this criticism is hard to answer.  The two situations are fundamentally different.  Where practice relaxes a prior rule, the relevant actors often understand that they are taking a step of constitutional significance, deliberating rejecting a stricter alternative rule.  But when the relevant actors are doing something not previously required by the Constitution, how can we say that they are changing the rule, as opposed to just acting within their discretion?  So I would say (with Whelan) that even if Kar and Bradley are right about the practice, they are wrong about its significance.

06/08/2016

Richard Primus on Hamilton the Musical
Michael Ramsey

At The Atlantic, Richard Primus: Will Lin-Manuel Miranda Transform the Supreme Court? (Via Balkinization).  The article opens with a discussion of original meaning:

To the extent that the Constitution has an actual original meaning, that meaning is fixed by historical facts. What shapes constitutional law, however, is not the actual original meaning of the Constitution. It is the original meaning of the Constitution as imagined by judges and other officials at any given time. And how judges imagine the original meaning of the Constitution depends on their intuitions—half historical, half mythical—about the Founding narrative. If you can change the myth, you can change the Constitution.

Primus focuses on Justice Scalia’s interpretation of founding father Alexander Hamilton:

Twenty years ago, in an opinion curtailing the federal government’s power to regulate gun sales, Scalia described Alexander Hamilton as the most nationalistic of the Founders. It was not a compliment. It was a reason, in Scalia’s view, to discount an argument based on one of Hamilton’s arguments in the Federalist Papers, an argument that would have upheld broad federal power to regulate in the case at hand. The true Founding view, Scalia wrote, was better captured in a different Federalist Paper by James Madison, who was more skeptical of central authority. Hamilton was out of step.

Scalia was not wrong to think of Hamilton as a fervent supporter of national government. But Hamilton’s views were not as marginal as Scalia’s treatment suggested. Any number of leading Founders were aggressive centralizers in 1787—Madison included. Writing for a majority of the Supreme Court, though, Scalia’s confidence in the Founders as local-power, small-government types enabled him to imagine Hamilton as an outlier who could be dismissed. The same set of assumptions also framed Scalia’s reading of Madison’s essay—an essay that would easily bear a more nationalistic reading than Scalia gave it. I assume, of course, that Scalia and the rest of the Court’s majority made these interpretive moves in good faith. Quite authentically, they thought of Hamilton as nonrepresentative and of Madison as skeptical of central authority. Those attitudes supported an interpretation of the sources that blocked an exercise of federal lawmaking.

He then discusses the musical's interpretation of Hamilton:

 Lin-Manuel Miranda’s musical, which opened in the last year of Scalia’s life, will make it harder for the next generation of American lawyers to think of Hamilton as marginal. A large and ecstatic audience now knows a narrative of the Founding on which Hamilton is protagonist and hero. If that perspective prevails, then future readers of originalist source material will hear Hamilton’s voice more loudly. Moreover, if Hamilton’s ardent support for centralized power is taken as the view of a leading figure, it will be easier to read the writings of other Founders as leaning further toward national authority. Certainly, the sources will bear more nationalist readings than the Court has given them in recent decades. The question is whether the judges and commentators who do the reading will continue to expect Founding texts to lean against federal power, as they have in the past generation, or whether the next generation of readers will develop the intuition that the nationalism Hamilton represents was an authentic Founding view.

And finally, how Hamilton will contribute to the rise of liberal originalism

 That should have two mutually reinforcing effects.  First, Hamilton will prime people in the audience who interpret the Constitution for a living—law professors, judges, and others—to think, consciously or otherwise, that the historical sources will bear politically progressive readings.  Second, and more importantly, it will change who is inclined to tell the story, rather than leaving that story for someone else.  If liberals of all races become confident storytellers about the Founding, they will put their own spin on the sacred sources, consciously or subconsciously, and across a broad range of issues. [ . . . ] The point is that by offering a version of the Founding that resonates with liberals today, Hamilton will encourage liberals to embrace the Founding rather than running away from it.  And when liberals appropriate the Founding, they will emphasize both consciously and subconsciously those sources that can be made to do work for liberal causes in modern constitutional law.  Some of those causes will coincide with the politics of Hamilton, or those of Hamilton, or both.  Others may not.  But we can be confident that the meanings that liberals give to the Founding, once they are inclined to play the game of originalism, will be liberal-leaning meanings. What matters is who tells the story.

What is required for liberal originalist jurisprudence, then, is a Supreme Court staffed by relatively liberal judges who have the capacity and the inclination to imagine the Founding as the origin story of the America they would like to believe in. [ . . . ] The incentive to deploy the power of originalism will be clear.  Originalism is a technology of legal change, and after 50 years of Republican majorities, a Democratic majority might find a few things worth changing. The remaining question will then be whether the justices can imagine the Founding as a source of inspiration and authority for progressive nationalists after several decades when the dominant resonance of that era has run the other way. If liberal judges have any trouble engaging in that exercise on their own, Hamilton will help them take their shot.

A great essay, but I find the idea of Hamilton as a liberal (leftist) hero pretty amusing.  I kind of doubt it would survive a Trump presidency.

06/07/2016

More on Trump and Originalists: John McGinnis Responds to Ilya Somin [Updated: Further Response from Somin]
Michael Ramsey

At Liberty Law Blog, John McGinnis: Clinton is a Greater Threat to Constitutional Jurisprudence than Trump (responding to the post by Ilya Somin noted here).  From the beginning:

Ilya Somin has disagreed with me that Trump is likely to be better for constitutional jurisprudence than Clinton. But his arguments rely on the implausible premise that Trump is likely to change the jurisprudential commitments of the Republican party. Even more importantly, he does not address the elephant in the room: Clinton’s appointments would likely return us to a Court unconstrained by our fundamental law.

Ilya is right that if Trump could change the Republican’s basic philosophy of judges from originalism to something else, that would itself impose long-term harm to nation. But Trump’s election is unlikely to have this effect. Trump is not coming into power with a parliamentary majority and or even at the head of a well entrenched ideological movement.   The way to think of Trump is that has rented the party for his own ambitions and that he will be forming a coalition with orthodox Republicans who will make up the vast majority of Republicans in the legislature. He is thus going to have to deal with the Republicans who have an independent power base and who hope to be there long after he leaves. That not only includes legislators but the Republican establishment.  And as in coalitions generally, he will focus on the issues most important to him where there is least resistance from his partners.

Of course, that does not mean Trump would be without power. On issues where Republicans are divided or where there is substantial populist sentiment on his side, he may transform the party toward his policies, many of which are indeed very bad.  Free trade is a paradigm example. But appointments to the Supreme Court are the opposite kind of issue. Republicans are pretty united,  and it is an issue dominated by elites. Are members of  Federalist Society—the single most important conservative elite in this respect—going to change their views of what makes a good judge because Trump becomes President? That elite was even able to squash an appointment of Harriet Miers that George W. Bush wanted to make.  Trump recognizes this point and that is the reason that he has embraced Republican orthodoxy on judicial appointments by putting out a list of sound judges he would consider appointing. ...

Although I agree with Professor Somin on many things, I'm not persuaded here.  First, I don't think he's made the case that Trump's justices would be worse for originalism than Hillary Clinton's (though I am less optimistic than Professor McGinnis that his picks would actually be good for originalism).  Second, I therefore agree with Professor McGinnis that the real question is whether a Trump election would result in a shift away from originalism in the Republican party.  Any answer to that question seems hopelessly speculative.  In addition to the arguments above, isn't it possible that a Trump presidency would focus Republicans (and Democrats) on the importance of judicial checks on the national government through a strong system of legal principles such as originalism?

A further thought, from a somewhat different perspective:

Professor Somin's principal fear is that Trump will push the Court's constitutional jurisprudence in a direction of strong judicial deference to the political branches.  Let's assume that's true.  Is it a bad thing, from an originalist perspective?  Of course it is, compared to an originalist Court.  But we don't have an originalist Court.  So what is the best path to an originalist Court? I can see an argument that the first step is to rein in the idea, both within the Court and generally, that important matters of social policy, to which the Constitution's original meaning does not speak, can nonetheless be decided by the Court through invocation of a "living" Constitution.  If that's so, then judicial restraint/deference can be a first step.  And in that case, originalism and Trumpist judicial deference could be allies in the short term.  I'm not fully persuaded by this argument either, but it seems one worth considering.

UPDATE:  Ilya Somin has a further long response here, which concludes:

If you think that the prospects on judicial appointments are murky, then you should emphasize other issues in comparing the two candidates. And on most of them, the case for Clinton as the lesser evil of the two is quite strong. As John recognizes, ” where Republicans are divided or where there is substantial populist sentiment on his side, [Trump] may transform the party toward his policies, many of which are indeed very bad.” If still in doubt, limited-government originalists would do well to heed the words of Alexander Hamilton: “If we must have an enemy at the head of government, let it be one whom we can oppose, and for whom we are not responsible.”

Glenn Reynolds adds:

If the Presidency and the Supreme Court were less powerful, the stakes in elections would be much lower

06/06/2016

Brian Fitzpatrick: A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology
Michael Ramsey

In the current issue of the Vanderbilt Law Review, Brian Fitzpatrick (Vanderbilt): A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology (69 Vand. L. Rev. 991 (2016)) Here is the introduction (footnotes omitted):

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky’s new book [Ed: The Case against the Supreme Court (Penguin Books, 2015)] provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book—a methodology I call “bad-cases” reasoning—was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad methodology. In this Essay, I try to explain why.

When Justice Scalia was asked how it could be that one or another of someone’s favorite constitutional rights was not recognized by his originalist approach, he would often say something like the following:

The Constitution does not guarantee everything that is good and it does not prohibit everything that is bad. It only guarantees or prohibits the specific things it enumerates. If you do not like the list, call your member of Congress.

Yet, Dean Chemerinsky’s new book is little more than an indictment of the Supreme Court for not frequently enough recognizing Dean Chemerinsky’s favorite constitutional rights. The book proceeds along the following syllogism: bad things have happened; the Supreme Court did not stop them (or even brought them about); therefore, the Supreme Court is a failure. His list of bad things has some old favorites on it, as well as some of more recent vintage: Plessy v. Ferguson, Dred Scott v. Sandford, Korematsu v. United States, Buck v. Bell,  Citizens United v. FEC, Shelby County v. Holder, etc. You get the idea.

06/05/2016

Ilya Somin on Trump and Originalists
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: The big picture on Trump and the Courts: Why constitutional originalists should be #NeverTrump all the way. He begins:

Some conservatives and libertarians who otherwise have little love for Donald Trump believe that he is preferable to Hillary Clinton because he might appoint good judges, whereas the Democrats almost certainly will not. That tendency may have increased after Trump announced a solid list of potential Supreme Court appointments last month. Leading legal scholar John McGinnis (with whom I have coauthored several articles), for example, argues that Trump is now a better bet on the Supreme Court than Hillary Clinton, even though there are strong reasons to oppose him on other issues. ...

The problem with this sort of reasoning is that it overlooks the possibility that Trump might not only fail to appoint better judges than Hillary Clinton, but actually appoint much worse ones. Even more importantly, it overlooks the likely longterm effects of a Trump victory on the Republican Party and its judicial philosophy. When it comes to constitutional law, Trump is not just a blank slate. He has an agenda.

As he continues:

... [A]ll or most of the judges on [Trump's] list are at odds with Trump’s strong commitment to undermining freedom of speech and constitutional property rights. Both long predate his presidential campaign, and are therefore likely to be genuine objectives, not merely short-term political ploys.  Trump also seeks to undermine constitutional limitations on presidential power on a shockingly wide range of issues. ...

So where to find support for this agenda?

It would likely have to be among those conservative jurists and legal scholars who support wide-ranging judicial “deference” to the political branches of government across a very broad range of issues. 

If you care about enforcing constitutional limits on government power, such ultradeferential judges are likely be even worse than standard-issue liberal ones. 

And further:

If Trump wins the presidency and his agenda is seen as a political success, he will have the opportunity to move the GOP further in a National Front-like direction. And a Trumpist/National Front party will have little use for limited government-originalist judicial philosophy. To the contrary, federalism, the separation of powers, and many individual rights limitations on government power would be an impediment to its agenda. A Trumpist GOP would, over time, seek to appoint judges in line with its priorities.

(Thanks to Michael Perry for the pointer).

I suspect, though, that many originalists would prefer a highly deferential Court to one that embraces a Tushnet/Chemerinsky version of living constitutionalism.  (Clearly, most conservatives would).  Thus Professor Somin's final point is the one most worth considering. 

06/04/2016

Samuel Olken: Classical Liberalism and the Lessons of History
Michael Ramsey

Samuel R. Olken (John Marshall Law School) has posted The Refracted Constitution: Classical Liberalism and the Lessons of History (101 Iowa Law Review Online 97 (2016)) on SSRN.  Here is the abstract:      

This essay offers a brief critique of Professor [Richard] Epstein’s notion that the Constitution is a classical liberal document and that modern constitutional law deviates in significant ways from classical liberal ideals. [Ed.: see Richard Epstein, The Classical Liberal Constitution (2014)]. It argues that the premise of a classical liberal constitution, while theoretically intriguing, is not altogether historically accurate and is more a reflection of the interpretive biases of those uncomfortable with the concept of a living constitution who are deeply skeptical about the process of constitutional adaptivity. Reading classical liberal ideals into the Constitution distorts the historical context of the framing of the Constitution, as well as misinterprets the historical nature of common law constitutional interpretation. Classical liberal constitutionalism is, in essence, another brand of originalism and, like most theories of constitutional interpretation, has its strengths and weaknesses and falls somewhat short of providing a unified theory of constitutional law.

06/03/2016

Gareth Morley: The Senate Reform and Supreme Court Act References Brings the Originalism Debate to Canada
Michael Ramsey

J. Gareth Morley (British Columbia Ministry of Justice) has posted Dead Hands, Living Trees, Historic Compromises: The Senate Reform and Supreme Court Act References Brings the Originalism Debate to Canada (Osgoode Hall Law Journal, Vol. 53(3), 2016, forthcoming) on SSRN.  Here is the abstract:      

Recent American debates about the relationship between the historic political compromises underlying constitutional provisions and their contemporary judicial application have been largely ignored in Canada. The Supreme Court of Canada has only twice referred to “originalism” — and never positively. But in two 2014 decisions about how central institutions of government — the Senate and the Supreme Court itself — might be changed, the Court relied on the underlying historic political compromises to interpret the constitution, rejecting arguments from the text or democratic principle. In this paper, I consider how the Canadian courts have looked to history in the past and in the 2014 decisions, and situate their approach within contemporary theories of originalism.

And more from the introduction (footnotes omitted):

Canada borrowed federalism and then an entrenched and a judicially-enforceable bill of rights from its southern neighbour. From the beginning, American developments have had a profound impact in Canadian constitutional law, both as negative precedents to be avoided and as positive ones to be embraced. But the most fertile and contentious American constitutional debate of the last generation – the debate about “originalism” – has been essentially ignored in Canada. The result is that a Canadian understanding of the relationship between the historical meaning of the terms of a constitution and its contemporary application remains trapped in antitheses dating from the early 1980s: a “framers’ intent” is contrasted with a “progressive” and “purposive” reading, and the assumption is made that readings that give much weight to history and political compromise will be weaker and more conservative than those that emphasize philosophical inquiry or proportionality analysis. This assumption is held both by those who think that a more active and progressive Supreme Court is good, and by those who consider it bad.

The 2014 decisions of the Supreme Court of Canada in the Supreme Court Act Reference and the Senate Reform Reference should cause us to rethink these conventional oppositions, and consider what the implications of the American originalism debate may be for Canadian constitutional jurisprudence. In both cases, the Supreme Court of Canada relied heavily on history and the dynamics of political compromise in arriving at its conclusions. Both cases created robust constraints on the ability of the federal Parliament to unilaterally reform central institutions of government. Perhaps, given all the American ink spilled over the relationship between history and current constitutional adjudication in the debate over “originalism”, we should turn south for some reference points.

...

If, as I will argue, history was determinative in two of the most important cases on the structural constitution in a generation, what lessons are there for the theory of constitutional interpretation? Does this emphasis on the history of adoption mean we have to abandon purposive and progressive interpretation? Or is history just one more factor to be mixed with others? This paper will consider how Canadian constitutional jurisprudence has used the history of adoption in the past, how that approach was disrupted by the collision of the 1982 Constitution with the conservative “original intent” school of originalism of the same time period, and how this may evolve into a constructive relationship between a Canadian jurisprudence facing new questions and a more sophisticated originalist theory.

06/02/2016

The Most Cited Textualist/Originalist Scholars, 2010-2014
Michael Ramsey

Brian Leiter is posting a series on the most-cited scholars from 2010 to 2014 in particular subjects (here is his list for constitutional law).  So I thought I would try to calculate a list of the most-cited textualist/originalist scholars for the same period, using the same methodology (as best as I can reproduce it).

A couple of caveats:  (1) I did not include anyone from the University of San Diego Law School, lest this look like a publicity stunt; (2) it's not clear who should be counted as a textualist/originalist scholar, as there are many people whose work has originalist orientations without being overtly originalist, and there are others who do some originalist work and some scholarship with other orientations; (3) I may not be able to reproduce Professor Leiter's methodology exactly; and (4) I may have forgotten someone.

For what it's worth, here is my preliminary list:

  1. Jack Balkin (Yale), 1720 citations
  2. Michael McConnell (Stanford), 1197 citations
  3. Randy Barnett (Georgetown), 1184 citations
  4. Steven Calabresi (Northwestern), 918 citations
  5. Lawrence Solum (Georgetown), 907 citations
  6. John Manning (Harvard), 846 citations
  7. John McGinnis (Northwestern), 758 citations
  8. Gary Lawson (Boston University), 695 citations
  9. Michael Paulsen (St. Thomas), 618 citations
  10. Saikrishna Prakash (Virginia), 576 citations

Runners up:

Caleb Nelson (Virginia), 570 citations; Keith Whittington (Princeton political science), 566 citations.

Highly cited scholars writing partly in the originalist/textualist field:

Richard Epstein (NYU), 2680 citations; Akhil Amar (Yale), 1747 citations; Eugene Volokh (UCLA), 1294 citations; John Yoo (Berkeley), 1260 citations.

Corrections, suggestions and other reactions are of course welcome.  I'll post an update as appropriate.

06/01/2016

Patrick Charles: The Faces of the Second Amendment outside the Home, Take Two
Michael Ramsey

Patrick J. Charles  (Government of the United States of America - Air Force) has posted The Faces of the Second Amendment outside the Home, Take Two: How We Got Here and Why It Matters (Cleveland State Law Review, Vol. 64, No. 3, 2016) on SSRN.  Here is the abstract:      

Since the late twentieth century, the Second Amendment has been increasingly promoted as the unfettered right to carry firearms in the public concourse. This expansive meaning, however, lacks historical support. Historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment. The historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriage. Differences in state armed carriage laws, analyzed from both historical and regional perspectives, will one day require the Supreme Court to determine which version of history should dictate the meaning of the Second Amendment.

05/31/2016

More from Greg Weiner on Judicial Restraint
Michael Ramsey

At Liberty Law Blog, Greg Weiner has this reply to Evan Bernick's response to his initial post: The Power of Judges, Too, Is “Of an Encroaching Nature”: A Reply to Evan Bernick (it's also in part a response to my post here).  From the core of the argument:

The Court, especially backed as it has come to be by the overwhelming weight of public opinion as to its institutional untouchability, should be subject to political restraints short of [impeachment]. Not to say that these restraints—jurisdiction-stripping, altering the size of courts, re-passing invalidated laws to provoke ongoing constitutional conversations, confining precedents to the parties to a case, declining to enforce rulings—should be everyday mechanisms. They should be part of a constitutional ecology that the courts take into working consideration.

Another part of that ecology, to be sure, should be judicial review. Especially given the esteem in which courts are held, other constitutional players would likely pay a political price for challenging them, and in recognition of that, would do so sparingly. Another part should be the elected branches’ engaging constitutional questions as they go about their business—in congressional debate, in presidential statements, and the like.

And later:

The model called for here is not judicial self-restraint. It is institutional restraint, just as the other branches are subject to institutional checks. By contrast, the use of an interpretive methodology, including originalism, as a limitation on the courts’ power is judicial self-restraint. It represents the hope that judges will stick to the method and execute it correctly—and won’t abuse the office, or err even with good intent. 

(And, as usual, interesting discussion in the comments, including further discussion between Professor Weiner and Evan Bernick).

I mostly agree with Professor Weiner's latest post (to the extent the institutional checks on the judiciary that he proposes are constitutional).  Even if some advocates of judicial engagement call for a "great degree of deference" to judges that "presumes judges’ superior capacity to correctly decide constitutional questions" (as Professor Weiner charges),  I do not.

I also share his doubts about judicial self-restraint.  But I may have a slightly different view of the question (as he poses it): "Can an interpretive theory constrain the courts?"  The originalist strategy, I would say, is not just to rely on the courts themselves.  Instead, it aims to change the legal and political culture more broadly, so that courts are understood by their chief audiences (the legal and political elite) to be acting legitimately when they follow originalism and acting illegitimately when they do not.  Thus the strategy is not purely judicial self-restraint, but cultural restraint.  Whether this is a realistic approach is a different question, but I do think that if the legal/political culture were changed in this way, it would have a profound affect on judging.  Thus I would answer: an interpretive theory on its own likely cannot constrain the courts, but an interpretive theory that becomes embedded in the legal/political culture might be able to.

RELATED:  John McGinnis objects: Judicial Restraint is a Question of Constitutional Interpretation.  He begins:

Greg Weiner and Evan Bernick have been conducting an interesting debate in this blog about the virtues of judicial restraint and judicial engagement. Rather than directly confront either position, I would like to raise a methodological point. Doesn’t judicial restraint or judicial engagement need to be rooted in the meaning of the Constitution? In other words, judges’ approach to constitutional interpretation should not be based on policy arguments about how judges should behave but on the original meaning of Constitution itself, just as our interpretation of specific provisions should be fixed by original meaning. ...