The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information
Mike Rappaport

In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location).  In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration.  But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.

In particular, Congress has provided customers of cell phone companies with protection as to their location information.  In 47 U.S.C. 222(a), Congress states that “every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.”  Other provisions make clear that location information is part of the information to be protected.  47 U.S.C. 222(c), (g).

Some have argued that this provision creates a property right or interest in the customer.  While this information has been disclosed to a third party (the cell phone company), it is argued that the customer still retains a property interest in its protection.  Thus, if one has a property oriented understanding of the Fourth Amendment, as Justice Scalia seemed to have, then this property right might indicate the customer had a right to be protected under the Fourth Amendment.

This is an interesting argument, but it may or may not be right under the original meaning.  As I explained in my prior post, the Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Therefore the question is whether this information is a “paper” or “effect.”  Perhaps Justice Scalia had a property oriented theory of the Fourth Amendment, but the text of the Amendment does not speak of property, but of more specific things, such as “paper” or “effect.”

Under a straightforward, but perhaps narrow definition of paper and effect, the information would not be a paper or effect.  A paper would refer to the actual physical piece of paper, not the information contained on it.  An effect would refer to personal property or movables that a person can carry on their person.  In neither case would the “information” be a paper or effect.  Perhaps a paper or a memory stick with that information on it would be a paper or effect, but not the information itself.

Yet one might argue that these terms should be read more broadly.  In particular, perhaps an effect should be understood to include not merely personal property movables but also property in information.  Perhaps, but my sense – albeit based on limited study – is that this information would not have been considered an effect in 1791.

But maybe a different interpretive rule would justify a broader reading.  If property in information of the relevant kind did not exist in 1791 – there were patents, but no privacy interests seem implicated by them, and trade secrets did not exist until the 19th century – then one might say that the relevant legal environment did not exist at the time of the Fourth Amendment.  In those circumstances, sometimes it makes sense to answer the question based on an analogy.  For example, one might argue that freedom of press might extend to radio or tv news, even though they did not exist at the time of the First Amendment, on the analogy that they are similar to the printing press in the relevant respects.  Similarly, one might argue that if property in information of the relevant kind existed in 1791, the Fourth Amendment would have protected it.  Maybe.

In a future post, I hope to show how Congress, the states, or private parties might protect against disclosure in a way more likely to satisfy the Fourth Amendment’s original meaning.


The Original Meaning and the Carpenter Case: “Their Papers”
Mike Rappaport

(This is the first of several posts about the Carpenter case.

The Carpenter v. United States case, which was argued before the Supreme Court last week, may turn out to be one of the most important Fourth Amendment cases.  One of the issues raised by the case involves the Fourth Amendment’s third party doctrine.  Does the Fourth Amendment apply to protect records about a person that are held by a third party such as a vendor?  Under the Supreme Court’s third party doctrine, securing this information does not require a warrant, because the information is held by a third party.  As the Court stated in US v. Miller, a person “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”

In Carpenter, the FBI obtained, without a search warrant, 127 days' worth of historical cellphone records about a suspected armed robber named Timothy Carpenter. “Thanks to those records, the government identified the cell towers that handled Carpenter's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed.”  The question is whether the Fourth Amendment applies to this type of search. 

(There is a statute that protects the information of cell phone customers.  In this post, I will largely ignore the that statute.  I will address it in my next post.)  

As usual, I am interested in the original meaning of the Fourth Amendment.  While I strongly sympathize with the individuals in these type of cases, it is not clear that the original meaning operates to protect them.  The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The records in this case are likely papers or effects (personal property), depending on the form they are in.  But they are unlikely to be the papers or effects covered by the Fourth Amendment.  The Amendment speaks of the right of the people to be secure in their “papers and effects.”  This suggest that the papers or effects must be owned or possessed by the person’s who seeks to protect them.

I do not really see an alternative interpretation.  One might argue that a person should be able to protect information about himself.  And while that might be desirable from a policy perspective in some circumstances, such as Carpenter, it does not really capture the language here which talks of “their papers” – that is, their own papers.

Does that mean that the original meaning allows the government free access to information about people held by vendors and other third parties?  Not necessarily, which I hope to show in a future post.

David Singh Grewal & Jedediah S. Purdy: The Original Theory of Originalism
Michael Ramsey

David Singh Grewal (Yale Law School) and Jedediah S. Purdy (Duke University School of Law) have posted The Original Theory of Originalism (Yale Law Journal, Vol. 127, No. 1, 2018) on SSRN (reviewing Richard Tucker, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge University Press 2016)).  Here is the abstract:

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No interpretive strategy succeeds in overcoming the dilemma of a constitution that at once embodies and prohibits democratic sovereignty.


A New Collection of Hamilton Papers
Michael Ramsey

Recently published, from editors Carson Holloway (University of Nebraska, Omaha) and Bradford P. Wilson (Princeton University): The Political Writings of Alexander Hamilton (2 vols., Cambridge University Press, 2017).

Here is the book description from the publisher:

Few of America's founders influenced its political system more than Alexander Hamilton. He played a leading role in writing and ratifying the Constitution, was de facto leader of one of America's first two political parties, and was influential in interpreting the scope of the national government's constitutional powers. This comprehensive collection provides Hamilton's most enduringly important political writings, covering his entire public career, from 1775 to his death in 1804. Readers are introduced to Hamilton - in his own words - as defender of the American cause, as an early proponent of a stronger national government, as a founder and protector of the American Constitution, as the nation's first secretary of the treasury, as President George Washington's trusted foreign policy advisor, and as a leader of the Federalist Party. Presented in a convenient two volume set, this book provides a unique insight into the political ideas of one of America's leading founders; a must-have reference source.

  • A comprehensive two-volume collection of Alexander Hamilton's most enduringly important political writings
  • Provides a detailed insight into the political thought of one of America's leading founders
  • Makes a significant contribution to the study of Alexander Hamilton, examining both his political thought and his statesmanship

Thanks to Donald Drakeman for the pointer.



Andre LeDuc: Originalism, its Critics, and the Promise of Our American Constitution
Michael Ramsey

Andre LeDuc (Independent) has posted Striding Out of Babel: Originalism, its Critics, and the Promise of Our American Constitution (William & Mary Bill of Rights, Vol. 26, No. 1, 2017) on SSRN.  Here is the abstract:

This Article pursues a therapeutic approach to end the debate over constitutional originalism. For almost fifty years that debate has wrestled with the question whether constitutional interpretations and decisions should look to the original intentions, expectations, and understandings with respect to the constitutional text, and if not, what. Building on a series of prior articles exploring the jurisprudential foundations of the debate, this Article characterizes the debate over originalism as pathological. The Article begins by describing what a constitutional therapy is.

The debate about originalism has been and remains sterile and unproductive, and the lack of progress argues powerfully for the conclusion that a successful resolution of the debate is not likely to be achieved by any of the protagonists. Instead, the debate should be abandoned.

At a conceptual level, there are a variety of sources for the pathology of the debate, but a series of tacit ontological and other jurisprudential assumptions play a central role. The Article explains why neither side in the debate over constitutional originalism can hope to prevail. Any hope to revive or reconstruct the debate seems at once implausible and unlikely to deliver any significant doctrinal or methodological payoff to our American constitutional law. If we articulate the tacit premises of the debate, we can recognize why the debate over originalism reflects more confusion than substantive disagreements. As we do so, we begin to see the way forward beyond the debate. Making the source of the debate’s disagreements appear confused rather than important also provides ample motivation to move on. This Article concludes by arguing that such a postdebate constitutional discourse and practice is indeed possible, as well as desirable.


Mark Movesesian on the Constitutional Right to Go Topless
Michael Ramsey

At Liberty Law Blog, Mark Movesisan (St. John's): Tradition and Going Topless.  It begins:

Last month, a three-member panel of the U.S. Court of Appeals for the Seventh Circuit handed down an important decision in Tagami v. City of Chicago, the “GoTopless” case, a constitutional challenge to a Chicago public nudity ordinance that prohibits women, but not men, from appearing topless in public. The court upheld the ordinance by a vote of 2 to 1. The debate between Judge Diane Sykes, who wrote the majority opinion, and Judge Ilana Rovner, who wrote the dissent, offers fascinating insight into the role of tradition in constitutional law.

And a key substantive point:

First, Judge Sykes’s opinion suggests that, even after cases like ObergefellLawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the  Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.


William Michael Treanor: The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary
Michael Ramsey

William Michael Treanor (Georgetown University Law Center) has posted The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary (Cambridge Companion to The Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming)) on SSRN.  Here is the abstract:

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.


The President and Obstruction of Justice (Again)

In the New York Times, Saikrishna Prakash and John Yoo: Don’t Prosecute Trump. Impeach Him.

As to prosecution, they argue:

The Constitution imposes on the president the duty to “take care that the laws be faithfully executed,” which vests the authority to oversee all federal law enforcement. As Alexander Hamilton observed in Federalist 70, “good government” requires “energy in the executive,” and a vigorous president is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.” Ever since the framing, presidents have enjoyed the right to drop prosecutions as a waste of resources. Indeed, this is the very theory that President Barack Obama raised when he unilaterally reduced the enforcement of the immigration laws under the Dreamers and Deferred Action for Parents of Americans programs.

Because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House. He even has the power to pardon its targets, including himself. Mr. Trump can decide tomorrow that pursuing Mr. Flynn and others for lying to the F.B.I. agents is a waste of time and money. Though he claimed that he fired Mr. Comey for not doing “a good job,” the president can fire any cabinet and high-ranking Justice Department official for any reason or no reason.

And as to impeachment:

If Mr. Trump has truly impeded a valid investigation, Congress should turn to impeachment, which allows for the removal of a president for “high crimes and misdemeanors.” Impeachment does not require the president to commit a crime, but instead, as Hamilton explained in Federalist 65, encompasses significant misdeeds, offenses that proceed from “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Such offenses, he said, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

The House and Senate can make their own judgments — political as well as legal — about whether the Trump team’s involvement with the Russians or Mr. Trump’s comments to Mr. Comey fit this constitutional standard. Congress can begin this course of action by forming a special committee to investigate the Russia controversy and the Trump-Comey-Flynn affair, which could also find any predicate facts for a case of impeachment. If Congress believes that these events do not merit obstruction of justice or illegal conspiracy, it should go on the record with its judgment, too — a result Mr. Trump would welcome.

I think this is all correct as a matter of the Constitution's original meaning.  On the first point, it's important to emphasize that a President most certainly could be guilty the crime of obstructing justice -- for example, for threatening witnesses or destroying evidence.  Professors Prakash and Yoo (and others making this argument, including President Trump's counsel) aren't arguing otherwise.  The claim instead is that the President can't be guilty of the crime of obstructing justice when exercising his constitutional powers to direct investigations and prosecutions.  That seems right -- the President is in charge of all of the executive branch, and ultimately he makes the decisions about prosecutions as part of his executive authority to enforce the law (granted, I would say, by Article II, Section 1 of the Constitution).  The executive power over prosecution traditionally included the power not to prosecute for a range of reasons -- to avoid wasting resources, among others, but also for reasons of fairness, or national security, and many others.  Neither the FBI nor the special prosecutor exist outside the executive branch; they are subject to presidential oversight and direction as a constitutional matter (irrespective of what a statute might purport to say, but in any event the relevant statutes don't appear to clearly say otherwise).  

On the second point, it's important to emphasize that (as the authors say) impeachment does not require a criminal offense, even though at first glance the Constitution's text ("high Crimes and Misdemeanors") may appear to say so.  Misdemeanor here means "misconduct in office" not "minor criminal offenses."  As a result, even though a President would not be guilty of a crime for wrongfully discontinuing a prosecution (that is, doing so for a bad reason), he would be subject to impeachment if Congress felt the misconduct ("Misdemeanor") was sufficiently grave to warrant it.  This process provides the check on a corrupt President that some commentators claim would be lost without the possibility of criminal prosecution.  But it should also be emphasized that the impeachment process itself is discretionary, in that Congress could decide that, even if a "Misdemeanor" occurred, the harm of pursuing it would outweigh the benefit.  Nothing in the Constitution requires Congress to proceed with an impeachment.

(On impeachment, see this earlier post; on the two issues together, see the article by Noah Feldman linked in this post, reaching roughly the same conclusion that I do).

Josh Blackman has related thoughts here: Obstruction of Justice and the Presidency: Part I.  I'm not sure what to make of his second-to-last paragraph, but if his position is that the President cannot be impeached for improper use of the prosecutorial discretion power, I strongly disagree.  I'll wait to see what he says in "Part II".


The Fourteenth Amendment and Masterpiece Cakeshop
Chris Green

David Upham and I, following up on our amicus brief in the case, have posted an essay at Public Discourse: The Fourteenth Amendment and Masterpiece Cakeshop: Equal Citizenship, our Inclusive Republic, and Anglo-American Common Law. Our summary: "The government cannot impose creedal and exclusionary limits on occupational freedom by compelling particular citizens to provide goods and services contrary to their beliefs, unless those citizens have such a monopoly market power as to exclude other citizens from the market."

Several of the justices at the oral argument today sounded themes relevant to our position, particularly the distinction between those with and without local-natural-monopoly market power.  Asking questions of Solicitor General Noel Francisco, who supported the baker, Justice Sotomayor at pp. 28-30 expressed concern about markets with local natural monopolies, such as professionals serving military bases. Our proposed resolution of the case would sidestep such markets.  Justice Kennedy followed up on this sort of concern at pp. 44-45, worrying that more and more professionals might take positions like Masterpiece. If and when they did, the change in market power would pose a different police-power question.

Several justices also pressed the lack of tailoring of Colorado's regulation to those with market power: Justice Breyer at pp. 57-58 noted that Colorado had not made any effort to accommodate those whose beliefs would not imperil the tangible goals of the law, returning at pp. 63-64 with a hypothetical about a referral-down-the-street accommodation, which Colorado rejected (flatly at first, then more tentatively). Justice Breyer also referred at p. 78 to "an important public policy, the policy of opening the doors to everyone, including minorities, in the public commercial area." Limiting the holding to low-market-power dissenting creedal minorities would leave that policy unimpaired, and indeed, the entire point of our Fourteenth Amendment argument is to preserve such a policy: "opening the doors to everyone, including [creedal] minorities [like Masterpiece], in the public commercial area."

The one place at which Justice Kennedy seemed most clearly to tip his hand about his inclinations in the case, at page 62, used similar reasoning. Because there were "other good bake shops that were available," Kennedy said, "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

It is true that no one on the Court (or at the podium) used the phrases "Fourteenth Amendment" or "original meaning," and commentators like Eric Segall tweaked Justice Gorsuch for the failure. Time was tight, however, and in looking for a doctrinal hook on which to hang a readily-available-substitutes holding, the Justices may yet turn Fourteenth-Amendment-ward. One can always hope!

Update (12/6): Reacting to the portion of the argument where Francisco answered Justice Sotomayor, Andy Koppelman comments on the readily-available-alternatives rule (part of Koppelman's argument that any and all resolutions in favor of the plaintiff would "lead to chaos"):

But notice how impossible this makes the burden for the discrimination claimant: now, in addition to proving the discrimination, the complaint would have to survey the neighborhood to prove that no substitute was available, which would mean contacting every other service provider to ask what they would have done. (And hope for truthful answers: Those who discriminate often don’t want to advertise that fact.)

This does not seem right to me at all. Those seeking wedding cake are, after all, seeking wedding cake, and it should be relatively easy to find out whether they found one and with what difficulty. The burden of showing the unavailability of a product is no different from the ordinary burden that a contract or tort plaintiff has in showing damages. Consider, for instance, one of the cases we discuss here at pp. 32-33: the 1844 plaintiffs in Hawthorn v. Hammond, who sued because they were "obliged to go on to Bridgenorth" after a hotel refused them entry. Assessing the "trouble, inconvenience, and expense" of a change in plans requires exactly the sort of assessment Koppelman calls impossible. It is not only possible, but near-ubiquitous in the law.

William Dodge: Customary International Law, Change, and the Constitution
Michael Ramsey

William S. Dodge (University of California, Davis - School of Law) has posted Customary International Law, Change, and the Constitution (106 Georgetown Law Journal, forthcoming) on SSRN.  Here is the abstract: 

Customary international law has changed in many ways since ratification of the U.S. Constitution. This Article considers the implications of those changes for customary international law’s role under the Constitution. In particular, it challenges the claims made in a new book, The Law of Nations and the United States Constitution, that U.S. courts must respect the “traditional rights” of foreign nations under the law of nations and may not apply the modern customary international law of human rights. The Article argues that the book is not consistent in its approach to changes in customary international law, embracing some while rejecting others. The Article also shows that a full account of how customary international law has changed undercuts each of the book’s two constitutional arguments.

This is another article in the outstanding Georgetown Law Journal symposium on "The Law of Nations and the United States Constitution" (see my post from yesterday on my contribution to the symposium).  I don't dispute the principal conclusion of Professor Dodge's article, that the U.S. courts may apply the modern law of nations (in at least some instances) consistent with the Constitution's original meaning.  But Professor Dodge and I have a deeper dispute over original meaning in this area, namely on the question whether customary international law can be the basis for federal court jurisdiction in human rights (and other) cases.  I will further explain the relevance of that dispute in a future post.


The Constitution's Text and Customary International Law
Michael Ramsey

I have posted my new paper The Constitution's Text and Customary International Law (106 Georgetown Law Journal, forthcoming 2018) on SSRN.  Here is the abstract: 

The Constitution’s text does not directly address the role of unwritten international law in the U.S. domestic legal system, apart from giving Congress the power to define and punish offenses against the law of nations. This may seem surprising, as the Constitution’s framers were concerned about compliance with international law (then called the law of nations). Modern commentators have advanced various theories of the Constitution’s original relationship to the law of nations, ranging from the view that the Constitution fully incorporated the law of nations as U.S. federal law to the opposite view that the law of nations has no status in U.S. domestic law until incorporated by Congress pursuant to the define-and-punish power. 

This essay defends an intermediate position based on the Constitution’s text and historical background. First, it argues that the law of nations was not supreme over state law nor the basis of federal court jurisdiction under the Constitution’s original meaning. In particular, the text’s distinct treatment of treaties – which it expressly makes part of supreme law and the basis of federal jurisdiction – strongly implies a different status for unwritten international law. The Constitution’s framers confronted parallel problems of states violating U.S. treaties and states violating unwritten international law. But in drafting the Constitution they did not provide parallel solutions. This indicates a distinct approach for unwritten international law, requiring action by Congress (or the treaty-makers) to convert it into supreme domestic law. Second, however, this essay argues that the unwritten law of nations could be a rule of decision for U.S. courts with appropriate jurisdiction if it did not conflict with other domestic law. English and American courts prior to the Constitution routinely used the law of nations as a rule of decision, and there is no reason to suppose that the federal courts’ “judicial Power” granted by Article III did not include this traditional authority. Moreover, U.S. courts in the immediate pre-ratification period routinely used the law of nations as a rule of decision without objection. Thus under the Constitution’s original meaning the law of nations was part of domestic law, but it was not of supreme domestic law established by Article VI nor a basis for federal jurisdiction under Article III.

This essay also considers a different “intermediate” view of the law of nations advanced by Professors Anthony J. Bellia and Bradford Clark in their important new book “The Law of Nations and the U.S. Constitution.” [ed.: here is link to the book's Amazon page.]  Bellia and Clark argue, among other things, that different parts of the law of nations had different roles under the Constitution’s original meaning. Specifically, they argue that the Constitution’s assignment to the federal government of the power to recognize foreign governments implicitly precluded states from interfering with the rights of foreign nations established by the law of nations. Thus, while the law of nations did not become part of supreme law for all purposes, the rights of recognized foreign governments – reflected for example in doctrines such as foreign sovereign immunity and the act of state doctrine – did in effect become part of supreme law, displacing contrary state law. This essay concludes that the Bellia and Clark position is not supported by evidence from the founding era. However, it further concludes that the Bellia and Clark position may be the best way to understand modern judicial practice, which appears to make foreign sovereign rights superior over state law without recognizing a full incorporation of unwritten international law into supreme domestic law.

This paper is part of the Georgetown Law Journal's excellent symposium on the Bellia/Clark book.  Some of the other papers have been posted on SSRN already, and I'll link to others as they become available.


Judge Brett Kavanaugh on Judge David Barron on War Power
Michael Ramsey

At Lawfare, Judge Brett Kavanaugh reviews Judge David Barron's new book Waging War: The Clash Between Presidents and Congress, 1776 to ISIS (Simon & Schuster, 2016).  From the core of the review:

What does Barron’s survey of historical practice show us about those two major questions of war powers law?

First, Barron argues that, with rare exception, presidents from the founding to the present have led the nation into large-scale foreign wars only when they have obtained congressional authorization.

Commentators and the media sometimes say that presidents have often led the nation into war unilaterally and that presidents lawfully may do so. But Barron says that those assertions about the Constitution and historical practice are wrong.

Barron starts with the original understanding of the Constitution on this point. He explains that the framers themselves “leaned hard in Congress’s favor when it came to making the crucial decision between war and peace” (p. 22). The text of Article I of the Constitution grants Congress numerous war powers, including the power to declare war. The text of Article II makes the president the commander in chief, thereby ensuring civilian control of the military, among other things. But Article II does not afford the president, at least expressly, any other unilateral war powers. Barron points out that even Alexander Hamilton, who generally favored a strong executive, emphasized in “Federalist 69” that the president lacked the power to unilaterally take the nation into war.

As Barron describes it, that founding understanding has been followed throughout American history: Congress has authorized almost every substantial foreign war waged by the United States. Those wars include: the Quasi-War against France in the late 1700s, the War of 1812 against Great Britain, the Mexican-American War in the 1840s, the Spanish-American War in the 1890s, World War I, World War II, the Vietnam War (through the Gulf of Tonkin Resolution), the Persian Gulf War, the war against al-Qaeda and related terrorist groups beginning in 2001, and the war against Iraq beginning in 2003.

After painstakingly reviewing the text and original understanding of the Constitution, as well as longstanding historical practice, Barron concludes that Congress must authorize or declare war and that presidents do not have unilateral authority to take the nation into war. Barron recounts and concurs with Madison’s statement in the run-up to the War of 1812 against Great Britain: Whether to go to war is a question “which the Constitution wisely confides to the Legislative Department of the Government” (p. 85).


In short, Barron advances an important originalist and historical-practice case that presidents constitutionally must obtain—and ordinarily have obtained—congressional authorization to take the nation into any substantial foreign war.

And here is a description of the Barron book from Amazon: 

A timely account of a raging debate: The history of the ongoing struggle between the presidents and Congress over who has the power to declare and wage war.

The Constitution states that it is Congress that declares war, but it is the presidents who have more often taken us to war and decided how to wage it. In Waging War, David J. Barron opens with an account of George Washington and the Continental Congress over Washington’s plan to burn New York City before the British invasion. Congress ordered him not to, and he obeyed. Barron takes us through all the wars that followed: 1812, the Mexican War, the Civil War, the Spanish-American war, World Wars One and Two, Korea, Vietnam, Iraq, and now, most spectacularly, the War on Terror. Congress has criticized George W. Bush for being too aggressive and Barack Obama for not being aggressive enough, but it avoids a vote on the matter. By recounting how our presidents have declared and waged wars, Barron shows that these executives have had to get their way without openly defying Congress.

Waging War shows us our country’s revered and colorful presidents at their most trying times—Washington, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Eisenhower, John F. Kennedy, Johnson, both Bushes, and Obama. Their wars have made heroes of some and victims of others, but most have proved adept at getting their way over reluctant or hostile Congresses. The next president will face this challenge immediately—and the Constitution and its fragile system of checks and balances will once again be at the forefront of the national debate.

As readers of this blog well know, I agree with these conclusions as an originalist matter (as do, I think, most originalist-oriented legal scholars apart from Professor John Yoo).  I further think this topic poses a challenge to critics of originalism -- especially historians critical of the originalist enterprise.  If originalism is a fundamentally flawed approach, then the originalist conclusions regarding presidential war power advanced by Judge Barron and others must be wrong -- either because the Constitution actually established a different rule or because the Constitution's original meaning cannot be understood today.  But I'm not aware of any such arguments by originalist critics regarding presidential war power.



John McGinnis on Robert Bork and Judicial Restraint
Michael Ramsey

At Liberty Law Blog, following up on this post by Mark Pulliam, John McGinnis: Bork Was a Great Scholar, But Poor Guide to Modern Originalism.  Key point:

The problem is that Bork’s theory combined judicial restraint—something he derived from his view of democracy – and original meaning. These are simply incompatible as first principles. If one begins, as I do, with the first principle of originalism, the question of the appropriate degree of judicial deference, if any, to legislation is itself a question of constitutional meaning. I have offered reasons rooted in original meaning that the Constitution imposes on judges a modest duty of deference in that the meaning of the Constitution must be relatively clear, after using traditional judicial methods of clarification, before invalidating legislation.  This judicial duty is simply a product of original meaning, not some atextual policy of judicial restraint.

Nor does originalism rule out unenumerated rights, as Bork sometimes implied, if that is indeed the best reading of the Constitution’s text. In my view, the Ninth Amendment is not a fount of rights against the states,  but that view does not derive from judicial restraint but from my reading of the Ninth Amendment. On the other hand, I believe that Privileges or Immunities Clause offers a modest shield against protectionist state legislation, but that view again is based on my reading of the original meaning of the term.


Mark Pulliam on Robert Bork and Judicial Activism
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: What Robert Bork Learned from Judicial Activism, Right and Left.  From the introduction: 

I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987.  Next month will mark the fifth anniversary of his passing on December 19, 2012. Bork was profoundly influential in conservative legal circles when I graduated from law school in 1980 and started paying closer attention to constitutional theory. I was impressed with both Bork’s scholarly writings and his more polemical articles in publications such as National Review. A 1982 essay he wrote in NR, entitled “The Struggle Over the Role of the Court,” reprinted in his 2008 anthology A Time to Speak, remains timely—even prescient. Ramesh Ponnuru has called Bork’s 1990 book, The Tempting of America, written in the wake of his confirmation defeat, “the most important popular statement of judicial conservatism yet produced.”

Certain libertarians who favor a more emphatic judicial approach now criticize Bork, once revered in center-right legal circles. For advocating judicial restraint, Bork has been labeled as a “moral eunuch,” “amoral,” “relativistic,” a “moral nihilist,” and a “majoritarian.” These criticisms ultimately parallel those of left-liberals: Bork’s advocacy of original intent and judicial restraint denies them the license to shape the Constitution according to a preferred ideological template, which, in this case, means libertarianism. Bork’s unforgivable sin was pointing out that republican self-government “means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.”

These negative assessments of Bork are particularly ironic in light of the fact that Bork revolutionized antitrust law by infusing the topic with economic analysis, culminating with his 1978 treatise The Antitrust Paradox. Moreover, during the 1960s, while many of his colleagues at Yale Law School were striking fashionable leftist poses, the free-thinking Bork was exploring libertarian themes. Unlike many current legal scholars, while at Yale (1962-1975, 1977-1981), Bork wrote for both academic audiences and in lay publications such as The New Republic and Fortune, exhibiting a flair for controversy and becoming an early exemplar of what we now call a “public intellectual.” ...

And I didn't know this:

In a 1968 Fortune article, Bork expressed sympathy for the Supreme Court’s recognition of “fundamental” natural rights not listed in the Constitution, under the rubric of the Ninth Amendment, which he believed could be read to preserve individual rights not expressly set forth in the Constitution.  The Ninth Amendment, Bork averred, “seems to mean that the Bill of Rights is an incomplete, open-ended document.” In fact, Bork described liberal Justice Arthur Goldberg’s concurring opinion in Griswold v. Connecticut (1965)—adopting this theory—as “persuasively argued.” Bork suggested that “the idea of deriving new rights,” even “individual freedoms far beyond the text of the Constitution,” was “valid and valuable.” In the interest of consistency, however, Bork proposed that the Griswold approach be extended to restore protection for long-forgotten economic freedoms, rejecting the Court’s post-New Deal distinction between “personal” and “economic” rights. In other words, decades before the “libertarian legal movement” was hatched, Bork was exploring all of its themes, including the demotion of economic liberties in United States v. Carolene Products (1938).

But as the essay explains, he then changed his mind, particularly under the influence of Alexander Bickel.


Donald Drakeman: Consequentialism and the Limits of Interpretation
Michael Ramsey

Recently published in the journal Jurisprudence, Donald L. Drakeman: Consequentialism and the limits of interpretation: do the ends justify the meanings?  Here is the abstract: 

A recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This article argues that making consequentialism the primary basis for judicial decision-making runs counter to the long history of legal interpretation, is contrary to the insights of modern decision science, and raises significant separation of powers issues, even when it is fully disclosed. Covert consequentialism is even less likely to lead to good consequences, and it poses substantial threats to both the separation of powers and the rule of law.

Although the abstract doesn't make this clear, the article is an important response to Cass Sunstein's article There is Nothing that Interpretation Just Is (30 Constitutional Commentary 193 (2015)).  From the introduction (footnotes omitted):

Sunstein's title will likely appear whenever someone needs to defend an argument from an attack along the lines of, ‘That's not an interpretation of the law, just your own preferences’. The now obvious response is, ‘Of course it is. Harvard Professor Sunstein has taught us that there is nothing that interpretation just is’.

Sunstein's plea for interpretative flexibility is part of a recent resurgence in transnational scholarship encouraging judges to base decisions primarily on their consequences rather than on the traditional processes of interpretation.  These scholars seek to inform – and perhaps to replace – the age-old arguments about how legal texts should be interpreted with a consequentialist focus on the expected results of judicial decisions. Drawing inspiration from a variety of fields, from macroeconomics to systems biology, they increasingly see constitutions, charters, laws and regulations as an invitation for judges to weigh the likely outcomes of various possible decisions, and then choose the one that, on balance, makes the world a better place.

Surprisingly few of these discussions explore how judicial consequentialism relates to judges’ traditional role as interpreters of authoritative legal texts. When the issue has occasionally appeared, the principal inquiry has been whether the consequentialist reasoning should be ‘open’ or ‘covert’.

Meanwhile, several American scholars have embraced a covert mode in which judges reach decisions for a variety of reasons, but the court's publicly disclosed rationale is written instead in the conventional language of interpretation. Mark Tushnet has written, for example, that if he were a judge, he would consider ‘which result is … likely to advance the cause of socialism’, and then, having picked the desired result, he ‘would write an opinion in some currently favoured Grand Theory [of the Constitution]’. ...

Sunstein's ... goal is to find creative ways to employ traditional forms of legal reasoning to clothe consequentialist decisions. His major theme is that the usually conflicting views of leading theorists and jurists – he cites Ronald Dworkin, Justice Antonin Scalia, John Hart Ely, and others – are all legitimate contenders in the realm of interpretative theory, but they largely miss the point: because these conflicting views are all legitimate modes of interpretation – and, therefore, none has a valid claim to exclusivity – judges can be flexible and pick whichever one plausibly justifies a consequentialist judicial decision.

In ‘not ruling out’ any of the traditional interpretative approaches, Sunstein does not invoke the full degree of postmodernism implied by his title, which would require him to make what he calls the ‘preposterous’ claim that the meaning of a legal text is ‘entirely up for grabs’.  Yet, ‘among the permissible alternatives’, he argues, ‘identification of the proper approach to constitutional interpretation requires attention to whether it would make our constitutional order better or worse’. For Sunstein and other adherents of the covert school of thought, freeing judges to make the best choices means releasing them from the constraints of worrying about methodological purity or interpretative consistency. Since ‘there is nothing that interpretation just is’, covert consequentialists have considerable freedom to select the ideal outcome while retaining the rhetorical value of the time-honoured language of interpretation ...

There are two interrelated questions addressed in this article. The first is whether judges should embrace consequentialism with the level of enthusiasm encouraged by recent scholarship. While consequentialism can appear in a variety of forms, this article will concentrate on the use of consequentialist analyses by apex courts to reach a decision about the interpretation of a statute, constitution, charter, treaty or other element of the written law such that the new meaning establishes a rule that is applicable to future cases. For several scholars, including Flavia Carbonell's discussion of the Chilean Constitutional Court and Sunstein's analysis of US constitutional law, this consequentialism extends to cases involving fundamental rights and other highly contested issues of public policy.   The second question is whether judges who adopt consequentialism in such cases should openly acknowledge that methodology in the publicly available record of the judicial decisions or whether their consequentialism instead should be covert, with a plausible interpretative argument used in its place? ...

And the first substantive section is titled "What Interpretation Is."


The CFPB and Absence versus Resignation
Michael Ramsey

In the on-going debate over who now heads the Consumer Financial Protection Bureau (CFPB), the focus has been on whether the statute establishing the CFPB (the Dodd-Frank Act) overrides the Vacancy Reform Act (VRA).  (Marty Lederman has a good discussion here).  The debate highlights a broader point about textualism (and, by extension, originalism).

Dodd-Frank says that the Deputy Director of the CFPB “shall . . . serve as acting Director in the absence or unavailability of the Director.”   The VRA says that  in the case of a vacancy in an office for which Senate advice and consent is required (which includes the Director of the CFPB) “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity" but also that “notwithstanding [the prior provision], the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity ...”  President Trump appointed an Acting Director of the CFPB pursuant to the VRA; but the Deputy Director of the CFPB claims to be Acting Director pursuant to Dodd-Frank.

My view (following Andy McCarthy at NRO) is that President Trump's appointment should prevail, as it is obviously authorized by the VRA and that the Dodd-Frank provision isn't relevant.

The key language from Dodd-Frank again is that the Deputy Director serves as Director "in the absence or unavailability of the Director."  That is not the situation here.  The former director (Richard Cordray) has resigned.  Thus there is no Director.  As McCarthy puts it: "What Cordray has created is a vacancy. He is not merely absent or unavailable in the commonsense, temporary understanding of these words; he is gone."

In ordinary speech, the phrases "absence" and "unavailability" of a person indicate that the person exists but is presently incapable of acting -- for example, because the person is sick, on vacation, or otherwise incapacitated.   Suppose I call an agency and ask to speak to the Director, and I'm told by the receptionist that the Director is "absent or unavailable."  I will assume that there is a Director, but he can't talk to me now, and I might ask the receptionist to have him call me once he is available.  I would be quite surprised if I later learned that actually there was no Director of that agency because the office was vacant, the previous Director having resigned or died.  If that were the case, the receptionist would have said "sorry, there currently is no Director as the office is vacant," not that the Director is "absent or unavailable" (implying that there is a Director who can't come to the phone at the moment).

This reading perfectly reconciles the two statutes.  Dodd-Frank provides for the case in which there is a Director of the CFPB but he cannot perform his duties.  The VRA provides for the case in which there is no Director (a vacancy). 

The current situation is obviously in the latter category.  Cordray is not the Director, having resigned.  The textual counterargument must somehow be that Cordray is actually still "the Director" but he is "absen[t] or unavailab[le]" due to his resignation.  But that is incoherent.  Once he resigns he is no longer the Director, and although he may be "unavailable," he is not the Director and his unavailability does not mean "the Director" is unavailable.  Rather, after his resignation there is no Director.  If the question is, is "the Director absent or unavailable," the answer is no, because there is no Director to be absent or unavailable.

To be sure, it's possible to argue that the phrase "absence or unavailability of the Director" could include a situation in which there is no Director.  (As Professor Lederman notes, the Office of Legal Counsel has taken that position).  But here is my broader point about textualism: Textualism does not contend that statutes (or constitutional provisions) will typically have only one conceivable meaning.  Lawyers will almost always be able to find another conceivable meaning, if it serves their interests (that's how lawyers are trained).  The question for a textualist is whether one meaning is substantially more likely than the other -- if so, it should be preferred, even where there is a conceivable alternative.

In the CFPB debate, I think the ordinary meaning of "absence or unavailability" of the Director is clear and does not include vacancies -- even if the phrase could arguably be stretched to include them.  It's not enough that the stretch is arguable; the question is whether the stretch is the more plausible reading of the language.  I think quite clearly is not.  That should be enough for a textualist conclusion: the VRA, not the Dodd-Frank provision, applies to the current situation.


Originalism and Proportionality Analysis
Mike Rappaport

One of the important differences between American constitutional law and the constitutional law of much of Europe and of many countries throughout the world is the use of proportionality analysis outside of America.  Proportionality analysis can be thought of in several ways, but it is primarily a doctrinal tool used to analyze whether an individual constitutional right can be regulated by the state.

Proportionality analysis generally considers the following aspects:

1. Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right?

2. Are the means in service of the objective rationally connected (suitable) to the objective?

3. Are the means in service of the objective necessary, that is, minimally impairing of the limited right, taking into account alternative means of achieving the same objective?

4. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation; in short, is there a fair balance between the public interest and the private right?

Clearly, this four part test is similar to, but distinct from the doctrinal tests that the U.S. Supreme Court often uses to analyze rights, such as strict or intermediate scrutiny.  But it differs by allowing for more balancing (under step 4) and in the way the courts apply it.

High courts in Europe and throughout the world have used this approach in breathtaking exercises of judicial power.  And it is sometimes thought to be the opposite of an originalist approach.  But in this short essay (of seven pages), I argue that originalism and proportionality analysis are not opposites.  In fact, some of the time proportionality analysis may be justified under originalism.

Here is the abstract:

While it is often thought that proportionality analysis (PA) and originalism are inconsistent with one another, this essay argues that the two approaches do not necessarily conflict.  The reason is that originalism and PA are focused on different things.  Originalism is an interpretive method that attempts to determine and apply the original meaning of a constitution.  PA, by contrast, is a method mainly for analyzing rights under the fundamental law.  If the original meaning of the constitution requires PA, then the two approaches will coincide.  If the original meaning requires something other than PA, then the two will conflict.

The real question, then, is not whether the two approaches conflict or coincide in general, but whether the original meaning of a particular constitution requires or permits PA.  This essay, which is part of a symposium on originalism published online in the Italian Law Journal Diritto Pubblico Comparato Ed Europeo, develops these points.  It starts by showing that originalism is not necessarily inconsistent with PA.  It then explores the changes in originalism in recent years and some of the different types of originalism.  It then explains how several constitutions throughout the world, that do not explicitly allow PA, might or might not, depending upon the details, be understood to require or permit PA.

Justice Gorsuch on Originalism and Textualism
Michael Ramsey

From the AP's Mark Sherman, Gorsuch establishes conservative cred in 1st year on court.  With these observations on Justice Gorsuch's speech to the Federalist Society's National Lawyers' Convention: 

Gorsuch made no apologies either for the substance of his questions and writing, or his style. He talked at length about the importance of seeking out the meaning of the Constitution and laws as they were understood when they written.

“Originalism has regained its place at the table of constitutional interpretation, and textualism in the reading of statutes has triumphed. And neither one is going anywhere on my watch,” Gorsuch said.

He went on to note that “some pundits have expressed bewilderment” about the questions he asks in court.

“But while I have you here tonight, I thought I might just settle the matter once and for all by taking a poll. ... Should I just keep on asking about the text and original meaning of the Constitution?” he asked.

The response was predictably and overwhelmingly in favor.

(Via How Appealing).



Philip Hamburger on Oil States v. Greene's Energy
Michael Ramsey

Along with Carpenter v. United States (discussed here yesterday; argument on Wednesday), a second important constitutional case at the Supreme Court this week is Oil States Energy Services, LLC  v. Greene's Energy Group, LLC, argued today.  At Notice and Comment, Philip Hamburger has this historically oriented discussion: PTAB, Patents, and the Constitution.  From the introduction:

The question [in Oil States] is whether the PTAB is unconstitutionally extinguishing private property rights in a non-Article III forum without a jury. At stake, therefore, is a range of vital issues, including patents, property, and the right to be heard in a real court, with a jury.


In the seventeenth-century, the Privy Council had invalidated patents for inventions and thus had evaded the regular courts. And it is not unsurprising that, amid royal assertions of absolute power, the Privy Council thus challenged what were understood as property rights. But this soon became a constitutional anomaly, and in the eighteenth-century the Privy Council gradually relinquished its power to recall patents. Thus, notwithstanding the Privy Council, patents remained, in the ideals of the common law, grants made of record, which were vulnerable only in courts of record.

It is therefore no small matter that, since the adoption of the Constitution, Congress has authorized the grant of “patents.” The Constitution authorizes Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The use of the word “patent” echoes the Constitution’s words about “securing” an “exclusive right.” The Constitution evidently was speaking about a right to property—a sort of right protected by the courts. And Congress’s use of the phrase “letters patent” in 1790 and later is powerful evidence as to how the Constitution’s authorization was understood at the founding and for a long time thereafter.

Patents were grants of property rights—rights that could be invalidated only in the courts.

(Via Instapundit).


Orin Kerr on Carpenter v. United States
Michael Ramsey

At Lawfare, Orin Kerr: Four Thoughts on the Briefing in Carpenter v. United States (Carpenter v. United States, the cell-cite records case, will be argued next week, on Nov. 29th).

On the so-called "mosaic" theory: 

The most striking aspect of the briefing in the case is that Carpenter goes all-in on the mosaic theory of the Fourth Amendment. He concedes that short-term monitoring of historical cell-site records -- or rather, collection of historical cell-site records covering a short period of time -- is not a search. In his view, collection of cell-site records becomes a search only when the time period of the collection is "longer term."

I've written, both in an article and in Section III of my brief, about the enormous headaches that such a mosaic approach would create. Notably, Carpenter avoids taking a position on how to implement this theory until the reply brief. In the reply brief, he finally takes a view on just the starting question -- how long is longer term -- by offering a 24-hour standard.


Once you start to answer all the questions that implementing the mosaic approach requires you to answer, it quickly becomes clear that you're really drafting a statute. It would be sort of a Miranda on steroids: You'd need to make a few dozen essentially arbitrary line-drawing calls. You can do that. But you'd look a bit silly. It's hard to announce all of those lines without making clear that you're more legislating than interpreting anything in the Constitution. ...

And on the so-called "equilibrium-adjustment" theory: 

I think Carpenter's position is misguided, but his basic theory is the most direct and clear argument for equilibrium-adjustment that I have seen articulated in a legal brief. As some readers know, I have argued that the Court does and should update Fourth Amendment rules to maintain the balance of government power as technology changes. The idea that is that some technological shifts so transform the level of government investigative power (whether expanding it or restricting it) that they justify new rules to restore the prior level of government power. I have called this "equilibrium-adjustment," as the court adjusts the legal rule to restore the prior equilibrium.

With that background, consider how Carpenter frames his constitutional claim:

As new technology has dramatically lowered the cost of government surveillance and increased the government’s access to private information, this Court has stressed that the reasonable-expectation-of-privacy inquiry must “assur[e] preservation of that degree of privacy against government that existed” prior to the advent of the new technology in question. United States v. Jones, 565 U.S. 400, 406 (Scalia, J.) (alteration in original)

This is a bit of a fudge, as the quote from Jones, in turn quoting Kyllo, was actually that "we must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted" (emphasis added). The sentence was making an originalist claim, looking back to the 18th century, not making an equilibrium-adjustment claim, looking back to before the technology became widespread. Still, it's a fudge that makes the equilibrium-adjustment argument particularly clear. As I wrote back in 2012, I think the mosaic theory is the wrong way to engage in equilibrium-adjustment. But I personally liked how clearly Carpenter relied on equilibrium-adjustment in his brief.

RELATED:  Professor Kerr also has this Carpenter-related shorter post at Lawfare: The Fourth Amendment Doesn't Recognize a General "Right to be Secure".  Core point:

That text does not provide for some sort of general “right to be secure.” Rather, the text is much more specific. It states that “the people” have a right “to be secure” in particular things (“in their persons, houses, papers, and effects”) against something specific (“unreasonable searches and seizures”). In ordinary language, if you have a right to be secure against some specific bad thing, you don't have a general right to be secure. You just have a right to be secure against that specific bad thing. Your right is violated if the bad thing happens. If the bad thing doesn't happen, your right isn't violated.

Agreed, and I think this suggests (as an originalist matter) that Carpenter should lose: the cell-site data is not his papers or effects -- it belongs to a third party.  (This is the "third party doctrine" adopted by the lower court, see here).  Professor Kerr made this point back when the Court agreed to hear the case -- see here:

Here’s the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word “their” can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a person’s own self, houses, papers or effects must be unreasonably searched or seized.

But I also think the Court is more likely to favor some sort of updating or "equilibrium-adjustment" approach, and it can appeal to Scalia in the Kyllo case (as Carpenter's brief does) in support.


Josh Blackman on President Trump and Separation of Powers
Michael Ramsey

At NRO, Josh Blackman: Is Trump Restoring Separation of Powers? (commenting on last week's Federalist Society national lawyers' convention).  From the introduction:

Our Constitution carefully separates the legislative, executive, and judicial powers into three separate branches of government: Congress enacts laws, which the president enforces and the courts review. However, when all of these powers are accumulated “in the same hands,” James Madison warned in Federalist No. 47, the government “may justly be pronounced the very definition of tyranny.” The rise of the administrative state over the last century has pushed us closer and closer to the brink. Today, Congress enacts vague laws, the executive branch aggrandizes unbounded discretion, and the courts defer to those dictates. For decades, presidents of both parties have celebrated this ongoing distortion of our constitutional order because it promotes their agenda. The Trump administration, however, is poised to disrupt this status quo.

In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers: First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.

From later on:

Every November, the Federalist Society holds its annual meeting in Washington, D.C. But this year, the gathering had a highly unusual dynamic. It is common for scholars to criticize Congress for delegating its power to the executive branch, a violation of what is known as the non-delegation doctrine. It is unprecedented for the executive branch to share that concern. In a keynote speech, Don McGahn, who serves as White House counsel, lamented the fact that Congress gives the White House too much power. “Often Congress punts the difficulty of lawmaking to the executive branch,” he said, “then the judiciary concedes away the judicial power of the Constitution by deferring to agency’s interpretation of what Congress’s vague statutes.” One would think that a lawyer for the president would relish this abdication by Congress and the courts. But no. Instead, McGahn praised a recent concurring opinion by Justice Thomas, in which Thomas “called for the non-delegation doctrine to be meaningfully enforced” to prevent the “unconstitutional transfer of legislative authority to the administrative state.” Again, reflect on the fact that if Justice Thomas’s position gained four more votes, much of Congress’s legislation — which carelessly lobs power to the White House with only the vaguest guidelines — would no longer pass constitutional muster.

And finally:

There is one final but imperative aspect of the Trumpian Constitution: the judiciary. During the 2016 campaign, then-candidate Trump released a list of possible nominees to fill Justice Scalia’s seat. At the time, I wrote on NRO, “I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.” Stick with the list he did, and then some. In addition to his nomination of Neil Gorsuch to the Supreme Court, the Trump administration has set a modern-day record for the number of district- and circuit-court judges confirmed in the first year. More important, the White House is not taking any chances with these picks. McGahn noted that “they all have paper trails, they are sitting judges, there’s nothing unknown about them. What you see is what you get.” And there has been a pervading philosophical consistency to these nominees. McGahn stated it bluntly: “We are committed to nominating and appointing judges that are committed originalists and textualists.” In a not-too-subtle jab at Chief Justice Roberts, McGahn noted, that his office is seeking judges who “possess the fortitude to enforce the rule of law without fear of public pressure,” for “judicial courage is as important as judicial independence.” Trump is looking for “strong and smart judges.” ....


More Originalism Skepticism from Eric Segall
Michael Ramsey

In response to my comments here, Eric Segall writes: 

As usual Mike Ramsey raises interesting points about my criticisms of Justice Scalia. Mike's first point is that Scalia might have felt it impossible to consistently apply originalism in areas like the first amendment where there exists so much Supreme Court case law. That's fair but then Scalia should have admitted that instead of going around the country saying the Constitution is "Dead, Dead, Dead." As David Strauss has pointed out, most of constitutional law is made up of Supreme Court decisions. If that makes Originalism very difficult, Scalia should have said so more directly.

Mike's second point is that I overstate the degree to which Scalia failed to use originalist analysis. This is largely an empirical question and I'll address it at length in my forthcoming book.

Mike's third point is that even if Scalia did not apply Originalism faithfully, that says little about the doctrine itself. Originalists don't claim the doctrine is perfect  just that it is more constraining than other doctrines. But today there are as many different forms of Originalism as there are alternatives, and leading Originalists have said that Originalism justifies Obergefell, Roe, and Brown while others deny that vehemently. The entire doctrine of constitutional construction allows judges to import their normative values into constitutional litigation, something Justice Scalia did throughout his career, in the cases I cited in my original piece.

RELATED:  Professor Segall has this additional post at Dorf on Law: Text and History Fed Soc Style (commenting on last week's Federalist Society National Lawyers Convention in Washington). 

Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"

There are a number of ironies in this Federalist Society call for textualist-originalist judging. First, Barnett using Lochner to support his textualism/originalism thesis is interesting given that there is barely a word about text or history in the entire majority opinion. Moreover, as my forthcoming book "Originalism as Faith" will argue, the founding fathers either believed in the "clear error" version of judicial review, or maybe just a strongly deferential system. There is no plausible argument they believed in an aggressive, Lochner-style form of judicial review. And of course, judicial review is nowhere mentioned in the Constitution. If Barnett and Fed Soc want to defend Lochner's version of judicial review, it will have to be through a living constitutionalism type argument not a textualist-originalist one.

Second, focusing on text gets judges almost nowhere when resolving constitutional cases, just like it was irrelevant to the majority in Lochner. Most constitutional litigation arises under clauses that are hopelessly vague and general such as the First Amendment's speech and religion clauses, the Fourth, Fifth and Sixth Amendment's criminal procedure rules, which are mostly unclear, and the Fourteenth Amendment's equal protection and due process clauses. All judges are textualists in the sense that if the text is clear, the judge will follow it, but that rarely if ever happens in constitutional law.

Maybe what the Federalist Society is devoted to is the idea that judges shouldn't make up rights and principles that aren't enumerated in the Constitution. But that can't be right for two reasons. First, there is considerable support these days among Federalist Society members for the idea that the Privileges or Immunities Clause (and maybe the Ninth Amendment) protect unenumerated rights. Barnett has worked hard to make both of those ideas mainstream among Federalist Society followers. The main focus of the Society seems to have switched from anti-Roe, anti-judicial activism to the thesis that the Justices aren't doing enough to protect the right kind of (i.e., economic) rights, enumerated or not.

Second, although I have no proof, my strong guess is that most of the people clapping wildly for textualist judges at the convention agree with the equal state sovereignty principle the Court espoused in Shelby County, the anti-commandeering principle of Printz v. United States, the color-blind principle advocated so long by the conservatives on the Court in numerous affirmative action cases, and the sovereign immunity principle applicable to suits against states by their own citizens that the Court concocted in Hans and reaffirmed in Seminole Tribe. None of those important constitutional limitations on governmental discretion can be found anywhere in the Constitution's text.

(Thanks to Mark Pulliam for the pointer).


Jonathan Siegel: The Legacy of Justice Scalia and His Textualist Ideal
Michael Ramsey

Jonathan R. Siegel (George Washington University Law School) has posted The Legacy of Justice Scalia and His Textualist Ideal (85 Geo. Wash. L. Rev. 857 (2017)) on SSRN.  Here is the abstract:

The late Justice Antonin Scalia reshaped statutory interpretation. Thanks to him, the Supreme Court has become far more textualist. Nonetheless, Justice Scalia never persuaded the Court to adopt his textualist ideal that “the text is the law.” In some cases, the Court still gives greater weight to other indicators of statutory meaning, such as perceived statutory purpose. Fundamental institutional features of courts and legislatures — particularly the fact that legislatures act generally and in advance, whereas courts resolve particular questions at the moment a statute is applied — justify this rejection of the textualist ideal.

Professor Siegel sketches the highlights of his article on SCOTUSblog: Legal scholarship highlight: Justice Scalia’s textualist legacy.  From the section titled "Assessing Scalia's Influence":

Scalia’s textualist campaign was tremendously influential. He changed the way courts interpret statutes. His influence is visible in virtually every Supreme Court opinion interpreting statutes today. Consider, for example, the 2010 case Bilski v. Kappos, which tested whether a business method can constitute a patentable “process.” For over a century, courts applied patent law with a rich awareness of the history, policies and background understandings of the patent system, which frequently caused courts to gloss, strain and even depart from the patent statute’s text. In Bilski, however, the Supreme Court simply consulted “dictionary definitions,” “common usage” and the interpretive canon against statutory redundancy. Gone were appeals to history, policy and background understandings. Cases like Bilski are far more common today than cases like Monell or Overton Park [non-textualist opinions from the 1970s].

With regard to legislative history, Scalia’s most particular concern, the Supreme Court still consults it, but in a somewhat apologetic way. Often it adds a disclaimer such as “for those who consider legislative history relevant.” The practice of putting legislative history on a par with statutory text has been repudiated.

Nonetheless, the Supreme Court, and federal courts generally, have never fully accepted Scalia’s textualist ideal that “the text is the law.” Justice Elena Kagan, in a lecture at Harvard Law School, recently said that thanks to Scalia, “we are all textualists now.” Kagan, however, is correct only in a relative sense. We are all textualists now compared with the 1960s and 1970s. It is now generally agreed that when interpreting a statute, a court should start by reading the statutory text and should not lightly depart from the text. But we are not all textualists by Scalia’s definition. There is not general agreement that “the text is the law.” Recent cases show that courts are not committed to following statutory text no matter what. ...


Stephen Mouritsen: Objective Plain Meaning in Common Law Contracts
Michael Ramsey

Stephen C. Mouritsen (University of Chicago - Law School; Brigham Young University - J. Reuben Clark Law School) has posted Objective Plain Meaning in Common Law Contracts on SSRN.  Here is the abstract:

When called upon to interpret the undefined language of a common law contract, judges and lawyers have for centuries appealed to the so-called Plain Meaning Rule — a canon of contractual interpretation that states that if the language of the contract is clear and unambiguous, courts cannot consider extrinsic evidence.

This rule is often justified on the basis of objectivity and efficiency. If the parties have committed their agreement to a writing whose terms are plain, it would be unfair and wasteful to consider extra-contractual evidence of meaning. Recent scholarship has questioned the objectivity and efficiency of courts’ plain-meaning analysis. Contract interpretation, the argument goes, has become an inconsistent, unnecessarily complex, and unpredictable enterprise. The question then is how to fix it.

One recent proposal is to borrow the survey methodologies of trademark disputes. This is an attractive approach as it would introduce a measure of objectivity into the analysis of plain meaning. But survey methodologies can be costly and their results may be subject to a variety of response biases.

Another approach, the one advocated here, is to rely on data from corpus linguistics in making judgements about plain meaning and ambiguity in contracts. Like the survey method, corpus linguistics would introduce greater objectivity and predictability into the analysis of contractual meaning. Corpus linguistics draws its data from large, coded, electronic collections of natural text, meaning that the data relied upon in corpus linguistics is free of response bias. Moreover, data from linguistic corpora are freely available and, in many cases, easier to obtain than relevant survey data.

At bottom, I argue that the question of the plain meaning of the words of a contract is an empirical question that calls for an empirically based answer — an answer that is rooted in experimentation and observation and whose results are verifiable and falsifiable. Below I outline how corpus linguistic methods may be applied to the interpretation of contracts.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week").



Eric Segall on "Scalia Speaks"
Michael Ramsey

At Dorf on Law, Eric Segall (Georgia State) reviews Scalia Speaks (the collection of Scalia speeches edited by Christopher Scalia and Ed Whelan): Scalia Speaks Well: But Not About Originalism.  From the introduction: 

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics. ...

As usual, Professor Segall is a thoughtful and thought-provoking critic.  But a central complaint here is that Justice Scalia did not always follow originalism in his judicial decisions.  I'm doubtful that this charge undermines Scalia's theoretical defenses of originalism, for three reasons.

First, Scalia believed -- to an unspecified extent -- in precedent.  Many areas of constitutional law -- including one Professor Segall emphasizes, free speech -- are so heavily influenced by precedent that it may be impossible (or Scalia may have believed it impossible) in many respects to develop a workable practice of originalism.  A better criticism (sketched in my essay on Scalia's originalism in practice) is that Scalia had -- to put it generously -- an underdeveloped theory of precedent.  Thus it was often not clear when and to what extent he thought precedent overrode originalist analysis, and indeed it is sometimes hard to tell in his opinions whether he was engaged in doctrinal analysis or originalist analysis.

Second, I think Professor Segall and others overstate the extent Scalia failed to use originalist analysis.  Common examples, employed by Professor Segall later in his essay, include standing, anti-commandeering and state sovereign immunity.  As I discuss in my essay, Scalia's decisions in these areas do rely on originalist analysis (debatable originalist analysis, to be sure).  His decisions do not, however, rely on textualist analysis, a fact that has caused some critics wrongly to label them non-originalist.  (I nonetheless agree with Professor Segall that there are some areas -- he highlights affirmative action -- where it does not appear that Scalia relied on either originalist analysis or precedent).

Third, and most importantly, I don't see why Scalia's unjustified failures to follow originalism (if there are such failures) undermine the theory of originalism.  Originalism does not claim that even the most committed originalist will be able to follow originalism all of the time.  People are, after all, human, and the temptation to reach the intuitively "right" result must be very strong in some cases.  Originalism only claims (as Scalia says in the book) that it provides more constraints than theories of adjudication that explicitly or implicitly invite reliance on one's intuitive sense of the "right" result. That Scalia sometimes gave in to temptation (if he did) does not disprove this claim.


David Rubenstein: Taking Care of the Rule of Law
Michael Ramsey

David S. Rubenstein (Washburn University - School of Law) has posted Taking Care of the Rule of Law (George Washington Law Review, Vol. 86, No. 1, 2018, forthcoming) on SSRN.  Here is the abstract: 

The multi-generational project of squaring executive governance with the rule of law is coming to a head. Hardly a week passes without commentators summonsing the rule of law ideal to pass judgment on the legitimacy or desirability of some executive action. But the more we talk about the rule of law, the further it seems to slip away. Rather than look to the rule of law for guidance, this Article shines critical light on what the rule of law ideal cannot tell us. Moreover, this Article explains why even well-intended efforts to square the rule of law with trends in governance can be counterproductive. To anchor these points, the Article presents comparative case studies of President Obama’s and President Trump’s signature immigration policies and the rule of law debates surrounding them. The Obama-Trump juxtaposition offers a portrait of some disquieting trends, not only for presidential administration, but also in how commentators think and talk about the rule of law. This Article intervenes with some prescriptions moving forward—including away from rule of law talk, and towards doctrines and institutional arrangements that could more effectively check presidential power.


Andre LeDuc: Competing Accounts of Interpretation and Practical Reasoning in the Debate Over Originalism
Michael Ramsey

Andre LeDuc (Independent) has posted Competing Accounts of Interpretation and Practical Reasoning in the Debate Over Originalism (University of New Hampshire Law Review, Vol. 16, No. 1, 2017) on SSRN. Here is the abstract: 

This article explores two assumptions about constitutional law and the form of practical reasoning inherent in constitutional argument and decision that have shaped the debate over originalism. The first assumption—adopted by originalists—is that constitutional reasoning is a formalistic process. Originalism’s critics tacitly describe a very different and less formalistic model. The second assumption—shared by originalists and most of its critics alike—is that the central task of constitutional decision is to interpret the Constitution. Both of these assumptions are wrong. Constitutional argument is not, and cannot be, reduced to the formal model of reasoning tacitly employed in originalism.

The critics of originalism correctly point out that constitutional argument is more complex than originalism’s formal account allows. But those critics share with originalists the mistaken premise that our constitutional practice begins with interpretation. That agreement masks the substantial differences in their respective accounts of interpretation, however.

This Article demonstrates how these two assumptions have contributed to the fruitlessness of the debate. For example, if we reject the premise of the logical priority of interpretation the celebrated problem of generality dissolves. By articulating the jurisprudential foundations of the debate, this Article allows us to recognize the sterility of the debate over originalism and the likelihood that it cannot be successfully resolved by the protagonists on either side of the debate. While discarding the formalism of contemporary originalism does not compromise core originalist claims, the importance of that formalism to some of originalism’s stronger claims of privilege makes such an approach less attractive to originalism. Originalism’s critics, while right about constitutional reasoning, fail to discredit other important originalist claims. Thus, the protagonists in the debate may be likely to continue even after better understanding interpretation and the practice of constitutional argument. That would be a mistake. A better account of the place of interpretation and the nature of practical reasoning in constitutional reasoning also opens up the alternative of moving beyond the fruitless, stalemated debate about originalism.

At Legal Theory Blog, Larry Solum has comments, especially on the article's discussion of Professor Solum's views.


Mila Sohoni: A Bureaucracy -- If You Can Keep It
Michael Ramsey

Recently published, in the Harvard Law Review Forum, Mila Sohoni (University of San Diego Law School): A Bureaucracy -- If You Can Keep It (131 Harv. L. Rev. F. 14 (2017)) (invited response to Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017).  From the introduction (footnotes omitted):

In her Foreword, Professor Gillian Metzger portrays the administrative state as laid under siege by an array of judicial, political, and academic attackers. Expertly curating and deftly dissecting a century’s circus of intellectual debate and political conflict, the Foreword demonstrates the myriad ways in which today’s struggles over administrative government reprise the turmoil of the New Deal period.

Indeed, the parallels between the present moment and the 1930s may extend further than she draws them. The history of that era suggests how the “rhetorical antipathy” towards the administrative state that Metzger carefully documents and critiques may yet cross over from the realm of rhetoric to the realm of reality. That, of course, only makes it that much more urgent to answer the central question addressed by the Foreword — the question of how to respond to the
“anti-administrativist” complaint that the federal bureaucracy is extralegal, unconstitutional, and tyrannical.

Metzger’s response is the provocative rejoinder that the administrative state is not merely constitutionally permissible and not merely constitutionally beneficial, but also constitutionally obligatory. This argument diverges in critical respects from long-held conceptions of the administrative state’s constitutional status and role. It is bold in its premises and startling in its possible implications. It aims to break the siege — to quell, at once and en masse, the renascent attacks upon administrative government. But her argument for a constitutional obligation of administrative government pivots upon the threshold assumption that the Supreme Court will continue to regard broad delegations as constitutionally permissible — a point about which I do not feel as sanguine. And even if delegation doctrine persists in its present form, the full contours of the contingent constitutional obligation posited by Metzger seem to me to be both potentially enormous and — at the same time — hard to trace with precision. At the brass-tacks level, it is difficult to map out what exactly honoring the constitutional obligation of administrative government would require in the many and varied contexts in which it might be pitted against countervailing targeted arguments that regulatory power ought to be restrained. Politicians, scholars, lawyers, and judges gave us the modern administrative state; whether we can keep it remains to be seen. 

Also responding to the Foreword in the Forum is this essay from Aaron L. Neilson (BYU): Confessions of an “Anti-Administrativist”.

Unsurprisingly, two principal targets of Professor Metzger's Foreword are originalists Clarence Thoams and Philip Hamburger; the Forum does not, as yet, have an originalist response.


Will Baude on Supreme Court Jurisdiction over Military Appeals [Updated]
Michael Ramsey

At Volokh Conspricay, Will Baude: Supreme Court jurisdiction over the Court of Appeals for the Armed Forces.  He asks: "Does the Supreme Court have jurisdiction to directly review decisions of the Court of Appeals for the Armed Forces at all?"  Maybe not:

In a recent amicus brief in another case, Virginia law professor Aditya Bamzai argued not. The Constitution says that the Supreme Court’s jurisdiction in cases arising under federal law is appellate, not original. And according to no less an authority than Marbury v. Madison, Congress cannot move any cases from the court’s appellate jurisdiction to the original jurisdiction. This means that the Supreme Court can directly review the CAAF only if the case is an appeal, which in Bamzai’s view (and mine) means that the Supreme Court has jurisdiction only if the CAAF is truly a court, in the constitutional sense.

Bamzai argued that the CAAF is not a court, in the constitutional sense, but is a part of the executive branch, staffed by executive-branch appointees who are not given the tenure and protections of Article III. In a blog post responding to Bamzai last year, [Professor Steve] Vladeck argued that CAAF was in fact a court.

I am inclined to agree with Bamzai that the CAAF is not a court, for reasons that I will elaborate on eventually in a paper on so-called legislative courts. But in a nutshell, I think that a court, in the constitutional sense, must be a body that exercises the judicial power of some government and that the CAAF does not exercise any government’s judicial power. (For instance, federal courts exercise “the judicial power of the United States.” State courts exercise “the judicial power” of their respective states. Etc. CAAF falls into none of these categories.)

UPDATE:  Professor Bamzai emails: "Unbeknownst to Will at the time he wrote the post, I have filed a brief in support of neither party in the case currently pending before the Supreme Court."  The brief is posted on SSRN (here).  Here is the abstract: 

This amicus brief in support of neither party [in Dalmazzi et al. v. United States] explains why the Supreme Court lacks jurisdiction to review cases from the Court of Appeals for the Armed Forces ("CAAF"). Though called a "court" by statute, the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the "judicial Power" of the United States or of any sovereign. Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that this Court cannot exercise "appellate Jurisdiction" under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a "court" by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The brief canvasses a number of precedents in this area arising from cases involving military commissions, the Court of Federal Claims, petitions for writs of habeas corpus, the Court of Customs and Patent Appeals, and administrative agencies.


Gregory Maggs: A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning (49 Conn. L. Rev. 1069 (2017)) on SSRN. Here is the abstract: 

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.

A important new installment in Professor Maggs' useful "Critical Guide" series.


A Comment from Fred Gedicks on Originalism
Michael Ramsey

Regarding this post, Fred Gedicks (BYU) sends this comment:

Thanks for noting my essay on Larry Solum's summation of originalism in your recent Originalism Blog post. I'm writing because you've misunderstood my ontological criticism for an epistemological one.
I gather that "object" in your point (1) is implicitly modified by "discoverable," which you eventually make explicit: "Originalism is happy to concede that some constitutional phrases may be . . . "inkblots" with no discoverable meaning . . . . "
Point (2) seems to proceed along the same lines, as does your conclusion that, more often than not, the meaning of past texts is recoverable as an object untouched by present concerns: "Originalism does not contend that meaning can always be recovered in its 'pristine' form; rather it contends that meaning can last least sometimes be recovered" (which I take to mean, "sometimes be recovered in its pristine objective form" and, again, often enough for originalism to function as a method of interpretation).
In other words, you take me to claim that originalists presuppose meaning necessarily exists in the past as a discoverable object, and you respond that originalists are happy to concede that epstemic obstacles often prevent the recovery of that object, though not often enough to undermine originalism's functionality as an interpretive method.
This is not my claim at all. I am not making (the admittedly tired) argument that originalism is epistemologically impossible (or impossible often enough that it is not worth pursuing as an interpretive methodology). I argue that originalism cannot ever be recovered in its pristine form, untouched by the present, because no original meaning exists at all, discoverable or not, that is not touched by the concerns of the interpreter and her life and times. The meaning of the past is partially constituted by the present, and the present partially constituted by the past. 
Constitutional interpretation is an example of this hermeneutic circle. There is no meaning of the Constitution independently existing in the past until we look for it; the effort creates a meaning, but one unavoidably marked by the present. The present, in turn, is marked by the past, by the tradition in which the Constitution is embedded and handed down to the present, which colors our view of the Constitution and unavoidable shapes our attempts to understand it. 
The essay illustrates this (apparently too obscurely) with both the sexism of IWL and the contemporary imperative that any interpretive theory account for Brown. In what sense could one argue that the sexism of IWL or its protofeminist moments have always existed as part of the meaning of the movie from the day it premiered? How could any reviewer in 1946 have "discovered" this sexism a generation before sexism and feminism were ideas that had names? In what sense did "separate but equal is inherently unequal" always exist as the meaning of the EPC, discoverable by any person in 1868 familiar with the context in which it was drafted and ratified, when hardly anyone in 1868 really believed in the social equality of the races which school desegretation (along with interracial marriage) would have challenged?
Perhaps I would have done better to use the concept of the "classical" to illustrate the ontological point. Despite the freedom with which we bestow "instant "classic, nothing is classic the moment it is created. Identifying a text as classic is a judgment of the present--or, at least, a time period considerably after the text is written. And yet, the consensus that a text is classic necessarily affects how we understand it in the present. A classical text means something different once it becomes classic, canonical, paradigmatic.
Brown, again, is an excellent example of this. The "original" meaning of Brown is unavoidably colored by its eventual widespread acceptance which, of course, did not come until many decades had passed from 1954. And any attempt to understand Brown is unavoidably affected by its paradigmatic status.
Professor Gedicks' essay, on which I commented briefly in my post, is It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery.

Eric Segall on Judicial Engagement and New Originalism
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted Judicial Engagement, New Originalism, and the Fortieth Anniversary of 'Government by the Judiciary' (86 Fordham L. Rev. Online (2018, forthcoming)) on SSRN.  Here is the abstract:

Forty years ago, Professor Raoul Berger published his originalism manifesto "Government by the Judiciary." Berger argued for deferential judicial review based on the clear text and original intent or original meaning of the Constitution. Now, almost half-a-century later, a new brand of Originalism has emerged among scholars and litigators advocating that judges use robust judicial review when evaluating economic legislation. This heightened form of judicial review may be sensible or not as a matter of public policy, but contrary to the claims of those urging judges to adopt it, judicial engagement as defined by New Originalists cannot be justified by the Constitution's text or original meaning. Such a strong form of judicial review can only be justified by a living Constitution approach to constitutional interpretation.


India's Supreme Court Discovers Right to Privacy
Mike Rappaport

Recently, I have been studying comparative constitutional law.  It is a fascinating area, providing real world examples for the issues that constitutional theory explores.  What is more, the practices of other constitutional judiciaries are often unexpected.  I often find myself saying, “do they really do that?”

One example is the recent constitutional case, decided by the Supreme Court of India, finding that the Indian Constitution provides a nontextual right to privacy.  The Supreme Court of India is one of the most aggressive high courts in the world.  Perhaps its most aggressive action has been a series of cases where the court held that the basic structure of the Indian Constitution could not be amended, even though the constitution did not textually provide for that and in fact seemed to suggest otherwise.

The recent case finding a privacy right, Justice K S Puttaswamy V. Union Of India, is remarkable in many ways.  The opinion is over 500 pages long!  And it engages in a discussion of various issues one would not expect.

To begin with the decision addresses originalism.  It has a section entitled “Constituent Assembly and Privacy: Limits of Originalist Interpretation,” that purports to address the originalist objections.

In another section, the court explored philosophical and legal theory aspects of privacy.  Thus, it discusses the views in separate subsections of Judith Jarvis Thompson, Richard Posner, Robert Bork, and Catherine MacKinnon.  It is interesting that while the U.S. Supreme Court largely ignores foreign court decisions and foreign legal scholars, the Indian Supreme Court devotes so much space to these matters.

A Supreme Court decision in the United States would not do this.  One does not see long discussions of why originalism does not apply in the U.S.  And one certainly does not see significant discussions of the views of legal theorists.

The decision also appeared to overrule two prior decisions that refused to recognize a privacy right.  (Here, of course, the Indian Supreme Court does not represent a radical break with the practice of the U.S. Supreme Court.)

As is characteristic of the decisions of the aggressive high courts throughout the world, the announced right is not absolute or even determinate.  The privacy right “will have some reasonable restrictions in matters of national security and mutual interest of the citizens and the state.”  While this limitation might seem to lessen the effect of the court’s decision, it nonetheless allows the court more power to determine the content of the right, at its discretion.

Decisions like these are sobering.  It is almost enough to make one appreciate Justices Kennedy or Sotomayor.

Stephen Sachs: Originalism Without Text
Michael Ramsey

In the current issue of the Yale Law Journal, Stephen E. Sachs (Duke) has the essay Originalism Without Text (127 Yale L.J. 156 (2017)). Here is the abstract: 

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

And from the first substantive section:

 Consider the following hypothetical:

The society of Freedonia has no writing and no written law. Its legal rules are passed down through oral traditions, which provide for councils of elders to do limited judicial work. Freedonia goes through a period of legal tumult, in which influential council decisions are said to have misstated the traditional rules and to have exceeded the councils’ authority. A Great Council is held, in which it’s agreed—in substance, and without resolving on any canonical form of words—that all innovations to date are to be accepted as necessary evils, but that no new innovations are to be allowed, and that the ancestral traditions are otherwise to be preserved inviolate. Generations pass, and again some councils begin to overstep these limits, arguing that the traditions must be altered to accommodate modern circumstances. Other Freedonian elders criticize their fellows for failing to apply the law as approved at the Great Council.

Are these critics originalists?

(Note:  SRSRN version previously noted here).


Rosalind Dixon: Constitutional Drafters as Judges
Michael Ramsey

Rosalind Dixon (University of New South Wales (UNSW) - Faculty of Law) has posted Constitutional Design Two Ways: Constitutional Drafters as Judges ((2017) 57(1) Virginia Journal of International Law 1) on SSRN. Here is the abstract: 

Constitutional scholarship often assumes a strict separation between processes of constitutional drafting and interpretation. Yet on constitutional courts around the world, the judges charged with interpreting a constitution’s text are often the same people who helped write or ratify that text only a few years before. This Article examines the phenomenon of constitutional drafters as judges and the insights to be gained from a study of such judges about the nature of democratic constitution-making — i.e., the degree to which constitution making inevitably takes place over an extended time period, involves processes of constitutional interpretation as well as drafting, and combines forms of legal and political judgment. It further suggests that insights of this kind may invite closer attention to the virtues of certain kinds of judges as agents of democratic constitutional change — i.e., judges who resemble a majority of democratic constitutional drafters by possessing both legal and political relationships, skills, and commitments, or who resemble many actual drafter-judges in that they are lawyer-politicians.