Daniel J. Hulsebosch: Taking and Restoring Dignity in the American Revolution
Michael Ramsey

Daniel J. Hulsebosch (New York University School of Law) has posted Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution (Symposium on “Dignity Takings,” in Law & Social Inquiry (2016)) on SSRN.  Here is the abstract:     

Taking a cue from Bernadette Atuahene’s concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.

UPDATE:  Linked fixed.  Thanks to Seth Barrett Tillman for the catch.


Derek Muller: 'Natural Born' Disputes in the 2016 Presidential Election
Michael Ramsey

Derek T. Muller (Pepperdine University - School of Law) has posted 'Natural Born' Disputes in the 2016 Presidential Election (Fordham Law Review, forthcoming) on SSRN.  Here is the abstract:      

The 2016 presidential election brought forth new disputes concerning the definition of a "natural born citizen." The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

(Thanks to Seth Barrett Tillman for the pointer).

What I find most noteworthy about the "natural born" disputes of 2016 is the extent to which they focused on the original meaning of the eligibility clause.  To at least some extent, it seems, originalism is (a part of) our law.


Judge Neil Gorsuch: Overrule Chevron
Michael Ramsey

Concurring in Gutierrez-Brizuela v. Lynch (10th Cir., Aug. 23, 2016), Judge Gorsuch argues that Chevron deference to administrative agencies is inconsistent with separation of powers:

Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the [Administrative Procedure Act] and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . . .

Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix. . . . Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems of the sort documented in the court’s opinion today . . .  It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design . . . .

(Via Jonathan Adler at Volokh Conspiracy).

RELATED: At Liberty Law Blog, Christopher Walker (Ohio State): Do Judicial Deference Doctrines Actually Matter? (noting Judge Gorsuch's concurrence and also this book review by Judge Brett Kavanaugh).  Professor Walker concludes:

[E]ven these raw-number findings make it hard to argue that Chevron deference does not matter in the circuit courts. Whether or not Chevron deference should be shelved is subject to considerable debate—a debate that will no doubt continue for years. But the findings of our empirical study of Chevron in the circuit courts should put to rest the argument that deference doctrines do not matter.


Barry Friedman on Justice Scalia and the Police
Michael Ramsey

At The Atlantic, Barry Friedman (NYU):  How Did Justice Scalia Shape American Policing? Donald Trump wants a Supreme Court appointee like the formidable late judge. But Scalia had a controversial and sometimes conflicted opinion on law enforcement. 

From the discussion:

[W]hen it came to the parts of the Constitution that governed policing ... Scalia often was the critical swing vote. And not infrequently he was the one writing the majority opinion.

One place Scalia’s passing might very well spell change is with regard to the Miranda ruling. ... Conservatives hate the Miranda rule, and Scalia was no exception. ...

When it comes to searches and seizures, though—the lifeblood of policing, governed by the Fourth Amendment to the Constitution—the picture of Scalia is far more complicated.

In recent years, Scalia emerged as the Fourth Amendment’s greatest champion, often ruling against the police. He was particularly steadfast in guarding the sanctity of the home, or limiting police use of new technologies. He wrote the main opinion in United States v. Jones, holding that the Fourth Amendment governed long-term GPS surveillance of a suspected drug dealer’s car. And he wrote a critical opinion saying that the police have to get a warrant before they use new technologies to gather information from inside homes—in that case the police had used a thermal heat sensor to figure out the defendant was growing pot with heat lamps. ...

[But] even though Scalia could be extremely protective of Fourth Amendment rights, the real curiosity is that he didn’t seem to think you should have any remedy if your rights were violated. He loathed the exclusionary rule—which requires tossing out evidence collected in violation of the Constitution—and played a big part in dismantling it. ...

Some commentary on Justice Scalia has accused him of following his policy preferences despite his purported attachment to originalism.  As this essay illustrates, criminal procedure is one area that is hard to square with that thesis.  If one is looking for pro-police or anti-police tendencies, Scalia seems all over the place.  But thinking in terms of originalism, his record is neither "conflicted" nor "a curiosity."  To take two of Professor Friedman's examples, Miranda and the exclusionary rule are judicial inventions; that, and not partiality to the police, accounts for Scalia's hostility to them.  But the Fourth Amendment, given its original meaning, plausibly imposes material limits on modern police practices, and so Scalia was much more sympathetic to such claims.

Ironically, Professor Friedman concludes:

Merrick Garland, President Barack Obama’s pick for the Court ... is a former prosecutor whose rulings typically are pro-police. In a Garland-for-Scalia swap, the police actually might have more license, rather than less.

(Via How Appealing).


Ian Bartrum: Wittgenstein's Poker
Michael Ramsey

Ian Bartrum (University of Nevada School of Law) has posted Wittgenstein's Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism on SSRN. Here is the abstract:   

The last two decades have seen an explosion in scholarship exploring the intersection between linguistic indeterminacy (usually vagueness), as analyzed within the philosophy of language, and legal interpretive theory. This essay claims that such indeterminacies are an inevitable, and even valuable, part of contested language games—such as our contested constitutionalism—which employ linguistic uncertainty to further different communicative or political ends. It further suggests that two particular types of constitutional indeterminacy—intentional contemporary ambiguity and incidental evolutionary vagueness—present substantial problems for public meaning theories of originalism. Resolving an intentional ambiguity seems to require at least some recourse to authorial intentions, which are beyond the scope of public meaning originalism; and historical usages can offer little guidance when new constitutional problems reveal a latent textual vagueness.

When combined with the problems of intentional vagueness—which the New Originalists already concede to modern construction—these types of indeterminacy seriously undermine the practical value of public meaning originalism as an interpretive method. Indeed, many—if not most—of our non-trivial constitutional disputes are contests over just these sorts of textual uncertainties. In all of these cases, then, the New Originalist must either resort to intentionalist theories—with all of their well-known epistemological and jurisprudential problems—or concede the question to modern judicial construction. This, in turn, means that public meaning originalism’s claims about the existence of “empirical” constraints on our constructive practices can inform only a small, and relatively uncontroversial, set of actual constitutional controversies.

An interesting and challenging paper.  Without dismissing the problems of indeterminacy in public meaning originalism, I would make two quick points.  (1) Most originalist approaches do not suppose that there will be 100% certainty on most questions; the inquiry is rather which of two competing interpretations more probably reflects the original meaning.  (2) Although public meaning originalism focuses on the meaning of the text, that does not prevent originalists from consulting historical sources, both as to the common usage of words and as to the goals and interpretations of the enactors.  These points, among others, make the inquiry more manageable than it might appear.

Also see some of my further thoughts on originalism and indeterminacy here.


Originalism, Changing Meanings, and Stable Meanings
Mike Rappaport

One of the criticisms of originalism by historians is that originalism fails to take into account that word meanings change over time.  In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed.  Therefore, originalism is problematic because it assumes that traditional word meanings are stable.

Unfortunately, this charge by historians turns out to be largely mistaken.  If some originalists assume that word meanings were stable, then that would be an argument against those originalists.  But it would not condemn originalism generally, since nothing in originalism requires that word meanings be stable.  And in fact, I believe very few, if any, originalists assume that words meanings are unchanging.

How does originalism properly address the issue of changing meanings?  If an originalist were seeking to interpret a constitutional term, then the originalist would look to the meanings that existed at the time of the Constitution.  If the traditional meaning continued to exist at that time, then that would certainly be one possible meaning.  But a good originalist would also look and see if a new meaning had developed.  If a different meaning had developed, then of course the originalist would consider that as another possible meaning.

If there were two possible meanings, that would mean the term was ambiguous.  The originalist should them employ the interpretive rules at the time to resolve the ambiguity.  One consideration in choosing between the two meaning is which one was more common.  Another would involve the evident purpose of the provision.  A third would be the structure of the document.  There are, of course, others.

The criticism of originalists for assuming stable meanings are often wide of the mark.  It is sometimes claimed that the originalist argument, which maintains that the Executive Power Vesting Clause provides the President with a limited foreign affairs powers, assumes stable meanings.  But this is not true.

This originalist interpretation argues that the language vesting the executive power in the President provides him with the powers that executives, such as the King of England, typically enjoyed in the 18th Century, minus the executive powers that were given to the Congress (such as the power to declare war) and minus the executive powers that were limited in other ways (such as the power to appoint executive officers, which was to be exercised only with the advice and consent of the Senate).

While this interpretation relies on the traditional meaning of executive power, it does not simply assume that meaning continued.  It shows that this meaning fits the structure of the Constitution, providing for an interpretation that fully accounts for the foreign affairs powers of the federal government.  And it also shows that the traditional understanding of executive power continued to be used in the Philadelphia Convention itself as well as after the Constitution was adopted by officials as different as Thomas Jefferson and Alexander Hamilton.

Stable meanings certainly make the job of originalist interpretation easier.  But good originalism does not assume that they exist and originalist interpretation can be done without them.

Jonathan Adler: The Senate Has No Constitutional Obligation to Consider Nominees
Michael Ramsey

Jonathan H. Adler (Case Western Reserve University School of Law) has posted The Senate Has No Constitutional Obligation to Consider Nominees (George Mason Law Review Developments, forthcoming) on SSRN.  Here is the abstract:      

After the death of Justice Antonin Scalia, Senate Republicans announced they would refuse to consider any nomination for his seat on the Supreme Court prior to the next presidential election. In response, some have argued that the Senate has a constitutional obligation to act on a Supreme Court nomination. This argument finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous.

I agree.


The Tiers of Scrutiny: A Public Choice Analysis
Mike Rappaport

In a prior post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power.

One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit the discretion of the court.  If racial classifications are subject to strict scrutiny, it makes it difficult for the Court to allow them, even the ones that the Court might approve of.  Instead, a Court seeking to maximize its discretion would employ entirely vague standards – or individual edict like judgements – so that it could do as it pleased.

There are, however, two problems with this approach.  The major problem is that this approach would make it difficult for the Supreme Court to control the lower courts.  The Supreme Court cannot review every decision of the lower courts.  In fact, it can only review a small percentage of their decisions, even in the politically salient cases.  The tiers of scrutiny – as well as doctrine generally – is a device the Court uses to control the lower courts.  This seemingly rule like jurisprudence places real limits on the inferior courts.

Another problem with exceedingly vague standards is that it would reduce the legitimacy of the Supreme Court.  If the Court were seen as simply announcing its preferences, that would reduce its legitimacy. If the Court can argue that its decisions follow from more general principles, it can be seen as enforcing a prior jurisprudence.

While this approach has these advantages for the Supreme Court, it also is not all that constraining in the way that the Court implements it.  As Justice Thomas suggested, the Supreme Court applies the approach in an inconsistent way, thereby generally allowing it to reach the results it prefers.

Ed Whelan on Randy Barnett's "Our Republican Constitution"
Michael Ramsey

At NRO, Ed Whelan has a four-part review of Randy Barnett's Our Republican Constitution (Broadside Books 2016).  Here are part 1, part 2, part 3 and part 4.

Parts 3 and 4 are, I think, the most important, and illustrate the two core differences between libertarian orignialism and more conventional originalism.  First, from part 3:

Barnett particularly criticizes the “Thayerian” version of “judicial restraint” or “judicial deference,” and the readers of his book might well be left with the impression that the only viable alternative is Barnett’s “judicial engagement.” Such an impression would be mistaken.

In an 1893 law-review article, Harvard law professor James Bradley Thayer adopted an extreme view of deference under which a federal court should not strike down a federal law merely because it “conclude[s] that upon a just and true construction the law is unconstitutional”; rather, it should do so only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question.”

As I have observed before, among the many originalist proponents of judicial restraint, there might be one Thayerian. ...  As law professor John McGinnis has explained in “The Duty of Clarity,” there is ample middle ground between Thayerian deference and no deference. Specifically, McGinnis makes the originalist case for a more modest “deference theory” that “requires the judiciary to decline to displace legislation unless it conflicts with a meaning of the Constitution that can be clearly ascertained after applying all legal methods.”

The amount of judicial deference owed to the political branches is a major point of disagreement among originalists.  I agree that it is a spectrum rather than a dichotomy.  But I would add that the McGinnis model is not necessarily the preferred model, even among conventional originalists.  For example, I wouldn't say that Justice Scalia (for all his exalting of democratic values) was deferential in applying actual provisions of the Constitution (as opposed to propositions he regarded as invented by judges).  For example, he voted in favor of the constitutional challenge to Obamacare, where more deferential originalist judges such as Jeffrey Sutton and Laurence Silberman voted the other way.

Next, from Part 4: 

Barnett contends that the[ ] Due Process guarantees mean that any person subject to a law that restricts his life, liberty, or property must have a “fair opportunity to contest whether [that law] is within the ‘proper’ or ‘just power’ of a legislature to enact and therefore carries the obligation of a law.” (P. 228 (emphasis in original).) A law that is “irrational or arbitrary” is by definition “not within the just powers” of a legislature—even if it is enacted through an exercise of a constitutional power. (P. 228.) Further, if a power is being exercised for a just purpose, “we must next ask if the restriction of liberty is necessary to serve” that purpose. “Strict logical necessity is not required,” but “some degree of means-ends fit must be shown.” (P. 231.)

My basic question for Barnett is: Where does all this come from? How, in particular, does it flow from the original-meaning principles that he advocates?

Even more than judicial deference, I think this is the fault line between libertarian originalists and conventional originalists. While sometimes mis-described as a question of deference, it's really a question of substance: does the due process clause give judges the ability to assess the substantive rationality of a law?  (Scalia, representing conventional originalism, thought no -- even though he was, as noted, not especially deferential in applying other constitutional provisions).  Even here, though, there may be a spectrum of views.  See this post from yesterday.


John McGinnis on the Constitution and Rent Seeking
Michael Ramsey

At Liberty Law Blog, Johm McGinnis: The Constitution Constrains Rent-Seeking Without Eliminating Politics.  From the introduction:

Greg Weiner, in a characteristically thoughtful post, suggests that libertarian constitutionalism wrongly eliminates democratic politics from the polity in favor creating a republic of reason where rationality is judicially determined. While I am not a libertarian, but a classical liberal, I think that the correct reading of the U.S. Constitution does impose important constraints on the politics of rent-seeking. But it does not suppress politics so much as redirect it.

Professor Weiner correctly observes that many libertarians want to use the Constitution to prevent rent-seeking. The provision commonly referenced for this purpose is the Fourteenth Amendment. Note first, however, that the Fourteenth Amendment’s provisions apply only to the states. Thus, under a proper reading of our Constitution, the federal government may countenance rent-seeking within the scope of its enumerated powers. The difference between the strictures on states and on the nation may comport with the greater confidence that the extended republic will not be dominated by particular factions.

Moreover, at least under the appropriate reading of the Fourteenth Amendment, the restrictions on state legislation are relatively modest. The state must show that the legislation possesses a public regarding rationale and is not simply an instrument to transfer of resources or opportunity from one group to another. The great error of Williamson v. Lee Optical was that it permitted judges to make up a rationale for the legislation, and one that was not actually pleaded by the state, let alone supported by any evidence. Under the proper interpretation of the Fourteenth Amendment, legislation does not have to be perfectly rational, but it does have to some palpable basis in the public interest, such as health and safety. ...


Amy Coney Barrett and John Copeland Nagle: Congressional Originalism
Michael Ramsey

Amy Coney Barrett (Notre Dame Law School) and John Copeland Nagle (Notre Dame Law School) have posted Congressional Originalism (University of Pennsylvania Journal of Constitutional Law, forthcoming 2016) on SSRN. Here is the abstract:     

Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents -- are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. The problem is especially acute for an originalist member of Congress. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision as they do in litigation, evaluating a bill’s constitutionality arguably requires analysis of every possible constitutional flaw.

We argue that Congress may employ a working presumption that super precedents are constitutional and thereby refrain from re-examining them. Presuming that a super precedent is correct is different from endorsing its correctness. If the precedent is erroneous, the latter course gives priority to precedent rather than text. The former course, however, is a technique for avoiding the question whether the precedent is right or wrong. Congress may assume arguendo that well settled precedents are correct and focus its attention on questions that are politically salient. If the Court reconsiders super precedent in response to litigants, Congress does so in response to constituents. The responsibility for initiating a correction of constitutional error lies with the People. If the People want Congress to examine the soundness of constitutional precedent, they must convince it to do so.


Andrew Coan: The Foundations of Constitutional Theory
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted The Foundations of Constitutional Theory  on SSRN. Here is the abstract:     

Normative constitutional theory asks at least two distinct questions: How should judges and other officials approach constitutional decision-making? And what counts as a good reason — or “normative foundation” — for adopting a particular approach? The two questions are obviously related, but the first has filled libraries while discussion of the second has been largely unsystematic and ad hoc. There is no well-recognized taxonomy of the types of reasons on which an approach to constitutional decision-making might be premised. Nor is it widely appreciated that competing approaches might rest on the same type of normative foundation or that multiple normative foundations might be invoked to support a single approach to constitutional decision-making.

This Article proposes a taxonomy organizing the normative foundations of constitutional theory into four distinct categories: metaphysical, procedural, substantive, and positivist. This taxonomy clarifies that theoretical disagreement can concern the proper approach to constitutional decision-making, what counts as a good reason for adopting a particular approach, or both. It also permits analysis of the attractions and limitations common to each type of normative claim, revealing significant points of overlap between apparently divergent approaches. Positivist originalism, for instance, may in some respects share more in common with positivist common-law constitutionalism than with metaphysical originalism. These points of overlap should serve as the basis for new and more productive discussion among theorists who have previously considered themselves completely at loggerheads.

(Note: this is a different paper from this one, noted earlier).


Josh Blackman: Government by Blog Post
Michael Ramsey

Josh Blackman  (Houston College of Law) has posted Government by Blog Post (11 Florida International University Law Review 389 (2016)) on SSRN.  Here is the abstract:  

During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.

Each of these executive actions — implemented through formal notice-and-comment rulemaking or informal social-media blogging — came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.

One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.

This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.

(Via Josh Blackman's Blog).  Video of the symposium is here.  Professor Blackman's slideshow is memorable.  My much-less-memorable contribution  is this article: Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements.


Andrew Coan: Living Constitutional Theory
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Living Constitutional Theory on SSRN.  Here is the abstract:    

Recent work has questioned the dichotomy between living constitutionalism and originalism on the ground that our understanding of what is “original” is itself a changing phenomenon. It is not just understandings of constitutional history, however, that evolve over time. It is also understandings of the role that history ought to play in constitutional interpretation and adjudication. Indeed, the two evolutionary processes are intertwined in complex ways. In this Essay, I sketch a brief, stylized narrative explaining how this dynamic has played out in U.S. constitutional theory over the past five decades. The upshot is that constitutional theory, no less than constitutional doctrine or constitutional history, lives. On some level, everybody understands this. But at any given time, it is far from the forefront of consciousness for most constitutional theorists. This Essay is a reminder and a call for greater self-consciousness.

(Via Larry Solum at Legal Theory Blog, who says "Interesting and recommended.")


Justice Thomas on the Tiers of Scrutiny
Mike Rappaport

In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’”  Interestingly, Toobin never argues that Thomas’s claim is mistaken.  Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true.  But in my view, Thomas’s claim is both true and damning.

In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.

1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products.  Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.

Thomas is certainly correct here.  There is little in the original meaning of the Constitution to justify special scrutiny to certain rights, such as the First Amendment or Equal Protection.  Those rights certainly deserve to be enforced, but it is not clear why they are “preferred rights.”

And Thomas goes on to show how the Court would later enforce certain unenumerated rights, such as the right to privacy, with equal vigor, even though the Carolene Products did not justify it.  Instead, liberal values supported these rights.

2. Thomas’s second point is that the tiers of scrutiny are not followed consistently. If the Court followed them consistently, then at least it would further the rule of law. But they don’t.   “Strict scrutiny is now applied in unequal, arbitrary manner.”

Thomas writes:

If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test.

Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.

I wonder what Toobin would say about these criticisms if he addressed them rather than simply dismissing them for being critical of the Court.  If the Court’s behavior is problematic – and it is – then it is open to criticism and should be criticized.

Eric Segall on Justice Scalia
Michael Ramsey

At Dorf on Law, Eric Segall: Supreme Irony: GOP Talking Points and Scalia’s True Legacy.  From the introduction:

It is fair for Republicans to promise to appoint Justices who will vote for policies that further their interests. It is absurd, however, for Republicans to suggest, as they always do, that what that means is that their judges, and only their judges, will respect the text and history of the Constitution. Since both Donald Trump and the official GOP platform pay specific homage to Justice Scalia as the kind of Justice they would name, examining the late Justice’s actual voting record instead of fairy tales about his alleged text-and-history approach shows the falsity of the GOP talking points about our highest Court.

Justice Scalia did consistently vote against abortion and gay rights, often ranting that the Constitution is “dead, dead, dead” and arguing that judges shouldn’t make up rights that are not listed in the text of the Constitution. In a famous dissent in an important abortion case, Scalia said that “value judgments should be voted on [by the people] not dictated” by unelected judges. These cases, however, are aberrations. because Justice Scalia frequently made up rights and rules that aren’t mentioned anywhere in the Constitution and are often in direct conflict with the history of the Constitution.

Some examples:

For example, the Eleventh Amendment to the Constitution unambiguously provides that states cannot be sued without their consent by a “citizen of another state.” Justice Scalia enthusiastically accepted a line of cases twisting this text to invent a rule that states can’t be sued even by their own citizens. He endorsed this conclusion not just on stare decisis grounds but on the merits, and on the bizarre basis, one that might even embarrass a so-called “living constitutionalist,” that the Amendment’s clear text was more important for what it “reflected” than for what it “said.”

Justice Scalia also concocted a rule that even when Congress is acting within its power to regulate commerce among the states, or any other power expressly given it in the Constitution, Congress cannot require states to help implement otherwise valid federal law. This so-called “anti-commandeering” rule is nowhere in the Constitution and directly conflicts with clear statements in the Federalist Papers that the states that ratified the Constitution understood that Congress could use them to implement federal law. If we needed a draft in a hurry, the strange made-up nature of this rule could become apparent quite quickly.

Justice Scalia voted to strike down a key section of the Voting Rights Act in a decision in which Chief Justice Roberts said that, even when Congress acts pursuant to its authority under the Reconstruction Amendments, ratified in the wake of the demise of slavery and the Civil War, it cannot treat different states differently absent a very strong reason. This principle is nowhere in the text of the Constitution, and it is hard to imagine any rule being more inconsistent with the original meaning of the Civil War Amendments than Chief Justice Roberts’ completely fabricated “equal state sovereignty” rule, which the Court announced for the first time ever in 2013.

Plus some further examples.  Without conceding the validity of any of them, it does seem that these are points Justice Scalia's defenders need to consider.


Is SCOTUS a Good Reason to Support Trump?
Mike Rappaport

Reason.com has a piece by Damon Root asking various libertarian and conservative legal experts what they think about the matter.  There are a range of answers.  Here is my response:

I certainly believe that the future of the Supreme Court is "a reason" to support Trump. There are no assurances, but I do believe it is likely that he will choose someone from the list he issued previously (or someone similar). Is it a strong enough reason to overcome the other reasons not to vote for him?

To me, it depends on one's perspective. If one is simply voting for the candidate whose views are closest to your own, then most libertarians will vote for Gary Johnson. Trump's Supreme Court appointments are unlikely to affect that.

But if you are (for some reason) choosing between Trump and Clinton, then Trump's likely appointments are important. Both Trump and Clinton are so flawed that any significant chance that one of them will do something good is pretty important. So I would say that if one is choosing between Trump and Clinton, then Trump's likely appointments are a strong reason for preferring him. Of course, that strong reason might be outweighed by other considerations, depending on your views of the two candidates.

Obviously, I am very tentative about the issue.   One's decision here depends on how one views voting; the likelihood that Trump makes a good appointment is uncertain; and much depends on how one evaluates Trump's other negatives.  But the key point is that "both Trump and Clinton are so flawed that any significant chance that one of them will do something good is pretty important."  This is a pretty damning statement, but I am hardly alone in believing this.

The other people who responded are split on these issue.  Many believe, like Jonathan Adler, that "Trump is beyond the pale."  Others see the Supreme Court as the main reason to support Trump, viewing the decision as Glenn Reynolds does, as between "certainly awful and possibly awful."  What a political year we are in!

Given how similar the basic political principles are of the experts, it is genuinely interesting that they are so split.

Randy Barnett & Josh Blackman: Restoring the Lost Confirmation
Michael Ramsey

Randy Barnett (Georgetown University Law Center) and Josh Blackman (Houston College of Law) have posted Restoring the Lost Confirmation (University of Chicago Law Review Online) on SSRN. Here is the abstract:      

There is a silver lining to the stormy cloud brewing over Justice Antonin Scalia’s crepe-covered seat. During his speech nominating Judge Merrick Garland to the Supreme Court, President Barack Obama faulted Democrats and Republicans for their prior positions on judges. “[T]here’s been politics involved in nominations in the past” on both sides, Obama observed. He is right. Over the past three decades, presidents and senators from either side of the aisle have ratcheted up the tension over Supreme Court nominees. And the linchpin of that conflict is what has become an utterly meaningless ritual: the confirmation hearing. But not for the reasons you may think.

The conventional wisdom is that, in their present form, judicial confirmation hearings serve no meaningful purpose. This is because nominees, who are rationally self-interested in being confirmed, refuse to answer any questions that could jeopardize their prospects. Instead — the theory goes — when asked a controversial question, the nominee filibusters and obfuscates. Candidates of both parties are trained through rigorous “murder boards” to provide answers that are designed to shed as little light as possible on how they would behave as judges.

However, the conventional wisdom is based upon an incomplete account of how the hearings have devolved. While we agree that the current dysfunctional state of the confirmation process stems from the failed appointment of Judge Robert Bork to the Supreme Court, there is a widespread misunderstanding of what exactly went wrong at the Bork hearing. We contend the types of questions asked by both Democratic and Republican senators — at that hearing and since — assume a “legal realist” emphasis on results rather than on legal reasoning. The focus has been on cases of the Court rather than on clauses of the Constitution. Each side is trying to get nominees to tip their hand on how they will decide cases that each side cares about. But there is a better way.

This Essay proceeds in three parts. First, we identify three distinct “moves” that allow nominees to skate away from questions that might reveal that they would reach the “wrong” results in future cases. Second, we demonstrate how a focus on the meaning of clauses of the Constitution, rather than the cases before the Supreme Court, can fundamentally transform how hearings are conducted. We harbor no illusions that members of the Senate Judiciary Committee all possess the sufficient knowledge to meaningfully engage in this line of questioning, beyond reading prepared questions from staffers. But we do not need a cadre of originalist senators. The beauty of our reform is that no rules need be changed; no bipartisan agreement need be reached; and even the Republicans on the Senate Judiciary Committee need not all be of the same mind. For this approach to restore the lost confirmation hearing, we need only a senator or two to focus their limited time on originalism.


Daniel Francis: The Decline of the Dormant Commerce Clause
Michael Ramsey

Daniel Francis (JSD candidate, NYU School of Law) has posted The Decline of the Dormant Commerce Clause (Denver Law Review, Vol. 94, No. 2, forthcoming) on SSRN. Here is the abstract:   

A profound transformation has been worked in the law of the dormant Commerce Clause. Much contemporary scholarship and many modern decisions of the Supreme Court present the essential structure and content of the doctrine in the form that it held through the middle decades of the 20th century (hereafter the “Traditional Framework”). But in truth the Court has dramatically eroded the dormant Commerce Clause since the mid-1980s, leaving it today a slender remnant of the traditional model. This article tracks three dimensions of the doctrine’s precipitous decline. First, the Court has profoundly eroded the rule against discriminatory regulation, focusing almost exclusively on “intentional” protectionism. Second, the Court has virtually retired the practice of burden review, in which the balance between the commercial burden of a State measure and its social benefits is judicially scrutinized for reasonableness. Third, the Court has created and expanded exceptions to the reach of the doctrine with remarkable speed. The first and second of these dimensions accord closely with prescriptions offered by Donald Regan in a seminal 1986 article, but the third dimension marks a decisive step beyond even Regan’s prophetic vision. Today, the path ahead remains unclear. Justice Scalia was a powerful and influential critic of the dormant Commerce Clause, and much may turn on whether his successor continues his project of opposition to the doctrine. But whatever happens next, the Traditional Framework is now hopelessly out of date, and the dormant Commerce Clause is in remarkable decline.

I hope so.  Despite the best efforts of Brannon Denning, I agree with Justice Scalia -- the dormant commerce clause is not part of the Constitution's original meaning.  But in accordance with my emerging view of precedent, I would prefer that the Court read it narrowly rather than simply overrule it.


Mark Pulliam on George Will on Judicial Restraint
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: George Will's Constitution (critiquing this essay by Will at National Affairs).  From the core of the argument:

[Will] avers in his National Affairs essay that “For many years and for several reasons, many of my fellow conservatives have unreflectively and imprudently celebrated ‘judicial restraint.’ For many years, I, too, was guilty of this.” Without providing examples, he implies that conservatives generally believe that “the things legislatures do are necessarily right because they reflect the will of the majority.” He now disavows that position and declares it “high time” that conservatives “rethink what they should believe about the role of courts in the American regime.”

This is a big statement. What does he offer his unreflective and imprudent fellow conservatives as an alternative? Unfortunately, not much besides some disappointingly vague generalizations. ...

The hard questions in constitutional law (frequently discussed on this site, for example here, here, and here) include these: What rights are protected by the Constitution, and how should courts discern those rights? What standard or standards of review should be used when reviewing claims that a challenged law violates constitutional rights? How should the state’s justifications for challenged laws be evaluated? Which party has the burden of proof in such challenges?

Will provides no specific answers. Clearly, majorities have the right to pass laws, even though laws frequently burden some individuals. This is the essence of democracy. Just as clearly, majorities do not have carte blanche; in some areas, the Constitution limits the will of majorities and protects the rights of individuals. In our system of government, the judiciary plays umpire when laws are challenged.

All we have from Will is his suggestion to judges that deference is not always appropriate. This sets up a proverbial straw man, since I can think of no legal scholar—other than University of Texas law professor Lino Graglia—who believes that courts should always defer to the legislature. Most modern proponents of “judicial restraint” (such as Ed Whelan, Judge J. Harvie Wilkinson, or the late Robert Bork) criticize specific rulings that they contend are not supported by an honest reading of the Constitution. To them, “deference” means that courts should not make up “rights” not actually contained in the Constitution or invalidate laws simply because they disagree with their wisdom or efficacy.

As for the libertarian position on judicial review that has been advanced by Randy Barnett, Clark Neily, and others, Will flirts with this but (at least in this essay) does not explicitly endorse it.  Instead he bemoans the modern administrative state (which he describes as “promiscuously intrusive in the dynamics of society”) and questions whether the current leviathan state accurately reflects the will of the people or merely the interests of powerful special interests. ...

And in conclusion:

The essay ends with a re-framing of the question he never answers: “The challenge is to determine the borders of the majority’s right to have its way, and to have those borders policed by a non-majoritarian institution—the judiciary.” That majority rule is “not inevitably reasonable,” and that a proper reading of the Constitution will place “many things” beyond the reach of majorities are banal platitudes with which few scholars would disagree.

Thus Will does little to resolve the tension between the emerging libertarian model of constitutional theory and the traditional conservative approach he purports to disavow. Not all on the Right agree with the post-1937 marginalization of economic liberties, and many conservative legal scholars are open to arguments ... in favor of economic liberties provided that they are supported by constitutional text and consistent with originalist principles (for example, here and here).


Seth Barrett Tillman on Presidential Succession
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman on his latest project: My Next Paper: Counting Framers & Counting Originalists.  From the introduction

The modern succession statute, the Presidential Succession Act of 1947, like its 1792 predecessor, provides for legislative officer succession** in the event that the presidency and vice presidency go vacant. Notwithstanding that majorities in both houses of the Second Congress voted for legislative officer succession, some modern scholars have suggested that the members erred, that is, the Presidential Succession Act of 1792 was unconstitutional.

These scholars have “appealed” from the “verdict” of the members of the Second Congress to the Framers sitting in the Second Congress. For example, Paul Taylor asserts that the 1792 Act “was opposed as unconstitutional by James Madison and a majority of other former Delegates to the Constitutional Convention.” Similar claims are made by Professors Akhil Amar, Vikram Amar, Feerick, Goldstein, Kalt, and Silva. But this position is not correct. Hugh Williamson—convention delegate from North Carolina and subsequently a Representative—was the only Framer holding an elected federal position at the time Congress enacted the 1792 statute who we know opposed legislative officer succession on constitutional grounds. In other words, we cannot credibly say that several, many, a plurality, much less a “majority” of the Framers opposed legislative officer succession on constitutional grounds. Indeed, to argue that even as few as two Framers, who were also members of the Second Congress, opposed legislative officer succession on constitutional grounds would be error.

And in conclusion:

There are those today who wish to impugn the constitutional bona fidés of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act—I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal—for whatever reason—has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.


Evan Bernick Responds to Richard Primus
Michael Ramsey

As an update to my prior post, here's another thoughtful response to Richard Primus on libertarianism and originalism -- at the Federalist Society Blog, Evan Bernick: The Libertarian Case for Originalism.  Interestingly he begins (as I would) with a rule of law argument:

Originalism’s appeal derives in substantial part from its promise of objectivity. It is best understood as a family of interpretive theories that are unified by two core premises, which Professor Lawrence Solum has termed the “Fixation Thesis” and the “Constraint Principle.” The Fixation Thesis holds that the meaning of any particular provision of the Constitution was fixed when that provision was framed and ratified, and that that meaning is distinguishable from the subjective understanding held by any particular person or group of people. The Constraint Principle holds that the Constitution’s fixed meaning should constrain constitutional practice (in particular, constitutional adjudication). Ascertaining the meaning of the Constitution’s words entails studying historical facts concerning patterns of word usage and seeking to identify the kinds of things that those words refer to. Originalism, at its best, is committed to empirical inquiry—committed to going wherever the evidence leads.

He then says (and I agree) that if the Constitution were (in its original meaning) an evil document, we would be entitled to reject it.  But it is not:

Fortunately, libertarians need not reject the Constitution. The Constitution is distinctly—indeed, remarkably—libertarian in its letter (its text) and its spirit (its animating principles, and the purposes of its particular provisions). The spirit of the 1787 Constitution was the spirit of 1776— the Constitution is designed to implement the political-philosophical premises set forth in the Declaration of the Independence, well-described by George H. Smith as the “radical edge of [classical] liberalism.” While the Framers disagreed amongst themselves concerning many topics, they did not disagree that the fundamental purpose of any legitimate government is the protection of individual rights—to defend oneself, to pursue a vocation, to acquire, use, and enjoy property, to engage in expressive activities, to generally act in accordance with one’s own judgment in pursuit of one’s own happiness, so long as one does not violate the equal rights of others. The letter of the Constitution establishes a national government that is inherently limited in the scope of its power and can take no action at all except pursuant to an affirmative grant of power from “We the People.” The Constitution divides the primary power of “We the People” (who, like the “one people” of the Declaration, are individual rights-bearers) between the federal government and the states and vests different kinds of federal power in specialized governmental bodies, thus avoiding the consolidation of power in any particular body and preventing any particular body from attacking individual rights unopposed. It throws up numerous structural impediments to government action—impediments that are calculated to promote deliberation and reflection and to allow various actors to oppose measures believed to be unconstitutional or merely unwise. Article III provides for an independent system of federal courts, insulated from the political branches and from the tides of public opinion, staffed by judges who are duty-bound to say what the law is, rather than what executive or legislative branch officials believe it ought to be. The Constitution is jam-packed with paragraphs full of rules that are not much fun to read but which are important components in a system that works to ensure that government power is deployed to (in the words of the Preamble) “secure the blessings of liberty”—not to endanger them. The addition of the Bill of Rights in 1789 affirms the Constitution’s distinctly libertarian character by specifically marking a list of individual rights off for protection—both natural rights to freedom of action that precede government and procedural rights calculated to safeguard natural rights. The Ninth Amendment makes plain that the list is not to be construed to deny the existence of other natural rights that could never be comprehensively enumerated and are retained by individuals.

Again, I agree (though he and I probably have a somewhat different view of the Ninth Amendment).

Finally, a return to the rule of law:

And yet, given that I have already conceded that the Constitution authorizes more government power than is ideal, the question arises: Even if I am correct about all of the above, why should libertarians want judges to be originalists in cases where taking a different approach might produce a result more favorable to liberty? Why settle for less?

The answer lies in the nature of judicial duty. Judges draw their power from Article III of the Constitution and (like all government officials) take an oath to “support this Constitution” (emphasis added). Their power over their fellow citizens is awesome—judges can impose ruinous fines, send people to prison for decades, and sentence people to death. They can ratify or invalidate governmental decisions to bulldoze entire neighborhoods for “economic development,” destroy livelihoods, and deny terminally-ill patients access to potentially life-saving medicines. With judicial power comes the duty to act in accordance with the law of the land. The oath judges take can be understood as forming a contract: Judges receive the power to reach binding judgments and make authoritative statements of what the law is in exchange for foregoing the opportunity to act on the basis of will—their beliefs or desires about what the law should be, or the beliefs and desires of other government officials—rather than the principles of reason in our law. Judges cannot seek to recapture that foregone opportunity—they may not draw power from the Constitution while refusing to be bound by its terms.

It is also highly doubtful that judges who depart from the law in the name of libertarian first principles would better serve the cause of liberty than faithful originalists. Hitting upon the correct political philosophy is insufficient to ensure its implementation. The Framers’ frankly staggering genius discloses itself primarily in the system that they developed to implement their political philosophy—a system that was adopted only after vigorous discussion and debate across the nation that is striking for its substance, its illumination of the stakes, and its erudition. Presuming to improve upon that system through judicial fiat is not only incompatible with judicial duty but highly unlikely in practice to produce actual improvements. Further, since libertarianism is decidedly not the dominant political philosophy on the federal bench, in the legal academy, or within the political branches of government, any advocacy of judicial departure from the Constitution in the name of political philosophy could legitimize judicial, executive, and legislative behavior that is profoundly hostile to libertarian ends.

A magnificent essay all around.

Ilya Somin on Richard Primus on Gary Johnson and Originalism
Michael Ramsey

In response to Richard Primus' claim that libertarians should not be originalists, Ilya  Somin at Volokh Conspiracy: Gary Johnson, libertarianism, and originalism,  Professor Somin writes:

In this article from last year, I explained in greater detail why there is considerable congruence between libertarianism and originalism. Enforcement of the original meaning certainly would not give us a completely libertarian polity. But it would still impose tighter limits on federal power and stronger protection for a variety of individual rights – including property rights and economic liberties – than is likely under the realistically feasible alternatives, such as “living constitutionalism” or wide-ranging judicial deference to the political process.

Primus also claims that the original Constitution many be inimical to libertarianism because its purpose “was to create a more powerful government, not a less powerful one.” But the government created by the original 1787 Constitution could simultaneously be more powerful than the very weak one that existed under the Articles of Confederation, and much less powerful than what we have today. Moreover, most of the important amendments since 1787 – the Bill of Rights and the Reconstruction amendments – limit government power in a variety of significant ways, most of which are highly congruent with libertarianism.


Plus my further thoughts: Professor Primus also argues that originalism is too indeterminate to serve rule-of-law values, and so should not be preferred for that reason.  I disagree on three grounds.  First, it's a comparative question.  It's not whether originalism is determinate in itself.  The question, as Justice Scalia put it well in his concurrence in McDonald v. City of Chicago, is whether originalism is more determinate than the alternatives.  As the principal alternative is living constitutionalism, the answer is clearly yes.  Living constitutionalism depends fundamentally on the moral and political values of the decisionmaker.  These are necessarily subjective.  Originalism depends on a textual and historical inquiry.  This inquiry may be difficult, and it may inevitably be somewhat influenced by the moral and political values of the decisionmaker (because it is hard to overcome one's biases).  But at its core it is an inquiry that is not inherently subjective.

Second, as my colleague and co-blogger Mike Rappaport has observed, one reason originalism appears somewhat indeterminate is that originalist scholarship has only recently become widely practiced.  Many constitutional provisions -- even very important ones -- have simply not been fully explored from an originalist perspective.

Third, in my view originalism's indeterminacy is greatly overstated.  People tend to focus on the apparently general phrases of the rights provisions: freedom of speech, equal protection, etc.  These may or may not be difficult, but they are not all of the Constitution.  Here are two counterexamples from my scholarship:

(1)  "Declare war."  In my view, it is clear that this power of Congress (a) was exclusive and (b) covered any initiation of conflict with a foreign power, whether by formal declaration or armed attack.  Although there are some minority views, most scholars who have studied the issue appear to agree.  While there is a good bit of uncertainty about the war powers of the president and Congress, it is mostly at the margins.  The core proposition -- that presidents cannot start wars -- seems clearly established by text, original understanding, and post-ratification practice.

In contrast, under a living Constitution approach, it's a hard question.  International power structures, geopolitics and military technology are quite different today than they were at the founding.  As Eric Posner and Adrian Vermeule would say, the speed and complexity of international events have increased to an extent the framers could not have imagined.  Perhaps national security now requires less constraint on the president.  Whether this argument is persuasive depends on the audience.

(2) Citizenship of the U.S.-born children of illegal immigrants.  Again, I think this question is clear.  As a matter of text and original meaning, the Fourteenth Amendment says flatly that all persons born in the U.S. are citizens, with an exception that (given its obvious original meaning) isn't applicable.  But under a living Constitution, the question becomes subjective and value-driven.  One could easily say that circumstances have changed, that a broad reading of the clause does not make sense in today's world of widespread illegal immigration, and that therefore it should not be extended to a situation the framers never envisioned.  Again, whether this is persuasive depends on the values of the decisionmaker.

I can't say whether Professor Primus thinks originalism is no more determinate than living constitutionalism in these circumstances, but if that is what he thinks, I urge him to take a closer look at originalist scholarship and the text's original meaning.


Eric Posner on Trump and Originalists
Michael Ramsey

Eric Posner at ericposner.com: Trump and the Originalists.  From the introduction:

Trump does not hold any discernable constitutional philosophy but Trumpism owes its meteoric rise in part to originalism, which was so forcefully championed by Antonin Scalia over his long career. I see Trumpism as having three parts: (1) a policy commitment to economic nationalism and law and order; (2) a nativist emotional appeal; and (3) a nihilistic attack on elites and elite institutions—nihilistic because there is no explanation as to what will replace them, only the hope that something better will. It’s #3 that I associate with originalism.

It’s not that originalism itself is nihilistic—quite the contrary. According to its supporters, the original understanding supports a limited national government of the sort that existed before the twentieth century. Such a government would be deprived of the power to interfere with people’s economic and political liberties but would remain strong enough to protect the country and support a national market.

The nihilism lies not in the vision itself, but in the implications, which were originally implicit, but have been spelled out more explicitly in the last two decades, with Scalia as champion. The argument is that because American law and legal institutions have deviated from this understanding, they are illegitimate. The entire administrative state—the EPA, OSHA, Obamacare, social security, and all the rest—is illegitimate. 

And what this means is that presidents from FDR (if not earlier) to Obama have wielded authority that they did not have. That Congresses have betrayed the nation by acquiescing in the aggregation of presidential power. That the Supreme Court has failed to enforce the Constitution. Nearly all the officeholders at the top of our government over the last century have violated their oath to defend the Constitution.

I think this greatly overstates.  Only extreme versions of originalism would find "the entire administrative state" to be unconstitutional, though surely some agencies would be greatly scaled back under most forms of originalism.

Professor Posner continues, connecting Scalia and Trumpism

It was quite a rhetorical trick, but Scalia managed to anticipate Trumpian populism by associating the constitutional vision of the aristocratic founders with democracy, and accusing the liberal justices—who emerged from and hobnobbed with the same exclusive circle of establishment types as he did—of being out-of-touch elites. It was this claim that helped pave the way for Trumpism. A key element of Trump’s appeal derives from the sense that American institutions have failed us. Scalia, and the Republican politicians who deified him, confirmed this view by placing the blame squarely on the shoulders of a hopelessly corrupted Supreme Court while invoking a nostalgic vision of purer times. And who would be better placed than Scalia to make this accusation? The old, moderate response of Republican presidents from Nixon to Bush—“we’ll appoint better justices”—no longer persuades. They promised and failed to deliver. The rot is complete, the structure must be set alight in a long overdue Gotterdammerung.

I find this connection to be quite a stretch.  Trump does not seem concerned with the size of the federal government or the powers of the President (or, really, with the Supreme Court).  Trumpism, I would say, is not about limiting government power; it's about getting control of government power.  (Thus, originalist-oriented libertarians like Ilya Somin tend to be NeverTrumpers).  While it's true that Trumpism arises from a perception of failed national institutions, (a) the Supreme Court is far from a central concern; and (b) the failures are mostly failures to exercise enough power: failure to protect jobs, failure to limit immigration, failure to act against foreign enemies, failure to suppress crime.  None of this has much to do with originalism or the Court or the administrative state.  Professor Posner's argument would work better if the connection were drawn to the Tea Party movement, which was expressly a reaction to the size of the federal government and was substantially inspired by originalism (see Elizabeth Price Foley's book The Tea Party: Three Principles).  But of course that would not carry the shock value he's looking for.

Also some thoughts on the failure of originalism at the Court:

It turned out that there was no mainstream political support for originalism—in a substantive as opposed to merely rhetorical sense. Most ordinary people admire the founders but want a strong national government, and all the goods that it provides—from social security to environmental protection.

The major cause of the failure of originalism [at the Supreme Court] was thus practical and political. Reagan was able to appoint only one Supreme Court justice who was an originalist—Scalia himself. His other two appointments—Kennedy and O’Connor—were not originalists. Over the years, presidents—whether Democrats or Republicans—failed to appoint originalists (except Clarence Thomas). In retrospect, two major knells of originalism’s doom were the appointments of Alito and Roberts by George Bush—solid conservatives but not originalists. It also became clear that Bush did not care about originalism or even the Supreme Court; not even ideologically conservative presidents could be depended on to ensure an originalist Supreme Court. Meanwhile, Supreme Court decisions themselves—while more conservative than in decades—did nothing to dismantle the administrative state, in fact, to the contrary, affirmed it.

Whether Justice Alito and Chief Justice Roberts count as originalists depends on one's definition.  I would call them "originalist-oriented," meaning that they are open to originalist arguments and originalist values, especially in areas without extensive precedent.  Putting it that way takes most of the sting out of Professor Posner's account.  It's hard to make the argument that the Court is less originalist-oriented now than it was 30 years ago.  But it is also surely true that the Court is less originalist-oriented now than some people 30 years ago hoped it would be.

At Volokh Conspiracy, David Bernstein comments:

[O]riginalism faces a significant difficulty in becoming the governing ideology of the Supreme Court, regardless of the ideological sympathies of the justices. Modern “original public meaning” originalism faces the problem that it’s almost entirely novel to American jurisprudence, which means that we have more than 200 years of precedent based on what modern originalists deem to be illegitimate non-originalism. It’s not politically or practically feasible to start from scratch (imagine the panic in world markets if the court ruled the Federal Reserve unconstitutional), and if the court applies originalism only selectively, or only to new issues not addressed previously, it raises the serious question as to whether it’s coherent to have a body of constitutional which is only partially based on originalism.

Agreed as to the first part.  Originalism only works on a practical level if combined to some extent with precedent.  But, as to the second part, I don't see why it can't be.  


Richard Primus and John McGinnis on Gary Johnson and Originalism
Michael Ramsey

Richard Primus at Balkinization: A Small Note on Gary Johnson’s Originalism.  From the introduction:

Last week, Libertarian Vice-Presidential candidate Bill Weld created a small stir among committed libertarians by saying that a Johnson-Weld administration would want to appoint Supreme Court Justices in the mold of Stephen Breyer and Merrick Garland.  The stir was understandable.  Justice Breyer is, after all, probably the least libertarian member of the current Court, and Judge Garland shows no signs of harboring a libertarian constitutional vision either.

What I wish to call attention to is the juxtaposition between the negative reactions that libertarians understandably voiced to Weld's comment and the complete absence of negative reactions to another comment about Supreme Court Justices made in the same interview--a comment that the person at the top of the ticket made just before Weld named Breyer and Garland.

The reporter conducting the interview asked first Johnson, and only then Weld, about potential Supreme Court nominees.  (Johnson's the one running for President, after all.)  Johnson named no names, and he didn't give an in-depth answer.  But he did say that he'd want to appoint Justices who heeded the Constitution's original meaning.  To be precise, he said he'd want "people that look at the Constitution of original intent." 

To my knowledge, the world of libertarian commentators had no negative reaction to this comment by Johnson.  Nor would one expect it to.

But if the reason why the idea of an originalist Supreme Court sets off no alarm bells among libertarians is that libertarians think the Founders understood the Constitution as a charter of libertarian ideals in the way that twenty-first century libertarians understand those ideals, then those twenty-first century libertarians are laboring under a distorted understanding of the eighteenth century. 

It would be a mistake to think that the Constitution as originally understood ordained any of those theories.  But it would also be a serious distortion of history to think of the Founders' Constitution as distinctly libertarian.

And further:

So far I've been discussing what I take to be a straightforwardly likely possibility -- that Johnson endorses constitutional originalism on the mistaken understanding that the Founders shared his libertarian values, and that libertarians in his audience approved of the remark because they share the mistaken understanding.  But it's worth canvassing two other possibilities.

One is the point for libertarians of originalism isn't that libertarians think the Founders were libertarians; it's that originalism conduces to the rule of law, and the rule of law is in turn conducive to liberty as libertarians understand liberty.  The trouble with this theory, though, is that it makes sense only if originalism really could deliver the rule-of-law benefits that this theory claims for it, and I don't think it can.  After all, the reason why originalism is supposed to be good at delivering those benefits is that it is supposed to create a shared objective meaning for the law, one rooted in something external to the intuitions or worldviews of the people who happen to be the decisionmakers.  But originalism in practice delivers enormous indeterminacy in the law. [ . . . ] We all see the Founders differently, because we all see ourselves in them.  Indeed, part of why so many of us can love the Founders is precisely that we all see them in slightly different lights.

The other possibility, which would be a hard position for a candidate to endorse, is that Johnson would like to appoint originalist Justices who would also have libertarian politics because he knows (a) that Justices with libertarian values will likely read Founding sources to support libertarianism, whether or not dispassionate historians will read them that way, and (b) it's rhetorically more powerful in constitutional law to claim the sanction of the Founders for your arguments than not to.  In other words, he'd want libertarian Justices, and within the world of libertarians he'd want originalists, because they're the libertarians most likely to deploy -- self-consciously or otherwise -- some of the most potent rhetoric in constitutional law, namely the claim that their values are the values of the Founders rather than just their own.

At Liberty Law Blog, John McGinnis responds: Why Libertarians Should be Originalists.

[Primus] says that the Constitution does not entrench libertarian principles as such.  True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism.  Instead, the question should be whether an originalist view would move constitutional law today toward more libertarian results than plausible competing interpretive theories. And here the answer is yes.

First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers. While the Constitution did not much limit state power within state borders (and states retained huge authority even after the Fourteenth Amendment), the capacity of citizens to exit and move to other states gives the individual substantial leverage against most governmental power.

The Constitution also largely creates rights against the government, not claim rights to government services. This design favors the libertarian as opposed to the social democratic view. 

Moreover, the limitations on government and the structure of rights reflects the historical truth that the Constitution does emerge from a generally classical liberal framework, a framework that is a forebear of libertarianism.

Further note:  Ilya Somin had an essay on this a while back: How Constitutional Originalism Promotes Liberty.

I generally agree with Professors McGinnis and Somin on this.  While the Constitution's original meaning does not deliver everything a libertarian might want, it does offer a federal government sharply constrained by separation of powers and federalism, and state and federal governments constrained by (at least) basic rights guarantees.  Living constitutionalism does not offer any of these things; it offers only the structural and rights protections that particular judges think appropriate in light of modern circumstances, whatever those may be.  Moreover, appeal to originalism offers libertarians a way to ally with other originalists, where insistence on a pure libertarian moral reading of the Constitution does not.

Also, it's worth noting that Professor Primus' post seems to assume a purely political role of the Supreme Court.  That is, in his view libertarian candidates should prefer judges that advance libertarian political goals (and, presumably, Democratic candidates should prefer judges that advance Democratic party goals and Republicans should prefer judges that advance Republican party goals).  Perhaps that is so in the modern judicial world.  Indeed, as regular readers know, I would endorse it as the main alternative to originalism.  However, in my view Governor Johnson should be commended for trying to get beyond this political conception of the Court.


Mark Graber: State Constitutions as National Constitutions
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted State Constitutions as National Constitutions (Arkansas Law Review, forthcoming) on SSRN. Here is the abstract:     

Practice trumped theory on the precise status of newly independent states when Americans drafted and ratified early state constitutional documents. General agreement appears to exist that the Continental Congress was empowered to conduct the Revolution and make foreign alliances, while the states were empowered to regulate internal police matters. State politicians during the time between the drafting of the Declaration of Independence and the ratification of the federal Constitution, however, consistently undertheorized the basis of the distinction between internal and external affairs, at least when framing official state constitutional documents. 1770s and 1780s pamphleteers and essayists frequently expounded on the proper relationships between the periphery and core, but those responsible for early state constitutions did not adopt any available understanding of federalism in a uniform or clear matter. Broad statements on theory were either ambiguous or conflicting. Some provisions in early state constitutions indicated that the United States was becoming, or was, a confederated union composed of independent, sovereign states. Others evince a more consolidated regime.

The best evidence suggests that under the pressure of time and circumstances, those responsible for state constitutions felt little need to reach agreement or even think deeply about the theoretical foundations of the federal-state relationship when they agreed on the immediate practical division of labor before them. The state constitutional response, or lack thereof, to the ratification of the federal Constitution suggests that Americans reached no greater consensus on the location of ultimate sovereignty in 1788, when the Constitution was ratified, or in 1791, when all states ratified the Constitution.


Emily Sherwin: The Importance of The Gap
Michael Ramsey

Emily L. Sherwin (Cornell University - Law School) has posted The Importance of The Gap on SSRN.  Here is the abstract:     

One of the central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.

(Via Larry Solum at Legal Theory Blog, who adds: Read this--especially if you are not yet familiar with Alexander's concept!).


Will Baude on "The Law of Interpretation"
Michael Ramsey

Will Baude (Chicago) is guest-blogging about his article (with Stephen Sachs) "The Law of Interpretation" at Volokh Conspiracy.  Here are the initial posts:

What is legal interpretation anyway? (the opening post)

Interpretation and ‘the artificial reason of the law’ -- with the key proposition:

Simply put, we think that there can be, and usually are, legal rules of interpretation that pick among contested theories of meaning and fill gaps where language seems to run out. These are legal rules, not derivable from language alone. But as law, these aren’t unfettered normative reasoning either.

Interlude: What’s the point of a law of interpretation?

The (unwritten) federal rules of statutory interpretation

No ambulances in the park?

Another example: Chevron

One general application of The Law of Interpretation is to figure out which purported rules or canons of statutory interpretation are actually valid.

On our view, there are basically two routes to validity: Either a rule is a principle of language, in which case it should accurately track how lawmakers communicate; or it is a principle of law, in which case it should satisfy the tests provided by the rule of recognition for valid legal norms in our system. (You can replace the latter with your own preferred theory of jurisprudence, but I’ll leave that as an exercise for the reader.)

So to take one newly controversial example, is the rule of agency deference pronounced in Chevron v. NRDC valid? I am dubious.


Corey Yung: Constitutional Communication
Michael Ramsey

In the current issue of the Boston University Law Review, Corey Yung (University of Kansas School of Law): Constitutional Communication (96 B.U. L. Rev. 303 (2016)). Here is the abstract:

Scholars advocating various normative and positive theories endorse the notion that the Constitution is communicative of its meaning. However, there has been little discussion as to what “communication” means in the constitutional context. This Article addresses the communication gap by introducing and applying communication-based concepts and models to constitutional theory. There are two results of that integration. First, the account in this Article offers a richer framework and vocabulary for structuring ongoing debates about interpretative theory and constitutional meaning. Second, the addition of communication concepts and norms into the debate about constitutional meaning points toward a new perspective regarding interpretation: constitutional contextualism. This flexible approach contends that the constitutional provision being interpreted, and not a pre- selected universal theory, should dictate the tools that are used to analyze it. Significantly, this approach does not seek to negate the dominant theories of constitutional interpretation. In fact, the insights of various originalist and living constitutionalist theories are essential for selecting or synthesizing which interpretive methods are preferable in specific situations. By adopting a flexible, contextual, communication-based approach to identifying the best constitutional meaning in particular cases, we can end the growing fetishization of global interpretive theories and better adapt to the real-world needs of constitutional readers.


Josh Blackman: Gridlock
Michael Ramsey

Josh Blackman (Houston College of Law) has posted Gridlock (Harvard Law Review, Vol. 130, 2016, forthcoming) on SSRN. Here is the abstract:      

Two of the biggest cases at the Supreme Court this past term ended as they began: gridlocked. In Zubik v. Burwell, the Justices declined to decide the validity of the accommodation to the Affordable Care Act’s (ACA) contraceptive mandate. In United States v. Texas, the Court divided four-to-four on whether Deferred Action for Parents of Americans (DAPA) was lawful. 

Both cases involved extremely delicate line-drawing. In the former, the Justices had to determine whether an accommodation to the contraceptive mandate imposed a substantial burden on the free exercise of religious organizations. In the latter, the Court was called on to resolve the scope of the President’s prosecutorial discretion to shield from removal and grant lawful presence to four million aliens. During oral arguments — our only source of insights, because neither case generated a decision on the merits — the Justices seemed divided on how to balance these competing concerns. In the end, the Court resolved neither case—at least for now.

The eight Justices can be forgiven for not being able to reach a clear decision. Congress, and not the courts, should lead these debates over such profound questions about religious liberty and the separation of powers. Indeed, critics allege that both suits are actually policy disputes masquerading as legal controversies. But these suits arose precisely because Congress did not grapple with these foundational issues. Congress was entirely silent about religious accommodations for the mandate, and Congress affirmatively rejected a change to the immigration status quo. Instead, the administration seized on this inaction to justify executive actions that advanced an expansive change in policy.

My goal in this article is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or if the contraception mandate’s accommodation violates the Religious Freedom Restoration Act (RFRA). In fairness, the Court didn’t either. Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell, to demonstrate how congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes U.S. v. Texas to explain how congressional gridlock does not license the expansion of the executive’s powers. I conclude with a preview of how these still-pending cases are likely to be resolved on remand.

(Via Josh Blackman's blog).


Must Congress Approve Attacks on IS in Libya?
Michael Ramsey

It's being reported that "President Obama has authorized a 30-day mission for the U.S. military to conduct airstrikes against the Islamic State terror group in Libya as new strikes were unleashed Tuesday" (via Stephen Green at Instapundit, who jokes "I’m old enough to remember when it was Congress that authorized the use of force.")

Must Congress authorize this use of force?  I say no, but it's not an easy argument.

The President is probably relying on Congress' 2001 Authorization for the Use of Military Force (AUMF) against the groups that were involved in the 9/11 attacks.  As debated on this blog and elsewhere back in 2014 when hostilities with IS began, tying IS to the 2001 AUMF is problematic.  It's true that IS can be understood as an outgrowth of the Zarqawi organization in Iraq, which joined al-Qaeda in 2004.  Even though Zarqawi's group wasn't involved in 9/11, I can accept that a group that joins a 9/11 participant group falls under the 9/11 AUMF: it is part of the group responsible for 9/11, which is what the AUMF covers. (Similarly, an individual who joins al-Qaeda after 9/11 couldn't claim that the U.S. can't target him).

But IS split with al-Qaeda very forcefully and publicly in 2014, adopting a strategy of territorial conquest rather than (or at least in addition to) terrorism.  Initially, it was not clear that IS would focus on terrorism against the West at all.  At that point I think IS no longer fell under the 2001 AUMF, because it neither participated in or supported the 9/11 attacks nor was part of a group that did.   I acknowledge that this inquiry needs to be a functional one; al-Qaeda shouldn't be able to escape the AUMF just by renaming itself or splitting into the terrorist equivalent of tiered corporate subsidiaries.  So I think al-Qaeda's affiliate in Syria is covered, even if it has a different name and a separate command structure and wasn't involved in 9/11.  But the split between IS and al-Qaeda seems real and meaningful.  It is, I would say, akin to an individual who joins al-Qaeda after 9/11 but later quits; he is not covered by the AUMF (even if he continues in another variety of terrorism).

Back in 2014, I argued (here, with further thoughts here) that military operations against IS in Iraq were better understood as authorized by the 2002 AUMF (authorizing force to protect "against the continuing threat posed by Iraq").  Even if that's right, though, it probably doesn't cover attacks on IS in Libya -- as far as I know, there isn't any direct operational connection between IS's Libya enterprise and IS activities in Iraq.  The 2002 AUMF doesn't authorize force against IS specifically; it authorizes force to, in effect, resolve the instability in Iraq.  The President's Libya attacks are not directed to resolving the instability in Iraq.

Instead, the stronger basis for the U.S. attacks in Libya is the President's independent war power.  Back in 2014, it was not clear that IS had attacked the United States.  (The first IS attack on U.S. soil was in 2015).  Thus I thought at the time that any claim to independent presidential power to attack IS was weak.  But that situation has changed, most tragically and dramatically with the attack this year in Orlando.  In my view, the IS attacks on the United States authorize the President to respond with force.

Essentially everyone agrees that the President has independent authority to take defensive actions in response to an attack (or an imminent attack) on the US.  The question is whether the President can independently take the offensive against attackers.  In this article ("The President's Power to Respond to Attacks"), I argue that the President does have this power.  And I think that power allows the President to launch attacks against IS in Libya without Congress' approval.

The short version of the argument is this:  Congress has the sole power to declare war, which in my view means the power to initiate a state of war by formal proclamation or by launching attacks.  However, this power is not implicated when another entity begins a war against the United States (again, by proclamation or attack).  In that situation, the war is already "declared" by the other side, and the President may use force as commander-in-chief in response.  Although most people agree with this result as regards defensive measures, I see no persuasive textual or historical evidence for that limitation.  Once the war begins, the President may fight it, in the ways the President thinks best.  Congress' exclusive power involves the beginning, not the extent of the response.  (In making this argument, I basically adopt the argument of both Alexander Hamilton and President Jefferson's cabinet in the Tripoli episode of 1801).

True, this is not a consensus position, and this article by Saikrishna Prakash is the best statement of the opposing view.  But I believe it to be correct and to offer the best defense of the President's ongoing actions against IS in Libya.


Baude on Tillman on the Constitution’s Provisions Regarding Officers
Mike Rappaport

One of Justice Scalia's primary influences on constitutional law and theory has been the growth of originalist textualism – the view that takes close textual readings of the Constitution seriously and draws important consequences for constitutional law from the text rather than someone’s view of what is normatively desirable.  One of the people who has a particular keen interest in such textual differences and their consequences is Seth Barrett Tillman, who has over the last several years sought to closely examine seemingly minor textual variations and to draw significant consequences from them.

In Jotwell, the Journal of Things We Like, Will Baude summarizes and appreciates Seth’s scholarship in this area.  Will explains how Seth has looked at various terms in the Constitution --  “Officer,” “Officers of the United States,” “Officer under the […] United States,” “Public Trust under the United States,” “Offices of Honor/Trust/Profit under the United States,” and “Office under the Authority of the United States.”  Could each of these terms really have distinct meanings?  For many years, even originalist textualists have often assumed the answer is no.

But Seth argues there are important differences between these terms.  Will discusses some of the interpretations and evidence that Seth has used to justify these distinctions.  And he has an extremely useful chart with all six categories and the meanings offered by Seth. 

What are some of the distinctions? Start with the distinction between “Officer” and “Officer of the United States.”  The latter is from the Appointments Clause, which is generally recognized as referring to officers in the executive and judicial branches.  The former is used in the Succession Clause, which provides that when the President and Vice President cannot serve as President, the Congress may by law declare “what officer shall then act as President.”  If “Officer” means the same as “Officer of the United States,” then legislative officers, such as the Speaker of the House, cannot be in the line of succession.  The Amar Brothers have strongly argued for this position.  But Seth claims to the contrary that “Officer” means something broader, including “Officer under the Authority of the United States,” which would allow legislative officer succession.

Another example that Will discusses involves “office under the United States.”  Seth relies on the fact that when Treasury Secretary Alexander Hamilton was instructed in 1792 to report to the Senate “every” person holding “office … under the United States” and their salaries, he attached a list that include “every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress.”  Seth concludes that this category includes “all positions created, regularized, or defeasible by federal statute including (nonelected) legislative branch positions.”

As this last example suggests, it is not clear that Seth is right about all of these claims.  But Seth has carefully examined the textual and other evidence, and has done more in this area than anyone else.  His work is the place to start, and in many cases, unless you do the research yourself, it will be the place you end.  Read Will’s appreciation and Seth’s work.

Nelson Lund: The Right to Arms and the American Philosophy of Freedom
Michael Ramsey

Nelson Lund (George Mason University, Antonin Scalia Law School) has posted The Right to Arms and the American Philosophy of Freedom (Heritage Foundation, First Principles [Forthcoming]) on SSRN. Here is the abstract:     

The right to keep and bear arms is a vital element of our liberal order, but its philosophic basis is no longer appreciated by American elites. The left rejects the understanding of politics on which our nation was founded, and conservative intellectuals have been remarkably uncomfortable with the right to arms. George Will and Charles Krauthammer, for example, have advocated repeal of the Second Amendment, and conservative pundits have generally stayed silent in the face of such attacks on the Constitution.

People who do not understand why they should defend the right to arms are not likely to be its most effective defenders, and ignorance about the philosophy underlying our free institutions is among the least excusable failings of public intellectuals. Conservative pundits constantly complain about the erosion of individual liberty by bureaucratic government, about the enervating effects of the nanny state, and about the suffocating atmosphere of euphemisms and repressed resentment imposed by the political correctness police. If they had a better understanding of John Locke, William Blackstone, Cesare Beccaria, Alexis de Tocqueville, and every one of our founding fathers, these opinion leaders would not display an effete abhorrence of what Krauthammer calls “America’s frontier infatuation with guns.” Our nation’s founding philosophy was not infected with some silly romanticism about guns or an outmoded frontier mentality. It was based on the reality of human nature and on reason, neither of which has changed since the eighteenth century.


Duly Convicted: The Thirteenth Amendment as Procedural Due Process
Chris Green

I have just posted a new article on SSRN, Duly Convicted: The Thirteenth Amendment as Procedural Due Process, which was part of Randy Barnett's excellent Chase symposium last fall for the 150th anniversary of the Thirteenth Amendment and will be forthcoming in the Georgetown Journal of Law and Public Policy. Here is the abstract:

This paper argues for four implications of the Thirteenth Amendment’s crime exception—“except as a punishment for crime, whereof the party shall have been duly convicted”—for assessing the influence of abolitionists’ radical understandings of the Fifth Amendment on the meaning originally expressed by the text of the Fourteenth Amendment’s Due Process Clause.

First, Charles Sumner presented radical-abolitionist substantive due process to the Senate in his condemnation of the crime exception in 1864, but his views were quite clearly rejected in favor of a Northwest-Ordinance-style prohibition.

Second, “duly convicted” was seen as equivalent to “by due process of law,” but was taken not to require even that sentences be proportional.

Third, mainstream-Republican fans of the Northwest Ordinance held that both slavery and fugitive re-enslavement could be simultaneously wrongful but “lawful.”

Fourth, because “duly convicted” banned retroactive impositions of slavery, “due process of law” likewise requires prospectivity more generally in deprivations of life, liberty, or property.

A procedurally- and rule-of-law-focused reading of the Due Process Clause thus receives support not just from the meaning of “process,” but from forms of “due” and “law” as well.

Please let me know what you think!

Toobin on Justice Thomas’s Alleged Arrogance
Mike Rappaport

While I was on vacation, Jeffrey Toobin published a hit piece on Clarence Thomas in the New Yorker entitled “Clarence Thomas Has His Own Constitution.” Sadly, the piece is filled with problematic criticisms of the justice.

Happily, the piece starts with a bit of a defense of Thomas against criticisms. While many people criticize Thomas as either a Scalia clone or not hard working, Toobin acknowledges that these charges are not true. In fact, Toobin notes that Thomas is by far the most active writer on the Court, with twice as many opinions as his nearest competitor on the Court. Moreover, many of Thomas’ opinions are solo opinions that were not joined by Scalia.

But that leads Toobin to his criticism of Thomas. Toobin in essence claims that Thomas is an arrogant conservative, placing his own views over those of his fellow justices and the Court generally (although Toobin does not use the term arrogant). As Toobin puts it:

It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.

While I agree with Toobin that Thomas is the justice pursuing originalism most consistently on the Court, I don’t agree with the implicit criticisms that Toobin asserts.

To begin with, if Thomas were a liberal, pursuing a liberal vision in sole dissents, most commentators and perhaps Toobin would applaud his independent and his vision of justice. He might be called the great dissenter. But since Thomas is a conservative/libertarian, no such applause.

Toobin claims that Thomas is idiosyncratic, but that word (suggesting nonseriousness) is inappropriate. Thomas is following one of, if not the leading theory of constitutional interpretation—constitutional originalism. It is true that most other members on the Court are not, but that suggests the unrepresentativeness of the Court. As originalism has gained significantly in prominence over the last decade, the appointments have been made by President Obama who has eschewed selecting an originalist justice. If a person more open to originalism were to become President, it is possible we would see another consistent originalist on the Court.

Toobin criticizes Thomas for refusing to live with the Court’s precedents that even his conservative allies recognize they must apply. But that is not right either, even assuming (which is not entirely clear) that Thomas rejects most precedent. First, Thomas has more influence this way—by consistently applying an interpretive approach, he publicizes and furthers that approach and effectively criticizes the Court’s problematic jurisprudence.

Second, it is simply not true that the liberal justices “live with” the Court’s precedents. Frequently, they live with the liberal precedents, while seeking to overturn the conservative ones. The most radical change in the Court’s history was the liberal New Deal. The second was probably the liberal Warren Court. And even today, as Ruth Bader Ginsburg’s outbursts make clear, the liberal justices are plotting the overturning of Citizens United and Heller.

Other criticisms of Thomas in the article are also off base. Yes, Thomas would be unlikely to give his seat to a Democratic President, but that hardly distinguishes him from the other justices. The only ones who have given their seats to a President of the other party are Stevens and Souter, both of whom were liberal or nominal Republicans. Toobin also criticizes Thomas for saying that “since the Presidency of Franklin D. Roosevelt, the Court’s interpretation of the Constitution has become an ‘unworkable morass of special exceptions and arbitrary applications.’”  Notice that Toobin does not specifically deny Thomas's charge. I will turn to this aspect of Justice Thomas’ views in a future post.