Gary Lawson: Did Justice Scalia Have a Theory of Interpretation?
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Did Justice Scalia Have a Theory of Interpretation? (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:      

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation – the ascertainment of textual meaning – and adjudication – the determination of real-world cases – is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication.

This is for an upcoming symposium on Justice Scalia, for which I'll also have a contribution (but Professor Lawson is way ahead of me, as usual).


More on the Supreme Court Nomination
Michael Ramsey

At The Hill, Alexander Bolton reports: Conservatives press Trump on Supreme Court pick.  It begins:

Influential conservatives are pressing President-elect Donald Trump to nominate Bill Pryor, a judge feared and disdained by liberals but loved by conservatives because of his “titanium spine,” to the Supreme Court.

Pryor is said to be on Trump’s short list to replace the legendary conservative Justice Antonin Scalia, who died almost a year ago.

Trump told reporters Wednesday that he will announce his nominee within two weeks of taking the oath of office on Jan. 20.

Conservatives want an intellectual heavyweight to fill Scalia’s shoes and fulfill Trump’s promise made during last year’s campaign to nominate a justice “in the mold of Scalia.”


“[Conservatives] want to get a judge who is going to follow the Constitution according to its text, structure and original public meaning,” said [John] Malcolm [director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation] who prepared a list of judicial recommendations for Trump on behalf of the Heritage Foundation.


Malcolm and Leonard Leo, the executive vice president of the Federalist Society, are among the two most influential outside voices advising the Trump transition team on whom to pick for the court.

(Via How Appealing).  Also, at Above the Law, David Lat reports that President-Elect Trump interviewed Judge Pryor on Saturday.

At SCOTUSblog, profiles of the leading candidates, including Judge Pryor plus judges Gorsuch, Colloton and Gruender.

On Gorsuch, the profile comments:

He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.


American Journal of Legal History Forum on the Second Amendment
Michael Ramsey

In the December 2016 issue of the American Journal of Legal History (vol. 56, issue 4), a forum on the Second Amendment.  The contributions are:

Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism, by Douglas Walker, Jr. (Ph.D. candidate, Michigan State, political science). 

Response to “Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism” by William G. Merkel (Charleston) [ed.: a pretty harsh response]

Rethinking Originalism: Bearing Arms and Armed Resistance in Pennsylvania, by Nathan R. Kozuskanich (Nipissing University)

(Via Alfred Brophy at The Faculty Lounge).


William Baude: Is Qualified Immunity Unlawful?
Michael Ramsey

William Baude (University of Chicago Law School) has posted Is Qualified Immunity Unlawful? on SSRN.  Here is the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.

(Via Volokh Conspiracy, where Professor Baude has further thoughts.)


Trump's Emoluments Opinion as an Ideological Statement
Michael Ramsey

On further reflection, I think the Trump legal team's statement on the foreign emoluments issue is even more remarkable than I first thought.  As noted (via Josh Blackman), the statement opens its discussion of the foreign emoluments issue by declaring:

The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text. [Citing Scalia & Garner, Reading Law and Scalia, Originalism: The Lesser Evil].  Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.” 

This would not be a surprising passage in an article written by an originalist scholar (although I, for example, have never made so strong a claim -- note that it says "is" rather than "should be").  This statement, however, is written by lawyers with the purpose to persuade a wide range of readers.  Lawyers, unlike law professors, commentators and (some) judges, typically do not bind themselves into one particular mode of interpretation.  Rather, to the extent possible, they argue the full range of Philip Bobbitt's "modalities" of constitutional interpretation, including but not limited to original meaning.  If a lawyer omits one of the modalities, it's probably because there's no plausible argument there.

Here, however, we have what I can only describe as an ideological statement (I mean that in a descriptive and not negative way).  It picks a side in the debate over methods of constitutional interpretation.  Moreover, it picks a contested side, and one likely to be especially unpersuasive to the President-elect's principal critics (such as Laurence Tribe).  It does not need to do that to make its case, and its not clear its case is helped by taking such an approach.

I conclude, therefore, that the statement has a purpose beyond merely persuading readers on the emoluments issue.  Its purpose is to persuade readers that originalism is the correct way to resolve the issue, or at least to show that the Trump administration believes that it is.  Since taking such a strong position is not necessary to resolving the emoluments issue, the point of the statement must be more than the narrow question of emoluments.

Thus the effect (and, I think, the purpose) is to associate Trump with originalism (and, specifically, with Justice Scalia).  It's an attempt to influence the legal culture (what Larry Solum calls the "gestalt" of  constitutional interpretation) in the direction of originalism.

I'm not sure why they would take this course (although I think it suggests that they are not too worried about the emoluments issue in itself, instead viewing it as an opportunity to make a broader point).  It may be laying the groundwork for the pending Supreme Court nomination, or perhaps it's just a nod to conservative supporters.  Or perhaps it is the first step in a future campaign to materially move the legal culture in an originalist direction.


Josh Blackman on Trump on Emoluments
Michael Ramsey

Josh Blackman notes that President-Elect Trump's lawyers have released an extensive analysis of the emoluments clause issue.  The short version is that they accept that the clause is applicable to the President but deny that "emolument" includes ordinary business dealings.  It is expressly originalist (and Scalian) in its foundation:

The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text. [Citing Scalia & Garner, Reading Law and Scalia, Originalism: The Lesser Evil].  Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.” 

Professor Blackman has much more extensive discussion, including some methodological reservations.

I have an additional quibble: the letter begins, "From President Washington to Vice President Rockefeller to President-Elect Trump, many of this Nation’s leaders have been extraordinarily successful businessmen."  I yield to no one in my admiration for George Washington, and I agree he was a businessman, but I think it perhaps a stretch to call him "extraordinarily successful" in that aspect of his life.

RELATED:  At Volokh Conspiracy, Will Baude: Some misgivings about the Foreign Emoluments Clause arguments.  Among others: 

I’m still not convinced that the president holds an “Office … under [the United States.]”

As I explained in an essay this summer, Seth Barrett Tillman’s scholarship on this question (once I really understood it) has influenced me. Tillman argues that an “Office … under [the United States]” is one created, regularized or defeasible by federal statute and therefore does not include constitutionally elected positions such as the presidency. I think Tillman’s work has shifted the burden of proof on this question to those who think otherwise.

And later:

Even if you are satisfied that Trump is likely to violate one of the emoluments clauses, the arguments are technical, and the answers are not completely obvious. To argue against Trump’s behavior on those grounds is, I fear, to get sucked into a trap where the arguments are unlikely to resonate or accomplish their aims.

FURTHER:  David Weisberg has updated his SSRN article The Foreign Emoluments Clause: Will Pres. Trump Be in Violation by Virtue of Taking the Oath? -- in particular, with a response from Professor Tribe in footnote 11.


An Exchange on Judicial Engagement
Michael Ramsey

At American Greatness, Mark Pulliam criticizes libertarian originalism: Libertarian Judicial Activism Isn’t What the Courts Need.  From the introduction:

Were the Founding Fathers anarchists? Did the ideas contained in John Stuart Mill’s On Liberty, published in 1859, somehow inspire the delegates to the Constitutional Convention in 1787? Does the Constitution contemplate Robert Nozick’s minimal state, presaging his 1974 magnum opus Anarchy, State, and Utopia?

These may seem like facetious questions, but libertarian legal scholars have devised a novel theory that the Constitution, properly understood, protects a person’s “right to do those acts which do not harm others.” They contend that this sweeping right to personal liberty is enforceable against the federal government and the states. Moreover, within the three branches of government, it is only judges who get to decide whether a particular law is justified constitutionally. Incredibly, libertarian legal scholars are urging President-elect Trump to appoint an adherent of this fanciful theory to replace Justice Antonin Scalia on the U.S. Supreme Court.

Roger Pilon responds at Cato at Liberty: Coming to Mr. Trump’s Aid in the Matter of Judicial Selection.  He concludes:

We come, then, to the heart of the matter. If both enumerated and unenumerated rights are among our privileges or immunities as citizens of the United States, as those who drafted and ratified the Fourteenth Amendment believed, then no state shall abridge them. And further—now we hit Pulliam’s sore spot—it falls ultimately to the courts to enforce those privileges or immunities, all of them—not only the right to speak but the right to an honest calling, the right to buy and use contraceptives (a right “that nowhere appears in the Constitution,” he says), and more, much more.

Thus, it’s our call for “judicial engagement” that most vexes Pulliam—he calls it “a judicially managed state of anarchy.” Fearing “judicial activism,” he would limit judges to enforcing only enumerated rights, the text and underlying theory of the Constitution notwithstanding—and in the name of “originalism,” no less. Well that itself is a form of “activism”—ignoring the law in deference to wide-ranging majoritarian rule inconsistent with that law. At bottom, then, the difference between Pulliam and libertarians is over what the Constitution itself says. Like many conservatives, he has allowed his fear of what he sees as judicial activism to color his reading of the Constitution. Is there judicial activism? Of course there is. But the answer to bad judging is not judicial abdication. It’s better judging. And that starts, and ends, with a careful but correct reading of the Constitution.

For more on the "judicial engagement" debate, see this (from a few months ago) by Evan Bernick: Judicial Engagement and its Discontents: A Modest Proposal for Constitutionalists.  Also this symposium from Cato Unbound, featuring Evan Bernick and three critics. 


The Foreign Emoluments Clause II: Inferences from the Interpretive Rules
Mike Rappaport

In my previous post concerning the Foreign Emoluments Clause, I provided evidence from Rob Natelson that the term emolument had narrower and broader meanings.  The narrower meanings would cover money and benefits from an office, whereas the broader meanings might cover any benefit or advantage whatsoever.   In terms of whether the Clause would cover arms-length transactions with Donald Trump, only the broader meaning would cover those transactions.

To resolve the ambiguity, an originalist – especially one who follows the original methods approach – would employ the original legal interpretive rules to see if they could answer the question.

The Clause provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

There are three potentially relevant interpretive rules or moves.  The first interpretive rule is noscitur a sociis, which means that a word is known by its associates.  This rule applies to the grouping together of “any present, Emolument, Office, or Title.”  This grouping suggests that if “emolument” is ambiguous and one of the meanings is closer to the other terms in this grouping, then “emolument” should receive that meaning.  The other terms – present, Office, or Title – suggest benefits that are conferred on a specific person.  By contrast, they do not appear to cover arms-length business transactions.  Thus, the grouping suggests an emolument is intended to cover a benefit conferred on a specific person, but not an arms-length transaction.

The second interpretive move derives from the language “of any kind whatever.”  This language appears to suggest a broad understanding of emolument.  And therefore one might conclude that the broader meaning of emolument was being signalled by this phrase.  While that is certainly a possibility, it is not the only possibility.  If the narrower meaning of “emolument” had been employed, then this language might still have a meaning – specifically, that the narrower meaning should be read broadly.  For example, if emolument meant fringe benefits attached to an office, it should include all such fringe benefits, even ones that might otherwise be thought not to be covered.  Under this latter understanding, the Clause would not cover arms-length transactions.

The third interpretive rule is the last antecedent rule, which is “a doctrine of interpretation by which a court finds that qualifying words or phrases refer to the language immediately preceding the qualifier, unless common sense shows that it was meant to apply to something more distant or less obvious.”  Under this rule, the qualifying phrase “of any kind whatever,” might only apply to the last antecedent, the term “Title.”  The fact that there is a comma prior to the qualifying phrase, however, makes it less likely that this rule will be applied here.  I don’t know if this rule existed at the time of the Constitution.   And it is possible it could be overridden by common sense.  But, on the other hand, it might suggest that the inference from “of any kind whatever” language did not apply to emolument.

Overall, then, I believe that this limited evidence points tentatively and weakly to concluding that emolument does not cover arms-length transactions.  The noscitur a sociis rule favors this interpretation, the “of any kind whatsoever” language may or may not point in the opposite direction, and even if it does point in the opposite direction, the last antecedent rule might negate its application to “emolument.”

Scott Meisler on Recent Criminal and Habeas Decisions of Judges Pryor and Sykes
Michael Ramsey

Scott Meisler (U.S. Department of Justice) has posted In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes on SSRN.  Here is the abstract:      

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes. This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches—including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States. The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

(Via How Appealing)

RELATED:  Also via How Appealing, from Patrick Gregory at Bloomberg: Trump SCOTUS Short-Lister Gorsuch: Five Things to Know.  Number 3 is "Scalia Defender."


David Lat Handicaps the Supreme Court Nomination
Michael Ramsey

At Above the Law, David Lat: Handicapping Donald Trump’s Supreme Court Shortlist.  It strikes me as a shrewd analysis.  He notes Jan Crawford's earlier report of a five-person short-list:

  • Judge Steven Colloton (8th Cir.) of Iowa
  • Judge Thomas Hardiman (3d Cir.) of Pennsylvania
  • Justice Joan Larsen of Michigan
  • Judge William Pryor (11th Cir.) of Alabama
  • Judge Diane Sykes (7th Cir.) of Wisconsin

He narrows it down to two -- Pryor and Sykes -- for variety of reasons including this:

4. They are both solidly conservative. They are conservative in terms of the outcomes they reach, writing opinions and casting votes striking down various Obamacare provisions and upholding voter ID laws. They are conservative in terms of methodology, emphasizing Justice Scalia’s themes of textualism, originalism, and judicial restraint. Not surprisingly, they are active in the Federalist Society, aka the legal profession’s vast right-wing conspiracy.

And then he explains why one is more likely than the other.

Probably right, though a bit predictable.

(Thanks to Mark Pulliam for the pointer).


Mark Joseph Stern on Seth Barrett Tillman on Foreign Emoluments
Michael Ramsey

At Slate, Mark Joseph Stern: High Crimes and Misdemeanors: Donald Trump appears determined to violate the Constitution on Day One of his presidency.  Form the introduction: 

As soon as Donald Trump is sworn in as president, he will almost certainly be violating the United States Constitution. Trump still refuses to fully divest himself of his business holdings, creating the potential for massive conflicts of interest in the executive branch—a problem the Framers foresaw and attempted to preempt in drafting something called the Emoluments Clause. Although it centers around a strange word and sits in an obscure cranny of the Constitution, the clause presents a fairly straightforward rule: No federal officeholder can receive an “emolument”—money, services, or items of value—from a foreign state, including a state-owned corporation. On Jan. 20, Trump will simultaneously hold the office of the presidency and own a business that receives a great deal of cash from foreign, state-owned companies. History, tradition, and the plain text of the Emoluments Clause suggest that by doing so, Trump will clearly be in contravention of the Constitution. There is only one practical remedy for such a violation: impeachment.

And, from later on, an extensive discussion of Seth Barrett Tillman's contrary view, which begins:

But in one corner of academia, a different take has emerged: Trump can’t violate the Emoluments Clause because the clause doesn’t apply to presidents. According to this hypothesis, the Framers excluded the president from the Emoluments Clause. They failed to inform the public of this fact for unknown reasons. Indeed, the Framers’ true intention remained mostly concealed for centuries, even as president after president rejected foreign gifts as unconstitutional emoluments. The realmeaning of the Emoluments Clause, this theory concludes, stayed largely shrouded in the mists until the 21st century, when Seth Barrett Tillman, a law professor in Ireland, revealed it to the world.

Tillman is a fine scholar who specializes in telling familiar constitutional stories with a fresh angle. He started promoting his emoluments thesis long before Trump’s candidacy and cannot be written off as a partisan hack. But partisan hacks will surely seize upon his postulation to defend Trump’s constitutional corruption.

The consensus understanding of the Emoluments Clause is reflected in a memowritten by the Office of Legal Counsel in 2009 after President Barack Obama was awarded the Nobel Peace Prize. “The President surely ‘hold[s] an[] Office of Profit or Trust,’ ” and is thus barred from receiving emoluments under the Constitution. Tillman disagrees with this interpretation, insisting that the presidency is not an “Office of Profit or Trust.” Why not? Because, he writes, the Constitution does not use the word “office” to refer to “elected federal officials,” but only to appointed federal officeholders. Therefore, the president is exempted from the clause’s restrictions.

A recent paper by scholars Norman L. Eisen, Laurence Tribe, and Richard Painter (the chief ethics counsel to President George W. Bush) explains why this assertion is wrong on its face. ...

Unfortunately the article ignores the other substantial debate about the clause, which is (as has been discussed on this blog): what does "emolument" mean?

Also, I can't help  calling out the last sentence of the introduction ("There is only one practical remedy for such a violation: impeachment.").  No, there's another, right in the Constitution's text:  Congress can consent.


Steven Hayward on Two Kinds of Originalism
Michael Ramsey

At National Affairs, Steven F. Hayward (Powerline): Two Kinds of Originalism.  From the introduction:

Scalia and Thomas represent two different varieties of constitutional originalism that inform a vigorous debate over jurisprudence among conservatives. Thomas thinks the Declaration of Independence and the natural-law teaching it expresses are an authoritative guide for judges, a view that is described as "judicial activism" of the right. Scalia, while agreeing with Thomas about the content of the natural-law tradition, thinks proper judicial restraint comes from confining judging closely to the written text of the Constitution, the known views of the founders, and the operating language of statutes. Anything beyond the text invites the kind of judicial activism that favors liberalism. The argument among conservatives over this point is often more heated than the argument with liberalism's "living Constitution."

Both views connect to a wider argument about the principles of constitutionalism and the philosophy of the American founding. This debate represents the maturing of conservative constitutionalism from the Nixon-era emphasis on "strict construction" or the "original intent" arguments of the Reagan Justice Department. Lots of legal thinkers, along with the Federalist Society, deserve credit for this maturation, but the philosophical core of the disputes can best be seen in part of the epic feud between Harry Jaffa and Walter Berns — political philosophers rather than lawyers.

And from later on:

What divides the right is not exactly the question of natural law as such but the question of its relation to constitutional interpretation. Neither Scalia nor Robert Bork denied or opposed the ideas of natural law or natural rights (although I have heard several second-hand reports of Scalia's dismissing the founders' views on natural rights). But they thought that it was a bad idea for the judiciary to protect unenumerated rights or for judges to employ natural law as a jural tool. In principle, Rehnquist argued, doing so opens the door to imposing one's own moral views in the cloak of judicial review. In practice, he thought it was a game that favors the left.

And from the conclusion:

Judicial modesty is a worthy position and a prudent policy for many cases and controversies that come before the courts. Rehnquist, Scalia, and their many allies are surely correct that many controversial issues such as abortion and gay marriage would be better left to the popular branches of government to resolve. They are likewise correct that the left can invent new rights endlessly, and that turning back these claims in the current intellectual environment is the judicial equivalent of the Dutch boy running out of fingers to put in the leaky dike. My favorite example at the time of this writing is the federal lawsuit arguing that action against climate change is required under the Constitution's guarantees of "life, liberty, and property." One wonders what a federal judge can do by injunction that the EPA isn't already attempting on its own contestable authority.

At the same time, however, it should be acknowledged that understanding the Constitution as simply an act of majoritarian will, and the concession to positivism that view involves, turns us into moral mutes, and therefore ill-equipped to argue against the assertive and unending demands of the left couched in the language of "rights." Jaffa's robust view of the character of the founding, and the essential connection between the Constitution and the reasoning of the Declaration of Independence, is unquestionably subtle and hard to grasp, and this brief survey of the intellectual battlefield barely scratches the surface of the arguments on both sides. (Readers should see Jaffa's complete treatment of the issue in Original Intent and the Framers of the Constitution: A Disputed Question, which includes lengthy responses from three of Jaffa's critics, plus his rebuttals.)

And if Jaffa's perspective about the high moral character of the founding, which took him years to work out, is forbidding or inaccessible, it should be noted that Berns's attempt to maintain the connection between the Declaration and the Constitution by confining the concepts of natural right within a strictly Hobbesian interpretation is not less subtle or challenging to understand and apply.

(Via Powerline and also Mark Pulliam).

This is a magnificent short essay about Berns and Jaffa, and it captures a key dispute among modern originalists.  I am much less such of its attempt to tie that divide to Scalia and Thomas.  Examples of Thomas diverging from Scalia to enforce unenumerated rights are surely rare (the essay provides none, and I can think of only one -- Troxel v. Granville -- off the top of my head).  Indeed, when they disagreed, Thomas was as likely to reach less rights-oriented positions (e.g., Hamdi v. Rumsfeld; Brown v. Entertainment Merchants; Walker v. Sons of  Confederate Veterans).  The principal difference between Thomas and Scalia, I would say, is that Thomas feels much less constrained by precedent (a point not relevant to the essay). 


Rethinking Privileges or Immunities
Andrew Hyman

Michael Ramsey and Will Baude recently discussed on this blog what Justice Scalia thought about the idea of incorporation of the Bill of Rights via the Privileges or Immunities Clause of the Fourteenth Amendment, and Professor Baude mentioned that Scalia said in 2009 that the idea is probably wrong as an original matter.  But people can change their minds in response to more convincing arguments, and I’m a case in point.

For at least a decade, I had been convinced that the Privileges or Immunities Clause does automatically incorporate provisions in the Bill of Rights vis à vis the states, at least as to the so-called "fundamental" provisions of the Bill of Rights.  But this month, I became a lot less sure about it, and now feel that that view may very well be too broad and too simplistic.  U.S. Senator Reverdy Johnson served on the committee that drafted the Fourteenth Amendment, and he seemed pretty sure what it meant, except for this particular clause about which he said: “I do not understand what will be the effect of that.”  I sympathize.

A main feature of the Privileges or Immunities Clause was very probably to incorporate Bill of Rights provisions against the states, but (as I now suspect) only so as to protect U.S. citizens when they travel to other states.  Congress realized that by merely buttressing the Comity Clause (which the Privileges or Immunities Clause accomplished in combination with Section Five), there was still the risk that states might try to cancel various guarantees that those states had made to their own citizens, especially once those states were required to deem African-Americans to be citizens---and if states were ever to do that then the Comity Clause would no longer ensure that citizens from out of state would get even minimal guarantees like free speech from the states they visit.  So, as I now understand it, the Privileges or Immunities Clause made sure that the Bill of Rights would protect interstate travelers vis à vis visited states even if those states want to reduce the privileges and immunities of their own citizens.  The Privileges or Immunities Clause thus protects citizens of the United States, as distinguished from protecting citizens of the states where the clause is operating.

And here’s where the matter gets more complex.  According to an interpretation of the Equal Protection Clause (EPC) that I recently wrote about and subscribe to, the EPC can extend Bill of Rights limitations upon a state so as to protect in-state residents equally with visitors from out-of-state, provided that Congress allows it.  That sort of substantive congressional role under the Equal Protection Clause died off soon after the Fourteenth Amendment was adopted, but that congressional role existed as an original matter, it was discussed in the Senate prior to ratification, and it persists in the text of the EPC.  Without that congressional role, it would not make sense for the Privileges or Immunities Clause to be extended via the EPC, given that the Privileges or Immunities Clause could have been written in the first place to automatically give Bill of Rights protection directly to everyone within a state (vis à vis that state government).

As time allows, I hope to do some further research about this, and perhaps put together an article about it (or a book).  

Gail Heriot & Alison Somin on the Thirteenth Amendment and Hate Crimes Legislation
Michael Ramsey

Gail L. Heriot (University of San Diego School of Law) and Alison Somin (Independent) have posted Sleeping Giant?: Section Two of the Thirteenth Amendment, Hate Crimes Legislation, and Academia's Favorite New Vehicle for the Expansion of Federal Power (Engage, Volume 13, Issue 3) on SSRN.  Here is the abstract:      

This article examines Congress’s authority to enact legislation pursuant to its powers under Section Two of the Thirteenth Amendment, which prohibits slavery and involuntary servitude. Does that power enable Congress enact 18 U.S.C. § 249(1), which criminalizes certain violent crimes committed “because of the actual or perceived race, color, religion or national origin” of the victim or of some other person? Or must Congress’s authority to pass such legislation derive from some other part of the Constitution?

It's not my area, but my sense (confirmed by this paper) is that Thirteenth Amendment arguments have gone far beyond any plausible original meaning, and a surprising number of statutes and actual prosecutions are support only by this dubious extension.  If the Court wanted to give a boost to federalism without much practical downside (since these crimes are all crimes under state law as well), this might be a place to consider.


The Foreign Emoluments Clause I: Some Evidence of Historical Usage
Mike Rappaport

The Foreign Emoluments Clause has received some attention recently in connection with President-Elect Donald Trump’s decision to maintain some of his business assets.  One question that arises is whether Trump’s businesses might conflict with the Clause if they engage in arms-length commercial transaction with a foreign government.

One reason to believe the Clause would not cover President-Elect Trump is Seth Tillman’s argument that the Clause does not extend to the President.  But let’s put that to the side and examine whether the benefits from an arms-length transaction would constitute an emolument.

The Clause provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In determining the original meaning of “emolument,” one initially looks to the meanings and usages at the time of the Constitution.  Rob Natelson, an originalist legal scholar, has identified several different meanings and usages of the term from the time of the Constitution:

  1. “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.
  1. “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”
  1. It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”
  1. It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”
  1. It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”
  1. Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster  . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”

Based on these examples, it appears that whether the term covers an outside commercial transaction depends on which meaning was employed.  The first two usages would cover it, the next four would not.

How then to resolve the ambiguity?  In my next post I use various legal interpretive rules to attempt to resolve the ambiguity.

Originalism's List of Infamy, and Should Printz v. United States Be on It?
Michael Ramsey

At Volokh Conspiracy, Will Baude: Cases that are likely wrong as a matter of original meaning: What would you add to the list? (describing this essay (with Stephen Sachs) in the Green Bag).

Here's the Baude/Sachs list: 

Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 444 (1934)
Dames & Moore v. Regan, 453 U.S. 654 (1981)
Apodaca v. Oregon, 406 U.S. 404 (1972); Williams v. Florida, 399 U.S. 78 (1970)
Griffin v. California, 380 U.S. 609 (1965)
Reynolds v. Sims, 377 U.S. 53 (1964)
Nat’l Mutual Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949)
Wickard v. Filburn, 317 U.S. 111 (1942)
Crowell v. Benson, 285 U.S. 22 (1932)
Printz v. United States, 521 U.S. 898 (1997)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

I mostly like their list (especially Dames & Moore v. Regan).  In a later post, time permitting, I'll try to come up with my own top ten.  For now, however, I want to question including Printz -- and to a lesser extent Lujan -- on the list.

In Printz v. United States, Justice Scalia wrote for the majority to hold that the federal government cannot "commandeer" state executives to enforce federal law.  (That ruling is in the news now because it is an essential protection of "sanctuary cities" -- but for Printz, Congress could simply order state and local police to enforce U.S. immigration laws).  Scalia conceded at the outset of his opinion (perhaps unwisely) that the Constitution's text does not speak directly to the question.  That does not make his opinion nonoriginalist, though -- it just reflects the fact that Scalia actually was somewhat less of a textualist than people often suppose.

Printz instead rests on the proposition (what Scalia called an "essential postulate" of the Constitution's structure) that under the Constitution's original design the states were sovereign entities structurally separate from the federal government, and that recognizing a commandeering power in Congress would destroy that separation.  It also rested on a related structural imperative -- that recognizing a commandeering power would allow Congress to bypass the essential separation-of-powers check that it would have to rely on the President to execute its laws.  (The opinion also observes that early Congresses did not use the commandeering power, even though it would have been attractive to do so, had it been thought constitutional.)

Whether these are persuasive originalist authorities may depend upon one's approach to originalist methodology.  My inclination is more textualist, so I'm inclined to say they are, in themselves, insufficient.  The fact that the constitutional design rests upon the idea of the states being structurally separated does not show how the framers achieved this goal; perhaps they thought the protections for federalism built into the pre-seventeenth amendment Senate would be sufficient.  As Printz indicates, however, Scalia was not always insistent on a textual basis for his structural rulings (a point also suggested by his opinion in Lujan).  Rather than say Printz was wrong (or at least, that it belongs on a most-obviously-wrong list), I would say it reflects differences in originalist methodology.

Further, I would add that there is a textualist case for Printz, which Scalia partly made later in the opinion in response to the dissent.  I would start from the proposition that Congress must have an enumerated power to commandeer.  The federal law in Printz was not in itself a regulation of interstate commerce, so it must be "necessary and proper" to the regulation of interstate commerce (in Printz, the interstate commerce in firearms).  Arguably, even if it is necessary (in the soft sense of that word) it is not "proper" because it upsets the fundamental relationship between the states and the federal government.  (Scalia made this argument, albeit a bit tentatively, relying on the classic article by Gary Lawson and Patricia Granger.  In later opinions, notably concurring in Bond v. United States, Scalia seemed increasingly open to the idea that "proper" in the necessary and proper clause had such an independent meaning.)  

This limited view of the necessary and proper clause also seems consistent with Professor Baude's description of "great powers" -- that is, that the necessary and proper clause provides incidental powers to support those important powers given to Congress directly, but that it should not be read to encompass important ("great") powers that Congress would otherwise not have.  I would say that the power to commandeer state executives sounds like a great power, not an incidental power.  Suppose that the Constitution contained an express clause declaring "Congress may command state executives to use their resources and personnel to enforce federal law as Congress thinks appropriate" -- I think this would not have gone without objection in the ratifying debates.

Finally, Mike Rappaport makes the argument [93 Nw. U. L. Rev. 819, 869-70 (1999)] that the Constitution's use of the word "state" -- meaning a sovereign entity -- indicates reserved power in the states that would not allow (among other things) commandeering.  Taken together, these points add up to a decent textualist/originalist argument for Printz.

Baude and Sachs actually only say that they "doubt the pedigree" of the first eight cases and "maybe even" Printz (and Lujan), so it's not clear how strong their claim is meant to be.  Further, it's not clear what it takes to make their list -- is this list supposed to be cases that are obviously wrong under the original meaning, or only cases that might be wrong under the original meaning?  If the former, I don't think Printz qualifies, for the reasons stated.  If the latter, well, a lot of cases might be wrong as a matter of original meaning, depending on how one thinks original meaning should be determined and what one thinks the history actually shows.  But if this is intended as a list of infamy (which is a lot more fun), I would not put Printz on it.

(Readers are encouraged to submit their nominations).


The SCOTUS Vacancy
Andrew Hyman

The day after I wrote a recent post about Judge Sykes, Adam Feldman published another post (at the "Empirical SCOTUS" blog) regarding campaign contributions by former clerks of the prospective SCOTUS nominees, including Judge Sykes.   Feldman notes that a separate study "found a robust correlation between law clerks’ campaign contributions and the voting ideologies of their employer judge."  So, I recommend checking out Feldman's article if you think it might be relevant to scrutinize clerks, in which case the info about Sykes's clerks stands out in an unusual way.

Also, Politico has a January 3, 2017 article titled Inside Trump’s strategy to remodel the Supreme Court.  Here's a snippet:

Those close to Trump’s search process say that the list now under more serious consideration is closer to a half-dozen, including Pryor and Sykes, as well as 3rd Circuit Judge Thomas Hardiman, 6th Circuit Judge Raymond Kethledge, 8th Circuit Judges Steve Colloton and Raymond Gruender, 10th Circuit Judge Neil Gorsuch and Michigan Supreme Court Justice Joan Larsen.

For whatever it may be worth, this Politico article twice mentions appointing a woman, but not for the Scalia seat.

P.S.  My resource page about the 21 SCOTUS candidates is here.

Make Congress Great Again
Michael Ramsey

An insightful post at Liberty Law Blog by Yuval Levin before the election argued that Congress must have more ambition in order to make the framers' separation of powers design effective. It did not, however, give many specific proposals.  Here are five for the new Congress to consider.  None is constitutionally required, but all would help restore Congress to what the framers expected it to be.

(1) Eliminate the filibuster.  The filibuster isn't unconstitutional (by Article I, Section 5, the Senate has power to make its own "Rules of its Proceedings") but it undermines the framers' design.  As Levin argues, the framers wanted an energetic Congress to counter their energetic executive.  The modern filibuster, in a time of close partisan division, saps Congress' energy by making all but the most banal legislation impossible (except for the obscure "budget reconciliation" or in the unusual case of one party having more than 60 Senators).  It also makes it difficult for Congress to confront an overaggressive executive because it divides Congress by party.  Not coincidentally, Congress has not played a substantial role in governing the country in two decades, apart from the brief time between 2008 and 2010 when one party held 60 seats.

Some people may say it's better if Congress doesn't act (especially if the "wrong" party holds the majority).  But in the modern world the result of congressional inaction isn't governmental inaction -- it's government by the executive.  (See Josh Blackman's essay Gridlock).  Eliminating the filibuster puts the legislative power back where it belongs -- for better or worse, as to particular lawmaking, but properly from the perspective of the constitutional design.

(2) Declare War on ISIS.  The US is in effect at war with ISIS, assisting a major ground offensive against Mosul and contemplating another in northeast Syria.  And rightfully so: ISIS is a monstrosity that has attacked the US directly and threatens the entire global legal order with its rejection of the basic principles of modern civilization.  It is the most Nazi-like global entity since the Nazis.  Broad majorities of Congress and of the US public appear to support military action.  But Congress has done nothing (despite the President's requests), leaving the President to assert a tenuous claim to authorization from a statute (the 2001 AUMF) that manifestly has nothing to do with ISIS.  No entity should be able to attack the US without drawing a response from Congress.  This is an embarrassment, and one Congress can easily fix.

And Congress should actually declare war.  A formal declaration of war isn't constitutionally required (see here), but it would send a powerful message of seriousness, resolve and engagement -- not just about the US commitment against ISIS, but also about Congress' determination to take the active role the framers envisioned.

Moreover, consistent with this newfound leadership, Congress can limit ground troops by providing that, notwithstanding the declaration of war, any material deployment of US ground troops must receive further authorization from Congress.  That limitation is entirely consistent with Congress' war power, as reflected in Congress' authorization of limited war in the early post-ratification period and with early Court decisions recognizing that the President's conduct of war is bound by the limits Congress sets on it (Bas v. Tingy; Little v. Barreme).

(3) Pass the REINS Act.  This proposal, endorsed by all Republicans (at a time it had no chance of passing) requires major administrative agency initiatives to receive approval by Congress. (See here from George Will, concluding that "[t]he REINS Act would begin Congress’s retrieval from the executive branch of responsibilities the Founders vested in the legislative branch.").  A central and obvious characteristic of modern governance is the rise of executive lawmaking through agencies.  Whether or not unconstitutional, agency lawmaking undermines the founding design.  Not only has Congress lost its role as the shaper of legislative policy, but inertia in Congress prevents its effective supervision of agency action.  The REINS Act reverses the effect of inertia -- and, one hopes, would prod Congress into a more active role in major policy decisions.

(4) Pass a REINS act for international agreements.  US foreign policy looks weak and inconsistent if the President makes major international commitments that don't enjoy broad support at home.  The Constitution’s design addressed this problem with the supermajority requirement of the treatymaking clause.  In the modern era congressional approval has become a substitute, at least for trade agreements.  But inertia in Congress has opened the way for more unilateral presidential agreements, such as President Obama's Iran nuclear deal and Paris climate change agreement.  With these agreements, the President has made commitments a majority of Congress opposes.  Whether or not strictly unconstitutional (see my somewhat equivocal assessment here), these agreements undermine the framers' design and further marginalize Congress.

An international version of the REINS act would require that major long-term commitments by the US (whether formally binding or nonbinding) cannot take effect without Congress' approval.  This is likely constitutional; while the President has some independent authority to make low level agreements and nonbinding agreements as part of the executive power over foreign affairs, agreements such as the Iran and Paris agreements threaten the treatymaking power and thus are properly resisted.

(5) Disaggregate the appropriations process.  Madison wrote in Federalist 58 that the power of appropriations was Congress' most significant check on the executive:

The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government. They, in a word, hold the purse—that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

He was assuming that presidential initiatives would require individualized funding.  But, as has been widely observed, modern appropriations practice through omnibus spending bills turns the withholding of funding into too blunt an instrument.  Moreover, the political narrative has become that if the President vetoes an omnibus spending bill because of Congress' failure to fund a particular item, the resulting "shut down" of the government is Congress' fault.  Thus appropriations limits have become too powerful a weapon to use.  Further, omnibus spending dilutes Congress' responsibility for what it does spend and saps Congress' will to address spending items individually.  Again, there's nothing strictly unconstitutional about omnibus spending, but it's a process that undermines the structural assumptions on which the Constitution was based.

Each of these proposals requires Congress to take responsibility.  Perhaps that is asking too much.  Commentators for a generation have urged Congress to take more responsibility, without effect.  But as the implications for constitutional government become more acute and apparent, and as people become increasingly frustrated with Congress' inability to govern, perhaps a tipping point has been reached.  And in particular, both parties may feel unhappy about executive governance, one side from recent experience and the other from contemplation of what may come.  The alternative to executive governance is a return to congressional governance, as the Constitution intended.


David Weisberg on President Trump and Foreign Emoluments
Michael Ramsey

David E. Weisberg (independent) has posted The Foreign Emoluments Clause: Will Pres. Trump Be in Violation by Virtue of Taking the Oath? on SSRN.  Here is the abstract:      

The Foreign Emoluments Clause (Article I, Section 9 of the Constitution) provides that those holding federal office shall not accept “any present, emolument, office, or title, of any kind whatever, from any…foreign state.” It has been argued, most prominently and forcefully by Prof. Laurence H. Tribe, that a Pres. Trump, because of his far-flung business interests, would be in violation of the Clause merely by virtue of his taking the oath. This conclusion is incorrect, because it is bottomed on a mistaken understanding of the meaning of the word “emolument”. The income that would continue to flow to a Pres. Trump after he takes his oath of office will not arise from the office of, or his employment as, president, even if that income is from a foreign state. Therefore, that income cannot reasonably be said to be an emolument. Moreover, if one were to accept Prof. Tribe’s mistaken understanding of “emolument,” it would follow that Pres. Obama, since his own oath-taking, has been continually in violation of the Presidential Compensation Clause (Article II, Section 1).

(For other assessments of the foreign emoluments issue, see here from Rob Natelson and here from Seth Barrett Tillman.  And to repeat my view:  "if Congress wanted to signal some interest in asserting its constitutional prerogatives without taking much risk  ... it should pass a resolution of consent to the Trump family's continued business dealings, provided that Trump does not play an active role in the businesses and that dealings are conducted on an arms' length basis.  Since Trump has said that's what he intends to do, he would not have much basis to object.")


Adam Samaha: Do More Interpretive Sources Mean More Discretion?
Michael Ramsey

Adam M. Samaha (New York University School of Law) has posted Do More Interpretive Sources Mean More Discretion? (New York University Law Review, Vol. 92, 2017) on SSRN.  Here is the abstract:     

Observers have suggested that adding sources of interpretation tends to increase interpreter discretion. The idea is embedded in a quip, attributed to Judge Leventhal, that citing legislative history is like “looking over a crowd and picking out your friends.” Participants in debates over interpretive method have applied the same idea to the proliferation of other sources as well, including canons of construction and originalist history. But the logic of “more sources, more discretion” has escaped serious testing. And predicting the effect of source proliferation is not a matter of logic alone. The empirical study of how information loads affect behavior has grown dramatically in recent decades, though almost without notice in legal scholarship on interpretive method.

This Article tests the logic and evidence for “more sources, more discretion.” The idea turns out to be incorrect, without more, as a matter of logic. Adding sources tends to reduce the chance of discretion using a simple model of interpretation. This starter model depicts judges as aggregators of source implications, and it draws on basic probability theory and computer simulations to illustrate. The analysis does change if we allow judges to “spin” or “cherry pick” sources, but without much hope for limiting discretion by limiting sources. Of course, judges will not always behave like machines executing instructions. The Article therefore goes on to spotlight provocative empirical studies, develop working theories of interpreter behavior, and present new data.

First, a new dataset casts doubt on an earlier study that linked a growing stock of precedents to increased judicial discretion. Adding decisions to the pile of precedent seems to have no predictable pattern of effect on judicial discretion. Second, existing studies indicate that judges promote the status quo when information loads increase. New data suggest that this effect depends on the type of information added. The number of source citations in an appellate brief, for example, appears to have no effect on judges’ willingness to affirm. Third, an expanded dataset supports an earlier finding that judges who face a large number of doctrinal factors may save time by prioritizing the factors in a quasi-legal fashion—and without following conventional ideological lines.

This is an important question for originalism, as originalism is often touted as a way to reduce judicial discretion, yet originalism done right involves a range of sources, including text, dictionary definitions, contemporaneous usage, pre-ratification history, drafting and ratifying history, and post-ratification history.


Seth Barrett Tillman on Foreign Emoluments and Scholarship
Michael Ramsey

At The New Reform Club, Seth Barrett Tillman: This Is What I Think And This Is What Other People Think Scholarship Looks Like (a definitive tour through the foreign emoluments debate, plus a slam on Laurence Tribe -- an excerpt can't capture it, but it's well worth a full read). 


More on President Trump and the Foreign Emoluments Clause
Rob Natelson

[Editor's note:  for this post we welcome returning guest blogger Rob Natelson of the Independence Institute, formerly Professor of Law at the University of Montana (and one of the nation's leading originalist scholars).]

            Michael Ramsey points out that commentators who claim Donald Trump will violate the so-called “Foreign Emoluments Clause” (actually the Foreign Emoluments Subclause) on the day of his inauguration make a number of unsupported assumptions about the meaning and scope of the provision. One assumption is that market-driven payments to Trump’s businesses are “emoluments” within the Constitution’s meaning of the term.

            This may be correct, but then again it may not. Founding-era records display at least six variations in the meaning of “emolument” in official discourse. The variations differed significantly in their scope. Following are the six, each exemplified with a quotation. All the quotations except the last are from the journals of the Continental and Confederation Congresses, where nearly all the framers and leading ratifiers had seen service. The last is from the records of the Constitutional Convention:

*          “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.

*          “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”

*          It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”

*          It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”

*          It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”

*          Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster  . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”

            The first two definitions are broad enough to include outside commercial transactions. The phrase in the Foreign Emoluments Subclause “of any kind whatever” suggests that the term should be read this way.

            The other four variations are all tied to compensation for holding a particular office. Presumably they would include a salary from the French government to an American official for holding his office. But they would exclude payments made to President Washington if the British government happened to buy some of Mount Vernon’s exported tobacco, and they would exclude fair market rents paid at the Trump Tower.

            Arguing for one of the definitions tied to office is the fact that the Foreign Emoluments Subclause uses the word as one item in a series. Pointing in the same direction are the Constitution’s other two uses of “emoluments,” both of which are directed at compensation for holding office.

Andre LeDuc: Paradoxes of Positivism and Pragmatism in the Debate About Originalism
Michael Ramsey

Andre Leduc (independent) has posted Paradoxes of Positivism and Pragmatism in the Debate About Originalism (Ohio Northern University Law Review, Vol. 42, No. 2, 2016) on SSRN.  Here is the abstract:    

The long-running debate between originalism and competing accounts of the Constitution has unfolded with little attention to classic American jurisprudential concepts of legal positivism and legal pragmatism. In this syncretic article, I explore how these jurisprudential and theoretical strands fit together. I also explore several lessons we can learn about legal positivism and legal pragmatism and one critical lesson we can learn about the debate about originalism, if we contextualize the debate over originalism in that part of the space of reasons.

First, positivist and natural law originalisms are substantially similar in their substantive constitutional content. Originalism critics — both those who embrace positivism and those who embrace natural law — similarly share substantially congruent substantive criticisms of originalism. These parallels raise an important question about the significance of the distinction between legal positivism and natural law. The debate over originalism shows that the opposition between legal positivism and natural law may be less interesting or important than it is generally taken to be.

Second, the fundamental difference between originalism — which, in relevant part, defends a deontological account of constitutional law — and its consequentialist pragmatist critics provides another argument why the debate about originalism cannot be resolved on its own terms. I have previously argued that sophisticated philosophical premises make the originalism debate pathological rather than fruitful. But those arguments are quite highfalutin. This article provides another argument for the fruitlessness of the debate. Without common grounds between the protagonists as to the place of consequences in constitutional decision process, a resolution of the more particular issues in the debate over originalism cannot be hoped for or expected. But as we contextualize the originalism debate we may understand why it is a dead end in our constitutional theory and, more importantly, in our constitutional decision process. It is a dead end because the two sides in the debate have inconsistent theories of the nature of constitutional law. With a better understanding of how the debate fits in with other parts of our constitutional jurisprudence, we may leave the debate behind in our continuing constitutional discourse.


John McGinnis on Christmas and the Constitution
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Christmas Holiday of 1870 and the Establishment Clause.  The main argument:

But instead of thinking what the current Establishment Clause doctrine means for the Christmas holiday, we can turn the question around and ask what the Christmas holiday means for the meaning of the Establishment Clause. Christmas was first declared a federal holiday in 1870. At that time Christmas was a predominantly religious holiday without the overwhelming commercial aspect of our contemporary world.

As far I can tell, there was no substantial objection to the holiday on the basis of the Establishment Clause. The lack of objection to giving official status to a predominantly religious holiday suggests that the meaning then attributed to the Establishment Clause does not comport with the so-called “endorsement test” employed today to test for violations of the Clause. The government proclaimed a Christmas holiday, although that proclamation, like the forbidden religious Christmas display today, may give the appearance of endorsing a religion.

Recognizing the constitutionality of religious holidays, however, is consistent with the so-called “coercion test” for the Establishment Clause that holds that only coercive support of religion, like forcing citizens to pay taxes to a church, triggers its prohibition [Ed.: As Justice Scalia argued]. A holiday, even one which is predominantly religious, is not coercive in this respect. Even if it suspends commercial obligations till the next day, as does the bank holiday created by the 1870 law, citizens will not be made substantially worse off by a brief delay that is applied equally to all.

And further:

[S]ome constitutional theorists might object to this type of evidence entirely, because it concerns an “an expected application” of a constitutional principle rather a parsing of the language of the principle itself. Mike Rappaport and I have argued that such a dichotomy is false. The meaning of  moral and legal principles can sometimes be best be pinned down by looking at their applications.

I especially agree with this last point.  The Constitution's commands are formed by its text, not by its expected applications.  But expected applications can be important evidence of meaning.  In this example, "establishment of religion" doesn't have an meaning in the abstract; for an originalist, its meaning is whatever the phrase meant at the time it was enacted.  How people expected the phrase to be applied to concrete circumstances (e.g., did they think declaring a Christmas holiday was an "establishment"?) is good evidence of what they thought an "establishment" was.   (And there is no relevant meaning of "establishment" apart from what they thought it meant).

True, they could have been wrong (or, as likely, they could have failed to live up to their own aspirations).  But demonstrating that is something of an uphill battle, requiring evidence from the relevant period of a contrary meaning.   I would say that the expected application, if directly on point, puts the burden of proof on the side that would find a contrary meaning.


Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?
Mike Rappaport

In my last post, I argued that the original meaning forbids states from passing laws that prohibit faithless voting by the electoral college.  But if the original meaning imposes this prohibition, then why does such faithless voting seem problematic even to an originalist like me?

One problem is that the practice in this country, for a very long time, has involved electoral college voters being understood as voting for the pledged candidate.  But the mere fact of practice cannot be sufficient.  There are plenty of unconstitutional practices that I would happily see eliminated.

A second problem is that this practice has been part of the rules of the competitive game of elections.  The two parties compete according to existing rules.  When those rules appear to be changed in midstream to the advantage of one or the other party, it seems much more problematic than in other situations.

But perhaps the most significant reason I am troubled by following the original meaning in this area is that the electors’ names are not on the ballot.  Assume that the electoral college worked the way that the original meaning seems to suggest it should: independent electors cannot be forced to vote for a particular candidate but instead can exercise independent judgment.  If that were the case, then the people we were electing would really matter.  We should know who they are.  We should be choosing between voting for John Doe, who is a scientist, and Sally Smith, who is a lawyer.  But we do not.  The only name on the ballot is actually that of the candidate the elector is pledged for.  Thus, it is natural to assume that we are actually voting for the candidate.  If the elector does not vote for the pledged candidate, it appears like the rug was pulled out from under us.

One might wonder whether this arrangement is constitutional.  After all, would it really be constitutional if a state sought to hold a congressional election but did not put the names on the ballot?  While such an election would certainly violate democratic norms, it probably would not be unconstitutional.  The Constitution merely states that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ....”  Presumably, a ballot without the electors’ names is one such way.  The best argument on the other side is that a nameless ballot somehow violates the Republican Form of Government Clause, but it is likely (although not certain) that the names of the pledged candidates on the ballot is sufficient to avoid violating the Clause.

To be clear, I am not arguing here that we should not follow the original meaning in this area.  I believe we should.  I just believe that it would be best if that original meaning were announced ahead of time, so that a change in the rules did not interfere with a presidential election.

Christopher Yoo on Presidential Signing Statements
Michael Ramsey

Christopher S. Yoo (University of Pennsylvania Law School) has posted Presidential Signing Statements: A New Perspective (University of Pennsylvania Law Review, Vol. 164, p. 1801, 2016) on SSRN.  Here is the abstract:     

This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial forms of executive review are permissible, the arguments against signing statements amount to nothing more than objections to the form in which constitutional review is exercised. Indeed, when the objections are constitutional in nature, the signing statement does little work itself, as it is the Constitution itself rather than the signing statement that invalidates the statute, and there are clear benefits to announcing the constitutional interpretation that will be applied to the statute at the time of enactment.


Robert Reinstein: The Limits of Congressional Power
Michael Ramsey

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted The Limits of Congressional Power (Temple Law Review, Vol. 89, No. 1, 2016) on SSRN.  Here is the abstract:  

This article explores the outer limits of congressional power. The debate over those limits began in 1791 when James Madison challenged the constitutionality of Alexander Hamilton’s Bank of the United States in the First Congress and has continued through the present. According to Madison, the Necessary and Proper Clause was constrained by three doctrines: implied powers must be “direct and incidental” to express powers; they could not be used to invert constitutional ends and means; and powers of exceptional importance could not be derived from implication. Although Madison’s challenges to the Bank failed in the First Congress and in McCulloch v. Maryland, his limiting doctrines have recently been resurrected in an impressive body of scholarship and adopted by several Supreme Court Justices. In addition, eminent scholars have meticulously analyzed McCulloch and argue that this foundational opinion, conventionally regarded as affording great discretion to Congress in the use of implied powers, is actually a moderate and defensive validation of federal power.

This article is in three parts. The first part examines the Bank debate and other legislation enacted by the First Congress. This historical review demonstrates a mainstream Federalist constitutional philosophy that broadly construed and applied the express and implied powers of Congress. That philosophy was synthesized in Hamilton’s influential opinion on the constitutionality of the Bank and became the blueprint for McCulloch. This material contains arguments that greatly influenced the Marshall Court but tend to be overlooked in modern scholarship.

The second part of this article presents an extensive analysis of McCulloch. The early portions of the opinion are connected to the pressing constitutional issues of the time. The opinion’s determinations of the breadth of Congress’s implied powers and the constitutionality of the Bank, when related back to the Federalist blueprint, establishes McCulloch as an aggressive, albeit not unlimited, endorsement of national power. The Bank was upheld not only as a means of carrying out specific enumerated powers but also as Congress’s agent in implementing an aggregated national fiscal power. This part of the article also shows how each of Madison’ limiting principles was rejected and explains why the degree of necessity is a political question, what Marshall meant by the “spirit” of the Constitution, why legislative and judicial approaches to the relationship of means and ends can be contradictory, whether McCulloch requires the application of the rational basis test, and what the limits of congressional power are. 

Part three of the article returns to Madison’s theory that the implied powers of Congress are limited by the degree of their importance. This part reflects Edmund Randolph’s forgotten warning against overreliance on intratextualism as a method of constitutional construction. It then shows that the intratextualist methodology used by Madison and modern scholars does not accurately account for the enumeration of legislative powers in Article I. This part concludes by offering an alternative theory for the construction of Article I that explains why seemingly incidental powers are included among the express powers, how the enumerations serve the separation of powers, how certain express powers are actually limitations on powers that could be derived through implication (including, potentially, the Necessary and Proper Clause), and how the constitutionality of the implied powers of Congress is not inversely proportional to their importance.


More on President Trump and the Foreign Emoluments Clause
Michael Ramsey

In The Guardian, Laurence Tribe argues: Donald Trump will violate the US constitution on inauguration day.  Key claim: 

The US constitution flatly prohibits any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”.

Known as the emoluments clause, this provision was designed on the theory that a federal officeholder who receives something of value from a foreign power can be tempted to compromise what the constitution insists be his exclusive loyalty: the best interest of the United States. The clause applies to the president and covers even ordinary, fair market value transactions with foreign states and their agents that result in any profit or benefit. That a hostile government has gotten its money’s worth from our president is obviously no defense to a charge that he has abused his office.

Maybe.  But it seems to me that all this essay does (at least for an originalist) is to set up the issues, not to resolve them.  Professor Tribe makes two key steps: (1) the clause applies to the President, and (2) the clause applies to "ordinary, fair market value transactions."  He offers no argument at all on (1), and his argument on (2) -- that apparently as a matter of common sense, doing business in an arms' length manner isn't a defense to a charge of abuse of office -- seems less obvious than he thinks it is.

As to point (1), as readers of this blog know, Seth Barrett Tillman has a strong argument that the clause does not apply to the President, based on text and early post-ratification practice.  If you think he is wrong, you need to explain why.  As to point (2), as I have argued earlier, the modern meaning of emoluments appears not to refer to ordinary transactions, but only to salaries and benefits for employment.  There's evidence that it had a broader meaning in the founding era, but this is the sort of thing that must be demonstrated by evidence of founding-era usage and assumptions, not merely declared on the basis of what might appear to be modern common sense.

On a related point, Professor Tribe continues for another 13 paragraphs (including a discussion of congressional remedies) without considering the proposition (expressly in the Constitution's text) that Congress can consent to any potential emolument Trump might receive.  How can that consent be shown?  As a formalist (and a strict reader of Article I, Section 7), I'm inclined to say that Congress must pass a formal resolution of approval.  But many people (perhaps including Professor Tribe) are not formalists nor strict readers of Article I, Section 7.  For example, it's been argued that Congress can acquiesce in the President's exercise of certain powers by failing to object (Dames & Moore v. Regan) or through appropriations (presidential war-initiation).  If Congress does not object to Trump's business dealings and works with Trump on the understanding that he is acting constitutionally in taking office without divesting his businesses, why isn't that enough to show Congress' consent?  It seems necessary at least to consider this point (and to consider whether, in addressing other constitutional controversies, one has taken the position that Congress can consent informally).

Finally, if Congress wanted to signal some interest in asserting its constitutional prerogatives without taking much risk, what about this:  it should pass a resolution of consent to the Trump family's continued business dealings, provided that Trump does not play an active role in the businesses and that dealings are conducted on an arms' length basis.  Since Trump has said that's what he intends to do, he would not have much basis to object.

(Thanks to Michael Perry for the pointer).

UPDATE:  At the New Reform Club,  Seth Barrett Tillman has this post on the other emoluments clause: The Presidential Compensation Clause & Trump’s “No New Deals” Motto.  

Also, Professor Tillman points out this 1974 memo in which future-Justice Scalia (as assistant attorney general) concludes: “[W]hen the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.”


Evan Bernick on Constitutional Construction
Michael Ramsey

At the Federalist Society Blog, Evan Bernick (Institute for Justice): Deciding Unclear Originalist Cases: Towards Good-Faith Constitutional Construction.  From the introduction:

Interpreting a centuries-old document and applying it to factual circumstances unknown and perhaps inconceivable to those who ratified it into law is not an easy task. As Professor Mike Rappaport recently observed, many of the provisions of our Constitution “are simply not clear, unless one has done . . . extensive historical research.” Further, even those who maintain—as originalists do—that (1) the meaning of the Constitution’s text was fixed when each provision was framed and ratified; and (2) judges must decide cases in accordance with that fixed meaning, must acknowledge that fallible, busy judges may be unable to arrive at a single determinate answer concerning the meaning of a particular clause or how that clause applies to a particular set of facts. What are judges to do in such cases?

In recent years, many (though not all) originalists have embraced the use of constitutional constructions—implementing doctrines that are designed to give legal effect to the Constitution in settings where interpretation of the text does not yield a single answer. Originalists who accept the distinction between interpretation (ascertaining the meaning of the text) and construction (giving that text legal effect) generally agree that judges cannot develop rules of construction that contradict the Constitution’s text—but no systematic effort has yet been made to establish the contours of permissible judicial activity within a “construction zone” that might be quite vast, depending upon how many constitutional questions cannot be resolved by interpreting the text.

And from further on:

As Professor Randy Barnett and I will argue in a forthcoming paper, judges who draw their power from “this Constitution” and publicly promise to adhere to it are legally bound to act consistently with not only the letter of the Constitution—its text—but its spirit—the function of its particular provisions, as ascertained by study of the publicly accessible context in which those provisions were framed and ratified. They are duty-bound to exercise the discretionary power delegated to them in good faith—to seek to give effect to the law of the land rather than seeking to impose their own extralegal beliefs or desires. Where the letter of the law does not yield a clear answer, they must have recourse to the spirit of the law in formulating rules of construction.

(Thanks to Mark Pulliam, who adds "Sounds like trouble.")

Also I don't think  the essay's ensuing example is illustrative.  Bernick points to the recent D.C. Circuit decision in PHH Corp. v. Consumer Financial Protection Bureau, which held that the Consumer Financial Protection Bureau (CFPB) violates Article II because its director is not removable at will by the President:

Judge Kavanaugh recognized that Humphreys Executor [finding a multi-member independent agency to be constitutional] foreclosed a conclusion that the structure of the CFPB violated Article II simply because the CFPB is an independent agency with consolidated powers and is not directly accountable to the President. He responded by formulating a construction, informed by the spirit of the clause he was giving effect to: Independent agencies may not be headed by a single person.

I would not call this a construction based on the Constitution's spirit; I would call it an application of the original meaning plus a very narrow (but arguably justified) reading of Humphrey's Executor.

RELATED:  At Liberty Law Blog, Greg Weiner: Crouching Congress, Hidden Judges (commenting on Randy Barnett on Mark Tushnet, noted here).  Among other highlights: 

Yet the judicial Minotaur does not differ from other variants of the all-consuming creature. Judicial power, like other kinds of power, is liable to abuse. Like all kinds, judicial power, having been forged for one hand to brandish, will ultimately be wielded by another. Like all power, judicial power, overly centralized or imposed, saps initiative and induces lassitude. 


The Unconstitutionality of Prohibiting Faithless Electors
Mike Rappaport

Recently, there has been a bit of an originalist debate about the issue of the “faithless elector.”  David Post argues that “the original intent of the Constitution, supported by its text and overall structure, not only permits but also ‘requires’ presidential electors to exercise ‘discretion and independent judgment’ in casting their ballots.  Mike Ramsey responds that the original meaning of the constitutional text – both the original Constitution and the 12th Amendment – allows the states to select electors “based on the electors' advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.”

I tend to agree here with Mike and commend his post to all readers.  The constitutional text, as Mike describes it, “says two relevant things: (a) ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ...’ and (b) ‘The electors shall meet in their respective states, and vote by ballot for President and Vice President...’”  Although the text is not crystal clear, there does not appear to be a prohibition on the states deciding only to select electors who have pledged to vote for a particular candidate.

That said, I want to move on to a related issue that is not addressed in the Post/Ramsey exchange.  Is it constitutional for a state to require that the elector actually vote for the pledged candidate?  Many states have such laws.  While one might extend Ramsey’s argument to cover this situation, I don’t think it can be extended that far.  And therefore I tentatively conclude that the original meaning forbids such prohibitions.

What is the difference here?  The Constitution allows the state to appoint “in such Manner as the Legislature thereof may direct” the electors.  The key is drawing a distinction between appointing the electors and controlling the electors’ behavior once they have been selected.  The Constitution appears to draw this distinction, allowing the states to appoint the electors, but not appearing to give the state any authority over how the electors vote, stating only that the electors shall meet in their states to cast their ballots.

A law that says that only electors who are pledged to a candidate may run for office appears to involve the appointment method of the electors.  The pledge is a statement made prior to the selection of the electors and thus part of the appointment method.  By contrast, a law that requires the electors to vote for the pledged candidate crosses the line and purports to regulate how the electors vote.

Here I believe the type of evidence that Post and others rely upon (such as Alexander Hamilton’s statement from the Federalist Papers) is relevant.  That evidence supports my reading of the text.  One might doubt my reading of the text if one believed that the purpose of the provision was to allow the states to necessarily control the electors’ votes.  But that evidence suggests that was not necessarily the purpose, since it was certainly contemplated that independent judgment would occur.

Kevin Walsh: Judicial Departmentalism
Michael Ramsey

Kevin C. Walsh (University of Richmond - School of Law) has posted Judicial Departmentalism: An Introduction (William & Mary Law Review, forthcoming) on SSRN.  Here is the abstract:      

This Essay introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means for the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these three bodies of law provide the exclusive ways in which constitutional adjudication gives rise directly to binding constitutional law. This Essay argues that our Justices should be judicial departmentalists rather than judicial supremacists.


Is the Electoral College Unconstitutional?
Michael Ramsey

In the Los Angeles Times, Kenneth Jost argues that the system of presidential electors described in the Constitution is unconstitutional: The electoral college has always been the wrong way to choose a president.  Truly:

The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago. Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president.

As a practical matter, we can’t depend on a constitutional amendment to eliminate the electoral college. Amendments require ratification by three-quarters of the states, and enough small states think they benefit from the system that an amendment would never pass. Instead, it’s up to the Supreme Court — and a properly framed lawsuit — to do away with a system that not only never functioned as the framers intended but blatantly violates the court’s “one person, one vote” principle.


[The Electoral College’s] basic architecture flouts the principle that has defined elections for every other public office in the United States for the last 50 years: one person, one vote.

The Supreme Court established the principle in 1964, when it ruled that states cannot unevenly weight votes in choosing their officeholders. The 8-1 decision struck down a Georgia scheme that, much like the electoral college, gave voters in less-populated rural counties significantly greater power than voters in urban counties.

And in conclusion:

The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional. The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

I like this essay because (assuming it's not a parody) it's the pure unapologetic form of nonoriginalism:  Even something expressly set forth in the Constitution can be unconstitutional if annoying, inconvenient or ill-advised.  (Notably, Jost is not a crank; among other things, he's the author is the respected annual Supreme Court Yearbook, a resource I've assigned to students in the past). So it seems that nonoriginalists should ask themselves: is this approach wrong, and if so, how is is different from more academic versions of nonoriginalism?  And if it is right, is it not simply asking Justices to provide constitutional rules based on their own assessment of the best outcome?

As an aside, Jost's criticisms seem largely to miss the mark, or at least to conflate two (or three) separate problems with the electoral college.  His main constitutional complaint is that the system of electoral voting overweights the votes of less populous states.  That's true, of course (because electoral votes depend on a state's congressional delegation -- that is, its House delegation, apportioned by population, and its Senate delegation, always two regardless of population).  His main political complaint appears to be that Trump defeated Clinton despite Clinton's popular vote win.  That, however, has nothing to do with overweighting of less-populous states.  By my quick math (probably wrong but close enough), if electoral votes were allocated only on the size of a state's House delegation, Trump would have defeated Clinton 246-190.  

The electoral vote/popular vote disparity arises from states' decision to allocate electors on a winner-take-all basis (something not required by the Constitution nor prohibited by Jost's idea of one-person-one-vote).  Thus Jost's constitutional argument not only wouldn't get rid of the electoral college, it wouldn't reverse the outcome of the 2016 election.  All it would do is change the number of electors each state gets, in a usually meaningless way.

(Via Josh Blackman's Blog, where Professor Blackman argues that Jost's essay misstates the Supreme Court's one-person-one-vote precedents: Reynolds v. Sims Reaffirmed the Constitutionality of the Electoral College “Despite its Inherent Numerical Inequality”).



Kevin Walsh on Originalism’s Endurance
Michael Ramsey

At Liberty Law Blog, Kevin Walsh: How Enduring Originalism Puts Real Jurisprudential Teeth in Originalism’s Bite (guest-blogging for December).  From the introduction:

This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.

Discussing Justice Kennedy’s opinion in Obergefell v. Hodges and originalism:

The truth is that Obergefell v. Hodges rests on a different master concept of the Constitution as positive law than the written Constitution actually posited in law through ratification. The operative master concept of the Constitution as law in Obergefell is one that authorizes judicial promulgation of new constitutional rights under a customary-law conception of the Constitution.

The ratified Constitution, by contrast, is a form of stipulated positive law, authoritatively fixing in place the law that it stipulates. Because of the kind of positive law that it is, the ratified Constitution is to be interpreted and implemented using legal conventions appropriate to the kind of fixed, authoritative, and enduring stipulated positive law that it was designed to be.

The living Constitution of today’s “common-law” constitutionalists is a different beast. It is partially parasitic on the ratified Constitution, but has a separate body and soul from its host. This corrupted master concept has colonized substantial segments of constitutional law in the United States.

In the legal taxonomy we set forth in Enduring Originalism, Jeff Pojanowski and I characterize a statement like Justice Kennedy’s in Obergefell as an “unauthorized departure” from the law of the Constitution. [ . . . ] Unlike the casual non-technical legal positivism of the everyday practitioner, however, the legal profession of Enduring Originalism puts real jurisprudential teeth in originalism’s bite. Precisely because those not entirely immersed in practice don’t need to worry about the short-term consequences for themselves, their clients, or those they serve of publicizing the judicial emperor’s lack of clothes, there is a sense in which professing something other than what everyone is practicing enables greater insight into what our constitutional law really is. Our constitutional law as a whole contains standards external to Supreme Court majorities by which we can assess the constitutional law currently applied by government officials—including those government officials who hold Article III offices—and find it wanting.


Although originalism’s daily “cash value” ​​varies widely from context to context, our constitutional order as a whole is still long on the ratified Constitution. The continued profession of the ratified Constitution as stipulated, fixed, and authoritative fundamental positive law explains originalism’s endurance. And as long as our constitutional order’s long position on the ratified Constitution lasts, non-originalists will have to keep enduring originalism.


Some Thoughts About Judge Sykes as a SCOTUS Nominee
Andrew Hyman

CNN has an interesting December 15 article titled Sykes, Pryor among top contenders for Supreme Court vacancy -- sources.  In a previous blog post here, I criticized another of the 21 potential SCOTUS nominees listed by President-Elect Trump.  Judge Sykes is surely a good judge, and would be a much better nominee than anyone might expect from a president unconcerned about the original meaning of the U.S. Constitution, but still the list of 21 people probably includes safer options.

Please note that I am disinterested but not uninterested in who gets nominated to SCOTUS.  There is an all-too-common tendency among interest groups to attack reputations and distort records so as to defeat nominees, which is appalling, and also risks someone being nominated whom the interest groups dislike even more.  Still, responsible public criticism of potential nominees seems okay in my opinion, because assessing public records can be done from afar, even though  assessing character usually cannot.

The primary cause for my concern about promoting Judge Sykes to SCOTUS has always been the 2001 Wisconsin Supreme Court case of State v. Oakley, which was decided a long time ago, before Sykes was considered as a potential SCOTUS nominee during the second term of President George W. Bush.  In that 2001 case, then-Justice Sykes dissented from the court's approval of a probation condition which forbade further procreation by a father of nine children who had refused to pay child support.  Sykes’s dissent cited the Equal Protection Clause, and she also joined another dissent (written by Justice Ann Bradley) that relied heavily upon substantive due process (i.e. the controversial legal doctrine which Justice Scalia strongly opposed and which underlies Roe v. Wade).   As a matter of original meaning, neither the Equal Protection Clause nor the Due Process Clause remotely supports striking down such a probation condition, in my opinion, and not even the U.S. Supreme Court’s precedents required such a thing in that case.  Similar issues have cropped up before and since 2001, in other courts.  See, e.g., Gerber v. Hickman (9th Cir. 2002, holding that "the right to procreate…is fundamentally inconsistent with incarceration"); Goodwin v. Turner (W.D. Mo., 1988); Percy v. New Jersey Department of Corrections (N.J. Super. Ct. 1995).  All those decisions (aside from the dissents in Oakley) say that, outside existing conjugal programs, prisoners cannot generally procreate.  One may disagree with such a probation condition, and one may support legislation to forbid such a probation condition, but to concoct a constitutional argument against it is worrisome to me.

In a 2006 law review article, Judge Sykes commendably spoke out in favor of “judicial deference to legislative policy choices,” and  “respect for precedent and authoritative sources of legal interpretation,” as well as caution in imposing “broad-brush judicial solutions to difficult social problems.”  But there was this proviso:  “I will concede (as I must) that a court of last resort has the power to throw off these constraints….”  In my view, “the judicial power” is not infinitely elastic even as regards cases and controversies that are already properly before the court.  That law review article by Judge Sykes correctly criticized (for example) the Wisconsin Supreme Court decision in Ferdon v. Wisconsin Patients Compensation Fund, in which the dissenting justices said: “The Lochner Court's infamous usurpation of legislative power has been relegated to the ash heap of history.”  I would like to see evidence that Judge Sykes likewise believes that courts lack power (not just wisdom) when they completely throw off judicial deference to legislative policy choices, respect for precedent and authoritative sources of legal interpretation, and caution in imposing broad-brush judicial solutions to difficult social problems.  Her dissent in Oakley apparently points in the opposite direction, by interpreting the federal Constitution in a way that would bar legislative action consistent with its original meaning.

SCOTUS once put it this way: "In dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers. Where congressional intent is discernible—and here it seems crystal clear—we must give effect to that intent" (emphasis added).  I hope the courts will more often acknowledge that they lack power, even in cases that are properly before them.
P.S. I've collected some info about the 21 potential SCOTUS nominees here.

Faithless Electors and the Constitution
Michael Ramsey

At Volokh Conspiracy, David Post argues that under an originalist reading of the Constitution, presidential electors must vote their conscience and not feel bound to vote for the winner of their state.  As he puts it, "to the originalist, the 'faithless elector' is simply performing his or her constitutional duty by exercising independent judgment and discretion in deciding for whom to vote."  

I think this is wrong on multiple grounds.

(1) The Constitution's text says nothing about how electors should vote.  It says two relevant things: (a) "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..." and (b) "The electors shall meet in their respective states, and vote by ballot for President and Vice President..."  That language is perfectly consistent with states, if they choose, selecting electors based on the electors' advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.

(2)  Professor Post relies principally on Hamilton's Federalist 68, in which Hamilton appeared to assume that electors would exercise independent judgment and not be pledged in advance.  But that only reflects what Hamilton thought would happen.  It does not purport to be an assessment of what the Constitution's text means.  Modern originalism may look to the framers' expectations to assist in finding the meaning of ambiguous text, but the text, not the expectations, is the law.  In this situation, the text is clear in giving discretion to the state selection process, and it appears that Hamilton erred in guessing how it would be implemented.

One might object that the constitutional structure implies independent judgment on the part of the electors, else why have electors at all?  But the answer is that the text gives discretion to the states to pick electors in any "Manner" the states choose, including but not limited to choosing them for their capacity to exercise independent judgment.  In the modern era, the "Manner" the states have chosen to select electors is to select electors pledged to the candidate that won the popular vote in the state.  Nothing in the Constitution requires states to choose electors in this manner, but nothing forbids it either.

(3) In the immediate post-ratification era, once George Washington retired and elections became seriously contested, states quickly moved to the system of choosing pledged electors.  The electors were typically selected directly by the state legislatures, not by a popular vote as today, but the electors were expressly chosen for their commitment to support a particular candidate.  This approach began as early as the 1796 election; by the 1800 election it was widespread -- suggesting that the founding generation as a whole did not think it unconstitutional.

(4)  In any event, the relevant framers for today are not the framers of the original Constitution but the framers of the Twelfth Amendment (ratified in 1804), which reworked the mechanics of presidential elections.  Prior to the Amendment, electors cast two votes for President, with the person receiving the most votes becoming President and the person receiving the second most votes becoming Vice President.  In the 1800 election, the Republicans' system of pledged electors worked so well that all Republican electors voted for both Thomas Jefferson and his running mate Aaron Burr -- resulting in a tie vote, ultimately resolved by Congress only after considerable drama.  The Twelfth Amendment fixed this problem by adopting the current system of electors casting one vote for President and one for Vice President.

Notably, however, the Amendment did not say anything about how electors made their decision nor do anything to upset the system of pledged electors.  That's critical because (a) the system of pledged electors was well established and well understood when the Amendment was adopted, and (b) the Amendment was specifically designed to correct the problems of the electoral system after the 1800 debacle.  In that context, the Amendment's failure to address the system of pledged electors reflects an acceptance of that system's constitutionality.  So if the question is the framers' intent, Professor Post is looking at the wrong framers.

In sum, neither the text nor post-ratification practice nor framers' expectations (once we are focused on the right framers) supports the idea of a constitutional duty of the electors to exercise independent judgment. 

RELATED:  Robert Delahunty (St. Thomas) makes the opposing argument in greater detail here (although it's not clear he thinks electors are required to exercise independent judgment, as opposed to merely being allowed to do so).  I make the Twelfth Amendment argument in more detail in a recent (12/15/16) article in the Los Angeles/San Francisco Daily Journal, unfortunately behind a paywall (but worth it!).  And at Liberty Law Blog, John McGinnis asks: Why Are Non-Originalist Professors Ignoring Non-Originalist Arguments for Binding Electors? (unfortunately I think the answer is exactly as he suggests).