07/25/2017

Tribe versus Tushnet: Can the President Pardon Himself?
Michael Ramsey

Can the President pardon himself?  Mark Tushnet has the strict textualist's answer (part of a Vox survey of fifteen law professors; unfortunately there's a lot of hedging in the other answers):

The president's constitutional power to pardon "offenses against the United States" is limited only by excluding "cases of Impeachment." A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.

A self-pardon might well be outrageously improper (unless there was the prospect of charges brought by a rogue prosecutor, whom, for some reason, the president could not control by firing him or her), but the response the Constitution creates for such misconduct is impeachment, a political rather than criminal remedy.

That is, the pardon power is granted comprehensively, subject to express exceptions (only for federal offenses, and not against impeachment), and the self-pardon isn't one of the exceptions.  Expresso unis, etc.  And, I'd add, this is an issue the framers clearly could have envisioned and provided for, but didn't.  It seems that, for the textualist, Professor Tushnet has it right.  (Wish he felt this way about, well, the rest of the Constitution).

In the Washington Post, Laurence Tribe, Richard Painter and Norman Eisen take the other view: No, Trump can’t pardon himself. The Constitution tells us so.   Their principal argument is based on the "enduring principle" that no person may be a judge in their own case:

[When deciding on a pardon], the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.

Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”

I'm not persuaded.  Let's assume that the principle of Bonham's case is actually part of the Constitution (even though it's not, textually speaking).  It is (if anything) a limit on judicial power.  But Tribe et al. are fundamentally mistaken in equating the pardon power with the judicial power.  The pardon power is, and was in England, an executive power.  If in fact its effects were to make the holder "a kind of super judge" (or as they say elsewhere, "essentially in the role of the judge") then it would have to be exercised according to law, as judgments are.  However, that's not how it works; the pardon power is discretionary (or prerogative, the English would say) -- a power exercised according to the executive's assessment of the policy merits and expediency, not as an implementation of standing law.  As such, common law limits on judicial power don't apply, because it simply isn't an exercise of judicial power. 

Tribe et al.'s second main argument is closer to the mark:

The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.

I think this could be the basis of a tenable originalist argument.  It's not so much the absence of precedent -- that's a start, but the fact that the pardon power wasn't actually used in a particular way in pre-constitutional England does not mean it couldn't have been.  Suppose, for example, that in England the king had never used the power to pardon close family relatives.  Unless there were some evidence that people generally thought the king lacked the power to pardon close family relatives, the fact that the power was never actually exercised in this way does not show that it could not be.

There's a stronger claim in the case of the king himself, however.  In English law the king (or queen) was not subject to criminal process at all.  So the idea of a royal self-pardon against criminal process would have been nonsensical.  It's not that under English law it wouldn't have been allowed; it's that under English law the whole concept would have been incoherent.

Arguably, then, then, the pardon power by definition does not include self-pardons -- not because self-pardons are somehow nontextually excluded from it on policy grounds, but because they were never part of it in the first place.  The pardon power was the king's power to excuse someone else from the criminal process.  It had no application to the king himself, who was not subject to the criminal process in the first place.  On this view, carried over to the U.S. system, it is the President's power to excuse someone else from the criminal process.  It would take something in the constitutional text to extend it to presidential self-pardons.

So in the end my originalist answer is also a bit hedged.  It depends on how much of a textualist you are, or how much you find textual meaning in the specifics of the text's English antecedents.

07/24/2017

Donald Mayer & Adam Sulkowski: Emoluments and Implications from Conflict of Interest Laws and Private Sector Fiduciary Duty
Michael Ramsey

Donald O. Mayer (University of Denver - Department of Business Ethics and Legal Studies) and Adam J. Sulkowski (Babson College) have posted Emoluments and Implications from Conflict of Interest Laws and Private Sector Fiduciary Duty on SSRN.  Here is the abstract:

In this article, the ethics of public service and the relatively untested Emoluments Clause of the U.S. Constitution will be considered and contrasted with the jurisprudence surrounding conflict of interest in the private sector. Part I establishes the framers’ understanding of law and ethics for U.S. public service. Part II considers the clause itself, and whether it applies to the office of the President. Part III relates just a few of the foreign-based business interests of the 45th U.S. President and how they could compromise his loyal discharge of duties to the nation he serves. Part III also analyzes the President’s plan to avoid conflicts of interest, finds it inadequate, and concludes that only full disclosure of his tax returns would reveal the complete range of conflicts that might color his judgment as President of the United States.

Moving beyond the descriptive to the more normative business ethics issues, Part IV describes the insights of behavioral psychology to demonstrate how common it is for people and politicians to overlook their own conflicts of interest, even where those conflicts strongly influence their decisions. Part V summarizes observations related to conflict of interest laws and fiduciary duties in business, lending support to the conclusion that Trump’s attempt to hold the office of president would be untenable in other contexts. Returning to legal issues raised by the President’s conflicts of interest, Part VI describes the federal lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW). CREW seeks an injunction on Mr. Trump’s holding office while holding various assets subject to foreign governmental influence, and Part IV offers insight into how a challenge to standing could be overcome. Both courts and Congress — the ultimate judges of the President’s conflicts of interest, at least until the next election cycle –– should support the original intent and plain meaning of the Emoluments Clause. Without Congressional action, however, it is unlikely that the President’s conflicts of interest will be resolved early in his term of office.

To continue a theme, note the emoulments clause originalism! "Both courts and Congress — the ultimate judges of the President’s conflicts of interest, at least until the next election cycle –– should support the original intent and plain meaning of the Emoluments Clause."

(Via Seth Barrett Tillman, who comments (harshly) here).

07/23/2017

Adrian Vermeule: Reviewability and the 'Law of Rules'
Michael Ramsey

Adrian Vermeule (Harvard Law School) has posted Reviewability and the 'Law of Rules': An Essay in Honor of Justice Scalia (92 Notre Dame L. Rev. 2163 (2017)) on SSRN.  Here is the abstract: 

This essay contrast two different approaches to reviewability in administrative law, one associated with Justice Antonin Scalia, the other associated with Justice John Paul Stevens, and also on display in recent litigation over the Trump administration's "travel ban." Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that “general programs” and “general policies” are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the paradigmatic business of courts is to review specific applications of agency rules to particular parties. For Justice Stevens, by contrast, the principal role of courts is to say what the general rules of law are, leaving agencies (reasonable) discretion in application.

The two approaches differ as to the relationship between reviewability and the idea—perhaps Justice Scalia’s most famous contribution to legal theory—that the rule of law is best understood as “a law of rules.” On the Stevens view, reviewability should attempt to ensure that courts review the overall legality of programs and policies to keep the administrative state within the broad bounds of the rule of law. The Scalia view, by contrast, admits into court only agency action at the point of specific application, but then demands that judges analyze the validity of the specific application under general rules. The rule of law, qua law of rules, operates primarily as a constraint on the types of rationales courts may give for their decisions of particular cases, once those cases are already in court.

(From the Notre Dame Law Review symposium issue on Justice Scalia; my contribution is here).

07/22/2017

Forthcoming: "Scalia Speaks" by Christopher Scalia & Ed Whelan
Michael Ramsey

Via NRO: Announcing Scalia Speaks: Pre-Order a New Collection of Speeches by Antonin Scalia

Courtesy of Crown Forum:

Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, by Antonin Scalia, with a foreword by Justice Ruth Bader Ginsburg, and edited by Christopher J. Scalia and Edward Whelan, will be on sale nationwide on October 3, 2017, from Crown Forum, an imprint of the Crown Publishing Group. The title and publication date were announced today by Tina Constable, Senior Vice President and Publisher, Crown Forum. The book was acquired by Crown Forum Executive Editor Mary Reynics from Robert Barnett of Williams & Connolly, LLP, and will be issued simultaneously in hardcover, digital, and audio formats.

Scalia Speaks collects dozens of Justice Scalia’s best speeches, including some deeply personal talks, on topics as varied as the law, faith, virtue, pastimes, and heroes and friends. Only a small handful of these speeches have ever been published before. The volume is edited by Christopher J. Scalia, his youngest son, and Edward Whelan, one of the Justice’s former law clerks. In his intimate introduction, Christopher Scalia writes, “Working on this collection has been a moving experience. It has been an honor to help family, friends, and colleagues re‐experience a man they admired, and to allow others to encounter for the first time someone whose influence they have heard about and whom they want to understand for themselves. . . . We know that these speeches will help his great American legacy endure.”

Americans have long been inspired by Justice Scalia’s ideas, delighted by his wit, and instructed by his intelligence. Scalia Speaks will give readers the opportunity to encounter the legendary man more fully, helping them better understand the jurisprudence that made him one of the most important justices in the Supreme Court’s history and introducing them to his broader insights on faith and life. Few people in American history have made the lasting impact that Justice Antonin Scalia did in his lifetime. A Supreme Court justice for three decades, married to his beloved wife, Maureen, for more than fifty years, a father to nine children, a grandfather to dozens, and a friend to people of all political stripes, Justice Scalia lived a life that was remarkable in its significance and reach. Known for his wisdom, wit, and warmth, Justice Scalia was a sought‐after speaker at commencements, convocations, and events across the country. 

More from the book's co-editor Ed Whelan here, including:

Scalia Speaks is designed for a general audience and is replete with Justice Scalia’s characteristic wisdom, clarity, and humor. There are a lot of great speeches on legal topics, all readily accessible to the non-lawyer. As the subtitle suggests, we’ve included many speeches on other topics: for example, faith, character, tradition, ethnicity, education, turkey hunting, and even the games and sports that a young Nino Scalia played on the streets of Queens in the 1940s. The book also features several of the Justice’s moving, and often funny, tributes to friends.

Only a small handful of the dozens of speeches in the book have ever been published before.

Pre-order here.

07/21/2017

Joseph Kimble (and Others) on Textualism
Michael Ramsey

Joseph Kimble (WMU-Cooley Law School) has posted What the Michigan Supreme Court Wrought in the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 2000–2015 (Wayne Law Review, Vol. 62, No. 3, 2017) on SSRN. Here is the abstract:

This article reviews and codes 96 cases overruled by the Michigan Supreme Court during 15 years. Those overrulings, made by justices who are textualists, show a strong ideological tilt toward conservative results. Along the way, the article discusses plain meaning (or plain language) in interpretation, definitions of ambiguity, the use of dictionaries, and the surplusage canon. The article concludes that, in practice, textualism is not nearly as objective and politically neutral as it professes to be.

Also from Professor Kimble, the short version, at the ACS Blog: The Ideology of Textualism. From the introduction:

Advocates of textualism promote it as a neutral, objective, apolitical theory of interpretation — one that is above ideology. Whenever you hear a judge describe himself or herself as a “rule of law” judge, you can bet that the judge is a textualist. A textualist supposedly respects the democratic process and does not impinge on the legislature’s role. He or she adheres to established and well-founded canons of construction in merely “interpreting” law. As Justice Gorsuch put it in his first majority opinion (page 11), “[T]he proper role of the judiciary [is] to apply, not amend, the work of the People’s representative

That is the mantra. But the reality is altogether different. Textualism has become the brand of conservative judges and judging. And there is in fact strong — if not incontrovertible — evidence that textualism, as practiced, produces conservative results.

RELATED (from earlier):  John O. McGinnis at Law and Liberty: The Good Justice is Just a Judge by Another Name. From the introduction:

Supreme Court observers have expressed surprise and some have voiced criticism that Neil Gorsuch has been so assertive at oral argument and in his opinions so early in his tenure. Most justices have taken some time to decide how to approach this very important job.  Justice Stephen Breyer in fact claimed he was “frightened to death” for his first three years.

But Gorsuch’s confident performance flows directly from his formal conception of law. Being a Supreme Court justice for a formalist is no different from being any other kind of judge and in particular no different from being the Court of Appeals judge Gorsuch had been for over ten years. Under this view, the lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.  Thus, as a formalist and experienced judge Justice Gorsuch was able to act forcefully from day one on the Supreme Court.

With this response from Eric Segall at Dorf on Law: Justice Gorsuch and Foolish Formalism. From the introduction:

Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”

Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.

07/20/2017

David Weisberg on John Mikhail and Original Meaning
Michael Ramsey

David Weisberg comments:

 John Mikhail’s paper, “The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806”, is a quintessential, paradigmatic illustration of the illogic that flourishes when one ignores what I have identified in my paper, “Originalism is Dead…Long Live Identicalism”, as the Paradox of Originalism.

  

The Paradox can be stated thusly: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

 

Prof. Mikhail clearly believes that the relevant definition of “emolument” can be determined only by referring to dictionaries published from 1523 to 1806; he concludes that the word has a “broad definition” making it roughly synonymous with: “profit,” “gain,” “advantage,” or “benefit.”  But apparently he never considers whether those four words have the same meaning today as they had in the period from 1523 to 1806.  If he did consider that question, he would certainly realize that the method he employs to determine the time-dated original meaning of “emolument” leads inexorably to an infinite regress which cannot yield any result.

There is no reason whatsoever to presume that the meaning of “emolument” in 1788 is any different from the meaning it has today.  If one presumes, without any particular reason, that any word in the Constitution has a time-dated original meaning, one effectively embraces the Paradox of Originalism and all the illogic it generates.

Nicole Stelle Garnett: Justice Scalia's Rule of Law and Law of Takings
Michael Ramsey

Nicole Stelle Garnett (Notre Dame Law School) has posted Justice Scalia's Rule of Law and Law of Takings (41 Vermont Law Review 717 (2017)) on SSRN.  Here is the abstract:

 

This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.

 

And here is the introduction:

The United States Supreme Court decided more than two dozen cases raising Fifth Amendment “takings” claims during Antonin Scalia’s 30-year tenure.  By my count, Justice Scalia authored only three of the majority opinions in these cases (and one of them was partially a plurality opinion), although he joined the majority in most of the rest.  Somewhat surprisingly, Justice Scalia authored only one dissenting option in a takings case during his 30 years on the Court,3 along with a handful of concurrences. The members of this panel have been assigned the task of assessing the impact of these opinions on the Court’s takings jurisprudence. I strongly suspect that, as the sole conservative on the panel, the group implicitly assigned me the role of defending Justice Scalia’s decisions against charges of unprincipled judicial activism. I am happy to embrace that charge, although my assessment of Justice Scalia’s opinions falls slightly short of a full-throated defense. 

My answer to the question posed to the panel: Justice Scalia’s decisions had a modestly significant impact on takings law. He penned the majority opinion in two of the most significant cases in recent years, Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council.5 As expanded in subsequent decisions, Nollan arguably has proven the most significant in terms of real-world impact. But, the extent of that impact is largely the result of subsequent exactions opinions that Justice Scalia joined but did not author. Lucas, on the other hand, is more interesting as a matter of constitutional and property theory than Nollan, but subsequent decisions have arguably limited the opinion’s impact. Justice Scalia’s opinions—especially several of his concurrences and one dissent from a denial of certiorari—also anticipated important aspects of the future trajectory of the Court’s takings jurisprudence. 

My assessment of whether these opinions diverge from the jurisprudential principles that guided much of Justice Scalia’s work on the Court is mixed. Justice Scalia was an “original meaning” originalist who loosely adhered to the principle of stare decisis, and strongly preferred clear legal rules over vague standards.8 Takings questions pose a particular challenge for originalists, including myself, because so little is known about the original meaning of the Takings Clause. And they also pose a particular challenge for jurists who, like Justice Scalia, favor clear, generalizable rules over fact-dependent balancing tests. After all, the question of whether government regulation “goes too far” is about as vague and fact-specific as legal questions come.9 In light of these difficulties, and Justice Scalia’s jurisprudence, I think that some of Justice Scalia’s takings opinions (e.g., Lucas) are more “principled” than others (e.g., Nollan).

RELATED:  This earlier post on regulatory takings and originalism.

07/19/2017

Abbe Gluck: Congress, Statutory Interpretation, and the Failure of Formalism
Michael Ramsey

Abbe Gluck (Yale Law School) has posted Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways that Courts Can Improve on What They are Already Trying to Do (University of Chicago Law Review, Vol. 84, No. 1, 2017) on SSRN.  Here is the abstract:

 

The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s brand of textualism—has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress.

What we actually have instead is an approach whose legitimacy depends, in large part, on understanding how Congress works. Establishing the incomplete execution of formalism is a crucial first step in this argument, because the fiction that textualism has been successful in achieving its goals has prevented us from seeing what judges actually want and, in fact, are actually doing.

With that understanding, it becomes clear that better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges—even formalists—already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress has emerged as a second-best alternative to carrying out the formalist project.

After laying this groundwork, this Essay offers ten new rules of statutory interpretation— objective, formalism-compatible rules, but rules grounded in congressional practice. It especially highlights one new rule—the CBO Canon—and then offers nine more, including an anticonsistency presumption and presumptions about different legislative vehicles, multiple agency delegations, dictionaries, and special legislative history. Judges of all interpretive stripes have shown new interest in applying this kind of real-world understanding of the legislative process to statutory interpretation doctrine. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer examples to illustrate the very possibility of what might be, and in some cases already is.

 

 

07/18/2017

Gary Lawson: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Take the Fifth... Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause (Brigham Young University Law Review, forthcoming) on SSRN. Here is the abstract:

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms those principles but does not create them. Accordingly, originalist attention should be focused on the Constitution itself, not on the “exclamation point” added to it in 1791.

This article defends those claims and also briefly explores why and how modern doctrine has moved from this substantively-oriented account of limitations on governmental powers to a focus on executive and judicial procedures. That shift may result in some measure from doctrine under the Fourteenth Amendment’s Due Process of Law Clause. The limitations on federal power built into the Constitution of 1788 obviously do not apply to state governments, so attributing the Fifth Amendment’s meaning to the Fourteenth Amendment makes little sense (though if that really is what the original meaning of the Fourteenth Amendment does, that is just life). A proceduralist account of due process of law makes some sense under the Fourteenth Amendment, but it is a large mistake to read that proceduralist account back into the Fifth Amendment.

The bottom lines are that the Fifth Amendment’s Due Process of Law Clause (1) is much more about substance than about procedure and (2) is basically irrelevant to the Constitution’s original meaning.

07/17/2017

John Mikhail: The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806 on SSRN.  Here is the abstract:

 

In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”

Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792.

Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading.

The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning.

Finally, the Article calls attention to the fact that the government’s dictionary-based argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries — Barclay (1774) and Trusler (1766) — on which DOJ relies in its brief to defend its “office-and-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick — define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.”

To document its primary claims, the Article includes over 100 original images of English language and legal dictionaries from 1523 to 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the broader public about the historical meaning of this important yet obscure constitutional term.
 

 

07/16/2017

James Burling on Regulatory Takings and Originalism
Michael Ramsey

James Burling at Pacific Legal Foundation: Yes, Justice Thomas, the Doctrine of Regulatory Takings is Originalist. From the introduction:

In his dissent in Murr v. Wisconsin, Justice Thomas opined that “[t]he Court, however, has never purported to ground those precedents in the Constitution as it was originally understood.” and “[i]n my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.”

With all due respect to Justice Thomas, and we respect him greatly, this might not be necessary. The often-espoused notion that the doctrine of regulatory takings sprang forth from the head of Justice Holmes in Pennsylvania Coal v. Mahon is wrong. After this idea was put forth by Justice Scalia (of all people) in Lucas v. South Carolina Coastal Council, a number of scholars set out to refute it, on both historical and doctrinal grounds. Rather than repeat these arguments at length, what follows is a partial list of some of the better scholarly arguments, pro and con, on the subject.

07/15/2017

Seth Barrett Tillman and Josh Blackman on the President and Emoluments
Michael Ramsey

In the New York Times, Seth Barrett Tillman and Josh Blackman: Yes, Trump Can Accept Gifts.  Key point:

The Foreign Emoluments Clause requires those who hold an office of profit or trust under the United States to seek congressional approval before accepting gifts from foreign states. As understood at the time of the framing, only appointed officers hold such positions. In contrast, elected officials do not hold office under the United States, and thus the president is not bound by the clause. If new constraints are to be imposed on the president, they should come from the electorate and Congress, not from the judiciary.

The framers of our Constitution gave the president important authority over foreign affairs, including the power to nominate ambassadors, negotiate treaties and receive foreign ambassadors. From the earliest days of the Republic, other nations sought to reciprocate their appreciation by giving presents to the American chief magistrate. ...

And in conclusion:

The Constitution offers several remedies for a president’s improper foreign entanglements. Congress can regulate, by statute, the receipt of presents from other nations or require the president to make disclosures about his foreign commercial arrangements. Of course, as a last resort, the president can be impeached and removed from office for bribery. However, the Foreign Emoluments Clause can provide no redress in relation to a president’s foreign entanglements either in the courts or through the impeachment process, for the simple reason that the clause does not cover the president or any other elected officials.

07/14/2017

Textualism from Justice Elena Kagan
Michael Ramsey

Jonathan R. Nash at The Hill: Justice Kagan Channels Scalia in Textualist Supreme Court Opinion. From the introduction:

A fair amount of attention has focused on the first opinion — in the case of Henson v. Santander Consumer USA — authored by newly-minted Supreme Court Justice Neil Gorsuch.

But the Court’s opinion in another case decided in June — Advocate Health Care Network v. Stapleton, an opinion arising under the federal Employee Retirement Income Security Act (“ERISA”) statute — is also worthy of some attention.

As in Henson, the opinion in Advocate Health Care Network was for a unanimous Court (although Justice Gorsuch did not participate in the latter case). Like Justice Neil Gorsuch’s opinion in Henson, the opinion in Advocate Health Care Network was heavily textualist, emphasizing the importance of following the words Congress used in drafting a statute rather than speculating what Congress might have wanted to do if confronted with the facts now before the Court.

What is surprising is that the Advocate Health Care Network opinion was authored by Justice Elena Kagan, an appointee of President Barack Obama. While Kagan has exhibited a penchant for textualism over the years, this opinion is a tour de force in textualist interpretive technique.

07/13/2017

Jean Galbraith: Cooperative and Uncooperative Foreign Affairs Federalism
Michael Ramsey

In the current edition of the Harvard Law Review, Jean Galbraith has the book review Cooperative and Uncooperative Foreign Affairs Federalism. (reviewing Michael Glennon and Robert Sloane, Foreign Affairs Federalism: The Myth of National Exclusivity).  From the the introduction:

Foreign affairs are a matter for our national government. On this there was agreement from the beginning, with even the Jeffersonians accepting that the nation should be “one as to all foreign concerns,” albeit “several as to all merely domestic.” The text of the Constitution bestows a cornucopia of foreign affairs powers upon the federal government and explicitly limits the powers of the states. The received wisdom was that, as Alexis de Tocqueville wrote, “[n]ations in relation to each other are but single units” and “[a] nation needs a single government above all to give it the advantage when dealing with foreigners.”

But are foreign affairs exclusively a matter for our national government? And if not, then what can states and local governments do with regard to foreign affairs? Like other separation of powers issues, these questions have been with us throughout our constitutional history, sometimes salient and sometimes muted, expressed through the continued practice of various layers of government and the sporadic interventions of courts. From early on, states have engaged with issues involving both local and transnational dimensions, including immigration, the treatment of foreign nationals, and the use of foreign law.

Today the shared space between what is local and what is transnational is far greater. Just as issues once viewed as local matters increasingly came to be seen as national, so now they are increasingly taken to have transnational significance. Globalization presses on practically every front: trade, environment, security, health, human rights, investment, migration, and more. One prominent effect of this shift has been the rise of transnational regulation through treaties and other forms of international cooperation.The counterpart is the growing extent to which state and local governments act in this shared space. This is the focus of Professors Michael Glennon and Robert Sloane’s thoughtful recent book, Foreign Affairs Federalism: The Myth of National Exclusivity.

...

In what follows, I argue for reorienting the focus of foreign affairs federalism toward its cooperative and uncooperative aspects. In Part I, I situate Glennon and Sloane’s contribution within the broader literature on foreign affairs federalism and describe some of their contributions. In Part II, I briefly examine four of the examples of foreign affairs federalism given by Glennon and Sloane: the sister-cities program, trade sanctions and related measures, the regulation of undocumented immigrants, and climate change mitigation actions. I argue that both the political choices made by state and local governments and the legal consequences of these choices interact closely with a backdrop of federal statutes and executive branch action, while background constitutional principles about state power in the face of federal silence play a distinctly smaller role. In Part III, I draw on scholarly work engaging with cooperative and uncooperative federalism and consider what implications it offers for the foreign affairs context. This literature explores how the federal government can incentivize state and local governments to help advance federal interests, how these state and local governments can in turn influence or resist federal policy, and how both Congress and the executive branch can use state and local action to muster power at the expense of the other branch. At a high level of generality, these insights apply to the foreign affairs context. But because of the added complexity of the foreign affairs context — including its ties to international law and its increased reliance on strong executive power — the specifics cannot simply be imported wholesale. I therefore close by suggesting three sets of ways in which the practice and doctrine associated with cooperative and uncooperative foreign affairs federalism should differ from the domestic context.

07/12/2017

More Emoluments Originalism
Michael Ramsey

At Lawfare, Jane Chong, Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?

On the originalist aspect of the debate: 

A threshold issue before turning to the OLC literature is the confusion created by cherry-picking historical materials without consideration of their factual context. For example, in its motion to dismiss, the Justice Department followed the lead of some scholars in pulling some Supreme Court language that suggests the term “emoluments” applies only to salary and other duty-related benefits. Most notably, in Hoyt v. United States, 51 U.S. 109 (1850), the Court defines emoluments as “every species of compensation or pecuniary profit derived for a discharge of the duties of office” (emphasis added).

But in Hoyt, the Supreme Court was specifically asked to decide what constitutes an “emolument of office” per a statute governing Treasury Department collectors in their official capacity; the case did not require the Court to consider or rule on the existence of emoluments of other kinds. This is a key point for purposes of properly construing any Comptroller or OLC opinion that cites Hoyt and regurgitates its definition of “emoluments.” These opinions, like Hoyt, have to be read with an eye to their facts: they do not assert that “emoluments” must derive directly from discharge of duty; rather, the kind of emoluments at issue in those opinions was the kind derived for discharge of duty. As a consequence, the reliance on Hoyt in these opinions does not serve as evidence of a limiting principle for emoluments in general.

In short, as pointed out by the plaintiffs and by assorted scholars, the proper question for purposes of discerning the historical scope of “emoluments” is not whether the term could be interpreted in a restricted way, to refer only to benefits derived from discharging the duties of an office, but whether it was necessarily so interpreted at the time the Emoluments Clauses were drafted. As John Mikhail haspainstakingly documented, the answer is no—and we don’t have to look at secondary sources, however authoritative (e.g., Black’s Dictionary) to draw that conclusion. Consider, for example, some of the constitutions ratified during the first of two major waves of state constitution-making in the Founding decade. Several included “common benefits clauses” that used the word “emoluments” in a way that simply defies narrow interpretation. The Pennsylvania Constitution (1776) provides: “That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument of advantage of any single man, family or sett [sic] of men, who are a part only of that community[.]” Very similar language appears in the Virginia (1776), Vermont (1777), and New Hampshire (1784) constitutions. Far more elaborate historical arguments demonstrating the broad uses of the term have been presented elsewhere: see here,here and here. The bottom line is that there is an abundance of primary Founding-era material making use of the broad definition of emoluments, so it is wrong to use language from fact-bound case law to assert that the term is an inherently limited one.

Seth Barrett Tillman responds at the New Reform Club:

... It is conceivable that the Hoyt Court added “of office” language to “emolument” because it believed that there were “emoluments” which were unrelated to office, but it is also possible that the Hoyt Court thought all “emoluments” were tied to office-and-employment-type relationships. Without [Chong's] initial misreading of Hoyt or any other substantial reason to believe the former, the rest of her analysis makes no sense.

It is not as if the meaning of “emoluments” has not come up before. Chong only turns to OLC memoranda as guidance because she lacks anything akin to a judicial decision from the U.S., any state or territory, and any foreign court in the common law world—any decision asserting that you can have an emolument unrelated to discharging the duties of office (or an employment-type relationship). That is telling. And it is not as if commentators have not spoken to this question: the meaning of “emoluments.” They have done that long before Trump. In 1850, the Hoyt Court tied “emoluments” to employment-type relationships, and it did that when interpreting a 1799 statute (as subsequently amended). A 1799 statute’s use of “emoluments” is not obviously so different from how the same word was used in the Constitution in 1789. More recently, Professor Kerridge explained: “[W]hile it is perfectly possible to argue that a payment is a profit but that it is not a profit from an employment, it makes no sense to argue that something is an emolument but that it is not from an employment. All emoluments must be from employments,” and “All emoluments are from employments, or from the equivalent of employments, that is the essenceof emoluments.”

And Brianne Gorod at Take Care Blog, responding to a separate argument by Professor Tillman: What Alexander Hamilton Really Said. 

... [A] small group of commentators has nonetheless maintained that [the emoluments clause] does not apply, or at least may not apply [to the President].  The leader of this group of naysayers is Seth Barrett Tillman, who has argued forcefully—and repeatedly—that the Foreign Emoluments Clause’s broad language does not encompass the President of the United States.  Although Tillman makes more than one argument in this fight, he has often leaned heavily on one particular piece of evidence: a list of “persons holding office under the United States and their salaries” put together by Treasury Secretary Alexander Hamilton that, he says, “did not include any elected officials in any branch.”  According to Tillman, this document demonstrates that “officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States.  Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.”

Tillman pointed to this document here and here and here, and others have understandably relied on his accounting of the Hamilton document.  Most recently, Tillman pointed to it in an amicus brief in support of the government’s motion to dismiss the lawsuit filed by CREW and others in the Southern District of New York.

But there’s a big problem: the document Tillman cites is not the only record of Hamilton’s communication to the United States.  The document Tillman cites states, “The Secretary of the Treasury, in obedience to the order of the Senate of the 7th of May last, respectfully transmits herewith sundry statements of the Salaries fees and Emoluments for one Year ending the first of October 1792, of the Persons holding civil offices or employments under the united States (except the Judges) as far as Returns have been rendered . . . .”  The editors of Alexander Hamilton’s papers added a footnote explaining that there was, as Hamilton’s letter indicated, an enclosure—the actual list of officeholders and their respective compensation.  And as the footnote further explained, while “[t]his enclosure, consisting of ninety manuscript pages, has not been printed,” an “abbreviated version of it” is available in the American State Papers.

When one looks at the “abbreviated version” of the enclosure (available here at image 57), one name is right at the top: George Washington, President of the United States.  John Adams, as Vice President, appears right below his.

It seems that people care what origianlism says about the emoluments clause, Professor Ledewitz notwithstanding.

07/11/2017

New Book: "Settled Versus Right: A Theory of Precedent" by Randy Kozel
Michael Ramsey

Recently published, by Randy Kozel (Notre Dame): Settled Versus Right: A Theory of Precedent (Cambridge Univ. Press 2017). Here is the book description form Amazon:

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

(With very positive blurbs from Adrian Vermeule, Jack Balkin and Fred Schauer).

Originalism needs a theory of precedent.

(Via Rick Garnett at Prawfsblawg).

RELATED:  Professor Kozel is guest-blogging about his book at Volokh Conspiracy.  Here is his first post.

07/10/2017

David Weisberg on Trinity Lutheran
Michael Ramsey

David Weisberg comments:

There has been much discussion of whether the Trinity Lutheran opinionsomehow signals the end of original-public-meaning originalism.  I have expressed my own views as to the fatal flaw in original-public-meaning originalism, but Trinity Lutheran is not in any way illustrative of that flaw.  Rather, that case can best be understood as correctly decided under the Establishment Clause, as that clause has been applied against the States.
 
Importantly, the Establishment Clause does not prohibit only a law “establishing a religion;” it more broadly prohibits a law “respecting an establishment of religion.”  The former prohibition would nullify a law announcing that the State will provide more favorable treatment to one religion than to any other religion, but the broader latter prohibition also nullifies a law announcing that the State will treat one religion less favorably than any other religion.  What is in effect the disestablishment of one particular religion is also a law “respecting an establishment of religion.”
 
What is true of laws dealing with particular religions is, I think, also true of laws dealing compendiously with all religions.  Suppose a State provided funding to private schools for some activity having no connection with the exercise of religion—e.g., the repaving of a school playground—if and only if the school were affiliated with some religious organization and its students were taught, in addition to the state-required curriculum, religious lessons.  (We know that repaving school playgrounds has, in itself, nothing to do with the exercise of religion because Missouri was willing to repave the playgrounds of schools unaffiliated with religious institutions.)  This law would, I think, violate the Establishment Clause, because treating religious institutions more favorably than non-religious ones amounts to a law “respecting an establishment of religion.”
 
The converse is also true: if a State treats religious institutions less favorably than secular institutions with regard to activities having no connection with the exercise of religion, that amounts to the disestablishmentof all religious institutions.  A law that disestablishes all religious institutions falls within the prohibition of a law “respecting an establishment of religion.”
 
And in response to my follow-up  question whether this view makes the Free Exercise Clause superfluous:
 
I don't think it does.  Employment Division v. Smith, e.g., is a case in which a law that on its face makes no reference to religion (unlike the constitutional provision in Trinity Lutheran) nevertheless violates, in my opinion, the Free Exercise clause.  That is, I think Employment Division v. Smith is wrongly decided because, absent a compelling state interest, the state law (unconstitutionally) interferes with the free exercise of religion.  But, in my view, the Oregon law does not in any way violate the Establishment Clause. 
 
To further clarify: when the government acts with the actual intention of favoring or disfavoring a religion or all religions, the Establishment Clause is almost certainly the relevant constitutional provision.  In these cases, the government's law, regulation or practice will inevitably make reference to religion or religious institutions.  But, where the government acts in a facially neutral way and without any intent to favor or disfavor any religion or all religions, the government might nevertheless violate the Free Exercise Clause.  These latter cases, however, would not violate the Establishment Clause.  The Eighteenth Amendment was not adopted for the explicit purpose of advancing or hindering religion, and it makes no reference to religion.  But if, for example, sacramental wine had not been exempt during Prohibition, in my view that would have been a violation of the Free Exercise Clause.  The drafters of the Volstead Act agreed, I think, because they did exempt sacramental wine.

Must the President Fill Executive Offices?
Michael Ramsey

At Lawfare, Christopher Fonzone & Joshua A. Geltzer, Can President Trump Just Leave Key Executive Branch Offices Unfilled? From the introduction:

Five months into Donald Trump’s presidency, the top ranks of the Executive Branch remain a lonely place. Commentators have, increasingly, noted the number of key positions that remain unfilled—emphasizing, in particular, critical national security roles that sit empty. For example, in April, Business Insider assessed that the Trump administration had yet to nominate candidates for 85 percent of positions requiring Senate confirmation, pointing to the concerns such absences raise for executing time-sensitive national security policies; and, in June, Vox focused on 14 vital national security positions that remained unfilled. Indeed, not only are these critical jobs empty, but there aren’t even potential officials proposed for most of them. 

Several reasons have been advanced for this slow pace: a transition that made less progress selecting appointees than previous hand-offs; internal disagreements over personnel policy; and so on. Perhaps most tellingly, consistent with his professed goal of “draining the swamp,” President Trump has said that a number of the Executive Branch slots are vacant simply because he doesn’t want those roles to exist: “A lot of those jobs I don’t want to appoint because they’re unnecessary to have. We have so many people in government. . . .  You don’t need all those jobs.” As Sarah Posner has noted in the Washington Post, simply failing to fill key jobs is Trump’s fastest and easiest way to deliver on Steve Bannon’s promise of the “deconstruction of the administrative state.”

And that raises an interesting and important question: Is the persistent and deliberate failure to identify candidates not merely a sign of inept governance and deadlocked politics but also, at least in certain cases, a legal failing as well?

And from the core of the argument:

[Some statutes establishing offices]  state that the president “shall appoint” certain officials: the Attorney Generalother high-ranking Department of Justice officialsInspectors General across the federal government, and many other critical positions.

These statutes are mandatory, not discretionary. Their language doesn’t simply permit the president to appoint an officer; they establish an office and require the president to fill it. 

Legal scholars debate whether the Appointments Clause’s use of “shall” places an affirmative duty on the president to fill statutory offices. Noting that the Constitution uses “shall” not only to assign duties but also to allocate authority or indicate that action will be taken in the future, many scholars point to historical practice and language from early Supreme Court decisions to argue that no such constitutional duty is created.

But even if one accepts this argument, these same scholars who deny the existence of a constitutional duty recognize that “shall” is understood very differently today. Consistent with Supreme Court case law on what that word means in federal statutes, the dominant view in modern statutory interpretation is that the use of “shall” ordinarily indicates an affirmative obligation, not merely an available choice. That’s especially true in the context of these statutes. As shown above, Congress has distinguished between offices that may be filled and offices that must be filled; and, unlike certain constitutional text using “shall,” these statutory provisions serve no “predictive” purpose—to the contrary, their apparent sole function is to impose an obligation on the president to create and fill roles in the Executive Branch.

At the New Reform Club, Seth Barrett Tillman disagrees: A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled? The main argument:

The President can only make appointments to Supreme Court positions and certain other federal positions if the President has the advice and consent of the Senate. Sometimes Senate consent is required as a constitutional matter, and sometimes Senate consent is required as a statutory matter, and sometimes, a position requires Senate consent under the Constitution and as a statutory matter. In regard to all these positions, positions where Senate consent is required, my view is that the Senate cannot impose a mandatory duty on the President to make an appointment. There are two primary reasons for this. First, the President cannot make any such appointments absent Senate consent, and the Senate has no duty even to consider the President’s nomination.  [citations omitted]. The second reason is that in Marbury v. Madison, the Supreme Court described the 3-stage process of presidential nomination, Senate advice and consent, and presidential appointment. Justice Marshall did not characterize the President’s role in this process merely as “discretionary,” and if he had, such discretion-related language might extend no further than to the choice of nominee. Rather, the Marshall Court described the President’s role as one which was “voluntary.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court). Of course, Fonzone & Geltzer might respond: So what: John Marshall was just speaking about the President’s duty under the Appointments Clause, not under a federal statute. But that response is insufficient, Fonzone & Geltzer must show how a federal statute could turn a voluntary presidential power into a mandatory duty. Does anyone really believe Congress can do that? The President, under the Constitution, can sign bills, veto them, or leave them unsigned. Could Congress mandate that the President must sign or veto all bills? Could Congress mandate that the President sign all bills? I think not. So how could Congress mandate that the President must act where (according to the Court in 1803) he has discretion not to act at all?

07/09/2017

Is Trinity Lutheran the End of Originalism? [Updated]
Michael Ramsey

In the Philadelphia Inquirer, Bruce Ledewitz: 'Trinity' case marks end of originalism.  It begins:

It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation. Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.

The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs. Nevertheless, originalism has achieved a real rhetorical dominance. But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap.

Professor Ledewitz appears to belong to the camp that thinks one can make originalism go away by yelling at it.

At Volokh Conspiracy, Randy Barnett has extensive (harsh) comments: Does Trinity Lutheran mark the “end of originalism”. He begins:

What is it about originalism that makes smart living constitutionalist law professors write silly things? Duquesne law professor Bruce Ledewitz is a smart guy. But he’s written a snarky op-ed about about the Trinity Lutheran case and originalism entitled, ‘Trinity’ case marks end of originalism.  Let’s review it, shall we?

Professor Barnett makes a number of excellent points.    Here are a couple I'll amplify.

(1) Professor Ledewitz's contention that originalism is "premised on a nihilistic skepticism about the possibility of truth in political affairs" is nonsense, and Professor Ledewitz makes no effort (literally none) to support the claim.  Originalism is premised on the contention that the search for "truth in political affairs" is committed in our constitutional system to the people and their elected representatives, not to unelected judges;  judges have the more modest role of determining what the law is, based on the meaning of laws enacted by the people and their representatives, rather than saying what the law should be.  Professor Ledewitz apparently envisions a much more outsized role for judges as the arbiters of "truth in political affairs."  That, he should recognize, is his real objection to originalism.  It's a legitimate objection, but of course does not lead to the sort of absolutism he's pursuing.

(2)  Ledewitz's contention that originalism "never made any sense either as a matter of language or political theory" is equally unsupported.  As to political theory, originalism's basic claim is the one laid out in point (1) above: the search for "truth in political affairs" should be, as much as possible, committed to the people and their representatives, and judges should be constrained, as much as possible, to the meaning of their enactments.  One may not like that theory (because it arguably leads to sub-optimal outcomes), but it would take quite a bit to show that it makes no sense.  As to making sense as a matter of language, I assume that means that finding the original meaning simply isn't possible.  But as Barnett writes:

But if [Ledewitz] means to claim that an original public meaning of the text cannot be discovered “as a matter of language,” he then immediately contradicts that claim by asserting an original meaning of the Establishment Clause so definitive that a finding for Trinity Lutheran was “ridiculous” “from the point of view of originalism.”

I'm amazed that nonoriginalist commentators continue to simultaneously claim that originalism is fatally indeterminate and that it inevitably leads to bad results, even though this contradiction has been repeatedly pointed out.

(3) The idea that, based on Trinity Lutheran, "originalism as a theory can confidently be relegated to the historical ash heap" is equally unexplained and equally nonsensical.  True, Trinity Lutheran is not much of an originalist opinion.  But that says little about originalism as a theory.  First, I see Trinity Lutheran as mostly based on precedent.  Many versions of originalism accommodate precedent, especially when the Constitution's text is not clear.  Second, originalism as a theory is not typically a predictive theory of what the Court will do; it's a theory of what the Court should do.  The Court has issued many nonoriginalist opinions.  It's true also that the Court's originalist and originalist-oriented Justices did not have much to say about originalism in the opinion, and that's a cause for some concern.  But again, Professor Ledewitz seems unduly apocalyptic.

(4) On the merits, Ledewitz makes a complete hash of the originalist analysis.  His main claim is that the Establishment Clause precludes the state from giving money to improve the church playground (as part of a program to generally improve playgrounds).  As Professor Barnett points out, the Establishment Clause issue is complicated by the fact that it's a state law being challenged, and so the analysis must come from the Fourteenth Amendment, not the Establishment Clause directly (something Ledewitz ignores).  But even leaving that aside, it's not at all clear to me that the original meaning of the Establishment Clause requires churches to be excluded from benefits generally available to other private entities. Presumably, for example, the government may offer police and fire protection to churches along with other buildings, and may build and maintain roads leading to churches.  The founders were indeed worried about government money going to churches (as Ledewitz says), but the paradigm concern was special benefits for churches.  The "established" church received benefits not available to others; thus the core problem was favoritism.  Trinity Lutheran does not involve favoritism.  To say it is covered by the Establishment Clause (to the extent that any other position is "ridiculous") seems a stretch.

(5)  Nonetheless, I have some ultimate sympathy for Professor Ledewitz's position.  Although I don't find the Establishment Clause argument persuasive, I also have doubts about the Free Exercise Clause argument.  The Court's majority largely assumes that the Free Exercise Clause is a non-discrimination provision (as noted, mostly on the basis of precedent).  Maybe that's right, but it does not seem to follow inevitably from the clause's text.  The state's failure to fund improvements to the church playground does not seem to "prohibit" the church members' free exercise of their religion.  Exercise of religion does not require a playground.  True, denial of the state funding burdens the religious exercise slightly, by making it more expensive for the church (compared to other entities) to have a playground.  But that seems, at least arguably, short of a prohibition.  Thus I think Ledewitz is right that a serious originalist analysis would seem to call for more discussion than the Court accorded it, and that the opinions may be criticized on this ground.  I would say, though, that that indicates the continuing relevance of originalism, not its demise.

UPDATE:  Professor Ledewitz has an extensive response to Professor Barnett at his blog Hallowed Secularism, and Professor Barnett has an extensive response to the response: “The end of Originalism” Round Two: Ledewitz doubles down. Quite a bit has been said so I don't think I'll add any more.

ASIDE:  Professor Ledewitz's Hallowed Secularism, which I hadn't encountered before, is an interesting blog with generally a lot more subtlety than in the originalism broadside -- see here (on the President firing James Comey), here (on the Paris Agreement) and here (Putnam versus Scalia).  One of my favorite parts of collecting originalism commentary is discovering new (t0 me) perspectives.

FURTHER UPDATE:  John McGinnis has a somewhat related post at Liberty Law Blog, although not tied to this discussion: Is the Court’s Originalist Jurisprudence Mostly Symbolic? He concludes:

Originalism in the academy has entered an almost golden age.  Careful scholarship offers better and better templates for interpreting provisions the Constitution as written. But the originalist revival on the Court, while valuable for its models of sound judicial reasoning, is still in its infancy. Originalism will be recognized as the dominant mode of constitutional interpretation when most Justices are ready to make originalist decisions that go beyond symbolism.

Agreed.  The fact that the Court's originalism remains a bit tentative does not mean (as Professor Ledewitz would have it) that originalism has failed.  It means only that its future is unclear.  As the future usually is.

07/08/2017

William Baude and Ryan Doerfler: Arguing with Friends
Michael Ramsey

William Baude (University of Chicago - Law School) and Ryan D. Doerfler (University of Pennsylvania Law School) have posted Arguing with Friends (U of Penn Law School) on SSRN. Here is the abstract:

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive outlook – i.e., only when those others are methodological “friends.” Thus textualists should hesitate before disagreement with other textualists, and pragmatists should hesitate before disagreeing with like-minded pragmatists. Disagreement between the two camps is, by contrast, "old news" and so provides neither additional reason for pause. We thus disagree with a recent proposal by Eric Posner and Adrian Vermeule, that would give presumptive weight to the votes of all other judges, regardless of methodology.

We also suggest that judges should give weight to the views of all of their methodological friends, not just judges. And we suggest, even more tentatively, that our proposal may explain and to some extent justify the seemingly ideological clusters of justices on the Supreme Court. The most productive disagreements, we think, are ones that come from arguing with friends.

07/07/2017

Sai Prakash and John Yoo on Justices Gorsuch and Thomas
Michael Ramsey

In the Wall Street Journal, Sai Prakash (Virginia) and John Yoo (Berkeley): Gorsuch Makes a Mark on the Court --Thomas, the consistent originalist, seems to have found a fellow traveler in his new colleague.  From the introduction:

The Republican gamble to stiff-arm Merrick Garland and hold open Justice Antonin Scalia’s seat appears to have hit the jackpot. In his abbreviated first year on the Supreme Court, Justice Neil Gorsuch has lived up to supporters’ greatest hopes and critics’ worst fears.

RELATED:  This article from Adam Liptak at the New York Times:

New justices usually take years to find their footing at the Supreme Court. For Justice Neil M. Gorsuch, who joined the court in April, a couple of months seem to have sufficed.

His early opinions were remarkably self-assured. He tangled with his new colleagues, lectured them on the role of the institution he had just joined, and made broad jurisprudential pronouncements in minor cases. ... [with a good analysis of the opinions following].

All this seems right.  My thoughts on Gorsuch and Thomas are here: The Thomas-Gorsuch Alignment.

(Via How Appealing)

07/06/2017

D.C. Circuit Decision on Drones and the Political Question Doctrine
Michael Ramsey

In a recent decision, the D.C. Circuit rejected -- principally on political question grounds -- a challenge to the legality of U.S. drone strikes: Ahmed Salem Bin Ali Jaber v. United States (per Judge Janice Rogers Brown).  Here is the court's discussion of the political question analysis post-Zivotofsky:

Plaintiffs argue their reading of [the D.C. Circuit's prior decision in] El-Shifa gains support from the Supreme Court’s opinion in Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012), which held the political question did not bar judicial review of a claim attacking the constitutionality of a statute allegedly regulating the Executive. Again, Plaintiffs’ claim fails.

In Zivotofsky, the Court considered a statute directing the Secretary of State, upon request, to issue a registration of birth or passport to a U.S. citizen born in Jerusalem that identified the individual’s place of birth as “Jerusalem, Israel.” Id. at 193. The President’s signing statement asserted the statute, if it were construed as mandatory, would impermissibly interfere with the Executive’s foreign relations powers. Id. at 192. Consequently, the U.S. Embassy later refused Zivotofsky’s request to list his place of birth as Jerusalem, Israel and issued a passport and registration of birth listing only “Jerusalem.” Id. at 193. The Supreme Court noted “the parties [did] not dispute the interpretation” of the statute, and the question before the Court concerned whether the statute was constitutional. Id. at 196. Accordingly, the Court held the question justiciable, reasoning Zivotofsky did not “ask the courts to determine whether Jerusalem is the capital of Israel” but sought only to vindicate his statutory right to have Israel designated as his place of birth on his passport. Id. at 195.

Zivotofsky confirms no per se rule renders a claim nonjusticiable solely because it implicates foreign relations. Rather, it recognizes that, in foreign policy cases, courts must first ascertain if “[t]he federal courts are . . . being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination” or, instead, merely tasked with, for instance, the “familiar judicial exercise” of determining how a statute should be interpreted or whether it is constitutional. Id. at 196. In the latter case, the claim is justiciable. Id.; see also Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. at 229–30 (stating not “every case or controversy which touches foreign relations lies beyond judicial cognizance[,]” and emphasizing “courts have the authority to construe treaties[,] . . . executive agreements, and . . . congressional legislation” and to address other “purely legal question[s] of statutory interpretation” in the foreign policy realm). Therefore, if the court is called upon to serve as “a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security[,]” then the political question doctrine is implicated, and the court cannot proceed. El–Shifa, 607 F.3d at 842.

Zivotofsky sought only to enforce a statute alleged to directly regulate the Executive, and the reviewing court needed to determine only “if Zivotofsky’s interpretation of the statute [was] correct, and whether the statute [was] constitutional.” Zivotofsky, 566 U.S. at 196. 2 The Court was not called upon to impose its own foreign policy judgment on the political branches, only to say whether the congressional statute encroached on the Executive’s constitutional authority. This is the wheelhouse of the Judiciary, and accordingly, it does not constitute a nonjusticiable political question. Here, however, Plaintiffs assert claims under the TVPA and ATS that would require the Court to second-guess the wisdom of the Executive’s decision to employ lethal force against a national security target—to determine, among other things, whether an “urgent military purpose or other emergency justified” a particular drone strike. JA 10. Indeed, Plaintiffs’ request is more analogous to an action challenging the Secretary of State’s independent refusal to recognize Israel as the rightful sovereign of the city of Jerusalem, a decision clearly committed to executive discretion.

This seems right to me, but it depends a bit on how the plaintiffs' framed their claim.  In my originalist view (admittedly perhaps not a widely shared view) plaintiffs would state a non-political claim if they contended that the strikes were unconstitutional because not approved by Congress.  (See Little v. Barreme).  As the D.C. circuit opinion rightly sums Zivotofsky, the analysis is whether the claim asks a pure question of constitutional (or statutory) law or whether it asks for an assessment of executive discretion.  The question of congressional approval seems to me to be the former (without saying how it should be answered on the merit).

Judge Brown added a concurrence to her own opinion, saying in part:

… Courts are ill equipped “to assess the nature of battlefield decisions” or “to define the standard for the government’s use of covert operations in conjunction with political turmoil in another country.” Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 45 (D.D.C. 2010).

Of course, this begs the question: if judges will not check this outsized power, then who will? No high-minded appeal to departmentalism, arguing “each [branch] must in the exercise of its functions be guided by the text of the Constitution according to [that branch’s] own interpretation of it,” E. BURNS, JAMES MADISON: PHILOSOPHER OF THE CONSTITUTION 187 (reprinted 1968), changes the fact that every other branch of government seems to be passing the buck. The President is the most equipped to police his own house. See generally AKHIL REED AMAR, AMERICAN’S CONSTITUTION: A BIOGRAPHY 60–63 (2005) (discussing the President’s independent obligation to ensure his actions comply with the Constitution). But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in 6 secrecy; and it often seems the boards are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress, perhaps? See generally Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 912 (1990) (“If Congress enacts a War Powers Act and the President goes his merry way in reliance on a more expansive view of executive power (and a stingy view of legislative power), Congress need not give up.”). But congressional oversight is a joke—and a bad one at that. Anyone who has watched the zeal with which politicians of one party go after the lawyers and advisors of the opposite party following a change of administration can understand why neither the military nor the intelligence agencies puts any trust in congressional oversight committees. They are too big. They complain bitterly that briefings are not sufficiently indepth to aid them in making good decisions, but when they receive detailed information, they all too often leak like a sieve.

Our democracy is broken. We must, however, hope that it is not incurably so. This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community. The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community— including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The Executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.

(Via Jonathan Adler at Volokh Conspiracy).

07/05/2017

Randy Barnett on the Declaration of Independence
Michael Ramsey

Randy Barnett at The Volokh Conspiracy: What the Declaration of Independence Said and Meant. From the conclusion:

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “First comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) the protection of these rights is the first duty of government; and (3) even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition; (4) at least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.

At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration’s claim that such rights “are endowed by their Creator,” leads many to characterize natural rights as religiously based rather than secular. As I explain in The Structure of Liberty: Justice and the Rule of Law, I believe this is a mistake.

07/03/2017

New Book: "The Law of Nations and the United States Constitution" by Bellia and Clark
Michael Ramsey

Recently published: The Law of Nations and the United States Constitution, by Anthony J. Bellia Jr. (Notre Dame) and Bradford R. Clark (GW) (Oxford Univ. Press 2017).  Here is the book description from Amazon:

The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted--namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.

(With very positive back-cover reviews from Jack Goldsmith, John Manning and Jefferson Powell).

I am reviewing it for an upcoming symposium.  It's a great book, although I have a few points of disagreement.

07/02/2017

Mitchell Berman: For Legal Principles
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Law School) has posted For Legal Principles on SSRN.  Here is the abstract:

Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” [University of San Diego law professor] Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.

In this essay, prepared as a contribution to a festschrift in Alexander’s honor, I argue that Alexander and Kress have not established their ambitious claim. Even if they have shown that legal principles, understood as norms distinct both from legal rules and from moral principles, cannot perform the function that Ronald Dworkin assigned them — namely, that of morally justifying legal rules and practices — Alexander and Kress have cast no doubt on a distinctively positivist account of legal principles as fundamental legal norms that possess weight, are grounded directly in social facts, and serve to metaphysically determine or constitute legal rules. I show why that positivist picture of legal principles survives Alexander’s multi-pronged attack. And I further explain why the existence of legal principles causes grave trouble for Alexander’s “simple-minded” defense of constitutional originalism.

07/01/2017

New Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey

Now published:   Volume 40, No. 3 (May 2017) of the Harvard Journal of Law and Public Policy, with several articles of originalist interest, including Seth Barrett Tillman's article on emoluments and thoughts on Congress from Keith Whittington and others.  Here is the table of contents:

THE FEDERALIST SOCIETY’S ARTICLE I INITIATIVE

THE PLACE OF CONGRESS IN THE CONSTITUTIONAL ORDER, Keith E. Whittington...................................................................573

THE WEALTH OF CONGRESS

Jonathan Klick .............................................................................603

THE PRESIDENT’S PEN AND THE BUREAUCRAT’S FIEFDOM

John C. Eastman…......................................................................639

HOW TO SALVAGE ARTICLE I: THE CRUMBLING FOUNDATION OF OUR REPUBLIC

David Schoenbrod…....................................................................663

 

ARTICLE

EDUCATING THE DISADVANTAGED—TWO MODELS

Amy L. Wax….............................................................................687

 

BOOK REVIEW

WHY THE RIGHT EMBRACED RIGHTS: THE OTHER RIGHTS REVOLUTION

Logan E. Sawyer, III…................................................................729

 

ESSAY

BUSINESS TRANSACTIONS AND PRESIDENT TRUMP’S “EMOLUMENTS” PROBLEM Seth Barrett Tillman....................................................................759

 

NOTE

DISCRIMINATORY LAWYERS IN A DISCRIMINATORY BAR: RULE 8.4(G) OF THE MODEL RULES OF PROFRESSIONAL RESPONSIBILITY..................................................................................773

 

RECENT DEVELOPMENT

RIGHT BY PRECEDENT, WRONG BY RFRA: THE “SUBSTANTIAL BURDEN” INQUIRY IN OKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC. V. LYNCH, 828 F.3D 1012 (9TH CIR. 2016)...................................................................................793

06/30/2017

Calvin TerBeek on Originalism and Constitutional Translation
Michael Ramsey

Calvin TerBeek (guest blogging) at The Faculty Lounge: Originalism and Constitutional Translation: Part I. From the Introduction:

“One of the reasons I’m supporting Donald Trump this year is, number one, he’s going to put originalists on the Supreme Court, people that believe in fidelity to the Constitution, separation of powers, co-equal branches of government.” So said Sean Hannity, the popular conservative media personality, in a political advertisement for the Republican presidential candidate in September 2016. To the surprise of most pollsters and many political scientists, Trump prevailed, and as promised during the campaign, nominated an avowed originalist (Judge Neil Gorsuch) to the Supreme Court.

The nomination of an originalist from a list of judges compiled by the Federalist Society and the Heritage Foundation is not surprising. The more interesting question is this: how did it come to be that originalism is so readily identifiable to conservative voters such that Hannity can reference it in a campaign commercial without further explanation?

And from Part II:

Part I, setting forth the concept of constitutional translators is here. In short, that post tentatively explored the concept of "constitutional translators," mezzo-level elites who take sophisticated constitutional law and legal theoretical ideas and arguments and repackage them for a lay audience in a way such that they are more easily digestible. This follow-up post sets forth a nascent theoretical framework for thinking about the role these actors play in our constitutional politics and looks at how Charles Murray and Mark Levin translate constitutional conservatism.

...

[A]rguments about constitutional theory and interpretation, such as originalism, differ quantitatively (they are not talked about as much by elites as other political issues) and qualitatively (it takes more effort to translate these arguments than (say) concerns about immigration). A crucial force, then, in educating the public on these complex issues is partisan media. The conservative media ecosystem has played a significant role in this development as consumption of conservative media is inherent to that group identity. Constitutional arguments, therefore, are ripe for “translation.” From the 1950s to the 1970s, these arguments largely flowed from conservative media activists acting as as constitutional translators for the engaged conservative public. Later, as the conservative media ecosystem grew, the translation became more complex: from sophisticated academic theory and conservative legal elites to conservative governing elites to constitutional translators to conservative voters.

An instructive example of this downward flowing process from academics and elites to constitutional translators to the engaged public (who are most likely to read these books and engage with them) can be found in Charles Murray’s 2015 By the People: Rebuilding Liberty Without Permission. ...

Murray’s book is further instructive as he relies on the scholarship of academic originalists such as Randy Barnett, Michael Greve, and Gary Lawson (271, 272, 278, 279, 285) and libertarian law professor Richard Epstein, (285, 286) to construct his argument. Here, one can see the theory and developmental themes in action: originalist academics—named explicitly in the acknowledgements and footnotes—are relied upon by a constitutional translator who opens his book with the incantation “that we are at the end of the American project as the founders intended it” (xi) and deems the audience for his book “Madisonians [or] those people who are devoted to limited government. In today’s terminology, that includes classical liberals, libertarians, and many conservatives” as opposed to “Wilsonian progressivism” (xiv, xv, emphasis in original). Finally, Murray contends the “latest received [scientific] wisdom about best practice is more often driven by ideology and expertise” and that technocratic bureaucrats—here Murray invokes public choice theory—are inevitably biased (180-183).  

Murray is a talented constitutional translator, but based on certain metrics, Mark Levin maybe the most important of the current conservative constitutional translators. Levin, who served in the Regan DOJ, did not follow a path into academia or the bench, as many of his colleagues did. Instead, Levin built something of a media empire as a particularly provocative conservative commentator. One instantiation of this empire is his long list of New York Times bestsellers. Men in Black, with an Introduction by Rush Limbaugh and an Afterword by Attorney General Meese, trained Levin’s sites on the Supreme Court. ...  [discussion of Levin's book follows]

An interesting assessment, as usual from TerBeek.  But I would say, in the case of originalism, that a crucial "translator" was Justice Scalia.  The Court's decisions are reported widely enough that politically engaged people follow them to some material extent, and Scalia's role as an originalist and also a conservative luminary meant that politically engaged nonlawyers were likely to pick up the idea of originalism from him (at least, more likely than from Charles Murray).  Scalia became associated, in the mind of conservative nonlwayers, with resistance to what they saw as the Court's constitutional errors (and, in the case of gun rights, for example, with what they saw as the Court's constitutional successes).  This association was further both by Scalia's sharp and accessible opinion writing style and also by Scalia's off-the-Court commentary, which was widely reported by ordinary media.  So I would add that Scalia served as his own "translator" (quite consciously).

06/29/2017

Logan Sawyer: Principle and Politics in the New History of Originalism
Michael Ramsey

In the current issue of the American Journal of Legal History, Logan Sawyer (Georgia) has the article Principle and Politics in the New History of Originalism (57 Am. J. L. Hist. 198 (2017)).   Here is the abstract:

The emergence of a new form of originalism has sparked an interest in the theory’s past that is particularly welcome as developments on the Supreme Court and in the Republican Party unsettle the theory’s place in American law and politics. Our understanding of the theory’s development, however, has been limited by an unfortunate and unnecessary division between what are now two separate histories of originalism. One history examines the theory’s development in academia and emphasizes the influence of principled argument. A second investigates its role in politics and highlights the role of conservative interests. This review essay identifies this division and offers two ways to create a productive dialogue. It first suggests we consider how political interests have shaped the academic debates over originalism by influencing the institutions that produce those debates. Second, it urges a reconsideration of how and why academic debates have shaped the theory’s political uses. There is good reason to consider whether principled constitutional argument, and thus the debates of academics, has shaped the political uses of originalism even if the theory’s most important advocates were motivated mostly–or even entirely–by the pursuit of political advantage. Using these approaches to identify the reciprocal influence of politics and principle on originalism’s past can help produce the new history of originalism we need to understand, evaluate, and influence the theory’s role in American law and politics.

(Article available only for subscribers, but a draft is available on SSRN, here).

06/28/2017

More Originalism from Nonoriginalists: Eric Segall on Standing and the Emoluments Clause
Michael Ramsey

Eric Segall at Dorf on Law: Members of Congress Have Standing in the Emoluments Suit. From the introduction:

The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.”

Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those businesses. Before the court may rule on this case, however, the plaintiffs must demonstrate that they have standing to sue. As a matter of text, precedent, and policy, these plaintiffs should have standing in this case.

The constitutionally required standing elements derive from Article III’s requirement that the judicial power only extends to a “case” or a “controversy.” As a matter of original meaning, there are good arguments that the founding fathers simply wanted to avoid sham or hypothetical lawsuits. There is no doubt that there is a real, live controversy between these members of Congress and the President. 

Dear Nonoriginalists:  Please, please, keep making these arguments.  We know you don't really think they are decisive (indeed, Professor Segall's post goes on to make mostly policy arguments).  But they show two things.  First, people think that originalism is possible (at least as to some clauses) -- despite what some historians and commentators try to tell us.  It's not quixotic to pursue the original meaning of provisions that are not obvious on their face.  Nonoriginalists (and presumably their audience) don't think it absurd or incoherent to make claims about the original meaning of the emoluments clause or the case-or-controversy provisions (both of which are disputed and not obvious).  So when originalists make such claims, they aren't acting the part of some cultish outliers, but rather are part of the ordinary legal discourse.  (The difference is that originalists think these claims actually should be decisive, or at least more decisive.)  

Second, people think it matters, at least to some extent, what the original meaning is.  Otherwise, nonoriginalists would not be making originalist arguments.  Presumably they are not making them for the benefit of a handful of originalist scholars.  Rather,  there's a sense that original meaning has some weight -- perhaps not decisive weight, but some weight -- in conventional legal argument.  Thus, again, originalists are not cultish outliers, looking to some oddity that no one else thinks relevant.  Rather, there's simply a dispute about how much weight originalist evidence should carry.  The gap between originalists and nonoriginalists, when it comes to argument about specific constitutional provisions, is narrower than it might seem.

That's important because at a theoretical level it's often portrayed differently.  Recall the Gorsuch hearings.  Much of the argument against originalism as a general matter had the tone of either (a) originalism is impossible or incoherent; or (b) originalism is a bizarre approach that focuses on things no one else cares about.  But when the discussion turns from the theoretical to the specific, both of these claims evaporate (at least if nonoriginalists think originalism helps them get where they want to be).

So please, nonoriginalists, keep making originalist arguments.  It shows you really care.

06/27/2017

The Missing Fourteenth Amendment in Trinity Lutheran
Chris Green

It is striking that in Monday's Trinity Lutheran v. Comer, the Court and the concurrences failed even to mention the Amendment at stake: the Fourteenth Amendment, not the First. The Court left out even a nod to Cantwell v. Connecticut, which held that the Fourteenth Amendment's Due Process Clause incorporated the Free Exercise Clause against states, though Justice Sotomayor's dissent mentioned Cantwell as part of another argument in a footnote. Not even Justice Thomas, who wrote separately in Trinity Lutheran, and who just last week noted the possibility that the Privileges or Immunities Clause might incorporate against states a refined version of the takings principle expressed in the Fifth Amendment (see also here), gave any attention to the Fourteenth Amendment's original meaning.

What makes this failure even more striking is that despite the Court's lack of direct concern with the original meaning, its closing appeal to history fits hand-in-glove with my understanding of the Privileges or Immunities Clause. The Court quoted H. M. Breckenridge's early-nineteenth-century condemnation of Jewish citizens' "odious exclusion from any of the benefits common to the rest of my fellow-citizens," and earlier in the opinion noted the reference in Lyng v. Northwest Indian Cemetery to "denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens." Whatever we make of the meaning of the "free exercise of religion" in 1791, the prohibition of such exclusions is the central meaning, as I read the evidence, of the Privileges or Immunities Clause. Much more could be said on the historical application of equal-citizenship principles to religion: George Edmunds's references to religious discrimination under the Privileges or Immunities Clause prior to the Civil Rights Act of 1875, James Madison's proposal in 1789 that "[t]he civil rights of none shall be abridged on account of religious belief or worship," or Madison's 1785 protest against "degrad[ing] from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority."

Rather than a dubious Tinker-to-Evers-to-Chance daisy chain from Fourteenth Amendment Due Process to First Amendment Free Exercise to equal citizenship, the original meaning expressed by the Privileges or Immunities Clause offers a much simpler argument. To give similarly-situated fellow citizens of the United States different rights is just what it means to abridge the privileges or immunities of such citizens. One hopes that the briefing in Masterpiece Cakeshop v. Colorado Civil Rights Commission--or even the opinions!--will at least touch on the Privileges or Immunities Clause issues neglected in Trinity Lutheran.

The Thomas-Gorsuch Alignment (Updated)
Michael Ramsey

Yesterday's array of results from the Supreme Court continues, among other things, the trend I noted here (and which the AP noted a couple of days later [via Powerline's post Is Neil Gorsuch the Next Justice Thomas?]):  the alignment of Justice Thomas and Justice Gorsuch.  Consider:

Trump v. International Refugee Assistance Project [travel ban case]: Justice Gorsuch joins Justice Thomas' concurrence/dissent (also joined by Justice Alito).

Trinity Lutheran Church of Columbia, Inc. v. Comer [free exercise case]: Gorsuch joins Thomas' concurrence; Thomas joins Gorsuch's concurrence.  (Both join the majority except for footnote 3).

Davila v. Davis: Gorsuch joins Thomas' majority opinion (also joined by Chief Justice Roberts, Justice Kennedy and Justice Alito).

California Public Employees' Retirement System v. ANZ Securities, Inc.: Thomas and Gorsuch join Kennedy's majority opinion (also joined by Roberts and Alito).

Pavan v. Smith: Thomas joins Gorsuch's dissent (also joined by Alito).

Johnson v. Alabama: Thomas and Gorsuch (and Alito) join Roberts' dissenting opinion.

Peruta v. California [Second Amendment case]: Gorsuch joins Thomas' dissent from denial of certiorari.

Bay Point Properties v. Mississippi Transportation Commission [takings case]: Thomas joins Gorsuch's dissent from denial of certiorari.

That's eight cases from one day (all contentious ones); in three of them no other Justices joined the Gorsuch/Thomas opinions.  Plus one assumes that Gorsuch and Thomas were two of the votes for certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission [the gay wedding cake case].  The cases share a textualist/originalist/rule of law outlook with a generally conservative political orientation.  It's an easy prediction that Justice Scalia would have agreed.

Actually it's easier to list the cases in which Thomas and Gorsuch did not agree:

Mathis v. Shulkin:  Gorsuch dissented from denial of certiorari alone.

Hicks v. United States: Gorsuch concurred with the majority disposition [remand in case in which the respondent admitted error]; Thomas joined Roberts in dissenting.

It remains a small and early sample, but taken with the four cases discussed in the AP article linked above, it's hard not to see a trend.  At minimum, Justice Gorsuch must have substantial respect and admiration for Justice Thomas' approach to law.

UPDATE:  Richard Hasen (UCI) has some similar thoughts here: Gorsuch is the new Scalia, just as Trump promised.

06/26/2017

Calvin Terbeek on EPA Originalism
Michael Ramsey

Calvin TerBeek (guest blogging) at the Faculty Lounge: Transportable Originalism. From the introduction:

The Environmental Protection Agency has long been a bete noire of movement conservatives. The story of "The Other Rights Revolution," the title of Jefferson Decker's important new study of conservative public interest litigation groups' attack on the regulatory state, supplies the bulk of the story. But of course dislike of the EPA wasn't limited to conservative lawyers. Tom DeLay would often tell reporters that his time as a suburban Houston bug exterminator led him to view the agency as "the Gestapo," a characterization he held onto until his resignation from the House after being indicted. And the EPA was helpfully offered by Mitt Romney when Rick Perry ran into a mental roadblock at a 2012 Republican presidential debate.

It is not surprising, then, that Politico reports:

What Administrator Scott Pruitt calls his “Back to Basics” agenda would refocus the agency on narrow goals such as cleaning up toxic waste and providing safe drinking water — the kinds of issues that inspired the EPA’s creation in 1970 amid a public outcry about burning rivers and smog-filled skies. But it would abandon the Obama administration’s climate regulations, along with other efforts that Pruitt argues exceed the agency’s legal authority. 

What is interesting is how Pruitt is explaining the changes: "EPA originalism" that will lead to "a restoration of [the EPA's] priorities."

06/25/2017

Greg Weiner on the Role of the Court in the Travel Ban Cases
Michael Ramsey

Greg Weiner at Law and Liberty: Return to Marbury. From the introduction:

The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.

Pryor’s perspective might consequently help advocates of judicial engagement and restraint move beyond one of the central difficulties in their disagreement, which is the tendency to veer into judicial supremacy in the former case and impotence in the latter. The travel ban illustrates one dimension of the problem, which is what happens when a court issues a ruling other branches believe impinges on their authority. Would the Trump Administration be immovably bound by it?

Recently in this space, I argued that constitutional meaning was liquidated by conversation between the branches rather than by the discrete and final view of the courts, with the judiciary considered as the last stop on a temporal line. I stand by that conclusion, but Pryor’s writings provide a subtler and richer account of the judicial role.

The account begins where I erred, which was in a truncated and flawed account of Marbury v. Madison. Using Marbury as an illustration of how presidents and courts once confronted each other more forthrightly, I repeated the strain of scholarship that holds that Chief Justice Marshall willfully misread Article III of the Constitution in order to avoid a confrontation with President Jefferson while manufacturing grounds for establishing the power of judicial review.

06/24/2017

Justice Thomas' Doubts on Qualified Immunity and Regulatory Takings
Michael Ramsey

Concurring in this week's qualified immunity case Ziglar v. Abbasi, Justice Thomas (citing Will Baude) raised a fundamental question about the originalist basis of the doctrine (some quotations and citation omitted):

I write separately …  to note my growing concern with our qualified immunity jurisprudence. The Civil Rights Act of 1871, of which §1985(3) and the more frequently litigated §1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law.  Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U. S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U. S. 259, 268 (1993); accord, Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U. S. 914, 920 (1984). …

In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute.  In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U. S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under §1983, we instead grant immunity to any officer whose conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. … We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).

Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted).  

… Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Will Baude has more at Volokh Conspiracy, commenting: 

Now, of course, Thomas is writing only for himself, but I am glad to see somebody on the court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably “no,” but even if the court disagrees and ultimately concludes that the answer is “yes,” I think it would be good for the justices to give some attention to the issue and explain why exactly they think it is justified. (As I discuss in the paper, different members of the court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

RELATED:  Justice Thomas also expressed doubts about the originalist foundations of regulutory takings dcotrine (citing my colleague and co-blogger Mike Rappaport) in this week's decision in Murr v. Wisconsin.   From Jonathan Adler at Volokh Conspiracy: Should regulatory takings doctrine be reconsidered from the ground up?  From Justice Thomas' opinion: 

In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions). [ed.: article available here].

SOMEWHAT RELATED:  Also at Volokh Conspiracy from Jonathan Adler:  Justice Gorsuch’s first opinions reveal a confident textualist.  From the introduction:

Associate Justice Neil Gorsuch has now written three opinions — a majority, a partial concurrence and a dissent. All three show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues. [discussing two opinions from this week plus this earlier one].

It's early to be counting, but Justice Thomas joined all three of these opinions.

06/23/2017

More on the Emoluments Clause
Michael Ramsey

Brianne J. Gorod at Take Care Blog: Because President Trump Has Chosen Not To Go to Congress, Members of Congress Must Go to the Courts. From the introduction:

When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation.  They understood what a threat corruption posed, and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties. 

In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.”  Although there’s been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.” 

To the Founders, “the consent of the Congress” language was critical.  By requiring federal officeholders to first go to Congress and identify the specific benefits they wished to accept from foreign states, the Founders ensured that an officeholder would not be the sole judge of his own integrity. 

Moreover, and just as important, they also ensured that a federal officeholder’s acceptance of any foreign “Emolument[s]” would be transparent and subject to public examination, thus minimizing the dangers of corruption and influence that the Foreign Emoluments Clause was adopted to prevent.  When Congress was first called upon to exercise this responsibility in 1798, one lawmaker explained its value in this fashion: “[i]f presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors.”

Also Simon Stern guest blogging at Balkinization: Presents, Emoluments, and Corruption. From the conclusion: 

Although the refrain “we love our customers” has become a banal sentiment that reeks of insincerity, it captures a psychological truth that goes without saying (that’s why its constant repetition makes it sound so insincere). According to Trump’s lawyers, the prohibition on emoluments cannot extend to the sale of goods for “fair market value.” But transactions of that kind, no less than gifts and titles of honor, tend to elicit a sense of gratitude—in fact, such commercial transactions are likelier to have that effect than the patronage of someone who pays you a toll or other fee for performing your official duty. When people get paid for duties performed in office, they tend to regard the money as merely their due, which anyone else would just as readily have paid. But profits from commercial transactions, particularly luxury goods (even if at “fair market value”) do elicit a sense of gratitude, for the obvious reason that the customer might have gone somewhere else. This is especially true when the customer makes a point of patronizing the owner’s hotel “so I can tell the new president, ‘I love your new hotel!’”

That is precisely the state of affairs that the framers sought to prevent, by opting for a term that applies not merely to a small subset of the transactions that might elicit the recipient’s gratitude, but rather to the whole array. Contrary to the DOJ’s contention, “the term ‘Emolument,’ when read harmoniously with the rest of the Clause,” does not have “the natural meaning of the narrower definition of profit arising from an office or employ.” Read alongside the ban on “present[s],” the natural meaning entails a prohibition on the various transactions that induce the recipient to respond with gratitude.

And, from a while back (apologies for missing it earlier), John Mikhail at Balkinzation: "Emolument" in Blackstone's Commentaries.  The central point:

In their white paper on conflicts of interest, Donald Trump’s lawyers claimed that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  Since then, other commentators have also defended an “office-related” definition of the term (see, e.g., here, here, and here).

Blackstone does not support such a narrow reading.  Occasionally, he refers to the emoluments of government officials, such as postmasters, civil magistrates, and naval seamen.  But the significance of these public employment contexts must be interpreted cautiously, and on the whole they appear to be exceptional. The majority of Blackstone's usages of "emolument" involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

So (a) lots of originalism in the emoluments clause debate; but (b) I have not heard any really good response to Seth Barrett Tillman's point that in the immediate post-ratification period key framers appeared to think the clause did not apply to the President.

Also, I think there needs to be a more direct explanation, fro the President's challengers, of why Congress cannot consent by acquiescence, as the Supreme Court held in a different context, in Dames & Moore v. Regan.  Congress knows about the emoluments issue and has not raised any objection -- why is this not enough to show that it is not troubled by the President's action?  (I think the answer is that Congress must act formally and that Dames & Moore was wrongly decided on this ground, but are non-formalists wiling to say that?).