07/19/2018

16th Amendment Originalism? (Updated)
Michael Ramsey

At Above the Law, Elie Mystal: States Are Suing For Their SALT Deductions Back Under The 16th Amendment.  

The Republican tax bill famously capped the deductions for state and local taxes (SALT) at $10,000 for the purposes of federally taxed income.  ...

The blue states are fighting back, such as they can. A lawsuit was filed by New York Governor (for now) Andrew Cuomo against the federal government, joined by Connecticut, Maryland, and New Jersey. They argue ... [among other things]  that federal government is violating the original meaning of the Sixteenth Amendment… and I am all here for that. Blue states are making an originalist argument about the 16th Amendment and that is goddamn fascinating!

From the complaint:

36. Recognizing this structural limitation on its power to tax, the federal government has always respected the sovereign tax authority of the States by providing a deduction for all or a substantial portion of state and local taxes as part of the federal income tax. Indeed, since the federal government first exercised its income tax power in 1861, Congress has included such a deduction in every federal income tax law. Relying on this constitutional guarantee and uninterrupted practice, the States have structured their own state tax regimes around the federal SALT deduction.

37. The ratification history of the Sixteenth Amendment provides further confirmation that a deduction for all or a significant portion of state and local taxes is constitutionally required. When the States ratified the Sixteenth Amendment, they confirmed the historic limitations on the federal government’s income tax power. At the time of the amendment’s ratification, it was widely understood that, to the extent the federal government taxed income, it would provide a deduction for all or a significant portion of state and local taxes. The States—including the Plaintiff States— relied upon this understanding in making the decision to ratify the Sixteenth Amendment.

The post continues: 

This is the kind of issue that should illuminate the differences between so-called “originalists” versus “textualists.” Clearly, there’s nothing in the text of the 16th Amendment that requires the federal government to respect the SALT deduction. But if you look at the original understanding of the Amendment…

60. These public declarations about the meaning of the Sixteenth Amendment also provide insight into how Congress’s income tax power under the Sixteenth Amendment should be construed. See, e.g., New York v. United States, 505 U.S. 144, 163-66 (1992).

61. The drafters and defenders of the Sixteenth Amendment intended for the federal government’s income tax powers to be constrained by the need to accommodate the States’ sovereign tax authority.

62. When Congress first exercised its income tax power after the amendment’s ratification in 1913, Congress respected the federalism constraints promised by the amendment’s champions. Similar to prior federal income tax statutes, the first post-amendment federal income tax law—the Revenue Act of 1913—included a deduction for “all national, State, county, school, and municipal taxes paid within the year.”40

63. Under Supreme Court precedent, “[e]arly congressional enactments” of this nature “provide contemporaneous and weighty evidence of the Constitution’s meaning.” Printz, 521 U.S. at 905 (alteration and quotation marks omitted). As relevant here, the 1913 Revenue Act’s SALT deduction establishes that Congress understood that its newly minted power to impose a federal tax on incomes was subject to the same federalism limitations that had applied to every federal tax statute since the Founding.

This seems like a more interesting and substantial issue than I thought at first, and I agree about it illuminating differences between textualists and non-textualist originalists.  But I think that's why the states' argument won't have much traction among originalists.  Most modern originalists are textualists, at least for their starting point (or "textualist originalists").  As the post says, the text of the Sixteenth Amendment has no hint of such a limitation and conveys the taxing power in very broad unqualified terms.  It's possible that there was such a strong background assumption against double taxation that no one thought it needed to be written into the amendment, but that seems like it would be hard to establish.  The fact that it was "widely understood" that the federal government "would" provide a deduction does not show a constitutional obligation to do so (at least not to a textualist).  The states should have gotten it in writing -- and also they should not have given up their control over the Senate by ratifying the Seventeenth Amendment if they wanted to maintain the framers' political safeguards of federalism.  [Sadly, a conclusion against personal interest, as a California taxpayer].

UPDATE:  Ilya Somin discusses the suit at Volokh Conspiracy here.  He's even more skeptical than I am ("their legal argument ... borders on the absurd"):

The states point to various statements by framers and ratifiers of the Sixteenth Amendment indicating that the Amendment was not intended to impinge on the rights and powers of state governments. But none of these statements indicate that the federal government was required to create an exemption for state and local tax payments. The absence of such an exemption in no way diminishes states' powers to raise their income taxes as high as they want, although it might, of course, increase political resistance to high state tax rates.

Originalism (in some versions) does accept arguments based on structure and background understandings.  (I believe Professor Somin is a defender of Justice Scalia's opinion in Pintz v. United States, which relies on such arguments).  So I would not be as dismissive.  But in the end I think he's right.

07/18/2018

Mark Kleiman on Originalism and Immigration [Updated]
Michael Ramsey

At Samefacts, Mark Kleiman (NYU Public Policy): Does the Constitution authorize immigration restriction?  From the introduction:

If, as the originalists keep reminding us, the Constitution gives the federal government only strictly limited, “enumerated” powers, what provision could be interpreted to authorize immigration restrictions, let alone the creation of a massive national police force entitled to stop people at random within 100 miles of any coast or land border and make them prove their right to be in the country?
 
As you can see from Art. I, Sec. 8 above, restricting immigration is clearly not one of the “enumerated powers” of the Congress, unlike – for example – passing anti-piracy laws and granting letters of marque.  More to the point, naturalization laws are among the enumerated powers, making the omission of immigration restriction stand out as a “loud silence.”
 
A few other provisions seemed promising, but didn’t really pan out. For example, Article 9 forbids the Congress from interfering with “migration or importation” before 1808, but that was clearly about the slave trade, and works with the anti-amendment provisions of Article V to prevent its abolition before that year.  It would be a big stretch to infer from it  a general, unenumerated power of Congress over immigration.
 
So: a puzzle.
 
And from the conclusion:
 
The problem for originalists here is that, in the Eighteenth Century, immigration (by contrast with the slave trade) was regarded as a boon rather than a problem. The Framers didn’t give the Congress or the President the power to restrict it simply because it didn’t occur to them that restricting it might be regarded as desirable, just as they allowed the creation of a navy, in addition to an army, but not an air force, because they couldn’t imagine aerial combat. A reasonable person might say that that was then and this is now, and that the federal government’s enumerated powers ought to be stretched to cover the contemporary situation.  But that’s exactly the view originalists hate when it comes to same-sex marriage.

[Most people seem] to be working backwards: starting with the proposition that surely there must be some power to limit immigration, and searching for something in the text that could be used to allow for that, precisely as they mock liberal justices for having done to discover a general right to reproductive freedom – overruling the police power of the states – that would have surprised the hell out of the authors of the Fifth and Fourteenth Amendments.

What’s absolutely certain is that not a single elected official who preaches originalism and “limited government” and “not legislating from the bench,” and who also supports restrictive immigration policies as a matter of economic policy (or applied racism), will be bothered for a millisecond by the fact that the Constitution as written needs to be bent all out of shape to make it confer that power on the federal government.

Plus a quote from me, but I don't really try to solve the problem.  I think originalists have some responses, but the topic has not been developed as much as it might be.

UPDATE (by Andrew Hyman):   

This brief opinion piece by Rob Natelson seems very compelling to me: The Constitution does indeed permit immigration caps as part of ‘the law of nations’.

Natelson emphasizes the Define and Punish Clause, which is not addressed at all by Mark Kleiman.  Although immigrating into the U.S. was not necessarily an offense against the law of nations circa 1787, intruding into any country against its will was indeed an offense against the law of nations circa 1787, as Natelson shows.
 

07/17/2018

William Baude: Constitutional Liquidation
Michael Ramsey

William Baude (University of Chicago - Law School) has posted Constitutional Liquidation (71 Stanford Law Review (forthcoming 2019)) on SSRN.  Here is the abstract:

James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This paper attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.

Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution, but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction” – a real or imputed popular ratification.

While this paper does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.

(Via Volokh Conspiracy, where Professor Baude has some additional quotes and excerpts).

Mike Rappaport adds:  This paper was given at the 8th Annual Originalist Works in Progress Conference.  The video of the presentation, commentary and discussion is available at the Center's new youtube channel.   Readers are encouraged to subscribe to the channel.  

07/16/2018

Christopher Sprigman on Judge Kavanaugh and Originalism
Michael Ramsey

At Just Security, Christopher Sprigman (NYU): What Judge Kavanaugh’s “Originalism” Means for the Country (via How Appealing).  Despite the title, it's really two criticisms of originalism and a prescription.  From the criticisms:

Courts striking down legislation, or thwarting the actions of democratically-elected officials, is something that happens so regularly in America that we take it for granted. But we should remember that what the courts are doing in these cases is extraordinary in a democracy. A judge is displacing the decision of a current majority in favor of some inconsistent rule put in place by people long dead. A judge is, in short, allowing the dead to govern the living.

That isn’t democratic. It’s necrocratic. And this “dead hand” problem is endemic to constitutionalism generally. All constitutions that are backed by judicial review sometimes privilege decisions made in the past, decisions that living voters never approved, over decisions made by democratic majorities today.

The question for how we govern ourselves isn’t whether this happens in a constitutional democracy. It does, and to some extent, it must. The question is how often, and on what basis. Originalist judges have shown little reluctance to override the decisions of current democratic majorities; they do so at least as often as judges who believe in a “living Constitution.” Are they doing so based on a reliable understanding of what the fixed, original meaning of the Constitution? Or are they acting out their political beliefs? Those are the vital questions.

... [after a extended discussion of D.C. v. Heller]

Originalists claim that their interpretive method is politically neutral. However, on the federal bench, originalism is a right-wing sport. That is no accident. Originalism pins us to the distant past. A past that predates both the tremendous growth in U.S. population and in the scope and power of the federal government starting with the New Deal and continuing through the Second World War and the Great Society programs. Originalism valorizes a distant past that can be weaponized to halt and even reverse the progressive transformation of society accomplished during that long era of liberal dominance.

Some right wing judges are hiding behind originalism, using it as a stalking horse for the very thing that originalism promises to prevent — partisan judging. These judges exploit originalism’s usefulness in imposing conservative policy preferences, but have no deep dedication to the method itself. You can see this in the selectivity with which some judges will either use or ignore originalism, depending on which way it points in a particular case. As Eric Segall and others have notedJustice Scalia, in particular, was known for this sort of “opportunistic originalism.” For these judges, they have the choice of either picking up originalism when it suits their favored outcome and discarding it in other important cases, or they may very well stick with originalism across cases as they know the framework will in general and on average provide the policy results they have come to believe are just.

But other originalist judges, the ones operating in good faith, are perhaps no less prone to imposing their partisan preferences in the name of the Constitution. These judges presumably tend to suffer, as all of us do, from a version of the confirmation bias that afflicts decision-making. Without systematic mechanisms in place to overcome such bias, they will often see certainty in uncertain arguments for original meaning when those arguments reinforce policy outcomes they like. An originalist judge who unconsciously aligns what the Constitution means with what he wants it to mean is behaving in a way that is altogether human. But it’s no way to run a constitutional democracy.

That originalism is a cover for conservative ideological judging is a common objection but (as I'll try to address in a separate post) not a very compelling one.  The dead hand objection, in contrast, seems to me to be among the more forceful.   (But the two objections are actually a bit in conflict: if originalism is a cover for conservative ideological judging it's not subject to the dead hand objection, and vice-versa).

The post then continues, in a possibly surprising turn: 

So what to do about Brett Kavanaugh, the conservative originalist? In the end, and barring some change in the current political situation, Kavanaugh probably gets confirmed. But this is where I hope that Americans are ready for some new thinking. The problem isn’t just the man, or his politics, or his interpretive ideology. The problem is, more deeply and more fundamentally, that our system has slid too far away from democracy, and too far down a road that leads to the rule of judges. The answer, I’d submit, is not to demand the appointment of fewer originalists, and more living constitutionalists, to the federal bench. Viewed from a certain altitude, originalism and living constitutionalism aren’t all that different. They are both ways of interpreting the Constitution that tend to expand judicial power at the expense of democracy.

The answer is to shrink the power of the federal courts over our lives, including the power of the Supreme Court. But how to do that given the systems we have inherited and the norms we have come to accept?

(There follow several suggestions of varying plausibility).

I don't know Professor Sprigman, so I assume he's a genuine and longstanding advocate of judicial restraint (meaning great reluctance for judges to intervene against the political branches).  Of course, judicial restraint is a very substantial and legitimate position in constitutional interpretation.  And Professor Sprigman is right to understand it as a rival to originalism, not as an ally.  As he says, a consequence of originalism is that acts of the political branches will be overridden, not infrequently, by judges' assessment of the Constitution's historical meaning.  And that is indeed anti-democratic to an extent.

But judicial restraint also carries devastating implications for the liberal constitutional project.  The anti-democratic argument applies in equal force to the iconic cases reaching liberal results.  I'll further assume that Professor Sprigman thinks judges should not be involved in, to pick a few examples, abortion rights, same sex marriage, the death penalty, habeas corpus rights for terrorist suspects, the exclusionary rule, Miranda warnings, and most if not all of the constitutional objections to President Trump's activities.    But I expect that his idea of "what to do about Brett Kavanaugh, the conservative originalist" --namely, push judicial restraint -- will have broader resonance among those concerned about the direction of the Court.   As judicial restraint becomes more of a talking point on the left (as I expect it will), it's important to press to see if its new advocates accept its full implications.  If not, it would seem to be "judicial restraint for thee [or rather, for Judge Kavanaugh] but not for me."

07/15/2018

Suzanna Sherry Reviews Lawson & Seidman's "A Great Power of Attorney"
Michael Ramsey

Suzanna Sherry (Vanderbilt University - Law School) has posted The Imaginary Constitution (Georgetown Journal of Law & Public Policy, Vol. 17, forthcoming) on SSRN.  Here is the abstract: 

How many ways can conservatives spin an originalist tale to support their deregulatory, small-government vision? The answer is apparently infinite.  [Ed.: No overstatements in this review!!]  In a new book, Gary Lawson and Guy Seidman are the latest in a long line of scholars who insist that the real original meaning of the Constitution demands unwinding the regulatory state and substantially limiting the power of the federal government. They argue that the Constitution is a fiduciary instrument, specifically a power of attorney. After summarizing the book, this essay turns to three of its most important failings, each of which serves to make the book a work of politics, not history. In the end, their account is imaginative but their Constitution is imaginary.

The book is Gary Lawson & Guy Seidman, A Great Power of Attorney: Understanding the Fiduciary Constitution (Univ. of Kansas Press 2017).  Here is the book description from Amazon: 

What kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. Legal scholars Gary Lawson and Guy Seidman propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document—or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.” What follows from this particular conception of the Constitution—and is of greater importance—is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government.

In mapping out what these imperatives might mean—such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitution's beneficiaries—Lawson and Seidman offer a clearer picture of the original design for a limited government.

And comments from some people who liked it better than Professor Sherry did: 

"This book makes an important intervention into discussions about fiduciary political theory's purchase on questions of American constitutional and administrative law. I have no doubt it will be widely debated--and that it will even win over many scholars who have not yet fully appreciated the fiduciary roots of American constitutional government. Although some of Lawson and Seidman's conclusions are not ones all fiduciary political theorists must endorse or adopt, others are so elegant and incisive that they cast fresh light on subjects like the non-delegation doctrine that others have left for dead."-- Ethan J. Leib, Professor of Law, Fordham Law School

"A Great Power of Attorney is the best book written about judicial interpretation of the Constitution in my lifetime! It is must reading for anyone interested in American constitutional law or judicial review."-- Steven G. Calabresi, the Clayton J. and Henry R. Barber Professor of Law, Northwestern University

07/14/2018

Michael Dorf on Liberal Originalism
Michael Ramsey

At Dorf on Law, Michael Dorf: Reinvigorating "Defensive Crouch Liberal Constitutionalism" Part 1: Originalism and Searches.  Key passage:

Defensive crouch liberal constitutionalism is not a trick or a ruse. It is not an effort to fool conservative justices into voting for liberal results that they actually disfavor. The justices and their clerks are much too smart for that to work. Rather, the basic idea--and it is one with which every sophisticated liberal cause lawyer now working is familiar--is to make a genuine appeal to conservative justices based on conservative values. It can sometimes work because, as Charles Fried's recent essay on the Harvard Law Review blog underscores, much of what we now code as "liberal" can also be understood to be conservative, especially when one counts adherence to precedent as manifesting Burkean conservatism (as Fried does).

Where else can liberals turn conservative arguments to our own ends? I have been, and continue to be, highly skeptical of the arguments for constitutional originalism, but I acknowledge that originalist arguments can be made for liberal no less than conservative results. That is especially true of public-meaning originalism as opposed to expected-applications originalism. Although I have argued that conservative judges and justices frequently use originalist rhetoric to cloak decisions reached on ideological grounds, I do not think that they typically do so consciously. That is, I don't think a conservative justice asks himself "I'd like to vote for the government here, so how can I concoct an originalist argument for that result?" Rather, he tries in what he regards as good faith to read the constitutional text and historical record, but because those sources are typically not decisive, he is influenced by his priors. Still, good faith at the conscious level creates an opening for originalist arguments for liberal results.

Agreed, and as I've argued here before, I think it's critical -- if originalists wants to expand originalism's role in the legal culture -- for originalism to broaden its appeal and produce some results that the political left favors.  Justice Scalia's Fourth and Sixth Amendment opinions are excellent examples.  The fact that Professor Dorf, one of the nation's leading originalism skeptics, is pursuing this idea seems very important for the future of originalism.

(At the same time, isn't there something a little troubling about his post?  The assumption seems to be that liberal results are the ultimate goal and whatever tool works best to get there is the one to use.  Of course this is the way practicing lawyers should think, but is it the right posture for scholars?  I would think that constitutional theorists should have a view about interpretive methodology that's independent of how effective it's likely to be as argument to any particular judge or set of judges.  Otherwise, there seems to be an implication that liberal constitutional theory is ultimately just about liberal results.)

07/13/2018

Anthony Gaughan on Judge Kavanaugh and Originalism
Michael Ramsey

At The Faculty Lounge, Anthony Gaughan: A Window into Brett Kavanaugh’s Judicial Philosophy (discussing this roundtable discussion from 2011 published in the George Washington Law Review).  From the core of the post:

To a striking degree, Judge Kavanaugh’s 2011 remarks suggest that his judicial philosophy most closely resembles that of the late Justice Antonin Scalia, a frequent ally of Justice Thomas.

Although the roundtable’s topic was the importance of history in judicial interpretation, Judge Kavanaugh took a contrarian view, indicating that he does not think historical context is all that helpful to judges. During the dialogue, he pointed out that the framers were not “all of one mind” and in fact had “wildly different views.” As an example of the diverse viewpoints expressed at the Constitutional Convention, Kavanaugh noted the stark contrast between how Alexander Hamilton of New York and George Mason of Virginia viewed the proper role of the federal government.

According to Kavanaugh, the framers’ diverse and often conflicting opinions should make judges skeptical of historical evidence, even in the case of a document as renowned and influential as the Federalist Papers. As the judge explained during the roundtable:

“The point being, be careful about even The Federalist . . . point of view. That’s not the authoritative interpretation of the [Constitution’s] words. You’ve [also] got to be careful about some of the ratification debates. You’ve got to be careful about different people at the Convention itself. They had different views.”

As an aside, compare this view to the claim, discussed in a post earlier this week, that originalists must think the framers all agreed on everything.

More from Professor Gaughan:

Under Judge Kavanaugh’s approach, history has value only if it helps judges “figure out what the words meant.” But since almost every word in the Constitution resulted from some sort of compromise, history ultimately offers very little of value to judges according to Kavanaugh. But that conclusion did not trouble him at all. History, he maintained, isn't really all that necessary in any case because “the words actually tell us a lot more than we often assume. . . [T]hey’re not so complicated. It’s not mystifying to actually read this and get some meaning out of it.”

Above all, Judge Kavanaugh made clear the tremendous interpretive importance he places on the Constitution’s text:

“The text of the document is not just something that we’re supposed to look at just for interest. It’s law. It is binding law. It says in Article VI it’s the supreme law of the land, and it is binding on us. Those words in the document are binding on us in all three branches of the federal government, not just as judges, unless it’s amended.”

And further:

To the extent that the 2011 roundtable provides a window into his thinking, Judge Kavanaugh’s judicial philosophy bears all the hallmarks of Antonin Scalia’s judicial philosophy.

As Justice Scalia famously declared, “The text is the law.” Both an originalist and a textualist, Scalia insisted that courts should resolve constitutional disputes by ascertaining the original public meaning of the Constitutional text. Likewise, in statutory cases, he maintained that the courts should stick to the text and reject the use of legislative history, which he derided as the “last hope of lost interpretive causes, that St. Jude of the hagiology of statutory construction.” For example, in a 2007 case he rebuked the majority’s reliance on legislative history and announced in his dissent that “today’s decision is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.”

Kavanaugh’s 2011 remarks embrace Scalia’s interpretive approach and apply it to the Constitution’s text. Accordingly, to the extent the roundtable discussion reflects Kavanaugh’s current views, it seems likely he will build a Supreme Court voting record every bit as conservative as that of Justice Scalia, which in turn would position Kavanaugh much closer to Justice Thomas than to Chief Justice Roberts. 

Replacing Kennedy with a Scalia-type justice will produce a seismic change in the Court’s center of gravity on social issues. Justice Kennedy provided a reliably conservative vote on economic and regulatory issues, but he sided with the liberal wing on abortionsame sex marriagejuvenile sentencing, and the death penalty, using reasoning and sources that went far beyond the Constitution’s text. Kavanaugh’s laser-like focus on constitutional wording will likely place in jeopardy all of the 5-4 decisions in which Kennedy sided with the liberals. 

Although I generally agree with the analysis, I think it may overstate the Scalia/Kavanaugh rejection of history.  Scalia used history quite a lot.  What Scalia objected to (and what I suspect Judge Kavanaugh objects to) is appealing to history to speculate about the Framers' intentions (described in an abstract and malleable way), as opposed to appealing to history to resolve the meaning of ambiguous words and phrases in the Constitution.

07/12/2018

Judge Kavanaugh
Mike Rappaport

So it was Judge Kavanaugh. I haven’t studied his opinions, but from what I know of him Kavanaugh is very smart and an originalist. As compared to the other potential nominees, Kavanaugh also had the advantage of many years on the bench. You appear to know what you are getting with Brett Kavanaugh.

One of the obvious problems for confirmation is that Kavanaugh served on Ken Starr’s staff. As Senator Mitch McConnell reportedly told President Trump, Democrats might try to delay the confirmation vote to review many thousands of pages of records from the Starr investigation. In the next couple of months, we should expect to hear quite a lot about Bill Clinton and Monica Lewinsky. Of course, some of Starr’s (and perhaps Kavanaugh’s) behavior regarding Clinton might look different these days to a lot of people who formerly opposed the Independent Counsel.

In looking over my posts over the past years, I realized that I wrote four posts about Judge Kavanaugh – two (here and here) on whether the Constitution guarantees the executive branch prosecutorial discretion and two (here and here) on Kavanaugh’s opinion holding that the removal provisions of the Consumer Protection Financial Agency were unconstitutional. That’s very likely way more than on any other lower court judge. In two of the posts, I largely praised arguments made by Judge Kavanaugh; in two, I criticized his arguments.

I agreed with Kavanaugh’s opinion holding that the Director of the Consumer Financial Protection Bureau could not be made removable only for cause. I wrote:

Of course, Supreme Court precedent has allowed removal restrictions on executive officials since at least Humphrey’s Executor.  But as Judge Kavanaugh notes, no significant Supreme Court precedents or long standing practice allows removal restrictions on single headed agencies. Instead, these restrictions have been limited to multi-member commissions. Thus, there is no clear precedent on point.

One could, of course, extend Humphrey’s Executor and other precedents to single headed agencies, but the question is whether the courts are required to do so.  It is by no means clear that they are. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Robert’s decision largely followed the type of analysis applied by the D.C. Circuit. Roberts described the removal authority of the President as flowing from the Constitution. He described the permissibility of removal restrictions as coming from precedent.  Since the removal restriction in that case was not covered by precedent, the opinion followed the original meaning.

Moreover, the D.C. Circuit’s attempt to distinguish the precedent makes sense. The court noted that the separation of powers operates to place checks on agency officials. Those could be provided by the President (when there were no removal restrictions) or by the other commission members (when there were removal restrictions). Thus, not extending the precedent to a single-headed agency made sense.

In the other posts, I criticized Kavanaugh’s claim that the President enjoys constitutional power over prosecutorial discretion. That is, I believe that the Constitution allows Congress to take away the executive branch’s prosecutorial discretion, although it is hard to do in practice. Here is what I had to say about one of Kavanaugh’s arguments:

One argument, made by Judge Kavanaugh, is that the pardon power supports such discretion:

The President may decline to prosecute certain violators of federal law just as the President may pardon certain violators of federal law. . . . In light of the President’s Article II prosecutorial discretion, Congress may not mandate that the President prosecute a certain kind of offense or offender. The logic behind the pardon power further supports that conclusion. As has been settled since the Founding, the President has absolute authority to issue a pardon at any time after an unlawful act has occurred, even before a charge or trial. So it would make little sense to think that Congress constitutionally could compel the President to prosecute certain offenses or offenders, given that the President has undisputed authority to pardon all such offenders at any time after commission of the offense.

Well, maybe, but I think the argument goes in the other direction. The pardon power and the power of prosecutorial discretion are distinct powers. That the Constitution gives one does not mean it gives another. If the President wants to protect an individual from prosecution, then he must actually exercise the pardon power.

This argument is reinforced by the fact that there was private prosecution of crimes in both England and in the United States at the time of the Constitution. Perhaps the executive could exercise the pardon in those cases, but that does not mean he had the power to exercise prosecutorial discretion.

Based on what I know, Judge Kavanaugh is a smart originalist. That should make him a first rate Justice.

Robert Natelson on Federal Eminent Domain Power
Michael Ramsey

Recently published, in the Federalist Society Review (Vol. 19, p. 88, 2018), Robert Natelson: Did the Constitution Grant the Federal Government Eminent Domain Power?: Using Eighteenth Century Law to Answer Constitutional Questions.  From the introduction:

Did the Constitution as originally understood grant the federal government eminent domain authority? As to federal territories and enclaves, for which the federal government received general police power, the answer is clearly “yes.” As to land lying within state boundaries and outside federal enclaves, the Supreme Court held in Kohl v. United States that the federal government may exercise eminent domain, but the Court’s constitutional reasoning was unsound. The real answer to this question lies in founding-era jurisprudence and law books that today’s constitutional interpreters consult too rarely.

That eighteenth century jurisprudence can answer questions of constitutional interpretation should be obvious. The Constitution is a legal document. A clear majority of its framers were lawyers, and many of the rest (such as James Madison) had extensive legal knowledge. Most of the Federalists who explained the Constitution to the ratifying public were lawyers. Several of the leading Antifederalists, including Virginia’s Patrick Henry and New York’s Robert Yates (possibly the author of the widely distributed “Brutus” essays), were likewise members of the Bar. The Constitution contains many legal terms of art, and the participants in the ratification debates often explained the document in explicitly legal terms.  Just as one of my prior essays in Federalist Society Review illustrated how knowledge of the Latin language can assist in constitutional interpretation, this essay illustrates how eighteenth century law can do so by exploring whether the Constitution granted the power of eminent domain to the federal government.

07/11/2018

Judge Kavanaugh on Judging (and on Justice Scalia)
Michael Ramsey

I saw Judge Kavanaugh deliver this speech in 2016, reprinted in the Notre Dame Law Review: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions.  On Justice Scalia: 

What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound. The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. The Constitution is a document of majestic specificity defining governmental structure, individual rights, and the role of a judge. Remember that the structural provisions of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are essential to protecting individual liberty. Justice Scalia’s memorable dissent in Morrison v. Olson is of course the best example of that.  Remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits. For judges, Justice Scalia would say, don’t make up new constitutional rights that are not in the text of the Constitution. But don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is necessary at times, but it is to be done by the people through the amendment process. Changing policy within constitutional bounds is for the legislatures.

That’s about it. Simple but profound.

RELATED: In the New York Times, Akhil Reed Amar: A Liberal’s Case for Brett Kavanaugh.  Among other points:

Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. (Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)

This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.

Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.

07/10/2018

Originalism Myths #1: Originalists Think the Framers Agreed on Everything
Michael Ramsey

With the new Supreme Court nomination (congratulations Judge Kavanaugh!), originalism is likely to be back in popular commentary as it was during Justice Gorsuch's confirmation.  I hope to use this time to highlight the arguments against originalism and separate the good ones from the bad ones.  In particular, I want to highlight the bad ones, in the hopes that originalist critics will give up on them, and find meaningful points of engagement.

So let's start with this one: originalism depends on the framers all agreeing on everything.  Here's Donald J. Fraser at the History News Network: The Founders Would Not Recognize Originalism—Why Should We?  (Thanks to Andrew Hyman for the pointer).  Key claim:

The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact, they did not, as one of the earliest debates over the meaning of the Constitution shows.

[There follows an engaging description of the Hamilton/Jefferson/Madison debate over the national bank].

Fraser's claim is fundamentally misconceived on two counts.  (Before getting to them, though, I'll start by saying that claiming originalists don't recognize the post-ratification disputes over constitutional meaning is either lazy or dishonest.  Originalist scholarship routinely engages with these debates, and anyone who thinks otherwise either hasn't read the relevant literature or is deliberately misstating it.  To pick just a couple of examples beyond the bank debates, Hamilton and Madison famously debated executive power in the Pacificus/Helvidius letters in 1793 [Saikrishna Prakash and I wrote about that debate here, as have many others], and the Federalists and Republicans famously debated the constitutionality of the Jay Treaty in 1794-95 [I wrote about that debate here, as have many others].  The idea that originalist scholarship does not acknowledge these debates is wholly unfounded.)

The existence of these debates (which nobody disputes) does not undermine originalism for at least two core reasons.

(1)  Originalism does not claim that "people in the 18th century shared a common interpretation of the Constitution" as to all matters.  It claims that to the extent that people in the 18th century shared a common interpretation of the Constitution, that interpretation should be binding.  Citing the bank debate (or Pacificus/Helvidius, or the Jay Treaty, or any of a number of other debates) does not show that the founding generation had no common interpretations; it only shows that there were disagreements on some important matters (a point that, again, no one disputes).  

On other matters, though, the founding generation seems to have been largely in agreement.  To take one I've studied a bit, there appears to have been a general consensus, at least among leaders who commented on the matter, that Congress had the exclusive power to initiate war.  Hamilton, Madison, Washington, Jay, and a numbers of others agreed, and there's no material post-ratification commentary to the contrary.  (See Chapter 8 of The Constitution's Text in Foreign Affairs).  This is notable because (a) that's not obvious from the text, which only gives Congress the power to "declare War," and (b) in modern commentary this power is disputed.  Originalism says that the founding generation's common understanding should resolve this issue.  The fact that the founding generation did not agree on other things is irrelevant to whether one accepts as binding their common understanding on this one.

(2) Orignalism also does not require proof of a "common interpretation" (which I take to mean a near-consensus interpretation) in the post-ratification era to establish constitutional meaning.  That is so for three reasons.  (a) Mainstream modern originalism focuses on original meaning of the text, not the original intent of the framers.  Thus the inquiry is what the enacted text meant, not what particular framers, or the framers collectively, thought it meant (though their understandings are of course relevant). (b) Post-ratification reactions to the text must be treated carefully.  Once the text was enacted, commentators and political leaders had incentives to read it in a way that favored their institutional, political and ideological commitments.  Both Jefferson and Hamilton, for example, had personal reasons to read the Constitution as they did in the bank controversy.  They were not neutral readers. (c) Originalism does not claim that there is only one possible meaning of each constitutional phrase.  It recognizes ambiguity, and attempts to resolve ambiguity by finding the most likely meaning in the founding era.  The fact that people in the post-ratification era disagreed on meaning may show ambiguity, but it does not necessarily show irreducible ambiguity.  In the modern era lawyers routinely disagree over the meaning of phrases in statutes, contracts, wills, etc., but that does not mean judges cannot reach conclusions about their meaning.

Putting this all together, originalist scholarship routinely examines debates from the post-ratification era and concludes that one side had the better argument as to the text's meaning.  For example, Professor Prakash and I concluded that Hamilton had the stronger textual arguments in the Pacificus/Helvidius debates, at least on the question whether the President had some independent power in foreign affairs.  We also noted that Madison's contrary view was somewhat undermined because he had expressed a different view earlier, and that Hamilton's view was consistent with other key interpreters such as Washington and Jay.  We did not ignore the post-ratification debate, but we concluded there nonetheless was an originalist answer.  Similarly, I examined the Jay Treaty debates and concluded that the Federalist position (that the treaty power could reach topics not covered by Congress' enumerated powers) was the correct -- or at least the most plausible -- one; while Republican leaders disagreed, their arguments lacked foundation in the text, seemed logically incoherent, and appeared to be motivated by political opposition to the treaty.  (For what it's worth, I also think Hamilton was right on the bank controversy, though I acknowledge it's a closer question).

None of this means that we must today follow the Constitution's original meaning as to initiating war, presidential foreign affairs power, or the scope of the treaty power.  (All of the scholarship I've cited makes clear that that's a separate question).  But it's not helpful, in addressing that question, to pretend we cannot find original meaning.  Concededly, we can't always find it.  But sometimes, perhaps often, we can.  And the fact that the framers sometimes disagreed in the post-ratification era doesn't mean we can't.

This conclusion also leaves two important open questions.  The first is: for how many issues can we find a reasonably determinate original meaning?  If the answer is "some, but not many," then originalism may not have much practical significance. However, even if original meaning leaves many issues unresolved, that is not an argument for ignoring it as to issues it does resolve.  The second of these questions is: how should judges decide if original meaning does not resolve an issue?  That's a complicated question, but it's worth considering that the answer might be: they should leave the matter to the political branches.  That is, showing that original meaning can't provide answers in some cases does not mean that judges are thereby free to develop their own answers.

07/09/2018

John McGinnis et al.: The Legal Turn in Originalism
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law), Michael B. Rappaport (University of San Diego School of Law), Ilya Shapiro (Cato Institute), Kevin C. Walsh (University of Richmond - School of Law) and Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) have posted The Legal Turn in Originalism: A Discussion on SSRN.  Here is the abstract:

These five essays, which were originally published on the Library of Law and Liberty website, explore several themes involving the Legal Turn in Originlism – the trend toward using legal methods either to interpret or construct the Constitution. John McGinnis and Michael Rappaport’s initial essay argues that there has been a legal turn in recent originalist scholarship, exemplified by originalist scholars such as William Baude and Stephen Sachs, Jeffrey Pojanowski and Kevin Walsh, Randy Barnett and Evan Bernick, Jack Balkin, and by McGinnis and Rappaport’s own scholarship. Ilya Shapiro reacts to McGinnis and Rappaport’s initial essay, claiming that the Legal Turn is not very controversial since all originalists agree with the idea of treating the Constitution as a legal text. Kevin Walsh then explores the idea of the legal turn as it is developed in his own approach (coauthored with Pojanowski). Finally, Ilan Wurman expresses skepticism that the legal meaning of the Constitution is as important as McGinnis and Rappaport believe. McGinnis and Rappaport conclude the exchange with a response to their critics.

(Some of these essays were linked individually on this blog as they were posted, but it's great to have them all downloadable in one place.)

07/08/2018

Mitchell Gordon: Continuity, Discontinuity, and the Rights Retained by the People
Michael Ramsey

Mitchell Gordon (University of St. Thomas School of Law) has posted Getting to the Bottom of the Ninth: Continuity, Discontinuity, and the Rights Retained by the People (50 Indiana Law Review 421 (2017)) on SSRN.  Here is the abstract:

The Constitution’s first eight amendments expressly safeguard certain enumerated rights, and the Ninth Amendment instructs that the listing of some rights “shall not be construed to deny or disparage others retained by the people.” But the constitutional text says nothing about how such unenumerated rights are to be identified, evaluated, or enforced. Naturally this has made the Ninth Amendment difficult to apply, and the prevailing approach among courts and commentators has been to trivialize the amendment or ignore it completely. As a result, we have lost sight of its true subject and forgotten the question it was intended to answer.

Part I of this essay observes that most aspects of a new constitution can be classified as either continuous with the old order (maintaining something that already existed) or discontinuous (in the sense of ending a pre-existing institution or initiating something genuinely new). Whether the Ninth Amendment represents continuity or discontinuity, however, is not entirely clear – and this gets to the heart of what the Amendment was intended to do. We know that its author, James Madison, was responding to fears that a partial listing of rights might endanger other rights that were not listed; in the First Congress he proposed an amendment designed simply to clarify what enumeration did and did not do. Congress adopted the idea, but eliminated much of Madison’s proposed language, obscuring both the point of the amendment and the legal effect of enumeration.

Part II sorts the competing views, not according to how they define retained rights, but according to how they answer that question: Does enumeration actually change anything? Does it make any difference whether a right is enumerated? Those who think enumeration might make some difference I call differentialists; those who think it makes no difference at all I call non-differentialists. I subdivide differentialists into strict differentialists, who think enumeration makes ALL the difference (i.e., that rights not enumerated are not judicially enforceable), and moderate differentialists, who think enumeration matters to an extent but that enforceability should not turn entirely on enumeration per se. In Part III, I add a fourth group – I call them exoconstructionists –who interpret the Ninth Amendment not as an invitation to inquire into retained rights but as an instruction about how to construe other parts of the Constitution.

Part IV uses these concepts to examine an idea first suggested by Michael McConnell: that the Ninth Amendment is best understood from the standpoint of Lockean social compact theory. Under this reading, the “rights retained by the people” are simply the individual natural rights that the people did not relinquish as part of the original social compact. McConnell interprets the Ninth Amendment to mean that the enumeration of some rights in the written Constitution does not abrogate other rights that are not enumerated; those rights remain in force, but can be superseded by sufficiently explicit positive law. Finally, Part V observes that judicial discretion is at its lowest ebb when we are at one of the two extreme “poles” (i.e., non-differentialism and strict differentialism). The further we get from both poles, the more discretion the courts enjoy – not only to determine which unenumerated rights are judicially enforceable, but to draw conclusions about which narrative accounts of those rights are most plausible as a matter of historical fact.

(Via Larry Solum at Legal Theory Blog).

07/07/2018

Michael Stokes Paulsen on Originalism and Impeachment
Michael Ramsey

At Liberty Law Blog, Michael Stokes Paulsen: Constitutional Interpretation and the Impeachment Power.  To begin, a primer on original meaning originalism:

My methodology is one that is best described as original public meaning textualism: What is the objective meaning that the words and phrases of the document would have had to reasonable, and reasonably informed, speakers and readers of the English language, at the time of their adoption as part of the Constitution? I have described this methodology (which is not at all unique to me) at great length in other places. (Consider the articles herehere, and here, if interested.)

Briefly stated, the methodology is one that focuses on the (theoretical) objective meaning of the words of an authoritative written text. It is not the subjective “intentions,” or “understanding,” or “expectations” of any of the text’s (collective) authors or adopters that is itself authoritative – though such information might well supply valuable relevant evidence of the meaning of the words of the text. The search is for the meaning of the words and phrases that the framers and ratifiers of the Constitution wrote, and adopted, as part of the Constitution. That meaning is (theoretically) the objective meaning of the language thus written. Put colloquially:  It is not what the framers “had in mind” that counts, in the end. It is what they wrote down in words. The two things are often related, but they are distinct.

The methodology focuses on the original meaning of the words and phrases. This is essential to guard against creeping (or lurching) linguistic anachronism or, even worse, pure subjectivity. The Constitution’s provisions were adopted at particular points in time and reflected the meanings the words of those provisions had at that time and in that social and political context. To treat those words as legally authoritative means to accord them the meaning (or range of meaning) they had at the time they were adopted as authoritative.  That is part and parcel of written constitutionalism generally. Giving the Constitution its original meaning as an authoritative written text also requires that the words and phrases of the Constitution be understood in accordance with any backdrop understandings that would have come with such terms, at the time and in the social and political context in which they were adopted. If a word or phrase functioned as a specific legal or political term of art, and was known to function as such, then its legal meaning is the one that corresponds to that term-of-art meaning at the time, which is not necessarily its modern “literal” meaning.

This is a good summary of what I take to be the conventional description of modern originalism, which I sometimes call "Scalian originalism" because it's associated with then-Judge Scalia's famous 1986 speech and with his subsequent practice as Justice.  Because there seems to be recurring confusing on this point, I'll reiterate that this is NOT the same as "New Originalism," although it is indeed newer than the older form of originalism that focused on framers' intent.  New Originalism adds some additional points most notably including the idea of construction, which are not necessarily accepted by original meaning originalists.

Now on impeachment: 

Readers of the Constitution today can be misled badly by the general modern sense of the words “Crimes” and “Misdemeanors,” which might lead some to embrace anachronistic readings of the impeachment standard as limited to literal criminal-law offenses: felonies and misdemeanors. Under this reading method, the reader has to figure out to do with the word “high” as a supposed modifier and qualifier of the words “Crimes” and “Misdemeanors,” rather than as part of a composite term-of-art. The effort usually involves imputing some modern meaning to the word “high.”

But the word “crime” had a broader, more general sense at the time the Constitution was written than it does today, frequently being used to describe any serious wrongful act, whether technically illegal or not. Often the term was used in a strictly moral sense.  Similarly, the word “misdemeanor,” in eighteenth-century American English, was not limited to the meaning of a criminal-law offense with a lesser degree of seriousness or punishable by less than a year of imprisonment.  Instead, “misdemeanor” bore a broader meaning closer to “misbehaving” or “misdemeaning” – as in the sense of a person not demeaning himself or herself properly. . . 

Agreed.

07/06/2018

Craig Lerner: Originalism and the Common Law Infancy Defense
Michael Ramsey

Craig S. Lerner (George Mason University - Antonin Scalia Law School) has posted Originalism and the Common Law Infancy Defense (American University Law Review, Vol. 67, 2018) on SSRN.  Here is the abstract:

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted. With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791. Yet the common law infancy defense, as sketched by originalist judges, seems barbaric. It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment—even capital punishment—on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize. With respect to misdemeanors, the defense was more broadly applicable than is typical today. Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong. The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable. This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people. However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.

07/05/2018

Matthew Franck on Presidential Self-Pardons
Michael Ramsey

At Public Discourse, Matthew Franck: Presidential Self-Pardons, the Framers at Philadelphia, and the Work of Originalism.  It begins:

In the recent revival of debate over whether a president can pardon himself (a matter on which I weighed in at National Review last year), two authors have relied heavily on the purported significance of a moment during the Constitutional Convention of 1787, which—they argue—disposes of the question definitively in favor of a self-pardoning power.

The post then discusses a post by Nicholas Higgins, Locke and the Founders Agree: The President Can Pardon Himself, and the Michael McConnell post discussed here earlier on this blog.  Noting that both authors rely on a single exchange at the Convention, it continues:

But Higgins and McConnell are too sure of this reading of the event [the Convention exchange], and of its significance for our own interpretation of the Constitution. 

First, there is insufficient evidence, in these few lines, to warrant the conclusion that even the only two relevant speakers—Randolph and Wilson—were thinking about presidential self-pardon, even for a second. ...

Second, the debate on Randolph’s motion ranged over more ground than this question (if it touched on it at all, which there is reason to doubt) and the whole matter probably took up (at a generous estimate) no more than half an hour of the Convention’s time, with six members talking. ...

Far more persuasive is the account of law professor Brian Kalt, who wrote extensively on this question in 1996, and who says of the debate on Randolph’s motion—accurately—that “[t]he self-pardon was nowhere mentioned.” As for what we can infer from the Randolph-Wilson exchange, Kalt says there are three possibilities: that the potential of a self-pardon was just completely overlooked; that it crossed the minds of the framers present but was dismissed as clearly unthinkable and inconsistent with the constitutional principles on which they were acting; and that it came into their minds and was accepted by them as a valid potential use of the power, for which impeachment (which could result only in a “political” punishment of removal from office and disqualification for future service) was the only remedy.  

More importantly, though:

But there is another problem with the argument of Higgins and McConnell. That is that this is simply not how originalism should be done at all. Let us suppose that theirs is the best, most persuasive reading of this brief and rather diffuse discussion of the pardon power on the last working day of the Constitutional Convention. As the late Justice Scalia was fond of pointing out, the views of individual lawmakers in the midst of debate are not themselves the law we must interpret. Neither are the votes taken in a deliberative body rightly viewed as votes on anyone’s interpretation of the text under discussion. The text that they passed, not what they said about what they passed, is the law.  

And in conclusion:

Thinking through constitutional principles, considering the logic and context and relations of various provisions and institutions to one another, is what we must undertake today as we search for the Constitution’s original meaning. This entails far more than cherry-picking a passing moment in a complex, multi-faceted debate that was just coming to a close, a moment that is itself (as we’ve seen) at best “obscure and equivocal,” and declaring victory for one side on a contested question we consider important today but that the founding generation never explicitly discussed at all. No, that’s just not how our work is done at all. 

(Thanks to Michael Perry for the pointer.)

I think I agree, but I'd feel better if the author then applied this advice to develop a conclusion on self-pardons.  As regular readers know, I feel somewhat uncomfortable talking about methodological matters in the abstract.

07/04/2018

Scott Gerber on Originalism and the Declaration
Michael Ramsey

At The Daily Caller, Scott Gerber: Originalism and the Fourth of July.  From the introduction:

President Donald Trump has indicated that he is working hard to appoint “originalist” judges to the federal courts. He is correct to do so, especially because the alternative is for judges to act like legislators by reading their personal views into the Constitution and impose them on the rest of us. But as the United States celebrates its 242nd anniversary on July 4th, it is important to appreciate that there are two different types of “originalism” and that only one of the two truly honors who we are as a nation.

...

The[ ] dominant iterations of originalism can be fairly characterized as “conservative originalism”: an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are post-hoc rationalizations for preconceived political results.

Liberal originalism insists that conservative originalists mischaracterize the Constitution as establishing a majority-rule democracy, a mischaracterization that is also made by many constitutional theorists of progressive political views. Because of the Framers’ desire to avoid what Elbridge Gerry called the “excess of democracy,” they created a republican form of government, not a majority-rule democracy. And in that republican form of government, the judiciary is to play a central role: chief guardian of the unalienable rights of the American people, especially of individuals and minorities. Briefly put, liberal originalism employs a conservative methodology, but arrives at liberal results, as “liberal” is understood in the classic sense of seventeenth- and eighteenth- century Lockean political philosophy. “To secure these rights,” Thomas Jefferson proclaims in the Declaration of Independence, is the reason that “governments are instituted among men.” To secure unalienable rights is, therefore, why the Constitution was enacted, and to secure unalienable rights is how the Constitution should be interpreted. That is the “original intent” of the Founders.

SCOTUS Pick Set for July 9: Two Thoughts on Judge Kavanaugh [UPDATED]
Andrew Hyman

President Trump is aiming for July 9 to announce a U.S. Supreme Court nominee.  There are 25 known contenders, and you can find lots of info about each of them at a website I set up: www.tifis.org/Trump.html

The most recent scuttlebutt is that there are two main contenders, plus one dark horse.  The two main contenders and the dark horse are (allegedly) U.S. circuit judges Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge, respectively.  Did I mention that you can find info about each of them at www.tifis.org/Trump.html?

Now comes the delicate part of this blog post, because I want to briefly critique Judge Kavanaugh, who is supported by an "Army" of lawyers.  The following comments are a bit critical, but this should not be taken as opposition to Kavanaugh, because the main question should always be "Who is best?" rather than "Who is perfect?"

That said, I want to point now to two judicial opinions of his that I find concerning: Seven-Sky v. Holder (2011) which sheds light about how much of a textualist Judge Kavanaugh is (textualism, of course, is a leading form of originalism), and In Re Aiken County (2013) which illustrates how he deals with separation of powers and executive branch discretion as a matter of text and original meaning.  Let's briefly consider the two cases in that order.

The Seven-Sky case preceded the U.S. Supreme Court case upholding the ACA ("Obamacare").  In Seven-Sky, Kavanaugh dissented as to jurisdiction and therefore did not address the merits; he said the penalty for disobeying the individual mandate was a "tax" (or at least should be treated like a "tax"), and so the Anti-Injunction Act denied the courts jurisdiction.  The Supreme Court later unanimously disagreed, saying it was not a tax (or to be treated like a tax) for purposes of the Anti-Injunction Act.  Of course, one should not jump to the conclusion that the nine justices were correct while Kavanaugh was incorrect, but still this was a very big case that needs to be considered now.  

Kavanaugh dissented from Judge Silberman's opinion, which stated: "If penalties were equivalent to taxes for all purposes — including the application of the Anti-Injunction Act — the last sentence of section 6671 would be superfluous.  It is a hallowed maxim of statutory interpretation that we must give effect, if possible, to all words in a statute."  Judge Kavanaugh acknowledged that his interpretation made some words of the statute redundant, but he correctly pointed out that sometimes Congress speaks redundantly.  Interested readers can judge for themselves whether Kavanaugh made much of an effort to avoid a redundant  interpretation, and whether Silberman and the nine justices tried too hard to avoid such an interpretation.

Now on to In Re Aiken County.  This case dealt with the scope of the Executive's authority to disregard federal statutes.  A few weeks later, his opinion occasioned much discussion here at this blog (see Mike Ramsey on 08/16/2013 and 08/18/2013, Mike Rappaport on 08/20/2013, and me on 09/13/2013).  The following year, Kavanaugh elaborated on his view in Aiken that a president can decline to execute laws he does not like, by exercising prosecutorial discretion as to private parties. 

It is widely accepted that prosecutorial discretion has several facets including these: (1) presidents can exercise prosecutorial discretion as necessary due to limited prosecutorial resources provided by Congress; (2) presidents can also exercise prosecutorial discretion to not enforce a statute when they think the statute is unconstitutional; and (3) presidents can also exercise prosecutorial discretion on a case-by-case basis as a corollary to the pardon power provided that the offense has already been committed (i.e. provided that the president does not effectively give a license to go commit future offenses).  It's this last prong that Judge Kavanaugh would expand.  He wrote: “The President may decline to prosecute or may pardon because of the President’s own constitutional concerns about a law <i>or</i> because of policy objections to the law, among other reasons”.  He advocated “the power to decline to prosecute a violator of a law simply because of the President’s belief that the law is oppressive.”  

This doctrine supported by Judge Kavanaugh would mark a very significant change in the law (<i>see generally</i> comments by Michael McConnell, Michael Dorf, John Yoo, Charles Krauthammer as well as George Washington (saying "it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to" that duty) and Thomas Jefferson (saying the Sedition Act was not merely unwise or oppressive but unconstitutional)).  Therefore, it is well worth considering In Re Aiken County during this turbulent SCOTUS nomination season.

MICHAEL RAMSEY adds:  For other views of Judge Kavanaugh by two of his former clerks, see here by Jennifer Mascott (Georgetown) at Notice & Comment blog, and here by Sarah Pitlyk at NRO. (Via How Appealing).

FURTHER UPDATE: David Lat at Above the Law says it will be Kavanaugh or Judge Raymond Kethledge: The Supreme Court Sweepstakes: The Latest State Of Play — And The Case For Judge Kavanaugh.

UPDATE/CORRECTION (by Andrew Hyman) (July 4): Due to a glitch, the sixth paragraph above (the one that begins "Kavanaugh dissented from Judge Silberman's opinion ....") should be replaced with this: "

The opinion of Chief Justice Roberts and the dissent of Justice Scalia agreed with each other on this point, and Scalia incisively said: 'That the penalty is to be ‘assessed and collected in the same manner as taxes’ refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act.'  Scalia’s observation about the plain text in turn refutes Judge Kavanaugh’s assertion that, 'If we are to give effect to the plain text of the statute, the Anti-Injunction Act must bar pre-enforcement suits challenging the Affordable Care Act’s penalties for failure to have health insurance.'

07/03/2018

Tuan Samahon: Characterizing Power for Separation-of-Powers Purposes
Michael Ramsey

Tuan Samahon (Villanova University - School of Law) has posted Characterizing Power for Separation-of-Powers Purposes (University of Richmond Law Review, Vol. 52, 2018) on SSRN.  Here is the abstract:

The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power becomes an important threshold inquiry in separation-of-powers disputes. This symposium Essay canvasses four competing judicial approaches to the characterization of power: functional inquiry; identity-of-the-officer formalism; historical induction; and skepticism. In this area, Justice Scalia's formalism has been particularly influential but created considerable tension with original public meaning originalism. This Essay explains how Scalia's formalism led to his embrace of delegation and concludes by cautioning against judicial oversimplification in the characterization inquiry.

07/02/2018

Saul Cornell’s Unfair Criticism of Originalists and Mike Ramsey
Mike Rappaport

Originalist critic Saul Cornell has written a new blog post attacking originalism. Cornell’s principal claim in this piece is that originalists misunderstand anti-originalist criticisms of originalism and his focus is my friend and colleague, Mike Ramsey. While Ramsey has ably defended himself, I wanted to discuss a couple of claims that Cornell makes: his claim that “Originalist ‘scholarship’ is often indistinguishable from an amicus brief” and his suggestion that originalist scholarship by right wing scholars is basically attempting to promote a right wing agenda, including one exalting presidential power.

Cornell’s amicus brief claim is similar to the frequent assertion made by historians that originalist scholars rely on so called “law office history.” If the repetition of a claim is proof of the claim, then these historians would have a strong case. But alas they do not.

This is not to say that result oriented history is never relied upon. There are lawyers and poor scholars who may be subject to this criticism, just as there are historians who are. The question is whether the leading scholars are subject to the criticism.

As a way of responding to Cornell’s claim about amicus briefs, I thought I would use Mike Ramsey’s own scholarship to show that law professors do important originalist scholarship and that this scholarship does not always promote a right wing agenda or the powers of the President.

For many years, scholars claimed that the Congress, but not the President, could initiate wars. But those scholars could not explain how the Constitution’s language – which gave Congress only the power to “declare war” – achieved that result.

In this setting, Berkeley Law Professor John Yoo wrote an article that argued that the Constitution’s original meaning allowed the President to initiate wars based on his executive power. Yoo argued that Congress’s power to declare war merely meant that it had the power to issue a declaration of war. Since many wars at the time of the Constitution had not been declared, the President could initiate undeclared wars. While Yoo’s argument seemed to be inconsistent with the practice of the political branches in the early years of the Constitution, it did seem to account for the constitutional text.

But then in a great article, Mike Ramsey explained how the Congress’s power to declare war prevented the President from initiating wars. Ramsey showed that at the time of the Constitution people believed that someone could declare wars by “words or action.” Thus, if a President ordered an attack on another country, he would be declaring war by action. But the Constitution gave only Congress the power to declare war. Ramsey thus showed how the constitutional text fit with what we otherwise know about the history.

What is more, Ramsey’s article did not defend a “conservative” position on executive power, but a “liberal” one, denying the President the power to initiate a war. (Put aside that a “conservative” position on initiating wars has been followed by a host of Democratic Presidents such as Clinton and Obama.)

This is an example of great originalist scholarship – a pathbreaking enhancement of our understanding of the meaning of the Constitution, which has been confirmed and built upon by other scholarship.  Yet, from Cornell’s various writings, one would be shocked to discover that originalist scholarship of this type is being produced, let alone by law professor Mike Ramsey.

Originalism and Presidential Immigration Power
Michael McConnell

[Editor's note: Michael McConnell writes: 

I was struck by the post on the Originalism Blog regarding the absence of originalist arguments in Trump v. Hawaii, and especially by the quotation from the estimable Justice Thomas, to the effect that "[T]he President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14)." 
 
I wanted to share with your readers a draft I am working on about this issue, as part of my unfinished study of Article II entitled The President Who Would Not Be King. If any readers have substantive comments or suggestions, I would be happy to consider them.
 
Professor McConnell's draft is below.  Thanks to him for giving us this preview.]
 
Excerpt from Michael McConnell, The President Who Would Not Be King (work in progress)

4. Aliens

 The status of natural-born subject under British law (the equivalent of “citizen” under the Constitution) could be attained only by birth or by statute, but the king had the prerogative of converting aliens into “denizens,” who enjoyed many of the rights and privileges of natural-born subjects. Parliament also enjoyed the power of denization, but rarely exercised it. [1] Only Parliament had the full power of naturalization, which gives the former alien all the civil (but not political) rights of a natural-born subject.[2] Under the Act of Settlement of 1701, foreign-born persons were barred from political office.[3] The most important rights at stake for naturalized subjects were to own land and to sue for its protection.

Eighteenth century Americans cared deeply about immigration and naturalization law, but their concern was mostly directed toward encouraging immigration, not discouraging it. The focus was on naturalization rather than on travel or entry, because a liberal naturalization policy was an inducement to immigration. Until 1773, colonial legislatures could and often did pass laws naturalizing foreign settlers on more liberal terms than in Britain. Each colony had its own policy, reflecting social, economic, and especially religious differences. These laws, which were subject to Privy Council review, entitled the beneficiaries to the rights of subjects within the colony (most importantly, the right to own land), but persons naturalized under colonial law remained aliens outside of that colony.[4] In 1773, colonial governors were forbidden to enact any new colonial naturalization laws.[5] The Declaration of Independence, in response, complained that the king “has endeavored to prevent the Population of these States, for that purpose obstructing the Laws for Naturalization of foreigners; refusing to pass others to encourage their migration hither.”[6] Some colonies attempted to pass laws to counter the British policy of transporting felons and paupers to the colonies, viewing this as a matter of community self-protection against potentially dangerous entrants, but the mother country generally disallowed these laws.[7]

The drafters of the Constitution vested all authority over naturalization in Congress, apparently leaving it to Congress to decide about any grades or classes of citizenship akin to denizenship. As Madison stated, “the Natl. Legislre. is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence as conditions of enjoying different privileges of Citizenship.”[8] In a relic of the limitation on political rights imposed by the Act of Settlement, the Constitution bars naturalized citizens from serving in the House of Representatives for seven years after attaining citizenship, from serving in the Senate for nine years, and from ever serving as President.[9]

Power over the entry and removal of aliens was less clear. Blackstone classified the power over entry and removal of aliens as among the “principal prerogatives of the king respecting this nation’s intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people.”[10] He inferred the existence of this royal prerogative from the foreign affairs power. Without his usual citation of authority, Blackstone wrote that foreigners from countries at peace with Britain who come to the country “spontaneously” and “behave peaceably” are “under the king’s protection, though liable to be sent home whenever the king sees occasion.”[11] Foreigners from countries “at war with us” are barred from entry without “safe conduct” from the king or certain other functionaries.[12] The King thus had plenary authority over both entry and removal, according to Blackstone. As the great commentator noted, Magna Charta made an exception to this royal authority for the protection of merchants: merchants had the right to enter, tarry, do business, and depart, without action by the Crown.[13] Montesquieu joked “that the English have made the protection of foreign merchants one of the articles of their national liberty.”[14]

Blackstone’s view was not uniformly accepted. The last time a monarch had exercised the prerogative to expel a class of foreigners was in 1575, under Elizabeth, and according to most historians “this branch of the prerogative . . . ha[d] been allowed to fall into desuetude, and may be regarded as no longer existing.”[15] It did not play a significant role in the controversies over prerogative under the Stuarts. In 1792, faced with thousands of refugees from revolutionary France, many of whom might be “of a suspicious description, and very likely either to do mischief of their own accord, or to be fit tools of those who may be desirous of creating confusion”[16] – does that sound familiar? – the British government investigated what measures it could undertake to bar their entry, and in particular, whether the Crown had authority to exclude or expel classes of foreigners without parliamentary sanction.[17] The government obtained a legal opinion, which concluded, contrary to Blackstone, that although the King could exclude or expel subjects of a nation at war with Britain (called “alien enemies”), he had no such authority with respect to subjects of nations at peace with Britain (called “alien friends”). Even Crown lawyers concluded that any general power the King once had over the subject had been so little used that it would be a problematic basis for legal action, and urged enactment of legislation.[18] Accordingly, Parliament passed the Aliens Act of 1793, giving the king power “by proclamation” to order any alien to leave the realm, and regulating entry.[19] Five years later, the U. S. Congress would enact its own Alien Acts, called the “Alien Enemies Act” and the “Alien Friends Act,” granting remarkably similar powers to President John Adams.[20] No one, to my knowledge, even suggested that Adams had this power as a matter of inherent presidential authority. This suggests that the founders did not share Blackstone’s more capacious interpretation of executive authority on this point.

Neither the Committee of Detail nor the full Convention addressed the power to exclude or expel aliens. In light of the apparent method of the Committee to allocate all prerogative powers of the British monarch to Congress or the President, or to deny them to the federal government altogether, this failure to address the power suggests that Rutledge and Wilson, well versed as they were in British law, may have agreed with the 1792 legal opinion that these were not prerogative powers. There was some question even as to whether Congress or the states had this unmentioned power. Jefferson, in his draft Kentucky Resolutions of 1798, maintained that because no power over “alien friends” was delegated to the United States, persons of that description were under the “jurisdiction and protection” of the states where they were present.[21] Evidently that was a minority position, at least at the national level, but it suggests a lack of consensus. After the expiration of the Alien Acts in 1801, Congress did not again pass legislation governing the entry or expulsion of aliens until the Immigration Act of 1882. For most of the first century of the Republic, states rather than the federal government regulated immigration, while Congress had exclusive authority over naturalization.

It follows that any power the federal government has over the entry and expulsion of aliens must be derived from another enumerated power – most plausibly, the power to regulate commerce with foreign nations – and the extent of that power is demarcated by statute, leaving the remainder to the states. Far from being an exclusive national power, the Congress’s immigration power is merely incidental to another enumerated power. Moreover, any power the President has over the subject is strictly a product of congressional statute. Blackstone’s view that this power is part and parcel of the foreign affairs power, and therefore inherently both federal and executive in nature, was not accepted by the founders.

Under current law, the President has power “by proclamation” – a clear echo of these older statutes – to suspend the entry of “any class of aliens” into the United States whose entry he “finds . . . would be detrimental to the interests of the United States.”[22] This is an example of a formerly prerogative power, first assigned to the legislative branch and later redelegated back to the executive in plenary form. As this is being written, litigation is underway to test whether the courts have authority to review the President’s findings contained in a presidential proclamation under this statute.

[1] 1 Blackstone, supra note 40, at *272, *374; H.S.Q. Henriques, The Law of Aliens and Naturalization 17-19 (1906).

[2] Id.

[3] Act of Settlement (1701), section ___.

[4] Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America 24-26, 33-34 (2006); Ann Dummett & Andrew Nicol, Subjects, Citizens, Aliens, and Others: Nationality and Immigration Law 76 (1990).

[5] Zolberg, at 25.

[6] Declaration of Independence, cite.

[7] Zolberg, at 26, 40-43.

[8] 2 Farrand, at 235.

[9] U.S. Const, Art. I, § 2, cl.2 (House); id. at § 3, cl. 3 (Senate); Art. II, § 1, cl. 5 (President).

[10] 1 Blackstone, supra note 40, at *261.

[11] Id. at *259-260.

[12] Id.

[13] Blackstone, supra, at *260-261; see Hale’s Prerogatives, supra, at 296.

[14] Montesquieu, Spirit of the Laws 20, 13, quoted in Blackstone, supra, at *260-261.

[15] H.S.Q. Henriques, The Law of Aliens and Naturalization 11 (1906).

[16] Letter from J.B. Burgess to Lord Grenville (Sept. 14, 1792), quoted in J.R. Dinwiddy, The Use of the Crown’s Power of Deportation Under the Aliens Act, 1793-1826, 41 Historical Research 193, 193 (1968).

[17] Dinwiddy, supra, at 193.

[18] Id.

[19] Id. at 194.

[20] Alien Enemies Act, 3 Stat. 577 (July 6, 1798); Alien Friends Act, 1 Stat. 570 (June 25, 1798).

[21] Kentucky Resolutions of 1798, cite.

[22] Immigration and Nationality Act, §212(f).

07/01/2018

Michael Dorf on Originalism and NIFLA v. Becerra
Michael Ramsey

At Dorf on Law, Michael Dorf: SCOTUS Crisis Pregnancy Center Case Shows Originalist Justices Are Originalist Except When They're Not.

[The Supreme Court's] decision in National Institute of Family Life Advocates (NIFLA) v. Becerra ... is telling in at least one other respect. Justice Thomas is often and appropriately held up as the most originalist justice, at least as evaluated by his professed commitments. And yet his [majority] opinion contains not a single word about the original meaning of the First Amendment or the Fourteenth Amendment (which makes the First applicable to the states).

...

Justice Thomas's opinion is thoroughly doctrinal. He makes no effort whatsoever to reconcile the existing doctrine or his application of it with the original meaning of the First Amendment or the Fourteenth Amendment.

That's odd. In numerous other cases, including free speech cases, Justice Thomas has refused to apply existing doctrine on the ground that it was inconsistent with the original understanding. For example, he dissented from the Court's invalidation of a law forbidding minors from purchasing or renting violent video games on the ground that the ruling did "not comport with the original public understanding of the First Amendment."  In other cases in which Justice Thomas has gone along with precedents that he regarded as inconsistent with the original understanding, he has frequently written separately to say that he was only doing so because the parties had not briefed and argued the question whether to overrule existing precedent on originalist grounds. So why not in NIFLA?

I hadn't seen Professor Dorf's post when I wrote this post complaining about the disappointing lack of originalist analysis last week -- I should have included NIFLA v. Becerra as well.

But, does Professor Dorf (a nonoriginalist) have any ground for complaining about this?  As Saul Cornell has recently explained to us, nonoriginalism (in some forms, anyway) views textualist/historical analysis as just one "modality" of constitutional interpretation.  Why can't Justice Thomas shift modalities now and then?  Isn't that exactly what nonoriginalists want him to do? It's originalists that should be disappointed, not nonoriginalists.

From later in the post, I very much like Professor Dorf's description of Justice Kennedy's concurrence:

Justice Kennedy's invocation of the Founders here is not originalism in any sense that distinguishes originalism from any other methodology. It is, rather, what I once called "heroic originalism," in which the author of an opinion associates some idea he or she favors with the prestige of the founders but makes no serious effort to connect the contemporary idea with any prior linguistic or practical understanding. The Brandeis concurrence in Whitney v. California is perhaps the most famous example of this genre. Heroic originalism invokes the original understanding of the text in the most general terms, disguising (for anyone not paying close attention) the effort to fill in the blanks with a contemporary view.

06/30/2018

Aditya Bamzai on Ortiz v. United States
Michael Ramsey

At Lawfare, Aditya Bamzai (University of Virginia Law School): Reflections on Ortiz and the Structural Separation of Powers.  From the introduction: 

On [June 22], the Supreme Court released its opinion in Ortiz v. United States, a case in which I participated at oral argument as an amicus curiae in January of this year. In relevant part, Ortiz addressed the question whether the Supreme Court has Article III jurisdiction to issue writs of certiorari directly to the Court of Appeals for the Armed Forces (CAAF), an adjudicatory body that sits atop the military justice system for service members. Though called a court by statute, the CAAF (as everyone in the case agreed) is not an Article III tribunal with the Constitution’s life-tenure and salary protections for judges. Instead, it is housed within the executive branch and subject to presidential control—for example, through a provision allowing the president to remove its members for cause. The constitutional question in the case depended on whether these attributes have any impact on the Supreme Court’s ability to assert jurisdiction over, and to supervise, the CAAF directly, as it would any state court or any of the lower federal courts of appeals. I argued that the court lacked Article III jurisdiction. On Friday, the court held that it had jurisdiction. Justice Elena Kagan wrote the court’s opinion, Justice Clarence Thomas a concurring opinion and Justice Samuel Alito a dissent.

As an obscure (not to mention pre-tenure) professor, I was grateful, to say the least, that the justices gave two hoots about what I had to say on the subject of Article III. Now that the opinions are out, I’m doubly grateful that my argument drew reactions from three justices I deeply respect and admire. All that said, I disagree with the Supreme Court’s opinion. In the spirit of a full and frank exchange of ideas, I thought I would briefly explain why.

ALSO:  Professor Bamzai has posted The Attorney General and Early Appointments Clause Practice (93 Notre Dame Law Review 1501 (2018)) on SSRN.  Here is the abstract:

Among the structural provisions of the Constitution are a series of rules specifying the method by which the federal government will be staffed. One of those rules, contained in what is known as the Appointments Clause, establishes the procedures for appointing “all . . . Officers of the United States, whose Appointments are not . . . otherwise provided for” in the Constitution—requiring one mechanism (presidential appointment and senate confirmation) for “principal” officers and permitting a set of alternatives (appointment by the “President alone,” the “Courts of Law,” or the “Heads of Departments”) for “officers” who are considered “inferior.” The Clause has traditionally been understood to require these appointment procedures for a subset of federal government employees who meet some constitutional threshold that establishes their status as “officers,” rather than for all federal employees. In light of that understanding, the Clause naturally raises a question about the precise boundary between constitutional “officers” and other federal “employees”—a question that has recently been the subject of substantial litigation and extensive treatment within the executive branch and the scholarly literature.

The caselaw and the scholarly debate, however, have overlooked a significant source of early interpretations of the Clause: opinions construing the Clause written by the Attorneys General of the United States during the nation’s first century. Ever since the Judiciary Act of 1789, the Attorney General has been authorized “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States.” Using this authority, several Attorneys General opined on the Clause’s meaning. This Article examines their heretofore-neglected opinions, specifically addressing the opinions’ treatment of the constitutional status of the “deputies” of “officers.”

06/29/2018

Not Much Originalism this Week from the Supreme Court
Michael Ramsey

In contrast to last week, this week was a disappointing one for Supreme Court originalism.  First, in Trump v. Hawaii, Chief Justice Roberts' majority opinion upholding the constitutionality of the President's travel ban relied on the rational basis test.  Though it may reach the right result here, the rational basis test is (as various originalist scholars have argued) is a Court invention.  And the Court's strongest originalists didn't add much in concurrence -- just this from Justice Thomas (who went on to complain about nationwide injunctions):

[T]he President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14).

If Justice Thomas means by this that President's "executive Power" in article II, Section 1 includes the power to exclude aliens, I think there may be an originalist case for it (though I'm not sure why this would override Bill-of-Rights protections). But Knauff does not develop a constitutional argument; instead it relies on powers of sovereignty, which suggests the extraconstitutional theory of foreign affairs power in the Curtiss-Wright case and which does not have a sound originalist foundation.  Thomas' extensive originalist dissent in Dimaya mostly addresses a separate issue -- whether immigration statutes are limited by the due process clause; it says little about the President's independent power.

Second, in Janus v. NFSCME, Justice Alito's majority opinion -- finding compelled public sector union dues unconstitutional -- had this rather thin originalist analysis:

The most surprising of these new arguments is the Union respondent’s originalist defense of Abood [the case overruled in Janus]. According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees. Brief for Union Respondent 2–3, 17–20.

As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have “no [free speech] rights.” ...

Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. See Ex parte Curtis, 106 U. S. 371, 372–373 (1882). The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using “‘contemptuous or disrespectful words against the President’” and other officials, and an 1801 directive limiting electioneering by top government employees. Brief for Union Respondent 3. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while recognizing that government employees possess First Amendment rights. ... 

...

The Union has also failed to show that, even if public employees enjoyed free speech rights, the First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who
framed and ratified the Bill of Rights. Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “‘sinful and tyrannical,’” supra, at 9, and others expressed similar views.

In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment.

This analysis seems to put the burden on the government to show support from the original understanding, without explaining why the burden should be allocated this way.  Also it does not really grapple much with what I think is the core originalist question in the case, namely whether forced contributions to private entities that engage in expressive activities is different from forced contributions to the government itself (where the government engages in some expressive activities).  None of the other Justices in the majority concurred to offer additional analysis.

(Of course, Justice Kennedy's retirement may have some originalist implications...)

06/28/2018

The Problems With Declaring Procedurally Valid Constitutional Amendments to be Unconstitutional
Mike Rappaport

In a recent post, I discussed the movement in much of the world to declare constitutional amendments that are otherwise procedurally valid to be unconstitutional on the ground that they violate implicit or extra constitutional norms. Here I want to discuss why, in the American context and perhaps in other countries, that is such a bad idea.

In the American context, declaring an amendment that is otherwise valid – such as an amendment banning flag burning or overturning Citizens United’s First Amendment protections for corporations – to be unconstitutional would be extremely problematic. If the Supreme Court made such a declaration, an amendment that had passed the very strict constitutional amendment process – and therefore was supported by a significant consensus of the American people – would have been blocked by the extra-constitutional action of the Court. There would be no justification for such action and it is likely to be harmful, since the constitutional amendment process is a better judge of what constitutional provisions should exist than the Court.

But declaring some constitutional amendments to be unconstitutional would also be problematic because it would further obstruct the constitutional amendment process. The reason that the constitutional amendment process no longer works in America – there has not been a new constitutional amendment enacted since the 26th Amendment in 1971* – is largely the fault of nonoriginalism, for several reasons. First, a constitutional amendment may take a long time to pass, because it requires a consensus of the American people to enact it. But such a consensus may take a long time to develop. If a nonoriginalist Supreme Court updates the constitution through “interpretation” every time it deems there to be a significant problem with the Constitution, there will never be an opportunity for a consensus to form and a constitutional amendment to pass.

Second, a nonoriginalist Supreme Court cannot be trusted to enforce the constitutional amendments that are written. They will ignore the original meaning and enforce a different meaning than the one enacted.  This means that the incentive to pass a constitutional amendment is greatly reduced by nonoriginalism.

In my view, these two reasons explain why the Equal Rights Amendment, which seemed to have so much appeal, was not able to secure ratification.

Declaring constitutional amendments unconstitutional for violating extra-constitutional norms would put a further (perhaps) redundant nail in the coffin of constitutional amendments. It would further reduce the incentives of the country to pursue constitutional amendments with which the Supreme Court disagrees, because there would now be a chance – perhaps a significant chance – that the Supreme Court would declare them unconstitutional. Why put in the enormous effort to pass an amendment, when it is better to try to pack the court?

Happily, there is, at present, little chance that the Supreme Court would declare a validly passed constitutional amendment unconstitutional based on extra-constitutional norms. But it is significant that this occurs throughout the world. For many of the countries, this arrangement may be as problematic as it would be in the United States. And if nonoriginalism makes further progress in the United States, it is quite possible that the Court might one day decide to take this type of action.

* The 27th Amendment was first proposed in 1789 and therefore does not really count.

Mark Pulliam: Unleashing the "Least Dangerous" Branch
Michael Ramsey

In the Texas Review of Law and Politics, Mark Pulliam: Unleashing the "Least Dangerous" BRanch: Quis Custodiet Ipsos Custodes?  From the introduction (footnotes omitted):

In recent years, a schism has developed on the Right between libertarian and conservative legal scholars regarding the role courts should play in conducting judicial review of laws challenged as unconstitutional. Many libertarians have coined the term “judicial engagement” to describe the heightened scrutiny they advocate. Many conservatives, in contrast, embrace a more limited approach to judicial review: the traditional doctrine of “judicial restraint” espoused by Robert Bork and Justice Antonin Scalia, among others. These phrases and labelstend to obscure the real issue, which is, “What role did the Framers envision for the federal judiciary in our system of government?” Or, more fundamentally, “Who determines public policy in our constitutional republic?”

...

The theory of judicial engagement ultimately rests on the premise that ratification of the Constitution and the Bill of Rights (especially the Ninth Amendment) left individuals with all their “natural rights,” except those expressly delegated to the federal government, and that these unenumerated rights enjoy full constitutional status. The Bill of Rights is therefore not an exclusive enumeration of rights; individuals inherently possess all rights—whether enumerated or not—unless specifically surrendered to the federal government in the Constitution. Then, with the ratification of the Fourteenth Amendment in 1868, all of the rights embodied in the Constitution, including “unenumerated rights,” became judicially enforceable against the states. Accordingly, any state or federal law that impinges on individuals’ “natural” (or unenumerated) rights is presumptively invalid. Federal courts should strike down such laws if the government cannot justify those laws under a standard of review
closer to strict scrutiny than the rational-basis test.

...

Judicial engagement purports to be an “originalist” theory, meaning that it is supposedly consistent with the original public meaning of the Constitution. I strongly disagree. Judicial engagement is faux originalism. The theory of judicial engagement is unsound as a matter of history and contrary to the original understanding of the Framers. Moreover, it is flawed in theory and practically unworkable. Critics have accused
judicial engagement of being an invitation for libertarian judicial activism, but given the overwhelmingly liberal orientation of the legal academy, the organized bar, and the federal courts, the theory will likely just encourage more mischief by progressive judges seeking to impose their personal predilections on the polity—continuing (or accelerating) a trend that began in the 1960s with the notorious activism of the Warren Court.

(Via Misrule of Law).

06/27/2018

Corpus Linguistics Arrives At the Supreme Court
James A. Heilpern

[Editor's note:  For this guest post we welcome James Heilpern, Law & Corpus Linguistics Fellow at the J. Reuben Clark Law School, Brigham Young University.]

As Mike Rappaport explained in a previous post, “corpus linguistics is a part of linguistics which uses databases and sophisticated software to study the ‘real life’ use of language.” In 2011, Justice Thomas Lee of the Utah Supreme Court became the first judge in the country to employ this methodology in a judicial opinion. Although a number of judges around the country have followed suit, thus far all of the opinions citing corpus data have focused on statutory or trademark disputes. That changed last week when Justice Thomas issued not one, but two opinions influenced by corpus linguistics, marking a historic step forward for proponents of data-driven originalism.

First, on Thursday the Court released its opinion in Lucia v. SEC, declaring that administrative law judges were “officers” subject to the Appointments Clause of the U.S. Constitution. The 7-2 majority―authored by Justice Kagan―reiterated the two prong test articulated in past case law for determining whether a federal official is an officer or mere employee: (1) is the position “continuing and permanent” and (2) does the official “exercise significant authority pursuant to the laws of the United States.”  If the answer to both questions is yes, then the official is an “Officer of the United States” and must be appointed by the President, the Courts, or a Department Head. The majority recognized that the second prong, in particular, was rather vague and subject to various “glosses” but declined to “refine or enhance the test.” Instead, they found Lucia to be virtually indistinguishable from Freytag v. Commissioner, 501 U.S. 868 (1991), where the Court held that Special Tax Judges were subject to the Appointments Clause.

In his concurring opinion, Justice Thomas (joined by Justice Gorsuch) explained that he felt the Court should have provided more guidance for future cases: “While precedents like Freytag discuss what is sufficient to make someone an officer of the United States, our precedents have never clearly defined what is necessary.” He then dove into an analysis of “the original public meaning of ‘Officers of the United States.’” Although he did not explicitly cite corpus data, he cited Jennifer Mascott’s recent Stanford Law Review article four times which did, endorsing the conclusion that “[t]o the Founders, this term encompassed all federal civil officials with responsibility for an ongoing statutory duty.”

This tepid reliance on corpus data in a Supreme Court opinion was considered a major victory in its own right for proponents of data-driven originalism. But the following day, Justice Thomas took it a step further and cited corpus linguistics directly in his dissent in Carpenter v. United States. Carpenter asked whether the Fourth Amendment prevented law enforcement officials from obtaining (without a warrant) personal location information (i.e. GPS coordinates) stored by third-party cell phone providers. A 5-4 majority―authored by the Chief and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan―concluded that it did because Carpenter had a “reasonable expectation of privacy” to his physical location.

Justice Thomas dissented on originalist ground, taking onus with the Court’s line of cases protecting a person’s “reasonable expectation of privacy”―as first articulated in Justice Harlan’s concurrence in Katz. As Justice Thomas explained, “[t]he most glaring problem with this test is that it has ‘no plausible foundation in the text of the Fourth Amendment’” and thus “distorts the original meaning of ‘search’―the word in the Fourth Amendment that it purports to define.” To prove this point, he cites definitions for the word “search” from a number of historical dictionaries and notes that “[t]he phrase ‘expectation(s) of privacy” does not appear in the pre-Katz federal or state case reporters, the papers of prominent Founders, early congressional documents and debates, collections of early American English texts, or early American newspapers.” As evidence, he cites six different electronic databases containing documents contemporaneous (or nearly contemporaneous) to the Constitution: Founders Online, the Library of Congress’s Century of Lawmaking for a New Nation; BYU’s Corpus of Historical American English (COHA) and American Google Books corpus; BYU Law’s new Corpus of Founding Era American English (COFEA); and Readex’s database of Early American Newspapers. It is worth noting that this evidence was not cited by any of the parties or amici, meaning that Justice Thomas―like his former clerk Justice Lee of Utah―engaged in corpus analysis sua sponte![1] That said, it is difficult to miss the fact that three of the databases―Founders Online, COFEA, and Readex―were cited in Mascott’s Stanford article that formed the basis of his Lucia opinion.

* *  *

Although last week marked the first time a Justice was willing to consider corpus data to answer a constitutional question, at least two other Justices have shown a willingness to consider (and perhaps seek out on their own) data drawn from electronic databases in the past. Clear back in 1997, Justice Breyer performed a corpus-like search of “computerized newspaper databases”  in Muscarello v. United States to help identify the ordinary meaning of the phrase “carry a firearm” as used in 18 U.S.C. § 924(c)(l). Then during the oral argument of FCC v. AT&T in 2011, Justice Ginsburg favorably referenced[2] corpus data provided to the court in an amicus brief submitted by the Project on Government Oversight. Although Chief Justice Roberts eventual opinion did not explicitly cite corpus linguistics, its reasoning tracked that of the brief Justice Ginsburg cited.  By my count that makes at least five justices[3]―Thomas, Gorsuch, Roberts, Ginsburg, and Breyer―showing some openness to such linguistic data, and at least two willing to engage in such research sua sponte. Litigators should take note and hasten to oblige.

 

[1] Michael Varco did cite Founders Online in his amicus brief, but did not engage in anything like corpus linguistics.

[2] See Transcript of Oral Argument in No. 09-1279 at 37

[3] Maybe six―Justice Kennedy joined Justice Breyer’s majority opinion in Muscarello.

Richard Primus: Enumerated Powers and the Bank of the United States
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted 'The Essential Characteristic': Enumerated Powers and the Bank of the United States (Michigan Law Review, forthcoming) on SSRN.  Here is the abstract:

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. The idea that that proposition has always been fundamental is reinforced by a conventional understanding of several episodes in constitutional history. But reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been fundamental, and agreed upon, from the beginning. But in 1791, Members of the First Congress disagreed about whether Congress needed to point to some specific enumerated power in order to create the Bank. Moreover, Madison’s enumerated-powers argument against the Bank seems to have involved two rethinkings of Congress’s enumerated powers, one about the importance of enumeration in general and one about the enumeration’s specific application to the Bank. At the general level, Madison in the Bank debate elevated the supposed importance of the enumerated-powers framework: in 1787 he had been skeptical that enumerating congressional powers could be valuable, but in the Bank debate he described the enumerated-powers framework as essential to the Constitution. At the particular level, Madison’s enumerated-powers argument against the Bank seems to have been an act of last-minute creativity in which he took constitutional objections which sounded naturally in the register of affirmative prohibitions, but which the Constitution’s text did not clearly support, and gave them a textual home by translating them into the register of enumerated powers. Madison’s move may have set a paradigm for enumerated-powers arguments at later moments in constitutional history: subsequent enumerated-powers arguments down to those against the Affordable Care Act might be best understood as translations of constitutional objections best expressed in terms of affirmative prohibitions, forced into the register of enumerated powers because the relevant prohibitions are not found in the Constitution.

Professor Primus presented an earlier version of this paper at the originalist works-in-progress conference in San Diego in February, where it inspired spirited debate.

06/26/2018

Robert Natelson on the Meaning of "High ... Misdemeanors"
Michael Ramsey

In the Federalist Society Review, Robert G. Natelson (Independence Institute): Impeachment: The Constitution’s Fiduciary Meaning of “High . . . Misdemeanors”. Here is the introduction (footnotes omitted): 

The Constitution provides expressly for three methods by which federal government officials can be removed from office: (1) elected officials may be defeated for re-election, (2) members of Congress may be expelled, and (3) judicial and executive officers may be removed on impeachment by the House of Representatives followed by trial and conviction by the Senate. The Constitution contains no standards governing the first two methods of removal. For the third method, however, the official must be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.” 

Modern commentators disagree over what the Founders meant by the term “high . . . Misdemeanors.” Some have argued the term comprehends only violations of the criminal law. Others, most famously then-Representative Gerald Ford, have claimed it encompasses whatever Congress decides it encompasses. Neither of these two views comports with the Constitution’s text. If the Founders understood “high . . . Misdemeanors” to be limited to criminal violations, they could have omitted the words entirely and ended the sentence with “Crimes.” If they understood “high . . . Misdemeanors” to grant unlimited discretion, they could have omitted the phrase “Treason, Bribery, or other high Crimes.”

Other commentators contend the actual standard lies between these two extremes. The text implies this is correct, but commentators have not had great success determining what that standard is. Their formulations have tended to center on vague terms without discernible legal content, such as “unacceptable risk” and “egregious abuse.”

Why have commentators not deduced a clearer standard? Perhaps politics has gotten in the way. Most modern commentary dates from the time of the Nixon and Clinton impeachments and seems influenced by whether or not the author wanted the incumbent president impeached and convicted. A more fundamental problem may be the methodology employed. Writers have attempted to deduce standards from charges in English and American impeachment cases decided from the fourteenth through the twentieth centuries; Professor Raoul Berger’s authoritative 1973 book on the impeachment process is the premier example of this methodology. However, most of the cases examined are not particularly probative of the founders’ understanding. Those decided after the Constitution was ratified, of course, had no effect on their understanding. The value of early cases—those arising before the eighteenth century—is compromised by the fact that the goals and values driving the impeachment process changed over time. To recapture the founding generation’s understanding of “high . . . Misdemeanors,” we do best to limit ourselves to the events and literature of the eighteenth century. We should take heed of earlier proceedings only to the extent authors influential during the founding generation relied on them.

I must qualify in one respect my statement about the unsatisfying nature of prior explanations of “high . . . Misdemeanors.” In a 1975 study, two practitioners, E. Mabry Rogers and Stephen B. Young (later Dean Young, of the Hamline University Law School), concluded that the term meant “breach of fiduciary duty.” I believe that conclusion to be precisely correct. This essay marshals additional sources to demonstrate why it is correct.

06/25/2018

The Original Meaning and The Exclusionary Rule
Mike Rappaport

In his recent concurrence in Collins v. Virginia, Justice Clarence Thomas argues that the exclusionary rule for Fourth Amendment violations should not be applied against the states. He states that even the Supreme Court has acknowledged that the rule is not a constitutional rule. And he argues further that at the time of the Constitution, Fourth Amendment violations were remedied through an action against the officer (or self help).  They were not remedied through the exclusion of the evidence.

Assuming Justice Thomas’s historical account (which is also my understanding) is correct, I agree with his conclusion that the exclusionary rule seems problematic. But matters here are more complicated. In the modern world, lawsuits against state officers are often blocked by obstacles – most significantly, that of qualified immunity. It is constitutionally problematic to prevent enforcement of the Fourth Amendment be eliminating all of the remedies. But that is what the Supreme Court has sometimes done and what Justice Thomas’s theory may contemplate.

In some earlier posts, I argued a similar position as to the due process and judicial power clauses. There are two basic points to these posts: (1) the Constitution often assumed and incorporated a historical background, such as the remedies allowed for a violation of a right and (2) the Constitution cannot be read to allow the government to circumvent a constitutional provision by eliminating all of the remedies.

So what does the Fourth Amendment require in this context? If the government – and in this case it is the judicial branch of the government through its invention of qualified immunity – does not allow or limits lawsuits for damages against government officials for Fourth Amendment violations, then it must supply a substitute remedy that is comparable. What would such a remedy be?

One obvious possibility would be a lawsuit against the state for damages due to Fourth Amendment violations. Whether this would be a comparable remedy is an interesting question. There are arguments on both sides. On the one hand, if the remedy is compensation, then receiving compensation from the government instead of the officer should be sufficient. On the other hand, perhaps compensation is only part of the remedy. After all, the requirement to pay damages also deters violations of the wrongful act. If deterrence is also relevant, it might be thought that having the government pay compensation instead of the officer might induce more violations of the law, since the officer would not face liability (and the government could more easily bear the costs).

So how should the Supreme Court address the issue today? If the exclusionary rule is not constitutionally required and the current regime with qualified immunity is unconstitutional, then the best result would simply be to eliminate qualified immunity and the exclusionary rule – and allow lawsuits against officers for compensation. If the states seek to confer immunity on the officers and pay the compensation themselves, then the result depends upon the analysis in the prior paragraph. Either government compensation would be constitutional or not. In the latter case, then the officer liability might be required. But if the government insisted on insulating officers from liability, perhaps the exclusionary rule might be an adequate remedy in some instances. So in this indirect way, it is conceivable that the exclusionary rule might be justified. But the argument requires several steps and is by no means obvious.

The most clearly constitutional result would involve restoring the lawsuit against the state officials who violate the Fourth Amendment. But lawsuits against the state itself or the exclusionary rule might be alternative remedies.

Saul Cornell on Originalism and History
Michael Ramsey

At Take Care Blog, Sual Cornell (Fordham, History): Originalist Critiques of Anti-Originalism: Still Don’t Know About History (commenting on my post on the recent law professors' letter regarding fiduciary limits on executive power).  It begins:

To understand the exalted views of presidential power associated with the Trump administration one must appreciate the role that originalism and its theory of the unitary executive plays in contemporary right wing thought and culture.  According to Trump’s lawyers, the President “possesses the indisputable authority to direct that any executive branch investigation be open or closed because the Constitution provides for a unitary executive with all executive power resting with the President.”  As is true for many originalist claims about the past, the unitary executive rests on  a series of distortions, simplifications, and a profoundly ahistorical reading of  the Constitution.  Although originalists invoke the authority of history, their method is profoundly ahistorical.  This failure to grasp the nature of history is evident in a recent posting on the Originalism Blog by Professor Mike Ramsey expressing consternation that critics of Trump’s originalist justification would turn to history and text as the foundation of their critique.  Most originalists share Ramsey’s confused view of anti-originalism.  According to Ramsey opponents of originalism share three common views:

(1) Originalism is a radical cultish ideology that is inconsistent with ordinary approaches to legal interpretation.

(2) Originalism is impossible because we can’t know for sure what the framers thought about anything or what words meant historically, and in any event only trained historians can fully understand the past.

(3) Originalism is irrelevant because we shouldn’t be bound by the framers’ design.

Two quick points at the outset: 

(1)  I did not "express consternation that critics of the Trump administration would turn to history and text as the foundation of their critique."  I think this it's great that they did.  I like originalist arguments (else I would likely not write for a site called The Originalism Blog!) regardless of who makes them or why.  Indeed, in a subsequent post (which I'm not sure Professor Cornell has read) I wrote that the law professors' letter made a persuasive originalist argument in support of the fiduciary duties of the executive -- one that's backed up by quite a bit of originalist scholarship.  I congratulate the signatories of the letter for relying on history and text.

What I did suggest in the post that Professor Cornell cites is that I was surprised that a number of law professors made the strongly originalist arguments in the letter, because many (not all) are generally not originalists in orientation and some have been harsh critics of originalism in the past.

(2) I did not say all opponents of originalism shared the three common views Professor Cornell lists (or that these are the only criticisms of originalism).  I said that these are common criticisms raised against originalism that were prominent during the Gorsuch hearings.  And (this was my main point) the law professors' letter tends to refute all of them, because it implicitly reflects the view of a number of conventional legal scholars that originalism is (at least sometimes) an appropriate methodology; that the the Constitution's historical meaning is (at least sometimes) knowable; and that the Constitution's original meaning is (at least sometimes) binding on us today.

Professor Cornell goes on to raise (as I count them) three different objections to originalism:

First, it is important to point out that critics of originalism do not view it as cultish, but ideological.  This is an important distinction.  As many critics of have noted, originalism functions as both the method and ideological foundation for much contemporary right-wing constitutionalism.

...

Historical arguments are hardly unique to originalism.  Such arguments are widely recognized by non-originalists as one of the many modalities typically employed in modern constitutional interpretation. Critics of originalism do not ignore Founding era thought, but they insist that constitutional ideas were not fixed in 1788. (The entire notion of fixation, a claim shared by many originalists, itself rests on a serious misreading of the philosophy of language and linguistics, a point that originalist critics have made on multiple occasions.)  Rather than embrace the stilted version of history espoused by originalists, non-originalists share a view common among the leading constitutional thinkers of the Founding era.  Constitutional culture in the Founding was decidedly not originalist in the sense in which this term is typically used in modern legal debate.  History, was indisputably important to many in the Founding era and historical argument has always been important in American constitutional law in the centuries that have followed, but it is important to distinguish genuinely historical approaches to the past with originalism.

Ramsey and other leading originalists, including Lawrence Solum, Randy Barnett, Michael Rappaport, and John McGinnis have all consistently misrepresented the historical critique of originalism.  The point of the historical critique of originalism is not that we are unable to recover historical meaning.  One need not be a PhD. to comprehend the relevant historical methodology necessary to understand Founding-era constitutional culture and debate. There are many outstanding legal academics who do high quality historical work who do not have professional training in history.  The problem is that few originalists fall into this category.

I take two of these arguments to be methodological objections -- that originalism isn't being done correctly because it's ideological or insufficiently educated on historical method.  (I'm happy that Professor Cornell rejects the idea "that we are unable to uncover historical meaning," although I don't think it's a "misrepresent[ation]" to identify that as a common critique of originalism).  These two objections don't go to the idea of originalism, only to its practice.  If originalism as practiced is too ideological or historically inaccurate, originalists should welcome such criticism and do better.

But I find it difficult to discuss methodological objections in the abstract.  Although he begins with a reference to the law professors' letter, Professor doesn't say what he thinks of it (and of the scholarship on which it rests).  (1) Is it too ideological?  Perhaps, because its signatories are (I surmise) principally opponents of the President.  But it rests on ideas developed earlier, and by scholars who may have different views of this President.  And in any event, isn't the question whether it is accurate, not its motivation?  Even if all its signatories were motivated by ideological opposition to the President, that does not mean its history is wrong. (2) Is it using inappropriate historical and linguistic methods to reach its conclusion?  Perhaps, but without hearing the specific objections it's hard to say.  In a prior exchange with Professor Cornell where he and I debated some specific methodological objections regarding the debate over the natural born citizen clause, I found his objections insubstantial.

Professor Cornell's third objection appears to be the fairly standard nonoriginalist position that originalism is one of the "modalities" of constitutional interpretation but not the only one, and that constitutional ideas can evolve over time.  I think he's right that this is the real point of dispute between originalists and nonoriginalists.  But I'm not sure what he adds to this debate, or why he thinks I see the contours of that debate differently.

06/24/2018

Lynn Uzzell Replies to John McGinnis and Michael Rappaport
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell: The Polylingual Constitution (replying to posts by John McGinnis and Michael Rappaport commenting on her earlier posts on originalism and history).  From the introduction: 

In a pair of posts for Law and Liberty, I argued that public meaning originalists are not doing a good job of communicating with those beyond their narrow circle—neither the public at large nor scholars in other disciplines. John O. McGinnis and Michael Rappaport both honored me with a response, and both responded with their own version of: while that may be true, it’s not important.

But this indifference to historical expertise beyond the confines of legal history, I still believe, will harm their credibility among the general public and among other experts. I had pointed out that attempts to malign the Framers of the Constitution (in particular, the recent book by Mary Sarah Bilder) will ultimately damage originalism in the minds of a more popular constituency, many of whom harbor originalist sympathies because they admire the Framers.

And in conclusion:

Judges must possess sufficient fluency in the language of power when determining the meaning of those political clauses within the Constitution. For instance, when Article II states simply that “the executive Power shall be vested in a President,” what did that generation mean by “executive power”? When Article I, Section 8, empowers Congress to tax for the “general Welfare,” do those two words (which have a political history—see the Articles of Confederation) broaden the scope of congressional power? Or is it possible that they were inserted to limit that scope? In such cases, courts must render judgments about the degree of power properly exercised by these branches; looking to William Blackstone, common law, or prior judicial decisions will be of no help. According to Madison, even looking to prior political theorists or political arrangements will be as likely to mislead the interpreter as to lead him aright. A different kind of interpretation is needed.

The historical research that McGinnis and Rappaport describe in “The Legal Turn” is a valuable and necessary condition for understanding the original meanings of the Constitution. But few outside of the world of lawyers and legal scholars could possibly deem it sufficient. Admittedly, there are individual clauses that had a long history prior to the Constitution’s framing and that were adopted by that generation with little or no alteration, such as “habeas corpus” and “due process of law.” The monolingualism of “The Legal Turn” is no doubt sufficient for navigating original meanings when traversing that limited terrain. But what about the rest of the Constitution?

(Thanks to Mark Pulliam for the pointer).

06/23/2018

More Supreme Court Originalism (Part 2)
Michael Ramsey

In addition to Carpenter v. United States, discussed in my prior post, two other Supreme Court cases from yesterday had extensive originalist discussions.

First, in Ortiz v. United States, the Court held that it had jurisdiction to hear appeals from non-Article III military courts.  Ortiz was convicted by a military court and appealed, but an enterprising University of Virginia law professor, Aditya Bamzai, objected.  As amicus curiae, Professor Bamzai argued that the Court lacked jurisdiction because (a) there was no appellate jurisdiction because the military court was really an executive rather than a judicial entity, and (b) there was no original jurisdiction because the Constitution did not provide it and (per Marbury) Congress cannot expand original jurisdiction.

The question split the Court's originalists.  Justice Kagan, writing for seven Justices, rejected this objection without much originalist analysis.  Justice Thomas concurred at length, explaining:

I join the Court’s opinion in full, which persuasively explains why petitioner’s statutory and constitutional arguments lack merit. I also agree that the statute giving this Court appellate jurisdiction to review the decisions of the Court of Appeals for the Armed Forces (CAAF), 28 U. S. C. §1259, complies with Article III of the Constitution. I write separately to explain why that conclusion is consistent with the Founders’ understanding of judicial power—specifically, the distinction they drew between public and private rights.  [He explained this view over the next 10 pages.]

Justice Alito, joined by Justice Gorsuch, dissented at even greater length on the jurisdictional point, basically accepting Professor Bamzai's argument.  From the introduction:

Today’s decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests “[t]he Judicial Power of the United States”—every single drop of it—in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.

As an aside, this argument seems strongly to suggest that similarly Article II of the Constitution vests “[t]he executive Power"—"every single drop of it"—in the President; see Morrison v. Olson (Scalia, dissenting).  Also, "judicial" in "judicial Power" in Article III is not capitalized.  But I digress.

Justice Alito's dissent continues: 

The understanding of appellate jurisdiction embodied in Article III has deep roots. Blackstone explained that a “court of appeal” has jurisdiction only to “reverse or affirm the judgment of the inferior courts.” 3 W. Blackstone, Commentaries on the Laws of England 411 (1768) (Blackstone) (emphasis added). Echoing Blackstone, we have held that our appellate jurisdiction permits us to act only as “[a] supervising Court, whose peculiar province it is to correct the errors of an inferior Court.” Cohens v. Virginia, 6 Wheat. 264, 396 (1821) (Marshall, C. J.). And we have reiterated that “[a]n appellate jurisdiction necessarily implies some judicial determination, some judgment, decree, or order of an inferior tribunal, from which an appeal has been taken.” The Alicia, 7 Wall. 571, 573 (1869); Webster v. Cooper, 10 How. 54, 55 (1850); 3 J. Story, Commentaries on the Constitution of the United States §916, p. 652 (1833) (Story).

Those principles make it easy to understand what Marbury meant when it held that “[i]t is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” 1 Cranch, at 175. The cause (or case) must have been created previously, somewhere else. And as Blackstone suggested, what “creates” a “case” in the relevant sense—that is, what transforms a dispute into a “case” that an appellate court has jurisdiction to resolve—is the prior submission of the dispute to a tribunal that is lawfully vested with judicial power. 

And since the military courts -- not being Article III courts -- can't be vested with the "judicial Power of the United States," there can't be an appeal from them directly to the Supreme Court.

Second, in Currier v. Virginia, the Court rejected a double jeopardy objection.  Justice Gorsuch, writing for five Justices, found the defendant had waived the objection by consenting to two separate trials for related offenses.  Writing for only four (Roberts, Thomas, Alito and himself; Kennedy thought the waiver was enough to decide the case), Gorsuch went on to reject double jeopardy as a possible objection where the offenses were related but not identical:

Mr. Currier’s problems begin with the text of the Double Jeopardy Clause. As we’ve seen, the Clause speaks not about prohibiting the relitigation of issues or evidence but offenses. Contrast this with the language of the Reexamination Clause. There, the Seventh Amendment says that “[i]n Suits at common law . . . no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” (Emphasis added.) Words in one provision are, of course, often understood “by comparing them with other words and sentences in the same instrument.” 1 J. Story, Commentaries on the Constitution of the United States §400, p. 384 (1833). So it’s difficult to ignore that only in the Seventh Amendment—and only for civil suits—can we find anything resembling contemporary issue preclusion doctrine.

What problems the text suggests, the original public understanding of the Fifth Amendment confirms. The Double Jeopardy Clause took its cue from English common law pleas that prevented courts from retrying a criminal defendant previously acquitted or convicted of the crime in question. See Scott, 437 U. S., at 87; 4 W. Blackstone, Commentaries on the Laws of England 329–330 (1769). But those pleas barred only repeated “prosecution for the same identical act and crime,” not the retrial of particular issues or evidence. Id., at 330 (emphasis added). As Sir Matthew Hale explained:

“If A. commit a burglary . . . and likewise at the same time steal goods out of the house, if he be indicted of larciny for the goods and acquitted, yet he may be indicted for the burglary notwithstanding the acquittal. And è converso, if indicted for the burglary and acquitted, yet he may be indicted of the larciny, for they are several offenses, tho committed at the same time.” 2 M. Hale, The History of the Pleas of the Crown, ch. 31, pp. 245–246 (1736 ed.).

Both English and early American cases illustrate the point. In Turner’s Case, 30 Kel. J. 30, 84 Eng. Rep. 1068 (K. B. 1663), for example, a jury acquitted the defendant of breaking into a home and stealing money from the owner. Even so, the court held that the defendant could be tried later for the theft of money “stolen at the same time” from the owner’s servant. Ibid. In Commonwealth v. Roby, 12 Pickering 496 (Mass. 1832), the court, invoking Blackstone, held that “[i]n considering the identity of the offence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact.” Id., at 509. The court explained that a second prosecution isn’t precluded “if the offences charged in the two indictments beperfectly distinct in point of law, however nearly they may be connected in fact.” Ibid. (emphasis added). Another court even ruled “that a man  acquitted for stealing the horse hath yet been arraigned and convict for stealing the saddle, tho both were done at the same time.” 2 Hale, supra, at 246. These authorities and many more like them demonstrate that early courts regularly confronted cases just like ours and expressly rejected the notion that the Double Jeopardy Clause barred the relitigation of issues or facts. See also Grady v. Corbin, 495 U. S. 508, 533–535 (1990) (Scalia, J., dissenting) (collecting authorities); 2 W. Hawkins, Pleas of the Crown, ch. 35, p. 371 (1726 ed.); 1 J. Chitty, Criminal Law 452–457 (1816); M. Friedland, Double Jeopardy 179, and n. 2 (1969). Any suggestion that our case presents a new phenomenon, then, risks overlooking this long history. See post, at 4–5 (GINSBURG, J., dissenting).

More Supreme Court Originalism (and Non-Originalism): Carpenter v. United States
Michael Ramsey

Yesterday's decisions from the Supreme Court contain some discussions of interest to originalist scholars.  First, in Carpenter v. United States (the cell phone data case).  Chief Justice Roberts opens his majority opinion (for five Justices: himself, Breyer, Ginsburg, Sotomakor and Kagan) with a nod to the Founding era: 

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The “basic purpose of this Amendment,” our cases have recognized,“is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967). The Founding generation crafted the Fourth Amendment as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 27). In fact, as John Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was “the first act of opposition to the arbitrary claims of Great Britain” and helped spark the Revolution itself. Id., at ___–___ (slip op., at 27–28) (quoting 10 Works of John Adams 248 (C. Adams ed. 1856)). 

...

We have kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34 (2001). For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Id., at 35. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize
on such new sense-enhancing technology to explore what was happening within the home. Ibid.

Likewise in Riley, the Court recognized the “immense storage capacity” of modern cell phones in holding that police officers must generally obtain a warrant before searching the contents of a phone. 573 U. S., at ___ (slip op., at 17). We explained that while the general rule allowing warrantless searches incident to arrest “strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to” the vast store of sensitive information on a cell phone. Id., at ___ (slip op., at 9). 

The strongest originalism is in the dissents, however -- especially by Justices Thomas, Alito and Gorsuch (Justice Kennedy also dissented, principally on doctrinal grounds).  From Thomas's dissent:

This case should not turn on “whether” a search occurred.  It should turn, instead, on whose property was searched. The Fourth Amendment guarantees individuals the right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” (Emphasis added.) In other words, “each person has the right to be secure against unreasonable searches . . . in his own person, house, papers, and effects.” Minnesota v. Carter, 525 U. S. 83, 92 (1998) (Scalia, J., concurring). By obtaining the cell-site records of MetroPCS and Sprint, the Government did not search Carpenter’s property. He did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the records his. The records belong to MetroPCS and Sprint.

...

The more fundamental problem with the Court’s opinion, however, is its use of the “reasonable expectation of privacy” test, which was first articulated by Justice Harlan in Katz v. United States, 389 U. S. 347, 360–361 (1967) (concurring opinion). The Katz test has no basis in the
text or history of the Fourth Amendment. And, it invites courts to make judgments about policy, not law. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence. I respectfully dissent.

The dissent continues with a lengthy originalist attack on Katz and the "reasonable expectation of privacy" test, beginning: 

The Katz test distorts the original meaning of “searc[h]”—the word in the Fourth Amendment that it purports to define, see ante, at 5; Smith, supra. Under the Katz test, the government conducts a search anytime it violates someone’s “reasonable expectation of privacy.”That is not a normal definition of the word “search.” At the founding, “search” did not mean a violation of someone’s reasonable expectation of privacy. The word was probably not a term of art, as it does not appear in legal dictionaries from the era. And its ordinary meaning was the same as it is today: “‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.’” Kyllo v. United States, 533 U. S. 27, 32, n. 1 (2001) (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)); accord, 2 S. Johnson, A Dictionary of the English Language (5th ed. 1773) (“Inquiry by looking into every suspected place”); N. Bailey, An Universal Etymological English Dictionary (22d ed. 1770) (“a seeking after, a looking for, &c.”); 2 J. Ash, The New and Complete Dictionary of the English Language (2d ed. 1795) (“An enquiry, an examination, the act of seeking, an enquiry by looking into every suspected place; a quest; a pursuit”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (similar). The word “search” was not associated with “reasonable expectation of privacy” until Justice Harlan coined that phrase in 1967. The phrase “expectation(s) of privacy” does not appear in the pre-Katz federal or state case reporters, the papers of prominent Founders, early congressional documents and debates, collections of early American English texts, or early American newspapers. 

Justice Alito's dissent focused on the historical foundations of the third-party doctrine: 

The order in this case was the functional equivalent of a subpoena for documents, and there is no evidence that these writs were regarded as “searches” at the time of the founding. Subpoenas duces tecum and other forms of compulsory document production were well known to the
founding generation. Blackstone dated the first writ of subpoena to the reign of King Richard II in the late 14th century, and by the end of the 15th century, the use of such writs had “become the daily practice of the [Chancery] court.” 3 W. Blackstone, Commentaries on the Laws of England 53 (G. Tucker ed. 1803) (Blackstone). Over the next 200 years, subpoenas would grow in prominence and power in tandem with the Court of Chancery, and by the end of Charles II’s reign in 1685, two important innovations had occurred.

First, the Court of Chancery developed a new species of subpoena. Until this point, subpoenas had been used largely to compel attendance and oral testimony from witnesses; these subpoenas correspond to today’s subpoenas ad testificandum. But the Court of Chancery also improvised a new version of the writ that tacked onto a regular subpoena an order compelling the witness to bring certain items with him. By issuing these so-called subpoenas duces tecum, the Court of Chancery could compel the production of papers, books, and other forms of physical evidence, whether from the parties to the case or from third parties. Such subpoenas were sufficiently commonplace by 1623 that a leading treatise on the practice of law could refer in passing to the fee for a “Sub pœna of Ducas tecum” (seven shillings and two pence) without needing to elaborate further. T. Powell, The Attourneys Academy 79 (1623). Subpoenas duces tecum would swell in use over the next century as the rules for their application became ever more developed and definite. See, e.g., 1 G. Jacob, The Compleat Chancery-Practiser 290 (1730) (“The Subpoena duces tecum is awarded when the defendant has confessed by his Answer that he hath such Writings in his Hands as are prayed by the Bill to be discovered or brought into Court”).

Second, although this new species of subpoena had its origins in the Court of Chancery, it soon made an appearance in the work of the common-law courts as well. One court later reported that “[t]he Courts of Common law . . . employed the same or similar means . . . from the time of Charles the Second at least.” Amey v. Long, 9 East. 473, 484, 103 Eng. Rep. 653, 658 (K. B. 1808). 

After several more pages of history:

Talk of kings and common-law writs may seem out of place in a case about cell-site records and the protections afforded by the Fourth Amendment in the modern age. But this history matters, not least because it tells us what was on the minds of those who ratified the Fourth Amendment and how they understood its scope. That history makes it abundantly clear that the Fourth Amendment, as originally understood, did not apply to the compulsory production of documents at all.

The Fourth Amendment does not regulate all methods by which the Government obtains documents. Rather, it prohibits only those “searches and seizures” of “persons, houses, papers, and effects” that are “unreasonable.” Consistent with that language, “at least until the latter half of the 20th century” “our Fourth Amendment jurisprudence was tied to common-law trespass.” United States v. Jones, 565 U. S. 400, 405 (2012). So by its terms, the Fourth Amendment does not apply to the compulsory production of documents, a practice that involves neither any physical intrusion into private space nor any taking of property by agents of the state.

Finally, Justice Gorsuch rejected both the third party doctrine and the reasonable expectation of privacy:

From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal
sensibilities about the “reasonableness” of your expectations or privacy. It was tied to the law. Jardines, 569 U. S., at 11; United States v. Jones, 565 U. S. 400, 405 (2012). The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment. Though now often lost in Katz’s shadow, this traditional understanding persists. Katz only “supplements, rather than displaces the traditional property based understanding of the Fourth Amendment.” Byrd, 584 U. S., at ___ (slip op., at 7) (internal quotation marks omitted); Jardines, supra, at 11 (same); Soldal v. Cook County, 506 U. S. 56, 64 (1992) (Katz did not “snuf[f] out the previously recognized protection for property under the Fourth Amendment”).

Beyond its provenance in the text and original understanding of the Amendment, this traditional approach comes with other advantages. Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution—rather than “their own biases or personal policy preferences.” Pettys, Judicial Discretion in Constitutional Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach hobbled by Smith and Miller, for those cases are just limitations on Katz, addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.

Plus a cite to my colleague Donald Dripps, in response to Justice Alito:

It may be that, as an original matter, a subpoena requiring the recipient to produce records wasn’t thought of as a “search or seizure” by the government implicating the Fourth Amendment, see ante, at 2–12 (opinion of ALITO, J.), but instead as an act of compelled self-incrimination
implicating the Fifth Amendment, see United States v. Hubbell, 530 U. S. 27, 49–55 (2000) (THOMAS, J., dissenting); Nagareda, Compulsion “To Be a Witness” and the Resurrection of Boyd, 74 N. Y. U. L. Rev. 1575, 1619, and n. 172 (1999). But the common law of searches and seizures does not appear to have confronted a case where private documents equivalent to a mailed letter were entrusted to a bailee and then subpoenaed. As a result, “[t]he common-law rule regarding subpoenas for documents held by third parties entrusted with information from the target is . . . unknown and perhaps unknowable.” Dripps, Perspectives on The Fourth Amendment Forty Years Later: Toward the Realization of an Inclusive Regulatory Model, 100 Minn. L. Rev. 1885, 1922 (2016).

And in conclusion, looking to the next case:

Before the district court and court of appeals, Mr. Carpenter pursued only a Katz “reasonable expectations” argument. He did not invoke the law of property or any analogies to the common law, either there or in his petition for certiorari. Even in his merits brief before this Court, Mr. Carpenter’s discussion of his positive law rights in cell-site data was cursory. He offered no analysis, for example, of what rights state law might provide him in addition to those supplied by §222. In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.

Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them. See Byrd, 584 U. S., at ___ (slip op., at 7). Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not. Yet the arguments have gone unmade, leaving courts to the usual Katz handwaving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence. 

That's a lot of originalism (each of Thomas, Alito and Gorsuch's dissents is about the same length as the majority opinion).

06/22/2018

Two Sort-Of Originalist Outcomes
Michael Ramsey

Yesterday the Supreme Court decided, among other cases, Lucia v. SEC and South Dakota v.  Wayfair, Inc.  Neither majority opinion (by Justices Kagan and Kennedy, respectively) is originalist.  But arguably the results are.

In Lucia, the Court held that the Securities and Exchange Commission's Administrative Law Judges are officers of the United States and thus must be appointed in accordance with the appointments clause.  The majority said the outcome was required by the prior decision in Freytag v. Commissioner (1991) [aside:  I have experience with Freytag.  It's too much of a mess to require anything, although it does support the majority].  Justice Thomas concurred, joined by Justice Gorsuch, relying on Jennifer Mascott's originalist account of "officers" [congratulations to Professor Mascott]: 

While precedents like Freytag discuss what is sufficient to make someone an officer of the United States, our precedents have never clearly defined what is necessary. I would resolve that question based on the original public meaning of “Officers of the United States.” To the Founders, this term encompassed all federal civil officials “‘with responsibility for an ongoing statutory duty.’” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (THOMAS, J., concurring) (slip op., at 4); Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 564 (2018) (Mascott).

The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty. See Mascott 454. “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. Based on how the Founders used it and similar terms, the phrase “of the United States” was merely a synonym for “federal,” and the word “Office[r]” carried its ordinary meaning. See id., at 471–479. The ordinary meaning of “officer” was anyone who performed a continuous public duty. See id., at 484–507; e.g., United States v. Maurice, 26 F. Cas. 1211, 1214 (No. 15,747) (CC Va. 1823) (defining officer as someone in “‘a public charge or employment’” who performed a “continuing” duty); 8 Annals of Cong. 2304–2305 (1799) (statement of Rep. Harper) (explaining that the word officer “is derived from the Latin word officium” and “includes all persons holding posts which require the performance of some public duty”). For federal officers, that duty is “established by Law”—that is, by statute. Art. II, §2, cl. 2. The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse). See Mascott 484–507. Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. See id., at 507–545. Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. See 15 U. S. C. §78d–1(a); 17 CFR §§200.14, 200.30– 9 (2017). As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.

In short, the administrative law judges of the Securities Exchange Commission are “Officers of the United States” under the original meaning of the Appointments Clause. They have “‘responsibility for an ongoing statutory duty,’” which is sufficient to resolve this case. SW General, 580 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4). Because the Court reaches the same conclusion by correctly applying Freytag, I join its opinion.

I agree.  Professor Mascott's article is very persuasive on this point.

In Wayfair, the Court held that the dormant commerce clause does not bar states from collecting taxes on sales made by out-of-state companies to in-state buyers, overruling Quill Corp.  v. North Dakota (1992) and National Bellas Hess, Inc. v. Department of Revenue of Ill. (1967).  Justice Thomas filed a brief concurrence, basically apologizing for his vote with the majority in Quill, and commenting: 

a quarter century of experience has convinced me that Bellas Hess and Quill “can no longer be rationally justified.” 504 U. S., at 333. The same is true for this Court’s entire negative Commerce Clause jurisprudence. See Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 1). Although I adhered to that jurisprudence in Quill, it is never too late to “surrende[r] former views to a better considered position.” McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring).

Justice Gorsuch also concurred briefly, observing:

... My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day. See Energy & Environment Legal Inst. v. Epel, 793 F. 3d 1169, 1171 (CA10 2015); Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___–___ (2015) (Scalia, J., dissenting) (slip op., at 1–3); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610–620 (1997) (THOMAS, J., dissenting). Today we put Bellas Hess and Quill to rest and rightly end the paradox of condemning interstate discrimination in the national economy while promoting it ourselves.

Again, I agree.  An originalist account of the dormant commerce clause generally is a challenging project.  My sometime co-author Brannon Denning has convinced me that there may be something to be said for its anti-discrimination principle.  But as Justice Gorsuch says, the Court-created Quill rule was the opposite of an anti-discrimination principle; it required states to treat out-of-state sellers better than in-state sellers (by not taxing them).

Thus both cases are part of the project of gradually bringing constitutional law back to the Constitution's original meaning.  First, both majority opinions depended on the votes of Justices Thomas and Gorsuch.  Second, Thomas and Gorsuch made clear that their votes arose from an originalist assessment.  And third, I suspect that at least some of the other Justices were influenced by the originalist foundations of the winning arguments, even if the majority opinions were more doctrinal in nature.  One can see these cases as involving what Randy Barnett has called the "gravitational force of originalism."