10/18/2017

A Big Discovery by Gerard Magliocca
Michael Ramsey

At Concurring opinions, Gerard Magliocca reports:  Not King Tut’s Tomb, But . . .:

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington’s notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice’s Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw “Corfield v. Coryell” as a heading followed by pages of notes about the case. ...

Plus, here, "a full transcript of the money quote in Justice Washington’s notes on Corfield."

10/17/2017

Andrew Hessick: Consenting to Adjudication Outside the Article III Courts
Michael Ramsey

F. Andrew Hessick (University of North Carolina School of Law) has posted Consenting to Adjudication Outside the Article III Courts (Vanderbilt Law Review, forthcoming) on SSRN.  Here is the abstract:

Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.

10/16/2017

Puerto Rico and the Racist, Non-Originalist Insular Cases
Michael Ramsey

At Slate, Doug Mack: The Strange Case of Puerto Rico:  How a series of racist Supreme Court decisions cemented the island’s second-class status.  It begins:

The devastation wrought by Hurricanes Irma and Maria has reawakened many Americans to the existence of Puerto Rico as well as the archaic laws and domineering bureaucracies that continue to burden the island. News outlets have scrambled to explain the Jones Act, the 1920 law that restricts shipping between U.S. ports, the PROMESA board that Congress set up last year to oversee Puerto Rico’s finances, and the fact that territory residents can’t vote for president.

But beneath these data points lurks something deeper and more problematic, yet rarely discussed: the Insular Cases, a series of Supreme Court decisions from the early 20th century. When we talk about the differences between states and territories—and when we ask why the United States even has territories in 2017—we’re really talking about the legacy of the Insular Cases. The recent controversies are, in fact, the latest iteration of a conversation about American empire that goes back more than a century.

The earliest Insular Cases were decided by the same Supreme Court that allowed “separate but equal” segregation in Plessy v. Ferguson in 1896. That case was overturned, but the Insular Cases, which are built on the same racist worldview, still stand today.

And from further on:

Downes v. Bidwell ..., which centered on a question of whether shipments from Puerto Rico to New York were interstate or international, established a new hierarchy of territories: They were now either “incorporated” with the United States or “unincorporated,” with only the former having the full protections of the Constitution. The court reasoned that Puerto Rico and the other new territories were “inhabited by alien races,” so governing them “according to Anglo-Saxon principles may for a time be impossible.” These islands, then, were “foreign in a domestic sense.”

Three years later the court considered the Americanness of individual territory residents in Gonzales v. Williams, which concerned a woman who moved from Puerto Rico to New York and was detained as an “alien immigrant.” The court ruled that she was American, sort of: She was a “noncitizen national,” a distinction new to the United States and inspired by the designations European empires used for their colonial subjects. Puerto Ricans finally gained citizenship in 1917 through legislation passed by Congress. Residents of most of the other current territories later gained it the same way, although Guamanians had to wait until 1950. The “noncitizen national” designation still holds in American Samoa, where residents are, by birth, not citizens of any country. ...

Balzac v. Porto Rico in 1922 added yet more complexity, finding that the Constitution didn’t apply in full to the territories—only “fundamental” rights were automatically in effect. ...

(Note: Doug Mack is the author The Not-Quite States of America: Dispatches from the Territories and Other Far-Flung Outposts of the USA, which sounds like a very interesting read).

As the post implies but doesn't say outright, the Insular Cases were an outrageous bit of non-originalism.  The distinction between "incorporated" and "unincorporated" territories -- and the corresponding idea that only "fundamental" rights (whatever they may be) apply in the unincorporated territories -- has no basis in the Constitution's text or founding-era commentary.  The opinions in the Insular Cases rest principally on pragmatism: given what the U.S. wanted to do with the territories and (even worse) who the people of the territories were, it didn't make sense to apply the same rules that the Constitution applied to (as the Court saw it) "real" Americans.  And the conclusion that people born in the unincorporated territories were not U.S. citizens at birth is flatly contrary to the text of Section 1 of the Fourteenth Amendment, which says that "all" persons born "in the United States ... are citizens of the United States" -- no exception for territories where that would be inconvenient because the population is a different race or culture.  True, the framers and ratifiers of the Fourteenth Amendment (and the original Constitution) presumably did not contemplate the U.S. acquiring colonial territories.  But the key is not what they expected, but what they wrote and  enacted.  And what they wrote and enacted contained no exception for non-white territories, until the Supreme Court in the Insular Cases made one up.

I emphasize this because it's pretty easy to come up with consensus awful non-originalist opinions (Dred Scott, Korematsu) but most of them have been long since abandoned.  The Insular Cases, as the post points out, still have important modern ramifications, and they too should be recognized as consensus awful non-originalist opinions.

10/15/2017

Curtis A. Bradley: Exiting Congressional-Executive Agreements
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) has posted Exiting Congressional-Executive Agreements on SSRN.  Here is the abstract:

Some commentators have argued that, even if the President has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the President lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This paper challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this paper contends, there is no compelling reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice, and, thus, for example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents do not have the authority to unilaterally terminate statutes, congressional-executive agreements are not mere statutes; they are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to the ones contained in Article II treaties that presidents have long claimed the authority to invoke unilaterally, and Congress has never indicated that it views presidents as having less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally.

I think this is basically right as a practical matter, assuming the agreement's implementing legislation does not specifically bar presidential withdrawal.  But it is an interesting conundrum for originalists.  Assume congressional-executive agreements are not authorized by the Constitution's original meaning (my view; see The Constitution's Text in Foreign Affairs, Chapter 10).  In that case, there is literally no original meaning as to the President's ability to withdraw.  How should an originalist approach handle this situation?

One possibility is that, since the agreement is unconstitutional (not authorized by the original meaning), the President is not only allowed but obligated to withdraw (or to seek approval through the treatymaking clause).  This is essentially the argument I made with regard to the Paris Agreement on climate change (an executive agreement, not a congressional-executive agreement).

But maybe congressional-executive agreements are different because (unlike long-term substantive executive agreements) they have been accepted by practice, and so are authorized by political branch precedent (see here on the history).  If originalists regard them as constitutional on this ground, how to handle the termination issue?  History/practice does not provide guidance, because there is no material history of terminating congressional-executive agreements.  So another possibility for originalists is simply to say the original meaning has nothing to say on the matter: Non-originalist political branch precedent makes the agreement constitutional, and neither original meaning nor political branch precedent says anything about termination, so the question must be answered by appeal to some other source of law.

A third possibility, effectively Professor Bradley's solution, is that the matter can be resolved by analogy to treaties.  If a congressional-executive agreement is equivalent to a treaty for constitutional purposes (due to political branch precedent), then its termination provisions should be the same as a treaty.  So an originalist should use the original meaning to find the way treaties could be terminated, and apply that to congressional-executive agreements as well.  (In my view, that means the President can terminate them in accordance with their terms -- six months' notice in the case of NAFTA -- but not otherwise.

Now here's an even trickier question: suppose Congress by statute specifically prohibits the President from withdrawing from a particular congressional-executive agreement.  Is that constitutional?  I assume it would not be constitutional to do this in the case of a treaty (assuming the President has constitutional power to withdraw from treaties).  Professor Bradley's approach would thus seem to say that the hypothetical statute is unconstitutional, by analogy to treaty law.  But I'm less sure that's right.  Surely Congress could direct by statute that the United States will accord Canada and Mexico all the benefits of NAFTA, irrespective of whether the United States is formally a party to NAFTA, so long as Canada and Mexico accord the United States all the benefits of NAFTA.  Is a prohibition of withdrawal different enough to make this the dividing line, especially as the whole area isn't one contemplated by the original meaning?  This does not seem an easy question to answer.

10/14/2017

Or Bassok: Courts with Power
Michael Ramsey

Or Bassok (University of Nottingham - Faculty of Law and Social Sciences) has posted The Arendtian Dread: Courts with Power (Ratio Juris, forthcoming) on SSRN. Here is the abstract: 

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that the popular will could be harnessed to support those responsible for limiting it. More concretely, she was fearful of the American Supreme Court relying on popular support. This is the meaning behind her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but as unfit to power. I argue that Arendt’s characterization of authority as requiring “neither coercion nor persuasion” means that the Court’s source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court’s authority. In Arendt’s mind, such an understanding means that the Court has become the seat of power. The corruption of the Court’s authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow. Arendt would thus be extremely concerned by the continuing erosion in understanding of the American Supreme Court as an expert, and from the rise of the understanding that its source of legitimacy lies in public confidence.

10/13/2017

Carissa Byrne Hessick: Corpus Linguistics and the Criminal Law
Michael Ramsey

Carissa Byrne Hessick (University of North Carolina School of Law) has posted Corpus Linguistics and the Criminal Law (forthcoming, Brigham Young University Law Review, Vol. 2018, No. 4, 2018) on SSRN.  Here is the abstract: 

This brief response to Ordinary Meaning and Corpus Linguistics, an essay by Stefan Gries and Brian Slocum, explains why corpus linguistics represents a radical break from current statutory interpretation practice, and it argues that corpus linguistics ought not be adopted as an interpretive methodology, especially for interpreting criminal laws. Corpus linguistics has superficial appeal because it promises to increase predictability and to decrease the role of judges’ personal preferences in statutory interpretation. But there are reasons to doubt that corpus linguistics can achieve these goals. More importantly, corpus linguistics sacrifices other, more important values, including notice and accountability.

(An earlier post alluded to this paper but did not provide the abstract).

For other recent papers and commentary on corpus linguistics, see here (James Cleith Phillips & Sara White); here and here (Neal Goldfarb), here (Justice Thomas Lee and Stephen Mouritsen); and here  (Lawrence Solan & Tammy Gales), plus additional blog posts by Professor Hessick here and here.  This has suddenly become a very big topic of interest.

10/12/2017

New Book: "Supreme Law of the Land?", edited by Gregory Fox et al.
Michael Ramsey

Recently published: Supreme Law of the Land?: Debating the Contemporary Effects of Treaties within the United States Legal System (Gregory H. Fox, Paul R. Dubinsky and Brad R. Roth, eds., Cambridge University Press 2017).  Here is the book description from Amazon:

How do treaties function in the American legal system? This book provides a comprehensive analysis of the current status of treaties in American law. Its ten chapters examine major areas of change in treaty law in recent decades, including treaty interpretation, federalism, self-execution, treaty implementing legislation, treaty form, and judicial barriers to treaty enforcement. The book also includes two in-depth case studies: one on the effectiveness of treaties in the regulation of armed conflict and one on the role of a resurgent federalism in complicating US efforts to ratify and implement treaties in private international law. Each chapter asks whether the treaty rules of the 1987 Third Restatement of Foreign Relations Law accurately reflect today's judicial, executive, and legislative practices. This volume is original and provocative, a useful desk companion for judges and practicing lawyers, and an engaging read for the general reader and graduate students.

This is a great overview of the development of the U.S. constitutional law of treaties from the founding to the modern era, presented as a series of essays by leading foreign relations scholars (and one by me).  There is much of originalist interest, both in assessing the Constitution's original meaning and early practice and in outlining the way we got from there to here.  I'm honored to be part of it.

My contribution is "The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice" (SSRN version available here).  As the title suggests, it traces the rise of alternatives to treaties (the "rivals"), such as executive agreements, congressional-executive agreements, and nonbinding agreements, and relates them to the Constitution's original design.  Here is the abstract:

This Chapter describes the evolution of the constitutional power to make international agreements in U.S. law. Reading only the Constitution’s text, one might suppose the constitutional regime for making international agreements in the United States to be quite straightforward. Article II, Section 2 states that the President has power to make treaties with the advice and consent of the Senate, provided two-thirds of the Senators present concur. Article VI provides that all treaties made under the authority of the United States are the supreme law of the land. No provision of the Constitution’s text directly mentions any power by the U.S. government to enter into any sort of international agreement apart from the “treaties” made according to Article II, Section 2 and having the force of Article VI.

For over 100 years, the regime that appears on the face of the text roughly corresponded with reality. The next 100 years, however, transformed U.S. practice regarding international agreement-making to the extent that the Constitution’s text and analyses based upon it wholly fail to capture what actually exists in modern practice. Conventionally, this transformation is described as the rise of two alternate forms of agreements: (1) the sole executive agreement, done by the unilateral authority of the president in areas of the president’s particular constitutional authority (whatever those may be); and (2) the congressional-executive agreement, done with the approval of majorities of both Houses of Congress, and which is said to be fully interchangeable with the Article II, Section 2 treaty as a constitutional procedure. 

While accurate in some respects, even this conventional description fails to capture the complexity of modern agreement-making in the United States, and recent trends have contributed to the difficulty of providing a coherent legal and practical account. First, non-treaty agreements have diverse and sometimes unclear sources of authority. In some cases, the president negotiates the agreement and submits it for approval by majorities of both Houses of Congress. For most agreements, the president makes them without any after-the-fact approval from Congress or the Senate. Within this latter category, the president may claim various sources of authority to enter into non-treaty agreements: express statutory authorization from Congress in advance; implied authority from Congress; express or implied authority from a prior treaty; or independent constitutional authority. As a practical matter, it may not always be easy – or even possible – to distinguish among some of these categories. Increasingly, the president enters into international agreements on the basis of informal and often uncertain sources of authority, with uncertain legal effects. 

Nonetheless, treaties remain well represented among important agreements, at least in some areas (although making that assessment seems challenging), despite their numerical decline. Likewise, agreements approved after-the-fact by Congress, although relatively small in number, include some of the United States’ most important recent commitments in the area of international trade. Agreements made by the president alone range from trivial diplomatic arrangements to ones of great consequence. There is no satisfactory explanation for why some agreements are made in one way and some in others. This Chapter attempts to sort out the history and modern trends in U.S. agreement making, with a view toward providing a foundation for a constitutional reassessment.

All the chapters are outstanding but for those interested in developing an originalist understanding of treaty law, I particularly recommend "Self-Execution" by Ingrid Wuerth (Vanderbilt); "Treaties, Federalism, and the Contested Legacy of Missouri v. Holland" by Margaret McGuinness (St. John's) and  "Judicial Barriers to Enforcement of Treaties" by Roger Alford (Notre Dame).

Note: This post has been edited to reflect that Gregory Fox is the first-named editor of the book.

10/11/2017

Jesner v. Arab Bank and the Original Meaning of the Alien Tort Statute (Updated)
Michael Ramsey

Today the Supreme Court hears argument in Jesner v. Arab Bank, in which plaintiffs seek to use the so-called Alien Tort Statute (ATS) as the basis to impose liability on Arab Bank, a Jordanian entity, for allegedly giving financial support to Hamas' terrorist operations in Israel and the Palestinian territories.  The ATS provides federal court jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."  The question is whether this statute applies to the claim against Arab Bank; I joined an amicus brief, authored by Professor Samuel Estreicher (NYU) on behalf of professors of foreign relations law, saying it does not.

Judge Henry Friendly famously wrote that the ATS is "a kind of legal Lohengrin; although it has been with us since the first Judiciary Act [passed in 1789] ... no one seems to know whence it came."  His artful aphorism has been cited in many opinions and articles, but it is flatly wrong.  We know exactly where the ATS came from.

In the Articles of Confederation period, American leaders feared, with some justification, that state authorities -- especially state courts -- would not honor obligations the national government owed to foreigners under U.S. treaties and international law (then called the law of nations).  These failures, they further feared, would lead to diplomatic problems and perhaps even to war with powerful European nations.  These concerns became a central motivation for the constitutional convention of 1787.  As James Madison observed, under the Articles the national government could not "prevent those violations of the law of nations & of Treaties which is not prevented must involve us in the calamities of foreign wars."

The Convention attempted to solve this problem in part by creating federal courts with jurisdiction to hear claims involving foreigners, though the final version of the Constitution left it to Congress to decide whether and how to create federal courts below the Supreme Court.  In the 1789 Judiciary Act, Congress did create lower courts, and gave them jurisdiction over claims by aliens, subject to a minimum amount in controversy of $500 (a lot of money in those days).  And Congress also provided that federal district courts would have jurisdiction, even for lesser amounts in controversy, for claims made by aliens for torts in violation of treaties of the United States or of the law of nations.  (See here for more details).  This latter provision is what we now call the ATS.

There should not be the slightest doubt that the ATS responded to the Confederation-era concerns over foreigners not receiving the rights owed to them by the United States under international law.  As leading federalists such as Madison, John Jay and Alexander Hamilton all explained, a key point of creating the federal judiciary was to protect the foreign policy of the United States from missteps by the state courts.  The central concern was foreign nations becoming angry because the United States could not meet its obligations under international law.  The ATS (and the Judiciary Act as a whole) was one of several ways leaders of the national government tried to ensure that it did.

It therefore makes no sense to use the ATS to extend federal court jurisdiction to claims that do not implicate the international law obligations of the United States.  Not only would that not redress the problems the ATS was intended to redress, it would create additional foreign policy challenges for the national government by allowing federal courts to intervene in international controversies that do not directly implicate the United States.

In Jesner, for example, the claim is that a Jordanian entity facilitated terrorist activities by a Palestinian entity in Israel and the Palestinian territories.  None of the parties is a U.S. citizen or entity, and none of the terrorist activity took place in the United States.  The only connection to the United States is that Arab Bank has a branch in New York and some of the payments may have been processed through (though not made at) the New York branch.

International law does not obligate the United States to provide a remedy in this case.  Failure to entertain this case in U.S. courts will not raise any of the concerns that motivated the drafters of the ATS.  This is simply not the sort of claim the ATS was intended to address, because it does not involve any international obligation of the United States.  Federal court intervention in the case will lead to more international difficulties for the U.S., not fewer (Jordan, for example, has filed a brief objecting to U.S. courts' involvement in the case).

The lower courts decided the case on the ground that international law categorically does not impose obligations on corporations (as opposed to individuals and nations) and therefore Arab Bank cannot be liable for a tort in violation of the law of nations (as the ATS requires).  That is the question now before the Supreme Court.  It is a question with troubling implications however it is resolved.

A much simpler solution is at hand,  The ATS is a tool for the protection of U.S. foreign policy, and in particular a tool to ensure the United States honors its obligations under international law.  It should not be sued as a tool to allow U.S. courts to intervene in disputes among foreigners which do not materially implicate the United States.  That is the essence of what our amicus brief argues.

I'll add one further point from an textualist/originalist perspective.  The ATS's text is not limited to the sort of concerns sketched above, so one might ask, on what grounds might it be so limited?  The short answer to this is that, as an original matter, Article III of the Constitution, as relevant to Jesner, only gives federal courts jurisdiction over "Controversies ... between a state, or the Citizens thereof, and foreign states, Citizens or subjects."  It does not give jurisdiction over disputes entirely among non-U.S. citizens.  The early Supreme Court confirmed in two cases, Mossman v. Higginson in 1800 and Hodgson v. Bowerbank in 1809, that federal courts lacked jurisdiction over suits between aliens (unless the suits arose under the U.S. Constitution, laws or treaties, or came within one of the other categories of jurisdiction in Article III, such as admiralty).

Jesner does not involve any substantive federal law, treaty or the Constitution.  And it does not involve any U.S. parties.  So there should be no Article III federal jurisdiction, and the broad statutory grant of jurisdiction in the ATS should be read to conform to Article III, even if it does not say so in so many words, just as Mossman and Hodgson held for a different part of the Judiciary Act.  That is how the statute's original meaning kept focused on the concerns motivating the ATS: absent a U.S. party, there typically would not be concerns about U.S. obligations under international law. 

At least, that is the originalists' answer.  The problem is that the modern Court has held that federal courts can sometimes create "federal common law" that gives federal courts jurisdiction even as to alien-versus-alien claims, and it has further held, or at least implied, that claims under the ATS fall within this category.  So Jesner may not be resolvable simply on jurisdictional grounds.  Instead, the question becomes whether federal courts ought to create a federal common law claim in the circumstances of a case like Jesner.

Put that way, the question becomes discretionary, not constitutional.  But the original concerns motivating the ATS should provide an answer.  As originally conceived, the ATS would ordinarily not have provided a remedy for alien-versus-alien claims, and that is consistent with its purpose of providing a remedy for U.S. violations of the law of nations.  In considering whether to recognize a federal common law claim in Jesner, the Court should be guided by this basic purpose of the ATS -- even though the background law has changed somewhat -- and direct federal courts not to involve themselves in a dispute with no material connection to the United States.

That's the essence of the amicus brief.  I'm pleased to join a distinguished group of foreign relations scholars on the brief.

UPDATE:  SCOTUSblog's report on the argument is here.  I like this part: 

The court’s newest justice, Neil Gorsuch, was even more unsympathetic to the plaintiffs. He repeatedly pressed [plaintiff's counsel, Stanford Law professor] Fisher to explain whether the plaintiffs’ interpretation of the ATS was consistent with what Congress intended when it enacted the law in 1789, and he seemed unconvinced by Fisher’s answers. When Fisher at one point cited a seminal Supreme Court opinion from 1900 to bolster his argument, Gorsuch pushed back, asking Fisher how we could know whether that was the understanding of Congress in 1789.

10/10/2017

Randy Barnett & Evan Bernick: A Unified Theory of Originalism
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) and Evan D. Bernick (Georgetown University Law Center) have posted The Letter and the Spirit: A Unified Theory of Originalism on SSRN.  Here is the abstract:

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism.

Our theory draws upon a familiar common-law concept long used in contract law to handle the problem of opportunistic abuse of contractual discretion: the duty of good-faith performance. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens — a relationship characterized by discretionary powers in the hands of officials and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given them in “this Constitution” in good faith. This means that judges engaging in constitutional construction or implementation must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text.)

Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty of good-faith originalist construction. Good-faith construction consists in (a) accurately identifying the spirit — or original function” — of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade either its original letter or spirit (or both) in pursuit of their own extralegal preferences.

Professor Barnett has more at Volokh Conspiracy: Presenting a “unified” theory of Originalism.  It begins:

Critics of originalism like to claim that the existence of  several competing variations of originalist theory undermines the case for originalism itself. This has always been an exaggeration. All originalists–regardless of their flavor–share the basic view that the meaning of the text of the Constitution was fixed at the time it was adopted (the “Fixation Thesis“) and that this meaning should constrain constitutional actors today (the “Constraint Principle“). But it is undeniable that a schism exists among originalist theorists over the “interpretation-construction distinction.” According to this distinction, there is a fundamental difference between constitutional interpretation–the activity of identifying the communicative content of the text–and constitutional construction–the activity of giving legal effect to, or implementing, that meaning.

Since my book, Restoring the Lost Constitution, was first published in 2004, I have insisted that, because constitutional construction occurs when original meaning “runs out,” the term “originalist” is properly limited to the activity of interpretation and, correlatively, the activity  of construction is unavoidably “nonoriginalist.” For some originalists and nonoriginalists alike, while original meaning interpretation may close the door for unwarranted judicial discretion, allowing for the legitimacy of nonoriginalist constitutional construction opened the window. While nonoriginalists cheer this as showing that originalism differs little in practice from living constitutionalism, this has led some originalists to deny or disparage the distinction itself.

Although I still believe that the activity of interpretation is distinct from that of construction or implementation, in the course of writing a new paper with Evan Bernick, I have come to reconsider the claim that only constitutional interpretation can be “originalist.” I now believe that my prior insistence that only constitutional interpretation can be “originalist” was mistaken. I have concluded that constitutional construction can be originalist as well.

Professors Barnett and Bernick presented an earlier version of the paper at the University of San Diego's originalism works-in-progress conference in February.  It's an impressive contribution.

(Thanks to Mark Pulliam for the pointer).

10/09/2017

Lawrence Solan & Tammy Gales: Corpus Linguistics as a Tool in Legal Interpretation
Michael Ramsey

Lawrence M. Solan (Brooklyn Law School) and Tammy A. Gales (Hofstra University) have posted Corpus Linguistics as a Tool in Legal Interpretation (Brigham Young University Law Review, 2018 forthcoming) on SSRN.  Here is the abstract

In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas Lee and Stephen Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when the legal standard for construction is the ordinary meaning of the document’s terms. We argue here that four issues should be addressed before determining that corpus analysis is likely to be maximally convincing. First, the legal issue before the court must be about the distribution of linguistic facts. Second, the court must decide what makes an interpretation “ordinary.” Third, if one wishes to search a corpus to glean the ordinary meaning of a term, one must decide in advance what to search. Fourth, there are different reasons as to why a particular meaning might present a weak showing in a corpus search and these need to be understood. Each of these issues is described and discussed.

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

10/08/2017

Gary Lawson: Confronting Crawford
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Confronting Crawford: Justice Scalia, the Judicial Method, and the Limits of Originalism (University of Chicago Law Review, forthcoming) on SSRN. Here is the abstract: 

Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When Justice Scalia was appointed to the Court in 1986, a very crude version of the “attitudinal model” dominated both academic and popular views about how Supreme Court justices were likely to decide cases. Almost everyone expected Justice Scalia to be a Warren Burger clone who would reflexively vote to lock up guilty criminals. When he instead decided some cases based on meaning and methodology rather than results, the legal community had difficulty processing the point. If that seems strange to modern eyes, so that a 2004 decision such as Crawford does not appear inexplicable, it is at least partly because of Justice Scalia’s influence in the ensuing decades, which has helped moved methodology to the forefront of jurisprudence. Third, Crawford is an outstanding exemplar of Justice Scalia’s originalist methodology in both action and inaction. Actively, the textual, structural, historical, and purposive moves in Crawford exemplify the “fair reading” interpretative methodology that Justice Scalia spent much of his life advancing. On the other hand, that methodology was applied to the “wrong” text, because Crawford (and all subsequent Confrontation Clause cases) involved state rather than federal prosecutions, to which the Sixth Amendment literally does not apply unless the most dramatic form of text-for-text incorporation is the correct original meaning of the Fourteenth Amendment. Crawford thus focuses attention on how originalism as a method of interpretation does not always easily translate into originalism as a form of adjudication.

An important, thought provoking, not-to-be-missed essay for those interested in originalist methodology.

On the third point, as briefly discussed in my survey of Justice Scalia's originalist methodology (Part II.C), I think the problem is that Scalia never really resolved in his own mind (a) whether he thought the original meaning of the Fourteenth Amendment incorporated the Bill of Rights or whether incorporation was something he accepted merely as a matter of stare decisis; and (b) whether, regardless of the answer to (a), incorporation meant automatic "text-for-text incorporation" (as Professor Lawson calls it) or whether it meant incorporation of the 1868 understanding of the Bill of Rights provisions.  My reading is that Scalia's opinions are inconsistent on both points.

10/07/2017

"Scalia Speaks" Now Published, #1 Seller in its Category
Michael Ramsey

I anticipated its publication a while back, but it's now available: "Scalia Speaks: Reflections on Law, Faith, and Life Well Lived," a collection of the Justice's speeches edited by Christopher Scalia and Ed Whelan.

Via Ed Whelan, here are some enthusiastic reviews:

Perhaps my favorite review so far is from actor Edward Gero, who portrays the Justice in the play The Originalist: “Can’t put it down. Hilarious, incisive, brilliant. And well edited. Will read and reread again and again.” Others:

An “extraordinary collection of speeches” that “offer a powerful portrait of a great public figure and thinker”—“an intellectual feast and at the same time great fun to read.” http://www.nationalreview.com/corner/452189/scalia-speaks-yuval-levin [ed.:  by Yuval Levin]

“A treasure trove of new material to savor” http://www.libertylawsite.org/2017/10/05/i-heard-the-voice-of-scalia/ [ed.:  by Mark Pulliam]

“Ever intelligent and witty, Justice Scalia’s levity enchants almost every page.” http://mirrorofjustice.blogs.com/mirrorofjustice/2017/10/a-man-of-good-humor-and-good-will-scalia-speaks-ginsburg-praises.html [ed.: by Erika Bachiochi]

“Indispensable” http://www.weeklystandard.com/soulcraft-as-statecraft/article/2009859 [ed.: by Adam J. White]

“These addresses are beautifully constructed in their rhetorical expression and logical development, as satisfying to read as they must have been to hear”; “I was unprepared to laugh as much as I did.” http://www.weeklystandard.com/good-writers-disease/article/2009868 [ed.: by Barton Swaim]

The book is off to a great start: it’s an Amazon #1 Best Seller in its category and it’s generally been in the top 150 or so spots on Amazon’s million-plus list.

And (also pointed out by Ed Whelan), here is the closing paragraph of Justice Ginsburg's introduction:

This collection of speeches and writings captures the mind, heart, and faith of a Justice who has left an indelible stamp on the Supreme Court’s jurisprudence and on the teaching and practice of law. The work of his fine hand will both inspire and challenge legions of judges and advocates. If our friendship encourages others to appreciate that some very good people have ideas with which we disagree, and that, despite differences, people of goodwill can pull together for the well-being of the institutions we serve and our country, I will be overjoyed, as I am confident Justice Scalia would be.

10/06/2017

No Petition for Cert in DC Second Amendment Case
Michael Ramsey

Via Eugene Volokh at Volokh Conspiracy, the District of Columbia apparently has decided not to seek Supreme Court review in Wrenn v. District of Columbia, involving challenges to DC's restrictions on the ability to carry concealed weapons in public The DC Circuit invalidated the provisions on a 2-1 vote (Judge Griffith writing for the majority, joined by Judge Williams; Judge Henderson dissenting); the full court then (surprisingly, to me) denied rehearing.

That leaves in place Judge Griffith's textualist and (especially) historical originalist panel opinion.  The opinion notes that "the Amendment’s text protects the right to 'bear' as well as 'keep' arms. ... [I]t’s more natural to view the Amendment’s core as including a law abiding citizen’s right to carry common firearms for self defense beyond the home (subject again to relevant “longstanding” regulations like bans on carrying “in sensitive places”)."  The opinion then assess the history at length, including pre-Convention English history and post-ratification judicial assessments well into the nineteenth century.  (For criticism of the panel's use of history, see here from Fordham University legal historian Saul Cornell).

As Professor Volokh relates, DC officials were expressly worried about a loss at the Supreme Court: 

"I continue to believe the District’s ‘good reason’ requirement is a common-sense, and constitutional, gun regulation,” D.C. Attorney General Karl Racine (D) said in a statement announcing the decision with the mayor and police chief. “However, we must reckon with the fact that an adverse decision by the Supreme Court could have wide-ranging negative effects not just on District residents, but on the country as a whole.”

I don't see how this issue stays out of the Court for much longer though.  So perhaps originalists have something to look forward to, despite the 2017 Term's general tendency toward major nonoriginalist cases.

10/05/2017

A Bad Supreme Court Term for Originalism?
Michael Ramsey

With the 2017 Supreme Court term underway, it's time to consider its originalism implications. One might think that originalists would be optimistic with Justice Gorsuch -- apparently a strong textualist originalist -- joining the Court.  But I suspect that, at least on the headline cases, it will be a bad term for originalism, based on the leading case the Court will consider.

To begin, consider Tuesday's argument in Gill v. Whitford, the political gerrymandering case (SCOTUSblog account here).  As Justice Gorsuch pointed out, it's not even clear on what part of the Constitution the case should be based, and as George Will points out, the challenge is to a practice as old as the Constitution and literally named after one of the Framers.  Perhaps there's an argument that political gerrymandering is nonetheless unconstitutional under the Constitution's original meaning, but I doubt the Justices in the majority (assuming, as I do, that the gerrymanderers will lose) will be at all interested in it.  Rather, as oral argument made clear, the question is how the Court will intervene to stop the odious practice of political gerrymandering without opening the floodgates to annoying follow-on litigation the Court would prefer to avoid.  Almost every comment at the argument from both judicial sides (apart from Justice Gorsuch) was pragmatic: can we make this work or not?

Even more problematic is Janus v. American Federation of State, County, and Municipal Employees, Council 31, the union dues case.  The conservative-leaning Justices have been anxious for some time to overrule Abood v. Detroit Board of Education and hold that the First Amendment bans compelled union dues for public sector unions.  They may now have the votes (it seems very likely they had the votes prior to Justice Scalia's death).  But I do not see the originalist argument for the challengers in this case.  Routinely, governments compel private citizens to pay taxes, with some to the tax revenue used to support governmental messages the taxpayers may not endorse.  No one thinks this is a constitutional problem, and I'm not aware of any originalist evidence that it is.  In Janus, the government requires private citizens to pay money to the union, with some of the money being used to support the union's messages that the private citizens does not endorse.  Is there a difference of constitutional magnitude?  That is what the Supreme Court must hold to rule for the challengers (as I assume it will).  I see no originalist evidence for this conclusion.  The short of it is that making a person pay union dues, where the money is used to support expressive activities the person doesn't support, seems unfair.  (I pay state bar dues, so I understand).  But unfair and unconstitutional are not the same thing.  It's bad enough for originalists when non-originalist Justices decide on pragmatic or fairness grounds and don't bother with an originalist argument; it's even worse when supposedly originalist or originalist-leaning Justices do it.  

And third there is the travel ban case, assuming it is not dismissed as moot.  However it comes out, I doubt originalism will have much to do with it, as immigration is an area where a basis in the Constitution's original meaning was long ago abandoned.

Of course, there may be hidden gems for originalism, and some important cases on which certiorari may be granted in the near future might have originalist overtones (for example, several pending Second Amendment cases).  But I suspect that the headline cases this term will see the Court majorities largely ignoring originalist arguments.  (Perhaps, though, we will have some classic dissents). 

10/04/2017

Justice Gorsuch as Justice Scalia in Sessions v. Dimaya?
Michael Ramsey

At SCOTUSblog, Kevin Johnson: Argument analysis: Faithful to Scalia, Gorsuch may be deciding vote for immigrant (commenting on Monday's Supreme Court argument in Sessions v. Dimaya).  From the introduction:

[On] the first day of the October 2017 term, the justices heard oral argument in Sessions v. Dimaya, a void-for-vagueness challenge to a criminal-removal provision of the U.S. immigration laws. As I explained in my preview of the case, the U.S. Court of Appeals for the 9th Circuit had relied on the Supreme Court’s opinion in Johnson v. United States [written by Justice Scalia] to find unconstitutionally vague a provision making a “crime of violence,” as defined in the immigration statute’s “residual clause,” 18 U.S.C. § 16(b), an “aggravated felony” subjecting an immigrant to mandatory removal. In so doing, the court of appeals rejected an immigration court’s conclusion that James Garcia Dimaya, neither of whose two burglary convictions involved violence, had been convicted of a “crime of violence” and had to be removed from the United States.

And a key observation:

Not long into the argument, Gorsuch began active questioning and seemed ready and willing to apply Scalia’s opinion in Johnson to this case. In language that Scalia would have loved, Gorsuch noted that the due process clause does not include the criminal/civil distinction embraced by the government: “I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn’t draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right of self-incrimination, for example.”

A Further Apology to Seth Barrett Tillman
Michael Ramsey

From Jed Shugarman, on behalf of the signers of the legal historians' brief in the emoluments litigation: Our correction and apology to Professor Tillman.  In full:

Today our lawyers sent a letter (linked here) to Judge Daniels acknowledging an error in footnote 82 of our amicus brief in CREW et al., v. Trump.  In addition to correcting this error, we would like to take this opportunity to apologize to Seth Barrett Tillman, to whom this footnote refers.  Although we acted in good faith, we now recognize that we were wrong to cite blog posts criticizing Professor Tillman’s research without undertaking more extensive due diligence to determine whether those criticisms were justified.  On the issue of Hamilton’s signature on the so-called Condensed Report, we now believe that Professor Tillman is likely correct, and his critics—including us—were mistaken.

In addition, we wish to acknowledge that footnote 82 makes several imprecise and unwarranted statements about Professor Tillman’s amicus brief.  First, we wrote that Professor Tillman’s brief “overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material,” when we should simply have observed that, in our judgment, his brief does not clearly identify a key archival manuscript that bears on its thesis.  Second, we wrote that a footnote (fn. 76) in Professor Tillman’s brief “incorrectly described the ASP print as ‘undated’ and ‘unsigned.’”  In fact, Professor Tillman’s footnote did not use the words “ASP print” or “unsigned” but instead characterized the “ASP document” as “undated” and the “document in ASP” as “not signed by Hamilton.”

Finally, we wish to apologize to Professor Tillman for the manner in which we took issue with his findings and arguments in our amicus brief.  Under the circumstances, a more appropriate way to proceed would have been to approach him directly and ask for clarification about his interpretation of the Condensed Report.  Each of us would hope for more generous treatment from another scholar who criticized our own work in this fashion, so it was unfair not show the same level of respect to Professor Tillman.

We regret these errors and extend our apologies to Professor Tillman, whose diligent research we admire. We appreciate his long-standing position on how to interpret the Constitution’s reference to “Office of Profit or Trust under [the United States],” regardless of who is holding the office of President, and we respect his commitment and creativity in pursuing that interpretation. We look forward to continuing to engage the many important historical questions raised by this lawsuit.

Sincerely,

Jed Shugerman

John Mikhail

Jack Rakove

Gautham Rao

Simon Stern

RELATED:  Seth Barrett Tillman and Josh Blackman guest-blogging on emoluments at Volokh Conspiracy:

The emoluments clauses litigation, part 5 — problems with the complaints in CREW v. Trump

The emoluments clauses litigation, Part 3 — so what if the president does not hold ‘Office … under the United States’?

10/03/2017

More from Bruce Ledewitz on Originalism and the Trinity Lutheran Case
Michael Ramsey

At Hallowed Secularism, Bruce Ledewitz: Debate on Originalism.  From the introduction:

Last week I had the pleasure of exchanges at Duquesne Law School and at Pitt Law School with Rick Duncan of Nebraska Law School--not actually debates. Professor Duncan is both knowledgeable and forthright and I only wish national disagreements could be entertained as fruitfully. Both the students and I learned a great deal about law and religion and originalism. Here are my remarks on the Lutheran Church case and originalism, which I discussed on this blog in July. My thanks to Pitt Law School and the Pitt Federalist Society, as well as the Duquesne Federalist Society for the invitations.

And further: 

In July, I engaged in an extended exchange with Georgetown Law Professor and, it is fair to say, America’s leading originalist, Randy Barnett on this subject of Trinity Lutheran Church and the end of originalism [ed.: with all respect to Professor Barnett, I might say that America's leading originalist is Clarence Thomas]. Suffice it to say, the exchange went Randy’s way. You can look it up. 

But, since, as all law students know, it is possible to lose a debate to a more skilled and more intelligent adversary even though you are actually right, I thought I would try again to explain just what a disaster Trinity Lutheran Church is for the doctrine of originalism and why originalism should have to be retooled in light of that case.

Trinity Lutheran Church held that the State of Missouri was required by the Free Exercise Clause to allow a church to participate in a playground resurfacing reimbursement grant program. The constitutional violation consisted in prohibiting the church’s participation in a government benefits program solely because of the church’s religious character.

From the point of view of originalism, what is noteworthy about Chief Justice Roberts’ majority opinion and the concurrences by Justices Thomas and Gorsuch is the unwillingness of any Justice in the majority even to attempt to justify this result by reference to the original public meaning of the Free Exercise Clause or the original public meaning of the 14th Amendment under some theory of due process incorporation. 

There is no way to interpret that original public meaning and come to the conclusion that a government’s refusal to provide public funds directly to a church could violate the Free Exercise Clause. ...

Earlier posts on the topic include: 

Bruce Ledewitz, 'Trinity' case marks end of originalism

Rob Natelson, A Response to a “Living Constitutionalist”

Randy Barnett, Does Trinity Lutheran mark the “end of originalism”?

Michael Ramsey, Is Trinity Lutheran the End of Originalism?

10/02/2017

Laura Rae Dove: Absurdity in Disguise
Michael Ramsey

Laura Rae Dove (Department of Management, Human Resources & Law,  Troy University) has posted Absurdity in Disguise: How Courts Create Statutory Ambiguity to Conceal Their Application of the Absurdity Doctrine on SSRN.  Here is the abstract:

Although explicitly invoked only in rare cases, the absurdity doctrine is far more robust in practice than commonly assumed. This is because of a phenomenon I call “absurdity in disguise,” wherein judges use the anomalous or undesirable results of applying a statute’s ordinary meaning to “create” statutory ambiguity, opening the door to a variety of interpretive tools that would otherwise be unavailable. Ironically, the use of ambiguity to conceal the use of the absurdity doctrine is a direct result of judges’ increasing acceptance of textualist methods of statutory interpretation. Because textualism eschews results-oriented interpretive approaches, judges who wish to avoid a result of applying statutory text as written must employ text-centric arguments to do so. This article identifies the concept of absurdity in disguise and reveals its use in a variety of decisions at all levels of the federal courts.

And (because it seems like an important article that might not get the attention it deserves), here is the introduction (footnotes omitted):

That judges make law, rather than merely discover it, has been broadly (if grudgingly) acknowledged at least since the advent of legal realism. Yet judges’ discomfort in acknowledging this fact—and attempts to obscure their lawmaking—have also been well documented. Judicial and scholarly proponents of textualism, a method of statutory interpretation, are some of the most vocal in denouncing judicial intrusion into the policy and lawmaking realm of legislatures. Textualism emphasizes the determination of statutory meaning based on the ordinary meaning of a statute’s text; it rejects attempts to circumvent or even supplement the apparent meaning of statutory text through inquiries into the enacting legislature’s intention or purpose. For textualists, statutes simply mean what they say

Scholars have thoroughly documented a strong textualist shift within the Supreme Court over the last few decades. In light of textualism’s profound influence, judges are highly attuned to the separation of powers concerns underlying the doctrine’s efforts to restrict judicial interference with the legislative role. Yet, the gap between what judges do and what they say they do has, perhaps ironically, only grown with the popularity of textualism as a statutory interpretation method. At first blush, the contention that textualism has widened the gap between what judges do and what they purport to do seems counterintuitive. One of textualism’s explicit goals is to restrict improper judicial lawmaking. If textualism has been so successful, there should be less (improper) lawmaking in the first place; therefore, any need to conceal it should likewise have diminished.

To shed light on this paradox, another phenomenon must be examined in tandem with the rise of textualism: the declining acceptance of the absurdity doctrine. The absurdity doctrine is a canon of statutory interpretation holding that a statute’s apparent ordinary meaning may be disregarded if the results of its application are (in some sense) absurd. The conflicts between textualism and at least some iterations of the absurdity doctrine have been well-documented in the literature. Modern judges typically eschew all but the most narrow versions of the absurdity doctrine, requiring a statute's plain meaning to be patently illogical or insensible in order to justify applying the doctrine.8 Otherwise, they contend, the judiciary risks overstepping its constitutional limitations by ignoring plain meaning where it entails an outcome seemingly contrary to the overall statutory purpose or policy. Absurdity’s willingness to subvert a statute’s clear meaning to avoid an undesirable result obviously clashes with textualism’s admonitions regarding the dangers of results-oriented decision-making. Yet, as scholars have pointed out, textualism essentially requires some version of the absurdity doctrine in order to avoid truly untenable interpretations or applications of apparently clear statutes.

Textualism’s combination of textual primacy and strict limits on the use of the absurdity doctrine significantly constrain judges’ discretion to look beyond a statute's text during the interpretive process in order to achieve results thought by a judge to be fair, consistent with statutory purpose, or consistent with legislative intent. However, textualism's success has had an unintended and potentially counterproductive consequence. Judges, wary of appearing overly "results-oriented" by liberally applying the absurdity doctrine, have seized upon an interpretive rule with broader acceptance that ultimately permits them to achieve the same result: ambiguity.

Once a statute is determined to be ambiguous, even textualists will consult a much broader range of sources as interpretive aids than would otherwise be permissible. Thus, if the "hurdle" of ambiguity can be overcome, judges are afforded greater discretion than they would be if hampered by a finding of plain meaning—which, given the current narrow version of the absurdity doctrine, must be applied absent extreme circumstances. The rise of textualism and decline of the absurdity doctrine have created an incentive for judges to find that the language of a statute is ambiguous. By so doing, I will argue, courts are able to achieve results virtually identical to those possible if a judge determined that a statute's meaning was plain and then proceeded to apply some version of the absurdity doctrine. At the same time, by framing their decisions in linguistic, rather than policy considerations, judges minimize the appearance of acting outside the judicial role. Statutory purpose, policy goals, and outcomes can all be considered; contradictory text is supplanted even as its preeminence is exalted. Thus, I refer to this phenomenon as "absurdity in disguise."

This article explores how the confluence of modern versions of textualism and the absurdity doctrine contributed to the jurisprudential shift I call absurdity in disguise. In Part II, I describe the uncomfortable fit between textualism and the absurdity doctrine in further detail, outlining their conflicting justifications and policies. In Part III, I describe the phenomenon of absurdity in disguise and explain how the creation of statutory ambiguity enables judges to obtain the same results as if the absurdity doctrine were openly applied. In Part IV, I discuss  several recent cases in which absurdity in disguise can be observed. The cases involve statutes displaying classic symptoms of absurdity, including statutes that appear to be too broad or too narrow for their applications to be consistent with the statute's likely intended reach. Part V concludes.

10/01/2017

Perry Dane: Religion, and Constitutional Reason
Michael Ramsey

Perry Dane (Rutgers Law School) has posted A Tale of Two Clauses: Privacy, Religion, and Constitutional Reason (William & Mary Bill of Rights Journal, forthcoming) on SSRN. Here is the abstract: 

This Article dissects two developments in widely separate areas of American constitutional law – the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts too. But they appear with special clarity and a stark cumulative force in the two stories on which the Article focuses.

The most evident of these three common threads is a shallow and distracting focus on psychological reactions and affects. Another is the doomed effort apparent in both contexts to ground legal values in empirical facts, an effort found in other current legal strategies such as “original public meaning originalism.” The third is the failure to see that legal techniques that can make sense to solve hard cases at the edges of doctrinal categories must sometimes be distinct from the deeper principles that motivate and shape the categories themselves.

The Article examines the doctrinal development of both the “reasonable expectation of privacy” and “endorsement” tests. It also contemplates their possible fates as each comes under increasing practical and conceptual pressure. At the end of the day, the Article is in some respects a plea for at least a certain sort of legal formalism – not the illusory axiomatic, determinate, legal formalism, that was the straw man of legal realists, but a more modest yet self-confident formalism that understands law’s distinctive role, in concert with other normative languages, in both framing and shaping the world in which we live.

09/30/2017

Peter Bayer: Deontological Originalism
Michael Ramsey

Peter Bayer (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process' on SSRN. Here is an excerpt from the abstract:

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the Reconstruction Congress properly believed in natural rights derived from principles of natural law. Accordingly, they sought to enforce through the Constitution, the natural rights philosophy set forth in the Declaration of Independence. Most importantly, natural law and resultant natural rights are deontological, that is, they enforce a priori, immutable moral precepts that descend not from human imagining but from the natural order of existence, what the Declaration denoted as, “Nature and Nature’s God.” That is why, under the Constitution, any and all immoral governmental conduct is unconstitutional regardless of bureau or actor - legislative, judicial, executive or administrative - and regardless of level - federal, state or local.

Unlike articles that aver similar ideas, this writing presents Deontological Originalism as a metatheory, meaning, it expounds at once essentially all fundamentals, and their respective proofs, as indeed any work defining and defending a theory of Originalism should do. Metatheory accounts for this commentary’s length; but, frankly, it is time that one law review article presented a meta-theoretical perspective given the exasperated skepticism and postmodernist complacency most often greeting serious assertions that the Constitution enforces natural law and, therefore, the bench and bar must become “natural lawyers” when addressing constitutional rights. After thirty years of perhaps sporadic writings addressing many of the relevant aspects, I offer Deontological Originalism, a venture proceeding from the utility of Originalism, to the meaning of Deontology, to the intent of the Founders and of the Reconstruction Congress, to the deontological principles of Enlightenment philosopher Immanuel Kant, to modern due process dignity theory enforcing Deontological Originalism through Kantian morality, culminating in the Supreme Court’s bravura rulings requiring that Government accord same-sex marriage the full and equal legal status accorded opposite-sex marriage.

09/29/2017

Jennifer Mascott: Constitutionally Conforming Agency Adjudication
Michael Ramsey

Jennifer L. Mascott (George Mason University - Antonin Scalia Law School) has posted Constitutionally Conforming Agency Adjudication (Loyola Journal of Regulatory Compliance, forthcoming (2017)) on SSRN.  Here is the abstract:

In June 2017 the D.C. Circuit issued a judgment that essentially reaffirms the constitutionality of current appointments procedures for administrative law judges (ALJs) in the Securities and Exchange Commission (SEC). After conducting an en banc hearing in the case, the en banc court split evenly over whether the ALJs are “Officers of the United States” subject to the constitutional requirement of appointment by the president, a department head, or a court of law. The evenly divided vote resulted in the affirmance of the D.C. Circuit’s earlier panel decision finding that the ALJs are not “officers”—continuing the court’s split with the Tenth Circuit, which has concluded the ALJs are “officers.” The continued split and the en banc posture of the case mean this issue may receive consideration by the Supreme Court.

This essay responds to a widely cited article by Professor Kent Barnett that suggested ALJs should be appointed by neither the President or an agency head, even if the courts eventually conclude they are “officers.” In particular, Professor Barnett contends that executive branch appointment of agency adjudicators creates such a significant threat to ALJ impartiality that due process considerations may require a court of law such as the D.C. Circuit—rather than the executive branch—to appoint ALJs. This essay refutes those concerns. Tying together legal scholarship on due process and the Appointments Clause, this essay contends: The Article II clause that vests executive power in the President, as well as the text and drafting history of the Appointments Clause, together mandate that agency adjudicators must be appointed by executive branch actors—not by courts of law. As long as these adjudicators handle issues properly resolved through executive adjudication as a historical matter, there are no constitutional partiality concerns with the executive branch appointment—or even removal—of agency adjudicators. Rather, the transparency protections of the Appointments Clause provide the appropriate constitutional mechanism for accountability in executive adjudication.

09/28/2017

Adam White: Justice Scalia's Soulcraft as Statecraft
Michael Ramsey

Adam J. White (Hoover Institution) has posted Justice Scalia's Soulcraft as Statecraft on SSRN.  Here is the abstract: 

In December 1986, just three months after his appointment to the Supreme Court. Justice Antonin Scalia explored the relationship between law, his Christian faith, civic virtue, and republican government. Three decades later, we can find the themes that he explored in those brief (and long-overlooked) remarks resonating through many of his subsequent judicial opinions, articles, and speeches. 

Taking those writings together, we see the foundation for Justice Scalia's view of constitutional law and the work of judges in our constitutional system — and the crucial role that education must play in sustaining the virtues that undergird and sustain republican government.

This essay was written for a December 2016 workshop on Scalia and education, organized by Prof. Paul E. Peterson, for the Harvard Kennedy School's Program on Education Policy and Governance. It was later published in two versions: as an essay in the Fall 2017 issue of National Affairs, and as a chapter in "Scalia's Constitution: Essays on Law and Education," edited by Paul E. Peterson and Michael McConnell (2017).

09/27/2017

Mark Frassetto: The First Congressional Debate on Public Carry and What It Tells Us about Firearm Regionalism
Michael Ramsey

Mark Anthony Frassetto (Everytown for Gun Safety) has posted The First Congressional Debate on Public Carry and What It Tells Us about Firearm Regionalism on SSRN. Here is the abstract:

In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia’s public carry law in the 1890s. These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no national consensus regarding a right to public carry under the Second Amendment. This is important because the Supreme Court in Heller stated that the Second Amendment “codified venerable, widely understood liberties.” Second, the Senators’ and Congressmen’s varied positions on the Second Amendment and the permissible scope of public carry regulations generally fell into regional patterns. Representatives of states in the North and West supported a more limited public carry right, while those representing states in the Deep South, with some exceptions, supported a broader Second Amendment right. Because the Northern Republicans were the ideological force behind the drafting and ratification of the Fourteenth Amendment, their restrictive view of public carry should be given special weight when determining the constitutionality of contemporary public carry regulations.

I have some doubts about the relevance of debates from the 1890s on the original meaning of the Fourteenth Amendment.  But I have become a little less doubtful after studying Justice Scalia's originalist methodology, which gave more weight to distant post-ratification evidence than one might expect (see here).

09/26/2017

A Lot More from Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey

At Prawfsblawg, Carissa Byrne Hessick: Corpus Linguistics Re-Redux.  A long post, it begins:

Since my last post on Corpus Linguistics two weeks ago [ed.: noted here], several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog [ed.: noted here and here]. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN [ed.: noted here].  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

Plus interesting reactions in the comments from, among others, Ian Bartrum, Asher Steinberg and Neal Goldfarb.  And don't miss Asher Steinberg's earlier comments at Neal Goldfarb's blog (via this link).

09/25/2017

Jed Shugerman Apologizes to Tillman and Blackman (Updated)
Michael Ramsey

At Take Care Blog, Jed Shugerman (Fordham): An Apology to Tillman and Blackman. Re-posted in full, because it deserves to be: 

On Tuesday evening, I received the proposed response by Seth Tillman and Josh Blackman explaining their treatment of the Hamilton “Condensed Letter.” I am writing separately from my co-authors on our amicus brief to offer my appreciation for the hard work by Tillman and Blackman to produce these experts’ reports, and I write to offer them an apology.

I welcome amicus’s introduction of these scholars and their interpretations. I have great respect for their expertise and their analysis. I am satisfied that Tillman and Blackman have provided support for their perspective on these documents. I note that we found the “Condensed Letter” in the archives only six weeks ago, and I will continue to examine it in light of these experts’ reports. There is much more to the arguments about the Emoluments Clauses, and I look forward to engaging them in future briefs.

Most importantly, I offer them a public and personal apology for my public questioning of their claims. I was wrong to suggest that Tillman misused sources, and I was wrong to question his credibility. I take full responsibility for my Aug. 31st blog post, which was my work alone, and solely my error in judgment. Even if my questions were reasonable and posed in good faith, I regret that I did not ask these questions by email to give Tillman an opportunity to respond directly. Tillman is a diligent, creative, intelligent, and learned scholar who deserved more respect than the way I handled these exchanges. I’m sincerely sorry for any trouble or hardship I caused for Mr. Tillman and his family.

Background on the Tillman/Blackman filing and related controversy is here.   

All scholars make mistakes at time.  The question is what comes after.  Professor Shugerman (whom I don't know personally) shows an honest and courageous way.  There's a lot to be learned from this episode.

UPDATE:  It makes the New York Times ... Adam Liptak: ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm. Despite the headline, generally complementary to Professor Tillman, including:

Five legal historians, including Professor Shugerman, filed their own friend-of-the-court brief. They said Mr. Tillman’s had “incorrectly described” the evidence in a footnote in his brief.

Mr. Tillman took none of this lightly. In a sworn statement last week, he repeated his original position. “I stand entirely behind the above footnote: behind every sentence, every phrase, every word and every syllable,” he wrote. “I made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything.”

Mr. Tillman, who is represented by Josh Blackman, an energetic law professor and litigator, rounded up declarations from experts in founding-era documents and on Hamilton. They agreed that the document said to contradict Mr. Tillman’s account was not signed by Hamilton and was prepared after his death.

I asked Mr. Tillman’s critics for their reactions. Professor Shugerman responded with “a public and personal apology.”

And:

Professor Shugerman’s fellow historians — John MikhailJack RakoveGautham Rao and Simon Stern — said they were still studying the matter.

At Instapundit, Glenn Reynolds comments:  "The last time so many legal historians embarrassed themselves was when they defended fraudulent legal historian Michael Bellesiles."

RELATED:  Professors Blackman and Tillman are guest-blogging at Volokh Conspiracy.  Here is their first post: The Emoluments Clauses litigation, Part 1: The Constitution’s taxonomy of officers and offices.

09/24/2017

Stephen Mortellaro: The Unconstitutionality of the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications
Michael Ramsey

Stephen E. Mortellaro (George Washington University Law School) has posted The Unconstitutionality of the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications (63 Loy. L. Rev. (2017, Forthcoming)) on SSRN. Here is the abstract:

Congress strikes at the core of state sovereignty when it disenfranchises voters. Yet demands for national disenfranchisement laws have become pervasive since the 2016 election, and Congress has a ready model: a federal statute prohibiting noncitizens from voting in federal elections. Despite upending centuries of state control over voter qualifications, this statute remains unchallenged in court and unexamined in academia; its constitutionality has been assumed. This article challenges this assumption, arguing that the federal ban on noncitizen voting—along with every other voter qualification Congress may impose—unconstitutionally infringes state sovereignty.

Most voting rights scholarship focuses on the constitutional amendments that prevent disenfranchisement based on race, sex, wealth, and age. This article demonstrates how the Constitution limits the federal government even further. By tracing the history of the Elections Clause and analyzing contemporary election law jurisprudence, this article shows how Congress’s traditional sources of authority over federal elections do not empower it to impose substantive qualifications on voters. More fundamentally, examination of the text and history of the Voter Qualifications Clauses reveals that states possess an exclusive power to determine who is ineligible to vote. This analysis makes evident that all congressionally-imposed voter qualifications—even those that do not invidiously discriminate—cannot survive the constraints of American federalism.

09/23/2017

A Lot More from Neal Goldfarb on Corpus Linguistics
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb: Meaning in the framework of corpus linguistics.  From the introduction:

At the end of my previous post discussing Carissa Hessick’s paper “Corpus Linguistics and the Criminal Law,” I said that I would follow up with another post “making the affirmative case for the relevance of frequency data in determining ordinary meaning.” This is that post.

Given that subject, you might wonder why I’ve titled this post “Meaning in the framework of corpus linguistics.” The answer is that corpus linguistics has not only provided a methodology for investigating meaning, it has also generated important insights about word meaning. (That was the subject of the paper I presented at the BYU symposium in February, which will be published, along with the other papers from the symposium, in a special issue of the BYU Law Review.) I’ll draw on those insights when I talk about frequency analysis, and I thought it would be helpful to make them explicit.

(A lengthy post that's not possible to excerpt meaningfully).

Via Larry Solum at Legal Theory Blog, who highlights this passage from Goldfarb:

ONE OF THE PREMISES of the usage-based approach to word meaning, in both corpus-based analysis and traditional lexicography, is that the patterns of actual usage constitute the subject of inquiry—the raw data to be analyzed—and that those patterns provide evidence of the various meanings that a word is used to convey. And in fact, actual usage does more than simply provide evidence of a word’s meaning(s), it determines those meanings. To state it differently, word meaning arises from usage.

And he adds: "This point is absolutely crucial to understanding the role of corpus linguistics in determination of the meaning (communicative content) of legal contexts.  The post is deeply informed and must reading."

Bonus:  An "epic comment" (Goldfarb's description) by Asher Steinberg on Goldfarb's post; it begins:

I want to apologize at the outset for leaving a comment about a third as long as your post [ed.: a very long post!], but as you say, these are interesting times and like Professor Hessick I am afraid that statutory interpretation is about to fall into fundamental error over the course you suggest. I will just focus on your findings on humans carrying objects, which seems like an object case for this approach. None of those findings do anything for me, for a few reasons. ...

09/22/2017

Asher Steinberg on the President and Foreign Emoluments
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: The Textual Argument That the President Does Not Hold an "Office Under the United States".  A thorough, detailed and yet readable summary of the argument that underlies the Tillman/Blackman position in the foreign emoluments litigation.  From the introduction:

I was very skeptical indeed of Tillman's position [that the President does not hold an "Office under the United States"] at first, the necessary consequences of which include: (a) that Presidents and members of Congress are not covered by the Foreign Emoluments Clause, (b) that the Incompatibility Clause, which prohibits officers under the United States from serving in Congress, does not prevent the Speaker of the House or Senate Majority Leader from simultaneously serving as President, (c) that the President can be a member of the Electoral College notwithstanding the Elector Incompatibility Clause, which prohibits officers under the United States from serving in the Electoral College, and (d) that Congress can not prevent an impeached official from running for the Presidency, notwithstanding the Disqualification Clause, which allows Congress to disqualify impeached officials from serving in any office under the United States.  These seem like fairly odd rules, and I happen to be someone who believes that oddity is a cognizable constitutional-interpretive consideration, both by way of gauging what the Constitution was likely intended to mean by its drafters or understood to mean by its ratifiers, and as a perfectly legitimate freestanding consideration of its own.

However, as I reviewed the drafts of Tillman and Blackman's brief and read the various responses to Tillman's articles that have been written over the years by some of the academy's leading originalists, most of which were sharply critical, I began to become convinced not only that there is a very serious textual argument for Tillman's position, but that it was difficult to see what an adequate textual rejoinder would look like.  None, I believe, has yet been offered.  

I do not think this textual argument is entirely made or entirely clear in Tillman's brief or perhaps even in his articles, which dwell as much on historic practice and pre-framing usage of related phraseology as on text and pulls several textual punches.  Unlike the brief's authors, or many originalists, I am not someone who attaches profound importance to who Hamilton listed as an officer under the United States in 1793, or whether then-President Jefferson accepted a bust of the Czar of Russia without asking for permission from Congress.  These instances of practice seem to me, at best, indicia of what a couple high-ranking officials made of the Constitution near its ratification, no more or less weighty than the EPA Administrator and her deputy's near-contemporaneous understanding of the Clean Air Act—information in which the connoisseurs of Tillman and Blackman's sort of argument tend to have little to no interest.  I am, however, interested in constitutional text, especially a part of the Constitution's text as little-interpreted as this one, and I think any reader will agree that under normal, humdrum rules of textual interpretation, Tillman's initially counterintuitive claim that the President does not hold an office under the United States is at least a highly permissible reading of the text if not indeed the best.

Extensive and persuasive discussion follows.

And in conclusion:

My intention here has not been to provide anything like a conclusive argument that Presidents are (at least as a textual matter) not officers under the United States.  My intention, rather, has only been to show that there is a strong argument that they are not that needs to be taken far more seriously than it has been, not just because Hamilton prepared a report that supports the view or because Tillman's critics have made spurious claims about the historical record or Tillman himself, but because the text of the Constitution tends to support it.  

I sincerely believe that much work remains to be done in this regard, precisely because so much of the literature and briefing taking the position that Presidents are officers under the United States has been so peremptory.   The weakness of that side of the literature, in my view, is not necessarily a sign of a weak position so much as it is a function of the position's strong intuitive appeal, both in a casual plain-language sense and as a matter of policy, such that the position has seemed too obvious until now to need much defense from a lone scholar.  My hope in writing this post has been to at least help dissolve the sense that the Presidency's status as an office under the United States is beyond debate, so that scholars, researchers and lawyers inclined to support that proposition can begin the textual and historical work of explaining why it is correct, and so that scholars, researchers and lawyers who come to this question in a spirit of genuine inquiry can continue the work that Professor Tillman has so ably started.

(Via How Appealing).

RELATED:  Josh Blackman has additional thoughts here: The Early Days of the Obamacare and Emoluments Clause Litigation.  On the amicus effort in the emoluments litigation he says:

While most scholars never even considered the Foreign Emoluments Clause, and who holds “Office . . . under the United States” before November 2016, Seth Barrett Tillman has been studying these areas for nearly a decade. Long before Donald Trump was President, he wrote consistently that the language used in the Foreign Emoluments Clause does not apply to elected positions, like the President or members of Congress. He wrote that President Barrack Obama could keep his Senate seat, and a Vice President Ryan could keep his House seat. The most cursory inspection of Seth’s record demonstrates that this is not an ideological or partisan project. He has been a consistent scholar on this point for years. Further, Seth persuaded me on that question some time ago, long before President Trump was even a figment of my imagination. That is why I have devoted considerable time and effort in this litigation. Working closely with Seth has been one of the most rewarding experiences of my career.

This brief has nothing to do with Donald Trump or his business interests. Rather, as a friend of the court, we seek to provide a stream of authority about the text and history of the Constitution that neither of the parties have advanced. 

09/21/2017

Was Justice Scalia an Old Originalist?
Mike Rappaport

One of the standard distinctions these days is between the old originalism and new originalism.  While different people define the distinction a little bit differently, I define the old originalism as having two essential characteristics: using “original intent” to determine the original meaning of a provision and a belief that significantly constraining judges is essential to the task of originalism.

The newer originalisms – I use the term “newer originalisms” rather than the “new originalism” because new versions of originalism differ from one another – have abandoned these two characteristics.  The newer originalisms tend to focus on the original public meaning – focusing on a more textual than intentionalist approach.  And the newer originalisms no longer hold (or act like) significantly constraining judges is essential.  If the original meaning is permissive – if it is unclear, vague, or delegates power to judges – then that is the original meaning and newer originalists generally believe it should be followed.

Given these definitions, how should we classify Justice Scalia?  On the one hand, Scalia was perhaps the most important person responsible for the shift from original intent to original public meaning.  Thus, he deserves a significant place among those responsible for the newer originalisms.

On the other hand, Scalia placed a very strong value on constraining judges.  And it is a common criticism of the Justice that he often preferred clear rules to the original meaning, when that original meaning might have been unclear.  I mentioned one example in my prior post on the nondelegation doctrine.  Another example is Justice Scalia’s decision to refuse to join Justice Thomas’s decision in McDonald concluding that incorporation of the Second Amendment occurred under the Privileges or Immunities Clause rather than the Due Process Clause (which had been “fixed” through precedent).  On this score, then, Scalia stands as an old originalist.

One possible way of reconciling clear rules with the original meaning is to assume (in cases of ambiguity) that the Framers would have preferred a meaning that was clear over one that was unclear.  There is something to be said for this, but at most I believe it supports a weak inference.  And Scalia rarely, if ever, made this argument.

Thus, Scalia stands somewhere between the old originalism and the newer originalisms.  He is something of a transitional figure, who established one innovation but retained the traditional theory in other ways.

Charles Barzun: Justice Souter's Common Law
Michael Ramsey

Charles L. Barzun (University of Virginia School of Law) has posted Justice Souter's Common Law (Virginia Law Review, forthcoming 2018) on SSRN.  Here is the abstract:

The first-year law-school curriculum aims to teach students the “common-law method.” But exactly what sort of judicial reasoning that method permits and requires has long been the subject of debate. There are multiple models of common-law reasoning, not just one. This Article identifies one such model that legal scholars have yet to recognize as a distinct theory of common-law adjudication. It is an approach I ascribe to former Justice David Souter.

Seeing Justice Souter as a common-law judge is hardly novel; it is the conventional wisdom about him. But in my view Souter’s understanding of the process of case-by-case adjudication reflects deeper philosophical commitments – and, for that reason, carries with it more radical implications – than has been appreciated. To support this claim, I compare Souter’s understanding of the common law to two better known rivals – Ronald Dworkin’s “law as integrity” and Judge Richard Posner’s legal pragmatism. I then show how each of the three models flows from its own more general model of practical reasoning. 

The upshot of the comparative analysis is a clearer view of a model of common-law reasoning that combines elements of the other two but that rejects an assumption common to them both. Like Dworkin’s, Souter’s model sees legal principles embodied in case law; but like Posner’s, it is empiricist and pragmatist in spirit. It can coherently combine these elements only because, unlike either of its rivals, Souter’s model treats factual and evaluative forms of reasoning as continuous with each other, rather than dichotomous. In rejecting the fact/value dichotomy, Souter accords a much greater role to history in common-law reasoning than do either Posner or Dworkin. The result is an understanding of common-law adjudication that is at once more traditional and more radical than either of its more famous rivals. I examine that more radical dimension at play in some of Justice Souter’s most famous and controversial opinions, including the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

In comparing the Souter approach to originalism, a key question is whether Souter's approach actually imposed any constraints, or whether it merely justified results consistent with the Justice's intuitions.  If the latter, it's really just a version of living constitutionalism, like the Posner and Dworkin varieties.  If the former, it could be a legitimate "third way" alternative to the originalism/living constitutionalism debate.

(But I think it was the latter).

09/20/2017

Justice Scalia and the Nondelegation Doctrine
Mike Rappaport

This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine.  While I have only skimmed the piece, it appears to tell a story similar to the one that I would.

Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies.  One was his concurring opinion in Mistretta v. United States.  In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional.  While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission.  Unlike other agencies, it did nothing else besides promulgating these guidelines.  Thus, it was a junior varsity Congress.

By contrast, Scalia’s argument would not condemn other agencies, because they also did other things, which were executive.  So the EPA both enforces the environmental laws and passes regulations under those laws. Thus, it avoids Scalia’s condemnation of the Sentencing Commission as a junior varsity Congress.  Every year, my students are confused by Scalia’s opinion.  They think he is tough on delegations to agencies.  But he is not.  Every other agency delegation passes the test.

What about the fact that Congress might be conferring broad discretion to an agency to write regulations?  Scalia addressed this by saying the distinction between excessive discretion and constrained discretion could not be drawn.  It was a distinction of degree, not of kind.  Thus, he would not enforce it, leaving it to constitutional structure as a kind of political question.

The second Scalia opinion was Whitman v. American Trucking.  Unlike Mistretta, Scalia was writing for the entire Court this time, and so his opinion was different.  This time Scalia appeared to apply the precedents, claiming that these delegation precedents allowed ample discretion to be conferred on agencies.  And he was correct – they did allow ample discretion – although Scalia wrote the opinion in a way that appeared to embrace the ampleness of the allowable discretion, rather than to discourage it.

Scalia never addressed the original meaning on this subject, and thus his opinions are open to serious criticism.  Perhaps Scalia would have found the precedents overrode the original meaning, but he never addressed the argument.  And one gets the impression, from Scalia’s Mistretta opinion, that he liked the precedents.  They allowed him to avoid the difficult task of distinguishing between permissible and impermissible delegations, something that would have required judges to draw unclear lines.  Scalia hated having judges engage in such a task.

Contrast Scalia here with Justice Thomas.  In American Trucking, Justice Thomas concurred, noting that he doubted the precedents were consistent with the original meaning and that he was willing to reexamine the constitutionality of the lenient nondelegation doctrine in a suitable case.

Some years later, in Department Of Transportation. v. Association Of American Railroads, Justice Thomas wrote a long opinion for himself articulating what he believed the proper approach to nondelegation was.  It is hard to imagine Justice Scalia joining this opinion, which would hold many current delegations to be unconstitutional. Unfortunately, though, Justice Thomas does not really solve or even seriously address the problem that so troubled Justice Scalia – distinguishing between permissible and impermissible delegations in a principled way.

Tillman and Blackman Strike Back on Emoluments [Updated]
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump (United States District Court for the Southern District of New York) on SSRN.  Here is the abstract:

In an amicus brief (supporting Defendant President Trump) submitted to this Court (Southern District of New York), my counsel included the following footnote: 

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative. 

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything. 

Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

The full motion, to which the above document is an exhibit, is here: Amicus Curiae Scholar Seth Barrett Tillman's and Proposed Amicus Curiae Judicial Education Project's Motion for Leave to File Response to Amici Curiae by Certain Legal Historians (filed by Robert Ray [Thompson & Knight], Josh Blackman [South Texas Law School] and Carrie Serevino [Judicial Education Project]).  It begins:

On June 16, 2017, undersigned counsel for Amicus Curiae scholar Seth Barrett Tillman submitted a motion for leave to file an amicus brief on behalf of Tillman [ECF No. 37] in support of the Defendant, which the Court granted on June 28, 2017 [ECF No. 39]. On August 11, 2017, several Legal Historians filed a motion for leave to file an amicus brief in support of the Plaintiffs [ECF No. 70], which this Court granted on August 15, 2017 [ECF No. 73]. ...

 The Legal Historians allege that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material” [ECF No. 70-1, p. 22 n.80]. Counsel for Plaintiffs has endorsed this allegation. Because the authenticity and provenance of this document bears directly on the question of whether the President holds an “Office . . . under the United States,” and on the meaning of the Foreign Emoluments Clause, Tillman and proposed amicus JEP respectfully request leave to respond to this allegation. The proposed response, along with supporting Exhibits A–R, which are attached hereto as Exhibit 1, demonstrate that the Legal Historians are plainly wrong. The so-called “key Hamilton manuscript” was not signed by Alexander Hamilton, but rather is a scrivener’s copy drafted a
generation later.

And further:

In 1792, Alexander Hamilton was directed by the Senate to provide a list of the “emoluments” of “every person holding any civil office or employment under the United States.” He sent a response in 1793, which we refer to as The Complete Report. It did not list the President, Vice President, or other elected officials. The 1793 Complete Report is a contemporaneous construction of substantially the same language at issue in the Constitution’s Foreign Emoluments Clause. There is a second document: The Condensed Report. That document was drafted based in large part on The  Complete Report. The Tillman Amicus (“Amicus”) brief explained that this latter report was not signed by Alexander Hamilton, it was not dated, and it was drafted by an unknown Senate functionary. In other words, its precise provenance remains unknown in the sense that we simply cannot identify the specific person who drafted it.

The Brief of Amicus Curiae by Certain Legal Historians contends that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material.”  The Legal Historians allege that that The Condensed Report was signed by Hamilton and it is equally authentic with the original document, The Complete Report.  The Legal Historians Brief is plainly wrong. The Condensed Report is nothing more than a scrivener’s copy of The Complete Report, drafted after Alexander Hamilton’s death. In ruling on whether the President holds “Office . . . under the United States,” this Court should rely on The Complete Report, which was signed by Hamilton, and not the unsigned and undated Condensed Report.

As the brief indicates, this filing is in response to a series of attacks (in court and out, some of them noted on this blog [see here]) challenging Professor Tillman's initial description of the Hamilton documents.

Here is my post on the original Blackman/Tillman amicus.  That brief argues that the emoluments clause, Article I, Section 9,  does not apply to the President because the presidency (like other elected positions) is not an "office of Profit or Trust under [the United States]" as specified by the clause.  Hamilton is said to have agreed -- or not, depending on which document one favors.

I don't have an opinion on the merits (except that Professor Tillman and his counsel Professor Blackman, both of whom I know personally, sound very confident, and they are scholars I hesitate to disagree with).  My interest is principally the extent to which the plaintiffs, their counsel, and their academic supports, have become extraordinarily focused on the originalist arguments in this litigation, to the extent of near-obsession with what strikes me as a pretty obscure document even by originalist standards.  If originalism were just a quirky outlier in constitutional argumentation (as various people asserted during the Gorsuch hearings), it really should not matter if Professor Tillman is right about this obscure document.  That the plaintiffs' side has become so obsessed with it shows, to my mind, that they know originalist arguments have force -- especially in an area where there is no Supreme Court precedent -- and they are afraid of the Tillman/Blackman argument.

UPDATE: At his blog, Josh Blackman has more excerpts and strongly worded commentary: New Filings in the Emoluments Clause Litigation.  He begins:

The litigation concerning the Foreign Emoluments Clause demands a careful study of the text and history of the Constitution. The Plaintiffs and their amici (including a group of self-styled “Legal Historians”) have attempted to discredit the amicus brief I filed on behalf of Seth Barrett Tillman. On the blogosphere and in filings with the Southern District of New York, they charged that we mislead the court about a document called The Condensed Report. They assert that The Condensed Report was signed by Alexander Hamilton, but because it undercuts our theory, we misled the court about its provenance.

Had the Plaintiffs and their amici asked an actual expert who specializes in the field of authenticating founding-era documents (we asked two), they would have learned rather quickly that this document was not signed by Alexander Hamilton. And had the Plaintiffs and their amici asked an actual expert who specializes in the works of Alexander Hamilton (we asked three), they would have learned that the document was drafted after Hamilton’s death.

And further:

One of our experts is John P. Kaminski. He has has been editing The Documentary History of the Constitution since 1969 and his work has been cited by the United States Supreme Court as well as by Plaintiffs and their Amici. (I hope they do not attempt to attack an expert that the Constitutional Accountability Center and Laurence H. Tribe previously cited). Kaminski agreed with Amicus-Tillman concerning the provenance of The Complete Report (which was signed by Hamilton) and The Condensed Report (which was not). Here are excerpts from his affidavit that demonstrate the embarrassing error made by Plaintiffs and their Amici:

15. Historical documentary editors regularly face the task of identifying the authorship and dating documents in determining what documents to publish in their volumes, what documents should be relegated to annotation, and what documents should be excluded altogether. I have been making these kinds of decisions for almost fifty years. After examining the two reports, it seems clear to me that one interpretation is possible. I agree with the editors of the Hamilton Papers that The Complete Report is an original Hamilton document while The Condensed Report is a later copy.

16. Both lengthy reports were written by scriveners. The Complete Report was signed by Alexander Hamilton himself. I base this opinion in substantial part on my professional judgment as to what Hamilton’s signature looked like. The Condensed Report also contains the words “Alexander Hamilton” where a signature might appear, but this “signature” was clearly not written by Hamilton himself. Rather, the words “Alexander Hamilton” were written by the same scrivener who transcribed The Condensed Report. Endorsements or marginalia on both documents assist in determining the genesis of The Condensed Report. The markings on The Complete Report in pencil indicate that the report was “To be condensed & printed. See page Journal 441 & 497.” The page numbers refer to the relevant dates of 7 May 1792 and 27 February 1793 located in the 1820 printed edition of the U.S. Senate Journal published by Gales & Seaton. The back of The Condensed Report is docketed: “2 Cong No. 34 2 Sess. Condensed.” Beneath the word “Condensed” appears: “Report from Secretary of the Treasury with names & compensation of all Officers in the civil employ of the Government, 1793 Feb 27—Series 10 No. No. [sic] 34 Miscellaneous.” A separate notation indicates: “Condensed by Order of the Secretary of the Senate.”

17. These markings clearly indicate that sometime after 1820 (probably near 1833), the Secretary of the U.S. Senate ordered that a condensed version of The Complete Report be made. Transcribed by a clerk of the Senate, The Condensed Report was then printed in the first miscellaneous volume of American State Papers, published in 1834. Hamilton was long since dead by 1820. Thus Alexander Hamilton had no direct connection with The Condensed Report.

The Plaintiffs and the Legal Historians have made a serious mistake by failing to distinguish between an authentic document and a copy that was drafted a generation later. This error was not an errant mistake in a scholarly journal, but one reviewed and vetted in a court pleading. And it was one designed solely to attack Tillman’s credibility.

And a challenge to the Legal Historians:

But the scholars who joined the Legal Historians brief have to make an important decision about whether to retract this claim [regarding Hamilton's signature on the second document] ... and whether they should put their names on future briefs in this litigation–especially those they did not personally write. The Legal Historians are Professor Jack N. Rakove (Stanford University, Department of History), Professor Jed Handelsman Shugerman (Fordham Law School), Professor John Mikhail (Georgetown University Law Center), Professor Gautham Rao (American University, Department of History), and Professor Simon Stern (University of Toronto).

A further thought: To me this episode indicates how originalism can get beyond concerns over "law office history" (and, as my colleague Mike Rappaport has called it, "history office law").  Exploring the original meaning is a dynamic and adversarial process, whether in litigation or in scholarship.  The project does not turn on the adequacy of any particular contribution. The hope is that the sum of the contributions will lead to a clearer understanding.

09/19/2017

The Legislative History of the Fourth Amendment: Unreasonable Searches and General Warrants
Mike Rappaport

The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Significantly, the two clauses are separated by an “and.”  This “and” has led to an uncertainty about the relationship between the two clauses. Some people argue that searches and seizures without warrants are unreasonable, except in limited circumstances.  Others argue that searches and seizures do not require warrants under any circumstances.  Instead such warrants were used as a defense by government officials against tort claims for illegal searches and therefore were restricted to certain situations.

Interestingly, the original version of the Fourth Amendment did not have this structure.  James Madison’s proposed version of what would become the Fourth Amendment provided:

The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

Madison’s provision only provides protection from certain kinds of warrants – the protection provided by the prohibition clause.  While it includes the language of the rights clause, this language does not confer that right independently.  Instead, Madison’s provision merely states that the right can be violated by violating the prohibition clause.  In fact, the rights clause narrows the scope of the prohibition clause by limiting it to “persons, houses, papers, and other property.”

One possibility for Madison’s provision was that it sought to work a compromise between two views of the right at issue.  The Massachusetts Constitution of 1780 provided for both the rights clause and the prohibition clause: “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right” if they do not satisfy the various requirements in the prohibition clause.

By contrast, the Virginia Declaration of Rights provided only for the prohibition clause.  Madison, a Virginian, might have sought to work a compromise, which would have operated much like the Virginia Declaration.  Instead, the Amendment was changed to follow the Massachusetts provision.

James Cleith Phillips & Sara White on Corpus Linguistics and Foreign Emoluments
Michael Ramsey

James Cleith Phillips (J.D., University of California, Berkeley, School of Law; Ph.D. candidate, Jurisprudence & Social Policy, UC-Berkeley) and Sara White (M.A., Brigham Young University, linguistics; BYU, J. Reuben Clark Law School, Law and Corpus Linguistics Research Fellow) have posted The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799 on SSRN.  Here is the abstract:

The recent flurry of scholarship seeking to understand the meaning of the emoluments clauses of the Constitution, particularly the Foreign Emoluments Clause, in the wake of President Trump’s election and subsequently filed lawsuits, has relied on a host of interpretive methodologies. To the extent scholars now (and courts later) seek to understand what the term emolument(s), used thrice in the Constitution, would have meant to the founding generation, their methodologies in determining such have generally relied on small, unrepresentative samples of language usage and founding era dictionaries. But the former cannot confidently provide insights that we can generalize to the greater population (either overall or of lawyers) from the time, and the latter are simply not up to the task of determining usage patterns. Instead, corpus linguistics—what Professor Lawrence Solum had predicted “will revolutionize statutory and constitutional interpretation”—is needed to answer that question.

This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period—here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA)—to make confident conclusions about probably founding-era meaning.

The article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone.

This paper finds that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.

09/18/2017

John McGinnis on Originalism and Amendments
Michael Ramsey

At Liberty Law Blog, John McGinnis: How Originalism Energizes the Amendment Process.  From the introduction: 

In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances.   But  defenders of  living constitutionalism as an interpretive theory do have a response to this  position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position. ...

RELATED:  Also from John McGinnis: Scalia’s Reading Law Reflects the Rise of Formalism and the Language of Law.  A key point: 

Reading Law has one important flaw.  Scalia and Garner do not identify adequate criteria for determining what is a valid canon. But it is essential to do so if we are to apply canons consistently to the Constitution. In our view, the interpretive rules for the Constitution of 1789 are those that were deemed applicable at the time. Thus, originalists must research the relevant interpretive rules in 1789 no less than they must investigate the meaning of the terms at that time.  And just as interpreters should choose the better meaning of a term, even if only slightly better than the alternative, so should interpreters likely embrace interpretive rules when the better view is that they were deemed applicable to a text like the Constitution.