Originalism in Canada: Judicial Posts for Huscroft and Miller
Michael Ramsey

Two of Canada's leading originalist scholars -- Grant Huscroft and Bradley Miller -- have been appointed to the Canadian courts in Ontario, per this report: Tories appoint two conservative law professors as judges.  Congratualations to Professors Huscoft and Miller (both of whom, I can't help adding, are past participants in the USD originalism works-in-progress conference).  They are the co-editors of the outstanding volume The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge Univ. Press 2011).

(Thanks to Larry Solum for the pointer.)

Sachs on Smith, and Balkin on Everyone
Michael Ramsey

At Liberty Law Forum, Stephen Sachs (Duke): Saving Originalism’s Soul (commenting on Steve Smith's essay Meanings or Decisions? Getting Originalism Back on Track).  From the introduction:

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that made “That Old-Time Originalism” great.

To Smith, the new originalism lacks any claim to the Framers’ authority. Because it looks to the meanings of the Framers’ words, and not to their substantive expectations, it can be made by skilled sophists to justify things “the enactors wouldn’t have approved—would perhaps have deplored,” like rights to abortion or to same-sex marriage. If the Framers had foreseen such consequences, their Constitution “would have been reworded to avoid the unwanted results, or would not have been enacted at all.” That makes the new originalism irrational, a product (at best) of the Framers’ “ignorance” and lack of foresight, not their “mindful deliberation.” Instead, Smith counsels a return to the “original decision,” which (he argues) rules out any deplorable consequences that the Framers would have opposed.

And in conclusion:

The soul of originalism is a method, not a collection of results. The theory is aimed at getting the law right, not at advancing any particular political platform. It rules nothing out in advance, looking to what the law and history actually reveal. This openness to potential surprises is a strength, not a weakness: it shows that the theory is robust—that it can handle a variety of different kinds of evidence.

That flexibility, it’s true, raises a risk of manipulation. Smith not-so-subtly accuses Balkin, Michael Perry, and even Robert Bork of bending the historical record to support their preferences. But he writes as if such manipulation were largely unstoppable—as if only a fundamental change in interpretive method could build a firewall strong enough to resist it. It’d be far simpler, though, to argue that the manipulators are wrong: that they misunderstand what the Framers did and what results follow therefrom. Is that not enough? And if they aren’t wrong, shouldn’t that lead Smith to reexamine his own views?

Like anything else, the new originalism can be done poorly, or even fraudulently. That doesn’t mean that we should stop doing it—any more than “junk science” should lead us to ban science, or motivated reasoning should lead us to abandon reason. Not every bargain is a Faustian one; some trade-offs really are worthwhile. In each case, we do what we can with the tools that we have. And in the end, as G.K. Chesterton put it, “if a thing is worth doing, it is worth doing badly.”

At Balkinization, Jack Balkin comments (at length, and with characteristic depth and insight) on the Smith essay and the responses from Sachs as well as those (noted here earlier) from Mike Rappaport and Will Baude.


New Book -- "Overruled: The Long War for Control of the U.S. Supreme Court" by Damon Root
Michael Ramsey

Damon Root (Reason) has this new book out: Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave Macmillan 2014).  Here is the book description from Amazon: 

Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloody age of slavery, the Civil War, and Reconstruction to its central role in today’s blockbuster legal battles over gay rights, gun control, and health care reform.

It's a conflict that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows. Judicial deference is not only a touchstone of the Progressive left, for example, it is also a philosophy adopted by many members of the modern right. Today’s growing camp of libertarians, however, has no patience with judicial restraint and little use for majority rule. They want the courts and judges to police the other branches of government, and expect Justices to strike down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom.

Overruled is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society, a fundamental debate that goes to the very heart of our constitutional system.

With this blurb from P.J. O'Rourke:

“In Overruled, Damon Root explains a divide in judicial theory about which I was not only ignorant but mistaken. ‘Judicial activism’ is wrong.  Right? It gives unelected authorities minority power to impose rules and regulations that violate individual rights without a democratic process. Wrong. It’s ‘judicial deference’ that gives elected authorities majority power to impose rules and regulations that violate individual rights within a democratic process. And to further confuse the issue judicial activism and judicial deference have, by turns, been the darlings of both Liberals and Conservatives.  Fortunately, Damon Root explains it all.”

Ilya Somin has a generally positive review here.


Josh Blackman on Text and Enforcement Discretion (Plus Bonus Discussion of the Immigration Enforcement Ruling)
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: The Take Care Clause and Prosecutorial Discretion (continuing this discussion). Here is his core point, which I think has not been given the attention it deserves in other discussions of the issue: 

 I think there are a few textual hooks in Article II to think about. First, the President must “take care.” Second, he must do so “faithfully.” ...

... It is very true that Congress only appropriates a fraction of the amount of money necessary to enforce all drug crimes. But it does so, knowing that the threat of enforcement nationwide serves as a deterrent to committing these crimes (I’m sure there are reams of legislative history on this point). When the President categorically declines to enforce the drug laws in several states, the deterrent effect–which Congress asked the President to execute–is eliminated. Here, I don’t think it can be said the President is acting as a faithful agent of Congress. In fact, he is thwarting what Congress designed. 

So as I understand it, then, the problem is not so much that the President is refusing to enforce as to certain categories of offenders, but that he is publicly announcing that he is refusing to enforce as to certain categories of offenders.  It is the public announcement that undercuts the congressionally intended deterrence.

This is a better textual argument than I've seen elsewhere on the point.  But I'm not sure that it doesn't assume its conclusion.  That is, it assumes that Congress wants the residual threat of non-enforcement to remain.  But what if Congress assumes the President will use categorical non-enforcement to mitigate the unfairness of Congress' (poorly drafted) laws, so that Congress does not have to think too carefully about what it is doing?    Speculation about what Congress intended is a dubious move, and appeals to legislative history don't make me feel any better about it.

I continue to think it's hard to make much headway here on text alone without a historical understanding of executive non-enforcement power (which I have not conclusively investigated).

RELATED:  Professor Blackman comments here on the district court decision (sort of) finding the President's immigration non-enforcement policy unconstitutional.  

Further thoughts on the decision at Volokh Conspiracy:  Ilya Somin, A poorly reasoned federal district court opinion striking down Obama’s executive order on immigration and Orin Kerr, Unless I’m missing something, this is an exceedingly strange opinion (the latter is especially amusingly harsh).

As Professor Somin notes, the core of the court's constitutional argument is that the policy is unconstitutional because

(a) It provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications rather than case-by-case examination; and

(b) it allows undocumented immigrants, who fall within these broad categories, to claim substantive rights.

The first point is, I think, sort of what Professor Blackman and I have been discussing, and I'm inclined to think it is not a constitutional problem.  (Professor Somin makes some good points against the court's view in his post.)  The second point I think, if true, is a very big constitutional problem, but I'm not sure if it's true (Professor Somin thinks it's not).  I'll return to this issue later. However, it is one reason I think it more productive to discuss non-enforcement in the context of the federal marijuana laws, where this issue plainly doesn't exist.

AND MORE: Timothy Sandefur at Freespace: The President shall take care that the law be faithfully executed. Or ignore it. Whatevs. (criticizing an earlier article by Professor Somin on textual/historical grounds).


The Commerce Power and Constitutional Structure: Counterarguments
Mike Rappaport

In my prior two posts here and here, I discussed why even the narrowest view of the commerce power under modern precedents – Lopez and Morrison – is inconsistent with the constitutional structure because that view renders several other enumerated powers redundant.  Here I discuss whether there are any counterarguments to my position.

One counterargument is that redundancy is not a serious matter since the Constitution contains clear redundancies.  I disagree with this view.  The standard way of writing formal legal documents, especially short ones like the Constitution, was to avoid redundancies.  As a result, courts interpreted the document to avoid reading it to contain surplusage – including in the landmark case of Marbury v. Madison.  (On the argument for following interpretive methods at the time, see here.)

It is true that the Constitution does contain a few redundancies, such as Congress’s power to establish inferior federal courts in both Article I, section 8 and in Article III, section 1.  Sometimes one can come up with an explanation for a redundancy -- with the second provision added for clarification or as a limitation.  But if not, one must accept it as an oversight of the drafting process.  But the few redundancies that the Constitution contains should not be used as a justification for embracing redundancies or failing to regard redundancies as matters to be avoided.  That way lies clear misinterpretation.

Another counterargument is that the redundancies are the result of changed circumstances.  At the time of the Constitution, the commerce power was limited, but over time – due to the expansion of interstate commerce – the power came to be much broader.  Again, this has a grain of truth in it – interstate commerce certainly has grown since 1789.  The problem is that even under the degree of interstate commerce at the framing, the modern interpretations would still allow significant redundancies.  So long as a commercial activity had a substantial effect on interstate commerce, from an aggregation of individual actions, the activity could be regulated, and that would probably produce all of the examples of redundancies listed in my last post.

Kurt Lash: Originalism All the Way Down?
Michael Ramsey

Kurt Lash (University of Illinois College of Law) has posted Originalism All the Way Down? (Constitutional Commentary, Vol. 30, p. 149, 2014) on SSRN. Here is the abstract: 

In their new book, ORIGINALISM AND THE GOOD CONSTITUTION [Ed: Harvard Univ. Press, 2013, see here], John McGinnis and Michael Rappaport attempt to vanquish what they call constructionist originalism with an approach that I call methodist originalism. Unlike constructionist theories, which allow for non-originalist construction of underdetermined texts, methodist originalism proposes filling in the historical gaps with what McGinnis and Rappaport claim were the originally accepted methods of interpretation. This is originalism all the way down.

It’s a creative effort, and one that appropriately rejects some of the more latitudinous originalist theories currently in play. Unfortunately, the same history McGinnis and Rappaport rely upon fatally undermines their effort to associate every constitutional text with its own originally accepted method of interpretation. The Founding was a time of methodological dispute as legal theorists struggled to reconcile the content of common law with the commitments of popular sovereignty and American-style federalism. Although McGinnis and Rappaport have introduced an important consideration in determining the original meaning of constitutional texts, gaps remain in both our understanding of both original textual meaning and original interpretive methodology. The dragon of construction is not yet vanquished.


Constitutional Structure and the Modern Commerce Power
Mike Rappaport

In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution.  The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless.  If a broad commerce power places no limits on Congress’s power, then it is clearly mistaken.

The second structure feature applies in less extreme cases.  Even if Congress’s commerce power does have limits, it should not be read so broadly as to render many of the other enumerated powers surplusage.  This structural feature is based on an interpretive rule that was well known and followed at the Framing.

Prior to 1995, the standard progressive view of the commerce power was that the ample interstate Commerce Clause (granting Congress the power “to regulate commerce . . . among the several states”) is greatly expanded by the Necessary and Proper Clause to allow regulation of not merely interstate commerce, but also any intrastate activity that significantly affected interstate commerce.  This provided unlimited power to regulate.

In U.S. v. Lopez and U.S v. Morrison, the Supreme Court articulated a limitation on that standard argument, holding that small individual effects on interstate commerce can only be aggregated if the activity is one that is commercial or economic.  This placed some limit on the Commerce Clause, but Gonzalez v. Raich read the “economic” category so broadly that it may no longer operate as much of a limitation.  But even if Raich is not followed and the commerce power has a limit, it would still conflict with the second structural feature, rendering many of the enumerated powers redundant.

Let me just mention a few of these redundancies.  First, the Bankruptcy Clause, which provides Congress with the power to establish uniform laws on the subject of bankruptcies, would be surplusage.  Even under the Lopez commerce power, Congress could pass a law allowing bankruptcy for debts entered into in interstate commerce.  But it could also regulate debts entered into in intrastate commerce, because such debts (and their consequences, such as debtor prison, etc.) would affect the ability and tendency for people to enter into interstate commerce.  Congress could aggregate here because the activity – entering into debts – is commercial.  Significantly, the redundancy of the Bankruptcy Clause is even more damning, since the commerce power would avoid the limitations of the Bankruptcy Clause, which authorizes only “uniform laws on the subject of Bankruptcies.”

Second, the Patent and Copyright Clause would also be redundant.  Copyright and patent are both economic activities that would affect interstate commerce. And once again, whatever limitations the Patent and Copyright Clause contain, such as limiting copyright terms to “limited Times,” would be avoided.  In the 2003 case of Eldred v. Ashcroft, the fact that the statute at issue could have been justified under the commerce power was conveniently ignored by virtually all concerned.  Pay no attention to that oversized power in the corner!

Many other powers would also be redundant: the Foreign Commerce Clause, the Indian Commerce Clause, coining money, establishing post offices and post roads – all of these are economic activities that could be justified under the Lopez power.

One might continue the list, but the basic point is made – the enactors of the Constitution clearly did not believe the commerce power had the broad scope that even the Lopez Court permitted.

Josh Blackman on Marijuana Laws and Executive Enforcement Discretion (and my Doubts)
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: Congress, Not The President, Can Exempt States From Federal Marijuana Laws.  From the introduction: 

Last year, Attorney General Holder issued “guidance” urging federal prosecutors to avoid enforcing marijuana laws in states that have decriminalized marijuana. Similar to the immigration context, I think such a categorical suspension of the law can hardly be justified under the auspices of  (our favorite) “prosecutorial discretion.”

Professor Blackman goes on to note that the recent spending bill (or at least a version of it -- I'm not sure if this was in the final) prohibits the use of funds to "prevent ...  States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana," and adds that such congressional action is the right way to establish a categorical exception from enforcement.

But let's back up and ask why he thinks "such a categorical suspension of the law can hardly be justified" as prosecutorial discretion.  (I find this a better starting point for thinking about executive enforcement discretion than immigration non-enforcement, which has multiple complications).  I look at  it this way:  (1) Congress has not given the President the resources to enforce the federal marijuana laws against all violators; (2) especially where there is a lack of resources, the President has discretion to prioritize enforcement; and (3) prioritizing (as a general matter) can be done on a case-by-case basis or categorically.

I don't think anyone disagrees on (1) or (2), so the only issue is (3).  But where in the Constitution is there a rule that discretion cannot be exercised categorically?  Note that this is not a situation in which the President is refusing to enforce a law altogether.  The President is only declining to enforce as to some people while enforcing as to others (which everyone agrees he can do).  The only issue is how the group of people who benefit from non-enforcement is identified.

The only arguably relevant constitutional text is the take care clause.  But that clause on its face does not address the categorical/case-by-case question.  It may well be relevant to a decision not to enforce a law at all -- but that is not the issue here.  Taking care that all federal laws are faithfully executed, when not enough resources are provided to do so, necessarily involves some non-enforcement, and the only issue here is how that non-enforcement is directed.  The take care clause does not say anything on that point.

Perhaps there is some history that prosecutorial discretion was understood purely as a case-by-case power, though I'm skeptical it exists.  For example, Zachary Price's very thoughtful and thorough article on enforcement discretion does not, on my reading, make a persuasive case that there is.  Professor Price argues forcefully that categorical non-enforcement should not be allowed, but it seems more a functional than a historical argument.  Because opponents of categorical non-enforcement want to impose a limit on the President that does not appear on the face of the text, the burden should be on them to establish a more restrictive meaning derived from historical context.  I do not see that the burden has been carried.


Gerard Magliocca on The Spirit of the Constitution
Michael Ramsey

At Concurring Opinions, Gerard Magliocca: The Spirit of the Constitution, raising this point: 

Recently I’ve been asking myself this question:  What do people mean when they refer to “the spirit of the Constitution?”  It’s a phrase that was used by John Marshall in M’Culloch v. Maryland and which shows up in a lot of Supreme Court opinions.  Originally it was probably a play on Montesquieu’s Spirit of the Laws, which was influential in the eighteenth century.  But what does the phrase mean now?


Baude and Rappaport on Smith
Michael Ramsey

At Liberty Law Forum, responses to Steve Smith's Meanings or Decisions? Getting Originalism Back on Track --

Mike Rappaport: Between the Original Decision and Abstract Originalism: An Unbiased Approach to Original Meaning.  From the introduction:

Steve’s concern is that original meaning analysis has come to be distorted through what I call abstract interpretation. The Framers of the Constitution may have expected a constitutional provision to address a matter in a certain way. But by interpreting a provision to have an abstract meaning, current day judges can reach results that the Framers would have rejected.


I sympathize with Steve’s complaint’s about abstract originalism, but in the end I have to part company with his proposal. First, while I agree that originalist interpretation can be undermined by placing too much emphasis on principles and too little weight on expected applications, I nonetheless believe that both principles and the distinction between expected applications and original meaning have a role in originalist interpretation. Second I do not believe that the cause of genuine originalism would be advanced by promoting original decision originalism. Instead, the best solution is to rigorously apply an unbiased originalism that rejects interpretation based on the interpreter’s values.

Will Baude: Originalism and the Positive Turn.  From the introduction:

For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may better understand a new development in the new originalism: the positive turn, or thinking of originalism as our law.

And, Professor Baude says at Volokh Conspiracy, commenting on the exchange, this is "one of his favorite paragraphs":

This emphasis on originalism’s legal status—which I and others have proposed—is the positive turn. What does it accomplish? The positive turn answers the dead-hand argument famously leveled against originalism: The earth belongs to the living, so why should constitutional law be controlled by the decisions of the dead? The Constitution continues to control precisely because we the living continue to treat it as law and use the legal institutions it makes, and we do so in official continuity with the document’s past. The same thing is true of the other parts of our law—old statutes, old precedents, and old deeds all continue to have legal force today unless other valid legal rules upset them. So the decisions of the dead still govern, but only because we the living, for reasons of our own, receive them as law.


John McGinnis on Originalism and Big Data
Michael Ramsey

At Liberty Law Blog, John McGinnis: Originalism and Big Data.  Key point: 

A virtue of originalism is that it embeds legal interpretation in a world of empirical fact and the availability of more data can help us be more certain of what those facts were. And big data may also encourage originalists to use more sophisticated empirical methods to determine what proffered meanings fit the facts. Such empiricism helps create the kind of dispassion in which originalism is most likely to thrive. Ultimately, originalism will gain more ascendancy in the courts, if that kind of culture can be created in the academic world.


Larry Alexander: The Misconceived Search for the Meaning of 'Speech' in Freedom of Speech
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted The Misconceived Search for the Meaning of 'Speech' in Freedom of Speech on SSRN.  Here is the abstract: 

In this (very) short essay, I establish these points: All speech is symbolic; any conduct can be used to communicate a message (i.e., symbolically); government’s purpose in regulating, and not a speaker’s intention to communicate, defines the realm of freedom of expression; and determining the value of speech has a denominator problem.

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


The Modern Commerce Power
Mike Rappaport

One of the fixtures of modern constitutional law is an extremely broad commerce power (founded on both the Commerce Clause and the Necessary and Proper Clause).  Prior to US v. Lopez in 1995, this commerce power seemed to be essentially unlimited.  After Lopez, the commerce power is now only largely unlimited.  While Lopez placed limits on the power, Gonzales v. Raich may have a put a stake in the heart of Lopez (but perhaps the Court will treat Raich with the same respect it gave to Lopez).  The 2012 Obamacare case of NFIB v. Sebelius did seem to hold that Congress could not mandate commerce, but that power is unlikely to arise often (after all, Congress had never used it before).

The extremely broad commerce power seems obviously to be inconsistent with the original meaning.  Why?  Besides arguments based on the meaning of the terms of the relevant clauses, it is inconsistent with the structure of the Constitution – that is, with other constitutional clauses.

The most common criticism of the modern commerce power is that it is unlimited and therefore inconsistent with the enumeration of the federal powers.  Why, after all, list all of the powers if one has conferred unlimited authority on the federal government.  This is a strong argument, but it is limited – it can be answered so long as one admits that there are areas where the federal government lacks power.  It is a testament to how extreme the nationalist vision of the modern commerce power is – as articulated, for example, by Justice Breyer – that it is unwilling to acknowledge that there is any area that the commerce power cannot reach.  But a less extreme Justice could presumably answer the criticism by admitting areas where the commerce power does not extend.

But there is another powerful criticism that would apply not merely to the unlimited commerce power but also to a limited but very broad commerce power.  A very broad commerce power renders most of the other enumerated powers redundant.  Why have 18 different clauses, some of which containing more than one power, if one of the powers – the commerce power – renders many of the others surplusage?  While the argument against the unlimited commerce power is taken very seriously, this second argument about rendering other enumerated powers redundant is rarely mentioned.  My guess is that this second argument is too strong for judges who have accepted a broad commerce power (including most of the conservative justices) as a matter of either original meaning or precedent.  But this second argument is just as strong as the one against an unlimited commerce power as a matter of original meaning.

In my next post, I will discuss the argument in more detail.

Will Baude and Alon Harel on Interpreting Constitutions
Michael Ramsey

The University of Chicago Law School has posted audio of a debate between Will Baude (Chicago) and Alon Harel (Hebrew University of Jerusalem): How Should We Interpret Constitutions?

Professor Harel is the author of Why Law Matters (Oxford 2014).  Here is the book descrption from Amazon:

Contemporary political and legal theory typically justifies the value of political and legal institutions on the grounds that such institutions bring about desirable outcomes - such as justice, security, and prosperity. In the popular imagination, however, many people seem to value public institutions for their own sake. The idea that political and legal institutions might be intrinsically valuable has received little philosophical attention. Why Law Matters presents the argument that legal institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value. 

Harel advances the argument in several ways. Firstly, he examines the value of rights. Traditionally it is believed that rights are valuable because they promote the realisation of values such as autonomy. Instead Harel argues that the values underlying (some) rights are partially constructed by entrenching rights. Secondly he argues that the value of public institutions are not grounded (ONLY) in the contingent fact that such institutions are particularly accountable to the public. Instead, some goods are intrinsically public; their value hinges on their public provision. Thirdly he shows that constitutional directives are not mere contingent instruments to promote justice. In the absence of constitutional entrenchment of rights, citizens live "at the mercy of" their legislatures (even if legislatures protect justice adequately). Lastly, Harel defends judicial review on the grounds that it is an embodiment of the right to a hearing. 

The book shows that instrumental justifications fail to identify what is really valuable about public institutions and fail to account for their enduring appeal. More specifically legal theorists fail to be attentive to the sentiments of politicians, citizens and activists and to theorise public concerns in a way that is responsive to these sentiments.

Will Baude commented earlier on the book here.


Balkinization Symposium on Immigration and Enforcement Discretion
Michael Ramsey

Balkinization last week had this impressive symposium on immigration and the President's enforcement discretion.  Among the prominent commentators, of special note is Zachary Price: Two Cheers for the OLC Opinion (and again, here is his full-length scholarly article on the subject which has some important originalist arguments).

Without trying to be comprehensive, here are a couple of other good posts from varying perspectives -- 

Jack Goldsmith (Lawfare), The Immigration Imbroglio as (Pretty) Normal Separation of Powers (with this response at Opinio Juris by Gabor Rona [Cardozo law School]).

David Rivkin & Elizabeth Price Foley, Obama’s Immigration Enablers: The administration’s Office of Legal Counsel endorsed a view of executive power never imagined by the Founders.

At National Review, Josh Blackman, Obama's Unconstitutional Corner: His own Justice Department has provided an argument against him.

In their concluding essay on the Balkinization symposium, Adam Cox and Cristina Rodriguez say: 

Over the last several days—both on this blog and around the nation—that debate has crystalized around four central questions concerning the legality of the administrative relief laid out by President Obama last Thursday. 
(1) To be lawful, must relief be closely tied to statutorily articulated congressional priorities?
(2) Is it permissible for prosecutorial discretion to be exercised “categorically,” or must it proceed on a “case-by-case” basis?
(3) Does the fact that the President’s actions extend a benefit—work authorization—rather than just withhold a sanction affect their legality?
(4) Is the relief simply too big in scope to constitute a lawful exercise of prosecutorial discretion?
For what it's worth, I think these are the right questions, and my originalist-oriented answers -- which I may try to defend at some point -- are no, no, yes, and no.


Jonathan Keim on Department of Transportation v. Association of American Railroads
Michael Ramsey

At NRO, Jonathan Keim: Department of Transportation v. Association of American Railroads: Nondelegation Doctrine, Due Process, or Rebirth of Lochner?  From the introduction: 

This morning the Supreme Court heard argument in Department of Transportation v. Association of American Railroads (transcript here), a fascinating case about the contours of the nondelegation doctrine, which theoretically places limits on what kinds of responsibility Congress can delegate. Although it was difficult to read the Justices today, they were clearly deeply engaged with the issue. Their engagement is a very good thing because the Supreme Court’s decision will likely have enormous implications for the Constitution’s fundamental structure and the limitations (if any) on the growth of the administrative state.

Steve Smith: Getting Originalism Back on Track
Michael Ramsey

At Liberty Law Forum, Steven D. Smith (University of San Diego Law School): Meanings or Decisions? Getting Originalism Back on Track.  From the introduction: 

For originalists, must the guiding criterion of constitutional interpretation be original meaning (whether understood in intentionalist or public meaning terms)? You might thing the answer has to be yes. That is just what it means to be an originalist: to connect constitutional interpretation to original meaning.

I think the question is more complicated—and more fraught. Ironically, a focus on original meaning has led originalism to lose touch with its own goals. I will try in this brief essay to explain how this is so. And I will suggest an alternative that might help originalism get back on track. Until someone comes up with a better name, I will tentatively call this alternative “decisional originalism.”


A Reply to Chris Green
Andrew Hyman

I'm grateful to Professor Chris Green for responding to my recent blog post about how the Fourteenth Amendment provided a constitutional basis for the Civil Rights Act of 1866.
Professor Green prefaces his textual objections with this statement:
Hyman...focuses on the fact that Congress has enforced antidiscrimination requirements on the (rest of the) federal government. For states to give inhabitants the "equal protection of" such federal laws means, not simply to obey such laws, but to give analogous antidiscrimination benefits to the benefits Congress requires the federal government to give.
I am not really sure what an "antidiscrimination benefit" is, and therefore am unsure that I correctly understand Prof. Green's point.  My earlier blog post assumed that the Equal Protection Clause (EPC) requires states to furnish "the equality of protection of the laws," including federal laws.  That assumption does not mean a state must provide any benefits whatsoever; rather, it means that a state must fundamentally be just as evenhanded as Congress in providing whatever benefits (or other protection) the state chooses to provide.  
My recent blog post did not address whether the EPC affirmatively requires a state to provide any level of protection to its populace, and did not suggest that a state must provide any benefits merely because Congress provides analogous benefits.  Current jurisprudence holds that no level of protection is required, so long as a state satisfies the equality requirement.  My point was (and is) that the EPC forbids states to deny anyone the equality of protection of its own laws, and additionally forbids states to deny anyone the equality of protection of federal laws.  The latter requirement is the one that is almost always overlooked, it goes beyond a mere requirement that states obey federal laws, and yet it does not affirmatively require a state to provide any benefits (or other protection) that the state would prefer not to provide.  
To the extent that the word "laws" in the EPC includes federal laws, Professor Green apparently understands the EPC as merely ensuring that a state will comply with federal laws that are already within the power of Congress to make.  But as far as I can tell, such an EPC requirement would be superfluous if the Supremacy Clause is respected; also, quite apart from the Supremacy Clause, such an EPC requirement would be superfluous with respect to federal laws that are already enforceable against the states via other aspects of the Fourteenth Amendment (e.g. the Privileges or Immunities Clause, the section five enforcement provision, and/or the "of its laws" component of the EPC).  I do not think that the choice of the word "the" instead of "its" was so pointless.  Instead, it laid down a complete constitutional basis for the Civil Rights Act of 1866, and for later federal legislation essential to promoting equality in the states.
Regarding whether the phrase "of the laws" includes the laws of other states, consider this: every time that Bingham or Edmunds addressed the meaning of the words "of the laws" prior to ratification, they pointedly omitted the laws of other states.  Likewise, the notion that the 14th Amendment might apply the laws of one state to another state was unpopular in Congress, as can easily be seen from the debate about the first draft of the amendment that Congress considered.  From a purely textual point of view, if a state legislature refers (e.g. in a ratification resolution) to "the laws" then the natural inference must be that "the laws" means no more than the laws of that state plus federal laws; after all, enactments by other states or by other countries cannot have the force of law except in those other states and other countries.

John Calhoun: Explaining Trends in Supreme Court and Circuit Court Dictionary Use
Michael Ramsey

In the current issue of the Yale Law Journal, John Calhoun (Yale Law School, J.D. '15) has the note Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use (124 Yale L.J. 484 (2014)). Here is the abstract: 

Recent research argues that the increasing use of dictionaries in Supreme Court and circuit court opinions may pose risks to the legitimacy, credibility, and accuracy of federal appellate court judgments. However, it is hard to understand why dictionary use has grown so much over the last thirty years, because existing data on Justices’ and judges’ dictionary use is insufficient. This Note introduces a comprehensive dataset covering dictionary usage in every Supreme Court and circuit court opinion from 1950 to 2010. The dataset allows one to test leading theories about Supreme Court dictionary usage by seeing how those same theories fare in light of circuit court dictionary usage trends. Such comparisons suggest that the Supreme Court’s increasing dictionary usage reflects, among other factors, fear of charges of judicial activism, the rising popularity of originalism and textualism, the persuasive power of Justice Scalia, and an increased number of criminal law cases on the Court’s docket.


Evan Zoldan: Primary Sources and Ambiguity in Legal History
Michael Ramsey

Evan Zoldan (University of Toledo College of Law) has posted Primary Sources and Ambiguity in Legal History (Teaching Legal History: Comparative Perspectives. London: Wildy, Simmons, and Hill (2014)) on SSRN. Here is the abstract: 

In this essay, I describe my methodology of teaching a legal history seminar. I design my class to include an intensive study of primary sources with two main goals in mind. First, by interpreting statutes and cases alongside sources like public letters and speeches, students learn to situate sources of mandatory legal authority within their historical context. Second, by reading primary sources that present conflicting historical narratives, students learn the more difficult skill of drawing conclusions in the face of interpretative ambiguity.


Stephen Lubben: Puerto Rico and the Bankruptcy Clause
Michael Ramsey

Stephen Lubben (Seton Hall University - School of Law) has posted Puerto Rico and the Bankruptcy Clause (88 Am. Bankr. L.J. – (2015) (Forthcoming)) on SSRN. Here is the abstract: 

Puerto Rico has about $72.6 billion in outstanding debt, and its public corporations have about $24.8 billion of that debt. But Puerto Rico's public corporation are not permitted to file for municipal bankruptcy under chapter 9 of the Bankruptcy Code.

To solve this problem, Puerto Rico recently enacted an insolvency statute, commonly called the “Recovery Act,” which is a practical blend of chapters 9 and 11 of the U.S. Bankruptcy Code. The new law provides a framework to restructure the public corporations’ debts.

Immediately after the Recovery Act was signed into law, bondholders filed two lawsuits against it. The suits contend that the Recovery Act violates the Bankruptcy Clause, which the plaintiffs argue gives the federal government the exclusive right to legislate on bankruptcy. Indeed, the plaintiffs even call for the court to recognize the existence of a “Dormant Bankruptcy Clause,” like its better-known relative in the Commerce Clause.

The plaintiffs also make a companion argument that the federal Bankruptcy Code supersedes the new Puerto Rican law, despite the exclusion of the Commonwealth’s municipal entities from the Code’s chapter 9. In short, the bondholders argue that Congress intended to preclude Puerto Rico and its divisions from any bankruptcy process whatsoever, and the Act interferes with that purpose. 

None of these arguments stands up to much scrutiny. This paper explains why.

I agree on the non-existence of a dormant bankruptcy clause.  But that conclusion has very serious implications for the dormant commerce clause.  Congress' bankruptcy power is granted in the clause immediately following the commerce power, in parallel terms.  The grants of power arise from similar problems of abuse by the states under the Articles.  If one isn't exclusive, it's hard to see how the other is.


Aziz Huq: The Negotiated Structural Constitution
Michael Ramsey

In the current issue of the Columbia Law Reviw, Aziz Huq (University of Chicago Law School) has the article The Negotiated Structural Constitution (114 Colum. L. Rev. 1595 (Nov. 2014)). From the introduction: 

The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government.  It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action and as bargaining chips when striking deals with the state. By contrast, the paradigmatic models of interbranch and federal–state interactions derived from James Madison’s writings in The Federalist underscore conflict and tension, rather than cooperation or mutually beneficial trades. Despite Madison’s predictions, institutional negotiation and dealmaking over both federalism and separation-of-powers interests are not only endemic in practice but also unavoidable in theory. Although negotiation over institutional interests is an entrenched part of the constitutional landscape, it remains undertheorized as a systemic matter.  To begin filling that gap, this Article develops a general normative theory of negotiated structural arrangements by leveraging insights into bargaining from basic microeconomic theory. Analysis of intermural negotiation reveals no categorical reason to reject such deals. This Article, however, identifies two general criteria for rejecting the specific outcomes of intermural negotiation. It further suggests that courts are not well positioned to sift out undesirable deals given their constrained institutional competence. Rather than being drawn through judicial review, boundary lines to institutional bargaining should be limned by elected officials.


Easterbrook and Hyman on the Fourteenth Amendment
Chris Green

Thanks to Mike Ramsey for pointing out Judge Easterbrook's very stimulating Scalia Lecture. I found one of the exchanges particularly interesting, between about 1:02:30 and 1:08:00 on the video. In response to Charles Fried's question about sex discrimination and the Fourteenth Amendment, Easterbrook notes his agreement with David Currie's view (later echoed by John Harrison and my own work) that the Equal Protection Clause is about equality in the protection from violence, not equality in general. He also gives some very interesting background to his own opinion in NRA v. Chicago, noting that he intended to help prod the Court to reconsider the death of the Privileges or Immunities Clause in Slaughterhouse and Cruikshank, though only Justice Thomas was willing to do so in McDonald.

Also, thanks to Andrew Hyman for offering an interesting alternative view of the Equal Protection Clause (defended at greater length in his forthcoming article), which reads it as states' obligation to obey antidiscrimination requirements analogous to those Congress imposes on the rest of the federal government.

I am not sure that Hyman's view can be made to work textually. More after the jump.

Continue reading "Easterbrook and Hyman on the Fourteenth Amendment
Chris Green" »

How the Fourteenth Amendment Provided a Constitutional Basis for the Civil Rights Act of 1866
Andrew Hyman

In a recent blog post, Michael Rappaport wrote that the Equal Protection Clause (EPC) may have originally been "about remedies" instead of about protecting people against all unequal laws.  I would like to briefly explain why Professor Rappaport's view appears to be compatible with the orthodox view that the EPC provided a constitutional basis for the Civil Rights Act of 1866. 

It seems uncontroversial that the EPC guarantees "the equality of protection of the laws", and also that this "protection" refers at least to remedies for the violation of rights that are guaranteed by pre-existing laws.  For present purposes, let's call that the EPC's "core."  Even if the EPC means more than that, it surely covers those things among others.

Now consider the last two words of the EPC: "the laws."  If they refer only to the laws of the state, then the original meaning of the EPC's core (as defined above) would obviously not bar unequal laws that guarantee legal rights in a discriminatory manner.

But, if the words "the laws" include federal statutes, then things get more interesting, and then the EPC's core would include a requirement that states not deny the equality of remedies that one finds in federal statutes.  This last requirement goes to the substance of state laws, instead of just how they are being applied, enforced, or administered.

The lead author of the Fourteenth Amendment, John Bingham, said that the word "laws" in the EPC does include both the laws of the state as well as federal laws, but does not include the laws of other states.  Likewise, when the state of Florida ratified the Fourteenth Amendment in 1868, that state incorrectly used the phrase "of its laws" instead of "of the laws," and Senator George Edmunds objected at length because he did not want to exclude the Civil Rights Act of 1866 from the word "laws." Edmunds' objection was quashed only because most of his colleagues did not think that any recitation errors were relevant, given that Florida's ratification did not need to include any recitation at all.

It was a very common notion in 1866 that the only purpose of the Civil Rights Act of 1866 was to guarantee "equal protection."  The EPC ensured the constitutionality of the Civil Rights Act of 1866 by forbidding states to deny the equality of protection that the Civil Rights Act required in federal jurisdictions (e.g. territories).  This conclusion becomes even more compelling if we suppose that the other parts of the Fourteenth Amendment are incapable of ensuring the constitutionality of the Civil Rights Act of 1866.  As the U.S. Supreme Court has correctly said, "the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866.”

Rachel Barkow: Clemency and the Unitary Executive
Michael Ramsey

Rachel Barkow (New York University School of Law) has posted Clemency and the Unitary Executive on SSRN. Here is the abstract:  

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives – including in the field of criminal law – have sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front-end to achieve policy goals. What about enforcement decisions already made, either by his or her own agents or actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. But while centralized authority over enforcement discretion at the front-end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been all but overlooked. It is a critical mechanism for the President to control the executive department. Those in favor of a unitary executive should encourage its more robust employment. But even critics of unitary executive theory should embrace clemency as a mechanism of control because, whatever the merits of other unitary executive claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it comes with an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of overbroad federal criminal laws and excessive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope with overcrowded and expensive federal prisons and hundreds of thousands of individuals hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different United States Attorneys enforce the law.


Judge Easterbrook Delivers Inaugural Scalia Lecture at Harvard
Michael Ramsey

From Harvard Law Today:  Judge Easterbrook delivers inaugural Scalia lecture: ‘Interpreting the Unwritten Constitution’ (with video).  Here's the background: 

On Monday, Nov. 17, Judge Frank Easterbrook of the Seventh Circuit Court of Appeals kicked off an inaugural lecture series named after his old friend, colleague and intellectual compatriot, Justice Antonin Scalia, who attended the talk titled “Interpreting the Unwritten Constitution.”

Easterbrook and Scalia were once colleagues on the faculty of the University of Chicago Law School and also as lawyers in the Ford Administration. Harvard Law School Dean Martha Minow invited Easterbrook to deliver the first in a series of lectures aimed at promoting and advancing the understanding of the founding principles and core doctrines of the U.S. Constitution. The series, funded by an anonymous donor, is set to include one lecture per academic year for ten years and involve speakers drawn from the fields of political science, history, philosophy, law, government, religion and related disciplines.

Bonus: smug picture of Justice Scalia in the audience.

(Apologies: Since I didn't go to Harvard I'm two weeks late on the news).


Congress' Limited Power to Enforce Treaties
Michael Ramsey

My new post on SSRN is Congress' Limited Power to Enforce Treaties (Notre Dame Law Review, forthcoming 2015).  This is my contribution to Notre Dame's outstanding recent symposium "The Treaty Power after Bond v. United States: Interpretive and Constitutional Constraints" (also featuring Professors Duncan Hollis, Saikrishna Prakash, Julian Ku, David Sloss, Edward Swaine, Roger Alford, Paul Stephan and Ingrid Wuerth, plus super-attorney Paul Clement). Here is the abstract: 

This essay focuses on Justice Scalia's concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Second, Scalia’s structural policy concerns about effectively unlimited congressional power are nonetheless partly justified to the extent the Court substantially defers to Congress’ claims about what action is necessary to enforce a treaty.

Third, therefore, courts should not defer to Congress in this matter. Although Congress has power to pass laws necessary and proper to enforce treaties, Congress must use this power in ways that can be shown to be necessary and proper. In particular, review should occur on two dimensions. Courts should make an independent assessment of the meaning of the treaty, including employing a presumption that the treaty does not affect purely domestic matters. Courts should also make an independent assessment of the necessity and propriety of Congress’ legislation, prominently including in this assessment whether enforcement of the treaty is required to be done at the federal rather than the state level.

As an illustration, application of this approach in Bond v. United States would find the legislation (as applied to Bond) unconstitutional, both because the Chemical Weapons Convention did not reach Bond’s conduct and because, even if it did, state regulation was adequate to assume U.S. compliance with the Convention. As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited that it does not pose an undue threat to federalism.

The basic ideas originated in my essay for Constitution Daily last year, see here.


Adam Hirsch: Disclaimers and Federalism
Michael Ramsey

Adam Hirsch (University of San Diego) has posted Disclaimers and Federalism (Vanderbilt Law Review, Vol. 67, No. 6, 2014) on SSRN. Here is the abstract: 

The beneficiary of an inheritance has the right to disclaim (i.e., decline) it, within limits ordinarily set by state law. This Article examines situations where a beneficiary’s right to disclaim might instead be governed by federal law, as a matter of both existing doctrine and public policy. Issues of federalism arise with regard to disclaimers in several contexts: (1) when a disclaimer would function to defeat a federal tax lien; (2) when a disclaimer could affect a beneficiary’s eligibility for Medicaid assistance; (3) when a beneficiary disclaims ERISA pension benefits; and (4) when a beneficiary executes a disclaimer prior to declaring bankruptcy or in the midst of a federal bankruptcy proceeding. The Article begins by developing a theoretical model of the potential costs and benefits of federal preemption, jumping off from prior scholarly discussions of this problem. The Article then addresses, from the perspective of the model, each of the four situations where a disclaimer raises federal concerns. The Article concludes that different policy considerations arise in each situation, depending upon how a disclaimer relates to federal affairs — viz., whether a disclaimer would threaten the financial interests of the federal government, whether those financial interests can be safely delegated to states, whether federal law regulates the kind of property disclaimed, and whether the disclaimer occurs in anticipation of, or within, a specialized federal proceedings. Hence, the four situations addressed in this Article call for no synchronized response from the perspective of federalism but instead demand distinct treatment.


Dennis Schmelzer: Boumediene v. Bush, Appellate Avoidance Mechanisms, and Black Holes Extending Beyond Guantanamo Bay
Michael Ramsey

Dennis Schmelzer (Vinson & Elkins LLP) has posted Historically Unappealing: Boumediene v. Bush, Appellate Avoidance Mechanisms, and Black Holes Extending Beyond Guantanamo Bay on SSRN. Here is the abstract: 

This article revisits the historical questions raised by the U.S. Supreme Court in Boumediene v. Bush about the reach of the writ of habeas corpus at common law to territories like Guantanamo Bay. Despite extensive oral arguments and briefing about the significance of prior case law, both the Court’s majority and dissenting opinions concluded that there was no precedent definitively answering their historical questions about the reach of the Great Writ. Justice Kennedy suggested that there simply may not have been good historical parallels for the detentions at Guantanamo Bay given the “uniqueness” of the territory and the particular challenges of terrorism in the present age. Justice Scalia suggested that the absence of case law demonstrated on its own that the writ was simply unavailable at common law to similar foreign prisoners held outside the sovereign control of the United States or the English Crown.

This Article provides a different explanation. Its research reveals the following discoveries: (1) the legal status of the U.S. Naval Station at Guantanamo is not that unique compared with other territories acquired in the early Nineteenth Century; (2) the writ of habeas corpus and other Constitutional rights were routinely recognized in all of those territories by statute or Executive Order; and (3) the availability of these rights is masked in Article III case law because constitutional disputes were primarily handled by territorial courts established outside the purview of Article III of the U.S. Constitution. This Article further offers the theory that the political branches “voluntarily” recognized most rights (including the privilege of habeas corpus) and granted territorial courts jurisdiction to hear constitutional challenges in the first instance in an effort to intentionally avoid or delay judicial review of most constitutional questions arising in those territories by Article III courts. These developments were spurred by early Supreme Court decisions indicating that the Court might intervene if certain fundamental Constitutional rights were denied in those territories. From that point on, the political branches actively manipulated doctrines of judicial avoidance to prevent potentially adverse constitutional precedent. The absence of most of this history in reported case law from Article III courts demonstrates a significant blind spot of reported precedent as a historical guide.


Richard Re: Narrowing Precedent in the Supreme Court
Michael Ramsey

Richard M. Re (UCLA School of Law [and Re's Judicata]) has posted Narrowing Precedent in the Supreme Court (114 Colum. L. Rev. 1861 (2014)) on SSRN.  Here is the abstract: 

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice — often called “stealth overruling” — is widely condemned as deceptive, as well as contrary to stare decisis. On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance. As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible — including frequently overlooked decisions by the Court’s more liberal members. Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice — and a good thing, too.

Insightful, and also a potentially important ingredient in reconciling originalism and precedent.

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


Lash on ERAERNBER: Not Less than Equal Citizenship for Citizens Who Stay Home
Chris Green

Thanks to Kurt Lash, a friend quite able to disagree without being disagreeable, for replying to my review (parts 123456). I hope that future discussions will have a chance to touch on other aspects of our disagreement--whether the Bill of Rights (and other enumerated rights!) were rebooted in 1868, the 9A/14A relationship, what Bingham meant by "chiefly defined," the possibly-adverbial "in" in IV/2/1, Bingham's 1867 ellipsis reiteration, equal-citizenship readings of the Louisiana Cession language, the relation of the CRA1866 and CRA1875 to 14A P/I, 1866 public discussion of voting rights and 14A indeterminacy, the relative reliability of Garnes and Hall, the meaning of the Equal Protection Clause, and so on. If any book publishers are interested in a collection of essays on the Privileges or Immunities Clause, by the way, with cross-commentary among the authors, I suspect there is material out there for such a collection. By all means, let's put on some scuba gear and explore more of the iceberg.

I likely have a far greater appetite than Lash, or most readers, for spilling out all of this detail on the blog. In lieu of a comments section, I'll put my five attempts at clarification after the jump.

Continue reading "Lash on ERAERNBER: Not Less than Equal Citizenship for Citizens Who Stay Home
Chris Green" »

Lash, Green, and the Doubtful Case Rule
Andrew Hyman

Professors Kurt Lash and Chris Green have recently been debating the meaning of the Privileges or Immunities Clause here at this blog.  I tend to agree with Lash, but am under no illusions that the debate will be resolved any time soon.

Lash supports an enumerated-rights interpretation whereas Green supports a fundamental-rights interpretation.  It seems fair to say that they agree the Clause at least covers the overlap between those two interpretations.  Since that is a point of agreement and very little doubt, the federal courts would be very well justified in endorsing that narrow common ground that is shared by those two major interpretations.

Indeed, when the Fourteenth Amendment was adopted, the Supreme Court had long since established the Doubtful Case Rule, holding that the Court would not strike down statutes in cases where the constitutionality was uncertain.  Framers like John Bingham emphatically endorsed and relied upon the Doubtful Case Rule.  In 1868, shortly before the Fourteenth Amendment was ratified, Bingham said very publicly:

It has been settled law in this country from a very early period that the constitutionality of a law should not be questioned, much less be adjudged invalid by a Court clothed by the Constitution with jurisdiction in the premises, unless upon a case so clear as to scarcely admit of a doubt....

There is virtually no doubt that either a Lash-type interpretation or a Green-type of interpretation is correct, so the common ground is judicially enforceable.

There is a catch, however. There is a third type of interpretation of the Privileges or Immunities Clause.  Aside from those defended by Lash and Green, there is the equality-only type of interpretation, but I don't think it is sufficiently plausible to affect the doubtful case analysis summarized above.  There are at least four main textual reasons why.

First, it is admittedly true that many rights listed in the original Constitution and Bill of Rights are rights of persons as opposed to rights of citizens only.  But that is no obstacle to incorporating those rights via the Privileges or Immunities Clause.  After all, no one (to my knowledge) argues that the Comity Clause allows a state to deprive citizens from other states of fundamental rights of persons that the state guarantees for all of its own inhabitants.  So why would the Privileges or Immunities Clause allow states to violate privileges or immunities just because they are sometimes rights of persons rather than rights of citizens?  Of course states could not be allowed to do that, and nothing of the sort was ever intended.

A second textual reason to dismiss the equality-only interpretations is that such interpretations could render the Equal Protection Clause basically superfluous.  It is not a plausible answer to say that the Equal Protection Clause is only directed to protecting non-citizens; obviously, the EPC refers to all people generally instead of non-citizens specifically.  Even the Fourteenth Amendment's Due Process Clause unquestionably helps all people instead of just non-citizens (i.e. if the Privileges or Immunities Clause incorporates Fifth Amendment due process then the Fourteenth Amendment's Due Process Clause would still help citizens by barring states from harming citizens outside the legal process).

A third textual reason to dismiss the equality-only interpretations is that the Privileges or Immunities Clause was obviously phrased differently from the Comity Clause, despite their similarities.  That divergence is a dead giveaway that the later clause was not meant to merely refer to the earlier one.  This point becomes even more obvious when one considers that the first draft of the Fourteenth Amendment (considered by Congress) very closely tracked the Comity Clause language, and that draft (which was well-publicized in the newspapers in every state) was later ditched in favor of language that did not as closely track the Comity Clause language.

A fourth textual reason to dismiss the equality-only interpretations is that the enumerated-rights interpretation probably incorporates the Equal Protection Clause, since the latter is an enumerated right.  This fact would explain or account for statements made in 1866-1868 that the Privileges or Immunities Clause includes an equality guarantee of some sort.

The three categories of interpretations of the Privileges or Immunities Clause (i.e. enumerated-rights, fundamental-rights, and equality-only) each comes in many different flavors, but I think the categorization is useful.  Even in the absence of exact certainty about what the Clause means, we can still easily see that the Clause has a clear core, despite ongoing scholarly debate at the periphery--which may well go on forever.

And with that, I wish everyone a very Happy Thanksgiving.

The Meaning of the Equal Protection Clause
Mike Rappaport

Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause.  While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads.  The language says no state shall deprive any person of the equal protection of the laws.  Thus, the language says there is a category called “the protection of the laws” and the Clause requires that this protection be equal.

When one looks at the traditional understanding of the protection of the laws, it turns out that it means something like the remedies that are provided to protect people’s legal rights.  For a seemingly exhaustive discussion of the evidence for this, see Chris Green’s two articles here and here.  Thus, the Clause does not protect against all unequal laws, but instead of the failure of the state to protect people’s preexisting rights.

Under this interpretation, the Equal Protection Clause was about ensuring that the law protected all persons equally.  Thus, it prohibited sheriffs in the former confederate states from looking the other way when blacks were lynched.  (One important question  that this interpretation raises, which I do not discuss here, is how equality is protected under the 14th Amendment. )

Hyman notes the modern interpretation requiring that all laws be equal and wonders where this interpretation came from.  He suggests it came from this famous speech in the Senate by Jacob Howard about the meaning of the 14th Amendment.  In the speech, Howard first notes that the Privileges or Immunities Clause protects various rights.  He then moves on to the Due Process and Equal Protection Clauses.  He writes that the last two clauses of section one of the 14th Amendment

disable a State from depriving not merely a citizen of the United States, but any person whoever he may be of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.  This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.  It prohibits the hanging of a black man for a crime for which the white man is not to be hanged.  It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the number of another caste, both castes being alike citizen of the United States.  (Italics added.)

Hyman offers an explanation for Howard’s language about abolishing all class legislation, suggesting that Howard did not actually say this on the Senate floor (even though it was in the notes of his speech).

Perhaps, but I have another explanation. I admit that Howard’s language is not entirely clear, but I think there is a reasonable argument for concluding that Howard is not saying the Equal Protection Clause requires that all laws be equal.  Instead, he is interpreting the Equal Protection Clause to be about remedies.

In the previous paragraphs, Howard has just said that blacks are entitled to the privileges or immunities of citizenship, and is here saying that the Equal Protection Clause requires these privileges to be enforced.  Thus, the first italicized sentence might be understood as focusing on the punishment – the remedy – rather than the right.  Similarly, the second italicized sentence speaks of a shield, suggesting a protection or shield for the rights of blacks.

This  interpretation is reinforced by the last sentence of the quoted language, which shifts to talking about citizens.  The Equal Protection Clause protects persons, whereas the Privileges or Immunities Clause protects citizens.  This last sentence suggests that Howard has been interweaving both the Privileges or Immunities Clause and the Equal Protection Clause in his discussion (with the former conferring rights on black and the latter requiring those rights to be protected).

Further Thoughts on Presentment and the Compacts Clause (updated by Seth Barrett Tillman)
Michael Ramsey

As a follow-up to this post, Josh Blackman has posted updates with comments, including a long one from Seth Barrett Tillman (scroll to the bottom).

The question is whether, when Congress approves an interstate compact, the approval must be presented to the President for signature or veto.  I agree with Professor Tillman (or at least, his result, and a good bit of his reasoning):  yes.

Briefly, the compact clause (Art. I, Sec. 10):  

No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State ...

And the "second" presentment clause (Art. I, Sec. 7, last paragraph): 

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States …

Approval of an interstate compact requires a "vote" reflecting the "concurrence of the Senate and the House of Repressentatives."  There's no other way to establish the consent of Congress, because Congress can only act through a vote of its two constituent bodies.  Moreover, the textual exception for adjournment strongly implies that there are no other exceptions.  So, presentment is required. That's not so hard, is it?

The main counterargument is that by this analysis Congress' recommendation of a constitutional amendment requires presentment, as it entails a "vote"  reflecting the "concurrence of the Senate and the House of Repressentatives."   To which I respond (a) well, then, that's what it requires; and (b) nonetheless, possibly something in Article V (providing the amendment mechanism) overrides Article I, Section 7.  But fairly obviously, nothing in the compacts clause overrides Article I, Section 7.

Notably, the framers did not think that anything in Article I, Section 5 (providing for adjournment) overrode the presentment clause -- else they would not have needed to add the express exception for adjournment in the presentment clause.  And Article I, Section 5 uses the same phrase as the compact clause: "consent".

It's worth noting, too, how carefully crafted these provisions are.  Obviously presentment isn't required for impeachment and conviction.  But why not?  Because neither impeachment nor conviction -- each considered independently -- are a vote to which the concurrence of both the Senate and the House are required.  So, no presentment clause exception is needed for impeachment and conviction, and there isn't one.  Ordinarily adjournment would similarly be considered a vote of a single house -- e.g., whether the Senate should adjourn would be a question for the Senate.  But per Article I, Section 5, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn..."  Thus the adjournment of the Senate is (somewhat counterintuitively) a vote requiring the "concurrence" (or "Consent") of both Houses; as a result, the framers saw that the presentment clause would require presentment of motions to adjourn unless they added a specific exception, which they did.

The framers did not always think so carefully about their language, but when they did, we should be especially attentive to the exceptions they included and the ones they did not.  There is no exception to the presentment clause for the "consent" needed to approve interstate compacts, even though there is an exception for the "consent" needed to adjourn.  That makes it an easy case for me.



My view is that 1/7/2 (the Presentment Clause) and 1/7/3 (the Second Presentment Clause) are  different procedures. When a substantive constitutional provision requires Congress to act "by law", then Congress must exclusively use 1/7/2. But absent 1/7/2-related "by law" language, Congress can use either 1/7/2 or 1/7/3 procedures -- the latter allows Congress to opt of bicameralism, but not presentment. To put it another way, the absence of a "by law" limitation in a substantive grant of congressional power is not an allowance for Congress to opt out of presentment (eg, by concurrent resolution per Treanor); rather, the absence of express "by law" language permits Congress to opt out of bicameralism (where authorized by a prior statute). Under my view  INS v Chadha  was 1/2 correct—a single House legislative veto cannot bypass the President or escape presentment. But  INS v Chadha  is also 1/2 incorrect—Congress can opt of bicameralism if authorized to do so by a prior statute. Once Congress tries to make use of that specific statutory authorization, using the vehicle of a single house order, resolution, or vote, then that single house order, resolution, or vote must be separately presented to the President—just like a bill is presented to the President. 
To put it another way ... the traditional reading of Article I, Section 7, Clause 3 is: 
Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of [other] Bill[s] [which are properly stylized when enacted per U.S. Const. art. I, § 7, cl. 2].  
But I believe, the correct reading, as a matter of original public meaning, is:  
Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation (or, more accurately, as delegated legislation) per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [per U.S. Const. art. I, § 7, cl. 2, which is a different procedure]. 
One final point ... there is almost no early commentary on 1/7/3. Likewise, there is little modern commentary. So much so, that it has disappeared from the radar of nearly all modern commentators. Here are two examples illustrating how this clause has “disappeared”. Professor Akhil Amar’s  America’s Constitution  (2005) has commentary on every provision of the Constitution of 1787—except the Counterfeiting Clause and 1/7/3. Likewise, Professor Rosenkranz wrote:
Congress acts by making laws. But the product of the action of Congress—the statute, the public law—is also called an “Act of Congress.” In grammatical terms, “act” is both a noun (“an act”) and a verb (“to act”), as it has been since before the Founding. The Constitution itself avoids this grammatical ambiguity,  always  carefully referring to federal legislative output as “Law” or “legislation” (which Congress “makes” or “passes”).  
Rosenkranz, Subjects of the Constitution  at 1215-16 (emphasis added).
Simply put, you cannot square Rosenkranz’s position with 1/7/3. 1/7/3 speaks to orders, resolutions, and votes, not to “acts”, “laws”, “legislation” or, even, “statutes”.
The intellectual status quo in regard to 1/7/3 should be unsettling—at least for originalists—particularly because the clause is directed, in some fashion, towards the legislative process. 


Laurence Claus: Law's Evolution and Human Understanding
Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Law's Evolution and Human Understanding (51 San Diego L. Rev. 953 (2014)) on SSRN. Here is the abstract: 

This is the author’s response to book conference commentary on Law’s Evolution and Human Understanding from William Edmundson, John Finnis, Michael Steven Green, Mark Greenberg, Frederick Schauer, and Lawrence Solum.

And here is a link to my colleague Laurence Claus' insightful and challenging book Law's Evolution and Human Understanding (Oxford Univ. Press 2012).  The book description from Amazon:

When should we follow the law? How can we know what law's words mean? What is law? Law's Evolution and Human Understanding presents fresh and surprising answers to these questions. In an account alive with the stories of our shared human history, Laurence Claus explains why we should discard the old idea that legal rules tell us what to do, and instead see law as a system of sayings that evolves among humans to help us better understand each other

When driving on public roads, when buying and selling, and in countless other aspects of our work and play, we depend on law to let us know what other people are likely to do and to expect of us. Through fast-paced pages of anecdote and argument, Law's Evolution and Human Understanding explains the revolutionary consequences of seeing law as truly what Oliver Wendell Holmes called it: systematized prediction. The book reveals how this vision of law can transform our thinking about the way we make moral decisions, about the way we read law, and about many other ways that law affects our lives.