Posner and Segall's Evasion of the Sense-Reference Distinction
Chris Green

Judge Posner and Eric Segall have each recently replied (in a 4-page co-authored piece at the end of the collection here, and in a longer solo piece by Segall here) to Will Baude and Stephen Sachs's recent work on originalism (a 6-page co-authored piece in the same collection, Baude alone here, Sachs alone here and here, and a forthcoming co-authored piece here). Baude and Sachs hold that our constitutional law must "lawfully derive from the law of the founding." I have a bit of sympathy for Posner and Segall's terminological quibble; Baude and Sachs's view might more usefully be called meta-originalism, rather than originalism as such, because it can encompass those who think that we have always had a common-law, intergenerationally-authored Constitution--David Strauss, Jed Rubenfeld, or Ronald Dworkin, say. Unlike Posner and Segall, though, I think Baude and Sachs's original-law meta-originalism is both true and important.

One important flaw in Posner and Segall's recent contributions is their failure to engage with Baude and Sachs's use of the sense-reference distinction, which philosophers of language have used at least since the time of Frege to explain how linguistic categories work. I wrote at length about the distinction over ten years ago, though, as Baude and Sachs kindly note, "too few scholars have read" my work. Some philosophers have, to be sure, criticized the distinction (and others have defended it), but Posner and Segall simply ignore it. That seems "obviously wrong, yet eminently curable," in Posner's words.

The basic idea is that building cars does not, in itself, change the meaning of the word "car"--the "sense" of the word. But building cars does change something about the word "car": its "reference," or collection of things picked out by the term. So, if someone asks me how many cars there are, I need to know (a) what he means by "car" and (b) the automotive facts. Both linguistic and automotive facts change all the time, of course, but they do so in different ways and for different reasons. If we want to find out how many cars there are in America, we have to do so (paraphrasing Brown) "in the light of [cars'] full development and [their] present place in American life." Current automotive facts are essential, even if we are merely applying a word that someone spoke long ago (e.g., in verifying or falsifying a prediction long ago that someday there will be a certain number of cars in America).

My view is that original sense, but not original reference, is interpretively binding. This is how the meaning of words can be both fixed but abstract. The original sense determines a function from possible worlds to outcomes; current facts tell us what possible world we are in, which we then plug into the sense-determined function, producing an outcome. As Baude put it at p. 2356, footnoting my paper, "a word can have a fixed abstract meaning even if the specific facts that meaning points to change over time."

After quoting this statement, Segall asks incredulously at p. 40, "How can the meaning of words be simultaneously 'fixed' and 'abstract?' " But Segall does not then engage the sense-reference distinction on which Baude and I rely, but instead jumps to disputes over the interpretation-construction distinction, on which originalists have differed regarding how to deal with vagueness, ambiguity, and kindred phenomena. But vagueness is not the same thing as abstraction.  A term is "abstract," as Baude uses the term, if its reference can change without the term's meaning changing as well. On the other hand, a term is vague if it has a fuzzy, unclear boundary; these are not the same thing. I offer my own take on how to deal with vagueness and lack of clarity here and here, but it is important to see that Baude plainly does not use the interpretation-construction distinction to explain how meaning can be both fixed and abstract. The sense-reference distinction does that, whatever we think about construction and interpretation.

An appreciation for the sense-reference distinction would have prevented Posner and Segall's misreading of Brown v. Board of Education, which I paraphrased above. Posner and Segall think (at p. 110) that in stressing the need to consider the "full development" and "present place" of education, "The Court in Brown expressly rejected the idea that history mattered." But the relevance of present facts does not entail the irrelevance of historical facts. Indeed, Brown itself says that historical sources "cast some light," but "not enough."

History tells us that (as I see it) the Fourteenth Amendment bans second-class citizenship, but current facts tell us what rights are in fact given generally to citizens (what counts as "the very foundation of good citizenship," as Brown puts it) today. Building new cars does not change what it means to be a "car"; neither does building new privileges of citizens change what it means to be a privilege of citizens of the United States. To get outcomes, we need both (a) the historically-fixed function from possible worlds to outcomes and (b) a specification of which world we're in. Our need for reference-yielding current facts in (b) does not undermine our simultaneous need for historically-fixed sense in (a). 

Brian Christopher Jones & Austin Sarat: Antonin Scalia and the Cultural Life of the Law
Michael Ramsey

Brian Christopher Jones (Liverpool Hope University) and Austin Sarat (Amherst College) have posted Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law (British Journal of American Legal Studies, forthcoming (2017)) on SSRN.  Here is the abstract    

The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to the popular will. But even though Scalia fought against the romantic vision of philosopher judge, he himself became a living symbol of a judicial philosophy, a symbol so powerful that sometimes it was difficult to disentangle the judge from his jurisprudence. His status as a symbol and how he achieved his status, was much different from the route of the judges mentioned above. This paper attempts to explain how Scalia became what we call a judicial “sacred symbol”.


More Commentary on the Trump Supreme Court List -- Justices Lee and Stras [with Further Update on Lee]
Michael Ramsey

At NRO, Hanna Smith (Becket Fund for Religious Liberty) makes the originalist case for nominating Justice Thomas Lee of the Utah Supreme Court: Replacing Justice Scalia: A Proven Originalist from Trump’s List.  From the core of the argument:

In his years on the Utah Supreme Court, Justice Lee has stated that judges must “implement the principles of the constitution as originally adopted because that is the very point of having a written constitution.” He has also held that “it should go without saying that our construction of a provision of the constitution must rest on the original meaning of the constitutional text.” Originalism, he writes, “is a theory that is essential to any system of government that finds its legitimacy in the will of the people as expressed in positive laws.”

In Scalia- and Thomas-like fashion, Justice Lee has insisted that “achieving outcomes that satisfy our policy preferences is not our function.” Rather, judges “are tasked . . . with deciding the cases that come before us in accordance with the rule of law — whether or not it yields an outcome we favor on policy grounds.” He has opined that “as judges we take an oath to uphold and defend the constitution,” which calls for interpreting the law based on “what it originally meant” when enacted, not on a judge’s “instincts or beliefs.”

In one important respect — his approach to judicial precedent — Justice Lee is more like Justice Thomas than like Justice Scalia. Justice Thomas (for whom Justice Lee clerked) adheres to the view that the Constitution as written trumps judicial opinions that clearly break with the Constitution. Justice Lee has repeatedly advocated for overruling precedent that is “contrary to the original meaning of the Utah constitution.”

These views are not mere talking points, but positions affirmatively staked out in Justice Lee’s judicial opinions. What you see is what you’ll get with Justice Lee – an originalist judge who will uphold the Constitution as written. He can be trusted to walk the Scalia walk because he already has, as a judge on the highest court in his state. In short, his opinions confirm that Justice Lee has a well-developed theory of judging — patterned after Justice Scalia’s – that ensures he will be a voice for the rule of law.

The post also notes that Justice Lee, like Justice Scalia, was a professor before becoming a judge; that he would make history by being the first Mormon on the U.S. Supreme Court, and that:

Nominating Justice Lee will also help unite Republicans following an acrimonious election. In his acceptance speech, Mr. Trump reached out to groups — including many conservatives — who did not support his candidacy, seeking their “help” to “unify our great country.” Nominating the brother of a prominent conservative leader who did not support Mr. Trump (Senator Mike Lee of Utah) would go a long way toward fulfilling the magnanimous spirit Mr. Trump displayed on election night.

Meanwhile, at Powerline, Scott Johnson argues for Minnesota Supreme Court Justice David Stras: A Word for David Stras.  Key points:

Justice Stras respects the role of the judiciary and the Constitution’s separation of powers. Justice Stras holds that the judiciary “does not write statutes; nor do we amend them; no matter the circumstances.” State v. Ali, 855 N.W. 2d 235, 268 (Minn. 2014) (concurring). Justice Stras’s concurrences and dissents, in particular, repeatedly emphasize that courts are bound to respect “fundamental limitations on our authority[.]” He holds that courts are to resist the temptation to encroach on legislative functions and become “a junior-varsity legislature.” In re Guardianship of Tschumy, 853 N.W.2d 728, 752-53 (Minn. 2014) (dissenting); State v. Crawley, 819 N.W.2d 94, 118 (Minn. 2012) (dissenting).

Justice Stras’s views on the role of the judiciary arise from an appreciation of constitutional separation of powers. In State v. M.D.T., 831 N.W.2d 276 (Minn. 2013), Justice Stras described in detail the strict separation of powers required by Minnesota’s Constitution and concluded that the district court abused its discretion by relying on inherent judicial authority to order relief beyond what was provided in the statute at issue.

Justice Stras’s objection to the district court order went beyond the fact that the court acted beyond its authority. Instead, Justice Stras pointed to the constitutional significance of judicial encroachment in an area where the legislature was authorized to act. Proper respect for the separation of powers is urgent as the Court addresses constitutional limitations on its own power as well as limitations on an administrative state that has undertaken the role of all three branches.

Justice Stras is an originalist and a textualist. Like the opinions by Justice Scalia, Justice Stras’s decisions are notable for a rigorous analysis of statutory and constitutional text that interprets the text as it was understood at the time of its adoption. In State v. Nelson, 842 N.W.2d 433 (Minn. 2014), Justice Stras rigorously analyzes the text of the statute text, citing multiple dictionaries. Justice Stras’s majority opinion credits the statute as written over what other judges viewed as the historical understanding and intent underlying the statute.

Perhaps the best example of Justice Stras’s originalist approach comes in United Prairie Bank v. Haugen Nutrition & Equip., LLC, 813 N.W.2d 49 (Minn. 2012). The case involved the question of whether a party seeking contractual attorney fees is entitled to a jury trial under Minnesota’s Constitution. Justice Stras first addressed the question whether a party would have been entitled to a jury based on the same theory of relief at the time Minnestoa’s Constitution was adopted and then assessed the plaintiff’s claim in light of similar theories. United Prairie Bank shows Justice Stras following Justice Scalia’s model by making the intellectual case for originalism and pushing his colleagues to apply the text of the Constitution as written.

UPDATE:  A reader sends this information -- 

For a very good exposition of [Justice Lee's] views on due process, stare decisis, and originalism, see this decision, issued Tuesday:

In the Matter of the Adoption of K.A.S (Utah S. Ct. Dec. 6, 2016), Lee dissenting.

The dissent begins: 

Parental-rights termination cases are heart-wrenching. They present problems of enormous consequence—of severance of one of the most cherished of all human bonds, with the safety and welfare of children hanging in the balance. This is a matter on which our sensitivity for justice is heightened. And for that reason I can appreciate a desire to find a way to secure the appointment of counsel in a case like this one. As a pure policy matter, I see significant upsides in assuring that a parent has the benefit of legal counsel before his legal rights are terminated.

That said, the issues before us are not policy questions. We are not legislators voting on a statute guaranteeing appointed counsel in parental-termination cases. We are judges faced with questions of law—under our law of preservation, and on matters of statutory and constitutional interpretation. And I find no basis in law for the majority’s conclusions.


Eric Segall: Legal Realist Originalism?
Michael Ramsey

At Dorf on Law, Eric Segall: Legal Realist Originalism?  From the introduction:

Earlier this year, Professor Will Baude of the University of Chicago published an essay in the Columbia Law Review titled "Is Originalism Our Law?". He argued that landmark Supreme Court cases such as Home Bldg. & Loan Ass'n v. Blaisdell, Brown v. Board of Education, and Obergefell v. Hodges, which virtually the entire world views as examples of either living constitutionalism, or the pluralistic/common law descriptive theories of David Strauss and Mike Dorf, are actually originalist as written


In essence, Baude argues that, as long as the Court uses a mode of interpretation that the people alive in 1787 would have recognized as legitimate, the Court is using what he calls “inclusive originalism.” He claims that those folks understood that “fixed texts can harness what seem to be changing meanings. Though the text may have originally been expected to apply in a particular way to a particular circumstance, that does not mean that its original meaning always must apply in the same way.” Thus, according to Baude,  “originalists can sensibly apply legal texts to circumstances unforeseeable at the time of enactment,” and come up with results that defy the original expectations of the people who drafted and ratified those provisions.

On Friday, the Cornell Law Review On Line published my response to these arguments (there has also been a short back and forth in the Green Bag between Baude with Stephen E. Sachs and Judge Posner and myself on the same issues). The thrust of my reply is that Baude's descriptive account of constitutional law is accurate but labeling that account “originalist” is obviously misleading if originalism as a term of art is to carry any weight separate from living constitutionalist or pluralistic theories of constitutional interpretation. ...


Nelson Lund on the Right to Arms
Michael Ramsey

From the Heritage Foundation's First Principles Series, Nelson Lund (George Mason): The Right to Arms and the American Philosophy of Freedom.  From the introduction:

Many Americans, and not just those on the left, misunderstand the liberal principles on which the right to keep and bear arms rests. As we have seen, even well-educated political conservatives can vigorously deny the value of the Second Amendment, and the silence of many other conservative intellectuals suggests a widespread ignorance about its continuing importance. Merely acknowledging that this right is part of America’s tradition will not keep the tradition alive. Scholarship proving that a robust right to arms is enshrined in the original meaning of the Constitution will not stop the courts from interpreting the Second Amendment into oblivion. Showing that restricting the rights of law-abiding citizens has yet to contribute to public safety will not prevent politicians from claiming that new and even more restrictive laws are all we need.

People who do not understand why they should defend the right to arms are not likely to be its most effective defenders. For too long, conservative intellectuals have given insufficient attention to a principled defense of this right. Alexis de Tocqueville, a favorite among conservative thinkers, warned against democracy’s drift toward new and softer forms of despotism. The left wants us to believe that resistance is futile, and conservatives need to overcome the effete sensibility that abhors “America’s frontier infatuation with guns.” The Founders of our republic did not think an armed citizenry was the product of a childish infatuation or a response to life on the frontier, and the philosophers who guided them can help us to see why the right to arms continues to deserve its place in our fundamental law.

And from the core of the argument (footnotes omitted):

The fundamental importance of the right to arms was not an American discovery. Like our own charter of individual liberties, the English Bill of Rights protected the right to keep and bear arms. William Blackstone (1723–1780), the leading authority on English law for Americans of the Founding generation, called it one of the indispensable auxiliary rights “which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” This right, he said, is rooted in “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Blackstone made no distinction between the violence of oppression that results from government’s failure to control common criminals and the oppression that government itself may undertake.

The Constitution proposed by the Philadelphia Convention contained no express protection of the right to arms or of many other fundamental rights. The new government was to be one of limited and enumerated powers, and most of the Framers thought there was no need to expressly protect rights that the federal government would not be empowered to infringe.

With respect to arms, however, there was a special problem. The federal government was given almost plenary authority to create a standing army (consisting of full-time paid troops) and to regulate and commandeer the state-based militias (which comprised most able-bodied men). Anti-Federalists strongly objected to this massive transfer of power from the state governments, which threatened to deprive the people of their principal defense against federal usurpation. Federalists responded that fears of federal oppression were overblown, in part because the American people were already armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions: All agreed that the proposed Constitution would give the new federal government almost total legal authority over the army and militia, and nobody argued that the federal government should have any authority to disarm the citizenry. Federalists and Anti-Federalists disagreed only about whether the existing armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalist desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Instead, it merely aimed to prevent the new government from disarming American citizens through its power to regulate the militia. Congress might have done so, for example, by ordering that all weapons be stored in federal armories until they were issued for use in performing military or militia duties.

Unlike many people in our time, the Founding generation would not have been puzzled by the text of the Second Amendment. It protects a “right of the people”: i.e., a right of the individuals who are the people. It was not meant to protect a right of state governments to control their militias; that right had already been relinquished to the federal government. A “well regulated Militia” is, among other things, one that is not inappropriately regulated. A federal regulation disarming American citizens would have been considered every bit as inappropriate as one abridging the freedom of speech or prohibiting the free exercise of religion. The Second Amendment forbids the inappropriate regulation of weapons, just as the First Amendment forbids inappropriate restrictions on speech and religion.

I saw Professor Lund give a version of this paper at the Federalist Society National Lawyers Convention in November -- very powerful (though obviously subject to debate).   Here is video of the panel discussion.


Mad Dog Mattis, the 7 Year Delay Provision, and the Appointments Clause
Mike Rappaport

President Elect Donald Trump has announced that he will be nominating James “Mad Dog” Mattis to be Secretary of Defense.  However, a statute requires “retired military officers to be out of uniform for seven years before they can become the civilian head of the armed forces.”  While it seems quite possible that Congress will be willing to pass a law exempting Mattis from the requirement, a question is whether the requirement is constitutional.  The main issue is whether the Constitution (1) allows the Congress to establish qualifications for offices or (2) gives to the President and the Senate the full discretion to determine whether someone is fit for office.   

The issue is governed by the Appointments Clause, which provides in relevant part that the President: 

by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.

The argument for concluding that the Congress cannot pass the qualification requirement is that this clause gives to the President and the Senate the decision whether a person is qualified for the office.  The President, with the consent of the Senate, has the power to decide who to appoint for an officer and that includes deciding whether his qualifications are sufficient.  

The counter to this argument is that the Clause does not govern qualifications, but only the selection of a person who has the requisite statutory qualifications.  Congress has the power to set the qualifications for an office based on its authority to “establish . . . by law . . . officers of the United States.”  One might argue that establishing an office includes the power to establish qualifications for the office.  

If establishing an office includes the power to establish qualifications for the office, then the President and the Senate have only the power to determine whether someone, who has the legally required qualifications, is an appropriate person to appoint to the office.  If not, then the President and the Senate can choose who they like, notwithstanding any statutory qualifications.  

It is not entirely clear what the answer is.  Establishing qualifications might or might not fall under the power to establish an office.  My intuition is that there is a bit stronger case for concluding that qualifications are part of the office.  Under that view, then, Congress could establish the binding qualifications. 

Ultimately, answering this question would turn on the history of these matters.  One aspect of the history is that the King of England had the power both to establish the offices and to make the appointments.  This Constitution then split the power between the President (and the Senate) and the Congress.  The question is on what side the power to set qualifications was placed.  Given the fact that the English practice is not that helpful, an examination of the practice in the states prior to the Constitution would be extremely important. 

One interesting implication of this analysis is that the named offices in the Appointments Clause – ambassadors, other public ministers and consuls, judges of the Supreme Court – might be treated differently.  If the Constitution establishes these offices rather than Congress (a possible but not necessary conclusion), then Congress might not be able to establish qualifications for them.

I probably shouldn’t leave this subject without mentioning another possibility.  Perhaps Congress can add qualifications under the Necessary and Proper Clause. Under this view, one would engage in much the same analysis as above, except the focus would be on figuring out whether establishing qualifications falls under the power to appoint or the power to employ necessary and proper means to establishing offices.  In my view, the Necessary and Proper Clause is less important in this context, because the Constitution seems to draw a line between appointing and establishing offices and therefore renders the Necessary and Proper Clause with little to do.  But others may have a broader understanding of the Necessary and Proper Clause than I do.  

Jamal Greene: Rule Originalism
Michael Ramsey

In the current issue of the Columbia Law Review, Jamal Greene (Columbia Law School): Rule Originalism.  Here is the abstract:

Constitutional rules are norms whose application depends on an interpreter’s identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assump­tion that the Constitution’s more specific or structural provisions support straight­forward interpretive inferences. Normatively, this Article offers a partial defense of what it calls “rule originalism,” grounded in the fact of its positive practice, its relative capacity for restraining judges, and, above all, its respect for the constitutional choice of rules versus stan­dards. Finally, this Article argues that this limited justification for rule originalism suggests a liberalization of barriers to government institu­tional standing in cases involving the meaning of constitutional rules.

And in conclusion:

One of Professor Alexander Bickel’s most memorable observations was that an apex court should tailor its docket to its mode of inquiry. For Bickel, this meant that a court committed to deciding cases according to principle rather than expediency had to limit its merits decisions in a way that made that high-minded approach possible. As Professor Gerald Gunther archly observed, Bickel’s novelty was “100% insistence on principle, 20% of the time.”

This Article also has argued that a court’s approach to constitutional implementation relates to its docket in surprising ways, but it turns Bickel on his head. Constitutional interpretation in the United States obeys what this Article has called rule originalism. Interpreters tend to pursue originalist methods, narrowly conceived, when they face questions about the meaning of constitutional rules, and they tend to pursue nonori­ginalist methods when they face questions about the application of constitutional standards. The instinct toward rule originalism operates across substance and across judicial ideology. It will usually result in nonoriginalist analysis, but this will not always be so, and it will not be so even in some hard cases. In a sense, the present constitutional culture maintains a twenty-percent insistence on originalism, one hundred per­cent of the time.

This division is best justified on teleological grounds: A static interpretive mode respects the settlement and coordination function of rules, which will often operate to set out the division of powers between government actors. But if originalism is appropriate for constitutional rules, and if the reason it is appropriate for constitutional rules is because it promotes constitutional settlement, some further implications for separation of powers might follow. Specifically, it might follow that courts should more liberally permit government institutional standing to more expeditiously resolve disputes over constitutional rules, lest the executive bias that hangs over historical practice distort constitutional meaning without contributing much epistemic value. This conclusion suggests, paradoxically, that the best reasons for originalism draw on originalism’s capacity for judicial constraint and yet support a functional enlargement of judicial authority.

This was one of the papers presented at the San Diego Originalism Works-in-Progress conference in February.

Also from that conference:

Jeffrey Pojanowski & Kevin Walsh, Enduring Originalism (105 Georgetown L.J. 97 (2016))

William Baude & Stephen Sachs: The Law of Interpretation (Harvard L. Rev., forthcoming)

John Stinneford, The Original Meaning of "Cruel" (Georgetown L.J., forthcoming)



Bryan Wildenthal: End of an Oxfordian Era on the Supreme Court?
Michael Ramsey

Bryan H. Wildenthal (Thomas Jefferson School of Law) has posted End of an Oxfordian Era on the Supreme Court?: Remembering Justice Antonin Scalia (1936-2016) (Shakespeare Oxford Newsletter, Vol. 52, No. 3, p. 9, 2016) on SSRN.  Here is the abstract;    

With the death of Justice Antonin Scalia in February 2016, the U.S. Supreme Court lost one of its most brilliant and controversial justices, and "Oxfordians" lost one of the most distinguished figures ever to support the theory that Edward de Vere, 17th Earl of Oxford (1550-1604), was the true author of the works published under the name "William Shakespeare."

What is even more interesting, and not especially well known among lawyers, legal scholars, or otherwise, is that Justice Scalia was only one of several Supreme Court justices to embrace Oxfordian, or at least "non-Stratfordian" views, on the Shakespeare authorship question (SAQ). "Stratfordian" refers to the prevailing orthodox theory that the author was William Shakspere (as his name was spelled in birth and death records) of Stratford-upon-Avon (1564-1616). Oxfordians (and other non-Stratfordians, some of whom favor other possible authorship candidates) believe that "Shakespeare" was a pseudonym for the true author.

Justice Scalia's 30-year tenure on the Supreme Court coincides with an Oxfordian (or non-Stratfordian) era in which as many as five (and possibly more) justices have embraced such unorthodox views about the authorship of what many view as the greatest canon of literary work in human history.

OK, it's not originalism, but it's good Scalia trivia.


Michael McConnell on the Legality of Brexit
Michael Ramsey

At Defining Ideas, Michael McConnell: A Question Of Prerogative.  From the introduction:

Next week the Supreme Court of the United Kingdom will hear arguments in the most important constitutional case in modern European history. At issue is whether Prime Minister Theresa May has authority to exercise Britain’s right to exit the European Union (EU) without a vote of Parliament. The case is styled Secretary of State v. Miller. ...  On November 3, the British High Court of Justice somewhat unexpectedly held that the Crown—meaning the Prime Minister—lacks authority to effectuate the results of the referendum without parliamentary approval. The government has appealed that decision, both sides have filed briefs, and the case will be argued for four days, beginning on December 5.


The British Supreme Court’s decision thus has enormous practical importance. It is therefore surprising that the legal logic of the case has received so little attention. It may seem presumptuous for an American constitutional scholar to wade into the arcane waters of British constitutionalism, but the Miller opinion rests on fundamental and long-standing legal principles, susceptible to analysis and understanding even by an outsider. I believe the High Court’s decision rests on a mistake. I do not know enough about the jurisprudence of the British Supreme Court, which was formed only in 2009 and has never faced a case of this nature before, to predict whether that court will affirm or reverse. But I do think there are strong grounds for reversal.

And from the core of the argument:

The Miller Court reasoned that Brexit would change domestic law because European laws and regulations would cease to apply when the United Kingdom was no longer part of the Union [Ed.: and therefore it it required an act of parliament] . With due trepidation as an outsider to British constitutional law, this strikes me as logically incorrect.

What happens if the Crown gives notice under Article 50 [of the EU treaty], and Britain ceases to be a member of the European Union? This depends on an interpretation of the ECA [European Communities Act, i.e., the U.K. implementing legislation]. The key language comes from section 2(1) of the Act: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the [EU] Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.”

One possible reading (the more plausible, in my view) is that the rights, obligations, etc. arising “under” the Treaties are applicable in Britain only insofar as Britain is subject to the Treaties. If that is correct, there is no need for the Crown to go to Parliament in order to effectuate Brexit. The ECA already anticipates Brexit, and in the event of withdrawal from the Treaty, European law ceases to apply—not because the Crown has changed the law, but because the provisions of the law are triggered by membership in the EU.

A second possible reading is that the ECA has brought European law into force in Britain, and that it will require an Act of Parliament to repeal it. But this does not mean the Crown lacks power to give notice under Article 50. It merely means that the unmaking of the Treaty will not have full effect without passage of legislation. This is no different from any case in which a treaty calls for a change in law or the expenditure of money. Most treaties are not “self-executing,” but require implementing legislation. Merely because implementing legislation is needed does not mean the Crown cannot enter a treaty. ...

This sounds right to me, and it has significant implications for U.S. constitutional law (which is similarly based on the fundamental proposition that the executive cannot change domestic law).  In particular, it has implications for President Trump's possible withdrawal for various treaty regimes, particularly NAFTA (as discussed here and here).

(Via Instapundit).



The Meaning of Emolument
Michael Ramsey

There's been much talk recently about the foreign emoluments clause, and probably someone has made the following point, but I've not seen it.  The clause provides:

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

I assume for purposes of this post that the clause applies to the President (although, as noted here, Seth Barrett Tillman makes a strong textualist/originalist argument to the contrary).  Applied to President-elect Trump, I assume Trump will not accept any "Office, or Title"; "present[s]" can be dealt with individually and in any event wouldn't encompass his business dealings as a whole.   So the key word is "Emolument."

The modern definition of emolument does not seem to cover anything we should reasonably worry about Trump receiving. Merriam-Webster's Dictionary, for example, defines emolument as "the returns arising from office or employment usually in the form of compensation or perquisites." Dictionary.com has it as "profit, salary, or fees from office or employment; compensation for services."  The Oxford English Dictionary similarly defines emolument as "A salary, fee, or profit from employment or office." (And these definitions are consistent with the way "emolument[s]" is used elsewhere in the Constitution, where it could mean simply salary or other payment for employment.) If that's the right constitutional definition, I don't see what the fuss is about. Trump's business dealings, whatever they may be, don't amount to compensation for employment.

It's often said, however,  that words can change their meanings over time, and this may be an example.  Samuel Johnson's Dictionary (1755) defines "emolument" much more broadly as "Profit; advantage." (And indeed, the modern Merriam-Webster entry linked above gives an "archaic" definition of emolument as "advantage.")  Regardless of what other eighteenth-century dictionaries say (I haven't done an extensive search), the broad definition in Johnson's work seems enough to raise an inference of a broad use in the foreign emoluments clause -- especially since, as a policy matter, it might seem odd to limit the prohibition to gifts and salaries, and the subsequent phrase "of any kind whatever" indicates that in choosing between a narrow and broad meaning, one should choose the broad one.  On this reading, Trump's business dealings might well include "advantages" obtained from foreign states.

So perhaps Trump will need to rely on Professor Tillman's argument after all. But I also like the fact that Trump's opponents will need to rely on an eighteenth century dictionary.


Liberty in Context: A Reply to Devin Watkins
Andrew Hyman

This post is in reply to one by Devin Watkins at the Liberty Law Blog on November 21 which was titled "Defining Liberty Properly".  We are concerned here with the Due Process Clause, and how “liberty” is defined in the context of that clause.

As Mr. Watkins points out, there is an old Blackstonian distinction between civil liberty and natural liberty.  The first is basically a subset of the second, and Mr. Watkins is apparently correct that Thomas Jefferson was referring to this distinction when he wrote the following in 1819: 

[O]f Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

Thus, Jefferson used the bare word "liberty" to mean what Blackstone called natural liberty, and used the term "rightful liberty" with reference to what Blackstone called civil liberty.  My understanding is that the bare word "liberty" in the Due Process Clause means what Jefferson said this bare word meant: natural liberty, not merely civil liberty.  Jefferson was hardly alone in using the bare word "liberty" to mean natural liberty.  For example, when George Washington transmitted the original draft Constitution to the Continental Congress, he wrote: "Individuals entering into society, must give up a share of liberty to preserve the rest."  I don’t think anyone disputes that Washington was using the bare word "liberty" to mean natural liberty, rather than merely civil liberty.

Assuming that the word "liberty" in the Due Process Clause means natural liberty rather than merely the subset called civil liberty, then people entitled to exercise such liberty would be entitled to violate the rights of others (per the Jefferson quote above), and so it would seem absurd to infer a substantive legal right to the liberty discussed in the Due Process Clause.  I do not see how any proponent of substantive due process can reasonably infer a substantive right to civil liberty without inferring a substantive right to natural liberty, given the textual fact that the liberty mentioned by the clause is natural liberty.

Mr. Watkins points to the dissent by Justice Thomas in Obergefell v. Hodges (2015).  Justice Thomas wrote: "As used in the Due Process Clauses, 'liberty' most likely refers to 'the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.' 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone)."  I think Justice Thomas was being a bit imprecise there, and should not have included those last six words; that is, "liberty" in the Constitution most likely refers to "the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint."  The ability to change one’s situation without restraint is an extremely broad concept, and is synonymous with natural liberty, which again confirms that the word "liberty" in the Due Process Clause refers to natural liberty, not merely civil liberty.   When the government seeks to restrain natural liberty, it must do so by due course of law (i.e. due "process" of law), and the resulting curtailed liberty is what Blackstone called "personal liberty."

If Mr. Watkins were correct that the word "liberty" in the Due Process Clause means civil liberty rather than the broader notion of natural liberty (at least I understand that to be his position), then due process of law would no longer be required when a president or governor deprives someone of any type of natural liberty that does not qualify as civil liberty, and so not even statutory authorization would be needed for a president or governor to do that.  In saying this, I am not equating "due process of law" with "statutory authorization," and I do not believe that these two terms are synonymous (as Mr. Watkins has claimed I do); statutory authorization is surely an element in the proper definition of due process of law but saying so does not equate statutory authorization to due process of law.

Although the foregoing analysis seems (to me) to disprove substantive due process, it is unnecessary, because there are other ways of disproving the (deeply flawed) notion of substantive due process.  To wit, let us suppose for argument’s sake that Mr. Watkins is correct that the word “liberty” in the Due Process Clause refers merely to civil liberty, and not natural liberty (despite how Jefferson and Washington used the bare term “liberty” and despite what Blackstone said).  I generally agree with Mr. Watkins that, "Sir Edward Coke, perhaps the greatest of the English jurists, was considered authoritative by early American courts as to the meaning of the common law, and specifically the 'due process of law'" (if we allow for additional authoritative sources like Blackstone and the highest courts of England). But Mr. Watkins goes wrong when he says that, "Coke interpreted the words 'law of the land' and 'due process of law' to mean 'by indictment or presentment . . . in due manner, or by writ [original] of the Common law.'"  After all, indictment and presentment are entirely procedural concepts, not substantive at all; moreover, the U.S. Supreme Court long ago explained correctly that indictment was cited by Lord Coke merely as "an example and illustration of due process of law as it actually existed in cases in which it was customarily used."  Look at it this way: if Lord Coke said that masturbation was contrary to the law of the land (and he may well have said so because it was indeed a capital offense), then that would not mean the term "law of the land" is inherently inconsistent with legal masturbation, only that the statutes in England during Coke’s time happened to make masturbation illegal.  The very same principle applies to this statement by Lord Coke (which Mr. Watkins quotes): "Generally all monopolies are against this great Charter, because they are against the liberty and [freedom] of the Subject, and against the Law of the Land."  A reasonable way to construe that statement by Coke is that monopolies were forbidden by statute, therefore they were against the law of the land, and therefore granting them was against Magna Carta.  Lord Coke's understanding of the due process clause of Magna Carta is not complicated:  "no man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England.”  Thus, for Coke, statute law was sufficient to satisfy that requirement of Magna Carta.

Mr. Watkins also cites some cases, including Bonham’s Case (1610), which as far as I know did not mention the due process clause of Magna Carta, and anyway the notion that Bonham's Case endorsed judicial review was not widely accepted in England during the eighteenth century, nor even in America after 1772 (when Blackstone's writings took hold).  In any event, I can reciprocate by citing a later and much more pertinent case, Regina v. Paty, 92 Eng. Rep. 232, 234 (K. B. 1704), in which Justice Powys of the King's Bench stated:

[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law ; and the meaning of the statute is, that all commitments must be by a legal authority. And the law of Parliament is as much a law as any; nay, if there be any superiority, this is a superior law.

Another case cited by Mr. Watkins is an American one: Hoke v. Henderson, 15 N.C. 1 (1834).  That case was decided much too late to affect the original meaning of the Due Process Clause in the Bill of Rights, and it was eventually overturned, by Mial v. Ellington, 134 N.C. 131 (1903).  Hoke was by no means typical: it "stands out in strong contrast...to every published decision and opinion on the subject which we have ever seen."  Conner v. Mayor of N.Y.,  2 Sandf. 355, 373 (N.Y. Sup. Ct. 1849), aff’d 5 N.Y. 285 (1851).  

Anyway, I wanted to reply carefully to the interesting points that Mr. Watkins raised in his lengthy blog post of November 21, and will close now by saying very sincerely that I strongly support rightful liberty, and agree that our government was instituted largely to protect it, but a mere majority of the U.S. Supreme Court is not the only entity in the United States that has a critical role in divining the fundamental contours of rightful liberty, under the original public meaning of the U.S. Constitution.  Mr. Watkins is more than welcome to post a reply here at this blog if he would like, and in any event I am happy to now give him the last word in our discussion.

Brian Slocum: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy
Michael Ramsey

Brian G. Slocum (University of the Pacific - McGeorge School of Law) has posted Introduction: The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy (The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation from Linguistics and Philosophy (University of Chicago Press, 2017)).  Here is the abstract:   

Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential? 

To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.

And also new on SSRN from Brian Slocum: Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning (The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (de Gruyter Mouton, Mouton Series of Pragmatics, 2017)).  Here is the abstract:      

It is often assumed or asserted by courts and scholars that the literal meaning of a legal text is co-terminous with its communicative meaning, but such an understanding is mistaken. There is often a gap between the two. Accounting for that gap, though, raises difficult issues. The linguistic phenomena responsible for the gap between literal and communicative meaning can be identified as involving pragmatic processes (Recanati 2004). In evaluating these pragmatic processes, theories that offer accounts of specific linguistic phenomena offer conceptual advantages compared to more reductive theories that seek to identify deep underlying principles of communication applicable across various linguistic phenomena. In all cases, for a linguistic theory to be useful it must, as a general matter, be explanatory and persuasive and, importantly, offer some insight into the interpretation of legal texts. This paper argues that the legal meaning of a legal text is generally constrained by its communicative meaning, demonstrates the gap between literal meaning and communicative meaning, and finally argues in favor of theories that explain pragmatic processes in terms of specific systematic effects in language.

(The latter via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!").


Mark Pulliam on Justice Don Willett (and John McGinnis on Scalia'a Virtues)
Michael Ramsey

This is from a while back, but even more relevant now -- at Liberty Law Blog, Mark Pulliam, Don't Thread on Me (analyzing in detail the Texas Supreme Court's decision in Patel v. Texas Department of Licensing and Regulation [the eyebrow-threading case], including the now-famous concurrence by Justice Don Willett).  From the introduction:

The Texas Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing and Regulation, striking down a state law requiring at least 750 hours of training in order to perform commercial “eyebrow threading”—a form of hair removal mainly performed in South Asian and Middle Eastern communities—has generated substantial notoriety for the court and for the Institute for Justice, which brought the lawsuit challenging the law.

Patel drew notice from libertarian legal scholars for “reinvigorating ‘substantive due process,’” and “rejecting the Lochner bogeyman.” Reason’s Damon Root called Justice Don Willett’s concurring opinion “the most libertarian legal opinion ever written.” And University of Tennessee law professor Glenn Harlan Reynolds, proprietor of the Instapundit website, lauded the Institute for Justice in USA Today for its work challenging excessive occupational licensing regulations.

My present inquiry is simply whether the various opinions in Patel are sound from a doctrinal or “originalist” perspective—did the court correctly apply the relevant law? ...

Also from Mark Pulliam, at Empower Texans: Good News and Bad News on School Finance in Texas (analyzing another Willett opinion).  From the introduction:

The long-awaited decision from the Texas Supreme Court in the school finance case, Morath v. Texas Taxpayer and Student Fairness Coalition, was issued on May 13, 2016. (The case was argued over eight months earlier.) The court’s jargon-laden 100-page (!) decision can be summarized with this sentence: “Despite the imperfections of the current school funding regime, it meets minimum constitutional requirements.”

The unanimous decision, written by Justice Don Willett, is being described by headline writers as a “win” for the state, but in reality it is a mixed bag. ...

RELATED:  Also at Liberty Law Blog, John McGinnis: Scalia’s Successor Needs His Virtues.

In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues.  First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it.  The highest honors from our legal and academic establishment all go to justices who begin or  drift left. Justice Scalia, of course, was impervious to all such temptations.

But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.


Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written. Originalism is gaining ground because of its intellectual power and a justice can deepen its attractiveness through his or her writings. ...

(With special positive mention of two of the "Trump 21").

REMINDER:  Andrew Hyman has been adding to his outstanding resources page on the potential nominees.


Josh Blackman on Foreign Emoluments
Michael Ramsey

At Josh Blackman's Blog: Can Congress Impose Ethics Requirements on the President or the Supreme Court?  First, an endorsement of Seth Barrett Tillman's view of the emoluments clause: 

In the 2009 OLC Opinion concerning President Obama’s receipt of the Nobel prize, now-First Circuit Judge Barron wrote that:

The President surely “hold[s] an[] Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.”

No analysis whatsoever followed about why the President “surely” hold such a position. One of my biggest pet peeves in legal writing is the word “certainly,” or its close cousin, “surely.” It is conclusory language that papers over the fact that the writer hasn’t made an actual argument. Such is the case here with Barron’s opinion. Fortunately, others have given this some thought.

I have long been persuaded by Seth Barrett Tillman’s tireless research, based on the text of the Constitution, that the President is not a “person holding any office of profit or trust.” Therefore, the Emoluments Clause does not apply to him.  [Plus, Laurence Tribe admits that Professor Tillman is "no kook"].

And then the more difficult question:

But could Congress pass a statute regulating the President’s business interests? No. Congress can’t impose additional qualifications on the Presidency beyond those already in the Constitution, such as the Natural Born Citizen Clause. This is consistent with the Court’s holding in U.S. Term Limits v. Thornton, that states cannot impose additional criteria for members of Congress. The argument for executive independence, however, is even stronger. Individual members of Congress can easily recuse from votes that raise conflicts of interest; the President cannot.

In 1972, the Office of Legal Counsel reached this same conclusion in its analysis how then-extant ethical laws impacted Vice President Rockefeller’s business interests. (The opinion was authored by then Deputy Attorney General, and now D.C. Circuit Judge, Laurence Silberman).

(And the same goes for the Supreme Court).


Jeremy Kidd et al.: Measuring the “Scalia-Ness” of the Next Potential Member of the U.S. Supreme Court
Michael Ramsey

Jeremy Kidd (Mercer University - Walter F. George School of Law), Riddhi Sohan Dasgupta (University of California, Berkeley), Ryan D. Walters (Independent) and James Cleith Phillips (University of California, Berkeley, School of Law, Students) have posted Searching for Justice Scalia: Measuring the “Scalia-Ness” of the Next Potential Member of the U.S. Supreme Court on SSRN.  Here is the abstract:     

The President-elect promised on the campaign trail to replace Justice Scalia with a judge like Justice Scalia (and Justice Thomas). But what does it mean to be like Justice Scalia? It surely means more than just being "conservative." This study proposes three empirical measures of what made Justice Scalia Justice Scalia. First, how often does a judge promote or practice originalism? Second, how often do they cite to Justice Scalia's non-judicial writings, writings that were not about the substance of the law but about how to think about interpreting the law. And third, how often does a judge write separately, something Justice Scalia did 25.9% of the time when he was not writing the majority opinion over his last 20 years on the court. The study then applies those measures to potential nominees, and provides a metric for determining just how Scalia-like they are: the Scalia Index Score. While not without its limitations, this metric provides an objective way to evaluate how much a potential nominee is like the famous jurist they may replace.

Number one may surprise you!  (Two and three won't).


Devin Watkins Responds on Liberty and Due Process
Michael Ramsey

At Liberty Law Blog, Devin Watkins: Defining Liberty ProperlyFrom the introduction:

On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.

And in conclusion:

Originalists should recognize the consistent view of the common law courts and the Founders, which was that the meaning of liberty included the right to do all those acts which are not harmful to others.

(Thanks to Mark Pulliam for the pointer).


Robert Delahunty: Is the Uniform Faithful Presidential Electors Act Constitutional?
Michael Ramsey

Robert J. Delahunty (University of St. Thomas School of Law (Minnesota)) has posted Is the Uniform Faithful Presidential Electors Act Constitutional? (2016 Cardozo Law Review De Novo 129) on SSRN.  Here is the abstract:     

Proposals for the reform or abolition of the Electoral College have been advanced from the early Republic onwards to the present. One of the perceived problems in our existing system has been the possibility (and occasional occurrence) of a “faithless elector” – that is, an elector who is pledged to vote for one Presidential candidate, but who in fact votes for another or does not vote at all. Several States have sought to cure this problem by enacting the Uniform Faithful Presidential Electors Act (UFPEA). This article reviews the background, history and purposes of the Electoral College. It considers both American and British views and practices in the late eighteenth century and after, together with relevant case law and legal scholarship. It concludes that the UFPEA is unconstitutional.

(Via Larry Solum at Legal Theory Blog).


Paul Larkin: The Original Understanding of 'Property' in the Constitution
Michael Ramsey

Paul J. Larkin Jr. (The Heritage Foundation) has posted The Original Understanding of 'Property' in the Constitution (Marquette Law Review, Forthcoming) on SSRN.  Here is the abstract:     

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights to which everyone was entitled, such as the right to governance under “the rule of law.” Property was not immune from regulation, but that regulation had to be for the purpose of promoting “the general Welfare,” not the interests of specific groups or people. It is time for the Supreme Court to revisit Anglo-American legal history and to re-examine its precedents in light of what that history teaches.


Larry Solum on Eric Segall on Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has a long critical post responding to Eric Segal's post Who is Originalism for? (noted here).  On New Originalists and the interpretation/construction theory, Professor Solum objects:

... [I]t seems quite likely that there are at least some areas of constitutional law where the public meaning of the constitutional text underdetermines legal effect.  Does the existence of a significant set of construction zones imply that originalism is indistinguishable from living constitutionalism [as Professor Segall suggests]?  The answer to this question is obvious: "no."  First, the original meaning is not radically indeterminate--it is moderately underdeterminate at best.  Second, even with respect to those provisions that are underdeterminate, the text rules out some of the possible answers as inconsistent with the original meaning: this is H.L.A. Hart's idea of the "core" and "penumbra."  Third, it is not necessarily the case that originalists will adopt the same approaches to constitutional construction in the zones of underdeterminacy that living constitutionalists use with respect to the whole text: this third point requires that we examine the various forms of living constitutionalism and the options for originalist constitutional construction--a task beyond the scope of a blog post.  Nonetheless, we should observe that originalists will need to adopt a theory of constitutional construction in the zone of underdeterminacy that is consistent with the justification they offer for originalism itself.  For example, if originalism is justified because living constitutionalism undermines the rule of law by creating an unconstrained Supreme Court, then the correlative approach to constitutional construction will not be: "Supreme Court do whatever you want if the text is underdeterminate."  A rule of law approach to constitutional construction might emphasize respect for baseline legal norms and a strong doctrine of stare decisis.  Or one might adopt the "presumption of liberty approach" advocated by my colleague, Randy Barnett.

And on the future of originalism:

Whether originalism has legs is a different question.  I will say this: in the early 80s when I first encountered originalism, the notion that someday Supreme Court Justices would write originalist decisions was patently absurd.  Two weeks ago, I would have said that it was almost impossible that the Supreme Court would have more than one (maybe two if you count Alito) originalist Justice in the next few years--perhaps in decades.  As a practical matter, the originalist project requires originalist Justices on the Supreme Court.  And that depends on the appointments process.  And that depends on politics.  And not just politics, but the accidents of history as well.

But even if it were the case that originalism will never gain the ascendency, that does not entail the conclusion that originalism as a normative constitutional theory is worthless.  Normative theories can have power even in dissent.  My wonderful colleague Michael Seidman's project of making the case for transparent radical constitutional skepticism is unlikely to gain traction on the Supreme Court.  If the appointment of even one originalist Supreme Court Justice was very unlikely, then the appointment of a Justice who says, "The constitution is just a symbol like the flag; I will disregard it when I decide constitutional cases," is more than just a black swan-more like a flock of black swans who can dance the Charleston while they sing Leonard Cohen songs.  But the extreme unlikelihood of the public embrace of radical constitutional skepticism does not make the skeptic's project unimportant.  Questions about what we should do are very important--even when we do what we should not.  Radical perspectives can illuminate and deepen debates that otherwise are shallow.  There is nothing like a radical idea to shake up the echo chamber of received opinion.

SOMEWHAT RELATED:  Also at Legal Theory Blog, from the Legal Theory Lexicon: Vagueness and Ambiguity.  (Very important concepts and no one does them better than Professor Solum).


John McGinnis on Trump's Judges
Michael Ramsey

At Liberty Law Blog: John McGinnis: President-Elect Trump’s Opportunity to Create a Lawful Judiciary.  A key point:

Even as there has never been a greater opportunity to reshape the judiciary, it has never been more imperative. The mainstream legal culture runs ever more swiftly left. As a result, that current is likely to sweep along judges who are not anchored on the right. Justices David Souter and Harry Blackmun are famous examples, but many lower court Republican judges have drifted as well.

Thus, if the Trump administration is to remake the judiciary it must choose candidates from the conservative legal counterculture rather than rely on successful lawyers of Republican leanings who happen to know a Senator. Legal academics are often the best bet. Their academic paper trail can no longer trigger a Democratic filibuster but their past commitments provide the best guarantee of future fidelity.  And there is no doubt that academics appointed to the circuit courts have been the most influential judges. For instance, Judge Frank Easterbrook of the Seventh Circuit has been cited a standard deviation more than almost any other judge on the federal appeals court. ...

So a good candidate would be a mid-career legal academic with a prominent history of defending originalism ...  I agree, of course.

More on Supreme Court Nominees: Judge Neil Gorsuch
Michael Ramsey

At Notice and Comment, David Feder (a former Gorsuch clerk): The Administrative Law Originalism of Neil Gorsuch.  From the introduction:

What some may not know, however, is [Judge Gorsuch's] deep commitment to the original understanding of the constitution and the rule of law.  As Adam Feldman of Empirical SCOTUS puts it, “he regularly uses originalist principles in his decisions” and thus merits classification “as a heavy originalist based on the originalist indicators in his decisions.”  He not only faithfully applies originalist methodology but articulately explains why our constitutional design remains relevant—and critical—over two hundred years later.  If the President-elect’s goal is to replace Justice Scalia with someone who will carry the flag of originalism and teach it to the next generation through engaging opinions, public speeches (see, e.g., Law’s Irony and Of Lions and Bears, Judges and Legislators), and the honest hard work it requires, the choice is Judge Gorsuch.

I know the judge’s commitment to originalist principles first hand.  Whenever a constitutional issue came up in our cases, he sent one of his clerks on a deep dive through the historical sources.  “We need to get this right,” was the motto—and right meant “as originally understood.”  I can think of no one better to carry on Justice Scalia’s legacy and, in the words of Justice Thomas, “to stand firm in the defense of the constitutional principles and structure that secure our liberty.”

While Judge Gorsuch’s originalism is not confined to any one corner of the Constitution (Krueger, Carloss, Williams, to name a few other excellent opinions in other areas) some of his most impressive work has come in the arena of administrative law.  This post examines three of Judge Gorsuch’s recent and noteworthy administrative law opinions, with an eye toward the rigorous originalism that motivated them. ...

(Via How Appealing)

RELATED:  Josh Blackman's poll now has Gorsuch in first place, followed by Pryor, Kethledge, Sykes, and Stras.  (Justice Willett drops to seventh after a negative review from Andrew Hyman.  But there's this from the Texas Observer: Don Willett's Quiet Revolution: Social media's most famous judge is at the forefront of a conservative legal movement that's redefining what it means to be a judicial activist; And he's on Donald Trump's Supreme Court short list [also via How Appealing]).


More on Supreme Court Nominees: Justice Thomas Lee
Michael Ramsey

A reader offers these thoughts on Utah Supreme Court Justice Thomas Lee, another Supreme Court short-Lister:
If you go here, you will find summaries and citations to many of Justice Lee's important opinions.  I would direct you to a few cases in particular : 
State v. Houston, 2015 UT 40 (Lee, J., concurring)
State v. Walker, 2011 UT 53 (Lee, J., concurring)
In re Adoption of J.S., 2014 UT 51
Gregory v. Shurtleff, 2013 UT 18 (Lee, J. concurring in part and dissenting in part)
State v. Clopten, 2015 UT 82 (Lee, J., concurring)
In Re Discipline of Brian Steffensen, 2016 UT 18
State v. Canton, 2013 UT 44
Carter v. Lehi City, 2012 UT 2
State v. Prion, 2012 UT 15
Also State v. Hernandez, 2011 UT 70 (Justice Lee joined).
These cases will give you a very good idea of where he stands; and I think that cases like Prion and Hernandez are important as the outcomes cut against traditional "conservative" outcomes (Prion finds a double jeopardy violation and Hernandez found right to preliminary hearing for certain misdemeanants).
I would say this adds up to a strong originalist resume.
For more on Justice Lee, see Andrew Hyman's SCOTUS nominee resource page.

Randy Barnett on Supreme Court Nominees, Originalism, and Stare Decisis
Michael Ramsey

Randy Barnett in the Wall Street Journal: Two Questions for Donald Trump’s Supreme Court Nominees

On Trump’s commitment to originalism:

I’m pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump’s transition team affirmed that he will nominate judges “who are committed to interpreting the Constitution and laws according to their original public meaning.” During the campaign Mr. Trump released a list of 21 potential candidates for Scalia’s seat. Those on the list with whom I am familiar would be sympathetic to originalism.

Discussing the issue of stare decisis:

The bigger unknown is where they stand on stare decisis—Latin for “let it stand.” This is the idea that precedents of previous Supreme Courts should be followed, even when they conflict with the original text of the Constitution. Here is where Scalia’s friend and colleague, Justice Clarence Thomas, comes to the fore.

Justice Thomas has been more willing to reject stare decisis and reverse precedents. Consider the New Deal-era case Wickard v. Filburn. In 1942 the Supreme Court held that Congress’s power to regulate interstate commerce extended to a farmer growing wheat to feed his own livestock. Sixty-three years later, that expansive reading of the Constitution’s Commerce Clause continues to hold.

Which leads to the two questions that the Trump administration should be asking of potential judicial nominees. First: Will they elevate precedent over the original meaning of the Constitution, thereby locking in a highly distorted reading of federal power? Or will they insist on interpreting America’s founding document and its amendments as they were written?

Second: Do they, like Justice Scalia, have the courage of their convictions—the intestinal fortitude to stand against the public’s demand for this or that outcome, and to do what they believe to be right? Or will they bend with the political wind to protect the “legitimacy” of the court?

And concluding:

This isn’t a matter of seeking judges who will reach conservative results versus liberal ones. It’s about adhering to the text of the Constitution, while letting the political chips fall where they may. (Justice Thomas would have reached a “liberal” result in Raich.)

The last point is particularly important to emphasize.  At the recent Federalist Society convention on Justice Scalia's jurisprudence, one of the themes was the underappreciated extent to which Scalia reached "liberal" results, including in free speech, fourth amendment privacy, and the rights of criminal defendants.


Perpetual Filibusters of SCOTUS Nominees
Andrew Hyman

I do not know if Democrats would filibuster any SCOTUS nominations during the coming administration, but I do expect the GOP Senate to unhesitatingly get rid of the perpetual filibuster for Supreme Court nominees, just like the Democrats did for lower court nominees.  Here are several (redundant) reasons to expect such action by the GOP Senate:

*Gehrke, Joel.  Reid: Dems would nuke Supreme Court filibuster, Washington Examiner (October 24, 2016).
*Fox, Lauren.
Harry Reid's Parting Shot: Dems Will Nuke The Filibuster For SCOTUS, Talking Points Memo (October 24, 2016).
*Kilgore, Ed.  
Harry Reid Promises Democrats Are Ready to End the Filibuster on Supreme Court Nominees, New York Magazine (October 24, 2016).
*Carney, Jordain.  Reid: I have set the Senate for nuclear option, The Hill  (October 24, 2016).

There are further reasons for eliminating (or "nuking") the perpetual filibuster of SCOTUS nominees.  First, a perpetual filibuster has never before killed a SCOTUS nomination (e.g. the Fortas filibuster was avowedly temporary and was cut short by his withdrawal after only a few days).  Second, a perpetual filibuster would prevent SCOTUS from ever changing much, and therefore would allow precedents to become entrenched without ever having to pass muster with a wide diversity of judicial philosophies.  

Some Resources About Judge Willett and the 20 Other Potential SCOTUS Nominees (with Updates)
Andrew Hyman

I have started a resource page that provides some information about the 21 people in the running for the SCOTUS nomination, and hopefully will add more resources as time allows.  I would like to identify some red flags for originalists to be aware of, and will mention one of them now (more later).  

It appears that Justice Don Willett of the Texas Supreme Court is a fascinating fellow with an interesting background that includes riding rodeo along with a stint as a professional drummer.  He has also been instrumental in setting up a terrific online resource called Consourse
that was discussed on this blog back in 2014.

Unfortunately (from my point of view), it appears that Judge Willett admires a doctrine that Justice Scalia abhorred, called substantive due process (or SDP, which was the stated rationale for 
Roe v. Wade among other cases).   In the 5-4 case of Patel v. Texas Department of Licensing and Regulation (2015), Justice Willett characterized non-enforcement of unenumerated rights as "absolute judicial deference to majority rule," which does indeed sound like a horrible sort of deference until you consider that the alternative may be absolute deference to judicial rule. Scholars still argue about whether SDP is consistent with originalism (I think not), and this dilemma calls to mind what Winston Churchill said in 1947: "Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…"

Past nominations by Republican presidents already suggest great caution (Justice Souter is often mentioned in this regard), so I urge caution and patience now in filling the current vacancy.  In any event, rumor has it that only two people are seriously still in the running for the Scalia slot: Judge William Pryor and Judge Diane Sykes.  I hope to blog about them in the future.

MICHAEL RAMSEY adds:  This is a great resource; thanks to Andrew for putting it together.  The last link identifies the rumor with the just-concluded Federalist Society convention, which I attended; I can confirm that Judges Pryor and Sykes seemed to be the leading candidates.  Josh Blackman's updated poll now has the top five as Pryor, Kethledge, Sykes, Cruz, Willett -- but with Pryor and Sykes leading in the most recent votes received.

Re Judge Willett, the fact that he endorses a version of substantive due process should not necessarily mark him as a nonoriginalist, as Andrew acknowledges, nor make him a risky pick (though it does put him at odds with Justice Scalia on this point).  I'm reminded of my late colleague Professor Bernard Siegan, who was nominated by President Reagan to the Ninth Circuit and sadly rejected by the Senate: him was an outstanding originalist and also one of the inspirations of the modern economic due process movement (and would have been a great judge, despite my disagreements with him).

FURTHER UPDATE: Josh Blackman points out, rightly, that Judge Willett's Patel decision was under the Texas state Constitution and carefully distinguished the federal Constitution.  (The two constitutional provisions are, however, more or less parallel).

FURTHER UPDATE FROM ANDREW HYMAN:  Of course, Justice Willett’s opinion in Patel was technically based upon the “due course of law” provision of the Texas Constitution, but that concurring opinion made very clear his support for substantive due process under the federal constitution.  This was noted by the dissents in that case, and is also crystal clear from his own opinion in Patel, which includes this:

There are competing visions, to put it mildly, of the role judges should play in policing the other branches, particularly when reviewing economic regulations. On one side is the Progressive left, joined by some conservatives, who favor absolute judicial deference to majority rule. Judge Robert Bork falls into this camp. A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism.

While Justice Willett distinguished the federal Constitution from the Texas one, he did not suggest that the two corresponding due process clauses should ideally be interpreted differently.  Quite the opposite.  Majoritarianism is one of the great defenses that has ever been devised to protect liberty, and majorities are responsible for creating the constitutional clauses that courts are sworn to obey.  A majority of the citizenry, or indeed a majority of legislators, will often defend liberty much more appropriately than would a majority of judges left to their own devices.  And when mistakes are inevitably made, legislation is much easier for the citizenry to correct than judicial edicts.

Seth Barrett Tillman on Foreign Gifts to Presidents
Michael Ramsey

In the New York Times' Room for Debate, Seth Barrett Tillman: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents.  From the introduction:

President-elect Donald J. Trump has many extensive and diverse business interests, including some abroad, and some of his interests involve foreign government entities. In order to ensure against ethical conflicts, both real and perceived, Trump should place his interests in those holdings beyond his personal control, i.e., into an independently managed blind trust. Such a move would be wise and consistent with America’s best political traditions and practices.

Still the Constitution does not always demand that we and our government act wisely. And that is the situation here. The Foreign Gifts Clause provides that “no person holding any office of profit or trust under them (i.e., the United States) shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not. ...

(All good originalist reasons, too).

Zephyr Teachout (Fordham) has the other view: Trump’s Foreign Business Ties May Violate the Constitution (with contrary evidence from Presidents Tyler and Van Buren).


Tuan Samahon: No Praise for Process Federalism
Michael Ramsey

Tuan Samahon (Villanova University - School of Law) has posted No Praise for Process Federalism: The Political Safeguards Mirage and the Necessity of Substantial, Substantive Judicial Review (Villanova Law Review, Vol. 61, No. 3, 2016) on SSRN. Here is the abstract:      

In this Essay on the occasion of the Villanova Law Review's 60th anniversary, I critique process federalism and its persistent claim that the national political process provides any kind of adequate representation of states' interests. Even modest versions of process federalism, such as Professor Ernie Young's formulation, must rely on a tenuous claim that states are represented in the national political process. Since the elimination of state legislative election of U.S. senators by the 17th Amendment, that predicate representation has been absent, both actually and virtually. Claims to the contrary fail on closer inspection. Accordingly, the process theorist's faith in the national political process rings hollow and leaves room for very substantial doubt that process federalism could ever sufficiently police the scope of congressional power and the appropriate federal balance.

Moreover, failures in the national political marketplace for popular loyalty abound. Non-transparency, popular political ignorance, and inefficiency at the modern senatorial ballot box all but assure resort to the political process will almost never safeguard federalism adequately. Accordingly, substantial, substantive judicial review continues to remain necessary to safeguard what the political process will not -- the structural value of federalism.

I agree.  Plus, as noted earlier, my colleague Laurence Claus has an outstanding forthcoming paper suggesting that the political protections of federalism weren't all that robust in the original design even before the 17th Amendment.


Jeremy Waldron: What a Dissenting Opinion Should Have Said in Obergefell v. Hodges
Michael Ramsey

Jeremy Waldron (New York University School of Law) has posted What a Dissenting Opinion Should Have Said in Obergefell v. Hodges on SSRN.  Here is the abstract:      

This is my contribution to a project organized by Jack Balkin under the heading “What Obergefell v. Hodges Should have Said.” A number of legal scholars participated as though they were Supreme Court justices deciding Obergefell. My contribution is a dissent. Although the outcome of the case was an improvement in the institution of marriage, it was not appropriate for the courts to make such a fundamental change. Marriage as an institution belongs in each state to the people of that state and fundamental changes in the institution should be made legislatively (as they have been in almost every other country in the world that has established marriage equality). This is not just an a fortiori consequence of a general hostility to judicial review. Even if one accepts that judicial review of legislation is the appropriate remedy for a case like Loving v. Virginia, there are considerations that sharply differentiate the decision in that case from the transformation of marriage that took place as a result of the Obergefell decision.


2016 Federalist Society Lawyers Convention (with Trump Short-Listers)
Michael Ramsey

This year’s Federalist Society Lawyers Convention is being held today through Saturday in Washington DC; the theme is “The Jurisprudence and Legacy of Justice Scalia.”  Speakers include Justices Alito and Thomas, plus (it appears) at least nine of the Supreme Court short-listers: Judges Stephen Colloton, Allison Eid, Thomas Hardiman, Raymond Kethledge, Joan Larsen, William Pryor, David Stras, Diane Sykes, and Donald Willett.  (via Jonathan Adler at Volokh Conspiracy, who also links to this fun site predicting the nominee -- current favorites are Larsen, Sykes and Pryor).  

Also speaking are Senators Ted Cruz and Ben Sasse; Governor Nikki Haley; former solicitor general Paul Clement; and too many law professors to count.  One thing worth noting is the Society's ability to attract liberal as well as conservative law professors, including for example Akhil Amar (Yale), Rachel Barkow (NYU), William Eskridge (Yale), Abbe Gluck (Yale), Deborah Rhode (Stanford), and Stepehen Vladeck (Texas).

UPDATE:  Josh Blackman is polling on who the nominee will be -- current leaders are Kethledge, Cruz, Prior, Sykes and Willett.



Eric Segall: Who Is Originalism For?
Michael Ramsey

At Dorf on Law, Eric Segall: Who Is Originalism For?  From the conclusion:

Judge Bork's originalism provided a rule for judges in [hard] cases. The government wins absent clear evidence of unconstitutionality as shown by text or history. But few modern originalists, including Justices Scalia and Thomas, as well Professors Randy Barnett, Jack Balkin, and Will Baude (all self-styled originalists), take that position. Moreover, as far as I can tell, Professor Larry Solum's work does not offer this kind of deference either.

Solum and Barnett might respond that I am confusing the semantic meaning of the text with the legal meaning. They have argued that what the words meant to the people at the time is a very different question than how judges should apply those words to current modern problems, which requires what they call "constitutional construction." The problem is that as I, and many other people have observed, this dichotomy between semantic and legal meaning renders originalism indistinguishable from living constitutionalism. Moreover, if, as Randy argues, originalism often "runs out" in hard cases, then the question again becomes who is originalism for?

The sad answer, I think, is that originalism is a marketing device for judges and politicians (like the President-elect, Ted Cruz, and others) to use to mask personal judgments about what is best for society today. For scholars, it is a means of discussing constitutional law in a way that appears academic and theoretical but at the end of the day doesn't describe accurately how judges decide cases or likely ever will decide cases. I will have more to say about both of those claims in future blog posts, articles, and my book Originalism as Faith. But for now, it is enough to suggest that originalism without deference is absurd, and if I'm right that Supreme Court Justices (life-tenured government officials who have enormous power) will inevitably do what they think is best, as has been the case with Justice Scalia and Thomas, then we must ask seriously who is originalism for?

An interesting and challenging post.  I would say (although it is not a complete response) that there is an intermediate position between Bork-ian deference and Barnett-ian or Balkin-ian New Originalism.  It is that the government should get deference when the originalist sources are inconclusive, but that "inconclusive" is applied narrowly to mean the originalist arguments are close to evenly matched, not just that there is some originalist evidence on both sides.  I think this might describe Scalia (at his best), and perhaps others; so originalism might be for them.


President Trump and International Agreements: A Recap
Michael Ramsey

Because it seems more important now, here is a recap of my assessment of the President's ability to withdraw from some controversial international agreements (see previous post here).

(1)  The Iran nuclear deal (the "Joint Comprehensive Plan of Action" or JCPOA).  This agreement is nonbinding.  The Obama administration has specifically described it in that way, and that is the only way it is even arguably constitutional.  (See my discussion here).  It is not actually an agreement; it is (as its title declares) a "joint plan of action."  As a result, President Trump can decide to adopt a different plan of action regarding Iran.  (Of course, other countries that adopted the prior plan of action are under no obligation to change their approach, and it may be doubtful how effective a unilateral change will be).

Some people have argued that the Iran deal has become binding on the United States as a matter of international law as a result of UN Security Council Resolution 2231, which endorses the deal.  If that were true, it would amount to an extraordinary bit if constitutional bad faith by the U.S. President -- that is, to negotiate and accept a deal as expressly nonbinding in order to satisfy U.S. constitutional requirements, and then "launder" it through the Security Council (where the U.S. has a veto) to turn it into a binding agreement.  If this is what occurred, no subsequent U.S. President (or Congress) should accept any purported obligation achieved in this way.  However, President Obama can't be charged with bad faith here: the administration denied that the resolution would convert the deal into a binding agreement, and indeed it doesn't.  The resolution uses only nonbinding language -- for example, item 1 "Endorses the JCPOA and urges its full implementation on the timetable established in the JCPOA."

In sum, President Trump may constitutionally withdraw from the Iran deal if he chooses.

(2)  The Paris climate agreement.  This agreement, unlike the JCPOA, is binding as a matter of international law.  (Again, see my discussion here).  However, it is not part of the supreme law of the land in the Constitution's Article VI, because it was not approved as a treaty by the Senate nor incorporated into a statute by Congress.  Thus President Trump would have a good argument that U.S. law allows him to repudiate it, even though that would violate international law.  (He can also give notice of U.S. withdrawal pursuant to the agreement's terms, but -- per the agreement -- not for three years).

Some people might argue that, even if the agreement is not part of the supreme law of the land, it is nonetheless a law that the President must faithfully execute under the Constitution's take-care clause.  (I have argued that the take care clause extends to customary international law obligations; I'm less sure it extends to obligations in nontreaty agreements).  If that's right, then President Trump would have to argue that the Paris agreement is unconstitutional (because it should have been approved as a treaty).  This is a plausible argument that I've made in prior posts: if the agreement imposes material long-term obligations on the U.S., then the Constitution requires it to be approved as a treaty.

The Obama administration has argued that the agreement is constitutional (within the President's independent power) because all of its material obligations are nonbinding.  If so, President Trump need not repudiate the agreement; he can simply decline to comply with the nonbinding parts of it.  Nothing in U.S. constitutional law even arguably obligates him to comply with nonbinding commitments made by a prior President.

In sum, the Paris agreement should not be a material barrier to President Trump because it is not part of Article VI supreme law, and (in the alternative) because it either imposes no material obligations or is unconstitutional.

(3) The Trans-Pacific Partnership.  This agreement has been signed but not ratified.  Assuming no action is taken on it prior to the inauguration, President Trump is under no obligation to submit it to Congress and he can withdraw the U.S. signature if he chooses (all as part of the executive power over foreign affairs).

(4) NAFTA (and other trade deals).  This one hurts, because I think NAFTA has been enormously beneficial to the U.S. and to world trade.  But NAFTA provides that the U.S. (or any other party) may withdraw on six months' notice.  In my assessment, the President's foreign affairs power includes the power to withdraw the U.S. from the obligations of international agreements in accordance with their terms.  I think this power extends even to international obligations incorporated in a treaty, and so part of the supreme law of the land; NAFTA is not so incorporated, so the argument for the President is even stronger.  (For some objections and responses, see my prior post).

Related thoughts from Julian Ku here: How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement.


Josh Blackman: Gridlock (with Response by Josh Chafetz)
Michael Ramsey

In the current issue of the Harvard Law Review, Josh Blackman: Gridlock (130 Harv. L. Rev. 241 (2016)).  From the introduction:

As Congress becomes more polarized, it becomes less able to resolve major questions affecting social, economic, and political issues. With his legislative agenda frustrated, the President takes executive action on those questions Congress either ignored or rejected by adding expansive glosses to generic delegations of authority. The courts are then called upon to assess whether the line the executive drew was within his delegated authority. But these disputes can be resolved on the more neutral principle of whether the agency can take such novel actions in the first instance. If the answer is no, there is no need for judges to draw that difficult line. These “major questions” should be returned to the political process — which is where they should have been decided to begin with.

My goal in this Comment is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or whether the contraception mandate’s accommodation violates the Religious Freedom Restoration Act of 1993 (RFRA). In fairness, the Court didn’t either. (Texas and Zubik — combined, only ten slip pages — are likely the shortest corpus ever for a faculty comment in the Harvard Law Review’s annual Supreme Court issue.) Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell to demonstrate why congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes United States v. Texas to explain how congressional gridlock does not license the expansion of the executive’s authority. I conclude with a preview of how these cases are likely to be resolved on remand.

With this response in the Harvard Law Review Forum by Josh Chafetz: Gridlock? (130 Harv. L. Rev. F. 51 (2016)).  It begins:

Its title notwithstanding, Professor Josh Blackman’s Comment is not really about gridlock. It makes no attempt to ask what constitutes gridlock or how we might identify it, nor does it offer much by way of a theory of how we ought to respond to gridlock, if indeed we are experiencing it. Instead, Blackman takes the opportunity presented by two recent executive actions of which he disapproves to advance a certain theory of administrative law, one in which the “major questions doctrine” plays an increasingly outsized role. But the reasons Blackman gives in support of this new direction in administrative law do not stand up to scrutiny.


James Phillips on Trump's Appointments and State Supreme Court Justices
Michael Ramsey

At Public Discourse, James Phillips (Ph.D. candidate, UC Berkeley): Picking a Justice Who Can Resist the Lure of the Liberal Side: Recommendations to the Next Republican President.  From the core of the argument:

... The problem is empirical. The best predictor of how one will perform in a certain job is how one has previously performed in that very job. We are more confident that a surgeon will operate flawlessly when he has numerous flawless surgeries under his belt. We trust that a pilot will land the plane without a hitch because she has done so dozens of times before. This is obviously problematic for filling a position on the Supreme Court, since no other legal position, including judicial ones, are quite like being at the top of the pyramid.

That is because in the short term, there is nothing to check a Supreme Court justice other than a justice’s conscience and his or her theory of what the Constitution demands. ...

So what is a conservative president to do? In the past, most presidents have deemed federal court of appeals experience as a prerequisite to being elevated to the Supreme Court. ...

Unfortunately, experience as a federal court of appeals judge (or the state equivalent in Justice O’Connor’s case) is a poor indicator of what type of US Supreme Court justice one will be. And experience as an attorney (in Justice Kagan’s case) is an even poorer indicator. The reason is that appellate judges are hemmed in by Supreme Court precedent—a constraint not felt by those elevated to the Supreme Court. And attorneys are making arguments for their clients. So whether one had spent one year on a court of appeals or a dozen, the signal of how that person will be under none of these effective constraints is murky at best. The signal is downright opaque for someone who was a lawyer. ...

Fortunately, though, there is one legal position in the United States that, under certain conditions, analogizes rather well to being a US Supreme Court justice: state supreme court justices. When it comes to interpreting their state’s constitution and statutes, no one looks over the shoulder of state supreme court justices: they are equivalent to a US Supreme Court justice interpreting the federal Constitution and statutes. If a state supreme court justice acts like a Justice Thomas or Justice Scalia when interpreting her state constitution or statutes, she will almost certainly do so if put on the US Supreme Court. Thus, their true colors come out since they—under certain conditions—have practically no more constraint than their federal counterparts.

(Plus some cool graphs on how Justices trend liberal over time).


Saikrishna Prakash: A Fool for the Original Constitution
Michael Ramsey

In the current online issue of the Harvard Law Review Forum, Saikrishna Prakash (Virginia): A Fool for the Original Constitution (130 Harv. L. Rev. F. 24 (2016) (responding to Jamal Green, The Age of Scalia) (noted here).   Here is the introduction (footnotes omitted):

I confess that Justice Antonin Scalia was one of my heroes. He did not seem a demigod; he was no Washington, Lincoln, or Gandhi. Justice Scalia could be too pugnacious. He could vent against colleagues in ways that seemed counterproductive. But his wit, intellect, brio, and prose — well, these were marvels to behold.

For a spell, Professor Jamal Greene was of a similar mind. In a New York Times op-ed written shortly after Justice Scalia’s passing, Greene said that “Antonin Scalia was my hero,” that he had “looked up to [the Justice] for years,” and that the Justice wielded “enormous influence.” The praise reflected rather well on Greene. Unlike some, he perceived the virtues in an intellectual opponent. It took pluck for a liberal to confess, in public, his admiration for Justice Scalia. I suspect that some thought the op-ed was akin to a tribute to Orval Faubus.

Something happened over the spring or summer of 2016, from the pages of the New York Times to the pages of the Harvard Law Review. Greene’s overflowing praise has dried up. Filling the void is a denial of Justice Scalia’s influence and the claim that “[w]hether or not Justice Scalia was a bigot, his client — the law of chronic resistance to novelty — most certainly was.” Greene sheepishly implies he gave in to some temptation when he wrote for the Times. I do not know what intervention or epiphany triggered this seismic shift, but the reversal, executed over a few months, is extraordinary.

My remarks largely track Greene’s. I discuss Justice Scalia’s guiding lights, elements underscored in his many writings and speeches. I briefly comment on what I consider minor blemishes in his jurisprudence. I discuss his outsized influence and why it likely will endure. Finally I make a few observations about Greene’s claims that originalism is “regressive” and that Justice Scalia’s critics had reason to carp that the Justice’s jurisprudence and remarks were bigoted. To get down to brass tacks, Greene’s latest pronouncements are off target. In contrast, his observations in the Times were spot on. Sometimes we are right the first time.


Jamal Green: The Age of Scalia
Michael Ramsey

In the current issue of the Harvard Law Review, Jamal Greene (Columbia): The Age of Scalia (130 Harv. L. Rev. 144 (2016).  Here is the introduction (footnotes omitted):

How does an originalist and a textualist, dropped in the middle of a Kulturkampf, branded a sophist and a bigot by his detractors, grow up to have the nation’s first African American President call him “one of the towering legal figures of our time”? It is tempting to say that Justice Antonin Scalia’s jurisprudential clarity and crisp writing calcified his high place in the history of American law, that he managed to make an existentially regressive theory of constitutional interpretation — originalism — broadly appealing. Then-Senator Joseph Biden once suggested that his vote to confirm Justice Scalia to the Supreme Court was the one he most regretted of all his time in the Senate, for the simple reason that “he was so effective.” It is far from obvious, though, that Justice Scalia’s interventions in constitutional law will endure past his death. Indeed, it is not clear they succeeded even in Justice Scalia’s own time. For all the talk of his titanic influence, did Justice Scalia throw away his shot?

Here, in a nutshell, is the puzzle. The day Justice Scalia died, Dean William Treanor of the Georgetown University Law Center issued a statement in which he called Justice Scalia “a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law.” A Georgetown law professor, Gary Peller, responded with indignation, writing an open letter to the Georgetown Law community that read, in part:

I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed . . . at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic. . . . [E]ven a Supreme Court Justice can be a bigot, and there is no reason to be intimidated by the purported “brilliance” that others describe . . . .

Objecting, two of Peller’s colleagues, Professors Randy Barnett and Nicholas Quinn Rosenkranz, responded to the open letter with one of their own. Among other things, they offered an analogy:

What would be the reaction if either of us had sent a similarly-worded email to the entire student body . . . upon the death of Justice Thurgood Marshall — saying that he was a bigot, and his “intellectual positions were not brilliant but simplistic”? Is there any doubt that the Georgetown reaction would justly be swift, dramatic, and severe?

Two aspects of this exchange concern us here. First, Dean Treanor repeated the frequent claim that Justice Scalia “profoundly transformed the law.” Second, Peller in effect called Justice Scalia a bigot, and the response to his letter viewed it as parallel to saying the same about Justice Marshall.

This Comment takes each of these claims seriously and shows how they relate to one another. The positive claim that Justice Scalia dramatically changed American law must be defended. Within the limited but significant domain of constitutional law, the Comment concludes that the claim is overstated. As Part I discusses, Justice Scalia joined the Court seeking to make it both more originalist and more devoted to articulating general rules rather than reliant on balancing tests. This dual set of commitments works together to rhetorically support a program of legal stasis. Justice Scalia spoke for the value of predictability in constitutional law, an end that he argued could be furthered by adhering to the original commitments of the founding generation and by articulating constitutional doctrine in terms of general rules rather than open-ended standards or balancing tests that required judges to make qualitative judgments about the law’s requirements.