Richard Primus: Is Theocracy Our Politics?
Michael Ramsey

In the current issue of the Columbia Law Review sidebar, Richard Primus (Michigan): Is Theocracy Our Politics? (116 Colum. L. Rev. Sidebar 44 (2016)) (responding to William Baude’s article, Is Originalism Our Law? (115 Colum. L. Rev. 2349 (2015)). Here is the introduction:

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists.

But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the account of judicial behavior that Baude takes to show that originalism is our law may say less about the norms of judicial decision-making than it says about the norms of judicial discourse. Baude’s essay highlights something significant about the way judges talk, but it is not clear that this way of talking constrains, or ought to constrain, the substance of what judges decide.

Consider, by (partial) analogy to the way that judges talk about the Founders, the way that politicians talk about God. Invoking God is a matter of traditional and broadly accepted practice among senior American political figures. Many politicians probably feel that their role requires them to participate in that practice. But it is not clear that these invoca­tions of God by political leaders reveal a widely held theory of political authority. The fact that senior officeholders speak about God has little bearing on the substance of policymaking, and fortunately so, because there are excellent reasons why the government should not set policy on the basis of theological ideas. To be sure, one learns something about American politics by noticing how politicians speak about God, just as one learns something about American constitutionalism by noticing how judges speak about the Founders. But it might exaggerate matters to describe our politics as theocratic, and it might exaggerate matters to describe our law as originalist.

In Part I of this Essay, I describe Baude’s vision of “inclusive originalism.” In Part II, I ask how well inclusive originalism describes prevailing judicial practice. In Part III, I develop the comparison between the practice of respectful engagement with original meanings in the judicial sphere and the practice of respectful invocations of God by elected officials. The two practices are not entirely the same, of course. But it is worth noting their similarities.

And more from Part I:

Relative to some other arguments for originalism, Baude’s has con­siderable virtues. It does not rely on hard-to-defend claims about the in­herent nature of law, or of constitutions, or of interpretation. It avoids the dead-hand problem because it grounds the authority of original mean­ings not in actions that occurred long ago but in the practices of the living.  Moreover, and by the same token, Baude’s argument for original­ism does not rely on the claim that the practices of American constitu­tional decisionmakers have always been originalist. It requires only that originalism be the way that we do things now. This is a mature way to argue that some set of practices is our law: Look and see what our legal officials actually do.

To succeed, though, Baude needs to be able to survey what our legal officials actually do and describe what he sees as originalism. A different observer might find that task daunting. After all, if you look to see what judges do most of the time in constitutional cases, you will find them applying doctrine. Only rarely does a case turn on the text of the Constitution or an account of original meanings.

To his credit, Baude does not pretend otherwise. He does not claim, that is, that judges actually spend more time plumbing original meanings than observers have previously realized. Instead, he offers a version of originalism in which the fact that judges rarely traffic in arguments about original meanings is compatible with the claim that originalism is our law. He calls this model “inclusive originalism.” Under inclusive original­ism, modes of decisionmaking that the Founders would have recognized as legitimate are legitimate. Living as they did in a common-law world, Baude says, the Founders surely accepted the application of judicial prec­edent as a valid mode of legal decisionmakingSo that form of decision­making is in—not on its own bottom but because the Founders accepted it. The same goes for interpretation that tracks the evolving meaning of constitutional language, for the same reason, and for any other modality of argument that the Founders would have considered legitimate.  

This is a capacious conception of originalism. Consider, by analogy, what it would mean to describe as “textualist” a theory of constitutional decisionmaking on which judges confronting individual-rights questions should reason about what rights people have without reference to the words of particular constitutional provisions. Given the Ninth Amendment, one can perfectly well argue that the text of the Constitution directs con­stitutional decisionmakers to reason about rights in nontextual ways.  So it could make sense to describe nontextual reasoning as justified on the basis of the text, just as it could make sense to describe a largely common-law process of constitutional interpretation as justified on the basis of a Founding understanding. But someone who described judges making moral arguments about unenumerated rights as practicing “textualism” would not be using the term in a way that captures what textualism usu­ally means in American constitutional discourse

The point here is not that Baude is wrong to call his approach a ver­sion of originalism. Nobody owns the term, and Baude tells his readers clearly what he does and does not mean, and his idea shares something important with the broader family of originalist theories: It maintains that facts from the time of the Constitution’s enactment supply legitimacy criteria for constitutional interpretation todayTo be sure, Baude’s ver­sion of that legitimacy claim is importantly different from the legitimacy claims on offer in some versions of originalism. For Baude, originalism is authoritative only because we accept it as a matter of prac­tice. But my use of the word “only” is meant to contrast Baude’s theory with some other forms of originalism, not to suggest that a legal culture’s acceptance in practice of a theory of interpretation is not a good reason to deem that theory authoritative within that legal culture. If Baude can show that the American legal system operates on the basis of something he describes as “inclusive originalism,” he will not have demonstrated that stronger forms of originalism are “our law,” but he will have made a good case for the thing that he claims to be demonstrating.

Quite an interesting essay.  (Draft noted in an earlier post here).  For another provocative take on Professor Baude's article, see here by Eric Segall.


William Baude & Stephen Sachs: The Law of Interpretation
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen E. Sachs (Duke University School of Law) have posted The Law of Interpretation (Harvard Law Review, forthcoming) on SSRN.  Here is the abstract:     

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call "the law of interpretation" has a claim to guide the actions of judges, officials, and private interpreters -- even if it isn't ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.

This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional "interpretation" and "construction," explaining how construction can go beyond the text but not beyond the law.

A very interesting paper, presented at the San Diego Originalism Works-in-Progress Conference last February.


Jordan Paust: Actual Commitment to Compliance with International Law
Michael Ramsey

Jordan J. Paust (University of Houston Law Center) has posted Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore (40 Houston Journal of International Law (forthcoming 2016)) on SSRN.  Here is the abstract:      

This reply demonstrates that claims that the Continental Congress violated a rule of customary international law and three treaties are unproven, that overwhelming views of the Founders and Framers and early judiciary were clear that Congress and the President are bound by customary and treaty-based international law, and that there was no approval by the Founders or Framers of an alleged authority of any part of the national government to violate customary or treaty-based international law. Indeed, no one declared or embraced an alleged national discretion to violate international law. Today, at least forty-three opinions of Supreme Court Justices have affirmed (1) that Congress is bound by customary international law, and (2) that the President is bound by customary and treaty-based international law. Fifteen other Supreme Court Justice opinions are supplementary, and eighteen opinions of Supreme Court Justices affirm various exceptions to the last-in-time rule that guarantee the primacy of certain types of treaty-based rights and duties in the face of conflicting newer congressional legislation.

This is a reply to this paper by David Moore (BYU):  Constitutional Discretion to Violate International Law (noted here, and previously presented at the San Diego Originalism Works-in-Progress conference).  The debate over the views of the Continental Congress is interesting.  My view is that the reply's claims about the Supreme Court are overblown.  See International Law in the Supreme Court: Continuity and Change.


Samuel Bray: Hendiadys in the Constitution
Michael Ramsey

Now published, in the current issue of the Virginia Law Review: Samuel Bray (UCLA), “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution (102 Va. L. Rev. 687 (2016)). Here is the introduction (footnotes omitted):

For more than two centuries, no clause of the U.S. Constitution has been more central to debates over federal power than the Necessary and Proper Clause. For an interpreter today, it is inevitable to wonder if everything worth saying has already been said. Yet the Clause remains at the heart of major debates in this country, including the recent landmark case of National Federation of Independent Business v. Sebelius. In that case the Court eventually got around to upholding the Affordable Care Act under the taxing power, but only after holding that the individual mandate could not be justified under the Necessary and Proper Clause. The individual mandate, the Chief Justice wrote, might be ""necessary' to the Act's insurance reforms," but it was "not a "proper' means for making those reforms effective." Necessary, but not proper. Whether the conclusion was right or not, it was exactly the kind of close reading that one would expect a court to give to the Clause, since it authorizes only congressional actions that are "necessary and proper." Or does it?

This Article attempts to shed new light on the original meaning of the Necessary and Proper Clause, and also on another Clause of the U.S. Constitution, the Cruel and Unusual Punishments Clause. The phrases "necessary and proper" and "cruel and unusual" can be read as instances of an old but now largely forgotten figure of speech. That figure is hendiadys, in which two terms separated by a conjunction work together as a single complex expression. The two terms in a hendiadys are not synonymous, and when put together their meanings are melded. (Hendiadys is pronounced hen-DIE-u-dus.)

(Draft previously noted on this blog here.)


About that Washington Post Editorial
Michael Ramsey

Ed Whelan at NRO sharply criticizes this Washington Post editorial on Supreme Court nominations: The danger of Trump, Sanders and Clinton’s Supreme Court lists and litmus tests.  (The "danger" is that they are further "politicizing the judiciary").  He highlights especially this odd passage: 

The judiciary is different from the other two, more political, branches of government, and politicians, in their search for short-term victories, should not be so eager to erode that difference. Judges are not immune to ambition or political ideology, but Americans have long expected and should still expect that judges be guided by other values: careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, a healthy amount of modesty and allegiance to the notion that their rulings must bear a rational relationship to the laws they interpret and the precedents they have set. A world in which judges must at the very least address these expectations is far better than a world in which they are assumed to be wholly political actors who need offer no justification beyond, “I promised to rule this way.”

My thoughts: this is the worst sort of oversimplification and denial.

(1) I wonder if the editorial writers have seen this post by Mark Tushnet, or even this post by Erwin Chemerinsky.  Do they know that leading liberal law professors think of the Court (on big constitutional issues) in purely political terms where their side, they hope, is about to "win"?

(2) I'm sure that every person on Trump's list, and every person Clinton or Sanders would nominate, and every Supreme Court Justice in modern memory, and virtually every member of the federal judiciary, is "guided by ... careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, [and] a healthy amount of modesty..."  But these admirable values do not decide hard, politically salient cases.  The disputes that matter to society as a whole turn on (a) judicial philosophy regarding the role of courts and the nature of interpretation, and (b) depending on the conclusion in (a), social morality.  And so all the hard questions on nomination and confirmation turn on the latter points, not on the take-for-granted values the Post identifies.  Anyone who thinks otherwise does not understand how the Court works.

(3)  Similarly, no judge in the country is or would ever be a "wholly political actor[ ] who need[s to] offer no justification beyond, 'I promised to rule this way.'"  This is as simplistic a false-dichotomy as one can imagine.  Of course judges/Justices will offer justifications, and those justifications will (in hard cases) sound in the considerations noted in points (a) and (b) above -- judicial philosophy and social morality.  What Trump and Clinton and Sanders are getting at in their lists and tests is: what are the right judicial philosophies and social moralities for Justices?  Or put another way, what kind of a judge -- philosophically --  is this potenial nominee?  The idea that judges are either not political, or else would vote a particular way because they promised to do so, trivializes the choice.  It isn't that the nominee promises a particular outcome; it's that the nominee embodies a particular approach to judging that one finds either appropriate or inappropriate.   And the evaluation of that approach is never on the wholesome-yet-empty criteria the Post proposes (because all plausible nominees meet those), but on how the nominee views the role of the judge and the shape of the best society.  So in selecting nominees, why would we not want to think about their views on these subjects?  And in selecting among presidential candidates, why would we not want to know what their views are?

(4)  Ed Whelan is rightly aghast at the Post's proposition that judges' rulings "must bear a rational relationship to the laws they interpret and the precedents they have set."  Again, surely all plausible nominees meet this extraordinarily low bar.  (Do the editorial writers understand that a "rational relationship" is a term of art for  the lowest possible standard in constitutional adjudication?)  Surely a judge's rulings should have much more than just a "rational relationship" to the law they are supposedly applying.  But assuming the Post's equivocal language is meant to acknowledge the substantial discretion judges have in reaching their conclusions in hard cases:  what does the Post think judges are going to use to decide among the various options, all having such a "rational relationship"?  The right answer is, as above, the judges' views on the judicial role and/or on  social morality.  

(5) The short answer to the charge of politicizing the judiciary is: if you make the judiciary a decider of political morality, it will be politicized.  Justice Scalia made this point in 1998 in A Matter of Interpretation.  The Post editorial writers should ask themselves: (a) how many times have they applauded or criticized a judicial result based on whether the social morality it reflected accorded with their own, and (2) how many times have they applauded a judicial result because it reflected a proper understanding of the judicial role in a constitutional democracy even though  the outcome conflicted with their own social morality?  If, as I suppose, the answers are "many times" and "never," we can see who really is to blame for the politicization of the judiciary.  Trump, Clinton and Sanders are just responding to a reality created by others.  As Whelan puts it, "The primary cause of 'politicizing the judiciary' is the widespread belief that judges have free rein to read the Constitution and federal statutes to impose whatever result they want." 

(6) If one really wants a de-politicized judiciary, the key is to reduce the judiciary's political role.  There are at least two paths for doing so.  One is a strong version of judiciary restraint.  If judges did not rule against the elected branches except where judges of all jurisprudential approaches would agree, the role of courts in governing modern society would be greatly reduced and it would not matter so much who was nominated.  (The downside is that we would lose an independent check on the elected branches).  The second path is a strong commitment to originalism/textualism, so that judges are not pursuing their own versions of social morality but are trying to discern the choices made by earlier lawmakers.  If we have true courts of law, not courts of policy, again the nominees will not matter so much.  (This path is a lot harder than pure judicial restraint, but it maintains a check on the elected branches).

It's not clear to me if either of these approaches is possible.  But if the Post is serious about a de-politicized judiciary, it could start advocating for one or the other of these approaches. To pursue the ridiculous notion that we can take politics out of the judiciary just by picking judges that are "guided by ... careful thinking, reverence for the facts of specific case," etc., is either extraordinarily naive or shockingly dishonest.  For this reason I much prefer Tushnet and Chemerinsky (and Trump, Clinton and Sanders): they understand what is at stake and are willing to say it.

(To be clear, I do not think potential nominees should promise particular results in specific cases.  Obviously Trump's list doesn't raise this concern; arguably some of Clinton's and Sander's statements might.  But think Clinton and Sanders are best understood as saying they would nominate someone who is has the type of judicial philosophy that would likely lead to a particular result, not that they would extract such a promise expressly.)

SOMEWHAT RELATED:  At Liberty Law Blog, John McGinnis: Trump, Clinton, and the Supreme Court.


Michael Novotny: The Framers Intended the Sixth Amendment to Cover Speedy Sentencing
Michael Ramsey

Michael Novotny (Independent) has posted Don't Hurry Me Up to Make Me Wait! The Framers Intended the Sixth Amendment to Cover Speedy Sentencing on SSRN. Here is the abstract:  

This paper takes an originalist perspective, in honor of the late Justice Scalia, to argue that the Framers intended the Sixth Amendment — not the Due Process clause — to apply to speedy sentencing. Speedy sentencing is embodied in over 300 years of American-criminal law principles. During the framing of the Constitution, the Framers drafted the Speedy Trial clause with several core values in mind: “unreasonable delay . . . threatens to produce . . . ‘oppressive . . . incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused’s] defense [or appeal] will be impaired by’ dimming memories and loss of exculpatory evidence.” When putting these values to practice, the text of the Speedy Trial clause must be read with the “meaning ascribed at the time of [its] ratification.” As a result, this paper first provides a factual scenario — as presented in Betterman v. Montana — to analyze the legal issues presented by the Speedy Trial clause. Next, the text of the Speedy Trial clause is dissected. Finally, this paper examines the text in the context of the Sixth Amendment’s history and tradition.


Sometimes “People” = “Legislature”
Seth Barrett Tillman

This is a response to Professors Saikrishna Bangalore Prakash & John Yoo, People ≠ Legislature, 39 Harvard Journal of Law & Public Policy 341 (2016) (noted on this blog  here).

Professors Prakash and Yoo’s position is that “[a]s used in the Constitution, ‘Legislature’ refers to a multimember lawmaking body that is distinct from the people.” Prakash & Yoo, supra at 355. I have to admit, that my own intuition is consistent with their view. But I am not sure that my intuition counts for much. The Framers and ratifiers spoke to this issue, albeit unevenly, but what many wrote does not easily square with Prakash & Yoo’s position.

For example, the (unamended) Constitution of 1788 committed the selection of Senators to the state legislatures, and it left the selection of presidential electors to the discretion of the state legislatures. Compare U.S. Const. art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof ....” (emphasis added)), with id. at art. II, § 2, cl. 1 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ....” (emphasis added)).

Yet, notwithstanding the centrality of the state legislatures to both constitutional processes—selection of senators and selection of presidential electors—John Jay, in Federalist No. 64, wrote: “the president [is] to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures.” The Federalist No. 64 (emphasis added). Jay’s statement is more than somewhat perplexing: under a plain reading of the constitution’s text—at least through our modern eyes—the “people” play no direct role in choosing presidential electors. It is almost as if Chief Justice Jay were saying ... “People” = “Legislature.”

Furthermore, Jay was not alone in making this apparent “mistake.” In Federalist No. 68, Alexander Hamilton stated that “the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government ....” The Federalist No. 68 (emphasis added); see also Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601, 614 n.45 (2003). Nor was this a lone misstatement by (future Secretary of the Treasury) Hamilton, who repeated this apparent error elsewhere in Federalist No. 68, and also in Nos. 60, 69, and 77. See id. at 614 nn.46–49.

The Federalist’s third author, James Madison, agreed with his two co-authors. At the Virginia ratifying convention, (future President) Madison stated: “[The President] will be the choice of the people at large.” 3 Elliot’s Debates 487 (2d ed. 1836) (emphasis added). Additionally, at the Virginia ratifying convention, Governor Edmund Randolph stated: “The electors must [!] be elected by the people at large.” Id. at 486 (emphasis added).

Now I expect that Prakash and Yoo would argue that the Chief Justice, Secretary, President, and Governor—all were mistaken. But what if they were not mistaken? What if their statements reflected the original public meaning of “legislature” as used in the Electoral College Clause (Art. II, § 2, cl. 1)?

Prakash and Yoo also state: “Consider an absolute monarch with power to make laws. An executive sovereign would not be a ‘Legislature’ in its eighteenth-century sense.” Prakash & Yoo, supra at 355. Here, they are not talking about how “legislature” is used in any specific clause in the Constitution of 1788, but how it was used in every day language of the time. It strikes me that their claim is objectively falsifiable. In the famous exchange between Lord Granville, President of the Privy Council, and Benjamin Franklin, in 1775, just before the start of the Revolution and War of Independence, Granville stated: “You contend that the king’s instructions to his [colonial] governors are not laws .... They are ... so far as they relate to you, the law of the land, for the king is the legislature of the colonies.” 9 Encyclopedia Britannica 713 (1879) (emphasis added and original emphasis removed). I do not suggest that Granville’s legal position was correct, but I think he knew how to use the word “legislature,” which here refers to the King, and not to a multimember elected or appointed body. If you want a more immediate American source: Congressman William Findley, who had been an anti-federalist member of the Pennsylvania ratification convention, stated on the floor of the U.S. House of Representatives: “[Montesquieu] ... demonstrates the absurdity of the legislature sitting in judgment on offenders against their own laws, even in an absolute monarchy where the king is the legislature ....” 6 (part 2) American Register 85, 90 (1809) (emphasis added) (available on Hein Online). See e.g. Nathanael Vincent, Antidote 114 (1779) (using “universal legislature” to refer to the Christian deity).

Finally, any number of clauses in the Constitution of 1788 use the term “legislature.” In regard to some of these clauses, e.g., Article V, practice since 1789 has been that the state legislative houses act alone, without participation of state governors, even where governors are part of the normal law-making process. In respect to other clauses, e.g., the Elections Clause (Art. I, § 4), practice has been that the entire law-making apparatus of the State is to be used, including both the state legislative houses and state governors. Prakash and Yoo discuss this dichotomy. See Prakash & Yoo, supra at 350ff. But they do not tell us which line of practice and judicial authority drawing on that practice is incorrect. Does the Constitution’s use of “legislature” refer to just the state legislative chambers or does it also permit the use of the entire regular law-making apparatus, including governors? If the Constitution permits states to use either route, or if some clauses require one process and forbid the other, then perhaps Prakash and Yoo’s reliance on intratextualism—across clauses and articles—is misplaced because the Constitution of 1788’s usage in regard to “legislature” varies (or may permissibly vary) across provisions.

I do not suggest that Prakash and Yoo’s position is frivolous. They have some decent arguments. But they do not deal with obvious counter-authority (e.g., The Federalist and ratification debates), and they make empirical claims—claims central to their argument—that are (in my opinion) plainly wrong (e.g., the 18th century meaning of “legislature”).

Arizona State Legislature v. Arizona Independent Redistricting Commission is not a thing of beauty and joy forever. In terms of judicial craftsmanship, it is probably one of the Court’s weaker decisions. Some of its arguments, as Prakash and Yoo point out, can be criticized: they are methodologically unsound, and they are based on contestable policy assumptions. But that does not mean that the Court’s decision was wrong. The U.S. Constitution should not be used to strike down state law based on little more than closely held personal intuitions about 18th century English usage. Nor should state law be invalidated for reasons that leave us thinking we are correct on a mere balance of the probabilities, i.e., 50% + epsilon. If unconstitutionality beyond a reasonable doubt is too high bar, we still need something approaching Thayer-type certainty. In my view, Prakash and Yoo have not met that bar.

Heritage Foundation Event on Justice Scalia's Legacy
Michael Ramsey

Via Josh Blackman, here is video of the Heritage Foundation' s event  The Legacy of Justice Scalia: Remembering a Conservative Legal Titan’s Impact on the Law.  Professor Blackman comments:

On Thursday, May 19, the Heritage Foundation hosted an event on Justice Scalia’s legacy. Noel Francisco gave a touching keynote. My discussion on Justice Scalia’s dissents, and the separation of powers, begins at 28:20. After I speak, Stephanos Bibas spoke about Scalia’s criminal procedure cases, and Rick Garnett discussed the freedom of religion. It was a heartfelt and thoughtful tribute to Nino.


Greg Weiner on Judicial Restraint (with Some Thoughts in Response) [UPDATED]
Michael Ramsey

At Liberty Law Blog, Greg Weiner: Arise, Ye Prisoners of Scalia.  He begins:

The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.

Harvard Law Professor Mark Tushnet, noting that a majority of appellate judges are now Democratic appointees, observes as much at the Balkinization legal site. He urges liberals to rise up out of the “defensive crouch” in which they have been stooped for “generations” of conservative domination of the courts. The method by which he tabulates these “generations” is obscure, but the question his call raises is clear: On what grounds, precisely, is he wrong?

Professor Weiner then criticizes conservative/libertarian scholars who have abandoned judicial restraint for "judicial engagement":

Conservative and libertarian advocates of judicial engagement, by contrast, could argue with Tushnet about the law—no small thing, of course—but, having urged full exploitation of the courts, not about the question of institutional legitimacy.

Yet it is strange to exempt the courts from the question of legitimacy that those generally suspicious of power—libertarians prominent among them—would naturally ask of other branches of government. For every other branch, we set, or claim to, norms of institutional legitimacy (marking out what they may or may not do regardless of whether they have the capacity or prudential justification for doing them) and we look to the levers of institutional power that can maintain those norms.

And in conclusion:

It is true, of course, that advocates of judicial engagement can answer the Left flank with legal reasoning, and that their legal reasoning is sharp, incisive, and certainly superior to what the disciples of Brennan and Marshall propose. But as Tushnet shows, this is the very definition of a parchment barrier: the equivalent of giving the presidency and Congress, for example, no checks on one another save persuasion. Madison considered such an approach to the separation of powers, one in which each branch would be merely cajoled to swim in its own lane. He rejected it. So do the libertarians, at least with respect to the presidency and Congress. It is precisely because they reject such charitable readings of authority for the political branches that they advocate judicial engagement to constrain them. The problem is their resistance to comparable constraints on the judiciary.

By contrast, a Madisonian riposte to Tushnet’s activism would be for the other branches, backed by a restored republican morality among the people, to stop according the Supreme Court both mystical powers and the sacred deference that attends them. There is ample evidence that that body’s ambition reaches as far as the frontier of its options. Those frontiers, having been opened by unblinking deference, need to be rolled back. Impeachment is probably too bold a hope; a more aggressive use of jurisdiction-stripping and other measures is not.

But political restraints on the judiciary are less available in the hour of need because they were spurned in the hour of opportunity. The irony is that, by intending to narrow the strike zone for the political branches, which can be restrained by accessible political mechanisms, constitutional libertarians have widened it for the one branch on which they would place no controls. It is difficult to see how a Left-leaning judiciary, perhaps soon to be crowned by a Supreme Court with a fifth liberal, can be confined except by methods that many advocates of judicial engagement have placed out of ideological bounds.

Though I have great respect for Professor Weiner, I have some serious doubts about this post (and not just because it's not clear what Scalia has to do with it).  I think it is not correct to say that judicial engagement scholars and advocates resist constraints on the judiciary.  Although its obviously a diverse group, I would say (a) judicial engagement does not equate to no political checks on the Court or (even more so!) attributing to it "mystical powers and the sacred deference" (I'm quite sure this does not describe Randy Barnett, for example), and (b) many judicial engagement scholars (including Professor Barnett) endorse originalism as a constraint on courts.

Professor Weiner seems to say that the only line one can draw and defend is judicial restraint.  I do not understand why originalism is not as plausible a candidate.  Why can't we say: the problem with Tushnet's position is that it sees courts as enforcers of political morality, not as enforcers of the Constitution's original meaning?

Weiner would presumably respond that judges can't be trusted to be originalists.  I agree.  But they also can't be trusted to adhere to judicial restraint.  Judicial restraint is a very hard sell to judges, because it leaves them with nothing constitutionally interesting to do.  (Doubly so for constitutional lawyers).  Originalism might be more attractive because it calls for an active (albeit constrained) judicial role.  At least, it seems as plausible an avenue for introducing some internal constraint on courts as calls for strong judicial deference to the political branches.

 I don't mean to endorse some of the more aggressive conservative/libertarian versions of judicial engagement, which do indeed seem to approach judicial enforcement of political morality.  But it is not a binary choice between extreme engagement and extreme restraint.  Scalia's restrained engagement based on originalism is a defensible intermediate position.  One can adhere to it without opening the door to Professor Tushnet.

(Note: Professor Weiner's post has an interesting and sophisticated string of comments, including one from Evan Bernick -- a likely target of the post -- who promises a response).

UPDATE:  Here is Evan Bernick's response: Does Judicial Engagement Empower Progressives? Answering Professor Weiner’s Challenge 


The Federalist Society's Executive Branch Review Conference
Michael Ramsey

This outstanding annual event was held last week in Washington DC.  Videos are available here.  The panels include:

Congressional Regulatory Reform Proposals

Who Wins at Administrative Hopscotch?

Regulatory Theory: Preemptive Rule-making vs. Common Law Redress

Regulatory Barriers to Innovation

Are Patents Under Attack in the Supreme Court?

Disparate Impact: Reducing Innovation in the Workplace?

Plus addresses by Senators Deb Fischer (R-Neb) and Dan Sullivan (R-Ak).

(But, I can't help adding, as a thought for the organizers: maybe a little attention to foreign affairs/national security activities as well next year?  The past 12 months were fairly big on executive foreign affairs activities of at least debatable constitutionality: the Iran deal, the Paris climate change agreement, the Trans Pacific Partnership, military action in lots of places without express congressional approval, releases from Guantanamo, overcoming encryption, a range of surveillance activities, etc.).


Daniel Smyth: The Original Public Meaning of Amendment in the Origination Clause versus the Patient Protection and Affordable Care Act
Michael Ramsey

Daniel J. Smyth (LibertyBlog.org) has posted The Original Public Meaning of Amendment in the Origination Clause versus the Patient Protection and Affordable Care Act (British Journal of American Legal Studies, Vol. 6(2), forthcoming) pm SSRN. Here is the abstract:      

Robert Natelson recently published his article, The Founders’ Origination Clause and Implications for the Affordable Care Act, in the Harvard Journal of Law & Public Policy [Ed.: see here].  This article argued the original understanding of the scope of the Senate’s power to amend the House of Representative’s bills for raising revenue in the Origination Clause permits complete substitutes that are new bills for raising revenue, such as the Patient Protection and Affordable Care Act (PPACA). The original understanding of a constitutional word or provision is what the ratifiers of the Constitution thought was the meaning of the word or provision. When the Senate originated PPACA as an amendment to the House’s Service Members Home Ownership Tax Act of 2009, the Senate replaced the entire House bill, except for the bill’s number, with PPACA.

I consider the original public meaning — not the original understanding — of a constitutional word or provision, unless unrecoverable, to be the controlling meaning of that word or provision. The original public meaning is the meaning that a “reasonable speaker of English” during the founding era would have ascribed to the word or provision. 

My article argues the original public meaning of amendment is clear and disallows complete substitutes. For instance, founding-era dictionaries indicate an amendment was a change or alteration to something that transformed the thing from bad to better. This definition suggests an amendment must not be a complete substitute because an amendment must preserve at least a part of the thing being amended so that there is something to transform from bad to better.

My article further argues the preponderance of evidence suggests the original understanding of the scope of an amendment actually disallows complete substitutes. For example, much evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and state conventions suggests the dominant view among the founders was that an amendment to the Articles of Confederation, the legal compact between 13 states enacted in 1781, could not be a complete substitute. 

My conclusion argues PPACA or any other such complete substitute violates the original public meaning of the scope of an amendment.

I read an earlier version of this paper and found it very persuasive (although I'm reluctant to disagree with Rob Natelson on anything).


Lee Strang: State Court Judges are Not Bound by Nonoriginalist Supreme Court Interpretations
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted State Court Judges Are Not Bound by Nonoriginalist Supreme Court Interpretations (FIU Law Review, Vol 11, p.327, 2016) on SSRN. Here is the abstract:

In this brief Essay, I provide a tentative argument for modest state court interpretative independence. I argue that state courts possess interpretative independence from nonoriginalist U.S. Supreme Court interpretations. I also argue that state courts must follow all U.S. Supreme Court judgments (within the Court's jurisdiction) and originalist Supreme Court opinions. I close by suggesting that this modest state court interpretative independence is likely to advance federalism’s three primary values.

An interesting paper -- I saw Professor Strang present it at the FIU conference.  Here is the video.  I am not sure, on his premises, why state court judges should be bound by incorrect originalist Supreme Court interpretations either (though I see the problem with taking it that far).


Trump's Justices [Updated with a Comment on the Senate's Duty]
Michael Ramsey

As has been widely reported, Donald Trump released a list of prospective Supreme Court nominees.  Here's the list (with links, via Powerline):

Steven Colloton (8th Cir.)
Allison Eid (Colorado Sup. Court)
Raymond Gruender (8th Cir.)
Thomas Hardiman (3d. Cir.)
Raymond Kethledge (6th Cir.)
Joan Larsen (Mich. Sup. Court)
Thomas Rex Lee (Utah Sup. Court and brother of Sen. Mike Lee)
William Pryor (11th Cir.)
David Stras (Minnesota Sup. Court)
Diane Sykes (7th Cir.)
Don Willett (Texas Supreme Court)

Positive reactions come from Eugene Volokh, Ilya Shapiro ["Donald Trump's Terrific List of Fabulous Judges"], and Paul Mirengoff and John Hinderaker [Powerline] -- a good cross-section of conservative/libertarian thinking.

I'm only familiar with the judicial philosophy of Diane Sykes, William Pryor and (to a lesser extent) Tom Lee, but all three have  strong originalist/textualist orientations.  As Eugene Volokh points out, three (Eid, Lee and Stras) are former Clarence Thomas clerks, and Joan Larsen is a former Scalia clerk.

Notably, these are mostly not names that would come to mind for a non-lawyer not much interested in courts, and yet all seem plausible picks likely to be broadly acceptable in conservative/libertarian circles.  I conclude that Trump has some very thoughtful legal conservatives advising him on this.  (Of course, whether in the end he would listen to them is another question).

UPDATE:  Judiciary Chair Grassley likes the list.

So, for those who think the Senate has a constitutional duty to offer advice on presidential nominations, why isn't this advice (offered through a duly designated officer)?  The Senate's message to the President is, pick someone from this list (or someone similar).  Of course, the President won't, and needn't -- but surely there's no obligation to offer welcome advice.

And for those who think the Senate has a constitutional duty to "consider" the nomination of Judge Garland, why isn't this "considering" it?  The Senate [through a duly designated officer] has concluded, after considering the matter, that Judge Garland is not similar in judicial philosophy to the people on the Trump list.

FURTHER UPDATE:  Josh Blackman is "cautiously optimistic" about the list, at NRO.


Michael McConnell on the Ninth Amendment
Mike Rappaport

One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don't understand the provision, we are in no better position to enforce it than if an ink blot covered it.

Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights.  Others have interpreted it to have a much less significant role.

In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don't think I would have done as good a job as McConnell does.

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” McConnell argues that this provision operates to protect certain natural rights, but not by conferring constitutional status on those rights. Instead, it  protects those rights as natural rights were protected prior to the Constitution’s enactment. Such rights were protected through equitable interpretation. That is, if a congressional statute were to appear to infringe on such a natural right, it should not be interpreted to have that effect unless the statute’s language was clear on the matter. Otherwise, it should be assumed that Congress did not intend to infringe on a natural right. This is both a natural interpretive rule and the way that natural rights were protected prior to the Constitution.

Why was the Ninth Amendment needed? The thought was that by enumerating certain rights in the Bill of Rights, that might be taken to indicate that all other rights that the people enjoyed prior to entering civil society would be eliminated. When a list of rights, especially a long list was compiled, it is a reasonable inference to assume that only those rights should be protected. After all, if other rights were intended to be protected, why were they not added to the list? So the Ninth Amendment was added to prevent anyone from inferring from the addition of the Bill that other retained natural rights were eliminated or given up.

What is the evidence for this interpretation? First, it flows from the text of the Amendment.  That the Amendment is referring to natural rights is supported by the reference to “rights retained by the people.” Under Lockean natural rights theory, retained rights were those natural rights that the people had not given up when they formed the political society by establishing the Constitution.

This interpretation also provides a strong reading of the terms “deny or disparage.” Under the interpretation, these natural rights would not be denied nor disparaged. That is, those natural rights would continue to exist in the same way that they had existed prior to the Constitution. Significantly, the alternative interpretation of the Amendment—which would enforce the natural rights as constitutional rights—has problems here. Not denying or disparaging a natural right is not the same thing as constitutionalizing such a right. Giving that right its traditional protection would not disparage it.  Constitutionalizing it elevates it.

I would add two other complementary functions of the Ninth Amendment which are implicit in McConnell’s argument. First, natural rights were also often protected as a matter of common law. If the Bill of Rights was taken to eliminate the natural rights, then they might be thought to be repealed as common law rights. The Ninth Amendment eliminates this inference. Second, the violation of natural rights was also thought to justify revolution under a Lockean theory. Thus, it was important that those rights not be taken to be repealed. In both of these cases—common law and justifying revolution—the Ninth Amendment protects the pre-constitutional role of natural rights, without constitutionalizing those natural rights.

Jason Mazzone: Me the People
Michael Ramsey

Jason Mazzone (University of Illinois College of Law) has posted Me the People on SSRN.  Here is the abstract:    

This essay is a contribution to a symposium on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016) [Ed.:  see here]. The essay focuses on Barnett’s treatment of courts. On the one hand, Barnett complains, judicial decisions of the past produced a dangerous consolidation of governmental power and truncated rights. On the other hand, fixing the problem — restoring a “republican” constitution — requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett’s failure to perceive the inherent limits to judicial recognition of expansive constitutional rights when judicial power itself is consolidated. Barnett celebrates dispersed legislative and executive power as a means for states and localities to adopt different regulatory programs, with variation triggering citizen foot voting. He complains that such experimentation has become more difficult with legislative and executive powers increasingly concentrated at the national level because the end result is a one-size-fits-all regulatory scheme. Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett’s constitutional vision. Consolidated judicial power, where ultimate authority rests in the Supreme Court of the United States, does not serve well to generate expansive rights for “We the People.” It is even less suited to Barnett’s own individualistic version of rights — a sort of “Me the People” — in which, he says, each of us is sovereign and courts exist to vindicate our own personal liberties. Barnett’s suggestion that courts really will get things right once they are stacked with originalist judges (and a few constitutional amendments are ratified) is a hypothesis unlikely to be tested anytime soon. In the interim, Barnett’s program could find hope in unexpected places: the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett himself advocates.


Who Stole Professor Michael Paulsen?
Seth Barrett Tillman

This is a comment on Professor Paulsen’s Checking the Court, N.Y.U. J.L. & Liberty 18 (2016) (noted here).

In a 1993 article, Professor Paulsen suggested that the President has independent interpretive autonomy over legal issues involving federal law (including constitutional law), and that the President may “decline to enforce judicial decrees that he believes rest on an unsound interpretation of the law—what I [i.e., Professor Paulsen] have called the Merryman power.” Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 109 (1993) (emphasis added).

Professor Paulsen defended this presidents-have-interpretive-autonomy position, in substantial part, based upon Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.), also reported at 4 (pt. 1) A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States 1400–12 (Cynthia Rapp & Ross E. Davies comps., 2004), and more importantly, based on President Lincoln’s conduct following Chief Justice Taney’s ruling in that case. See Paulsen, The Merryman Power, supra at 95 (“Lincoln did not, except by implication, assert what I call ‘the Merryman power’—authority to disregard, or to countermand, judgments rendered by federal courts.” (emphasis added)); id. at 89 (“In Ex parte Merryman, Lincoln ... refus[ed] to honor a judicial decree as binding law on the executive, even in that specific case.” (emphasis added)); see also Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1290 (2008) (“[Lincoln’s] position, as expressed by his (in)action [post-Merryman], was that the President was not bound to obey and enforce judicial decrees that he believed were incorrect, whenever circumstances suggested complying with the decision would be in some meaningful way harmful to important national interests.” (emphasis added)).

Finally, there can be no genuine doubt that when Professor Paulsen argued that Lincoln had failed to comply with Taney’s Merryman “decree,” Paulsen was referring (at least) to Taney’s May 28, 1861 final Merryman order, and not (merely) to Taney’s May 26, 1861 preliminary ex parte order to produce John Merryman, and not (merely) to Taney’s May 27, 1861 interim attachment order against General Cadwalader. See, e.g., Paulsen, The Merryman Power, supra passim; see also Paulsen, Lincoln and Judicial Authority, supra at 1285 (“Lincoln’s denial of judicial supremacy [in Ex parte Merryman] extend[ed] . . . even to final judicial decrees in a particular case . . . .” (emphasis added)); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What The Law Is, 83 Geo. L.J. 217, 278 (1994) (explaining that Taney “ordered Merryman released”); id. at 279 (“Lincoln dissented. He did not release Merryman as Taney had ordered.”); cf. Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691, 719 (2004) (reviewing Daniel Farber, Lincoln’s Constitution (2003)) (“Lincoln erased even that line, refusing to abide by Chief Justice Taney’s order in Ex parte Merryman invalidating Lincoln’s suspension of the privilege of the writ of habeas corpus, and declining to enforce Taney’s granting of the writ and contempt order against one of Lincoln’s generals.” (emphasis added)).

Professor Paulsen has made these claims, and closely related claims, continuously since 1993 (when he published The Merryman Power), and in more than a dozen academic articles, right up until and including 2015, where they appear yet again in his (co-authored) book and subsequent article in First Things. See, e.g., Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 249 (2015) (“Chief Justice Roger Taney ruled against President Lincoln’s suspension of the writ of habeas corpus in the Civil War in 1861, but Lincoln disregarded that decree . . . .” (emphasis added)); id. (“Abraham Lincoln did not comply with Chief Justice Taney’s order in Merryman.”). Compare Michael Stokes Paulsen & Luke Paulsen, The Great Interpreter, First Things, May 2015, at 50 (“President Lincoln defied the Court’s order—the only time a [P]resident has done this in our nation’s history—arguing that the Constitution was ambiguous on the point and that circumstances necessitated his action while Congress was out of session.”), with Paulsen, The Merryman Power, supra at 83 n.5 (“Merryman is the most famous example of presidential refusal to enforce a Supreme Court judgment, but it is not the only one. President Andrew Jackson is reputed to have refused to enforce the Supreme Court’s decision in Worcester v. Georgia . . . .”).

Although Professor Paulsen has had other arguments and evidence in support of his presidents-have-interpretive-autonomy position, e.g., arguments based upon constitutional structure, separation of powers norms, and some Hamilton-authored originalist materials, Paulsen’s repeated focus on Merryman and Lincoln’s response to Merryman has always been key (if not the key) to his argument. Indeed, Paulsen named his thesis: The Merryman Power. And it is no surprise that Paulsen would rely on Lincoln in this manner—today, the memory of the assassinated President enjoys a status akin to that of a secular saint. (Perhaps—deservedly so.) Like President Washington and the precedents Washington established, practices established by Lincoln carry a presumption of constitutional propriety, if not more.

However, in Professor Paulsen’s most recent paper, Checking the Court, N.Y.U. J.L. & Liberty 18 (2016), although Paulsen continues to defend his presidents-have-interpretive-autonomy position, Paulsen’s two decade old argument based upon Lincoln’s post-Merryman war-time conduct is nowhere to be seen. “But now all is to be changed”?

 Now it is possible that I am reading too much into this: i.e., too much into an argument’s absence. But such arguments from absence are sometimes justified. See, e.g., Paulsen, Lincoln and Judicial Authority, supra at 1290 (“[Lincoln’s] position, as expressed by his (in)action, was that the President was not bound to obey and enforce judicial decrees that he believed were incorrect . . . .” (emphasis added)). Perhaps, Professor Paulsen continues to believe the standard Merryman narrative which he has done so much to promote in academic journals for more than two decades: viz: Chief Justice Taney ordered President Lincoln to release John Merryman, and Lincoln refused to comply with Taney’s order. If that is the situation, if Paulsen continues to believe the standard historical narrative, then there is no grand mystery at work here. But given that this historical narrative has occupied pride of place in Paulsen’s many publications (and he is hardly alone in promoting the standard narrative in this manner) ... its absence from his 2016 paper is somewhat odd ... if Professor Paulsen has changed his mind—might not he tell us why, and how if at all his loss of faith in the standard historical narrative might modify the conclusions he put forward in The Merryman Power and in his subsequent publications?

And if we can get Professor Paulsen to respond to this inquiry ... perhaps, he could also clarify a subsidiary point.

In 1993, Professor Paulsen squarely rejected the position that Ex parte Merryman was a circuit court case; instead, he embraced the position that Taney decided Merryman in chambers. See The Merryman Power, supra at 90 n.27. But in 1999, Paulsen wrote that Merryman was decided by Taney, not merely while on circuit, but in his capacity “as circuit justice.” Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-five Years, 83 Minn. L. Rev. 1337, 1351 (1999). Then, in 2015, Paulsen suggested Merryman was a Supreme Court decision. See Paulsen & Paulsen, supra at 177 (“Lincoln understood the Constitution not necessarily to mean whatever the Supreme Court said it meant concerning slavery and national authority (Dred Scott) or concerning presidential power in wartime (Ex parte Merryman).” (emphasis added)). Which is it?

Richard Kay: Constitutional Construction and the (In)Complete Constitution
Michael Ramsey

Richard S. Kay (University of Connecticut School of Law) has posted Constitutional Construction and the (In)Complete Constitution on SSRN.  Here is the abstract:    

The literature of constitutional originalism has, in recent years, featured a new concept, “constitutional construction.” This Essay is a critical examination of that concept. It demonstrates that, contrary to claims made for it, the difference between “interpretation” and “construction” is not a common and familiar distinction in common law adjudication. It therefore lacks the historical pedigree its proponents claim for it. The Essay then surveys various descriptions of the practice of constitutional construction and argues that, although differing with each other, they all tend to leave an ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that the constitutional text is incomplete in that it fails to provide a decision-rule for many—indeed for most—constitutional disputes so that constitutional construction is a practical necessity. The Constitution would indeed be incomplete if interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, however, originalist interpretation that seeks to identify that meaning of the Constitution actually intended by the people whose assent made it law leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.


A Response to Eric Posner on the Supposed Demise of Originalism
Jeremy Christiansen

[Editor's note:  For this guest post, we welcome Jeremy M. Christiansen, a 2014 graduate of the S.J. Quinney College of Law at the University of Utah and aspiring academic who writes and publishes on state constitutional law and originalism (see here and here).]

Justice Antonin Scalia’s death was all too real.  But the rumors of originalism’s impending demise are greatly exaggerated.

Eric Posner has asserted that “originalism will fade” in the wake of Justice Scalia’s untimely death until conservatives are then left to search for a new unifying theory.  Professors Jack Balkin, Ilya Somin, and Larry Solum, have, in my estimation, offered persuasive critiques of Posner’s prediction.  But I write to briefly offer another.  Posner claims that “[t]he audience for originalist scholarship . . . consists entirely of nine people.” (Emphasis his).  He bolsters this conclusion by observing that “[n]ot even the lower courts care about originalism.”  Posner is simply wrong on this point, and I think he is wrong in a way that undermines his overall assessment about originalism’s likely vitality.

True enough, the Federal Courts of Appeals rarely are even able to engage in originalist inquiries on account of being hemmed in by binding circuit and Supreme Court precedent.  It is the rare case, like Noel Canning, for instance, where the courts of appeals get to try their hand at it.  But Posner’s prognostication is undermined significantly by the numerous lower courts that routinely engage in originalism: state supreme courts interpreting their state constitutions.  These courts decide numerous issues across the country each year that are largely beyond the reach of federal courts (be it because the state court interprets a provision with no federal analogue or because of Michigan v. Long).  So I would say that any account of “originalism” or any predictions about it are entirely incomplete without a survey of state constitutional interpretation.

State constitutions are very similar to statutes.  Posner has recognized as much (shoot for pages 1600 to 1601).  And state courts treat their statutes and their constitutions quite similarly.  State courts frequently invoke “canons” of constitutional interpretation like expressio unius, esjusdum generis, the plain meaning rule, the harmonizing canon, and the independent meaning canon.  In statutory interpretation, all fifty state courts of last resort have frequently espoused an originalist (as opposed to a William Eskridge-esque “dynamic”) methodology, like in Alabama where “[t]he cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.”  Perhaps it should come as no surprise, then, given these similarities that every state court of last resort uses originalism in interpreting their respective state constitutions.  In a forthcoming article on the original meaning of state constitutional search and seizure provisions, I note the extensive invocation of originalist “maxims” of constitutional interpretation.  Here are just a few of the numerous examples, drawn from states that are politically and geographically diverse:

 Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987) (“When construing the Constitution of Alabama, the primary purpose of this court is to ascertain and then effectuate the framers' intent.”); Cain v. Horne, 202 P.3d 1178, 1181 (Ariz. 2009) (“In interpreting a[n Arizona] constitutional provision, our primary purpose is to effectuate the intent of those who framed the provision.”) (internal quotation marks omitted); Steinhart v. Cty. of Los Angeles, 223 P.3d 57, 71 (Cal. 2010) (“[O]ur task is to effectuate the voters’ intent in adopting article XIII A . . . .  The words used in a [constitutional provision] must be taken in the ordinary and common acceptation, because they are presumed to have been so understood by the framers and by the people who adopted the provision.”) (second alteration in original) (internal quotation marks omitted); People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1238 (Colo. 2003) (en banc) (“In construing our constitution, our primary task is to give effect to the framers’ intent.”); Crist v. Florida Ass’n of Criminal Def. Lawyers, Inc., 978 So. 2d 134, 140 (Fla. 2008) (“[T]his Court endeavors to construe a constitutional provision consistent with the intent of the framers and the voters.”) (internal quotation marks omitted); State ex rel. Louie v. Hawai‘i Gov't Emps. Ass’n, AFSCME Local No. 152, AFL-CIO, 328 P.3d 394, 422 (Haw. 2014) (“[W]hen faced with a constitutional question, it is the duty of the court to ascertain and declare the intent of the framers of the Constitution . . . .”) (internal quotation marks omitted); People v. Fitzpatrick, 986 N.E.2d 1163, 1169 (Ill. 2013) (“[W]e look only to the intent of the drafters, the delegates, and the voters in adopting the Illinois Constitution . . . .”); Bonner ex rel. Bonner v. Daniels, 907 N.E.2d 516, 519 (Ind. 2009) (“Interpreting our Constitution involves a search for the common understanding of both those who framed it and those who ratified it.”); State Bd. of Elections v. Snyder ex rel. Snyder, 76 A.3d 1110, 1123 (Md. 2013) (“Our task in matters requiring constitutional interpretation is to discern and then give effect to the intent of the instrument’s drafters and the public that adopted it.”); Michigan Dep’t of Transp. v. Tomkins, 749 N.W.2d 716, 721 (Mich. 2008) (“When interpreting our state constitution, this Court seeks the original meaning of the text to the ratifiers, the people, at the time of ratification.”); Stranahan v. Fred Meyer, Inc., 11 P.3d 228, 237 (Or. 2000) (“[W]hen construing provisions of the Oregon Constitution, it long has been the practice of this court to ascertain and give effect to the intent of the framers [of the provision at issue] and of the people who adopted it.”); Commonwealth v. Rose, 81 A.3d 123, 127 (Pa. 2013) (“Simply put, under long standing and established principles, we are required to examine the original public meaning of the text at issue, giving due regard to both its spirit and the intent of the framers of the clause.”); Riley v. R.I. Dep’t of Envtl. Mgmt., 941 A.2d 198, 205 (R.I. 2008) (“In construing provisions of the Rhode Island Constitution, our chief purpose is to give effect to the intent of the framers . . . .  The historical context is important in determining the scope of constitutional limitations because ‘a page of history is worth a volume of logic.’  . . .   Therefore, this Court properly consults extrinsic sources including the history of the times and examine[s] the state of affairs as they existed when the constitution was framed and adopted.”) (internal quotation marks omitted); League of Educ. Voters v. State, 295 P.3d 743, 749 (Wash. 2013) (“The court gives the words ‘their common and ordinary meaning, as determined at the time they were drafted.’  The court may look to the constitutional history for context if there is ambiguity.  In this particular case, the historical context necessarily includes other provisions adopted contemporaneously with article II, section 22.”); Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408, 421-22 (Wis. 2006) (“The purpose of construing a constitutional amendment is to give effect to the intent of the framers and of the people who adopted it.”).

I do not want to overstate my case, as I fear Posner has done.  Originalism is not the sole method of interpretation in state constitutional law.  It would be shocking (yet wonderful) if it were.  But it is clearly a big-time player.  And one can quibble with whether theses courts did it right, whether they err in sometimes going after “intent” versus original public meaning, etc.  But none of that distracts from my main point: Whether Posner wants to admit it or not, originalism is an entrenched part of the legal, social, and academic landscape—at both the federal and state levels—thanks in large measure to the efforts of people like Justice Scalia.  In light of the substantial use of originalism in state courts of last resort, any claim that originalism is disappearing anytime soon is, as others have pointed out, extraordinarily hasty.


The Constitution and the Garland Nomination (Again)
Michael Ramsey

At The Atlantic, a streamlined version of my appointments clause argument: Why the Senate Doesn't Have to Act on Merrick Garland's Nomination.  (See also here).


Michael Stokes Paulsen: Checking the Court
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted Checking the Court (NYU Journal of Law & Liberty 18 (2016)) on SSRN.  Here is the abstract:      

What can the political branches of national and state governments legitimately and constitutionally do when, in their good faith judgment, the Supreme Court has careened out of control and exercised not legal judgment, but lawless will? What legitimate “checks” exist, and can appropriately exercised, against willful abuse of the judicial power? 

This article explores the full array of possible constitutional checks on the federal judicial power, analyzing their legal validity and practical usefulness. They are, in ascending order of constitutional difficulty – and also of effective power, if constitutionally valid – as follows: (1) full substantive ideological review at the appointment and confirmation stage of a judicial candidate’s judicial philosophy, including the posing of “litmus test” questions; (2) control over the Supreme Court’s appellate jurisdiction through aggressive use of the Exceptions Clause power (“jurisdiction stripping”); (3) manipulation of the size of the Supreme Court (both “Court packing” and Court “unpacking”); (4) impeachment of judges and justices for believed abuse of judicial power, violation of the judicial oath, and violation of the Constitution; (5) legislation prescribing correct substantive and methodological “rules of decision” governing the judiciary’s interpretation and application of federal law of all types and abrogating the judicial policy of (occasional) stare decisis with respect to precedent decisions departing from such rules; and (6) presidential (and perhaps state and lower court) non-execution of judicial decisions inconsistent with the objective original meaning of the Constitution or other federal law. 

Which of these purported checks might be constitutionally valid? Which ones are likely to be effective? What is the proper occasion for the exercise of these stronger and weaker devices for “Checking the Court”?


Saikrishna Prakash & John Yoo: People ≠ Legislature
Michael Ramsey

Saikrishna Prakash (University of Virginia School of Law) & John Yoo (University of California at Berkeley School of Law; American Enterprise Institute) have posted People ≠ Legislature (Harvard Journal of Law and Public Policy, Vol. 39, No. 2, 2016) on SSRN.  Here is the abstract:      

Article I, Section 4 of the U.S. Constitution vests the regulation of congressional elections in “each State by the Legislature thereof.” In Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015), the Supreme Court held that the Constitution’s Elections Clause does not refer solely to an institution, distinct from the people, with the power to make laws — what common sense typically might consider a “Legislature.” Instead, the Court concluded that the Framers used “Legislature” to refer to any entity authorized to make laws, such as the people through popular initiative.

We argue that the Court has misread the text, structure, and history of the Elections Clause. A “Legislature” is an entity that makes law. But not every entity that makes laws is a legislature. When a dictator makes laws unilaterally, he or she is not a legislature. Similarly, when the people make laws, be they statutes or constitutions, they are not a legislature. Given the Clause’s actual wording, moreover, the Court should have read Article I, Section 4 to give effect not only to “State” but to “Legislature” as well. A commonly accepted rule of interpretation strongly suggests that every word in the Constitution be given meaning. Reading “Legislature” to refer only to state assemblies, and not to the peoples of the states, more cleanly fits within the structure of Article I, Section 4. It also makes better sense of the use of the word “Legislature” in other parts of the Constitution. Reading the Elections Clause as empowering only state assemblies comports best with the surrounding history of the Framing and Ratification of the Constitution.

Plainly correct. in my view.

UPDATE:  In the same issue of the Harvard Journal of Law and Public Policy, Derek Muller (Pepperdine) takes on one-person-0ne-vote: Perpetuating 'One Person One Vote' Errors. From the introduction:

“One person, one vote” has no plausible basis in the text or original meaning of the Fourteenth Amendment of the United States Constitution.  More than fifty years after Baker v. Carr, however, this mantra remains essentially inviolable. ...


This Article examines an under-discussed element of the reapportionment cases—the extent to which the parties themselves and the clerks to the Supreme Court Justices resisted advancing the kind of sweeping claims that the Supreme Court ultimately embraced. The Court’s errors in the redistricting cases of people arose in spite of repeated guidance from the litigants before the Court and the Justices’ own clerks to decide the cases in a narrower fashion or pursuant to existing constitutional standards. Through archival research, this Article demonstrates that all parties were reluctant to redefine all state legislatures under a single (and under-theorized) political definition. The Court took little heed of such modest proposals and instituted sweeping claims about how state legislatures ought to look. The Article then identifies the circumstances in which the Court finally embraced restraint—it permitted States to choose an appropriate population basis for drawing legislative districts, leaving the matter to the sound discretion of the States. The Article identifies a lost footnote in an early draft of Burns v. Richardson that would have articulated the most lucid basis for deferring to the States as they selected the appropriate redistricting population. The Article then reflects on the proposed expansion of these sweeping claims in Evenwel v. Abbott, an attempt to return to the judicial nationalization of state legislatures articulated in Baker and its progeny. The Article calls for an end to these redistricting errors and for greater deference to the States.


Zachary S. Price: Constitutional and Rule-of-Law Arguments Over Nonenforcement and Waiver
Michael Ramsey

Zachary S. Price (University of California Hastings College of the Law) has posted Seeking Baselines for Negative Authority: Constitutional and Rule-of-Law Arguments Over Nonenforcement and Waiver (The Journal of Legal Analysis, May 2016) on SSRN.  Here is the abstract:      

Recent controversies have called attention to the potential significance of negative executive authority — the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.

Professor Price owns this field.


C-SPAN Video: Panel on Justice Scalia's Legacy
Michael Ramsey

Here, recording an event presented by the U.C. Berkeley Federalist Society, featuring Kristin Linsley Myles (Munger Tolles), Jonathan Mitchell (Stanford), John Eastman (Chapman) and me.

Andrew Hamm on Ed Larson on George Washington
Michael Ramsey

At SCOTUSblog, Andrew Hamm: Edward Larson on the Constitution’s “general contractor,” George Washington.  It begins: 

Ask any student of American law or history, and he or she will tell you that James Madison was the architect of the U.S. Constitution. As the author of the most comprehensive notes of the 1787 Constitutional Convention in Philadelphia and one of only two delegates to attend its every session, Madison has rightly earned this title. But if Madison was the Constitution’s architect, Edward Larson argued last week at a lecture sponsored by the Supreme Court Historical Society, then George Washington – the other delegate with perfect attendance – was its general contractor. And, as Larson quipped, a finished building looks a lot more like what the general contractor wanted than whatever the architect had envisioned.

Professor Larson's lecture is based on his outstanding book The Return of George Washington: Uniting the States, 1783-1789 (William Morrow 2014), which I recently finished reading and highly recommend.


The Framers/Justices Conflation
Mike Rappaport

Recently, Justice Stevens gave a speech about Justice Scalia.  At the end, Stevens relies upon an argument from historian Joseph Ellis that both Stevens and Ellis believe suggests that Thomas Jefferson was not an originalist.  But as Ed Whelan points out, this is a misinterpretation.  Jefferson writes:

Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution [i.e. the Virginia Constitution] for its revision at stated periods. What these periods should be, nature herself indicates.

As the italicized portion suggests, Jefferson here is not suggesting that judges and other government officials should update the constitution through “interpretation.”  Instead, he is arguing that Virginia should provide for a constitutional revision process, where a lawmaking body would change the constitution.  This is the difference between constitutional amendment (advocated by originalists as the legitimate form of constitutional change) and judicial revision (condemned by originalists).  As other evidence strongly confirms, Jefferson was an originalist.

It is true that Jefferson is suggesting that an old constitution be changed.  But he is arguing it be changed through constitutional means.  Thus, the mistake that Stevens makes is to treat the Court as if it were the legitimate source of power to change the Constitution.  I suppose, given Stevens’s other views, this is not surprising.  But as an account of Jefferson, it is a serious error.

Sadly this error of confusing the Court with the Framers is common.  Another common example of the error involves the separation of powers.  The Constitution separates the legislative, executive, and judicial powers.  But a question that often arises is whether the Constitution employs a strict separation or a lenient one that allows departures from the separation of powers if Congress and Court believe it is reasonable to do so.

The constitutional text suggests that the separation is strict, since after all each of the branches is limited to exercising a distinctive type of power.  The Congress is limited to legislative power, the President is limited to executive power, and the courts are limited to judicial power.  It is true that the Constitution creates exceptions – for example, it gives the President the veto power, which is a legislative power – but those exceptions are stated expressly.  Thus, the constitutional text separates powers strictly, but creates some exceptions.

Many Supreme Court justices, however, have refused to adopt this approach.  They argue that the Federalist Papers acknowledged that the Constitution does not strictly follow the separation of powers.  And therefore they argue that the separation of powers should not be interpreted strictly.  For example, in Nixon v. GSA, Justice Brennan advocated “the more pragmatic, flexible approach of Madison in the Federalist Papers," citing to Madison defense of the Constitution’s departures from Montesquieu’s strict separation of powers.  But this is a mistake.  The Federalist Papers acknowledge that the Constitution did not follow the separation of powers, but it did so by referring to the explicit exceptions in the Constitution.  There is no suggestion that additional exceptions should be recognized by the courts.

This mistake is the same type made by Justice Stevens.  That the Framers of the Constitution could make exceptions to the separation of powers in writing the Constitution does not mean that the Court should recognize additional exceptions when interpreting the Constitution.  Yet, that is what the Court often does.  The Court assumes that the defense of the Framers’ actions applies to them.  But despite their pretentions, the justices are not the Framers.

Herbert Hovenkamp on Libertarian Constitutionalism
Michael Ramsey

At The New Rambler, Hebert Hovenkamp (Iowa): Defending a Mixed Economy (reviewing American Amnesia: How the War on Government Led Us to Forget What Made America Prosper, by Jacob S. Hacker and Paul Pierson [Simon & Schuster, 2016]. Notable: 

Hacker and Pierson begin with a very brief effort to dismantle the idea that the Founding Fathers, James Madison in particular, were radical anti-government activists and that the Constitution reflected that judgment. Rather, they argue, the Constitution contemplated a partnership between markets and government, and one in which the government played a strong and essential part. My own reaction to this opening discussion was twofold. First, the authors examined very little from the historiography, text, or early interpretation of the Constitution in order to prove their point. They did emphasize the extent to which the Constitution was a reaction to the weak, unworkable government contemplated by the Articles of Confederation. Beyond that, their principal discussion concerns a collection of statements from James Madison, showing that Madison was not nearly as laissez faire about the role of government in the economy as some people have thought, most particularly George Will. ...

My second reaction, however, is that Hacker and Pierson are precisely correct even though they did not document their historical conclusions particularly well. Indeed, one could go a step further: the extent to which some conservatives and libertarians have attempted to rewrite constitutional history in order to make antigovernment laissez faire a significant part of our constitutional past is nothing short of embarrassing. ...

(Thanks to Michael Perry for the pointer).


New Book: 'Foreign Affairs Federalism" by Michael Glennon and Robert Sloan
Michael Ramsey

Recently published, by Michael J. Glennon (Fletcher School) and Robert D. Sloane (Boston University): Foreign Affairs Federalism: The Myth of National Exclusivity (Oxford Univ. Press 2016).  Here is the book description from Amazon:

Challenging the myth that the federal government exercises exclusive control over U.S. foreign-policymaking, Michael J. Glennon and Robert D. Sloane propose that we recognize the prominent role that states and cities now play in that realm. Foreign Affairs Federalism provides the first comprehensive study of the constitutional law and practice of federalism in the conduct of U.S. foreign relations. It could hardly be timelier. States and cities recently have limited greenhouse gas emissions, declared nuclear free zones and sanctuaries for undocumented immigrants, established thousands of sister-city relationships, set up informal diplomatic offices abroad, and sanctioned oppressive foreign governments. Exploring the implications of these and other initiatives, this book argues that the national interest cannot be advanced internationally by Washington alone. Glennon and Sloane examine in detail the considerable foreign affairs powers retained by the states under the Constitution and question the need for Congress or the president to step in to provide "one voice" in foreign affairs. They present concrete, realistic ways that the courts can update antiquated federalism precepts and untangle interwoven strands of international law, federal law, and state law. The result is a lucid, incisive, and up-to-date analysis of the rules that empower-and limit-states and cities abroad.

I read the book in draft form and it's impressive.  I have a back-cover blurb that says: 

Glennon and Sloane's Foreign Affairs Federalism immediately becomes the definitive work in the field. The authors decisively overthrow the conventional assumption that states have no role in U.S. foreign affairs. And they carefully and comprehensively replace it with a vision of shared responsibility that is faithful to the founding experience and relevant for today's legal practice. It is an outstanding accomplishment.

No  exaggeration.

(But don't forget my now-ancient The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 Notre Dame L. Rev. 341 (1999)).


Lawrence Solum: Originalist Methodology
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Originalist Methodology on SSRN.  Here is the abstract: 

This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.

Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. The Essay concludes with a short reflection on the future of originalist methodology.

I particularly endorse the last two sentences of the first paragraph.


Christopher Serkin & Nelson Tebbe: Is the Constitution Special?
Michael Ramsey

Christopher Serkin (Vanderbilt Law School) and Nelson Tebbe (Brooklyn Law School; Cornell Law School) have posted Is the Constitution Special? (Cornell Law Review, Vol. 101, p. 701, 2016) on SSRN.  Here is the abstract:      

“[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find them mostly unconvincing. Neither entrenchment, nor supremacy, nor democratic legitimacy sets the Constitution apart from other sources of law in a way that supports interpretive exceptionalism. In fact, the best argument for the practice is simply that the Constitution is regarded as unique — that it occupies a privileged place in American culture and political mythology. But even if that status can justify applying some specialized methods to the document, it cannot explain every markedly divergent practice that we see among contemporary legal professionals. In the conclusion, we reveal one normative motivation for the project. All too often, constitutional argument is deployed in ordinary politics as a kind of trump, with the purpose and effect of shutting down policy debate. Legal professionals contribute to this tactic when they craft rarified interpretive methods without justification. Demythologizing constitutional law undercuts its use as a political blunderbuss.

I agree with the conclusion, though perhaps not with all of the authors' reasons nor their implications.  This was also Justice Scalia's view, as reflected for example in Reading Law (in which he and co-author Bryan Garner) discussed interpreting the Constitution in the same way as interpreting other legal texts such as statutes).  One of the implications (in my view, and also Justice Scalia's) is to endorse constitutional originalism, since (as I've argued here many times) originalism by other names is standard practice in statutory interpretation.


Blame Donald Trump on John Roberts?
Michael Ramsey

Randy Barnett here (video) and here (excerpts).

For two years, the nation was transfixed by the legal challenge to Obamacare. A genuine popular constitutionalist uprising had set the stage for a renewal of our Republican constitution. Tea Party activists – and just plain old Republicans – looked to the Supreme Court to uphold a limit on the growth of federal power. True, Democrats and the Left intelligentia would have screamed bloody murder – as they did after the 3 days of oral argument showed there were five votes for our constitutional theory. But, had the Court invalidated the law, polls show it would have enjoyed the support of a majority of the American people.

And it would have taught the American people an invaluable lesson about their Constitution and the courts. No Americans knew about the Gun Free School Zone Act that the Rehnquist Court had invalidated in 1995. Most Americans were clueless about the civil cause of action for gender-motivated violence that the Court invalidated in 2000. Only a minority of Americans truly cared about the use of medical marijuana that the Court had failed to protect in 2005.

But virtually everyone who paid any attention to public affairs was aware of our challenge to Obamacare. Had it been invalidated and the decision remanded to the now-divided Congress to devise a new and perhaps even genuine reform of the existing regulations of health insurance, it would have shown the American people that there were indeed limits on the power of Congress.

Perhaps more importantly, it would have shown the Tea Party constitutionalists that their efforts had finally paid off. They had put their faith in the Constitution and the courts, and that faith was rewarded. But instead they got a hard kick in their teeth. And the effect of that kick was felt this week.

Listen again to the words of John Roberts to the Tea Party activists who were counting on him: “it is not our job to protect the people from the consequences of their political choices.” What else did that mean to them if not: “it is not our job to uphold the limits on federal power”? Go away from the court house. Go away from the judges. Go away from the Constitution itself and fight this out among yourselves.

Law exists, in part, to direct the natural urge for self-preservation and self-defense into peaceful channels. The Constitution exists to provide the law that governs those who govern us. And the judiciary was created, in part, to hold the government within its just powers and, by so doing, avoid the Hobbesian war of all against all.

But at the very moment he was called upon to teach the American people of the value of their republican Constitution, Chief Justice Roberts asserted the judicial restraint of the democratic constitution and turned them away. And that, my friends, was the end of our constitutional moment. That was the beginning of the end of constitutional conservatism as a political movement. And it kindled the resentment and populism that led to Donald Trump….

Similarly, Ilya Shapiro, here:

[If] I have to point to a moment that spawned the current annus horribilis, it would have to be John Roberts’s vindication of Obamacare on June 28, 2012. ...

Not because his ruling in NFIB v. Sebelius—and last year in King v. Burwell, when the die had already been cast—allowed a hugely unpopular piece of legislation to survive and corrode our health-care system and economy. But because Roberts recognized that the Affordable Care Act was unconstitutional yet still saved it out of a misbegotten devotion to judicial restraint—under the guise of deferring to “the people.”

Sure, the chief justice cleverly wrote his opinion so it wouldn’t increase Congress’s power to regulate interstate commerce and even cut it back under the Necessary and Proper Clause. He also ultimately upheld the individual mandate only by rewriting it into a “unicorn” tax—a creature of no known constitutional provenance that will never be seen again.

But by refusing to follow his own logic, to go where even Justice Kennedy full-throatedly went—I was in the courtroom to hear Kennedy passionately summarize a dissent that would’ve struck down the entire law—Roberts increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.

The man’s twistifications drove the constitutionalist Tea Partiers into the arms of the populists—or made it easy for their populist instincts to “trump” their constitutional ones (pun unintended, but fitting). Why bother with the Constitution? Even when you’re right, you lose.

Orin Kerr has an extensive counterpoint here.


Seth Barrett Tillman: Candidate Hillary Clinton and the Problem of Statutory Qualifications
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications (5(1) Br. J. Am. Leg. Studies 95–121 (2016)) on SSRN.  Here is the abstract:      

Constitutions, statutes, and regulations create public offices, and frequently such legal instruments also create qualifications for those offices. When positive law creates qualifications for elected positions, these restrictions limit the scope of democratic choice. Nevertheless, such restrictions on democratic choice have a long pedigree in a variety of jurisdictions. Adjudications relating to qualifications to public office are not uncommon. Likewise, in the United States, the Constitution sets out qualifications for elected federal officials: i.e., Representatives, Senators, President and Vice President. Such qualifications include, among others, provisions relating to age, citizenship, and residence. Courts and commentators have long debated whether the qualifications in the Constitution’s text are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress and/or by the States. 

Once again, this issue has become topical. Hillary Clinton, a former Secretary of State and former Senator, is a prominent candidate in the upcoming Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the November 2016 popular presidential election. It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping. Section 2071 of Title 18 of the United States Code provides: 

"Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States."

Section 2071’s language poses two interesting interpretive challenges. 

First, what is the scope of the statute? In other words, does Section 2071’s generally worded "office under the United States" language extend to the presidency? 

Second, if Section 2071’s general "office under the United States" language fairly encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?

Josh Blackman on the Amtrak Case
Michael Ramsey

Josh Blackman has this analysis of the D.C. Circuit's decision on remand in Association of American Railroads v. U.S. Department of Transportation.  Here is the introduction:

Last March, the Supreme Court decided Department of Transportation v. Association of American Railroads. The case raised all sorts of constitutional challenges to how Amtrak can set “metrics and standards” that affect its competitors. Writing for eight Justices, Justice Kennedy found that Amtrak was a governmental entity, and remanded to the D.C. Circuit whether the “metrics and standards” violate the separation of powers and the appointments clause. Justice Alito issued a vigorous opinion raising several other constitutional questions, including whether there is an appointments clause violation, the non-delegation doctrine, and other admin-law abuses.  Justice Thomas’s concurring opinion went the full Hamburger, and would have voted to reconsider the development of administration law since the Pope annulled Magna Carta.

On remand from the Supreme Court, a D.C. Circuit panel of Judges Brown, Sentelle, and Williams ruled against Amtrak–in an absolutely fascinating opinion. The Court finds not only a violation of the appointments clause–following Justice Alito’s lead–but also finds a due process violation under the precedent of Carter v. Carter Coal. Judge Brown’s opinion–which is almost certainly going to be subject to an en banc petition–is worthy of a careful study.

And some of the analysis on the due process holding:

To resolve this case, Judge Brown turns back to a pre-1937 precedent, Carter v. Carter Coal.

The abstract legal question at the heart of this case is whether it violates due process for Congress to give a self- interested entity rulemaking authority over its competitors. The Supreme Court has confronted the question only once. See Carter v. Carter Coal Co., 298 U.S 238 (1936).

In case you were wondering, the due-process component of Carter v. Carter Coal was never overturned by the Supreme Court. As we learned in NFIB v. Sebelius, Bailey v. Drexel Furniture and other pre-switch-in-time cases–no matter what the professoriate may say– are still on the books. (I actually researched Carter v. Carter Coal for the proposition of shareholder derivative standing, so was familiar of its ongoing validity).

In a sentence that must make the blood boil of all post-New Dealers, Judge Brown writes:

We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is “intrusted with the power to regulate the business . . . of a competitor.” Carter Coal, 298 U.S. at 311.

RELATED:  Michel Greve has further thoughts on the decision here, including this: 

The Federal Reserve is a market participant. And it regulates. Is Janet Yellen constitutional? That in terrorem example aside: there are lots of government agencies with both revenue-maximizing mandates and regulatory powers; and those agencies come in a dizzying array of shapes and forms. So, how far does this go? 


Paul Horwitz on Trump and Constitutional Law Scholarship
Michael Ramsey

At Prawfsblawg, Paul Horwitz: Trump and Constitutional Law.  He predicts: 

[A] Trump presidency would be a goldmine for interest in and study of constitutional law. If he should win the presidency, I venture the following predictions:

1) There will be an immense rebirth of interest in the salutary aspects of federalism and separation of powers--on the ground, in popular conversation, and certainly in legal academic work. "Rights" talk, although never non-existent, will take a backseat to "powers" and "structure" talk. Those liberal federalists, like Heather Gerken, whose work has been admired but perhaps seen as somewhat eccentric from the main direction of constitutional study, will be joined by many new adherents, and there will be considerable conservative-liberal crossover in those fields. 

2) Sentiment about congressional gridlock, and especially about congressional gridlock as a justification for creative and unilateral executive action, will shift overnight. Mann and Ornstein will receive many new fans, albeit those new readers will, in effect, mentally convert all the negative adjectives in that book to positive ones. Lawyers and legal scholars who minimized or celebrated President Obama's fairly aggressive use of presidential power will similarly reverse polarity almost immediately. ..

[Plus three more.]

I hope this is not true, but sadly I think it might be.  I don't think academics fully realize how much our credibility is undermined when we shift positions depending on who controls which parts of the government (or how easy, in the internet age, it is to spot such shifts).

Michael Perry: Five Constitutional Controversies, Five Judicial Opinions
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted Five Constitutional Controversies, Five Judicial Opinions: The Theory Illustrated (A Global Political Morality: Human Rights, Democracy, and Constitutionalism, Forthcoming, Cambridge University Press, 2017) on SSRN.  Here is the abstract:      

In this paper, I address five controversies — controversies concerning constitutional rights — that have arisen under the constitutional law of the United States: the controversies concerning, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion. My discussion of each controversy takes the form of an opinion drafted by an imaginary justice of the Supreme Court of the United States, Justice Nemo. The five opinions by Justice Nemo serve to illustrate the implications, for the five controversies, of the theory of judicial review elaborated and defended in a paper I posted to SSRN last month: Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.

That is, Justice Nemo’s five opinions serve that illustrative function if they are truly faithful to that theory of judicial review, to which Justice Nemo professes to be committed. Are they? Justice Nemo is not always explicit in her opinions about her judicial philosophy; she nonetheless wants to draft opinions that align with her philosophy. A question to ask, then, about each of her five opinions: Has Justice Nemo succeeded in drafting an opinion faithful to the theory of judicial review to which she professes to be committed?


Eric Segall on Trump and Roberts
Michael Ramsey

At Dorf on Law, Eric Segall: You're Fired, Mr. Chief Justice!  (Not originalism, but funny).