11/20/2017

Eric Segall on "Scalia Speaks"
Michael Ramsey

At Dorf on Law, Eric Segall (Georgia State) reviews Scalia Speaks (the collection of Scalia speeches edited by Christopher Scalia and Ed Whelan): Scalia Speaks Well: But Not About Originalism.  From the introduction: 

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics. ...

As usual, Professor Segall is a thoughtful and thought-provoking critic.  But a central complaint here is that Justice Scalia did not always follow originalism in his judicial decisions.  I'm doubtful that this charge undermines Scalia's theoretical defenses of originalism, for three reasons.

First, Scalia believed -- to an unspecified extent -- in precedent.  Many areas of constitutional law -- including one Professor Segall emphasizes, free speech -- are so heavily influenced by precedent that it may be impossible (or Scalia may have believed it impossible) in many respects to develop a workable practice of originalism.  A better criticism (sketched in my essay on Scalia's originalism in practice) is that Scalia had -- to put it generously -- an underdeveloped theory of precedent.  Thus it was often not clear when and to what extent he thought precedent overrode originalist analysis, and indeed it is sometimes hard to tell in his opinions whether he was engaged in doctrinal analysis or originalist analysis.

Second, I think Professor Segall and others overstate the extent Scalia failed to use originalist analysis.  Common examples, employed by Professor Segall later in his essay, include standing, anti-commandeering and state sovereign immunity.  As I discuss in my essay, Scalia's decisions in these areas do rely on originalist analysis (debatable originalist analysis, to be sure).  His decisions do not, however, rely on textualist analysis, a fact that has caused some critics wrongly to label them non-originalist.  (I nonetheless agree with Professor Segall that there are some areas -- he highlights affirmative action -- where it does not appear that Scalia relied on either originalist analysis or precedent).

Third, and most importantly, I don't see why Scalia's unjustified failures to follow originalism (if there are such failures) undermine the theory of originalism.  Originalism does not claim that even the most committed originalist will be able to follow originalism all of the time.  People are, after all, human, and the temptation to reach the intuitively "right" result must be very strong in some cases.  Originalism only claims (as Scalia says in the book) that it provides more constraints than theories of adjudication that explicitly or implicitly invite reliance on one's intuitive sense of the "right" result. That Scalia sometimes gave in to temptation (if he did) does not disprove this claim.

11/19/2017

David Rubenstein: Taking Care of the Rule of Law
Michael Ramsey

David S. Rubenstein (Washburn University - School of Law) has posted Taking Care of the Rule of Law (George Washington Law Review, Vol. 86, No. 1, 2018, forthcoming) on SSRN.  Here is the abstract: 

The multi-generational project of squaring executive governance with the rule of law is coming to a head. Hardly a week passes without commentators summonsing the rule of law ideal to pass judgment on the legitimacy or desirability of some executive action. But the more we talk about the rule of law, the further it seems to slip away. Rather than look to the rule of law for guidance, this Article shines critical light on what the rule of law ideal cannot tell us. Moreover, this Article explains why even well-intended efforts to square the rule of law with trends in governance can be counterproductive. To anchor these points, the Article presents comparative case studies of President Obama’s and President Trump’s signature immigration policies and the rule of law debates surrounding them. The Obama-Trump juxtaposition offers a portrait of some disquieting trends, not only for presidential administration, but also in how commentators think and talk about the rule of law. This Article intervenes with some prescriptions moving forward—including away from rule of law talk, and towards doctrines and institutional arrangements that could more effectively check presidential power.

11/18/2017

Andre LeDuc: Competing Accounts of Interpretation and Practical Reasoning in the Debate Over Originalism
Michael Ramsey

Andre LeDuc (Independent) has posted Competing Accounts of Interpretation and Practical Reasoning in the Debate Over Originalism (University of New Hampshire Law Review, Vol. 16, No. 1, 2017) on SSRN. Here is the abstract: 

This article explores two assumptions about constitutional law and the form of practical reasoning inherent in constitutional argument and decision that have shaped the debate over originalism. The first assumption—adopted by originalists—is that constitutional reasoning is a formalistic process. Originalism’s critics tacitly describe a very different and less formalistic model. The second assumption—shared by originalists and most of its critics alike—is that the central task of constitutional decision is to interpret the Constitution. Both of these assumptions are wrong. Constitutional argument is not, and cannot be, reduced to the formal model of reasoning tacitly employed in originalism.

The critics of originalism correctly point out that constitutional argument is more complex than originalism’s formal account allows. But those critics share with originalists the mistaken premise that our constitutional practice begins with interpretation. That agreement masks the substantial differences in their respective accounts of interpretation, however.

This Article demonstrates how these two assumptions have contributed to the fruitlessness of the debate. For example, if we reject the premise of the logical priority of interpretation the celebrated problem of generality dissolves. By articulating the jurisprudential foundations of the debate, this Article allows us to recognize the sterility of the debate over originalism and the likelihood that it cannot be successfully resolved by the protagonists on either side of the debate. While discarding the formalism of contemporary originalism does not compromise core originalist claims, the importance of that formalism to some of originalism’s stronger claims of privilege makes such an approach less attractive to originalism. Originalism’s critics, while right about constitutional reasoning, fail to discredit other important originalist claims. Thus, the protagonists in the debate may be likely to continue even after better understanding interpretation and the practice of constitutional argument. That would be a mistake. A better account of the place of interpretation and the nature of practical reasoning in constitutional reasoning also opens up the alternative of moving beyond the fruitless, stalemated debate about originalism.

At Legal Theory Blog, Larry Solum has comments, especially on the article's discussion of Professor Solum's views.

11/17/2017

Mila Sohoni: A Bureaucracy -- If You Can Keep It
Michael Ramsey

Recently published, in the Harvard Law Review Forum, Mila Sohoni (University of San Diego Law School): A Bureaucracy -- If You Can Keep It (131 Harv. L. Rev. F. 14 (2017)) (invited response to Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017).  From the introduction (footnotes omitted):

In her Foreword, Professor Gillian Metzger portrays the administrative state as laid under siege by an array of judicial, political, and academic attackers. Expertly curating and deftly dissecting a century’s circus of intellectual debate and political conflict, the Foreword demonstrates the myriad ways in which today’s struggles over administrative government reprise the turmoil of the New Deal period.

Indeed, the parallels between the present moment and the 1930s may extend further than she draws them. The history of that era suggests how the “rhetorical antipathy” towards the administrative state that Metzger carefully documents and critiques may yet cross over from the realm of rhetoric to the realm of reality. That, of course, only makes it that much more urgent to answer the central question addressed by the Foreword — the question of how to respond to the
“anti-administrativist” complaint that the federal bureaucracy is extralegal, unconstitutional, and tyrannical.

Metzger’s response is the provocative rejoinder that the administrative state is not merely constitutionally permissible and not merely constitutionally beneficial, but also constitutionally obligatory. This argument diverges in critical respects from long-held conceptions of the administrative state’s constitutional status and role. It is bold in its premises and startling in its possible implications. It aims to break the siege — to quell, at once and en masse, the renascent attacks upon administrative government. But her argument for a constitutional obligation of administrative government pivots upon the threshold assumption that the Supreme Court will continue to regard broad delegations as constitutionally permissible — a point about which I do not feel as sanguine. And even if delegation doctrine persists in its present form, the full contours of the contingent constitutional obligation posited by Metzger seem to me to be both potentially enormous and — at the same time — hard to trace with precision. At the brass-tacks level, it is difficult to map out what exactly honoring the constitutional obligation of administrative government would require in the many and varied contexts in which it might be pitted against countervailing targeted arguments that regulatory power ought to be restrained. Politicians, scholars, lawyers, and judges gave us the modern administrative state; whether we can keep it remains to be seen. 

Also responding to the Foreword in the Forum is this essay from Aaron L. Neilson (BYU): Confessions of an “Anti-Administrativist”.

Unsurprisingly, two principal targets of Professor Metzger's Foreword are originalists Clarence Thoams and Philip Hamburger; the Forum does not, as yet, have an originalist response.

11/16/2017

Will Baude on Supreme Court Jurisdiction over Military Appeals [Updated]
Michael Ramsey

At Volokh Conspricay, Will Baude: Supreme Court jurisdiction over the Court of Appeals for the Armed Forces.  He asks: "Does the Supreme Court have jurisdiction to directly review decisions of the Court of Appeals for the Armed Forces at all?"  Maybe not:

In a recent amicus brief in another case, Virginia law professor Aditya Bamzai argued not. The Constitution says that the Supreme Court’s jurisdiction in cases arising under federal law is appellate, not original. And according to no less an authority than Marbury v. Madison, Congress cannot move any cases from the court’s appellate jurisdiction to the original jurisdiction. This means that the Supreme Court can directly review the CAAF only if the case is an appeal, which in Bamzai’s view (and mine) means that the Supreme Court has jurisdiction only if the CAAF is truly a court, in the constitutional sense.

Bamzai argued that the CAAF is not a court, in the constitutional sense, but is a part of the executive branch, staffed by executive-branch appointees who are not given the tenure and protections of Article III. In a blog post responding to Bamzai last year, [Professor Steve] Vladeck argued that CAAF was in fact a court.

I am inclined to agree with Bamzai that the CAAF is not a court, for reasons that I will elaborate on eventually in a paper on so-called legislative courts. But in a nutshell, I think that a court, in the constitutional sense, must be a body that exercises the judicial power of some government and that the CAAF does not exercise any government’s judicial power. (For instance, federal courts exercise “the judicial power of the United States.” State courts exercise “the judicial power” of their respective states. Etc. CAAF falls into none of these categories.)

UPDATE:  Professor Bamzai emails: "Unbeknownst to Will at the time he wrote the post, I have filed a brief in support of neither party in the case currently pending before the Supreme Court."  The brief is posted on SSRN (here).  Here is the abstract: 

This amicus brief in support of neither party [in Dalmazzi et al. v. United States] explains why the Supreme Court lacks jurisdiction to review cases from the Court of Appeals for the Armed Forces ("CAAF"). Though called a "court" by statute, the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the "judicial Power" of the United States or of any sovereign. Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that this Court cannot exercise "appellate Jurisdiction" under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a "court" by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The brief canvasses a number of precedents in this area arising from cases involving military commissions, the Court of Federal Claims, petitions for writs of habeas corpus, the Court of Customs and Patent Appeals, and administrative agencies.

11/15/2017

Gregory Maggs: A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning (49 Conn. L. Rev. 1069 (2017)) on SSRN. Here is the abstract: 

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.

A important new installment in Professor Maggs' useful "Critical Guide" series.

11/14/2017

A Comment from Fred Gedicks on Originalism
Michael Ramsey

Regarding this post, Fred Gedicks (BYU) sends this comment:

Thanks for noting my essay on Larry Solum's summation of originalism in your recent Originalism Blog post. I'm writing because you've misunderstood my ontological criticism for an epistemological one.
 
I gather that "object" in your point (1) is implicitly modified by "discoverable," which you eventually make explicit: "Originalism is happy to concede that some constitutional phrases may be . . . "inkblots" with no discoverable meaning . . . . "
 
Point (2) seems to proceed along the same lines, as does your conclusion that, more often than not, the meaning of past texts is recoverable as an object untouched by present concerns: "Originalism does not contend that meaning can always be recovered in its 'pristine' form; rather it contends that meaning can last least sometimes be recovered" (which I take to mean, "sometimes be recovered in its pristine objective form" and, again, often enough for originalism to function as a method of interpretation).
 
In other words, you take me to claim that originalists presuppose meaning necessarily exists in the past as a discoverable object, and you respond that originalists are happy to concede that epstemic obstacles often prevent the recovery of that object, though not often enough to undermine originalism's functionality as an interpretive method.
 
This is not my claim at all. I am not making (the admittedly tired) argument that originalism is epistemologically impossible (or impossible often enough that it is not worth pursuing as an interpretive methodology). I argue that originalism cannot ever be recovered in its pristine form, untouched by the present, because no original meaning exists at all, discoverable or not, that is not touched by the concerns of the interpreter and her life and times. The meaning of the past is partially constituted by the present, and the present partially constituted by the past. 
 
Constitutional interpretation is an example of this hermeneutic circle. There is no meaning of the Constitution independently existing in the past until we look for it; the effort creates a meaning, but one unavoidably marked by the present. The present, in turn, is marked by the past, by the tradition in which the Constitution is embedded and handed down to the present, which colors our view of the Constitution and unavoidable shapes our attempts to understand it. 
 
The essay illustrates this (apparently too obscurely) with both the sexism of IWL and the contemporary imperative that any interpretive theory account for Brown. In what sense could one argue that the sexism of IWL or its protofeminist moments have always existed as part of the meaning of the movie from the day it premiered? How could any reviewer in 1946 have "discovered" this sexism a generation before sexism and feminism were ideas that had names? In what sense did "separate but equal is inherently unequal" always exist as the meaning of the EPC, discoverable by any person in 1868 familiar with the context in which it was drafted and ratified, when hardly anyone in 1868 really believed in the social equality of the races which school desegretation (along with interracial marriage) would have challenged?
 
Perhaps I would have done better to use the concept of the "classical" to illustrate the ontological point. Despite the freedom with which we bestow "instant "classic, nothing is classic the moment it is created. Identifying a text as classic is a judgment of the present--or, at least, a time period considerably after the text is written. And yet, the consensus that a text is classic necessarily affects how we understand it in the present. A classical text means something different once it becomes classic, canonical, paradigmatic.
 
Brown, again, is an excellent example of this. The "original" meaning of Brown is unavoidably colored by its eventual widespread acceptance which, of course, did not come until many decades had passed from 1954. And any attempt to understand Brown is unavoidably affected by its paradigmatic status.
 
Professor Gedicks' essay, on which I commented briefly in my post, is It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery.

Eric Segall on Judicial Engagement and New Originalism
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted Judicial Engagement, New Originalism, and the Fortieth Anniversary of 'Government by the Judiciary' (86 Fordham L. Rev. Online (2018, forthcoming)) on SSRN.  Here is the abstract:

Forty years ago, Professor Raoul Berger published his originalism manifesto "Government by the Judiciary." Berger argued for deferential judicial review based on the clear text and original intent or original meaning of the Constitution. Now, almost half-a-century later, a new brand of Originalism has emerged among scholars and litigators advocating that judges use robust judicial review when evaluating economic legislation. This heightened form of judicial review may be sensible or not as a matter of public policy, but contrary to the claims of those urging judges to adopt it, judicial engagement as defined by New Originalists cannot be justified by the Constitution's text or original meaning. Such a strong form of judicial review can only be justified by a living Constitution approach to constitutional interpretation.

11/13/2017

India's Supreme Court Discovers Right to Privacy
Mike Rappaport

Recently, I have been studying comparative constitutional law.  It is a fascinating area, providing real world examples for the issues that constitutional theory explores.  What is more, the practices of other constitutional judiciaries are often unexpected.  I often find myself saying, “do they really do that?”

One example is the recent constitutional case, decided by the Supreme Court of India, finding that the Indian Constitution provides a nontextual right to privacy.  The Supreme Court of India is one of the most aggressive high courts in the world.  Perhaps its most aggressive action has been a series of cases where the court held that the basic structure of the Indian Constitution could not be amended, even though the constitution did not textually provide for that and in fact seemed to suggest otherwise.

The recent case finding a privacy right, Justice K S Puttaswamy V. Union Of India, is remarkable in many ways.  The opinion is over 500 pages long!  And it engages in a discussion of various issues one would not expect.

To begin with the decision addresses originalism.  It has a section entitled “Constituent Assembly and Privacy: Limits of Originalist Interpretation,” that purports to address the originalist objections.

In another section, the court explored philosophical and legal theory aspects of privacy.  Thus, it discusses the views in separate subsections of Judith Jarvis Thompson, Richard Posner, Robert Bork, and Catherine MacKinnon.  It is interesting that while the U.S. Supreme Court largely ignores foreign court decisions and foreign legal scholars, the Indian Supreme Court devotes so much space to these matters.

A Supreme Court decision in the United States would not do this.  One does not see long discussions of why originalism does not apply in the U.S.  And one certainly does not see significant discussions of the views of legal theorists.

The decision also appeared to overrule two prior decisions that refused to recognize a privacy right.  (Here, of course, the Indian Supreme Court does not represent a radical break with the practice of the U.S. Supreme Court.)

As is characteristic of the decisions of the aggressive high courts throughout the world, the announced right is not absolute or even determinate.  The privacy right “will have some reasonable restrictions in matters of national security and mutual interest of the citizens and the state.”  While this limitation might seem to lessen the effect of the court’s decision, it nonetheless allows the court more power to determine the content of the right, at its discretion.

Decisions like these are sobering.  It is almost enough to make one appreciate Justices Kennedy or Sotomayor.

Stephen Sachs: Originalism Without Text
Michael Ramsey

In the current issue of the Yale Law Journal, Stephen E. Sachs (Duke) has the essay Originalism Without Text (127 Yale L.J. 156 (2017)). Here is the abstract: 

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

And from the first substantive section:

 Consider the following hypothetical:

The society of Freedonia has no writing and no written law. Its legal rules are passed down through oral traditions, which provide for councils of elders to do limited judicial work. Freedonia goes through a period of legal tumult, in which influential council decisions are said to have misstated the traditional rules and to have exceeded the councils’ authority. A Great Council is held, in which it’s agreed—in substance, and without resolving on any canonical form of words—that all innovations to date are to be accepted as necessary evils, but that no new innovations are to be allowed, and that the ancestral traditions are otherwise to be preserved inviolate. Generations pass, and again some councils begin to overstep these limits, arguing that the traditions must be altered to accommodate modern circumstances. Other Freedonian elders criticize their fellows for failing to apply the law as approved at the Great Council.

Are these critics originalists?

(Note:  SRSRN version previously noted here).

11/12/2017

Rosalind Dixon: Constitutional Drafters as Judges
Michael Ramsey

Rosalind Dixon (University of New South Wales (UNSW) - Faculty of Law) has posted Constitutional Design Two Ways: Constitutional Drafters as Judges ((2017) 57(1) Virginia Journal of International Law 1) on SSRN. Here is the abstract: 

Constitutional scholarship often assumes a strict separation between processes of constitutional drafting and interpretation. Yet on constitutional courts around the world, the judges charged with interpreting a constitution’s text are often the same people who helped write or ratify that text only a few years before. This Article examines the phenomenon of constitutional drafters as judges and the insights to be gained from a study of such judges about the nature of democratic constitution-making — i.e., the degree to which constitution making inevitably takes place over an extended time period, involves processes of constitutional interpretation as well as drafting, and combines forms of legal and political judgment. It further suggests that insights of this kind may invite closer attention to the virtues of certain kinds of judges as agents of democratic constitutional change — i.e., judges who resemble a majority of democratic constitutional drafters by possessing both legal and political relationships, skills, and commitments, or who resemble many actual drafter-judges in that they are lawyer-politicians.

11/11/2017

Ilya Somin: Obama's Constitutional Legacy
Michael Ramsey

Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) has posted Obama's Constitutional Legacy (Drake Law Review, Vol. 65, No. 4, pp. 1039-1053, 2017 (Symposium on "President Obama's Constitutional Law Legacy")) on SSRN.  Here is the abstract:

President Obama leaves behind a mixed legacy on constitutional issues — one that is likely to remain controversial for a long time to come. Its most dangerous element may be the precedents he set for unilateral presidential initiation of war. More positively, the President played an important role in the establishment of a constitutional right to same-sex marriage, and his Administration’s policies unintentionally led to litigation that resulted in stronger judicial protection for federalism, property rights, and religious liberties. Obama’s judicial appointments are notable for their impressive professional qualifications and strong support for liberal judicial ideology. The long-term constitutional impact of the Obama presidency remains to be seen.

And from the same symposium, Eric Berger (University of Nebraska at Lincoln - College of Law): Of Law and Legacies (Drake Law Review, Vol. 65, 2017).  Here is the abstract:

This contribution to the symposium on President Obama’s constitutional legacy examines the relationship between constitutional law and presidential legacies. Americans respect or even revere many presidents despite their apparent constitutional violations. Some unconstitutional actions, though, appear more forgivable than others. The effect constitutional transgressions may have on a president’s more general legacy turns on a variety of contextual factors, including, among others, the president’s values and vision, the administration’s political successes and failures, political opponents’ principles and behavior, the challenges confronting the country, and the nature of the constitutional norms at issue. Constitutional law, as articulated by lawyers and judges, is not irrelevant to presidential legacies, but it rarely defines them. While some of President Obama’s unilateral executive actions raised serious constitutional questions, it is unlikely his legacy will turn on those measures’ legality. In most cases, President Obama followed past presidential practices and offered colorable (though admittedly contestable) legal defenses. Moreover, context helps explain, if not completely justify, many of Obama’s controversial actions. To this extent, historians and members of the general public are likely to view the Obama presidency through a broader, non-legal lens, considering, inter alia, the challenges he inherited, the policies he helped implement, and, especially, the vitriolic opposition he faced in Congress. Indeed, the lead constitutional story from the Obama years will likely highlight not particular executive actions but rather our constitutional system’s deficiencies more generally. American politics became increasingly dysfunctional during Obama’s presidency, and they have not improved since. Dysfunctional politics, of course, ought not immunize executive actions from legal attack. However, the depth of this dysfunction should encourage lawyers to broaden their focus beyond narrow questions of legality in individual cases to more fundamental concerns about the health of our constitutional democracy.

RELATED:  From a while back, and a different symposium, here is my essay Constitutional War Initiation and the Obama Presidency (American Journal of International Law, 2016, symposium on President Obama's international law legacy).

11/10/2017

Paul Stephan: Inferences of Judicial Lawmaking Power and the Law of Nations
Michael Ramsey

Paul B. Stephan III (University of Virginia School of Law) has posted Inferences of Judicial Lawmaking Power and the Law of Nations on SSRN.  Here is the abstract:

This article, presented at a symposium [ed.: hosted by the Georgetown Law Journal] occasioned by the publication of A.J. Bellia’ and Bradford Clark’s The Law of Nations and the United States Constitution, seeks to build on their work. It argues that the law of nations at the time of the founding can inform modern questions of statutory interpretation, at least those with structural constitutional implications. For one important statutory problem, namely a judicial inference of the authority to make federal common law from a grant of subject-matter jurisdiction, the legacy of the founding era’s law of nations still matters.

Bellia and Clark observe that the Supreme Court twice has invoked an inference of prescriptive power from an assignment of adjudicative authority ‒ what I will call a prescriptive inference ‒ to authorize the federal courts to make (their take on) international law into federal law. In 1917, the Court inferred congressional authorization for the federal courts to make federal common law based on international maritime law from the constitutional and legislative grants of admiralty jurisdiction. In 2004, the Court inferred a power to develop a federal common law of international-law torts from the 1789 Judiciary Act’s grant of jurisdiction over tort claims brought by aliens based on the law of nations. Each of these moves frustrates a central goal that, Bellia and Clark argue, the framers pursued. Both increase the risk that the federal judiciary, acting without support or guidance from the political branches, may disturb the friendly relations of the United States with foreign states.

These instances of the prescriptive inference present at least two puzzles. First, why make the inference with respect to admiralty and alien torts, but not alienage jurisdiction, at least in cases invoking the law merchant? The framers created federal alienage jurisdiction to get control over private-law disputes between Americans and foreigners, which State courts had mishandled to the harm of the nation. Why recognize a judicial power to override aberrant state rules in the case of admiralty and alien torts, but not other disputes involving aliens and one of the branches of the law of nations?

Second, where does private international law fit in all this? Did the framers hope to promote the development of uniform rules of recognition of foreign law and judgments through the federal courts, just as they expected the courts to apply the international law merchant and maritime law? If the answer is yes, what explains our modern approach, which allows States to disregard private international law whenever they choose?

I argue that prescriptive inferences generally are problematic and, in the case of international law, confront strong reasons for their avoidance. Contemporary practice with the law merchant and private international law offers a model for a kind of federalism that tolerates State law affecting foreign relations, while reserving to Congress the power to intervene to suppress State misrule. This model fits admiralty and human rights as much as international commerce and recognition of foreign law and judgments.

I also have a paper for the symposium (full list of participants here), which I will post shortly.  And here is a link to the Amazon page for the outstanding book by Professors Bellia and Clark.

11/09/2017

New Book on James Madison by Noah Feldman
Michael Ramsey

Recently published: The Three Lives of James Madison: Genius, Partisan, President, by Noah Feldman (Random House, Oct. 31, 2017).  Here is the book description from Amazon: 

Over the course of his life, James Madison changed the United States three times: First, he designed the Constitution, led the struggle for its adoption and ratification, then drafted the Bill of Rights. As an older, cannier politician he co-founded the original Republican party, setting the course of American political partisanship. Finally, having pioneered a foreign policy based on economic sanctions, he took the United States into a high-risk conflict, becoming the first wartime president and, despite the odds, winning.

Now Noah Feldman offers an intriguing portrait of this elusive genius and the constitutional republic he created—and how both evolved to meet unforeseen challenges. Madison hoped to eradicate partisanship yet found himself giving voice to, and institutionalizing, the political divide. Madison’s lifelong loyalty to Thomas Jefferson led to an irrevocable break with George Washington, hero of the American Revolution. Madison closely collaborated with Alexander Hamilton on the Federalist papers—yet their different visions for the United States left them enemies.

Alliances defined Madison, too. The vivacious Dolley Madison used her social and political talents to win her husband new supporters in Washington—and define the diplomatic customs of the capital’s society. Madison’s relationship with James Monroe, a mixture of friendship and rivalry, shaped his presidency and the outcome of the War of 1812.

We may be more familiar with other Founding Fathers, but the United States today is in many ways Madisonian in nature. Madison predicted that foreign threats would justify the curtailment of civil liberties. He feared economic inequality and the power of financial markets over politics, believing that government by the people demanded resistance to wealth. Madison was the first Founding Father to recognize the importance of public opinion, and the first to understand that the media could function as a safeguard to liberty.

The Three Lives of James Madison is an illuminating biography of the man whose creativity and tenacity gave us America’s distinctive form of government. His collaborations, struggles, and contradictions define the United States to this day.

But sort of oddly, the only blurb (on Amazon anyway) is from "Walter Isaacson, #1 New York Times bestselling author of Leonardo da Vinci" says:  “In order to understand America and its Constitution, it is necessary to understand James Madison.”  Hard to argue with that, but I'd like to know what Jack Rakove -- arguably the nation's leading modern Madison scholar -- thinks.

(Via Larry Solum at Legal Theory Blog).

11/08/2017

More on Jesner v. Arab Bank and the Original Meaning of the Alien Tort Statute
Michael Ramsey

At Just Security, a guest post by me: A Better Solution in Jesner v. Arab Bank.  Here is the introduction:

In Jesner v. Arab Bank, the Supreme Court is asked to decide whether corporations can be sued under the Alien Tort Statute (ATS).  The Court faced this question in the 2012 case, Kiobel v. Royal Dutch Petroleum Co., but avoided it by deciding the case on other grounds.  The court should avoid the issue again in Jesner – again because there is an easier way to resolve the case.

Jesner involves a claim by non-U.S. plaintiffs against a non-U.S. defendant (a bank based in Jordan) for injuries suffered at the hands of a non-U.S. terrorist group (Hamas) outside the U.S. (in Israel and the Palestinian territories).  The bank is alleged to have provided financial services to Hamas affiliates, but the only connection to the U.S. is that some of the funds are said to have been channeled through the bank’s New York branch.  The purpose of the ATS was not to facilitate this sort of claim, and this sort of claim would not have been subject to ATS jurisdiction when the ATS was originally enacted in 1789. 

For me, the key is that the original meaning of Article III of the Constitution does not extend federal jurisdiction to alien-versus-alien claims (except for certain subjects not relevant here), so when the Alien Tort Statute was adopted in 1789, a case like Jesner could not have been brought under it.  (The statute itself does not contain this limit expressly, but it was necessarily limited by the Constitution).  Here is the core argument:

Some scholars contend that the law of nations was understood to be part of the “Laws of the United States” in Article III, but Article III’s text and structure are inconsistent with this reading.  First, Article III specifically lists cases arising under “this Constitution, Laws of the United States and treaties.”  Thus the category “Laws of the United States” did not include either the Constitution or U.S. treaties, even though those are obviously in some sense laws of the United States: the Constitution lists them as part of “the supreme Law of the Land” in Article VI.  It is hard to see how the law of nations – which is not listed as part of Article VI’s supreme law – could be considered part of Article III’s “Laws of the United States” when the Constitution and treaties were not.  It seems much more likely that “Laws of the United States” in Article III meant laws made by the United States, i.e., statutes enacted by Congress.  That apparently was Hamilton’s view in Federalist 80, where in describing Article III’s categories of jurisdiction he referred to “all those [cases] that arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation.”

Further, the structure of Article III shows that, rather than making all of the law of nations a jurisdictional category, the framers picked the types of law-of-nations cases they thought most appropriate for federal jurisdiction.  Thus for example, Article III separately lists admiralty cases and cases involving ambassadors as categories of jurisdiction.  If not governed by U.S. statues or treaties (where there would be “arising under” jurisdiction), these cases would at the time usually have been governed by the law of nations.  But if the law of nations as a whole was already part of federal jurisdiction, these jurisdictional grants would be largely superfluous.  The better view of Article III is that the framers gave specific grants of jurisdiction over particular kinds of law-of-nations cases.  Again, this is confirmed by Federalist 80, in which Hamilton discussed the specific jurisdictional grants as cases likely governed by the law of nations, but made no mention of a general grant of jurisdiction over all law-of-nations cases.

Changes in modern law have opened the door to the Court creating federal common law causes of action that may extend jurisdiction to alien-versus-alien suits in unusual circumstances involving issues of particular concern to the federal government.  But this isn't one of those circumstances, so (I argue) the Court need not, and should not, make the extension here.  Declining to extend jurisdiction would keep the result aligned with Congress' original goals in passing the statute and would conform to the original meaning of the Constitution.

(Note: this is a somewhat more polished and focused version of a post I did here on this blog.)

For a similar but somewhat distinct argument by Professors A.J. Bellia (Notre Dame) and Bradford Clark (GW), see here (at Lawfare).  For a contrary view see here from Professor William Dodge (UC Davis) (also at Just Security; the discussion of the Bellia/Clark position is toward the end of the post).

11/07/2017

Stephen Gardbaum: What Makes for More or Less Powerful Constitutional Courts?
Michael Ramsey

Stephen Gardbaum (University of California, Los Angeles - School of Law) has posted What Makes for More or Less Powerful Constitutional Courts? on SSRN.  Here is the abstract:

It is sometimes suggested that one or other constitutional or supreme court -- for example, the Indian, U.S. or German -- is the "most powerful" in the world. And yet it is far from clear (a) what such power or "strength" of courts consists in; i.e., what measure, metric, criterion, conception, test, or indicia of power/strength is (usually implicitly) employed, (b) what the components of judicial power are under the given measure, and (c) what explains why some courts are more powerful than others. Is strength exclusively or mostly a function of formal legal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category, indeed have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. So it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short of fully completing the picture. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways. 

This article seeks to shed light on all three parts of the uncertainty surrounding claims as to the strength or weakness of constitutional courts: the measure, components, and explanation of judicial power. It begins by arguing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political disputes. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives such as international influence or strike-down rate. The article then suggests that the consequential nature of a constitutional court is a function of three broad categories or types of variable: (1) formal legal rules and powers, (2) legal and judicial practice, and (3) the specific or immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court's institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the article next identifies and discusses three explanatory variables: (1) deliberate constitutional design choices, (2) legal culture, and (3) general or structural political context. The article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors.

11/06/2017

Richard Primus and Kevin Stack on Serkin & Tebbe's "Is the Constitution Special?"
Michael Ramsey

Richard Primus (University of Michigan Law School), Christopher Serkin (Vanderbilt Law School), Kevin M. Stack (Vanderbilt University - Law School), and Nelson Tebbe (Cornell Law School) have posted Debate (Cornell Law Review, Vol. 102, No. 6, 2017) on SSRN. Here is the abstract: 

Do lawyers and judges use distinctive arguments when they interpret the Constitution? Should they? In a 2016 article, Is the Constitution Special?, Christopher Serkin and Nelson Tebbe argued that professionals do in fact interpret the Constitution differently from other sources of law, and they questioned the accepted justifications for that difference. Subsequently, the editors of the Cornell Law Review asked Richard Primus and Kevin Stack to respond to the article. The result is this “Debate,” which features several rounds of short responses, published together in the print edition. This format reveals disagreements among the authors about whether the Constitution is and should be interpreted distinctively, how the category “constitutional law” shifts over time, and how the Constitution’s mythic cultural status informs these questions. But it also uncovers much common ground, including a new way of understanding and debating the distinctiveness of constitutional interpretation. The authors conclude by considering what can be done to reduce some of the dangers that commonly accompany constitutional discourse.

11/05/2017

Ronald Cass: The Quest for Analytic Essentials in Law
Michael Ramsey

Ronald A. Cass (Center for the Rule of Law; Cass & Associates, PC; Boston University School of Law; Center for the Study of the Administrative State at George Mason School of Law) has posted Quality and Quantity in Constitutional Interpretation: The Quest for Analytic Essentials in Law on SSRN.  Here is the abstract:

Henry Manne wrote about many topics central to the law-and-economics canon but also over a period of more than a decade later in life worked on a theory of constitutional interpretation, producing a paper and lectures on this subject. His goal was to use insights from economics to improve constitutional analysis, in particular seeking to ground constitutional interpretation in quantitative assessments he hoped would be both true to the primary goal of constitution-makers and capable of providing guidance to judges in ways less subject to the pull of political preferences. Despite his concerns with controlling constitutional interpretation in practice, the instincts Manne brought to this endeavor ran more to matters of theory than to its implementation by judges, identifying important propositions for interpretation but failing (by his own admission) to produce a test that fulfilled his aspirations.

The strengths and weaknesses of this work provide an intriguing contrast with writings from Antonin Scalia, the American jurist and scholar whose approaches to both constitutional and statutory interpretation had a profound impact on jurisprudence over the past three decades. Like Manne, Scalia highly valued more determinate methods of analysis and was deeply concerned with the architecture of constitutional creation and effectuation. His focus, however, was more on the practical question of what happens when a particular sort of official has the power to implement a highly indeterminate test and what test best constrains interpretation in ways faithful to the interpretive task. Those goals undergird Scalia’s commitments to textualism and originalism.

Manne’s and Scalia’s approaches to constitutional interpretation are instructive on the purposes served by analytical tools in disparate settings. In particular, they offer contrasting and complementary visions, providing insights about the domains of law-and-economics, legal analysis, practical judgment, and perspective.

11/04/2017

David Sloss: California's Climate Diplomacy and Dormant Preemption
Michael Ramsey

David L. Sloss (Santa Clara University - School of Law) has posted California's Climate Diplomacy and Dormant Preemption (Washburn Law Journal, forthcoming) on SSRN.  Here is the abstract:

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate change, including agreements with both national and sub-national governments.

Governor Brown’s international diplomacy raises two distinct constitutional concerns. First, the Compact Clause provides: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact . . . with a foreign Power.” California’s cap-and-trade agreement with the Government of Québec (the “Linking Agreement”) is vulnerable to a constitutional challenge in this respect. Second, the Foreign Commerce Clause grants Congress power “to regulate Commerce with foreign Nations.” The Supreme Court has held that state laws may violate the Dormant Foreign Commerce Clause if they “prevent this Nation from ‘speaking with one voice’ in regulating foreign commerce.” The Linking Agreement may also run afoul of the Dormant Foreign Commerce Clause. Although the matter is not free from doubt, I conclude that the Linking Agreement does not violate the Dormant Foreign Commerce Clause. However, the Agreement may be unconstitutional under the Compact Clause, absent congressional consent. The Conclusion considers options available to Governor Brown to mitigate potential constitutional difficulties.

The compact clause is surprisingly understudied from an originalist perspective, and it seems likely that quite a few activities we take for granted are problematic under its original meaning.

11/03/2017

Great Reviews for "Scalia Speaks"
Michael Ramsey

Some highly positive reviews for "Scalia Speaks," the newly published collection of Justice Scalia's speeches edited by Christopher Scalia and Ed Whelan:

In the New York Times, from Alan Dershowitz, here, with this conclusion:

Liberal constitutional lawyers will continue to debate Justice Scalia many years after his death, because when it comes to jurisprudence, he was the most transformative jurist of our generation. His views cannot be ignored. That is his enduring legacy. But he was more than an influential justice. He was a great man, who lived life to the fullest — as a devout Catholic, a proud Italian-American, a devoted family man, a loyal friend, and a person of humor and culture who fondly remembered his roots in Queens and New Jersey. “Scalia Speaks” gives us a glimpse of the man, as I came to know and respect him, despite — no, because of — our arguments.

At SCOTUSblog, Ronald Collins: Justice Scalia’s living words.

If one would know Justice Oliver Wendell Holmes, one must read his memorable speeches, especially his Civil War addresses. The same holds true for Justice Antonin Gregory Scalia: If you would know Scalia the man, read “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.” In this volume, Christopher Scalia (one of the justice’s sons) and Edward Whelan (law clerk to Scalia for the October 1991 term) give posthumous voice to the late justice by way of a collection of 48 thematically organized speeches delivered between 1984 and 2014. The book’s eight parts – concerning law, life, learning, faith, virtue, friendship and more – show this immigrant son as an American proud of his heritage. Whatever side of the ideological divide one stands on, it is hard not to take heed of what Scalia said in a 1986 speech, the one offered up as the lead in this anthology:

[O]ur attachment to and affection for our particular heritage does not drive our society apart, but helps to bind it together. Like an intricate tapestry, the fabric of our society is made up of many different threads that run in different directions, but all meet one another to form the whole. 

And then this: “[W]e should not fail to be grateful for what America has given to us. It has given us, first and foremost, a toleration of how different we were when we came to these shores.”

That ethos echoes through the book, as Scalia speaks about the nation he loved, the education he valued, the courage of others he esteemed, the faith he cherished, the law and freedom he treasured, and the heroes and friends he venerated. Whether in a speech to students at his alma mater (Xavier High School in New York City), or in his remarks at Wesleyan University (to deliver the Hugo Black Lecture on freedom of expression), or in his words to members of B’nai B’rith in Washington, D.C., time and again the voice of the man leaps from the pages.

At Law360 (subscription required), Judge William Pryor has a review that begins:

For those who will forever celebrate the life and career of the late Justice Antonin Scalia or for those who simply want to learn more about this giant of American law, one of Justice Scalia’s sons, Christopher, and one of his former law clerks, Edward Whelan, have teamed up to publish an indispensable collection of the late justice’s best speeches ...

In today's Wall Street Journal (also subscription required), University of Virginia law professor (and former Scalia clerk) John Duffy has this review; at NRO Ed Whelan has excerpts, including:

This marvelous book surely will be required reading for anyone seeking to understand the mind of this great jurist and conservative thinker. But I would go further and say that it should be required reading for anyone who wishes to understand the mind of a great American, a figure so important to our history that his passing influenced the presidential election held months later. If Scalia Speaks can be said to have one fundamental flaw—one shared with the man’s life—it is that it ends too soon.

(Thanks to Ed Whelan for pointers).

11/02/2017

Christopher Walker: Restoring Congress's Role in the Modern Administrative State
Michael Ramsey

Christopher J. Walker (Ohio State University - Michael E. Moritz College of Law) has posted Restoring Congress's Role in the Modern Administrative State (Michigan Law Review, Vol. 116, 2018 forthcoming) on SSRN.  Here is the abstract:

In Congress’s Constitution, Josh Chafetz provides a timely and compelling historical account of the powers Congress possesses to compete with the other branches of government in our separation-of-powers framework. This Review makes two main observations. Particularly in light of the rise of the regulatory state, Part I explains how the toolbox of congressional powers Chafetz assembles can play a critical role in overseeing and influencing federal agency regulatory activities. Part II then offers a word of caution concerning Congress’s use of this toolbox without also passing laws. To restore Congress’s proper role in the modern administrative state, it is not enough for members of Congress to effectively oversee regulatory lawmaking. Congress must regularly legislate — to reauthorize and modernize the statutes that govern federal agencies, to respond to regulatory activity with which Congress disagrees, and to preserve the separation of powers between legislation and regulation.

And here is a link to Josh Chafetz' book Congress's Constitution: Legislative Authority and the Separation of Powers (Yale Univ. Press 2017).

11/01/2017

Daniel Hulsebosch and David Golove: Foreign Relations and the Law of Nations in the Federalist
Michael Ramsey

Daniel J. Hulsebosch (New York University School of Law) and David M. Golove (New York University School of Law) have posted 'The Known Opinion of the Impartial World': Foreign Relations and the Law of Nations in the Federalist (NYU School of Law Cambridge Companion to The Federalist (Jack N. Rakove & Colleen Sheehan, eds., March 2017) on SSRN. Here is the abstract:

Conventional accounts of The Federalist tend to overlook a critical and uncontroversial fact about the Constitution: the principal function it assigned the proposed new government was the conduct of the Union’s foreign affairs. By neglecting this simple point, readers too often are led to miss the forest for the trees. The Federalist’s central task was not to offer a general blueprint for republican government but, rather, to demonstrate the depth of the Confederation’s failures in foreign affairs and to explain why the new federal government would both govern more effectively in that realm and not imperil the republican commitments of the Revolution. This insight, in turn, reveals another: Even when The Federalist focuses on themes that seem far removed from the problem of foreign affairs — whether in analyzing the general principles of federalism or the separation of powers, the importance of energy in the executive or independence in the judiciary, or the deficiencies of popular assemblies — foreign affairs remains its ultimate subject. It was while developing a theory adequate to explain the interrelation between domestic and foreign governance that the authors of The Federalist were led to their deepest insights. Borrowing from Scottish Enlightenment ideas — which they filtered through their political experiences under the Confederation — they rooted their argument in theories of human nature and the social psychology of governance, which they then applied not only to diagnose the causes of the Confederation’s failings but also to explain the institutional arrangements that could overcome them. The result was an account of how the new federal government would be able to limit the influence of the destructive passions over the making of foreign policy and thereby take advantage of the bounded possibilities of peaceable, productive international relations.

10/31/2017

Frederick Mark Gedicks: Lawrence Solum and the Thesis of Immaculate Recovery
Michael Ramsey

Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery (DPCE [Diritto Pubblico Comparato ed Europeo] Online 31:3 (Oct. 2017), 653-60) on SSRN. Here is the abstract: 

Part of an online symposium on Professor Lawrence Solum's account of originalism, this essay criticizes Solum's implicit “thesis of immaculate recovery.” This thesis presupposes that constitutional meaning exists in the past as an object, and can be recovered in its pristine objective form, untouched by concerns of the present. The essay argues instead that the meaning produced by originalist method is neither immaculate nor even a recovery, and that present concerns are not obstacles to understanding the past, but the very ground of that understanding. It uses a classic American film, "It's a Wonderful Life," to illustrate the argument.

Without undertaking to speak for Professor Solum, I would say that this essay substantially overstates the claims of most originalist scholars and practitioners. 

(1)  Originalism does not "presuppose that constitutional meaning exists in the past as an object" in all cases.  Originalism presupposes that constitutional meaning exists in the past as an object in at least some cases.  Originalism is happy to concede that some constitutional phrases may be (as Judge Bork famously said) "inkblots" with no discoverable meaning, or (more commonly) that some constitutional phrases are fatally vague or ambiguous in their application to some circumstances (while being clear enough as applied to others).  While originalism does presuppose that at least some constitutional phrases had a fixed meaning in the past, this is not a radical presupposition.  We commonly presuppose this, as to words written in the past, whenever we discuss the historical meaning of written documents.  And, more to the point, we commonly presuppose this, as to constitutional phrases, such as the direction that there be one President elected every four years and that there be two Senators from each state.

(2) Originalism does not presuppose that "constitutional meaning .... can be recovered in its pristine objective form, untouched by concerns of the present."  To the contrary, originalism (if done right) is sensitive to the very legitimate concerns that (a) even where there was an objective meaning (that is, where "meaning exists in the past as an object"), it may be hard for us to recover that meaning due to its remoteness in time, gaps in the source material, etc.; and (b) modern concerns may influence our interpretations of the past.  Thus originalism does not contend that meaning can always be recovered in its "pristine" form; rather it contends that meaning can at least sometimes be recovered, at least on a more-likely-than-not basis.  Again, this is not a radical view of historical documents: we commonly think we can get at least a pretty good sense of their meaning despite their remoteness in time and our unavoidable biases.  And again, I think most people agree with respect to at least some constitutional phrases, such as the ones mentioned above.

The debate here isn't -- or shouldn't be -- about whether we can always find the historical meaning of constitutional phrases (of course we can't)  or whether we can sometimes find the historical meaning of constitutional phrases (of course we can).  The debate is really about how often we can find the historical meaning of constitutional phrases.  For originalism to have substantial weight, it needs to be able to claim that we can find the historical meaning of constitutional phrases a good bit of the time.  I take it that this is the proposition Professor Gedicks disputes, with a little overstatement for effect.

10/30/2017

Michael Stern on Emoluments and Congress
Michael Ramsey

At Point of Order Blog, Michael Stern: Why Congress Must Intervene in the Foreign Emoluments Litigation (commenting on the argument that the President is not covered by the Foreign Emoluments clause).  Core point:

I don’t know whether the government will actually argue in court that the FEC is inapplicable to the president. Presumably it hopes not to have to address the issue because the cases will be dismissed as non-justiciable (as they should be). But even if the government never makes the argument, it has now reserved the right to assert that the FEC does not apply to the president or vice president. This seems a little inconsistent with the promise previously made by Trump’s personal counsel, but Congress has now been given fair warning. The president (or his successors) may take the position in the future that the FEC is inapplicable. That means that the president could accept a present, emolument, office or title from a foreign government without seeking congressional consent or even notifying Congress of this acceptance.

This illustrates the danger that these cases pose to Congress’s institutional interests. Both history and text strongly suggest that the FEC is designed to be enforced by Congress, not by the judiciary. Judge Daniels indicated as much during the oral argument, stating: “Clearly the Constitution was written so that Congress would make the determination. . . . They don’t have to sit on their hands if they think there’s a problem. They can do something about it.”

The court is clearly right about this. But there is no one before the court representing Congress’s interests in this matter. Trump’s personal and political interests, the executive branch’s institutional interests, the views and interests of Trump’s political opponents and even the thoughts of officious intermeddlers [ed.: I prefer "public-spirited scholars"] like Professor Tillman are represented, but not Congress.

It is time for Congress to stop sitting on its hands. It should authorize House and/or Senate legal counsel to file briefs in the three FEC cases, politely explaining to the courts that this is none of their business. It should demand through its committees that the Department of Justice provide a straight answer as to whether the FEC applies to the president. And, while they are at it, the committees should take a hard look at Trump’s business interests and the arrangements that he has made to “scrupulously abide” by the Foreign Emoluments Clause.

This assumes, though, that Congress cares about its institutional interests.

RELATED:  More from Michael Stern on the substance of Professor Tillman's argument here.

10/29/2017

Philip Hamburger on the AIG Litigation
Michael Ramsey

At Liberty Law Blog, Philip Hamburger: From Kelo to Starr: Not Merely an Unlawful Taking but an Illegal Exaction.  From the core of the argument:

A property case even more important than Kelo v. City of New London (2005) began to wend its way toward the Supreme Court a few weeks ago. The new case is Starr International Company, Inc. v. United States, and unless the Supreme Court repudiates the lower courts, the case will lay down a strange principle: that the government can unlawfully deprive shareholders of their ownership and control as long as it does not seize their shares.

Starr International, and other shareholders of American International Group, are seeking with this suit to recover their ownership interest in AIG. The case may therefore seem just a footnote to the c. 2008 financial crisis, when the government supported many companies for the sake of the economy. The shareholders’ claim is that in the course of propping up AIG, the government, in violation of federal statute, demanded nearly 80 percent of equity in the company—ultimately depriving shareholders of their share of ownership and their voting control. Although the government did not physically take their shares—their formal indicia of ownership—it ignored federal law to seize most of their real share of ownership and their control.

Government interference in property rights is often associated narrowly with the Constitution’s Taking’s Clause, which bars government from taking private property for public use without just compensation. This was the provision that the Supreme Court notoriously misread in 2005, when it concluded in Kelo that government can take private property for transfer to a private developer.

But the Takings Clause centers on compensation for lawful takings, and it thus is not the only protection for property rights. Even more basically, government cannot exact property unlawfully. It must return any property that it acquires through an unlawful exaction.

Thus, whereas the Takings Clause requires just compensation for lawful takings, the more central constitutional point—at stake in Starr International—is that the government must return any property it gets hold of unlawfully. And here, where the government has sold the property it exacted, it ordinarily must return its ill-gotten proceeds—not as damages, but in lieu of the property itself.

This seems related to last year's Supreme Court case Nelson v. Colorado, about which I wrote a couple of posts (see here and here).

 

10/28/2017

Pamela Karlan: Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote
Michael Ramsey

Pamela S. Karlan (Stanford Law School) has posted Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote (William & Mary Law Review, forthcoming) on SSRN.  Here is the abstract:

The Constitution requires a decennial “Enumeration” of the U.S. population, following which seats in the House of Representatives are apportioned among the states “according to their respective Numbers.” Congress has enacted a default provision that makes this reapportionment essentially automatic.

It was not always so. The post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress’s failure, for an entire decade, to reallocate seats in light of the census results. The reasons for this failure, and the consequences of Congress’s ultimate response, continue to shape our politics.

Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. But none of these studies approaches the question from the perspective of legal doctrine. This essay aims to fill that space. It begins by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. It then turns to what happened in the 1920s and why. Finally, it explores the judicial response to the 1929 solution and describes how that response set the stage for the Reapportionment Revolution of the 1960s, which imposed a constitutional requirement of equipopulous congressional districts. Along the way, it recovers the lost history of earlier, congressional attempts to require population equality. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will occur in a context with striking similarities to the context a century before.

10/27/2017

James Cleith Phillips & Jesse Egbert: Advancing Law and Corpus Linguistics
Michael Ramsey

James Cleith Phillips (University of California, Berkeley, School of Law, Students) and Jesse Egbert (Northern Arizona University) have posted Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis (Brigham Young University Law Review, forthcoming) on SSRN.  Here is the abstract:

The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so it must more fully incorporate principles from survey and content analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility and accuracy in the important quest to determine the meaning of the law. This paper highlights some of those principles to provide a best-practices guide to those seeking to perform law and corpus linguistic analysis.

(Via Larry Solum at Legal Theory Blog, who says "An important paper.  Highly recommended.  Download it while it's hot!")

This is another paper in the forthcoming BYU symposium on corpus linguistics -- I have noted a number of the others already.  I will post a complete list once the symposium is published.

10/26/2017

Another Twist in the Emoluments Litigation
Michael Ramsey

Via Josh Blackman, apparently the President's lawyers now say that maybe the President isn't covered by the Foreign Emoluments clause, or at least they are not conceding that he is:

[T]he Department of Justice submitted a letter to Judge Daniels (SDNY) in CREW v. Trump. ... The important development is that the government is no longer conceding that the Foreign Emoluments Clause applies to the President. The Justice Department has carefully avoided this issue, only operating under the assumption that the clause did apply, but now the issue is stated clearly.

(Full text of the letter at the link).

RELATED:  From the editors of the Weekly Standard, Trump, Emoluments, and the Professoriate.  Key points:

The president’s most effective defender on the subject of foreign emoluments is not his own Justice Department but a pair of law professors: Seth Barrett Tillman, a law professor at Maynooth University in Ireland, and Josh Blackman, a professor at the South Texas College of Law. Tillman and Blackman have filed amicus briefs with each of the courts considering a foreign-emoluments suit. Their primary contention: that the Constitution’s ban applies only to persons holding office “under” the Constitution and thus only to appointed positions, not elected officials. While president, both George Washington and Thomas Jefferson accepted personal gifts from foreign dignitaries (a portrait of Louis XVI and a bust of czar Alexander I, respectively). When the Senate, in 1793, asked Treasury Secretary Alexander Hamilton to “lay before the Senate, at the next session of Congress, a statement of the salaries, fees, and emoluments ... of every person holding any civil office or employment under the United States,” Hamilton’s submission included nothing about any elected official.

The Department of Justice argues that the term “emolument” “refers to benefits arising from personal service in an employment or equivalent relationship.” But Tillman and Blackman’s more sweeping case is, in our view, peremptory.

And more broadly:

What catches our attention about this case, though, isn’t so much the legal argument for or against the foreign emoluments clause’s relevance to the president. What most interests us is the extent to which judicial liberals and proponents of the “living Constitution” have suddenly turned into constitutional textualists. Ordinarily, of course, constitutional law professors at our most venerated institutions are happy to find all sorts of emanating penumbras and hidden principles in the Constitution...

Suddenly, liberal legal authorities are scrutinizing the actual text of the Constitution—and not just their favorite phrases in the First and 14th Amendments! Amicus briefs by law professors alleging Trump to be in violation of the clause are packed with discussions of the meaning of a single constitutional word: “emoluments.” What did it mean in Blackstone’s Commentaries? What did it mean in Adam Smith’s Wealth of Nations? One professor, John Mikhail of the Georgetown School of Law, undertook to produce definitions of the disputed term from scores of dictionaries from the 17th and 18th centuries.

I agree that the latter point is especially striking.  Many people are willing to embrace originalism when they think it takes them where they want to go.  That does not make them originalists, but it sharply undercuts the argument that originalists are outliers deploying a bizarre and unworkable methodology.  Will the historians and law professors who criticized originalism during the Gorsuch hearings attack the originalist premises of the emoluments litigation?  So far I have not seen them do so. 

(I should note, though, that Professor John Mikhail is unfairly singled out in the editorial, as he has been interested in recovering the Constitution's original meaning long before the emoluments litigation and is in no sense an opportunist here).

10/25/2017

The Original Fourth Amendment and Unreasonable Searches and Seizures
Mike Rappaport

Recently, Laura Donahue, a professor at Georgetown Law and an expert on digital privacy, came to the Originalism Center at the University of San Diego to talk about her recent article, "The Original Fourth Amendment."  The article is a long one, nearly 150 pages long in a law journal, and it covers the development of search and seizure law through English, Colonial and American history.  One of the messages that comes across is the familiar one that the Americans were Whigs, who took one strand of English thought that was protective of liberty, and wrote it into the Constitution.  (Another area where some have argued this was true was the First Amendment.)

One interesting question is the meaning of the famous language in the Amendment prohibiting “unreasonable searches and seizures.”  Many people who reject originalism or embrace a nonconstraining originalism argue that this language is inherently vague or a delegation to the future.  In essence, their argument is that unreasonable could mean a variety of things and therefore judges should decide and give it content based on their view of what would be beneficial.

But Donahue disputes this argument.  She argues that “unreasonable” means “against the reason of the common law.”  In other words, the Fourth Amendment incorporates the principles of the common law and therefore those principles should be followed.  Unreasonable does not involve vague language or a delegation to judges.  It has a specific meaning that follows the common law in this area.

Donahue presents some significant evidence for her conclusion.  It is significant to note, however, that Donahue’s argument only works if one accepts the view that the Constitution is written in the language of the law -- that is, that the Constitution uses terms that have legal meanings.  If the Constitution is written in ordinary language, then  unfamiliar legal terms could not be found in the document.

Donahue's interpretation employs legal language in two ways.  First, in ordinary language, the term “unreasonable” would not normally be understood as referring to the reason of the common law.  Donahue cites to Johnson’s dictionary, who does not refer to the reason of the common law.  It is only legal works as well as a legal dictionary that make that reference.

Second, an ordinary language reader would not understand the meaning of the term “unreasonable” even if they knew it referred to “against the reason of the common law.”   To understand what that term meant, one would have to be familiar with the common law.

I should hasten to add that I do not regard this feature of Donahue’s argument as a defect.  As I have noted before, John McGinnis and I have argued that the Constitution is written in the language of the law and therefore its terms must be understood to include legal terms.  I believe that Donahue’s argument is a good example of how we can best understand the Constitution by reference to legal language.

Podcast on "The Unexpected Scalia" (With my Further Comments)
Michael Ramsey

The Federalist Society has posted this podcast discussion of David Dorsen's new book The Unexpected Scalia: A Conservative Justice's Liberal Opinions Mr. Dorsen discusses the book with moderator/questioner Professor Alan Morrison (GW) and me.  Here is the introduction to the podcast:

Antonin Scalia was one of the most important, outspoken, and controversial Justices in the past century. His endorsements of originalism, which requires deciding cases as they would have been decided in 1789 [ed.: um, that would be, in accordance with the original public meaning of the text at the time of enactment], and textualism, which limits judges in what they could consider in interpreting text, caused major changes in the way the Supreme Court decides cases. He was a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammelled gun rights, political expenditures, and the imposition of the death penalty. However, he usually followed where his doctrine would take him, leading him to write many liberal opinions. In The Unexpected Scalia, a close friend of Justice Scalia David Dorsen explains the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century.

Author David Dorsen and former Scalia clerk Michael Ramsey joined us to discuss Mr. Dorsen's newest book.

I don't actually get to say too much in the podcast, but my basic take on the book is probably apparent.  It is, I think, both an important and annoying book.  But, to adapt the familiar snark in a more positive way, the important part is not annoying and the annoying part is not (very) important.

The important part is that Dorsen does a great job of documenting the extent to which Justice Scalia reached "liberal" (meaning politically left-of-center) results in his judicial opinions.  Most people are familiar with Scalia's vote in the flag-burning case (for the burners) and perhaps with a few of his major criminal procedure cases concerning the Fourth and Sixth Amendments (favoring the criminal defendants).  Dorsen's book shows that these are not outliers.  Of course Scalia reached many "conservative" (politically right-of-center) results too, but his liberal results are not just a few isolated cases -- they are a material part of his judicial output.  Two of my favorites, mentioned by Dorsen, are Hamdi v. Rumsfeld (in dissent, concluding that a U.S. citizen who fought with the Taliban could not be held in military custody as an enemy combatant) and Pacific Mutual Life Ins. Co. v. Haslip (in concurrence, concluding that the due process clause imposes no limit on awards of punitive damages).  To refute anyone who argues that Scalia simply voted the Republican Party's political preferences, there is now a single conclusive citation: Dorsen's book.  It's worth reading simply to get a full sense of Scalia's "unexpected" (and underappreciated) side.

The annoying part is that it's really two books in one, and the second book -- not advertised in the title -- is an underdeveloped and rather mean-spirited attack on originalism.  Only about half the book discusses Scalia's liberal opinions.  The other half discusses Scalia's "conservative opinions" or opinions not easily categorized.  Of these, it is generally extremely critical, and the criticism is woven around the theme that originalism is a fundamentally flawed methodology.  However, this criticism is not innovative or particularly deep -- it repeats some standard and to my mind not very persuasive arguments.  These include, for example, that originalism unrealistically claims certainty about text and history; that judges (especially Justice Scalia) do not get history right; and that originalism cannot deal with new situations.  All these arguments have been made before, and answered (whether  or not persuasively).  It's not clear that Dorsen adds anything to the debate -- and in any event, it's not clear what any of this is doing in a book supposedly about Scalia's liberal opinions.

But Dorsen's criticisms of originalism do raise an interesting point that he does not fully explore.  One may ask, why did Scalia reach so many liberal results?  Dorsen seems to believe that Scalia genuinely followed what Scalia thought was right in terms of text and history, regardless of what result that produced.  (Of course, this what most Scalia admirers think too).  There is, though, another view.  Perhaps Scalia was more of a libertarian than many people understood.  Perhaps Scalia actually liked his "liberal" results because they are libertarian results (protecting flag burning, protecting certain aspects of Fourth Amendment privacy). Perhaps, while Scalia did not like flag burners or criminals, he understood that their rights were also the rights of ordinary citizens who might run afoul of the government, with whom he sympathized.

This story would fit better with Dorsen's criticisms of originalism -- one could say that Scalia used originalism instrumentally to reach results he liked, including some that were liberal/libertarian.   [Professor Eric Segall takes this view, see here.] Interestingly, though, Dorsen -- who knew Scalia well and has no sympathy for originalism -- is not persuaded by this story.  He thinks Scalia was genuine, if misguided, in feeling compelled to reach results that he (Scalia) disliked.  Dorsen just thinks Scalia was often mistaken in his history and analysis.

That strikes me as implausible.  Scalia was a very smart person, as all agree.  And he had very strong opinions, judicially and politically.  No doubt he made mistakes.  But it seems unlikely that he consistently made mistakes forcing him to reach outcomes he disliked.  If there had been an overwhelming argument for an outcome he liked, I think he would often have found it.

In truth, the two themes of Dorsen's book are at war with each other.  If originalism at times impelled Scalia to liberal results he disliked, that suggests that originalism is a robust, constraining, coherent methodology.  If originalism is an incoherent, malleable and unmanageable methodology, that suggests that it could not have impelled so strong a personality as Justice Scalia to results he disliked.

I have my own views on which of Dorsen's themes is the right one, which I won't belabor here.  I'll conclude by saying that the book is well worth reading to contemplate this core question about Scalia and originalism, despite the book's flaws and in addition to its contribution in documenting Scalia's liberal opinions. 

10/24/2017

Jeffrey Toobin: Originalist Assassin
Mike Rappaport

Recently, Ann Althouse had a great post criticizing Jeffrey Toobin’s account of oral argument in the Supreme Court's political gerrymandering case. Toobin had criticized Neal Gorsuch, portraying him as violating norms and as ineffective. But Althouse makes a strong case that this is largely in Toobin’s imagination. Sadly, this is not the first time Toobin has unfairly criticized an originalist justice. In this past post, I criticized Toobin’s unfair attack on Justice Thomas’s criticism of nonoriginalism. Apparently, Toobin sees his role as in part attempting to persuade the New Yorker’s audience that originalists are just so wrong.

What did Toobin have to say about Gorsuch? First, Toobin does not like that Gorsuch raised the question how the Supreme Court could justify holding political gerrymandering unconstitutional.

According to Toobin:

The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries; of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.

I find it hard to be sympathetic with Toobin here. That Gorsuch employed a rhetorical strategy used by originalists is no criticism. In fact, in a case like the political gerrymandering case, where very few sympathize with such gerrymandering, arguing that the constitutional text does not allow this is both the strongest rhetorical strategy and the correct reason for not deciding the case to restrict such gerrymandering.

And that some of the other justices believe—or at least claim to believe—that their opinions (which are not derived from the constitutional text) nonetheless actually involve an “interpretation” of the Constitution is no reason for Gorsuch to accept that argument. Certainly those justices hardly refrain from calling their actions “interpretations” of the Constitution because originalists like Gorsuch don’t agree with that description. Moreover, this claim of the nonoriginalist justices is weak: their nontextual opinions are not an interpretation of the Constitution, but simply “constitutional law.”

Toobin then describes Ruth Bader Ginsburg as if she somehow destroyed Gorsuch's argument. But Toobin cannot do this without seeming to violate journalistic standards. He describes Ginsburg's actions based, not on observation, but on his impressions, and perhaps imaginary ones at that.

Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal.

In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.) (emphasis added).

But as Althouse writes:

Might have been . . . seemed to . . . Are we in fantasy land? I wasn’t there but either an audible woo echoed or it didn’t. And Gorsuch wasn't silenced: He was the next Justice to ask a question. But speaking of feeling as though you’re back in high school, Toobin sounds like a schoolboy muttering “oh, burn.”

The weakness and unfairness of Toobin's attack here (and against Thomas) is upsetting. But I suppose there is a good aspect to his attacks: they suggest that Toobin is worried about originalism and that it may come to replace the jurisprudence of nonoriginalists like Ginsburg.

Mark Pulliam on Judge Bork and DC v. Heller
Michael Ramsey

At Liberty Law Blog, Mark Pulliam asks (on the 30th anniversary of the Senate's rejection of Judge Bork for the Supreme Court), would Bork have voted with Justice Scalia in DC v. Heller?  His answer -- maybe not:

Why do I suggest that Bork might have voted differently from Kennedy? As far as I can tell, Bork, who died in 2012, never commented publicly on Heller, but his general approach to constitutional interpretation is that courts should defer to the political branches unless the Constitution clearly puts the subject “off limits” from majoritarian rule. The Second Amendment, with its odd phraseology (“A well regulated Militia, being necessary to the security of a free State”), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an “ink blot”) or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.

This is not mere speculation. In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as “somewhat ambiguous[].” In the same passage, he stated that “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government.” While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right.  ...

It is possible that a Mr. Justice Bork, had he read the briefs and listened to the oral argument in Heller, would have been persuaded to join Scalia’s majority opinion—as in fact Anthony Kennedy did. Musing about an issue in a broadly focused book is not the same as reaching a decision in a concrete case. Still, Bork was a clear thinker who was stubbornly committed to principle. For decades, he decried judges’ overriding democratically enacted laws based on fanciful interpretations of vague constitutional text in their pursuit of  a  policy result they find desirable.

I think this is a plausible account.  Even though Scalia and Bork were roughly contemporaries, Bork was much more influenced by the older versions of originalism that reacted to the overreaches of the Warren Court. Scalia represented an early version of the more modern originalism -- he was more committed to applying the Constitution's original meaning than he was to judicial restraint, despite his frequent rhetoric celebrating democracy.  As the post indicates, there are a range of Scalia opinions in addition to Heller that Bork might well not have joined.

10/23/2017

Justice Scalia and How Originalism Fits into the Fabric of the Law
Mike Rappaport

In my last post, I explored whether Justice Scalia was an old or a new originalist, concluding that he was a new originalist in one way, but an old originalist in another way.  In this post, I want to look at another way that Scalia advocated an older type originalism.

One feature of newer originalist theories is that they have focused on how originalism fits into the law more generally.  The most significant example of this involves the theory of precedent.  It is well known that some originalists reject precedent, while others allow for it.  But the more fundamental theoretical question is why.

Justice Scalia accepted precedent.  In fact, he sometimes poked fun or criticized his co-originalist, Justice Thomas, by claiming that Thomas did not believe in precedent.  I am not sure that Scalia was correct, but it is clear that he accepted precedent.

But Scalia’s approach to precedent was unsatisfactory.  One problem was that he did not explain the circumstances when he would follow and when he would not follow precedent.  As a result, Scalia was open to the charge that he followed precedent based on his evaluation of the results.

But another problem with Scalia’s approach is that he did not describe what kind of law precedent is.  Put differently, why is it ok to follow precedent?  Is precedent based on the constitution, on statute, or common law?

Some of the newest originalist theories answer these questions.  Some people, like Lee Strang, argue that precedent is required by the judicial power.  Other people, like Gary Lawson, argue that the Constitution forbids precedent.  And others – like John Harrison and John McGinnis and I – argue that the Constitution allows for precedent as a matter of general common law and statute.  Under this latter view, the Constitution does not require or forbid precedent, but assumes that it will be established by the common law or by statute.

I am not aware that Scalia even thought about this question (although he may have).  But to my knowledge, he did not address it.  I am not finding fault here.  He had other fish to fry, coming earlier in the modern development of originalism.  But his approach was nonetheless incomplete.

Another issue is what kind of law governs the interpretation of the Constitution.  Here again I am not aware of Scalia addressing this issue.  (Scalia did address the type of law governing statutory interpretation a bit, claiming that the use of legislative history was unconstitutional, but I think he was mistaken here.)  But the most recent theories of originalism do address these questions, including those of Baude and Sachs and of McGinnis and Rappaport.  Since this is a complicated question, I will discuss it in a separate post in the future.

Larry Solum on Corpus Linguistics
Michael Ramsey

At Legal Theory Blog, Legal Theory Lexicon: Corpus Linguistics.  From the introduction: 

...  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  ...

Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or "plain meaning textualism") has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

...

During the period when living constitutionalism and purposivism were the dominant approaches to the interpretation and construction of statutes, the precise linguistic meaning of statutory and constitutional provisions was relatively unimportant.  Because courts did not consider themselves bound by the meaning of the words and phrases, fine distinctions about meaning were much less important than the identification of the purposes and values that would determine the outcome of constitutional and statutory disputes.  But with the turn to formalist approaches like originalism and textualism, questions of meaning became significantly more important.

One approach to conventional semantic meanings relies on linguistic intuitions and dictionary definitions.  But this method has important limitations.  Linguistic intuitions are not infallible, and they may be affected by motivated reasoning.  Dictionary definitions are based on limited data collection and subjective judgments by the lexicographers who compile the dictionaries.  This raises the question whether there are better, more accurate, and more objective approaches.

The gradual ascent in the importance of the linguistic meaning of legal texts occurred at roughly the same time as another important development in the legal academy--the rise of interdisciplinary approaches in general and of empirical legal studies in particular.  This focus on empirical and interdisciplinary methods lead legal scholars (especially those with training in linguistics and the philosophy of language) to corpus linguistics--a data driven approach to linguistic meaning.

In sum, the turn to corpus linguistics in law is (at least in part) a result of the new emphasis on the meaning of legal texts (formalism) and the turn to interdisciplinary methods (empirical legal studies and linguistics).

Further discussion follows under the headings "How Does Corpus Linguistics Work?", "Application of Corpus Linguistics to Legal Interpretation", and "Limitations on Corpus Linguistics".  In conclusion:

The introduction of a new methodology to legal theory is a rare event, but corpus linguistics is one of the black swans.  It is still early days, but the use of corpus methods has already begun in earnest--both in the courts and the academy.  The Bibliography provides many of the key sources in a literature that still can easily be read in just a few days.

I have been posting frequently on corpus linguistics because  (as Professor Solum's post indicates) it is the "new kid in town."  I am less sure of its staying power.  It remains to be seen whether, especially as it applies to constitutional originalism, it produces results that are plausible yet contrary to the outcomes indicated by traditional originalist sources.  So far I have not seen that it does, but I remain open to persuasion.

10/22/2017

Josh Blackman on the Emoluments Oral Argument
Michael Ramsey

At Josh Blackman's Blog: Analysis of Oral Arguments in CREW v. Trump.  From the introduction:

On Wednesday, October 18, the oral arguments in CREW et al v. Trump began at 10:30 a.m. in courtroom 11A. The right side of the courtroom was packed with press, and the left side was filled with attorneys affiliated with the case. An overflow room was opened on the 26th floor for spectators to watch on a closed-circuit feed. Brett Shumate argued in support of the Government’s motion to dismiss.  (Shumate was featured in a recent NLJ profile for his defense of the Government in the Emoluments Clause case, the DACA litigation, and the Sanctuary City suits). Deepak Gupta argued in opposition to the Government’s motion to dismiss, and Joseph Sellers provided a brief argument about how discovery would proceed if the Plaintiffs prevailed. With only a five-minute recess, the argument stretched until about 1:10 p.m. Judge Daniels should be commended for his excellent preparation—he came engaged and ready to ask probing questions of both sides. The Court announced that a decision would be issued in about thirty to sixty days.

Neither a transcript nor an audio recording is currently available. This post is based on my notes...

Professor Blackman then summarizes the key arguments (his headings): Article III Standing, Zone of Interest, Jurisdiction and Political Question, Meaning of Emolument, and Discovery if Motion to Dismiss Denied.

On "Meaning of Emolument" he reports:

Shumate at several junctures referred to the “original public meaning of emolument,” which included profits that arise from the provision of services connected to an office. Judge Daniels—who did not reference founding-era dictionaries, corpus linguistics, or any historical practice for that matter—offered a different definition of “emolument.” Namely, “compensation.” He derived that definition from the Domestic Emoluments Clause, which links the President’s “emoluments” to his salary or compensation. The Government rejected this definition as too broad, but Judge Daniels continued to push this definition with a hypothetical: if a foreign government offered the President $1 million for signing a treaty, how would it be characterized? The Government maintained that such an offer would be a “present,” which is also forbidden by the Foreign Emoluments Clause, but would not be an “emolument.” Judge Daniels dismissed the reference to a “present.” Seth and I had offered a different answer to this question in our briefs: because of the quid-pro-quo nature of the offer, it would not be a present, but would be a “bribe,” which is an enumerated ground for impeachment. Whether or not the President follows through, and signs the treaty does not matter, it is still a bribe. It is entirely predictable what sort of headlines would result from a DOJ lawyer using the word “impeachment”  in court, so Shumate’s answer is understandable, although not satisfying.