04/27/2017

Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment
Mike Rappaport

In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand.  In these cases, one might expect that the skills of the professional historian would be the most valuable.  Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians.  Instead, originalists have a made a large number of important advances in this area.  Thus, even in the hard areas, one cannot dismiss the methods of originalists, especially when conducted in the proper way.

Back in the 1980s before I became a law professor, I was first exposed to originalist interpretation of 14th Amendment.  At the time, I thought the Privileges or Immunities Clause probably incorporated the Bill of Rights; the Due Process Clause was simply procedural due process, and the Equal Protection Clause provided for equality generally.  Various people made these arguments and they seemed to make sense.

But then I remember reading through the congressional debates on the Amendment and having the toughest time.  Members of Congress seemed to be saying the most absurd things.  How could they be so confused?

Obviously, someone was confused but it wasn’t necessarily the members of Congress.  I had come to the debate with preconceived notions about the meaning of the Amendment and somehow the debate did not conform to my ideas.

But that was back in the 1980s when the rebirth of originalism was in its infancy.  Over time, as the movement and your author have matured, the obvious mistakes of that approach have been recognized.  In particular, the problem of assuming that we know the meaning of the clauses, when we know one plausible meaning of the words, is seen as a serious problem.  There may be many possible meanings (including legal meanings that do not conform to ordinary language understandings).

Originalists have made great progress in the last generation in appreciating the many possible meanings of the 14th Amendment.  Thus, they have come to understand that the Privileges or Immunities Clause might protect various fundamental common law rights in the states instead of (or in addition to) protecting the Bill of Right.  They also recognize that the Clause might be understood as either protecting substantive rights or protecting only against unequal treatment as to the rights.

Originalists have also recognized many additional possible meanings of the Due Process Clause.  In addition to the possibility that the Clause only protects “procedural due process,” it might protect certain vested rights and certain equality rights.  Other scholars have argued it protects natural rights.  Yet other scholars have argued that it has the narrow meaning by only applying to departures from existing law, but does not forbid the legislature from establishing whatever procedures it desires.

Finally, there is the Equal Protection Clause.  One significant advance is that the recognition that the Clause might not require equality as to all laws, but instead might identify a category of matters, “protection of the law, that involves remedial matters (such as protecting people from having the rights they enjoy under the law infringed).  Under this view of the Clause, the state has an obligation to provide to people this type of protection (but only this type) equally.

Clearly, then, originalists have uncovered a significant number of historically plausible meanings of the Amendment.  This number of possibilities has represented a great advance.  But it now places the burden on originalists to determine what is the correct meaning.  In my view, this will depend on considering a variety of factors, including the more common meaning and the underlying purposes of the provision.

One might have thought that these advances, in this very difficult area, would have been the result of historians who were more conversant with the historical usage of these terms and concepts.  But to my mind, it has not been primarily the result of historians.  Instead, originalist scholars have made significant progress, such as Akhil Amar, Jack Balkin, Randy Barnett, Steve Calabresi, Nathan Chapman, Chris Green, John Harrison, Kurt Lash, Mike McConnell, Melissa Saunders, Ryan Williams and others who I am no doubt forgetting.

In some cases, I am sure the originalist scholars have benefitted from the work of historians.  I know, for example, that one of these originalist scholars greatly learned from William Nelson’s book on the 14th Amendment, even though that scholar does not agree with Nelson’s read on the Amendment.  Instead, some of the material Nelson discussed and some arguments he made proved persuasive or useful, even though some of the remainder was problematic.  Of course, I am more familiar with the law review literature and I may be missing some important contributions by historians.  But overall, my strong sense is that these developments have been more the result of law professors than historians.

There is, of course, an important role for historians.  But even in the area where we have been most at sea, historians have not dominated the field.  Instead, it has been a joint effort of many scholars, some of whom are historians, but one where originalists have made, at least to my mind, the principal contributions as to the specific original meanings.

Two from Steven Calabresi
Michael Ramsey

In the mail, from Steven Calabresi (Northwestern):

(1) Steven G. Calabresi and Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648 (2016).  Here is the abstract:

This article examines the original meaning of the equality guarantee in American constitutional law. It looks [at] the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Even if one doesn't accept the ultimate conclusion, the article's historical evidence on the focus by the Fourteenth Amendment's framers on prohibiting the idea of a caste system is impressive and important for analyzing multiple issues under the Amendment.

(2) Steven G. Calabresi, Annual B. Kenneth Simon Lecture: On Originalism and Liberty, 2015-2016 Cato S. Ct. Rev. 17 (2016).  From the introduction:

My talk is titled “Originalism and Liberty” because I am an originalist when it comes to constitutional interpretation and thus agree with the methodological approach of Justices Antonin Scalia and Clarence Thomas. I should mention at the outset that I clerked for former Justice Scalia, and I deeply admire him and am grateful to him because he was my mentor for 34 years. Nonetheless, in the 25 years since I left Washington, D.C., to teach law at Northwestern University, I have studied the history of the Constitution and of the Fourteenth Amendment and Magna Carta in great depth and have concluded that the original meaning of those documents is somewhat more libertarian than Justice Scalia, for example, realized. I want today to present briefly my reasons for reaching the conclusion that originalism means endorsing a presumption of liberty and not a presumption of constitutionality when courts decide the cases that are before them.1 In endorsing a presumption of liberty, I am agreeing with Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty, even though I do not agree with everything Randy says in that book.

And also:

Before beginning my proof that originalism leads to a presumption of liberty, I need to explain what I think it means to be an originalist. I think originalism requires that when one interprets any legal text, whether it be the Constitution, a statute, a contract, or a Supreme Court precedent, one must give the words of the text one is interpreting their original public semantic meaning. This means consulting dictionaries, grammar books, and newspapers published at the time the legal text became law. I do not believe it is appropriate for judges to consult the original intent that animated the adoption of a clause but only the original semantic public meaning of the words of the text. Laws adopted by dead people bind us but their unenacted intentions do not. My view of originalism is thus the view expressed by Justice Scalia when he spoke at Catholic University in the fall of 1996. In that speech, he said:

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. . . . The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the  intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.

My task in this essay is to explain what I think was the original semantic public meaning of several words and clauses that appear in the text of the Constitution, the Bill of Rights, and the Fourteenth Amendment, which I think should lead to a presumption of liberty.

04/26/2017

Historians and Originalists Part II: The Adequacy of Originalist Scholarship
Mike Rappaport

In a prior post, I discussed some of the disagreements between historians and originalists.  I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation.  Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task.

Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th Century language will be unknown to them.  Now certainly this is an overstatement.  Much of the language of the 18th century is pretty accessible to modern Americans, even if some parts are not (and even if we do not know which parts we are mistaken about).  Obviously, this includes clear language such as each state enjoying equal voting rights in the Senate.  But it also includes less clear language, such as the Confrontation Clause (which allows the accused the right “to be confronted with the witnesses against him), where we know some of what it means, even if we don’t know the details without further research.

The knowledge of ordinary historians will be even less useful to the extent one believes as I do that much of the Constitution is written in legal language.  If that is the case, then the legal historian may have significant advantages, but other types of historians may miss the legal meanings and the legal methods that lawyers at the time employed to discover that legal meaning.

But none of this should be understood to deny the importance of historians generally and the possibility that their “knowing how” knowledge can help to discover useful information.  Still the key question is whether the methods of law professor originalists are adequate to discovering the original meaning of provisions.

In part, this depends on the information that is required to determine the original meaning.  For original methods originalism, the type of originalism to which I subscribe, one needs to know a variety of pieces of information.  Here let me mention the most important pieces.  First, one needs to know the meaning of the words, including both the ordinary and legal meaning of the terms.  One also needs to know the interpretive rules that were employed, both in ordinary language and in legal language.  Further, one needs to know the purposes of provisions (understood as lawyers at the time would have), and therefore reference to the values of the people at the time will be relevant.  Finally, one needs to know the legal history of institutions.

The typical law professor originalist article, when done well, looks at the provision at issue; the discussion of the provision from the drafting and ratification conventions; precursors to the provision in the states, in the colonies, under English law; and early interpretations of the provision by the Congress and the courts.  In addition, one typically looks at dictionary meanings – both ordinary and legal dictionaries – and usages in other documents of the relevant words.  This may represent a small or large amount of materials, depending on the clause.

What is significant about this type of research is that it will show how people at the time interpreted the provision, including the meaning of words, and the values they appealed to.  It will also show a good deal of information about the words generally and precursor provisions. This can often be a tremendous amount of information.  Since it will often involve specific discussion of particular provisions, it is easier to interpret than more general language which may have different meanings in different contexts.

I don’t want to argue that this information is all one needs, but it will often provide very powerful evidence.  For example, this type of information as to the Recess Appointments Clause provided strong evidence that it had the narrow meaning I argued for and that Justice Scalia defended in his concurrence in the Noel Canning case.  In fact, the people who argued for the broad meaning did not really with conviction contend that it had the broader original meaning.  Instead, they simply claimed that the language was ambiguous and therefore could be “liquidated” through practice.

In many cases, this information will be adequate to the task.  It is true that this information is not complete.  But no historical evidence ever is.  It is always subject to the possibility that other information may be found relevant to the issue.  And if historians can come up with additional relevant evidence, that would be great.

But in terms of the practice of originalism, the question is how often historians come up with information that actually changes scholars’ views as to the original meaning of a provision.  The mere possibility that they will sometimes come up with that information is not enough to show that originalist investigations are inadequate.  One wants to know how often this occurs.  Based on my experience, it is not obvious that the work of historians is regularly needed before anyone can provide a strong case of the original meaning of a provision.

In my last post in this series, I will discuss a case where originalist scholars have struggled to understand the original meaning of a provision and what the role of historians might be as to this interpretive effort.

Seth Barrett Tillman: Business Transactions and President Trump's 'Emoluments' Problem
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Business Transactions and President Trump's 'Emoluments' Problem on SSRN.  Here is the abstract: 

Recently, it has been argued that the term “emoluments”—as used in the Constitution’s Foreign Emoluments Clause and Presidential Emoluments Clause—reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. There is good reason to doubt the correctness of this position.

(For related thoughts by Eugene Kontorvich and Andy Grewal, see here.)

ADDENDUM:  Also -- of course -- here from Robert Natelson.

04/25/2017

Historians and Originalists Part I: The Context of the Debate
Mike Rappaport

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement.

One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend to be on the left, while most of the originalist law professors are on the right.  The methodological differences are bad enough without being magnified by politics.  For example, even when I talk to right wing historians who are somewhat sympathetic to originalism, I still find myself often disagreeing with their methodological points.  These methodological differences are important.  Matters only become worse when we add political fuel to the fire.

Another problem is that the two disciplines often are pursuing different goals.  Originalists are seeking the original meaning, with different originalists defining that differently – for example, some seek the legal meaning, others the ordinary meaning.  Historians are often concerning with other issues, such as why different groups sought a particular provision or how provisions changed over time.

Thus, I was pleased to see two articles written by Stanford History Professor Jonathan Gienapp presenting the historians side of the argument with a lot more understanding of and respect for originalism than historians ordinarily exhibit.  That is not to say that I agree with all of his arguments, but his essays are a big improvement.  Happily, Gienapp’s argument has been engaged by various originalists, including Randy Barnett, Mike Ramsey, and Larry Solum.

Much of Gienapp’s first essay argued that the newer originalist theories purported to avoid having to possess detailed knowledge about history.  Instead, these originalists would merely need to know the linguistic meaning of the terms.

In Gienapp’s second essay, he argues that the newer originalists have underestimated how difficult it is to understand late 18th century English.  Instead, they need to appreciate that historians are specialists in understanding the past and therefore their skills are needed to genuinely understand the original meaning.  The techniques by originalist law professors are generally not adequate.

Ultimately, I agree with Professor Gienapp in at least this sense: the more knowledge and information we have, the better.  Historians and law professors bring different perspectives and different skills to the table and generally our understanding of the past will benefit if we have more knowledge.  Thus, historians can make a contribution.  But even if more knowledge is better than less, the key question is how important different types of knowledge is and how much each contributes to the enterprise of discovering the original meaning.

In my next post, I want to focus on a more specific question – whether the techniques used by originalists are usually adequate to the task of determining the original meaning and how often the contributions of historians are needed.

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa? Part 2
Andrew Kent

This is the second of two posts examining whether the Constitution and Bill of Rights, in their original public meaning, provided protections extraterritorially to citizens or noncitizens.

In Part I, I argued that there are some textual hints that the Constitution has a domestic focus, but that it is not possible to definitively discern the geographic scope of constitutional rights from the bare semantic meaning of the text. It does seem clear, however, that constitutional rights are not reserved for citizens only, unless that word is specifically used to describe the rights holders—which it rarely is.

Context

When very common words are used in the constitutional text—for example, people or person discussed in my earlier post—and thus original semantic meaning cannot be derived from eighteenth century word usage alone, Randy Barnett and other public meaning originalists advise us to look at the "publicly known purpose" for which the provisions were added to the Constitution.

Nothing about the contexts in which the original Constitution or the Bill of Rights were framed and ratified suggests any purpose to protect with constitutional rights noncitizens outside the United States. Certainly many provisions of the Constitution were meant to benefit noncitizens—but when they were in the United States or, if not, under then treaties, the law of nations, statutes, or the common law. Examples include Article III diversity jurisdiction and arising under (treaty) jurisdiction.

Looking at the Bill of Rights specifically, the overriding purpose was to quiet public fears that the new federal government would overreach, harming the liberties of the American people or intruding into areas reserved for the states. And as Leonard Levy relates, James Madison—the primary author of the Bill— stated that in the proposed Bill he “had recommended only the familiar and avoided the controversial. He warned against enumerating anything except ‘simple, acknowledged principles.’" As Justice Robert Jackson wrote, "extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment [at the Founding]. Not one word can be cited."

The Allegiance-Protection Framework

In addition to the purpose and context of the Constitution, the key to understanding how the geographic or person domain of the Constitution was originally understood is a common law and political framework that underlay the document, the protection-allegiance framework. As Philip Hamburger has shown, and I have discussed at length (here, here, here),  at the Founding, protection of the laws was understood to be stand in a reciprocal relationship with allegiance to the government. Citizens or subjects owed allegiance and were protected by the courts and the law of the land, whether home or abroad. Noncitizens or non-subjects when visiting or residing in Britain or America owed a local or temporary allegiance to the government, and so they temporarily had corresponding protection. But that protection disappeared when the obligation of allegiance did—when the foreigner left the country. As Blackstone put it, “as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.” At common law, alien enemies—nationals of a country with which Britain was at war—were excluded from protection of the law even if they were within the country.

There is plenty of evidence showing that statesmen and constitution-drafters of the Founding era considered the allegiance-protection framework to be fundamental. Hamburger shows how the framework appeared in the Declaration of Independence, important resolves of the Continental Congress, and state constitutions. There is also plenty of evidence showing that this common law allegiance-protection framework was understood to qualify and limit the broad text of constitutional rights, but this evidence is found in the post-ratification period. Direct evidence from the ratification debates that the framework was implicitly understood to limit the reach of constitutional rights is slim. Madison did indicate to the Virginia convention that alien enemies would not be able to sue in federal court—notwithstanding the broad language of Article III. But other clear examples like this are lacking.

But the "simple, acknowledged" rights found in the Constitution and Bill of Rights were primarily taken from the common law—habeas corpus, the jury, the privilege against self-incrimination, due process, the rights to confront witnesses, bear arms, petition the government, etc. It would have made sense to look to the common law to understand who could claim these rights, in what places, and in what contexts. This move—looking to the common law to contextualize the scope of constitutional rights—is supported, as I have argued here, by the kind of public meaning originalism advanced by John McGinnis and Michael Rappaport. As I understand it, this method of originalism holds that readers of the Constitution would have understood that they needed to apply the appropriate interpretive rules to the document, and that those rules could have included common law allegiance-protection rules about who could claim rights.

But what about constitutional provisions framed not as individual rights, but as limitations on government power—does the allegiance-protection framework also govern the scope of these provisions? Could Congress, for example, pass a bill of attainder directed at an alien enemy? That person could not access the courts to claim the protection of the law in order to challenge the constitutionality of such a bill. But the constitutional text is framed as a flat prohibition on any bills of attainder. I think the right answer is that Congress could not pass any bills of attainder, no matter who directed at. This is in part based on the unqualified text of the provision at issue, and in part based on the horror with which the Founding generation viewed the abusive practice of such bills.

Case by case analysis like this would need to be conducted on other constitutional provisions that refer not to rights holders but to limitations on government power.

 Conclusion

Although this conclusion is not free from doubt, I believe the best understanding of the original meaning of the Constitution is that a non-U.S. citizen like Hernandez, who was injured by the U.S. government in foreign territory, would not have a constitutional right to assert. But this does not mean that such a person would have been bereft of any legal recourse at the Founding. A non-enemy alien injured in his or her person (or property) by a U.S. official could have brought a tort suit, even if this injured party was a noncitizen injured outside U.S. territory. This suit could have been brought in U.S. court and, most likely, also in the courts of the foreign country where the injury occurred. The substantive law would have been non-federal: either foreign law, common law, or the general law of nations. As I and others have discussed, however, a combination of legal developments in the courts and Congress in the twentieth century mean that today, someone like Hernandez generally must bring a tort suit under the substantive law of the Constitution. Once that occurred, tort remedies became dependent on the rules about the geographic scope of constitutional rights for noncitizens.

Stephen Sachs on BNSF Railway Co. v. Tyrrell
Michael Ramsey

BNSF Railway Co. v. Tyrrell (argued to the Supreme Court today, see SCOTUSblog summary here), Stephen E. Sachs (Duke) this interesting amicus brief, also posted on SSRN.  Here is the SSRN abstract:

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is it unnecessary to decide, it has the further defect of being wrong.

Respondents’ case hinges on whether Congress in 1910 affirmatively licensed state personal jurisdiction over railroads doing business within state lines. It did not. The 1910 Act specified which federal courts might hear certain actions under the Federal Employers’ Liability Act. It did not say which state courts might do so—only *that* state courts might do so. Later discussions of doing-business jurisdiction in fact referred to a preexisting standard for state personal jurisdiction, established well before International Shoe. Respondents’ theory gets things backwards: Congress did not reshape state personal jurisdiction to fit the statutory rules for federal courts; rather, it shaped the statutory rules for federal courts to fit preexisting rules for state personal jurisdiction.

While Congress in 1910 left state personal jurisdiction as it found it, this Court’s modern decisions have not. Respondents do not ask for Daimler to be overruled, nor do they deny that Daimler requires reversal in the absence of a statutory override. This is enough to end the case.

That being so, the Court has no need to reach an important constitutional question. This Court has never squarely decided whether Congress may license the exercise of state personal jurisdiction that might otherwise be invalid. It should not do so in this case. “[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” and here there are further reasons for reticence. The United States did not participate before the Montana courts, and limiting Congress’s power in this case may have the effect of striking down other federal statutes or may undermine ongoing legislative efforts and treaty negotiations. If the Court is going to restrict the power of Congress, it should wait for a case in which Congress has actually tried to use the power in question, and in which the United States has been available to defend it.

The Court may be tempted to reach the issue regardless, simply because it seems easy—so easy, in fact, as to obviate any need for caution. Congress cannot license what the Constitution forbids, and the Constitution is widely thought to forbid particular types of personal jurisdiction. Yet that widespread belief is actually mistaken. When originally enacted, the Fifth and Fourteenth Amendments did not themselves impose any fixed limits on personal jurisdiction. They required only that a court *have* jurisdiction, over the subject matter as well as the parties—with the substantive doctrines of personal jurisdiction supplied by separate bodies of general and international law. The Fourteenth Amendment, in particular, was correctly understood by this Court in Pennoyer v. Neff to create a federal question of what had been merely a matter of general law, outside the scope of Article III appellate review. Modern doctrine is correct to hold that federal courts can review state judgments for their compliance with jurisdictional standards. But it is wrong to suggest that those standards are supplied by the Constitution itself, and so may not be altered by treaty or by Congress’s enumerated power under Article IV.

To be clear: this brief does not suggest that the Court conduct its own inquiry as to the original law of due process, or even discuss the issue in any way. The necessary arguments were not briefed at the certiorari stage; they were not raised in the Montana courts; and they have been overlooked by decades of contrary decisions. Yet if the Court now finds itself in a deep hole of incorrect precedent, the least it can do is to stop digging. It should reverse and remand this judgment on statutory grounds, and it should wait for an appropriate case in which to consider the powers of Congress.

04/24/2017

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa?
Andrew Kent

[Editor's note:  For this guest post we welcome Professor Andrew Kent, Professor of Law at Fordham Law School, one of the nation's leading scholars on the extraterritorial Constitution.  This is part 1 of a two-part discussion.]

Thanks to Michael Ramsey, Mike Rappaport, and the University of San Diego School of Law's Center for the Study of Constitutional Originalism for inviting me to talk earlier this month about whether the Constitution, in its original public meaning, provided extraterritorial protections to either U.S. citizens or noncitizens.

This is highly salient now, both because the United States government conducts a wide array of activities outside U.S. borders that might affect constitutional rights, if such rights exist—e.g., surveillance, drone strikes, detentions and interrogations— and because the Supreme Court is hearing this term an important case about the issue.

As I have written previously, based on a review of case law, political branch practice, and commentary over the course of U.S. history:

"[T]erritorial location has historically been a crucial determinant of protection from the Constitution and the courts. Generally speaking, both citizens and noncitizens within the United States were protected by the Constitution and could access the courts to claim protection. But, before the twenty-first century, noncitizens outside the sovereign territory of the United States were held to lack any constitutional rights. On the other hand, U.S. citizenship or lawful permanent residence in the United States did at times provide some extraterritorial rights protection."

The dispute currently at the Supreme Court, Hernandez v. Mesa, concerns a Fourth Amendment damages claim brought by the family of a teenaged Mexican national killed by a U.S. border patrol agent. The U.S. official was standing in the United States when he fired his weapon; the teen was in Mexico when he was hit. The primary dispute is whether the fact that the injury occurred outside the borders of the United States means that Hernandez, as a non-U.S. citizen, lacks Fourth Amendment rights to be free from an unreasonable use of deadly force.

The parties' briefing is doctrinal and precedent-based, not originalist. One of the important precedents is a 1990 decision, United States v. Verdugo-Urquidez, in which the Supreme Court held—consistent with the traditional view—that the Fourth Amendment did not apply to the search in Mexico by U.S. law enforcement of a Mexican national's house. But Hernandez's family argues that the categorical rule of Verdugo, basing constitutional protection on citizenship and territorial location, was undermined by Boumediene v. Bush in 2008, which famously applied a flexible, totality-of-the-circumstances kind of approach to deciding that the Constitution protected habeas corpus for noncitizen detainees at the U.S. naval base in Guantanamo Bay, Cuba.

Unlike the parties, in this post I want to put aside post-1789 case law to focus instead on the original public meaning of the Constitution's text.

The Text

With very few exceptions (such as the Thirteenth Amendment), the Constitution does not overtly specify the places where rights apply. But some hints about scope can be found in the Preamble and Supremacy Clause, the provisions Akhil Amar has called " the Constitution’s most sustained meditation upon itself." As I noted in an article about extraterritorial constitutional rights, the Preamble states the goal of securing liberty "to ourselves and our posterity," and notes that "this Constitution" is ordained and established "for the United States of America." The Supremacy Clause describes the Constitution as "the supreme law of the land." The law of the land was a term of art in eighteenth century English and colonial law, referring to domestic as opposed to international law—the common law and legislation.  (See Michael McConnell and Nathan Chapman on due process and the law of the land.) Together the Preamble and Supremacy Clause suggests a domestically-focused document, protective of the people of the United States in the United States via fundamental domestic law. 

The People, Persons, and Citizens

Cutting against a domestic-only reading is the fact that almost all rights and limitations in the Constitution are written in broad and open-ended terms. For example, most rights in the Fifth Amendment are held by "person[s]," with the one exception—the Takings Clause—being phrased a  simple limitation on power. Sixth Amendment rights are for "the accused." Bills of attainder and ex post facto laws may not be enacted by Congress, full stop.

This open-ended language seems like it must be meaningful. A provision such as the Article IV Privileges and Immunities Clause shows that the drafters knew how to limit rights to U.S. citizens only, if they had wanted to.

What about the rights holders specified by the text of the Fourth Amendment, the provision at issue in Hernandez? The Supreme Court in Verdugo and some scholars such as Amar read the phrase "the People" in the Fourth Amendment as a term of art, referring to a collective, domestic group, the same "We the People of the United States" referenced in the Preamble, in Article I section 2's provision that "the People of the Several States" shall elect House members, and in the First, Second, Ninth, and Tenth Amendments. According to Amar, the core meaning of "the People" referred to "First Class Citizens," the group who were voters, jurors, and militia members. Somewhat similarly, in Verdugo, the  Court read the People" in its original meaning to be the "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." The Court contrasted "the People" with the broader and more encompassing term "person" in the Due Process Clause.

If this is right, Fourth Amendment rights would seem to be available to "the People" (including paradigmatically U.S. citizens) everywhere, but to non-members of the People nowhere. As I have argued, however, I am quite skeptical reading the term "the People" (or the allegedly broader term "person") to have this kind of significance. Examining key precedents for the Bill of Rights—U.S. state constitutions and proposed amendments to the Constitution offered by state ratifying conventions—one sees an array of terms used to describe rights holders: people, person, man, subject, individual, freeman, resident, inhabitant, member. The use of these different terms seems to have been indiscriminate in almost all cases, rather than intended to convey important information about the scope of rights holders.

[to be continued -- ed.]

Beyond the Text: Justice Scalia's Originalism in Practice
Michael Ramsey

I have posted a new essay on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice (Notre Dame Law Review, 2017, Forthcoming).  Here is the abstract

This article, part of a symposium on the late Justice Antonin Scalia, considers Justice Scalia’s use of constitutional originalism as a practical methodology, as reflected in his judicial opinions. Its aim is not comprehensive, for that is likely beyond the scope of any single article. Rather, its goal is to identify central and perhaps unexpected components of Justice Scalia’s approach as well as to identify areas where his methodology remained undeveloped. Part I describes four prominent aspects of his use of originalism to decide cases. In particular, it discusses ways in which Justice Scalia went beyond the conventional textualist focus on the Constitution’s words and phrases and direct evidence of the ways they were used at the time of enactment. Although critics have used these departures to accuse Scalia of inconsistency, this Part argues that they are better understood as components of an originalist methodology that was less strictly textualist than is often supposed. Part II identifies four areas central to practical applications of originalism where Justice Scalia did not fully develop his approach, and where a textualist account seems unlikely to provide ready solutions.

04/23/2017

Balkinization Symposium on "The Framers' Coup"
Michael Ramsey

At Balkinization, a symposium on Michael Klarman's book The Framers' Coup: The Making of the United States Constitution (Oxford Univ. Press 2016). Here is a complete list of contributions, from contributors Jack Balkin, James Fox, Laura Kalman, Jud Campbell, Sandy Levinson, Christina Mulligan, Calvin Johnson, Maseeh Moradi, Ryan Williams, Mark Graber, Steven Griffin and Michael Klarman.

Here is the book description from Amazon:

Americans revere their Constitution. However, most of us are unaware how tumultuous and improbable the drafting and ratification processes were. As Benjamin Franklin keenly observed, any assembly of men bring with them "all their prejudices, their passions, their errors of opinion, their local interests and their selfish views." One need not deny that the Framers had good intentions in order to believe that they also had interests. Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself.

The Philadelphia convention could easily have been a failure, and the risk of collapse was always present. Had the convention dissolved, any number of adverse outcomes could have resulted, including civil war or a reversion to monarchy. Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories: the rebellion of debtor farmers in Massachusetts; George Washington's uncertainty about whether to attend; Gunning Bedford's threat to turn to a European prince if the small states were denied equal representation in the Senate; slave staters' threats to take their marbles and go home if denied representation for their slaves; Hamilton's quasi-monarchist speech to the convention; and Patrick Henry's herculean efforts to defeat the Constitution in Virginia through demagoguery and conspiracy theories.

The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests.

Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since.

And from Ryan Williams' contribution to the symposium:

As with any significant new history of the Constitution’s Framing, it seems inevitable that Klarman’s book will be pressed into service by the contending sides in the decades-long debate over “originalist” theories of constitutional interpretation.  Klarman himself has refreshingly little to say on this topic, preferring to lay out the history and allow the interpretive conclusions to fall where they may.  And Klarman’s history may prove challenging for at least certain types of originalist theories, particularly those that depend on an unduly romantic conception of popular sovereignty or implausible notions of the Framers’ foresight to legitimate their enterprise.

But as Stephen Smith observes, originalists as a group are generally untroubled by the notion of a “merely human” Constitution.  The fact that the Constitution was drafted by historically situated, fallible individuals working under constraints of limited time, knowledge, and foresight is a familiar starting point for virtually all theories of originalism.  Nor would the fact that the Constitution was drafted and ratified under conditions that fell far short of a democratic ideal necessarily doom the originalist endeavor.  Indeed, when viewed from a modern perspective, the anti-democratic features of the drafting and ratification process to which Klarman draws our attention pale in significance to the much more familiar democratic deficiencies resulting from exclusions of African Americans, Native Americans, and women.  Moreover, to the extent Klarman identifies lingering substantive anti-democratic deficiencies resulting from the Framers’ decisions, these deficiencies are clustered almost entirely in the Constitution’s “hard-wired” provisions, such as those providing for equal State representation in the Senate, the Electoral College method of choosing the President, and the onerous amendment processes set forth in Article V.  (pp. 625-28).  Because proponents of virtually all interpretive theories tend to read such provisions the same way, Klarman’s account gives us little concrete basis for choosing one interpretive theory over another.

In the end, the question confronting modern interpreters is very similar to the one presented to members of the ratifying public in 1787 and 1788 – namely, whether we are willing to accept the highly imperfect document bequeathed to us by the Framers in Philadelphia as a source of binding law.  Like the vast majority of the ratifiers at that time, members of the present generation had no opportunity to participate in that document’s drafting and many might well prefer any number of alternative governmental arrangements if given the choice. Nevertheless, once the universe of realistic alternative choices is clearly in view, some may find reasons for believing that the merely human Constitution of 1787 – whatever its flaws or shortcomings – is nonetheless acceptable enough to warrant their recognition.

04/22/2017

Mikolaj Barczentewicz: The Limits of Natural Law Originalism
Michael Ramsey

Mikolaj Barczentewicz (University of Oxford - University College) has posted The Limits of Natural Law Originalism on SSRN. Here is the abstract: 

In “Enduring Originalism,” Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, “positive” (“original-law”) originalism of Stephen Sachs and William Baude. It is that aspect of the paper that I focus on in this short essay. Contrary to their strong claims in that direction, Professors Pojanowski and Walsh are far from establishing that positive originalism is deficient and that that their version of natural-law-based originalism offers a plausible alternative to positivist originalism. There is also a worry that, despite professing sympathy towards the “positive turn” in originalism, “Enduring Originalism” is at its core an account of what Professors Pojanowski and Walsh think the law should be, and not what the law is; precisely the kind of argument the positive turn militates against.

(Via Larry Solum at Legal Theory Blog).  

And here is a link to Enduring Originalism by Pojanowski and Walsh.

04/21/2017

The Syria Strike and the Quasi-War with France
Andrew Hyman

In 2015, Michael Stokes Paulsen and Luke Paulsen wrote this: "Congress’s power 'to declare War' is an on-off switch; it is not a 'dimmer switch' with which to control the Commander in Chief."  I believe that is generally correct as an original matter, for the reasons that the Paulsens explained, because the framers refused to give Congress any power to "make" war (i.e. to conduct it).

In the case of the recent missile strike on Syria, Professor Paulsen writes that the strike was unconstitutional because  Congress did not declare war or otherwise authorize the strike against Syria.  However, Congress has indeed been authorizing hostile acts against Syria.  Just to take one recent example, Congress decided a few months ago to give the president authority to send surface-to-air missiles to Syrian rebels.  According to news reports, President Obama signed that bill in December.  Must the president now only destroy Syrian aircraft by providing missiles to rebels who will do it, instead of using tomahawk missiles to destroy Syrian planes sitting on the ground? 

In 1798, Congress authorized the president to take some specific warlike measures against French naval ships, as part of a quasi-war (see An Act further to protect the commerce of the United States).  The legislation was later upheld by the U.S. Supreme Court in the case of Bas v. Tingy.  The legislation authorized U.S. "vessels" to take action against French vessels.  But suppose a naval battle between a French ship and an American ship was raging near shore off the coast of Florida, and American cannons happened to be situated on shore, and the question became whether the president of the United States had power to authorize those cannons to fire upon the French ship in order to help the American ship.  Would anyone really say "no"?  Would anyone say that the legislation only authorized a partial or imperfect war of the naval kind, so that any use of land forces would have been illegal?  The problem with that line of reasoning is that it would defeat the original constitutional meaning of the war power which allowed the conduct of war to vest in the president.  It is not entirely clear how the lessons of the Quasi-War with France apply now to Syria, but I do think it would be silly to suppose that the Constitution required the U.S. ship to sink without firing the cannons from shore at the French ship.

Kurt Lash on Originalism and the Future of Religious Freedom
Michael Ramsey

At Liberty Law Blog, Kurt Lash: Originalism and the Future of Religious Freedom.  From the introduction:

For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship. Presumably, one of these principles of national freedom involved religious freedom. I say presumably only because historians remain divided over whether the Fourteenth Amendment declared that the principles of free exercise and non-establishment now bound the states (“incorporated” those principles, as the Supreme Court would say). There is good reason to believe that people in 1868, when the Fourteenth Amendment was ratified, did view the first eight amendments to the Constitution as representing national privileges or immunities. Certainly the drafter of the Fourteenth Amendment, Representative John Bingham (R-Ohio), thought that was the case.

But even if this is correct, we are left with a conundrum: Which principles represented the understanding of religious freedom and governmental power in the realm of religion in 1868?

All true, and an issue that Justice Scalia, for example, simply failed to address.  See, for example, his dissenting opinion in McCreary County v. ACLU, in which he assumed that the principles of non-establishment from 1787-88 applied to a case brought against a local government under the Fourteenth Amendment.

04/20/2017

Gregory Maggs: A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution (85 Geo. Wash. L. Rev. 397 (2017)) on SSRN.  Here is the abstract

Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. To help readers understand and evaluate such claims, this piece describes the formation and content of the Articles of Confederation and explains four ways in which the Articles may provide evidence of the original meaning of the Constitution. The two appendices to this piece contain an annotated copy of the Articles of Confederation and a table linking provisions of the Constitution to their antecedents in the Articles.

This is another in Professor Maggs' useful series that also includes examinations of Founding-era dictionaries, the records of the Philadelphia Convention, and the ratification debates.

04/19/2017

"Inherent" Judicial Power
Michael Ramsey

Yesterday's Supreme Court decision in Goodyear Tire and Rubber Co. v. Haeger unanimously held that federal courts have "inherent" power to sanction defendants for wrongfully withholding evidence, but only to the extent of actual harm caused to the plaintiff.  From the majority opinion (per Justice Kagan):

Federal courts possess certain “inherent powers,” not conferred by rule or statute, “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U. S. 626, 630–631 (1962). That authority includes “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32, 44–45 (1991). And one permissible sanction is an “assessment of attorney’s fees”—an order, like the one issued here, instructing a party that has acted in bad faith to reimburse legal fees and costs incurred by the other side. Id., at 45.

Here is my brief comment on the idea of "inherent" powers, a concept that sometimes causes difficulties.  In our system of delegated powers, federal courts, like all other federal entities, can exercise only powers granted to them by the Constitution or federal law.  Any other conclusion violates the Tenth Amendment, which, though sometimes dismissed as a tautology, was added to the Constitution to make exactly this important point.  Calling something an "inherent" power does not obviate the need to find a source for it in the Constitution.  (The same important point applies to "inherent" executive powers of the President).  It would be better to call such things "independent constitutional powers" to emphasize that these are powers possessed independent of any grant from another branch but not powers possessed independent of the Constitution.

So does the Constitution grant federal courts independent constitutional powers such as the one posited in Goodyear?  Probably.  The only plausible constitutional source is Article III, Section 1, which declares that "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  It's very likely that this provision conveys substantive power to decide cases and conduct judicial proceedings.  Nothing else in Article III conveys this power; if Article III does not convey it, federal courts (including the Supreme Court) depend on Congress to provide it, but that's not how Congress proceeded in the 1789 Judiciary Act, which established courts but did not give them all their necessary case-adjudicating powers.  As a result, assuming the sanctioning power was part of the traditional powers of courts, it would be conveyed to federal courts by Article III, Section 1, and thus is an independent constitutional power (or "inherent" power, if you prefer).

And by parallel reasoning, the textual source for "inherent" executive powers (such as foreign affairs powers) is Article II, Section 1.  See (of course) here.

But I wish Justice Kagan had cited Article III, Section 1 in that key paragraph, just to make it all clear.

04/18/2017

Eugene Kontorovich on Emoluments
Michael Ramsey

At Volokh Conspiracy, Eugene Kontorovich, George Washington was the first president to stay in the real estate business.  Here is the introduction:

In [the April 14] Wall Street Journal, I have an op-ed, "Did George Washington Take ‘Emoluments’ "? It examines the first president’s extensive and hands-on business affairs to get a better handle on the nature of constitutionally prohibited “foreign emoluments.

Here’s an excerpt (article requires a subscription):

Mr. Trump is not the first president to have business dealings with foreigners. That was actually George Washington, whose conduct in office has been a model for every president.

By the 1790s, Washington was wealthy primarily because of real estate — renting and selling his vast holdings. As with Mr. Trump’s hotels, Washington’s renters or purchasers could include foreigners.

The president received constant reports from his nephew and subsequent managers and wrote to them at least monthly… This belies the notion that the Constitution limits a president’s management of, or benefit from, his existing business ventures.
***
One letter written by Washington deserves great attention in the current debate. On Dec. 12, 1793, Washington wrote to Arthur Young, an officer of the U.K. Board of Agriculture, an entity newly created and funded by Parliament at the initiative of William Pitt. The president asked for Young’s help in renting out his Mount Vernon lands to secure an income for his retirement. Not finding customers in America, he wondered if Young, with his agricultural connections, could find and organize some would-be farmers in his home country and send them over.

The op-ed is drawn from a larger research project on Washington’s business interests and the prohibition on emoluments.

(Thanks to Seth Barrett Tillman for the pointer).

RELATED:  Andy Grewal (Iowa) has posted this article on SSRN: The Foreign Emoluments Clause and the Chief Executive (Minnesota Law Review, Vol. 102, 2017).  Here is the abstract:

The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting "emoluments" from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read "emolument" as referring to any payment received from a foreign government, such that even a diplomat’s payment of a room reservation fee at the Trump Hotel establishes an impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that "emoluments," as used in the Foreign Emoluments Clause, refer to payments from a foreign government made in exchange for the U.S. Officer's performance of services (office-related compensation). The term does not refer to any and all payments from a foreign government.

Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. The Office of Legal Counsel and Comptroller General have struggled with the issues, but their approaches suffer from conceptual flaws. This Article proposes an alternative three-part business entity test to help analyze the problems.

After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.

Larry Solum's Ten-Part Defense of Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has completed his ten (!) part series defending originalism.  There are links to all ten posts here.  (The defense is based on this longer article (143 pages), as effectively summarized in this congressional testimony (only 12 pages)).  So, originalism, at any length you'd like.

Here is the overall conclusion from the final post:

My goal in these ten posts has been to provide an overview of the case for originalism.  The core of that case is contained in two claims:

  • The Fixation Thesis: The communicative content of the constitutional text is fixed at the time each provision is framed and ratified.
  • The Constraint Principle: Constitutional practice should be constrained by the communicative content of the text; at a minimum, constraint requires consistency with the text.

The Fixation Thesis should not be controversial.  When we interpret old documents, we use the conventional semantic meanings of the words and phrases that were in effect at the time the document was written.

The Constraint Principle makes a normative claim for which two clusters of pro tanto reasons were provided: (1) the Constraint Principle better achieves the rule of law than does living constitutionalism, because (a) it better serves the rule of law values of stability, predictability, certainty, consistency, and publicity, (b) it better prevents a downward spiral of politicization of the law, and (c) it avoid the great evil of judicial tyranny; (2) the Constraint Principle better achieves legitimacy than does living constitutionalism, because (a) it provides greater democratic legitimacy than does a committee of nine officials with life terms who are unconstrained by the text, (b) it avoids the transparency problem associated with most forms of living constitutionalism, and (c) it limits judges to their legitimate judicial role.

For originalism to be meaningfully different than living constitutionalism, it must be the case that the original meaning of constitutional text is not indeterminate and that the degree of underdeterminacy is not so substantial as to permit almost all living constitutionalist results.  In fact, the original meaning is quite determinate with respect to the hard-wired constitution (the basic plan of government) and even seemingly open-textured provisions such as the Equal Protection Clause are far more determinate than many nonoriginalists assume.

One of the themes of these posts is that the "great debate" is complex.  This should come as no surprise.  Originalists and living constitutionalists have been arguing with each other and among themselves for decades.  Nonetheless, progress can be made in this debate.  The aim of this series of posts has been to show that progress is possible, if originalists and nonoriginalist living constitutionalists are willing to debate the issues on the merits, with an open mind and a dedication to scholarly rigor.

04/17/2017

Justice Gorsuch's First Case
Michael Ramsey

...was Perry v. Merit Systems Protection Board.  At SCOTUSblog, Amy Howe reports on the argument, including:

During his March confirmation hearing, then-Judge Neil Gorsuch repeatedly professed his belief that judges should adhere to the plain language of a law, without considering other factors such as the law’s history or what Congress might have intended when it enacted the law. After his first oral argument as a Supreme Court justice, it became clear that, when it comes to taking a statute literally, Gorsuch meant exactly what he said.

...

Chris Landau was the first attorney to argue before Justice Gorsuch, urging the court to rule that mixed cases like his client’s should go to the district court. Landau fielded questions from several different justices – including Kennedy, Roberts, and Justices Ruth Bader Ginsburg and Samuel Alito – before, at approximately 10:13 a.m., he found himself on the receiving end of Gorsuch’s first question as a justice. Exactly what part, Gorsuch wanted to know, of the federal statute at issue provided for the path that Landau was advocating? Landau started to respond by pointing to a Supreme Court case, but he didn’t get far before Gorsuch interrupted him to focus again on what he described as “the plain language” of the statute.

A few minutes later, Landau sought to reassure the justices that his client was not asking the Supreme Court to “break new ground” with its ruling. But Gorsuch again seemed skeptical, suggesting that what Landau was in fact asking the justices to do was to “just continue to make it up.” Gorsuch seemed to agree with Landau that the result his client is seeking should be in the text of the governing statute – but, Gorsuch cautioned, it isn’t.

(And congratulations to my former co-clerk Chris Landau on another fine argument, even if he wasn't relying on the plain meaning).

John Vlahoplus: On The Meaning of “Considered as Natural Born”
Michael Ramsey

In the Wake Forest Law Review Online, John Vlahoplus (Independent): On The Meaning of “Considered as Natural Born”. Here is the introduction (footnotes omitted):

Scholars have long debated what to make of the provision in the Naturalization Act of 1790 that foreign-born children of American parents “shall be considered as natural born citizens . . .”  Did the Founders who sat in the First Congress use that phrase to tell us something important about the presidential eligibility of foreign-born citizens like Senator Ted Cruz? Did they intend to declare that foreign-born children of American parents are natural born citizens under the substantive constitutional meaning of the term? Alternatively, did they mean to tell us that anyone who is born a citizen is a natural born citizen, so that the Constitution they drafted and ratified gives Congress the power to define “natural born” status by granting statutory citizenship at birth? Or did they merely intend to naturalize the children without declaring or defining presidential eligibility?

Most scholars examine earlier uses of “natural born subject” to illuminate the meaning of “natural born citizen.”  None, however, have examined earlier uses of the phrase “considered as natural born” in order to understand its meaning in the final terms of the Naturalization Act of 1790.  This Article does.  It concludes that prescriptive uses like that in the Act merely naturalized persons or granted them limited rights enjoyed by the natural born, and that descriptive uses reflect an important feature of the controversy over colonial subject status prior to Independence.  Members of the First Congress did not use the phrase to mean someone who is a citizen at birth or eligible to the presidency.

04/16/2017

James Allan: Constitutional Interpretation, Democracy and Antonin Scalia
Michael Ramsey

James Allan (The University of Queensland - T.C. Beirne School of Law) has posted One of My Favourite Judges: Constitutional Interpretation, Democracy and Antonin Scalia (Br. J. Am. Leg. Studies 6(1) (2017)) on SSRN. Here is the abstract: 

This paper sets out why Antonin Scalia was a great judge. It looks at his approach to judging, to constitutional interpretation and to the interplay between strong judicial review and democratic decision-making.

Professor Allan is always an amusingly insightful commentator with a distinct perspective, and this paper doesn't disappoint.  For a little more context, here is the introduction (footnotes omitted):

It is best to start by making it clear that on some big issues I differed with the views of former U.S. Supreme Court Justice Antonin Scalia. For instance, I am a critic of bills of rights, be they of the entrenched, constitutionalized United States and Canadian varieties or of the statutory United Kingdom and New Zealand varieties. By contrast, Justice Antonin Scalia supported the U.S.-style bill of rights that he was regularly called upon to interpret.  Furthermore, I am an ‘Original Intended Meaning’ (‘OIM’) originalist, the sort that thinks it is authors’ intentions that count, that provide the legitimate and authoritative external standards that pointof-application interpreters ought to seek and that can constrain those interpreters in a way that ‘living tree/living Constitution’ and ‘moral’ interpretations never can. Justice Scalia rejected that sort of OIM originalism, sometimes quite sharply, in favor of searching for what a well-educated and knowledgeable person at the time would have taken the words to mean. Scalia’s version of originalism is known as ‘textualism’ or as ‘Original Public Meaning’ or ‘OPM’ or ‘new’ originalism.

I mention those differences, indeed will come back to them below, for the sake of providing the reader with a bit of perspective on what follows. Bear them in mind because in big picture terms in this article I come to praise Antonin Scalia, not to bury him. In fact Scalia was (and is) one of my favorite judges. As many readers will realize, that is not a sentiment that is or was widely held by law professors in the United States. And it was probably even less widely held by legal academics in my native Canada, or in the U.K., or in New Zealand, or in Australia. Justice Scalia was despised by many law professors in the Anglo-American world and his views were thoroughly rejected by more still. Not me though. As a law professor who has worked now for 11 years in Australia, and for a decade before that in New Zealand, with teaching sabbaticals in the U.S. and Canada, I am quite partial to the man, and to his jurisprudence. As I said, he is one of my favorite judges.

The goal of this article is to give you an idea of why that is, why this nonAmerican law professor who disagreed with him on a couple of big issues might nevertheless have that view. I will consider it a bonus if, for a reader or two, the good that Scalia did is not interred with his bones.

04/15/2017

Reinsch, Barnett and Baude on Constitutional Liquidation
Michael Ramsey

At Liberty Law Blog, Richard Reinsch: The Liquid Constitution.  Keypoint:

What should receive more discussion [in the originalism/nonoriginalism debate] is the notion, expressed in The Federalist essays  37, 78, and 82, of “Liquidating” the meaning of the provisions of the Constitution. Publius means by that that it is necessary to make clear terms that are apt to be contested.  And what isn’t contested in the heat of conflict? Specifically the discussion in Federalist 37 is most apt for our current distressing situation. It is there that Publius discourses on the difficulty of ascertaining the boundary between federal and state powers. He states,

Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all.”

Elsewhere in that essay, Publius notes, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussion.”

And in conclusion:

What we must consider then is the case for a different originalism. As Gordon Lloyd observes in an essay entitled “Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835″:

[T]he meaning of the Framers’s understanding is to be discovered in the decisions of the State Ratifying conventions, the records of the Federal Convention and the First Congress, and such contemporaneous expositions as the Federalist. Moreover, the Constitution requires a “liquidation of meaning” over time; put differently, Madisonian originalism requires both “initial consent” and “recurring consent.”

Public debate is how we reach “the cool and deliberate sense of the community.” As Willmoore Kendall observes:

As disciples of Publius, what we should want above all is for the relevant questions to  be decided by the “deliberate sense of the community”—and the deliberate sense of the community is not about the intent of the Founders (it was, above all, that we should govern ourselves, and so prove to mankind that self-government is possible); and not, Talmudically … but about the merits of the competing policy alternatives amongst which we, as a self-governing people, are obliged to choose. Which is to say: about the appropriateness of competing policies to our conception of ourselves as a people, to our historic destiny as we understand it, to our settled views as to the nature of the good society. (1)

Progressives have looked to the Court to pave a constitutional path of egalitarianism and emancipation that eagerly departs from the text, believing, as they do, that they stand atop history and understand its architectonic flow. But originalism further enthrones the judiciary, putting our elites on the Bench, to chart a course back to the Founders. In short, we play a game of elites by relying on a few men and women in black robes. What’s the best play, though, with respect to the republican foundation of the Constitution and with regard to our long-term interests as those who value limited government? Putting authority to decide the meaning of the Constitution in the hands of the self-governing people is the superior move.

At Volokh Conspiracy, Randy Barnett and Will Baude respond (separately).  Professor Barnett asks

[H]ow is this process of a “self-governing people” deciding “the meaning of the Constitution” supposed to work? Should we have a plebiscite to decide the meaning of the foundational document by majority vote? Should they be national plebiscites, or state by state (and how would the latter be operationalized)? No doubt Mr. Reinsch would reject national or state plebiscites, favoring instead putting the “authority to decide the meaning of the Constitution in the hands of” Congress and state legislatures. Yet these bodies are comprised of a very small subset of “the people.” Congress is a mere 535 persons out of 318 million. And these legislative bodies are themselves supposed to be bound by the law of the Constitution, not make it. How then can it fall to them to interpret the meaning of the constraints imposed upon them? ...

Publius never confused “the people themselves” with their agents in the legislature. Indeed, the Framers’ “republican” form of government was designed by them to protect the liberties of the people from their legislatures (and from other governmental actors). “We the People” are truly “self-governing” insofar as we are allowed to exercise the liberties defined by our private rights. But the founders well-knew that “We the People” do not literally “govern themselves” politically. (Recall the Declaration’s phrase “consent of the governed.”) So the Constitution was put in writing precisely so it would provide the law that governs those who govern We the People.

Professor Baude adds: Some cold water on the liquidation debate.  Key point:

I want to speak up in defense of a particular conception of liquidation, which I think was James Madison’s. Madison’s notion of constitutional liquidation, properly understood, need not be hostile to originalism. My “Constitutional Liquidation” paper is still very much a work in progress, so much of the framework will have to wait until later, but at least one element of liquidation is important for these purposes: Liquidation only operated to the extent that the Constitution itself was open-ended or less than clear. Indeterminacy was a prerequisite for liquidation.

And:

[L]iquidation is compatible, indeed I would say especially compatible, with the original, departmentalist understanding of the judicial power. On that understanding, the judiciary did have special authority to bind other branches through its judgments, when issued by a court of competent jurisdiction. But its opinions were not binding in the same way, especially as to cases not before the court. The opinions, I think, can contribute to the liquidation of constitutional meaning, but in cooperation with other branches, not to the exclusion of them.

So I will be the first to agree that it is worth paying attention to the founding-era concept of liquidation. But in my view that concept turns out not to transcend originalism, but rather to be fully consistent with it.

04/14/2017

Jeffrey Toobin on Leonard Leo and the Gorsuch Nomination
Michael Ramsey

In The New Yorker, Jeffrey Toobin: The Conservative Pipeline to the Supreme Court: With the Federalist Society, Leonard Leo has reared a generation of originalist élites. The selection of Neil Gorsuch is just his latest achievement.

With pretty fair-minded and interesting background on The Federalist Society's Leonard Leo, leading to this:

One day last spring, Leo received an invitation to join Donald Trump for lunch at a law firm’s offices in Washington. Trump was getting closer to clinching the Republican nomination, but his political history still provoked wariness among Party ideologists. Trump, it turned out, wanted Leo to compile a list, which the campaign would make public, of Trump’s likely nominees to the Supreme Court, in the event that he won the election. As Leo recounted their conversation, Trump said, “People don’t know who I am on these issues, and I want to give people a sense of that.” No campaign in history had put out such a list. Leo recalled, “I said, ‘That’s a great idea—you’re creating a brand.’ ”

The question, then, became on what basis Leo should select the candidates. What was Trump looking for in his nominees? Throughout the campaign, Trump had said that he would appoint pro-life Justices to the Supreme Court. But Leo told me that his conversations with Trump focused elsewhere. “The President was very clear about what he wanted,” Leo said. “What he said in very explicit terms was he wanted people who were exceptionally well qualified, quote, ‘respected by all, not weak’—those are his words, ‘not weak’—and somebody who was going to, quote, ‘interpret the Constitution the way the Framers meant it to be.’ ” The statement was, in effect, a call for an originalist.

04/13/2017

A Comment from David Weisberg on Originalism and Syria (Updated: Plus John Yoo and More)
Michael Ramsey

David Weisberg comments:

Re Originalism and the attack on Syria: I have argued that Originalism is irreparably flawed.  Notwithstanding those flaws, I think everyone agrees that Originalism was designed as a tool to foster an appropriate degree of judicial restraint.  Judicial restraint is the end; originalism is merely the means.  This has important implications for the Syria question, which has already been discussed in several posts (here and here).

Two versions: “The Congress shall have power…” (1) “to declare war”, or (2) “to declare war and to authorize use of military force, but such authorization shall not be necessary when the president, as commander-in-chief, responds to a sudden attack on the United States”.   In both 1788 and 2017, these two versions had and have public meanings that are different from each other.  I would think that, if a person is an original-public-meaning Originalist, the inevitable conclusion is that Pres. Trump has not “violated” the Constitution, because he has not even purported to declare war on Syria.

But, for an Originalist, whether or not Pres. Trump has in some sense “violated” the Constitution should be of secondary importance.  The much more fundamental and important question is: should the courts have any role in determining what military measures the Trump administration may take against Syria, or is that a non-justiciable political question?  This question is more fundamental because it directly implicates the principle of judicial restraint, which was the motivation for formulating Originalism in the first place.

I believe it would be impossible to conceive of a more obviously non-justiciable political question than the propriety of the use of military force.  For the courts to intervene would be to interfere simultaneously with powers explicitly granted to both political branches of government: the president (“commander-in-chief”) and Congress (“declare war”).  Such judicial intervention might put the lives of U.S. soldiers at risk; it could also result in a disastrous deterioration of morale.  (“Why should any of us obey orders to fight?  My lawyer says the courts will declare this conflict unconstitutional.”)

If a substantial number of members of Congress disagree with the president’s use of force, they can cut off funding for such use.  They could also impeach him.  But no one should want unelected jurists, who in most cases have no military experience and no access to expert military advice, to be making decisions about how the U.S. deploys its armed forces.  No matter what history tells us about the “declare war” clause, can anyone seriously argue that the founders contemplated that—of all the three branches of government—it would be the federal courts that would have the final say in deciding whether U.S. forces can be deployed in a particular set of circumstances?

Prof. Bruce Ackerman, in the NY Times, reports that the D.C. Federal District Court ruled that his client, a U.S. military officer, cannot challenge former-Pres. Obama’s military initiatives against Islamic State, because it raises a non-justiciable political question.  Prof. Ackerman believes that result was wrong.  In my opinion, the result was entirely correct.

I disagree with the premise of this comment.  Originalism is not simply a means to the end of judicial restraint.  Rather , I think it is principally about the rule of law, both within and outside the judicial branch.  Applied to war powers (and other presidential powers that are not easily reviewable) it is about a rule of law for the executive.  Whether the political question doctrine is consistent with originalism is a separate question.  But even apart from any possibility of judicial review, originalism seeks an objective foundation on which we can base our constitutional criticisms (or defenses) of executive action.

RELATED:  At Cato At Liberty, Gene Healy: Weak Legal Pretext for Trump’s Drive-By Tomahawking (drawing on originalist writing [including mine; thanks!] to criticize the Syria strike).

FURTHER UPDATE:  John Yoo (Berkeley/AEI) has this partially originalist defense of the Syria strike at NRO: Trump’s Syria Strike Was Constitutional.  It's the same basic argument so I won't respond in detail.  But two quick points.  He says:

Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates, and Russian revolutionaries; to fight North Korean and Chinese Communists in Korea; to engineer regime changes in South and Central America; and to prevent human-rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf war, the 2001 invasion of Afghanistan, and the 2003 Iraq War, received legislative “authorization” but not declarations of war. The practice of presidential initiative, followed by congressional acquiescence, has spanned both Democratic and Republican administrations and reaches back from President Trump to Presidents Abraham Lincoln, Thomas Jefferson, and George Washington.

(1) I doubt the accuracy/relevance of his claims about the early practice.  I do not know what "Indians" are meant or what action by George Washington he has in mind.  I do not think Washington authorized force without congressional authorization except maybe in immediate self-defense.  If Professor Yoo thinks differently, a cite would be great; I think he's just mistaken on this point.  (I discuss Washington's use of force in this article and conclude he may have actually been too cautious, constitutionally speaking.)  As to Jefferson and Barbary pirates, I assume he's thinking of the Tripoli episode, but as I've said over and over (and over), the only reason anyone (including Hamilton) thought Jefferson could use non-defensive force without congressional approval is that Tripoli declared war first.  (The above-linked article covers this debate also).  I am not aware of any practice from the immediate post-ratification era that supports the no-authorization-needed-for-a-first-strike argument.  And I have looked into this a lot.

(2) Professor Yoo rests much on modern practice.  But as I argue in this article, modern practice is a bit overstated on this point -- the only post-Vietnam episodes that clearly support the President acting alone in analogous circumstances are Kosovo and Libya.  (As shown in the pretty cool chart on the last page, if I do say so myself).

AND FURTHER:  From Michael Paulsen (St. Thomas): Trump’s First Unconstitutional War.  Key paragraphs: 

The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force. The word “declare” was deliberately and carefully chosen at the Constitutional Convention, after an earlier draft that would have granted Congress the power to “make” war was rejected. Two reasons for the change appear in the records of the Convention’s debates. First, the delegates wished to preserve the traditional executive power to respond to, repel, or defend against sudden (or imminent) attacks on the nation. The right to national defense would remain with the executive branch. Thus, if another nation were to launch an attack against the nation — that is, if someone else were to start a war with the United States — the president would not need to wait for Congress to act before responding with force. Second, the delegates thought that “declare” was a better word choice than “make,” which could be mistaken to suggest that it was Congress’s job to conduct war. The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force.

In all respects, the debate reveals the consensus understanding that the president would not have the power to initiate a war without congressional approval. Virtually everybody in the founding generation — Washington, Adams, Jefferson, Madison, Hamilton, Jay, and countless others — agreed on this principle. Nothing in the text of the Constitution; nothing in its structure or logic; and nothing in the contemporary historical record supports the unilateral power of the president to take the nation into a new state of war by himself. The most that can be said is that the president, as commander-in-chief, retains the executive power to respond to actual or threatened attacks, to rescue American civilians or troops when they are in imminent danger, and to take actions to preserve, protect, and defend the nation from cataclysmic harm in an emergency. There are borderline, arguable situations in each category, to be sure. But offensive military action against a nation with which we are not already engaged in hostilities, and involving none of these exceptional situations, falls completely outside the scope of the president’s legitimate constitutional authority.

Agreed.

AND A FURTHER UPDATE: DAVID WEISBERG RESPONDS:

Michael Paulsen has written:  “The phrase ‘declare war’ in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force.”  Prof. Ramsey agrees with Prof. Paulsen. 

The OED says the phrase “To declare war” means “to make formal and public proclamation of hostilities against another power”; this meaning has been valid, according to the OED, at least since 1552.  The OED offers no other meaning for the phrase.  I hope we would all agree that there is a difference between making a decision and making a formal proclamation about a decision.

There were discussions at the Constitutional Convention about what language to use, but ultimately the phrase “to declare war” was settled on to specify the power to be given to Congress.  Here is what I don’t understand: is Prof. Paulsen saying that the phrase was “universally understood” to mean “the making of the decision…etc.” in addition to the meaning assigned by the OED, or is he saying that the phrase was “universally understood” to have a meaning different from the meaning assigned by the OED?

If it is the latter, I will say, with all due respect to Prof. Paulsen, that I think the OED is a more authoritative source of etymologies than he is.  If Prof. Paulsen is saying that what was “universally understood” was in addition to the OED meaning, then wouldn’t any careful lawyer have insisted that the constitutional provision be drafted so: “to declare war, or to initiate a state of war with another nation, power, or force”?  These are extremely important issues—the use of military force—in the life of a nation.  Wouldn’t the founders have wanted to expend a few additional words to make their position perfectly clear?  Or, after discussions of the issue, did they intentionally, deliberately, knowingly leave the area beyond “to declare war” vague and indeterminate?  I think the founders were at least as competent as lawyers as we are, so I vote for the latter.  And that is why I think Trump’s missile strike didn’t violate the Constitution.

Michael Dorf on Originalism (with Responses from Randy Barnett and Larry Solum)
Michael Ramsey

At Dorf on Law, Michael Dorf: The Stakes of the Originalism/Textualism Debate.  Some fo his thoughts on the stakes:

The fact that originalists and living constitutionalists often reach the same outcomes in concrete cases does not necessarily mean that the practical stakes are low, because even as, in academic circles concrete-expectations-and-intentions originalism has given way to semantic originalism in the last three-plus decades, in public debate originalism means concrete-expectations-and-intentions originalism. I will cheerily concede that the academics who propound semantic originalism thereby intend only to work out what they regard as the best (or what many of them think is the only legitimate) approach to constitutional interpretation and construction, without any regard for the political consequences. But even if unwittingly, in doing so the academics enable concrete-expectations-and-intentions originalism--which has a conservative, even reactionary, bias--to flourish.

I made this point at length in a 2012 essay in the Harvard Law Review, in which I reviewed Balkin's Living Originalism and Prof. David Strauss's The Living Constitution. Here is a small sample of what I wrote there:\Widespread acceptance of Balkin’s views would allow conservatives to say that even liberals now accept originalism but then turn around and define originalism narrowly. Balkin and other leading “new” originalists like Professors Randy Barnett, Lawrence Solum, and Keith Whittington make originalism respectable by answering objections leveled at “expectations-based originalism” — but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers’ and ratifiers’ expected applications in considering concrete cases.

And also, referring to Judge Posner's concurrence in Hively v. Ivy Tech, 

... [Posner] suggests that it would be simpler and more honest simply to say that the meaning of discrimination on the basis of sex changed between 1964 and 2017, chiefly through changed social values. He argues that when courts reach results that would have startled the lawmakers whose enactments they construe, the courts may be legitimately "giving a fresh meaning to" the relevant legal provision.

Because Judge Posner reaches the same result as Judge Wood (and, as noted above, even concurs in her opinion), his concurrence might be thought to illustrate how low the stakes are in the debate between semantic originalism (or textualism) and living constitutionalism (or dynamic statutory interpretation). But I think that would be a mistaken inference.

The practical stakes here are high. The closest any senator came to laying a glove on then-Judge Gorsuch during his confirmation hearing was when Senator Franken questioned him about the "frozen trucker" case. A view that openly admits that judges have considerable discretion to reach a sensible result even when, at first glance, the language of a statute (or constitutional provision) cuts against that result, gives judges less room to say "the law made me do it" and thus to evade responsibility for their rulings.

For at least the last two decades, Judge Posner's chief academic objective has been to promote legal realism as against legal formalism (as I explored here and as is further evident in Prof. Segall's description of his remarks at a recent conference). Originalism and textualism are brands of formalism, even when used flexibly to produce results that are indistinguishable from living constitutionalism and dynamic statutory interpretation. Judge Posner's noble goal of demystifying the law (which was always a main aim of legal realism) seeks to dislodge formalism and thus to undercut the latter's reactionary tendencies. Those are some pretty high stakes.

Randy Barnett comments at length at Volokh Conspiracy.  Larry Solum comments at length at Legal Theory Blog.

04/12/2017

Mary Bilder on Constitutional Originalism
Mike Rappaport

There have been a couple of blog posts on Professor Mary Bilder’s op ed on Originalism and the Constitution, including one by Larry Solum and one by John McGinnis.  I don’t mean to pile on, but there are some important questions that remain to be addressed.

Mary Bilder is an important law professor who is also a legal historian.  Her op ed reflects the views of many historians about originalism and therefore I believe it warrants some attention.  I should say that I have enjoyed Bilder’s work in the past.  Her article on the Corporate Origins of Judicial Review is an excellent one, as is her book on colonial law.

But I disagree with much of what Bilder has to say about originalism.  The basics of her argument is that originalists argue for an interpretive method that is inconsistent with the process of the enactment of the Constitution.  She writes:

Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.  Yet this vision of the Constitution is far different from what we see when we read the historical sources of that moment. In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.

John McGinnis notes that the Constitution actually was written by a team of elite lawyers.  And I would add that the Bill of Rights was written by a team of legislators.  But put this to the side.

It is not entirely clear how Bilder believes the Constitution should be interpreted.  But she appears to claim that the rush of the drafting process made it too difficult to take the words employed in the Constitution as having overriding importance.

Let me examine each of these claims.  First, the original methods approach to constitutional interpretation requires that one interpret the Constitution as using the methods that people at the time would have been employed.  Thus, it is wrong to claim that original methods requires that the Constitution be interpreted as a modern technical contract would be, unless that was the method employed at the time (which it probably was not).

Second, Bilder claims that the rush of events suggests that the Constitution should not be interpreted in accordance with its original meaning.  But this is also problematic.  Even if the Constitution was rushed, how does Bilder think people would have expected the Constitution to be interpreted?  They no doubt believed it would have been interpreted as other constitutions (and as statutes of similar length) would have been interpreted.  Thus, even if they were rushing, their aim was to produce a document that would make sense in terms of the interpretive rules at the time.

These points are confirmed by early interpreters.  For example, John Marshall never says, we can’t interpret the words of the Constitution carefully because the Framers were rushing to get it done and might have overlooked some nuances.  Instead, he treats the text as very important, employing rules such as the “rule of construction acknowledged by all that the exceptions from a power mark its extent” – a rule that he employed in Gibbons v. Ogden which requires careful consideration of the words.

Ultimately, the Constitution should be interpreted as people at the time would have interpreted documents of this sort.  I’m not sure whether Bilder disagrees with this or simply believes that interpretive methods at the time were more discretionary than originalists typically claim.  But if she does disagree with the claim that the Constitution should be interpreted differently than people at the time would have interpreted document of this sort, I would be curious how she believes they should be interpreted (and why that is justified).

Is Instapundit Turning Originalist?
Michael Ramsey

I've thought that super-commentator Glenn Reynolds (Instapundit) has in the past been oddly non-committal  regarding originalism.  A couple of his recent regular columns in USA Today have gotten me wondering if he is leaning more in the originalist direction.

First there's this column from last week: Who the people?  It describes, very positively, the new book by Randy Barnett (a self-proclaimed originalist), Our Republican Constitution.  And his column has this paragraph:

In fact, courts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs. Barnett suggests that they should do their jobs more often, and in this he is certainly correct. Will it come to pass? That is less clear.

That follows this passage:

The framers, in general, were suspicious of pure democracy, which they regarded as inherently unstable and prone to corruption, and to the abuse of those who couldn’t muster a majority of votes. (“Two wolves and a sheep voting on what to have for dinner,” as the saying goes.)

Thus, the republican constitution, which places great emphasis on limiting the powers of the majority.  The powers of government were limited, and separated  among various branches, and divided between the federal government and the states, while some things were placed beyond the power of the government entirely. This was intended to ensure that minority groups could go about their business unmolested by the majority.

Next there's this week's column: Judge Richard Posner's unimpeachable honesty (discussing the Hively v. Ivy Tech Community College case).  In it, he calls for the "modest proposal" of electing federal judges, using the explanatory example of Judge Posner's concurrence in Hively

According to Posner, although the drafters of the Civil Rights Act certainly had no intention of protecting gays and lesbians, and certainly wouldn’t have understood the term “sex” to incorporate sexual preference, it is appropriate for courts to “update” the statute in light of modern mores, by interpreting it not as it was written, but as the needs of modern society dictate...

Well.  As a legislator, I’d be happy to lump the two under the term “sex discrimination.” But the legislators who passed the Civil Rights Act, as Posner acknowledges, did no such thing. Is it legitimate for a court to change a statute’s meaning because judges think that times have changed?

Some law professors think that Posner is behaving badly here: Prof. David Bernstein refers to Posner’s opinion as "post-Constitutional,” and Prof. Josh Blackman, after publishing an extensive critique, comments that "Posner is the polar opposite of a ‘honest agent.’ He views himself as a free agent. . . .  What Judge Posner is taking advantage of is life tenure.” Some of my lawprof Facebook friends even suggested that Posner should be impeached.

But in truth, Posner is mostly just being honest. Judges do what he describes all the time, they just usually cloak it behind a smokescreen of legalism that makes it at least somewhat deniable. Indeed, that’s basically what the majority opinion does.

A good descriptive set-up so far, and now his payoff conclusion:

But the job of updating statutes is the job of legislators, not judges, and what legislators have over judges in that regard is that they are elected. Judges can — from within their insular world of life-tenure employment and elite-legal/academic socialization — guess at what contemporary social mores are. Legislators, by virtue of standing regularly for election, don’t have to guess. 

04/11/2017

Andre LeDuc: The New Originalism and Its Critics
Michael Ramsey

Andre LeDuc (independent) has posted Making the Premises about Constitutional Meaning Express: The New Originalism and Its Critics (BYU Journal of Public Law No. 1, page 111, forthcoming) on SSRN. 

Here is the abstract:

Perhaps the hottest front in the half-century-old debate over originalism turns on the introduction of semantics, pragmatics, and other techniques from the philosophy of language and linguistic theory. While in some ways these arguments simply build on the now familiar distinction between interpretation and construction defended by the New Originalism, the newest of the New Originalists purport to break new ground in the debate. The originalists argue that they have rehabilitated originalism so as to avoid the criticisms that had been leveled against earlier versions, including those leveled against earlier versions of New Originalism. The newest critics argue that the sophisticated tools of linguistic philosophy, when properly applied in their hands, offer new and decisive challenges to originalism, including the newest of the New originalisms. While the arguments on both sides of the debate have been welcomed as a new and exciting intellectual development by the academy, this article demonstrates why these efforts are yet another wrong turn to a dead end in the debate.

This article thus performs a critical mission. It argues that the linguistic claims of the most recent wave of the New Originalism like Solum and Soames and those of their most recent philosophically sophisticated critics like Marmor and Fallon fail to advance the debate over originalism. Each side places demands on philosophical argument that cannot be met. Philosophical argument cannot perform that role as a matter of our constitutional practice and as a matter of the nature of philosophical argument. The philosophical sophistication of the newest of the New Originalists and their critics is only another Ptolemaic epicycle in a debate that should be abandoned, not pursued.

04/10/2017

Larry Solum on the Gorsuch Confirmation
Michael Ramsey

At Legal Theory Blog, Larry Solum: Originalism in Constitutional Time.  From the introduction (to a rich essay that can't be easily summarized):

Originalism is mostly an academic theory, discussed by law professors in law review articles and academic monographs.  Occasionally, political scientists and historians join the conversation.  But once in a great while, originalism enters public political debate.  Historically, this entry was initiated by Attorney General Edwin Meese, but in the past two or three decades most of the public discussion of originalism has focused on the ideas of Justice Antonin Scalia, who wrote books, gave speeches, and wrote ferocious dissenting opinions--all of which garnered the attention of the media, public intellectuals, and the citizenry at large.  Scalia's passing, and what seemed at one time as his almost certain replacement by a living constitutionalist, might well have resulted in a decline of public interest in originalism.  Originalist scholars would have turned to the long-run strategy--building the intellectual infrastructure for an originalist revival at some point in the distant future.

Instead, the appointment of soon-to-be Justice Gorsuch to the United States Supreme Court has resulted in an unprecedented public dialog on originalism and living constitutionalism.  Moreover, given the age of the most senior Justices, there is a significant possibility that an additional one, two, or even three originalists will join the Court.  Gorsuch's appointment assures the originalism will continue to occupy center stage in public and judicial debates over constitutional theory.  The appointment of two or more additional originalists to the Court would decisively shift the balance of jurisprudential power away from living constitutionalism and towards originalism as the dominant approach to constitutional interpretation.

And in conclusion:

And so, we arrive at a critical moment in constitutional time.  Only a few months ago, many were trumpeting a decisive end to originalism.  Originalism was about to be "off the wall" not "on the table."  Instead, originalism is once again the focus of public and academic attention--the theory to beat.  But this moment in constitutional time is not a moment of triumph for originalism.  Instead, it is a moment of open constitutional possibilities--the future shimmers, with glimpses of alternative constitutional futures coming in and out of focus.  In some constitutional futures, the constitutional gestalt shifts and originalism becomes the dominant mode of constitutional discourse, fundamentally altering our conception of the relationship of constitutional law and politics.  In others, living constitutionalism regains the ascendency and the downward spiral of politicization that has infected the judicial selection process and even the Supreme Court itself continues apace.  Where that spiral bottoms out, I do not wish to speculate.  There is enough dread in the world.

At Volohk Conspiracy, Randy Barnett has brief further thoughts here.

Lawrence Solum: The Constraint Principle
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted The Constraint Principle: Original Meaning and Constitutional Practice on SSRN.  Here is the abstract:

Originalism is a family of constitutional theories (almost all of which) agree that the original meaning of the constitutional text should constrain constitutional practice. Call this idea the “Constraint Principle.” Provisionally, the Constraint Principle is the claim that (at a minimum) the content of constitutional doctrine and the decision of constitutional cases should be consistent with the original meaning of the constitutional text. This principle has the implication that constitutional actors, including the Supreme Court, adopt constitutional constructions that effectively amend the Constitution. The aim of this article is to explicate and justify the Constraint Principle.

Part I explores the role of the Constraint Principle in contemporary constitutional theory, answering the question “what is originalism?” and laying out the most important forms of nonoriginalism and living constitutionalism. Part II excavates the conceptual foundations of the idea of constraint and examines the various forms that constraint could take. Part III frames the debate over the Constraint Principle by exploring the various forms that justification could take and considering the role of the burden of persuasion in the debate. Part IV sets two clusters of justifications for the Constraint Principle, the rule-of-law cluster and the legitimacy cluster. Part V considers some alternative justifications for constraint. Part VI considers various objections to the Constraint Principle. Part VII reconsiders the rivals of originalism. Part VIII summarizes the case for constraint. The Article ends with a Conclusion.

RELATED:  At Legal Theory Blog, Professor Solum has undertaken a multi-part defense of originalism, in part based on this article.  I will post links to all the posts once they are complete.

04/09/2017

Bryan Garner on Originalism; Ken Levy Responds (plus my Comments)
Michael Ramsey

At The Hill, Bryan Garner: Critics of originalism don't know their history, or Founding Fathers.  (This is the best defense of originalism -- really about the only defense of originalism -- published in popular commentary [as opposed to legal blogs] in connection with the Gorsuch confirmation.).  From the introduction:

People might wonder why Justice Scalia would write a prescriptive book on judging (“Reading Law”) with someone who had declared himself to favor same-sex marriage, to be ardently pro-choice, and to favor repeal of the Second Amendment. The answer is that because I’m a textualist and an originalist, my personal views on these matters are quite irrelevant. (Sound familiar? You hear Judge Gorsuch say that again and again.)

 If I were a judge, I wouldn’t be enacting my own visions of wise policy — that’s not what a good judge does — but instead I’d be applying a “fair reading” to the statutory or constitutional words.

Only if I were a “pragmatist” or a “Changing Constitutionalist” would these private views become important. Then I wouldn’t be interpreting a document. Instead, I’d be declaring new policies that have no discernible foundation in the Constitution itself. I’d be looking within my heart and soul to consider what I believed to be fundamentally important. There I might discover new rights that nobody had ever before seen.

Also in The Hill, Ken Levy (who had an earlier essay that Professor Garner criticizes) responds: Judge Gorsuch's strict 'originalism' puts justice itself at stake.

Professor Levy has emerged as one of the better originalism critics in the Gorsuch matter (at least he does not rest on absurd claims about originalist outcomes), and his essay comes close to squarely identifying the core issue.  But it still gets major points wrong.

For example, he says: "[Textualism] says that we shouldn't make any assumptions that are not explicitly stated in the Constitution."  No serious version of textualism thinks this.  (See my discussion in this article: Missouri v. Holland and Historical Textualism).  Justice Scalia clearly did not think this.  I'm sure Professor Garner does not think this.  Textualism says that constitutional rulings must be ultimately tied to the meaning of an identified part of the Constitution's text. (Historical textualism, as I define it, says that constitutional rulings must be ultimately tied to an identified part of the Constitution's text given the meaning it had an the time of enactment -- hence, a form of originalism).  It does not say anything more than that.  In particular, it does not say "explicitly."  Professor Levy goes on to say constitutional textualism is self-refuting because the Constitution doesn't say it has to be interpreted using textualism.  But I think there is a good argument that this is what the drafters assumed would happen, based upon (among other things) that they worked very hard to draft a fairly precised text, and struggled over the specific wording.  (John Manning makes that point here).

Professor Levy also claims to have found the mythical third way between originalism and pure subjectivism (which if found, might lessen some of the stronger defenses of originalism, including Professor Garner's).  Levy writes: 

One problem with [Professor Garner's defense] of originalism is that it relies on a false dichotomy between originalism and judicial subjectivism. As I argued in my New York Times editorial, there is a third possibility: principled pragmatism. Again, principled pragmatism:

"says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision."

Some originalists will say that principled pragmatism reduces to judicial subjectivism, that it is merely a fancy term for anything goes. It is certainly true that judges could pretend to be principled pragmatists when they are really just subjectivists — bending and twisting the Constitution to yield the outcome that they prefer. But the same can be said of every other theory of constitutional interpretation — including originalism.

This is a key claim, but I don't think Professor Levy is persuasive.  First, all of the things he points to apart from original meaning and public policy consequences are sufficiently malleable that I do not see how they provide much constraint in contested cases.  (I do think they provide some constraint).  Second, he concedes that a good part of this program turns on (the judge's assessment of) public policy consequences -- which is just another phrase for the judge's subjective assessment of the preferred outcome.  Third, the example he gives earlier in the essay seems to cut the other way.  He begins by saying:

Suppose a case comes before the Supreme Court in which the principal issue is whether 90 days of solitary confinement for a first-time minor offense — for example, simple battery — constitutes "cruel and unusual" punishment under the Eighth Amendment.

 According to an originalist, we must do our best to determine how the ratifiers — or at least the society in which the ratifiers lived — understood these terms. If, for example, they understood cruel and unusual to mean "causing gratuitous physical suffering," then judges would have to decide that 90 days of solitary confinement for simple battery is not cruel and unusual because the suffering is not so much physical as psychological.

I think that's right, given the hypothetical.  He goes on to say:

But why should modern judges be bound by the ratifiers' understanding of constitutional text — especially if they think that the ratifiers’ understanding would lead to an unjust result?

And later:

Ultimately, the debate between originalists and their opponents comes down to a debate between two competing values: historical allegiance to the founders and justice. In the example above, if the ratifiers' understanding of cruel and unusual applied only to physical suffering, not purely psychological suffering, then the question of whether 90 days of solitary confinement for simple battery is cruel and unusual admits of two possible answers: (a) a backward-looking originalist interpretation with an unjust result and (b) a forward-looking pragmatic interpretation with a just result.

To be clear, "just result" here means "the judge's personal assessment of a what is a just result."  So I do not see how this is materially different from what he calls "subjectivism" (that is, what I would call the judge seeking the [subjectively] just result).  True, some constraint is applied by the obligation in our system for the judge to explain the result to some extent in terms of text, constitutional values and constitutional purposes -- but not that much.  At least, I am not persuaded that in our modern system the judges' subjective assessments do not play a substantial role.  Professor Levy does not provide any example to the contrary.

Nonetheless, I think the first sentence of the last quoted paragraph is very close to capturing the core of the debate.  I would  modify it only slightly to say:

Ultimately, the debate between originalists and their opponents comes down to a debate between two competing values: historical allegiance to the [rule of law as established by the] founders and [modern judges' personal assessments of] justice.

Put that way, I think it can be fairly debated.

04/08/2017

The Privileges or Immunities Clause and 1523, Part II: Freestanding Stigmatic Injury?
Chris Green

Yesterday I noted how Reconstruction history complicates one of the arguments against Mississippi’s House Bill 1523: the idea that it gives a remedy to only one group of citizens, not everyone. Today I consider another of the arguments against the bill: that because of the context in which the bill was discussed and then passed, 1523 was properly seen as a symbolic insult to LGBT people, even without any tangible effect on their rights. Roberta Kaplan and Rob McDuff in their arguments against 1523 mentioned LGBT citizens who had been afraid to dine in public or had even left the state in response to 1523, a statute which, they argued, had inflicted, simply by being passed in its context, stigmatic injury.

Most of the discussion on the point at the Fifth Circuit related to whether freestanding stigmatic harm, purely from the existence of a statute, unaccompanied by public symbols or any direct impact on plaintiffs’ liberties, would count as Article III injury sufficient to render the lawsuit ripe. But a broader related issue can be asked in the context of the original meaning of the Fourteenth Amendment: is freedom from purely stigmatic harm, unaccompanied by any tangible effect on civil rights as such, one of the “privileges or immunities of citizens of the United States”?

More after the jump.

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Chris Green" »

Originalism, Nonoriginalism, and War Powers
Michael Ramsey

At Lawfare, Andrew Kent has a good post summing up the debate on originalism and war powers, with links to the key articles (thanks for including my contributions!).

The best originalist argument in support of the Syria strikes that I've been able to find so far is from Gregg Jarrett at Fox: President Trump's military strike against Syria is perfectly legal -- and it's not very good.  Here is his argument:

It is true that under Article 1, Section 8 of the Constitutional, only Congress has the power to declare war. But a singular strike against a limited asset hardly constitutes war. It is a military action intended to confront hostilities which does not rise to the level of a declared war as the Founders envisioned.

It is clear that the Framers recognized there would be times when the President needs to use immediate military force unilaterally and without the extensive time it might take for Congress to consider the matter, then debate it and approve it.  They chose to withhold from him only the power to declare war, not make war which was regarded as a vital emergency power allowed the president to counter or thwart foreign threats.

This is pure assertion.  How does he know that the Founders didn't think of a limited strike as a war in the constitutional sense?  Does he think that the U.S. President in 1789 could have launched a naval attack against a British base without consulting Congress?  What evidence is there that the founding generation would have accepted this unilateral action as constitutional?  If he's right, why did virtually everyone in the immediate post-ratification era think that limited naval warfare, as against France in the Quasi-War, required Congress' approval?

On his declare war/make war point, it seems clear that this is not what the framers were doing when they changed Congress' power from "make war" to "declare war."  Rather, they had two goals.  First, as Madison said, they wanted to give the President power to respond to attacks.  Second, they wanted to make clear that once war was authorized by Congress, the President had power to fight the war without further detailed directions ("make" in this sense meaning "carry on" as opposed to "initiate").  Jarrett does not provide any contrary evidence.

As Professor Kent shows, a wide range of legal scholars who have looked closely at the issue endorse the view that, as an original matter, presidential initiations of the use of force require congressional approval.  But this leads to several questions:

(1) We've been bombarded over the last few weeks with claims -- in a different context, of course -- that originalism does not lead to determinate answers on contested questions, or that only PhD-trained historians can understand what the Constitution's text really means.  So here is a chance to prove that.  I'm a practical originalist, not a theorist, and I want to see how these claims work in practice.  Please explain why President Trump has as good an argument on the original meaning as I and other legal scholars who have looked closely at the matter do.  Or, if you are a historian, please explain what it is that historians see that I and other legal scholars who have looked closely at the matter do not.  I'm happy to keep an open mind on this, as I have no particular stake in the constitutionality of the President's actions.  (On the merits, I think the idea may have been a good one.)  I'll be more persuaded, though, if the person arguing the other side is vehemently anti-Trump in other respects.

(2) If nonoriginalism is (or should be) our law, why isn't it clear that President Trump's actions are at least plausibly constitutional?  If you have an intuition that his actions are not constitutional, it's probably based on the idea that the framers wanted Congress to be involved in the decision to attack another country.  But that is an originalist intuition (a correct one, in my view).  Nonoriginalism turns principally on the question of the best allocation of power for modern conditions.  There are multiple arguments why presidential authority to launch these sorts of strikes is a good idea under modern conditions.  There are responses as well, but it's not clear how any of these can get past the "I think it's a good idea/I think it's a bad idea" argumentative stalemate.  It reduces to a policy question -- which branch should have the power?  That is not a question of interpretation or of law; it's a subjective question of how the Constitution should be designed.  Thus I do not see how a nonoriginalist could claim definitively that the strikes are unconstitutional.

The last point illustrates a key difference between originalism and nonoriginalism.  Originalism aspires to an objective measure.  Gregg Jarrett says the framers did not understand low-level hostilities to be covered by the declare war clause; I say they did. There's a right and wrong answer to that debate (although finding it may be a challenge).  It can thus be a foundation for a rule of law.  But if the question is what is the best design of government to account for modern conditions, congressional deliberation or presidential unilateralism, the answer can only be the subjective assessment of the decisionmaker.

A New Poll on Originalism
Michael Ramsey

From the Pew Research Center: Americans remain divided on how the Supreme Court should interpret the Constitution.  Key finding:

About half of the public (46%) says the U.S. Supreme Court should make its rulings based on its understanding of what the Constitution “meant as it was originally written,” while an identical share says the court should base its rulings on what the Constitution “means in current times,” according to a survey conducted in October. Public opinion about this issue has changed little in recent years.

Republicans and Democrats continue to have very different views about how the Supreme Court should base its rulings: About three-quarters (74%) of Republicans and Republican-leaning independents say it should base its rulings on its understanding of the Constitution’s original meaning, while about a quarter (23%) of Democrats and Democratic-leaning independents say the same. This gap is slightly wider than it was in February 2014, when 68% of Republicans and Republican leaners and 27% of Democrats and Democratic leaners said the Supreme Court should interpret the Constitution based on how it was originally written. 

(Thanks to James Phillips for the pointer).

04/07/2017

The Privileges or Immunities Clause and 1523, Part I: “Nondiscrimination for Me, but not for Thee”?
Chris Green

Rather than the Gorsuch confirmation and Hively opinion from the en banc Seventh Circuit, the big legal news in my home state this week was the Fifth Circuit oral argument in two consolidated cases concerning the constitutional challenges to Mississippi House Bill 1523, which became law a year ago, but has been embroiled in litigation since then.  The details of the law, and the Equal Protection and Establishment Clause challenges to it, are complicated, but I wanted to focus on two issues in the case as they relate to the original meaning of the Fourteenth Amendment: selectivity in the application of an antidiscrimination norm, and stigmatic injury unrelated to other impact on civil rights.

As I read the Fourteenth Amendment, religious and other equality claims under the Fourteenth Amendment should be decided under the Privileges or Immunities Clause. The Due Process Clause is about the rule of law, not the content of the substantive rights protected by the law, and the Equal Protection Clause is about literal protection, not equality in general.  Of course, the Supreme Court has officially disagreed about the Privileges or Immunities Clause since 1873, but it has at the same time been willing to use evidence related to the Privileges or Immunities Clause in both its equality cases (relying on the first Justice Harlan’s citizenship-based reading of equality in Plessy and other cases) and in basic-rights cases (where the Court used Privileges-or-Immunities-Clause evidence in cases as recent as McDonald in 2010 and as old as Allgeyer in 1897).

More after the jump.

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Chris Green" »

Seth Barrett Tillman on Ex Parte Merryman
Michael Ramsey

From the New Books Network, a podcast with Seth Barrett Tillman on Ex Parte Merryman, based on his article Ex Parte Merryman: Myth, History, and Scholarship (224 Military Law Review 481 (2016)).  [Not actually a book but apparently they made an exception.]  Here is the introduction to the podcast:

Seth Barrett Tillman has written “Ex Parte Merryman: Myth, History and Scholarship,” an article about the famous case that is popularly thought to demonstrate a conflict between the President and the federal courts during the American Civil War. Tillman’s article is an effort to revise the standard historical understanding of the case called Ex Parte Merryman. In the spring of 1861, just as the hostilities had begun in the Civil War, famously issued an order to the U.S. Army granting army officials discretion to suspend the writ of habeas corpus if resistance or treasonous activity were encountered in Union territory. That spring, as soldiers poured into the Washington, D.C. area through Maryland, the Army was confronted with popular protests and violence by civilians. One suspect was John Merryman, a young man from a prominent Maryland family. Merryman hired lawyers to seek his release via the traditional method of asking the federal courts for an order to release Merryman pending his trial. However, Merryman was not initially released and was confined in Ft. McHenry, a military base near the port of Baltimore. The traditional account of the case portrays Supreme Court Chief Justice Roger Taney as heroically seeking to vindicate the rights of a civilian prisoner wrongly held by the military and Lincoln as defying an order to comply with the Constitution.

In this podcast Professor Tillman, a lecturer in the Department of Law at Maynooth University in County Kildare, Ireland, discusses his arguments that the traditional account of the Merryman case is built upon multiple myths. If Tillman’s view of the case is correct, it holds the potential for overturning our understanding of this important period in constitutional history and civil-military relations.