01/19/2018

James Rogers on the Ethical Mandate for Originalism
Michael Ramsey

At Liberty Law Blog, James R. Rogers: The Ethical Mandate for Originalism.  From the core of the argument:

I would argue that there is an ethical mandate for originalism in that adherents of the practice simply aim to read honestly. Originalism follows from common sense in that it proposes that we read legal texts as we read other everyday texts.

[Keith] Whittington appeals in passing to the ethical mandate for originalism at different points in the article [Originalism: A Critical Introduction]. One sees the justification in his adjectives. He writes of originalism as “the faithful interpretation and application of constitutional rules,” its goal being “to faithfully reproduce what the constitutional text requires,” and to “faithfully adhering to constitutional requirements,” etc. Similarly, he writes of originalism having “recently emphasized the value of fidelity to the constitutional text as its driving principle,” having “a primary commitment to constitutional fidelity,” that “the primary virtue now claimed by originalism is one of constitutional fidelity,” etc.

“Faithful” interpretation of a text, however, is not limited to constitutional or statutory interpretation. It’s the goal we have normally when seeking to understand any text; it is the generic goal we have when we read. We seek honestly to understand what the author(s) wrote. This is true whether what we read is a legal text, a math textbook, a Shakespeare sonnet, or a letter from Aunt Jenny. That this is the goal does not entail the project is always easy, that each text has only one clear or determinate meaning, or that people can’t honestly disagree over what a text means. (“What is Aunt Jenny writing about here?”)

This justification for originalism highlights the self-refuting character of non-originalist interpretation: Non-originalist authors write expecting, or at least desiring, that their arguments be read and construed honestly. The “originalist” position, such as it is, is not that legal texts need to be approached as special or distinctive, but that legal texts be approached in pretty much the same way as we read other texts. (This does not entail that we ignore the possibility of specialized language or terms of art, as I argue below.)

I call this an “ethical” mandate for originalism because it aims the reader merely to seek an honest reading of legal texts. This title can mislead, however, if we take it to suggest a virtue unique to judges reading legal texts. That point is the opposite. “Originalism” means that we read legal texts in the same way that we read other texts. ...

(Thanks to Mark Pulliam for the pointer).

01/18/2018

Thomas Nachbar: Form and Formalism
Michael Ramsey

Thomas B. Nachbar (University of Virginia School of Law) has posted Form and Formalism on SSRN.  Here is the abstract:

Formalism has become an insult. Defined by its critics as the mechanical (even disingenuous) application of rules, or unthinkingly equated with textualism or originalism, the various forms of formalism supposedly promise legal certainty. Having been found unable to provide that certainty, formalism been consigned by its critics to the role of foil for other, more promising, approaches. Yet most critics of formalism inaccurately conflate modern formalism, which emphasizes form, with the deterministic formalism of the Langdellian legal order. Far from the unrealistically deterministic, conceptualist understanding of law attacked by the Realists, modern formalism is best understood as a commitment to form in legal interpretation and legal thinking. Once we free formalism from the role it has been given by its detractors, its merits become more apparent. Formalism allows us to focus not just on legal outcomes, but on the form of the rules that generate those outcomes. Formalism is a recognition that law must appear in some form and that law is an act not only of social control but of social communication. By acknowledging the view of the law that formalism represents we can uncover previously unidentified meaning in law, lawmaking, and adjudication.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")

01/17/2018

Moreno on the Original Meaning and Brown v. Board of Education: Part II

In yesterday’s post, I discussed Paul Moreno’s claim that originalism does not support the Brown decision. I argued that it is not true that all scholars agree with that conclusion. Here are some of the reasons why a scholar might believe that the original meaning supports Brown:

1. Moreno writes: “The same Congress (the 39th) that submitted the amendment to the states provided for segregated schools in the District of Columbia.” Michael McConnell questions this claim, arguing that only the local government actually adopted the segregated system. But let’s assume Moreno is correct. So what? The Fourteenth Amendment prohibitions on discrimination did not apply to the federal government. It merely applied to the states. Thus, even if Congress adopted the segregation, one cannot conclude that the Congress believed that the Fourteenth Amendment allowed discrimination as to public schools.

If Congress allowed discrimination in the D.C. schools, then why would they then ban it as to the states? There are many reasons for this, which I discuss in this paper. But the basic point is that Congress might have wanted a categorical rule against state discrimination, because they were worried about how the states (especially those that had enacted the black codes) would behave. By contrast, they might have trusted the federal government (which had acted to protect the former slaves) more and believed that a less categorical approach could be applied to the federal government. Thus, one cannot simply infer from what the D.C. schools were allowed to do, to a conclusion about what the state public schools could do. If you doubt this explanation, the burden is on you to explain why the Fourteenth Amendment was applied to the states, but not to the federal government.

2. Moreno argues: “Even the 43rd Congress, whose Civil Rights Act of 1875 was the furthest step in ‘radical’ Reconstruction and the precursor of the Civil Rights Act of 1964, did not require desegregated schools.” But this argument is problematic as well. As McConnell discusses, a very significant majority of the Congress favored applying the prohibition on race discrimination to public schools. But due to a procedural matter, the bill had to be brought up in such a way that required two thirds of the House to vote for it. While the bill had majority support, it did not have the requisite supermajority support. So, if anything, the Civil Rights Act discussion supports the constitutionality of Brown.

3. There is other evidence that supports the constitutionality of Brown. For example, there were states that acted to eliminate school racial segregation after the Civil War and that interpreted prohibitions on discrimination to forbid school racial segregation, as McConnell discusses in his article. There were other states that act differently, but the point is that the matter was not clear.

We have learned a great deal about views of the time about segregation. For example, while it was long thought that anti-miscegenation laws were constitutional under the original meaning of the Fourteenth Amendment, perhaps because they involved social matters, David Upham has shown again that the evidence is mixed, with Republicans at the time holding that such laws were unconstitutional.

4. The content of the Privileges and Immunities Clause, which is one of the potential sources of the nondiscrimination requirement, may very well have covered public education. John Harrison argues it covers most public education. And even Jacob Howard’s speech was not clear about the matter. Howard followed Corfield v. Coryell (1823), which gave a description and list of the privileges or immunities, but explicitly stated that the list was not exhaustive. Thus, public education might have been covered, even though it was not mentioned in Corfield or Howard’s speech.

Mark Pulliam on Jury Nullification
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Jury Nullification: Good or Bad? On the historical background:

Proponents argue that [jury nullification] dates to the refusal of an English jury to convict William Penn for unlawful assembly, a charge that was a transparent pretext for restricting his freedom of religion. Proponents also cite later examples of Americans refusing to convict defendants charged with violating unjust laws such as the Alien and Sedition Act and the Fugitive Slave Act [Ed.: One could also list the neutrality prosecutions of 1793]. ...

Some proponents assert that the Founding Fathers contemplated a broad role for juries, entitling them to judge both the facts and the law in any particular case. There is an element of truth to this claim. In the early American republic, the legal system—at least in some states—reflected what legal historian John Phillip Reid calls “a laical jurisprudence” controlled by laymen, not lawyers or judges.  During the 19th century, however, virtually all jurisdictions abandoned this practice in favor of the current system of judge-led trials. Accordingly, modern trial practice sharply restricts jurors’ discretion, requiring them to swear under oath that they will follow the courts’ instructions. It is difficult, therefore, now to argue that jurors act nobly by violating that oath and defying the law.

This sounds like a good start to an originalist case for nullification, though I think originalists are divided, and anyway that's not where the essay ends up; from the conclusion:

The debate over jury nullification highlights the differences between libertarians, some of whom are “minarchists” uneasy with the constraints on individual autonomy inherent in the state, and classical liberals, who view civil society as indispensable to secure their liberty. Fundamentally, laws are necessary to preserve a free society, not—as libertarians suppose—inherently symbols of abject coercion. Freedom is not possible without the rule of law. Conceptually, jury nullification—selectively suspending the law—is “anarchy in a microcosm.” As a classical liberal, I view it as brazen lawlessness and a prescription for arbitrariness.

01/16/2018

Moreno on the Original Meaning and Brown v. Board of Education: Part I
Mike Rappaport

On the book review section of the Liberty Law Site, Paul Moreno reviews David O'Brien’s Justice Jackson’s Unpublished Opinion on Brown v. Board of Education. While I agree with some of what Moreno says, I must take exception with his claims about the original meaning and Brown.

Moreno writes:

[As a law clerk] Rehnquist prepared a memo for Jackson, “A Random Thought on the Segregation Cases.” This memo made the argument, whose truth almost all scholars today admit, that the Framers and ratifiers of the Fourteenth Amendment did not intend to prohibit segregation in the public schools.

For example: The same Congress (the 39th) hat submitted the amendment to the states provided for segregated schools in the District of Columbia. The ratifying states maintained segregated school systems. Even the 43rd Congress, whose Civil Rights Act of 1875 was the furthest step in “radical” Reconstruction and the precursor of the Civil Rights Act of 1964, did not require desegregated schools. Even Justice John Marshall Harlan, the lone dissenter in Plessy v. Ferguson (1896), which upheld segregation in transportation, accepted not just segregating blacks from whites but the complete exclusion of blacks from the public schools.

These are outdated claims about the originalist status of Brown. While I have written about these matters before, it is necessary to correct these errors whenever they occur. It is especially important when a scholar at Hillsdale College like Moreno repeats them.

In this and my next post tomorrow, I will criticize Moreno’s claim.

Let’s begin with Moreno’s claim that “almost all scholars today admit that the Framers and ratifiers of the of the Fourteenth Amendment did not intend to prohibit segregation in the public schools.” I can’t speak for history scholars, but among originalist law professors this is simply not true. I would describe the situation as follows: There is at the least a split among originalist law professors as to whether the result in Brown was correct under the original meaning. In fact, my sense is that most “younger” originalists believe Brown was correct, whereas many “older” originalists believe it was incorrect. My own view is that the matter is not clear, but that Brown's originalist advocates have the stronger evidence.

In particular, various originalist scholars have argued that Brown is correct, including Michael McConnell and John Harrison. These arguments have persuaded many originalists. Alas, Moreno does not mention or discuss either work.

Tomorrow, I will discuss the evidence in more detail.

Before concluding, I should note that, after writing these posts, I saw that James Rogers on the Liberty Law Site also wrote about this aspect of Moreno’s review. While Rogers focuses on the original intent versus original public meaning aspect of the issue, I believe the matter is more general. Even if one looks to the original intent – understood in a plausible way (rather than what is specifically in the mind of the writers, which is not a good way to figure out original intent) – the original intent, I would argue, is not clearly against the holding in Brown.

An Aside on "Bear Arms"
Michael Ramsey

I have begun reading Peter Ackroyd's Revolution: The History of England from the Battle of the Boyne to the Battle of Waterloo (St. Martins' Press 2016) (an excellent readable book, although I think it may have a few slight missteps on American matters).  In discussing the aftermath of King William's defeat of James II and his Irish allies at the Battle of the Boyne, Ackroyd refers to the "Penal Laws" subsequently enacted to limit the liberties of Irish Catholics:

No Catholic landowner could pass on his estates intact to a single heir.  Catholics could not hold office, bear arms, or openly practice their religion.

The "bear arms" struck me because in the context of the other prohibitions, it sounds like a more substantial limitation than just prohibiting Catholics from militia service.  The passage doesn't actually quote the statute -- but since Ackroyd is British I doubted he had the phrase "bear arms" just on the tip of his tongue, so to speak, as an American might.  I couldn't find the exact statute Ackroyd described, but I found this discussion in Nicholas Johnson et al., Firearms Law and the Second Amendment: Regulation, Rights, and Policy (WoltersKluwer 2017) (p. 150):

The late seventeenth century saw the consolidation of "Laws in Ireland for the Suppression of Popery," commonly called the "Penal Laws."  The laws forbade Catholics to purchase land, hold government office, and to sit in the Irish Parliament.  Another Penal Law was the 1695 statute ... titled "An Act for the better securing the government, by disarming papists."  It forbade arms and ammunition possession by Irish Catholics.  There was an exception for "gentlemen" who swore an oath of allegiance to the king: they could have a sword, "a case of pistols" and a long gun for fowling or home defense.... Informers who told the government about Catholics with arms would get half the fine as a personal reward.

It's not clear if the latter statute used the phrase "bear arms," but in any event Johnson et al. continue: 

In 1699, Irish Catholic arms licenses were revoked, allegedly because may of them had been fraudulently obtained.  The Post Boy, Dec. 19-21, 1699, at 1, col. 1 ("all Licenses whatsoever to bear Arms, formerly Granted to any Papist in the Kingdom").

Assuming that's a direct quote from the statute, it strongly appears to use "bear arms" to mean something like "carry" or even "possess" but in any event not just "use for military purposes."  The point of the Penal Laws, as they related to arms, was to generally ban possession by Irish Catholics altogether.  Presumably the "Licenses" were exceptions to the general ban.  But then the "Licenses" would likely have been permissions to possess arms -- the issue wasn't whether Irish Catholics could use arms in military service, but whether they could have them at all.

Thus the 1699 statute appears to support the Supreme Court's reading of "bear arms" in D.C. v. Heller as meaning more than just "use in military service."  Of course it's not decisive, but it further supports the contention that there was a longstanding use in English law equating "bear arms" with "possess" or "carry" arms.  (The Heller majority made that contention but I don't think it cited the Irish act.).

I'm not a Second Amendment expert, and I expect that none of this is news to those who have studied the issue closely.  Also, there may be more (or less) to it than appears just from these brief references.  But as someone who has followed the debate casually, I had not encountered it before -- suggesting that more could be made of it.

01/15/2018

Mark Graber on the Twenty Fifth Amendment
Michael Ramsey

At Balkinization, Mark Graber: Taking the Text of the Twenty-Fifth Amendment Seriously.  From the introduction:

Donald Trump is constitutionally unfit to be President of the United States.  The Twenty-Fifth Amendment to the Constitution of the United States requires the Vice President to assume the presidency whenever “the President is unable to discharge the powers and duties of his office.”  The Twenty-Fifth Amendment does not condition the temporary or permanent removal of the president on the president being “physically” or “medically” unable to discharge the powers and duties of his or her office.  Rather, the Vice-President is to assume the powers of the presidency when, for any reason, "the President is unable to discharge the powers and duties of his office.”  A president who is a congenital liar and a bigot, under the explicit words of the Twenty-Fifth Amendment is unable to discharge the powers and duties of his or her office.

The last paragraph of Section 4 supports claims that the Twenty-Fifth Amendment is not limited to physical or medical conditions.  That paragraph authorizes Congress to resolve, by a two-thirds vote of both Houses, whether a president is able to discharge the powers and duties of the presidency.  Members of Congress as a whole have no particular expertise on physical, medical, or psychiatric conditions.  That is for medical professions, who are given no role in the constitutional process for removing the president.  Members of Congress do have expertise on whether a president, for any reason, is capable of discharging his or her responsibilities.  Thus, given that Congress cannot determine whether a president is a sociopath, but can determine whether the president is a congenital liar, the best reading of the Twenty-Fifth Amendment is that Congress should focus on whether the president is able to discharge the powers and duties of office and not on whether the reason for that failure is some physical or medical problem.

But as I have argued previously in response to a somewhat similar Balkinization post by Mark Tushnet, this position does not take the text seriously.  In particular, it conflates "unfit" (in the first sentence of the post) with the constitutional word "unable."  As I wrote earlier:

True, "unable" can have the figurative meaning "unfit" or "not able to perform effectively" in some contexts (he's "unable" to play quarterback because he throws a lot of interceptions).  But it also (and I would say more commonly) means literally "not able" -- that is, not capable of doing the thing in question because of an absolute impediment (he's "unable" to play quarterback due to a broken leg).

And I would say that the history and structure of the amendment strongly confirm that the latter meaning is the correct one.  In particular, if the Amendment meant that a President could be removed simply because he had character flaws that prevented him from governing in the way some people (or even most people) might prefer, that would be an extraordinary change in the constitutional structure of the presidency.  (Perhaps it would be a good one, but it would not likely be one that went unnoticed for decades).  Instead, it seems clear that the Amendment should be read to cover only to narrow circumstances when the President is literally unable to act as President.  That is the reading that takes the text (and its structure and history) seriously.

Professor Graber's point about medical experts isn't to the contrary.  The reason to give the ultimate responsibility to Congress is of course to place it with a politically accountable branch.  Naturally Congress could consult with medical experts in reaching its conclusion.  But ultimately the Constitution provides for us to be governed by representatives, not by experts, including in this matter.

Professor Graber continues:

Consider a president who goes on a permanent vacation and refuses to discharge any of the powers and duties of the office.  For political purposes, no difference exists between that president and the brain-dead president.  If we limit the Twenty-Fifth Amendment to presidents with physical or medical conditions, however, we can only remove the brain-dead president.

I agree that the Amendment is not limited to physical or mental conditions.  The text has no such limit.  Suppose the President is kidnapped by terrorists, or his plane crash-lands in remote wilderness.  He is then "unable" to act as President, and the Amendment applies.  But Professor Graber's example shows that he is not taking the text seriously.  A President on permanent vacation is not "unable" to discharge his duties; he is "unwilling."  The text says "unable," not "unwilling."  Perhaps there is no difference "for political purposes" but there is a difference for textual purposes.

The remedy for the President on permanent vacation is impeachment.  Refusing to discharge the powers and duties of the office is a misdemeanor (in the original sense: misconduct in office) for which impeachment would be appropriate.  Similarly, character flaws that cause the President to take wrongful actions in office could lead to impeachment. 

The structural key to the 25th Amendment is that it supplements the impeachment remedy for situations where impeachment isn't appropriate.  A President who is "unable" to discharge the duties of office due to an external event not of his choosing (illness, injury, kidnapping, etc.) shouldn't be impeached, because he has not committed a "misdemeanor" (misconduct).  Moreover, he doesn't necessarily need to be removed from office (the remedy upon impeachment and conviction) because the inability may be temporary.  Thus the 25th Amendment sensibly provides a remedy that does not depend on misconduct and can be of limited duration.  In contrast, if the President has character flaws that lead him to misconduct in office, as Professor Graber supposes, the remedy is impeachment; there is no need to try to stretch the 25th Amendment to cover something that is already covered elsewhere.

01/14/2018

More from Orin Kerr (and Will Baude) on Rental Car Searches
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: Three Reactions to the Oral Argument in Byrd v. United States.  (For earlier discussion of the case, see here).  From the introduction:

Unsurprisingly, the Justices were grappling with what kind of test to articulate for when a person has Fourth Amendment rights in a rental car. I hope the Court focuses on the fundamental textual and functional question of when a car is sufficiently that person's that he should have standing to challenge the search. The text of the Fourth Amendment gives people rights in "their" effects, and the century-plus-old doctrine is that Fourth Amendment rights are personal and cannot be vicariously asserted. So the question should be identifying when the car is sufficiently theirs such that they have rights in the car.

As I've noted, that seems like the right originalist question to me.  But Professor Kerr continues:

Justice Gorsuch again repeatedly emphasized the property view of the Fourth Amendment. Exactly what he had in mind wasn't clear to me, though. ...

At one point, Gorusch suggested that he was applying the [William] Baude and [James]Stern approach, even naming them as a possible standard (see the transcript page 24). This struck me as odd. Baude and Stern expressly reject the trespass-property view of the Fourth Amendment (see pages 1834-36 of their article). Instead, they favor an all-positive-law approach to the Fourth Amendment. They can correct me if I'm wrong, but it seems to me that Baude and Stern do not envision their proposal as an originalist standard that looks to the original public meaning of the text. Rather, they crafted their test from first principles, devising a a new nonoriginalist test that they see as attractive for a range of policy reasons.

Professor Baude intervenes: Yes, the Positive Law Model of the Fourth Amendment is Originalist.

Orin refers here to our article, of The Positive Law Model of the Fourth Amendment, an approach I've also blogged about recently here and here and which Orin has previously criticized on other grounds.

I won't speak for James, but I do think that our view is an originalist one, derived from what we know of the original law of the Fourth Amendment. In our article, we discuss both the original history of the Fourth Amendment and the original remedial structure, and I will let interest readers judge those arguments for themselves. But originalists should have no qualms about subscribing to it.

It is true that our article also contains other arguments in favor of our view, but at least for my part there are two good reasons for that. One is that you need not be an originalist to accept our view for the other reasons we give. The other is that even an originalist might think the historical evidence is equally consistent with more than one view, and might look to other arguments to decide which of the historically-permitted possibilities to adopt. In any event, consider this a correction of the record. We make an originalist argument, even if we also make some non-originalist arguments too.

At least originalism makes a case about searching rental cars interesting.

01/13/2018

George Taylor, Matthew Jockers & Fernando Nascimento: The Rhetoric of Justice Scalia
Michael Ramsey

George H. Taylor (University of Pittsburgh - School of Law), Matthew L. Jockers (Department of English, University of Nebraska) and Fernando Nascimento (Bowdoin College) have posted 'No Reasonable Person': The Rhetoric of Justice Scalia (Justice Scalia: Rhetoric and the Rule of Law (Francis J. Mootz, III & Brian Slocum eds., University of Chicago Press, 2018 forthcoming) on SSRN.  Here is the abstract:

Through an examination of Justice Scalia’s rhetoric in his Supreme Court opinions, we challenge his thesis that originalist textualism inherently restrains his judicial discretion. An analysis of his opinions indicates that he frequently uses rhetorical moves to assert that only one judicial interpretation is available, while in fact greater interpretive play is at work that he denies. Examination of his rhetoric evidences that he often is engaged not in the reduction but rather the enhancement of judicial discretion, his own.

In Part I, after a brief summary of Justice Scalia’s originalist textualism, we turn, also briefly, to representative evidence of the various kinds of rhetorical strategies he uses in his Supreme Court opinions to criticize opposing views and enhance the legitimacy of his own. We then choose as representative of this rhetoric his frequent criticism of other views as “absurd” and spend most of our analysis evaluating this usage. We offer what we perceive to be two distinct contributions. First, in Part II, we set the stage by examination of the implications of the rhetorical enhancement of judicial discretion in a famous case. We argue that key rhetorical passages in the concurrence in the Supreme Court case of Bush v. Gore exemplify the fallacious rhetorical accusation of opposing views as absurd and maintain that linguistic evidence and patterns of word use typical of Justice Scalia suggests that these passages reflect his rhetorical style rather than the concurrence’s formal author, Chief Justice William Rehnquist. We contend, then, that there is evidence to suggest that Justice Scalia may have contributed to key phrases and passages in the concurrence. Second, in Parts III and IV, we address more analytically the nature of Justice Scalia’s criticism of other views as “absurd.” In Part III, we contrast the definition of absurdity in the absurdity doctrine to the attributions by which Justice Scalia attributes absurdity to other interpretive stances. Under the absurdity doctrine, absurdity is defined as a result that “no reasonable person” could contemplate. While Justice Scalia is typically quite emphatic that the legislative determination in a statute is not absurd, conversely, he is regularly willing to conclude that an opposing interpretive perspective to his is absurd. In so doing, he seeks rhetorically to underscore his own interpretation as the sole legitimate interpretation of a contested statutory or constitutional passage. In Part IV, we move from a more conceptual evaluation to an empirical exemplification and examination of Justice Scalia’s critique in various cases of other interpretive approaches as absurd. We hence argue that Justice Scalia’s rhetoric highlights the interpretive consequences of a mode of analysis that claims to limit judicial discretion but instead employs a rhetoric that enhances its own interpretive choice. In Part V, we conclude with some general observations that Justice Scalia’s rhetoric owes more to his interpretive preference for a jurisprudence of rules, which results from his perspective as an interpreter rather as a requirement of a legal text, and that contested legal texts more often require interpretive judgment, which permits judicial discretion.

01/12/2018

Jeremy Kidd & Ryan Walters: Measuring the "Scalia-Ness" of President Trump's Supreme Court Shortlist
Michael Ramsey

Jeremy Kidd (Mercer University - Walter F. George School of Law) and Ryan D. Walters (Independent) have posted Searching for Scalia in 2018: Measuring the "Scalia-Ness" of President Trump's Supreme Court Shortlist on SSRN.  Here is the abstract:

With rumors of a retirement this summer on the Supreme Court, President Trump may have another chance to fulfill his campaign pledge to nominate justices “in the mold of Justice Scalia.” By initial accounts, he fulfilled that promise with the nomination of Justice Gorsuch, whose early tenure on the Court has been described as rather Scalia-like. Subsequently, the President has expanded his list of potential nominees to twenty-five.

However, not all on that shortlist may be similarly “in the mold of Justice Scalia.” We thus updated our previous study [Ed.: available here] measuring the Scalia-ness of the potential nominees. We added Judges Brett Kavanaugh and Amul Thapar. We improved the three original measures: originalism, textualism, and writing separately. We also added three additional measures that were characteristic of Justice Scalia: ghostwriting (the degree clerks play a role in writing a judge’s opinions); years as a law professor; and percentage of one’s life outside of D.C. Finally, for comparison’s sake, we included the lower court records of Chief Justice Roberts and Justices Alito, Sotomayor, and Gorsuch.
We then used these variables to create two versions of the Scalia-ness Index. The simple version merely includes originalism and textualism, the most important and defining of Scalia’s traits. The complex version includes all six variables, but with originalism and textualism weighted significantly more than the other two process-based variables, and with the two background-based variables weighted the least.

The results confirmed that as far as being a judge like Justice Scalia, the Trump shortlisters are not created equal. In fact, there is a wide gulf between the top six and the rest. And of those top six, third through sixth place were lumped together, followed by a significant gap to second place, and then a rather hefty distance to the most Scalia-like of the shortlisters. 
Given the abstractness of the Scalia-ness Index Scores, using percentiles we translated the scores into 2017 income and IQ scores. For example, for the complex Index, then-Judge Gorsuch would have been third with a 2017 income of $60,008, followed closely by three other judges ranging from $58,016 to $60,001. (The trailing shortlisters ranged from $21,381 to $32,157, with then-Judge Roberts bringing up the rear.) As to the two judges ahead of Gorsuch, they were the equivalent of a 2017 income of $75,597 and $292,372, respectively. The simple Index produced similar results. If Scalia-ness had been an Olympic speed skating race, it would have been a boring one: the gold medal winner finishing all by himself, followed sometime later by the silver medalist all by himself, followed by a pack of four fighting for bronze, followed by everyone else lagging rather far behind.

President Reagan used to say, “Trust, but verify.” Under the assumption that the best predictor of future behavior is past behavior, some judges empirically appear that they’ll be more Scalia-like than others if placed on the Supreme Court. Past Republican Presidents have often relied on too much trust and too little verification in judicial nominations, with disastrous results, including but not limited to David Souter and John Paul Stevens. We strongly recommend the White House demand proof of Scalia-ness. Here is some.

Additionally, and more broadly, we argue that since data-driven decision have transformed the rest of the world, it should begin to play a more prominent role in decisions about judicial nominees. Doing so will provide more predictive power to the vetting process. The methodology we employ here provides an example of what could be done going forward.

Very interesting -- I will not give away the results, but I'll highlight one observation (p. 23): "Of the twenty judges analyzed (Judge Sykes is counted twice), seven have provided no evidence while on the bench that they are originalist or textualist."

Also worth noting: the authors' prior study, done in anticipation of the 2017 nomination, found then-Judge Gorsuch to be the second or third most Scalia-like on the list (depending on how the factors were weighted).

(Thanks to James Phillips for the pointer).

01/11/2018

James Rogers on Original Meaning and Original Intent
Michael Ramsey

At Liberty Law Blog, James R.  Rogers, Why Scalia’s Originalism Trumps “Original Intent”. From the introduction:

Modern legal originalism evolved dramatically over the four decades of its renewed life in public debate. The speed of that evolution sometimes leaves proponents as well as opponents gasping for breath. Yet the evolution of originalism from Edwin Meese’s “original intentions” to Antonin Scalia’s “textualism” can imply different, even diametrically opposite, answers to the same legal questions.

While both can legitimately claim to be “originalism,” intentionalism and textualism forward mutually exclusive interpretive methodologies. As Scalia wrote in his 1997 book, A Matter of Interpretation: Federal Courts and the Law, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”

And further: 

I want to use this distinction in forms of originalism to refine Paul Moreno’s passing comment on originalism in his fine book review of Justice Jackson’s unpublished opinion in Brown v. Board of Education. There he observed, “it is clear on originalist grounds that the Fourteenth Amendment was not intended to prohibit segregated public schools (or racial intermarriage)” needs to be refined by whether originalism is understood as intentions or text.

The observation is certainly correct with respect to originalism as intentionalism, or originalism understood as expected application (in Jack Balkin’s phrase) of the drafters. The evidence is mainly circumstantial, nonetheless compelling. ...

...

Yet [the Framers'] thoughts, intentions or expectations are irrelevant for textualists originalists. Scalia’s comment about statutory history applies equally to constitutional history: “The statute is what Congress voted on, not what some committee member said he thought it meant. I don’t care what he thought it meant, since the rest of the Congress didn’t know what he thought it meant when they voted for the law.” Textualism distinguishes between original expected application of a provision with its original meaning.

When originalism is understood as textualism rather than intent, it’s no stretch for originalists fairly to read the Fourteenth Amendment to forbid racially segregated schools. ...

(Thanks to Mark Pulliam for the pointer).

01/10/2018

John Greil: Second-Best Originalism and Regulatory Takings
Michael Ramsey

John Greil (Independent) has posted Second-Best Originalism and Regulatory Takings (Harvard Journal of Law and Public Policy, Vol. 41, No. 1, p. 373, 2018) on SSRN.  Here is the abstract:

In Murr v. Wisconsin, 137 S. Ct. 1933 (2017), a dissenting Justice Thomas called for the Court to reexamine the entire doctrine of regulatory takings to ensure accordance with the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. This note is the first post-Murr attempt to do so. It concludes that the original public meaning of the Privileges or Immunities Clause did protect against regulatory takings. 

To reach this conclusion, I apply a novel form of originalism for answering constitutional questions where the text runs out. I analyze the neighboring doctrines of nuisance and eminent domain law as they were at the enactment of the Fourteenth Amendment. The structural interactions between legislatures and courts present in nuisance and eminent domain should apply to the regulatory takings question as well. Whether a nuisance exists, or a taking is for public use, is subject to judicial review under a deferential standard. While the legislature has latitude, the court will strictly enforce the limits on that latitude. In short, regulatory takings are protected against by the original public meaning of the Fourteenth Amendment because what legislatures may not do directly, they may not do indirectly.

The second-best originalism I will apply in this Note creates an objective criterion separate from a judge’s policy preferences and respects democratic decision making. It will provide long term benefits by providing guardrails from which constitutional doctrine will not depart, although its normative grounding is not consequentialist. This Note follows Professor Randy Barnett and Evan Bernick in their goal of creating an originalist mode where “original meaning interpretation alone is not enough to resolve a controversy.” It goes further towards constraining the “spirit” prong. This Note takes part in the contemporary project of articulating a sophisticated originalism for hard cases, and applies that theory to the topic of regulatory takings.

01/09/2018

More from Will Baude on Supreme Court Jurisdiction over Military Appeals
Michael Ramsey

At Volokh Conspiracy, Will Baude: Exciting Developments in Supreme Court Appellate Jurisdiction.  Here is the introduction:

Two months ago I wrote about a set of cases pending at the Supreme Court from the Court of Appeals for the Armed Forces: Dalmazzi, Cox, & Ortiz v. United States. [Ed.:  Discussed at the Originalism Blog here].  I argued that the Supreme Court lacked jurisdiction to hear an appeal directly from that so-called court (often called CAAF). Since then, some interesting things have happened.

First, that very same day, Professor Aditya Bamzai filed an amicus brief arguing that there was no appellate jurisdiction in the case. (Professor Bamzai was the first person I know of to spot this jurisdictional problem and alerted everybody to it in a previous case, which the Court eventually declined to review.)

Second, both the United States and the petitioner responded to this argument in their merits briefs, with the United States spending four pages arguing that Professor Bamzai was wrong because of previous precedents finding jurisdiction to review the decisions of territorial courts and state courts.

Third, last Friday, the Supreme Court took the very unusual step of giving Professor Bamzai ten minutes of time at oral argument to discuss the jurisdictional problem. It is unusual for a non-government amicus to be given any argument time, but this is particularly important since both of the parties disagree with Bamzai's argument against jurisdiction.

It is far too soon to get one's hopes up, but all of these things strike me as very promising developments. For reasons I will discuss in a draft paper, tentatively titled "Locating Non-Article III Adjudication" (or maybe "So-called Legislative Courts") I think that Professor Bamzai is correct. I will try to boil my reasons down to five quick points ...

Congratulations to Professor Bamzai.

01/08/2018

Association of American Law Schools Panels on Intellectual Diversity
Michael Ramsey

Via Josh Blackman's Blog: AALS 2018 Symposium – Why Intellectual Diversity Matters (and What Is To Be Done).  Video at the link.  This is from the Association of American Law Schools (AALS) annual meeting, held this year in San Diego.

Panel 1, "Why Intellectual Diversity Matter": Randy Barnett, Georgetown University Law Center (Moderator); James Lindgren, Northwestern University Pritzker School of Law; Josh Blackman, South Texas College of Law Houston; Laura K. Donohue, Georgetown University Law Center; Carissa Byrne Hessick, University of North Carolina School of Law; Robert J. MacCoun, Stanford Law School.

Panel 2, "What Is to Be Done?": G. Marcus Cole, Stanford Law School (Moderator); George W. Dent, Jr., Case Western Reserve University School of Law; Gail Heriot, University of San Diego School of Law; Daniel B. Rodriguez, Northwestern University Pritzker School of Law; Steve Sanders, Indiana University Maurer School of Law; Kellye Y. Testy, Law School Admission Council.

Professor Blackman comments: 

This was an important discussion, which I hope spurs some action in the AALS, and the legal academy more broadly.

My thought from an originalist perspective:  How many law faculties have even one constitutional scholar with an originalist orientation?  A third of them, perhaps?  (But I expect the number was much less when I graduate from law school).

01/07/2018

Ilya Shapiro & Aaron Barnes on President Trump's Lower Court Nominations
Michael Ramsey

At NRO, Ilya Shapiro & J. Aaron Barnes: Making Circuits Courts Appealing Again.  From the introduction:

Even beyond passing tax reform, slashing federal regulations, and pruning the federal bureaucracy, Donald Trump’s most impressive and lasting achievement so far is his record-setting pace of judicial appointments to the U.S. courts of appeals. While the Supreme Court gets attention for its blockbuster national cases, the 13 federal circuit courts represent the end of the line for all but 70 or so of the more than 50,000 cases they decide annually. Judges sit on those appellate benches for life, affecting our law long after the White House has changed hands.

After eclipsing the previous first-year records set by Presidents Kennedy and Nixon with 12 appellate judges confirmed in 2017, what are the prospects for continuing this momentum and increasing Trump’s judicial legacy?

Ultimately, the answer depends on two factors: (1) the number of open seats to fill and (2) the power to get preferred nominees confirmed. With regard to the latter, to paraphrase Yogi Berra, making predictions about control of the Senate is hard, particularly beyond this year’s elections. But engaging in a bit of informed speculation as to the number of seats that will be available for filling is less of a parlor game. The key consideration in forecasting such vacancies — beyond the 17 that currently exist, for which six nominees are pending — is the potential for judges to take advantage of what is known as senior status. This status is governed by the so-called Rule of 80: A federal judge who is at least 65 years old has the option of going into semi-retirement once the judge’s combined age and years on the bench add up to 80. So someone who was appointed before the age of 50 (as most of Trump’s nominees have been) can go senior immediately at 65.

The authors then undertake a circuit-by-circuit assessment.

RELATED, also at NRO:  Ed Whelan, Trump’s Stellar Judges. From the introduction:

Donald Trump deserves thunderous acclaim from conservatives for his outstanding record of judicial appointments during his first year as president. But his conspicuous successes should not obscure the many obstacles on the long path to genuine transformation of the federal judiciary. Those obstacles have seriously impeded judicial confirmations and threaten to continue to do so. But if they are cleared or eluded, and if Republicans retain control of the Senate after the 2018 elections, President Trump will be positioned to make a huge enduring impact on the courts during his first term.

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. ...

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. (President Obama appointed three federal appellate judges in his first year and 55 over his eight years.) Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women — Amy Coney Barrett, a former Scalia clerk who was a professor of law at Notre Dame; Joan Larsen, also a former Scalia clerk and a Michigan supreme-court justice; and Allison Eid, who clerked for Justice Thomas and served on the Colorado supreme court for eleven years. They also include two Asian Americans, Amul Thapar, a Bush 43 appointee to a federal district-court judgeship, and James Ho, a distinguished appellate lawyer who was also a Thomas clerk.

An important question remains, mainly regarding the appellate judges: will they be originalist judges, or just "conservative" ones?  Justice Gorsuch seems committed to an originalist approach, but many of the President's appeals court nominees are less certain, either because they have not taken strongly originalist positions or have not previously served as judges, or both.  A group of committed originalists added to the courts of appeal would play an important role in shifting the legal culture toward originalism, but it seems premature to assume that will be the outcome. The early decisions of the "Trump judges" will be important indicators.

01/06/2018

Orin Kerr on Collins v. Virginia and Byrd v. United States
Michael Ramsey

At Volokh Conspiracy, Orin Kerr has interesting posts (here and here) on two upcoming Supreme Court cases involving the Fourth Amendment: Collins v. Virginia and Byrd v. United StatesCollins poses the question whether police can look under a tarp on private property where they have reason to believe that (a) there is a motorcycle under the tarp and (b) the motorcycle has been involved in a crime -- but they have no warrant.  Byrd asks whether the driver of a rental car can object to a search if the driver is not listed as an approved driver in the rental contract.

Professor Kerr's analysis is doctrinal and from his as-always outstanding assessments, the cases both sound rather difficult, because they involve areas where the Court has made up an array of not-always-consistent rules.

I'm not a Fourth Amendment scholar but I wonder if an originalist analysis makes both cases a lot easier.  As to Byrd, the Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" (emphasis added).  The unauthorized driver is not party to the rental contract (I assume) so the car is not in any sense "their" property, even on a temporary basis.  So, no Fourth Amendment right.  Affirmed.

As to Collins, looking under the tarp (and even being on the property) is a search, the police have no warrant, and the only originalist exception to the warrant requirement is hot pursuit (according to Laura Donohue's masterpiece The Original Fourth Amendment).  The police were not in hot pursuit.  So, a Fourth Amendment violation.  Reversed.

That was easy.  (Of course it's always easier when you don't know the area and ignore the doctrine).

01/05/2018

Brian Fitzpatrick & Paulson Varghese: Scalia in the Casebooks
Michael Ramsey

Brian T. Fitzpatrick (Vanderbilt Law School) and Paulson Varghese (Vanderbilt University, Law School, Students) have posted Scalia in the Casebooks (University of Chicago Law Review, Vol. 84, 2017) on SSRN.  Here is the abstract:

In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases. We find that Scalia is at or near the top of most of the metrics we explore here, but he does not tower over the competition. Indeed, the data reveal that perhaps the most important factor driving inclusion in our casebooks is seniority: chief justices and justices who led their ideological wings of the Court have a great deal of power to assign themselves opinions that are likely to end up in our casebooks. We find that the most notable exception in the data is not Scalia, but Justice Samuel Alito: he is included in our casebooks to an especially surprising extent given that, until this year, he has always been the most junior member of his wing of the Court.

01/04/2018

Presidential Elector Discretion: The Originalist Evidence (Part 2)
Rob Natelson

[Editor's Note: This is the second part of guest-blogger Rob Natelson's assessment of presidential electors' discretion to vote for candidates other than the one who received the most votes in the elector's state.  As Professor Natelson explains in his previous post, in 2016 some Democratic electors in Colorado and Washington state voted for persons other than the Democratic Party candidate Hillary Clinton, despite state laws purporting to required them to vote for the candidate receiving the most votes in the state; litigation challenging the constitutionality of such state laws is ongoing.  In his previous post, Professor Natelson presented originalist evidence in support of the electors based on text, constitutional structure and contemporaneous practice.  This post addresses evidence from the Constitutional Convention and the ratifying debates.]

Proceedings of the Constitutional Convention. The Electoral College was the product of extensive, and sometimes excruciating, deliberation among the delegates to the framing convention. The final plan was, in all but a few details, hammered out by a blue-ribbon committee consisting of eleven delegates, one from each state then participating in the convention.

This committee was laden with extraordinary talent. Chaired by David Brearly, then Chief Justice of the New Jersey Supreme Court, it counted among its other members James Madison, John DickinsonGouverneur Morris, and Roger Sherman—to name only some of the best known.

Reasons too lengthy to recite here tell us the committee’s plan was carefully considered. The specific decision to institute an Electoral College was based partly on the need to ensure the president’s independence from both Congress and the states. The need for independence from the states had been first enunciated by James Wilson. (Wilson initially favored direct election of the president, but shortly thereafter proposed direct choice by electors instead.) According to Madison’s notes, Wilson “wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States.”

The desire to render the process largely independent of the states is why the convention repeatedly rejected proposals for state officials to choose the president. As Edmund Randolph observed, “A Natl. Executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights agst. State encroachments.”

Of course, permitting the states to dictate electors’ votes would undercut that policy of independence from the states.

The Ratification Debates. Still another category of evidence consists of the public debates over whether to ratify the Constitution. These debates occurred between September 17, 1787, when the Constitution became public, and May 29, 1790, when the 13th state, Rhode Island, ratified. They included remarks made in the state ratifying conventions as well as public comments in the form of speeches, pamphlets, broadsides, letters, and newspapers. The record of those debates suggests that the ratifiers and the voting public understood presidential electors were to exercise their own judgment when voting.

Probably the most-quoted ratification-era statement of this kind is found in Hamilton’s Federalist No. 68:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Admittedly, for a number of reasons, we should not over-rely on The Federalist—or on Hamilton—when reconstructing how the public understood the Constitution. Fortunately, there is a fair amount of additional evidence. There are, first, comments stating merely that the electors (rather than anyone else) would decide how to vote, and that they would act independently.

For example, Roger Sherman, a delegate at Philadelphia and a supporter of the Constitution, wrote that the president would be “re eligible as often as the electors shall think proper.” An essayist signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel asserted that the state legislatures would “nominate the electors who choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”

In his second Fabius letterJohn Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states, utterly vain will be the unreasonable suggestions derived for partiality. The electors may throw away their votes, mark, with public disappointment, some person improperly favored by them, or justly revering the duties of their office, dedicate their votes to the best interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures . . .  As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Some participants emphasized that electors would remain independent because the Constitution would protect them from outside influence. At the North Carolina ratifying convention, James Iredell, later a justice of the U.S. Supreme Court, spoke to the issue in a slightly different context:

Nothing is more necessary than to prevent every danger of influence. Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision, the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of the choice of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in a high degree, the confidence and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral College as representing a viewpoint all its own rather than as reflecting the will of others. Hence Hamilton’s observation in Federalist No. 60:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether by the state legislatures or the people. For example, an essayist styled A Democratic Federalist wrote, “our federal Representatives will be chosen by the votes of the people themselves. The Electors of the President and Vice President of the union may also, by laws of the separate states, be put on the same footing.”

Yet such discussions of appointment were not accompanied by claims that those who made the appointments would dictate the electors’ votes. To be sure, William Davie, another Philadelphia delegate, said at the North Carolina ratifying convention that “The election of the executive is in some measure under the control of the legislatures of the states, the electors being appointed under their direction.” But “in some measure under the control” does not mean “wholly dictate.”

Possibly the closest anyone came to suggesting the legislatures would direct electors’ votes was a comment by Increase Sumner at the Massachusetts ratifying convention: “The President is to be chosen by electors under the regulation of the state legislature.” However, it is unclear what Sumner meant by “regulation.” He could be referring merely to the fact that the legislature would “regulate” how electors were appointed.

For those most part, moreover, participants worded their statements in ways that avoided any suggestions that electors’ votes could be controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors, each having one vote of this number . . . The constitution also admits of the people choosing the electors, so that the electors may be only one remove from the people . . .

Note how this is phrased: (1) the electors choose the president, (2) the people may choose the electors, and if so (3) the choice of the president will be “only one remove from [not “determined by”] the people.”

At the Massachusetts ratifying convention Thomas Thacher asserted “The President is chosen by the electors, who are appointed by the people.” And at the North Carolina convention Iredell argued that “the President is of a very different nature from a monarch. He is to be chosen by electors appointed by the people.” Again, observe the difference between appointment and choice of the president.

In sum, the Hamilton Electors have good cause to claim the mantle of originalism.

01/03/2018

Presidential Elector Discretion: The Originalist Evidence
Rob Natelson

[Editor's note: For this guest post and a subsequent one, we again welcome Rob Natelson, Professor of Law (ret.), The University of Montana; Senior Fellow in Constitutional Jurisprudence, Independence Institute, Heartland Institute, and Montana Policy Institute.  Regular readers know Professor Natelson as one of the nation's leading originalist scholars.]

Colorado went Democrat in the 2016 presidential election. But three of Colorado’s Democratic presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this elector voted, state officials, acting pursuant to a judicial interpretation of state lawvoided his ballot, removed him from office, and authorized the other electors to choose a replacement.

Washington State also went Democrat. Four electors committed to Clinton under state law voted for other people. The state recognized the validity of their vote, but imposed a $1000 fine on each “faithless elector.”

Claiming the mantle of originalism, these electors have labeled themselves “Hamilton Electors,” in commemoration of Alexander Hamilton’s Federalist No. 68 (discussed below). Litigation in Colorado and Washington will determine whether they succeed in making their point. According to Harvard Law Professor Lawrence Lessig, who is among the lawyers representing them, the parties in the Colorado suit recently entered into a stipulation designed to facilitate Supreme Court review.

The Supreme Court has addressed a related issue before: In 1952 it upheld an Alabama law requiring a person seeking office as an elector to pledge to support the nominee of his party. Despite that precedent, though, there is strong evidence the Constitution’s original meaning supports the Hamilton Electors’ claim to independence. This posting collects much of that evidence.

At the outset, I should clarify that there are other considerations—not originalist in nature, or at least not entirely so—supporting the Hamilton Electors’ claims to voting discretion.

  • Colorado authorities removed an elector and arranged for appointment of his alleged successor on December 19, 2016. Yet the uniform day chosen by Congress for appointment of electors pursuant to Article II, Section 1, Clause 4 was November 8, not December 19. Colorado officials asserted they were merely declaring and filling a vacancy. But the “vacancy” arose only because officials declared it because the elector did not vote right.
  • The Electoral College is one of several entities that are not part of the federal government but on which the Constitution bestows important powers and duties. The Supreme Court calls these powers and duties “federal functions.” To the extent the Constitution devolves federal functions to states, state legislatures, and state officials, they act through the Constitution as direct agents of the people. They do not act by virtue of powers reserved to the states by the Tenth Amendment. As a matter of constitutional principle, therefore, it is doubtful that state law can punish electors for exercise of a federal function.
  • Indeed, this deduction is supported by a long string of judicial holdings under Article V, which sets forth the Constitution’s amendment procedure. The courts have repeatedly held that states may not enforce laws to control the behavior of actors exercising federal functions in the amendment process.

This essay, however, focuses only on relevant evidence from the Founding.

Today the Electoral College is governed not entirely by the Constitution’s original language, but partly by the 12th amendment. That amendment was ratified in 1804 after political parties, and political control of electors, became the norm. Some argue that the 12th amendment embodies more control on elector discretion than the original language.

The weakness in this argument is that, while the 12th Amendment altered much, it did not substantively change the constitutional language most relevant to elector discretion. The original Constitution read:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

The 12th amendment worked no change at all in the wording before the ellipses and very little in the rest. The blend now in effect reads:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.

Standard rules of legal interpretation provide that, in absence of evidence to the contrary, when language does not change, meaning does not change. There may have been more party pressures on electors in 1804 than in 1788, but there is no evidence the 12th amendment altered electors’ freedom from legal pressures.

It follows that because relevant constitutional rules did not change, we are justified in consulting the usual sources for deducing the Constitution’s original meaning. As patrons of this site know, those sources include (among others) the words and structure of the constitutional text, accepted prior and contemporaneous practices and customs, and the constitutional debates. The constitutional debates include those during the framing and, preeminently, those during the ratification process.  Evidence from each of these categories appears below.

The Meaning of Key Terms in the Text. In both the original and 12th amendment versions of the text, the electors vote by ballot. There were then four methods of voting in common use: (1) viva voce (“by live voice”), (2) show of hands, (3) polling (in which voters filed past a registrar, verified their identity, and stated their preference), and (4) by ballot. The last invariably meant secret ballot—secrecy being the crucial distinction between that method of voting and the others. Hence in 1800, framer Charles Pinckney could say on the floor of the Senate, “[T]he Constitution expressly orders that the Electors shall vote by ballot; and we all know, that to vote by ballot is to vote secretly.”

Of course, the whole point of a secret ballot is to hide the elector’s choice to ensure that choice is free. State laws telling an elector how to vote are inconsistent with free choice; the ballot requirement therefore suggests that such laws are unconstitutional.

A second key word in both the original Constitution and the 12th Amendment is elector. Eighteenth century general dictionaries define an elector as a person who does the choosing. For example, Nathan Bailey’s 1783 dictionary defined an elector as “a chuser.” The first entry for “elector” in the 1785 edition of Samuel Johnson’s dictionary was, “He that has a vote in the choice of any officer.” Other dictionaries featured kindred definitions.

Eighteenth century legal dictionaries did not define “elector,” but they did describe “election”—and with even clearer implications. Giles Jacob’s law dictionary, the most popular of its kind in America, said of “Election” that it “Is when a man is left to his own free will to take or do one thing or another, which he pleases.” Wording very similar to this appears in other law dictionaries.

Constitutional Structure. Article II of the Constitution authorized states to “appoint” electors “in such Manner as the Legislature thereof may direct.” Yet it contained no language empowering states to control electors once appointed. The argument for state control is therefore necessarily that state control of electors is incidental to the appointment power.

Under the legal doctrine of the founding era (as today), to be incidental to a principal (express) power, a power must (among other requirements) be of lesser importance than the principal. (See also Chief Justice Roberts’ opinion for the court in NFIB v. Sebelius.) This probably disqualifies control as a mere incident of appointment. Other parts of Article II support this inference. Specifically:

  • The president’s power to “appoint . . . Judges of the supreme Court” has never been interpreted to carry authority to control their decisions. A prerogative so weighty cannot be implied; it would have to be supported by express wording.
  • The president appoints executive branch officials, but his prerogative to supervise them is not left to implication. The president receives his supervisory authority in the Take Care Clause, in the commissioning power (generally accompanied during the Founding with detailed instructions), in the right to demand reports from cabinet members, and — according to some (although I disagree) — in the Executive Vesting Clause. The absence of provisions authorizing states to dictate their electors’ votes is further evidence the power does not exist.

Contemporaneous Practice. Another important source for the Constitution’s original meaning consists of public practices of the time. Relevant here was the choice of Scottish members of the British Parliament. They were not directly elected, as in England, but elected by “commissioners” chosen for that purpose by voters or by local governments.

A Scottish commissioner could be required to take an oath prescribed by parliamentary statute. By that oath he swore he had not received anything of value—apparently including his position as elector (“Office, Place, Employment”)—in exchange for his vote. In other words, a Scottish elector’s choice was not to be directed by the locality that sent him.

Under the 1776 Maryland constitution, the state senate was elected by electors chosen by the voters. Electors were required to swear that they would “elect without favor, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.”

These two then-prominent precedents suggest a public understanding that electors’ discretion would be unfettered.

[Editor's note: a second post will discuss evidence from the Constitutional Convention and the ratifying debates.]

01/02/2018

Erwin Chemerinsky on the Most Important SCOTUS Stories of 2017
Michael Ramsey

In the ABA Journal, Erwin Chemerinsky: The most important SCOTUS stories of 2017.  Number one is, naturally, "The nomination and confirmation of Neil M. Gorsuch."  But in the ensuing four paragraphs of discussion, Dean Chemerinsky does not mention the word "originalism."  (He does note that "thus far, he has voted with Justice Clarence Thomas 100 percent of the time," which he describes as "consistently [being] a very conservative vote.")

I think this misses an important part of the story.  Justice Gorsuch was nominated and confirmed as an outspoken textualist/originalist.  He recently reaffirmed that orientation in a strongly worded speech at the Federalist Society national convention.  Prior to his nomination, commentators predicted that Justice Scalia's textualist originalism would become increasingly irrelevant after his death.  That does not appear to be the case, however.  It seems especially important to constitutional theory and interpretation that Justice Gorsuch is not just a "very conservative vote" but an originalist vote (and an articulate originalist voice).  Obviously that does not mean that the Court will be reliably originalist in the near future; but it means that originalism will remain an important part of the Court's discourse, and hence an important part of academic and political commentary about the Court.

(Via How Appealing).

01/01/2018

Twelve Problems with Substantive Due Process
Chris Green

I have posted Twelve Problems with Substantive Due Process, part of a symposium at Georgetown last spring, to SSRN. Here is the abstract:

I present twelve quick problems for the idea that “without due process of law” in the Fifth or Fourteenth Amendments can be tolerably paraphrased as “unreasonably”:

(1) Textually, Magna Charta and its progeny treat “due process of law” as a restriction on methods of proving accusations.

(2) These statutes’ contexts make clear that they limit royal power rather than giving the king a massive power (and duty) to review earlier statutes for reasonableness.

(3) The most promising purported early instance of reasonableness review, Dr. Bonham’s Case, makes no mention of Magna Charta or its progeny.

(4) Blackstone says that, while regrettable, prospectively-adopted and lawfully-imposed disproportionate sentences are consistent with Magna Charta and its progeny.

(5) “Process” in the Sixth Amendment refers to factfinding writs.

(6) No purported instances of antebellum substantive due process adopt a reasonableness reading.

(7) Republicans simultaneously condemned slavery as immoral but held that slaves could be “lawfully claimed” and fugitives “lawfully reclaimed.”

(8) Responding to Dred Scott, Lincoln explained the Fifth Amendment as a requirement of prospectivity and lawfulness, not an absolute protection for liberty or property.

(9) Republicans held that “duly convicted” in the Thirteenth Amendment required conviction by due process of law, but allowed disproportionate, unreasonable sentences.

(10) “Law” in the Privileges or Immunities Clause can be unreasonable or unjust.

(11) Reverdy Johnson embraced due process while opposing the Civil Rights Act of 1866 and condemning the Privileges or Immunities Clause as vague and open-ended.

(12) The history of citizens-only privileges makes the Privileges or Immunities Clause the only plausible source for a constitutional ban on unreasonable discrimination.

12/31/2017

Seth Barrett Tillman: The Blue Book & the Foreign Emoluments Clause Cases Against the President
Michael Ramsey

 Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted The Blue Book & the Foreign Emoluments Clause Cases Against the President: Old Questions Answered on SSRN.  Here is the abstract:

This short paper attempts to explain why the American State Papers roll of officers (published in 1834) substantively amended Hamilton's original 1793 roll of officers (partially reproduced in The Papers of Alexander Hamilton).

12/30/2017

University of Chicago Law Review Special Issue on Justice Scalia
Michael Ramsey

Recently published: the University of Chicago Law Review special issue on Justice Scalia.  Here is the table of contents:

In Memoriam

Some Reflections on Justice Scalia
Lillian R. BeVier

Justice Scalia: Constitutional Conservative
Noel J. Francisco

Coots, Loons, and Civility
Taylor A.R. Meehan

The Education of a Law Clerk, with Thanks to Justice Scalia
Andrew J. Nussbaum

The Forthrightness of Justice Scalia
Ryan J. Walsh

Essays

Congressional Insiders and Outsiders
Amy Coney Barrett

Originalism as a Constraint on Judges
William Baude

Scalia in the Casebooks
Brian T. Fitzpatrick & Paulson K. Varghese

Justice Scalia’s Other Standing Legacy
Tara Leigh Grove

Confronting Crawford: Justice Scalia, the Judicial Method, and the Adjudicative Limits of Originalism
Gary Lawson

Remembering the Boss
Jonathan F. Mitchell

Originalist Law Reform, Judicial Departmentalism, and Justice Scalia
Kevin C. Walsh

Via Will Baude at Volokh Conspiracy (recently relocated to Reason.com from the Washington Post).

12/29/2017

Santiago Legarre: A New Natural Law Reading of the Constitution
Michael Ramsey

Santiago Legarre (Universidad Catolica Argentina; Notre Dame Law School) has posted A New Natural Law Reading of the Constitution (Louisiana Law Review (2018), forthcoming) on SSRN.  Here is the abstract:

This article first explains what natural law is not; secondly, it explains what is natural law; finally, and hopefully more originally, the article explores two different ways in which natural law is relevant in constitutional interpretation (and indeed in the interpretation of any positive law). In so doing it criticizes originalist theories of interpretation insofar as they make of historical inquiry not the starting but the final point of the interpretative venture.

12/28/2017

Josh Blackman on the President's Immigration Powers
Michael Ramsey

At Lawfare/Josh Blackman's Blog, Josh Blackman: The Ninth Circuit Previews Why Article II Will Save The Travel Ban.  From the introduction:

In invalidating the latest iteration of the travel ban, known as the Proclamation, the Ninth Circuit Court of Appeals reached an important question of first impression: whether the policy could be supported by the President’s independent Article II  authority. The Hawaii v. Trump panel held that “the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” This conclusion is the most important sentence in the entire 77-page opinion. If the president has the inherent power to deny entry to aliens, then the court’s Immigration and Nationality Act (INA) analysis is largely superfluous. If he lacks such a power, then the Ninth Circuit’s statutory analysis would hold up on appeal.

Professor Blackman relies principally on  (1950) to conclude that the President has such an inherent power: 

Through a 1941 law, Congress gave the president the power to issue a proclamation, which would have the effect of rendering “unlawful” the “entry into the United States” of certain aliens when “the President shall find that the interests of the United States require that restrictions.” In other words, Congress permitted the president to effectively amend the statutory grounds for inadmissibility. President Roosevelt issued such a proclamation, which ordered that “no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States.” (This open-ended language is very similar to 8 U.S.C. 1182(f), which would be enacted a decade later.) Pursuant to this proclamation, the Attorney General promulgated the regulations that denied Knauff’s entry into the United States. On appeal to the Supreme Court, Knauff argued that the “1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power.”

The court rejected this argument, explaining that the power at issue in the 1941 act was not a legislative power at all; it was an inherent executive power. “The exclusion of aliens is a fundamental act of sovereignty,” Justice Sherman Minton stated. “The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Thus, there cannot be a violation of the non-delegation doctrine, because Congress is not delegating legislative power at all. The court supported this argument with a citation to , which also rejected a non-delegation doctrine challenge because the President was exercising his exclusive powers concerning foreign affairs.

What was the 1941 act doing then, if not delegating legislative power? “When Congress prescribes a procedure concerning the admissibility of aliens,” the court explained, “it is not dealing alone with a legislative power.” Rather, “[i]t is implementing an inherent executive power.” In the normal course, the court noted, “Congress supplies the conditions of the privilege of entry into the United States.” However, “because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power.”

I think this is probably right as an original matter as well.  First, there's no textual indication that Congress has plenary power over admission of aliens.  Congress has no express power over admission of aliens; several of Congress' enumerated powers may allow partial control over admission of aliens, and those powers combined may come close to full control as a practical matter.  But that does not seem sufficient to support an exclusive power.  Second, as I've argued in multiple places (but initially here), the President's executive power vested by Article II, Section 1 included traditionally executive foreign affairs powers to the extent such powers were not vested in Congress by the Constitution.  Third, it seems likely that the power to exclude aliens (especially the power to exclude aliens considered to be a threat to national security) was a traditional executive power.  Although I've not done the research necessary to say for sure, it seems likely that the English monarch had broad power to exclude aliens, at least absent a contrary direction from parliament.  If that's right (and I'd be very surprised if it isn't), and since the text does not give Congress a direct power over admitting aliens, that power should be understood as vested in the President by Article II, Section 1.  That's more-or-less where Knauff v. Shaughnessy comes out, although the Court's majority rested too much on "inherent" power and not enough on the Constitution's text for an originalist to endorse the opinion.

(Thanks to Mark Pulliam for the pointer).

12/27/2017

Gregory Ablavsky: Race, Citizenship, and Original Constitutional Meanings
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted 'With the Indian Tribes': Race, Citizenship, and Original Constitutional Meanings (Stanford Law Review, forthcoming) on SSRN.  Here is the abstract:

Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.

This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.

12/23/2017

Emoluments Case Dismissed (with my Comments)
Michael Ramsey

The opinion from Judge Daniels (S.D.N.Y) in CREW et al. v. Trump is here.  (Via PoliticoJudge dismisses suits claiming Trump violated emoluments clause.)

The opinion mostly rests on doctrinal analysis finding that plaintiffs lack standing.  There's this about the original intent of the emoluments clauses (concludind that the plaintiffs are not within the "zone of interest" for standing purposes): 

Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition. The prohibitions contained in these Clauses arose from the Framers' concern with protecting the new government from corruption and undue influence. Indeed, at the time of the Founding, the new republic was conscious of the European custom of bestowing gifts and money on foreign officials. The Framers, who fought a war to gain their independence from British rule, wanted government officials to avoid future undue influence. As Edmund J. Randolph explained at the Virginia Ratifying Convention,

The [Foreign Emoluments Clause] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state .... This restriction is provided to prevent corruption.

Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 465-66 (2d ed. 1891); (see also Br. of Former Gov't Ethics Officers as Amici Curiae Supporting Pls., ECF No. 71-1, at 1 (stating that the Clauses "are an important check on corruption, and a beacon for good governance.").)

The Framers were not only concerned with foreign corruption, but they were also wary of undue influence from within. To ensure the president's independence from the states and additional financial incentives from the federal government, the Framers included in the Constitution the Domestic Emoluments Clause. That clause was meant to ensure that the president has "no pecuniary inducement to renounce or desert the independence intended for him by the Constitution." The Federalist No. 73 (Alexander Hamilton). Evidently, the Framers were concerned that

[T]he legislature, with a discretionary power over the salary and emoluments of the [president], could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations.

Id. The Clause also helps to ensure presidential impartiality among the states given that"[n]either the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act." Id.

Given this history, there can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence, while the Domestic Emoluments Clause was meant to ensure presidential independence. Therefore, the Hospitality Plaintiffs' theory that the Clauses protect them from increased competition in the market for government business must be rejected…

Apparently as independent grounds for dismissal, the court found the case to be a political question and (relatedly) unripe for adjudication:

Plaintiffs' Foreign Emoluments Clause claims do implicate political question concerns. The political question doctrine has its roots in the separation of powers and is ultimately a doctrine of justiciability. It bars courts from deciding cases that are inappropriate for judicial resolution based on a lack of judicial authority or competence, or other prudential considerations. [Citing Baker v. Carr]

Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant's conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant's conduct. As such, this case presents a non-justiciable political question.

[In addition,] Plaintiffs' Foreign Emoluments Clause claims are indeed not ripe for judicial review. Ripeness is a different justiciability doctrine designed to prevent courts from prematurely adjudicating cases. [Citing Abbot Labs. v. Gardner and Justice Powell’s opinion in Goldwater v. Carter].  … Here, Plaintiffs' suit implicates a similar concern regarding a conflict between two coequal branches of government that has yet to mature. As indicated earlier, the Foreign Emoluments Clause makes clear that Congress, and Congress alone, has the authority to consent to violations of that clause. Plaintiffs' principal allegation is that Defendant has completely ignored this balance of power by continuing to accept emoluments without Congressional approval. As such, this case involves a conflict between Congress and the President in which this Court should not interfere unless and until Congress has asserted its authority and taken some sort of action with respect to Defendant's alleged constitutional violations of its consent power.

At this stage, it would be "both premature and presumptuous for [a court] to render a decision on the issue of [whether Congress's consent] is required at this time or in the near future when ... Congress itself has provided no indication whether it deems such [consent] either necessary, on the one hand, or imprudent, on the other." Dellums v. Bush, 752 F. Supp. 1141, 1149-50 (D.D.C. 1990). If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, "it is not [this Court's] task to do so." Goldwater, 444 U.S. at 998. This Court will not tell Congress how it should or should not assert its power in responding to Defendant's alleged violations of the Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs' Foreign Emoluments Clause claims are not ripe for adjudication.

I'm not persuaded by either of these latter points.  Of course, it is a political question textually entrusted to Congress whether to approve of the receipt of emoluments.  But the question here is not whether Congress rightly or wrongly approved; the question is whether absent approval the benefits the President is receiving count as "emoluments" for constitutional purposes.  That's purely a question of constitutional interpretation, the type of activity to which courts are particularly suited, and exactly the sort of question that, under Zivotofsky v. Clinton, is not a political question.  (Aside: why do courts persist in relying on Baker v. Carr and ignoring the more recent and more important decision in Zivotofsky?).

I do think there is a potential political question, but it's not the one the court identifies.  Rather, it is whether Congress has implicitly approved (or decided that the benefits are not emoluments, or that the emoluments clause does not apply to the President).  Congress has been interacting with the President for almost a year now, with full knowledge of the emoluments issues raised in this case, without (as an institution) making any objection.  Arguably that might count as implicit approval, and arguably it's a political question how Congress chooses to signal its approval.

Relatedly, I don't think much of the ripeness argument.  If Congress were actively considering the issue, or if the matter had just arisen, I could see an argument that the court should wait.  But Congress does not seem to be actively considering it.  So that squarely presents the question whether the President is acting unconstitutionally by receiving benefits without the consent of Congress.  Dellums and Goldwater both involved suits by members of Congress, so perhaps the considerations were different.  But if a private party is harmed, the burden should be on the President to get consent, not the other way around.  Calling the present decision unripe in effect means that Congress must affirmatively disapprove to block the President's action.  That's not how the Constitution reads.

Indeed, if the ripeness decision is correct it would seem to bar all sorts of separation of powers disputes that we ordinarily think of as justiciable.  Commonly the President is said to be taking an unconstitutional action because Congress has not approved.  In the famous Steel Seizure case, for example, the claim was that the President had seized steel mills without Congress' approval.  That did not make the claim unripe.  It meant that, if the claim had merit, the President could not act unless Congress approved.  I don't see why the same conclusion shouldn't apply here.

12/22/2017

Some Thoughts on the Logan Act
Michael Ramsey

It's not really originalism, but perhaps of interest: at the invitation of the Federalist Society, I contributed this short essay on the Logan Act to their blog and participated in a podcast that is available here.  (18 U.S.C. §953, originally enacted in 1799 and informally called the Logan Act, prohibits unauthorized private diplomacy by U.S. citizens with foreign governments).

There are various issues relating to the Act -- some with originalist overtones and some not -- as sketched in the essay.  For present purposes, I'm most interested in the question of what it means to be "without authority of the United States."  The Act provides:  

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

As I put it in the essay:

The Act applies to persons who act “without authority of the United States.” That could be read to mean any persons who do not act with the approval of the President; but it could also be read to mean only persons who have no public status at all. For example, members of Congress, acting in pursuance of their legislative duties, might be thought to act with authority of the United States even when they are not acting with approval of the President. The immediate purpose of the Act in 1799 was to prevent the sort of purely private diplomacy [George] Logan [a private citizen who was the inspiration for the Act] himself engaged in, which is distinct from activities of public officials such as members of Congress. 

As with members of Congress, the foregoing factors might counsel hesitancy to apply the Logan Act to the activities of presidential transition teams after a presidential election. The purpose of the transition is to smooth the way for the new administration, and in the diplomatic field that seems necessarily to involve speaking with foreign governments about matters of dispute. Indeed, this seems a vital activity to reduce uncertainty during the transition. It is likely that members of transitions teams of other incoming Presidents have routinely discussed pending disputes with foreign officials without raising Logan Act concerns. The Act’s goal of preventing private diplomacy is far removed from the context of presidential transitions, and there were no quasi-official transition teams at the time the Act was passed. Thus the history and purpose of the Act may suggest that it should not apply to transition teams. Moreover, one might see designated members of a transition team have a sort of official status, having been selected by the President-elect, who in turn has a quasi-official status as a result of the election. Indeed, the presidential transition process is formally established by law: the Presidential Transition Act of 1963, as amended, provides funding, facilities and access to government services for the transition team. Thus, although the diplomatic activities of the transition team may not have been directly authorized by the existing Executive Branch, like the activities of members of Congress they might be seen as done with “the authority of the United States” due to the transition’s quasi-official status and the longstanding purpose and practice of transitions. 

12/21/2017

Aziz Huq: Separation of Powers Metatheory
Michael Ramsey

Aziz Z. Huq (University of Chicago - Law School) has posted Separation of Powers Metatheory (Columbia Law Review, Vol. 118) on SSRN.  Here is the abstract:

Scholarship and jurisprudence concerning the Constitution’s separation of powers today is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation-of-powers system as abiding in a stable equilibrium or as enthralled in convulsively transformative paroxysms. Congress’s Constitution [ed.: the new book by Josh Chefetz, available here] — a major contribution to theorizing on the separation of powers — provides a platform to step back and isolate these important, if not always candidly recognized, disputes about the empirical and normative predicates of separation-of-powers theory — predicates that can be usefully grouped under the rubric of ‘separation of powers metatheory.’ Unlike much other work in the field, Congress’s Constitution directly identifies and addresses the three important key metatheoretical questions in play when the separation of powers is theorized. This review analyzes how it grapples with those profound challenges, and tries to articulate a descriptively fit and normatively compelling account of our federal government. Considering Congress’s Constitution from this perspective offers a valuable opportunity for considering the state and direction of academic theorizing on the separation of powers more broadly.

12/20/2017

Nonconstitutional Adjustments and the Carpenter Case
Mike Rappaport

I have written three prior posts on the Third Party Doctrine and the Carpenter Case – see here, here, and here.  My basic, tentative take, is that under the original meaning, cell phone customers probably aren't currently protected by the Fourth Amendment, but that they could be protected by the actions of states, of the federal government, or through private contracts with cell phone companies.

Many people feel strongly that cell phone customers should be protected (as do I) and will be tempted to argue (as I do not) that the Fourth Amendment should be “interpreted” to protect them.  Some people will argue – in a variety of ways – that the circumstances of the modern world are different from those in the Framers’ world and therefore the Amendment must be adjusted to reflect modern circumstances (if not modern values).  Even if private contracts or state laws could be employed to protect customers under the Fourth Amendment’s original meaning, the process of forming these contracts or enacting these laws is thought to be too burdensome.  Instead, the Supreme Court should modify the Constitution to protect customers without these private or state adjustments.

One way to look at this situation is to see that there are two sets of adjustments: nonconstitutional and judicial adjustments.  One way to protect Fourth Amendment rights is through nonconstitutional adjustments (private contracts and state laws).  If these adjustments are made, then the Constitution is “updated” to modern circumstances.  Such adjustments are not always possible (for example, expanding federal power to regulate commerce during the New Deal), but often they are.  But even where possible, such nonconstitutional adjustments require effort and time.  For example, changing the contracts between cell phone companies and customers would involve significant effort – a publicity campaign by privacy groups followed by consumers caring about those contracts.  For many people, these nonconstitutional adjustments are just too difficult.

But the alternative to employing nonconstitutional adjustments is to employ judicial adjustments – having judges rewrite or update the Constitution to reflect their view of what modern circumstances require.  In my view, such judicial updating is seriously problematic for a variety of reasons, but most importantly that having a 9 member court in Washington D.C. redraft the Constitution is not very attractive.

Unfortunately, many people, including most nonoriginalists, seem to believe that it is better to have the Supreme Court redraft the Constitution than to incur the costs of nonconstitutional adjustments.

Jonathan Adler: Auer Evasions
Michael Ramsey

Jonathan H. Adler (Case Western Reserve University School of Law; PERC - Property and Environment Research Center) has posted Auer Evasions (16 Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force of law in particular. This brief Article seeks to explain how the practice of Auer deference undermines – and facilitates the evasion of – basic administrative law principles of accountability, notice, responsibility and finality. After reviewing Auer history and considering these evasions, the Article ponders whether we are approaching Auer’s end.

12/19/2017

Josh Blackman on the President and Obstruction of Justice
Michael Ramsey

At Josh Blackman's Blog: Obstruction of Justice and the Presidency: Part III.  Here is the introduction:

In  of this series, I concluded that the “president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” For purposes of either a criminal conviction, or an impeachment trial, I wrote, “the question of whether the president obstructs justice will turn on whether his actions are supported by Article II itself.”

 advanced a framework to understand how the Constitution’s negative limitations on Congress’s powers and positive vestings of power to the president both limit the scope of what can constitute “high Crimes and Misdemeanors.” With respect to the negative limitations, if the Constitution limits Congress’s power over certain areas—such as the religious test clause or the free speech clause—Congress lacks the power to define “high Crimes” on those bases. In a similar fashion, because the Constitution disables the president from, for example, violating a person’s life, liberty, or property, without due process of law, such conduct could give rise to “high Crimes.” On the flip side, when the Constitution grants the president and vice president certain positive powers, Congress cannot then define “high Crimes” on those bases.

This third installment will consider how “obstruction of justice” can serve as the predicate for “high Crimes,” with respect to the impeachments of Presidents Richard Nixon and Bill Clinton. Finally, this entry will discuss how the positive vestings of power over foreign affairs in President Trump, combined with his absolute power to remove a principal officer, could serve as the basis for his defense against obstruction of justice charges, either in a criminal court or a court of impeachment.

12/18/2017

Cass Sunstein on Jud Campbell on the First Amendment
Michael Ramsey

At Bloomberg View, Cass Sunstein (Harvard): What If the Founders Had Free Speech Wrong? (commenting on Jud Campbell, Natural Rights and the First Amendment (127 Yale L.J. 246 (2017)).  Here is the introduction:

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean?

 A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.
 
And summarizing Professor Campbell's paper: 

In [Campbell's] account, [the founders' world] was an altogether different political world, and their concepts and principles were not at all like ours.

Campbell starts with the claim that much of the founders’ thinking was organized around the idea of “natural rights” -- rights that people could have without any government at all. Unlike the rights to a jury trial and to due process of law, the right to speak counted as a natural right.

But this didn’t mean that free speech was an absolute, or even that courts should protect it. Far more modestly, it meant that speech could be restricted only to protect the public good, and only when the people’s representatives voted in favor of the restriction.

Campbell offers two important qualifications. First, the founding generation opposed licensing of the press. In that way, they sought to forbid prior restraints on what members of the press could say (without necessarily forbidding subsequent punishment through criminal trials).

Second, they thought that (in Campbell’s words) “well-intentioned statements of one’s views were immune from regulation.” That means that so long as your speech was not meant to mislead or harm others, you were protected.

And from the conclusion:

Campbell’s research raises serious questions for “originalists” – those who believe, with Justices Clarence Thomas and Neil Gorsuch, that the meaning of the Constitution is settled by the original understanding of its terms. Do we really want to go back to the 18th-century view of freedom of speech?

12/17/2017

John Manning: Justice Scalia and the Idea of Judicial Restraint
Michael Ramsey

John F. Manning (Harvard Law School) has posted Justice Scalia and the Idea of Judicial Restraint (115 Mich. L. Rev. 747 (2017)) on SSRN.  Here is the abstract:

The book review of Antonin Scalia, A Matter of Interpretation (1997), suggests that Justice Scalia’s commitment to textualism and originalism may be rooted as much in a scruple against judicial discretion as in claims of democratic legitimacy.   In particular, Justice Scalia structured A Matter of Interpretation around a criticism of the “common law” method, which he saw as vesting excessive discretion in judges.  He went on to argue that interpretive approaches such as statutory purposivism and living constitutionalism raise concerns, in large part, because they invite judges to behave as common law judges.   Connecting this theme with some of Justice Scalia’s well known opinions, the book review adds that Justice Scalia’s “anti-discretion principle” also explains some other aspects of his judicial behavior, such as his tradition-based approach to substantive due process, his general antipathy to balancing tests, and his views on stare decisis.  The book review concludes by identifying some puzzles arising out of Justice Scalia’s “anti-discretion principle” and offers some preliminary thoughts about why his approach may have gained traction despite those puzzles.

12/16/2017

Kristen Eichensehr: Courts, Congress, and the Conduct of Foreign Relations
Michael Ramsey

Kristen Eichensehr (University of California, Los Angeles (UCLA) - School of Law) has posted Courts, Congress, and the Conduct of Foreign Relations (University of Chicago Law Review, Vol. 85, 2018 (forthcoming)) on SSRN.  Here is the abstract:

In the U.S. constitutional system, the President generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. “Non-executive conduct of foreign relations” occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the U.S. non-executive branch and a foreign executive branch. Non-executive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, non-executive conduct of foreign relations is likely to become more frequent due to changes in technology, foreign governments’ increasing sophistication about the U.S. government, hyperpartisanship in the United States, and what might be called the “Trump effect.” 

Building on Justice Jackson’s iconic tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer, this Article proposes a converse Youngstown framework for determining when non-executive conduct of foreign relations is constitutional. The converse Youngstown framework judges the constitutionality of the courts’ or Congress’s actions in light of executive authorization or condonation (Category 1), executive silence (Category 2), or executive opposition (Category 3). The converse Youngstown framework offers significant advantages over the current ad hoc approach to analyzing non-executive conduct of foreign relations, and it avoids some of the pitfalls that critics have identified with traditional Youngstown analysis. First, it more accurately reflects the fact that the President isn’t the only actor who exercises foreign relations initiative. Second, it avoids much of the indeterminacy that plagues the traditional Youngstown analysis. Finally, it simplifies the constitutional analysis of non-executive conduct of foreign relations by explaining why easy cases are easy, allowing courts to engage in constitutional avoidance in some cases, and showing how Congress and the courts may sometimes trump the executive, even in Category 3.

Bonus: The Originalism Blog is cited in footnote 108.

(Thanks to Seth Barrett Tillman for the pointer).