John McGinnis on Same-Sex Marriage
Michael Ramsey

At Liberty Law Blog, two interesting posts from John McGinnis, who is sympathetic to same-sex marriage but doubtful about the Court imposing it:

Federalism as a Catalyst for Beneficial Social Change

Might the Court’s Denial of a Right to Same-Sex Marriage Advance Liberty

From the former:

Today views appear to be changing quickly about same-sex relations and same-sex marriage. Federalism is enabling that change. Many states are permitting same-sex marriage to reflect the sentiments of their people. Other states are permitting civil unions. These states provide demonstration projects that will permit social scientists as well as citizens of other states to evaluate their effects. If they are not adverse, more and more states will adopt same-sex marriage. There may be holdouts, but these will come under pressure from many of their own citizens and of businesses to change their laws so that they can attract the widest pool of talent.

One still might ask what is gained by preferring this federalist method of social change. The most important advantage is that it provides a better screen for beneficial social change than the decisions of a bare majority of Supreme Court justices. While on balance I support same-sex marriage as a policy matter, I recognize that I could be wrong. One does not lightly discard one of the universally defining features of an institution that has been around for thousands of years.

The federalist method of social change puts a a break on too hasty decisions about such matters.  It allows for sober second thoughts as new information becomes available to evaluate the effects of new rights.  Another advantage is that federalism protects the sense of citizens that they are entitled themselves to debate and deliberate on new moral issues, thus providing buy-in for new social arrangements.

To be sure, because of federalism some same-sex couples may not be able to marry in their chosen jurisdiction. But yet another advantage of federalism is that these couples can choose a jurisdiction that permits same-sex marriage. One of the great virtues of our current federal constitution is that it permits all citizens to exit their state’s jurisdiction. The appropriate scope of freedom for some may indeed prove a straightjacket for others. Decentralized social ordering in a republic with federal guarantees of freedom of movement helps reconcile citizens of different moral intuitions.


Josh Blackman Reviews "The Originalist"
Michael Ramsey

A Josh Blackman's Blog, a review of The Originalist, including this:

Edward Gero, the actor playing Scalia, got his mannerisms down to a tee. The voice was slightly off–not quite grumpy enough–but the facial expressions and smirks were perfect.


Contra Professor Somin (UPDATED)
Andrew Hyman

Professor Ilya Somin has a post at Volokh Conspiracy responding to (among other things) a recent post of mine that he calls "right wing" criticism.  That blog post of mine took no position about whether state legislatures ought to legalize gay marriage, and the same is true of this blog post too.
Professor Somin first points to the case of Craig v. Boren, and argues that the Oklahoma state legislature was not trying to make “a statement against men or women.” I didn't mention Craig v. Boren in my original blog post because the legislation struck down in that case so obviously discriminated against men; it reduced the ability of men to buy beer, but not the ability of women to buy beer.  The  statutes at issue in Obergefell are nothing like it, because they do not discriminate against either gender as a class.  The Oklahoma law did not explicitly denounce men or insult men, but still it was against men, and so I don't think Professor Somin really has a point there.
Second, Professor Somin claims that laws banning interracial marriage would be unconstitutional even if motivated by a sincere desire for cultural diversity instead of by racism.  Well, sure, marriage as defined for millennia has been deemed a fundamental right, and so strict scrutiny would apply according to the Court's precedents; therefore the law would inevitably be struck down.  The strict scrutiny would not be because of nonexistent discrimination against a suspect class, but rather because of the fundamental right being violated, and the person being discriminated against as an individual.  Even if one insists that statutes be 100% colorblind (a notion rejected by the Supreme Court in Parents Involved v. Seattle), still Chris Green cogently argued at this blog that gender and race should not automatically be treated the same in that regard.
Moving along, I'd also like to say a word about Mike Ramsey's recent blog post regarding Solicitor General Donald Verrilli's unpreparedness to say how the Due Process Clause might apply in Obergefell.  What Verrilli should have admitted is that such a thing is obviously precluded by Graham v. Connor, in which the Court said: "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims."  The only difference in Obergefell is that the EPC instead of the Fourth Amendment is the explicit text.
One last thing.  If we really want to cut through the fog, it must be said that the Court's substantive due process jurisprudence has virtually nothing to do with the Due Process Clause as originally enacted in 1789, or as reenacted in 1868.  Likewise, the Court's equal protection jurisprudence has strayed far afield (as explained here).  The original meaning of neither clause offers any support to the notion that a five-judge majority may legislate social policy for hundreds of millions of people, and for their own successors too.  There is a word for such disparity of power: unequal.
UPDATE:   Professor Somin has kindly updated his blog post, including this: "a requirement that blacks and whites attend segregated public schools or use segregated public services would be unconstitutional even if it were adopted for nonracist reasons and even if the schools and other services in question were all of exactly equal quality."  Well, given that many American cities remain de facto segregated into separate neighborhoods, it is sadly true that many of those cities require people to use the nearest public services and public schools, albeit for non-racist reasons.  But suppose that neighborhoods were fully integrated by race, and suppose a city still required use of different schools by race, because of some warped devotion to ethnic diversity.  It is kind of fanciful to imagine that racism would not be involved in such a scenario, and I think we can safely rely upon democracy to ensure that such weird things do not happen; I also very much doubt that such a weird scheme would satisfy rational basis review under the Court's equal protection clause precedents.  In that case, the class discriminated against would be the group of people who are not allowed to use the most convenient schools that they could otherwise use.  (And the class discriminated against in Professor Somin's marriage hypothetical would be the group of people who aren't allowed to marry the people they otherwise would have wanted to marry.)  Anyway, my thanks to Professor Somin for having this discussion.

Randy Barnett on Michael Dorf on Originalism
Michael Ramsey

A great post by Randy Barnett, here at Volokh Conspiracy, responding to this post by Michael Dorf at Dorf on Law (and this earlier one).

Interestingly, Professor Dorf says (as part of a longer argument):

Originalists think that the meaning of any provision of the Constitution simply is the original understanding. Nonoriginalists like me mostly think that the original understanding is an important starting point in construing the constitutional text, but not necessarily the end point.

This strikes me as an important concession.  If the original understanding "is an important starting point," Professor Dorf necessarily assumes that the original understanding is (at least in some nontrivial number of cases) knowable at at a level of specificity and a with a degree of confidence that would allow it to be applied to modern problems.  (Of course, in his view, it doesn't have to be so applied, but it could be).  Yet a common criticism of originalism is precisely the opposite -- that original meaning is not knowable to this extent.  

I'm not sure if this really reflects a deep split in nonoriginalism or whether nonoriginalists shift between the two positions depending on which seems more congenial.  But I am happy to take Professor Dorf at his word and count him as believing originalism is possible, even if not always desirable.  (Insiders know that my scholarship is much more directed at the former proposition rather than the latter).

In an event, Professor Barnett responds in part:

As the rest of his blog post makes clear, like other living constitutionalists, “changed circumstances” does all the work in Dorf’s analysis.  If adhering to the original meaning of the text fits today’s “circumstances,” then it should be followed. But if “circumstances” have changed, then it need not be followed. So all th[at] matters is what meaning fits today’s circumstances. Whether or not it is a “starting point,” the original meaning plays no role at all in the “ending point” of the analysis. All that matters is the meaning that, in Dorf’s view, “works” today.


Obergefell, Craig, Nguyen, and Somin (Updated)
Chris Green

Just below, Andrew makes an interesting argument about the relationship of the Obergefell sex-discrimination argument to Giles Hotchkiss's comments at the very end of the February 1866 Bingham Amendment discussion. Hotchkiss hoped that Bingham's proposal would be replaced with a provision "to provide that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another," or a provision that "no State shall discriminate against any class of its citizens," or a ban on "discrimination to the injury or exclusion of any class of citizens from the privileges which other classes enjoy." I think Hotchkiss's hope, expressed in terms of privileges and citizenship, was clearly fulfilled in the Privileges or Immunities Clause, not the Equal Protection Clause. Andrew's basic point about the way class legislation was understood in 1866 is still relevant, however, mutatis mutandis.

For my part, I wanted to make a few points about the relationship of the sex-discrimination argument to current doctrine. 

Chief Justice Roberts received (see here at 61-64) two replies from Michigan's lawyer John Bursch to the sex-discrimination argument for same-sex marriage long made by academics like Akhil Amar and Andy Koppelman. 

First, unlike cases applying intermediate scrutiny since Craig v. Boren in 1976, the gender distinction in traditional marriage definitions is symmetric.

Second, in 2001's Nguyen v. INS, Justice Kennedy held for the Court that the preference for children of married American parents or unmarried American mothers over children of unmarried American fathers--particularly the requirement that the unmarried American fathers commit to child support--satisfied intermediate scrutiny because encouraging paternal bonding and support was deemed "important," even "exceedingly persuasive."

Ilya Somin, who made the argument as an amicus alongside Koppelman and others, provides some follow-up here. Some follow-up of my own after the jump.

Continue reading "Obergefell, Craig, Nguyen, and Somin (Updated)
Chris Green" »

John Marshall Harlan (I) and Giles Hotchkiss on Same Sex Marriage Issues
Andrew Hyman

The Obergefell case that was argued Tuesday involves discrimination based upon gender, but not discrimination against either gender.  Whether that distinction will have any effect in the case, I have no idea, but it should probably impact the standard of review.
The first Justice Harlan once famously wrote in Plessy v. Ferguson: "Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons".  In contrast, no one in the Obergefell case can seriously think that these marriage laws were targeted at either men or at women as a class.  Had they been, then intermediate scrutiny would be warranted according to the Court's precedents.
Does any of that matter in terms of the original meaning of the Equal Protection Clause?  Yes, there is evidence that it does.  For example, Congressman Giles Hotchkiss of New York stated on February 28, 1866: "Why not provide by an Amendment to the Constitution that no state shall discriminate against any class of its citizens...." (emphasis added).  The Equal Protection Clause was drafted soon thereafter.
As to the text of the Equal Protection Clause, it seems like a huge stretch to think that a person is entitled to "protection" if he or she is not being discriminated against.  If that were really the goal of people in the 1860s, then we likely would now have the Equal Treatment Clause.  Unlike my esteemed co-blogger Chris Green, I am convinced that the word "protection" in the EPC is very broad, but it is not limitless.
In Loving v. Virginia there definitely was discrimination against at least the following class: mixed-race offspring.  The laws at issue in Loving were motivated largely by animus toward mixed-race children.  That case also involved animus against black people, who were deemed harmful to white racial purity.  None of that is comparable to the gender discrimination in Obergefell, claims to the contrary notwithstanding, and so the review ought to proceed under the rational basis standard.  (I would also accord a large role to Congress, but that is another story.)  
In a nutshell: Obergefell involves gender discrimination, but not discrimination against either gender.  The former is insufficient to invoke the Equal Protection Clause, or intermediate scrutiny thereunder.

Josh Blackman: Collective Liberty
Michael Ramsey

Josh Blackman  (South Texas College of Law) has posted Collective Liberty on SSRN.  Here is the abstract: 

The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these the two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This article traces these arcs from individual liberty to collective liberty, and back. 

Historically, progressives tended to favor broad conceptions of individual rights, with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion — no longer serving progressive causes of social justice and equality — can now more easily be subordinated to what Justice Breyer referred to as "collective" liberty.

By looking at two controversial cases in this arena — McCutcheon v. FEC and Burwell v. Hobby Lobby — this article chronicles the juxtaposition of positions on the right and left between collective, and individual views of rights, and explains what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.


Obergefell and Esteem Dilution
Chris Green

As in the 2013 Hollingsworth v. Perry argument (here at 17: "What harm you see happening and when and how and--what--what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?"), Justice Kagan asked yesterday (here at 44) why the expansion of the "marriage" label would undermine its effectiveness in its traditional applications:

It's the principal argument that you make in in your briefs, that same-sex marriage doesn't advance this State interest in regulating procreation. Let's just assume for the moment that that's so. Obviously, same-sex partners cannot procreate themselves. But is there in addition to that, are you saying that recognizing same-sex marriage will impinge upon that State interest, will harm that State interest in regulating procreation through marriage?

The idea was echoed by Justices Ginsburg (p. 44: "[Y]ou're not taking away anything from heterosexual couples."), Sotomayor (p. 46: "How does withholding marriage from one group, same--same-sex couples, increase the value to the other group?") and Kennedy (p. 49: "Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled. ... [Y]ou're saying that this harms conventional marriage."). Kagan herself returned to the theme later, obviously dissatisfied with the response (p. 66: "[I]t's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children."), as did Justice Breyer (p. 66-67: "What directly is your response to the fact that if we assume a basic purpose of marriage is to encourage an emotional and rearing bond between parents and children, that allowing gay people to marry will weaken it? ... [W]hat's the empirical connection?").

An analogy to trademark dilution, which I made in 2013 and David Crump made at much greater length in 2011, might, I think, explain the possible dynamics of "marriage" as a vehicle of social esteem a bit more crisply than did Michigan's lawyer, John Bursch. The Court explained in 1942's Mishawaka Rubber & Woolen Manufacturing:

The protection of trademarks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trademark is a merchandising shortcut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same--to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trademark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.

The suggestion here is not that the term "marriage" is not about social esteem at all--which Bursch at times seemed to say (e.g., pp. 71, 73)--but rather that the social esteem conveyed by a particular symbol can, at times, be a rivalrous good, subject to dilution when the symbol is more widely used. As Frank Schechter put it in 1926, trademark protects against the "gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name."

Dilution does not, of course, always take place. Brands may improve in value if new applications turn out to be better than old ones; if Pepsi is actually better than Coke, Coke won't be harmed, but benefitted, if Pepsi uses the "Coke" label. That benefit itself, however, depends on a link between the esteem conveyed by old and new applications of a symbol. If the Court regards the social science on the relative value of traditional and new applications of "marriage" as unsettled on Burkean millennia-versus-the-last-decade-Heller-v-Doe grounds--or at least as too unsettled and unclear for judicial review, see here and here--it should likewise be agnostic on the issue of harm to traditional applications.

Justice Alito Reviews the Paulsens' "The Constitution: An Introduction"
Andrew Hyman

Here (from the Federalist Society's Engage magazine) is Justice Alito's book review of The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen.  From the conclusion:

The Paulsens’ book fairly presents both sides on major interpretive issues, but they do not hide their own point of view.  They favor a form of originalism and judicial restraint.  They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments.  Substantive due process, which they trace back to Dred Scott, however, is another matter.

An appreciable percentage of those who read this impressive book are likely to disagree with the authors on at least some major points, and that is one of the book’s virtues.  It invites readers to become personally engaged in the discussion of the Constitution that began in the fall of 1787 when the citizens of the states debated ratification, and this process continues today.  The Paulsens’ book does not tell Americans what to think, but it provides invaluable help as they think for themselves.

(Via Scott Johnson at Powerline)

Equal Protection versus Due Process in Obergefell v. Hodges
Michael Ramsey

This is my favorite part of the oral argument in the same-sex marriage cases (from Lyle Denniston's analysis at SCOTUSblog):

The federal government’s view is that the Court should rule in favor of same-sex marriage, based upon the Fourteenth Amendment’s guarantee of legal equality.   He [Solicitor General Verrilli] had no answer when Justice Kennedy asked him for the government’s views on whether gays should have a right to enter marriage, under the Fourteenth Amendment’s Due Process Clause, because marriage is a fundamental right.   The government was not prepared to opine on that issue, Verrilli told Kennedy. 

I like the subtle message sent here.

Among other reasons, there's a practical (though originalist-based) argument for preferring the equal protection clause over the due process clause.  A problem with finding a fundamental right to marriage unmoored from the traditional understanding of marriage is that there is no obvious stopping point.  If same-sex couples have a fundamental right to marriage, why not polygamists? Or indeed people who want to marry their brother, or their dog, or their piano?  At some point the Court would have to say what is "really" a marriage and (critically) what is not.  There is simply no way to do this on the basis of anything other than the judge's moral intuition.  Like other arguments from moral intuition purporting to rest on the due process clause, the whole enterprise is corrosive of the rule of law.  No one will think of it as anything but the Court making it up.   (This concern has been raised by commentators generally sympathetic to same-sex marriage, for example here by Elizabeth Price Foley and here by Josh Blackman.) 

But this concern has force only if one thinks of the case as being about marriage (the due process perspective) instead of being about discrimination (the equal protection perspective).  Equal protection offers a more defensible grounding, and a more defensible stopping point.  As I've argued, the key is describing sexual orientation discrimination as a form of caste legislation.  (In modern doctrinal terms, to think of laws discriminating against people of same-sex sexual orientation as targeting a "suspect class" and thus requiring a "compelling" justification.)  It seems fairly straightforward to say that sexual orientation -- but not a preference for polygamy, or for other nontraditional versions of "marriage" -- constitutes such a suspect class.  Put another way, sexual orientation discrimination can be analogized to race discrimination (clearly proscribed by the Fourteenth Amendment) in a way that laws against other kinds of non-traditional marriage cannot.  And that provides a stopping point that can be explained on legal grounds connected to the Amendment's original meaning.  


Originalism and Same-Sex Marriage Revisited
Michael Ramsey

With arguments today on the same-sex marriage cases, here are a few more thoughts from an originalist perspective.

I was interested to read the outstanding amicus brief by originalist scholars (including three of my colleagues) on behalf of the states (discussed here and here).  Despite my role of trying to develop an originalist argument for constitutional protection of same-sex marriage, I was surprised to see how much of the brief I agreed with.  As I read it, the brief accepts (a) that the original meaning of the equal protection clause reflects a rule against caste legislation; and (b) that legislation discriminating against persons of same-sex sexual orientation would be caste legislation today, even if people in the 1860s would not have looked at it that way.  The only point of disagreement, it seems, is whether laws limiting marriage to opposite-sex couples amount to discrimination against persons of same-sex sexual orientation (I say they do, and the brief disagrees).

On a related point, at Liberty Law Blog John McGinnis argues that the European perspective on same-sex marriage should be irrelevant to an originalist interpretation of the equal protection clause.  I'm not entirely sure that's right.

Briefly, the European Court of Human Rights has held that European human rights law does not require nations to recognize same-sex marriage, even though it has also held that various national laws discriminating against same-sex sexual orientation are prohibited.  Put another way, European human rights law is generally aligned with the argument in the originalist scholars' brief: discrimination on the basis of same-sex sexual orientation is prohibited, but laws recognizing only opposite-sex marriage are not prohibited discrimination.

Does this alignment support the originalist scholars' brief?  I think it does.  My argument is that laws against same-sex marriage -- given our modern understanding of sexual orientation -- are necessarily discriminatory (Jack Balkin makes a similar argument here). But the European court concludes that they are not discriminatory -- that is, that there may be good reasons to allow local jurisdictions to refuse to recognize same-sex marriage, even in a legal regime that generally bans sexual orientation discrimination.

Ordinarily this would not seem relevant to an originalist interpretation of the U.S. Constitution, but this isn't an ordinary circumstance.  The argument for constitutionalizing same-sex marriage depends on a claim about how our understanding of sexual orientation has changed and what the necessary implications of that change are; it insists that laws recognizing only opposite-sex marriage are inherently discriminatory.    But the European view shows that is not necessarily so -- a legal regime could plausibly reject sexual orientation discrimination, based on a modern understanding of sexual orientation, and yet still not require recognition of same-sex marriage.  While I don't find that conclusive, I have to admit that it seems relevant.


New Origination Clause Decision
Andrew Hyman

This is an interesting decision about the Origination Clause and standing, especially the last paragraph on page 25:

We recognize that the underlying merits of this appeal present issues of exceptional importance. Although the Origination Clause is rarely litigated, the principle it embodies—that “power over the purse” should be held by the most “immediate representatives of the people,” see The Federalist No. 58, at 350 (James Madison) (Isaac Kramnick ed., 1987)—was critical to the Framers and ratifiers of the Constitution. Furthermore, the statute before us is, of course, a statute of great and wide-ranging importance: it represents a “comprehensive scheme to reform the national markets in health care delivery and health insurance,” Thomas More Law Ctr., 651 F.3d at 534, one that “encompass[es] nine Titles and hundreds of laws on a diverse array of subjects.” Florida, 648 F.3d at 1241.

But the court concludes:

Nonetheless, it is axiomatic that, no matter how important the issue, see, e.g., Raines, 811 U.S. at 819–20, “[f]ederal courts are courts of limited jurisdiction” and “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Here, as we have explained, constitutional and statutory limits combine to prevent our exercising jurisdiction over these plaintiffs’ challenges. The Constitution’s standing requirement bars Dr. Hotze’s challenge to the individual mandate, primarily because the plaintiffs’ complaint provides no reason to conclude that Dr. Hotze’s circumstances do not fully comply with that mandate; consequently, he has not shown an injury to himself resulting from the ACA’s enactment. And a statute with a well-established history—the AIA—bars Braidwood’s challenge to the employer mandate, because the exaction imposed by the employer mandate constitutes a “tax” under the AIA, which may not be challenged through pre-enforcement suit. 26 U.S.C. § 7421(a).

Justice Scalia’s Worst Opinions
Mike Rappaport

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

Despite Justice Stevens’s apparent intent, the broader, categorical view of Chevron was adopted in the D.C. Circuit when Scalia was on that court.  When Scalia was elevated, he brought that view to the Supreme Court.  In the 1987 case of INS v. Cardoza-Fonseca, Justice Stevens – the author of Chevron – wrote that deference did not extend, in the context of the Immigration and Nationality Act, to pure questions of law (one take on the traditional view).  Evidently, Justice Stevens did not understand Chevron to have the broad meaning.  Scalia wrote a concurrence, for himself only, arguing for the broad interpretation and claiming that Chevron applied to pure and mixed questions.

At this point, it was Justice Scalia alone who adopted the broad view of Chevron.  But later that same term in NLRB v. United Food & Commercial Workers Union, Scalia was able to persuade three other justices (Rehnquist, White and O’Connor) of the broad interpretation.  And since then, the broad interpretation of Chevron has been followed at the Supreme Court.

As I have argued previously, Chevron could not be justified based on the original meaning of the Administrative Procedure Act.  Nor could it be justified based on precedent at the time of its decision.  It was largely a combination of the political preferences of the D.C. Circuit judges at the time – in favor of agencies (instead of judges) and in favor of clear rules.  Scalia’s textualism should have caused him to eschew the decision.

(Cross posted at the Liberty Law Blog)

J. Richard Broughton: The Snowden Affair and the Limits of American Treason
Michael Ramsey

J. Richard Broughton (University of Detroit Mercy School of Law) has posted The Snowden Affair and the Limits of American Treason (Lincoln Memorial University Law Review, 2015, Forthcoming) on SSRN. Here is the abstract: 

The revelations about Edward Snowden’s leak of American national security information helped to reinvigorate public rhetoric about the crime of treason, which Article III of the Constitution defines only as levying war against the United States or adhering to the enemy by giving aid and comfort. Political leaders and others regularly commented on whether Snowden was a “hero” or “traitor.” And more than one American political leader suggested that Snowden should be tried for treason. But these rhetorical episodes simply demonstrate that despite treason’s stature, numerous gaps remain in the public’s (and even in political leaders’) understanding of the rarely-invoked, rarely-discussed Treason Clause. This paper, written for a symposium on the ramifications of Snowden’s disclosures, therefore focuses on the constitutional provision that requires “adhering” to the enemy, giving them “aid and comfort” – what the paper calls Adherence Treason, which is the provision most likely at issue in a treason case involving actions like Snowden’s – and examines the relevance of the actor’s mental state to the interpretation and application of the Treason Clause. Drawing on the Supreme Court’s World War II treason cases, the paper examines treason in light of complicity doctrine in the criminal law. It demonstrates how information that reaches the enemy does not constitute treason – even if the information actually aids the enemy, as Snowden’s disclosures could have done – in the absence of a specific intent to betray America, which is the mens rea required for treason and which Snowden appears to have lacked. Still, when viewed in light of complicity law, even the narrow standard for American treason could be implicated by contemporary aid-to-the-enemy cases that are distinguishable from Snowden’s, such as the terrorist-aid cases that are now prevalent but are being prosecuted under the material support statutes instead. These terrorist-aid cases, especially when combined with the modern technology that can make it easier for one to communicate with and assist the enemy, could potentially keep the Treason Clause alive, but only in narrow circumstances where legally sufficient aid and the intent to betray coalesce.


Anita Krishnakumar: The Sherlock Holmes Canon
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted The Sherlock Holmes Canon (64 Geo. Wash. L. Rev., forthcoming (2015)) on SSRN.  Here is the abstract:

Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a statutory interpretation would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend that interpretation. Failure to comment arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention — and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon. This essay examines how courts employ the Sherlock Holmes canon in practice and explores the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.


Ernest Young: Federalism as a Constitutional Principle
Michael Ramsey

Ernest A. Young (Duke University School of Law) has posted Federalism as a Constitutional Principle (University of Cincinnati Law Review, forthcoming) on SSRN.  Here is the abstract:

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and institutional checks powered by political opportunism are important in maintaining the federal system, that system is unlikely to survive and flourish unless Americans continue to feel a meaningful degree of loyalty to their states as distinctive political communities.

Also from Professor Young:  The Volk of New Jersey? State Identity, Distinctiveness, and Political Culture in the American Federal System.  Here is the abstract:

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and psychological support to sustain itself.

This article is the first comprehensive effort to assess whether contemporary American states are meaningfully distinctive from one another and whether contemporary Americans identify with their states. The death of state identity is an empirical claim, but no proponent of that claim has ever marshalled empirical evidence to support it. It is also a claim unique to legal scholarship: Scholars in political science, history, economics, cultural psychology, and other disciplines have developed extensive literatures on state political cultures. This article surveys those literatures and collects evidence on the states’ geographic, demographic, and policy diversity, states’ impact on political preferences, relative trust in state and federal institutions, state’s distinct historical narratives, and the impact of individual mobility among the states. I conclude that reports of the death of state identity are greatly exaggerated — and that has important implications for American federalism.


Michael Stokes Paulsen & Luke Paulsen: The Great Interpreter
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) and Luke Paulsen (Princeton University '14) have posted The Great Interpreter (First Things, 2015, forthcoming) on SSRN.  Here is the abstract:      

This essay examines the constitutional legacy of President Abraham Lincoln, the most important constitutional interpreter in our nation's history. The Civil War was -- in addition to so much else -- a defining act of national constitutional interpretation. The war was fought over fundamental questions of the Constitution's meaning, and over who would have final authority to determine that meaning. The most significant issues of antebellum constitutional dispute -- the present and future status of slavery; the question of who possessed constitutional power to determine that status; the nature of the "Union" and the question of whether a state lawfully could secede; matters of national-versus-state constitutional supremacy and "sovereignty" -- received their final "adjudication" not in any court of law but on the battlefields of the Civil War. It was the case of Grant v. Lee, reduced to final judgment at Appomattox Court House 150 years ago, that constituted the nation's determination of these issues, and that determined also the entire constitutional future of the United States. None of this would have happened had Lincoln not considered himself bound by his oath to advance his independent constitutional views concerning Dred Scott, slavery, Union, national constitutional supremacy, and presidential military powers -- views that frequently placed him at odds not only with the views of nearly half the nation, but often with the Supreme Court as well.


Two Questions on Congress' Power to Declare Natural Birth
Michael Ramsey

Jim Henderson (Just Sayin) sends these questions on the presidential eligibility clause:

If Senator Cruz’s eligibility depends upon his attaining “natural born citizen” status as the result of a grant of that status by Congress, what provision of the Constitution empowers Congress to do so?  

I realize the obvious answer should be the Naturalization Clause. The recent discussions [by Neal Katyal and Paul Clement] offer that the English parliamentary expansions of “natural born subject” status lend credence to a view that the Framers intended to afford to Congress, within the power to provide a uniform rule of naturalization, the power to declare persons not “natural born” by circumstance and common law, to be “natural born” by statutory status. This argument has an appeal, but as I contemplated the possibility that the Constitution extended such a power to Congress, additional questions arose. One I will refer to as the Presidentinator Question. The other is the more common limited powers question.

As to the limited powers question, we know, and should agree, that the general government set up under the Constitution is one of limited, donated, express powers. So given the more common and general understanding of “naturalization,” why isn’t the correct construction the obvious one? By obvious, I do mean the one limited to the power to make citizens of aliens.

As to the Presidentinator Question, what principle that can be justified in the law, in the history of the law, that would confer a power on Congress to create statutory “natural born citizen” status for certain categories of individuals, sufficient to meet the Qualifications Clause requirements of Article II, but that would not also empower Congress to pass this amendment to the Naturalization Act:

”Any naturalized citizen of the United States, having been elected to serve as the Governor of one of the States, shall have the status of, and in all respects be considered,  a ‘Natural Born Citizen.’”

(Note: here is his initial post on the Cruz question, and a followup here).

On the first point, Parliament's power to convey "natural born" status on those who were not natural born subjects under the common law was understood as part of its naturalization power.  The acts that conveyed that status were called acts to "naturalize" certain persons or groups of persons.  As a result, the founding generation in America likely understood the power to make a "Rule of Naturalization" as including the power to declare by statute who might be a citizen (naturalized) by birth.  And, as confirmation, the 1790 Act that made such a declaration was called a "Naturalization" act. 

The second question is a whole lot harder.  I suppose one could say that Congress does have this power (that is, to declare someone with no connections to the United States at birth to be, retroactively, a natural born citizen).  But that would be highly problematic in terms of how we understand the purposes of the presidential eligibility clause.  If the purpose of the clause was to prevent European noblemen (including, perhaps, specific European noblemen) from scheming to become President, that purpose would not be served if Congress could declare them natural born citizens retroactively.  They would just need to scheme to obtain the requisite declaration from Congress.  So I accept the premise of the question, which is that the clause should not be read to give Congress such a power.

One possibility is to say that the power to declare natural birth cannot be exercised retroactively. Unfortunately, there is no historical basis for that proposition.  The English statutes declaring natural-born status for persons born abroad were frequently retroactive (e.g., 4 Geo. II, ch. 21 (1731)).  That is, they said that persons born in specified circumstances were declared to be natural born subjects, whether already born or born in the future.  (The statute of 4 Geo. II, ch. 21 conveyed natural-born status on persons "born ... or which shall hereafter be born" abroad to an English father).   And some of the statutes conferred natural born status on specific living people.  Since the whole basis for Congress' power to declare natural birth stems from Parliament's power to declare natural birth, I see no way to say Congress' power can't be retroactive when Parliament's power obviously was.

My answer instead is this: Congress is limited to recognizing natural-born status for people with some connection to the United States at birth.  That limit is established by Parliament's practice, which was only to convey natural born status upon persons born abroad whose parents (or at least one of them) were English subjects.  Parliament never passed a naturalization statute anything like the one posed in the hypothetical above (with one exception).

The exception is significant and confirms the general practice.  In the 1708 naturalization statute (7 Anne, ch. 5 ), Parliament gave natural born status to all European protestants who would move to England and take allegiance to the English monarch.  But this grant was repealed three years later because of “divers Mischiefs and Inconveniences,” see 10 Anne ch. 9 (1711), and was not repeated.  I think it plausible to conclude that the 1708 Act was regarded as in excess of Parliament's proper naturalization power, and that the general view saw Parliament's (and thus Congress') power to declare natural birth as limited to persons with connections through their parents at birth.

So my answer to the second question is that the hypothetical statute is unconstitutional because it conveys natural born status on someone who had no connection to the United States at birth -- a power not generally exercised by Parliament and thus not included in Congress' naturalization power.

Cass Sunstein: How Star Wars Illuminates Constitutional Law (and Authorship)
Michael Ramsey

At the New Rambler, Cass Sunstein (Harvard) has this review of  How Star Wars Conquerer the Universe: The Past Present, and Future of a Mulitbillion Dollar Franchise, by Chris Taylor (Basic Books 2014): How Star Wars Illuminates Constitutional Law (and Authorship).

(Thanks to Michael Perry for the pointer).


Taking Raisins at the Supreme Court
Michael Ramsey

Today the Supreme Court hears oral argument in the raisin taking case, Horne v. Department of Agriculture.  George Will comments (harshly) here, beginning: 

In oral arguments Wednesday, the Supreme Court will hear the government defend its kleptocratic behavior while administering an indefensible law. The Agricultural Marketing Agreement Act of 1937 is among the measures by which New Dealers tried and failed to regulate and mandate America back to prosperity. Seventy-eight years later, it is the government’s reason for stealing Marvin and Laura Horne’s raisins.

Additional comments, quotes and links here from Elizabeth Price Foley.  Some earlier thoughts on this blog here.  Also, video from Ilya Somin and the Daily Show (via Eugene Volokh) (really).

Originalism bonus: Michael McConnell (Stanford) is counsel for the petitioners.


Is Marco Rubio a Natural Born Citizen?
Michael Ramsey

Recently-announced presidential candidate Marco Rubio was born in the United States but his parents were not U.S. citizens.  Does that make him a natural born citizen under the presidential eligibility clause?

My answer is, in a word, yes.

As I (and others) have argued in connection with Ted Cruz's candidacy, the most likely source of the "natural born" phrase in the eligibility clause is English law -- specifically, English law's designation of "natural born subjects."  Rubio's case is easier than Cruz's because English common law was clear that birth within sovereign territory was sufficient to make one "natural born."  (Cruz's case depends -- although I think convincingly -- on the treatment in English statutory law).

As Blackstone explained (Commentaries, vol. 1, pp. 354-55):

The first and most obvious division of the people is into aliens and natural-born subjects.  Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligence, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.  Allegiance is the tie, or ligament, which binds the subject to the king, in return for that protection with the king affords the subject.  The thing itself, or a substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

Because the status was "founded in reason and the nature of government" it arose from natural law -- hence "natural" born subject.  Later he emphasized that this rule encompassed children of aliens: “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." (Commentaries, vol. 1, pp. 361-62).  An exception existed for children of foreign diplomats, but that exception only confirmed the general rule that children of non-diplomat aliens were natural born English subjects if born in England.

A later commentary confirms:

By the common law all persons born within the power or protection of the Crown owe natural allegiance to the King, and are natural-born subjects of the realm, while all born out to the allegiance or protection of the King are aliens born, and remain aliens unless they are subsequently made denizens or naturalized.  For the law of England had always adopted to feudal or territorial principle of determining nationality by the place of birth alone.

Henry S.Q. Henriques, The Law of Aliens and Naturalization, p. 29 (1923) (and further, at p. 63: “the general effect [of the common law rule] is, that persons born within the dominions of the King, whether of English or foreign parents, are natural-born subjects, and that persons born without his dominions are aliens.”

There are, as I understand it, two possible counterarguments.  First, as discussed in an earlier post, perhaps Blackstone was wrong (that is, wrong about English common law).  He might have been (he was wrong about a number of aspects of English law).  But I also think that's probably irrelevant.  Blackstone is very clear on the point, and to the Framers Blackstone was a definitive account.   The meaning of the eligibility clause arises from the way "natural born" was understood in late eighteenth century America, not from what it actually meant in earlier English history.

A second counterargument is that we should not look to Blackstone or English law at all, but rather to continental understandings of natural law, and specifically to Emer de Vattel's 1758 treatise Law of Nations.  (See, for example, this law review note, relying on Vattel, and also here).  Vattel adopted the common European view (going back at least to Rome) that citizenship turned on ancestry not on the place of birth.  The key passage is this one (book I, ch. XIX, § 212) (1797 translation):

The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages.  The natives, or natural born citizens, are those born in the country, of parents who are citizens.  As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. .. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.  [Note that an earlier translation of Vattel, although to the same effect, did not use the phrase "natural born".]

If this is the source of the Framers' understanding, it would be problematic for Rubio; but the evidence tying Vattel to the eligibility clause is thin.  It's true that the Framers read Vattel and that he influenced their thinking about the law of nations.  But I'm not aware of any surviving evidence of anyone at the time referencing Vattel in connection with the eligibility clause or the phrase "natural born." (Of course, records might have been lost -- in any case there does not seem to have been a broad understanding in this direction.)  Further, post-ratification commentary seems instead generally to adopt the Blackstone view.  For example, St. George Tucker' s 1803 treatise observes:

Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration.

While some doubts did seem to persist regarding, for example, children born in the United States whose parents were only temporarily present, it seems clear that children whose parents had moved permanently to the United States were broadly considered "natural born" if born there.  As a result, the tie to Vattel seems speculative at best, and contrary to the apparent common view in the immediate post-ratification era.

So Rubio's case seems clear to me (but I'm open to counterarguments).

Eugene Volokh on Reading Madison
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh has another post on the challenges of reading eighteenth-century language, in this case James Madison (supposed) quote form Federalist 51:  "What is government itself, but the greatest of all reflections of human nature?"

Actually, as Professor Volokh points out, the quote is "What is government itself, but the greatest of all reflections on human nature?" -- and that likely meant something different from what it appears to mean to the modern ear.


Michael Paulsen on Justice Scalia's Worst Opinion
Michael Ramsey

At Public Discourse, Michael Paulsen (St. Thomas): Justice Scalia’s Worst Opinion.  He goes with Employment Division v. Smith:

Smith produces a strangely ironic reading of the Free Exercise Clause. According to this view of the Constitution’s protection of the “free exercise” of “religion,” there is nothing constitutionally special about the free exercise of religionReligion is just one other thing that might get in the way of government’s ordinary powers, no different in kind from any other set of beliefs or preferences that might be opposed to government policy. The right to the free exercise of religion is not a substantive freedom.  It confers no constitutional immunity from government interference. The Free Exercise Clause is merely a non-discrimination rule. Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.


Smith’s rule is not completely implausible, but it is wrong. The text of the Free Exercise Clause protects the “free exercise” of religious faith. That rather plainly makes religious freedom a substantive liberty, not a mere nondiscrimination requirement.

The text singles out religion for unique protection. Constitutionally, this means that religious exercise is not a category of conduct to be treated the same way as anything else. In addition to the text itself, there is considerable historical evidence to suggest that this was the original understanding of the Free Exercise Clause. As the distinguished religious liberty scholar Michael McConnell has demonstrated, the framers’ understanding of religious liberty prominently included the idea that such a liberty could, and often would, require exemption from the application of the ordinary laws of the secular state.

My focus is separation of powers and federalism, so my pick is Whitman v. American Trucking  -- among majority opinions, that is; for all opinions, how about the concurrence in the judgment in Gonzales v. Raich?  (I'm open to other nominations ....).

Also forthcoming from Professor Paulsen (with his son Luke Paulsen): The Constitution: An Introduction (Basic Books, May 2015).  Here is the book description from Amazon: 

From war powers to health care, freedom of speech to gun ownership, religious liberty to abortion, practically every aspect of American life is shaped by the Constitution. This vital document, along with its history of political and judicial interpretation, governs our individual lives and the life of our nation. Yet most of us know surprisingly little about the Constitution itself, and are woefully unprepared to think for ourselves about recent developments in its long and storied history.

The Constitution: An Introduction is the definitive modern primer on the US Constitution. Michael Stokes Paulsen, one of the nation’s most provocative and accomplished scholars of the Constitution, and his son Luke Paulsen, a gifted young writer and lay scholar, have combined to write a lively introduction to the supreme law of the United States, covering the Constitution’s history and meaning in clear, accessible terms.

Beginning with the Constitution’s birth in 1787, Paulsen and Paulsen offer a grand tour of its provisions, principles, and interpretation, introducing readers to the characters and controversies that have shaped the Constitution in the 200-plus years since its creation. Along the way, the authors provide correctives to the shallow myths and partial truths that pervade so much popular treatment of the Constitution, from school textbooks to media accounts of today’s controversies, and offer powerful insights into the Constitution’s true meaning.

A lucid and engaging guide, The Constitution: An Introduction provides readers with the tools to think critically and independently about constitutional issues—a skill that is ever more essential to the continued flourishing of American democracy.

(With strong blurbs from, among others, Robert George and Steven Calabresi).


Jack Balkin: Constitutional Interpretation and Change in the United States
Michael Ramsey

Jack Balkin (Yale University - Law School) has posted Constitutional Interpretation and Change in the United States: The Official and the Unofficial on SSRN. Here is the abstract:

This lecture, given at the Institut Villey in Paris, describes the processes of constitutional change in the American political and legal system.

The first part of the lecture briefly summarizes the theory of framework originalism featured in Living Originalism.

The second part of the lecture explains how the American constitutional system actually changes in practice, emphasizing two kinds of contributions to constitutional development. The first are the official contributions of laws and judicial doctrines. The second are the unofficial contributions of political parties and civil society, expressed through political mobilization, social influence, and cultural change.

American constitutional development features a dialectic of legitimation. Efforts by the political branches to build out state functions, and efforts by civil society groups to make constitutional claims spur constitutional controversies. These controversies, in turn, may generate judicial doctrine that legitimates or holds illegitimate what political actors have done. Even when courts strike down particular laws or practices, their decisions may lead to other pathways for achieving political goals that will later be declared legitimate.

The dialectic of legitimation explains the point of judicial review in the American constitutional system. Judicial review does not simply constrain or limit state power; rather judicial review legitimates, shapes and redirects political power. Indeed, modern democracies with judicial review are able to project power in ways that earlier states could never have imagined.

The third part of the lecture explains why American constitutional theory appears to feature an opposition between living constitutionalism and originalism, an opposition which is actually illusory. Both calls for a return to original meaning and assertions that Americans have a living constitution are responses to the same phenomenon—the recognition that the world that produced the ancient constitution has dissolved. This is the experience of constitutional modernity.

Constitutional modernity generates equal and opposite responses, which have been offered by both liberals and conservatives in the twentieth and twenty-first centuries-- the need to cleave to the past and its symbols and concrete manifestations, and the need to transcend the past through pragmatic adaptation to a changed world.


The CAC amicus brief in Obergefell
Chris Green

As Mike Ramsey notes, the Cato Institute and the Alexander group were not the only Obergefell amici to discuss the original meaning of the Equal Protection Clause.  David Gans's Constitutional Accountability Center also considered the issue, as Gans elaborates here. It is striking, however, how little of the CAC's evidence helps us learn what the words "nor deny to any person within its jurisdiction the equal protection of the laws" expressed during Reconstruction, the issue I discuss here and here.  

The CAC cites first at p. 12 the Joint Committee on Reconstruction's reference to "the civil rights and privileges of all citizens in all parts of the republic," a close paraphrase of the guarantee of the "privileges or immunities of citizens of the United States," rather than the Equal Protection Clause. Next, the CAC cites at p. 13 Thaddeus Stevens and Jacob Howard's references to caste legislation and equality on the much-quoted pages 2459 and 2766 of the Congressional Globe. It is true that, like the CAC,  most readers assign these discussions to the Equal Protection Clause, but as I have argued at length (see, e.g., here, citing my earlier discussions), Stevens and Howard can each can be read instead to refer to the Privileges or Immunities Clause.  The CAC then quotes Henry Raymond's paraphrase (on the somewhat-less-quoted page 2502) of both the Privileges or Immunities and Equal Protection Clauses: "securing an equality of rights to all citizens of the United States, and of all persons within their jurisdiction."  If anything, Raymond assigns priority to the Privileges or Immunities Clause in securing equality.

Like Cato (see here, also noting CAC's additional evidence), CAC at p. 19 cites newspaper evidence from the Chicago Tribune and Cincinnati Commercial, but this evidence plainly describes Fourteenth Amendment equality in terms of the privileges of citizens, rather than the language of the Equal Protection Clause.

Moving beyond 1866, the CAC cites at pp. 12-13 relatively late cases--the Civil Rights Cases from 1883, and Yick Wo from 1886. At pp. 13-14, however, CAC mentions an earlier case--Justice Field's reference to "hostile and discriminating legislation" as a circuit justice in the prisoner-haircut case, Ho Ah Kow v. Nunan, in 1879.  That should ring a bell for scholars of the Privileges or Immunities Clause, for Justice Field used the same phrase--"hostile and discriminating legislation"--to describe the Clause's prohibition in his Slaughterhouse dissent.  Moreover, even in Ho Ah Kow, Field stresses first the Privileges or Immunities Clause, not the Equal Protection Clause, in explaining why the Fourteenth Amendment contains such a ban.  The quotation of Ho Ah Kow in the CAC brief at p. 14, for instance, refers to the "fourteenth amendment," rather than specifically to the Equal Protection Clause. (For more on Ho Ah Kow in the context of other opinions from Justice Field, see here at p. 286.) Justice Field is a very unlikely source for justification of the use of the Equal Protection Clause, rather than the Privileges or Immunities Clause, as the Fourteenth Amendment's generic guarantee of equality.

As I mentioned in discussing the Cato brief, the difference between using the Privileges or Immunities Clause and the Equal Protection Clause as a grounding for a ban on class or caste legislation may not matter much in Obergefell.  For textualists, originalists, and anyone else who cares about precision in our discussions of "text and history," however, the difference matters a great deal.

Keith Whittington: State Constitutional Law in the New Deal Period
Michael Ramsey

Keith Whittington (Princeton University - Department of Politics) has posted State Constitutional Law in the New Deal Period (Rutgers Law Journal Forthcoming) on SSRN. Here is the abstract:

The 1930s is generally understood to be a period of constitutional revolution in the United States, with a restrictive conservative U.S. Supreme Court giving way to a latitudinarian liberal Court. The politics of judicial review and the substance of constitutional law in the states has rarely been considered. This article begins to integrate the states into the broader story of American constitutional development in these pivotal years. Focusing on a sample of four state courts between 1925 and 1945, this article argues that the U.S. Supreme Court and the struggle over federal constitutional law may have been more idiosyncratic and exceptional than typical of the constitutional politics of the period. Judicial review in the state courts and the elaboration of state-level constitutional law are characterized by continuity rather than transformation during this period. State courts were able to routinely use the power of judicial review to invalidate legislation across this time period, but they rarely found themselves obstructing the core policies being advanced by the other parts of the state governments.


Thomas Colby & Peter Smith: The Return of Lochner
Michael Ramsey

Thomas Colby (George Washington University Law School) and Peter Smith (George Washington University Law School) have posted The Return of Lochner (Cornell Law Review, Vol. 100, No. 527, 2015) on SSRN. Here is the abstract:

For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing. We believe that conservatives are ready, once again, to embrace Lochner — although perhaps not in name — by recommitting to some form of robust judicial protection for economic rights. Our second claim is that this impending change has been greatly facilitated by important modifications to the theory of originalism, which has served for nearly a half century as the intellectual framework for conservative legal thought. That intellectual framework has been evolving for decades, and it has now evolved to the point where it can plausibly accommodate claims that the Constitution protects economic liberty. These developments are revealing about how legal movements evolve generally. Sometimes the courts change the doctrine, and the theorists scramble to keep up. This is, roughly speaking, what happened with liberal legal thought in the second half of the twentieth century. Just when liberal legal theorists, reeling from the Lochner era, had settled on the view that the courts should exercise judicial review very sparingly — and perhaps never to enforce rights not specifically identified in the Constitution — the liberal Court began to exercise judicial review more frequently and aggressively, often to protect rights not clearly identified in the Constitution. Liberal theorists then struggled for years to develop an account of the appropriate judicial role that condemned Lochner but legitimized later cases protecting fundamental rights and vulnerable minorities. Modern conservative legal thought seems to be following the opposite progression: the theorists lead, the opinion leaders gradually sign on, and judges eventually follow. Whereas liberal judges created constitutional doctrine in the absence of a metatheory of constitutional interpretation — essentially building the house before the architectural blueprints were completed — conservatives have patiently waited for the theory to come together — for the blueprints to be drawn — before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground.


More on the Constitution and the Corker-Menendez Bill
Michael Ramsey

At Breitbart, Joel Pollack argues that the Corker-Menendez bill (officially the Iran Nuclear Agreement Review Act) would "gut[ ] the Senate’s constitutional power over treaties":

[The] Treaty Clause of the Constitution (Art. II, Sec. 2, Clause 2): “The President…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”. Instead, the legislation grants both houses of Congress the ability to approve an Iran deal by majority vote. That is a significant, and possibly unconstitutional, lowering of the bar.

(Via Elizabeth Price Foley at Instapundit, who has more comments and links here, and has further thoughts here).

In a prior post I explained why I think the bill itself is not a problem -- briefly, it only affects the President's ability to lift sanctions and does not speak (directly) to the agreement as a whole.

At the same time, I'm sympathetic to the post, because (a) it's correct that if the deal is going to be a binding agreement it should be a treaty, and (b) even though the Corker-Menendez bill does not directly set up Congress to approve the deal, people may argue that it does so implicitly.

In my view the key to keeping the situation (somewhat) constitutional goes back to Senator Cotton's letter of a couple of weeks ago.  So long as the impending deal is a nonbinding arrangement, it's (sort of) constitutional without the Senate or Congress approving.  Indeed, under the relevant statutes as I understand them the President could lift the sanctions on his own authority without any deal with Iran at all, as gesture of good faith.  The key (as Senator Cotton tried to make clear) is that with a nonbinding agreement the current Congress, or the next President, could put the sanctions back in place.  But that depends on everyone understanding that the deal is nonbinding.

Related: Greg Sargent comments on the revised version of the bill here.  The revisions do not appear to affect my view of it.

David Gans on Originalism in the Marriage Equality Cases
Michael Ramsey

At Balkinization, David Gans: Originalism in the Marriage Equality Cases. Here is an excerpt:

Jack recently highlighted a pair of dueling amicus briefs in the upcoming marriage equality cases, one filed by the CATO Institute and one by a number of “Scholars of Originalism,” that raise important questions about originalism as a form of constitutional interpretation.   These briefs debate whether original meaning or original understanding has pride of place in constitutional interpretation, what Jack calls “yet another example of the continuing debates within originalism over who has the best version.”  Jack argues that the back and forth in these briefs, and particularly the agreement that Romer v. Evans correctly interpreted the Equal Protection Clause, shows that “we are all living originalists now.”  In a thoughtful, nuanced reply, Steve Smith, one of the professors who joined the “Scholars of Originalism” brief, agrees with Jack that “original meaning cannot simply be equated with ‘original expected applications,’” but otherwise resists the pull of Jack’s view of “living originalism.”

Other amicus briefs filed in the marriage equality cases do a deeper dive into the text and history of the Fourteenth Amendment, debating what the history shows.  The brief filed by my organization, the Constitutional Accountability Center, lays out the original meaning of the Amendment, illustrating that the text, drafting history, and debates over the Fourteenth Amendment all demonstrate that the constitutional guarantee of equal protection establishes a broad guarantee of equality designed to protect all persons from state-sponsored discrimination.  (The CATO brief covers some of this ground as well, though its brief focuses more on the development of equality principles in antebellum America).  Under the text and original meaning of the Fourteenth Amendment, the Amendment’s guarantee of equality applies to all gay men and lesbians who wish to exercise their right to marry the person of their choice.  


Matthew Franck (and Me) on Due Process
Andrew Hyman

Professor Matthew J. Franck has a recent article posted online, titled "What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over 'Substance' versus 'Process,'" American Political Thought, Vol. 4, No. 1, Winter 2015.  It is also available at this link.  

Professor Franck is correct to say that the "policy judgment role now routinely assigned to the courts under the rubric of substantive due process" is not legitimate.  However, I am not quite convinced by his particular route to that conclusion, and he gives a much broader scope to due process than seems warranted.  
As I see it, Professor Franck sets up something of a straw man by suggesting that the corresponding "law of the land" clause in Magna Carta would have allowed the King to freely take or destroy life, liberty, and property, unless the word "law" satisfies principles such as being purely prospective and generally applicable.  I have two primary reactions: (1) the British parliament regularly made laws that violated those principles without believing that it was modifying or deviating from Magna Carta or allowing the King to do so; and (2) Edward Coke's leading treatise on this subject defined "law of the land" in such a way as to avoid absolute power in the King while also avoiding the principles described by Professor Franck --- and to a limited extent described by Daniel Webster if not by the courts before which Webster was arguing.  (I note that this year is the 800th anniversary of Magna Carta, which remains partly in force to this day in Great Britain.)
As to point #1 above, Professor Franck discusses (at page 26) the U.S. Supreme Court's 1884 opinion by Justice Stanley Matthews in Hurtado v. California, but overlooks the Hurtado Court's accurate description of old English law: "bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history were never regarded as inconsistent with the law of the land...."
As to point #2 above, the Court's opinion in Hurtado accurately quoted the old English jurist Edward Coke, who wrote of the clause in Magna Carta: "no man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England."  By definition, none of those types of law included the law of the King.  As Coke wrote elsewhere: "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them."  In other words, adopting a Webster-Franck-type definition of "law" is unnecessary to give teeth to Magna Carta, or to our Fifth and Fourteenth Amendments.
The Court in Hurtado also took the very bold (and improper) step of announcing not only that it would defy the commonly accepted meaning of "due process of law" as it had been understood in England, but would even apply that clause to strike down an unlimited range of substantive legislation: "Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property."  Professor Franck quotes (at p. 26) part of this revolutionary sentence, but dismisses it as a mere affirmation of the right to notice, hearing, and opportunity to defend. 
Besides missing the revolutionary implications of Hurtado, I don't think Professor Franck is correct to endorse several antebellum state cases that employed due process clauses to protect "vested" rights.  For example, New York's highest court used a due process clause to strike down legislation that prospectively prohibited sale or use of alcoholic beverages that had been manufactured before the law took effect. That 1856 decision in Wynehamer v. People was rejected by the courts of most of the other states that addressed the subject, but Professor Franck approves it; I see it as a bad precedent that could easily be extended to protect any liberty the courts like and want to preserve.  The U.S. Supreme Court correctly rejected Wynehamer, in the case of Mugler v. Kansas (as I recently mentioned here at the Originalism Blog).
Anyhow, that's enough for a blog post.  I have written two law review articles about the Due Process Clause, most recently in 2013 here.  That article of mine offers a perspective very different from Professor Franck's regarding the understanding of due process in the 1850s and 1860s, including in the Dred Scott case.

Michael Sant'Ambrogio: Standing in the Shadow of Popular Sovereignty
Michael Ramsey

Michael Sant'Ambrogio (Michigan State University - College of Law) has posted Standing in the Shadow of Popular Sovereignty (95 B.U. L. Rev. _ (2015 Forthcoming)) on SSRN. Here is the abstract:

Who may speak for a state or the United States in federal court? Recent decisions by executive officials not to defend laws they believe are unconstitutional have reignited a long-standing debate among scholars and commentators over whether other parties might have Article III standing to represent what is variously described as “a State’s,” “the government’s” or “the People’s” interest in defense and enforcement of the law. Yet there has been no examination of the implications of the American principle of popular sovereignty for Article III standing to defend such sovereign interests. The Framers broke with English political tradition by separating the sovereignty of the new American republic from its government, creating a new political form in which “the People” were said to retain sovereign authority. Scholars have examined the implications of popular sovereignty in a variety of areas of law, but they have yet to consider its implications for standing to defend sovereign interests. This article begins to fill this gap.

The article argues that in a republic founded on the principle of popular sovereignty no party may announce the sovereign people’s constitutional views — the Framers did not give any governmental actor this power. Beyond the narrow confines of clear constitutional text and long-settled commitments, the sovereign’s interest in constitutional disputes is frequently unknown. Moreover, the Framers separated the government into competitive branches to protect popular sovereignty and refine citizens’ constitutional views through public deliberation. Therefore, just as no party may speak for the sovereign, no official may speak for the government as a whole.

Consequently, executive officials defend and enforce laws based on the sovereign’s command that they “take Care that the Laws be faithfully executed,” rather than any power to speak for the sovereign or the government. This precludes standing to represent sovereign interests by parties without similar constitutional duties. Yet the people retain the power to grant such authority to others if they choose. Accordingly, the article calls for a fundamental rethinking of Article III standing to enforce and defend laws, grounding standing in express duties of government officials, rather than in their ability to wear the mantle of sovereignty.


Commas, Jane Austen and Original Meaning
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: Jane Austen and the Second Amendment.  After noting the (to modern eyes) odd use of commas in the Second Amendment, the post continues:

The commas in [the first sentence of Pride and Prejudice] are likewise odd to the modern eye, but that just reflects a shift in comma use from 200 years ago: Around 1800, commas were used in large part to indicate the flow of a spoken sentence: [Stephen] Pinker notes [in The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century] that “[w]riters used to place them wherever a pause felt natural, regardless of the sentence’s syntax.” Today, though, commas are generally used to demarcate particular syntactic features of the sentence; they aren’t used just to indicate pauses (though sometimes the syntactic comma does fall in a place where an oral pause would also be normal).

This makes sense, and shows why arguments about constitutional meaning that turn on the placement of a comma are highly suspect.

That point in turn illustrates a broader point about original meaning.    A central tenet of original-meaning originalism is that one should look to the meaning of the Constitution's words as they were understood at the time they were adopted.  But this rule is actually just a specific instance of a general approach: we should read the language as a reasonable eighteenth-century reader would have read it.  That includes not just the meaning of the words themselves but the grammar of the time -- as demonstrated by the rules of comma usage.  Original meaning requires original grammar.

And the idea of original grammar in turn supports the broader claim by John McGinnis and Mike Rappaport (in this book, ch. 7) -- the idea of "original methods" originalism.  Just as meaning comes from grammar as well as words, meaning also comes from background conventions of how to understand written language (for example, the idea of a negative implication).  To the extent interpretive conventions were part of the reasonable eighteenth-century reader's way of finding meaning, we need to use those conventions, just as we would use rules of eighteenth-century grammar (and just as we would use eighteenth-century word meanings).  It's all part of the same enterprise.

And finally, that point illustrates what I regard as a central shortcoming in the otherwise-outstanding book Reading Law, by Justice Scalia and Bryan Garner.  The book outlines a host of interpretive conventions one might use to find the meaning of legal texts.  But where do these conventions come from?  Why is it appropriate to use these conventions, and not others?  The book has, so far as I can tell, no theory of the foundation of its conventions (other than, in many cases, they've been used for a long time and/or seem to make sense).

As McGinnis and Rappaport make clear, if the interpreter seeks the original meaning the answer is that the conventions must be those in use at the time of enactment.  Using a convention not recognized at the time of enactment (or failing to use one that was recognized) may lead to a meaning that is different from the meaning that would have been understood at the time -- just as using different grammar may lead to a different meaning.  (Of course, interpreters -- especially judges -- may use interpretive conventions for reasons other than to find the original meaning, in which case the conventions may have different justifications).


Is the Corker-Menendez Bill Unconstitutional?
Michael Ramsey

The pending Corker-Menendez bill has been described as requiring Congress' approval on the proposed deal with Iran.  This article quotes Cornell law professor Michael Dorf (Dorf on Law) as raising a question whether it is constitutional.

My first reaction was: yes, it's unconstitutional.  Congress cannot require the President to obtain its approval on an international agreement.  The Constitution provides two ways for the U.S. to make international agreements: (1) through the advice-and-consent of a supermajority of the Senate, as prescribed in article II, Section 2; and (2) in some cases -- principally for short-term agreements and nonbinding arrangements -- by the President alone, under the President's Article II, Section 1 executive power.  It's true that in modern practice, approval of Congress can sometimes (especially in the case of trade agreements) substitute for Senate supermajority approval (though I deny that that is part of the original understanding).  But in no circumstances does the Constitution or practice provide for Congress' approval as the exclusive route.  As a result, if Congress purports to make its approval a condition of entering into an agreement, it infringes the constitutional power of either the Senate-plus-President or the President alone (depending on the circumstances) to make international agreements.

But on further reflection, I come to the opposite conclusion.  The Corker-Menendez bill does something different.  The prospective deal with Iran contemplates that the President will lift U.S. sanctions on Iran.  That in turn depends on the President having statutory discretion to lift the sanctions, as conveyed in prior sanctions legislation. As I understand it, the Corker-Menendez bill simply removes the President's discretion to lift sanctions for a 60-day review period after finalization of a deal (and permanently thereafter if Congress passes additional legislation).  Thus the bill is about implementation of the agreement, not approval of the agreement.

That seems comfortably within Congress' power.  I assume the original sanctions legislation is within Congress' power to regulate commerce with foreign nations.  Congress is not obligated to give the President discretion to lift the sanctions without Congress' approval.  As a result, Congress should also be able to remove the President's discretion if it changes its mind.  That's all Corker-Menendez does.

It's possible that matters would be different if the Iran deal took the form of a treaty.  Arguably Congress is obligated to implement a treaty, because by Article VI a treaty is the supreme law of the land.  But it appears that the arrangement with Iran is not even going to be a binding agreement.  At most it is a commitment by this President to lift sanctions to the extent that is within his power. Obviously such an arrangement imposes no Article VI obligation on Congress to give (or allow the President to retain) power to implement his commitment.

In sum, Congress cannot require its approval as a condition of entering into an international agreement.  But, so long as Congress acts within its enumerated powers, it can refuse to give the President authority to implement an agreement (temporarily or permanently).  There may be doubt in the case of a treaty, which is the supreme law of the land and so might impose implementation obligations on Congress.  But an agreement that is not part of the supreme law of the land imposes no such duties.

(To be clear, I'm not disagreeing with anything Professor Dorf is quoted as saying; I'm just trying to answer the question he poses).


Sam Erman & Nathan Perl-Rosenthal on American Samoans and U.S. Citizenship
Michael Ramsey

At CNN.com, Sam Erman (USC law) and Nathan Perl-Rosenthal (USC history): Not another Dred Scott case, please.  From the introduction:

Emy Afalava is a loyal American and decorated veteran. He was born in American Samoa, a U.S. territory since 1900. He has been subject to American law his whole life and thinks he should be a citizen.

The Constitution would agree. The Fourteenth Amendment declares that "All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Yet, Afalava has been denied the right to vote because the federal government insists that he is no citizen. How can it be, in the 21st century, that Americans born on U.S. soil are denied the rights of citizenship?

The article refers to a pending case in the D.C. Circuit, in which Professors Erman and Perl-Rosenthal joined an amicus brief on behalf of citizenship scholars supporting Afalava's claim to citizenship (which I also joined).  In my view Afalava's claim, as an originalist matter, is compelling.

(Thanks to Neil Weare of We the People Project for the pointer).

Fuad Zarbiyev: Textualism in Treaty Interpretation–A Genealogy
Michael Ramsey

At Opinio Juris, Fuad Zarbiyev (Curtis, Mallet-Prevost, Colt & Mosle LLP): Textualism in Treaty Interpretation–A Genealogy.  It begins:

The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.

Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?

(This is part of a symposium on the book Interpretation in International Law (Andrea Bianchi, Daniel Peat & Matthew Windsor, eds.) (Oxford Univ. Press 2015).

For what it's worth, I have  substantial doubt that international treaty interpretation is actually (as opposed to rhetorically) textualist.  My suspicion is that the modern U.S. approach to treaty interpretation as pursued by the Supreme Court (which often diverges from non-U.S. approaches) is closer to what U.S. scholars would associate with textualism -- that is, focus on the text as informed by its context.