09/20/2017

Justice Scalia and the Nondelegation Doctrine
Mike Rappaport

This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine.  While I have only skimmed the piece, it appears to tell a story similar to the one that I would.

Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies.  One was his concurring opinion in Mistretta v. United States.  In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional.  While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission.  Unlike other agencies, it did nothing else besides promulgating these guidelines.  Thus, it was a junior varsity Congress.

By contrast, Scalia’s argument would not condemn other agencies, because they also did other things, which were executive.  So the EPA both enforces the environmental laws and passes regulations under those laws. Thus, it avoids Scalia’s condemnation of the Sentencing Commission as a junior varsity Congress.  Every year, my students are confused by Scalia’s opinion.  They think he is tough on delegations to agencies.  But he is not.  Every other agency delegation passes the test.

What about the fact that Congress might be conferring broad discretion to an agency to write regulations?  Scalia addressed this by saying the distinction between excessive discretion and constrained discretion could not be drawn.  It was a distinction of degree, not of kind.  Thus, he would not enforce it, leaving it to constitutional structure as a kind of political question.

The second Scalia opinion was Whitman v. American Trucking.  Unlike Mistretta, Scalia was writing for the entire Court this time, and so his opinion was different.  This time Scalia appeared to apply the precedents, claiming that these delegation precedents allowed ample discretion to be conferred on agencies.  And he was correct – they did allow ample discretion – although Scalia wrote the opinion in a way that appeared to embrace the ampleness of the allowable discretion, rather than to discourage it.

Scalia never addressed the original meaning on this subject, and thus his opinions are open to serious criticism.  Perhaps Scalia would have found the precedents overrode the original meaning, but he never addressed the argument.  And one gets the impression, from Scalia’s Mistretta opinion, that he liked the precedents.  They allowed him to avoid the difficult task of distinguishing between permissible and impermissible delegations, something that would have required judges to draw unclear lines.  Scalia hated having judges engage in such a task.

Contrast Scalia here with Justice Thomas.  In American Trucking, Justice Thomas concurred, noting that he doubted the precedents were consistent with the original meaning and that he was willing to reexamine the constitutionality of the lenient nondelegation doctrine in a suitable case.

Some years later, in Department Of Transportation. v. Association Of American Railroads, Justice Thomas wrote a long opinion for himself articulating what he believed the proper approach to nondelegation was.  It is hard to imagine Justice Scalia joining this opinion, which would hold many current delegations to be unconstitutional. Unfortunately, though, Justice Thomas does not really solve or even seriously address the problem that so troubled Justice Scalia – distinguishing between permissible and impermissible delegations in a principled way.

Tillman and Blackman Strike Back on Emoluments [Updated]
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump (United States District Court for the Southern District of New York) on SSRN.  Here is the abstract:

In an amicus brief (supporting Defendant President Trump) submitted to this Court (Southern District of New York), my counsel included the following footnote: 

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative. 

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything. 

Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

The full motion, to which the above document is an exhibit, is here: Amicus Curiae Scholar Seth Barrett Tillman's and Proposed Amicus Curiae Judicial Education Project's Motion for Leave to File Response to Amici Curiae by Certain Legal Historians (filed by Robert Ray [Thompson & Knight], Josh Blackman [South Texas Law School] and Carrie Serevino [Judicial Education Project]).  It begins:

On June 16, 2017, undersigned counsel for Amicus Curiae scholar Seth Barrett Tillman submitted a motion for leave to file an amicus brief on behalf of Tillman [ECF No. 37] in support of the Defendant, which the Court granted on June 28, 2017 [ECF No. 39]. On August 11, 2017, several Legal Historians filed a motion for leave to file an amicus brief in support of the Plaintiffs [ECF No. 70], which this Court granted on August 15, 2017 [ECF No. 73]. ...

 The Legal Historians allege that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material” [ECF No. 70-1, p. 22 n.80]. Counsel for Plaintiffs has endorsed this allegation. Because the authenticity and provenance of this document bears directly on the question of whether the President holds an “Office . . . under the United States,” and on the meaning of the Foreign Emoluments Clause, Tillman and proposed amicus JEP respectfully request leave to respond to this allegation. The proposed response, along with supporting Exhibits A–R, which are attached hereto as Exhibit 1, demonstrate that the Legal Historians are plainly wrong. The so-called “key Hamilton manuscript” was not signed by Alexander Hamilton, but rather is a scrivener’s copy drafted a
generation later.

And further:

In 1792, Alexander Hamilton was directed by the Senate to provide a list of the “emoluments” of “every person holding any civil office or employment under the United States.” He sent a response in 1793, which we refer to as The Complete Report. It did not list the President, Vice President, or other elected officials. The 1793 Complete Report is a contemporaneous construction of substantially the same language at issue in the Constitution’s Foreign Emoluments Clause. There is a second document: The Condensed Report. That document was drafted based in large part on The  Complete Report. The Tillman Amicus (“Amicus”) brief explained that this latter report was not signed by Alexander Hamilton, it was not dated, and it was drafted by an unknown Senate functionary. In other words, its precise provenance remains unknown in the sense that we simply cannot identify the specific person who drafted it.

The Brief of Amicus Curiae by Certain Legal Historians contends that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material.”  The Legal Historians allege that that The Condensed Report was signed by Hamilton and it is equally authentic with the original document, The Complete Report.  The Legal Historians Brief is plainly wrong. The Condensed Report is nothing more than a scrivener’s copy of The Complete Report, drafted after Alexander Hamilton’s death. In ruling on whether the President holds “Office . . . under the United States,” this Court should rely on The Complete Report, which was signed by Hamilton, and not the unsigned and undated Condensed Report.

As the brief indicates, this filing is in response to a series of attacks (in court and out, some of them noted on this blog [see here]) challenging Professor Tillman's initial description of the Hamilton documents.

Here is my post on the original Blackman/Tillman amicus.  That brief argues that the emoluments clause, Article I, Section 9,  does not apply to the President because the presidency (like other elected positions) is not an "office of Profit or Trust under [the United States]" as specified by the clause.  Hamilton is said to have agreed -- or not, depending on which document one favors.

I don't have an opinion on the merits (except that Professor Tillman and his counsel Professor Blackman, both of whom I know personally, sound very confident, and they are scholars I hesitate to disagree with).  My interest is principally the extent to which the plaintiffs, their counsel, and their academic supports, have become extraordinarily focused on the originalist arguments in this litigation, to the extent of near-obsession with what strikes me as a pretty obscure document even by originalist standards.  If originalism were just a quirky outlier in constitutional argumentation (as various people asserted during the Gorsuch hearings), it really should not matter if Professor Tillman is right about this obscure document.  That the plaintiffs' side has become so obsessed with it shows, to my mind, that they know originalist arguments have force -- especially in an area where there is no Supreme Court precedent -- and they are afraid of the Tillman/Blackman argument.

UPDATE: At his blog, Josh Blackman has more excerpts and strongly worded commentary: New Filings in the Emoluments Clause Litigation.  He begins:

The litigation concerning the Foreign Emoluments Clause demands a careful study of the text and history of the Constitution. The Plaintiffs and their amici (including a group of self-styled “Legal Historians”) have attempted to discredit the amicus brief I filed on behalf of Seth Barrett Tillman. On the blogosphere and in filings with the Southern District of New York, they charged that we mislead the court about a document called The Condensed Report. They assert that The Condensed Report was signed by Alexander Hamilton, but because it undercuts our theory, we misled the court about its provenance.

Had the Plaintiffs and their amici asked an actual expert who specializes in the field of authenticating founding-era documents (we asked two), they would have learned rather quickly that this document was not signed by Alexander Hamilton. And had the Plaintiffs and their amici asked an actual expert who specializes in the works of Alexander Hamilton (we asked three), they would have learned that the document was drafted after Hamilton’s death.

And further:

One of our experts is John P. Kaminski. He has has been editing The Documentary History of the Constitution since 1969 and his work has been cited by the United States Supreme Court as well as by Plaintiffs and their Amici. (I hope they do not attempt to attack an expert that the Constitutional Accountability Center and Laurence H. Tribe previously cited). Kaminski agreed with Amicus-Tillman concerning the provenance of The Complete Report (which was signed by Hamilton) and The Condensed Report (which was not). Here are excerpts from his affidavit that demonstrate the embarrassing error made by Plaintiffs and their Amici:

15. Historical documentary editors regularly face the task of identifying the authorship and dating documents in determining what documents to publish in their volumes, what documents should be relegated to annotation, and what documents should be excluded altogether. I have been making these kinds of decisions for almost fifty years. After examining the two reports, it seems clear to me that one interpretation is possible. I agree with the editors of the Hamilton Papers that The Complete Report is an original Hamilton document while The Condensed Report is a later copy.

16. Both lengthy reports were written by scriveners. The Complete Report was signed by Alexander Hamilton himself. I base this opinion in substantial part on my professional judgment as to what Hamilton’s signature looked like. The Condensed Report also contains the words “Alexander Hamilton” where a signature might appear, but this “signature” was clearly not written by Hamilton himself. Rather, the words “Alexander Hamilton” were written by the same scrivener who transcribed The Condensed Report. Endorsements or marginalia on both documents assist in determining the genesis of The Condensed Report. The markings on The Complete Report in pencil indicate that the report was “To be condensed & printed. See page Journal 441 & 497.” The page numbers refer to the relevant dates of 7 May 1792 and 27 February 1793 located in the 1820 printed edition of the U.S. Senate Journal published by Gales & Seaton. The back of The Condensed Report is docketed: “2 Cong No. 34 2 Sess. Condensed.” Beneath the word “Condensed” appears: “Report from Secretary of the Treasury with names & compensation of all Officers in the civil employ of the Government, 1793 Feb 27—Series 10 No. No. [sic] 34 Miscellaneous.” A separate notation indicates: “Condensed by Order of the Secretary of the Senate.”

17. These markings clearly indicate that sometime after 1820 (probably near 1833), the Secretary of the U.S. Senate ordered that a condensed version of The Complete Report be made. Transcribed by a clerk of the Senate, The Condensed Report was then printed in the first miscellaneous volume of American State Papers, published in 1834. Hamilton was long since dead by 1820. Thus Alexander Hamilton had no direct connection with The Condensed Report.

The Plaintiffs and the Legal Historians have made a serious mistake by failing to distinguish between an authentic document and a copy that was drafted a generation later. This error was not an errant mistake in a scholarly journal, but one reviewed and vetted in a court pleading. And it was one designed solely to attack Tillman’s credibility.

And a challenge to the Legal Historians:

But the scholars who joined the Legal Historians brief have to make an important decision about whether to retract this claim [regarding Hamilton's signature on the second document] ... and whether they should put their names on future briefs in this litigation–especially those they did not personally write. The Legal Historians are Professor Jack N. Rakove (Stanford University, Department of History), Professor Jed Handelsman Shugerman (Fordham Law School), Professor John Mikhail (Georgetown University Law Center), Professor Gautham Rao (American University, Department of History), and Professor Simon Stern (University of Toronto).

A further thought: To me this episode indicates how originalism can get beyond concerns over "law office history" (and, as my colleague Mike Rappaport has called it, "history office law").  Exploring the original meaning is a dynamic and adversarial process, whether in litigation or in scholarship.  The project does not turn on the adequacy of any particular contribution. The hope is that the sum of the contributions will lead to a clearer understanding.

09/19/2017

The Legislative History of the Fourth Amendment: Unreasonable Searches and General Warrants
Mike Rappaport

The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Significantly, the two clauses are separated by an “and.”  This “and” has led to an uncertainty about the relationship between the two clauses. Some people argue that searches and seizures without warrants are unreasonable, except in limited circumstances.  Others argue that searches and seizures do not require warrants under any circumstances.  Instead such warrants were used as a defense by government officials against tort claims for illegal searches and therefore were restricted to certain situations.

Interestingly, the original version of the Fourth Amendment did not have this structure.  James Madison’s proposed version of what would become the Fourth Amendment provided:

The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

Madison’s provision only provides protection from certain kinds of warrants – the protection provided by the prohibition clause.  While it includes the language of the rights clause, this language does not confer that right independently.  Instead, Madison’s provision merely states that the right can be violated by violating the prohibition clause.  In fact, the rights clause narrows the scope of the prohibition clause by limiting it to “persons, houses, papers, and other property.”

One possibility for Madison’s provision was that it sought to work a compromise between two views of the right at issue.  The Massachusetts Constitution of 1780 provided for both the rights clause and the prohibition clause: “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right” if they do not satisfy the various requirements in the prohibition clause.

By contrast, the Virginia Declaration of Rights provided only for the prohibition clause.  Madison, a Virginian, might have sought to work a compromise, which would have operated much like the Virginia Declaration.  Instead, the Amendment was changed to follow the Massachusetts provision.

James Cleith Phillips & Sara White on Corpus Linguistics and Foreign Emoluments
Michael Ramsey

James Cleith Phillips (J.D., University of California, Berkeley, School of Law; Ph.D. candidate, Jurisprudence & Social Policy, UC-Berkeley) and Sara White (M.A., Brigham Young University, linguistics; BYU, J. Reuben Clark Law School, Law and Corpus Linguistics Research Fellow) have posted The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799 on SSRN.  Here is the abstract:

The recent flurry of scholarship seeking to understand the meaning of the emoluments clauses of the Constitution, particularly the Foreign Emoluments Clause, in the wake of President Trump’s election and subsequently filed lawsuits, has relied on a host of interpretive methodologies. To the extent scholars now (and courts later) seek to understand what the term emolument(s), used thrice in the Constitution, would have meant to the founding generation, their methodologies in determining such have generally relied on small, unrepresentative samples of language usage and founding era dictionaries. But the former cannot confidently provide insights that we can generalize to the greater population (either overall or of lawyers) from the time, and the latter are simply not up to the task of determining usage patterns. Instead, corpus linguistics—what Professor Lawrence Solum had predicted “will revolutionize statutory and constitutional interpretation”—is needed to answer that question.

This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period—here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA)—to make confident conclusions about probably founding-era meaning.

The article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone.

This paper finds that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.

09/18/2017

John McGinnis on Originalism and Amendments
Michael Ramsey

At Liberty Law Blog, John McGinnis: How Originalism Energizes the Amendment Process.  From the introduction: 

In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances.   But  defenders of  living constitutionalism as an interpretive theory do have a response to this  position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position. ...

RELATED:  Also from John McGinnis: Scalia’s Reading Law Reflects the Rise of Formalism and the Language of Law.  A key point: 

Reading Law has one important flaw.  Scalia and Garner do not identify adequate criteria for determining what is a valid canon. But it is essential to do so if we are to apply canons consistently to the Constitution. In our view, the interpretive rules for the Constitution of 1789 are those that were deemed applicable at the time. Thus, originalists must research the relevant interpretive rules in 1789 no less than they must investigate the meaning of the terms at that time.  And just as interpreters should choose the better meaning of a term, even if only slightly better than the alternative, so should interpreters likely embrace interpretive rules when the better view is that they were deemed applicable to a text like the Constitution.

09/17/2017

Patrick Gallagher: The Conservative Incubator of Originalism
Michael Ramsey

Patrick F. Gallagher (University of Chicago, Students) has posted The Conservative Incubator of Originalism: The Reagan Department of Justice on SSRN.  Here is the abstract

Previous accounts of the Reagan Department of Justice’s role in promoting originalism are notably external: they either focus solely on the efforts of Attorney General Edwin Meese III or rely on evidence created well after the 1980s. This essay takes a different approach: it examines a plethora of the Department’s archival records, with particular emphasis given to the Office of Legal Policy. The revisionist narrative presented suggests that the Department served as a conservative incubator for originalism. That is, it compiled several abstract, fringe-right-wing legal theories, intellectually honed them, and repackaged them into a concrete and seemingly innocuous interpretive method that could be easily marketed to both the legal community and the public. While the intellectual origins of originalism within the Reagan Administration can largely be attributed to a small group of Administration elites (including Patrick Buchanan, John Roberts, Fred Fielding, and Meese), most of its popularization is thanks to the strategic, conservative plan crafted by Assistant Attorney General Stephen Markman and others within his subdivision, the Office of Legal Policy. Altogether, the written record helps lay to rest the notion that the Reagan Department of Justice did not purposefully imbue originalism with conservatism.

Notes: This paper was submitted in partial fulfillment of the requirements for the Master of Arts degree in the Master of Arts Program in the Social Sciences at the University of Chicago [ed.: Faculty Adviser: William Baude]. Questions, feedback, and publication inquir[i]es are welcomed via email.

09/16/2017

Originalist Amicus Brief of David Gray, et al. in Carpenter v. United States
Michael Ramsey

David C. Gray (University of Maryland) and ten other professors have filed a Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States and posted it on SSRN.  Here is the abstract: 

Obtaining and examining cell site location records to find a person is a “search” in any normal sense of the word — a search of documents and a search for a person and her personal effects. It is therefore a “search” within the meaning of the Fourth Amendment in that it constitutes “examining,” “exploring,” “looking through,” “inquiring,” “seeking,” or “trying to find.” Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that “search” should be construed more narrowly as, for example, intrusions upon subjectively manifested expectations of privacy that society is prepared to recognize as reasonable.

Entrusting government agents with unfettered discretion to conduct searches using cell site location information undermines Fourth Amendment rights. The Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The Framers chose that language deliberately. It reflected the insecurity they suffered at the hands of “writs of assistance,” a form of general warrant that granted state agents broad discretion to search wherever they pleased. Such arbitrary power was “unreasonable” to the Framers, being “against the reason of the common law,” and it was intolerable because of its oppressive impact on “the people” as a whole. As emphasized in one of the seminal English cases that inspired the Amendment, this kind of general power to search was “totally subversive of the liberty of the subject.” James Otis’s famous speech denouncing a colonial writ of assistance similarly condemned those writs as “the worst instrument of arbitrary power,” placing “the liberty of every man in the hands of every petty officer.” 

Thus, although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.”

The signatories are David C. Gray (University of Maryland Francis King Carey School of Law); Laura Donohue (Georgetown University Law Center); Tracey Maclin (Boston University - School of Law); Danielle Keats Citron (University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society); Morgan Cloud (Emory University School of Law); William J. Cuddihy (Independent); Norman Garland (Southwestern Law School); Margaret Hu (Washington and Lee University - School of Law); Renee M. Hutchins (University of Maryland Francis King Carey School of Law); Luke Milligan (University of Louisville - Louis D. Brandeis School of Law); and George C. Thomas III (Rutgers Law School).

(For a somewhat contrary view see here from Orin Kerr).

09/15/2017

Neal Goldfarb on Carissa Hessick on Corpus Linguistics
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb: Some comments on Hessick on corpus linguistics.  From the introduction: 

Up until now, the use of corpus linguistics in legal interpretation has gotten almost entirely good press—probably because almost all the press it’s gotten has come from its advocates. That situation has now changed, though, with the posting on SSRN of a paper by UNC law professor Carissa Hessick, who was one of the participants at the BYU law-and-corpus-linguistics symposium this past February. (Hessick has blogged about her paper at Prawfsblawg, here and here.) [Ed.: noted here].

The paper, “Corpus Linguistics and the Criminal Law” (pdf), argues that corpus linguistics “is not an appropriate tool” for interpreting statutes. Although it deals specifically with using corpus linguistics in interpreting criminal statutes, and Hessick’s concerns may not be as strong as to other areas of the law, much of her criticism would apply across the board. In this post I am going to discuss some of the issues that the paper raises, and if you’ve followed this blog before, you won’t be surprised to find out that I disagree with Hessick’s conclusion.

(Via How Appealing).

09/14/2017

Tenth Circuit Originalism: Vogt v. City of Hays
Michael Ramsey

My colleague Donald Dripps points to this recent opinion from the Tenth Circuit, now on petition to the Supreme Court: Vogt v. City of Hays.  The issue is whether the 5th Amendment self-incrimination clause is violated when a statement is used at a
probable cause hearing rather than at a trial.   The court  (in an opinion by Judge Bacharach, joined by Judges Hartz and McHugh) said yes, with a heavily originalist analysis -- I quote at some length to give a sense of the originalist emphasis (footnotes and some citations omitted).

After finding no controlling precedent, the court begins with original meaning analysis:

[We conclude] that the right against self-incrimination is more than a trial right. In reaching this conclusion, we rely on

  • the text of the Fifth Amendment, which we interpret in light of the common understanding of the phrase “criminal case,” and
  • the Framers’ understanding of the right against self incrimination.

The Fifth Amendment provides that no person shall be “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V (emphasis added). The text of the Fifth Amendment does not contain

  • the term “trial,” which appears in the next two amendments, or
  • the term “criminal prosecution,” which is used in the next amendment.

… Indeed, on its face, the term “criminal case” appears to encompass all of the proceedings involved in a “criminal prosecution.”

“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning . . . .” United States v. Sprague, 282 U.S. 716, 731 (1931). To determine the commonly understood meaning of the phrase “criminal case” at the time of ratification (1791), we examine dictionary definitions from the Founding era. See Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 365 (2014); see also William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1338 n.99 (2007) (stating that contemporaneous dictionaries “obviously . . . provide some guidance to the commonly understood meaning of a particular word at the time that word was used in the constitutional text”).

The most authoritative dictionary of that era was Noah Webster’s 1828 dictionary, An American Dictionary of the English Language. See John A. Sterling, Above the Law: Evolution of Executive Orders (Part One), 31 UWLA L. Rev. 99, 107 (2000) (stating that most historians use Noah Webster’s 1828 dictionary when trying to determine the meaning of words during adoption of the Constitution); see also Charles Wood, Losing Control of America’s Future—The Census, Birthright Citizenship, and Illegal Aliens, 22 Harv. J.L. & Pub. Pol’y 465, 478 (1999) (stating that Noah Webster’s 1828 dictionary was “the first and for many years the 16 authoritative American dictionary”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U. L. Rev. 1393, 1425 (2012) (describing Noah Webster’s 1828 dictionary as “an incredible achievement” and as a “dominant” source since its publication); Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 389-90 (2014) (stating that the Supreme Court often cites Noah Webster’s 1828 dictionary as evidence of the original meaning of the Constitution, perhaps based on a belief “that the dictionary may reflect better the ways in which Americans used and understood the words in the Constitution”). Webster’s 1828 dictionary defines “case” as “[a] cause or suit in court,” stating that the term “is nearly synonymous with cause.” Noah Webster, Case, An American Dictionary of the English Language (1st ed. 1828). And the dictionary defines the “nearly synonymous” term “cause” as “[a] suit or action in court.” Id., Cause. Similarly, N. Bailey’s 1789 dictionary broadly defines “case” as a “thing, matter, question.” N. Bailey, The Universal Etymological English Dictionary, Case (26th ed. 1789).

The Founders’ understanding of the term “case” suggests that the Fifth Amendment encompasses more than the trial itself. See Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down that Wrong Road Again,” 74 N.C. L. Rev. 1559, 1627 (1996). “If the Framers had meant to restrict the right to ‘trial,’ they could have said so.” Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1014 (2003). ...

Then the court looks to history for further support:

We are aided not only by Founding-era dictionary definitions and [Supreme Court decisions] but also by the Framers’ understanding of the phrase “in any criminal case.” … 

One clue involves the changes in the Fifth Amendment from drafting to ratification. The amendment had been drafted by James Madison, who omitted the phrase “criminal case”:

No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation.

James Madison, Remarks in Debate in the House of Representatives (June 8, 1789) (emphasis added), reprinted in 1 Debates and Proceedings in the Congress of the United States 448, 451-52 (Joseph Gales ed., 1834); United States Congress, Debates and Proceedings in the Congress of the United States 451-52 (Washington, D.C. 1834). This language “applied to civil as well as criminal proceedings and in principle to any stage of a legal inquiry, from the moment of arrest in a criminal case, to the swearing of a deposition in a civil one.” Leonard W. Levy, Origins of the Fifth Amendment 423 (1968).

In the floor debate on whether to adopt the Bill of Rights, Representative Laurance expressed concern that Madison’s wording would conflict with “laws passed.” Statement of Representative John Laurance (Aug. 17, 1789), reprinted in 1 Debates and Proceedings in the Congress of the United States 782, 782. To avoid this conflict, Representative Laurance proposed to add the phrase “in any criminal case.” Id. Representative Laurance’s language was accepted in the House and Senate. Leonard W. Levy, Origins of the Fifth Amendment 424-26 (1968).

It is unclear which “laws” Representative Laurance was talking about. One possibility was the proposed Judiciary Act, which would allow the judiciary to compel production of documents in civil cases. Another possibility was the Collections Act, which allowed officials to require oaths in customs declarations. Act of July 31, 1789, ch. 5 section 13, 1 Stat. 29, 39-40; see Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 705 n.450 (1999). But whichever law was at risk, Representative Laurance was apparently trying to distinguish between potential criminal liability and civil liability. See Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1017 (2003) ...

When Representative Laurance proposed to confine the Fifth Amendment to a “criminal case,” there was a consensus that the right against self-incrimination was not limited to a suspect’s own trial. To the contrary, “the historical sources show that the right against selfaccusation was understood to arise primarily in pretrial or preprosecution settings rather than in the context of a person’s own criminal trial.” Id. at 1017-18. If this right were limited to one’s own trial, the right would have served little purpose, for criminal defendants were then unable to testify in their own criminal cases. See Ferguson v. Georgia, 365 U.S. 570, 574 (1961) (stating that when the United States was formed, “criminal defendants were deemed incompetent as witnesses”).

The most natural place for concern about compelled testimony would have been in proceedings outside of criminal trials, such as grand jury proceedings. See David Rossman, Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution, 26 Ga. St. U.L. Rev. 417, 488 (2010).

After adopting Representative Laurance’s language, the Senate reorganized the cluster of rights that ultimately went into the Fifth and Sixth Amendments. “In what was to be the Sixth Amendment the Senate clustered together the procedural rights of the criminally accused after indictment.” Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1013 (2003) (“[T]he Sixth Amendment plainly deals with rights that protect ‘the accused’ during the court phase of prosecutions, including trials.”). This grouping of Sixth Amendment rights omitted the right against self-incrimination, which was put into the Fifth Amendment with other rights that unambiguously extended to pretrial proceedings as well as the trial:

That the self-incrimination clause did not fall into the Sixth Amendment indicated that the Senate, like the House, did not intend to follow the implication of 23 [Section 8 of the 1776 Virginia Declaration of Rights] . . . that the right not to give evidence against oneself applied merely to the defendant on trial. The Sixth Amendment, referring explicitly to the accused, protected him alone. Indeed the Sixth Amendment, with the right of counsel added, was the equivalent of Virginia’s Section 8 and included all of its rights except that against selfincrimination. Thus, the location of the self-incrimination clause in the Fifth Amendment rather than the Sixth proves that the Senate, like the House, did not intend to restrict that clause to the criminal defendant only nor only to his trial. The Fifth Amendment, even with the self-incrimination clause restricted to criminal cases, still puts its principles broadly enough to apply to witnesses and to any phase of the proceedings.

Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1009-13 (2003) (“[T]he right against compelled selfaccusation is in the wrong amendment to be a ‘trial right.’”); Michael J. Zydney Mannheimer, Ripeness of Self-Incrimination Clause Disputes, 95 J. Crim. L. & Criminology 1261, 1322 (2005) (“It appears that the placement of the Self-Incrimination Clause in the Fifth Amendment rather than the Sixth signifies that a ‘criminal case’ can exist before a ‘criminal prosecution[]’ commences.” (alteration in original)).

In sum, there is nothing to suggest that the Framers were seeking to confine the right against self-incrimination to trial. The Founders apparently viewed the right more broadly, envisioning it to apply beyond the trial itself.

Three very quick thoughts:  (1)  Originalism is at least part of the mainstream of our law, not a radical outlier; (2) note the extent to which the court looks to academic studies for support -- academic originalism need not be impractical; and (3) for originalism critics who think originalism is impossible or can be performed only by historians, this seems like a good target: what's wrong with it?  (Not my area, so I have no opinion on the outcome, but the originalist methodology seems plausible on its face).

(Thanks again to Donald Dripps for the pointer).

09/13/2017

Jeffrey M. Schmitt: A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands
Michael Ramsey

Jeffrey M. Schmitt (University of Dayton - School of Law) has posted A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands (Harvard Environmental Law Review, forthcoming 2018) on SSRN.  Here is the abstract:

The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal landownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated purpose. This scholarly debate has become increasingly important in recent years, as a popular movement for state ownership of federal land has reemerged in the West. 

This Article argues that the debate over the history of the Property Clause should move beyond the Founding. The original public meaning of the text, intent of the framers, and precedent of the early Supreme Court simply do not resolve the issue of whether Congress’s Duty to Dispose includes the power to permanently retain land within the states. This Article therefore provides the first detailed examination of how Congress’s Power to Dispose has been understood since the Founding. It concludes that, although western extremists have repeatedly challenged Congress’s power when federal land policy has restricted western development, dominant opinion has always supported a broad construction of Congress’s power. In fact, those who favor federal land ownership have long argued that giving land to individual states would violate a constitutional obligation for Congress to use the land for the common benefit. When constitutional history is properly applied to Congress’s Power to Dispose, it therefore strongly supports federal land ownership.

(Via Larry Solum at Legal Theory Blog, who says: "Very interesting and recommended!").

I haven't looked at the issue closely, but it seems a stretch to say that Congress having the power to "dispose" of land implies a duty to do so. Nor does it seem that Congress needs an enumerated power to "retain" land, because the land does not belong to Congress.  Of course, the land (or other property) would need to be obtained for the United States pursuant to an enumerated power (by Congress or another branch), but once obtained Congress has -- by the same clause of Article 4, Section 3 -- the power to manage it (to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.").

Mostly I'm just happy Professor Schmitt uses "A Historical Reassessment ..." rather than the malign "An Historical Reassessment..."

09/12/2017

Lawrence Solan: Patterns in Language and Law
Michael Ramsey

Lawrence M. Solan (Brooklyn Law School) has posted Patterns in Language and Law (International Journal of Language & Law, Vol. 6, pp. 46, 2017) on SSRN.  Here is the abstract:

Our language faculty is rule-like in some ways, pattern-like in others, as Steven Pinker (1999) has shown. Much of syntax is describable a set of rules, whereas the range of meanings attributed to a word is best described in terms of patterns. Laws are typically written as rules, but they are written in words, many of which display pattern-like arrays of usage. Legal systems default to an expression’s “ordinary meaning,” requiring estimates of patterns of usage. Recently, advances in corpus linguistics have been adduced by judges and legal scholars in this regard. Furthermore, open-textured legal terms, including the word “pattern” itself, are by their nature more describable in terms of patterns of their application than in terms of hard-and-fast rules. Apart from linguistic issues in legal interpretation, legal systems value coherence, requiring that like things be treated alike, often focusing on patterns of how laws are applied. At times, however, these patterns uncover biases in a law’s application. This article attempts to describe how this duality in both linguistic description law interact with each other.

09/11/2017

Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey

At Prawfsblawg, Carissa Byrne Hessick (UNC): Corpus Linguistics and Criminal Law.  From the introduction:

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

... After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

Plus in the comments, Orin Kerr suggests:

I would think corpus linguistics has value to an originalist engaging in constitutional interpretation but less value to a textualist engaging in statutory interpretation. An originalist engaging in constitutional interpretation may want to know the original public meaning of a particular word or phrase, which is generally a matter of public usage in some time in the past. A study of public sources from that period might help illuminate that meaning to a modern reader, and a more rigorous study of those sources might give the modern reader greater confidence that a particular interpretation was the one the public would have taken at the time. On the other hand, I don't think of textualist approaches as generally involving the same act of reconstructing a public meaning. I think of textualism more a matter of understanding how a careful law-trained reader of the statutory text -- one versed in precedents and court rulings about that phrase -- thinks that language means. Given that, I'm less sure that a corpus linguistics approach can shed light on the meaning of a statute.

09/10/2017

John McGinnis on Judicial Appointments
Michael Ramsey

At Liberty Law Blog, John McGinnis: How Trump’s Judicial Nominees Put Democrats in a Bind.  From the introduction: 

Donald Trump’s judicial nominations have been the most successful part of a presidency that has often misfired.  The nominees are not only a tribute to the President but to an idea and to an organization. The idea is originalism—the notion that the Constitution’s provisions should be interpreted according the meaning they had at the time they were enacted. They should not become vessels for judges to update their meaning.

The organization is the Federalist Society.  It is established around the ideal of originalism, and enlists thousands of lawyers around the nation in defending it. Now more than thirty years old, it has gained in strength over the decades. And some of its best and most articulate members have become Trump’s nominees for the federal district and appellate courts.

The combination of a powerful idea and a far flung organization has made it easy for Republicans to unite behind the President’s nominees, as they have not yet been able to unite behind any other policy of importance. And the result has also been to make the Democrats look foolish and extreme, because originalism has a common sense appeal that is difficult to attack and the nominees have qualifications and abilities that are difficult to assail.

09/09/2017

William Kelley: Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument
Michael Ramsey

William Kelley (Notre Dame Law School) has posted Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument (Notre Dame Law Review, Vol. 92, No. 5, 2017).  Here is the abstract:

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his tenure, in particular his preference for rules versus standards as a method of cabining judicial discretion and his devotion to constitutional originalism. The essay concludes first that Justice Scalia embraced a broad view of Congress's power to delegate because he (again, consistently with the Court's longtime understanding) believed that the line-drawing required for courts to police delegations was ultimately a matter of discretionary judgment that judges are unsuited to make. With respect to his nondelegation doctrine jurisprudence's consistency with originalism, it is a gap in his jurisprudence that he never took on that question. That gap is best understood, the essay suggests, by his attraction to the deferential nature of the Court's longstanding precedents and the doctrine of stare decisis.

This essay is part of the Notre Dame Law Review symposium on Justice Scalia.  The full issue is available here (contributions from Judge Brett Kavanaugh, Amy Coney Barrett (Notre Dame), me, Brian Fitzpatrick (Vanderbilt), Kevin Walsh (Richmond), Alan Meese (William and Mary), Abbe Gluck (Yale), Anthony Bellia (Notre Dame), William Kelley (Notre Dame), Bradford Clark (GW), Gary Lawson (BU), and Adrian Vermeule (Harvard)).  My essay is also available on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice.

As to the nondelegation doctrine, Whitman was an atrocious opinion from an originalist perspective, regardless of whether the outcome was correct.   Although arguably defensible on the basis of precedent, I think it arose mainly from the Justice's concern over line-drawing problems (as Professor Kelley suggests).  Moreover, the respondents did a poor job of invoking originalist arguments.  Justice Thomas wrote, concurring in the majority opinion:

The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the "intelligible principle" requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928), the Constitution does not speak of "intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein granted shall be vested in a Congress." U. S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative."

As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.

This failure to invoke originalist arguments would likely not happen today.  And unease over the constitutional foundations of the administrative state is stronger now as well.  If Whitman had come later, I think we would have seen a different set of briefs and opinions (although perhaps not a different result).

09/08/2017

New Book: "Supreme Court Expansion of Presidential Power" by Louis Fisher
Michael Ramsey

Recently published: Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (University Press of Kansas 2017), by Louis Fisher (The Constitution Project/formerly historian with the Library of Congress).  Here is the book description from Amazon:

In the fourth of the Federalist Papers, published in 1787, John Jay warned of absolute monarchs who “will often make war when their nations are to get nothing by it.” More than two centuries later, are single executives making unilateral decisions any more trustworthy? And have the checks on executive power, so critical in the Founders’ drafting of the Constitution, held? These are the questions Louis Fisher pursues in this book. By examining the executive actions of American presidents, particularly after World War II, Fisher reveals how the Supreme Court, through errors and abdications, has expanded presidential power in external affairs beyond constitutional boundaries—and damaged the nation’s system of checks and balances.

Supreme Court Expansion of Presidential Power reviews the judicial record from 1789 to the present day to show how the balance of power has shifted over time. For nearly a century and a half, the Supreme Court did not indicate a preference for which of the two elected branches should dominate in the field of external affairs. But from the mid-thirties a pattern clearly emerges, with the Court regularly supporting independent presidential power in times of “emergency,” or issues linked to national security. The damage this has done to democracy and constitutional government is profound, Fisher argues. His evidence extends beyond external affairs to issues of domestic policy, such as impoundment of funds, legislative vetoes, item-veto authority, presidential immunity in the Paula Jones case, recess appointments, and the Obama administration's immigration initiatives. 

Fisher identifies contemporary biases that have led to an increase in presidential power—including Supreme Court misconceptions and errors, academic failings, and mistaken beliefs about “inherent powers” and “unity of office.” Calling to account the forces tasked with protecting our democracy from the undue exercise of power by any single executive, his deeply informed book sounds a compelling alarm.

And from the reviews:

“In this authoritative account, Louis Fisher demonstrates that federal courts since the 1930s have greatly expanded presidential power, and have done so beyond any fair reading of the original intent of the Framers and the text of the Constitution. They have done so through erroneous readings of historical precedent, the development of doctrines that are based on personal biases toward executive power, and through abdication of their responsibilities to adjudicate by seeking refuge in procedural dodges. Fisher argues that not only the courts should be held accountable for misleading approaches, biased doctrines, and abdication of function, but so should a large part of the public law scholarly community. For the most part legal scholars have not mined the historical record, nor questioned presumptions about executive competence. The result is that both judges and the scholars who comment on their work have legitimized executive power to an extent that has done serious damage not only to the constitutional system, but also to the viability and legitimacy of public policy. Fisher is the dean of public law scholars, and he has produced a hugely valuable study of the non-use and misuse of judicial power in legitimizing the vast expansion of presidential powers.”―Richard M. Pious, Adolph and Effie Ochs Professor Emeritus, Barnard College and Columbia University

"Louis Fisher’s richly documented latest book sets forth a compelling historical narrative of the American republic from 1789 to the present that constitutes a serious indictment of the Supreme Court’s unique contributions in creating a Presidency that possesses powers that are not only dangerous but are at odds with foundational principles of the constitutional order such as separation of powers and checks and balances. Fisher’s Supreme Court Expansion of Presidential Power is the culmination of decades of learning and consideration and should be required reading for anyone invested in the preservation of an American republic committed to democratic values, individual liberty, and the rule of law."― David Rudenstine, author of The Age of Deference: The Supreme Court, National Security, and the Constitutional Order

“Louis Fisher is the nation’s preeminent scholar on separation of powers issues. His mastery of both the big picture and the fine details shines through in this straight-forward, authoritative account of how the Supreme Court has helped to enable the aggrandizement of executive power. Supreme Court Expansion of Presidential Power: Unconstitutional Leanings is another essential contribution to Fisher’s invaluable library of scholarly work.”―Jeffrey Crouch, author of The Presidential Pardon Power

“Fisher once again shows why he is considered one of the preeminent constitutional scholars today. His latest book is a well researched and thought-provoking study of the expansion of presidential powers. Offering great insight Fisher explores how the judiciary has done much to aid the presidency in the accumulation of its powers, particularly in external affairs. The record Fisher presents should be both insightful and troubling for those who believe in constitutional governance. His book should be a must read for all.”―Mitchel A. Sollenberger, author of The President’s Czars: Undermining Congress and the Constitution

09/07/2017

The Original Meaning of the Fourth Amendment: What Does "the Place to Be Searched" Mean?
Mike Rappaport

Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject.  The text of the Fourth Amendment is filled with significant interpretive questions.

Let me start with an issue that grows out of the language of the second portion of the Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A careful reading of the italicized language raises a question: why does the clause speak of “the place to be searched” in the singular, but “the persons or things to be seized” in the plural?  After all, it would have been more consistent for the Amendment to have read “the places to be searched, and the persons or things to be seized.”  Was this intentional, so that search warrants can only authorize the search of a single place?

I have certainly seen many people make fun of these types of textual arguments.  The idea that you would confer significance on a slight textual change seems ridiculous to them.  “There are important policy questions here that should not be resolved by small textual differences.”  But treating such small textual differences as consequential can make sense under both a textualist original public meaning approach and under an approach that treats the Constitution as written in the language of the law, which often follows a strong textualism.

Fourth Amendment scholar William Cuddihy believes that the historical sources strongly support the view that this textual difference was intended. In particular, he relies on  legal treatises at the time, state statutes, and federal statutes.

Cuddihy notes that the federal Collection Act “imposed the highest possible standard of particularity by restricting all federal search warrants to single structures, even if those structures were not houses.  Every warrant had to specify a single location: a house, store ‘or other place.’"

He also notes that “most states had standardized the specific warrant by 1789, and nearly all of those states, in turn, limited search warrants to single, not plural, locations.”  He writes:

Under the Massachusetts imposts of 1782-86, the informant designated, typically, the “particular dwelling house or store” that he suspected, and the warrant was confined to “such house or store.”  The corresponding Rhode Island act of 1786 provided a search warrant “particularly discriminating the Dwelling House, Store, Ware-house, or other Building.”  Also in 1786, Delaware enacted a warrant specifying a single “House, Out-house, Barn or other Place.”  A similar requirement existed in Pennsylvania. New Hampshire in 1777 and Virginia in 1787 established official forms for certain warrants that had only a single blank for the name of the lone person whose house was to be searched.

Finally, Cuddihy claims that “the legal treatises that Americans wrote and read during the Fourth Amendment’s formation impliedly repudiated multiple-specific warrants by providing examples of specific warrants that always confined the search to a single location.  By implication, any warrant that allowed several houses to be searched was unreasonable even if it specified those houses.”

This evidence, overall, seems reasonably strong, although one cannot know for sure until one actually looks at the primary sources.  One limitation, though, is that much of the evidence seems to involve a textual inference that reference to “a house” means a single house.  Not a problematic inference, but one would want some additional evidence.

There is some evidence that this issue was in the minds of people and therefore the text was not merely a coincidence, but actually spoke to a contended issue.  For example Cuddihy notes that “Benjamin Gale, who represented Connecticut in the Congress of 1789 [which proposed the Fourth Amendment], had earlier condemned multiple-specific warrants as infringements of ‘natural, civil, and constitutional rights.’”

John McGinnis on Original Methods Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Original Methods Originalism Is Public Meaning Originalism.  From the introduction:

Professor Larry Solum has written an excellent series of posts that that help clarify the question of whether public meaning originalism constrains judges. He both distinguishes the concept of constraint from other related concepts like determinacy and helpfully suggests a framework for empirically analyzing the degree of constraint that originalism provides.

Larry, however, makes one puzzling assertion in the first of these posts. He suggests that there are alternatives to public meaning originalism still supported by serious originalist scholars. He included as one of these alternatives “original methods originalism” – the view of originalism that Mike Rappaport and I have propounded. But original methods originalism is emphatically a form of public meaning originalism.

Briefly described, public meaning originalism is the view that the meaning of the Constitution’s text is that which would be attributed by a reasonable observer or reader at the time the relevant provision of the Constitution is enacted. Original methods originalism contends that the reasonable reader would follow the meaning that flows from the interpretive methods applied to a legal text of the Constitution’s kind. We defend that view by arguing further that the Constitution is written in the language of the law. Thus, a reasonable reader would recognize that the context of the document demands the use of legal terms and interpretive rules, particularly to clarify and make more precise terms and provisions that might otherwise seem unclear. ...

09/06/2017

Is DACA Unconstitutional? (Again)
Michael Ramsey

In announcing the winding down of the Deferred Action for Childhood Arrivals (DACA) program, the President yesterday said in part:

The legislative branch, not the executive branch, writes these laws – this is the bedrock of our Constitutional system, which I took a solemn oath to preserve, protect, and defend.

In June of 2012, President Obama bypassed Congress to give work permits, social security numbers, and federal benefits to approximately 800,000 illegal immigrants currently between the ages of 15 and 36.  The typical recipients of this executive amnesty, known as DACA, are in their twenties.  Legislation offering these same benefits had been introduced in Congress on numerous occasions and rejected each time.

In referencing the idea of creating new immigration rules unilaterally, President Obama admitted that “I can’t just do these things by myself” – and yet that is exactly what he did, making an end-run around Congress and violating the core tenets that sustain our Republic. 

Officials from 10 States are suing over the program, requiring my Administration to make a decision regarding its legality. The Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court.

There can be no path to principled immigration reform if the executive branch is able to rewrite or nullify federal laws at will.

So is this right (that is, that DACA is illegal)?  At Volokh Conspiracy, Ilya Somin, anticipating this argument, says no

In part because the moral and policy case for DACA is so strong, many opponents of the program tend to focus on legal considerations. DACA does not in fact change any law or legalize any previously banned activity without congressional approval. It merely suspends enforcement of a law against a particular category of migrants.  Nonetheless, critics claim that it was illegal for the executive to adopt DACA without congressional authorization. I addressed this issue in some detail  back when DACA was first announced in 2012.

...

Most of the points I made in this 2016 article defending the legality of Obama’s later DAPA policy (which was rescinded by Trump in June) also apply with even greater force to DACA, since the latter is a much more limited program. Wide-ranging presidential enforcement discretion is unavoidable in a system where there is so much federal law and so many violators that the executive can only target a small fraction of them. In the 2016 article, I explain why presidents have the power to exercise their discretion systematically as well as on a “case-by-case” basis. 

While this may be right as a general matter, it seems wrong as applied to DACA.  As I understand it, it's not the case that DACA "merely suspends enforcement of a law against a particular category of migrants."  In The HillHans von Spakovsky and David Inserra argue

Unilaterally created by President Obama, DACA provides pseudo-legal status to illegal aliens brought to the U.S. as minors. It gives them a promise that they won’t be deported, as well as providing them with work authorizations and access to Social Security and other government benefits.

...

... [T]he federal courts prevented President Obama from implementing the similar “Deferred Action for Parents of Americans and Lawful Permanent Residents” program or DAPA. Like DACA, DAPA provided an administrative amnesty for illegal aliens and gave them work authorizations and access to government benefits.

The Fifth Circuit Court of Appeals upheld the injunction entered by a lower federal court against the DAPA program. Under our Constitution, Congress has plenary authority over immigration; the president only has authority that has been delegated to him by Congress. As the Fifth Circuit said, the fact that the president declined to enforce the law and remove illegal aliens “does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” Obama acted beyond his constitutional authority when he provided through DAPA pseudo-amnesty and government benefits that had not been authorized by Congress.

The DACA program suffers from exactly the same constitutional infirmity. 

That seems right as far as it goes.  As I've argued before, if DACA (and DAPA) provide affirmative benefits to undocumented immigrants (as they appear to do -- I've never heard any defender of the programs specifically show that they don't), then the programs cannot be defended as exercises of prosecutorial discretion.  The historical conception of prosecutorial discretion is simply that the executive would decline to prosecute.  The potential target of the prosecution would gain no change in legal status, because the executive power did not extend to changing legal status.  All the target would get is temporary and contingent relief from prosecution.

But von Spakovsky and Inserra also stop well short of proving their point.  Assuming they are right about DACA's effects, they are right that the President cannot implement the program without congressional approval.  However, they assume there has been no congressional approval.  Perhaps so, but the immigration statutes are voluminous and convey enormous discretion to the President.  If that discretion includes authority to establish DACA, then DACA is constitutional.

Professor Somin does make this argument, albeit as a sort of throwaway at the end of his recent post: 

I also note [in the 2016 analysis] that the policy of giving DACA and DAPA recipients work permits actually does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are “authorized … to be employed … by the attorney general.”

But that gets the emphasis backwards: the whole argument for DACA depends (or should depend) on whether the President has congressional authorization.  

It's true, as von Spakovsky and Inserra say, that the Fifth Circuit found that DAPA was unauthorized on administrative law grounds (not as a constitutional matter), but that decision was affirmed by an equally divided Supreme Court and isn't necessarily right.  Defenders of the DACA program would need to say it's wrong, or to distinguish DACA from DAPA.

In sum, much of the commentary on both sides fails to get the argument entirely right.  The President does not have independent executive power to change the legal status of DACA beneficiaries.  Trying to locate such an authority in the power of prosecutorial discretion is misconceived, even if one has a broad view of prosecutorial discretion.  But the President might have a delegated authority to change the legal status of DACA beneficiaries, depending on how one reads the immigration statutes (and as a constitutional law scholar, I do not have an opinion on that question).

09/05/2017

James Pfander and Daniel Birk: Adverse Interests and Article III: A Reply
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Daniel D. Birk (Eimer Stahl, LLP) have posted Adverse Interests and Article III: A Reply (Northwestern University Law Review, Vol. 111, No. 4, 2017) on SSRN. Here is the abstract:

Scholars and jurists have long sought an explanation for why the Framers of Article III distinguished “Cases” from “Controversies.” In a previous article that cataloged the exercise of federal jurisdiction over uncontested matters, such as pension claims, warrant applications, and naturalization proceedings, we tried to provide an answer to this question. We suggested that, at least as to “cases” arising under federal law, the federal courts could exercise what Roman and civil lawyers called noncontentious jurisdiction or, in the words of Chief Justice Marshall, could hear uncontested claims of right in the form prescribed by law. As for “controversies,” by contrast, the federal courts were limited to the adjudication of disputes between parties aligned as Article III specifies. Much that seems strange about the practice of federal jurisdiction becomes clear when viewed in light of our proposed interpretation. Thus, our article accounts not only for the difference in Article III’s text, but also for the refusal of the federal courts to hear uncontested matters of state law, such as some probate and domestic relations proceedings.

Our account also calls into question the claim that Article III embeds inflexible “injury” and “adverse-party” requirements in the definition of judicial power. It was those claims that triggered the response from Professor Ann Woolhandler, to which this Article briefly replies. Woolhandler argues that Article III requires not adverse parties, so much, as adverse interests. In the course of doing so, she embraces a late nineteenth-century revisionism that twisted the meaning of Article III. In the end, however, she fails to offer a coherent theory of the text of Article III or to explain why her newfangled adverse-interest construct better explains the history of judicial practice than the eighteenth-century construct of non-contentious jurisdiction with which the Framers were familiar.

09/04/2017

Ryan Scoville on Unconstitutional Presidential Envoys
Michael Ramsey

At Lawfare, Ryan Scoville: Should the Senate Give Advice and Consent on Special Envoys?  From the introduction:

Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. ...

The post goes on to argue, though, that Section 301 merely restores the Constitution's original meaning regarding diplomatic appointments: 

As I’ve argued elsewhere, considerable evidence suggests that the Framers understood ad hoc diplomats such as treaty negotiators and special envoys to be “public Ministers” and “Officers of the United States” within the meaning of the Appointments Clause, without regard for title or duration of service. This understanding appears to have drawn heavily upon the definition of “public ministers” under the historical law of nations and to have influenced the official practice of the Washington, Adams, and Jefferson administrations, each of which repeatedly sought and obtained the Senate’s advice and consent for these kinds of appointments.

The response, in short, is that Section 301 is more or less redundant with the Framers’ understanding of the Appointments Clause itself. ...

Agreed, at least as a general matter.  (Professor Scoville and I disagree on some details, but the basic point seems right: the Constitution requires Senate approval of "Ambassadors, other public Ministers and Consuls.")

09/03/2017

Gregory Maggs: How Justice Thomas Determines the Original Meaning of Article II of the Constitution
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted How Justice Thomas Determines the Original Meaning of Article II of the Constitution on SSRN. Here is the abstract: 

This paper was presented at a panel on Justice Thomas and Article II at the Yale Federalist Society’s conference, "Celebrating Justice Thomas: 25 Years on the Supreme Court." It addresses the question: "How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution?" In answering this question, I make three observations based on opinions authored or joined by Justice Thomas. First, Justice Thomas seems much more inclined to theorize about executive power than other aspects of constitutional law. Second, Justice Thomas routinely cites seven key sources of original meaning in his decisions on executive power. Third, in deciding questions under Article II, Justice Thomas adheres to his general approach of seeking the original objective meaning of the Constitution, rather than some other form of originalmeaning. The practical conclusions from my observations are twofold. First, a litigator who hopes to persuade Justice Thomas in an Article II case should attempt to find support in a variety of historical sources. Second, the same litigator also should consider making arguments based on theories of executive power--such as those concerning the competence and authority of the President compared to Congress and the Courts--even though Justice Thomas generally decides other kinds of constitutional questions with a focus more on the text of the Constitution than on abstract principles.

09/02/2017

James Pfander: Originalism and Change in the Law of Standing
Michael Ramsey

James E. Pfander (Northwestern University School of Law) has posted Scalia's Legacy: Originalism and Change in the Law of Standing (6 Brit. J. Am. Leg. Stud. 85 (2017)) on SSRN. Here is the abstract:

Perhaps no single Justice fashioned as many changes to the law of standing as that most gifted originalist, Antonin Scalia. It was Justice Scalia who first deployed twentieth century standing rules to invalidate a citizen suit provision; who promoted the prudential rule against the adjudication of generalized grievances to constitutional status; who pressed to constitutionalize the adverse-party rule; who reconfigured informer litigation to preserve the injury-in-fact requirement; and who recently re-packaged the Court’s old prudential standing doctrine as a merits-based inquiry into the plaintiff’s statutory right to sue. That he has done so much to re-work modern litigation in the name of fidelity to the workways of eighteenth century lawyers “in the English courts at Westminster” testifies to his considerable rhetorical skills. In this essay, I evaluate Justice Scalia’s contributions to this important body of jurisdictional law and then step back to consider his legacy.

09/01/2017

Eric Segall on Determinacy and Originalism [Updated]
Michael Ramsey

At Dorf on Law, Eric Segall: Lost in the Construction Zone (commenting on the recent exchange between Michael Dorf and Larry Solum).   A central point:

Larry [Solum]'s response to Mike [Dorf] that is relevant to this essay centers around how much of constitutional law is "underdetermined" by the semantic meaning of the text or historical analysis of that text. Solum claims that Mike (and other critics of originalism) overstate the degree of indeterminacy. Larry says that there are only “a very few open-textured constitutional provisions” and “that the indeterminacy of the original public meaning of the constitutional text has been greatly exaggerated.”
 
This claim raises an empirical question, but one does not have to be a legal realist to suggest that, when talking about the universe of Supreme Court constitutional cases, or even appellate level constitutional cases, the amount of indeterminacy is quite large. Phrases like “freedom of speech”, “equal protection”, “due process”, “unreasonable search and seizure”, and “establishment of religion,” simply do not have clear semantic meanings, especially when they arise in modern controversies. One of the major gaps in Larry’s theories, and those of other New Originalists as well, is that they have failed to demonstrate that semantic meaning is relevant to a significant number of litigated constitutional law cases. In fact, they haven’t even tried.
 
I think this is an important criticism for originalists to consider.  I suspect, however, that there is disagreement on the meaning of "indeterminacy."  How much "determinacy" is required?  Must originalism/semantic meaning provide only one conceivable answer?  Or is it enough that one originalist answer to the question is substantially more likely than the alternatives?
 
I suspect Professor Segall takes the former view.  (He refers elsewhere in the post to provisions such as that the President must be 35 years old or that each state should have two Senators as examples of "clear constitutional meaning").  But I think essentially no originalists (at least, no academic originalists) take that view of determinacy.  Rather, they would say originalism provides a determinate answer when, after assessing all the relevant originalist evidence, one outcome is more likely than others to represent the original meaning.  (How much "more likely" it must be is debated among originalists; some would say 50% +1 is enough, while others would require a higher threshold).  In any event, when Professor Solum and others say that orignalism is determinate in many cases, I think they mean determinate under some form of a "more likely than not" standard, not determinate under a "no possible argument to the contrary" standard.
 
As an example, consider the recess appointments case, Noel Canning v. NLRB.  A central issue was whether the constitutional phrase "Vacancies that may happen during the Recess of the Senate" means (narrowly) vacancies that arise during a recess or (broadly) vacancies that continue during a recess regardless of when they arise.  I would not contend that this issue is "determinate" in the sense that there is only one conceivable originalist answer.  However, I think that upon consideration of all the relevant originalist evidence, it's fairly clear that the original meaning was the narrow one.  I and a number of prominent originalists made this argument to the Court in the Noel Canning case (in an amicus brief of originalist scholars), and all four of the originalist and originalist-leaning Justices reached the same conclusion.  For me, the original meaning of the recess appointments clause is determinate.  (I am heavily influenced here by the work of my colleague and co-blogger Mike Rappaport).  But I doubt Professor Segall would agree.  I think that disagreement arises not so much from a difference of opinion about the recess appointments clause, but a difference of opinion about what it means to be determinate.
 
UPDATE:  Eric Segall responds:
 
I think Berger's and Bork's Originalism was determinate enough because they also suggested substantial deference. If all original meaning has to be is 50.1% against the law for judges to strike it down, then almost by definition history won't play a primary role because in no case will a judge be meaningfully constrained by that standard. In any event, and more importantly, the main point of my piece was directed at Larry Solum and other New Originalists who simply have not told us very much about their view on cases on the ground. To the extent we have information such as Randy Barnett thinking Jack Balkin's view on Roe v. Wade is likely right, and Ilya Somin and Steve Calabresi think same sex marriage bans are unconstitutional under the original meaning of the 14th Amendment, it is reasonably obvious original meaning is not particularly determinate for them.

08/31/2017

Dorf and Solum on the Determinacy of Originalism
Mike Rappaport

Originalism continues to be debated among scholars.  Serious work occurs in the academic journals but also in the blogs.  If one is not reading the blogs, one simply misses a lot of what is important.  Consider the following example.

Recently, Michael Dorf, a thoughtful commentator on originalism, wrote a post that criticized originalism.  The post is a relatively long one that cites an academic study.  His main point is that, while originalists claim that originalism is more determinate than other approaches to constitutional interpretation, it is not true based on an academic study of originalist judges.  According to Dorf, originalist judges turn out to produce strongly conservative results, but one would not expect “honest originalism” to be so conservative.

Larry Solum, a prominent originalist, has critiqued the Dorf post.  Larry has put up four posts– see part 1, part 2, part 3, and part 4.  Both the Dorf post and and Solum posts are well worth reading in full.

Here I want to emphasize an important aspect of Solum’s response to Dorf.  Dorf, like many originalist critics, identifies certain alleged defects of originalism.  But originalism, like all theories, is not perfect and has its weaknesses.  The relevant question is whether originalism is better than the alternative approaches.  Put differently, we do not want to commit the nirvana fallacy – criticizing a theory for not being perfect.

One way to avoid the nirvana fallacy is to compare originalism to real world alternatives.  And if there is more than one alternative – which there are many in the case of nonoriginalism – the question is to compare originalism to various other approaches.  Consequently, Solum has advocated the process of pairwise comparisons in this area, where originalism is separately compared to the various alternatives.  Solum claims that Dorf does not engage in this process and as a result does not support his claims about originalism’s lack of determinacy.  Solum writes:

For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case.  He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology.  For some alternatives, it seems obvious that originalism would be more constraining – even if originalist judges are highly imperfect.  For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records.  Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.

It would be helpful if Professor Dorf would specify what alternative or set of alternatives to originalism he has in mind when he claims that originalism is not more constraining than the alternatives.

Solum’s point here is important.  It is not enough to criticize originalism.  One must show that other alternatives are better than originalism in the relevant respect.

William Baude: Originalism as a Constraint on Judges
Michael Ramsey

William Baude (University of Chicago Law School) has posted Originalism as a Constraint on Judges (University of Chicago Law Review, Vol. 84, 2018) on SSRN.  Here is the abstract:

One of Justice Antonin Scalia’s greatest legacies was his promotion of constitutional originalism. One important feature of Scalia’s particular arguments for originalism was constraint—the idea that originalism was centrally a way, the best way, to constrain judicial decision-making, whereas nonoriginalist theories would essentially license judges to make up constitutional law as they went along.

In this short essay, I honor Justice Scalia with two observations about originalism and constraint. The first is that originalist scholars today are much more equivocal about the importance and nature of constraining judges. This is a point that may be obvious to those steeped in the latest originalist theory, but apparently cannot be stated often enough or clearly enough to those who are not.

The second observation, which relates to the first, is that the concept of constraint is ambiguous in several respects and that originalism may be better at some kinds of constraint than others. In particular, I emphasize the difference between external constraints, which help others to judge the interpreter, and internal constraints, which focus on allowing the interpreter to constrain him- or herself. As reflected and refined in modern scholarship, originalism may not be terribly good at the former, but it may be much better at the latter. In other words, originalism can still have constraining power, but mostly for those who seek to be bound.

Further comments on the article from Professor Baude are here.

08/30/2017

David Weisberg on the Dorf-Solum Debate
Michael Ramsey

David Weisberg ocmments; 
 
Jerry Seinfeld once characterized his TV sitcom as “a show about nothing”.  With all due respect to Profs. Michael Dorf and Larry Solum, their debate over “How Determinate is Originalism?” is at bottom a debate about nothing.
 
Original-public-meaning originalism is supposed to be a method for fixing the meaning of words and phrases in the Constitution.  Profs. Dorf and Solum assume that originalism produces results that do assign such meanings, and they then enter into a debate about the degree of “determinacy” attaching to those assigned meanings.  But the assumption they both rely on is false, because the methodology of original-public-meaning originalism never reaches any result.  Instead, the methodology leads to an infinite regress from which the conscientious originalist can never escape.
 
I have shown that original-public-meaning originalism generates the following Paradox of Originalism: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.
 
A few moments of reflection will confirm that the Paradox of Originalism ensures that the conscientious originalist who endeavors to determine the meaning of a word or phrase in the Constitution can never complete that task.  There will always be a word or phrase in the “definition” of the constitutional word or phrase that might itself require a time-dated original definition.  The methodology therefore never reaches a conclusion.  Because originalism never reaches any conclusion, there is nothing that can be judged to be either determinate or indeterminate in any such conclusion.

Martin Lederman: History’s Lessons for the Constitutionality of Wartime Military Tribunals

In the current issue of the Georgetown Law Journal, Martin Lederman (Georgetown): Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals (105 Geo. L.J. 1529 (2017)).  Here is the abstract: 

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at the heart of a potentially landmark case, al Bahlul v. United States, currently before the Supreme Court.

In the rare cases where the Supreme Court has recognized exceptions to Article III’s criminal trial protections, it has typically invoked functional and normative justifications. When it comes to adjudication of war-related domesticlaw offenses, however, neither the government nor the appellate judges who have defended commission trials have offered any such functional or normative considerations sufficient to justify denial of the independent judge and jury that Article III guarantees. Defenders of the military tribunals have instead relied almost exclusively upon historical claims of two kinds to defend the constitutionality of using military commissions in this context. This Article addresses one of those historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to prosecute a war as it did during the Revolutionary War. According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a practice of military adjudication of offenses that were not violations of the international law of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against certain spies and against disloyal civilians who aided the British. The earliest Congresses purportedly confirmed this constitutional understanding by enacting statutes permitting military trials for spying and for aiding the enemy—statutes that have remained in the federal code ever since.

This Article offers the first comprehensive account of the Revolutionary War precedents. It discusses how they were understood in the ensuing decades and the ways in which they, and the post-1789 statutes, have been invoked and mischaracterized as authority in later wars. This history demonstrates that the received wisdom about these precedents is almost entirely mistaken, and that they provide little, if any, support for a new Article III exception for military adjudication of war-related domestic-law offenses. The Article thus offers an object lesson in how a complex history can be misunderstood and distorted in the course of constitutional interpretation, particularly on questions of war powers.

The pre-constitutional history does, however, include one conspicuous aberration: a 1778 congressional resolution authorizing trial by court-martial of civilians who provided a particular kind of aid to the British army. General Washington relied upon this resolution in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to surrender West Point to the British. This Article shows why it would be a mistake to accord much interpretive weight to the Smith case—a striking deviation from Washington’s otherwise consistent conduct—in crafting exceptions to Article III’s criminal trial guarantees.

08/29/2017

Rob Natelson on Bruce Ledewitz on Originalism
Michael Ramsey

At the Independence Institute, Rob Natelson: A Response to a “Living Constitutionalist” (commenting on this column by Bruce Ledewitz: 'Trinity' case marks end of originalism).  From the introduction:

... I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.

Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.

Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt...

Excellent points follow (though perhaps he is a little harsh on law professors?).  Here's the last one: 

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.

Earlier comments by Randy Barnett and me on Professor Ledewitz's column are here and here.

08/28/2017

How Determinate is Originalism? (Michael Dorf versus Larry Solum) [Updated]
Michael Ramsey

Michael Dorf at Dorf on Law: How Determinate is Originalism in Practice? (He says: not very).  From the introduction:

When originalism began gaining traction in the 1970s and 1980s, its proponents frequently cited its supposed constraining impact on judges as a virtue. This claim fit well both with originalism's ideological origins and its nature at the time. Although appeals to the framers were a common trope in judicial rhetoric in prior periods, by the time originalism began to crystalize as an "ism," it was largely a program of resistance against what conservatives saw as the excesses of the Warren Court and, to the extent that the Burger Court built on or failed to cut back on the work of the Warren Court, the Burger Court as well. At the time, originalism was generally promoted as aiming at implementing the framers' intent, which was thought to be reasonably determinate in its concrete applications. E.g., if the framers of the Fourteenth Amendment did not intend (or expect) it to forbid most forms of sex discrimination, then arguments for sex equality under the Fourteenth Amendment were inconsistent with this first wave of originalism.

Partly in response to withering criticism, originalism morphed over time, so that most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text, rather than the concrete intentions and expectations of its framers and ratifiers. And because the original public meaning of the more open-ended clauses of the Constitution tends to be, well, open-ended, original-public-meaning originalism tends to be substantially less determinate than (at least the claims that have been made for) old-style original intent. Originalists solved the problem of seemingly having to support a view of the Constitution that allows official sex discrimination and other unacceptable practices by sacrificing determinacy.

Except that most original-public-meaning originalists cling to determinacy as a virtue. They no longer claim that originalism is close to fully determinate, but they still frequently claim that it is substantially more determinate than other approaches to constitutional interpretation. This claim is empirically testable. If originalism were a methodology that constrained justices, one would expect that a justice who practiced originalism would be somewhat ideologically unpredictable. And yet, as I shall explain, originalism in practice is predictably conservative.

At Legal Theory Blog, Larry Solum has three responses (so far).  From the first

Dorf offers a critique of originalism, but he does not defend any alternative (or set of alternatives).  For reasons that will become apparent, this way of proceeding is problematic.  The question for constitutional theory is not originalism or not originalism: the relevant question is whether originalism is better than the alternatives.  This means that evaluation of originalism should proceed by the method of pairwise comparison.

Pairwise comparison requires that originalism be compared to the alternatives: originalism versus common law constitutionalism, originalism versus pluralism, originalism versus moral readings, and so forth.

For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case.  He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology.  For some alternatives, it seems obvious that originalism would be more constrain--even if originalist judges are highly imperfect.  For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records.  Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.

From the second:

Many constitutional provisions are framed in language that is general and abstract.  For example, the constitutional text uses the phrases "cruel and unusual punishment," "unreasonable searches and seizures," and "equal protection of the laws."  The contemporary understanding of these phrases does support Dorf's view--that they are "open ended" and hence "substantially less determinate."  But it is not clear that the original meaning of the phrases is as underdeterminate as the contemporary meaning.  John Stinneford's work on the Eight Amendment suggests that the original meaning of "cruel and unusual" is actually quite thick--as does Laura Donohue's work on the Fourth Amendment.  Many originalists believe that the original meaning of the Equal Protection Clause was not a general principle of political, economic, and social equality, but was instead about the "protection of the laws," essentially a requirement that all persons (including the former slaves) receive the same protection for their persons and property as white citizens receive.  My own view is that there are a very few open-textured constitutional provisions, but that the indeterminacy of the original public meaning of the constitutional text has been greatly exaggerated.

Professor Solum's third post is about the study on which Professor Dorf relies to show (supposedly) that the Court's originalists have voted in a consistently conservative way.  (The data is from Stephen Jessee and Neil Malhotra, Public (Mis)Perceptions of Supreme Court Ideology A Method for Directly Comparing Citizens and Justices, 77 Public Opinion Quarterly 619 (2013)).  Professor Solum points out:

The values that Dorf relies upon were based on the votes by the Justices in [only] ten cases--although the authors say that similar values would obtain with a larger sample.  ...

Two of the cases were decided on nonconstitutional grounds.  That leaves eight cases in which the Justice Scalia and Justice Thomas voted on constitutional issues.  Dorf's argument is that their ideology scores in all ten cases are inconsistent with what one would expect from "honest originalism"--because Dorf has an intuition (without any empirical grounding) that "honest originalism" would have produced scores further to the left than those that appear in the chart that Dorf included in his post...

Two of the cases were decided on nonconstitutional grounds.  That leaves eight cases in which the Justice Scalia and Justice Thomas voted on constitutional issues.  ...

Of the eight cases that are constitutional in nature, only five following involved originalist reasoning by Scalia or Thomas.  ...

And further:

Let us assume that the ideology scores for Scalia and Thomas would have been the same if the three nonconstitutional cases and the two constitutional cases in which originalism did not play a role were excluded.  Can we reach Dorf's conclusion, that Scalia and Thomas vote more conservatively than would be expected on the basis of "honest originalism" on the basis of a sample of five cases?  Moreover, Dorf's argument is based on generalization from the behavior of two Justices?  Can be generalize about originalist judges in general based on a sample size of two?

The question answers itself.  A sample of two justices in five cases is simply too small to warrant any empirically valid generalizations about the question as to how originalist judges will behave in general.

...

In addition to the small N problem, there is a second reason to question Dorf's use of the Jessee and Malhorta study. Dorf simply assumes that the ideology score of a fair-minded originalist judge would be to the left of the scores that Jessee and Malhorta's study assigned to Scalia and Thomas.  This assumption appears to be based solely on impressionistic guess or intuition by Dorf.  There is no empirical basis for this assumption.

(These posts are too complex to capture all of their points in a few excerpts).

UPDATE:  The fourth and final post from Larry Solum is here. From the conclusion: 

Without doubt, a thoroughly originalist constitutional future will not be achieved in a few years or even a decade or two.  When James Thayer and other constitutional progressives began to advocate their vision of a constitutional future in the early Twentieth Century, its ultimate realization was many decades away--and when it came, it looked quite different than they had imagined.  The tasks of originalist constitutional theory today are similar in difficulty and scope to those faced by the anti-formalist progressives more than one-hundred years ago.  The debate over originalism on the intellectual merits continues and its ultimate outcome is not easy to predict.  But of one thing I am certain.  The case against originalism cannot be made in the way that Michael Dorf attempted in the post that prompted these comments.  Dorf's account of originalism's past is deeply flawed.  His account of originalism's future is based on flimsy assumptions and unsupported speculation.

It goes without saying that originalism's future will not be determined by scholarly debate.  Constitutional practice may be influenced by ideas, but it is even more powerfully influenced by politics.  Scholars can create the intellectual infrastructure that creates the possibility of a constitutional theory like originalism, but originalism's future ultimately depends on political forces that are outside the control of scholars.

08/27/2017

Mark David Hall and Emily-Lynn Warren on Patrick Henry’s Impact on the Declaration and the Constitution
Michael Ramsey

Mark David Hall and Emily-Lynn Warren at Liberty Law Blog: The Fiery Patrick Henry. From the introduction:

In 1775, a 36-year-old named Patrick Henry swung the balance of the Second Virginia Convention with these words:

Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

This impassioned statement, with its famous concluding phrase, convinced the delegates to commit troops to the War of Independence. Henry dominates the American imagination as a fiery orator and champion of independence.

Jurists and scholars interested in church-state relations often remember him for his proposed “Bill Establishing a Provision for Teachers of the Christian Religion” (1784), a purportedly illiberal scheme to create an established church that was defeated by a coalition of enlightened liberals and religious dissenters. But Henry—the sixth in the present series on the Founders’ debates on matters of church and state—was actually one of the most effective advocates of religious liberty during the formation of the new country. He was, moreover, far more prescient about the threats to liberty posed by the federal Constitution of 1787 than many Founders.

08/26/2017

Dakota Rudesill: The Land and Naval Forces Clause
Michael Ramsey

Dakota S. Rudesill (Ohio State University - Michael E. Moritz College of Law) has posted The Land and Naval Forces Clause (University of Cincinnati Law Review, Vol. 86, 2017) on SSRN. Here is the abstract:

What is the best constitutional textual basis for key statutes that constrain the national security apparatus and the President’s control over it – statutes that are not spending limitations, nor force authorizations, nor militia laws? There are a series of such statutory frameworks, including the Uniform Code of Military Justice (UCMJ), Posse Comitatus Act and its relatives (particularly parts of the Insurrection Act), Foreign Intelligence Surveillance Act (FISA), the covert action statute, anti-torture laws, and the War Powers Resolution. The best textual footing for these statutes, this article argues, is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” Although the common assumption is that this Land and Naval Forces Clause is a single enumerated power, this article theorizes the Clause as providing Congress two powers: a well-recognized Internal Regulation power over military justice and discipline and arguably other administrative matters, and also an External Government power over operations. This article analyzes the Clause’s text, counter-authoritarian purposes, and its constitutional interpretation since the Founding Era. It argues for the Clause’s constitutional rediscovery and embrace as the primary textual hook for a series of vital statutory frameworks that govern the military and intelligence apparatus at the intersection of liberty and security, and regarding the use of force domestically and internationally. Ultimately, the Clause’s power is contingent: Congress must use it and other legal actors give life to its statutes for it to be meaningful.

 

08/25/2017

Donald Dripps: Due Process: A Unified Understanding
Michael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted Due Process: A Unified Understanding (The Cambridge Companion to the Constitution, (Cambridge University Press, Forthcoming) on SSRN.  Here is the abstract:

This chapter, contributed to the forthcoming Cambridge Companion to the Constitution, explicates the role of the due process clauses in U.S. constitutional law. The concept of due process is traced from English origins through recent Supreme Court Cases, including Obergefell v. Hodges, Johnson v. United States, and Ohio v. Clark. Throughout American history, jurists have agreed that due process consistently forbids deprivations by government without ex ante legal authorization and fair procedures for applying the justifying law. They also have agreed that deprivations, legality and fairness are not whatever legislation says them to be. Beyond that, there has been no consensus about the meaning of these core concepts. Indeed, partisans on opposing sides of many great American controversies have invoked due process. What these partisans have disputed, however, is the nature of life, liberty, property, legality or fairness, not the nature of due process. Analytical focus on the constituent concepts can help us better understand these disputes.

And from the introduction:

A recent term of the U. S. Supreme Court provides a characteristic assortment of due process decisions. The Court relied on the denial of due process in one case to invalidate state statutes that precluded same-sex marriage; in another, to hold void-for-vagueness a clause in the federal Armed Career Criminal Act. In still another, the justices ruled that that the Sixth Amendment’s confrontation clause did not bar the use as evidence of a hearsay declaration from a child too young to be a competent witness in court. Apart from the fact that due process figured into each decision, the three seem utterly disparate. How is same-sex marriage connected to whether a federal criminal statute is clear enough to count as law or to a defense attorney’s inability to crossexamine a child witness? In this essay, I will explain that these instances appear as unlike each other as they do because each illustrates a distinctive component of the due process guarantee.

The distinction between “procedural” and “substantive” due process, which may be familiar from other commentaries, forms only a subset within the first component of the definition offered here. That is, every due process claim begins with a deprivation, specified in the Fifth and Fourteenth Amendments to be a deprivation of “life, liberty or property.” Second, to constitute due process, the deprivation must have been authorized prospectively, by valid law. And third, due process requires that the deprivation be accomplished along with a fair hearing about whether the law, though valid, also applies to the case at hand. At the risk of asserting a negative, I know of no American judge who does not accept this basic description of due process.

Typically, the plaintiff claiming a constitutional violation will insist that there has been a deprivation, but components two and three have not been complied with. The government, on the other hand, will deny the existence of a deprivation altogether, or, if it admits one occurred, it will argue that the second two components were present. The constitutional text, coupled with the practice of judicial review, means that to the extent that ordinary statutes were the instruments of denial they may be declared void. The canonical examples are a statute purporting to transfer the estate of one private person to another and a statute assigning one party in a lawsuit to be judge in her own case. In short, "life, liberty, and property," legality, and procedural fairness are not whatever it is that the legislature decrees.

The discussion below proceeds in four stages. First, we consider the origins and analytical structure of the Fifth Amendment due process clause. Second, we trace the evolution of its constituent concepts in antebellum America. Third, we consider how the Fourteenth Amendment altered the legal and institutional ecology of constitutional interpretation in the years between the Civil War and the Second World War. Fourth, we explicate how the Supreme Court, in the second half of the twentieth century, invoked due process to expand, and to unify, the scope of individual rights against both federal and state abridgement.

We close by returning to the cases referred to at the outset, which we will identify as Obergefell, Johnson and Clark. At issue in Obergefell was the nature of “liberty.” The sole issue in Johnson was the nature of valid "law.” In Clark the issue concerned the meaning of fair "process.” Each decision may one day be reversed; there were dissents in Obergefell. Both Johnson and Clark reversed the decision immediately below. Judicial error, it must be emphasized, differs categorically from judicial usurpation. The courts have always denied that liberty, property, legality and fairness mean whatever legislatures say they mean. If that premise is sound, what divides justices (and their critics) is precisely how to formulate such capacious concepts as due process, not whether to do so is the courts’ constitutional duty.

08/24/2017

A Response to Eric Segall
Ilan Wurman

[Editor's note: for this guest post we welcome Ilan Wurman, Nonresident Fellow at the Stanford Constitutional Law Center and an attorney in Washington, D.C.]

Eric Segall’s review of my new book, A Debt Against the Living: An Introduction to Originalism, is generous at times and sharp at others. I thank him for both. I tease out two significant criticisms from his review, which I’ll tackle in reverse order.

Segall writes that I am “elusive” as to how “liquidation”—the idea that the Founders expected indeterminacies in constitutional meaning to be resolved through a series of discussions and adjudications—is different from something like David Strauss’ common law constitutionalism. He writes, moreover, that because I believe the “sense”—that is, the original meaning—of a constitutional provision is what matters rather than the original expected applications of that provision, I am really just describing “common law constitutionalism and living constitutionalism all the way down.”

Liquidation, however, is inconsistent with the judicial role required by a nonoriginalist theory like Strauss’s. Liquidation recognizes that there are indeterminacies in the Constitution’s meaning; it would be crazy not to. And this recognition is key: there must be an indeterminacy for liquidation to apply at all. Nonoriginalist judges and certainly scholars, on the other hand, often openly avow that nonoriginalist meanings can trump the original meaning of the Constitution even when that meaning is clear. Not so for liquidation, and not so for originalism. If nonoriginalists are on board whenever the original meaning is clear, then I suppose I’ve misunderstood nonoriginalism, and living constitutionalism and originalism are even closer than I had thought.

More still, liquidation requires a series of discussions and adjudications across all three branches of government and perhaps even the states themselves before indeterminate constitutional meaning can become fixed. In contrast, judicial supremacy, advocated by most nonoriginalists and a fact of life today, would terminate all such discussions and adjudications as soon as the judicial branch has spoken.

The second significant criticism—and really, this is related to the crux of all nonoriginalist criticisms of originalism—is that I did not sufficiently address “the exclusion of women and minorities from the ratification process,” because even if the Constitution “was as legitimate as could be for its time,” the question, Segall writes, “is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.”

What I intended to convey to my readers is that the Constitution isn’t legitimate (or illegitimate) solely based on the composition of the group of individuals who framed or ratified it. The first and most important requirement for the Constitution’s continuing legitimacy today is that it continue to accomplish what a constitution for a free society must accomplish: enabling our right to self-government on the one hand, and ensuring sufficient protections for our natural liberties on the other. These two competing ends of government are in tension with each other, and, as Burke once said, it takes a powerful and combining mind to balance them successfully.

Our original Constitution—particularly as it has been perfected with subsequent amendments—balances these two ends remarkably well.  It does so by creating a regime of self-government that, through ingenious mechanisms like the separation of powers, checks and balances, the representative mechanism, the division of federal and state power, the enumeration of power, and the bill of rights, channels our exercise of self-government in ways that remedy the vices inherent in popular regimes.

This original constitution continues to be legitimate because it continues to balance these ends remarkably well. Indeed, one of the key virtues of our original Constitution is that it did not actually do or require very much. The Framers protected only those rights most essential to the success of a free society, leaving the rest to the democratic process because they knew we would evolve and progress over time.

So we come back to the criticism of the Framers. The position I take in the book, perhaps less clearly than I had hoped, is that it is not a good reason to exclude the Framers’ accomplishment from our recognition today merely because they were all white and male and many of them were slaveowners. After all, we don’t celebrate the Framers for any of those reasons. They did not invent slavery, the exclusion of women, or the exclusion of the poor, which had been universal. The Framers’ achievement was quite different: Their achievement was creating a regime of self-government committed to the principle of equality under law, and that successfully balanced the competing ends of government. It was framing a constitution that abolished property requirements for federal office, and that abolished hereditary privileges and titles of nobility.

If the Framers’ slaveowning and exclusion of women were sufficient reason to ignore their achievement, then all past acts—even those that continue to redound to our great benefit today—would be illegitimate so long as some voice in society that we now recognize as important was not sufficiently heard in the past. In the book, I used the example of the Civil War amendments. Were they illegitimate because women could not yet vote? That would be absurd. They were legitimate whether or not women could then vote, because these amendments accomplished good and just things in the world—they were improvements made by the dead, as Madison would have said, that continue to form a debt against the living today. The exclusion of women, which was not peculiar to American society in any way, is not a good enough reason to consider the Civil War amendments nonbinding.

The exact same argument can be made about the Constitution. In my view, the Constitution would be unworthy of our allegiance today only if the act of framing and ratification was thoroughly unjust for its time, or if it failed today to do what a free constitution has to do. I think neither condition prevails. So long as our original Constitution reasonably balances our right to self-government and our natural liberties, even if it doesn’t achieve everything one might want—and despite the flaws of its Framers—it achieves enough to continue forming a debt against the living today.

Justice Arthur Kelsey: Bracton’s Warning and Hamilton’s Reassurance
Michael Ramsey

In the current issue of the Virginia Lawyer, Justice D. Arthur Kelsey (Supreme Court of Virginia): Bracton’s Warning and Hamilton’s Reassurance.  From the introduction:

In honor of our Constitution, I would like to discuss a jurisprudential debate that began in 13th-century England and has continued to this day. The debate centers on a single question: What is a judge’s role in the interpretation of our Constitution?

Thomas Jefferson once famously said: “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.” What did Jefferson mean by that? How could judges construe the Constitution in a way that renders it a blank piece of paper?

And from later on:

[The Historical Tradition Model] requires the judge to look at the text of the Constitution, and if it is unclear, the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law. In a democratic republic, words become law only when the true sovereign elevates them to that status. The first line of the Constitution declares that “We the People of the United States, in Order to form a more perfect Union,” created the federal government and granted it limited delegable powers.  The creator is always greater than the creation. “We the People” are sovereign — not the government.

In the Historical Tradition Model, law retains its democratic legitimacy only when judges interpret the words as they were understood at the moment of their elevation by the collective sovereign, “We the People.” The constitutional text, James Madison explained, should be interpreted as “it had been understood by its friends and its foes” at the time of its adoption and ratification because “[i]n that sense alone it is the legitimate Constitution.”

In Federalist No. 40, Madison reinforced this point by reminding us that the work of the Framers at the Philadelphia Constitutional Convention was “merely advisory and recommendatory” because they were “mere scriveners or attorneys appointed to draw up an instrument; the instrument’s true makers were the people of the United States assembled in state conventions.” Only when the people adopted and ratified the Constitution did the words become law.

Whatever you think of the Historical Tradition Model, let me remind you of Winston Churchill’s famous quip that “democracy is the worst form of Government except all those other forms that have been tried from time to time.” A similar sentiment, I believe, applies here to lift the Historical Tradition Model above its three competitors [Ed.: previously discussed as the "Oracle Model", the "Platonic Guardian Model" and the "Popular Culture Model."]  Each of them, to one degree or another, involves interpolating meaning into a legal text instead of interpreting meaning from the text. As a result, the first three models simply liberate judges to construe an ambiguous constitutional text so that it means what it ought to mean, what it should mean, what it would mean if they — the judges — had written it.

How is it possible to follow any of these other three models without, consciously or not, injecting politics into law? No matter which way you answer that, this much is sure: Many Americans today are deeply suspicious about the role of politics and its influence on the courts. Sometimes this suspicion is terribly unfair; at other times, it is entirely understandable.

08/23/2017

Gerard Magliocca on Ratifying the Equal Rights Amendment
Michael Ramsey

At Concurring Opinions, some interesting questions from Gerard Magliocca.  First: The Ratification of the ERA. From the introduction:

A few months ago, Nevada ratified the Equal Rights Amendment proposed by Congress in 1972.  I have no idea if this was done for symbolic reasons or from a genuine desire to see the ERA ratified.  Nevada’s action, though, raises an interesting constitutional problem about ratification deadlines.

In some constitutional amendments, the amendment’s text says that the proposal is not ratified unless enough states approve within seven years. In other amendments, the deadline is in the resolution proposing the amendment rather than in the amendment itself. The ERA falls into the later category.  Not enough states ratified the ERA in the seven year period, and not enough have done so now even with Nevada’s yes vote.

Suppose, though, that a few more states ratify the ERA. Enough that there is no doubt that there are 38 yes votes.  Can Congress then repeal the original time limit and declare the amendment valid?

And further: The Original Understanding of the ERA. From the introduction:

Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?

The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.

Not so for our hypothetical 28th amendment. So what should we say here?