03/23/2017

Lawrence Solum (and Cosmopolitan!) on Originalism
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Statement of Lawrence B. Solum re Nomination of Nomination of the Honorable Neil M. Gorsuch To Be an Associate Justice of the Supreme Court of the United States on SSRN. Here is the abstract:

This statement [to the Senate Judiciary Committee] addresses the nature of originalism. Originalism consists of three core ideas: (1) the original meaning of the constitutional text is its public meaning; (2) the original meaning of the text is fixed at the time the text was framed and ratified; and, (3) judges should be bound by the original meaning of the text. Much of the public discussion of originalism has focused on myths: originalism does not attempt to answer the question, "What would Madison do?," and many other charges against originalism are mythical as well. Originalism is in the mainstream of American jurisprudence historically, and originalism should be acceptable to Americans from a broad range of political orientations. The two core arguments for originalism focus on the rule of law and legitimacy.

Also a less-positive take on originalism in Cosmopolitan: 9 Reasons Constitutional Originalism Is Bullsh*t. I did not think I would see in my lifetime an analysis of originalism in Cosmopolitan.

And a response at The Federalist: Cosmopolitan Doesn’t Understand How The Constitution Works.

(Via Stephen Green at Instapundit).

03/22/2017

Why My Daughter Needs Originalism
Chris Green

Yesterday, Senator Amy Klobuchar asked Judge Gorsuch if women could be President, given that the Constitution repeatedly uses the word "he" or "his" to refer to the President. Gorsuch replied somewhat gruffly, "Of course, women can be president of the United States! I'm the father of two daughters and I hope one of them turns out to be president of the United States!" Stanley Fish once commented that my then-five-year-old daughter's question to me about the Originalism Works-in-Progress Conference--"but what are you doing?"--beautifully captured the spirit of the conference, and I too-frequently joke that I will save items for her presidential library. If "he" only refers to men, alas, she will never have one, and neither will Judge Gorsuch's daughters.

Assume for the argument that we will pick our constitutional theory to guarantee the result that women may become president, either today or whenever our daughters are old enough to be president. Which constitutional theory guarantees this result? 

Only originalism.  If linguistic drift changes the requirements of the Constitution, then change in the usage of gender-neutral pronouns changes who may be president. There are many parts of the English-speaking world, especially academic parts of it, in which it would be quite improper to use the word "he" repeatedly to refer to a gender-unspecified individual. Historically, though, "generic he" was of course quite common. If this new norm of language were to become universal, could women be President? Not if today's usage norms are deemed controlling in interpreting the Constitution.  

Sticking with the manner in which language expressed meaning at the time of the Founding is actually the best way to guarantee that women may continue to be eligible for the presidency. Construing "he" in the Constitution to mean what the Founders would have expressed by it--that is, what people in many circles today would say only by saying "he or she"--is clearly the way to go. I therefore put "he" alongside "now" as the Constitution's words which most obviously have only the meaning they expressed at the time of the Founding.

Update (3/23): Mike Rappaport makes the additional important point here that generic "he" is used in the Sixth Amendment. While female chief executives like Elizabeth and Anne were known to the Founders but not common, female defendants were both (a) common and (b) covered by "him" and "his" in the Sixth Amendment.

Jonathan Gienapp on Originalism and History
Michael Ramsey

At Process: A Blog for American History, Jonathan Gienapp (Stanford History): Constitutional Originalism and History.  From the introduction: 

Thanks to President Donald Trump’s nomination of Justice Neil Gorsuch—a self-identified “originalist”—to the Supreme Court, constitutional originalism is yet again at the forefront of American consciousness. Historians would do well to take special notice. Because while most forms of American constitutional jurisprudence have drawn on the history of the Constitution’s creation, only originalism—the theory that seeks to construe the Constitution today in accordance with its original meaning when it was first enacted—implicates the role of historical study in constitutional interpretation. Moreover, despite several assurances through the years that originalism’s death knell had sounded, the theory enjoys more champions, and more influential champions, than at any point previously. Beyond the federal judiciary, leading originalists can be found on most esteemed law school faculties and in a growing network of influential constitutional law centers and think tanks. The thriving annual “Originalism Works In-Progress Conference” at the University of San Diego Law School’s Center for the Study of Constitutional Originalism (which just hosted its eighth iteration) is one prominent marker of popularity and influence; the well-funded annual “Originalism Boot Camp,” which hosts aspiring law students each summer at the Georgetown Center for the Constitution is another. A new mountain of originalist scholarship and new lines of influence linking this academic work with the world of political and judicial action, meanwhile, appears every year. As Gorsuch’s selection illustrates, originalism is as powerful as ever, so its relationship to history remains as urgent as ever.

Despite that urgency, historians continue to show little interest in originalism. But in scoffing it off as quaint curiosity, outlandish absurdity, or both, they ignore how a largely one-sided and consequential debate has evolved. Fortunately, Gorsuch’s nomination offers a fresh opportunity to probe originalism’s relationship to history. It has evolved significantly since its emergence, around the time that Antonin Scalia—the theory’s most visible champion for the past three decades and the justice Gorsuch has been nominated to replace—first took his seat on the Supreme Court. But originalism’s development is not simply intriguing in its own right. By understanding how it has changed, we can appreciate the unique, little understood, and urgent threat it now poses to the practice of history.

And from the conclusion:

No doubt historians investigate a plethora of historical meanings, often privileging exactly the kinds of subjective intents and understandings that public meaning originalists disparage—such as, for instance, the authorial intent that shaped a text’s production, the intellectual purposes that a text served, or the broader intellectual or cultural context from which a text emerged. But that choice is irrespective of knowing how to think historically. If the goal happens to be deciphering the public meaning of a historical text, then this foundational historical skill remains every bit as essential. The reason why is what originalists’ favored keyword searches (detailed above) fail to take into account: that, as Bernard Bailyn has put it, “the past is a different world.”  Words and concepts that appear in historical sources often bear a superficial similarity to our own, but grasping what they actually meant in their original historical context requires first reconstructing the foreign conceptual world from which they issued. Keyword searches can never disclose this world (in fact, such searches presuppose that this world is immediately accessible and virtually identical to our own). But, as all historians know, bringing this world into focus requires a much deeper level of immersion. It requires a version of what is needed to decode early modern French cat massacres, crowd activity in eighteenth-century Britain, or early nineteenth-century New York ordinances on pig-keeping.  It requires taking up residence with the natives of the historical past, engrossing oneself in their logics, tracing the patterns made by their thoughts and meanings, and learning how to think and reason as they once did. In the case of the American Constitution, it requires knowing how to think and reason as Founding-era Americans did, knowing how to see the world as an original constitutional reader would have. It requires learning how to speak eighteenth century. It requires knowing how to think historically. It requires, in short, behaving like a historian.

I agree with much of the essay, in particular that it would be a great contribution for historians to become more involved in the originalist enterprise.  I do not agree (as Professor Gienapp says midway through the essay) that most originalists "have dismissed most eighteenth-century historical evidence as irrelevant to their quest"; if they have, they shouldn't.  But historians have not helped themselves by claiming implausibly that the historical meaning of texts cannot be determined or that only historians can make historical arguments.  (To be clear, Professor Gienapp does not make these claims; but I have heard them many times).  Collaboration between historians and legal scholars to reach common ground on historical meaning would be an important step forward.

(Via Alfred Brophy at The Faculty Lounge).

03/21/2017

More Questions for Judge Gorsuch
Michael Ramsey

Everyone seems to have a set of questions the Senate should ask Judge Gorsuch.  Many of them involve originalism (thanks for all the free publicity, Judge!).  Here are a few highlights:

At Politico, Jeff Greenfield: What the Senate Should Ask Judge Gorsuch -- A few good questions could rescue the Supreme Court hearings from the charade they've become.  On originalism: 

Asking Gorsuch point-blank whether he believes in “originalism” or views the Constitution as a “living” document is an invitation to a linguistic tap dance. A better course would be to frame the issue specifically. For instance:

“The Eighth Amendment forbids ‘cruel and unusual punishment.’ But it doesn’t define the term. If a punishment like flogging or branding was a regular feature of 18th century criminal justice, would that mean a court could not forbid it under the Eighth Amendment today?”

Or, “Interracial marriage was outlawed by 16 states for a century after the 14th amendment and its equal protection clause was adopted. When the issue came before the Supreme Court in 1967, the ban was unanimously struck down. Did the court have to find that legitimizing interracial marriage was the ‘original intent’ of the drafters in order to reach its decision?”

Either question would make clear where originalism finds its most difficult challenge, and might help provide a clue to how Gorsuch works through such a challenge.

Actually these are both pretty unhelpful questions.  On the first, as I've noted, "unusual" could have (at least) two possible original meanings.  One is Justice Scalia's -- that it referred to particular kinds of punishments: punishments that were aberrational at the time of enactment.  Another is that it referred to punishments that are aberrational at the time the punishment is imposed.  I think a conventional originalist could have either view, depending on one's perception of what motivated the amendment.  (For more extensive discussion, see here from John Stinneford).

On the second, (a) what is it with commentators and "original intent"?  How many times must one say that the touchstone of modern originalism is the original meaning of the text, not the framers' intent disconnected from the text?  To be clear, the answer the the question posed in the last sentence of the paragraph is "no."  Period.  (b) Post-ratification practice is evidence of original meaning, but it's not conclusive evidence.  The fact that "16 states" [not actually that many, plus how many were ex-Confederate States?] outlawed interracial marriage might only be evidence that many states did not live up to their constitutional obligations.  The question is whether the original meaning of the Fourteenth Amendment barred laws against interracial marriage.  I think most originalists (including Scalia) would say it did, based on the text itself and the Court's early interpretations in cases like Strauder v. West Virginia.  (See here for more extensive analysis from David Upham).

In sum, originalists have thought about these issues in depth.  They simply aren't material for "gotcha" questions.

The Los Angeles Times does better in an editorial, asking (among others) these questions:

For example, to Americans in the 19th century, the “equal protection of the laws” guaranteed by the 14th Amendment might seem to protect only racial equality; in the 20th century it seemed obvious to many Americans that it also prohibited some forms of sexual discrimination. Does Gorsuch object to that updated interpretation? Does he believe that a constitutional provision must be viewed through the eyes of the generation in which it was adopted and can't be interpreted to deal with situations its authors never could have imagined, such as cellphone GPS signals being used to track suspects without a warrant?

These are both pretty tough questions and the answers would reveal a tendency toward one or another camp within originalism.  On the sexual discrimination point, some (like Justice Scalia) would say that is so far outside the framers' idea of equality that the Fourteenth Amendment can't cover it, and updating (if thought appropriate) must be done by amendment or legislative processes, not by unelected judges.  Others (like Michael Paulsen) would say that the plain meaning of equality includes equality for women (as many people, especially many women, recognized at the time of enactment), even if post-enactment men did not live up to that aspiration.  (In my view an even better question is what the nominee thinks of Obergefell v. Hodges, the same-sex marriage case, as a matter of originalism: this really gets at the question of how much changing understandings of facts allows outcomes completely unanticipated by the framers -- see my discussion here).

The second question the Times poses is also hard, although it's mangled by the tendentious phrasing: of course all conventional originalists think that the Constitution can "be interpreted to deal with situations its authors never could have imagined."  Originalism does not fail to accommodate technological change, as Justice Scalia made clear in District of Columbia v. Heller, for example (holding that the Second Amendment protects the right to "keep" modern arms that were unknown in the founding era and dismissing the contrary argument as bordering on the frivolous).  But there's a substantial question how far this goes.  In Kyllo v. United States, for example, the question was whether the Fourth Amendment required the police to obtain a warrant before using infrared technology to measure the heat coming from a private home (high heat levels suggesting drug-growing operations).  Justice Scalia said the original meaning of the Fourth Amendment required a warrant; Justice Thomas thought it did not.

One observation from all this is that originalism has extensive internal debates about how far it extends the Cosntitution's text into modern controversies.  Commentators (and aspiring question-writers) would do well to work within these debates to formulate truly meaningful questions instead of trying to play "gotcha" in areas where thoughtful originalists will already have well-considered answers.  The questions for Judge Gorsuch should try to locate him on the spectrum of modern originalism in terms of how far he would go apply the text's original meaning in ways unanticipated by the framers.  All originalists are willing to do this to some extent, but some more so than others.  If one really cares what sort of Justice Judge Gorsuch will be, this is an area to investigate.

RELATED:  Other interesting sets of originalist-oriented questions from Ilya Somin here, and Ramesh Ponnuru here.

03/20/2017

Josh Blackman: SCOTUS after Scalia
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted SCOTUS after Scalia (NYU Journal of Law & Liberty, Vol. 11, No. 1, 2017) on SSRN.  Here is the abstract:

 The sudden passing of Justice Antonin Scalia disturbed the Supreme Court’s predictable rhythm. This Foreword will analyze the contentious period from Justice Scalia’s death until President Trump’s inauguration, and draw four lessons about the Court, the Constitution, consistency, and Congress. First, this interregnum allows us to study how the short-handed Court engaged in self-help in the short term, and in the long run, how the Court may remain evenly-divided Court for years at a time. Second, with a possible liberal replacement for Justice Scalia, the conservative legal movement’s faced a near-death experience. Part II analyzes how this brush with fate may impact the Roberts Court’s views on incrementalism, institutionalism, and originalism. Third, the change-in-administrations offers an opportunity to lay down markers and chart future movements on the left and right with respect to three important areas: federalism as a check on federal power, deference to the administrative state, and state-led litigation against the federal government. Part III discusses how constitutional consistency will evolve during the Trump Presidency with respect to federalism, administrative law, and state-standing to pursue nationwide injunctions.

Finally, Part IV considers how the unexpected outcome of the election — whereby the Presidency and Senate were both in Republican control — simply delayed the inevitable: at some point, the President and Senate will be of different parties, and they will not be able to agree on a Supreme Court nominee. Through a novel approach developed in this Foreword, the Senate can offer preliminary votes on several possible candidates to fill a Supreme Court vacancy. Though not bound by those resolutions, the President would be wise to consider the Senate’s counsel before making the nomination. By offering Senatorial “advice” before the President’s nomination is made, the “consent” process between the two branches becomes more collaborative and less antagonistic.

It is important, not to simply shrug off the past year as an outlier in the Court’s history. The atypical October 2015 term may, soon enough, become the new normal.

03/19/2017

Stephen Gottlieb: Democracy Essential to the Legitimacy of Constitutional Interpretation
Michael Ramsey

Stephen E. Gottlieb (Albany Law School) has posted Democracy Essential to the Legitimacy of Constitutional Interpretation on SSRN. Here is the abstract:

Contemporary risks to democracy sharpen the question about what use the Court should make about democratic thought, especially empirical thought. By contrast, the argument over originalism has largely eliminated democracy from constitutional interpretation, partly in reaction to Carolene Products. This manuscript argues, first, that no theory of constitutional interpretation can be legitimate without democracy, and then explores the implications of that conclusion.

03/18/2017

Michael Morley: The Federal Equity Power
Michael Ramsey

Michael T. Morley (Barry University School of Law) has posted The Federal Equity Power on SSRN.  Here is the abstract:

Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.

Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power. 

There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.

Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law’s text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.

03/17/2017

Ilan Wurman: Constitutional Administration
Michael Ramsey

In the current issue of the Stanford Law Review, Ilan Wurman (Winston & Strawn LLP) has the article Constitutional Administration (69 Stan. L. Rev. 359 (2017)).  Here is the abstract:

Administrative law rests on two fictions. The first, the nondelegation doctrine, imagines that Congress does not delegate legislative power to agencies. The second, which flows from the first, is that the administrative state thus exercises only executive power, even if that power sometimes looks legislative or judicial. These fictions are required by a formalist reading of the Constitution, whose Vesting Clauses permit only Congress to make law and the President only to execute the law. This formalist reading requires us to accept as a matter of practice unconstitutional delegation and the resulting violation of the separation of powers, while pretending as a matter of doctrine that no violation occurs.

This Article argues that we ought to accept the delegation of legislative power as a matter of doctrine because doing so can help remedy the undermining of the separation of powers. Accepting delegation as a matter of doctrine allows us to delineate the legislative, executive, and judicial components of administration and to empower each constitutional branch of government over the component corresponding to its own constitutional function. With this insight, for example, a legislative veto of the administration’s legislative acts is constitutional.

This Article seeks to make one functionalist move (accepting delegation) in order to deploy formalist tools to restore some semblance of the original constitutional scheme of separate powers. It seeks to take both formalism, which has served merely to mask the administrative state’s unconstitutional foundations, and functionalism, which has failed to offer any limiting principles to modern administrative practices, more seriously than modern scholars and doctrine do. A functionalist approach to delegation allows us to deploy formalism—but an honest formalism—to the separation of powers.

(Also, I hear he has a forthcoming book on originalism...).

03/16/2017

David Weisberg on Originalism and Peña-Rodriguez v. Colorado (with my Comments)
Michael Ramsey

Regarding this post, David Weisberg writes: 

In DC v. Heller, Justice Scalia’s opinion for the majority correctly rejects the absurd argument that, if one takes an originalist approach to the Second Amendment, then one is compelled to conclude that the operative clause protects only the right to bear flintlock weapons.  This is absurd because, whatever interpretive theory one relies on, it is obvious that the drafters knew the difference between the words “arms” and “flintlock weapons”.  If they wanted the operative clause to be limited to flintlock weapons, they were perfectly capable of using those words in the operative clause.

With regard to the post (03/07/2017) discussing Justice Thomas’ dissent in Pena-Rodriguez v. Colorado, I would think precisely the same kind of argument would apply to his assertion: “The Sixth Amendment’s protection of the right, ‘[i]n all criminal prosecutions,’ to a ‘trial, by an impartial jury,’ is limited to the protections that existed at common law when the Amendment was ratified.”  Surely, the people who drafted the Sixth Amendment would have recognized the difference between an amendment that guaranteed the right to a “trial, by an impartial jury”, and one that guaranteed the right to a “trial, by an impartial jury, only to the extent such right is protected by the common law as of the date of the ratification of this Amendment….” 

If the drafters and ratifiers of the Second Amendment wanted to refer only to flintlock weapons, why didn’t they draft the amendment in those terms?  If the drafters and ratifiers of the Sixth Amendment wanted to limit the right to an impartial jury only to the extent such right is protected by the common law as of the date of the ratification of the amendment, why didn’t they draft the amendment in those terms?

Or, to put the exact same question another way, when the Eighth Amendment was drafted, did the phrase "cruel and unusual punishments" really mean "punishments that are cruel, and that are also unusual as of the date of the ratification of this amendment"?  If they meant the latter, why did they draft the former?  Surely, they could appreciate the difference just as well as we can. 

I think this is an important comment in getting at a key to originalist methodology.  As to the Second Amendment point, I agree, although for somewhat different reasons.  I would say:  it is normal, and indeed inevitable, in ordinary lawmaking, to refer to categories of physical things as they now exist or will exist in the future.  Otherwise, the law rapidly becomes a nullity.  Thus, I cannot drive my Tesla (assuming I could afford a Tesla) 100 mph on the highway and defend against an ensuing traffic ticket on the ground that Teslas did not exist when the speed limit law was written.  Justice Scalia said in Heller that such an argument with respect to "arms" borders on the frivolous, but I think is is actually literally frivolous in that, if I tried to use it in traffic court regarding my hypothetical ticket I would deserve (and maybe get) sanctions.  No sensible legislator would write a statute that way.  No one thinks statutes are written that way; the idea that we should have such a view of the Constitution is, as the comment says, absurd.

But the issue in Peña-Rodriguez is not analogous.  The question is not what an impartial jury means; it is what "the right" to an impartial jury means (specifically, whether it includes the right to overturn a verdict by proof of bias).  That question is not affected by the problem of new physical things not in existence at the time of enactment.  People of the enactment era understood the risk of jury bias in the same sense we do, and had a (limited) idea of what rights one had against it.  There is nothing "new," in the sense that a Tesla is new; the question is simply whether the scope of "the right" should be the scope understood at the time of enactment or some other scope that we make up.

Now it's possible that the common meaning of such a phrase at the time of enactment was that it delegated to future generations the decision as to the scope of the right.  But that is unlikely in the abstract, because that creates no firm right; it only creates whatever right judges of the future are willing to recognize, which could be much less (or more) than the enactors wished.  It is even more unlikely in the specific case of the Bill of Rights, which (as Justice Thomas said) was understood at the time as codifying pre-existing rights.  In this circumstance, the enactors are trying to enact a value judgment (how much protection to give to jury rights) and they typically would not want future generations second-guessing them.  Unlike in the case of speeding cars (where we assume the goal is to cover all cars, whether existing at the time of enactment or not), the assumption -- at least absent contrary evidence -- is that the goal is to enact the specific rights the enactors have in mind.

The question on the Eighth Amendment is difficult because the Amendment could be described either way.  Justice Scalia thought it referred to a value judgment -- that is, that it precluded the kind of punishments that were unusual at the time because they were barbarous, such that if more barbarous punishments came into common acceptance later, they would still be unconstitutional.  But I am not so sure.  "Unusual" might refer to facts as they exist from time to time -- that is, whatever is not common practice at the time a case is brought.  It's plausible that the enactors' concerns, and the way their enactment was understood at the time, centered on departures from usual practices in punishment, not on any particular kind of punishment.  If that's true, then it's analogous to the Tesla -- a change in facts changes the outcome (although it does not change the meaning). 

UPDATE:  David Weisberg adds this response:

Prof. Ramsey asserts: "In this circumstance, the enactors are trying to enact a value judgment (how much protection to give to jury rights) and they typically would not want future generations second-guessing them."

I assume he (and Justice Thomas) would say the same thing about every right enumerated in the first eight amendments; that is, all those rights would be limited in scope or extent to the scope they had in 1791.  I submit that precisely the same line of reasoning led Justice Scalia to conclude that a modern-day reinstatement of flogging as punishment for crime would be constitutional: he was assuming that "unusual" in the Eighth Amendment meant "unusual in 1791".  Nowhere in the Bill of Rights is there any explicit reference to such a temporal limitation on any right, whether in the Sixth Amendment, the Eighth Amendment, or any other amendment.    

The drafters could have highlighted that very important temporal limitation, and avoided even the possibility of "second-guessing", if they had added only a few words to the Ninth Amendment, so: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, and those enumerated rights shall be deemed to be as extensive, but only as extensive, as they were deemed to be when ratified as part of the Constitution."  That is the gist of what would have done the job. 

The enactors, we are told, did not want future generations second-guessing them.  They were, I take it, concerned that that might happen.  A few words added to the Ninth Amendment would have ensured that there could be no such second-guessing, but those words are nowhere to be found in the Constitution.  Did the drafters simply screw up, or did they write precisely what they intended to write?  Were the enactors careful, thoughtful statesmen and lawyers, or were they slobs?

Consistent with my usual policy, I give him the last word.

03/15/2017

The Language of the Law and Pena-Rodriguez v. Colorado
Mike Rappaport

Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law.  The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law.  But what turns on this question?  The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices.

A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards the defendant and his alibi witness during the deliberations.  This evidence of bias, however, was excluded based on a Colorado evidence rules which “generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict.”  The Supreme Court majority opinion, written by Justice Kennedy, held that this no impeachment rule was unconstitutional as violating the Sixth Amendment right to “an impartial jury.”

While the majority opinion largely neglects originalist arguments, Justice Thomas in dissent argued that the no impeachment rule did not conflict with the Sixth Amendment.  He based his argument on his claim that the Sixth Amendment was protecting the common law right that existed at the time of the Constitution.  Thomas wrote:

The Sixth Amendment’s protection of the right, “[i]n all criminal prosecutions,” to a “trial, by an impartial jury,” is limited to the protections that existed at common law when the Amendment was ratified. See . . . 3 J. Story, Commentaries on the Constitution of the United States §1773, pp. 652–653 (1833) (Story) (explaining that “the trial by jury in criminal cases” protected by the Constitution is the same “great privilege” that was “a part of that admirable common law” of England). . . . It is therefore “entirely proper to look to the common law” to ascertain whether the Sixth Amendment requires the result the Court today reaches.

The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour”—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the Sixth Amendment was ratified did not allow jurors to supply evidence of that misconduct. In 1770, Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.). ...

Justice Thomas is arguing that the right had a specific historical legal meaning and that determines its content.

Significantly, this argument only applies if one believes the Constitution is written in the language of the law.  The reason is that “the right to an impartial jury” is referring to the historical legal right that existed at common law.  By contrast, if the Constitution is written in ordinary language, then this legal meaning could not be employed because legal meanings are not part of ordinary language.  Since it seems pretty likely that this right had its common law meaning, especially as supported by the purpose of the Bill of Rights to preserve the historical rights of the English, this is one of many strong arguments for concluding that the Constitution is written in the language of the law.

If the right only has its ordinary meaning, then how should it be given content?  What does “the right to an impartial jury” mean in this context?  It is not clear.  One might believe that it should include the right to admit juror evidence to set aside a verdict based on racial bias, but what about verdicts based on other types of bias?  The Supreme Court indicated the answer to other types of bias would not justify such setting aside.  Ultimately, the matter is not clear and so the Court must decide based on some extraconstitutional matter.  The majority opinion reads like it was decided based on the Justices’ values.

Randy Barnett on David Rudenstine on Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Another oblivious critique of Neil Gorsuch and Originalism (commenting on David Rudenstine [Cardozo]: Gorsuch's Adherence to Originalism Should Keep Him From SCOTUS).

It's a long, detailed and pretty harsh critique --  here are a few highlights: 

[Professor Rudenstine argues:]

Some [originalists] concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution’s meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism’s promise.

While it is true that some originalists have favored framers intent or ratifiers understanding, most today seek the original public meaning of the text at the time it was enacted. Regardless, for this criticism to be telling, Professor Rudenstine needs to identify circumstances where these different stances would lead to different results or outcomes. After all, the meaning of the words in the text to its framers, to its ratifiers, or to the general public, were very likely to be identical, since the meaning of the English language they employed was the same for all. Indeed, even originalists who ultimately seek the original public meaning of the text consider the meaning attributed to the text by its framers and ratifiers as probative evidence of original public meaning.

To take two examples where I am familiar with the available evidence, the word “commerce” in the Commerce Clause and “arms” in the Second Amendment meant the same thing to all three groups. So the practical constraining effect of originalism is preserved unless these differing audiences can be shown to have had differing understandings of the text, which is quite unlikely. At any rate, Professor Rudenstine offers no such examples of differential meanings.

Agreed, and in any event, to repeat a point I've made, well, repeatedly:  originalism does not depend on showing that originalism produces a clear outcome in every case.  All originalism claims is that when originalism produces a clear outcome, that outcome should be followed.  Thus it is not an argument against originalism that originalism sometimes (or even frequently) does not produce a clear outcome.  (It would be an argument against originalism that originalism never produces a clear outcome, but I don't believe that argument is possible).

From later in the critique:

[Professor Rudenstine argues:]

Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice “law office history,” which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.

This is fundamentally inaccurate. Originalism does not require “judges to to be historians.” It merely requires judges to identify the meaning–or communicative content–of the text of the Constitution. More specifically, it requires them to identify where that public meaning when enacted differed from the meaning these words have today. For example, although the Supreme Court has never expanded the actual meaning of the word “commerce” in the Commerce Clause (instead, it expanded the powers of Congress by a capacious construction of the Necessary and Proper Clause), some today may identify the word “commerce” with “economic activity,” though its original meaning was narrower than that. At the time of the Founding, and at least into the mid-Twentieth Century, the word “commerce” referred to an activity distinct from the economic activities of agriculture, husbandry, or manufacturing. While the latter words referred to different manners of producing things, the former referred to the trade and transportation of things that are so produced.

You don’t need a PhD. in history to discover this. ...

But at any rate, neither judges nor scholars ought to employ “law office history,” if what is meant by this is “cherry-picking” evidence to fit the conclusions they may wish to reach. An argument against bad originalism is not an argument against originalism.

And from the conclusion:

At this point, it is only fair to ask Professor Rudenstine to identify his own approach to constitutional interpretation and application to see if it performs better or worse than originalism. For is that not the fair test of the relative strengths of competing constitutional approaches? My guess is that, whatever his approach, it will perform worse by every criteria by which he judges originalism as wanting. But I cannot know this for certain until he informs readers like me of his own allegedly superior approach.

03/14/2017

More from Eric Segall on Brown and Originalism
Michael Ramsey

Regarding my earlier post on his Vox essay, Eric Segall writes:

I think it very likely that the Strauder majority was correct and Harlan's dissent in Plessy correct as an original matter but that Brown was still wrong as an original matter. I think the best reading of history and text is that much formal discrimination against Blacks was outlawed but not all including school segregation given the widespread practices at the time. More importantly, if the question is close as a matter of history, then absent a presumption of constitutionality, an originalist method loses all its benefits (like constraint). Given that presumption, and the longstanding tradition of segregated schools, plus the vagueness of the text, Brown can't be anything other than a living constitution decision. FWIW, I think Originalists would be better off, and more honest, just saying no theory is perfect, and Brown is an exception to an otherwise reasonable theory.

My reaction is that these are interesting points worthy of further thought.  I had not really considered the idea that both Plessy and Brown might be wrong as an original matter (in my partial defense, it's not my area of expertise).  But on an initial consideration, I'm unsure how that result could be derived from the words of the Fourteenth Amendment (as opposed to post-ratification practices).  Professor Segall and I may simply disagree on how much relative weight to give text and post-ratification practice.

The Constitution Is Written in the Language of the Law
John O. McGinnis

The Constitution has launched hundreds of debates about its meaning.  But before these disputes can be settled an underlying clash of visions about the nature of its very language requires resolution.  One view holds that the Constitution is written in ordinary language and is thus fully accessible to anyone with knowledge of the English language.  The other, in contrast, is that the Constitution is written, like many other documents with legal force, in the language of the law.

The ordinary language view is often assumed both by the Supreme Court and scholars. But in a new paper Mike Rappaport and I show that the better view is that the Constitution is written in the language of law and that this has important implications for constitutional interpretation. Surprisingly, no one has ever considered how to determine whether the Constitution is written in the language of the law or in ordinary language.

We describe the factors to determine whether Constitution is written in the language of the law. The language is key and the paper for the first time catalogues all the technical terms in the original document.  We show that the number of legal terms in the Constitution is much larger than most people recognize and probably numbers about one hundred! We also show that the legal language the Constitution presupposes go beyond mere technical terms but encompasses legal interpretive rules, because the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules.  Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues.

The Constitution’s legal language has important theoretical and practical significance.  Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions. It also tells us where to find this richness— in the legal meanings and interpretive rules that were deemed applicable at the time.  The Constitution was not created ex nihilo and its language of the law brings centuries of tradition and refinement along with it. 

An abstract and copy of the paper can be found here.

SCOTUSblog Symposium on Judge Gorsuch
Michael Ramsey

At SCOTUSblog, an ongoing symposium on "Judge Neil Gorsuch's jurisprudence and views on various legal topics, and how these might compare with Justice Antonin Scalia's."  Here are the contributions so far:

Gorsuch on abortion, religion and reproductive rights, by Amy Howe

A closer look at Judge Neil Gorsuch and class actions,  by Amy Howe

Judge Gorsuch’s First Amendment jurisprudence, by Tejinder Singh

Judge Gorsuch’s arbitration jurisprudence, by Edith Roberts

Introduction: A close look at Judge Neil Gorsuch’s jurisprudence, by Amy Howe

From the introduction: 

There will never be another Antonin Scalia. When he died on February 13, 2016, the brilliant and pugnacious jurist left behind a legacy that included almost singlehandedly bringing originalism – the idea that the Constitution should be interpreted according to what it meant when it was adopted – to the forefront of legal debate, both at the Supreme Court and more broadly. Accepting the nomination to fill the vacancy left by Scalia’s death, Judge Neil Gorsuch spoke for many when he called Scalia “a lion of the law.”

Like Scalia, Gorsuch describes himself as an originalist: In a 2016 speech at Case Western Reserve University, he told his audience that judges should interpret the Constitution and the law “by focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” But, if he is indeed confirmed, what effect will Gorsuch have on specific areas of the law?

03/13/2017

Gary Lawson on Proving the Law
Mike Rappaport

I received this book – Evidence of the Law: Proving Legal Claims – in the mail and am looking forward to reading it.  Gary Lawson, of course, is a leading originalist and an expert in administrative law.  I use his first rate Administrative Law casebook.

In Evidence of the Law, Gary discusses the fact that our legal system, while focusing carefully on the methods and standards for proving facts, generally ignores the methods and standards for proving law.  Yet, such methods are crucial.

And nowhere is this more true than in originalism.  If one thinks about constitutional originalism, it is very much concerned about the methods and standards for proving law.  Originalism, of course, defines the law as the original meaning of the Constitution.  But it spends significant time considering how one establishes that original meaning.  Does one consider the original intent, the original public meaning, or the original methods?  Also, originalism is concerned about the standards that govern the proof of the law.  For example, if a person challenging legislation can only prove by a preponderence of the evidence – by 51% probability – that the law forbids the legislation, is that sufficient to justify striking it down?  Some originalists argue yes, others argue no.

Here is the synopsis from Amazon:

How does one prove the law? If your neighbor breaks your window, the law regulates how you can show your claim to be true or false; but how do you prove that in breaking your window your neighbor has broken the law? American jurisprudence devotes an elaborate body of doctrine—and an equally elaborate body of accompanying scholarly commentary—to worrying about how to prove facts. It establishes rules for the admissibility of evidence, creates varying standards of proof, and assigns burdens of proof that determine who wins or loses when the facts are unclear. But the law is shockingly inexplicit when addressing these issues with respect to the proof of legal claims. Indeed, the entire language of evidentiary proof, so sophisticated when it comes to questions of fact, is largely absent from the American legal system with respect to questions of law.

As Gary Lawson shows, legal claims are inherently objects of proof, and whether or not the law acknowledges the point openly, proof of legal claims is just a special case of the more general norms governing proof of any claim. As a result, similar principles of evidentiary admissibility, standards of proof, and burdens of proof operate, and must operate, in the background of claims about the law. This book brings these evidentiary principles for proving law out of the shadows so that they can be analyzed, clarified, and discussed. Viewing legal problems through this lens of proof illuminates debates about everything from constitutional interpretation to the role of stipulations in litigation. Rather than prescribe resolutions to any of those debates, Evidence of the Law instead provides a set of tools that can be used to make those debates more fruitful, whatever one’s substantive views may be. As lawyers, judges, and legal subjects confront uncertainty about what the law is, they can, should, and must, Lawson argues, be guided by the same kinds of abstract considerations, structures, and doctrines long used to make determinations about questions of fact.

Harold Anthony Lloyd: Why Originalism Cannot Work
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art on SSRN. Here is the abstract:

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It's hard to see how such Originalism withstands scrutiny.

First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences' meaning prevails).

Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus?

Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon the meaning of "planet" adopted by the speaker. Unlike the "reasonable" reader of Gorsuch's Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless.

Fourth, to the extent a judge is principally "constrained" by a text or texts (as he may determine), by dictionaries that the chooses, and by “history” as the judge understands it, isn't judicial activism encouraged rather than restrained? Talk of a "reasonable" reader masks the fact that their [ed.: there] can be multiple "reasonable" conclusions of what a speaker meant[.] Is a judge not therefore left to pick definitions and application of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames and their terms are subject to multiple definitions therefore raising the very same questions just raised above.

Finally, Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as "Landscape with the Fall of Icarus" often attributed to Bruegel and which inspired such great ekphrasis as Auden's "Musée Des Beaux Arts"). These further failures underscore the dysfunction of Originalism as described by Gorsuch above.

At Legal Theory Blog, Larry Solum has critical comments beginning: 

The author does not cite any work by contemporary originalists in support of the notion that originalism limits the original meaning of a term to the extension of the constitutional language at the time each provision is framed and ratified.  And there is a good reason that no citations are provided: no contemporary originalist (of whom I am aware) holds this view.  Consider the application of Lloyd's argument to the term "states."  The logic of the argument implies that "states" should be limited to the 13 states that were identified in the text ..., but that understanding of the meaning of "states" is directly contradicted by the text of the constitution itself--which provides for the admission of new states to the union. ...

I agree (with Professor Solum), though I like that Professor Lloyd capitalizes "Originalism" (which, perhaps oddly, most originalists do not).

I'd also add that of Professor Lloyd's five reasons originalism "cannot work," the first two are at best arguments why it's normatively a bad idea, not reasons it "cannot" work; the fourth depends on the conclusion that originalist judges are comprehensively dishonest, a point not proven; and the fifth seems irrelevant (law being different from art).  [The third reason is the one directly engaged by Professor Solum].

03/12/2017

Eric Claeys on Judge Gorsuch and Natural Law
Michael Ramsey

In the Weekly Standard, Eric Claeys (George Mason): Neil Gorsuch and Natural Law.  Fromt he introduction:

Later this month, the Senate Judiciary Committee convenes hearings on the nomination of Judge Neil Gorsuch to replace Antonin Scalia on the Supreme Court. Although the Committee will have a lot of legitimate issues to consider, some outsiders are trying to interest it in two unusual topics: natural law, and the writings of a professor named John Finnis. These topics are distractions. The committee's main business is to see whether Judge Gorsuch is qualified to apply the law impartially as a judge. And if the committee does decide to explore natural law or Finnis's writings, those sources will point the committee back to its main business.

Finnis is now a professor emeritus at Oxford and a professor at Notre Dame Law School. After clerking at the Supreme Court, Gorsuch earned a Ph.D. at Oxford, and Finnis supervised Gorsuch's dissertation there. In the last few weeks, some court-watchers have suggested that Finnis's political views provide clues about how Gorsuch will behave as a justice. George Will hopes that Gorsuch's studies under Finnis will help him "correct" some of Scalia's views on the Constitution. (Scalia denied that the Constitution explicitly recognizes natural law or protects natural rights.) Several bloggers and news articles have noted that Finnis opposes abortion and non-conjugal and/or contracepted sex. Some hope, and more are alarmed, that Finnis's views on those subjects may have rubbed off on Gorsuch.

...

More fundamentally, though, the suggestions being made about Finnis and natural law are confused about the judiciary committee's job. The suggestions imply that judges vote on cases before them as members of Congress vote on bills—by what they think of a given bill on the merits. Judges shouldn't vote that way; they should figure out what legal sources control and apply those sources impartially. If the committee wants to explore how the natural law or Professor Finnis relate to being a Supreme Court Justice, it should ask what both have to say about adjudication—not any hot-button voting issue.

And here, traditional natural law teachings reinforce what common sense already suggests. "Natural law" is a way of saying that there are objective standards for right and wrong guiding politics. But natural law principles don't supply cookie-cutter solutions to political problems. Reasonable people often disagree about how general objective standards apply to specific problems. To resolve such disagreements, natural law justifies elections and constitutional government—but it also requires the government's officers to follow the Constitution and the laws made pursuant to it. ...

03/11/2017

Steven Semeraro: Interpreting the Constitution's Elegant Specificities
Michael Ramsey

Steven Semeraro (Thomas Jefferson School of Law) has posted Interpreting the Constitution's Elegant Specificities (Buffalo Law Review, Vol. 65, forthcoming) on SSRN.  Here is the abstract: 

Professor Semeraro proposes a new method of constitutional interpretation – farsighted originalism – for cases dealing with specific constitutional clauses regulating intra-governmental conflicts. Scholars and judges have long assumed that these specific clauses would prove easier to interpret than the Constitution’s majestic generalities protecting individual rights. But in the last two terms, bitterly divided Courts have struggled with very specific clauses regulating intra-governmental action. Using an analogy to quantum mechanics, Professor Semeraro shows that the Constitution’s specific clauses should be interpreted through the problem solving rubric embodied in the clause. This rubric creates a superposition of potential original meanings, all of which the founding generation – in a meaningful sense – held, even though they may not have considered all of the circumstances to which the rubric might apply. In this way, the meaning of the Constitution remains fixed, as originalism requires, while simultaneously living to resolve new problems.

This article then responds to the critique that the proposed interpretive method may permit judges to incorporate their own modern sensibilities into constitutional interpretation because the superposition of original public meanings is too flexible. This article responds that the originalists’ hope for a wholly inter-subjective method of interpretation assumes a radical distinction between fact and value that has been questioned by legal and linguistic philosophers. If fact and value are intertwined as these philosophers have claimed, the farsighted originalism approach may better capture original meaning that other narrower forms of originalism.

03/10/2017

More Originalism from Justice Thomas
Michael Ramsey

In addition to his strong dissent in Pena-Rodriguez v. Colorado, Justice Thomas had two other interesting separate opinions this week.  First, he issued this statement in Leonard v. Texas (basically, concurring in the denial of the petition).  Leonard made a due process challenge to civil forfeiture; Thomas suggests that such a claim might have merit, based on the differences between modern civil forfeiture and historical practice: 

The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding. See, e.g., Bennis v. Michigan, 516 U. S. 442, 446–448 (1996). “‘English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.’” Austin, supra, at 612 (quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 682 (1974)). This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture.” 509 U. S., at 613. Other early statutes also provided for the forfeiture of pirate ships. United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111, 119 (1993) (plurality opinion). These early statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime. See Calero-Toledo, supra, at 684–685; Act of Aug. 4, 1790, §67, 1 Stat. 176–177. And, because these suits were in rem rather than in personam, they typically proceeded civilly rather than criminally. See United States v. La Vengeance, 3 Dall. 297, 301 (1796).

In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation.... I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.

First, historical forfeiture laws were narrower in most respects than modern ones. Cf. James Daniel Good, 510 U. S., at 85 (THOMAS, J., concurring in part and dissenting in part) (noting that “ambitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture”). Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts. See Herpel, Toward a Constitutional Kleptocracy: Civil Forfeiture in America, 96 Mich. L. Rev. 1910, 1918– 1920 (1998); see also id., at 1925–1926 (arguing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts). These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods). See Rumson, supra, at 121–122, 125 (plurality opinion) (Forfeiture of criminal proceeds is a modern innovation).

Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings. See, e.g., Boyd v. United States, 116 U. S. 616, 633–634 (1886) (“We are . . . clearly of [the] opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal”); but see R. Waples, Treatise on Proceedings In Rem 29–30 (1882) (collecting contrary authorities). Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt”).

(Thomas agreed with the denial, however, based on petitioner's failure to raise the issue in the lower court).

Second, Thomas dissented from denial of certiorari in Baston v. United States, a case challenging the scope of Congress' power to regulate commerce with foreign nations.  The court of appeals construed Congress' commerce power to reach prostitution involving two non-U.S. citizens in Australia.  Thomas, while conceding that "facts are not sympathetic," objected:

Thus, even if the foreign commerce power were broader than the interstate commerce power as understood at the founding, it would not follow that the foreign commerce power is broader than the interstate commerce power as this Court now construes it. But rather than interpreting the Foreign Commerce Clause as it was originally understood, the courts of appeals have taken this Court’s modern interstate commerce doctrine and assumed that the foreign commerce power is at least as broad. The result is a doctrine justified neither by our precedents nor by the original understanding.

Taken to the limits of its logic, the consequences of the Court of Appeals’ reasoning are startling. The Foreign Commerce Clause would permit Congress to regulate any economic activity anywhere in the world, so long as Congress had a rational basis to conclude that the activity has a substantial effect on commerce between this Nation and any other. Congress would be able not only to criminalize prostitution in Australia, but also to regulate working conditions in factories in China, pollution from powerplants in India, or agricultural methods on farms in France. I am confident that whatever the correct interpretation of the foreign commerce power may be, it does not confer upon Congress a virtually plenary power over global economic activity.

Post-Scalia, a more assertive Thomas?

03/09/2017

Keith Whittington: Originalism, Constitutional Construction, and the Problem of Faithless Electors
Michael Ramsey

Keith E. Whittington (Princeton University - Political Science) has posted Originalism, Constitutional Construction, and the Problem of Faithless Electors (Arizona Law Review, forthcoming) on SSRN.  Here is the abstract:

In the wake of the 2016 presidential election, opponents of President-elect Donald Trump launched an unprecedented lobbying effort to encourage the presidential electors to vote for an alternative candidate. These efforts were bolstered in part with arguments based on the original meaning and purpose of the Electoral College.

In this Article, I argue that these historical arguments are flawed as an understanding of the meaning and purpose of the presidential selection system embedded in the U.S. Constitution. Electors were not established to exercise a veto on the popular choice for president, but rather were expected to exercise discretion only in a context in which the people were unable to decide who should be president.

In addition to its practical import, the “faithless electors” example shows the theoretical value of the conceptual distinction between constitutional interpretation and constitutional construction. An appreciation of how the office of presidential elector has been constructed over time exposes how radical of a departure the lobbying effort was from American constitutional traditions and democratic commitments and illustrates a better approach to thinking about how a fixed constitutional text should be joined with a living constitutional practice.

03/08/2017

Ryan Scoville: Ad Hoc Diplomats
Michael Ramsey

Ryan Scoville (Marquette University - Law School) has posted Ad Hoc Diplomats on SSRN.  Here is the abstract:

 

Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats — individuals chosen exclusively by the president to complete limited and temporary assignments — play a comparably significant role in addressing international crises, negotiating treaties such as the Paris Agreement on Climate Change, and otherwise executing foreign policy.

This Article critically examines the appointments process for such irregular agents. An orthodox view holds it permissible for the president to dispatch any ad hoc diplomat without Senate confirmation, but this view does not accord with the text of Article II. Scrutinizing plain language and previously overlooked evidence of original meaning, I show that, under a formalist reading of the Constitution, the appointment of most ad hoc diplomats requires the advice and consent of the Senate because these agents are typically “public Ministers” and “Officers of the United States” under the Appointments Clause. 

The analysis carries significant implications at a time of trepidation over the scope of executive power. For formalists, it reorients longstanding debates about the process of treaty-making, suggests mechanisms by which the Senate might reclaim influence, and encumbers the President’s ability to implement recent proposals to renegotiate the Iran nuclear deal, the North American Free Trade Agreement, the terms of peace in the Middle East, and the One-China policy, all of which could depend on the work of ad hoc diplomats. For those who are skeptical of formalism, the analysis does not dictate constitutionality, but nevertheless illuminates rhetorical and doctrinal maneuvers that have facilitated the rise of the modern presidency, including historical revisionism and the marginalization of international law as an input in constitutional interpretation. These maneuvers complicate the political valence of originalism and cast the Justice Department’s Office of Legal Counsel (OLC) — a key proponent of the orthodox view — as a motivated expositor of the separation of powers.

I read a previous draft -- this is an outstanding paper with important originalist evidence. 

03/07/2017

Justice Thomas Makes Originalism Look Easy in Peña-Rodriguez v. Colorado
Michael Ramsey

In Peña-Rodriguez v. Colorado, decided by the Supreme Court on March 6, the question was whether the Sixth Amendment requires consideration of a juror's statements during deliberations indicating racial bias.  The majority found such a requirement.  Justice Thomas dissented in a crisp originalist opinion making essentially three points.  First:

The Sixth Amendment’s protection of the right, “[i]n all criminal prosecutions,” to a “trial, by an impartial jury,” is limited to the protections that existed at common law when the Amendment was ratified. See, e.g., Apprendi v. New Jersey, 530 U. S. 466, 500, and n. 1 (2000) (THOMAS, J., concurring); 3 J. Story, Commentaries on the Constitution of the United States §1773, pp. 652–653 (1833) (Story) (explaining that “the trial by jury in criminal cases” protected by the Constitution is the same “great privilege” that was “a part of that admirable common law” of England); cf. 5 St. G. Tucker, Blackstone’s Commentaries 349, n. 2 (1803). It is therefore “entirely proper to look to the common law” to ascertain whether the Sixth Amendment requires the result the Court today reaches. Apprendi, supra, at 500, n. 1.

Second:

The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour”—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the Sixth Amendment was ratified did not allow jurors to supply evidence of that misconduct. In 1770, Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.). ...

Third:

By the time the Fourteenth Amendment was ratified, Lord Mansfield’s no-impeachment rule had become firmly entrenched in American law. See Lettow, New Trial for Verdict Against Law: Judge-Jury Relations in Early Nineteenth Century America, 71 Notre Dame L. Rev. 505, 536 (1996) (“[O]pponents of juror affidavits had largely won out by the middle of the century”); 8 J. Wigmore, Evidence in Trials at Common Law §2352, p. 697 (J. McNaughton rev. 1961) (Wigmore) (Lord Mansfield’s rule “came to receive in the United States an adherence almost unquestioned”); J. Proffatt, A Treatise on Trial by Jury §408, p. 467 (1877) (“It is a well established rule of law that no affidavit shall be received from a juror to impeach his verdict”). The vast majority of States adopted the no impeachment rule as a matter of common law. See, e.g., Bull v. Commonwealth, 55 Va. 613, 627–628 (1857) (“[T]he practice appears to be now generally settled, to reject the testimony of jurors when offered to impeach their verdict. The cases on the subject are too numerous to be cited”); Tucker v. Town Council of South Kingstown, 5 R. I. 558, 560 (1859) (collecting cases); State v. Coupenhaver, 39 Mo. 430 (1867) (“The law is well settled that a traverse juror cannot be a witness to prove misbehavior in the jury in regard to their verdict”); Peck v. Brewer, 48 Ill. 54, 63 (1868) (“So far back as . . . 1823, the doctrine was held that the affidavits of jurors cannot be heard to impeach their verdict”); Heffron v. Gallupe, 55 Me. 563, 566 (1868) (ruling inadmissible “depositions of . . . jurors as to what transpired in the jury room”); Withers v. Fiscus, 40 Ind. 131, 131–132 (1872) (“In the United States it seems to be settled, notwithstanding a few adjudications to the contrary . . . , that such affidavits cannot be received”).

And so in conclusion:

Perhaps good reasons exist to curtail or abandon the no impeachment rule. Some States have done so, see Appendix to majority opinion, ante, and others have not. Ultimately, that question is not for us to decide. It should be left to the political process ...  In its attempt to stimulate a “thoughtful, rational dialogue” on race relations, ante, at 21, the Court today ends the political process and imposes a uniform, national rule. The Constitution does not require such a rule. Neither should we.

It's not my area, but that sounds pretty persuasive as to the original meaning.  The majority opinion does not even attempt to refute it.  Commentators who say originalism doesn't lead to clear results need to consider this example.

Two further thoughts on this very interesting case:  (1) The majority opinion is starkly nonoriginalist, with only minimal gestures at the purposes of the Fourteenth Amendment (and with minimal reliance on precedent as well.  What does this say about the proposition that originalism "is our law"? (2) Justice Alito's separate dissent, joined by Thomas and Chief Justice Roberts, is an example of what I have called an "originalist-oriented" approach.  It does not rest only on originalism, as Justice Thomas does, but it considers originalist evidence and reaches an outcome consistent with originalism (but with extensive discussions of precedent, practice and policy included as well).

03/06/2017

Do Liberals Want Conservative Nonoriginalists?
Mike Rappaport

Over at the Volokh Conspiracy, Randy Barnett, as an aside, asks liberals the following question:

Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause?

In his U.S. Today Column, Glenn Reynolds picks up on the idea and explores various decisions that might be overturned based on a conservative living constitutionalism.

Barnett’s is an interesting question, which I believe has no simple answer.  Let me explore a couple of possible answers.

One possibility is that liberals believe that the rule they advocate – originalism or nonoriginalism – will be followed by both liberals and conservatives.  While they might prefer that conservatives be originalist and liberals be nonoriginalist, they must choose a single rule for both.  And if forced to choose, they prefer that both be nonoriginalist to both being originalist.

Yet, it is not clear that liberals believe this.  They may realize that they are unlikely to influence conservatives.  They may therefore advocate nonoriginalism for both liberals and conservatives, realizing it is only going to influence liberals.  They might criticize conservative originalists, but that is just as a way of arguing to liberals that they should be nonoriginalist.

But let’s imagine now that liberals are actually speaking to conservatives.  Why might they favor nonoriginalism?  Randy’s question brings to mind the strong conservatives that Glenn talks about – people who favor a political agenda that the liberal strongly dislikes.

But liberals might be “forgiven” for not taking the existence of such a justice seriously.  They have not seen one for a very long time, if ever.  At least in recent years, conservative nonoriginalists have looked different.  Some of them have been strong believers in judicial restraint.  And while such people might not enforce liberal nonoriginalist rights, they also won’t enforce conservative nonoriginalist rights.  So they are not all that threatening to the liberal.

Another type of conservative nonoriginalist is someone who is a moderate conservative who might grow in office to become a liberal.  Think Justice Souter or Stevens or Kennedy or O’Connor.  Thus, they believe that a conservative nonoriginalist will end being a moderate or a liberal.  Of course, here the causation may go in the opposite direction.  It is not that nonoriginalists become moderate or liberal.  It is that moderates or liberals are attracted to nonoriginalism.

Ultimately, my sense is that all it would take would be one or two strong conservative nonoriginalists to persuade liberals to change their views a bit.  Liberals often favor judicial activism until they believe they are losing control of the court.  For example, after Bush v. Gore, which was viewed as conservative judicial activism, people like Mark Tushnet, Larry Kramer, and Cass Sunstein advocated a much more limited judicial role.  Thus, if there were strong conservative nonoriginalists, who were deciding cases aggressively that liberals did not like, they would be criticized.

But would liberals then criticize conservatives for being nonoriginalist?  Perhaps, but I think only in part.  Some of the criticisms would assert that these justices were being nonoriginalist, which is not the way conservatives are supposed to behave.  But some of the criticism would turn on other grounds.  Some of it would be criticizing the conservatives for not following precedent, which has tended to be liberal.  And some of it would be criticizing the conservatives for their political views.  So long as this multi-plank attack is effective, liberals will have incentive to maintain it, because will allow them to buttress both their liberal nonoriginalism and to criticize both conservative nonoriginalism and originalism.

In the end, liberals might prefer a conservative originalist to some kind of conservative nonoriginalists, but that does not mean they will say that clearly.  Instead, the three prong attack above might be employed since it would allow liberal nonoriginalists to better achieve their goal of promoting liberal nonoriginalism.

Samuel Estreicher & Steven Menashi: The Iran Nuclear Agreement and the Separation of Powers
Michael Ramsey

Samuel Estreicher (New York University Law School) and Steven Menashi (George Mason University) have posted Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers (Fordham Law Review, forthcoming) on SSRN.  Here is the abstract:

This article examines the constitutional validity of President Obama's decision, as part of his 2015 agreement with Iran, effectively to repeal 17 different sanctions laws for the 15-year life of the agreement. Although Congress had legislated extensively in this area, the President effected this change by entering into a "nonbinding political agreement" with Iran and by aggregating individual waiver provisions in the sanctions laws into an across-the-board waiver of sanctions. We argue that the commitments made by the President in the Iran agreement violate a fundamental separation-of-powers limit on executive power — what we term "the Steel Seizure principle," after the Youngstown Steel Seizure Case.

As the Supreme Court reaffirmed in the Steel Seizure Case, the President does not have lawmaking power even where national-security and foreign-relations concerns are at stake. A vast literature has grown around the Steel Seizure Case, especially the influential concurring opinion by Justice Robert Jackson. Yet relatively little attention has been paid to the majority view of the Justices that President Truman’s seizure order was unlawful not because it contravened any express statutory prohibition but because it flouted the congressional "plan" for addressing the particular policy issue. This central aspect of the Steel Seizure Case highlights what is particularly problematic about President Obama's decision to aggregate authorities in the sanctions laws and to commit the United States to an across-the-board waiver of nuclear-related sanctions pursuant to his agreement with Iran. The President treated the waiver provisions as an invitation to end the congressionally prescribed sanctions regime for addressing Iran's nuclear weapons program and to replace it with his own non-sanctions regime for addressing the same issue. Yet the President lacks the unilateral power to overturn Congress's prescribed policy and to replace it with his own.

The President is both an agent and, particularly in the foreign relations area, can be viewed as a co-principal with Congress. The Steel Seizure principle highlights the limits of the co-principal conception of the President. Once Congress has developed a legislative framework for a subject matter, that framework occupies the field; the President's role becomes one of a responsible agent. In the Iran sanctions laws, Congress provided bounded waiver authority, acting responsibly to allow limited executive discretion rather than requiring the President to seek new legislation each time flexibility was needed. It did not, however, invite the President to override the sanctions framework altogether, as occurred in connection with the Iran nuclear agreement. An emergent literature in administrative law has praised Congress's delegation of waiver authority to the executive branch as providing needed flexibility and other policy benefits. Yet that literature recognizes that the President's exercise of waiver authority must be carefully circumscribed to avoid enabling the President effectively to revise a statutory regime out of disagreement with Congress's legislated policy choices. Such limiting principles are no less necessary in the foreign-affairs context, where the President used purported waiver authority in the Iran sanctions statutes to pursue his own independent policy in defiance of Congress.

My somewhat different (but also critical) take on the Iran deal is here.

03/05/2017

Lee Strang: How Big Data Can Increase Originalism’s Methodological Rigor
Michael Ramsey

In the current issue of the UC Davis Law Review, Lee J. Strang (University of Toledo College of Law) has the article How Big Data Can Increase Originalism’s Methodological Rigor: Using Corpus Linguistics to Reveal Original Language Conventions (50 UC Davis L. Rev. 1181 (2017)).   Here is the abstract:

Big Data is everywhere. The Big Data revolution is not only the collection of information; it is also the use of that data to disclose new, previously unknown information about us and our lives.

Originalism is on the cusp of its own Big Data revolution. For the first time, both a body of data of the Constitution’s original meaning and the technology to effectively utilize that data are available. In this Article, I argue that originalism should embrace its own Big Data transformation and that doing so will help originalism achieve greater methodological rigor. I argue that originalists who embrace a Big Data transformation will be able to reliably and accurately reveal original language conventions.

In this Article, I bring together a widely observed phenomenon — the theoretical move toward original meaning originalism — with an emergent phenomenon — the use of computer-assisted research technologies and techniques (“CART”) in originalism. I argue that originalists’ conceptual move toward original meaning originalism, when coupled with their adoption of CART, will reduce the force of the Inaccuracy Critique — the claim that originalism’s reliance on history makes any resulting constitutional law inaccurate.

Originalism rests on the premise that it is able to ascertain the Constitution’s meaning with reasonable accuracy. A recurring criticism of originalism is that, on the contrary, originalism leads to inaccuracy in constitutional law. Originalism leads to inaccuracy because it depends on an activity — the recovery of the Constitution’s meaning via the methods of history — that cannot bear the weight. Unlike criticisms that originalism leads to normatively bad constitutional interpretations, the Inaccuracy Critique contends that originalism fails on its own terms — that its methodology is flawed.

In response to this criticism, many originalists made a major conceptual move: they rearticulated originalism as original meaning originalism in place of original intent originalism. In this Article, I build on that conceptual move, and I tie it to a modification to the method of historical research for originalism that will make the process more accurate. In particular, I argue that original meaning originalism’s focus on the text’s original conventional meaning, coupled with now-widely available CART, blunts the Inaccuracy Critique. By harnessing the power of Big Data, originalism moves toward a more rigorous methodology. Computer assisted research techniques will increase originalism’s methodological rigor by introducing the techniques of the empirical sciences and producing testable and reproducible results.

(See also this Corpus Linguistics article by Jennifer Mascott).

03/04/2017

David Schwartz: Implied Powers, Capable Federalism, and the Limits of Enumerationism
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism on SSRN.  Here is the abstract:

The American constitutional order embodies a tension between two irreconcilable ideas. “Enumerationism” holds that federal powers are limited to those expressly enumerated in the Constitution, plus whatever implied powers are necessary and proper to execute them. What I call “capable federalism” asserts that the Constitution creates a national government fully empowered to address all national problems. Enumerationism rejects the idea that the federal government has general powers, or that it has implied powers of equal or greater dimension than those expressly listed. Capable federalism is a general power by definition, and it is fully compatible with formal recognition of implied “great” powers. Although the two theories are incompatible, our constitutional doctrine tries to harmonize them by claiming to adhere to enumerationism while evading its strictures. We find various constitutional tricks and cheats to accommodate the “structural imperative” that any federalist system must ensure that all social problems can be addressed by at least one level of government. Still, an ideological overlay of enumerationism continues to suppress any formal recognition of capable federalism.

This article argues that enumerationism is an ideology far more than it is a viable constitutional theory. Lacking a compelling claim to our constitutional fidelity as a matter of text or history, enumerationism is also lacking as a principle. Its purported logical premises — that a limited grant of power requires enumeration, and that an enumeration must always be interpreted as exclusive — are both false. The inability of enumerationism to explain implied powers undermines its logical consistency. And by requiring as an axiom that there be some regulatory gap — identifiable subjects of national regulatory concern that cannot be adequately addressed by any level of government in our federal system — enumerationism imposes social costs without a countervailing justification. Not surprisingly, our constitutional practice, over the long run from ratification to the present, has been reflective of capable federalism: some way will be found to accommodate a federal power to address national legislative problems.

03/03/2017

Eric Segall on Originalism and Brown
Michael Ramsey

At Vox, Eric Segall: Judicial originalism as myth.  From the introduction:

This genuflection toward the original meaning of the Constitution is, however, at best misleading and at worst a sham. What the words of the document meant to the people living at the time is just one of many different factors judges use to decide constitutional cases. So-called original meaning almost never drives the results in litigated cases but instead is used by judges to justify results they reached on other grounds. As Judge Richard Posner has written, “there has never been a time when the courts of the United States behaved consistently in accordance with the ideal” described by originalists.

There are strong reasons why judges have never consistently used originalism to decide hard cases. For one thing, if the original meaning of the framers of either the original Constitution or the Reconstruction amendments were taken seriously by today’s judges, we would live in a much different and much worse society. Segregated schools under the law and official governmental discrimination against women, gays, and lesbians would be permissible.
 
And more on Brown:
 
Criticism of Brown today would make any federal court nominee toxic and unconfirmable, so originalists have had to come up with remarkably contorted arguments to escape this obvious conclusion. Some, like Stanford’s Michael McConnell, have made unpersuasive arguments that the people living in 1868, when the Fourteenth Amendment was passed, and shortly thereafter, would have thought segregated schools to be illegal. (McConnell, strangely, places special emphasis on the debates leading up to the Civil Rights Act of 1875, highlighting anti-segregationist arguments — and downplaying the widespread segregation of schools in 1868.)
 
Professor Segall's implication, then, is that Plessy v. Ferguson (allowing segregation in railroad cars) was rightly decided at time, at least as a matter of original meaning.  This is not my area of expertise, but I think it as plausible (indeed, more so) that the nonoriginalist majority in Plessy got it wrong and that the original meaning of the Fourteenth Amendment was better captured by the Court in Strauder v. West Virginia (decided in 1880, only 12 years after ratification) and applied by Justice Harlan in dissent in Plessy.  Harlan wrote:
 
[The Fourteenth Amendment] declared, in legal effect, this court has further said,

"that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."  [Quoting Strauder]

We also said:

"The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." [again quoting Strauder]

...

It as said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

Why is this not a fair reading of the Amendment's original meaning?  It is consistent with the textual meaning; it adopts the reading given by the Court in the immediate post-ratification period; and it surely describes accurately the practical motivation and effect of the state law.  And in any event, Harlan was much closer to the enactment than we are.  

I am not sure which step of Justice Harlan's dissent Professor Segall thinks is incorrect.  Was the Strauder Court wrong to say that the language of the Fourteenth Amendment meant "that the law in the States shall be the same for the black as for the white"?  Was the law in Plessy "the same for the black as for the white"?  Was Justice Harlan's wrong in concluding that the law was passed as a means of oppression of one race?

Professor Segall rests principally on the proposition that segregation was widely practiced and accepted in the post-ratification era.  Assuming that to be correct, it is not decisive.  The inquiry, to an original meaning originalist, is the meaning of the text.  Post-ratification practice is evidence of original meaning, but it is not conclusive evidence.  It may well have been that post-ratification governments were politically unable to live up to the promises of the Amendment (a point Harlan made in his dissent).  After all, prior to Strauder, West Virginia (and other states) only allowed Whites to serve on juries, but Strauder rightly found that practice unconstitutional under the Amendment's text and purpose.

I'm not aware of any leading originalist judge or scholar who thinks Plessy was rightly decided (though perhaps there are some; Professor Segall does not cite any).  So maybe he (and other nonoriginalists purporting to reach originalist conclusions on the matter) just aren't doing it right.

RELATED:  In USA Today, Glenn Reynolds: A 'living Constitution' on the right? The left should be glad that Gorsuch is an originalist and not a conservative activist.

UPDATE:  Apologies for spelling Professor Segall's name incorrectly in the initial post.

03/02/2017

Supplement Rather than Repeal the Seventeenth Amendment
Andrew Hyman

There is growing consensus that the federal structure of the U.S. Constitution was greatly undermined by the Seventeenth Amendment, adopted in 1913.  Of course, that Amendment moved the selection of U.S. Senators from the state legislatures to direct popular voting in each state.  But those who favor repealing the Seventeenth Amendment overlook some of the real problems that it addressed, such as frequent deadlocks in the state legislatures, plus the strong and reasonable desire for more oversight by the general public.  In my view, we could get the best of the pre-1913 and post-1913 worlds with a new Amendment that supplements rather than repeals the Seventeenth:

Each state may enact that any general election by its people of a United States Senator shall involve only two different candidates, each nominated by a respective house of its legislature, or by its unicameral legislature.  Without such a state law or timely nominations accepted thereunder, this amendment shall not apply.

This would solve the pre-1913 problems of legislative deadlocks and ineffective public oversight.  And it would also recover the pre-1913 benefits such as giving states a stronger check on the national government's consolidating tendencies, bringing personal acquaintance and accountability to the selection process, making life more difficult for lobbyists and other special interests in Washington D.C. because legislation would have to be approved by a House and Senate that are more distinct and different from each other, and avoiding expensive U.S. Senate primaries that draw relatively few eligible voters.

Madison once posed this question: "Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?"  The answer is a resounding "no," and I hope we improve the checks and balances that are necessary to preserve the boundaries that the Constitution purports to establish.

Nathan Chapman: Due Process Abroad
Michael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted Due Process Abroad on SSRN.  Here is the abstract:

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure.

Up to now, scholars have uniformly concluded that the founding generation did not understand due process to apply abroad, at least not to aliens. This Article challenges that consensus. Based on the English historical background, constitutional structure, and the early practice of federal law enforcement on the high seas, this Article argues that the founding generation understood due process to apply to any exercise of federal law enforcement, criminal or civil, against any person, anywhere in the world. Outside the context of war, no one believed that a federal officer could deprive a suspect of life, liberty, or property without due process of law — even if the capture occurred abroad or the suspect was a non-citizen.

This history has important implications. It strongly supports the extension of due process to federal criminal and civil law enforcement, regardless the suspect’s location or citizenship. This principle has immediate implications for cross-border shootings, officially sponsored kidnappings and detentions abroad, the suspension of immigration benefits, and the acquisition of foreign evidence for criminal defendants.

An outstanding paper that challenges the conventional originalist view of the extraterritorial extent of the Constitution.

(Via Larry Solum at Legal Theory Blog).

03/01/2017

The Treaty and Its Rivals
Michael Ramsey

I have posted on SSRN a draft of a forthcoming book chapter, The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice (forthcoming in Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the Legal System of the United States (Paul Dubinsky, Gregory Fox & Brad Roth, eds., Cambridge University Press 2017)).  The volume as a whole features some of the top treaty law scholars in the country, with individual chapters on various aspects of U.S. treaty law from historical and contemporary perspectives.

My contribution traces the rise of alternatives to the Article II treaty from the early post-ratification period, in which Article II treaties dominated, to the modern period, which features a hodgepodge of various forms (sole executive agreement, congressional-executive agreement, executive agreement with implicit congressional approval, nonbinding agreement).  I'm much indebted to others who have told the story before (especially Oona Hathaway, Bruce Ackerman and David Golove) -- but my account is shorter, and significantly more sympathetic to Article II treaties (as the form expressly designated in the Constitution).

 

Here is the abstract:

This Chapter describes the evolution of the constitutional power to make international agreements in U.S. law. Reading only the Constitution’s text, one might suppose the constitutional regime for making international agreements in the United States to be quite straightforward. Article II, Section 2 states that the President has power to make treaties with the advice and consent of the Senate, provided two-thirds of the Senators present concur. Article VI provides that all treaties made under the authority of the United States are the supreme law of the land. No provision of the Constitution’s text directly mentions any power by the U.S. government to enter into any sort of international agreement apart from the “treaties” made according to Article II, Section 2 and having the force of Article VI.

For over 100 years, the regime that appears on the face of the text roughly corresponded with reality. The next 100 years, however, transformed U.S. practice regarding international agreement-making to the extent that the Constitution’s text and analyses based upon it wholly fail to capture what actually exists in modern practice. Conventionally, this transformation is described as the rise of two alternate forms of agreements: (1) the sole executive agreement, done by the unilateral authority of the president in areas of the president’s particular constitutional authority (whatever those may be); and (2) the congressional-executive agreement, done with the approval of majorities of both Houses of Congress, and which is said to be fully interchangeable with the Article II, Section 2 treaty as a constitutional procedure. 

While accurate in some respects, even this conventional description fails to capture the complexity of modern agreement-making in the United States, and recent trends have contributed to the difficulty of providing a coherent legal and practical account. First, non-treaty agreements have diverse and sometimes unclear sources of authority. In some cases, the president negotiates the agreement and submits it for approval by majorities of both Houses of Congress. For most agreements, the president makes them without any after-the-fact approval from Congress or the Senate. Within this latter category, the president may claim various sources of authority to enter into non-treaty agreements: express statutory authorization from Congress in advance; implied authority from Congress; express or implied authority from a prior treaty; or independent constitutional authority. As a practical matter, it may not always be easy – or even possible – to distinguish among some of these categories. Increasingly, the president enters into international agreements on the basis of informal and often uncertain sources of authority, with uncertain legal effects. 

Nonetheless, treaties remain well represented among important agreements, at least in some areas (although making that assessment seems challenging), despite their numerical decline. Likewise, agreements approved after-the-fact by Congress, although relatively small in number, include some of the United States’ most important recent commitments in the area of international trade. Agreements made by the president alone range from trivial diplomatic arrangements to ones of great consequence. There is no satisfactory explanation for why some agreements are made in one way and some in others. This Chapter attempts to sort out the history and modern trends in U.S. agreement making, with a view toward providing a foundation for a constitutional reassessment.

Thanks to the editors -- Wayne State's formidable international law team Paul Dubinsky, Greg Fox and Brad Roth -- for inviting me and to Cambridge University Press for permission to post the draft.  I'll note the book as a whole when it is published (publication expected later this year).

02/28/2017

A Comment on Q & A with Judge Gorsuch
Andrew Hyman

Mike Ramsey suggests the following answer (to a question suggested by Jeffrey Toobin) during upcoming confirmation hearings for Judge Gorsuch:

Q. Do you believe that the Constitution includes a right to privacy?

A.  As to the right of privacy, regardless of its basis in the text, the Court has recognized it on multiple occasions (as Justice Scalia himself did).  How far it extends is of course another matter, and that remains unsettled.

That's a bit too wishy-washy for my taste.  Sure, various aspects of privacy are protected to some extent by the Bill of Rights, such as the Fourth Amendment requiring probable cause to get a search warrant.  But there's no general right of privacy in the Constitution, and Senators ought to propose a constitutional amendment if they want to put one there, instead of trying to put judges on the Court who are willing to read things into the Constitution that are not there.  

Personally, I liked Judge Bork's answer to a similar question:

A. "Privacy to do what senator?  You know, privacy to use cocaine in private?  Privacy of businessmen to fix prices in a hotel room?"

That was a bit blunt in 1987, when Republicans held only 45 seats, but times have changed.  In 2013, Justice Scalia was much blunter, characterizing the Warren Court's privacy jurisprudence by saying "there’s a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage".  And in 2016, Scalia criticized "the judge-made theory of 'substantive due process' which guarantees certain fundamental rights like privacy" and called that theory "utterly idiotic."  Again, I think Scalia was pretty much on target.   Similar straightforward answers from Judge Gorsuch would be refreshing and accurate.  

I also note that Congress already has plenty of power to bar states from violating general privacy rights for certain types of people, and the courts could then extend those statutory rights to other people using the Equal Protection Clause. I discussed this basic concept here at this blog.

Josh Blackman on Statutory Originalism
Michael Ramsey

At Josh Blackman's Blog: Statutory Originalism.  From the introduction:

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. ...

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”  ...

I think it noteworthy that, even as many people deride constitutional originalism, statutory originalism is not especially controversial.  Yet, as Scalia and Garner made clear in Reading Law,  they are essentially the same enterprise.

02/27/2017

Some Answers for Jeffrey Toobin
Michael Ramsey

At The New Yorker, Jeffrey Toobin poses six questions Senators should ask Judge Gorsuch, most of them framed as supposedly "gotcha" questions for originalists.  I'm sure Judge Gorsuch could do much better, but here are my suggested answers (Toobin's commentary is omitted here but the answers sometimes respond to it; also in the spirit of confirmation hearings I will not comment on cases that might come before the Court, as Judge Gorsuch surely would not):

1.  During the campaign, President Trump repeatedly promised to nominate pro-life justices to the Supreme Court. Are you pro-life?

A:  Textualist originalists seek the original meaning of the Constitution's text (with due regard to precedent).  What they think about the underlying merits of a challenged law should be irrelevant to their decision.  So it doesn't matter whether an originalist candidate is pro-life (or pro-death penalty, or pro-gun control, or pro- any other policy that might come to the Court).  Indeed, an originalist judge might be particularly solicitous of the constitutionality of a law that person disfavored, or vice-versa, to avoid the danger that a policy preference might influence the outcome.  In contrast, most forms of nonoriginalism depend to some extent on the policy assessment of the particular judge (so this might be a fair question to nonoriginalists).

2.  Like Justice Antonin Scalia, you’ve described yourself (and been described) as a textualist and an originalist. The text of the Constitution does not directly refer to a right to privacy. Do you believe that the Constitution includes a right to privacy?  [Note: in the commentary, Toobin says this question "puts textualists on the spot"].

A:  A commitment to textualism (and originalism) does not entail a rejection of precedent.  Justice Scalia said he would not disturb precedents "woven into the fabric of American law," and he frequently followed and applied precedents that do not seem justified by the Constitution's original meaning.   People who are unduly alarmed by originalism as a practical method of judging often overlook this point.  As to the right of privacy, regardless of its basis in the text, the Court has recognized it on multiple occasions (as Justice Scalia himself did).  How far it extends is of course another matter, and that remains unsettled.

3. The authors of the Fourteenth Amendment, which guarantees the equal protection of the law and was adopted in 1868, almost certainly believed that racially segregated schools were permissible. Does that mean that Brown v. Board of Education was incorrectly decided? If Brown was correct, doesn’t that suggest that the meaning of the Constitution can change over time?

A:  As Justice Scalia explained, ultimately what matters for textualist originalists is the text's original meaning, not what the framers thought about it.  Their thoughts may be good evidence of what it means. in cases of ambiguity.  But where the text is clear, a subjective intent cannot override it.  In the case of segregation, Justice Harlan eloquently explained in dissent in Plessy v. Ferguson (1896) why it was banned by the plain language of the Fourteenth Amendment.  Thus, even if it is true that the "authors of the Fourteenth Amendment" thought the Amendment allowed segregation (and, as an aside, that is by no means clearly true), the Amendment nonetheless means what its says.  Thus Justice Scalia concluded that Plessy was wrong (and Brown was correct) as an original matter -- a view shared by many leading originalist scholars including Michael McConnell, Michael Paulsen and Steven Calabresi.  

4. Is money speech? Can Congress or the states regulate campaign expenditures at all? Congress has banned corporations from contributing directly to political campaigns for a century. Is that ban constitutional?

A:  Money is not speech but restricting the expenditure of money to circulate a message is a direct impairment of the ability to speak.  This does not seem controversial.  Presumably no one would say that Congress can prohibit a person from spending money on ink, paper or pens to write a letter protesting government action.  Presumably no one would say that Congress can prohibit a group of people from spending money to print a newspaper.  Nothing suggests that these restrictions would have been thought constitutional in the founding era.  The scope of this principle is more difficult, however.  Restrictions on contributions to a political campaign (which might then be used by the candidate to speak) are less obviously an infringement of speech, and the Court has said they are subject to reasonable regulation.

5. Do religious people have to follow laws that violate their consciences? Do they have to pay taxes? Do their children have to go to school? How do you decide which laws they can ignore, and which ones they are required to follow?

 A:  Here it is important to distinguish between constitutional requirements and statutory requirements.  In Employment Division v. Smith, the Court, in an opinion written by Justice Scalia, held that religious people must follow generally applicable laws (that is, ones that do not single out religion) even if those laws violate their consciences.  While that decision has been criticized on originalist grounds, it is now well-entrenched in precedent. So as a constitutional matter, the answer is "yes".   After the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA), to partially overrule Smith.  The RFRA says that in some circumstances religious people do not have to follow federal laws that violate their consciences.  The statute sets out the circumstances, although the statutory test is a little unclear; recent controversial decisions by the Court have been an interpretation of the statute.  If Congress thinks the Court has interpreted the statute incorrectly, it can amend the statute to clarify.

6. We all know that when people arrive at our borders, they give up certain rights. For example, they certainly give up the right to protest about searches of their luggage. But do visitors give up all their rights, like the right to equal protection of the laws? Can we ban all black people from coming to the United States? All Jews? All Muslims?

A:  U.S. citizens have an unqualified right to enter the country under Supreme Court precedent and the Constitution's original meaning.  People who already have been approved to enter have a right to enter subject to losing that right based on individual circumstances, in accordance with due process.  The issue is more difficult for non-citizens who have not been approved to enter.  The Supreme Court has held that Congress' power to exclude aliens is "plenary" and that Congress can indeed exclude based on racial classifications (in the Chinese Exclusion case in the late nineteenth century).  However, the Chinese Exclusion case was not an originalist opinion and it's doubtful if it is a precedent that should be respected.

[As my answers suggest, these questions are not the "gotchas" Toobin likely thinks they are.  They're good questions, though, in that they allow a nominee to explain why originalism is not as scary an idea as many people -- Toobin included -- like to suggest].

 (Via Howard Bashman at How Appealing, and also Mark Pulliam).

02/26/2017

Randy Barnett on Richard Lempert on Originalism (with an Added Comment)
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Out of touch law professor criticizes Judge Gorsuch and “originalism”.  It begins:

The Brookings Institution has published a shockingly ignorant critique of Supreme Court nomineee Neil Gorsuch’s commitment to originalism, entitled Is Neil Gorsuch an “Originalist”? Impossible. I use the term “ignorant” advisedly as the author Richard O. Lempert, the Eric Stein Distinguished University Professor of Law and Sociology, emeritus, University of Michigan, is apparently unaware of–and uninformed by–the past 25 years or more of originalist theory, methodology and practice. Originalists actually listened to the critique of originalism made in the 1980s and adjusted their position accordingly. (The term “originalist” was actually coined in 1980 by Paul Brest in a famous critique, The Misconceived Quest for Original Understanding.)

... 

[I]f Professor Lempert’s critique of originalism is what we have in store when the Senate Judiciary Committee hearings commence on March 2oth, it is useful to see how far his criticisms are from his target. .;. [extensive criticism follows].

In addition to Professor Barnett's well-founded criticisms, another move in the essay annoys me: Professor Lempert's central claim is that the original intent cannot be found, but he typically proceeds by rhetorical questions or conclusory statements, without demonstrating that an original meaning is actually unknowable.  For example, he writes:

For the most part, however, we cannot know what the Framers intended. Even if it is clear how the Framers intended the Constitution to be applied to a dispute they could anticipate, there is no way of knowing how they would have applied it to a dispute they could not even dream of. For example, the Constitution gives Congress, not the Executive, the sole power to declare war, but we managed to fight wars in Korea, Vietnam, Afghanistan and Iraq without any formal Congressional declaration. In extending the power to declare war only to Congress, did the Framers intend to provide a constitutional defense to men charged with a refusal to fight in Vietnam? No one can tell.

Actually, I've studied this question closely over the course of many years and I believe I can tell.  The phrase "declare war" included both formal declarations and the uses of force without a declaration.  Thus the President could not start wars.  However, the framers accepted broad statutory authorizations by Congress for presidential war making, for example in the 1798 naval war with France and the 1801 action against Tripoli.  Thus Iraq, Afghanistan and at least most of Vietnam were constitutional under the Constitution's original meaning and no such defense would be permitted.  Korea, on the other hand, was not approved (formally) by Congress and thus was an unconstitutional use of force by the executive.  Would that provide a defense to a soldier refusing to fight?  I think it would.  The exact issue never came up in the founding era, but it follows from the war being unconstitutional that a presidential directive to fight an unconstitutional war would be illegal and thus could not be the basis of prosecution.  In a somewhat analogous situation, the Supreme Court in Little v. Barreme (1804) held that an illegal executive order could not be a defense for a navy commander who was sued for wrongful seizure of a ship.

Perhaps Professor Lempert has studied this issue at length, including reading the evidence that I and others have put forward, and concluded that we are wrong.  A few originalists do take a different view (John Yoo being the most prominent).  But nothing in Professor Lempert's essay suggests that he has thought about the issue for more than a few minutes, and he cites nothing to show that originalism cannot provide an answer -- he simply asserts it.  In his post, Professor Barnett charges Professor Lempert with the fallacy of attacking a straw man; I think we can add assuming his conclusion.

Professor Barnett also asks a question I too have wondered about:

Why would [a person on the Left] possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause? 

(Or, I would add, the declare war clause?)

02/25/2017

John Vlahoplus: Toward Natural Born Derivative Citizenship
Michael Ramsey

John Vlahoplus (independent) has posted Toward Natural Born Derivative Citizenship (forthcoming, British Journal of American Legal Studies Vol. 7) on SSRN.  Here is the abstract:

Senator Ted Cruz's campaign for the Republican presidential nomination again raised the question whether persons who receive derivative citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders and the First Congress to show that they are not natural born under the doctrinal and historical meaning of the term. 

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land. 

The article examines the meaning of the term "natural born" in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable theory of natural born derivative citizenship.

Thanks to Seth Barrett Tillman for the pointer.  I read an earlier draft; the attention to eighteenth-century British sources is impressive.