The Originalism Blog

Originalism and Sex Discrimination II: Expected Applications and the Meaning of CasteMike Rappaport

In my first post, I summarized Calabresi and Rickert’s argument.  In this post, I want to criticize their interpretation of my own work and to suggest a meaning of the 14^th Amendment that they appear to have overlooked.

Calabresi and Rickert argue in favor of an original public meaning approach.  They reject the original expected applications of the enactors as not being binding.  Thus, they conclude that the original public meaning of section 1 of the 14^th Amendment prohibited caste legislation.  The fact that most people at the time expected section 1 not to prohibit sex discrimination (which we now understand is a form of caste legislation) does not control section 1’s original meaning.

Calabresi and Rickert contrast their position with my position, adopted with John McGinnis.  See here, which they cite, and here.  Unfortunately, Calabresi and Rickert have misunderstood our position.  They write: “On this point we diverge from Professors McGinnis and Rappaport, who argue that  expected applications are fairly conclusive of original public meaning”  (emphasis added). 

But we do not believe expected applications are binding or “fairly conclusive of original public meaning.”  Instead, we believe that the semantic meaning of the Constitution is binding.  We merely believe that expected applications provide significant evidence of the semantic meaning.  The enactors of a constitutional provision would normally have a good understanding of its meaning and those applications should be consulted by interpreters and taken very seriously.  That does not mean they could not be wrong.  It just means we shouldn’t be that quick to reject the understandings reflected by their expected applications.     

As we stated in the article that Calabresi and Rickert cite:

The original meaning of the words would not normally be defined by the expected applications, but instead by the meaning that people at the time would understand the words to have. But some of the best evidence of that meaning would be the expected applications, especially when widely held. Words are slippery things and dictionary definitions do not pin down their political meanings any more than they pin down the meaning they would have in recipes, technical manuals, or haute couture. Context is important and the recovery of context can be greatly enhanced by considering how the words would have been applied in the sociopolitical usage of the day. . . .  

Using expected applications is particularly important for modern interpreters, because usage may have changed in dramatic or subtle ways since the Framers’ day.  Expected applications are especially useful because they caution modern interpreters against substituting their own preferred glosses on meaning for those that would have been widely held at the Framing. . . .  

Reliance on expected applications is even appropriate in cases when a constitutional provision is best understood as adopting a general understanding or principle.  The language of a provision may appear to adopt a general principle, but verbal formulations often do not tell us which particular variation of a principle was intended.  For example, the meaning of the Equal Protection Clause might suggest an anticaste principle, but it may not clearly indicate the version of the principle that was adopted – to what extent, and under what circumstances, the principle allowed distinctions between different groups.  The expected applications will help us determine which version of the principle was adopted.

(emphasis added).  While we penned these words before Calabresi and Rickert’s article was written, we believe they have significant application to their article.

Calabaresi and Rickert propose an interpretation of section 1 of the 14^th Amendment that is often informally defended.  It takes the following form:  

1. Section 1 prohibits caste legislation

2. Caste legislation refers to legislation that makes arbitrary distinctions

3. While the 14^th Amendment enactors did not believe sex discrimination was arbitrary, their understanding of the facts (or of morality, in a version different than Calabresi and Rickert’s) was mistaken

4. These enactors understanding of the facts is not binding.

5. Therefore, section 1 prohibits sex discrimination.

This argument may be correct, but it is not the only way to understand the text and history.  The original expected applications that section 1 did not prohibit sex discrimination may be evidence that the framers were using a different understanding of equality or caste.  As Ed Whelan argues in a post on Calabresi and Rickert, there is some evidence that this is true.  Caste at the time, as now, often refers to a system of hereditary privileges.  In fact, Calabresi and Rickert cite to discussions that understand caste in hereditary terms.  In fact, the examples of caste that Calabresi and Rickert highlight – the castes of India, the classes of feudal Europe, and race in the United States – are all hereditary.  Sex, however, is not a caste in this hereditary sense in that women give birth to both males and females.  

Many modern interpreters have been quick to discard the evidence of expected applications.  But these applications may not be erroneous understandings of the provisions enacted.  Instead, they may point us towards an original meaning that we might have overlooked.

Originalism and Sex Discrimination I: IntroductionMike Rappaport

Steven Calabresi and Julia Rickert have written a provocative piece that has generated significant attention arguing that the 14^th Amendment, as modified by the 19^th Amendment, prohibits sex discrimination.  Steve is both my friend and a former classmate.  Steve has also made very significant contributions in a variety of areas to the Originalist Renaissance. 

The Calabresi and Rickert paper raises a host of questions.  Initially, at least, I want to discuss some methodological questions raised by the paper in a series of posts.  In addition, Jack Balkin has written an interesting criticism of the paper, which also raises some interesting question.  I will address Balkin’s post as well.   

I should start out this series of posts by saying that I don’t have a firm position on whether the original meaning of the 14^th Amendment covers sex discrimination.   Having such a position would require a clearer understanding of the Amendment than I think the current scholarship generates.  See here.  For what it is worth, I believe that if the 14^th Amendment did not prohibit sex discrimination, then some type of Equal Rights Amendment would have passed in the 1970s had it not been for nonoriginalism.  See here.

Let me start by briefly summarizing Calabresi and Rickert’s argument. 

1. Calabresi and Rickert argue that section 1 of the 14^th Amendment protects against caste legislation.  While most people at the time of the 14^th Amendment would not have regarded legislative distinctions between men and women as caste legislation, those expected applications are not binding.  Under modern understandings of the facts, these distinctions are in fact caste distinctions.   

2. The problem with reading section 1 of the 14^th Amendment to restrict sex discrimination is that section 2 expressly draws a sex based distinction, stating that abridgements of the right to vote of male citizens will lead to a reduction in the representation of states that do so.  If section 2 draws a distinction between males and females, then perhaps section 1 should not be read to prohibit sex discrimination as to civil rights.

3. The passage of the 19^th Amendment changes the meaning of the 14^th Amendment.  First, the 19^th Amendment eliminates the textual discrimination between men and women in section 2.  Moreover, rights stand in a hierarchy, with political rights at the apex.  If the 19^th Amendment forbids discrimination on the basis of the primary political right – voting – that implies that discrimination on the basis of civil rights should also be prohibited.

In my next post, I will begin my discussion of the originalist methodology of this argument by discussing the role of expected applications.

Originalism on the WebMichael Ramsey

At Slate, David Gans & Doug Kendall: The Meaning of Equal – Conservative originalists are rethinking their narrow reading of the 14th Amendment.

Federalism and Foreign Affairs: Arizona v. United StatesMichael Ramsey

Yesterday the Supreme Court agreed hear Arizona v. United States, the challenge to the controversial Arizona law regarding illegal aliens.  (From SCOTUSBlog, details here, analysis from Lyle Denniston here, discussion in the Community here).  Most observers see this as an immigration case, but it has potentially broader significance for preemption of state laws under Article VI.

At Opinio Juris, leading immigration and foreign affairs law scholar Peter Spiro observes:

This will be a big decision at the intersection of immigration and federalism, probably the biggest since [the Court's] 1942 decision in Hines v. Davidowitz. It could also have important implications for foreign relations federalism.  My guess is that the Court is going to split the difference here.  I think it’ll uphold a key provision requiring law enforcement to undertake immigration status determinations, but it will nullify another which in effect makes undocumented status a crime under state law (it isn’t under federal).  But it will raise the overall bar for preemption, moving away from Hines’ hair-trigger standard, even in such sensitive areas as immigration an[d] foreign affairs.

If Professor Spiro’s prediction is right, my sense is that the result will move preemption law a bit back toward where, originally speaking, it should be. 

Preemption should be fairly straightforward.  State laws that conflict (explicitly or implicitly) with constitutional federal laws are preempted.  State laws that don’t conflict with constitutional federal laws are not.  If Congress wants to preempt state law, it’s easy enough to write that result into the applicable statute.  But in the past the Court has indulged in a confusing array of textually and historically unsupported speculations about federal structure and congressional purposes that go well beyond anything that's in either Article VI or in the relevant statute.  In foreign affairs, in particular, the Court has sometimes found a presumption in favor of preemption, either because foreign affairs is a uniquely national area as a matter of constitutional structure or because it assumes Congress would want broad preemption – again due to the nation-wide implications – even if Congress hasn’t said so directly.  None of this seems necessary or appropriate.  Congress is perfectly capable of protecting itself from the states.

Tom Goldstein: Supreme Court to Solidify Confrontation Clause Holdings?Michael Ramsey

At SCOTUSBlog, Tom Goldstein reports on last week's Supreme Court oral argument in Williams v. Illinois, concluding that there appear to be at least five votes to continue the strong confrontation clause protections launched by Justice Scalia in the 2004 decision Crawford v. Washington.  Goldstein begins:

... Williams v. Illinois [is] a follow-up to [the Court's] decision in Bullcoming v. New Mexico and the recent line of cases dating to Crawford v. Washington more robustly applying the Confrontation Clause.  As discussed in my preview of the case, Williams presents the question whether an expert’s testimony about the substance of an analyst’s report violates the Confrontation Clause if the government does not make the analyst available for confrontation.

Concurring in Bullcoming, Justice Sotomayor (who provided a critical fifth vote in that case) had reserved the question in Williams.  But the tea leaves of the argument indicate Williams is going to win, either six  to three or five to four.  Four members of the Bullcoming majority (Justices Scalia, Ginsburg, Sotomayor, and presumably Thomas) will be joined by Justice Kennedy (who notably wrote the dissenting opinion in Bullcoming) and very likely Justice Kagan.  Justices Breyer and Alito will dissent, very likely joined by the Chief Justice.

Anthony Johnstone: A Madisonian Case for DisclosureMichael Ramsey

Anthony Johnstone (University of Montana School of Law) has posted A Madisonian Case for Disclosure (George Mason Law Review, Vol. 19, No. 2, 2012) on SSRN. Here is the abstract:

Notwithstanding its secondary holding that there is “no constitutional impediment” to requiring disclosure of those who fund independent campaign expenditures, the case for campaign finance disclosure is not as clear as Citizens United would suggest. The Supreme Court tends to assume rather than explain the "informational interest" that is cited to support disclosure. Without a clear constitutional justification, that interest does less than it might to define the means and ends of disclosure policy, and to defend that policy against constitutional challenge.

This article excavates the existing constitutional foundations for campaign finance disclosure, and roots the informational interest in a republican idea of corruption as factionalism that predates the narrow transactional conception of corruption dominant in contemporary political speech debates. That idea, explicated by James Madison in the Federalist and embodied in the Constitution, motivates an antifactional informational interest both broader and narrower than is presently conceived. It is broader in the sense that informing voters through disclosure of a wide range of interests in political campaigns is critical to the full function of the Constitution’s antifactional machinery. It is narrower in the sense that the interest is in disclosing interests—factions—and not other information that voters may find valuable for other reasons. Rooted in the broad importance and narrow purpose of antifactionalism, a deeper informational interest may better serve the First Amendment's republican values without violating its libertarian command.

An antifactional reconception of the informational interest may help solve, or at least clarify, several puzzles in the First Amendment doctrine of campaign finance law. First, targeting interests instead of individuals for disclosure relieves the latent tension generated by the Court’s embrace of political anonymity in McIntyre. Second, understanding corporations as factions provides a sounder basis on which to distinguish corporate political actors from others after Citizens United. Third, the republican concern about faction offers a coherent rationale for drawing lines between domestic and foreign political speakers, whether the “foreigners” come from a different district, a different state, or a different country. Fourth, by recognizing corruption as the private benefit of factions at the expense of the general welfare, rather than the personal benefit of an officeholder at the expense of a faction, the antifactional interest calls for at least as robust a disclosure system for issue advocacy as it does for express advocacy of candidates.

More on Andrew McCarthy, Senator Paul and Executive Detention in the NDAAMichael Ramsey

At NRO, Andrew McCarthy has a further response to Senator Rand Paul on the constitutionality of the detention provisions in the Senate’s version of the 2012 National Defense Authorization Act (NDAA), which Senator Paul voted against and which McCarthy defends.  (See here for an earlier post on this debate).

McCarthy’s best argument, which is worth serious attention, is that the executive detention of U.S. citizens that the NDAA allows isn’t really extrajudicial.  Rather, because of the access to habeas corpus for terrorist suspects mandated by the U.S. Supreme Court in Hamdi v. Rumsfeld and Boumediene v. Bush, U.S. citizen suspects detained under the NDAA would have their cases reviewed by a federal court.  Thus concerns over unchecked executive detention are misplaced, because “the wrongly detained citizen would receive elaborate due process.”  (McCarthy also argues in the first part of his post that the executive, and especially the FBI, isn’t likely to abuse any discretion given them). 

McCarthy’s right, to an extent, about habeas review, but I don’t think it solves the problem as an originalist matter.  Habeas review, as contemplated by Hamdi and Boumediene, doesn’t encompass the core constitutional rights of the criminal process, including jury trial and confrontation of witnesses.  So it does not redress the central constitutional concern, if one reads the due process clause to require criminal conviction for extended detention.

McCarthy continues:

[I]t is worth remembering that the terms “due process” and “civilian trial” are not synonymous. Due process is simply the process that is due under the circumstances. In wartime, it is simply not necessary to grant combatants full-blown civilian trials — which would be an intelligence coup for our enemies — in order to ensure that Americans are not arbitrarily detained.

That’s the key to his argument, but I’m not at all sure it’s right (and he doesn’t give originalist arguments in support).

First, the NDAA appears to allow detention not just for “combatants” but for anyone who supports al Qaeda and related groups, even as a non-combatant.  Here’s the Senate language (at pp. 359-60) (Note: in an earlier post I said it allows detention of persons who  “abet” al Qaeda – that’s not the exact language, but it amounts to the same thing).  

Detention is allowed for

[Sec. 1031](2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

That seems pretty clearly to mean non-belligerent acts by non-members are covered.

Second, it’s far from clear, as an originalist matter, that the requirements of due process are relaxed to the extent McCarthy suggests, even for U.S. citizens suspected of belligerency.  In Hamdi the Supreme Court said due process requirements could be relaxed for U.S. citizens captured on the actual battlefield.  Even this may have been wrong as an originalist matter (Justice Scalia dissented).  But the Senate’s version of the NDAA doesn’t limit itself to battlefield captures (or to captures abroad).  I would need to see some strong evidence that "due process of law" means something less than ordinary criminal process in this context (and, as I noted previously, the Constitution's treason clause seems to suggest that ordinary criminal process is required).

Thus McCarthy still hasn’t convinced me that Boumediene’s habeas review can substitute for criminal trial in the case of U.S. citizens not captured on the battlefield.

Originalism in the Blogs: Guns in Early AmericaMichael Ramsey

At Volokh Conspiracy, Eugene Volokh corrects some history about gun ownership:  A Cautionary Note for Readers of “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. Rev. 1521 (2010).  (The original article, by Professor Pratheepan Gulasekaram, is here).

I read with interest “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article’s historical assertions.

The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls.  ....

Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites, women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article’s assertions....

Professor Volokh has more at the The Legal Workshop, here.

David Kopel piles on:  Laws about gun ownership in early America (“[Professor Gulasekaram's] article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.”).  Kopel follows through with some historical illustrations.

And Volokh has further thoughts here: Factual Errors Tangential to an Article’s Main Thesis.

I appreciate [Professor Gulasekaram's] point [in a response to Professor Volokh] that the factual errors that I believe I’ve found are tangential to the original article’s thesis. I think the author is likely right on that score.

But the problem is that law review articles are often cited as support for precisely such tangential assertions. Judges, professors, student authors, and lawyers who are looking for a discussion of some topic A will often find that discussion as a small section of another article on a related but different topic B. They will then gladly rely on the article’s assertions about A, without any regard to their being tangential to the cited article’s broader point. The important thing for the author of the new piece is that the material he’s found is important to his piece, not that it is important to the original piece that he is citing.

What worried me about the NYU article, and what led me to write the Cautionary Note, is not a concern about whether the article’s main thesis is inadequately supported. Rather, it’s a concern that factual errors, however tangential to the article, may end up being repeated by other authors, who are relying on the NYU article’s assertions.

Originalism in the Blogs: Jack Balkin on Calabresi & RickertMichael Ramsey

At Balkinization, Jack Balkin has a long and interesting post critiquing Calabresi & Rickert's Originalism and Sex Discrimination.  From the introduction:

There are many interesting things about this piece. In this post, however, I want to focus on Calabresi and Rickert’s version of original meaning originalism. Calabresi and Rickert note early on that they agree with me that original meaning is not the same thing as original expected applications. This is a central claim of New Originalists like Randy Barnett, Larry Solum, and myself. At the same time, Calabresi and Rickert’s version of original meaning originalism differs from New Originalist approaches in important respects. Equally important, it also differs from the original meaning originalism of scholars like Michael McConnell, John McGinnis, and Michael Rappaport, as well as that championed by jurists like Antonin Scalia and Clarence Thomas.

... [A]s I shall now try to show, the way [Calabresi and Rickert] articulate original meaning orignalism—“thicker” than framework originalism but “thinner” than the approaches of McConnell and McGinnis and Rappaport—creates puzzles that they don’t adequately address.

Andrew McCarthy versus Rand Paul on Executive DetentionMichael Ramsey

At NRO, Andy McCarthy goes after Senator Rand Paul, to some extent on originalist grounds, on the constitutionality of the National Defense Authorization Act (NDAA) recently passed by the Senate.  Senator Paul responds here, and comes off best, in my view.

The issue is the President’s ability to detain without trial U.S. citizens suspected of supporting terrorism.  Under the Senate version of the NDAA, as I understand it, U.S. citizens can be detained if the President finds they are engaged in terrorism or “abetting” terrorism.  (Analysis at Lawfare by Benjamin Wittes here and Robert Chesney here.)  Senator Paul opposes the NDAA on constitutional grounds; McCarthy thinks the Senator "needs much better guidance about how the Constitution works in wartime."

The due process clause of the Fifth Amendment requires that no person be deprived of “liberty … without due process of law.”  Under ordinary circumstances, I think no one would contend that extrajudicial executive detention, even if authorized by Congress, qualifies as due process of law.  To be sure, as an original matter that protection likely does not extend to aliens abroad (see here), and it possibly does not extend to U.S. citizens fighting for the enemy and captured on the battlefield (that was the conclusion of the 2004 Hamdi v. Rumsfeld case, although Justice Scalia dissented, and any serious originalist would need to contend with the substance of his dissent before accepting Hamdi as rightly decided).

But as Senator Paul explains, the Senate version of the NDAA allows extrajudicial executive detention of U.S. citizens (a) not captured on the battlefield and (b) not claimed to be enemy combatants.  The latter point arises from the “abetting” language: a non-combatant can “abet” terrorism by, at minimum, providing material support intending to further terrorist goals, even though that support might be only in the form of money or other non-lethal assistance.  McCarthy does not show any originalist evidence for the proposition that (alleged) non-combatant support for the enemy allows extrajudicial executive detention.

Indeed, another provision of the Constitution strongly suggests otherwise.  Article III, Section 3, provides that “Treason against the United States, shall consist only of levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.  No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt act, or on Confession in open Court.”

The plain import of the treason clause is that the charge of “adhering to [the U.S.’s] enemies, giving them aid and Comfort” (which equates to “abetting” those enemies) must be proven in court, under constitutionally specified procedures.  To allow the President extrajudicially to imprison persons suspected of such an offense is to end-run the treason clause.  (And, as Justice Scalia explains in his Hamdi dissent, the framers were especially concerned about extrajudicial executive detention).

Against this, McCarthy invokes not originalist sources (I believe he has none) but three modern court decisions: Hamdi (manifestly not relevant to non-battlefield detentions), In re Quirin, and the court of appeals decision regarding Jose Padilla.  Quirin is the World War II Nazi saboteurs case, allowing a military commission (rather than a court) to proceed against a U.S. citizen who had enlisted in the German army and sneaked into the U.S. to commit acts of sabotage.  It may well have been wrongly decided (the Supreme Court of the World War II era wasn’t great at enforcing the Constitution against the national government), but in any event it (like Hamdi) doesn’t encompass people who aren’t combatants.  Similarly, the Padilla decision is questionable on originalist grounds and involved a person at least accused of being a combatant.  Again, the most constitutionally egregious part of the NDAA is that it allows executive detention of U.S. citizen non-combatants.  Thus the better precedent (if precedent rather than originalist analysis is preferred) is the Civil War-era decision Ex Parte Milligan, which required judicial process for non-combatants captured outside the battlefield and accused of assisting the enemy in wartime.

These are difficult issues.  But McCarthy’s bluster (“Rand Paul: Libertarian Extremist”) seems wholly inappropriate.  Unless McCarthy has strong originalist evidence, which isn’t provided in his lengthy article, I think one must regard his case as, at best, unproved.  The Constitution’s general rule, apparent in the Fifth Amendment and the treason clause, is that judicial process is required in the case of U.S. citizens accused of assisting the enemy.  Originalists should be open to arguments for exceptions based on 18th-century practice, but I’m not aware of any.  Senator Paul's constitutional concerns about the NDAA thus seem well grounded.