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45 posts from March 2012

03/31/2012

Tara A. Smith: 'Original' Meaning is Not Objective
Michael Ramsey

Tara A. Smith (University of Texas at Austin -- Department of Philosophy) has posted Originalism's Misplaced Fidelity: 'Original' Meaning is Not Objective (Constitutional Commentary, Vol. 26, p. 1, Fall 2009) on SSRN. Here is the abstract:

Public Understanding Originalism has enjoyed resurgent respect in the past few years, increasingly embraced by scholars from across the ideological spectrum. Its appeal stems from its apparent ability to provide an objective basis for applying the law, overcoming the subjectivism of Original Intent Originalism and the naivete about language in Textualist Originalism. Public Understanding Originalism’s current prestige is thanks in large part to vigorous defenses from Keith Whittington and Randy Barnett, which argue for its unique ability to give faithful effect to the will of the people and to respect the written character of our constitution.

This paper examines these two arguments. Neither vindicates the Originalist conclusion. The Originalists’ understanding of “original” meaning reveals a failure to recognize the conceptual nature of language and the open-ended nature of concepts. Indeed, because it fails to appreciate what objective meaning is, Public Understanding Originalism collapses into the very subjectivism that it seeks to oppose.

03/30/2012

Ronald K. L. Collins: The Speech & Press Clauses of the First Amendment
Michael Ramsey

Ronald K. L. Collins (University of Washington - School of Law) has posted The Speech & Press Clauses of the First Amendment (Delaware Lawyer, Vol. 29, No. 4, pp. 8-11, Winter 2011/2012) on SSRN. Here is the abstract:

Examining the history leading to the adoption of the First Amendment sheds light on the speech and press clauses. 

Interpreting the First Amendment to protect the people against abridgments of free speech and press by all branches of the federal government as well as by state and local government -- despite the initial words, "Congress shall make no law" -- is supported by the history leading to its adoption. Neither Anti-federalists nor Federalists believed that the new Constitution gave the Executive or the Judiciary the power to abridge speech. Drafters saw the Executive's and Judiciary's roles as enforcing and interpreting the laws -- and they could not enforce or interpret a law abridging freedom of speech or press if Congress could not pass one. 

Evidence is scant as to why the drafters chose to use "abridging" rather than "prohibiting," "denying," or another term. A Madisonian reading equates "abridging" with government efforts to "cut short" messages; government-ordered brevity should not be traded for the fullness of freedom.

03/29/2012

Originalism 101
Mike Rappaport

Recently, Larry Solum put up a Legal Theory Lexicon entry on Originalism.  For those who are not familiar with these entries, they are short discussions of legal theory topics for first year law students.  They are quite excellent and are helpful for legal scholars well beyond the first year of law school.

In this post, I would like to react to Larry’s post on Originalism.  This reaction is not in any way a criticism of Larry’s post.  Instead, I use Larry’s discussion as a jumping off point to discuss some issues that he did not address because of the space limitations and to give my take on them.  I have four basic points to make.  

1.  The Origins of Originalism

Larry starts his discussion or originalism with Raoul Berger’s 1977 book, Government by Judiciary.  This is probably the correct place to start for modern originalism.  But I think it is well worth emphasizing that originalism existed at the time of the Constitution’s enactment.  The two leading interpretive approaches in the early years – John Marshall’s interpretation of the Constitution as the fundamental law of the nation and Thomas Jeffersion’s interpretation of it as a compact among the states – were both versions of originalism.  The former was a version of original public meaning; the latter was a version of original intent.

One interesting question is the role of the interpretive rules at the time of the Constitution.  Some theorists claim that these are largly irrelevant to the correctness of originalism.  Others, like John McGinnis and myself, believe that originalism requires that these original interpretive rules be followed.

2.   Positive and Normative Approaches to Originalism

One fundamental distinction in the theory of originalism that Larry discusses is between positive and normative theories of originalism.  The positive type of theory asks what is the meaning of Constitution.  The positive originalist, of course, says it is the original meaning.  The latter type of theory asks what meaning or interpretive approach should be followed.  The normative originalists, of course, says we should follow the original meaning.

But one interesting aspect of originalism is that there are a large number of originalists who are simply positive originalists.  They argue that the meaning of the Constitution is its original meaning, but they do not offer a normative theory for following that meaning and may not even believe that we should.  Gary Lawson, for example, expressly states that he is not willing to offer a normative theory.  Other people claim that originalism is simply a theory of interpretation and does not involve normative questions.  Michael Paulsen seems to argue this way, at least at times.  Larry Alexander and Sai Prakash (my current and former colleagues) also argue that originalism is simply a theory of what it means to interpret a text.  By contrast, my own theory, developed with John McGinnis, offers both a positive and normative theory of originalism.

3.  The New Originalism and Constructionist Originalism

In a section entitled “Original Public Meaning, Larry discusses both the original public meaning approach and the emergence of the new originalism.

While Larry’s discussion is accurate, I would break up the matters differently.  First, I don’t like the term “the new originalism,” even though it is a very popular term.  Part of the problem is that it is a vague.  Sometimes it refers to the original public meaning approach as opposed to the original intent approach.  Other times it refers to people who embrace construction as a distinct enterprise from interpretation.

But some people who endorse original public meaning, do not endorse (or do not appear to endorse) construction.  Similarly, some people endorse construction, but do not endorse original public meaning (such as Keith Whittington).  One might talk of original public meaning as the new originalism and construction as the new new originalism.  But this all gets confusing and it is better to use a finer grained terminology.

Let me try to clarify matters.  There are two issues: whether one favors original intent or original public meaning, and whether one favors construction or not.  One might therefore break this into a two by two matrix with four possibilities, except I can’t figure out how to do this on the blog.  So let me describe it with four lines:

a.  Original intent plus construction –Whittington

b.  Original public meaning plus construction – Solum, Barnett, Balkin

c.  Original intent plus no construction – Raould Berger?

d.  Original public meaning plus no construction – McGinnis & Rappaport, Scalia

Finally, I should note that there are even newer versions of originalism.  For example, there is original methods originalism, the position that John McGinnis and I defend, which has been endorsed by other originalists, such as Steve Calabresi.  I suppose we could be considered the new new new originalists, but that is just silly.

4.  Precedent

Larry also discusses the question of precedent, noting that some originalists accept precedent while others argue that the original meaning should be followed rather than precedent.  One can explore this issue further.  Some originalists have analyzed this issue in terms of general jurisprudence, claiming that originalism necessarily precludes precedent.  Others, however, look at the question by analyzing the constitutional text.  Some, such as Gary Lawson, argue that the Supremacy Clause requires that the constitutional text rather than precedent be followed.  Others, such as John Harrison, John McGinnis, and myself, argue that the constitutional text allows precedent but (for the most part) does not require it.  Instead, the Constitution treats precedent as general common law that is revisable by congressional statute.  Still others such as Lee Strang argue that the judicial power incorporates into the Constitution a particular precedent approach.

If the Constitution does allow precedent, then the question is what type of precedent approach should be employed.  John McGinnis and I advocate generally follow the original meaning except in certain limited situations, such as when a precedent has been widely and strongly accepted or when overturning it would create enormous costs.  I believe that Larry Solum has endorsed following precedent pretty strictly, but his version of precedent involves a much narrower understanding of what precedent covers than the modern version of the doctrine, which largely identifies the precedent with what the court says it is holding.

William N. Eskridge Jr.: The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality
Michael Ramsey

William N. Eskridge Jr. (Yale Law School) has posted The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality (Stanford Law Review Online, Vol. 64, pp. 93-98, 2012) on SSRN. Here is the abstract:

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion — a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation — namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status. This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him.

03/28/2012

Mark Shawhan: Birthright Citizenship and the Civil Rights Act of 1866
Michael Ramsey

Mark Shawhan has posted ‘By Virtue of Being Born Here’: Birthright Citizenship and the Civil Rights Act of 1866 (Harvard Latino Law Review, Vol. 15, 2012) on SSRN.  Here is the abstract:

This Article responds to recent claims that as an originalist matter, the Citizenship Clause of the Fourteenth Amendment does not cover children of undocumented immigrants; it shows this interpretation, whatever its political and popular support, to be wrong on its own historical terms. The Citizenship Clause was instead originally understood to guarantee citizenship for all children born here and subject at birth to the full unmediated sovereign power of the United States, whatever the immigration status of their parents. The Article reaches this conclusion through examining evidence that has not been fully considered before: the debates over the citizenship provision of the Civil Rights Act of 1866. The Citizenship Clause was enacted in order to entrench the citizenship guarantee of the Civil Rights Act. The debates over that guarantee show that Congressional Republicans drafted it to repudiate the consent-based citizenship approach of Dred Scott in favor of the traditional territorial approach of the common law. The Amendment’s restriction of birthright citizenship to children born “subject to the jurisdiction” of the United States was historically understood to exclude only individuals, such as children of foreign diplomats and of members of Indian tribes, outside the scope of full U.S. sovereign authority. All other children are included within the Amendment’s guarantee of birthright citizenship, including children of undocumented immigrants.

Thanks to Will Baude for the pointer, and apologies to Mr. Shawhan for missing it when it was initially posted.  This looks to be an outstanding contribution to the originalist case for birthright citizenship for children of illegal aliens, along with two others from 2011: Matthew Ing’s Birthright Citizenship, Illegal Aliens and the Original Meaning of the Citizenship Clause and Garrett Epps’ The Citizenship Clause: A Legislative History.

Oral Argument: Necessary AND Proper
Michael Ramsey

While trying to avoid overloading on analysis of the health care arguments, in light of a previous comment about the "necessary and proper" clause I thought it worth noting Ilya Somin's highlight of this part of Tuesday's oral argument:

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that
exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

In general, the focus of a number of Justices on a principle to limit federal power seems a good sign for the original constitutional design, regardless of the outcome of the particular case; at least, it reaffirms that there must be some such principle.

Additional comments at Volokh Conspiracy from Orin Kerr and David Bernstein.

And a New York Times profile of celebrity originalist Randy Barnett.

03/27/2012

Three Cheers for Zivotofsky v. Clinton
Michael Ramsey

For decades, two cases made the political question doctrine an ordeal for students and practitioners alike: Justice Brennan’s indeterminate multi-factor analysis in Baker v. Carr and then-Justice Rehnquist’s unexplained plurality pronouncement in Goldwater v. Carter.  These are now refreshingly abandoned in Zivotofsky v. Clinton, Monday’s opinion by Chief Justice Roberts that puts the political question doctrine on a narrower and sounder footing. 

Zivotofsky v. Clinton is the Jerusalem passport case.  Zivotofsky is a U.S. citizen born in Jerusalem, and his parents want his U.S. passport to reflect that he was born in Israel.  State Department policy is to have passports reflect only birth in Jerusalem, without indicating a country, to avoid taking a position on Jerusalem’s contested status.  But a federal statute, Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, directs that in such situations, at the request of the passport holder, the Secretary of State shall issue a passport reflecting birth in Jerusalem, Israel.  Secretary of State Clinton refused to comply with the statute, contending that it unconstitutionally interferes with the President’s power over foreign relations.  The lower courts rejected the parents’ suit without reaching the constitutional issue because they said it was a “political question” – that is, something that should be resolved between the President and Congress without the courts getting involved.  Chief Justice Roberts, writing for a six-Justice majority, flatly rejected that conclusion and directed the lower courts to reach the merits. 

According to Roberts, “political questions” arise in only situations (1) where the Constitution’s text itself directly gives the decision to another branch of government, or (2) where there are no judicially manageable standards under which a court could decide.  Neither situation existed in Zivotofsky, he said.  The constitutional issue involved application of the ordinary tools of interpretation – text, structure, and history – and although it might not be an easy question, it was of the type courts routinely handled.  He stressed that the courts were not being asked to decide on the status of Jerusalem, only to decide which branch – Congress or President – had constitutional authority to resolve that question.  Quoting Marbury v. Madison’s observation that it is “emphatically the province and duty of the judicial department to say what the law is,” the Chief Justice found no basis for the courts not to act in their ordinary role in Zivotofsy.  This strong statement of judicial power and duty is especially notable because the case involved foreign affairs and a high-level dispute between the President and Congress, two circumstances that courts and commentators had previously thought would suggest application of the political question doctrine.

I think the new opinion has it exactly right, on three dimensions.

(1)  It’s the end of the Baker and Goldwater analyses.  No one who teaches or practices in the fields of separation of powers or foreign relations law will mourn the passing of Baker v. Carr.  Justice Brennan’s desultory, meandering discussion, distilled by later courts and commentary into a comprehensive-yet-indeterminate six (or perhaps seven) factor “test,” tormented generations of law students and practitioners, whose exams and briefs dutifully plodded through each of its factors to no apparent purpose or effect.  Equally frustrating, for the opposite reason, was Justice Rehnquist’s plurality in Goldwater, the Taiwan treaty termination case, which concluded that the political question doctrine was particularly “compelling … because [the case] involves foreign relations” – with no explanation why that should be, and no acknowledgement that in other cases dating to the founding era the Court had decided the merits of foreign relations cases without even considering the political question doctrine.

Roberts' opinion treats these discussions with the respect they deserve: none.  Baker, which commentators had regarded as the leading case in the field, rates barely a mention – and its multiplicity of factors is simply ignored.  It is left to Justice Sotomayor in concurrence and Justice Breyer in dissent to once again (but perhaps for the last time!) slog through the six (or was it seven?) factors and reach opposing results.  And Rehnquist’s ipse dixit that foreign affairs disputes are uniquely nonjusticiable is (in a foreign affairs case) not cited at all.

(2) The new test is the right oneMarbury, Roberts’ opinion emphasizes, declares that it is the province and duty of courts to saw what the law is.  I think that’s right, as an originalist matter (if you accept that Marbury’s version of judicial review is correct, as I do).  Judges swear an oath to uphold the Constitution; upholding the Constitution includes enforcing statutes that are constitutional and refusing to enforce ones that aren’t.  That duty isn’t subject to a multi-factor balancing test or a foreign affairs exception. 

The Baker factors most conspicuously omitted in Zivotofsky involve the supposed need that the judiciary not embarrass or contradict the executive.  But sometimes executives need to be embarrassed or contradicted.  An indeterminate test that in effect allows courts to refrain from deciding (if they feel like it) is the opposite of the rule of law and the opposite of an executive under law.  If we suppose that the Constitution envisions an executive under law, the political question doctrine as formulated in Baker and (especially) Goldwater seems singularly inappropriate.

Nonetheless, courts might be relieved of their constitutional duty to decide in two circumstances: if the Constitution directly places the power to decide a particular issue elsewhere, or if the source of law invoked in the case is so vague or aspirational that there is simply no rule of law to apply.  These correspond to the two situations Roberts lists:

In general, the Judiciary has a responsibility to decide cases properly before it, even those it “would gladly avoid.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Our prece­dents have identified a narrow exception to that rule, known as the “political question” doctrine. See, e.g., Ja­pan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221, 230 (1986). We have explained that a controversy “involves a political question . . . where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’” Nixon v. United States, 506 U. S. 224, 228 (1993) (quoting Baker v. Carr, 369 U. S. 186, 217 (1962)). In such a case, we have held that a court lacks the authority to decide the dispute before it.

To be sure, neither category is itself easily defined.  But they are (unlike Baker and Goldwater) theoretically defensible, and they are (also unlike Baker and Goldwater) “narrow exceptions.”  The new approach thus goes a long way toward restoring the rule of law in political question analysis.

(3) The opinion applies the new test firmly and correctly.  The opinion’s attempt to narrow and focus the doctrine would be for nothing if it then went on to find a political question in the particular case, but Roberts again has it exactly right:

The Secretary contends that “there is ‘a textually de­monstrable constitutional commitment’” to the President of the sole power to recognize foreign sovereigns and, as a corollary, to determine whether an American born in Jerusalem may choose to have Israel listed as his place of birth on his passport. Nixon, 506 U. S., at 228 (quoting Baker, 369 U. S., at 217); see Brief for Respondent 49–50.  Perhaps. But there is, of course, no exclusive commitment to the Executive of the power to determine the constitu­tionality of a statute. The Judicial Branch appropriately exercises that authority, including in a case such as this, where the question is whether Congress or the Executive is “aggrandizing its power at the expense of another branch.” Freytag v. Commissioner, 501 U. S. 868, 878 (1991); [citing additional cases].  

Our precedents have also found the political question doctrine implicated when there is “‘a lack of judicially discoverable and manageable standards for resolving’” the question before the court. Nixon, supra, at 228 (quoting Baker, supra, at 217). Framing the issue as the lower courts did, in terms of whether the Judiciary may decide the political status of Jerusalem, certainly raises those concerns. They dissipate, however, when the issue is recognized to be the more focused one of the constitution­ality of §214(d). Indeed, both sides offer detailed legal arguments regarding whether §214(d) is constitutional in light of powers committed to the Executive, and whether Congress’s own powers with respect to passports must be weighed in analyzing this question. . . .   Resolution of Zivotofksy’s claim demands careful examination of the tex­tual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the pass­port and recognition powers. This is what courts do.

As a result, statutory and constitutional questions about foreign affairs are like statutory and constitutional questions in other fields.  They are committed to the judiciary, and the judiciary has the tools to decide them.  Again, that sounds exactly right to me.

I would add that early post-ratification history stongly supports the outcome here.  Courts routinely adjudicated foreign affairs/separation of powers cases arising from statutes and the Constitution, in cases like Little v. Barreme (1804) and Brown v. United States (1814).  In contrast, the leading early political question case in foreign affairs, United States v. Palmer (1818), held that courts should follow the political branches’ determination in deciding whether a revolutionary government in South America was legitimate; Chief Justice Marshall wrote for the Court that “such questions are generally rather political than legal in their character” and to decide otherwise “would transcend the limits prescribed to the judicial department.”  Unlike Little and Brown (and Zivotofsky), Palmer did not present a statutory or constitutional question. (Note: cites and more complete discussion of the early cases are in Chapter 16 of The Constitution’s Text in Foreign Affairs, which suggests an approach similar to what the Court adopted in Zivotofsky; I made some parallel comments specifically on Zivotofsky at the time it was argued, here).

In sum, Zivotofsky reflects a quiet restoration of the rule of law and formal separation of powers in an area once lost to indeterminate judicial policymaking.  It is, I think, characteristic of Chief Justice Roberts’ approach in a broader sense.

03/26/2012

Joel Alicea on Originalism in Congress
Michael Ramsey

Joel Alicea (Harvard Law School) has posted Stare Decisis in an Originalist Congress (Harvard Journal of Law and Public Policy, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract:

With presidential candidates and members of Congress calling upon the political branches to reassert their role as constitutional interpreters, there is an urgent need to explore what it would mean for Congress to take constitutional interpretation seriously. In particular, if Congress were originalist, how would it go about its interpretive task? I have previously argued that originalist theory requires Congress to be originalist in its interpretation of the Constitution. This paper examines whether an originalist Congress would owe deference to the constitutional judgments of previous congresses. In other words, should a form of stare decisis prevail in an originalist Congress?

This article continues Mr. Alicea's project on originalism in Congress, begun in this article: Originalism in the Legislature (Loyola Law Review, vol. 56, 2010).  Here is the abstract: 

While the extent to which Congress ought to be involved in interpreting the Constitution has been the subject of scholarly debate in recent years, the question of how Congress should interpret the document has been overlooked. This paper examines the justifications underlying several schools of originalist thought to tease out what these schools have to say about congressional constitutional interpretation. When the major originalist theories are scrutinized, the logical conclusion is that Congress ought to be originalist when engaging in constitutional interpretation. The paper thus breaks new ground in pointing out this radical implication of originalist thought, but its novel exploration of congressional interpretive methods makes it highly relevant to nonoriginalist scholars as well.

And he has a related article in National Affairs: An Originalist Congress? (Issue 6, Winter 2011).  From the article:

What Congress needs as a companion to its constitutionality pledge [that is, the congressional Republicans' recent pledge to cite the specific constitutional authority for each bill] is a theoretically coherent and legitimate method of constitutional analysis. Legislators of a more conservative bent — including many members of the new Republican House majority — might be most inclined to turn to "originalism": the notion that the Constitution's interpreters should adhere to the meaning of the text as understood by the men who enacted it. Depending on one's particular brand of originalism, the understanding that matters belongs to either the framers of the document or the people who ratified it; the key point, however, is that an originalist refuses to substitute his own views on what the Constitution should mean for how the document was originally understood.

But adopting an originalist approach to congressional constitutional interpretation is no simple matter, because conventional wisdom (even among many originalists) places the authority to determine the Constitution's meaning solidly in the hands of the courts, not the legislature. Members of Congress who would claim to be originalists will first need to decide what exactly that means in a legislative context — and whether Congress ought to assert itself as a constitutional interpreter in its own right.

Alicea absolutely owns this topic -- no one is going to be able to write in this area without addressing his analyses.  That's an amazing thing to say about someone who's a second-year law student.

03/25/2012

A Follow-Up on the Health Care Debate
Michael Ramsey

Randy Barnett has this post in response to various commentators' defenses of the health care law, which among other things makes this important point:

… Justice Scalia’s concurring opinion in Raich in no way [binds] him to uphold the mandate.… Justice Scalia’s argument concerned only the meaning of the word “necessary” in the Necessary and Proper Clause, whereas our arguments [in the brief challenging the health care law] accept this analysis while stressing the meaning of “to carry into execution” and “proper.”  As his opinion in Raich says absolutely nothing about these portions of the Necessary and Proper Clause, Justice Scalia is neither committed to accepting or rejecting our arguments.  Perhaps most importantly, it is Justice Scalia who, above all Justices, has most greatly stressed (in Printz) that the issue of “proper” is distinct from that of “necessary.”

I think this goes to the heart of the debate, at least from a textualist/originalist perspective, in a way few commentators appreciate.  As I argued  earlier, I think one can show (especially in light of Scalia's Raich opinion) that the mandate is "necessary ... for carrying into Execution" Congress' power to regulate interstate commerce.   As Professor Barnett indicates, the key is:  what is "proper"?

RELATED:  Damon W. Root: The 4 Best Legal Arguments Against ObamaCare (#1 is "The Individual Mandate Violates the Original Meaning of the Constitution").

Jeffrey A. Pojanowski: Statutes in Common Law Courts
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) has posted Statutes in Common Law Courts (Notre Dame Legal Studies Paper No. 12-55) on SSRN. Here is the abstract:

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal-law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in the theory of statutory interpretation. While debate about federal statutory interpretation has settled into a holding pattern, scholars have begun to consider whether state courts should interpret statutes differently than federal courts and, if so, the implications of that fact for federal and general interpretation.

This article aspires to theorize this emerging field as a whole while making progress on one of its most important parts, namely the question of the difference that common law powers make to statutory interpretation. This inquiry takes us beyond the familiar moves in federal debates on interpretation. Rather than just reading the United States Reports and its commentators, courts addressing this question would also benefit from sources such as the administrative law literature on the choice between rulemaking and adjudication, federal doctrine on preemption, and decisions in commonwealth nations like the United Kingdom and Australia. These sources suggest an interpretive method that defies both orthodox textualism and purposivism, one that may permit courts to extend statutory rules and principles by analogy while prohibiting courts from narrowing the scope of statutes in the name of non-textual purpose or equity. This common law/parliamentary hybrid accounts for state-court practice at the intersection of statutes and common law that recent work on state-court textualism neither confronts nor explains. This model also informs federal theorization, both by challenging received wisdom about the relationship between common law and statutes and by offering guidance to federal courts for when statutes and enclaves of federal common law meet.

The framework this article constructs to approach the common law question can also organize the fledgling field of state-federal comparison more generally. With this framework, we can begin to sort out the conflicting and overlapping strands of argument already in the literature while also having a template for future inquiries. At the same time, this framework can help us think about intersystemic interpretation with greater rigor — an advance that can aid state and federal jurisprudence alike.

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal-law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in the theory of statutory interpretation. While debate about federal statutory interpretation has settled into a holding pattern, scholars have begun to consider whether state courts should interpret statutes differently than federal courts and, if so, the implications of that fact for federal and general interpretation.

This article aspires to theorize this emerging field as a whole while making progress on one of its most important parts, namely the question of the difference that common law powers make to statutory interpretation. This inquiry takes us beyond the familiar moves in federal debates on interpretation. Rather than just reading the United States Reports and its commentators, courts addressing this question would also benefit from sources such as the administrative law literature on the choice between rulemaking and adjudication, federal doctrine on preemption, and decisions in commonwealth nations like the United Kingdom and Australia. These sources suggest an interpretive method that defies both orthodox textualism and purposivism, one that may permit courts to extend statutory rules and principles by analogy while prohibiting courts from narrowing the scope of statutes in the name of non-textual purpose or equity. This common law/parliamentary hybrid accounts for state-court practice at the intersection of statutes and common law that recent work on state-court textualism neither confronts nor explains. This model also informs federal theorization, both by challenging received wisdom about the relationship between common law and statutes and by offering guidance to federal courts for when statutes and enclaves of federal common law meet.

The framework this article constructs to approach the common law question can also organize the fledgling field of state-federal comparison more generally. With this framework, we can begin to sort out the conflicting and overlapping strands of argument already in the literature while also having a template for future inquiries. At the same time, this framework can help us think about intersystemic interpretation with greater rigor — an advance that can aid state and federal jurisprudence alike.