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45 posts from March 2012


Two from Randy Barnett
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) has posted two interesting originalist-oriented essays on SSRN. 

The first is  Interpretation and Construction (Harvard Journal of Law and Public Policy, Vol. 34, 2011) on SSRN. Here is the abstract:

    In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined.

    This essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”— for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution.

The second is Does the Constitution Protect Economic Liberty? (Harvard Journal of Law and Public Policy, Vol. 35, 2012) on SSRN. Here is the abstract:

    The author defends the proposition that the Court in Lochner v. New York was right to protect the liberty of contract under the Fourteenth Amendment. He does not defend its use of the Due Process Clause to reach its result. As he explains, the Court should have been applying the Privileges or Immunities Clause. Nor does he contend that the Court was correct in its conclusion that the maximum hours law under consideration was an unconstitutional restriction on the liberty of contract. Although the statute may well have been unconstitutional, the author does not take the time to evaluate that claim.

    Instead, this article focuses on whether the Constitution of the United States protects economic liberty. To clarify the issue, the author begins by defining “economic liberty” as the right to acquire, use, and possess private property and the right to enter into private contracts of one’s choosing. If the Constitution protects these rights, then the Constitution does protect economic liberty. The evidence that the Constitution protects rights of private property and contract is overwhelming.


Originalism in the Blogs
Michael Ramsey

Saul Cornell goes a couple of rounds with Mike Rappaport and experiences total meltdown.  Mary Dudziak comments at Legal History Blog: How Not to Criticize Originalism.

My take:  Professor Cornell had some interesting points to make about eighteenth-century interpretation in the second half of this article, but he's taking this debate way too personally, and it shows in a number of respects.  Saul, it's an academic discussion.  The world will little note nor long remember what we say here.

In the Health Care Case, Could Federalism Lose the Battle and Win the War?
Michael Ramsey

In the challenges to the health care act being argued to the Supreme Court next week, most commentators assume that the Court will either advance federalism by striking down the law’s “individual mandate” (the requirement that everyone purchase health insurance) or deal a blow to federalism by upholding the mandate.  I want to explore an alternate scenario: that the Court might enhance federalism by upholding the mandate. 

My suggestion builds on the observation that the individual mandate seems a better case for national regulation than many other things the national government does.  Health insurance is a national market and arguably the individual mandate is an essential (or at least crucial) component of Congress’ regulatory scheme.  As Andrew Koppelman puts it at Balkinization,

Congress has the power, under the Commerce Clause, to regulate insurance, and so to mandate that insurers cover people with preexisting medical conditions. … Under the Necessary and Proper Clause, it may choose any convenient means to carry out this end. The  mandate [to purchase insurance] is clearly helpful, and may even be absolutely necessary, to Congress’s purpose. Therefore it is constitutional. Full stop.

True, the mandate is (essentially) unprecedented in compelling unwilling individuals to enter the market to buy something they don’t want.  But it’s not obvious as an original constitutional matter why that line in particular is one Congress cannot cross.

The bigger problem for federalism, from an originalist perspective, is that Congress regulates all sorts of local activity that doesn’t have a close connection with a broader regulation of the national market.  Consider the recent case Sackett v. EPA, where the Court considered how property owners could challenge an EPA order relating to how they used their land.  (The Sacketts wanted to build a house on their property; the EPA objected because it – somewhat dubiously – considered the property a “wetland” subject to federal law).  The Court’s decision for the Sacketts turned only on a procedural point; an underlying question, though, is why the federal government should be entitled to regulate local land use unrelated to a broader concern of the national market. 

The culprit here is not so much Wickard v. Filburn, the growing-wheat-in-your-backyard case that has drawn much attention in the challenge to the individual mandate.  Instead it’s a slightly earlier case, United States v. Darby, from 1941.  The outcome in Darby may well be right: it allowed federal regulation of working conditions at a factory that produced goods principally for the interstate market.  But in reaching that conclusion the Court said that Congress could regulate intrastate activity with a “substantial effect” on interstate commerce.

“Substantial” is a slippery word that can mean anything from “quite a lot” to “barely more than nothing.”  In later cases, especially in the lower courts, the latter meaning came to predominate.  And coupled with Wickard’s “aggregation” principle (which looks at the aggregate effect of all actors who might engage in the activity, not just the effect of those before the Court), the result seems to allow Congress to reach essentially all economic activity, interstate or not.

This is, for example, how the Sacketts’ private land use might come under Congress’ authority.  To improve the land, the Sacketts need to buy materials; some of those materials will have moved in interstate commerce; and if everyone were to improve their land as the Sacketts did, by buying materials in interstate commerce, then likely a “substantial effect” could be found.  And that's a challenge for defenders of the health care law: a persuasive argument for the individual mandate must find a limiting principle, or else Congress ends up with power to regulate almost everything -- an outcome wholly opposed to the basic constitutional structure.

From an textual perspective the misstep is the focus on “substantial effect,” a phrase that doesn’t appear in the Constitution.  Congress has two relevant textual powers: “to regulate Commerce … among the several States” and “to make all Laws which shall be necessary and proper for carrying into Execution” that regulatory power.  (In Sackett there may be a separate argument based on Congress’ power over interstate waterways, but I regard that as an even less plausible basis for that case).  The Constitution's text thus suggests a different test, something along the following lines: to regulate matters that are not themselves commerce among the several states, Congress needs to show (1) that it is elsewhere regulating actual interstate commerce; and (2) in order to carry into effect that regulation, it needs also to reach a matter that’s not interstate commerce because otherwise the effectiveness of the interstate regulation will be undermined. 

EPA’s regulation of the Sacketts would likely fail this test, because there’s no interstate-commerce-regulating federal law that’s threatened by the Sacketts’ activity.  Regulating the Sacketts’ land use is the end in itself.  That should put it outside the federal government’s commerce power, because the subject of the law isn't itself interstate commerce, and the law isn't “necessary” (even in the soft sense of “reasonably necessary”) to effectuate a regulation of commerce "among the several States."

Most of the Court’s key post-Darby cases are consistent with this approach – including Wickard, which arose out of Congress’ comprehensive regulation of the national wheat market, and Katzenbach v. McClung (the “Ollie’s Barbeque” case), which arose out of Congress’ desire to open interstate travel to all races without discrimination. 

The Court’s 2005 decision in Gonzales v. Raich (the medical marijuana case) points this way too (though I think the Court misapplied the principle).  There, Congress had enacted a comprehensive prohibition of interstate marijuana distribution (a regulation of commerce among the several states).  Non-economic local activity that undermined that regulatory project should also be reachable by Congress, under the necessary and proper clause, as the Court held.  Justice Scalia’s concurrence made the point explicit; he rejected an untethered “substantial effects” test and instead asked whether the regulation of local activity is “a necessary part of a more general regulation of interstate commerce.”  The Court (and Scalia) erred, I would say, in assessing the degree to which local use of marijuana for medical purposes – even if aggregated under Wickard – actually would interfere with the federal interstate regulation.  But that’s a quibble.  The broader point is that the Court in Gonzales asked the right question.  

What does this mean for the individual mandate?  The short answer is that Professor Koppelman may be right: the mandate is a key implementing provision of Congress’ comprehensive regulation of interstate commerce in health insurance.  Thus it’s “necessary” to carrying into execution a textually enumerated power, in the sense of “necessary” that Chief Justice Marshall outlined in the McCulloch v. Maryland, and it could be upheld on this basis.  In sum, it's constitutional because it's incidental to (and important for) a regulation of the national market.

But by putting the matter this way, the Court could aggressively call into question other much more egregious (from an originalist perspective) congressional intrusions into local matters that cannot be defended on this basis.  The goal should be to create an intelligible limit on Congress’ power that allows Congress to deal with national economic problems but leaves a significant body of issues beyond Congress’ reach.  By insisting that Congress’ regulations of intrastate or non-economic activities are constitutional under the commerce clause only if they are an important part of a broader regulation of the national market, the Court could uphold the individual mandate yet point the way to stronger federalism limits elsewhere.

Richard Pildes on Posner & Vermeule's The Executive Unbound
Michael Ramsey

Richard H. Pildes (NYU Law School) has posted Law and the President (Harvad Law Review, Vol. 125, p. 1381, 2012) on SSRN (reviewing Eric A. Posner and Adrian Vermeule's The Executive Unbound: After the Madisonian Republic).  Here is the abstract:

This article explores the extent to which law constrains the exercise of presidential power, in both domestic and foreign affairs. Since the start of the twentieth century, the expansion of presidential power has been among the central features of American political development. Over the last decade, however, scholars across the political spectrum have argued that presidential powers have not just expanded dramatically, but that these powers are not effectively constrained by law. These scholars argue that law fails to limit presidential power not only in exceptional circumstances (times of crisis or emergency), but more generally; that unconstrained presidential power exists not just with respect to limited substantive arenas, such as foreign affairs or military matters, but across the board; and that statutes enacted by Congress, as well as the Constitution, fail to impose effective constraints.

This article takes these claims on in empirical, theoretical, and cultural terms. Empirically, claims of legally unconstrained presidential power turn out to rest on thin evidence, rarely confront conflicting evidence; the empirical case is indeterminate and perhaps impossible. Posner and Vermeule see presidents as Holmesians, not Hartians. Yet even if we enter their purely consequentialist world, in which presidents follow the law not out of any normative obligation or the more specific duty to faithfully execute the laws but only when the cost-benefit metric of compliance is more favorable than that of noncompliance, powerful reasons suggest that presidents will comply with law far more often than Posner and Vermeule imply.

In the area of presidential studies, the Posner and Vermeule approach is particularly fresh. For many decades, legal scholarship on presidential power was confined to assessing how much formal legal power the President should be understood to have, as a matter of the original understanding at the time of the Constitution’s adoption or subsequent legal and political practice. In other disciplines, scholarship on the presidency was heavily personality based — organized around studies of individual presidents, or case studies of particular episodes, or narrative accounts of how various presidents had, for example, used military force. But the greater emphasis in the social sciences in recent decades on institutional analysis has recently reached presidential studies, and an emerging series of works now seeks to analyze the presidency not through individual personalities but through the more systematic tools of empirical and theoretical analysis. Posner and Vermeule’s book, in its effort to theorize systematically about the actual (rather than formal) scope of presidential power, should be seen in this light.

For my forthcoming review of The Executive Unbound (with Saikrishna Prakash), see here.


John T. Valauri: Comstock, Originalism and the Necessary and Proper Clause
Michael Ramsey

John T. Valauri (Northern Kentucky University - Salmon P. Chase College of Law) has posted Comstock, Originalism and the Necessary and Proper Clause on SSRN. Here is the abstract:

Constitutional law is plagued by meaning conflict at both the doctrinal and the theoretical levels. This article takes up two loci of such conflict and contest of constitutional meaning — the Necessary and Proper Clause (recently visited by the Supreme Court in the Comstock case) and the reasonable person device in the New Originalism -- so that insight might be gained from the mutual comparison and illumination of their problems. In this process, dialogue replaces just “looking for one’s friends” in constitutional argument as various voices are considered and not silenced so that a favored one may be privileged. The result of this reciprocal examination is a paired argument for a fiduciary, agency law model of the Necessary and Proper Clause and also for a Dialogic Originalism as a replacement for the currently fashionable reasonable person New Originalism.

Via Larry Solum at Legal Theory Blog, who comments: 

For the record, the idea of "public meaning" does not depend on a hypothetical reasonable person, and can be cashed out by appeal to regularities in the linguistic practices of actual persons.  For my version, see Semantic Originalism.


Historian, Cure Thyself
Mike Rappaport

Over at the Faculty Lounge, Saul Cornell has another post criticizing me.  Like his previous post, Saul’s post is filled with overheated rhetoric – more on this below.   He responds to a post I wrote about a different historical paper regarding historical method and freedom of the press.  At the end of my post, I concluded it with a respectful line, which I wrote because I believe there is a gulf between legal scholars and historians about methodology.  I wrote:

I must admit that perhaps I am not understanding the historians.  Or perhaps they do not understand legal methods and legal meaning.  Or perhaps the truth is somewhere in between.

Saul responds to this with a cheap shot.  He writes:

To be fair, Rappaport  confesses that his frustration may be a function of ignorance.  Thus, he writes: “I must admit that perhaps I am not understanding the historians.  ” On this point I think Rappaport is correct. The entire new originalist project rests on a series of profound errors—some philosophical and  others historical.

I suppose Saul, given his intemperate writing, wouldn’t know a respectful line if it hit him in the face.  Let me explain something else: you don’t return respect with derision.  People will think you are a jerk .

With the formal matters put to the side, let me turn to substance, where Saul is once again profoundly ignorant.  Saul writes:

Rappaport and most new originalists  show little understanding of the complexity of Founding era legal culture. The result is a one dimensional account of  legal meaning.  Rappaport claims to be interested in using original methods, but he seems unable to grasp the most basic  fact about the Founding era’s interpretive methods: there was no consensus on interpretive methods.  This point has been demonstrated by a number of  legal scholars, including Caleb Nelson and Larry Kramer.  Historians have long appreciated this point, but as Martin Flaherty’s work demonstrates, most originalists seldom read deeply in the relevant historical scholarship and so are blithely unaware that few serious historians would accept that the Founding era was a period of constitutional consensus.

Once again, there is ignorance here, but not on my part.  If Saul would simply read the works that he appears to be criticizing, he would see that my work with John McGinnis does recognize there may have been disagreements at the founding.  We recognize that there was a traditional intentionalist interpretive methodology (associated with Blackstone), a seemingly distinct intentionalist interpretive methodology, which sought to look at legislative history, and a more textualist oriented methodology (sometimes associated with Alexander Hamilton’s bank opinion).  Nor do we claim that these are the only positions that were held.   See here starting on page 786.

While we have argued the Constitution should be interpreted in accordance with original methods, we have not argued what those methods were.  We believe that this would involve an in depth and balanced inquiry into the historical materials that we have not engaged in.  We do, however, believe that the leading methods at the time were all some version of originalism – original intent, original public meaning, etc.

It is not clear why Saul assumes that we believe we have already engaged in this task.  Perhaps he is in the grips of a preconception about the originalist world that he cannot shake.  But a little bit of old fashioned historical research – reading the articles one criticizes – might help.  Historian, cure thyself!

(Cross posted at Liberty Law Blog)

David Upham: Pierce v. Society of Sisters, Natural Law, and the Pope’s Extraordinary – But Undeserved– Praise of the American Republic
Mike Rappaport

David R. Upham (University of Dallas) has posted Pierce v. Society of Sisters, Natural Law, and the Pope’s Extraordinary – But Undeserved– Praise of the American Republic on SSRN. Here is the abstract:

In his 1929 encyclical, Divini Illius Magistri (On Christian Education), Pope Pius XI paid an extraordinary tribute to the United States, the Supreme Court, and more specifically, the Court’s interpretation of the Fourteenth Amendment in Pierce v. Society of Sisters. In the course of affirming that parents have the primary right and duty to direct their offsprings’ education, he quoted with approval from Justice McReynolds’s opinion in Pierce. Moreover, the Pope praised both the Taft Court for its reliance on natural law, and the whole American Republic for having ordained the natural rights of the family, and the natural law in general, in the Constitution.

This article will explore the significance and validity of this praise. This article concludes that this tribute, while extraordinary, was simply unwarranted. Rather, the Taft Court evinced an increasing indifference, if not hostility, to natural law concepts--an indifference clear in Pierce itself as well as Buck v. Bell and other cases. Moreover, the American Constitution did not ordain familial rights in the manner suggested by Pierce. In sum, Pierce was bad constitutional law, inconsistent with constitutional text and precedent, and made by justices unfriendly to all natural-law jurisprudence, whether Catholic or otherwise. And in the hands of like-minded jurists, the Pierce precedent fostered a series of decisions adverse to both constitutional text and Catholic natural-law teaching.

In the course of the article, several claims are made and defended that may seem unconventional: namely, (1) that the Taft Court tacitly but firmly rejected the Court's pre-1920 natural-law jurisprudence, (2) that the Court's decision in Pierce and Buck v. Bell indicated this rejection, (3) that Meyer v. Nebraska not only was poorly decided, but also did not support the holding in Pierce, (4) that although the Pierce reasoning cannot be squared with the text and historic understanding of the Fourteenth Amendment, the Pierce result could, perhaps, find support in an originalist reading of the Due Process Clause, and (5) that Pierce significantly shaped the Court's subsequent due-process jurisprudence, including the contraction of due process in Buck v. Bell, the expansion of due process through incorporation of the First Amendment, and the further expansion via the incorporation of certain rights of sexual and reproductive autonomy.

Originalism on the Web
Michael Ramsey

Vikram David Amar: Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action.  Among other insightful points, Professor Amar writes:

Originalism in some form is a very attractive idea.  Yet throughout the modern affirmative action cases over the last generation, the most conservative Justices have never really explained how their view that government cannot use race in any way whatsoever—that the Constitution is “color-blind,” so to speak—can be squared with the fact that the very same Congress that passed the Fourteenth Amendment did, in fact, use race-based programs to help African Americans.

As I've indicated in previous thoughts on Fisher, I sort-of agree and sort-of disagree.  Because these decisions are based on the equal protection clause (applicable only to the states), the fact that the federal government of the 1860s "used race-based programs to help African-Americans" doesn't show that the Fourteenth Amendment allows state governments to use race-based programs to held African-Americans.  (It does raise some questions about the originalist basis of modern decisions, such as Adarand Constructors v. Pena, denying that power to the federal government).  But Professor Amar's broader point stands: we seem to have no complete originalist discussion of the constitutional status of such programs at either the state or federal level.  Perhaps Fisher will provide some explanations.


Historical Inquiry and Legal Concepts
Mike Rappaport

Over at the Faculty Lounge, historian Saul Cornell has a guest post criticizing my recent post.  In that post, I had criticized Richard Epstein’s freedom of speech interpretation based on a singular police power.  I said:

First, it is not clear that the police power concept was in existence as a concept in 1789.  They certainly limited rights by these types of considerations, but it is not at all clear that they had a understanding of those considerations as a singular police power.   More work needs to be done on when this concept emerged, but my sense is that it emerged in the first half of the 19th century.  Thus, the police power may make good sense as a matter of political theory, but not of originalist constitutional law, at least for the initial Constitution and Bill of Rights enacted in 1789-1791.  (The 14th Amendment may or may not be another matter.)

 Saul writes:

Rappaport is dead wrong about the history and his claim ought to raise a red flag about the entire “original methods” variant of originalism. Rappaport believes that we need some work on this topic. In fact, we have such a work, William Novak’s book, The People’s Welfare.  The first chapter of this important study deals with the origins of the police power and looks at a number of Founding era sources.

 Although the phrase “police power” was not all that common in the Founding era, the concept was frequently invoked.  The 1776 Pennsylvania Constitution affirms "III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same."   St George Tucker's chair at William and Mary was in law and police.  Tucker’s Blackstone has a number of references discussing the regulation of “internal police.”   (first emphasis added)

When you say someone is dead wrong about something, you’d better be dead certain you are right.  Unfortunately, Saul isn’t.

My point, which appeared to have escaped Saul, is that the singular concept of a police power, which Epstein was invoking, did not appear to exist in 1789.  My point was not that the term “police” or “police power” did not exist.  It was rather about the existence of a singular legal concept of the police power.  I think my post was clear enough, since David Bernstein in the comments recognized it and pointed it out to Saul.

I wouldn’t be so annoyed about this, except that this is not the only time Saul engages in such overheated rhetoric.  His article in Dissent does the same thing.  I had always thought you should let your arguments do the talking, not your rhetoric.

Perhaps Saul believed that he was on solid ground, because he, a Ph.d in History, was instructing a mere law professor about history.   As he said, “Rappaport is dead wrong about the history.”  But what many historians who write about law fail to recognize is that the validity of their claims does not merely depend on simple history.  It requires an appreciation of legal concepts and legal distinctions – an appreciation that fails Saul here.

Historians who write about law frequently go on and on about “law office history.”  Even assuming that their complaint was correct (and that it did not also apply to the bias of historians about history, which we have seen plenty of), it would not excuse “history office law” – the failure of historians to understand and apply legal concepts.

I could go on about other distinctions that Saul fails to appreciate -- between different types of new originalists, between errors of application and errors going to the theory -- but that would only belabor the point.

(Cross Posted at the Liberty Law Blog.)

Originalism on the Web
Michael Ramsey

At Public Discourse, Gregory J. Sullivan: Originalism and Judicial Restraint (commenting on Judge Wilkinson's treatment of originalism in Cosmic Constitutional Theory). Sullivan's central point: "Originalism must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching."