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41 posts from April 2012

04/30/2012

Damon Root: The New York Times Flip-flops on Judicial Restraint
Michael Ramsey

At Reason.com, Damon W. Root notes that the New York Times can't decide what it thinks about judicial restraint:

To recap: The New York Times attacks the current Supreme Court for abandoning judicial restraint and “signaling its willingness to replace law made by Congress,” then turns around less than a month later to attack Judge Bork for advocating judicial restraint and saying that “the court must defer to the will of the majority.”

Shouldn’t the Times’ editorial board try a little harder to avoid openly contradicting itself like that?

To be fair, I think lots of people have this problem.  Possibly including me.  But I'm not running a major newspaper.  And the health care case at the Supreme Court, which inspired the NTY's "judicial restraint" editorial, produced an astonishing number of poorly-considered appeals to judicial restraint on the political left which shouldn't be forgotten.

On a broader note, living constitution advocates seem to have a particular problem in this regard.  To be sure, originalists are known to sound the virtues of democracy at times and the virtues of constitutional (judicial) constraint on democracy at others.  But at least many originalists have an explanation, if a bit of a tautological one, by defining "judicial activism" as judicial action contrary to original meaning.  Thus judicial activism is always bad (albeit because judicial activism is defined as deciding contrary to the way the speaker views the fixed law).  Living constitutionalists, on the other hand, have more serious difficulties explaining what they mean by judicial activism and why it's bad, since by definition they want the court to "evolve" the Constitution in new and principally policy-driven ways to overturn majorities.  (If they only wanted to evolve the Constitution to empower majorities, they would be with Judge Wilkinson instead).  So their definition of "judicial activism" ends up being even more empty than that of the originalists: basically, decisions moving the Constitution in policy directions they don't like.  The result is the embarrassing pair of NYT editorials Damon Root notes.  (I expect quite a few similar performances as the health care debate recedes and new issues arise on which judicial action is desired).

Motivated Reasoning and Originalism
Mike Rappaport

Over at the Legal Theory Blog, Larry Solum links to this new paper by Stephen Siegel.  The article argues that the original meaning of Article III, Section 2 of the Constitution, which mandates that “[t]he trial of all crimes, except in cases of impeachment, shall be by jury,” does not permit defendants to waive their jury trial.  But  

in 1930, in Patton v. United States, a unanimous Supreme Court declared federal bench trials constitutionally permissible. Justice George Sutherland — who strongly believed that the sole goal of constitutional interpretation is to discern and effectuate the Constitution’s original meaning — wrote the Patton opinion. True to form, Sutherland’s Patton opinion maintained that defendants’ jury waivers and federal bench trials for serious offenses were consistent with Article III’s original understanding. However, Justice Sutherland got his history wrong. This Article joins the long list of books and articles questioning the Supreme Court’s use of history as a basis for its decisions. More importantly, by studying how evolving principles of constitutional policy transformed the interpretation of Article III, Section 2’s clear text through a mechanism known as “motivated reasoning,” this Article reveals how evolving principles of constitutional policy have become the basis for constitutional law even in the hands of dedicated originalists.

Thus, Siegel argues that George Sutherland, who he claims to be an originalist, misread the Article III, section 2 because of motivated reasoning -- that is, Sutherland desired a particular result and therefore was motivated to reason to that conclusion.  For a brief discussion of motivated reasoning, see here and the discussion starting on page 441 of Siegel's article.    

Siegel concludes that if judges are led by motivated reasoning, this undermines originalism and leads to an argument for living constitutionalism:

More importantly, by studying how evolving principles of constitutional policy transformed the interpretation of Article III, Section 2’s clear text through a mechanism known as “motivated reasoning,” this Article reveals how evolving principles of constitutional policy have become the basis for constitutional law even in the hands of dedicated originalists.  This Article is a study of the problem that motivated reasoning presents for the practice of originalist jurisprudence, and to that extent, it is an argument for the desirability of a forthright jurisprudence of “living constitutionalism.”

I have only skimmed Siegel's paper, but this critique of originalism seems weak.  Yes, motivated reasoning is certainly a danger for originalism and should be avoided.  But that hardly represents a strong critique of originalism for at least two reasons.  First, all decisionmakers are subject to motivated reasoning.  Therefore, any method of decisionmaking that seeks to constrain judges from deciding cases as they wish will be subject to this danger.  For example, if living constitutionalism requires judges to decide cases based on prevailing modern values, rather than the values of the individual judge, then motivated reasoning might lead the judge to believe his values are the prevailing ones.  Similarly, if judicial decisionmaking is supposed to decide cases based on the law rather than who the parties are, but if the judge is more sympathetic to certain types of parties (employers over employees, labor unions over corporations, etc), the motivated reasoning might lead to mistaken decisions. 

Second, there are methods for checking motivated reasoning.  One of the best, I believe, is forcing the judges in the majority to articulate their reasons in an opinion and then allowing the judges in the minority to criticize that reasoning in a dissent.  This can expose weak arguments to the public for all to see and works to check conclusions reached by motivated reasoning in the first place.  Of course, this is not a perfect check, but no check is.

Finally, I should note that the existence of bad originalism is not an argument against originalism any more than the existence of bad living constitutionalism or bad any other interpretive theory is an argument against those.  While Siegel describes Sutherland as an originalist who got his history wrong, this is hardly the first time that Sutherland made this mistake.  Sutherland is the author of the completely wrongheaded, nontextualist opinion in Curtis Wright, which is shown to be completely mistaken in this article by Mike Ramsey.  Lot's of people claim to be originalists, but whether they are actually practicing the approach, as opposing to posing or muddling it, is always an important question to ask.

(Cross Posted at the Liberty Law Blog)

04/29/2012

Charles Fried: On Judgment
Michael Ramsey

Charles Fried's Anthony Kennedy Lecture at Lewis & Clark Law School, On Judgment, is available from the Lewis & Clark Law Review.  (Thanks to Michael Perry for the pointer).  Here is the abstract:

The Supreme Court’s constitutional decisions have been a mixed blessing. Some of the Court’s most celebrated decisions have, in the long run, done more harm than good. Mapp v. Ohio, while it might have done a certain amount of good at the time, brought with it an automatic rule of  exclusion that has grossly diverted attention from the guilt or innocence of the accused. Others, like Brown v. Board of Education and Lawrence v. Texas, were watershed moments in the  development of American civil rights. But what made these decisions good or bad? My most important argument will be a negative one: it had nothing to do with the original intent of those who framed or ratified the constitutional provisions in question.

The rise of originalism has brought with it an almost obsessive concern with history. Originalism seeks to substitute keenness of intellect for prudent judgment because the first is thought to be objective. The second is thought to be subjective, thereby subjecting us to the rule, not of laws, but of men. Yet the wise judge recognizes that the search for security and objectivity in history is a will-o’-the wisp. Wisdom, not historical rigor, is the touchstone of good judgment.

Presented in Professor Fried's always-elegant style -- and by a some-time conservative (at least on criminal matters) -- this address is likely to become a standard anti-originalist citation.  Yet I'm not sure what to make of it.  Professor Fried apparently thinks that under his "wisdom" standard, the Court has been wrong at least as often as it has been right -- in addition to Mapp, in the body of the lecture he highlights, among others, Miranda v. Arizona and Boumediene v. Bush as substantial missteps  (all likely wrong on originalist grounds as well, one might add).  Perhaps these "wrong" decisions are outweighed by the "right" ones, but perhaps not.  If the Court isn't consistently "wise" (at least more often than not), one wonders what the point of judicial review under a "wisdom" standard is.  (That seems particularly true when "wise" is apparently defined as "agreeing with Charles Fried.")  Oddly, it seems more an argument for J. Harvie Wilkinson's judicial restraint, although that is surely not what is intended.

A second point is this: if historical objectivity is a "will-o’-the wisp," as Professor Fried says, then presumably judges who claim to be applying history (as in District of Columbia v. Heller, a decision he criticizes) are actually reaching a subjective judgment.  If so, are they not doing just what Professor Fried wants, only covertly and perhaps subconsciously (and, in Heller, he would say incorrectly)?  The argument that originalism leads to bad results -- potentially a very powerful one -- only has bite if originalism is actually objective enough to push judges into decisions they would not otherwise reach under a "wisdom" standard.

04/28/2012

Justice Alito on Burkean Constitutionalism
Michael Ramsey

Columbia Law School's website reports on its April 24th conference on Burkean constitutionalism (a potential competitor, or perhaps an ally, of originalism), featuring Justice Alito:

In his lunchtime speech, Alito wrested Burke’s legacy from the realm of theory. “He was not a theorist, and I am not a theorist,” Alito said, before distinguishing himself from other members of the current Supreme Court. “I feel almost outnumbered,” he said, noting that the Court has four former professors. “The Supreme Court these days is the most academic in the history of the country. We’re at a tipping point where we might tip into the purely theoretical realm.”

Alito noted that Burke is hard to pigeonhole. On one hand, Burke lauded tradition, admired Adam Smith, and opposed the redistribution of wealth. On the other hand, many emphasize Burke’s progressive leanings: He tried to rein in the power of the Crown and lessen persecution of Catholics in Ireland. He supported the revolution in America, but criticized the one in France. Underscoring the categorization problem, Alito pointed out that he, President Barack Obama, and Sarah Palin all have been described as “Burkean.”

...

For Alito, the virtue of Burke is stability: If judges are bound to respect prior decisions, he said, they’re less likely to risk the unintended consequences of “ill-considered judicial innovations.”

Sticking to established rules, Alito said, is good policy for judges who make decisions under isolated conditions and with limited resources. He noted that judicial decisions “are discrete exercises of individual judgment, so they are more prone to error or ideological manipulation.

"One of Burke’s 'core insights,'" Alito continued, “was that the individual is foolish but the species is wise. Society is so incredibly complex that the solitary human mind is incapable of understanding how all the pieces fit together. Because the various components of the social order are interrelated in ways that are subtle and innumerable, it is almost impossible to predict all the consequences that will result from a rule. As a general matter, we can have greater confidence in established rules that have been tested and refined over time.”

(Via How Appealing).

04/27/2012

Beyond Preemption: Broader Questions in Arizona v. United States
Michael Ramsey

At Opinio Juris, Peter Spiro and Julian Ku discuss the oral argument in the Arizona immigration case, inspiring two comments on broader constitutional questions.

First, Professor Ku notes, under the title The End of Federal Foreign Affairs Exclusivity?, that there was essentially no discussion of a "dormant" foreign affairs argument -- that is, the idea that the state law might be unconstitutional (as opposed to merely preempted by inconsistent federal law) as an interference in foreign affairs.  He writes: 

I just don’t think, taken as a whole, that the Court showed any deep concern with the threat to foreign affairs or to the federal government’s control of foreign affairs.  The Court was focused like a laser beam on the language of the statute and how it would work in practice in tandem with existing federal law.  Broad claims that Arizona was interfering with foreign affairs, and that foreign affairs are exclusively vested in the federal government, were pretty much ignored and brushed aside.

In our book Taming Globalization, John Yoo and I argue against a broad foreign affairs preemption power, especially a dormant preemptive power.  While we accept that the federal government can preempt most state activities, we would require some explicit statutory intent to do so, or an unmistakeable executive policy or agreement.  My bet is that, even if Arizona “loses”, an exclusive federal foreign affairs power will not emerge in this case.

(For a version of the foreign affairs exclusivity argument applied to the Arizona case, see this Slate essay by Vanderbilt History Professor Paul Kramer.)

I agree with Professors Ku and Yoo on the lack of foundation for a dormant foreign affairs doctrine, at least as a textualist/originalist matter.  (Chapter 13 of The Constitution's Text and Foreign Affairs, and my earlier article at 75 Notre Dame L. Review 341).  While there are additional wrinkles to the argument, most obviously Article I, Section 10 lists an array of foreign-affairs-related things the states cannot do.  That is a pretty clear textual implication that (most) foreign affairs related matters not listed in Article I, Section 10 are not constitutionally precluded.  If there were an across-the-board constitutional prohibition of states acting in foreign affairs from some other constitutional source, what would be the point of specifically saying in Article I, Section 10 that (for example) states could not enter into treaties?

I don't think an implicit rejection of dormant foreign affairs preemption in the Arizona case would settle the matter more generally as a modern matter: there are state activities that are much more intrusive into foreign affairs and much less justified on the basis of local concerns, so the doctrine could well survive elsewhere.  And while it lacks foundation in text and original meaning, it rests on the (dubious) 1968 holding in Zschernig v. Miller.  But not applying it in the Arizona case is a step in the right direction (or, at least, an avoidance of a step in the wrong direction).

Second, Professor Spiro says, somewhat in passing, that "the Founders ... had no views of any kind on federal control of immigration, the power over which is not found in the Constitution itself."  Perhaps so -- Professor Spiro is a leading authority, so I hesitate to disagree.  But as a comment to his post points out, Article I, Section 9 states that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by Congress prior to the year one thousand eight hundred and eight..."  Of course this clause was principally a euphemism for prohibiting the slave trade, but as written it's not so limited, and it seems heavily to imply that Congress has power to prohibit "Migration" of persons into the states after 1808.

That raises an additional question, though: where does the power come from?  (Professor Spiro is of course right that it's not granted expressly).  Perhaps Article I, Section 9 is sufficient on its own, but the clause reads less like a grant of power than a limitation on a power previously granted.  A common explanation is that the power comes from the naturalization clause of Article I, Section 8 -- but I doubt that as well.  Regulating immigration and providing for naturalization are distinct powers.  There's no necessary connection between immigration and naturalization, as Congress might simply refuse to naturalize certain immigrants.  It's enough of a puzzle that when the issue came up in the late 19th century, as immigration law was nationalized, the Supreme Court decided that the power came not from the Constitution but from inherent national sovereignty (in rather flagrant disregard of the Tenth Amendment).

My tentative speculation is that the power to admit or not admit foreigners at the border was originally understood as an executive power of the President.  In England, it appears that the power was part of the monarch's power over foreign affairs.  As I've argued in various places, my view of Article II, Section 1's grant of "executive Power" is that is gives the President the traditional executive foreign affairs powers that were not otherwise given to Congress or shared with the Senate.

If that's right, then Congress' power to make laws relating to immigration arises from its power "To make all Laws which shall be necessary and proper for carrying into execution ... all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."  (I admit, though, that I've not seen this view fully worked out, and I would not go so far as to suggest that the founding generation broadly articulated this view of the immigration power -- only that it appears to be the best textual explanation).

04/26/2012

Sheldon Novick: The Uncertain Meaning of 'Citizen of the United States'
Michael Ramsey

Sheldon Novick (Vermont Law School) has posted Failures of Originalism: The Uncertain Meaning of 'Citizen of the United States' on SSRN. Here is the abstract:

Originalist interpretation seeks a definite “public understanding” of Constitutional language at the time of its adoption. The method fails when applied to language that cannot be understood in this way. In 1789, the word “citizen” as used in the Constitution, to take an important example, was a recent American coinage. English dictionaries of the time defined a citizen as a “townsman” or “tradesman;” the Constitution itself helped to give the word its new American sense, a person who had political rights, but this meaning was not well established until years later. At the time of ratification, “citizen” appears to have been understood by many of the Constitution’s draftsmen as signifying a narrow class of property-owning, white men, but the term was left to be further defined in each state, and understandings varied between town and country, slave state and free. Congress in its early years debated the nature and existence of national citizenship, without producing an authoritative definition. Taney’s originalist opinion in Dred Scott confirmed the narrow view of national citizenship originally held by some of the Framers. The Fourteenth Amendment reversed Dred Scott and created a new national citizenship, but the Supreme Court sharply limited the effect of the new language. The core of the Constitution, defining the class of persons who have rights and the rights that they hold, has been constructed piecemeal and continues to change. Originalism in this sphere died with Dred Scott.

The question of what the founding generation meant by "citizen" is a fascinating one, and this article sheds interesting light on it.  Unfortunately the article is marred by at least two flaws brought on by its needless attempt to cast itself as a critique of modern originalism (on which score it totally fails) as opposed to an insightful account of the early meanings of "citizen" (where it succeeds).  First it makes the now-familiar error of associating orignalism as a theory with Chief Justice Taney's manifestly incorrect application of originalism in Dred Scott --  indeed, not even mentioning Justice Benjamin Curtis' far superior originalist dissent.  Second it makes the puzzling claim that, post-1868, originalism has nothing useful to say about citizenship.  To the contrary, I would say that -- whatever the ambiguities of "citizen" in the founding era -- Section 1 of the Fourteenth Amendment appeared to provide a (relatively) clear rule of near-universal birthright citizenship for persons born in the United States.  True, as the article indicates, subsequent Supreme Court cases may have misread to some extent what the rights of citizens were intended to be, but (especially with the re-affirmance of broad birthright citizenship in the Wong Kim Ark case) I don't see a whole lot of post-1868 originalist ambiguity about who was a citizen.  And in any event, neither of these points have much to do with the far more interesting question of what "citizen" meant to the generation of 1789, which seems far from settled.

04/25/2012

George Will's Turn to Activism
Michael Ramsey

At NRO, Matthew J. Frank: The Evolving George Will.  (Thanks to Ed Whelan for the pointer).

Orin Kerr comments here.

Further thoughts at The Economist's Democracy in America Blog.

04/24/2012

Federalism and Preemption: The Arizona Immigration Case (Updated)
Michael Ramsey

The Supreme Court will hear oral arguments tomorrow in Arizona v. United States, the case challenging Arizona’s laws governing illegal immigrants.  For most people, this is a case about immigration.  For me, it’s about preemption.  I wrote a while back, with this case in mind:

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.

So I’ll be rooting for Arizona in this case, for reasons that have absolutely nothing to do with my views on immigration.  To amplify the above thoughts, a broad view of preemption undermines the federal system.  Oversimplifying only a little, the supremacy of the national government over the states operates at two levels.  First, certain things are declared to be purely national by the Constitution (chiefly in Article I, Section 10, which prohibits states from entering into treaties, engaging in war, etc.).  Second, as to other things of a potentially national character, the national government is empowered to act on them, and to the extent it does so, states are not allowed to act contrary to federal law.  No one disputes that immigration is in the second rather than the first category.

Within that second category, the main protection of the states is (as the great Herbert Wechsler said) political.  Assuming the subject is within Congress’ enumerated powers, Congress’ enactments are supreme law under Article VI.  But to get the protection of Article VI, Congress must enact something that displaces the states.  Legally, this is not difficult (all Congress needs to say is: the states are displaced).  But politically it may be hard.  Bicameralism and non-constitutional impediments such as the filibuster may make it difficult to get things done at the national level.  There may be political costs for Congress from excluding state actions from a particular area.  These “political” protections of federalism counterbalance Congress’ theoretically absolute control over the states in its areas of enumerated powers.

A broad judicial view of preemption undermines these protections, because it gives Congress a victory without the political costs that are the main constraint on national power in these areas.  Consider the immigration law.  Congress could have declared that state enforcement of immigration laws was preempted.  It didn’t.  After Arizona passed the law at issue in the present case, thus making the issue manifest, Congress could have passed a new law overriding it.  If the Arizona law is really as destructive to U.S. interests as critics say it is, that’s obviously what Congress should have done.  (Note that the Arizona law was passed in April 2010, when Democrats controlled both houses of Congress).  Nothing prevented congressional action – except the political cost of acting.

But here’s where a broad judicial view of preemption provides Congress with an escape route.  If the Court applies preemption broadly, to implement the Court’s best guess of what Congress might have intended, the tough political choice for Congress can be eliminated.  Congress can have it both ways: it can avoid tackling the state law directly, and leave it to the Court to displace the state law based on the Court’s perception of generalized congressional objectives not reflected in the statute’s text.  The Court acts in the name of Congress, but in fact it does something that Congress did not have the political will do to expressly.  As a result, the Court undermines a political protection of federalism by displacing a state law Congress was politically unwilling to say directly should be displaced.

As Justice Thomas explained in his important concurrence in Wyeth v. Levine in 2008, Article VI supports preemption only when a state law conflicts with the text of the federal law.  It is only "Laws of the United States made in Pursuance [of the Constitution]" that are supreme law -- not the Court's speculation as to underlying congressional purposes.  Thus the correct question in the Arizona case is whether anything actually contained in the text of the federal immigration laws conflicts with anything in Arizona law.  My sense is that the answer is no -- that the central claim by the United States is instead that the Arizona law conflicts with the generalized purposes of federal law or with executive branch enforcement policies.  That should not be sufficient.

UPDATE:  As reported at The Blog of Legal Times, Senator: If the Court Doesn't Strike Arizona Immigration Law, Congress Will.  That seems to me to be the best solution but also to have the institutions' roles exactly backwards.  It is Congress that should have primary responsibility for deciding which state laws are inconsistent with national priorities.  The Court should implement those congressional choices, as reflected in duly enacted statutes.  If it's not clear what choice Congress has made, it should be up to Congress to clarify, not up to the Court to guess what Congress might think.  At least, it seems to me that this is the design indicated both by the Constitution's procedural protections of federalism and by the specific text of Article VI, which says that enacted statutes -- not the Court's best guesses at Congress' objects and purposes -- are the supreme law of the land.

04/23/2012

Tom W. Bell on Mohamad v. Palestinian Authority
Michael Ramsey

Tom W. Bell (of Chapman Law School and Agoraphilia) emails regarding my post on Mohamad v. Palestinian Authority:

I think that you missed a crucial distinction, however, between the sort of textualism routinely used in statutory analyses and the sort of textualism that originalists want to apply to the constitution.  The difference is this:  With regard to statutes, and for good reasons related to the rule of law and fundamental principles of justice, courts tend to ask, "What would someone *now* subject to this law take its words to mean?"  Originalists, in contrast, tend to ask, "What would someone at the time of ratification *have taken* the Constitution's words to mean?"

In order words, originalists ask that we adopt a peculiar form of textualism.  I happen to think it is not as good a form of textualism as the sort usually applied to statutes, which would instead have us adopt the plain, present, public meaning of the Constitution's words.  I've argued for that elsewhere [ed.: see here], and will it looks like I'll have to keep up that good fight for a long while before it catches on, so I won't get into the merits just now.  But I do think it telling that you may have overlooked the most direct application of textualism to the Constitution.

It's a fair point (and one that's related to the fact that constitutional provisions tend to be much older than statutory provisions, a point I noted in considering why statutory textualism is more easily embraced than constitutional textualism).  But I'm not sure Professor Bell is right about the dominant form of statutory textualism.  In theory anyway, I think the goal is understood as finding the meaning of the words as used by the statute's drafters, not the modern meaning, to the extent the two differ.  Thus in Mohamad, for example, the question was whether the word "individual" in the 1992 Torture Victim Protection Act (TVPA) includes entities such as the Palestinian Authority and (by extension) corporations.  While the Court's opinion talks about the "ordinary" meaning of the word "individual," it also finds especially significant the fact that statutes passed around the same time as the TVPA used "individual" to exclude entities.  And the Court concludes: "The text of the TVPA convinces us that Congress did not extend liability to organizations..." – that is, that the word "individual" as used by the enacting Congress did not include entities.

It's true that there's likely to be less divergence between modern meaning and enactment meaning in the case of relatively recent statutes.  But if there is divergence, I don't think the dominant strain of statutory textualism adopts Professor Bell's approach.  Suppose that "individual" in 1992 meant only human beings, but as a result of linguistic developments since then – reflected most importantly in a series of statutes enacted in the last year or so – it appears that "individual" is now more commonly used to include entities as well as human beings.  Would that have changed the result in Mohamad (and meant that the TVPA meant one thing in 1992 and another today)?  I think not.  Conventional statutory textualism seeks to find the textual meaning of the statute as enacted, not as it may have subsequently changed.  Otherwise we'd be in an odd position in which the current Congress (and non-legislative actors) could change the meaning of prior statutes by using words in different ways than they were used before.  And the Court would not talk about finding what Congress meant by the text it enacted.

Similarly, if Professor Bell were correct, the whole idea of using legislative history to interpret a statute would be dubious.  (Of course, some people think it’s dubious in any event; Justice Scalia notoriously refuses to join any discussion of legislative history, including in Mohamad.) But cautious uses of legislative history to confirm textual meaning (as in Mohamad) are widely accepted.  That’s because we understand part of the textual inquiry to be what the words of the statute meant to the enacting Congress.  If the inquiry were only what the words mean today, it would not matter what the legislative history suggested about Congress’ understanding.

In sum, I think (contra Professor Bell) that statutory textualism asks the same question as textualist constitutional originalism.  Of course, he may be right that it’s the wrong question.  But that’s a different debate.

UPDATE:  Tom Bell adds:

I read the case [Mohamad] to see if the Court specified which meaning it was after--original or present--and found the result inconclusive.  Regardless, for the same reasons that we should care about present meaning in the Constitutional context--protecting citizens' rights and respecting the rule of law--we should care about present meaning in the statutory context.  It is not realistic to suppose that average citizens can or should try to recreate the linguistic usages of such documents; they should be able to take the laws at face value.

Scalia thinks that on originalist grounds the Constitution's ban on  "cruel and unusual" punishment does not reach branding or public flogging.  I counter that the people who face the hot iron or lash should be able to trust the plain, present, public meaning Constitution.  On this point, originalists must choose sides.  It's an easy call for me.  Indeed, I'm surprised anyone could follow Scalia (though I admire him for not trying to weasel out of the results of his professed theory of interpretation).

To be clear, I think Professor Bell is raising an important point about what textualism should be looking for -- one that often gets lost in the originalism/non-originalism debate.

Still More from Elhauge, Barnett and Hamburger on the Founders and Health Care Reform
Michael Ramsey

Einer Elhauge, Randy Barnett and Philip Hamburger continue the argument: here. here, and here.

My conclusion from this exchange is that you should be very sure of your position before tangling with Professor Hamburger.