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41 posts from April 2012


Einer Elhauge on Early Examples of "Mandates" (and, Why Everyone Should Read Blogs)
Michael Ramsey

In The New Republic, Professor Einer Elhauge (Harvard Law School) argues that the mandate that all persons buy health insurance has precedents from the founding era: a 1790 requirement that ship owners buy medical insurance for their seamen, a 1792 requirement that all able-bodied men buy firearms, and a requirement that "seamen buy hospital insurance for themselves."

Eugene Volokh and Randy Barnett respond skeptically at Volokh Conspiracy, with further thoughts from Professor Elhauge here.  Glenn Reynolds is also unconvinced

The Militia Act argument doesn’t work at all. First, as Elhauge admits, it’s justifiable under the Militia Clause, not the Commerce Clause. The Militia Clause empowers Congress to provide for arming, training, and disciplining the militia, and the cash-strapped first Congress chose to “provide for” arming them by requiring adult males to own guns. This method of arming the miltia existed under the common law and, indeed, in Anglo-Saxon history going back at least as far as the seventh century, so it was hardly a stretch. …

As for the seamen, … the obligation of shipowners to provide “maintenance and cure” for their seamen was a part of Admiralty law and an obligation that also predated the Constitution. There is certainly no question that the Congress and the courts could do things under Admiralty that could not be done via the commerce power. But even under the commerce clause, it seems clear that seamen are already in commerce and so are the owners of the ships they sail on. This doesn’t apply at all to the health-insurance mandate, unless your argument is that everyone in America, just by living, is already in commerce, which of course removes any suggestion that Congress’s powers are limited. This, I believe, is what troubled the Justices at oral argument.

My colleague Tom Smith has a similar reaction, in his own distinctive style, at The Right Coast.

Entirely apart from the merits of the health care controversy, I'm amazed at how sophisticated legal commentary on blogs has become, compared to what were once considered sources of sophisticated commentary like The New Republic.  As Professor Barnett points out, these arguments had been examined critically months or even years ago in leading blogs: see this post from Jason Mazzone on the 1792 Militia Act (from October 2011) and this post from David Kopel on the 1798 act -- from April of 2010!  It's stunning to see The New Republic, a magazine I once read eagerly for cutting-edge commentary, this far behind.  And, within hours of The New Republic publication, at least four leading law professors are out on the blogs pointing out problems with the argument and sending Professor Elhauge scrambling to the blogs himself to respond.

Conclusion: if you aren't getting your legal commentary from legal blogs, you aren't getting the fastest, best commentary.  Period.


Even More on Judicial Activism
Michael Ramsey

Randy Barnett: Another Meaning of "Judicial Activism".

Damon W. Root: Judicial Activism and the American Right (with a link to and quotes from Roger Pilon: A Primer on Judicial Activism).


The Priority of the Constitution over Federal Statutes
Mike Rappaport

In my prior post, I described Jonathan Mitchell’s analysis of precedent, which he attempts to derive from the text of the Supremacy Clause.  Here, I want to draw out one implication of his analysis: one that concerns whether the Constitution takes priority over federal statutes.

A key premise for Mitchell is that neither the Supremacy Clause nor the Constitution gives priority to any of the three sources of supreme law.  The Supremacy Clause provides in part that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”  He believes the Constitution is silent as to the hierarchy between the Constitution, federal statutes, and treaties.

Notice that, under his analysis, this means that the priority of the Constitution over federal statutes – and judicial review of federal statutes – is not required by the Constitution.  Rather, he believes it is discretionary with the courts.

In my view, however, Mitchell is clearly mistaken here for one reason and possibly mistaken for another.  First, I strongly believe that the priority of the Constitution over federal statutes follows from the meaning of the term “Constitution” when the Constitution was enacted.  Part of what a written constitution meant was a fundamental law that took priority over ordinary federal statutes.  (It is worth noting that Chief Justice Marshall placed significant reliance on this argument in Marbury.)  Thus, it is not optional for the courts to treat the Constitution as taking priority over federal statutes.

Second, there is a reasonable argument (also mentioned by Marshall) that the Supremacy Clause’s language indicates the superiority of the Constitution in another way.  The Clause says that “the Laws of the United States which shall be made in pursuance [of the Constitution]” are supreme.  This might be thought to say that only constitutional federal statutes are supreme and therefore imply that unconstitutional federal statutes are not binding.

This argument, however, involves significant complications.  First, the language here is ambiguous.  It might mean, as I have said, that only federal statutes that conform to the Constitution are binding.  But it might also mean simply that laws passed under the United States Constitution (“made in pursuance of” the Constitution) are binding (as opposed to laws passed previously under the Articles of Confederation).

Second, the interpretation that views the “made in pursuance” language as requiring that the statute conform to the Constitution may create other problems.  If the “made in pursuance” language implies the supremacy of the Constitution, then what about treaties?  The Supremacy Clause states that only treaties “which shall be made, under the authority of the United States” are supreme law.  Since the Constitution does not say “made in pursuance of the Constitution” for treaties, that might seem to mean that treaties need not conform to the Constitution.

The response often given to this argument about treaties is that “the made in pursuance” language was intended to refer to statutes passed under the Constitution (beginning in 1789).  By contrast, the “made under the authority of the United States” language was intended to refer to treaties made both under the prior regime (beginning in 1776) and under the Constitution.  Thus, under this response, “the made in pursuance” language has little to say about the priority of the Constitution.  It was really just about identifying statutes passed under the Constitution.

I think there is much to this last argument.  And since I believe that the term “Constitution” itself implies the priority of the Constitution, I don’t think the made in pursuance language is necessary for judicial review of federal statutes.  But the fact that  various people at the time of the Framing made the argument that “the made in pursuance” language was intended to imply the priority of the Constitution gives me pause.  Sai Prakash and John Yoo write in this article at footnote 76:

During the ratification, various Federalists urged that “in pursuance” of the Constitution meant not just conformity with bicameralism and presentment, but otherwise consistent with the entire Constitution. Only such latter statutes were entitled to be treated as supreme over contrary state law. See, for example, Jensen, ed, 2 Documentary History of the Ratification at 517 (cited in note 59) (James Wilson commenting that “in pursuance” meant that a law was otherwise constitutional). Earlier, Wilson had claimed that Congress could not pass any laws restricting the press because such laws would not be in “pursuance” of the Constitution. Id at 455. See also Jonathan Elliot, ed, 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 188 (2d ed 1836) (Governor Johnston of North Carolina commenting that every law consistent with the Constitution is “made in Pursuance” of it; those laws inconsistent are not made in Pursuance of it); id at 182 (William Davie commenting to the same effect); id at 28, 178–79 (James Iredell commenting to the same effect); Federalist 33 (Hamilton), in The Federalist 203, 207 (Wesleyan 1961) (Jacob E. Cooke, ed) (claiming that laws that are not pursuant to the Constitution, but instead invade state power, are acts of usurpation).

If we give credence to the interpretation of these founders, how do we address the unconstitutionality of treaties?  One argument (which I believe Mike Ramsey makes) is that the “under the authority of the United States” language, which refers to treaties, both refers to treaties made since 1776 and also references only treaties that are constitutional.  If a treaty had an unconstitutional provision, that provision could not be “under the authority of the United States” because unconstitutional provisions do not have authority and therefore are not “under the authority of the United States.”  If one accepts the interpretation of the “made in pursuance” language offered by the founders above, then then this interpretation of “under the authority of the United States” language may be the best one.

However one resolves this last issue, I do believe that it is clear that the Constitution takes priority over federal statutes.  Therefore, a key aspect of Mitchell’s argument (and of the argument of many progressives who doubted judicial review of federal statutes) is mistaken.

(Cross posted at the Liberty Law Blog.)


MICHAEL RAMSEY ADDS:  This is an issue I've studied a bit and on which have some definite views.  I agree with the Prakash/Yoo reading of "in Pursuance thereof," principally for the reasons they state.  Regardless of how the language may seem to strike us today, it seems fairly conclusive of eighteenth-century meaning if prominent members of the founding generation shared a specific view of that particular language.  Of course we can speculate that the language could mean something different, and that other people at the time might have read it a different way, but lacking evidence that any material number of people in the founding era actually did read it that way, I think the alternative reading remains pure speculation.  The question isn't what the language could mean in the abstract, but what it most reasonably meant at the time it was enacted.

On the treaty question, my view is (as Professor Rappaport says) that Article VI also establishes the superiority of the Constitution over treaties:

Article VI states that treaties made "under the Authority of the United States" are part of supreme law.  As a result, treaties that violate the Constitution are not part of supreme law, because they are not made "under the Authority of the United States" -- that is, the United States acts ultra vires in making them. ... "[A] delegated authority cannot rightfully transcend the constituting act," Hamilton said in 1796, and thus "[a] treaty for example cannot transfer the legislative power to the Executive Department" or say "that the Judges and not the President shall command the national forces."  (from The Constitution's Text in Foreign Affairs, p. 168; the Hamilton quote is from "The Defense," No. XXXVI, Jan. 2, 1796.)

Similarly, George Nicholas specifically told the Virginia ratifying convention that, because treaties must be "under the authority of the United States" they cannot be "repugnant" to the Constitution.  (Documentary History of the Ratification of the Constitution, vol. 10, p. 1389).  Akhil Amar draws a similar conclusion in America's Constitution: A Biography, p. 300 (relying on the Nicholas quote): "[O]f course the new government would have no 'Authority' to enter into a treaty that violated the Constitution."  Hamilton and Nicholas echoed a then-familiar principle of corporations law, in a day when corporations were typically formed with very specific and limited powers; acts exceeding those limits were void as "ultra vires" -- beyond the corporation's powers -- because the corporation lacked authority to undertake them.

Thus, while I agree with Professor Rappaport that the Constitution's superiority over statutes and treaties can be implied from the ordinary meaning of the term "constitution," I also think its superiority is plainly set forth in Article VI, as the founding generation appears to have understood.  At least, I don't see any reason to depart from the meaning of Article VI expressed by prominent members of that generation.

Ian C. Bartum: Constitutional Value Judgments and Interpretive Theory Choice
Michael Ramsey

Ian C. Bartum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Constitutional Value Judgments and Interpretive Theory Choice (Florida State University Law Review, Vol. 40, No. 2, 2013) on SSRN. Here is the abstract:

Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’ — a term’s meaning in one modality may not be fully translatable into another — there is no internal way to justify the choice of one approach over another. Bobbitt ultimately concluded that such acts of ‘decision’ are the product of ‘judicial conscience’; which some individuals possess (or exercise) to a greater degree than others.

I have always felt that Bobbitt’s resolution is probably correct, but still unsatisfying. I think we can do a little more to explain the processes of interpretive theory choice, even if those choices ultimately remain idiosyncratic and individual. To that end, I look to another account of choices made between incommensurable theories — that Thomas Kuhn gave in his work on scientific paradigm changes. Kuhn argued that, while no universal algorithm defines a ‘correct’ decision to adopt a new scientific paradigm, there are broadly shared choice criteria or ‘values’ that scientists regularly refer to when justifying their decisions. It is, Kuhn suggested, the scientist’s willingness to discuss and explain these underlying value judgments that makes her approach ‘scientific.’

This paper attempts to apply some lessons from Kuhn’s work to constitutional practice, particularly the choices we must make between Bobbitt’s interpretive modalities in outcome determinative cases. I derive a list of four overlapping and sometimes competing ‘constitutional values’ — constraint, flexibility, representation, and identity — from texts in the constitutional canon. I look to the canon because it important that the values I identify are broadly shared, as that is what allows them to serve as a somewhat ‘objective’ set of choice criteria. That is, when we make an interpretive theory choice, we should justify it in terms of the purposes we widely believe the Constitution serves in our legal practice. I then speculate on the ways that underlying value judgments may have influenced interpretive theory choices in several Supreme Court opinions, and conclude that judges should be more transparent in acknowledging and defending these often obscure processes.


A Comment on "'Original' Meaning Is Not Objective"
Michael Ramsey

Regarding my post on Professor Tara Smith’s article “Originalism's Misplaced Fidelity: 'Original' Meaning is not Objective,” Brett Bellmore emails: 

Another case of the galactic mass black hole calling the kettle black. Originalism isn't entirely objective. Living constitutionalism doesn't even try to be objective. It's a rejection of objectivity as undesirable!

Professor Smith is a philosophy professor and in particular an expert on Objectivism (in the Randian sense), so I’m not sure that she’s getting at the same idea of “objective” as a lawyer would.  But as a more general matter, I think Mr. Bellmore is right that calling originalism “not objective” is not a promising line of attack.

First, as he says, it’s a comparative question.  If the goal is an objective sense of the law, to make the criticism stick the critic needs a theory of interpretation that’s at least as objective, if not more so, than originalism.  Apart from a strong version of judicial restraint, which takes judges out of most constitutional questions altogether, I doubt there is one.  Further, originalism doesn’t claim to be entirely objective or free from opportunities for misuse – just more so than other approaches.  It is, as Justice Scalia said many years ago, the “lesser evil” (57 U. Cin. L. Rev. 849 (1989)). 

Second, originalists typically do not claim to be “objective” in the sense of viewing language as having a meaning independent of context.  To the contrary, originalists are centrally concerned with understanding the context in which the words were written (and are sensitive to concerns that that context may be too remote in time to be fully understandable).  Originalism claims to be “objective” in the sense that it is to a significant extent an inquiry about historical facts rather than about judges’ sense of the best policy.

Third, though I’m sympathetic to the argument that historical meaning is often difficult to determine and difficult to apply to new circumstances, I have a hard time understanding how one can argue that historical meaning can never (or hardly ever) be objectively determined.  Historians make claims about the meaning of historical documents all the time.  Of course there are disputes, but also there are many cases where there is broad agreement.  The Constitution should be no different (although if one thinks that the historical meaning of the document has legal consequences today, the disputes are likely to be sharper and more influenced by subjective considerations).  I have a high degree of confidence about the original meaning of some provisions I’ve studied closely, including that the declare war clause requires congressional approval to initiate armed conflict, that the supremacy clause gives treaties a legal status equivalent to statutes and that the Fourteenth Amendment’s citizenship clause gives birthright citizenship to the children of illegal aliens.  Other clauses, or other aspects of these clauses, may be more difficult to reconstruct.  But it doesn’t undermine originalism to say that sometimes original meaning is indeterminate.  (For further reading: Robert Bennett offers a version of the finding-original-meaning-is-impossible argument in his book-length debate with Larry Solum, and Solum absolutely devastates it in response.)

So in sum I agree that the “not objective” charge is, in a general sense, not especially effective.  The bigger problem with originalism for many people is that in fact the original meaning is reasonably determinable and doesn’t lead to results they like.


Jonathan Mitchell on Stare Decisis and Constitutional Text
Mike Rappaport

Jonathan Mitchell’s recent article on Stare Decisis and Constitutional Text has received some attention.  See here for the article’s abstract and here for a short post on it.  While I have not studied the article carefully, I have digested its basic argument.  Mitchell argues that the Supremacy Clause only establishes that the Constitution, federal statutes, and treaties are supreme law of the land.  While the Clause therefore requires that these sources of law take priority over nonsupreme sources, such as state law, Mitchell maintains that it does not specify any rule of priority as between these supreme types of law.  Mitchell also argues that judicial precedents are conspicuously absent from the listed types of supreme law.  Therefore, such precedents are nonsupreme law that cannot take priority over the Constitution, federal statutes, or federal treaties. 

Because Mitchell concludes that the Constitution is silent as to which of the three types of supreme law takes priority, the Courts are entitled to choose to which one to give priority.  When they choose one type over another (such as the Constitution over federal statutes), they are not acting unconstitutionally.  However, they could have chosen a different order of priority (such as federal statutes over the Constitution). 

From this, Mitchell reaches some pretty unusual conclusions:

First, the Supreme Court cannot strike down federal statutes as unconstitutional based on a precedent that erroneously interpreted the Constitution.  That would place a nonsupreme law (precedent) over a supreme law (a federal statute).  But the Court can uphold a federal statute based on an erroneous precedent.  The Constitution and federal statute are tied as supreme laws and therefore the Court has discretion to pick which one to enforce. 

Thus, the Supreme Court can choose to follow erroneous precedents that expanded the Commerce Power during the New Deal.  But, if the application of the Equal Protection Clause to the federal government is erroneous, the Court cannot follow that precedent, because that would place a nonsupreme law (precedent) over a supreme law (a federal statute).    

Second, the Supreme Court cannot uphold as constitutional a state law based on a precedent that erroneously interpreted the Constitution.  But the Court can strike down a state law based on a precedent that erroneously interpreted the Constitution.  Neither the state law or the precedent is supreme law, so they are on a par and the Court can pick to which one to give priority.

Thus, if Home Building and Loan v. Blaisdell is an erroneous precedent that mistakenly allows contract impairments, the Court cannot allow a state law that effects such an impairment.  That would permit a nonsupreme law (state law) to take priority over a supreme law (the Constitution).  But if Roe v. Wade is an erroneous precedent, the Court can strike down a state law that restricts abortion based on Roe.  That would involve two nonsupreme laws (precedent and state law) and the Court could decide to which one to give priority.

This is pretty weird.  The normal rule of priority is that the Constitution takes priority over federal statutes and treaties.  There is some controversy as to whether federal statutes or treaties should take priority, but the most common position, I believe, is that they are of equivalent status and therefore the later enactment takes priority. 

Despite the weirdness of Mitchell’s conclusions, they do seem to follow from his premises.  It is the premises, however, that I disagree with.  While I disagree with a great deal in Mitchell’s premises, I will restrict myself, in my next post, to just one aspect of his premises.

Yale Law School Conference on Living Originalism
Michael Ramsey

At Balkinization, Jack Balkin describes an important upcoming conference at Yale Law School on his book Living Originalism:

What makes this conference distinctive is that it focuses on the role of journalism and media as conduits of American constitutional culture. It pays attention to the role of journalists and media as important players in the construction of public opinion about the Constitution. The conference includes panels of constitutional scholars and of journalists who cover and write about constitutional issues.

The conference will be held April 27-28, 2012.


Joel Alicea & Donald L. Drakeman: The Limits of New Originalism
Michael Ramsey

Joel Alicea and Donald R. Drakeman have posted The Limits of New Originalism (University of Pennsylvania Journal of Constitutional Law, vol. 15, forthcoming), on SSRN.  Here is the abstract:

We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism’s focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of a New Originalist interpretation when the historical materials provide clear evidence of equally plausible but conflicting meanings. We suggest that Justice Paterson's opinion in Hylton offers a solution to this problem: where New Originalism cannot settle the question of original meaning, judges might turn to Old Originalism's focus on the intentions of the Founders. Our article thus makes three significant contributions to constitutional scholarship: (1) it identifies a critical weakness of New Originalism; (2) it demonstrates how the Supreme Court in the founding era used Old Originalism to resolve this problem; and (3) it represents the most complete analysis of the historical meaning of the taxation provisions in Hylton, which may prove to be useful for present or future litigation over the taxing power.


Orin Kerr on Judicial Activism
Michael Ramsey

At Volokh Conspiracy, Orin Kerr has these thoughts: The Different Meanings of Judicial Activism -- and Why They Matter for the Individual Mandate Case.

My view is consistent with his meaning #2, which I think is well put.  ("The decision expands the power of the courts to determine the rules of society").  On this meaning, he adds: "This kind of activism can be good or bad depending on whether you think the judges properly stepped in, so this version of activism isn’t necessarily a bad thing."  I agree.

I'm skeptical that his #3 ("The decision was not consistent with precedents"), which he seems to like, is meaningful, because consistency with precedents is so often in the eye of the beholder.  Further, I'm not sure it can or should be called "activist" to read precedents narrowly when the precedents themselves appear based on result-oriented adjudication, are otherwise contrary to one's view of the rule of law, or aggressively expand the power of courts.  Otherwise, "activism" becomes a one-way ratchet -- it would be "activism" to try to limit an "activist" decision.


Nelson Lund: Stare Decisis and Originalism
Mike Rappaport

Nelson Lund (George Mason University School of Law) has posted Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court's Errors (George Mason Law Review, forthcoming) on SSRN. Here is the abstract:

Originalism has had an uneasy relationship with stare decisis, but the two seem wedded in a way that precludes divorce and thus encourages adultery. Almost all originalists have decided, on pragmatic grounds, that the Supreme Court’s constitutional infidelities must sometimes be allowed to mature into de facto constitutional amendments. Writing in the Michigan Law Review, Jonathan Mitchell has proposed a new theory — based solely on the text of the Supremacy Clause rather than on pragmatic considerations — that purports to identify which interpretive infidelities must be rejected and which may be allowed to continue indefinitely.

According to this theory, it is unconstitutional for the Supreme Court to rely on stare decisis when, and only when, its precedents (a form of nonsupreme law) conflict with one of the three forms of supreme law identified in the Supremacy Clause. Accordingly, erroneous constitutional precedents may never be relied on to strike down a federal statute or to uphold a state law that conflicts with the supreme law of the land. Conversely, erroneous constitutional precedents may be relied on to uphold a federal statute or to strike down a state law.

Mitchell’s argument overstates the implications of the use of the word “supreme” in the Supremacy Clause, and it overlooks the principal purpose of the Clause. The better reading is that the Clause was meant to establish both the supremacy of federal law over state law and the obligation of state courts to respect that principle. The Supremacy Clause is simply silent about the Supreme Court’s duty when its precedents conflict with the original meaning of the Constitution.

Mitchell is right, however, to emphasize that the Supremacy Clause implicitly rejects the notion that Supreme Court opinions can be the supreme law of the land. Because the Clause is directed primarily at commanding state courts to follow the supreme law when it conflicts with a nonsupreme law, a reasonable inference is that state courts are not bound by erroneous Supreme Court opinions. If state supreme courts were to take that inference seriously, we might see a healthy intellectual competition between them and their federal counterpart. If all these contestants were to begin taking the Constitution more seriously than they do now, the nation could be the ultimate winner.

Update: I hope to have a post or two about Mitchell's article in the near future.   I should note that Lund has a discussion of the Supremacy Clause's effect on the constitutionality of precedent which is very similar to my own (which he cites).  Here is the main argument: 

The Clause is silent about the authority of judicial precedents. The principle and practice of stare decisis were at least as well established as the previous supremacy of state constitutions and statutes within their several jurisdictions. Yet no statement about a new limitation on stare decisis appears in the Supremacy Clause. Its manifest purpose is to clarify the dramatic new relation between state and federal law, and especially to make that relation unmistakably clear to state judges, who might naturally have been resistant to recognizing it.  Mitchell’s claim that the mere use of the word “supreme” in the course of this clarification also implies that the Supreme Court must adopt a novel and complex doctrine of stare decisis is imaginative, but not very plausible.

In addition, the sharp distinction that Mitchell draws between supreme law and nonsupreme law would also seem to imply that erroneous interpretations of federal statutes may never be adhered to. This would constitute a radical change from the judicial practice familiar to the framing generation, and it is almost impossible to believe that such an alteration would have been imposed by mere implication from the use of the word “supreme” in the Supremacy Clause.