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34 posts from June 2016

06/22/2016

The Interactive Constitution on the Declare War and Commander-in-Chief Powers
Michael Ramsey

The Interactive Constitution is an interesting project of the National Constitution Center, described here:

In the Interactive Constitution, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of the Constitution. Here’s how the Interactive process works: Scholars are selected with guidance from leaders of the American Constitution Society and the Federalist Society—two prominent constitutional law organizations that represent different viewpoints on the Constitution. Leaders of each organization recommend scholars to write about each provision of the Constitution. The pairs of scholars find common ground, writing a joint statement of what they agree upon about that provision’s history and meaning. Then the scholars write individual statements describing their divergent views on that part of the Constitution.

The Interactive Constitution is a three year project. So far, we have completed Interactive materials for the first 15 Amendments of the Constitution. During the course of the next two years, we will complete Interactive materials all of the provisions of the Constitution. In the meanwhile, yet-to-be completed provisions of the Constitution are annotated with materials from Annenberg Classroom.

In a recently posted part of the project, Stephen Vladeck and I write on the declare war clause and the commander-in-chief clause.  We don't end up disagreeing on much, especially on the declare war clause.  Perhaps the editors should have picked someone more pro-executive than I am.  I do try to explain the strongly pro-executive view, even though I don't accept it.  And I have a somewhat more expansive idea of what military actions the President can take short of war, as outlined in this article. On the commander-in-chief power, I argue that the President has a narrow set of exclusive powers, basically in line with this article.  This is more than Professor Vladeck wants to acknowledge, but still less than the strong pro-executive position.

In any event, the project is an excellent one, even if our exchange is less contentious than some might hope.

06/21/2016

New Book: "The Bill of Rights: The Fight to Secure America's Liberties" by Carol Berkin
Michael Ramsey

Recently published, by Carol Berkin (Baruch College, History): The Bill of Rights: The Fight to Secure America's Liberties (Simon & Schuster 2016).  Here is the book description from Amazon:

“Narrative, celebratory history at its purest” (Publishers Weekly)—the real story of how the Bill of Rights came to be: a vivid account of political strategy, big egos, and the partisan interests that set the terms of the ongoing contest between the federal government and the states.

Those who argue that the Bill of Rights reflects the founding fathers’ “original intent” are wrong. The Bill of Rights was actually a brilliant political act executed by James Madison to preserve the Constitution, the federal government, and the latter’s authority over the states. In the skilled hands of award-winning historian Carol Berkin, the story of the founders’ fight over the Bill of Rights comes alive in a drama full of partisanship, clashing egos, and cunning manipulation.

In 1789, the nation faced a great divide around a question still unanswered today: should broad power and authority reside in the federal government or should it reside in state governments? The Bill of Rights, from protecting religious freedom to the people’s right to bear arms, was a political ploy first and a matter of principle second. The truth of how and why Madison came to devise this plan, the debates it caused in the Congress, and its ultimate success is more engrossing than any of the myths that shroud our national beginnings.

The debate over the Bill of Rights still continues through many Supreme Court decisions. By pulling back the curtain on the short-sighted and self-interested intentions of the founding fathers, Berkin reveals the anxiety many felt that the new federal government might not survive—and shows that the true “original intent” of the Bill of Rights was simply to oppose the Antifederalists who hoped to diminish the government’s powers. This book is “a highly readable American history lesson that provides a deeper understanding of the Bill of Rights, the fears that generated it, and the miracle of the amendments” (Kirkus Reviews).

At the L.A. Review of Books, Stephen Rohde has a positive review: A Stronger Constitution: Carol Berkin’s “The Bill of Rights”.  From the introduction:

In The Bill of Rights: The Fight to Secure America’s Liberties, Carol Berkin, the presidential professor of History at Baruch College and a member of the history faculty of the Graduate Center of CUNY, Emerita, combines prodigious research and an engaging writing style to provide a fresh look at the fierce political battles over amending the brand new Constitution to add express protections for individual rights. In a relatively brief but erudite account of this pivotal period in American history, Berkin has mastered key source materials to present a nicely paced story laced with lively wit and sure-footed assessments of her important subject.

Berkin considers the Declaration of Independence and the Bill of Rights “the two greatest written legacies of the Revolutionary generation.” She insists that the “men who produced the Bill of Rights were neither demigods nor visionaries. They were mere mortals, some brilliant, some quite ordinary, most of them wealthier and better educated than their neighbors.” Berkin’s most powerful insight is to place readers in the very specific circumstances the Founders faced. For them there was no guarantee that the new government they were building would last. Instead of viewing the Bill of Rights as just a lofty statement of high-minded principles, Berkin demonstrates through contemporaneous letters and speeches how these 10 amendments helped quell widespread opposition to the new Constitution and ensure popular support for the new and more energetic federal system of government.

(Via Legal History Blog).

Note: Professor Berkin is also the author of A Brilliant Solution: Inventing the American Constitution (Mariner Books 2003).

06/20/2016

Call for Papers: Originalism Works-in-Progress Conference, February 2017
Michael Ramsey

[Editor's note: the following announcement is posted on behalf of me, my colleagues Michael Rappaport and Steven Smith, and the USD Center for the Study of Constitutional Originalism.]

On February 17-18, 2017, the Center for the Study of Constitutional Originalism at the University of San Diego Law School will hold its Eighth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.

We invite all interested scholars to submit a work-in-progress for the Eighth Annual Conference.  A work in progress is a draft paper in article or book chapter form that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of a one to three page abstract (and, if you like, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Submissions can be sent to us now, if possible, but in any event by the end of August.  We will ask that the selected papers be circulated to conference participants in late January, 2017.  The Center will cover travel expenses, lodging, and meals for paper authors and commentators.  The Call for Papers page is here.  

In addition to paper authors and commentators, we would like to invite all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  The Center would be happy to pay for the principal meals for those attending the entire conference but not giving a paper or serving as a commentator.  

We hope you will be able to join us in San Diego.  Also, feel free to forward this invitation to anyone you believe would be interested.  If you have any questions, do not hesitate to contact any of us. 

06/19/2016

New Book: The Emergence of One American Nation, by Donald Fraser
Michael Ramsey

Recently published: Donald J. Fraser, The Emergence of One American Nation: The Revolution, the Founders, and the Constitution (Fraser & Associates, 2016).  Here is the book description from Amazon: 

Divisiveness is the hallmark of American politics today. Red state versus blue; liberal versus conservative; secular versus religious; the list goes on. Sometimes it seems we are no longer one nation, but in fact we are. Division and argument have always been a part of the American scene, no more so than at our founding.

In the Emergence of One American Nation, Donald J. Fraser explores the difficulties that the founding generation confronted in molding the United States into one nation. At the heart of that endeavor was the effort to create and ratify a new Constitution for the country, one to replace the failed Articles of Confederation. Fraser not only explains the American leaders’ process of constitution making, but places it clearly in the context of the separation from Great Britian, the drafting of the Declaration of Independence, and fighting the Revolutionary War. 

Fraser’s work not only tells of the events that led to the creation of one American nation, but also includes engaging portraits of the individuals who helped bring about the revolution and the new political order under the Constitution, including Franklin, Washington, Adams, Jefferson, Madison, Hamilton, and a host of lesser known but interesting characters.

06/18/2016

Evan Bernick on the Role of the Judiciary
Michael Ramsey

At Huffington Post, Even Bernick: The Constitution’s Keystone: Why Our Independent Judiciary Was No ‘Afterthought’ (responding to this New York Times Op-Ed by Barry McDonald [Pepperdine]: Eight Justices Are Enough).  Professor McDonald argues in part: 

The Supreme Court today is both political and powerful in ways that would be unrecognizable to the framers of the Constitution. They penned a mere five sentences creating a “supreme Court” and defining its jurisdiction. The judicial branch was something of an afterthought for them, because they believed that in a democracy the elected branches would be responsible for governing the country.

Judicial review, in its modern sense, did not exist. As the framers envisioned it, the justices appointed to the Supreme Court would mainly interpret and apply federal law when necessary to resolve disputes involving the rights of individuals. And though the framers’ views on the court’s role in interpreting and enforcing the Constitution are the subject of debate, it seems most likely that when disputes required determining whether a federal law comported with the Constitution, the court’s interpretation was supposed to bind only the parties in the particular case — not the legislative and executive branches generally.

Bernick responds:

McDonald proceeds from false premises about the Constitution’s substantive mission and the constitutional role of the judiciary, and he arrives at conclusions that are incompatible with judges’ constitutional duty.

Professor McDonald’s analysis is driven by what I have referred to as the “myth of majoritarianism”—the belief that the Constitution’s primary substantive mission is the facilitation of majority rule. Gallons of scholarly ink have been spilt in the course of efforts to reconcile the Constitution’s purportedly majoritarian character with the existence of an independent judiciary, staffed by unelected judges who are empowered to give authoritative expositions of law that bind elected officials. The myth of majoritarianism is responsible for an enduring academic obsession with the“countermajoritarian difficulty” that judicial review supposedly poses in a majoritarian democracy.

Although it has many adherents, the myth of majoritarianism is both false and pernicious. The Constitution authorizes and circumscribes government power in order to protect individual rights from the minoritarian tyranny of the few and the majoritarian tyranny of the many. No more does the government created by “We the People” have the authority to deprive individuals of the “blessings of liberty” that (according to the Preamble) the Constitution was “ordain[ed] and establish[ed]” to “secure,” than does the Declaration of Independence, by stating that governments derive their “just powers” from the “consent of the governed,” confer legitimacy upon governments that systematically violate “unalienable rights.” The Constitution’s mission of rights-protection is evident in both its explicit protections for individual rights and its structural limits on democratic decision-making, which create numerous chokepoints through which legislation must pass and which serve to prevent any government entity from attacking individual rights unopposed.

Once we understand the function of the Constitution’s architecture, we can appreciate how an independent judiciary serves as its keystone.

Earlier, Lyle Denniston had some similar thoughts at Constitution Daily: Constitution Check: Was the Supreme Court only an afterthought for the Founders?  He argues:

[The Court's power] is generally understood to mean the power to decide what the Constitution means and to enforce it against the actions of Congress and the Executive Branch.  It is true that this authority was questioned during the constitutional ratification period, but it is also true that those directly involved in writing and promoting the basic document did not share that skepticism.  They believed that an independent system of courts was vital to human liberty, and the rights guaranteed by the Constitution.   To them, it was hardly an afterthought.

Historians generally accept that Alexander Hamilton’s essay No. 78, in the Federalist Papers, was a true reflection of what the founding generation believed about the judiciary.  And it was less than a generation later – a mere 15 years – that Chief Justice John Marshall famously declared that “it is emphatically the province and duty of the judicial department to say what the law is.”  That was what Marbury v. Madison stood for in 1803, and stands for today.

In every generation, it seems, revisionist ideas come back into vogue in the nation’s public discourse about the Constitution, and not uncommonly the suggestion arises that the Supreme Court is far too powerful and needs to be put back into the limited place that, supposedly, the founding generation wanted it to have.

This is sometimes offered as “originalist” thinking about what the Constitution truly meant in the 18th Century.  True, there were “anti-Federalists” who fretted back then about the power that the new Supreme Court would have, as Hamilton recognized and as he sought to answer in Federalist 78.  Hamilton’s view[s], surely, were closer to the prevailing sentiment at the time than were those who simply did not want the new Constitution even to be ratified.   They did not get their wish.

It seems to me, though, that there is a big difference between the Court playing the active role that Hamilton envisioned and what the modern Court does.

06/17/2016

Fact-Sensitivity of the Constitutional Referent
Chris Green

Apropos of Mike Ramsey's post below and Will Baude's request that I call my office, I think I want to take Mike Dorf's side here.  It is possible for everyone at the time of the Founding to agree about a constitutional outcome, but nonetheless to be wrong.  Everyone at the time the Constitution was drafted (at least, everyone who mattered when the interim rules of Art. I, sec. 2, cl. 3 were drafted) thought that it was constitutional to give more representatives to Maryland than to North Carolina. But that conclusion depended on the incorrect-but-apparently-universal belief among the relevant Founders that Maryland's free-population-plus-three-fifths-of-its-enslaved-population was larger than North Carolina's (see here at 1623). The constitutional rule is "according to their respective numbers," and that applies to the actual facts, even if all of the relevant Framers got those facts wrong. Similarly, as Mike Dorf explains, if "bear" in the context of the Second Amendment means "bear in the home or in public, subject to governmental restrictions as to manner," then it might be permissible to regulate the manner of public arms-bearing  (e.g., by requiring open carrying), even if it would not be permissible to ban public arms-bearing altogether. Whether concealed-carry bans are constitutional might depend on whether they are paired with open-carry bans. If they were not paired with open-carry bans at the Founding, then the Founders' partly-fact-dependent conclusion would not be binding on us today, because it was not actually baked into the Constitution itself.

"Semantic originalism" is a term which I think Ronald Dworkin invented in his reply to Scalia's Tanner Lectures to make a point which I think works better if put in terms with a longer philosophical pedigree. I use "original textually-expressed sense," building on a tradition in the philosophy of language going back to Gottlob Frege (and beyond; a very influential seventeenth century logic textbook by Arnauld and his colleagues made the same distinction) to make the same point (at least, a point which I think is the same as Dworkin's!).  It's not absolutely clear quite what Dworkin meant by the term, but he distinguished between "semantic originalism" and "original expectations originalism"; I take Dorf's "First Order Originalism" to be likewise anchored solely in original expectations (Fregean referent, Carnapian extension, and Millian denotation, as I would put it), rather than higher-order notions like meaning (Fregean sense, Carnapian intension, or Millian connotation, as I would put it). 

As I see it, the sense originally expressed by the text of the Constitution is what the phrase "this Constitution" in Article VI makes binding, not the original reference or collection of things referred to by the Constitution. Building cars changes the referent of "car," but not its sense. Banning open carry might likewise change the referent of the category "the right of the people to keep and bear arms," while leaving the binding sense expressed by those words (as originalists rightly insist) unchanged.

Michael Dorf on Originalism and Concealed Carry (with my Comments)
Michael Ramsey

Michael Dorf at Dorf on Law: Second Thoughts About the Ninth Circuit's Second Amendment First-Order Originalism. It begins:

Late last week, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit rejected a Second Amendment challenge to a California law that requires one to demonstrate "good cause" to county officials in order to obtain a license to carry a concealed firearm. The ruling,Peruta v. County of San Diego, is notable in part for what it does not decide. The plaintiffs argued that the SCOTUS rulings in District of Columbia v. Heller and McDonald v. City of Chicago protect an individual right to possess firearms for self-defense that applies outside as well as inside the home, and that in combination with another California law generally forbidding open-carry of firearms, the good-cause requirement operates as a de facto ban on public-carry for anyone who cannot show a special reason for a concealed-carry permit.

The en banc opinion by Judge Fletcher does not exactly reject that argument but concludes that it is not presented because the plaintiffs did not challenge the law restricting open-carry. [ . . . ] The court then concludes that there is no right to carry a concealed firearm.

Professor Dorf then discusses Judge Fletcher’s historical methodology:

The opinion carefully parses sources dating back to the end of the thirteenth century to show that there has never been a right to carry a concealed firearm: not in England; not in colonial America; not at the Founding; not in the period leading up to the adoption of the Fourteenth Amendment; and not since. With respect to the state of the law when the Fourteenth Amendment was adopted, the court concludes that "an overwhelming majority of the states to address the question — indeed, after 1849, all of the states to do so — understood the right to bear arms, under both the Second Amendment and their state constitutions, as not including a right to carry concealed weapons in public."

Judge Fletcher is not by any means a thoroughgoing originalist, but Heller and McDonald purport to find the individual right to possess firearms in the home in the historical understandings of the Second and Fourteenth Amendments, so Judge Fletcher turns the tables on the proponents of gun rights: If history is the basis for finding a right to firearm possession in the home, then it is also the basis for rejecting a right to carry a concealed firearm in public.

The post moves to discuss first-order originalism and its place in Second Amendment interpretations:

But do Heller and McDonald really command what we might call first-order originalism in all Second Amendment cases? By first-order originalism I mean an approach that seeks to answer every question about the scope of the Second Amendment (or the Fourteenth, when state and local laws are at issue) by a historical test.

There is some support for first-order originalism in Heller itself. For example, in discussing permissible limits on the right to possess firearms, the Heller opinion states:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[I]f the longstanding-ness of limits on firearms possession by felons or on bringing firearms into sensitive places like government buildings validates those limits, then one can sensibly argue that the longstanding-ness of prohibitions on concealed carrying of firearms validates a permit requirement to carry a concealed firearm.

And yet there is something wrong with first-order originalism even for a right that is justified in originalist terms. [ . . . ] The question is not to be resolved by looking to history as a first-order matter. Rather, history establishes the scope of the right as a semantic matter: the Second Amendment covers weapons "in common use," but in giving content to "common use" courts should ask what weapons are in common use today, not what weapons were in common use in 1791 or 1868.

I think Heller and McDonald were wrongly decided. Moreover, I'm not an originalist of any sort. However, I do think that if one is going to be an originalist, semantic originalism makes a lot more sense than first-order originalism. Many questions will be unanswerable by first-order originalism, because they only arise in modern circumstances. Moreover, fashioning sensible doctrine requires the courts to make the law cohere, which is not always possible using a strictly historical test.

My thoughts: I'm not at all following this distinction between "semantic originalism" and "first order originalism" (plus I have a hard time not thinking of "first order" originalism as a Star Wars reference).   It seems to me that the straightforward question is whether the right to "keep and bear Arms" is "infringed" by concealed carry restrictions.  And since concealed carry restrictions were known in the founding era, we can assess that question by asking what the founding era thought of concealed carry restrictions.  That's basically the way Judge Fletcher framed the issue.  Whether he got the right answer or not is a different matter, but David Kopel thinks he did, and I would not argue with Professor Kopel on this issue.  

Suppose that it's right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right.  Is Professor Dorf suggesting that they nonetheless could be unconstitutional today?  I can't imagine how, as an originalist matter, that could be so.  Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error.  But here the language is at best ambiguous on the right to concealed carry (even if one thinks "bear[ing] Arms" means carrying them in public).  If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.  I'd be surprised if many actual originalists disagree with this analysis, whatever Professor Dorf thinks they should think.

06/16/2016

Eric Posner, Michael McConnell et al. Discuss Presidential Power
Michael Ramsey

At Intelligence Squared, a debate, with the resolution being: The President has usurped the Constitutional Power of Congress.  Pro: Michael McConnell (Stanford) and Carrie Severino (Judicial Crisis Network); con: Adam Cox (NYU) and Eric Posner (Chicago). 

Here is a description of the debate:

The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a robust-and fearsome-list of powers. James Madison assumed that "[i]n republican government, the legislative authority necessarily predominates," and he cautioned that the legislative department may tend to "draw[] all power into its impetuous vortex." But modern politics and law seem to tell a quite different story. With executive orders, administrative regulations, creative interpretations of federal statutes, and executive agreements with other nations, it may seem that the President, not Congress, is, in effect, wielding the most potent legislative power. Indeed, the Supreme Court is currently poised to decide whether President Obama's unilateral immigration actions usurped Congress's power and flouted his duty to "take Care that the Laws be faithfully executed." But some argue that this is nothing new: they say that the President is not exercising legislative power; he is simply exercising his well-established executive discretion. Is Congress still the most powerful branch, or is this the era of the imperial presidency? Has the President usurped Congress's legislative power?

I'm not sure if the right phrase is "has usurped" or "has been handed."

(via ericposner.com).

06/15/2016

A Reply on "The Garland Affair"
Robin Bradley Kar & Jason Mazzone

[Editor's Note: For this guest response, we welcome Robin Bradley Kar, Walter V. Schaefer Visiting Professor of Law at the University of Chicago Law School and Professor of Law and Philosophy at the University of Illinois College of Law, and Jason Mazzone, the Lynn H. Murray Faculty Scholar in Law and Co-Director, Program in Constitutional Theory, History and Law, also at the University of Illinois College of Law.  This post responds to several posts on this blog (see here and here) criticizing Professor Kar and Mazzone's article on the Garland nomination.  In accordance with usual practice (although it is not a constitutional rule!) I will let our guest responders have the last word.]

We would like to thank Michael Ramsey for his recent attention on this blog to our essay, The Garland Affair, which discusses the history of U.S. Supreme Court appointments and the bearing of that history on President Obama’s attempt to appoint a replacement for Justice Scalia. We offer historical evidence that it is unprecedented for the Senate to attempt a deliberate interpresidential transfer of Supreme Court appointment powers (in this case from President Obama to an unelected successor) absent contemporaneous questions about the status of the nominating President as the most recently elected president.

Ramsey focuses attention on the constitutional issues we raise in our essay. This reply will, accordingly, focus on those same issues. Nonetheless, we emphasize that constitutional issues are only one part of The Garland Affair. Our primary claim is that a deliberate interpresidential transfer of Supreme Court appointment powers in current circumstances contravenes more than two centuries of historical tradition. Hence, even if the tradition we identify has not ripened into a constitutional rule, departing from this unbroken historical tradition would mark a much sharper departure from history and internal norms of senatorial fair dealing than has thus far been recognized. In our essay, we go to great lengths to describe the pragmatic costs of such a break to the impartiality and appearance of impartiality of the Judiciary; to well-settled forms of democratic deliberation as they relate to Supreme Court appointments; and to the functioning of our constitutional form of governance. Ramsey is right, though, that we make the further argument that this tradition may have also ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. If so, then the Senate Republicans’ current plan violates the Constitution as well.

When addressing our constitutional arguments, Ramsey acknowledges that our historical arguments are “strong”. He nevertheless questions our assertion that the evidence we present casts doubt on whether the Senate has the constitutional “power to deliberately divest a sitting President of his Supreme Court appointment powers” as opposed to a constitutional power to provide “advice and consent” on particular candidates (i.e., by confirming, rejecting, or resisting them on the merits, using a wide array of senatorial procedures). According to Ramsey, our characterization of the issue “assumes the conclusion” because—in Ramsey’s word’s—“[t]he President’s ‘appointment powers’ are to nominate a candidate and to appoint a nominee if the Senate gives advice and consent.” But it seems to us that Ramsey’s presentation of the issue itself assumes a conclusion. The Appointments Clause actually says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . .  Judges of the [S]upreme Court  . . . .” The Appointments Clause also explicitly gives Congress the power to divest the President of some appointment powers and to “vest them as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” On the other hand, the Appointments Clause does not give Congress (or any other body) the same divestment power with respect to Supreme Court appointments. So there are two possibilities here. Either—as Ramsey assumes—the Senate’s power to provide “advice and consent” with respect to Supreme Court nominees includes a further power to deliberately divest Presidents of their Supreme Court appointment powers (a power which Congress nevertheless explicitly lacks and no other body is explicitly granted when it comes to Supreme Court appointments). Or it doesn’t. Where text is ambiguous, historical practice can provide needed clarification. Here, as we show in our essay, history would resolve this textual ambiguity in favor of a rule against divestment of Presidents’ Supreme Court appointment powers except in the highly unusual circumstances where there are contemporaneous questions about the status of the nominating President as the most recently elected President.

If this history has further ripened into a constitutional rule, as it may well have, then the Senate therefore lacks the constitutional power to do what it is currently trying to do. Put simply, it cannot deliberately divest President Obama of his Supreme Court appointment powers using any procedures—though it can and should consider and confirm, reject or resist particular candidates based on their merits (such that the end result might actually be no appointment or an appointment only of a second- or third-choice nominee). When it comes to disambiguation, our view does not assume any conclusion in the way that Ramsey’s interpretation does. We explicitly rely on historical evidence to avoid the need for any such assumptions.

Second, Ramsey suggests that “although some Republican Senators may be guilty of rhetorical excess, I think it wrong to say (as Kar and Mazzone do) that the Senate is ‘simply refus[ing] to consider any nominee from a particular President.” Ramsey explains that he is “confident that if the President were to nominate Paul Clement (or even a more moderate but originalist oriented judge) the Senate would consider the nominee.” If this assessment is accurate, it would be a major concession. It would suggest that Senate Republicans are actually resisting Garland on the merits, rather than, as they have repeatedly said, seeking to let the American people weigh in on the appointment through their choice of President in November. If Senators are doing what Ramsey suggests, then that fact raises a number of obvious questions: How exactly do Senate Republicans know to reject Garland, but not Clement, on the merits even though these Senators are not willing to meet with Garland or learn more about his judicial philosophy? And might not the public, told it is being given the opportunity to weigh in on the next appointment, legitimately ask whether Senate Republicans are simply lying? At what point do actions like these go beyond advice and consent with respect to particular nominees to become, as we suggest, an effort to divest President Obama of his undisputed constitutional powers to choose nominees? Finally, why is the Senate breaking its own Rule 31, which suggests that advice and consent is given by the full Senate in response to particular nominees?

Ramsey’s suggestion that Senate Republicans may secretly be using nominees’ explicit commitment to originalist methodology as a litmus test for judicial impartiality raises additional concerns. We agree, of course, that it would be disturbing and rejection-worthy if, after a full vetting, the Senate were to find that Judge Garland is not committed to interpreting the Constitution correctly. We should not allow Justices onto the Court who are willing to let personal or political bias intervene in their legal opinions. But can much more be said than that?

If one is a legal positivist and believes that the content of law is determined completely by social facts, then, as William Baude’s recent work suggests, originalist methodologies may be part of what objectivity in legal judgment requires in our legal system. But Baude’s work is contestable, as is the precise form of originalism that the social facts would require and whether particular judges who do not express an explicit commitment to “originalism” are nevertheless following the right methodology. (Would “living originalist” Jack Balkin satisfy the litmus test? Would “practical originalist” Samuel Alito? Would “faint-hearted” originalist Antonin Scalia? And what about the many judges that Baude claims are implicitly doing the right thing without calling themselves “originalists”?) When questions like these are contestable by the best legal minds, how can the Senate require more of a Justice than to express commitment to getting the law right, using whatever methodologies are appropriate given the right answers to hard questions like these? And if identifying what the law is requires some moral or political insight, as Ronald Dworkin suggests, then perhaps there are normative grounds to accept some form of originalism. Once again, however, that is contestable, as is the precise form and scope that originalist reasoning should play if accepted on these grounds.

More generally, evaluation of methodological approaches and their relationship to impartiality should not occur behind closed doors. Besides the fact that secrecy means we don’t get to know precisely what Senators actually understand originalism and impartiality to be, truly democratic assessment of a nominee’s methodology and its impartiality demands public discussion. How wonderful it would be to have, for example, a confirmation hearing in which a candidate is asked some methodological questions: Do you consider originalism to be the correct methodology to interpret the Constitution? If so, what kind of originalism do you have in mind? How would you go about conducting originalist analysis? What do you do if that analysis does not yield a clear answer to a concrete question? Please give us an originalist interpretation of the following provision of the Constitution: _______” How wonderful to have prominent scholars testify that originalism should be a litmus test and explain why and in what precise form. If, as Ramsey suggests, Garland is disqualified on the basis of methodology, then wouldn’t a confirmation hearing bear that out—such that Obama could then proceed to select a different candidate who is more appropriately dedicated to getting the law right?   

But let us now return to the main issue raised by Ramsey’s remarks, which is whether the unbroken line of senatorial practice that we identify in our essay has ripened into a constitutional rule. The alternative—as Ramsey suggests—is that we have identified only a long-standing and unbroken “courtesy” that the Senate has given every past President in President Obama’s circumstances. If so, then the current Senate Republican plan, which promises not to consider any Obama nominee, is merely a breach of internal senatorial norms of courtesy and fair dealing that have otherwise prevailed since the earliest days of the Republic. As noted, that breach would generate grave pragmatic risks, which have not yet been fully appreciated, and which we discuss in more detail in our essay. But the plan may not raise a further constitutional violation.

So which one is it and how might we know? Ramsey’s other arguments are dedicated to raising doubts about whether the precise historical traditions we identify have ripened into constitutional rules. All of these doubts are essentially epistemic: Ramsey points out that it is hard (perhaps even impossible) to know when historical facts require a conclusion of constitutional ripening. We agree. In fact, in our essay, we point out that this is initially true of all ripening arguments—including all those that have been successful in the past.  Rather than arguing that the Senate Republicans’ current plan definitively violates the Constitution, we therefore propose a more modest conclusion. We suggest that this unprecedented breach from more than two centuries of U.S. tradition presents a “hard” constitutional question—i.e., a novel and unprecedented constitutional question that cannot be definitively settled either way based on the available historical and legal evidence.

But this fact clearly cuts both ways. It explains why Ramsey is right to wonder whether ripening has taken place and it explains why it would be irresponsible for Republican Senators simply to dismiss any risk of a constitutional violation outright. In our essay, we therefore conclude:

Fortunately, there remains an easy way to avoid the pragmatic and constitutional risks that loom large. The Senate can simply follow the path that its predecessors have taken in every analogous situation in the past [including the case of Abe Fortas] and proceed to full Senate consideration of President Obama’s nominee (or nominees) to fill the Supreme Court vacancy. The Senate can similarly exercise its undisputed power to confirm, reject or resist Obama’s particular Supreme Court nominees on the merits. Any further efforts to deliberately and completely divest President Obama of his constitutionally-designated power to appoint Justices to the Supreme Court should, however, be abandoned.

One last point. From among his epistemic arguments, the one that Ramsey finds the most compelling is to question whether historical traditions can ripen into constitutional rules when they “create a constitutional limitation that does not exist in the Constitution itself” as opposed to relaxing “stricter separation of powers rules apparently imposed by the Constitution.” If this were true, then it would still be a hard question whether the historical tradition we identify has ripened into a constitutional rule. There is, moreover, nothing we can find in the ripening jurisprudence that suggests the limitation Ramsey proposes. To the contrary, in his concurrence to NLRB v. Noel Canning, Justice Scalia wrote much more generally that: “Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” 134 S. Ct. 2550, 2594 (2014) (Scalia, J. concurring, joined by Thomas, Alito & Roberts, JJ.). In NFIB v. Sebelius, Justice Roberts similarly explained that the Commerce Clause did not give Congress the authority to enact the individual mandate provision of the Affordable Care Act in part for the simple reason that “sometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’s action.” 132 S. Ct. 2566, 2586 (2012) (citation omitted). Here, precedent for the Senate Republicans’ plan is entirely lacking.

The deeper point, though, is that first principles matter. Because the federal government is one of limited and enumerated powers, there is a pressing question here: From where precisely does the Senate get the unprecedented power that it is currently asserting to completely and deliberately extinguish President Obama’s Supreme Court appointment powers? Neither text nor history point to any such senatorial authority.

 We thank Professor Ramsey for offering us a chance to reply here.

Note: For those who are interested in further discussion of these issues, we note coverage in the NY Times (“Study Calls Snub of Obama’s Supreme Court Pick Unprecedented”) and the Huffington Post (“The Senate Republicans, Merrick Garland, and the Lessons of History”). As Ramsey has noted earlier, Ed Whelan has also posted a six-part critique of our essay in the National Review (“Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 6”—with links to earlier posts). Those critiques focus primarily on the non-constitutional aspects of our argument. Our response, also published in the National Review, is here.

Jeffrey Pojanowski & Kevin Walsh: Enduring Originalism
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) & Kevin C. Walsh (University of Richmond School of Law) have posted Enduring Originalism (Georgetown Law Review Vol. 105, 2016) on SSRN. Here is the abstract:

Why should anyone be a constitutional originalist today? Why won’t originalism go away? These questions are related and important, and this Article tackles them head-on.

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, then originalism is not the law and perhaps should be abandoned in favor of what is.

The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought — which is also the framers’ tradition — supplies a solid jurisprudential foundation for constitutional originalism in our law today.

This isone of the papers from the San Diego Originalism Works-in-Progress conference last February.  Very interesting.