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35 posts from July 2016


Mark Frassetto: The Law and Politics of Firearms Regulation in Reconstruction Texas
Michael Ramsey

Mark Anthony Frassetto (Counsel, Everytown for Gun Safety) has posted The Law and Politics of Firearms Regulation in Reconstruction Texas (4 Texas A&M L. Rev.  __ (2016)) on SSRN. Here is the abstract:     

In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts.

More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.


Aaron-Andrew Bruhl: The Jurisdiction Canon
Michael Ramsey

Aaron-Andrew Bruhl (William & Mary Law School) has posted The Jurisdiction Canon (Vanderbilt Law Review, forthcoming) on SSRN. Here is the abstract:

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject‐matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject‐matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.

This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes, first, a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of influences including docket composition, interest‐group activity, and the (potentially shifting) attitude of the Supreme Court toward the civil justice system. This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.

From an originalist perspective, I think it is very hard to justify many of these types of canons, which look like little more than federal courts disfavoring things the federal courts don't like.


Lawrence Solan: Can Corpus Linguistics Help Make Originalism Scientific?
Michael Ramsey

In the Yale Law Review's online forum, Lawrence Solan: Can Corpus Linguistics Help Make Originalism Scientific?  (126 Yale L.J. F. 57 (2016)). Here is the introduction (footnotes omitted):

James Phillips, Daniel Ortner, and Thomas Lee begin their engaging essay, Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical, by pronouncing originalism “the predominant interpretive methodology for constitutional meaning in American history.” They then describe and attempt to justify a new tool to improve originalist methodology: a large corpus of Founding-era documents, representative of a host of genres available to educated people of that period. As their title suggests, the brand of originalism they set out to improve is the version at times dubbed “the new originalism”—an iteration that seeks to construe the Constitution in accordance with the understanding of the state constitutional convention members who read its words and heard its supporters at the time.

This brief Essay expresses support for the project, but also focuses on its limitations in advancing originalist argumentation. While better empirical tools for determining original public meaning are valuable, they only get us so far, as a) there may be multiple original public meanings or no clear meaning that emerges from the corpora; b) we are lacking a coherent theory to justify when one original public meaning rather than another should be relied upon; and c) for abstract concepts such as “abridging the freedom of speech,” which we are likely to encounter in the constitutional context, it is unclear whether the original meaning ought to be interpreted thickly to include specific examples of the concept or thinly to define only the concept itself.

(Related post here).



Stephen Griffin on Justice Scalia
Michael Ramsey

Stephen Griffin (Tulane School of Law) has posted Justice Scalia: Affirmative or Negative? (101 Minnesota Law Review Headnotes 52 (2016)) on SSRN. Here is the abstract:

This short essay, part of an online symposium on Justice Scalia, assesses Scalia’s contributions to constitutional theory, especially the theory of constitutional interpretation. Drawing on some recent biographies, I argue that Scalia repeatedly deployed a rhetorical strategy known as preemptive argument. A preemptive argument attempts to occupy the argumentative terrain so that counter-arguments cannot get off the ground. Scalia made two preemptive moves that were highly influential – that original public meaning was sharply different from original intent and that the debate between contending positions in constitutional interpretation is best characterized as originalism versus nonoriginalism. I contend that both moves had a deleterious impact on the progress of American constitutional theory. I conclude with some thoughts on why Scalia often seemed so negative on the progress of American constitutionalism in general.


Richard Ekins: Objects of Interpretation
Michael Ramsey

Richard Ekins (University of Oxford - Faculty of Law) has posted Objects of Interpretation (Constitutional Commentary, forthcoming) on SSRN. Here is the abstract:

This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.

(No paper available for download, possibly due to issues at SSRN, but too good to pass up).


Eric Segall (and Ed Whelan) on Justice Ginsburg
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Ginsburg and the Emperor’s New Clothes.  From the core of the post:

Should Justice Ginsburg have spoken out is of course the real question. One of the leading experts on legal ethics in the country, Professor Steve Gillers, said no because the "rule of law" requires "the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated."  Professor Sanders agrees, writing that we need the public to trust the Court because the Justices are our best bulwark against tyranny, and without them we wouldn't have same-sex marriage, the right to choose, and other outcomes that progressives favor. In his words, "progressives do not want to live in a world where we have completely erased the line between politicians and judges." I assume Professor Sanders would agree that most conservatives don't want to live in that world as well. ...

Notice that neither Professor Gillers nor Professor Sanders actually said that Court decisions are free of political and even sometimes partisan influence, just that the public needs to believe that is the case. ...

In Bush v. Gore, the Justices handed George W. Bush the 2000 election based on what most people think were quite sketchy constitutional arguments. We all know (or at least are petty sure) that at the time all five Justices in the majority (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) all thought the country was better off with a Bush rather than a Gore Presidency while the four dissenters (Ginsburg, Stevens, Breyer, and Souter) would have preferred the opposite outcome. What is to be gained by the Justices pretending that law rather than all things considered values (including law) drove the decision? 


So, back to Justice Ginsburg. We know that she would rather have Hilary Clinton as President rather than Donald Trump, and we know that in virtually any case that came before her where that choice was presented she would vote for Hilary. What are we teaching our children and the "public" referred to by Professor Gillers when we demand that she not admit what is really true? Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions. As Professor Mark Tushnet put it so well, why do "people who acknowledge that Justices have political views that do influence their decision-making think there's something important about maintaining the facade that they don't?"

There is great separation-of-powers and federalism value in having a third branch of government act as a veto council over the other two branches and the states. ...

 And from a different perspective, a somewhat similar conclusion from Ed Whelan at NRO:

[T]he “living Constitution” approach that Ginsburg subscribes to—under which the Constitution will be said to mean whatever she wants it to mean—is nothing more than the thinly disguised imposition of her strongly held policy preferences. In short, for living-constitutionalists, the reality of impartiality is an illusion (even if it’s an illusion that some of them subjectively believe in—or at least find it useful to pretend to believe in).
Having embraced a constitutional approach that makes a sham of actual impartiality, why—other than to deceive us yahoos—should Ginsburg try to maintain the false appearance of impartiality? Let’s give her credit instead for exposing, once again, how nakedly political she is.


Daniel Hulsebosch: English Liberties Outside England
Michael Ramsey

Daniel J. Hulsebosch (NYU Law School) has posted English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire (Oxford History of English Law and Literature 1500-1700, ed. Lorna Hutson, Chapter 38) (Oxford University Press, Forthcoming) on SSRN.  Here is the abstract:     


We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant.

Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems.

Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human pr


Curtis Bradley: Doing Gloss
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) has posted Doing Gloss on SSRN. Here is the abstract:

In discerning the Constitution’s separation of powers among the three branches of the federal government, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice. There is substantial uncertainty, however, about the proper methodology for determining such “historical gloss.” In order to make progress on the methodological questions, the Essay contends that we first need to consider the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of non-judicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As the Essay explains, these differing justifications have differing methodological implications. This Essay considers in particular the differing implications that these justifications have for what constitutes relevant “practice” for purposes of determining gloss, and for the extent to which there must be a showing of institutional “acquiescence” in the practice. As will be shown, disaggregating the justifications for gloss helps explain variations in the types of evidence that courts have credited in discerning gloss. Perhaps most notably, it helps explain why courts are often less demanding in requiring evidence of institutional acquiescence than commonly-recited standards for gloss would tend to suggest.


Other Advisory Acts That Are Constitutional: The Legislative Veto and the White House Staff
Mike Rappaport

In a previous post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding.  That it was technically nonbinding would not prevent the relevant decisionmaker -- say the President -- from choosing to follow the referendum's result.

This aspect of the Constitution is not unique.  There are various other areas where technically nonbinding acts are allowed (and often followed), even though they would be unconstitutional if they were binding.  One involves the legislative veto.  A binding legislative veto, where a house of Congress by itself takes action, is unconstitutional (as a violation of bicameralism and presentment).

But each house of Congress expresses its views in various ways that are generally followed by the executive.  There are many legislative vetoes written into laws that might be interpreted to be binding.  Everyone understands that they cannot be enforced, but they are included anyway and are often (and perhaps consistently) followed "voluntarily."  One might argue that the provisions are unconstitutional if they are interpreted to require compliance with a house's decision.  But nothing would be changed if the state provisions stated that compliance with the decision was voluntary.  And then they would be clearly be constitutional.  An even clearer example involves earmarks, where the congressional committee lists spending decisions in committee reports, which are clearly nonbinding, but have been regularly followed in the past.

Another example of substantial nonbinding authority involves the White House Staff.  The White House Chief of Staff is one of the most powerful people in the government, yet constitutional law does not treat him as an "officer of the United States."  If here were such an officer,, then the Appointments Clause would normally require that an important officer like him be appointed with the advice and consent of the Senate.

But constitutional law treats the Chief of Stafff as a nonofficer on the ground that he only exercises advisory authority.  If the Chief of Staff calls the EPA Administrator and tells her to do something, the claim is either that the Administrator is not obligated to follow the instruction or, if she is, that is because the Chief of Staff is merely conveying the President's orders.

Jeffrey Toobin and Ralph Rossum on Justice Thomas' Abortion Dissent
Michael Ramsey

At The New Yorker, Jeffrey Toobin: Clarence Thomas Has His Own Constitution.

The truth is that Thomas’s view of the Constitution is highly idiosyncratic. Indeed, one reason he wrote so many opinions (often solo dissents and concurrences) was that no other Justice, including Scalia, shared his views. Thomas is a great deal more conservative than his colleagues, and arguably the most conservative Justice to serve on the Supreme Court since the nineteen-thirties.

While some Justices are famous for seeking consensus with their colleagues, Thomas seems to go out of his way to find reasons to disagree—often in the most provocative ways. ...

Far more than even Scalia did, Thomas endorses originalism—the belief that the Constitution should be interpreted as its words were understood at the time it was written. By a vote of 5–3, the Court struck down Texas’s restrictions on abortion clinics in Whole Woman’s Health v. Hellerstedt, but neither of the other dissenters (Roberts and Samuel Alito) joined Thomas’s opinion. What’s most extraordinary about Thomas’s dissenting opinion in the abortion case is not that he objects to the ruling; as he noted, “I remain fundamentally opposed to the Court’s abortion jurisprudence.” But Thomas also took the opportunity to reject more than a century of the Court’s constitutional jurisprudence.

He doesn’t respect the Court’s precedents. He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. 

 For a different take, at Liberty Law Blog, Ralph Rossum: The Court’s Last Shreds of Legitimacy.  From the introduction:

His second significant opinion was delivered last week; however; his dissent in Whole Woman’s Health v. Hellerstedt was not about whether there is a constitutional right to abortion but rather about how “the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion”—is destroying the principle of the rule of law.

Thomas’s dissent is a lament to the failed “promise of a judiciary bound by the rule of law.” It concludes with these words: “The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where law, properly speaking, has any further application.’ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.”

Just as Thomas concludes his opinion by quoting the late Justice Antonin Scalia, so he begins it. Justice Breyer’s majority opinion, he writes, “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Stenberg v. Carhart (2000) (Scalia, J., dissenting).” In fact, Thomas quotes Scalia seven times in his dissent, and there is a reason.  In United States v. Virginia (1996), Scalia attacked the Court’s use of intermediate scrutiny, declaring that it applies it “when it seems like a good idea to load the dice.” Thomas’s entire dissent builds on Scalia’s critique and the devastating consequences for the rule of law that flow from it. “[T]he label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it ‘rational basis,’ intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.”

Thomas pointed out that ‘[t]hough the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960s did the Court begin in earnest to speak of ‘strict scrutiny’ versus reviewing legislation for mere rationality, and to develop the contours of these tests.”  Over time, “the tiers of scrutiny proliferated into ever more gradations,” with Craig v. Boren (1976) adding intermediate scrutiny for sex-based classifications and with Casey adding the undue-burden test, “ yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review.” Yet, the use of these “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means (United States v. Virginia, Scalia, J., dissenting)” is, for Thomas, simply “illegitimate.” “The Constitution does not prescribe tiers of scrutiny. The three basic tiers—‘rational basis,’ intermediate, and strict scrutiny—‘are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’”

RELATED:  In the Weekly Standard, Adam White: Justice Thomas, Undaunted.