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35 posts from December 2016


Kevin Walsh: Judicial Departmentalism
Michael Ramsey

Kevin C. Walsh (University of Richmond - School of Law) has posted Judicial Departmentalism: An Introduction (William & Mary Law Review, forthcoming) on SSRN.  Here is the abstract:      

This Essay introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means for the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these three bodies of law provide the exclusive ways in which constitutional adjudication gives rise directly to binding constitutional law. This Essay argues that our Justices should be judicial departmentalists rather than judicial supremacists.


Is the Electoral College Unconstitutional?
Michael Ramsey

In the Los Angeles Times, Kenneth Jost argues that the system of presidential electors described in the Constitution is unconstitutional: The electoral college has always been the wrong way to choose a president.  Truly:

The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago. Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president.

As a practical matter, we can’t depend on a constitutional amendment to eliminate the electoral college. Amendments require ratification by three-quarters of the states, and enough small states think they benefit from the system that an amendment would never pass. Instead, it’s up to the Supreme Court — and a properly framed lawsuit — to do away with a system that not only never functioned as the framers intended but blatantly violates the court’s “one person, one vote” principle.


[The Electoral College’s] basic architecture flouts the principle that has defined elections for every other public office in the United States for the last 50 years: one person, one vote.

The Supreme Court established the principle in 1964, when it ruled that states cannot unevenly weight votes in choosing their officeholders. The 8-1 decision struck down a Georgia scheme that, much like the electoral college, gave voters in less-populated rural counties significantly greater power than voters in urban counties.

And in conclusion:

The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional. The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

I like this essay because (assuming it's not a parody) it's the pure unapologetic form of nonoriginalism:  Even something expressly set forth in the Constitution can be unconstitutional if annoying, inconvenient or ill-advised.  (Notably, Jost is not a crank; among other things, he's the author is the respected annual Supreme Court Yearbook, a resource I've assigned to students in the past). So it seems that nonoriginalists should ask themselves: is this approach wrong, and if so, how is is different from more academic versions of nonoriginalism?  And if it is right, is it not simply asking Justices to provide constitutional rules based on their own assessment of the best outcome?

As an aside, Jost's criticisms seem largely to miss the mark, or at least to conflate two (or three) separate problems with the electoral college.  His main constitutional complaint is that the system of electoral voting overweights the votes of less populous states.  That's true, of course (because electoral votes depend on a state's congressional delegation -- that is, its House delegation, apportioned by population, and its Senate delegation, always two regardless of population).  His main political complaint appears to be that Trump defeated Clinton despite Clinton's popular vote win.  That, however, has nothing to do with overweighting of less-populous states.  By my quick math (probably wrong but close enough), if electoral votes were allocated only on the size of a state's House delegation, Trump would have defeated Clinton 246-190.  

The electoral vote/popular vote disparity arises from states' decision to allocate electors on a winner-take-all basis (something not required by the Constitution nor prohibited by Jost's idea of one-person-one-vote).  Thus Jost's constitutional argument not only wouldn't get rid of the electoral college, it wouldn't reverse the outcome of the 2016 election.  All it would do is change the number of electors each state gets, in a usually meaningless way.

(Via Josh Blackman's Blog, where Professor Blackman argues that Jost's essay misstates the Supreme Court's one-person-one-vote precedents: Reynolds v. Sims Reaffirmed the Constitutionality of the Electoral College “Despite its Inherent Numerical Inequality”).



Kevin Walsh on Originalism’s Endurance
Michael Ramsey

At Liberty Law Blog, Kevin Walsh: How Enduring Originalism Puts Real Jurisprudential Teeth in Originalism’s Bite (guest-blogging for December).  From the introduction:

This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.

Discussing Justice Kennedy’s opinion in Obergefell v. Hodges and originalism:

The truth is that Obergefell v. Hodges rests on a different master concept of the Constitution as positive law than the written Constitution actually posited in law through ratification. The operative master concept of the Constitution as law in Obergefell is one that authorizes judicial promulgation of new constitutional rights under a customary-law conception of the Constitution.

The ratified Constitution, by contrast, is a form of stipulated positive law, authoritatively fixing in place the law that it stipulates. Because of the kind of positive law that it is, the ratified Constitution is to be interpreted and implemented using legal conventions appropriate to the kind of fixed, authoritative, and enduring stipulated positive law that it was designed to be.

The living Constitution of today’s “common-law” constitutionalists is a different beast. It is partially parasitic on the ratified Constitution, but has a separate body and soul from its host. This corrupted master concept has colonized substantial segments of constitutional law in the United States.

In the legal taxonomy we set forth in Enduring Originalism, Jeff Pojanowski and I characterize a statement like Justice Kennedy’s in Obergefell as an “unauthorized departure” from the law of the Constitution. [ . . . ] Unlike the casual non-technical legal positivism of the everyday practitioner, however, the legal profession of Enduring Originalism puts real jurisprudential teeth in originalism’s bite. Precisely because those not entirely immersed in practice don’t need to worry about the short-term consequences for themselves, their clients, or those they serve of publicizing the judicial emperor’s lack of clothes, there is a sense in which professing something other than what everyone is practicing enables greater insight into what our constitutional law really is. Our constitutional law as a whole contains standards external to Supreme Court majorities by which we can assess the constitutional law currently applied by government officials—including those government officials who hold Article III offices—and find it wanting.


Although originalism’s daily “cash value” ​​varies widely from context to context, our constitutional order as a whole is still long on the ratified Constitution. The continued profession of the ratified Constitution as stipulated, fixed, and authoritative fundamental positive law explains originalism’s endurance. And as long as our constitutional order’s long position on the ratified Constitution lasts, non-originalists will have to keep enduring originalism.


Some Thoughts About Judge Sykes as a SCOTUS Nominee
Andrew Hyman

CNN has an interesting December 15 article titled Sykes, Pryor among top contenders for Supreme Court vacancy -- sources.  In a previous blog post here, I criticized another of the 21 potential SCOTUS nominees listed by President-Elect Trump.  Judge Sykes is surely a good judge, and would be a much better nominee than anyone might expect from a president unconcerned about the original meaning of the U.S. Constitution, but still the list of 21 people probably includes safer options.

Please note that I am disinterested but not uninterested in who gets nominated to SCOTUS.  There is an all-too-common tendency among interest groups to attack reputations and distort records so as to defeat nominees, which is appalling, and also risks someone being nominated whom the interest groups dislike even more.  Still, responsible public criticism of potential nominees seems okay in my opinion, because assessing public records can be done from afar, even though  assessing character usually cannot.

The primary cause for my concern about promoting Judge Sykes to SCOTUS has always been the 2001 Wisconsin Supreme Court case of State v. Oakley, which was decided a long time ago, before Sykes was considered as a potential SCOTUS nominee during the second term of President George W. Bush.  In that 2001 case, then-Justice Sykes dissented from the court's approval of a probation condition which forbade further procreation by a father of nine children who had refused to pay child support.  Sykes’s dissent cited the Equal Protection Clause, and she also joined another dissent (written by Justice Ann Bradley) that relied heavily upon substantive due process (i.e. the controversial legal doctrine which Justice Scalia strongly opposed and which underlies Roe v. Wade).   As a matter of original meaning, neither the Equal Protection Clause nor the Due Process Clause remotely supports striking down such a probation condition, in my opinion, and not even the U.S. Supreme Court’s precedents required such a thing in that case.  Similar issues have cropped up before and since 2001, in other courts.  See, e.g., Gerber v. Hickman (9th Cir. 2002, holding that "the right to procreate…is fundamentally inconsistent with incarceration"); Goodwin v. Turner (W.D. Mo., 1988); Percy v. New Jersey Department of Corrections (N.J. Super. Ct. 1995).  All those decisions (aside from the dissents in Oakley) say that, outside existing conjugal programs, prisoners cannot generally procreate.  One may disagree with such a probation condition, and one may support legislation to forbid such a probation condition, but to concoct a constitutional argument against it is worrisome to me.

In a 2006 law review article, Judge Sykes commendably spoke out in favor of “judicial deference to legislative policy choices,” and  “respect for precedent and authoritative sources of legal interpretation,” as well as caution in imposing “broad-brush judicial solutions to difficult social problems.”  But there was this proviso:  “I will concede (as I must) that a court of last resort has the power to throw off these constraints….”  In my view, “the judicial power” is not infinitely elastic even as regards cases and controversies that are already properly before the court.  That law review article by Judge Sykes correctly criticized (for example) the Wisconsin Supreme Court decision in Ferdon v. Wisconsin Patients Compensation Fund, in which the dissenting justices said: “The Lochner Court's infamous usurpation of legislative power has been relegated to the ash heap of history.”  I would like to see evidence that Judge Sykes likewise believes that courts lack power (not just wisdom) when they completely throw off judicial deference to legislative policy choices, respect for precedent and authoritative sources of legal interpretation, and caution in imposing broad-brush judicial solutions to difficult social problems.  Her dissent in Oakley apparently points in the opposite direction, by interpreting the federal Constitution in a way that would bar legislative action consistent with its original meaning.

SCOTUS once put it this way: "In dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers. Where congressional intent is discernible—and here it seems crystal clear—we must give effect to that intent" (emphasis added).  I hope the courts will more often acknowledge that they lack power, even in cases that are properly before them.
P.S. I've collected some info about the 21 potential SCOTUS nominees here.

Faithless Electors and the Constitution
Michael Ramsey

At Volokh Conspiracy, David Post argues that under an originalist reading of the Constitution, presidential electors must vote their conscience and not feel bound to vote for the winner of their state.  As he puts it, "to the originalist, the 'faithless elector' is simply performing his or her constitutional duty by exercising independent judgment and discretion in deciding for whom to vote."  

I think this is wrong on multiple grounds.

(1) The Constitution's text says nothing about how electors should vote.  It says two relevant things: (a) "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..." and (b) "The electors shall meet in their respective states, and vote by ballot for President and Vice President..."  That language is perfectly consistent with states, if they choose, selecting electors based on the electors' advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.

(2)  Professor Post relies principally on Hamilton's Federalist 68, in which Hamilton appeared to assume that electors would exercise independent judgment and not be pledged in advance.  But that only reflects what Hamilton thought would happen.  It does not purport to be an assessment of what the Constitution's text means.  Modern originalism may look to the framers' expectations to assist in finding the meaning of ambiguous text, but the text, not the expectations, is the law.  In this situation, the text is clear in giving discretion to the state selection process, and it appears that Hamilton erred in guessing how it would be implemented.

One might object that the constitutional structure implies independent judgment on the part of the electors, else why have electors at all?  But the answer is that the text gives discretion to the states to pick electors in any "Manner" the states choose, including but not limited to choosing them for their capacity to exercise independent judgment.  In the modern era, the "Manner" the states have chosen to select electors is to select electors pledged to the candidate that won the popular vote in the state.  Nothing in the Constitution requires states to choose electors in this manner, but nothing forbids it either.

(3) In the immediate post-ratification era, once George Washington retired and elections became seriously contested, states quickly moved to the system of choosing pledged electors.  The electors were typically selected directly by the state legislatures, not by a popular vote as today, but the electors were expressly chosen for their commitment to support a particular candidate.  This approach began as early as the 1796 election; by the 1800 election it was widespread -- suggesting that the founding generation as a whole did not think it unconstitutional.

(4)  In any event, the relevant framers for today are not the framers of the original Constitution but the framers of the Twelfth Amendment (ratified in 1804), which reworked the mechanics of presidential elections.  Prior to the Amendment, electors cast two votes for President, with the person receiving the most votes becoming President and the person receiving the second most votes becoming Vice President.  In the 1800 election, the Republicans' system of pledged electors worked so well that all Republican electors voted for both Thomas Jefferson and his running mate Aaron Burr -- resulting in a tie vote, ultimately resolved by Congress only after considerable drama.  The Twelfth Amendment fixed this problem by adopting the current system of electors casting one vote for President and one for Vice President.

Notably, however, the Amendment did not say anything about how electors made their decision nor do anything to upset the system of pledged electors.  That's critical because (a) the system of pledged electors was well established and well understood when the Amendment was adopted, and (b) the Amendment was specifically designed to correct the problems of the electoral system after the 1800 debacle.  In that context, the Amendment's failure to address the system of pledged electors reflects an acceptance of that system's constitutionality.  So if the question is the framers' intent, Professor Post is looking at the wrong framers.

In sum, neither the text nor post-ratification practice nor framers' expectations (once we are focused on the right framers) supports the idea of a constitutional duty of the electors to exercise independent judgment. 

RELATED:  Robert Delahunty (St. Thomas) makes the opposing argument in greater detail here (although it's not clear he thinks electors are required to exercise independent judgment, as opposed to merely being allowed to do so).  I make the Twelfth Amendment argument in more detail in a recent (12/15/16) article in the Los Angeles/San Francisco Daily Journal, unfortunately behind a paywall (but worth it!).  And at Liberty Law Blog, John McGinnis asks: Why Are Non-Originalist Professors Ignoring Non-Originalist Arguments for Binding Electors? (unfortunately I think the answer is exactly as he suggests).


Originalism Boot Camp at Georgetown
Michael Ramsey

From Randy Barnett at Volokh Conspiracy

I am pleased to announce that the Georgetown Center for the Constitution is now accepting applications from law students and recent graduates for its second annual Originalism Boot Camp to be held from Sunday May 21 to Friday May 26. In response to student feedback, our already stimulating curriculum has been restructured for greater substance, more divergent viewpoints, and better flow. (For program brochure click here)

Our lecturers/speakers (in alphabetical order) will be Jack Balkin (Yale Law School), Will Baude (University of Chicago Law), Janice Rogers Brown (United States Court of Appeals for the D.C. Circuit), Thomas Colby (George Washington Law), Alan Gura (Gura & Possessky), Justice Tom Lee (Utah Supreme Court), historian Joyce Malcolm (George Mason Law), Sai Prakash (University of Virginia Law), Michael Rappaport (University of San Diego School of Law), philosopher Scott Soames (University of Southern California), Judge Diane Sykes (United States Court of Appeals for 7th Circuit)

Topics and schedule will be:

Monday: The Normative & Empirical Rationales For Originalism & the Interpretation/Construction Distinction  (Barnett, Larry Solum); and Criticisms of Originalism (Colby) (Afternoon visit with Justice Alito at SCOTUS)

Tuesday: Living Constitutionalism vs Living Originalism (Balkin); and Original Methods Originalism (Rappaport) (Luncheon with Ed Meese)

Wednesday: History, Originalism, & the Second Amendment (Malcolm, Gura) (luncheon address by Judge Dianne Sykes

Thursday: Research Methods, Philosophy of Language, & Corpus Linguistics (Baude, Soames, Lee) (Afternoon visit with Justice Thomas at SCOTUS)

Friday: Executive Power & Originalism (Prakash); panel of constitutional litigators (Concluding Keynote by Judge Brown)

For application information click here.

Additional details at the link.


Mary Anne Case: Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent [Updated with Comment]
Michael Ramsey

Mary Anne Case (University of Chicago Law School) has posted Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent (Forthcoming in Jahrbuch des öffentlichen Rechts der Gegenwart 2016) on SSRN.  Here is the abstract:      

Using Greek myth to illuminate some of the late Justice Scalia's rhetorical moves, this essay argues that as an author of majority opinions Scalia was often Procrustes, leaving no case behind but forcing all prior doctrine into the shape he needed for the new law of rules he was announcing. In dissent, by contrast, Scalia could be Cassandra: describing what for him are the drastic consequences he foresees from the majority’s logic, he often paints a prophetic picture which in time comes true, perhaps in part because of rather than in spite of his horrified articulation of an opinion’s implications. While the progression of gay rights cases from Romer through Obergefell is the clearest and most sustained example of Scalia as Cassandra, his procrustean majority opinions include Employment Division v. Smith. For each of these cases, the essay examines the structure and unintended consequences of Scalia's approach.

Scalia's own procrustean moves as a federal judge are in some tension with his criticism of similar behavior by non-common law judges in his 1995 Tanner Lectures on Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. The essay explores whether some of that tension might be reduced by focusing on the fact that Scalia's most procrustean moves come in cases involving the incorporated bill of rights, for which he sees no textual warrant and therefore is of necessity acting as a common law judge, without access to a civil-law-style alternative to the methodologies of the common law.

(Thanks to Michael Perry for the pointer).

The essay makes some fair criticisms, but I think it errs (or at least overstates) on the point made in the second paragraph of the abstract (pp. 8-9 of the essay) -- that Scalia "s[aw] no textual warrant" for "the incorporated bill of rights."  The essay's only cite for this proposition is McDonald v. Chicago, in which Scalia reluctantly acquiesced in the use of the due process clause as the basis for incorporation on the basis of precedent.  I don't think, though, that this proves Scalia rejected incorporation as an original matter -- only that he rejected the due process clause as its basis.  So far as I know, Scalia never directly gave his view on incorporation via the privileges or immunities clause.  True, in McDonald he refused to join Justice Thomas' opinion, which argued for shifting the basis of incorporation from the due process clause to the privileges or immunities clause.  But as Scalia expressly wrote in concurrence, he was reluctant to overturn precedent (and create further uncertainties) on this point.

To the contrary, I speculate that the reason Scalia was generally comfortable with an aggressive application of the bill of rights to the states (not just in McDonald, but in free speech, takings, search and seizure, confrontation clause and trial by jury) lay in his (unexpressed) conclusion that the privileges or immunities clause was a satisfactory textual basis.

UPDATE:  William Baude comments:

I was interested in your recent post on Scalia and incorporation. Since I think that the original meaning of the 14th Amendment did incorporate the bill of rights, I would love it if Justice Scalia agreed. But I worry he didn't.

I haven't researched this fully, but I've seen several reports of Justice Scalia giving remarks criticizing  incorporation as a matter of first principles, even if he accepted it as a matter of stare decisis. For instance:

Speaking just [in February 2009] at the Hoover Institution, Scalia argued (approx. 24:20) that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false.” 


See also http://www.firstamendmentcenter.org/justices-remarks-prompt-a-review-of-first-amendment-interpretation

But as I say, I'd love to be wrong about this!


Clear Originalist Cases
Mike Rappaport

One of the difficult issues for originalism is what it means concretely for the United States Constitution.  What actually is in the original meaning of the various provisions of the document?

I must admit that I find this to be difficult.  If one has a sophisticated and open minded view of interpretation – which I like to believe I do – many clauses of the document are simply not clear, unless one has done the extensive historical research.  Even then, the resolution of issues will often be a matter of judgment.  Thus, it is sometimes difficult to make firm statements about the original meaning.

Of course, that people cannot be sure of the original meaning without doing the historical research does not mean that the original meaning would be unclear once one does the historical research.  I am very confident, for example, that the original meaning of the Recess Appointments Clause is limited to vacancies that arise during the recess of the Senate, even though some people might not be sure of the matter before doing the historical research (and others even think the opposite after doing the historical research).

It is important to note that much of the fault lies here with nonoriginalism, not originalism.  For the last several generations, judges and law professors have generally not been concerned about the original meaning of provisions and therefore have not undertaken the necessary research to understand these matters.  But whatever the cause, I often feel frustrated about my inability to address the original meaning.  So I often write like one of those two handed economists that Harry Truman complained about, who after making a point in one direction, would then, after saying “on the other hand," make a point in the opposite direction.  See for example here and here.

Yet, there are many cases where the original meaning appears to be clear.  In a recent brief article, originalists Will Baude and Stephen Sachs make some claims about cases where the original meaning was clear and not followed:

In our theoretical work we’ve tried to avoid getting sucked into specific historical or doctrinal controversies, as that might detract from our arguments about theory. But perhaps the time has come to start naming names. Without having done the research ourselves, we doubt (say) that the original Constitution let states impair contracts on claims of “economic emergency”—or that this power was ever lawfully conferred since. We likewise doubt the pedigree of modern cases on executive agreements; jury numbers or unanimity; counsel comment on failure to testify; one-person one-vote;  diversity jurisdiction for D.C. citizens; “commerce” regulation of wholly intrastate activity; [and] administrative adjudication of private rights. . . Maybe the cases are right despite our doubts, or at least tolerable under original doctrines of stare decisis.

I agree with this list of cases -- and I could add to it.  It would be interesting to see how many cases I could come up with.

Derek Muller on Raymond Gruender for Supreme Court
Michael Ramsey

In the St. Louis Post-Dispatch, Derek Muller (Pepperdine/Excess of Democracy blog): An outstanding choice for U.S. Supreme Court vacancy.  From the introduction:

This election gave us a surprise: President-elect Donald Trump. And he will nominate someone to fill a vacancy on the U.S. Supreme Court due to the passing of Justice Antonin Scalia. The stakes are high as the court prepares to hear important matters of constitutional law, including a case concerning religious liberty in Missouri, Trinity Lutheran Church of Columbia v. Pauley. [Ed.:  see here]

Last summer, Trump listed a number of individuals he would consider nominating to fill a Supreme Court vacancy. One of those names is Judge Raymond Gruender, a St. Louis native who now sits on the United States Court of Appeals for the 8th Circuit. And perhaps the best person to serve as the next Supreme Court justice is Gruender, whose dissenting opinion in Trinity Lutheran Church distinguishes him as an outstanding choice.

(Via How Appealing).

For background on Judge Gruender, who has not received as much attention as others, see Andrew Hyman's Supreme Court nominee resources page.


Randy Barnett on Abandoning the Defensive Crouch
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Abandoning Defensive Crouch Conservative Constitutionalism.  From the introduction:

Back on May 6th on Balkinization, Harvard law professor Mark Tushnet had some advice for “liberals” entitled: Abandoning Defensive Crouch Liberal Constitutionalism. It provides a useful road map to what Democrats had in store for us had Hillary Clinton been elected. But it also serves as a guide to what a conservative Court should–and should not–be doing now that this constitutional bullet has been dodged.

And from later along:

As Tushnet helpfully previewed, had Clinton been elected, thirty years of “conservative” tinkering-at-the-margin was going to be swept away and much, much more. No doctrine of stare decisis or “precedent” would have stood in the way. The left side of the Court has never conceded the precedential value of the past 30 years of “conservative” decisions. In constitutional law, the doctrine of stare decisis is a ratchet and ratchets only go one way, and that way is towards increased national power, and delegation to the Administrative-Executive State–qualified only by judicially-selected “fundamental rights” and protected “suspect classes.”

But Tushnet was right in principle. As I have long maintained (see here), the law of the Constitution should take priority over the mistaken rulings of previous justices. What Tushnet and I disagree about is what the Constitution means. He thinks it means progressive results; I think it means what it says. If New Deal, Warren and Burger court decisions were–in Tushnets words–“wrong the day they were decided,” then they should be reversed and replaced by the original meaning of the Constitution itself.