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39 posts from February 2017


The Language of the Lame Duck Pardon Amendment
Mike Rappaport

A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons.  While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism.

But having an idea about what an amendment should do and writing the language of that amendment are two different things.  Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment.  Steve has both more taste and more talent for this task than I do.

Consider the language he came up with:

The power to grant reprieves and pardons for offenses against the United States may not be exercised unless the President shall have made a public proclamation of the same; nor, except to stay the execution of a sentence of death, from one month prior to the day for choosing the electors until noon on the 20th day of January next following, unless after the counting of the electors’ votes the President shall have been chosen to continue in office.

The language following the semicolon basically says that the President cannot pardon anyone for a month before Election Day until Inauguration Day unless he is reelected.  The first sentence prohibits secret pardons, which might be used to circumvent the restriction on lame duck pardons.  Without that prohibition, the President might issue secret pardons before the period beginning one month prior to election day.

Of course, some might believe that a prohibition on secret pardons was problematic, since perhaps they could be used for legitimate purposes.  I am not convinced, but if one disagrees, one could address the issue in another way – say by changing the amendment to allow the next President to repeal any secret pardons issued by the prior President.

I like this language.  This could be the 28th Amendment.  All we need is two thirds of both houses and three quarters of the states.

David Post on the Emoluments Clause and President Trump's Chinese Trademark
Michael Ramsey

At Volokh Conspiracy, David Post: Trump Conflicts Watch, 2: Where trademark law meets the foreign emoluments clause. From the introduction:

The Associated Press (along with Japan Times and the Voice of America’s China Service) reports that President Trump, “after suffering rejection after rejection in China’s courts,” has finally gotten something “that he has been trying to get from China for a decade: trademark rights to his own name.”

Is that an emolument? 

This Chinese trademark matter raises a different issue regarding the meaning of “emolument.” The Chinese government hasn’t engaged in a like-for-like market exchange with Trump; rather, it has conferred a legal benefit that has some, non-trivial value, on him. Is receiving trademark rights a constitutionally-prohibited “emolument … of any kind whatever … from a foreign State”?

I think it is. I’m even willing to give Trump the benefit of the doubt here, and to assume that everything that has taken place here is on the up-and-up and strictly by the book, i.e., that there’s been no quid pro quo, that this is simply a case where Trump received a benefit to which he (or anyone similarly situated) would be lawfully entitled under the relevant provisions of Chinese trademark law, and that it is simply a coincidence that, after a number of rejections, the application was approved after Trump was elected president of the United States.


 One clue to what [the emoluments clause] means comes from asking: What were the Founders concerned about? What’s the purpose of this clause (and its sister “domestic emoluments clause” in Art. I Sec. 7)? What’s the harm — a harm serious enough to include in the new Constitution? Why shouldn’t Jefferson be allowed to take a nice snuff box from the French king?

The answer, as Hamilton put it, is that the receipt of the gift would “weaken his fortitude [and] corrupt his integrity by appealing to his avarice,” giving him a “pecuniary inducement to renounce or desert the independence intended for him by the Constitution.” Men are avaricious; give them a nice snuff box and they’ll be more likely to treat you with special favor down the road, perhaps out of a desire not to show ingratitude, perhaps out of a desire to obtain additional valuable gifts, perhaps both. In either case, dealing with the foreign sovereign will be compromised, no longer having the interests of the people of the United States as the sole motivating factor in all decisions and actions. ...

(For a seemingly different view, see Rob Natelson here).


Opinio Juris Symposium on "The Death of Treaty Supremacy" by David Sloss
Michael Ramsey

At Opinio Juris, the editors have put together an online symposium on the outstanding book The Death of Treaty Supremacy by David Sloss (Santa Clara).  Here are the contributions:

The Treaty Supremacy Rule: Is a Partial Revival Possible?, by David Sloss

Dubinsky on The Death of Treaty Supremacy, by Paul Dubinsky (Wayne  State)

Treaty Supremacy, International Legal Process, and the Origins of the International Human Rights System, by Peggy McGuinness (St. Johns)

The Modern Doctrine(s) of Non-Self-Executing Treaties, by John F. Coyle (UNC)

The Origins and Fall of Treaty Supremacy and Its Significance, by Thomas Lee (Fordham)

Treaties in Constitutional Time, by John Parry (Lewis & Clark) 

The Status of Treaties in Domestic Law, by David Stewart (Georgetown)

Bringing Human Rights Home: Reflections on the Treaty Supremacy Rule, by Carmen Gonzalez (Seattle)

The Death of Treaty Supremacy: An Invisible Constitutional Change–Introduction to Opinio Juris Book Symposium, by David Sloss

Although the book is a broad historical account, it has strong originalist implications.  From the latter post, here is the author's summary:

The book’s central claim is that an invisible constitutional revolution occurred in the United States in the early 1950s. From the Founding until World War II, the treaty supremacy rule, codified in Article VI of the Constitution, was a mandatory rule that applied to all treaties. As originally understood, the rule consisted of two elements. First, all valid, ratified treaties are supreme over state law. Second, judges have a constitutional duty to apply treaties when a treaty conflicts with state law.


The treaty supremacy rule was a bedrock principle of U.S. constitutional law from the Founding until World War II. However, the advent of modern international human rights law sparked a process of invisible constitutional change. ...

Thus, modern doctrine holds that the treaty makers may opt out of the rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing” (NSE). In sum, the de facto Bricker Amendment converted the treaty supremacy rule from a mandatory to an optional rule by creating an exception for NSE treaties.

Although I have some quibbles with Professor Sloss' description of the original rule, I think his account of both the founding and the re-invention of non-self-execution is basically correct.  (My thoughts on the original meaning of treaty supremacy and self-execution are here.)  I have no doubt that the current doctrine of non-self-execution is, at minimum, substantially confused and, in some applications, substantially different from the original meaning.

The question is what to do with that conclusion.  For an originalist, it may seem obvious -- the modern doctrine is too confused to be entrenched, so we should attempt to recover the original meaning (that's my idea, in this paper).  This also seems to be Professor Sloss' implication throughout the book.  But for nonoriginalists, it's not clear there is a problem.  Treaty law evolved in response to the evolving role of treaties.  That's what nonoriginalists say should happen.  People who are not usually originalists should think carefully before becoming unduly upset by this, simply because they happen to think non-self-execution is a bad idea.

For myself, I think a strict self-execution doctrine is problematic in the modern world, given the extent to which modern treaties are aspirational, multilateral, wide-ranging and deeply intrusive on purely domestic legal rules.  The non-self-execution rule that evolved in the mid-twentieth century mitigates that problem, and Congress' power to implement treaties (see here) prevents divergence between treaty law and domestic law from becoming too troubling.  I would say it works pretty well to have the U.S. treatymakers decide whether a treaty should be self-executing or non-self-executing.  That, however, is not the original meaning of the supremacy clause.


Robert Natelson: The Original Meaning of the Constitution's Postal Clause
Michael Ramsey

Robert G. Natelson (The Independence Institute) has posted Founding-Era Socialism: The Original Meaning of the Constitution's Postal Clause on SSRN.  Here is the abstract:

The Constitution’s Postal Clause granted Congress power to “establish Post Offices and post Roads.” This Article examines founding-era legal and historical materials to determine the original meaning and scope of the Postal Clause. It concludes that the Clause authorized Congress to pass all legislation necessary to create, operate, and regulate a unified transportation, freight, and courier system, although it also limited congressional authority in some respects. The founding-era reasons for the postal system were revenue, promotion of commerce, and political control. The Article also corrects some incorrect claims about the Clause previously advanced by legal scholars.

Professor Natelson adds:  

Because the Postal Clause authorizes Congress to "establish . . . post Roads" I had to address Prof. Baude's 2013 thesis that eminent domain was a "great power" and therefore not implied in the Constitution's grants of power. I find the thesis lacking support in founding era law.


Jennifer Mascott: Who are "Officers of the United States"?
Michael Ramsey

Jennifer L. Mascott (Georgetown University Law Center) has posted Who are "Officers of the United States"? on SSRN.  Here is the abstract: 

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proven difficult to apply to major categories of officials, leading to a circuit split this past December over whether certain administrative law judges need Article II appointments. This article challenges whether “significant authority” is even the proper standard, using two distinctive tools: (i) “corpus linguistics”-style analysis of Founding Era documents and (ii) examination of appointments practices in the Continental Congress and the First Federal Congress. Both strongly suggest the original public meaning of “officer” is much broader than modern doctrine assumes—encompassing any government official with responsibility for an ongoing governmental duty. 

This historical meaning of “officer” likely would extend to thousands of officials not currently appointed as Article II “officers,” such as tax collectors, disaster relief officials, federal inspectors, customs officials, and administrative judges. This conclusion might at first seem destructive to the civil service structure. But this article suggests that core components of the current federal hiring system might fairly readily be brought into compliance with Article II by amending who exercises final approval to rank candidates and hire them. These feasible but significant changes would restore a critical mechanism for democratic accountability and transparency intended by the Framers.

Via Larry Solum at Legal Theory Blog, who comments:

This is a very sophisticated piece from one of a new generation of originalist scholars who employ corpus linguistics (big data techniques for determining semantic meaning) as part of the investigation of "original public meaning."  One of the very first pieces to do this in a systematic way using the approach developed in linguistics, this is one of those articles that is truly "path breaking."  Highly recommended.  Download it while it's hot!


Erwin Chemerinsky on Judge Gorsuch and Originalism
Michael Ramsey

In the Los Angeles Times, Dean Erwin Chemerinsky (Irvine) has a rather harsh column on Judge Gorsuch and originalism: Democrats should filibuster Gorsuch’s nomination.  It's a more ham-fisted version of this column by Cass Sunstein (discussed here), but also more obviously not a serious critique of originalism.  Here are the key paragraphs, with my comments:

Neil Gorsuch would be a very conservative Supreme Court justice, almost exactly like Antonin Scalia. Gorsuch, like Scalia, professes a belief in originalism. This is the view that the meaning of a constitutional provision is fixed at the time that it was enacted and can be changed only through the amendment process. Gorsuch has said: “Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Sounds good to me.  Note, though, that he says "almost exactly like Antonin Scalia."  This is important later.

Never in American history, thankfully, have a majority of the justices accepted originalism. If that were to happen, there would be a radical change in constitutional law. No longer would the Bill of Rights apply to state and local governments.

Nope, on two grounds.  First, originalists like Scalia accept incorporation of the Bill of Rights through the due process clause as a matter of stare decisis (see McDonald v. Chicago, Scalia concurring).  Second, many originalists agree with Justice Thomas that most of the Bill of Rights is, as an original matter, properly applied against the states through the privileges or immunities clause (examples of scholars who've done outstanding work on this include Kurt Lash, Chris Green and Bryan Wildenthal).  So an originalist majority on the Court would likely not reach the result Chemerinsky claims, especially with Justices "almost like" Scalia (or Thomas).  I suppose there are some originalists who think most of the Bill of Rights isn't incorporated, but I'm not sure who they are.

No longer would there be protection of rights not mentioned in the text of the Constitution, such as the right to travel, freedom of association, and the right to privacy. This would mean the end of constitutional protection for liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, the right to refuse medical care, the right to engage in private consensual homosexual activity.

Some of this likely would be true, depending on a particular originalist's view of the privileges or immunities clause and of stare decisis.  But some would say, that's the right result, if these rights have been invented by unelected judges.

No longer would women be protected from discrimination under equal protection.

Again, originalists are divided on the right result as an original matter --- many, including Michael Paulsen and Steven Calabresi, disagree with Chemerinsky's claim.  Scalia did seem to say, in non-judicial statements, that equal protection did not extend to women, but he accepted the extension as a matter of stare decisis.  I think it implausible in the extreme that an originalist Court "would" overturn existing precedent on this point.  Chemerinsky provides no evidence that it would.

The original understanding of the Constitution is unknowable ...

Really?  Didn't you just spend the last paragraph identifying literally 14 (count 'em!) results that adopting originalism "would" bring on?  (With more to come below).

... and even if it could be known, should not be binding today.

Note there is no argument here apart from originalism would lead to bad results, which (a) depends on it being knowable, and (b) depends on the idea (as Stephen Sachs points out) that law cannot be law if it leads to bad results.

Under an originalist philosophy, it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as “he” and the framers unquestionably intended that they would be male.

Wow, this old chestnut?  I've been through this before, but this argument is so lame I'd be embarrassed if a student made it.  (a) "he" in eighteenth century terminology could be generic (they had no "he or she" back then).  Eighteenth century statutes commonly said something to the effect that if a person violated some rule "he" would be punished in a specified way -- it's inconceivable that this statutory phrasing was meant to exclude women.  (b) The part of the Constitution actually setting out the requirements to be President (Art. II, Sec. 1, para. 5) does not say "he"; it says "person" (twice), as does the Twelfth Amendment (ten times!).  "Person" obviously includes women.  The framers (sadly) knew how to exclude women if they wanted to  -- most states at the time limited voting to "male inhabitants".  (c)  The framers "unquestionably" intended Presidents to be male?  Maybe, but what matters (in a Scalia version of originalism) is what they wrote, and they wrote "person".  Plus the framers were familiar with great women leaders -- Elizabeth I, Isabella of Spain, Catherine the Great [the latter being on the throne when the Constitution was drafted].  Who's to say that they categorically rejected the idea of a woman leader?  (d) I know of no originalist who thinks this is the right interpretation of presidential eligibility.  It's a fraud dreamed up by nonoriginalists.

Under originalism, Brown v. Board of Education was wrongly decided because the same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools.

Most originalists think Brown was rightly decided (without endorsing the nonoriginalist reasoning of the opinion).  Major scholars who've discussed the issue include Michael McConnell, Michael Paulsen and Steven Calabresi.  Justice Scalia said in an opinion (in dicta) that Brown reached the right result based on the original meaning of the text (Rutan v. Republican Party, Scalia, dissenting).  Like the "no women presidents" argument, the "Brown was wrong" argument is mostly one pushed by nonoriginalists to embarrass originalists, not one accepted by many (any?) originalists.  I concede that the Brown-was- wrong argument is not as painfully frivolous as the no-women-presidents argument: although the text seems clear, it's true that substantial post-ratification practices point the other way.  But originalists think those practices aren't decisive in the face of clear text, so whatever Dean Chemerinsky might think about the "true" meaning (except, remember, he thinks "the original meaning of the Constitution is unknowable") an originalist Court would not think Brown was wrongly decided.

Originalism never was meant to be the method of constitutional interpretation. Long ago, Chief Justice John Marshall reminded us that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.”

That quote, from McCulloch v. Maryland, does not mean what Dean Chemerinsky thinks it means.  McCulloch is actually a very originalist opinion, paying close attention to the meaning of the Constitution's words and the context in which they were written.  Marshall's point was that the original meaning of the Constitution should not be read to place strict limits on the powers of Congress, because Congress would need flexible powers to manage future events (and thus it's implausible, he said, that the Constitution was written to say otherwise).  

Throughout American history, the Supreme Court has regarded the Constitution as a living document, which is the only way a country can be governed in the 21st century under a charter written in the 18th century for an agrarian, slave society.

Well, another way a country "can be governed" is for judges to stick with the original meaning, leaving the democratically elected branches rather than courts the flexibility to "adapt the Constitution ... for ages to come", unless the people (not the judges) adopt new constitutional rights by amendment as described in Article V (as they have done on multiple occasions).  To be sure, that is a debate worth having, but it's not advanced by adopting extreme caricatures of originalism.

(Well, that was fun.  Good thing I don't want a job at UCI).

(Via Ed Whelan at NRO, who makes a separate point: the column calls for Democrats in the Senate to filibuster Judge Gorsuch; but less than a year ago, Dean Chemerinsky claimed that denying a nominee an up-or-down vote in the Senate -- which is what a filibuster does -- is unconstitutional.  (I know, because I debated him on this point).  To be clear, my position is remains the same: the Constitution does not require the Senate to do anything on a nominee (including Judge Gorsuch), so if Senate rules allow a minority to block a vote (or a hearing), the Constitution has nothing to say on the matter.  And if that "impairs the functioning of the Supreme Court" by leaving it with eight Justices (as Dean Chemerinsky said it did), the Constitution does not guarantee a perfectly efficient Court.)

Originalism Works-in-Progress Conference in San Diego
Michael Ramsey

Today and tomorrow, the University of San Diego Law School will host the Eighth Annual Hugh and Hazel Darling Foundation Originalism works-in-progress conference.  Here are the scheduled papers and commentators:

(1)  Randy Barnett (Georgetown) & Evan Bernick (Institute for Justice), The Letter and the Spirit: A Theory of Good Faith Constitutional Construction.

Commentator: John McGinnis (Northwestern)

(2) Will Baude (Chicago), Constitutional Liquidation

Commentator: Bernadette Meyler (Stanford)

(3) Mitch Berman (University of Pennsylvania), Our Principled Constitution

Commentator: Stephen Sachs (Duke)

(4) Jud Campbell (Richmond), Natural Rights and the First Amendment

Commentator: Fred Schauer (Virginia)

(5)  James Fox (Stetson), Black Originalism: Constitutional Citizenship, Constitutional Rights, and the Second Founding

Commentator: Ryan Williams (Boston College)

(6) Michael McConnell (Stanford), The Structure of Article Two

Commentator: Saikrishna Prakash (Virginia)

(7) Ilya Somin (George Mason), The Original Scope of Federal and State Power over Immigration

Commentator: Richard Primus (Michigan)

See here for more information.  We are honored that so many distinguished scholars have come to San Diego to discuss originalism, and we are grateful to the Darling Foundation for making it possible.


James Sample: Textual Rights, Living Immunities
Michael Ramsey

James J. Sample (Hofstra University, Maurice A. Deane School of Law) has posted Textual Rights, Living Immunities (Southern Illinois Law Review, 2016) on SSRN.  Here is the abstract:      

Is the Supreme Court, especially, but not exclusively, in the Chief Justice Rehnquist through Chief Justice Roberts eras, applying the interpretive methods of textualism and originalism consistently in cases involving, on the one hand, the delineation of rights and remedies, and on the other, the development of defenses and immunities? Conversely, does the Court selectively apply these methods asymmetrically? Framed more provocatively, is the Court developing jurisprudence marked by limited originalist and textualist rights, but also malleable living immunities? Whether there is a definitive answer to that question is uncertain, but even assuming, arguendo, that such an answer exists, the aspiration is beyond the scope of this Article. Indeed, the goals of this Article are much more modest: to ask the question and to scratch its surface.


David Weisberg: A Unique, Stand-Alone Second Amendment Implies that both Heller and McDonald were Wrongly Decided
Michael Ramsey

David E. Weisberg (Independent) has posted A Unique, Stand-Alone Second Amendment Implies that both Heller and McDonald were Wrongly Decided on SSRN.  Here is the abstract:      

D.C. v. Heller (2008) held that the District violated the Second Amendment by prohibiting operable handguns in the home for self-defense. McDonald v. Chicago (2010) held that, because the Second Amendment is incorporated in the Fourteenth and thus applies against the States, a similar handgun ban in Chicago also violated the Second Amendment. Both decisions are incorrect.

The Second Amendment is the only constitutional provision with a prefatory clause. The logic of Heller implies that the amendment would have exactly the same legal force if its prefatory clause were deleted and its operative language were simply appended to the First Amendment. This implication is bizarre and unacceptable; it reveals a fundamental misunderstanding of the amendment’s unique tripartite structure. “The right of the people to keep and bear arms” referred to in the Second Amendment is: (1) created by state law, (2) exercised by the people, and (3) protected from federal infringement. The right is not created by the Second Amendment itself; nor is it a natural right of self-defense.

Heller is incorrect for two reasons: (1) the Second Amendment applies only to States, not to the District, and (2) even if the amendment applied to the District, there was no District law creating a right to possess handguns which was infringed by the federal government. McDonald is incorrect because the Second Amendment cannot be “incorporated” in the Fourteenth. Of the first eight amendments, only the second is tripartite. The others are binary, declaring rights persons have against the federal government. One can coherently apply a right, which was formerly applied against only the federal government, against a state government. One cannot coherently apply a prohibition created by state law against the State that created the prohibition.


Clark Neily versus Mark Pulliam on Judicial Engagement
Michael Ramsey

At City Journal, an exchange between Mark Pulliam and Clark Neilly

The legal Right today is broadly divided into two camps: those who support a more engaged judiciary, one willing to overturn state and federal legislation in the interest of enforcing enumerated and unenumerated constitutional rights; and those who believe in a judiciary that takes a more limited view of the constitutional text.

We have invited two experienced litigators—Clark Neily and Mark Pulliam—to explain and debate these positions.

Read “Against ‘Judicial Engagement’” by Mark Pulliam

Read “Rules of Engagement” by Clark Neily

Neily, an attorney with the Institute for Justice, has made a career out of challenging the constitutionality of laws and regulations. In his book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, Neily calls for “meaningful judicial engagement,” arguing that “the structure of the Constitution rejects reflexive deference to the legislative branch.”

By contrast, longtime attorney Mark Pulliam, a contributing editor to the Library of Law and Liberty, has derided judicial engagement as “faux originalism.” According to Pulliam, the approach preferred by Neily and other libertarian academics would, at worst, “unmoor constitutional law from the text of the Constitution and empower unelected judges to be society’s Platonic Guardians.”