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43 posts from March 2017


Randy Beck: Qui Tam Litigation Against Government Officials
Michael Ramsey

Randy Beck (University of Georgia Law School) has posted Qui Tam Litigation Against Government Officials: Constitutional Implications of a Neglected History (Notre Dame Law Review, Vol. 93, 2017) on SSRN.  Here is the abstract: 

 The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The decision effectively granted the President a semi-exclusive power to monitor and ensure the legality of a broad range of executive branch activity.

The Lujan Court overlooked a now relatively unfamiliar aspect of Anglo-American legal history. From the 14th through the 18th centuries, the English Parliament, American colonial and state legislatures, and early federal Congresses routinely enacted “qui tam” legislation that authorized uninjured private “informers” to collect penalties for unlawful conduct by government officials. These qui tam statutes authorized private litigation against executive officials in circumstances that would be classified as generalized grievances under modern standing jurisprudence. The Lujan Court acknowledged historical use of qui tam legislation, but apparently believed such statutes were limited to regulation of “private part[ies].” The widespread practice of regulating government officials through qui tam legislation in the five centuries leading up to the framing of our Constitution suggests the need to reconsider the reasoning of Lujan, though perhaps not the result, and to revise the Court’s understanding of legislative tools available to monitor the legality of executive branch conduct.


Mary Sarah Bilder: The Relevance of Colonial Appeals to the Privy Council
Michael Ramsey

Mary Sarah Bilder (Boston College - Law School) has posted The Relevance of Colonial Appeals to the Privy Council (Texts and Contexts in Legal History: Essays in Honor of Charles Donahue, The Robbins Collection Center) on SSRN.  Here is the abstract: 

 For the past two centuries, the colonial appeals to the Privy Council fell between the cracks on both sides of the Atlantic. For Americans, the creation of the Supreme Court and the absence of published reports of appeals implied legal discontinuity between “American” (post-1787) law and the pre-1787 British imperial world. For the British, the loss of the Atlantic colonies and the lack of printed precedents in appeals implied legal discontinuity between English common law and the colonial appeals. Elsewhere I have written about the importance of the appeals for colonial American legal history and the history of the development of the global law of the colonial world. Here I want to focus on the importance of the appeals for English legal history.


David Cohen and Eric Segall on Neil Gorsuch as the Court’s first originalist
Michael Ramsey

At Dorf on Law, David S. Cohen and Eric Segall: Will Neil Gorsuch Be the Court’s First Originalist?

From the introduction:

When claiming that Gorsuch is an originalist, most people liken him to Justice Scalia or Justice Thomas, two Justices who are also widely regarded as originalists. However, if Gorsuch is confirmed and consistently practices originalism on the bench, he will in fact become the Court’s first originalist Justice.

Discussing previous justices’ views on originalism:

[D]espite many Justices extolling originalism’s virtues, no Justice has ever consistently applied the theory. Part of the reason is that the search for original meaning is often fruitless. It is difficult, and sometimes impossible, to ascertain what people who lived hundreds of years ago thought about issues they could not foresee, such as Presidential drone strikes on American citizens abroad.

But more importantly, even originalism’s most ardent supporters jettison the theory when it doesn’t suit their purposes. One obvious example is affirmative action. There is no credible originalist case for the Supreme Court to find that the Constitution prohibits states from adopting affirmative action plans. In the 1860s, when the Fourteenth Amendment’s Equal Protection Clause was adopted, Congress took several measures that explicitly helped former slaves, and those measures were based on race. A real originalist would recognize that the original understanding of the Fourteenth Amendment was consistent with affirmative action and uphold the practice. However, Justices Scalia and Thomas have always been silent on the issue of originalism when affirmative action was before them and consistently voted against it. They argue the Constitution is color-blind, a principle that is deeply embedded within their conservativism but is nowhere mentioned in the Constitution, nor supported by its history.

Originalists have it even worse when it comes to affirmative action programs adopted by the federal government. For technical reasons, those programs are challenged not under the Fourteenth Amendment but rather under the Fifth Amendment, which was adopted in 1791. It is beyond argument that the original meaning of the Fifth Amendment has absolutely nothing to do with race equality, and for a very obvious reason: this country was almost as far from color-blind as possible in 1791. After all, slavery was the norm in a large swath of the country. Since there was no principle against race discrimination in 1791, a true originalist would have to rule that the federal government was allowed to act based on race; however, Justices Scalia and Thomas have unflinchingly struck down these programs as well.

Why have they ignored originalism here? Because, like every other Justice who has served on the Supreme Court, they use a mix of methods to decide cases, including thinking about what outcome they want. Being ideologically conservative, Justices Scalia and Thomas often support conservative outcomes, even when doing so is inconsistent with originalism.

On Gorsuch’s originalism:

Thus, during the coming week’s confirmation hearings, if Gorsuch claims, as we all expect him to do, that he is an originalist, Senators should question him closely. Is he an originalist when it comes to affirmative action?  Or, taking another issue that is conservative orthodoxy but hard to square with originalism, about whether corporations are people under the First Amendment?

The upcoming hearings are the best chance for the American people to know more about Gorsuch and his proclaimed judicial philosophy. Is he going to, like his predecessors, use originalism only when it suits him, but ignore it when the results are contrary to his personal views or completely at odds with modern society? Or will he use originalism in every case, including approving affirmative action and denying women an equal role in society?


Lawrence Solum (and Cosmopolitan!) on Originalism
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Statement of Lawrence B. Solum re Nomination of Nomination of the Honorable Neil M. Gorsuch To Be an Associate Justice of the Supreme Court of the United States on SSRN. Here is the abstract:

This statement [to the Senate Judiciary Committee] addresses the nature of originalism. Originalism consists of three core ideas: (1) the original meaning of the constitutional text is its public meaning; (2) the original meaning of the text is fixed at the time the text was framed and ratified; and, (3) judges should be bound by the original meaning of the text. Much of the public discussion of originalism has focused on myths: originalism does not attempt to answer the question, "What would Madison do?," and many other charges against originalism are mythical as well. Originalism is in the mainstream of American jurisprudence historically, and originalism should be acceptable to Americans from a broad range of political orientations. The two core arguments for originalism focus on the rule of law and legitimacy.

Also a less-positive take on originalism in Cosmopolitan: 9 Reasons Constitutional Originalism Is Bullsh*t. I did not think I would see in my lifetime an analysis of originalism in Cosmopolitan.

And a response at The Federalist: Cosmopolitan Doesn’t Understand How The Constitution Works.

(Via Stephen Green at Instapundit).


Why My Daughter Needs Originalism
Chris Green

Yesterday, Senator Amy Klobuchar asked Judge Gorsuch if women could be President, given that the Constitution repeatedly uses the word "he" or "his" to refer to the President. Gorsuch replied somewhat gruffly, "Of course, women can be president of the United States! I'm the father of two daughters and I hope one of them turns out to be president of the United States!" Stanley Fish once commented that my then-five-year-old daughter's question to me about the Originalism Works-in-Progress Conference--"but what are you doing?"--beautifully captured the spirit of the conference, and I too-frequently joke that I will save items for her presidential library. If "he" only refers to men, alas, she will never have one, and neither will Judge Gorsuch's daughters.

Assume for the argument that we will pick our constitutional theory to guarantee the result that women may become president, either today or whenever our daughters are old enough to be president. Which constitutional theory guarantees this result? 

Only originalism.  If linguistic drift changes the requirements of the Constitution, then change in the usage of gender-neutral pronouns changes who may be president. There are many parts of the English-speaking world, especially academic parts of it, in which it would be quite improper to use the word "he" repeatedly to refer to a gender-unspecified individual. Historically, though, "generic he" was of course quite common. If this new norm of language were to become universal, could women be President? Not if today's usage norms are deemed controlling in interpreting the Constitution.  

Sticking with the manner in which language expressed meaning at the time of the Founding is actually the best way to guarantee that women may continue to be eligible for the presidency. Construing "he" in the Constitution to mean what the Founders would have expressed by it--that is, what people in many circles today would say only by saying "he or she"--is clearly the way to go. I therefore put "he" alongside "now" as the Constitution's words which most obviously have only the meaning they expressed at the time of the Founding.

Update (3/23): Mike Rappaport makes the additional important point here that generic "he" is used in the Sixth Amendment. While female chief executives like Elizabeth and Anne were known to the Founders but not common, female defendants were both (a) common and (b) covered by "him" and "his" in the Sixth Amendment.

Update (4/3): David Weisberg replies here, noting that generic "he" is not yet dead and that the only provision explicitly referring to presidential qualifications, Article II section 1 clause 5 (II/1/5), uses "person," rather than a form of "he." II/1/5 does not explicitly say, however, that those meeting its qualifications may be president; it merely says that those not meeting them may not. A negative inference from the use of "he" could still be possible, just we might, say, infer a tacit limit on the ability of someone to be both President and in Congress from the requirements that representatives receive a compensation (I/6/1) and that the President receive none other than his compensation as President (II/1/7). And while generic "he" is not dead yet, it could still die in the future, and it is absurd, I think, to hold women's presidential qualifications hostage to such a change in linguistic norms.

Weisberg's paper attacking originalism makes a number of interesting points; while I cannot respond to all of them now, I have already considered one of them at length: that originalism confuses a term's meaning with its referent.  As a criticism of some of the things that Justice Scalia has said, the argument hits the mark--indeed, I begin my own paper by criticizing Justice Scalia (and others) for blurring the same distinction from time to time--but as a categorical attack on originalism, I think it fails. A sense-based rather than reference-based originalism is both possible and compelling. Another of Weisberg's arguments sets up an infinite regress based on epistemic problems with source material: "If the meanings of the words in the Constitution are questionable because of the antiquity of that document, then so are the meanings of the words in all the source materials from the same period." But originalism is not a theory about how to free constitutional meaning from being "questionable"--at least, it should not aspire to be such a theory. Rather, originalism and its competitors are rival views about what makes constitutional claims true or false. Disagreement and dispute, rather than undermining the existence of such a constitutional truthmaker, actually presuppose one: there must be something that we are disagreeing about. Again, Justice Scalia sometimes argued that only originalism can rescue us from constitutional uncertainty, and this argument was flawed because it blurred epistemic constitutional virtues with ontological ones. Refuting a flawed argument for a theory is, though, different from refuting the theory itself. Carefully distinguishing epistemology from ontology, like distinguishing sense from reference, can help us better see the full set of theoretical possibilities worth considering.

Jonathan Gienapp on Originalism and History
Michael Ramsey

At Process: A Blog for American History, Jonathan Gienapp (Stanford History): Constitutional Originalism and History.  From the introduction: 

Thanks to President Donald Trump’s nomination of Justice Neil Gorsuch—a self-identified “originalist”—to the Supreme Court, constitutional originalism is yet again at the forefront of American consciousness. Historians would do well to take special notice. Because while most forms of American constitutional jurisprudence have drawn on the history of the Constitution’s creation, only originalism—the theory that seeks to construe the Constitution today in accordance with its original meaning when it was first enacted—implicates the role of historical study in constitutional interpretation. Moreover, despite several assurances through the years that originalism’s death knell had sounded, the theory enjoys more champions, and more influential champions, than at any point previously. Beyond the federal judiciary, leading originalists can be found on most esteemed law school faculties and in a growing network of influential constitutional law centers and think tanks. The thriving annual “Originalism Works In-Progress Conference” at the University of San Diego Law School’s Center for the Study of Constitutional Originalism (which just hosted its eighth iteration) is one prominent marker of popularity and influence; the well-funded annual “Originalism Boot Camp,” which hosts aspiring law students each summer at the Georgetown Center for the Constitution is another. A new mountain of originalist scholarship and new lines of influence linking this academic work with the world of political and judicial action, meanwhile, appears every year. As Gorsuch’s selection illustrates, originalism is as powerful as ever, so its relationship to history remains as urgent as ever.

Despite that urgency, historians continue to show little interest in originalism. But in scoffing it off as quaint curiosity, outlandish absurdity, or both, they ignore how a largely one-sided and consequential debate has evolved. Fortunately, Gorsuch’s nomination offers a fresh opportunity to probe originalism’s relationship to history. It has evolved significantly since its emergence, around the time that Antonin Scalia—the theory’s most visible champion for the past three decades and the justice Gorsuch has been nominated to replace—first took his seat on the Supreme Court. But originalism’s development is not simply intriguing in its own right. By understanding how it has changed, we can appreciate the unique, little understood, and urgent threat it now poses to the practice of history.

And from the conclusion:

No doubt historians investigate a plethora of historical meanings, often privileging exactly the kinds of subjective intents and understandings that public meaning originalists disparage—such as, for instance, the authorial intent that shaped a text’s production, the intellectual purposes that a text served, or the broader intellectual or cultural context from which a text emerged. But that choice is irrespective of knowing how to think historically. If the goal happens to be deciphering the public meaning of a historical text, then this foundational historical skill remains every bit as essential. The reason why is what originalists’ favored keyword searches (detailed above) fail to take into account: that, as Bernard Bailyn has put it, “the past is a different world.”  Words and concepts that appear in historical sources often bear a superficial similarity to our own, but grasping what they actually meant in their original historical context requires first reconstructing the foreign conceptual world from which they issued. Keyword searches can never disclose this world (in fact, such searches presuppose that this world is immediately accessible and virtually identical to our own). But, as all historians know, bringing this world into focus requires a much deeper level of immersion. It requires a version of what is needed to decode early modern French cat massacres, crowd activity in eighteenth-century Britain, or early nineteenth-century New York ordinances on pig-keeping.  It requires taking up residence with the natives of the historical past, engrossing oneself in their logics, tracing the patterns made by their thoughts and meanings, and learning how to think and reason as they once did. In the case of the American Constitution, it requires knowing how to think and reason as Founding-era Americans did, knowing how to see the world as an original constitutional reader would have. It requires learning how to speak eighteenth century. It requires knowing how to think historically. It requires, in short, behaving like a historian.

I agree with much of the essay, in particular that it would be a great contribution for historians to become more involved in the originalist enterprise.  I do not agree (as Professor Gienapp says midway through the essay) that most originalists "have dismissed most eighteenth-century historical evidence as irrelevant to their quest"; if they have, they shouldn't.  But historians have not helped themselves by claiming implausibly that the historical meaning of texts cannot be determined or that only historians can make historical arguments.  (To be clear, Professor Gienapp does not make these claims; but I have heard them many times).  Collaboration between historians and legal scholars to reach common ground on historical meaning would be an important step forward.

(Via Alfred Brophy at The Faculty Lounge).


More Questions for Judge Gorsuch
Michael Ramsey

Everyone seems to have a set of questions the Senate should ask Judge Gorsuch.  Many of them involve originalism (thanks for all the free publicity, Judge!).  Here are a few highlights:

At Politico, Jeff Greenfield: What the Senate Should Ask Judge Gorsuch -- A few good questions could rescue the Supreme Court hearings from the charade they've become.  On originalism: 

Asking Gorsuch point-blank whether he believes in “originalism” or views the Constitution as a “living” document is an invitation to a linguistic tap dance. A better course would be to frame the issue specifically. For instance:

“The Eighth Amendment forbids ‘cruel and unusual punishment.’ But it doesn’t define the term. If a punishment like flogging or branding was a regular feature of 18th century criminal justice, would that mean a court could not forbid it under the Eighth Amendment today?”

Or, “Interracial marriage was outlawed by 16 states for a century after the 14th amendment and its equal protection clause was adopted. When the issue came before the Supreme Court in 1967, the ban was unanimously struck down. Did the court have to find that legitimizing interracial marriage was the ‘original intent’ of the drafters in order to reach its decision?”

Either question would make clear where originalism finds its most difficult challenge, and might help provide a clue to how Gorsuch works through such a challenge.

Actually these are both pretty unhelpful questions.  On the first, as I've noted, "unusual" could have (at least) two possible original meanings.  One is Justice Scalia's -- that it referred to particular kinds of punishments: punishments that were aberrational at the time of enactment.  Another is that it referred to punishments that are aberrational at the time the punishment is imposed.  I think a conventional originalist could have either view, depending on one's perception of what motivated the amendment.  (For more extensive discussion, see here from John Stinneford).

On the second, (a) what is it with commentators and "original intent"?  How many times must one say that the touchstone of modern originalism is the original meaning of the text, not the framers' intent disconnected from the text?  To be clear, the answer the the question posed in the last sentence of the paragraph is "no."  Period.  (b) Post-ratification practice is evidence of original meaning, but it's not conclusive evidence.  The fact that "16 states" [not actually that many, plus how many were ex-Confederate States?] outlawed interracial marriage might only be evidence that many states did not live up to their constitutional obligations.  The question is whether the original meaning of the Fourteenth Amendment barred laws against interracial marriage.  I think most originalists (including Scalia) would say it did, based on the text itself and the Court's early interpretations in cases like Strauder v. West Virginia.  (See here for more extensive analysis from David Upham).

In sum, originalists have thought about these issues in depth.  They simply aren't material for "gotcha" questions.

The Los Angeles Times does better in an editorial, asking (among others) these questions:

For example, to Americans in the 19th century, the “equal protection of the laws” guaranteed by the 14th Amendment might seem to protect only racial equality; in the 20th century it seemed obvious to many Americans that it also prohibited some forms of sexual discrimination. Does Gorsuch object to that updated interpretation? Does he believe that a constitutional provision must be viewed through the eyes of the generation in which it was adopted and can't be interpreted to deal with situations its authors never could have imagined, such as cellphone GPS signals being used to track suspects without a warrant?

These are both pretty tough questions and the answers would reveal a tendency toward one or another camp within originalism.  On the sexual discrimination point, some (like Justice Scalia) would say that is so far outside the framers' idea of equality that the Fourteenth Amendment can't cover it, and updating (if thought appropriate) must be done by amendment or legislative processes, not by unelected judges.  Others (like Michael Paulsen) would say that the plain meaning of equality includes equality for women (as many people, especially many women, recognized at the time of enactment), even if post-enactment men did not live up to that aspiration.  (In my view an even better question is what the nominee thinks of Obergefell v. Hodges, the same-sex marriage case, as a matter of originalism: this really gets at the question of how much changing understandings of facts allows outcomes completely unanticipated by the framers -- see my discussion here).

The second question the Times poses is also hard, although it's mangled by the tendentious phrasing: of course all conventional originalists think that the Constitution can "be interpreted to deal with situations its authors never could have imagined."  Originalism does not fail to accommodate technological change, as Justice Scalia made clear in District of Columbia v. Heller, for example (holding that the Second Amendment protects the right to "keep" modern arms that were unknown in the founding era and dismissing the contrary argument as bordering on the frivolous).  But there's a substantial question how far this goes.  In Kyllo v. United States, for example, the question was whether the Fourth Amendment required the police to obtain a warrant before using infrared technology to measure the heat coming from a private home (high heat levels suggesting drug-growing operations).  Justice Scalia said the original meaning of the Fourth Amendment required a warrant; Justice Thomas thought it did not.

One observation from all this is that originalism has extensive internal debates about how far it extends the Cosntitution's text into modern controversies.  Commentators (and aspiring question-writers) would do well to work within these debates to formulate truly meaningful questions instead of trying to play "gotcha" in areas where thoughtful originalists will already have well-considered answers.  The questions for Judge Gorsuch should try to locate him on the spectrum of modern originalism in terms of how far he would go apply the text's original meaning in ways unanticipated by the framers.  All originalists are willing to do this to some extent, but some more so than others.  If one really cares what sort of Justice Judge Gorsuch will be, this is an area to investigate.

RELATED:  Other interesting sets of originalist-oriented questions from Ilya Somin here, and Ramesh Ponnuru here.


Josh Blackman: SCOTUS after Scalia
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted SCOTUS after Scalia (NYU Journal of Law & Liberty, Vol. 11, No. 1, 2017) on SSRN.  Here is the abstract:

 The sudden passing of Justice Antonin Scalia disturbed the Supreme Court’s predictable rhythm. This Foreword will analyze the contentious period from Justice Scalia’s death until President Trump’s inauguration, and draw four lessons about the Court, the Constitution, consistency, and Congress. First, this interregnum allows us to study how the short-handed Court engaged in self-help in the short term, and in the long run, how the Court may remain evenly-divided Court for years at a time. Second, with a possible liberal replacement for Justice Scalia, the conservative legal movement’s faced a near-death experience. Part II analyzes how this brush with fate may impact the Roberts Court’s views on incrementalism, institutionalism, and originalism. Third, the change-in-administrations offers an opportunity to lay down markers and chart future movements on the left and right with respect to three important areas: federalism as a check on federal power, deference to the administrative state, and state-led litigation against the federal government. Part III discusses how constitutional consistency will evolve during the Trump Presidency with respect to federalism, administrative law, and state-standing to pursue nationwide injunctions.

Finally, Part IV considers how the unexpected outcome of the election — whereby the Presidency and Senate were both in Republican control — simply delayed the inevitable: at some point, the President and Senate will be of different parties, and they will not be able to agree on a Supreme Court nominee. Through a novel approach developed in this Foreword, the Senate can offer preliminary votes on several possible candidates to fill a Supreme Court vacancy. Though not bound by those resolutions, the President would be wise to consider the Senate’s counsel before making the nomination. By offering Senatorial “advice” before the President’s nomination is made, the “consent” process between the two branches becomes more collaborative and less antagonistic.

It is important, not to simply shrug off the past year as an outlier in the Court’s history. The atypical October 2015 term may, soon enough, become the new normal.


Stephen Gottlieb: Democracy Essential to the Legitimacy of Constitutional Interpretation
Michael Ramsey

Stephen E. Gottlieb (Albany Law School) has posted Democracy Essential to the Legitimacy of Constitutional Interpretation on SSRN. Here is the abstract:

Contemporary risks to democracy sharpen the question about what use the Court should make about democratic thought, especially empirical thought. By contrast, the argument over originalism has largely eliminated democracy from constitutional interpretation, partly in reaction to Carolene Products. This manuscript argues, first, that no theory of constitutional interpretation can be legitimate without democracy, and then explores the implications of that conclusion.


Michael Morley: The Federal Equity Power
Michael Ramsey

Michael T. Morley (Barry University School of Law) has posted The Federal Equity Power on SSRN.  Here is the abstract:

Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.

Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power. 

There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.

Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law’s text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.