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46 posts from April 2017


Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment
Mike Rappaport

In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand.  In these cases, one might expect that the skills of the professional historian would be the most valuable.  Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians.  Instead, originalists have a made a large number of important advances in this area.  Thus, even in the hard areas, one cannot dismiss the methods of originalists, especially when conducted in the proper way.

Back in the 1980s before I became a law professor, I was first exposed to originalist interpretation of 14th Amendment.  At the time, I thought the Privileges or Immunities Clause probably incorporated the Bill of Rights; the Due Process Clause was simply procedural due process, and the Equal Protection Clause provided for equality generally.  Various people made these arguments and they seemed to make sense.

But then I remember reading through the congressional debates on the Amendment and having the toughest time.  Members of Congress seemed to be saying the most absurd things.  How could they be so confused?

Obviously, someone was confused but it wasn’t necessarily the members of Congress.  I had come to the debate with preconceived notions about the meaning of the Amendment and somehow the debate did not conform to my ideas.

But that was back in the 1980s when the rebirth of originalism was in its infancy.  Over time, as the movement and your author have matured, the obvious mistakes of that approach have been recognized.  In particular, the problem of assuming that we know the meaning of the clauses, when we know one plausible meaning of the words, is seen as a serious problem.  There may be many possible meanings (including legal meanings that do not conform to ordinary language understandings).

Originalists have made great progress in the last generation in appreciating the many possible meanings of the 14th Amendment.  Thus, they have come to understand that the Privileges or Immunities Clause might protect various fundamental common law rights in the states instead of (or in addition to) protecting the Bill of Right.  They also recognize that the Clause might be understood as either protecting substantive rights or protecting only against unequal treatment as to the rights.

Originalists have also recognized many additional possible meanings of the Due Process Clause.  In addition to the possibility that the Clause only protects “procedural due process,” it might protect certain vested rights and certain equality rights.  Other scholars have argued it protects natural rights.  Yet other scholars have argued that it has the narrow meaning by only applying to departures from existing law, but does not forbid the legislature from establishing whatever procedures it desires.

Finally, there is the Equal Protection Clause.  One significant advance is that the recognition that the Clause might not require equality as to all laws, but instead might identify a category of matters, “protection of the law, that involves remedial matters (such as protecting people from having the rights they enjoy under the law infringed).  Under this view of the Clause, the state has an obligation to provide to people this type of protection (but only this type) equally.

Clearly, then, originalists have uncovered a significant number of historically plausible meanings of the Amendment.  This number of possibilities has represented a great advance.  But it now places the burden on originalists to determine what is the correct meaning.  In my view, this will depend on considering a variety of factors, including the more common meaning and the underlying purposes of the provision.

One might have thought that these advances, in this very difficult area, would have been the result of historians who were more conversant with the historical usage of these terms and concepts.  But to my mind, it has not been primarily the result of historians.  Instead, originalist scholars have made significant progress, such as Akhil Amar, Jack Balkin, Randy Barnett, Steve Calabresi, Nathan Chapman, Chris Green, John Harrison, Kurt Lash, Mike McConnell, Melissa Saunders, Ryan Williams and others who I am no doubt forgetting.

In some cases, I am sure the originalist scholars have benefitted from the work of historians.  I know, for example, that one of these originalist scholars greatly learned from William Nelson’s book on the 14th Amendment, even though that scholar does not agree with Nelson’s read on the Amendment.  Instead, some of the material Nelson discussed and some arguments he made proved persuasive or useful, even though some of the remainder was problematic.  Of course, I am more familiar with the law review literature and I may be missing some important contributions by historians.  But overall, my strong sense is that these developments have been more the result of law professors than historians.

There is, of course, an important role for historians.  But even in the area where we have been most at sea, historians have not dominated the field.  Instead, it has been a joint effort of many scholars, some of whom are historians, but one where originalists have made, at least to my mind, the principal contributions as to the specific original meanings.

Two from Steven Calabresi
Michael Ramsey

In the mail, from Steven Calabresi (Northwestern):

(1) Steven G. Calabresi and Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648 (2016).  Here is the abstract:

This article examines the original meaning of the equality guarantee in American constitutional law. It looks [at] the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Even if one doesn't accept the ultimate conclusion, the article's historical evidence on the focus by the Fourteenth Amendment's framers on prohibiting the idea of a caste system is impressive and important for analyzing multiple issues under the Amendment.

(2) Steven G. Calabresi, Annual B. Kenneth Simon Lecture: On Originalism and Liberty, 2015-2016 Cato S. Ct. Rev. 17 (2016).  From the introduction:

My talk is titled “Originalism and Liberty” because I am an originalist when it comes to constitutional interpretation and thus agree with the methodological approach of Justices Antonin Scalia and Clarence Thomas. I should mention at the outset that I clerked for former Justice Scalia, and I deeply admire him and am grateful to him because he was my mentor for 34 years. Nonetheless, in the 25 years since I left Washington, D.C., to teach law at Northwestern University, I have studied the history of the Constitution and of the Fourteenth Amendment and Magna Carta in great depth and have concluded that the original meaning of those documents is somewhat more libertarian than Justice Scalia, for example, realized. I want today to present briefly my reasons for reaching the conclusion that originalism means endorsing a presumption of liberty and not a presumption of constitutionality when courts decide the cases that are before them.1 In endorsing a presumption of liberty, I am agreeing with Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty, even though I do not agree with everything Randy says in that book.

And also:

Before beginning my proof that originalism leads to a presumption of liberty, I need to explain what I think it means to be an originalist. I think originalism requires that when one interprets any legal text, whether it be the Constitution, a statute, a contract, or a Supreme Court precedent, one must give the words of the text one is interpreting their original public semantic meaning. This means consulting dictionaries, grammar books, and newspapers published at the time the legal text became law. I do not believe it is appropriate for judges to consult the original intent that animated the adoption of a clause but only the original semantic public meaning of the words of the text. Laws adopted by dead people bind us but their unenacted intentions do not. My view of originalism is thus the view expressed by Justice Scalia when he spoke at Catholic University in the fall of 1996. In that speech, he said:

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. . . . The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the  intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.

My task in this essay is to explain what I think was the original semantic public meaning of several words and clauses that appear in the text of the Constitution, the Bill of Rights, and the Fourteenth Amendment, which I think should lead to a presumption of liberty.


Historians and Originalists Part II: The Adequacy of Originalist Scholarship
Mike Rappaport

In a prior post, I discussed some of the disagreements between historians and originalists.  I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation.  Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task.

Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th Century language will be unknown to them.  Now certainly this is an overstatement.  Much of the language of the 18th century is pretty accessible to modern Americans, even if some parts are not (and even if we do not know which parts we are mistaken about).  Obviously, this includes clear language such as each state enjoying equal voting rights in the Senate.  But it also includes less clear language, such as the Confrontation Clause (which allows the accused the right “to be confronted with the witnesses against him), where we know some of what it means, even if we don’t know the details without further research.

The knowledge of ordinary historians will be even less useful to the extent one believes as I do that much of the Constitution is written in legal language.  If that is the case, then the legal historian may have significant advantages, but other types of historians may miss the legal meanings and the legal methods that lawyers at the time employed to discover that legal meaning.

But none of this should be understood to deny the importance of historians generally and the possibility that their “knowing how” knowledge can help to discover useful information.  Still the key question is whether the methods of law professor originalists are adequate to discovering the original meaning of provisions.

In part, this depends on the information that is required to determine the original meaning.  For original methods originalism, the type of originalism to which I subscribe, one needs to know a variety of pieces of information.  Here let me mention the most important pieces.  First, one needs to know the meaning of the words, including both the ordinary and legal meaning of the terms.  One also needs to know the interpretive rules that were employed, both in ordinary language and in legal language.  Further, one needs to know the purposes of provisions (understood as lawyers at the time would have), and therefore reference to the values of the people at the time will be relevant.  Finally, one needs to know the legal history of institutions.

The typical law professor originalist article, when done well, looks at the provision at issue; the discussion of the provision from the drafting and ratification conventions; precursors to the provision in the states, in the colonies, under English law; and early interpretations of the provision by the Congress and the courts.  In addition, one typically looks at dictionary meanings – both ordinary and legal dictionaries – and usages in other documents of the relevant words.  This may represent a small or large amount of materials, depending on the clause.

What is significant about this type of research is that it will show how people at the time interpreted the provision, including the meaning of words, and the values they appealed to.  It will also show a good deal of information about the words generally and precursor provisions. This can often be a tremendous amount of information.  Since it will often involve specific discussion of particular provisions, it is easier to interpret than more general language which may have different meanings in different contexts.

I don’t want to argue that this information is all one needs, but it will often provide very powerful evidence.  For example, this type of information as to the Recess Appointments Clause provided strong evidence that it had the narrow meaning I argued for and that Justice Scalia defended in his concurrence in the Noel Canning case.  In fact, the people who argued for the broad meaning did not really with conviction contend that it had the broader original meaning.  Instead, they simply claimed that the language was ambiguous and therefore could be “liquidated” through practice.

In many cases, this information will be adequate to the task.  It is true that this information is not complete.  But no historical evidence ever is.  It is always subject to the possibility that other information may be found relevant to the issue.  And if historians can come up with additional relevant evidence, that would be great.

But in terms of the practice of originalism, the question is how often historians come up with information that actually changes scholars’ views as to the original meaning of a provision.  The mere possibility that they will sometimes come up with that information is not enough to show that originalist investigations are inadequate.  One wants to know how often this occurs.  Based on my experience, it is not obvious that the work of historians is regularly needed before anyone can provide a strong case of the original meaning of a provision.

In my last post in this series, I will discuss a case where originalist scholars have struggled to understand the original meaning of a provision and what the role of historians might be as to this interpretive effort.

Seth Barrett Tillman: Business Transactions and President Trump's 'Emoluments' Problem
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Business Transactions and President Trump's 'Emoluments' Problem on SSRN.  Here is the abstract: 

Recently, it has been argued that the term “emoluments”—as used in the Constitution’s Foreign Emoluments Clause and Presidential Emoluments Clause—reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. There is good reason to doubt the correctness of this position.

(For related thoughts by Eugene Kontorvich and Andy Grewal, see here.)

ADDENDUM:  Also -- of course -- here from Robert Natelson.


Historians and Originalists Part I: The Context of the Debate
Mike Rappaport

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement.

One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend to be on the left, while most of the originalist law professors are on the right.  The methodological differences are bad enough without being magnified by politics.  For example, even when I talk to right wing historians who are somewhat sympathetic to originalism, I still find myself often disagreeing with their methodological points.  These methodological differences are important.  Matters only become worse when we add political fuel to the fire.

Another problem is that the two disciplines often are pursuing different goals.  Originalists are seeking the original meaning, with different originalists defining that differently – for example, some seek the legal meaning, others the ordinary meaning.  Historians are often concerning with other issues, such as why different groups sought a particular provision or how provisions changed over time.

Thus, I was pleased to see two articles written by Stanford History Professor Jonathan Gienapp presenting the historians side of the argument with a lot more understanding of and respect for originalism than historians ordinarily exhibit.  That is not to say that I agree with all of his arguments, but his essays are a big improvement.  Happily, Gienapp’s argument has been engaged by various originalists, including Randy Barnett, Mike Ramsey, and Larry Solum.

Much of Gienapp’s first essay argued that the newer originalist theories purported to avoid having to possess detailed knowledge about history.  Instead, these originalists would merely need to know the linguistic meaning of the terms.

In Gienapp’s second essay, he argues that the newer originalists have underestimated how difficult it is to understand late 18th century English.  Instead, they need to appreciate that historians are specialists in understanding the past and therefore their skills are needed to genuinely understand the original meaning.  The techniques by originalist law professors are generally not adequate.

Ultimately, I agree with Professor Gienapp in at least this sense: the more knowledge and information we have, the better.  Historians and law professors bring different perspectives and different skills to the table and generally our understanding of the past will benefit if we have more knowledge.  Thus, historians can make a contribution.  But even if more knowledge is better than less, the key question is how important different types of knowledge is and how much each contributes to the enterprise of discovering the original meaning.

In my next post, I want to focus on a more specific question – whether the techniques used by originalists are usually adequate to the task of determining the original meaning and how often the contributions of historians are needed.

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa? Part 2
Andrew Kent

This is the second of two posts examining whether the Constitution and Bill of Rights, in their original public meaning, provided protections extraterritorially to citizens or noncitizens.

In Part I, I argued that there are some textual hints that the Constitution has a domestic focus, but that it is not possible to definitively discern the geographic scope of constitutional rights from the bare semantic meaning of the text. It does seem clear, however, that constitutional rights are not reserved for citizens only, unless that word is specifically used to describe the rights holders—which it rarely is.


When very common words are used in the constitutional text—for example, people or person discussed in my earlier post—and thus original semantic meaning cannot be derived from eighteenth century word usage alone, Randy Barnett and other public meaning originalists advise us to look at the "publicly known purpose" for which the provisions were added to the Constitution.

Nothing about the contexts in which the original Constitution or the Bill of Rights were framed and ratified suggests any purpose to protect with constitutional rights noncitizens outside the United States. Certainly many provisions of the Constitution were meant to benefit noncitizens—but when they were in the United States or, if not, under then treaties, the law of nations, statutes, or the common law. Examples include Article III diversity jurisdiction and arising under (treaty) jurisdiction.

Looking at the Bill of Rights specifically, the overriding purpose was to quiet public fears that the new federal government would overreach, harming the liberties of the American people or intruding into areas reserved for the states. And as Leonard Levy relates, James Madison—the primary author of the Bill— stated that in the proposed Bill he “had recommended only the familiar and avoided the controversial. He warned against enumerating anything except ‘simple, acknowledged principles.’" As Justice Robert Jackson wrote, "extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment [at the Founding]. Not one word can be cited."

The Allegiance-Protection Framework

In addition to the purpose and context of the Constitution, the key to understanding how the geographic or person domain of the Constitution was originally understood is a common law and political framework that underlay the document, the protection-allegiance framework. As Philip Hamburger has shown, and I have discussed at length (here, here, here),  at the Founding, protection of the laws was understood to be stand in a reciprocal relationship with allegiance to the government. Citizens or subjects owed allegiance and were protected by the courts and the law of the land, whether home or abroad. Noncitizens or non-subjects when visiting or residing in Britain or America owed a local or temporary allegiance to the government, and so they temporarily had corresponding protection. But that protection disappeared when the obligation of allegiance did—when the foreigner left the country. As Blackstone put it, “as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.” At common law, alien enemies—nationals of a country with which Britain was at war—were excluded from protection of the law even if they were within the country.

There is plenty of evidence showing that statesmen and constitution-drafters of the Founding era considered the allegiance-protection framework to be fundamental. Hamburger shows how the framework appeared in the Declaration of Independence, important resolves of the Continental Congress, and state constitutions. There is also plenty of evidence showing that this common law allegiance-protection framework was understood to qualify and limit the broad text of constitutional rights, but this evidence is found in the post-ratification period. Direct evidence from the ratification debates that the framework was implicitly understood to limit the reach of constitutional rights is slim. Madison did indicate to the Virginia convention that alien enemies would not be able to sue in federal court—notwithstanding the broad language of Article III. But other clear examples like this are lacking.

But the "simple, acknowledged" rights found in the Constitution and Bill of Rights were primarily taken from the common law—habeas corpus, the jury, the privilege against self-incrimination, due process, the rights to confront witnesses, bear arms, petition the government, etc. It would have made sense to look to the common law to understand who could claim these rights, in what places, and in what contexts. This move—looking to the common law to contextualize the scope of constitutional rights—is supported, as I have argued here, by the kind of public meaning originalism advanced by John McGinnis and Michael Rappaport. As I understand it, this method of originalism holds that readers of the Constitution would have understood that they needed to apply the appropriate interpretive rules to the document, and that those rules could have included common law allegiance-protection rules about who could claim rights.

But what about constitutional provisions framed not as individual rights, but as limitations on government power—does the allegiance-protection framework also govern the scope of these provisions? Could Congress, for example, pass a bill of attainder directed at an alien enemy? That person could not access the courts to claim the protection of the law in order to challenge the constitutionality of such a bill. But the constitutional text is framed as a flat prohibition on any bills of attainder. I think the right answer is that Congress could not pass any bills of attainder, no matter who directed at. This is in part based on the unqualified text of the provision at issue, and in part based on the horror with which the Founding generation viewed the abusive practice of such bills.

Case by case analysis like this would need to be conducted on other constitutional provisions that refer not to rights holders but to limitations on government power.


Although this conclusion is not free from doubt, I believe the best understanding of the original meaning of the Constitution is that a non-U.S. citizen like Hernandez, who was injured by the U.S. government in foreign territory, would not have a constitutional right to assert. But this does not mean that such a person would have been bereft of any legal recourse at the Founding. A non-enemy alien injured in his or her person (or property) by a U.S. official could have brought a tort suit, even if this injured party was a noncitizen injured outside U.S. territory. This suit could have been brought in U.S. court and, most likely, also in the courts of the foreign country where the injury occurred. The substantive law would have been non-federal: either foreign law, common law, or the general law of nations. As I and others have discussed, however, a combination of legal developments in the courts and Congress in the twentieth century mean that today, someone like Hernandez generally must bring a tort suit under the substantive law of the Constitution. Once that occurred, tort remedies became dependent on the rules about the geographic scope of constitutional rights for noncitizens.

Stephen Sachs on BNSF Railway Co. v. Tyrrell
Michael Ramsey

BNSF Railway Co. v. Tyrrell (argued to the Supreme Court today, see SCOTUSblog summary here), Stephen E. Sachs (Duke) this interesting amicus brief, also posted on SSRN.  Here is the SSRN abstract:

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is it unnecessary to decide, it has the further defect of being wrong.

Respondents’ case hinges on whether Congress in 1910 affirmatively licensed state personal jurisdiction over railroads doing business within state lines. It did not. The 1910 Act specified which federal courts might hear certain actions under the Federal Employers’ Liability Act. It did not say which state courts might do so—only *that* state courts might do so. Later discussions of doing-business jurisdiction in fact referred to a preexisting standard for state personal jurisdiction, established well before International Shoe. Respondents’ theory gets things backwards: Congress did not reshape state personal jurisdiction to fit the statutory rules for federal courts; rather, it shaped the statutory rules for federal courts to fit preexisting rules for state personal jurisdiction.

While Congress in 1910 left state personal jurisdiction as it found it, this Court’s modern decisions have not. Respondents do not ask for Daimler to be overruled, nor do they deny that Daimler requires reversal in the absence of a statutory override. This is enough to end the case.

That being so, the Court has no need to reach an important constitutional question. This Court has never squarely decided whether Congress may license the exercise of state personal jurisdiction that might otherwise be invalid. It should not do so in this case. “[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” and here there are further reasons for reticence. The United States did not participate before the Montana courts, and limiting Congress’s power in this case may have the effect of striking down other federal statutes or may undermine ongoing legislative efforts and treaty negotiations. If the Court is going to restrict the power of Congress, it should wait for a case in which Congress has actually tried to use the power in question, and in which the United States has been available to defend it.

The Court may be tempted to reach the issue regardless, simply because it seems easy—so easy, in fact, as to obviate any need for caution. Congress cannot license what the Constitution forbids, and the Constitution is widely thought to forbid particular types of personal jurisdiction. Yet that widespread belief is actually mistaken. When originally enacted, the Fifth and Fourteenth Amendments did not themselves impose any fixed limits on personal jurisdiction. They required only that a court *have* jurisdiction, over the subject matter as well as the parties—with the substantive doctrines of personal jurisdiction supplied by separate bodies of general and international law. The Fourteenth Amendment, in particular, was correctly understood by this Court in Pennoyer v. Neff to create a federal question of what had been merely a matter of general law, outside the scope of Article III appellate review. Modern doctrine is correct to hold that federal courts can review state judgments for their compliance with jurisdictional standards. But it is wrong to suggest that those standards are supplied by the Constitution itself, and so may not be altered by treaty or by Congress’s enumerated power under Article IV.

To be clear: this brief does not suggest that the Court conduct its own inquiry as to the original law of due process, or even discuss the issue in any way. The necessary arguments were not briefed at the certiorari stage; they were not raised in the Montana courts; and they have been overlooked by decades of contrary decisions. Yet if the Court now finds itself in a deep hole of incorrect precedent, the least it can do is to stop digging. It should reverse and remand this judgment on statutory grounds, and it should wait for an appropriate case in which to consider the powers of Congress.


Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa?
Andrew Kent

[Editor's note:  For this guest post we welcome Professor Andrew Kent, Professor of Law at Fordham Law School, one of the nation's leading scholars on the extraterritorial Constitution.  This is part 1 of a two-part discussion.]

Thanks to Michael Ramsey, Mike Rappaport, and the University of San Diego School of Law's Center for the Study of Constitutional Originalism for inviting me to talk earlier this month about whether the Constitution, in its original public meaning, provided extraterritorial protections to either U.S. citizens or noncitizens.

This is highly salient now, both because the United States government conducts a wide array of activities outside U.S. borders that might affect constitutional rights, if such rights exist—e.g., surveillance, drone strikes, detentions and interrogations— and because the Supreme Court is hearing this term an important case about the issue.

As I have written previously, based on a review of case law, political branch practice, and commentary over the course of U.S. history:

"[T]erritorial location has historically been a crucial determinant of protection from the Constitution and the courts. Generally speaking, both citizens and noncitizens within the United States were protected by the Constitution and could access the courts to claim protection. But, before the twenty-first century, noncitizens outside the sovereign territory of the United States were held to lack any constitutional rights. On the other hand, U.S. citizenship or lawful permanent residence in the United States did at times provide some extraterritorial rights protection."

The dispute currently at the Supreme Court, Hernandez v. Mesa, concerns a Fourth Amendment damages claim brought by the family of a teenaged Mexican national killed by a U.S. border patrol agent. The U.S. official was standing in the United States when he fired his weapon; the teen was in Mexico when he was hit. The primary dispute is whether the fact that the injury occurred outside the borders of the United States means that Hernandez, as a non-U.S. citizen, lacks Fourth Amendment rights to be free from an unreasonable use of deadly force.

The parties' briefing is doctrinal and precedent-based, not originalist. One of the important precedents is a 1990 decision, United States v. Verdugo-Urquidez, in which the Supreme Court held—consistent with the traditional view—that the Fourth Amendment did not apply to the search in Mexico by U.S. law enforcement of a Mexican national's house. But Hernandez's family argues that the categorical rule of Verdugo, basing constitutional protection on citizenship and territorial location, was undermined by Boumediene v. Bush in 2008, which famously applied a flexible, totality-of-the-circumstances kind of approach to deciding that the Constitution protected habeas corpus for noncitizen detainees at the U.S. naval base in Guantanamo Bay, Cuba.

Unlike the parties, in this post I want to put aside post-1789 case law to focus instead on the original public meaning of the Constitution's text.

The Text

With very few exceptions (such as the Thirteenth Amendment), the Constitution does not overtly specify the places where rights apply. But some hints about scope can be found in the Preamble and Supremacy Clause, the provisions Akhil Amar has called " the Constitution’s most sustained meditation upon itself." As I noted in an article about extraterritorial constitutional rights, the Preamble states the goal of securing liberty "to ourselves and our posterity," and notes that "this Constitution" is ordained and established "for the United States of America." The Supremacy Clause describes the Constitution as "the supreme law of the land." The law of the land was a term of art in eighteenth century English and colonial law, referring to domestic as opposed to international law—the common law and legislation.  (See Michael McConnell and Nathan Chapman on due process and the law of the land.) Together the Preamble and Supremacy Clause suggests a domestically-focused document, protective of the people of the United States in the United States via fundamental domestic law. 

The People, Persons, and Citizens

Cutting against a domestic-only reading is the fact that almost all rights and limitations in the Constitution are written in broad and open-ended terms. For example, most rights in the Fifth Amendment are held by "person[s]," with the one exception—the Takings Clause—being phrased a  simple limitation on power. Sixth Amendment rights are for "the accused." Bills of attainder and ex post facto laws may not be enacted by Congress, full stop.

This open-ended language seems like it must be meaningful. A provision such as the Article IV Privileges and Immunities Clause shows that the drafters knew how to limit rights to U.S. citizens only, if they had wanted to.

What about the rights holders specified by the text of the Fourth Amendment, the provision at issue in Hernandez? The Supreme Court in Verdugo and some scholars such as Amar read the phrase "the People" in the Fourth Amendment as a term of art, referring to a collective, domestic group, the same "We the People of the United States" referenced in the Preamble, in Article I section 2's provision that "the People of the Several States" shall elect House members, and in the First, Second, Ninth, and Tenth Amendments. According to Amar, the core meaning of "the People" referred to "First Class Citizens," the group who were voters, jurors, and militia members. Somewhat similarly, in Verdugo, the  Court read the People" in its original meaning to be the "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." The Court contrasted "the People" with the broader and more encompassing term "person" in the Due Process Clause.

If this is right, Fourth Amendment rights would seem to be available to "the People" (including paradigmatically U.S. citizens) everywhere, but to non-members of the People nowhere. As I have argued, however, I am quite skeptical reading the term "the People" (or the allegedly broader term "person") to have this kind of significance. Examining key precedents for the Bill of Rights—U.S. state constitutions and proposed amendments to the Constitution offered by state ratifying conventions—one sees an array of terms used to describe rights holders: people, person, man, subject, individual, freeman, resident, inhabitant, member. The use of these different terms seems to have been indiscriminate in almost all cases, rather than intended to convey important information about the scope of rights holders.

[to be continued -- ed.]

Beyond the Text: Justice Scalia's Originalism in Practice
Michael Ramsey

I have posted a new essay on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice (Notre Dame Law Review, 2017, Forthcoming).  Here is the abstract

This article, part of a symposium on the late Justice Antonin Scalia, considers Justice Scalia’s use of constitutional originalism as a practical methodology, as reflected in his judicial opinions. Its aim is not comprehensive, for that is likely beyond the scope of any single article. Rather, its goal is to identify central and perhaps unexpected components of Justice Scalia’s approach as well as to identify areas where his methodology remained undeveloped. Part I describes four prominent aspects of his use of originalism to decide cases. In particular, it discusses ways in which Justice Scalia went beyond the conventional textualist focus on the Constitution’s words and phrases and direct evidence of the ways they were used at the time of enactment. Although critics have used these departures to accuse Scalia of inconsistency, this Part argues that they are better understood as components of an originalist methodology that was less strictly textualist than is often supposed. Part II identifies four areas central to practical applications of originalism where Justice Scalia did not fully develop his approach, and where a textualist account seems unlikely to provide ready solutions.


Balkinization Symposium on "The Framers' Coup"
Michael Ramsey

At Balkinization, a symposium on Michael Klarman's book The Framers' Coup: The Making of the United States Constitution (Oxford Univ. Press 2016). Here is a complete list of contributions, from contributors Jack Balkin, James Fox, Laura Kalman, Jud Campbell, Sandy Levinson, Christina Mulligan, Calvin Johnson, Maseeh Moradi, Ryan Williams, Mark Graber, Steven Griffin and Michael Klarman.

Here is the book description from Amazon:

Americans revere their Constitution. However, most of us are unaware how tumultuous and improbable the drafting and ratification processes were. As Benjamin Franklin keenly observed, any assembly of men bring with them "all their prejudices, their passions, their errors of opinion, their local interests and their selfish views." One need not deny that the Framers had good intentions in order to believe that they also had interests. Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself.

The Philadelphia convention could easily have been a failure, and the risk of collapse was always present. Had the convention dissolved, any number of adverse outcomes could have resulted, including civil war or a reversion to monarchy. Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories: the rebellion of debtor farmers in Massachusetts; George Washington's uncertainty about whether to attend; Gunning Bedford's threat to turn to a European prince if the small states were denied equal representation in the Senate; slave staters' threats to take their marbles and go home if denied representation for their slaves; Hamilton's quasi-monarchist speech to the convention; and Patrick Henry's herculean efforts to defeat the Constitution in Virginia through demagoguery and conspiracy theories.

The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests.

Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since.

And from Ryan Williams' contribution to the symposium:

As with any significant new history of the Constitution’s Framing, it seems inevitable that Klarman’s book will be pressed into service by the contending sides in the decades-long debate over “originalist” theories of constitutional interpretation.  Klarman himself has refreshingly little to say on this topic, preferring to lay out the history and allow the interpretive conclusions to fall where they may.  And Klarman’s history may prove challenging for at least certain types of originalist theories, particularly those that depend on an unduly romantic conception of popular sovereignty or implausible notions of the Framers’ foresight to legitimate their enterprise.

But as Stephen Smith observes, originalists as a group are generally untroubled by the notion of a “merely human” Constitution.  The fact that the Constitution was drafted by historically situated, fallible individuals working under constraints of limited time, knowledge, and foresight is a familiar starting point for virtually all theories of originalism.  Nor would the fact that the Constitution was drafted and ratified under conditions that fell far short of a democratic ideal necessarily doom the originalist endeavor.  Indeed, when viewed from a modern perspective, the anti-democratic features of the drafting and ratification process to which Klarman draws our attention pale in significance to the much more familiar democratic deficiencies resulting from exclusions of African Americans, Native Americans, and women.  Moreover, to the extent Klarman identifies lingering substantive anti-democratic deficiencies resulting from the Framers’ decisions, these deficiencies are clustered almost entirely in the Constitution’s “hard-wired” provisions, such as those providing for equal State representation in the Senate, the Electoral College method of choosing the President, and the onerous amendment processes set forth in Article V.  (pp. 625-28).  Because proponents of virtually all interpretive theories tend to read such provisions the same way, Klarman’s account gives us little concrete basis for choosing one interpretive theory over another.

In the end, the question confronting modern interpreters is very similar to the one presented to members of the ratifying public in 1787 and 1788 – namely, whether we are willing to accept the highly imperfect document bequeathed to us by the Framers in Philadelphia as a source of binding law.  Like the vast majority of the ratifiers at that time, members of the present generation had no opportunity to participate in that document’s drafting and many might well prefer any number of alternative governmental arrangements if given the choice. Nevertheless, once the universe of realistic alternative choices is clearly in view, some may find reasons for believing that the merely human Constitution of 1787 – whatever its flaws or shortcomings – is nonetheless acceptable enough to warrant their recognition.