« May 2017 | Main | July 2017 »

39 posts from June 2017


Living Constitutionalism on the Supreme Court’s Website
Mike Rappaport

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.   

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.   

1. First, the website writes:

This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations. 

This claim appears to explicitly endorse a “living Constitution.”  To be sure, the technical claim could be interpreted in a way that an originalist would endorse.  Applying a broad provision such as the Commerce Clause to transactions made over the internet would involve a new situation.  But originalists would typically not describe those as involving a living Constitution.  That term suggests creativity on the part of the justices.

2. Second, the website states that “While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.”

It is not entirely clear how to interpret this claim, but the language before and after this quote seems to suggest that the Constitution does not explicitly acknowledge judicial review.  This is very misleading.  It is true that the Constitution is not explicit about all forms of judicial review, but it does clearly indicate that there will be judicial review of state laws.  The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The italicized language makes clear that judges are supposed to be enforcing the Constitution against laws enacted by legislatures.  Thus, the principal argument against judicial review – that the power to determine whether a law violated the Constitution in a particular case was not judicial power – is foreclosed by the text of the Constitution.  It is true that the existence of judicial review of a congressional enacted law is not unambiguously addressed by the constitutional text, but once judicial review is allowed at the state level, there is a strong argument that the judicial power includes it at the federal level as well. 

3. A third problem with the website is its claim that

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying.  Both are in my view mistaken.  The New Deal viewed this quote as endorsing the idea that judges adapt constitutional meaning to changing circumstances and values.  But that was not Marshall’s point.  He was merely saying that the Constitution was a short document that did not have the detail of a code. 

Perhaps I will check back in 6 more years to see whether the Supreme Court has changed the website.  But with a new originalist Justice, isn’t it time to adopt a more neutral description of the Court’s function?

Senator Mike Lee on the ‘Hamilton Effect’
Michael Ramsey

Senator Mike Lee (R-Ut) writing at Politico Magazine: How the ‘Hamilton Effect Distorts the Founders. From the introduction:

Even in an age of declining civic education, a basic understanding of the founding generation thankfully remains part of America’s secular catechism. Over the past decade, the Founding Fathers have even enjoyed a renaissance. Creative storytellers like David McCullough and Lin-Manuel Miranda breathed life into stories we thought we knew. The Obama years birthed a tea party movement that had at its center a restoration of constitutional principles. And now, in the age of Trump, progressives have discovered a strange new respect for the importance of the Constitution’s checks and balances and restraints against majoritarian impulses.

But even with their newfound fashionability, the founders remain widely misunderstood. Names like Washington, Adams, Jefferson, Madison, Franklin, and Hamilton still carry weight, but the ideas they espoused get discarded. Other key figures—individuals whose words and ideas contributed much to the founding—are either relegated to the footnotes or missing altogether from our nation’s popular history.

The familiar narrative many of us were taught as children about our founding—that great men came together to forge a Constitution that set America on its present course—isn’t exactly true. Much of it has been deliberately crafted as a means of justifying our modern political whims. History is, by its nature, about the battle of ideas. The problem comes when we look to history not to understand it or draw inspiration, but to seek out confirmation for our pre-existing beliefs.

Take Alexander Hamilton, a brilliant man who spoke up during the debates over the Constitution as one of the most fervent advocates of a robust national government. Today, he’s embraced by many advocates of Big Government as a kindred spirit—doubtless thanks in large part to Miranda’s smash hit Broadway show, “Hamilton,” which recontextualizes the founder as a hardscrabble immigrant who arrived in New York and, with cunning ambition, worked his way to the top of American society.


Amicus Brief by Seth Barrett Tillman in the Emoluments Litigation
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump (filed in the United States District Court for the Southern District of New York) on SSRN.  Here is the abstract: 

In the early days of our Republic, many constitutional questions divided Alexander Hamilton on one side from Thomas Jefferson and James Madison on the other. Could Congress charter a bank? Hamilton said yes, and Jefferson said no. Must the Senate consent to the removal of principal officers? Madison said no, and Hamilton (according to most accounts) said yes. Could the President declare neutrality unilaterally? In a series of pseudonymous essays, Hamilton said yes, while Madison said no. In each case, the ultimate decision was made by President George Washington. Through their public and private debates, these three Presidents and Hamilton, another prominent Founder, played central roles in the resolution of critical constitutional questions. For over two centuries, courts have turned to their considered judgment when resolving disputes about the Constitution—even where they disagreed amongst themselves.

These Founders, however, did not dispute the issue before this Court. Plaintiffs’ claim that the Presidential Emoluments Clause and Foreign Emoluments Clause prohibit the President from receiving “anything of value,” whether “monetary or nonmonetary,” from domestic or foreign governments. The words and deeds of Washington, Jefferson, Madison, and Hamilton teach a different lesson.

First, Plaintiffs’ understanding of the Presidential Emoluments Clause cannot be squared with the practices of George Washington, whose conduct helped to define the presidency. In 1793, our first President purchased several plots of government-owned land in the nation’s new capital at a public auction. The auction was managed by federal officers, widely publicized, and these valuable plots were acquired in broad daylight. If Plaintiffs are correct, then Washington openly committed impeachable offenses under the watchful eyes of prominent members of the Founding generation, political opponents, and commercial rivals. This Court should reject Plaintiffs’ novel construction, and instead adopt one consistent with this formative history: the prohibition on the President’s receipt of “emoluments” from domestic governments is limited to “compensation or pecuniary profit derived from a discharge of the duties of the office.” Financial gain arising from private business transactions are not emoluments.

Second, Plaintiffs’ reading of the Foreign Emoluments Clause cannot account for the fact that our Founding-era presidents openly received diplomatic gifts from foreign governments. President Washington received a portrait of King Louis XVI from the French Ambassador to the United States. President Jefferson received a bust of Czar Alexander I. President Madison received two pistols from a revolutionary South American government. Congress’s consent was not sought for any of these gifts. If Plaintiffs are correct, three Presidents central to the American Founding openly committed impeachable offenses, or worse, were ignorant of the Constitution they helped draft and define. This Court should reject Plaintiffs’ argument, and instead follow the example set by these Presidents, as well as that illustrated by Secretary of the Treasury Alexander Hamilton’s 1792 report to the Senate. His report lists all who hold office under the United States, but not the President, implying the latter is not subject to the Foreign Emoluments Clause.

Plaintiffs counter this body of evidence with statements from George Mason and Edmund Randolph, who argued during Virginia’s ratification convention that the Foreign Emoluments Clause applies to the President. This evidence is problematic, however, because under their view—that everyone in the federal government is an “officer”—members of Congress could be impeached. These idiosyncratic views were rejected by the Senate in 1799 following an impeachment trial, and that rejection was ratified by the Supreme Court a century later. Mason and Randolph’s office-related intentions ought not prevail over the understandings and public practices established by Washington, Jefferson, Madison, and Hamilton, particularly where, as here, the views of the former have been considered and actively rejected.

Plaintiffs’ attorneys’ recent publications also cite examples of antebellum Presidents who asked Congress to dispose of diplomatic gifts. This evidence is not persuasive. First, unlike the Washington-era evidence, which was contemporaneous with the Constitution’s ratification, Plaintiffs’ evidence occurred many decades after the Framing. Second, there is no evidence Presidents Jackson, Van Buren, and Tyler were aware of the practices of Washington, Jefferson, and Madison. Third, voluntary surrender by Jackson of disputed presidential powers to Congress is far less probative than Washington’s public refusal to seek consent and Congress’s acquiescence. When considering competing streams of historical precedent in the separation of powers context, courts favor precedents established via open defiance over mere surrender, even if willful.

The most weighty historical evidence demonstrates that the Presidential Emoluments Clause only concerns compensation that is authorized by Congress or authorized by the states in regard to state positions, and that the Foreign Emoluments Clause is inapplicable to the President, because the President does not hold an office . . . under the United States. For these reasons, this Court should reject Plaintiffs’ attempt to redefine long-standing constitutional meaning to meet the purported demands of the moment.

Counsel on the Brief are Professor Josh Blackman (South Texas) & Robert W. Ray, Esq. (Thompson & Knight). 


Call for Papers: Rehnquist Constitutional Law Center
Michael Ramsey

Via Andrew Coan at the University of Arizona, a call for papers:

National Conference of Constitutional Law Scholars

THE REHNQUIST CENTER is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16–17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

Jamal Greene; Aziz Huq; Pamela Karlan; Frank Michelman; Christina Rodriguez; Reva Siegel; and Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to Submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan(acoan@email.arizona.edu).  For logistical questions please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

About the Rehnquist Center:

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Sam Bray on H.L. Mencken's Constitution
Michael Ramsey

At Volokh Conspiracy, Sam Bray (a new conspirator): H.L. Mencken writes a constitution.  From the introduction:

Tyler Cowen published an interview with Jill Lepore. Cowen is an economist at George Mason University and widely known for his blog Marginal Revolution (a feast for intellectual omnivores). Lepore is a historian at Harvard University and a writer for the New Yorker. It’s a great interview, and Lepore brought up H.L. Mencken’s constitution. What? H.L. Mencken wrote a constitution? As you would expect from Mencken, it’s wickedly funny and wickedly serious. And it has gone almost completely unmentioned in legal scholarship (it’s apparently mentioned in only one law review article).

I’ll give you a few quotes, and then a link so you can read it for yourself. ...

(Here is the link).


Charles L. Barzun Responds to Kessler & Pozen's "Life Cycle of Legal Theories"
Michael Ramsey

Charles L. Barzun (University of Virginia School of Law) has posted Working for the Weekend: A Response to Kessler & Pozen on SSRN.  Here is the abstract: 

In Working Themselves Impure: A Life Cycle Theory of Legal Theories [ed.: available here], Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.


Special Counsel Mueller Would Face Big Legal Obstacles in Establishing that President Trump Obstructed the FBI Investigation of General Flynn
Andrew Hyman

It appears that Special Counsel Robert Mueller is exploring whether to launch a full investigation into whether President Donald Trump obstructed an FBI probe into alleged wrongdoing by retired Lieutenant General Michael Flynn, due to statements and actions by Trump after firing Flynn as National Security Advisor several months ago.  Perhaps the biggest obstacle in Mueller's way is that the pardon power includes lesser powers, such as the power to commute sentences, and more pertinently the power to halt prosecution, technically called a nolle prosequi, which presidents have been using since the time of George Washington.  Some of that history is described in a 2017 law review article by law professor Peter Markowitz.  Likewise, according to law professor Akhil Amar, it was recognized as long ago as 1798 that, "The president's greater power to pardon subsumed the lesser power to simply decline prosecution."  The main difference between a nolle prosequi and a full pardon is that the former does not prevent eventual prosecution, whereas the latter does.

As we all know from recent news reports, Trump not only fired Flynn a few months ago, but also fired ex-FBI director James Comey last month, and Comey then testified to Congress that the FBI's Flynn investigation was
separate from the FBI's investigation into Russian interference with the 2016 election. Trump has denied that Comey's lack of leniency toward Flynn was among the reasons why he fired Comey, and Trump has also denied ordering Comey to back off of the Flynn investigation.  Apparently, the investigation of Flynn is focusing on whether he omitted some material when he filled out federal forms, and also whether his company (Flynn Intel Group) engaged in some improper business dealings with Turkey, and perhaps Russia too.

This whole situation raises many issues as to the original meaning of federal regulations (e.g. those involving appointment of a special counsel), the original meaning of statutes (e.g. those involving obstruction of justice), and the original meaning of the Constitution (e.g. the pardon power and the impeachment power). Below, I would just like to make a few more comments about the pardon power and how it relates to obstruction of justice. If the Special Counsel ultimately decides to argue that there was obstruction of justice, it is unlikely that charges would be filed against a sitting president, and the matter would likely go to Congress for consideration of impeachment; Congress would then have broad discretion about how to proceed. But, I think it would be very improper to make such a referral to Congress unless it is possible for the Special Counsel to provide evidence that Trump would have been obstructing justice even if Trump had pardoned Flynn.

One could argue that Gerald Ford "obstructed justice" when he pardoned Richard Nixon, but most everyone agrees that Ford had no corrupt motive. A closer case involved 
Bill Clinton's 2001 pardon of fugitive Marc Rich. Rich's ex-wife, Denise Rich, had made a $450,000 donation to Mr. Clinton's presidential library and more than $100,000 to Mrs. Clinton's Senate campaign. Comey was in charge of the FBI probe into the Rich pardon from 2003 until Comey closed the case in 2005 without action.  If Mueller were to find such a quid pro quo between Trump and Flynn then maybe that would negate the nolle prosequi power, but that would be doubtful given that the pardon power has very few limits (one of which is that the behavior being pardoned must be past behavior rather than future behavior).

According to a Washington Post analysis, "At any point in time, Trump could extricate Flynn from any perceived judicial witch hunt, granting him immunity for any federal crimes." Perhaps the Post has not heard of nolle prosequi.  If Trump did something far less than pardoning Flynn, such as discussing leniency toward Flynn with Comey, then I do not see any problem for Trump, notwithstanding the Post's position that the pardon power must either be used fully or not at all.  Even if Comey's lack of leniency toward Flynn was one of the reasons why Trump fired Comey (which Trump has denied), that would seem well within the President's power, via either the pardon power or the power to hire and fire. A Special Counsel would have to produce substantial evidence of presidential corruption to have any chance of overcoming those presidential powers, and even then it is very doubtful that impeachment can be used to punish use of the pardon power.  It is well-established that that power encompasses lesser powers, such as the lesser power to commute, and (more pertinent here) the lesser power to decline prosecution.

Jessie Allen: Blackstone, Expositor and Censor of Law Both Made and Found
Michael Ramsey

Jessie Allen (University of Pittsburgh - School of Law) has posted Blackstone, Expositor and Censor of Law Both Made and Found (Blackstone and His Critics (Wilfrid Prest and Anthony Page, eds., Hart Publishing, forthcoming) on SSRN.  Here is the abstract:

Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on judicial policy making. But this essay takes a different approach. I view the judicial performance of legal interpretation described in Blackstone’s Commentaries as a kind of ritual in which Blackstone participates. 

This response might seem to prove Bentham’s point. In the mainstream modern view, ritual is quintessentially false and irrational - an empty ceremony that distracts us from reality. But there is another way to think of ritual. On this account, ritual’s fictional performance is neither deceptive nor delusional. Rather, ritual practitioners act as if their ritual world is real, while recognizing the gap between ritual order and a chaotic, messy world. In my reading, Blackstone’s Commentaries describes an ambiguous ritual of judicial discovery, in which judges act as if they are finding objectively determined outcomes, while they - and we - understand and acknowledge that subjective creativity is involved in producing those results. 

Ritual is often associated with maintaining traditional social structures, and in the U S today Blackstone continues to be claimed by conservative “originalists” who treat the Commentaries as an authoritative guide to American law at the time of the country’s founding. But, while ritual cannot finally resolve real social conflicts, it need not always preserve a static social reality. The essay closes with an analysis of the judicial technique in Hively v. Ivy Tech Community College of Indiana, a recent U.S. federal appeals court decision that deployed the ritual of judicial discovery to expand protection for the rights of LGBT Americans.

(Via Larry Solum at Legal Theory Blog).


Derek Black: The Constitutional Compromise to Guarantee Education
Michael Ramsey

Derek W. Black (University of South Carolina - School of Law) has posted The Constitutional Compromise to Guarantee Education (Stanford Law Review, forthcoming) on SSRN. Here is the abstract:

Although the Supreme Court refused to recognize education as a fundamental right in San Antonio v. Rodriguez, the Court in several other cases has emphasized the possibility that the constitution might afford some protection for education. The Court, however, has never explained why the constitution should protect education.

New litigation is attempting to capitalize on the Court's sympathy toward education, but convincing the courts will still require a compelling affirmative constitutional theory. This Article offers that theory, demonstrating that the original intent of the Fourteenth Amendment was to guarantee education as a right of state citizenship. This simple concept has been obscured by the unusually complex ratification of the Amendment. But this article, relying on primary sources, reveals that providing public education was a condition of southern states' readmission to Union and was incorporated into the meaning of the Fourteenth Amendment. As a right of citizenship, this Article also theorizes that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity--some of which have continued to this day.


Originalism and Carpenter v. United States
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: How should an originalist rule in the Fourth Amendment cell-site case? From the introduction:

The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case? There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. I’ll then ask readers to weigh in on it.

Let’s start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

Here’s the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word “their” can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a person’s own self, houses, papers or effects must be unreasonably searched or seized.

[extensive analysis follows]

Sounds right to me (as an original textualist matter).  My only hesitation is whether a Scalia-inspired originalist would be inclined to look at the bigger picture to assess whether a ruling for the government would lead to a general level of privacy and security from search inconsistent with the general level of the founding.  This is the approach that Scalia (but not Thomas) took -- somewhat controversially among originalists -- in the Kyllo case (thermal imaging), and that Scalia went along with in the Riley case (search of cell phone incident to arrest).