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19 posts from August 2017

08/18/2017

Rob Natelson on a Convention of the States
Michael Ramsey

In The Hill, Rob Natelson: How a ‘convention of states’ could tweak the Constitution. From the introduction: 

Representatives of state legislatures from across the nation will converge in Phoenix, Arizona on Sept. 12 to participate in a traditional American institution called a “convention of states.” 

Conventions of states are valuable. They help ensure Washington, DC doesn’t dictate all decisions on every subject. 

The purpose of the meeting in Phoenix is to plan for another, even more important convention — one to propose adding a balanced budget amendment to the U.S. Constitution. The latter event is likely within the next two to three years. ... 

08/17/2017

A Mea Culpa Regarding Fourth Amendment  Seizures Without Searches
Andrew Hyman

Mark Pulliam recently repudiated an old outdated opinion of his in support of Lochner, as mentioned here at the Originalism Blog.  Mark's essay reminded me that I need to follow in his footsteps, by confessing an old error in a footnote to a law review article of mine over a decade ago.  It's an interesting issue, so why not blog about it?  

Here's what I wrote a long time ago: "the Fourth Amendment does apply to searches without seizures, as well as to seizures without searches...."  I now think the latter part is probably wrong.  However, it remains part of standard doctrine; for example a 2015 treatise on constitutional law stated, "There can be searches without seizures and seizures without searches, and the Fourth Amendment imposes separate requirements for each."  

Here's what the Fourth Amendment says (emphasis added):  

The right of the people to be secure in their perons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Notice the conjunction "and" that I have put in bold, as distinguished from the word "or."  The Amendment would apparently have imposed a general reasonableness requirement on seizures that do not involve searches, had the conjunction been "or" instead of "and."  If police engage in a search that results in no seizure, then I agree with standard doctrine that the constitutional reasonableness requirement applies, because the object of the search is a seizure even if the latter does not end up happening.  But what about a seizure that is not the result of any search --- not even a search for another thing under the plain view doctrine? 

Consider an example of a seizure without a search that would have been familiar in 1792 (when the Bill of Rights took effect): the arrest of a person in public without searching him.  Suppose a man is arrested like that after he very obviously dumps trash on a public sidewalk.  In this "trashy" example, I now doubt that the Fourth Amendment applies to seizing (i.e. arresting) that man; if it does not apply then judges cannot scrutinize the anti-littering statute for reasonableness, nor can judges strike down that anti-littering statute because they think it unreasonably lacks an exception for a man who dumps trash on a public sidewalk after the trash was first dumped illegally on his own adjacent private property.  If the Fourth Amendment does not apply to an arrest in public without any search, then of course the person who is arrested still can resort to other constitutional rights including habeas corpus, the right to indictment (in federal court), and speedy trial.

According to Eric R. Carpenter, "Seizures Without Searches: Defining Property Seizures and Developing a Property Seizure Model", 41 Gonz. L. Rev. 167 (2013), the first U.S. Supreme Court case regarding a "pure property seizure" without any search was United States v. Place, 463 U.S. 696 (1983).  In that case, the Court held that a police dog sniffing suitcases in a public place is not a "search" under the Fourth Amendment.  The luggage had been seized for 90 minutes prior to the dog sniff.  After the sniff alerted the dog to narcotics, the police obtained a warrant, the luggage was searched, and Mr. Place was arrested.  Although the Court held that the pre-warrant sniffing was not a "search," it nevertheless held that the length of the 90-minute pre-sniffing seizure was unreasonable and therefore unconstitutional.  Assuming the Court was correct that a dog sniff is not invasive enough to be a search, could the Fourth Amendment be applicable to a seizure of luggage in public without any search?  I used to think so.  Now I doubt it.

Of course, the police should have and could have gotten the luggage sniffed faster, and maybe that delay was unreasonable in every sense of the word, but perhaps the Fourth Amendment does not ban unreasonable seizures that did not result from any search, instead leaving legislators and law enforcement officers and state constitutions with the (immense) power of determining reasonableness under such circumstances.   There's also the Takings Clause to bar police from simply grabbing from you whatever they want. 

The Constitution does not say "unreasonable searches or seizures." Moreover, it says that any valid warrant must describe "the place to be searched", which would be impossible if no search is involved.  

So, I withdraw my old statement that the Fourth Amendment applies to pure seizures without searches, because I'm not so sure anymore.  Incidentally, the notion that the Fourth Amendment may not apply to "pure" seizures also has implications for seizures that do result from searches.  In particular, supposing that there must be some sort of search for the Fourth Amendment to apply, the reasonableness analysis ought to focus mainly on the search and its relationship to the seizure, rather than on the seizure by itself, because it would be rather absurd to say that a particular type of seizure would be constitutional if unaccompanied by any search, but would be unconstitutional if accompanied by the most reasonable possible search.  

More from Asher Steinberg on Textualist and the Supreme Court's 2016 Term
Michael Ramsey

Asher Steinberg at The Narrowest Grounds: Supreme Court 2016 Term in Review: (Apparent) Mistake, Another Textualist Possibility Unexplored in SW General.  From the introduction:

Have you ever said to someone, "I don't think that means what you think it means," or more declaratively, "that doesn't mean what you think it means"?  If so, you're familiar with the concept of linguistic mistake, as distinct from linguistic accident, or what lawyers call scrivener's or drafting error.  When you tell someone that what they said doesn't mean what they think it means, what you mean is that you think they intended to say precisely the words they said, but that, because they seem to intend to convey something other than what they said means, they are likely mistaken about the meaning of the words they said.

For example, if a wise but unpolished student writes on an exam, "the Court shouldn't of avoided the Chevron question in Esquivel-Quintana, that was a really lame move," it is possible that the student intended both to use a semicolon and write "shouldn't have" and accidentally wrote "shouldn't of" and used a comma in a hurry.  But it is just as possible and probably more likely that this student intentionally wrote "shouldn't of" because he mistakenly believes, as many people do, that "shouldn't of" is a grammatical construction that means "shouldn't have," and also quite likely that the student intentionally used a comma because he mistakenly believes that commas can link independent clauses that can only be linked by semicolons.  When Congress makes that sort of an error, it hasn't engaged in scrivener's error, properly understood.  The metaphorical scrivener's metaphorical pen didn't slip; the text Congress enacted was the text it meant to enact.  Congress was just mistaken about the meaning of the words it deliberately used.

On the other hand, if your boss (or Congress) tells you to file an appeal in no less than seven days, you won't think he meant to say what he said, or is mistaken about the meaning of what he said; you'll likely believe he meant to say "more" and accidentally said less.  You won't think he mistakenly believes that "less" means more, since no one fully conversant in English does.  When Congress makes this sort of an error, it has engaged in scrivener's error.  The scrivener's pen did slip, those members of Congress and staffers who read the text didn't catch it, and Congress voted for and enacted a text other than the text it intended to enact.

And from the conclusion:

Textualists are not concerned with actual intentions, only "objectified" or apparent ones.  Actual intentions are for intentionalists.  However, for a linguistic mistake to be apparent, it first must be possible.  We simply don't know anyone who mistakenly thinks that "less" means "more," so when Congress says "no less than seven days" and seems to have meant "no more," we don't say that Congress seems to have been mistaken about the meaning of "no less"; we say that Congress seems to have accidentally written "no less" and think of the problem in terms of scrivener's error, for which we require certainty.  Linguistic-mistake readings of statutes are only viable when the mistake in question is conceivable, and to be conceivable, it helps if we know of some cases where it's happened.  One reason that it's so easy to assume someone thinks "principle" means "principal" is that many people do.  And one reason Scalia was willing to read "defendant" to mean "criminal defendant" in Bock Laundry is that people sometimes mean defendant that way "in normal conversation."  Indeed, many non-lawyers may mistakenly believe that the only people called "defendants" are criminal defendants.  Some of them are probably in Congress.

Senator Thompson, then, is relevant to a claim that Congress's apparent intention in writing "notwithstanding subsection (a)(1)" was to communicate the idea "but as to subsection (a)(1)," not because he shows that it was Congress's intention, but because he shows that it could have been the intention of a normal speaker using Congress's words.  Once you read Thompson confidently asserting that "notwithstanding subsection (a)(1)" meant that (b)(1) only limited (a)(1), not (a)(2) or (a)(3), it's no longer so hard to imagine a Holmesian normal speaker of English mistakenly thinking "notwithstanding" means "but as to."  Apparently, it happens.  

* Acknowledgements to Mitchell Berman's typology of legislative intent in "The Tragedy of Justice Scalia"—one of the few truly excellent and practically useful bits of interpretive scholarship in the last few years—for suggesting much of this post, though I dissent from his judgment of Scalia as a tragic figure.

From prior posts in this series, see here and here.

08/16/2017

Joel Trachtman: Terminating Trade Agreements
Michael Ramsey

Joel P. Trachtman (Tufts University - The Fletcher School of Law and Diplomacy) has posted Terminating Trade Agreements: The Presidential Dormant Commerce Clause versus a Constitutional Gloss Half Empty on SSRN.  Here is the abstract: 

The U.S. Constitution does not explicitly allocate authority to terminate treaties made pursuant to the Treaty Clause or as congressional-executive agreements. All modern trade treaties of the U.S. are made as congressional-executive agreements. The conventional wisdom among a number of U.S. foreign relations law scholars, as evidenced by the Restatement (Third) of Foreign Relations Law, is that, while congressional or Senate participation is required to make these treaties, the President has the independent power to terminate them. This position, while it may be correct as it pertains to treaties in other fields, takes insufficient account of the fact that, under the Commerce Clause, commerce is an area of exclusive congressional power. This paper argues that the exclusive congressional power over commerce is inconsistent with independent Presidential authority to terminate trade agreements. It also examines existing statutory authority for entry into and operation of trade agreements, and finds no statutory authority for the President to terminate trade agreements. Therefore, the President lacks authority, without new authorization from Congress, to terminate existing trade agreements.

Professor Trachtman is a giant in the field, but this approach strikes me as misconceived.  While it may be true that in modern practice all trade agreements are made as congressional-executive agreements, that's not because people think the President lacks power over international commerce.  In the post-ratification era -- and indeed until the mid-20th century -- trade agreements were made as treaties.  Moreover, in the modern period, many agreements relating to commerce are made as treaties, including bilateral investment treaties, tax treaties, and intellectual property treaties.  (See my discussion of the historical and modern practice here: The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice). So it is emphatically not the case that "under the Commerce Clause, commerce is an area of exclusive congressional power." Under the commerce clause, the regulation of commerce by statute is an exclusive congressional power (or at least, it's exclusive of the other branches of the federal government; states can regulate, even in modern practice, so long as they do not run afoul of the relatively narrow dormant commerce clause doctrine).  But regulation of commerce by treaty is a power of the President with the advice and consent of the Senate.

That's not to say that the President  necessarily can terminate trade agreements.  My view is that this question cannot be answered in the abstract, but rather must be answered agreement-by-agreement on the basis of the language of the particular statute implementing the agreement.  There is not an easy answer based on the constitutional relationship between Congress and the President -- in part because the congressional-executive trade agreement is a modern innovation.

08/15/2017

Jud Campbell: Natural Rights and the First Amendment
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted Natural Rights and the First Amendment (Yale Law Journal, forthcoming) on SSRN. Here is the abstract:

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding-Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding-Era elites shared understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

This was one of the papers at the 2017 originalism works-in-progress conference in San Diego.  Congratulations to Professor Campbell.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download it while it's hot!"

08/14/2017

Asher Steinberg on Textualism and Legislative History
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: Supreme Court 2016 Statutory Term in Review: Disregarding Legislative History's Textualist Uses in SW General.  From the introduction: 

Textualists believe in using legislative history to interpret statutes—even when, if not for a statute's legislative history, they would otherwise find the statute's text clear.  What grounds could I have for making such a provocative remark?  It's famously true, of course, that textualists reject the notion of legislative history as authoritative gloss.  That's because textualists believe a statute's legal meaning is what its language means in some objective sense, not what Congress intended to convey by it.  But textualists have always granted that legislative history can help us work out what statutory language means, if only because legislative history, like any other writing or speech, can serve as evidence of how particular words or phrases are used, and thus what those words or phrases mean.  Here, for example, is Justice Scalia discussing the point in a published dialogue with John Manning five years ago:

And by the way, I don't object to all uses of legislative history. If you want to use it just to show that a word could bear a particular meaning--if you want to bring forward floor debate to show that a word is sometimes used in a certain sense--that's okay. I don't mind using legislative history just to show that a word could mean a certain thing. We are trying to ascertain how a reasonable person uses language, and the way legislators use language is some evidence of that, though perhaps not as persuasive evidence as a dictionary. That is using legislative history as (mildly) informative rather than authoritative: “the word can mean this because people sometimes use it that way, as the legislative debate shows,” rather than “the word must mean this because that is what the drafters said it meant.”
There's an interesting ambiguity here.  Scalia's clear that he's not persuaded by arguments that statutory language must mean this because that's what the drafters said it meant.  It's unclear, though, whether he's open to arguments that statutory language can mean this because that's what the drafters said it meant to them, or whether the only sorts of legislative history he'll consider for this purpose are statements that incidentally use a word or phrase in a certain way, rather than defining it or glossing it.  
 
I think it's likely that Scalia would at least be reluctant to use gloss as evidence of linguistic meaning; Scalia seemed to distrust legislative gloss apart from his concern that it not be deemed controlling.  Earlier in his response to Manning's question on legislative history, he complains about legislative history that "simply declares what the committee or sponsor intends a word or phrase to mean: 'Subsection B means this or that.' That statement is meant to be authoritative; its one and only function is to tell us how that committee or sponsor wants the bill to be interpreted. When judges attribute that intention to Congress as a whole, they are not ascertaining meaning . . . ."  However, if legislative history can be evidence of what a word in a statute can mean, what's better evidence, as far as legislative history goes, than a definitive statement by that statute's drafters on what they think that word means in that statute?  A floor speech in which a Senator uses a statutory term to mean something or another only shows what the term can mean in a context that may bear little resemblance to the context in which it's used in the statute; we may also be generally suspect of informal usage as a proxy for meaning in the statute's relatively formal and technical context.  On the other hand, a statement by the drafters that some snippet of statutory language means something to them would seem much stronger evidence of what that language at least can mean to reasonable people in the context of the statute itself.
 
Bracketing for the moment Scalia's possible hostility to using legislative gloss as evidence of linguistic meaning, it's at least clear that Scalia was open to using some legislative history as evidence of what statutory language can mean, but not open to using legislative history as authoritative evidence of what statutory language does mean.  This use of legislative history to suggest linguistic possibilities, but not to resolve linguistic debates, has an intriguing corollary; for Scalia at least, legislative history is much more probative when a statute seems clear than when it's ambiguous.  When Scalia already knew from other sources that a statute was ambiguous, legislative history had no work to do for him; it could at most redundantly confirm that a statute could mean what a dictionary or his own understanding of the language already told him it could mean.  But when a statute seemed clear, legislative history could productively dispel that appearance of clarity and show him that a "word can mean this because people sometimes use it that way."  
 
This seems counterintuitive given textualists' devotion to the plain meaning rule, but the internal textualist logic is perfectly sound.  As textualists don't think a statute means what Congress intended, the usual way people use legislative history—as a solvent of ambiguity if the statute's text isn't clear—makes no sense for textualists.  There's just no reason for textualists to say that if a statute's ambiguous, it means what "Congress" (really, certain involved committees or members) said it meant.  But textualists are interested in what statutory language means, and absent argument that Congress is so linguistically incompetent that its usage is worthless evidence of linguistic meaning, it makes no sense to have a rule by which legislative history is disregarded so long as a statute seems clear prior to considering evidence of alternative usage in legislative history.  That would be tantamount to saying that courts should decide whether a statute's clear on less than all the relevant evidence.  Indeed, on Scalia's understanding of legislative history's uses, it would seem that the only time when legislative history matters, at least in any dispositive way, is when a statute would seem clear if not for legislative history.

08/13/2017

Herman Belz on the Evolution of Originalism
Michael Ramsey

At Liberty Law Blog, Herman Belz (Professor Emeritus of History, University of Maryland): Originalism Historically Conceived.  A wide-ranging post, with principal focus on Jonathan Gianepp's criticisms of originalism:

Another critic, the Stanford historian Jonathan Gienapp, invites historians and legists to reflect on original intent jurisprudence in a recent series of essays.  Gienapp instinctively perceives originalists as conservatives driven by presentist aims who need a “methodological corollary” to pursue those aims. Referring to the pioneering 1980s scholarship of Berger and Bork as “Originalism 1.0,” Gienapp says its goal was to recover what the Constitution’s Framers intended. When challenged on conceptual grounds, conservative judges and legal theorists later introduced the concept of “original public meaning,” referred to by Gienapp as “Originalism 2.0.”

Under the latter approach, constitutional text and discourse are understood in the manner employed by a competent speaker of the language at the time of the Constitution’s framing and ratification. Gienapp dismisses Originalism 2.0 as “studying word usage,” which leads to semantic nitpicking. It omits the historical context of American constitutionalism, according to Gienapp. Because it “claims to have escaped history,” the new originalism poses an urgent threat to the practice of history. Debates over it have “gravitated . . . towards the philosophical foundations of historical meaning.”

Originalists, he says, in insisting that “the document’s meaning could not evolve with the times” but must remain “fixed and constant over time,” have “stopped trying to beat historians at their own game—by re-writing the rules by which that game is played.” Instead of fighting a losing empirical battle, originalists “stake out different conceptual foundations altogether.” In D.C. v. Heller (2008), for example, the new originalists sought to engage historians on a “non-historical turf,” dismissing historians’ contextual reading of the Second Amendment as a misunderstanding of the concept of original meaning.

Gienapp exhorts historians to fulfill their professional obligation and rise to the originalist challenge. The dispute is not over Founding-era facts, he says, but over “what methods are needed to identify the original historical meaning of a historical text.” The new originalists, conceiving of historical knowledge in terms of cognition, profess “a certain kind of historical meaning” that they believe makes them “immune from historical critique.” In other words, Gienapp avers, public meaning originalism defines history as “a form of knowing that rather than a form of knowing how.

(Thanks to Mark Pulliam for the pointer).

08/12/2017

Ilan Wurman on Madison’s Case for Originalism
Michael Ramsey

Ilan Wurman at Newsmax: Madison Rebutted Jefferson with “Debt Against the Living” Proposition. From the introduction:

It has become fashionable to argue that we are no longer bound to the Constitution — at least not to the Constitution of our Founders.

“Why do we care about the Framers of the Constitution?” asks law professor David Strauss of the University of Chicago. The Constitution “was the product of the Framers’ times and the Framers’ sensibilities. What possible reason can we have for allowing its provisions to rule us today?” Paul Brest, a former dean of Stanford Law School, similarly wrote in a famous article, “We did not adopt the Constitution, and those who did are dead and gone.” And Georgetown law professor Louis Seidman wrote in The New York Times only a few years ago that we should “give up on the Constitution.”

Many of these academics rely on a famous letter from Thomas Jefferson to James Madison, in which Jefferson wrote that “the earth belongs to the living,” that “the dead have neither powers nor rights over it.” This letter from Jefferson is well known: it is often quoted for the proposition that we should not be bound by the “dead hand of the past,” that a constitution that is not a “living, breathing document” is not a legitimate constitution worthy of our obedience today.

Few, however, have heard of James Madison’s reply to Jefferson, in which Madison made a powerful case for constitutional obedience: “If the earth be the gift of nature to the living,” Madison wrote, “their title can extend to the earth in its natural state only. The improvements made by the dead form a debt against the living, who take the benefit of them. This debt cannot be otherwise discharged,” Madison continued, “than by a proportionate obedience to the will of the Authors of the improvements” — by a kind of originalism.

Ilan Wurman is the author of the new book A Debt against the Living: An Introduction to Originalism (noted here).

08/11/2017

Ilya Somin on Presidential War Power and North Korea
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Can Trump unleash “fire and fury” on North Korea without congressional authorization? Short answer, no:

The Constitution  very clearly reserves to Congress the power to start a war. The Founders did not want any single man to be able to take the nation to war on his own. Even Alexander Hamilton — the strongest supporter of sweeping presidential power among the framers  — understood that only “the Legislature have a right to make war” and that “it is . . . the duty of the Executive to preserve Peace till war is declared.”

...

It is possible that the president has the power to initiate small-scale military actions that fall short of qualify as “war,” even without congressional authorization. In my view, this could justify the very limited air strike  Trump launched against Syria back in April, though some scholars disagree. Regardless, a conflict with North Korea is unlikely to be limited in this way. Secretary of Defense James Mattis – who, unlike Trump, tends to know what he’s talking about – has said that a conflict with North Korea “would lead to the end of its regime and destruction of its people” and that it “would be probably the worst kind of fighting in most people’s lifetimes.” That sure sounds like a war to me! I don’t think you have to be a lawyer or a constitutional law maven to recognize that a conflict that costs many thousands of lives and may well involve the use of nuclear weapons qualifies as “war” by any reasonable standard.

Agreed (See The Constitution's Text in Foreign Affairs, chs. 8-9).  But, a qualifier:

Trump would not need congressional authorization if North Korea strikes first, or if it is about to do so. In that event, Trump would not be initiating war, but merely  waging one already begun by the enemy.

I agree here also.  (As did Hamilton).

And a further qualifier:

With notable exceptions, such as the Korean War, presidents have generally sought advance congressional authorization for large-scale military actions comparable to the one now under discussion. That is what happened in the cases of the Vietnam War, the post-9/11 invasion of Afghanistan, and both Iraq wars. Unilateral presidential military actions typically involved situations where the enemy attacked or declared war first (as in the 1989 Panama intervention) or cases where the expected military action was brief and on a very small scale, involving little or no combat (as in the case of President Clinton’s 1994 intervention in Haiti, among many other examples).

Unfortunately, this norm has frayed in recent years, in considerable part because President Obama initiated two large-scale wars without congressional authorization – his 2011 intervention in Libya and the still-ongoing war against ISIS. In January, I warned that these  precedents were a dangerous “loaded gun” that  Obama left to Trump, and urged Congress to reassert its war powers.  Whether it will actually do so remains unclear.

I do not fully agree here, for the reasons set out in this article.  The 2011 Libya intervention was not a "large scale war" at least in terms of U.S. involvement (although perhaps it was in its consequences for Libya); more importantly, the Obama administration expressly defended it on the grounds that it was small scale.  The Obama administration defended the ISIS conflict principally as authorized by Congress' 2001 authorization to use military force (AUMF) against al-Qaeda and its affiliates.  (The Trump administration has continued this defense of its authority to use force against ISIS).  True, this argument may seem a stretch of the AUMF, but it's not precedent for presidential use of force where there is no remotely plausible claim to AUMF authorization.  Thus I do not believe there is any precedent from the Obama administration that would be useful to support a unilateral presidential attack on North Korea.

08/10/2017

Josh Blackman: David Souter the Originalist
Michael Ramsey

At Josh Blackman’s Blog: David Souter the Originalist. From the introduction:

Unlike Justice Stevens, who has filled his retirement from acting status by writing books and railing against Justice Scalia, Justice Souter has continued to perform yeoman’s work through sitting by designation on the First Circuit. At this point, Souter has probably heard more cases on the First Circuit as an Associate Justice than he did during his brief five-month stint there from May to October of 1991. Yesterday, he authored the panel opinion in a fascinating case I have been following for some time.

The case involves Congregation Jeshuat Israel, which occupies the Touro Synagogue in Newport, Rhode Island (the same Synagogue that George Washington wrote to two centuries ago) and Congregation Shearith Israel in New York. Part of the dispute concerns the ownership of the rimonim, “a pair of finials with attached bells made of silver and gold and designed to surmount the shafts around which the Torah scrolls were rolled.” Specifically, the court had to determine whether the word “paraphernalia” in a contract written in 1903 embraced the remonim. To do so, Justice Souter employed an analysis that could only be described as originalist: how was the word understood at the time the document was drafted.

Originalism (though not by that name) is standard practice in legal interpretation outside of constitutional law (contracts, wills, statutes, treaties).  I would not say it's the exclusive practice, but it is a leading practice.  The burden for nonoriginalists in constitutional law is to explain why originalism is not appropriate in constitutional law even though it is standard practice elsewhere.  That is not an impossible burden, but it is the right one.