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19 posts from October 2017

10/18/2017

A Big Discovery by Gerard Magliocca
Michael Ramsey

At Concurring opinions, Gerard Magliocca reports:  Not King Tut’s Tomb, But . . .:

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington’s notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice’s Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw “Corfield v. Coryell” as a heading followed by pages of notes about the case. ...

Plus, here, "a full transcript of the money quote in Justice Washington’s notes on Corfield."

10/17/2017

Andrew Hessick: Consenting to Adjudication Outside the Article III Courts
Michael Ramsey

F. Andrew Hessick (University of North Carolina School of Law) has posted Consenting to Adjudication Outside the Article III Courts (Vanderbilt Law Review, forthcoming) on SSRN.  Here is the abstract:

Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.

10/16/2017

Puerto Rico and the Racist, Non-Originalist Insular Cases
Michael Ramsey

At Slate, Doug Mack: The Strange Case of Puerto Rico:  How a series of racist Supreme Court decisions cemented the island’s second-class status.  It begins:

The devastation wrought by Hurricanes Irma and Maria has reawakened many Americans to the existence of Puerto Rico as well as the archaic laws and domineering bureaucracies that continue to burden the island. News outlets have scrambled to explain the Jones Act, the 1920 law that restricts shipping between U.S. ports, the PROMESA board that Congress set up last year to oversee Puerto Rico’s finances, and the fact that territory residents can’t vote for president.

But beneath these data points lurks something deeper and more problematic, yet rarely discussed: the Insular Cases, a series of Supreme Court decisions from the early 20th century. When we talk about the differences between states and territories—and when we ask why the United States even has territories in 2017—we’re really talking about the legacy of the Insular Cases. The recent controversies are, in fact, the latest iteration of a conversation about American empire that goes back more than a century.

The earliest Insular Cases were decided by the same Supreme Court that allowed “separate but equal” segregation in Plessy v. Ferguson in 1896. That case was overturned, but the Insular Cases, which are built on the same racist worldview, still stand today.

And from further on:

Downes v. Bidwell ..., which centered on a question of whether shipments from Puerto Rico to New York were interstate or international, established a new hierarchy of territories: They were now either “incorporated” with the United States or “unincorporated,” with only the former having the full protections of the Constitution. The court reasoned that Puerto Rico and the other new territories were “inhabited by alien races,” so governing them “according to Anglo-Saxon principles may for a time be impossible.” These islands, then, were “foreign in a domestic sense.”

Three years later the court considered the Americanness of individual territory residents in Gonzales v. Williams, which concerned a woman who moved from Puerto Rico to New York and was detained as an “alien immigrant.” The court ruled that she was American, sort of: She was a “noncitizen national,” a distinction new to the United States and inspired by the designations European empires used for their colonial subjects. Puerto Ricans finally gained citizenship in 1917 through legislation passed by Congress. Residents of most of the other current territories later gained it the same way, although Guamanians had to wait until 1950. The “noncitizen national” designation still holds in American Samoa, where residents are, by birth, not citizens of any country. ...

Balzac v. Porto Rico in 1922 added yet more complexity, finding that the Constitution didn’t apply in full to the territories—only “fundamental” rights were automatically in effect. ...

(Note: Doug Mack is the author The Not-Quite States of America: Dispatches from the Territories and Other Far-Flung Outposts of the USA, which sounds like a very interesting read).

As the post implies but doesn't say outright, the Insular Cases were an outrageous bit of non-originalism.  The distinction between "incorporated" and "unincorporated" territories -- and the corresponding idea that only "fundamental" rights (whatever they may be) apply in the unincorporated territories -- has no basis in the Constitution's text or founding-era commentary.  The opinions in the Insular Cases rest principally on pragmatism: given what the U.S. wanted to do with the territories and (even worse) who the people of the territories were, it didn't make sense to apply the same rules that the Constitution applied to (as the Court saw it) "real" Americans.  And the conclusion that people born in the unincorporated territories were not U.S. citizens at birth is flatly contrary to the text of Section 1 of the Fourteenth Amendment, which says that "all" persons born "in the United States ... are citizens of the United States" -- no exception for territories where that would be inconvenient because the population is a different race or culture.  True, the framers and ratifiers of the Fourteenth Amendment (and the original Constitution) presumably did not contemplate the U.S. acquiring colonial territories.  But the key is not what they expected, but what they wrote and  enacted.  And what they wrote and enacted contained no exception for non-white territories, until the Supreme Court in the Insular Cases made one up.

I emphasize this because it's pretty easy to come up with consensus awful non-originalist opinions (Dred Scott, Korematsu) but most of them have been long since abandoned.  The Insular Cases, as the post points out, still have important modern ramifications, and they too should be recognized as consensus awful non-originalist opinions.

10/15/2017

Curtis A. Bradley: Exiting Congressional-Executive Agreements
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) has posted Exiting Congressional-Executive Agreements on SSRN.  Here is the abstract:

Some commentators have argued that, even if the President has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the President lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This paper challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this paper contends, there is no compelling reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice, and, thus, for example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents do not have the authority to unilaterally terminate statutes, congressional-executive agreements are not mere statutes; they are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to the ones contained in Article II treaties that presidents have long claimed the authority to invoke unilaterally, and Congress has never indicated that it views presidents as having less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally.

I think this is basically right as a practical matter, assuming the agreement's implementing legislation does not specifically bar presidential withdrawal.  But it is an interesting conundrum for originalists.  Assume congressional-executive agreements are not authorized by the Constitution's original meaning (my view; see The Constitution's Text in Foreign Affairs, Chapter 10).  In that case, there is literally no original meaning as to the President's ability to withdraw.  How should an originalist approach handle this situation?

One possibility is that, since the agreement is unconstitutional (not authorized by the original meaning), the President is not only allowed but obligated to withdraw (or to seek approval through the treatymaking clause).  This is essentially the argument I made with regard to the Paris Agreement on climate change (an executive agreement, not a congressional-executive agreement).

But maybe congressional-executive agreements are different because (unlike long-term substantive executive agreements) they have been accepted by practice, and so are authorized by political branch precedent (see here on the history).  If originalists regard them as constitutional on this ground, how to handle the termination issue?  History/practice does not provide guidance, because there is no material history of terminating congressional-executive agreements.  So another possibility for originalists is simply to say the original meaning has nothing to say on the matter: Non-originalist political branch precedent makes the agreement constitutional, and neither original meaning nor political branch precedent says anything about termination, so the question must be answered by appeal to some other source of law.

A third possibility, effectively Professor Bradley's solution, is that the matter can be resolved by analogy to treaties.  If a congressional-executive agreement is equivalent to a treaty for constitutional purposes (due to political branch precedent), then its termination provisions should be the same as a treaty.  So an originalist should use the original meaning to find the way treaties could be terminated, and apply that to congressional-executive agreements as well.  (In my view, that means the President can terminate them in accordance with their terms -- six months' notice in the case of NAFTA -- but not otherwise.

Now here's an even trickier question: suppose Congress by statute specifically prohibits the President from withdrawing from a particular congressional-executive agreement.  Is that constitutional?  I assume it would not be constitutional to do this in the case of a treaty (assuming the President has constitutional power to withdraw from treaties).  Professor Bradley's approach would thus seem to say that the hypothetical statute is unconstitutional, by analogy to treaty law.  But I'm less sure that's right.  Surely Congress could direct by statute that the United States will accord Canada and Mexico all the benefits of NAFTA, irrespective of whether the United States is formally a party to NAFTA, so long as Canada and Mexico accord the United States all the benefits of NAFTA.  Is a prohibition of withdrawal different enough to make this the dividing line, especially as the whole area isn't one contemplated by the original meaning?  This does not seem an easy question to answer.

10/14/2017

Or Bassok: Courts with Power
Michael Ramsey

Or Bassok (University of Nottingham - Faculty of Law and Social Sciences) has posted The Arendtian Dread: Courts with Power (Ratio Juris, forthcoming) on SSRN. Here is the abstract: 

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that the popular will could be harnessed to support those responsible for limiting it. More concretely, she was fearful of the American Supreme Court relying on popular support. This is the meaning behind her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but as unfit to power. I argue that Arendt’s characterization of authority as requiring “neither coercion nor persuasion” means that the Court’s source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court’s authority. In Arendt’s mind, such an understanding means that the Court has become the seat of power. The corruption of the Court’s authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow. Arendt would thus be extremely concerned by the continuing erosion in understanding of the American Supreme Court as an expert, and from the rise of the understanding that its source of legitimacy lies in public confidence.

10/13/2017

Carissa Byrne Hessick: Corpus Linguistics and the Criminal Law
Michael Ramsey

Carissa Byrne Hessick (University of North Carolina School of Law) has posted Corpus Linguistics and the Criminal Law (forthcoming, Brigham Young University Law Review, Vol. 2018, No. 4, 2018) on SSRN.  Here is the abstract: 

This brief response to Ordinary Meaning and Corpus Linguistics, an essay by Stefan Gries and Brian Slocum, explains why corpus linguistics represents a radical break from current statutory interpretation practice, and it argues that corpus linguistics ought not be adopted as an interpretive methodology, especially for interpreting criminal laws. Corpus linguistics has superficial appeal because it promises to increase predictability and to decrease the role of judges’ personal preferences in statutory interpretation. But there are reasons to doubt that corpus linguistics can achieve these goals. More importantly, corpus linguistics sacrifices other, more important values, including notice and accountability.

(An earlier post alluded to this paper but did not provide the abstract).

For other recent papers and commentary on corpus linguistics, see here (James Cleith Phillips & Sara White); here and here (Neal Goldfarb), here (Justice Thomas Lee and Stephen Mouritsen); and here  (Lawrence Solan & Tammy Gales), plus additional blog posts by Professor Hessick here and here.  This has suddenly become a very big topic of interest.

10/12/2017

New Book: "Supreme Law of the Land?", edited by Gregory Fox et al.
Michael Ramsey

Recently published: Supreme Law of the Land?: Debating the Contemporary Effects of Treaties within the United States Legal System (Gregory H. Fox, Paul R. Dubinsky and Brad R. Roth, eds., Cambridge University Press 2017).  Here is the book description from Amazon:

How do treaties function in the American legal system? This book provides a comprehensive analysis of the current status of treaties in American law. Its ten chapters examine major areas of change in treaty law in recent decades, including treaty interpretation, federalism, self-execution, treaty implementing legislation, treaty form, and judicial barriers to treaty enforcement. The book also includes two in-depth case studies: one on the effectiveness of treaties in the regulation of armed conflict and one on the role of a resurgent federalism in complicating US efforts to ratify and implement treaties in private international law. Each chapter asks whether the treaty rules of the 1987 Third Restatement of Foreign Relations Law accurately reflect today's judicial, executive, and legislative practices. This volume is original and provocative, a useful desk companion for judges and practicing lawyers, and an engaging read for the general reader and graduate students.

This is a great overview of the development of the U.S. constitutional law of treaties from the founding to the modern era, presented as a series of essays by leading foreign relations scholars (and one by me).  There is much of originalist interest, both in assessing the Constitution's original meaning and early practice and in outlining the way we got from there to here.  I'm honored to be part of it.

My contribution is "The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice" (SSRN version available here).  As the title suggests, it traces the rise of alternatives to treaties (the "rivals"), such as executive agreements, congressional-executive agreements, and nonbinding agreements, and relates them to the Constitution's original design.  Here is the abstract:

This Chapter describes the evolution of the constitutional power to make international agreements in U.S. law. Reading only the Constitution’s text, one might suppose the constitutional regime for making international agreements in the United States to be quite straightforward. Article II, Section 2 states that the President has power to make treaties with the advice and consent of the Senate, provided two-thirds of the Senators present concur. Article VI provides that all treaties made under the authority of the United States are the supreme law of the land. No provision of the Constitution’s text directly mentions any power by the U.S. government to enter into any sort of international agreement apart from the “treaties” made according to Article II, Section 2 and having the force of Article VI.

For over 100 years, the regime that appears on the face of the text roughly corresponded with reality. The next 100 years, however, transformed U.S. practice regarding international agreement-making to the extent that the Constitution’s text and analyses based upon it wholly fail to capture what actually exists in modern practice. Conventionally, this transformation is described as the rise of two alternate forms of agreements: (1) the sole executive agreement, done by the unilateral authority of the president in areas of the president’s particular constitutional authority (whatever those may be); and (2) the congressional-executive agreement, done with the approval of majorities of both Houses of Congress, and which is said to be fully interchangeable with the Article II, Section 2 treaty as a constitutional procedure. 

While accurate in some respects, even this conventional description fails to capture the complexity of modern agreement-making in the United States, and recent trends have contributed to the difficulty of providing a coherent legal and practical account. First, non-treaty agreements have diverse and sometimes unclear sources of authority. In some cases, the president negotiates the agreement and submits it for approval by majorities of both Houses of Congress. For most agreements, the president makes them without any after-the-fact approval from Congress or the Senate. Within this latter category, the president may claim various sources of authority to enter into non-treaty agreements: express statutory authorization from Congress in advance; implied authority from Congress; express or implied authority from a prior treaty; or independent constitutional authority. As a practical matter, it may not always be easy – or even possible – to distinguish among some of these categories. Increasingly, the president enters into international agreements on the basis of informal and often uncertain sources of authority, with uncertain legal effects. 

Nonetheless, treaties remain well represented among important agreements, at least in some areas (although making that assessment seems challenging), despite their numerical decline. Likewise, agreements approved after-the-fact by Congress, although relatively small in number, include some of the United States’ most important recent commitments in the area of international trade. Agreements made by the president alone range from trivial diplomatic arrangements to ones of great consequence. There is no satisfactory explanation for why some agreements are made in one way and some in others. This Chapter attempts to sort out the history and modern trends in U.S. agreement making, with a view toward providing a foundation for a constitutional reassessment.

All the chapters are outstanding but for those interested in developing an originalist understanding of treaty law, I particularly recommend "Self-Execution" by Ingrid Wuerth (Vanderbilt); "Treaties, Federalism, and the Contested Legacy of Missouri v. Holland" by Margaret McGuinness (St. John's) and  "Judicial Barriers to Enforcement of Treaties" by Roger Alford (Notre Dame).

Note: This post has been edited to reflect that Gregory Fox is the first-named editor of the book.

10/11/2017

Jesner v. Arab Bank and the Original Meaning of the Alien Tort Statute (Updated)
Michael Ramsey

Today the Supreme Court hears argument in Jesner v. Arab Bank, in which plaintiffs seek to use the so-called Alien Tort Statute (ATS) as the basis to impose liability on Arab Bank, a Jordanian entity, for allegedly giving financial support to Hamas' terrorist operations in Israel and the Palestinian territories.  The ATS provides federal court jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."  The question is whether this statute applies to the claim against Arab Bank; I joined an amicus brief, authored by Professor Samuel Estreicher (NYU) on behalf of professors of foreign relations law, saying it does not.

Judge Henry Friendly famously wrote that the ATS is "a kind of legal Lohengrin; although it has been with us since the first Judiciary Act [passed in 1789] ... no one seems to know whence it came."  His artful aphorism has been cited in many opinions and articles, but it is flatly wrong.  We know exactly where the ATS came from.

In the Articles of Confederation period, American leaders feared, with some justification, that state authorities -- especially state courts -- would not honor obligations the national government owed to foreigners under U.S. treaties and international law (then called the law of nations).  These failures, they further feared, would lead to diplomatic problems and perhaps even to war with powerful European nations.  These concerns became a central motivation for the constitutional convention of 1787.  As James Madison observed, under the Articles the national government could not "prevent those violations of the law of nations & of Treaties which is not prevented must involve us in the calamities of foreign wars."

The Convention attempted to solve this problem in part by creating federal courts with jurisdiction to hear claims involving foreigners, though the final version of the Constitution left it to Congress to decide whether and how to create federal courts below the Supreme Court.  In the 1789 Judiciary Act, Congress did create lower courts, and gave them jurisdiction over claims by aliens, subject to a minimum amount in controversy of $500 (a lot of money in those days).  And Congress also provided that federal district courts would have jurisdiction, even for lesser amounts in controversy, for claims made by aliens for torts in violation of treaties of the United States or of the law of nations.  (See here for more details).  This latter provision is what we now call the ATS.

There should not be the slightest doubt that the ATS responded to the Confederation-era concerns over foreigners not receiving the rights owed to them by the United States under international law.  As leading federalists such as Madison, John Jay and Alexander Hamilton all explained, a key point of creating the federal judiciary was to protect the foreign policy of the United States from missteps by the state courts.  The central concern was foreign nations becoming angry because the United States could not meet its obligations under international law.  The ATS (and the Judiciary Act as a whole) was one of several ways leaders of the national government tried to ensure that it did.

It therefore makes no sense to use the ATS to extend federal court jurisdiction to claims that do not implicate the international law obligations of the United States.  Not only would that not redress the problems the ATS was intended to redress, it would create additional foreign policy challenges for the national government by allowing federal courts to intervene in international controversies that do not directly implicate the United States.

In Jesner, for example, the claim is that a Jordanian entity facilitated terrorist activities by a Palestinian entity in Israel and the Palestinian territories.  None of the parties is a U.S. citizen or entity, and none of the terrorist activity took place in the United States.  The only connection to the United States is that Arab Bank has a branch in New York and some of the payments may have been processed through (though not made at) the New York branch.

International law does not obligate the United States to provide a remedy in this case.  Failure to entertain this case in U.S. courts will not raise any of the concerns that motivated the drafters of the ATS.  This is simply not the sort of claim the ATS was intended to address, because it does not involve any international obligation of the United States.  Federal court intervention in the case will lead to more international difficulties for the U.S., not fewer (Jordan, for example, has filed a brief objecting to U.S. courts' involvement in the case).

The lower courts decided the case on the ground that international law categorically does not impose obligations on corporations (as opposed to individuals and nations) and therefore Arab Bank cannot be liable for a tort in violation of the law of nations (as the ATS requires).  That is the question now before the Supreme Court.  It is a question with troubling implications however it is resolved.

A much simpler solution is at hand,  The ATS is a tool for the protection of U.S. foreign policy, and in particular a tool to ensure the United States honors its obligations under international law.  It should not be sued as a tool to allow U.S. courts to intervene in disputes among foreigners which do not materially implicate the United States.  That is the essence of what our amicus brief argues.

I'll add one further point from an textualist/originalist perspective.  The ATS's text is not limited to the sort of concerns sketched above, so one might ask, on what grounds might it be so limited?  The short answer to this is that, as an original matter, Article III of the Constitution, as relevant to Jesner, only gives federal courts jurisdiction over "Controversies ... between a state, or the Citizens thereof, and foreign states, Citizens or subjects."  It does not give jurisdiction over disputes entirely among non-U.S. citizens.  The early Supreme Court confirmed in two cases, Mossman v. Higginson in 1800 and Hodgson v. Bowerbank in 1809, that federal courts lacked jurisdiction over suits between aliens (unless the suits arose under the U.S. Constitution, laws or treaties, or came within one of the other categories of jurisdiction in Article III, such as admiralty).

Jesner does not involve any substantive federal law, treaty or the Constitution.  And it does not involve any U.S. parties.  So there should be no Article III federal jurisdiction, and the broad statutory grant of jurisdiction in the ATS should be read to conform to Article III, even if it does not say so in so many words, just as Mossman and Hodgson held for a different part of the Judiciary Act.  That is how the statute's original meaning kept focused on the concerns motivating the ATS: absent a U.S. party, there typically would not be concerns about U.S. obligations under international law. 

At least, that is the originalists' answer.  The problem is that the modern Court has held that federal courts can sometimes create "federal common law" that gives federal courts jurisdiction even as to alien-versus-alien claims, and it has further held, or at least implied, that claims under the ATS fall within this category.  So Jesner may not be resolvable simply on jurisdictional grounds.  Instead, the question becomes whether federal courts ought to create a federal common law claim in the circumstances of a case like Jesner.

Put that way, the question becomes discretionary, not constitutional.  But the original concerns motivating the ATS should provide an answer.  As originally conceived, the ATS would ordinarily not have provided a remedy for alien-versus-alien claims, and that is consistent with its purpose of providing a remedy for U.S. violations of the law of nations.  In considering whether to recognize a federal common law claim in Jesner, the Court should be guided by this basic purpose of the ATS -- even though the background law has changed somewhat -- and direct federal courts not to involve themselves in a dispute with no material connection to the United States.

That's the essence of the amicus brief.  I'm pleased to join a distinguished group of foreign relations scholars on the brief.

UPDATE:  SCOTUSblog's report on the argument is here.  I like this part: 

The court’s newest justice, Neil Gorsuch, was even more unsympathetic to the plaintiffs. He repeatedly pressed [plaintiff's counsel, Stanford Law professor] Fisher to explain whether the plaintiffs’ interpretation of the ATS was consistent with what Congress intended when it enacted the law in 1789, and he seemed unconvinced by Fisher’s answers. When Fisher at one point cited a seminal Supreme Court opinion from 1900 to bolster his argument, Gorsuch pushed back, asking Fisher how we could know whether that was the understanding of Congress in 1789.

10/10/2017

Randy Barnett & Evan Bernick: A Unified Theory of Originalism
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) and Evan D. Bernick (Georgetown University Law Center) have posted The Letter and the Spirit: A Unified Theory of Originalism on SSRN.  Here is the abstract:

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism.

Our theory draws upon a familiar common-law concept long used in contract law to handle the problem of opportunistic abuse of contractual discretion: the duty of good-faith performance. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens — a relationship characterized by discretionary powers in the hands of officials and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given them in “this Constitution” in good faith. This means that judges engaging in constitutional construction or implementation must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text.)

Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty of good-faith originalist construction. Good-faith construction consists in (a) accurately identifying the spirit — or original function” — of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade either its original letter or spirit (or both) in pursuit of their own extralegal preferences.

Professor Barnett has more at Volokh Conspiracy: Presenting a “unified” theory of Originalism.  It begins:

Critics of originalism like to claim that the existence of  several competing variations of originalist theory undermines the case for originalism itself. This has always been an exaggeration. All originalists–regardless of their flavor–share the basic view that the meaning of the text of the Constitution was fixed at the time it was adopted (the “Fixation Thesis“) and that this meaning should constrain constitutional actors today (the “Constraint Principle“). But it is undeniable that a schism exists among originalist theorists over the “interpretation-construction distinction.” According to this distinction, there is a fundamental difference between constitutional interpretation–the activity of identifying the communicative content of the text–and constitutional construction–the activity of giving legal effect to, or implementing, that meaning.

Since my book, Restoring the Lost Constitution, was first published in 2004, I have insisted that, because constitutional construction occurs when original meaning “runs out,” the term “originalist” is properly limited to the activity of interpretation and, correlatively, the activity  of construction is unavoidably “nonoriginalist.” For some originalists and nonoriginalists alike, while original meaning interpretation may close the door for unwarranted judicial discretion, allowing for the legitimacy of nonoriginalist constitutional construction opened the window. While nonoriginalists cheer this as showing that originalism differs little in practice from living constitutionalism, this has led some originalists to deny or disparage the distinction itself.

Although I still believe that the activity of interpretation is distinct from that of construction or implementation, in the course of writing a new paper with Evan Bernick, I have come to reconsider the claim that only constitutional interpretation can be “originalist.” I now believe that my prior insistence that only constitutional interpretation can be “originalist” was mistaken. I have concluded that constitutional construction can be originalist as well.

Professors Barnett and Bernick presented an earlier version of the paper at the University of San Diego's originalism works-in-progress conference in February.  It's an impressive contribution.

(Thanks to Mark Pulliam for the pointer).

10/09/2017

Lawrence Solan & Tammy Gales: Corpus Linguistics as a Tool in Legal Interpretation
Michael Ramsey

Lawrence M. Solan (Brooklyn Law School) and Tammy A. Gales (Hofstra University) have posted Corpus Linguistics as a Tool in Legal Interpretation (Brigham Young University Law Review, 2018 forthcoming) on SSRN.  Here is the abstract

In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas Lee and Stephen Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when the legal standard for construction is the ordinary meaning of the document’s terms. We argue here that four issues should be addressed before determining that corpus analysis is likely to be maximally convincing. First, the legal issue before the court must be about the distribution of linguistic facts. Second, the court must decide what makes an interpretation “ordinary.” Third, if one wishes to search a corpus to glean the ordinary meaning of a term, one must decide in advance what to search. Fourth, there are different reasons as to why a particular meaning might present a weak showing in a corpus search and these need to be understood. Each of these issues is described and discussed.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week).