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32 posts from November 2017


Eric Segall on "Scalia Speaks"
Michael Ramsey

At Dorf on Law, Eric Segall (Georgia State) reviews Scalia Speaks (the collection of Scalia speeches edited by Christopher Scalia and Ed Whelan): Scalia Speaks Well: But Not About Originalism.  From the introduction: 

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics. ...

As usual, Professor Segall is a thoughtful and thought-provoking critic.  But a central complaint here is that Justice Scalia did not always follow originalism in his judicial decisions.  I'm doubtful that this charge undermines Scalia's theoretical defenses of originalism, for three reasons.

First, Scalia believed -- to an unspecified extent -- in precedent.  Many areas of constitutional law -- including one Professor Segall emphasizes, free speech -- are so heavily influenced by precedent that it may be impossible (or Scalia may have believed it impossible) in many respects to develop a workable practice of originalism.  A better criticism (sketched in my essay on Scalia's originalism in practice) is that Scalia had -- to put it generously -- an underdeveloped theory of precedent.  Thus it was often not clear when and to what extent he thought precedent overrode originalist analysis, and indeed it is sometimes hard to tell in his opinions whether he was engaged in doctrinal analysis or originalist analysis.

Second, I think Professor Segall and others overstate the extent Scalia failed to use originalist analysis.  Common examples, employed by Professor Segall later in his essay, include standing, anti-commandeering and state sovereign immunity.  As I discuss in my essay, Scalia's decisions in these areas do rely on originalist analysis (debatable originalist analysis, to be sure).  His decisions do not, however, rely on textualist analysis, a fact that has caused some critics wrongly to label them non-originalist.  (I nonetheless agree with Professor Segall that there are some areas -- he highlights affirmative action -- where it does not appear that Scalia relied on either originalist analysis or precedent).

Third, and most importantly, I don't see why Scalia's unjustified failures to follow originalism (if there are such failures) undermine the theory of originalism.  Originalism does not claim that even the most committed originalist will be able to follow originalism all of the time.  People are, after all, human, and the temptation to reach the intuitively "right" result must be very strong in some cases.  Originalism only claims (as Scalia says in the book) that it provides more constraints than theories of adjudication that explicitly or implicitly invite reliance on one's intuitive sense of the "right" result. That Scalia sometimes gave in to temptation (if he did) does not disprove this claim.


David Rubenstein: Taking Care of the Rule of Law
Michael Ramsey

David S. Rubenstein (Washburn University - School of Law) has posted Taking Care of the Rule of Law (George Washington Law Review, Vol. 86, No. 1, 2018, forthcoming) on SSRN.  Here is the abstract: 

The multi-generational project of squaring executive governance with the rule of law is coming to a head. Hardly a week passes without commentators summonsing the rule of law ideal to pass judgment on the legitimacy or desirability of some executive action. But the more we talk about the rule of law, the further it seems to slip away. Rather than look to the rule of law for guidance, this Article shines critical light on what the rule of law ideal cannot tell us. Moreover, this Article explains why even well-intended efforts to square the rule of law with trends in governance can be counterproductive. To anchor these points, the Article presents comparative case studies of President Obama’s and President Trump’s signature immigration policies and the rule of law debates surrounding them. The Obama-Trump juxtaposition offers a portrait of some disquieting trends, not only for presidential administration, but also in how commentators think and talk about the rule of law. This Article intervenes with some prescriptions moving forward—including away from rule of law talk, and towards doctrines and institutional arrangements that could more effectively check presidential power.


Andre LeDuc: Competing Accounts of Interpretation and Practical Reasoning in the Debate Over Originalism
Michael Ramsey

Andre LeDuc (Independent) has posted Competing Accounts of Interpretation and Practical Reasoning in the Debate Over Originalism (University of New Hampshire Law Review, Vol. 16, No. 1, 2017) on SSRN. Here is the abstract: 

This article explores two assumptions about constitutional law and the form of practical reasoning inherent in constitutional argument and decision that have shaped the debate over originalism. The first assumption—adopted by originalists—is that constitutional reasoning is a formalistic process. Originalism’s critics tacitly describe a very different and less formalistic model. The second assumption—shared by originalists and most of its critics alike—is that the central task of constitutional decision is to interpret the Constitution. Both of these assumptions are wrong. Constitutional argument is not, and cannot be, reduced to the formal model of reasoning tacitly employed in originalism.

The critics of originalism correctly point out that constitutional argument is more complex than originalism’s formal account allows. But those critics share with originalists the mistaken premise that our constitutional practice begins with interpretation. That agreement masks the substantial differences in their respective accounts of interpretation, however.

This Article demonstrates how these two assumptions have contributed to the fruitlessness of the debate. For example, if we reject the premise of the logical priority of interpretation the celebrated problem of generality dissolves. By articulating the jurisprudential foundations of the debate, this Article allows us to recognize the sterility of the debate over originalism and the likelihood that it cannot be successfully resolved by the protagonists on either side of the debate. While discarding the formalism of contemporary originalism does not compromise core originalist claims, the importance of that formalism to some of originalism’s stronger claims of privilege makes such an approach less attractive to originalism. Originalism’s critics, while right about constitutional reasoning, fail to discredit other important originalist claims. Thus, the protagonists in the debate may be likely to continue even after better understanding interpretation and the practice of constitutional argument. That would be a mistake. A better account of the place of interpretation and the nature of practical reasoning in constitutional reasoning also opens up the alternative of moving beyond the fruitless, stalemated debate about originalism.

At Legal Theory Blog, Larry Solum has comments, especially on the article's discussion of Professor Solum's views.


Mila Sohoni: A Bureaucracy -- If You Can Keep It
Michael Ramsey

Recently published, in the Harvard Law Review Forum, Mila Sohoni (University of San Diego Law School): A Bureaucracy -- If You Can Keep It (131 Harv. L. Rev. F. 14 (2017)) (invited response to Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017).  From the introduction (footnotes omitted):

In her Foreword, Professor Gillian Metzger portrays the administrative state as laid under siege by an array of judicial, political, and academic attackers. Expertly curating and deftly dissecting a century’s circus of intellectual debate and political conflict, the Foreword demonstrates the myriad ways in which today’s struggles over administrative government reprise the turmoil of the New Deal period.

Indeed, the parallels between the present moment and the 1930s may extend further than she draws them. The history of that era suggests how the “rhetorical antipathy” towards the administrative state that Metzger carefully documents and critiques may yet cross over from the realm of rhetoric to the realm of reality. That, of course, only makes it that much more urgent to answer the central question addressed by the Foreword — the question of how to respond to the
“anti-administrativist” complaint that the federal bureaucracy is extralegal, unconstitutional, and tyrannical.

Metzger’s response is the provocative rejoinder that the administrative state is not merely constitutionally permissible and not merely constitutionally beneficial, but also constitutionally obligatory. This argument diverges in critical respects from long-held conceptions of the administrative state’s constitutional status and role. It is bold in its premises and startling in its possible implications. It aims to break the siege — to quell, at once and en masse, the renascent attacks upon administrative government. But her argument for a constitutional obligation of administrative government pivots upon the threshold assumption that the Supreme Court will continue to regard broad delegations as constitutionally permissible — a point about which I do not feel as sanguine. And even if delegation doctrine persists in its present form, the full contours of the contingent constitutional obligation posited by Metzger seem to me to be both potentially enormous and — at the same time — hard to trace with precision. At the brass-tacks level, it is difficult to map out what exactly honoring the constitutional obligation of administrative government would require in the many and varied contexts in which it might be pitted against countervailing targeted arguments that regulatory power ought to be restrained. Politicians, scholars, lawyers, and judges gave us the modern administrative state; whether we can keep it remains to be seen. 

Also responding to the Foreword in the Forum is this essay from Aaron L. Neilson (BYU): Confessions of an “Anti-Administrativist”.

Unsurprisingly, two principal targets of Professor Metzger's Foreword are originalists Clarence Thoams and Philip Hamburger; the Forum does not, as yet, have an originalist response.


Will Baude on Supreme Court Jurisdiction over Military Appeals [Updated]
Michael Ramsey

At Volokh Conspricay, Will Baude: Supreme Court jurisdiction over the Court of Appeals for the Armed Forces.  He asks: "Does the Supreme Court have jurisdiction to directly review decisions of the Court of Appeals for the Armed Forces at all?"  Maybe not:

In a recent amicus brief in another case, Virginia law professor Aditya Bamzai argued not. The Constitution says that the Supreme Court’s jurisdiction in cases arising under federal law is appellate, not original. And according to no less an authority than Marbury v. Madison, Congress cannot move any cases from the court’s appellate jurisdiction to the original jurisdiction. This means that the Supreme Court can directly review the CAAF only if the case is an appeal, which in Bamzai’s view (and mine) means that the Supreme Court has jurisdiction only if the CAAF is truly a court, in the constitutional sense.

Bamzai argued that the CAAF is not a court, in the constitutional sense, but is a part of the executive branch, staffed by executive-branch appointees who are not given the tenure and protections of Article III. In a blog post responding to Bamzai last year, [Professor Steve] Vladeck argued that CAAF was in fact a court.

I am inclined to agree with Bamzai that the CAAF is not a court, for reasons that I will elaborate on eventually in a paper on so-called legislative courts. But in a nutshell, I think that a court, in the constitutional sense, must be a body that exercises the judicial power of some government and that the CAAF does not exercise any government’s judicial power. (For instance, federal courts exercise “the judicial power of the United States.” State courts exercise “the judicial power” of their respective states. Etc. CAAF falls into none of these categories.)

UPDATE:  Professor Bamzai emails: "Unbeknownst to Will at the time he wrote the post, I have filed a brief in support of neither party in the case currently pending before the Supreme Court."  The brief is posted on SSRN (here).  Here is the abstract: 

This amicus brief in support of neither party [in Dalmazzi et al. v. United States] explains why the Supreme Court lacks jurisdiction to review cases from the Court of Appeals for the Armed Forces ("CAAF"). Though called a "court" by statute, the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the "judicial Power" of the United States or of any sovereign. Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that this Court cannot exercise "appellate Jurisdiction" under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a "court" by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The brief canvasses a number of precedents in this area arising from cases involving military commissions, the Court of Federal Claims, petitions for writs of habeas corpus, the Court of Customs and Patent Appeals, and administrative agencies.


Gregory Maggs: A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning (49 Conn. L. Rev. 1069 (2017)) on SSRN. Here is the abstract: 

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.

A important new installment in Professor Maggs' useful "Critical Guide" series.


A Comment from Fred Gedicks on Originalism
Michael Ramsey

Regarding this post, Fred Gedicks (BYU) sends this comment:

Thanks for noting my essay on Larry Solum's summation of originalism in your recent Originalism Blog post. I'm writing because you've misunderstood my ontological criticism for an epistemological one.
I gather that "object" in your point (1) is implicitly modified by "discoverable," which you eventually make explicit: "Originalism is happy to concede that some constitutional phrases may be . . . "inkblots" with no discoverable meaning . . . . "
Point (2) seems to proceed along the same lines, as does your conclusion that, more often than not, the meaning of past texts is recoverable as an object untouched by present concerns: "Originalism does not contend that meaning can always be recovered in its 'pristine' form; rather it contends that meaning can last least sometimes be recovered" (which I take to mean, "sometimes be recovered in its pristine objective form" and, again, often enough for originalism to function as a method of interpretation).
In other words, you take me to claim that originalists presuppose meaning necessarily exists in the past as a discoverable object, and you respond that originalists are happy to concede that epstemic obstacles often prevent the recovery of that object, though not often enough to undermine originalism's functionality as an interpretive method.
This is not my claim at all. I am not making (the admittedly tired) argument that originalism is epistemologically impossible (or impossible often enough that it is not worth pursuing as an interpretive methodology). I argue that originalism cannot ever be recovered in its pristine form, untouched by the present, because no original meaning exists at all, discoverable or not, that is not touched by the concerns of the interpreter and her life and times. The meaning of the past is partially constituted by the present, and the present partially constituted by the past. 
Constitutional interpretation is an example of this hermeneutic circle. There is no meaning of the Constitution independently existing in the past until we look for it; the effort creates a meaning, but one unavoidably marked by the present. The present, in turn, is marked by the past, by the tradition in which the Constitution is embedded and handed down to the present, which colors our view of the Constitution and unavoidable shapes our attempts to understand it. 
The essay illustrates this (apparently too obscurely) with both the sexism of IWL and the contemporary imperative that any interpretive theory account for Brown. In what sense could one argue that the sexism of IWL or its protofeminist moments have always existed as part of the meaning of the movie from the day it premiered? How could any reviewer in 1946 have "discovered" this sexism a generation before sexism and feminism were ideas that had names? In what sense did "separate but equal is inherently unequal" always exist as the meaning of the EPC, discoverable by any person in 1868 familiar with the context in which it was drafted and ratified, when hardly anyone in 1868 really believed in the social equality of the races which school desegretation (along with interracial marriage) would have challenged?
Perhaps I would have done better to use the concept of the "classical" to illustrate the ontological point. Despite the freedom with which we bestow "instant "classic, nothing is classic the moment it is created. Identifying a text as classic is a judgment of the present--or, at least, a time period considerably after the text is written. And yet, the consensus that a text is classic necessarily affects how we understand it in the present. A classical text means something different once it becomes classic, canonical, paradigmatic.
Brown, again, is an excellent example of this. The "original" meaning of Brown is unavoidably colored by its eventual widespread acceptance which, of course, did not come until many decades had passed from 1954. And any attempt to understand Brown is unavoidably affected by its paradigmatic status.
Professor Gedicks' essay, on which I commented briefly in my post, is It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery.

Eric Segall on Judicial Engagement and New Originalism
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted Judicial Engagement, New Originalism, and the Fortieth Anniversary of 'Government by the Judiciary' (86 Fordham L. Rev. Online (2018, forthcoming)) on SSRN.  Here is the abstract:

Forty years ago, Professor Raoul Berger published his originalism manifesto "Government by the Judiciary." Berger argued for deferential judicial review based on the clear text and original intent or original meaning of the Constitution. Now, almost half-a-century later, a new brand of Originalism has emerged among scholars and litigators advocating that judges use robust judicial review when evaluating economic legislation. This heightened form of judicial review may be sensible or not as a matter of public policy, but contrary to the claims of those urging judges to adopt it, judicial engagement as defined by New Originalists cannot be justified by the Constitution's text or original meaning. Such a strong form of judicial review can only be justified by a living Constitution approach to constitutional interpretation.


India's Supreme Court Discovers Right to Privacy
Mike Rappaport

Recently, I have been studying comparative constitutional law.  It is a fascinating area, providing real world examples for the issues that constitutional theory explores.  What is more, the practices of other constitutional judiciaries are often unexpected.  I often find myself saying, “do they really do that?”

One example is the recent constitutional case, decided by the Supreme Court of India, finding that the Indian Constitution provides a nontextual right to privacy.  The Supreme Court of India is one of the most aggressive high courts in the world.  Perhaps its most aggressive action has been a series of cases where the court held that the basic structure of the Indian Constitution could not be amended, even though the constitution did not textually provide for that and in fact seemed to suggest otherwise.

The recent case finding a privacy right, Justice K S Puttaswamy V. Union Of India, is remarkable in many ways.  The opinion is over 500 pages long!  And it engages in a discussion of various issues one would not expect.

To begin with the decision addresses originalism.  It has a section entitled “Constituent Assembly and Privacy: Limits of Originalist Interpretation,” that purports to address the originalist objections.

In another section, the court explored philosophical and legal theory aspects of privacy.  Thus, it discusses the views in separate subsections of Judith Jarvis Thompson, Richard Posner, Robert Bork, and Catherine MacKinnon.  It is interesting that while the U.S. Supreme Court largely ignores foreign court decisions and foreign legal scholars, the Indian Supreme Court devotes so much space to these matters.

A Supreme Court decision in the United States would not do this.  One does not see long discussions of why originalism does not apply in the U.S.  And one certainly does not see significant discussions of the views of legal theorists.

The decision also appeared to overrule two prior decisions that refused to recognize a privacy right.  (Here, of course, the Indian Supreme Court does not represent a radical break with the practice of the U.S. Supreme Court.)

As is characteristic of the decisions of the aggressive high courts throughout the world, the announced right is not absolute or even determinate.  The privacy right “will have some reasonable restrictions in matters of national security and mutual interest of the citizens and the state.”  While this limitation might seem to lessen the effect of the court’s decision, it nonetheless allows the court more power to determine the content of the right, at its discretion.

Decisions like these are sobering.  It is almost enough to make one appreciate Justices Kennedy or Sotomayor.

Stephen Sachs: Originalism Without Text
Michael Ramsey

In the current issue of the Yale Law Journal, Stephen E. Sachs (Duke) has the essay Originalism Without Text (127 Yale L.J. 156 (2017)). Here is the abstract: 

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

And from the first substantive section:

 Consider the following hypothetical:

The society of Freedonia has no writing and no written law. Its legal rules are passed down through oral traditions, which provide for councils of elders to do limited judicial work. Freedonia goes through a period of legal tumult, in which influential council decisions are said to have misstated the traditional rules and to have exceeded the councils’ authority. A Great Council is held, in which it’s agreed—in substance, and without resolving on any canonical form of words—that all innovations to date are to be accepted as necessary evils, but that no new innovations are to be allowed, and that the ancestral traditions are otherwise to be preserved inviolate. Generations pass, and again some councils begin to overstep these limits, arguing that the traditions must be altered to accommodate modern circumstances. Other Freedonian elders criticize their fellows for failing to apply the law as approved at the Great Council.

Are these critics originalists?

(Note:  SRSRN version previously noted here).