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14 posts from December 2017


The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information
Mike Rappaport

In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location).  In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration.  But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.

In particular, Congress has provided customers of cell phone companies with protection as to their location information.  In 47 U.S.C. 222(a), Congress states that “every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.”  Other provisions make clear that location information is part of the information to be protected.  47 U.S.C. 222(c), (g).

Some have argued that this provision creates a property right or interest in the customer.  While this information has been disclosed to a third party (the cell phone company), it is argued that the customer still retains a property interest in its protection.  Thus, if one has a property oriented understanding of the Fourth Amendment, as Justice Scalia seemed to have, then this property right might indicate the customer had a right to be protected under the Fourth Amendment.

This is an interesting argument, but it may or may not be right under the original meaning.  As I explained in my prior post, the Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Therefore the question is whether this information is a “paper” or “effect.”  Perhaps Justice Scalia had a property oriented theory of the Fourth Amendment, but the text of the Amendment does not speak of property, but of more specific things, such as “paper” or “effect.”

Under a straightforward, but perhaps narrow definition of paper and effect, the information would not be a paper or effect.  A paper would refer to the actual physical piece of paper, not the information contained on it.  An effect would refer to personal property or movables that a person can carry on their person.  In neither case would the “information” be a paper or effect.  Perhaps a paper or a memory stick with that information on it would be a paper or effect, but not the information itself.

Yet one might argue that these terms should be read more broadly.  In particular, perhaps an effect should be understood to include not merely personal property movables but also property in information.  Perhaps, but my sense – albeit based on limited study – is that this information would not have been considered an effect in 1791.

But maybe a different interpretive rule would justify a broader reading.  If property in information of the relevant kind did not exist in 1791 – there were patents, but no privacy interests seem implicated by them, and trade secrets did not exist until the 19th century – then one might say that the relevant legal environment did not exist at the time of the Fourth Amendment.  In those circumstances, sometimes it makes sense to answer the question based on an analogy.  For example, one might argue that freedom of press might extend to radio or tv news, even though they did not exist at the time of the First Amendment, on the analogy that they are similar to the printing press in the relevant respects.  Similarly, one might argue that if property in information of the relevant kind existed in 1791, the Fourth Amendment would have protected it.  Maybe.

In a future post, I hope to show how Congress, the states, or private parties might protect against disclosure in a way more likely to satisfy the Fourth Amendment’s original meaning.


The Original Meaning and the Carpenter Case: “Their Papers”
Mike Rappaport

(This is the first of several posts about the Carpenter case.

The Carpenter v. United States case, which was argued before the Supreme Court last week, may turn out to be one of the most important Fourth Amendment cases.  One of the issues raised by the case involves the Fourth Amendment’s third party doctrine.  Does the Fourth Amendment apply to protect records about a person that are held by a third party such as a vendor?  Under the Supreme Court’s third party doctrine, securing this information does not require a warrant, because the information is held by a third party.  As the Court stated in US v. Miller, a person “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”

In Carpenter, the FBI obtained, without a search warrant, 127 days' worth of historical cellphone records about a suspected armed robber named Timothy Carpenter. “Thanks to those records, the government identified the cell towers that handled Carpenter's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed.”  The question is whether the Fourth Amendment applies to this type of search. 

(There is a statute that protects the information of cell phone customers.  In this post, I will largely ignore the that statute.  I will address it in my next post.)  

As usual, I am interested in the original meaning of the Fourth Amendment.  While I strongly sympathize with the individuals in these type of cases, it is not clear that the original meaning operates to protect them.  The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The records in this case are likely papers or effects (personal property), depending on the form they are in.  But they are unlikely to be the papers or effects covered by the Fourth Amendment.  The Amendment speaks of the right of the people to be secure in their “papers and effects.”  This suggest that the papers or effects must be owned or possessed by the person’s who seeks to protect them.

I do not really see an alternative interpretation.  One might argue that a person should be able to protect information about himself.  And while that might be desirable from a policy perspective in some circumstances, such as Carpenter, it does not really capture the language here which talks of “their papers” – that is, their own papers.

Does that mean that the original meaning allows the government free access to information about people held by vendors and other third parties?  Not necessarily, which I hope to show in a future post.

David Singh Grewal & Jedediah S. Purdy: The Original Theory of Originalism
Michael Ramsey

David Singh Grewal (Yale Law School) and Jedediah S. Purdy (Duke University School of Law) have posted The Original Theory of Originalism (Yale Law Journal, Vol. 127, No. 1, 2018) on SSRN (reviewing Richard Tucker, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge University Press 2016)).  Here is the abstract:

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No interpretive strategy succeeds in overcoming the dilemma of a constitution that at once embodies and prohibits democratic sovereignty.


A New Collection of Hamilton Papers
Michael Ramsey

Recently published, from editors Carson Holloway (University of Nebraska, Omaha) and Bradford P. Wilson (Princeton University): The Political Writings of Alexander Hamilton (2 vols., Cambridge University Press, 2017).

Here is the book description from the publisher:

Few of America's founders influenced its political system more than Alexander Hamilton. He played a leading role in writing and ratifying the Constitution, was de facto leader of one of America's first two political parties, and was influential in interpreting the scope of the national government's constitutional powers. This comprehensive collection provides Hamilton's most enduringly important political writings, covering his entire public career, from 1775 to his death in 1804. Readers are introduced to Hamilton - in his own words - as defender of the American cause, as an early proponent of a stronger national government, as a founder and protector of the American Constitution, as the nation's first secretary of the treasury, as President George Washington's trusted foreign policy advisor, and as a leader of the Federalist Party. Presented in a convenient two volume set, this book provides a unique insight into the political ideas of one of America's leading founders; a must-have reference source.

  • A comprehensive two-volume collection of Alexander Hamilton's most enduringly important political writings
  • Provides a detailed insight into the political thought of one of America's leading founders
  • Makes a significant contribution to the study of Alexander Hamilton, examining both his political thought and his statesmanship

Thanks to Donald Drakeman for the pointer.



Andre LeDuc: Originalism, its Critics, and the Promise of Our American Constitution
Michael Ramsey

Andre LeDuc (Independent) has posted Striding Out of Babel: Originalism, its Critics, and the Promise of Our American Constitution (William & Mary Bill of Rights, Vol. 26, No. 1, 2017) on SSRN.  Here is the abstract:

This Article pursues a therapeutic approach to end the debate over constitutional originalism. For almost fifty years that debate has wrestled with the question whether constitutional interpretations and decisions should look to the original intentions, expectations, and understandings with respect to the constitutional text, and if not, what. Building on a series of prior articles exploring the jurisprudential foundations of the debate, this Article characterizes the debate over originalism as pathological. The Article begins by describing what a constitutional therapy is.

The debate about originalism has been and remains sterile and unproductive, and the lack of progress argues powerfully for the conclusion that a successful resolution of the debate is not likely to be achieved by any of the protagonists. Instead, the debate should be abandoned.

At a conceptual level, there are a variety of sources for the pathology of the debate, but a series of tacit ontological and other jurisprudential assumptions play a central role. The Article explains why neither side in the debate over constitutional originalism can hope to prevail. Any hope to revive or reconstruct the debate seems at once implausible and unlikely to deliver any significant doctrinal or methodological payoff to our American constitutional law. If we articulate the tacit premises of the debate, we can recognize why the debate over originalism reflects more confusion than substantive disagreements. As we do so, we begin to see the way forward beyond the debate. Making the source of the debate’s disagreements appear confused rather than important also provides ample motivation to move on. This Article concludes by arguing that such a postdebate constitutional discourse and practice is indeed possible, as well as desirable.


Mark Movesesian on the Constitutional Right to Go Topless
Michael Ramsey

At Liberty Law Blog, Mark Movesisan (St. John's): Tradition and Going Topless.  It begins:

Last month, a three-member panel of the U.S. Court of Appeals for the Seventh Circuit handed down an important decision in Tagami v. City of Chicago, the “GoTopless” case, a constitutional challenge to a Chicago public nudity ordinance that prohibits women, but not men, from appearing topless in public. The court upheld the ordinance by a vote of 2 to 1. The debate between Judge Diane Sykes, who wrote the majority opinion, and Judge Ilana Rovner, who wrote the dissent, offers fascinating insight into the role of tradition in constitutional law.

And a key substantive point:

First, Judge Sykes’s opinion suggests that, even after cases like ObergefellLawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the  Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.


William Michael Treanor: The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary
Michael Ramsey

William Michael Treanor (Georgetown University Law Center) has posted The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary (Cambridge Companion to The Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming)) on SSRN.  Here is the abstract:

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.


The President and Obstruction of Justice (Again)

In the New York Times, Saikrishna Prakash and John Yoo: Don’t Prosecute Trump. Impeach Him.

As to prosecution, they argue:

The Constitution imposes on the president the duty to “take care that the laws be faithfully executed,” which vests the authority to oversee all federal law enforcement. As Alexander Hamilton observed in Federalist 70, “good government” requires “energy in the executive,” and a vigorous president is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.” Ever since the framing, presidents have enjoyed the right to drop prosecutions as a waste of resources. Indeed, this is the very theory that President Barack Obama raised when he unilaterally reduced the enforcement of the immigration laws under the Dreamers and Deferred Action for Parents of Americans programs.

Because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House. He even has the power to pardon its targets, including himself. Mr. Trump can decide tomorrow that pursuing Mr. Flynn and others for lying to the F.B.I. agents is a waste of time and money. Though he claimed that he fired Mr. Comey for not doing “a good job,” the president can fire any cabinet and high-ranking Justice Department official for any reason or no reason.

And as to impeachment:

If Mr. Trump has truly impeded a valid investigation, Congress should turn to impeachment, which allows for the removal of a president for “high crimes and misdemeanors.” Impeachment does not require the president to commit a crime, but instead, as Hamilton explained in Federalist 65, encompasses significant misdeeds, offenses that proceed from “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Such offenses, he said, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

The House and Senate can make their own judgments — political as well as legal — about whether the Trump team’s involvement with the Russians or Mr. Trump’s comments to Mr. Comey fit this constitutional standard. Congress can begin this course of action by forming a special committee to investigate the Russia controversy and the Trump-Comey-Flynn affair, which could also find any predicate facts for a case of impeachment. If Congress believes that these events do not merit obstruction of justice or illegal conspiracy, it should go on the record with its judgment, too — a result Mr. Trump would welcome.

I think this is all correct as a matter of the Constitution's original meaning.  On the first point, it's important to emphasize that a President most certainly could be guilty the crime of obstructing justice -- for example, for threatening witnesses or destroying evidence.  Professors Prakash and Yoo (and others making this argument, including President Trump's counsel) aren't arguing otherwise.  The claim instead is that the President can't be guilty of the crime of obstructing justice when exercising his constitutional powers to direct investigations and prosecutions.  That seems right -- the President is in charge of all of the executive branch, and ultimately he makes the decisions about prosecutions as part of his executive authority to enforce the law (granted, I would say, by Article II, Section 1 of the Constitution).  The executive power over prosecution traditionally included the power not to prosecute for a range of reasons -- to avoid wasting resources, among others, but also for reasons of fairness, or national security, and many others.  Neither the FBI nor the special prosecutor exist outside the executive branch; they are subject to presidential oversight and direction as a constitutional matter (irrespective of what a statute might purport to say, but in any event the relevant statutes don't appear to clearly say otherwise).  

On the second point, it's important to emphasize that (as the authors say) impeachment does not require a criminal offense, even though at first glance the Constitution's text ("high Crimes and Misdemeanors") may appear to say so.  Misdemeanor here means "misconduct in office" not "minor criminal offenses."  As a result, even though a President would not be guilty of a crime for wrongfully discontinuing a prosecution (that is, doing so for a bad reason), he would be subject to impeachment if Congress felt the misconduct ("Misdemeanor") was sufficiently grave to warrant it.  This process provides the check on a corrupt President that some commentators claim would be lost without the possibility of criminal prosecution.  But it should also be emphasized that the impeachment process itself is discretionary, in that Congress could decide that, even if a "Misdemeanor" occurred, the harm of pursuing it would outweigh the benefit.  Nothing in the Constitution requires Congress to proceed with an impeachment.

(On impeachment, see this earlier post; on the two issues together, see the article by Noah Feldman linked in this post, reaching roughly the same conclusion that I do).

Josh Blackman has related thoughts here: Obstruction of Justice and the Presidency: Part I.  I'm not sure what to make of his second-to-last paragraph, but if his position is that the President cannot be impeached for improper use of the prosecutorial discretion power, I strongly disagree.  I'll wait to see what he says in "Part II".


The Fourteenth Amendment and Masterpiece Cakeshop
Chris Green

David Upham and I, following up on our amicus brief in the case, have posted an essay at Public Discourse: The Fourteenth Amendment and Masterpiece Cakeshop: Equal Citizenship, our Inclusive Republic, and Anglo-American Common Law. Our summary: "The government cannot impose creedal and exclusionary limits on occupational freedom by compelling particular citizens to provide goods and services contrary to their beliefs, unless those citizens have such a monopoly market power as to exclude other citizens from the market."

Several of the justices at the oral argument today sounded themes relevant to our position, particularly the distinction between those with and without local-natural-monopoly market power.  Asking questions of Solicitor General Noel Francisco, who supported the baker, Justice Sotomayor at pp. 28-30 expressed concern about markets with local natural monopolies, such as professionals serving military bases. Our proposed resolution of the case would sidestep such markets.  Justice Kennedy followed up on this sort of concern at pp. 44-45, worrying that more and more professionals might take positions like Masterpiece. If and when they did, the change in market power would pose a different police-power question.

Several justices also pressed the lack of tailoring of Colorado's regulation to those with market power: Justice Breyer at pp. 57-58 noted that Colorado had not made any effort to accommodate those whose beliefs would not imperil the tangible goals of the law, returning at pp. 63-64 with a hypothetical about a referral-down-the-street accommodation, which Colorado rejected (flatly at first, then more tentatively). Justice Breyer also referred at p. 78 to "an important public policy, the policy of opening the doors to everyone, including minorities, in the public commercial area." Limiting the holding to low-market-power dissenting creedal minorities would leave that policy unimpaired, and indeed, the entire point of our Fourteenth Amendment argument is to preserve such a policy: "opening the doors to everyone, including [creedal] minorities [like Masterpiece], in the public commercial area."

The one place at which Justice Kennedy seemed most clearly to tip his hand about his inclinations in the case, at page 62, used similar reasoning. Because there were "other good bake shops that were available," Kennedy said, "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

It is true that no one on the Court (or at the podium) used the phrases "Fourteenth Amendment" or "original meaning," and commentators like Eric Segall tweaked Justice Gorsuch for the failure. Time was tight, however, and in looking for a doctrinal hook on which to hang a readily-available-substitutes holding, the Justices may yet turn Fourteenth-Amendment-ward. One can always hope!

Update (12/6): Reacting to the portion of the argument where Francisco answered Justice Sotomayor, Andy Koppelman comments on the readily-available-alternatives rule (part of Koppelman's argument that any and all resolutions in favor of the plaintiff would "lead to chaos"):

But notice how impossible this makes the burden for the discrimination claimant: now, in addition to proving the discrimination, the complaint would have to survey the neighborhood to prove that no substitute was available, which would mean contacting every other service provider to ask what they would have done. (And hope for truthful answers: Those who discriminate often don’t want to advertise that fact.)

This does not seem right to me at all. Those seeking wedding cake are, after all, seeking wedding cake, and it should be relatively easy to find out whether they found one and with what difficulty. The burden of showing the unavailability of a product is no different from the ordinary burden that a contract or tort plaintiff has in showing damages. Consider, for instance, one of the cases we discuss here at pp. 32-33: the 1844 plaintiffs in Hawthorn v. Hammond, who sued because they were "obliged to go on to Bridgenorth" after a hotel refused them entry. Assessing the "trouble, inconvenience, and expense" of a change in plans requires exactly the sort of assessment Koppelman calls impossible. It is not only possible, but near-ubiquitous in the law.

William Dodge: Customary International Law, Change, and the Constitution
Michael Ramsey

William S. Dodge (University of California, Davis - School of Law) has posted Customary International Law, Change, and the Constitution (106 Georgetown Law Journal, forthcoming) on SSRN.  Here is the abstract: 

Customary international law has changed in many ways since ratification of the U.S. Constitution. This Article considers the implications of those changes for customary international law’s role under the Constitution. In particular, it challenges the claims made in a new book, The Law of Nations and the United States Constitution, that U.S. courts must respect the “traditional rights” of foreign nations under the law of nations and may not apply the modern customary international law of human rights. The Article argues that the book is not consistent in its approach to changes in customary international law, embracing some while rejecting others. The Article also shows that a full account of how customary international law has changed undercuts each of the book’s two constitutional arguments.

This is another article in the outstanding Georgetown Law Journal symposium on "The Law of Nations and the United States Constitution" (see my post from yesterday on my contribution to the symposium).  I don't dispute the principal conclusion of Professor Dodge's article, that the U.S. courts may apply the modern law of nations (in at least some instances) consistent with the Constitution's original meaning.  But Professor Dodge and I have a deeper dispute over original meaning in this area, namely on the question whether customary international law can be the basis for federal court jurisdiction in human rights (and other) cases.  I will further explain the relevance of that dispute in a future post.