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33 posts from January 2018


Thomas H. Lee: Natural Born Citizen
Michael Ramsey

Thomas H. Lee (Fordham University School of Law) has posted Natural Born Citizen (American University Law Review, Vol. 67, No. 327, 2017) on SSRN.  Here is the abstract:

Article II of the U.S. Constitution states that a person must be a "natural born Citizen " to be eligible to be President. This Article surveys relevant evidence and explains what the phrase likely meant when the Constitution was adopted between 1787 and 1789. The phrase at the time encompassed three categories of persons: (1) persons born within the United States; (2) persons born outside of the United States to U.S. citizens in government service; and (3) persons born outside of the United States to U.S. citizen fathers who had resided in the United States but went abroad temporarily for a private purpose, like merchants who traveled on business. This definition corresponded with contemporaneous English law understandings of "natural born subjects," the natural law birthright principles of jus soli (the law of soil) and jus sanguinis (the law of blood or parentage), and the law of nations-the key jurisprudential sources consulted by Americans on matters of citizenship in the late eighteenth-century world order. This novel interpretation of the original meaning of "natural born Citizen" departs from the conventional wisdom that the phrase refers to a person who is a citizen under the U.S. naturalization statutes in effect at the person's birth, a view recently espoused by two former Solicitors General of the United States, Paul Clement and Neal Katyal. My interpretation also differs from the leading alternative view of the original meaning of the phrase, namely that it refers to persons born in the United States or outside of the United States to U.S. officials only. A brief conclusion explores the implications of the recovered original meaning of "natural born Citizen "for presidential eligibility today.

This is an outstanding paper.   Professor Lee and I have had many conversations on this topic, and while our views of the relevant events are fairly consistent our conclusions are somewart different.  My counterpoint is here: The Original Meaning of 'Natural Born'.


Damon Root on Jury Nullification (Updated)
Michael Ramsey

At Reason, Damon Root: The Originalist Case for Jury Nullification.  Responding to this post by Mark Pulliam:

There's good evidence that many 18th and 19th century Americans understood juries to possess the lawful power to reject guilty verdicts when the jurors believed the underlying law was unconstitutional.

Consider the writings of John Taylor of Caroline. A Revolutionary War veteran and widely read political and constitutional theorist, Taylor described juries as the "lower judicial bench." Under this view, just as judges (the "upper bench") possess the power to declare laws unconstitutional, so too do juries (the "lower judicial bench") possess their own version of a veto power. In other words, just as both the Senate and the House get to vote on legislation, both the upper and lower judicial benches get a say-so on the constitutionality of legislation. Juries, Taylor wrote, "judge really and substantially in every case."

Plus James Wilson, Thomas Jefferson and Alexis de Tocqueville...

RELATED:  A non-originalist argument from Ilya Somin: Does Jury Nullification Undermine the Rule of Law?  From the core of the argument:

Relative to a system where laws really are "uniformly applied, without excessive discretion," jury nullification can indeed undermine the rule of law. This sort of consideration is one of the reasons why I used to oppose jury nullification myself. But, sadly, we do not in fact have such a system. In the real world, law enforcement is already characterized by wide-ranging discretion, because we have vastly more laws than we can possibly enforce - and vastly more violators thereof than the authorities can possibly go after. The data indicate that a large majority of adult Americans have violated federal criminal law at some point in their lives - to say nothing of the many state and local laws. Some 52 percent admit to using marijuana in violation of both federal law and that of many states; the true percentage of users is likely higher, as some may not be willing to admit it to pollsters.

With so many lawbreakers to choose from, police prosecutors, and politicians cannot avoid exercising wide-ranging discretion about which ones to target and which ones to let go. For this reason, jury nullification is not introducing an element of discretion in an otherwise rule-bound system. Rather, it serves as a counterweight to the enormous discretionary power already wielded by government officials.

A good contrast between originalist and non-originalist argumentation.

(Thanks to Mark Pulliam for the pointer).

UPDATE: Mark Pulliam adds:

Some originalist scholar ought to marshal the historical evidence on this. The same anecdotes get repeated on the other side.

Agreed.  As far as I know there is no definitive full length law review article on the subject, although there are a lot of anecdotes and blog posts.  Any takers?  It would be a great student note.

FURTHER UPDATE:  At Liberty Law Blog, Devin Watkins: Juries Judge the Law As Well.  With some pre-drafting evidence:

One founding era example of jury nullification was the trial of William Penn, who founded Pennsylvania and it was named after him. The statute at the time prohibited religious assemblies of more than five people, other than the Church of England, and in 1670 Penn was charged with violating this statute. The jury found that he had done exactly what the statute prescribed but refused to recognize such an assembly as unlawful. The judge then held that the jury “shall not be dismissed until we have a verdict that the court will accept” and locked the jury up without food, water, or heat. But the jury still refused to find him guilty. Penn said to the jury, “You are Englishmen, mind your Privilege, give not away your Right,” to which juror Edward Bushel replied, “Nor shall we ever do.” The judge tried to fine the jury for their verdict, but the Court of Common Pleas upheld the right of the jury and dismissed the fine.

A second example was John Peter Zenger who in 1735 was charged with libel for insulting the colonial governor William Cosby. His lawyers basically admitted he had published the work that had insulted the colonial governor, but argued that truth was an absolute defense to liable. This wasn’t the commonly understood law of the time, but it so moved the American people that it is now incorporated into what we consider to be a core requirement of the freedom of speech in the First Amendment. It took the jury ten minutes to find him not guilty. The jury saw applying libel in this case as violating the natural rights of Zenger to freedom of speech.

Plus post-ratification evidence from John Jay and the Alien and Sedition Acts.  


James Rogers on the Ethical Mandate for Originalism
Michael Ramsey

At Liberty Law Blog, James R. Rogers: The Ethical Mandate for Originalism.  From the core of the argument:

I would argue that there is an ethical mandate for originalism in that adherents of the practice simply aim to read honestly. Originalism follows from common sense in that it proposes that we read legal texts as we read other everyday texts.

[Keith] Whittington appeals in passing to the ethical mandate for originalism at different points in the article [Originalism: A Critical Introduction]. One sees the justification in his adjectives. He writes of originalism as “the faithful interpretation and application of constitutional rules,” its goal being “to faithfully reproduce what the constitutional text requires,” and to “faithfully adhering to constitutional requirements,” etc. Similarly, he writes of originalism having “recently emphasized the value of fidelity to the constitutional text as its driving principle,” having “a primary commitment to constitutional fidelity,” that “the primary virtue now claimed by originalism is one of constitutional fidelity,” etc.

“Faithful” interpretation of a text, however, is not limited to constitutional or statutory interpretation. It’s the goal we have normally when seeking to understand any text; it is the generic goal we have when we read. We seek honestly to understand what the author(s) wrote. This is true whether what we read is a legal text, a math textbook, a Shakespeare sonnet, or a letter from Aunt Jenny. That this is the goal does not entail the project is always easy, that each text has only one clear or determinate meaning, or that people can’t honestly disagree over what a text means. (“What is Aunt Jenny writing about here?”)

This justification for originalism highlights the self-refuting character of non-originalist interpretation: Non-originalist authors write expecting, or at least desiring, that their arguments be read and construed honestly. The “originalist” position, such as it is, is not that legal texts need to be approached as special or distinctive, but that legal texts be approached in pretty much the same way as we read other texts. (This does not entail that we ignore the possibility of specialized language or terms of art, as I argue below.)

I call this an “ethical” mandate for originalism because it aims the reader merely to seek an honest reading of legal texts. This title can mislead, however, if we take it to suggest a virtue unique to judges reading legal texts. That point is the opposite. “Originalism” means that we read legal texts in the same way that we read other texts. ...

(Thanks to Mark Pulliam for the pointer).


Thomas Nachbar: Form and Formalism
Michael Ramsey

Thomas B. Nachbar (University of Virginia School of Law) has posted Form and Formalism on SSRN.  Here is the abstract:

Formalism has become an insult. Defined by its critics as the mechanical (even disingenuous) application of rules, or unthinkingly equated with textualism or originalism, the various forms of formalism supposedly promise legal certainty. Having been found unable to provide that certainty, formalism been consigned by its critics to the role of foil for other, more promising, approaches. Yet most critics of formalism inaccurately conflate modern formalism, which emphasizes form, with the deterministic formalism of the Langdellian legal order. Far from the unrealistically deterministic, conceptualist understanding of law attacked by the Realists, modern formalism is best understood as a commitment to form in legal interpretation and legal thinking. Once we free formalism from the role it has been given by its detractors, its merits become more apparent. Formalism allows us to focus not just on legal outcomes, but on the form of the rules that generate those outcomes. Formalism is a recognition that law must appear in some form and that law is an act not only of social control but of social communication. By acknowledging the view of the law that formalism represents we can uncover previously unidentified meaning in law, lawmaking, and adjudication.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")


Moreno on the Original Meaning and Brown v. Board of Education: Part II
Mike Rappaport

In yesterday’s post, I discussed Paul Moreno’s claim that originalism does not support the Brown decision. I argued that it is not true that all scholars agree with that conclusion. Here are some of the reasons why a scholar might believe that the original meaning supports Brown:

1. Moreno writes: “The same Congress (the 39th) that submitted the amendment to the states provided for segregated schools in the District of Columbia.” Michael McConnell questions this claim, arguing that only the local government actually adopted the segregated system. But let’s assume Moreno is correct. So what? The Fourteenth Amendment prohibitions on discrimination did not apply to the federal government. It merely applied to the states. Thus, even if Congress adopted the segregation, one cannot conclude that the Congress believed that the Fourteenth Amendment allowed discrimination as to public schools.

If Congress allowed discrimination in the D.C. schools, then why would they then ban it as to the states? There are many reasons for this, which I discuss in this paper. But the basic point is that Congress might have wanted a categorical rule against state discrimination, because they were worried about how the states (especially those that had enacted the black codes) would behave. By contrast, they might have trusted the federal government (which had acted to protect the former slaves) more and believed that a less categorical approach could be applied to the federal government. Thus, one cannot simply infer from what the D.C. schools were allowed to do, to a conclusion about what the state public schools could do. If you doubt this explanation, the burden is on you to explain why the Fourteenth Amendment was applied to the states, but not to the federal government.

2. Moreno argues: “Even the 43rd Congress, whose Civil Rights Act of 1875 was the furthest step in ‘radical’ Reconstruction and the precursor of the Civil Rights Act of 1964, did not require desegregated schools.” But this argument is problematic as well. As McConnell discusses, a very significant majority of the Congress favored applying the prohibition on race discrimination to public schools. But due to a procedural matter, the bill had to be brought up in such a way that required two thirds of the House to vote for it. While the bill had majority support, it did not have the requisite supermajority support. So, if anything, the Civil Rights Act discussion supports the constitutionality of Brown.

3. There is other evidence that supports the constitutionality of Brown. For example, there were states that acted to eliminate school racial segregation after the Civil War and that interpreted prohibitions on discrimination to forbid school racial segregation, as McConnell discusses in his article. There were other states that act differently, but the point is that the matter was not clear.

We have learned a great deal about views of the time about segregation. For example, while it was long thought that anti-miscegenation laws were constitutional under the original meaning of the Fourteenth Amendment, perhaps because they involved social matters, David Upham has shown again that the evidence is mixed, with Republicans at the time holding that such laws were unconstitutional.

4. The content of the Privileges and Immunities Clause, which is one of the potential sources of the nondiscrimination requirement, may very well have covered public education. John Harrison argues it covers most public education. And even Jacob Howard’s speech was not clear about the matter. Howard followed Corfield v. Coryell (1823), which gave a description and list of the privileges or immunities, but explicitly stated that the list was not exhaustive. Thus, public education might have been covered, even though it was not mentioned in Corfield or Howard’s speech.

Mark Pulliam on Jury Nullification
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Jury Nullification: Good or Bad? On the historical background:

Proponents argue that [jury nullification] dates to the refusal of an English jury to convict William Penn for unlawful assembly, a charge that was a transparent pretext for restricting his freedom of religion. Proponents also cite later examples of Americans refusing to convict defendants charged with violating unjust laws such as the Alien and Sedition Act and the Fugitive Slave Act [Ed.: One could also list the neutrality prosecutions of 1793]. ...

Some proponents assert that the Founding Fathers contemplated a broad role for juries, entitling them to judge both the facts and the law in any particular case. There is an element of truth to this claim. In the early American republic, the legal system—at least in some states—reflected what legal historian John Phillip Reid calls “a laical jurisprudence” controlled by laymen, not lawyers or judges.  During the 19th century, however, virtually all jurisdictions abandoned this practice in favor of the current system of judge-led trials. Accordingly, modern trial practice sharply restricts jurors’ discretion, requiring them to swear under oath that they will follow the courts’ instructions. It is difficult, therefore, now to argue that jurors act nobly by violating that oath and defying the law.

This sounds like a good start to an originalist case for nullification, though I think originalists are divided, and anyway that's not where the essay ends up; from the conclusion:

The debate over jury nullification highlights the differences between libertarians, some of whom are “minarchists” uneasy with the constraints on individual autonomy inherent in the state, and classical liberals, who view civil society as indispensable to secure their liberty. Fundamentally, laws are necessary to preserve a free society, not—as libertarians suppose—inherently symbols of abject coercion. Freedom is not possible without the rule of law. Conceptually, jury nullification—selectively suspending the law—is “anarchy in a microcosm.” As a classical liberal, I view it as brazen lawlessness and a prescription for arbitrariness.


Moreno on the Original Meaning and Brown v. Board of Education: Part I
Mike Rappaport

On the book review section of the Liberty Law Site, Paul Moreno reviews David O'Brien’s Justice Jackson’s Unpublished Opinion on Brown v. Board of Education. While I agree with some of what Moreno says, I must take exception with his claims about the original meaning and Brown.

Moreno writes:

[As a law clerk] Rehnquist prepared a memo for Jackson, “A Random Thought on the Segregation Cases.” This memo made the argument, whose truth almost all scholars today admit, that the Framers and ratifiers of the Fourteenth Amendment did not intend to prohibit segregation in the public schools.

For example: The same Congress (the 39th) hat submitted the amendment to the states provided for segregated schools in the District of Columbia. The ratifying states maintained segregated school systems. Even the 43rd Congress, whose Civil Rights Act of 1875 was the furthest step in “radical” Reconstruction and the precursor of the Civil Rights Act of 1964, did not require desegregated schools. Even Justice John Marshall Harlan, the lone dissenter in Plessy v. Ferguson (1896), which upheld segregation in transportation, accepted not just segregating blacks from whites but the complete exclusion of blacks from the public schools.

These are outdated claims about the originalist status of Brown. While I have written about these matters before, it is necessary to correct these errors whenever they occur. It is especially important when a scholar at Hillsdale College like Moreno repeats them.

In this and my next post tomorrow, I will criticize Moreno’s claim.

Let’s begin with Moreno’s claim that “almost all scholars today admit that the Framers and ratifiers of the of the Fourteenth Amendment did not intend to prohibit segregation in the public schools.” I can’t speak for history scholars, but among originalist law professors this is simply not true. I would describe the situation as follows: There is at the least a split among originalist law professors as to whether the result in Brown was correct under the original meaning. In fact, my sense is that most “younger” originalists believe Brown was correct, whereas many “older” originalists believe it was incorrect. My own view is that the matter is not clear, but that Brown's originalist advocates have the stronger evidence.

In particular, various originalist scholars have argued that Brown is correct, including Michael McConnell and John Harrison. These arguments have persuaded many originalists. Alas, Moreno does not mention or discuss either work.

Tomorrow, I will discuss the evidence in more detail.

Before concluding, I should note that, after writing these posts, I saw that James Rogers on the Liberty Law Site also wrote about this aspect of Moreno’s review. While Rogers focuses on the original intent versus original public meaning aspect of the issue, I believe the matter is more general. Even if one looks to the original intent – understood in a plausible way (rather than what is specifically in the mind of the writers, which is not a good way to figure out original intent) – the original intent, I would argue, is not clearly against the holding in Brown.

An Aside on "Bear Arms"
Michael Ramsey

I have begun reading Peter Ackroyd's Revolution: The History of England from the Battle of the Boyne to the Battle of Waterloo (St. Martins' Press 2016) (an excellent readable book, although I think it may have a few slight missteps on American matters).  In discussing the aftermath of King William's defeat of James II and his Irish allies at the Battle of the Boyne, Ackroyd refers to the "Penal Laws" subsequently enacted to limit the liberties of Irish Catholics:

No Catholic landowner could pass on his estates intact to a single heir.  Catholics could not hold office, bear arms, or openly practice their religion.

The "bear arms" struck me because in the context of the other prohibitions, it sounds like a more substantial limitation than just prohibiting Catholics from militia service.  The passage doesn't actually quote the statute -- but since Ackroyd is British I doubted he had the phrase "bear arms" just on the tip of his tongue, so to speak, as an American might.  I couldn't find the exact statute Ackroyd described, but I found this discussion in Nicholas Johnson et al., Firearms Law and the Second Amendment: Regulation, Rights, and Policy (WoltersKluwer 2017) (p. 150):

The late seventeenth century saw the consolidation of "Laws in Ireland for the Suppression of Popery," commonly called the "Penal Laws."  The laws forbade Catholics to purchase land, hold government office, and to sit in the Irish Parliament.  Another Penal Law was the 1695 statute ... titled "An Act for the better securing the government, by disarming papists."  It forbade arms and ammunition possession by Irish Catholics.  There was an exception for "gentlemen" who swore an oath of allegiance to the king: they could have a sword, "a case of pistols" and a long gun for fowling or home defense.... Informers who told the government about Catholics with arms would get half the fine as a personal reward.

It's not clear if the latter statute used the phrase "bear arms," but in any event Johnson et al. continue: 

In 1699, Irish Catholic arms licenses were revoked, allegedly because may of them had been fraudulently obtained.  The Post Boy, Dec. 19-21, 1699, at 1, col. 1 ("all Licenses whatsoever to bear Arms, formerly Granted to any Papist in the Kingdom").

Assuming that's a direct quote from the statute, it strongly appears to use "bear arms" to mean something like "carry" or even "possess" but in any event not just "use for military purposes."  The point of the Penal Laws, as they related to arms, was to generally ban possession by Irish Catholics altogether.  Presumably the "Licenses" were exceptions to the general ban.  But then the "Licenses" would likely have been permissions to possess arms -- the issue wasn't whether Irish Catholics could use arms in military service, but whether they could have them at all.

Thus the 1699 statute appears to support the Supreme Court's reading of "bear arms" in D.C. v. Heller as meaning more than just "use in military service."  Of course it's not decisive, but it further supports the contention that there was a longstanding use in English law equating "bear arms" with "possess" or "carry" arms.  (The Heller majority made that contention but I don't think it cited the Irish act.).

I'm not a Second Amendment expert, and I expect that none of this is news to those who have studied the issue closely.  Also, there may be more (or less) to it than appears just from these brief references.  But as someone who has followed the debate casually, I had not encountered it before -- suggesting that more could be made of it.


Mark Graber on the Twenty Fifth Amendment
Michael Ramsey

At Balkinization, Mark Graber: Taking the Text of the Twenty-Fifth Amendment Seriously.  From the introduction:

Donald Trump is constitutionally unfit to be President of the United States.  The Twenty-Fifth Amendment to the Constitution of the United States requires the Vice President to assume the presidency whenever “the President is unable to discharge the powers and duties of his office.”  The Twenty-Fifth Amendment does not condition the temporary or permanent removal of the president on the president being “physically” or “medically” unable to discharge the powers and duties of his or her office.  Rather, the Vice-President is to assume the powers of the presidency when, for any reason, "the President is unable to discharge the powers and duties of his office.”  A president who is a congenital liar and a bigot, under the explicit words of the Twenty-Fifth Amendment is unable to discharge the powers and duties of his or her office.

The last paragraph of Section 4 supports claims that the Twenty-Fifth Amendment is not limited to physical or medical conditions.  That paragraph authorizes Congress to resolve, by a two-thirds vote of both Houses, whether a president is able to discharge the powers and duties of the presidency.  Members of Congress as a whole have no particular expertise on physical, medical, or psychiatric conditions.  That is for medical professions, who are given no role in the constitutional process for removing the president.  Members of Congress do have expertise on whether a president, for any reason, is capable of discharging his or her responsibilities.  Thus, given that Congress cannot determine whether a president is a sociopath, but can determine whether the president is a congenital liar, the best reading of the Twenty-Fifth Amendment is that Congress should focus on whether the president is able to discharge the powers and duties of office and not on whether the reason for that failure is some physical or medical problem.

But as I have argued previously in response to a somewhat similar Balkinization post by Mark Tushnet, this position does not take the text seriously.  In particular, it conflates "unfit" (in the first sentence of the post) with the constitutional word "unable."  As I wrote earlier:

True, "unable" can have the figurative meaning "unfit" or "not able to perform effectively" in some contexts (he's "unable" to play quarterback because he throws a lot of interceptions).  But it also (and I would say more commonly) means literally "not able" -- that is, not capable of doing the thing in question because of an absolute impediment (he's "unable" to play quarterback due to a broken leg).

And I would say that the history and structure of the amendment strongly confirm that the latter meaning is the correct one.  In particular, if the Amendment meant that a President could be removed simply because he had character flaws that prevented him from governing in the way some people (or even most people) might prefer, that would be an extraordinary change in the constitutional structure of the presidency.  (Perhaps it would be a good one, but it would not likely be one that went unnoticed for decades).  Instead, it seems clear that the Amendment should be read to cover only to narrow circumstances when the President is literally unable to act as President.  That is the reading that takes the text (and its structure and history) seriously.

Professor Graber's point about medical experts isn't to the contrary.  The reason to give the ultimate responsibility to Congress is of course to place it with a politically accountable branch.  Naturally Congress could consult with medical experts in reaching its conclusion.  But ultimately the Constitution provides for us to be governed by representatives, not by experts, including in this matter.

Professor Graber continues:

Consider a president who goes on a permanent vacation and refuses to discharge any of the powers and duties of the office.  For political purposes, no difference exists between that president and the brain-dead president.  If we limit the Twenty-Fifth Amendment to presidents with physical or medical conditions, however, we can only remove the brain-dead president.

I agree that the Amendment is not limited to physical or mental conditions.  The text has no such limit.  Suppose the President is kidnapped by terrorists, or his plane crash-lands in remote wilderness.  He is then "unable" to act as President, and the Amendment applies.  But Professor Graber's example shows that he is not taking the text seriously.  A President on permanent vacation is not "unable" to discharge his duties; he is "unwilling."  The text says "unable," not "unwilling."  Perhaps there is no difference "for political purposes" but there is a difference for textual purposes.

The remedy for the President on permanent vacation is impeachment.  Refusing to discharge the powers and duties of the office is a misdemeanor (in the original sense: misconduct in office) for which impeachment would be appropriate.  Similarly, character flaws that cause the President to take wrongful actions in office could lead to impeachment. 

The structural key to the 25th Amendment is that it supplements the impeachment remedy for situations where impeachment isn't appropriate.  A President who is "unable" to discharge the duties of office due to an external event not of his choosing (illness, injury, kidnapping, etc.) shouldn't be impeached, because he has not committed a "misdemeanor" (misconduct).  Moreover, he doesn't necessarily need to be removed from office (the remedy upon impeachment and conviction) because the inability may be temporary.  Thus the 25th Amendment sensibly provides a remedy that does not depend on misconduct and can be of limited duration.  In contrast, if the President has character flaws that lead him to misconduct in office, as Professor Graber supposes, the remedy is impeachment; there is no need to try to stretch the 25th Amendment to cover something that is already covered elsewhere.


More from Orin Kerr (and Will Baude) on Rental Car Searches
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: Three Reactions to the Oral Argument in Byrd v. United States.  (For earlier discussion of the case, see here).  From the introduction:

Unsurprisingly, the Justices were grappling with what kind of test to articulate for when a person has Fourth Amendment rights in a rental car. I hope the Court focuses on the fundamental textual and functional question of when a car is sufficiently that person's that he should have standing to challenge the search. The text of the Fourth Amendment gives people rights in "their" effects, and the century-plus-old doctrine is that Fourth Amendment rights are personal and cannot be vicariously asserted. So the question should be identifying when the car is sufficiently theirs such that they have rights in the car.

As I've noted, that seems like the right originalist question to me.  But Professor Kerr continues:

Justice Gorsuch again repeatedly emphasized the property view of the Fourth Amendment. Exactly what he had in mind wasn't clear to me, though. ...

At one point, Gorusch suggested that he was applying the [William] Baude and [James]Stern approach, even naming them as a possible standard (see the transcript page 24). This struck me as odd. Baude and Stern expressly reject the trespass-property view of the Fourth Amendment (see pages 1834-36 of their article). Instead, they favor an all-positive-law approach to the Fourth Amendment. They can correct me if I'm wrong, but it seems to me that Baude and Stern do not envision their proposal as an originalist standard that looks to the original public meaning of the text. Rather, they crafted their test from first principles, devising a a new nonoriginalist test that they see as attractive for a range of policy reasons.

Professor Baude intervenes: Yes, the Positive Law Model of the Fourth Amendment is Originalist.

Orin refers here to our article, of The Positive Law Model of the Fourth Amendment, an approach I've also blogged about recently here and here and which Orin has previously criticized on other grounds.

I won't speak for James, but I do think that our view is an originalist one, derived from what we know of the original law of the Fourth Amendment. In our article, we discuss both the original history of the Fourth Amendment and the original remedial structure, and I will let interest readers judge those arguments for themselves. But originalists should have no qualms about subscribing to it.

It is true that our article also contains other arguments in favor of our view, but at least for my part there are two good reasons for that. One is that you need not be an originalist to accept our view for the other reasons we give. The other is that even an originalist might think the historical evidence is equally consistent with more than one view, and might look to other arguments to decide which of the historically-permitted possibilities to adopt. In any event, consider this a correction of the record. We make an originalist argument, even if we also make some non-originalist arguments too.

At least originalism makes a case about searching rental cars interesting.