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27 posts from February 2018


Benjamin Flowers: An Essay Concerning Some Problems with the Constitutional-Doubt Canon
Michael Ramsey

Recently published, in the Washington & Lee Law Review Online, Benjamin M. Flowers (Jones Day): An Essay Concerning Some Problems with the Constitutional-Doubt Canon (74 Wash. & Lee L. Rev. Online 248 (2018)).  Here is the abstract:

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public understands legislative enactments. But it doesn’t. Thus, the only possible justification for the constitutional-doubt canon is stare decisis.

Agreed.  Regular readers won't be surprised that I have nothing good to say about the constitutional doubt canon.  It seems another made-up bit of judicial imperialism-disguised-as-modesty without foundation in constitutional structure or founding-era practice.  If courts think a statute might be unconstitutional (or that it probably is unconstitutional) their job is to decide whether it is or not.  As Chief Justice Marshall said in Marbury: "It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."  This in turn follows from the oath to support the Constitution (Art. VI, para. 3) and the supremacy clause (Art. VI, para. 2): on one hand, courts must apply the Constitution at the expense of unconstitutional statutes; on the other, they must apply as supreme law statutes that are not unconstitutional.  So if there is constitutional doubt, they need to resolve it, not fail to apply a statute that is close to unconstitutional.

I was disappointed that Justice Scalia and Bryan Garner endorsed the canon in Reading Law (pp. 247-251), albeit a bit weakly.  (I like that they quoted in a footnote Judge Easterbrook's view that the canon is "noxious," "wholly illegitimate" and "a misuse of judicial power").  Scalia and Garner conceded that the canon could not be defended on the basis of finding Congress' intent, and instead claimed it was a "judicial policy of ... minimizing conflicts with the legislature."  But I cannot see how courts would think that they are justified in developing "judicial policy" to not enforce statutes, nor how doing so reduces conflicts with the legislature.

There's a more legitimate canon -- dating at least to Mossman v. Higginson in 1800 -- that statutes may be construed not to be unconstitutional.  In light of this canon, I don't see how the constitutional doubt canon avoids any conflict with the legislature.  Courts can decide if a proffered reading of an ambiguous statute is unconstitutional, and if so, can avoid a conflict with the legislature by construing the statute a different way. What the constitutional doubt canon avoids is the court having to make difficult constitutional calls in close cases.  But making life easy for courts isn't a constitutional value.

More broadly, the avoidance canon illustrates a problem for Reading Law, previously noted by John McGinnis and others.  The book presents a list of canons and pronounces some of them valid and others not valid.  But it never explains a general theory of why some canons are valid and some aren't.  True, some are valid as common sense ways to find the meaning of legal texts, and some are valid as interpretive tools that were in common use in the founding era.  But the constitutional doubt canon isn't either of these (Scalia and Garner's earliest citation of it is from 1909).  

Maybe (as Flowers' essay says at the end) the canon can be defended as a matter of stare decisis.  But I doubt even that.  Surely there is no reliance interest in it.  Its only beneficiaries are judges who don't feel like deciding hard constitutional questions.


Eric Segall Asks "What is Originalism?"
Michael Ramsey

At Dorf on Law, Eric Segall: What is Originalism circa 2018? (an entertaining account of his presentation and the reaction to it at the San Diego originalism works-in-progress conference last weekend).  An excerpt:

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.


I identified a number of well-known originalists in the room, including Randy Barnett and Evan Bernick, Will Baude and Steve Sachs, the three Mikes (Ramsey, Rappaport and McConnell), Kurt Lash, and Steve Smith. Jack Balkin was also present, but other than Barnett, no one really knows why Balkin calls himself an originalist. Anyway, my point was that Baude and Sachs believe cases like Brown v. Board of Education, Lawrence v. Texas and the same-sex marriage decisions show that "originalism is our law," while none of the three Mikes or Barnett, or almost anyone else in the room take that position. Their views are emphatically not that originalism is our law, but that it should be our law.

I also observed that Barnett's and Bernick's libertarian form of originalism with strong judicial engagement is worlds away from other more deferential kinds of originalism. Moreover, Rappaport's and McGinnis's "original methods" theory, which calls for judges to only apply the interpretative methods of the founders, is a distant relative to some of the forms of originalism advocated by others in the room.

Thanks to Professor Segall for his kind words about the conference (and for his outstanding contribution to it).  I'll say in very brief response (1) I don't know that it's a problem that originalism is more a family of related approaches rather than a single unified approach; and (2) while I do think originalism is a family, I also think it is unified by a set of core commitments, and can appear more fragmented when one focuses on the more novel theories and the more difficult constitutional provisions.


Daniel Smyth on the Origination Clause (Updated)
Michael Ramsey

In the British Journal of American Legal Studies, Daniel Smyth: The Original Public Meaning of Amendment in the Origination Clause Versus the Patient Protection and Affordable Care Act (6 Br. J. Am. Leg. Studies 301 (2017)).  Here is the abstract: 

Robert Natelson recently published his article, The Founders’ Origination Clause and Implications for the Affordable Care Act, in the Harvard Journal of Law & Public Policy. This article argued the original understanding of the scope of the Senate’s power to amend the House of Representatives’ bills for raising revenue in the Origination Clause permits complete substitutes that are new bills for raising revenue, such as the Patient Protection and Affordable Care Act (PPACA). The original understanding of a constitutional word or provision is what the ratifiers of the Constitution thought was the meaning of the word or provision. When the Senate originated PPACA as an amendment to the House’s Service Members Home Ownership Tax Act of 2009, the Senate replaced the entire House bill, except for the bill’s number, with PPACA.

I consider the original public meaning—not the original understanding—of a constitutional word or provision, unless unrecoverable, to be the controlling meaning of that word or provision. The original public meaning is the meaning that a “reasonable speaker of English” during the founding era would have ascribed to the word or provision. My article argues the original public meaning of amendment is clear and disallows complete substitutes. For instance, founding-era dictionaries indicate an amendment was a change or alteration to something that transformed the thing from bad to better. This definition suggests an amendment must not be a complete substitute because an amendment must preserve at least a part of the thing being amended so that there is something to transform from bad to better.

My article further argues the preponderance of evidence suggests the original understanding of the scope of an amendment actually disallows complete substitutes. For example, much evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and state conventions suggests the dominant view among the founders was that an amendment to the Articles of Confederation, the legal compact between 13 states enacted in 1781, could not be a complete substitute.

My conclusion argues PPACA or any other such complete substitute violates the original public meaning of the scope of an amendment.

UPDATE:  Link was bad; now fixed (link goes to the journal website; click on "Latest Issue of the British Journal of American Studies").


A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 2
Seth Barrett Tillman

[Note:  This is Part 2 of my response to Professor Nourse's article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power.  Part 1 is here.]

This is not the place for a full defense of my views regarding the Constitution’s divergent Office-language. That has been done several times elsewhere. Here, I will respond to Nourse’s charge that I have engaged in intellectual “gerrymandering.” What is meant by this charge? Nourse provides helpful examples. Article II, Section 1, Clause 1, the Executive Power Vesting Clause, states: “The executive power shall be vested in a President of the United States of America.” In reading this clause, in his Morrison v. Olson dissent, Justice Scalia has stated: “this [language] does not mean some of the executive power, but all of the executive power.” Scalia, in effect, is changing the language of the clause to: “All the executive power shall be vested in a President of the United States of America.” Nourse challenges this type of textual enrichment as unsupported by the text. In other words, such enrichment is both reliant on unsupported assumptions of coherence across the Constitution’s text and reliant on unstated preferences of the interpreter. I agree. Nourse also objects to: “intratextual arguments . . . that come from excising particular words from one ‘home’ clause and moving that enrichment to a different ‘receiving’ clause, where the term takes on a new meaning.” I agree with this too: such a strategy poses dangers.

Consider the Impeachment Clause: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Now some read this clause as suggesting that the clause’s use of Office, standing alone, is equivalent to the clause’s “Officers of the United States” language. In other words, such interpreters engage in textual enrichment. Such people read the clause either as:

The President, Vice President and all Civil Officers shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.


The President, Vice President and all Civil Officers of the United States, shall be removed from [the] Office of the United States [that they are holding] on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Others assume redundancy—they assume that the latter “Officers of the United States” language also covers the presidency and vice presidency. They read the clause as:

The President, Vice President and all other Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

All this textual enrichment—assuming Office is coextensive Officer of the United States—and assuming Officers of the United States also encompasses the President and Vice President—relies on just the sort of assumptions and inferences Nourse objects to. So do I. So does Story, as discussed in Part 1 of my response. The meanings above are textually possible. It is also textually possible, as Story has stated, that the President and Vice President hold “office,” but they are not encompassed by the category of “Officers of the United States” or “Civil Officers of the United States.” The clause-bound text does not answer this question.

Let’s look at another clause: the Elector Incompatibility Clause (art. II, § 1, cl. 2). It states: “[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector” (emphasis added). Some think the clause uses redundant language. They think the clause means: “[N]o Senator or Representative, or Person holding any other Office of Trust or Profit under the United States, shall be appointed an Elector.” In other words, they think the clause’s “Office of Trust or Profit under the United States” language extends to senators and representatives. The positions of senator and representatives need not have been separately listed as they were included by the clause’s Office-language. Others think the Constitution’s divergent office language does not extend to members of Congress. Is the clause’s language redundant? That question cannot be answered from the text of the Elector Incompatibility Clause (standing alone). There is a second question. Does the clause’s “Office of Trust or Profit under the United States” language extend to the President and Vice President? Here too, the text of the clause (standing alone) supplies no determinate answer. The fact that some elected federal positions were listed (Senators and Representatives), but not others (President and Vice President), might mean the latter positions are excluded from the scope of the clause. But such an inference is not obvious.

Finally, there is the Foreign Emoluments Clause. Again, the clause states:

[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

How does Nourse read the clause?

The President, Vice President, and no Person holding any other Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Here it is Nourse that is engaged in just the sort of pragmatic enrichment she decries in Justice Scalia (who, you will remember, added “all” to the Executive Power Vesting Clause). Talk about unstated assumptions and unstated preferences! Not only does Nourse not recognize the clause’s ambiguity in regard to the presidency, she affirmatively states (pp. 40-41) that the contrary reading (i.e., the reading which excludes the President—a position not expressly mentioned by the clause—from the scope of the clause) is “verging-on-the-silly.”

Nourse’s sole defense of her interpretation of the Foreign Emoluments Clause—where she pragmatically enriches the text by adding language about the presidency—is that: “Article II, Section 4 provides that the President ‘shall be removed from Office by Impeachment’ for ‘high crimes and [m]isdemeanors.’ [Likewise,] Article I, Section 3, Clause 7 provides that the ‘Judgement in cases of Impeachment shall not extend further than to removal from Office’” (p. 28). Here too, Nourse is engaged in just the sort of weak intratextualism she decries in others. She assumes that “Office,” standing alone, in the Impeachment Clause, and “Office,” standing alone, in the Disqualification Clause are co-extensive or sufficiently similar with the Foreign Emoluments Clause’s “Office of Profit of Trust under [the United States]” language to make comparison and enrichment meaningful. I do not suggest that such a view is stupid; it is not. Others have held this view in the past. I do suggest that Nourse’s interpretation is not the only possible one. The text is not determinate. There are competing reasonable views. Given that competing reasonable views are consistent with the clause’s text, I have turned to historical practice in the Federalist Era regarding diplomatic gifts to presidents, the Hamilton document, and other contemporaneous and roughly contemporaneous extrinsic evidence. But the merits of that debate are beside the primary point. The primary point I am making here is that Nourse does not understand my position, and that in seeking to argue the contrary, she has engaged in just the sort of interpretive strategies that she says she opposes.

A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 1
Seth Barrett Tillman

[Note: This post is a section of a forthcoming paper in South Texas Law Review, where I respond to several of my critics.  A longer version of this response is posted on SSRN, here.]

Professor Victoria F. Nourse recently published in the California Law Review the article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, in which she criticized my work on the emoluments clauses.  She wrote (pp. 27-28, footnotes omitted):

At least one constitutional textualist/originalist argued that the [foreign emoluments] clause did not even apply to the President because the clause says “Office,” and based on a survey of the use of the term “office” throughout the Constitution, the term “office” typically applies to unelected members of the executive branch, not the President. He claimed that many other scholars, originalists and others, agreed with the position that “office” means the same thing throughout the Constitution. …

First, let us take the argument that the clause does not apply to the President. This is a classic form of textual gerrymandering—an argument that takes text out of context to create a new meaning. Let us assume that, in some parts of the Constitution, the term “office” means a lower ranking, unelected, member of the [E]xecutive [B]ranch. The problem comes in moving that definition from one part of the Constitution (call this the home clause) to another part (the receiving clause). Once isolated from the home clause, the term “office” is recontextualized within the receiving clause. If the home clause only covers unelected officials, then the receiving clause is now deemed to cover unelected officials. Such inferences, however, can rewrite the Constitution. The transferred home context effectively amends the new receiving context—the Foreign Emoluments Clause—by inserting the term “unelected.” Of course, that is not the actual text of the Constitution. The term “unelected” does not exist in the Foreign Emoluments Clause; it has been added by the interpreter.

Under “analytic textualism,” one asks whether a pragmatic addition such as “unelected” is falsified by any other text in the Constitution. And, yes, there is powerful evidence that the President can be covered by the term “Office.” No one doubts that the President can be impeached. And so, no one should doubt that the term “Office” in the Foreign Emoluments Clause can easily be interpreted to cover an elected official like the President. Article II, Section 4 provides that the President “shall be removed from Office by Impeachment” for “high crimes and [m]isdemeanors.” Article I, Section 3, Clause 7 provides that the “Judgement in cases of Impeachment shall not extend further than to removal from Office.” This falsification procedure allows us to see that the claimed textual enrichment is not the “only possible” interpretation; in fact, it is not a terribly plausible enrichment at all: even President Trump’s lawyers now admit that the Foreign Emoluments Clause does in fact cover the President.

I trust the fair minded reader and, in time, even Professor Nourse, will not object to my stating that Nourse does not actually understand my position in regard to the Constitution’s divergent Office-language. Because she does not understand it, she fails to fairly characterize it. Although, I wholeheartedly agree with the textual falsification method put forward by Professor Nourse, she has not actually falsified anything I have argued. It might help the reader if I point out that at no point does Nourse ever quote any actual language from any of my publications where I take the positions which she incorrectly asserts are mine.

First, Professor Nourse states that my view is that the term “Office,” as used in the Constitution, does not extend to the President. I have made no such claim. After all, such a position is a nonstarter: the Constitution (Art. II, Sec. 1) squarely states the President holds an “office.” What could be more clear? Rather, my view is that the President does not hold an “office . . . under the United States.”  (My position is aptly summarized by Professor William Baude on Jotwell, including a helpful chart.)

Second, Nourse states that my view is that the term “Office,” as used in the Constitution, “applies to unelected members of the executive branch.” I have made no such claim. My view is that Office and officer, standing alone without modifiers, include those holding office under the United States (i.e., appointed positions in all three branches) as well as those holding certain elected positions: e.g., President, Speaker of the House, and Senate President Pro Tem. (My view is that rank-and-file members of Congress, in the House and Senate, are not encompassed by the word “Office,” as used in the Constitution.)

Third, after telling her readers that my position is that “Office” means the same throughout the Constitution, Nourse tells her readers that I claim to have found support for my position among other scholars who take the same position. This also is not correct. I report the position others to distinguish my position from their position. These other scholars have argued that the Constitution’s divergent Office-language is coextensive. I disagree with that position. My position is that divergent language accommodates different meanings.

Fourth, Nourse states that “This falsification procedure [which she puts forward] allows us to see that the claimed textual enrichment [put by forward by Tillman] is not the ‘only possible’ interpretation . . . .” I ask: Why is “only possible” in quotation marks? Who is she quoting? Given that the only scholarship she is discussing in that section of her paper is my scholarship, the reader is likely to think I am being quoted. Nourse cites only a single Tillman-authored publication, and I do not use the quoted language in my article.

For what it is worth, I do not believe that by interpreting the text of the Constitution, standing alone, one ought to conclude that there is only a single possible interpretation in regard to the Constitution’s divergent Office-language. In fact, I have repeatedly made a very different claim. In my Northwestern University Law Review article, which is my only publication actually cited by Nourse, I stated:

I do not suggest that the Constitution’s text, drafting history, and ratification debates are free from all ambiguity on the meaning of Office . . . under the United States. Fortunately, we can turn to two incidents from President George Washington’s first Administration to understand the meaning of this somewhat opaque phrase.

My position is that where the constitutional text is ambiguous, one turns to early practice and history. I would add that the practices of George Washington and his administration, and that of the First Congress are entitled to special consideration. My methodological outlook is hardly an outlier.

Finally, Nourse concludes that my use of intratextualism (with its assumptions of coherence) is methodologically unsound, and that my conclusion in regard to the scope or reach of the Foreign Emoluments Clause is not “terribly plausible.” My response, beyond what I have written above, is that my using intratextualism in this fashion predates my publications, predates original public meaning originalism, and even predates original intent originalism. It is far older.

In his Commentaries on the Constitution, Justice Joseph Story wrote:

[T]he [Impeachment] [C]lause of the Constitution now under consideration does not even affect to consider the[] [President and Vice President] officers of the United States. It says, “the President, Vice-President, and all civil officers (not all other civil officers) shall be removed,” &c. The language of the clause, therefore, would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than as included in the description of civil officers of the United States. Other clauses of the Constitution would seem to favor the same result, particularly the clause respecting appointment of officers of the United States by the executive, who is to “commission all the officers of the United States;” and the sixth section of the first article which declares that “no person holding any office under the United States shall be a member of either house during his continuance in office;” . . . .

In short, Story concludes that the President is neither an officer of the United States nor holds an Office under the United States (which is a superset of the Foreign Emoluments Clause’s more limited Office of Profit or Trust under the United States-language). At the very least, Story thinks this position is plausible and supported by the text of the Constitution. Indeed, although not discussed by Story, the drafting history of the Impeachment Clause also confirms Story’s interpretation: an early draft of the Impeachment Clause applied to “other Civil officers of the U.S.,” but the “other” was dropped by the Committee of Style.  Nor was Story alone—a fair number of later commentators followed Story’s lead.  Nourse says (in effect that) Story’s view (a view with which I agree) is not plausible. But saying that it is implausible does not make it so; nor does her more strongly condemnatory language.


Anthony Gaughan on Indicting the President
Michael Ramsey

At The Faculty Lounge, Anthony Gaughan (Drake Univ. Law School): Indicting the President.  From the introduction: 

The constitutional question is straightforward: Is a sitting president immune from criminal indictment by federal or state prosecutors? Or, to put it another way, is the House of Representatives the only institution with the constitutional authority to bring criminal charges against the president?

I think the answer to both questions must be yes. The Constitution’s text, historical precedent, and compelling public policy considerations weigh strongly in favor of the conclusion that Congress is the only appropriate venue for adjudicating the alleged crimes of a sitting president. Any other approach entails enormous risks to our constitutional order. Indeed, in the toxic environment of contemporary American politics, the special counsel’s filing of criminal charges directly against the president would plunge the United States into dangerously uncharted territory with unpredictable consequences for our democratic institutions.  

Professor Gaughan makes several textual points including this one:

Yet another reason to doubt the constitutionality of a pre-impeachment indictment of the president is Article I’s explanation that the president is “subject to indictment, trial, judgment and punishment, according to law” after “conviction” and “removal from office.” A plain reading of Article I thus suggests that the president is only amenable to punishment after leaving office.


Eric Segall: A Non-Originalist Separation of Powers
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted A Non-Originalist Separation of Powers (University of Richmond Law Review, forthcoming) on SSRN.  Here is the abstract:

Since the end of World War II, some of the Supreme Court’s most important constitutional law cases have focused on the appropriate relationship between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation of powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance.

This article suggests that the Court is right to focus on factors other than text and original meaning when deciding cases implicating the allocation of powers among the three branches of the federal government. The executive branch has changed so dramatically since the founding that there is little wisdom from 1787 that can help judges resolve most separation of powers problems today.


Randy Kozel: Precedent and Constitutional Structure
Michael Ramsey

Randy J. Kozel (Notre Dame Law School) has posted Precedent and Constitutional Structure (Northwestern University Law Review, Vol. 112, No. 4, 2018) on SSRN. Here is the abstract:

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical context. This understanding informs the treatment of precedent in concrete disputes as well as the locus of authority over the rules of precedent within the federal system. It also explains why the Supreme Court may legitimately reaffirm constitutional precedents even when they are flawed.


More from Neal Goldfarb on "Pragmatic Enrichment"
Michael Ramsey

Following up on this post, Neal Goldfarb (LawNLinguistics) comments: 

For me, what's significant about the role pragmatic enrichment plays in legal interpretation is that that it provides the response to simple-minded textualist arguments such as Roberts's in PDK Laboratories and Barron's in Barron v. Baltimore. The simplistic argument is, "But the text doesn't say that." And the response is that the text is semantically underspecified: it doesn’t expressly spell out the semantics of the proposition that it expresses, and the missing element needs to be inferred. In Barron, the missing element was the agent/target_of_prohibition: the entity doing the taking to which the clause applies. And inference is involved even in the supposedly literal reading. For example, it presumably went without saying that the Fifth Amendment didn’t apply to takings by nongovernmental entities or by foreign governments.

In ordinary communication, pragmatic enrichment is pretty much an automatic process that goes on below the level of conscious awareness.* But legal interpretation is an explicit deliberative process (see my post Comprehension, ordinary meaning, and linguistics). So the question arises whether and to what extent pragmatics (the field of study, not the pragmatic phenomena that are studied) plays a role in legal interpretation where the semantic meaning is underspecified. The function of the underlying pragmatic processes is mainly if not entirely to enable the listener/reader to infer the message that the speaker/writer intends to communicate. In the case of legal interpretation there's no speaker/writer in the ordinary sense,  and therefore arguably no communicative intentions in the ordinary sense. But I think that pragmatic processes are at work anyway; IMO, people can't help but draw inferences about intention, even if the intention they are inferring is being imputed to the lawmaker.

 If that's an accurate description of the process of determining ordinary meaning, it arguably suggests that the process inherently includes an element of Legal Process purposivism. Because what intention is likely to be imputed to the lawmaker, other than what an intention to do what is reasonable in the situation (taking into account all specifically known relevant factors about the lawmaker's preferences)?  And if that is going on under the surface, maybe it would be better to bring it out into the open. So it could well be that the result of combining textualism with a linguistically/cognitively informed model of determining ordinary meaning is that purposivism becomes part of the DNA of textualism—perhaps to a greater degree than is reflected in Scalia’s notion of objectivized intent

*It's possible that there are kinds of enrichments that may (at least according to some people) involve some level of conscious inference; I don't have a level of familiarity with the literature that would let me know that off the top of my head. And there's a variety of views about the details of how pragmatic processes work and even where the line is between pragmatics and semantics.



Originalism Works-in-Progress Conference Today and Tomorrow at USD Law School
Michael Ramsey

The Ninth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference will take place today and tomorrow (2/16 and 2/17) at the University of San Diego.  As always, the Conference is hosted by the USD School of Law's Center for the Study of Constitutional Originalism.  We are delighted to welcome an impressive group of paper presenters, commentators and participants to San Diego.  Here is the schedule:

Friday, Feb. 16:

2:30 – 2:45      Opening Remarks:  Mike Rappaport (USD)

2:45 – 4:00      First Paper: Richard Primus (Michigan), Enumerated Powers and the Bank of the United States; Commentator: Randy Barnett (Georgetown);  Moderator: Steve Smith (USD).

4:15 – 5:30      Second Paper: Thomas Merrill (Columbia), Legitimate Adjudication; Commentator: Michael McConnell (Stanford); Moderator: Laurence Claus (USD).


Saturday, Feb. 17:

 9:30 – 10:45    Third Paper: Jack Balkin (Yale), Arguing about the Constitution: The Topics in Constitutional Construction; Commentator: John Harrison (Virginia); Moderator: Thomas Colby (George Washington).

11:00 – 12:15  Fourth Paper: Christina Mulligan (Brooklyn), Diverse Originalism; Commentator: John McGinnis (Northwestern); Moderator: Larry Alexander (USD).

 1:30 – 2:45      Fifth Paper: Justice Thomas Lee (Utah Supreme Court) & James Phillips (Becket), Data-Driven Originalism; Commentator: Stanley Fish (FIU); Moderator: Don Dripps (USD).

3:00 – 4:15      Sixth Paper: David Upham (Dallas, Political Science), Taking American Citizenship Seriously and the Recovery of the Fourteenth Amendment; Commentator: Kurt Lash (Richmond); Moderator: Shaakirrah Sanders (Idaho).

4:30 – 5:45      Seventh Paper:  Eric Segall (Georgia State), Originalism As Faith; Commentator: Christopher Green (Mississippi); Moderator: Maimon Schwarzschild (USD).