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33 posts from March 2018

03/21/2018

Q&A with Richard Hasen on his New Scalia Book
Michael Ramsey

At SCOTUSblog, Ronald Collins interviews Richard Hasen (UCI) on his new book The Justice of Contradictions: Antonin Scalia and the Politics of Disruption Here is a question on originalism:

Question: When it came to constitutional interpretation, was Scalia an originalist or texualist or both?

Hasen: This is quite an interesting question. For constitutional interpretation, Scalia said he believed a constitutional provision should be interpreted in line with its original public meaning at the time of enactment. For statutory interpretation, in contrast, he said that statutes should be read in line with how a fair reader of the English language at the time of enactment would have understood the words.

These two approaches are similar but not identical. For example, consider the equal protection clause of the 14th Amendment. A pure textualist reading would ask what the words “equal protection” would have meant in the 19th century. And sometimes Scalia would just look at the text to understand how it applied, arguing, for example, against affirmative action for racial minorities. But at other times he looked not only at the words but at social context to consider how a provision was understood at the time, arguing, for example, that the equal protection clause did not protect against sex discrimination because no one at the time of ratification would have understood it that way. So this answer goes beyond the text of the equal protection clause to look at social practices and tradition for its meaning.

Scalia was criticized for not explaining why as a public-meaning originalist he rejected looking at social context at the time of ratification when it came to affirmative action. The Congress right after ratification passed laws benefiting newly freed slaves. As I show in the book Scalia was pushed repeatedly to explain why this history would be irrelevant under his theory of public-meaning originalism to the permissibility of affirmative action and never responded — sometimes deflecting such questions with a joke, other times ignoring the point altogether.

Plus an ironic story at the end.

03/20/2018

James Ely and Nick Sibilla on Sveen v. Melin and the Contracts Clause
MIchael Ramsey

In the Wall Street Journal, James Ely (Vanderbilt) and Nick Sibilla (Institute for Justice): The Supreme Court’s Chance to Rebuild a ‘Constitutional Bulwark’.  From the introduction:

An obscure dispute over life insurance could breathe new life into a long-neglected constitutional safeguard for economic freedom.

...

Sveen v. Melin [Ed.: argued Monday 3/19; SCOTUS analysis hereis the first Contract Clause case to appear before the high court in more than 25 years. By accepting this case, the justices may be signaling a willingness to restore the clause, which has fallen into disuse, to its historical vigor.

Unlike some other disputed constitutional provisions, the clause is unequivocal: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” James Madison called it a “constitutional bulwark in favor of personal security and private rights.” The Contract Clause was one of the few curbs on state government power placed in the original Constitution.

And in conclusion: 

Sveen v. Melin gives the justices a path to return to the clause’s original meaning. A ruling for Ms. Melin would set an important precedent that could advance liberal priorities as well as conservative ones. With a reinvigorated Contract Clause, laws that impose rent control, alter franchise agreements, abolish teacher tenure, or modify public employees’ benefits could all be scrutinized for infringing existing contracts. Restoring the Contract Clause to its rightful place in the constitutional order would also help ensure respect for the rule of law.

(Via How Appealing).

03/19/2018

Jeffrey Pojanowski on Joseph Postell on the Administrative State
Michael Ramsey

At Liberty Law Blog, Jeffrey Pojanowski: A New Classic in Administrative Skepticism (reviewing Bureaucracy in America by Joseph Postell [Univ. of Missouri Press 2017]).  Here is the introduction: 

Not long ago, Americans were entertaining the prospect of a 2020 presidential race between Donald Trump and Oprah Winfrey. Although the Oprah boomlet appears to have fizzled, one could not avoid thinking that a country contemplating a choice between two television celebrities takes its presidential elections literally, but not seriously. Were the President a mere figurehead, we might shake our head in wry bemusement, but in the past 100 years the importance of the federal executive has grown exponentially, aided by a Congress happy to delegate power while disclaiming responsibility. In response, an increasing number of scholars and jurists have criticized the rise and rise of the administrative state. Joseph Postell’s history, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, is an important new contribution to this discussion.

To put the point more strongly, Bureaucracy in America is essential reading for the new critics of the administrative state, and their critics as well. In fact, it may be even more important than the book that launched the revival in administrative skepticism, Philip Hamburger’s Is Administrative Law Unlawful?Hamburger’s insistence on analogizing between the contemporary administrative state and English monarchical power, while rhetorically powerful, skips over much of 200 years of American constitutional and administrative law. Consequently, one major line of criticism focuses on whether Hamburger gets his English history right. Another contends that English history is irrelevant, given that subsequent American history and doctrine shows the administrative state to be lawful. If the administrative state’s critics are litigating details of the Star Chamber while ceding the field on American legal history and practice from 1787 to 1987, its defenders have little to fear.

By contrast, Postell, an associate professor of political science at the University of Colorado, carefully traces the history of American administrative law from the colonies to today. In doing so, he challenges two defenses of the contemporary administrative state: 1) that it is not an innovation on our original constitutional order, and 2) that any departure from original order was good and necessary—even inevitable. Bureaucracy in America contests the first point robustly. The case he makes on the second is more indirect and ambiguous, yet nevertheless illuminates our current predicament and potential responses to it.

And here is the book description from Amazon: 

The rise of the administrative state is the most significant political development in American politics over the past century. While our Constitution separates powers into three branches, and requires that the laws are made by elected representatives in the Congress, today most policies are made by unelected officials in agencies where legislative, executive, and judicial powers are combined. This threatens constitutionalism and the rule of law. This book examines the history of administrative power in America and argues that modern administrative law has failed to protect the principles of American constitutionalism as effectively as earlier approaches to regulation and administration.

03/18/2018

Maggie Gardner: Abstention at the Border
Michael Ramsey

Maggie Gardner (Cornell Law School) has posted Abstention at the Border (Virginia Law Review, forthcoming) on SSRN.  Here is the abstract:

The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.

This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.

In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.

Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue.

Agreed as to the first proposition, but I don't think it goes far enough.  As Marshall said, it is the province and duty of the courts to say what the law is.  Discretionary abstention not based on a direction from Congress or the Constitution is abdication (and contrary to the judicial oath).  But some individual doctrines may be justifiable on constitutional, statutory or interpretive grounds.  For that reason, the article's suggestion to consider the various "comity" doctrines individually and specifically, rather than as an undifferentiated idea of discretionary abstention, is the right way to start.

03/17/2018

Matthew Steilen: How to Think Constitutionally About Prerogative
Michael Ramsey

Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posed How to Think Constitutionally About Prerogative: A Study of Early American Usage (Buffalo Law Review, forthcoming) on SSRN.  Here is the abstract:

This Article challenges the view of "prerogative" as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke's account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers and legislative debates, this Article argues that early Americans almost never used "prerogative" as Locke defined it. Instead, the early American understanding of "prerogative" appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis Americans based their claims to enjoy rights of self-taxation on their colonial charters, which were issued by the King's prerogative. The primary connotations of "prerogative" for Americans were thus self-government and the benefits of government, principally the protection of property and liberty. Drawing on this innovative view, the Article then proffers several principles for constructing the powers of the President. It argues that the Article II Vesting Clause should be treated as a substantive grant of executive power, but conceived narrowly as the power to carry out the law, not as a grant of prerogative. It is the enumerated powers in Article II that establish presidential prerogatives. These powers should be treated as "defeasible" in the sense that they may be regulated by statute and judicial decision, within limits the Article describes. This framework is consistent with the series of modern statutes regulating presidential emergency powers, including the War Powers Resolution and the National Emergencies Act.

03/16/2018

Paul Moreno on Paul Finkelman on Marshall, Story and Slavery
Michael Ramsey

At Liberty Law Blog, Paul Moreno (Hillsdale College, constitutional history): Failed Attempt to Cut Marshall and Story Down to Size (commenting [unfavorably] on Paul Finkelman,   Supreme Injustice: Slavery in the Nation’s Highest Court [Harvard University Press 2018]).  From the introduction:

What if William Lloyd Garrison, the fiery abolitionist editor and activist, had gotten a Ph.D. and become an academic? He would be Paul Finkelman, the itinerant law professor now president of Gratz College in Philadelphia. Finkelman has spent this career making the argument that the Constitution was a pro-slavery document, regularly pounding the Founding for its racism. Indeed, he used Garrison’s famous description of the Constitution as a “covenant with death” as the subtitle of an essay on the Constitutional Convention.

Historian Don E. Fehrenbacher, on the other hand, has more convincingly shown that the Constitution was an anti-slavery document that was interpreted and administered in a pro-slavery way, creating what he called, in his 2001 book, The Slaveholding Republic. (This was the view of anti-slavery constitutionalists like Frederick Douglass and Abraham Lincoln.)

In Supreme Injustice: Slavery in the Nation’s Highest Court, Finkelman now extends his analysis to the antebellum Court and claims that it “invariably voted against liberty and in favor of slavery.” While not without merit, the new book displays the rhetorical overkill that characterizes Finkelman’s earlier work.

Its title is somewhat misleading. Supreme Injustice (given as the Nathan I. Huggins lecture series at Harvard) is really about three justices: John Marshall, Joseph Story, and Roger B. Taney. The bombshell revelation here is that John Marshall owned hundreds of slaves, and actively bought and sold them throughout his life. His biographers have all either ignored or denied this fact—Jean Smith, for example, wrote that Marshall owned a few slaves for domestic work, and G. Edward White said that Marshall was “not a slave owner.” But Finkelman tries to turn this discovery into the dominant theme of Marshall’s life and career. ...

And on Story:

Justice Story ... has always been regarded as an ardent opponent of slavery. The author does concede that he was, in his early years. “In 1819-20 he was truly a just judge,” writes Finkelman sanctimoniously. He offers no explanation as to why Story became more accommodating to slavery later; but again, the 1819-20 period looks pivotal. More to the point is the question of whether Story really did alter his views.

The key case here is Prigg v. Pennsylvania (1842). Story upheld the constitutionality of the Fugitive Slave Act of 1793 and struck down the “personal liberty laws” of free states, which might have obstructed that Act in an effort to protect their free black citizens. On the other hand, Story held that states could not be compelled to cooperate in the enforcement of the Fugitive Slave Act. Most commentators have seen Prigg as a compromise, with the no-commandeering provision bolstering abolitionist forces. As the leading textbook in U.S. constitutional history puts it, Prigg appeared to be “a major victory for the slave interest . . . yet Story’s opinion also contained a discordant note that proved to have antislavery potential.” Finkelman admitted as much in an earlier article in Civil War History whose subtitle was, “Anti-Slavery Use of a Pro-Slavery Decision.”

...

Here again it appears that nationalism trumped liberty, this time with Justice Story. But this hardly makes Story a friend of slavery. Daniel Webster was similarly vilified by the Garrisonians for his support of the Fugitive Slave Act. Abraham Lincoln, too, accepted the fact of the Constitution’s fugitive slave clause and recognized the rights of slaveholders under it. But Lincoln also pointed out that the Constitution must protect the rights of free blacks. “In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man may not in any case be surrendered as a slave?” he said in his First Inaugural address. Lincoln called for legislation to protect the privileges and immunities of all American citizens. It is likely that these would also have been part of Story’s position on the fugitive slave question.

(Thanks to Mark Pulliam for the pointer).

RELATED: Also at Liberty Law Blog, Allen Guelzo (Gettysburg College, history): The Constitution: A Pro-Slavery or Anti-Slavery Document?

Curiously, the most vehement arguments construing the Constitution as a pro-slavery document came from abolitionists. William Lloyd Garrison denounced the Constitution as an “infamous bargain” that trampled the “solemn and heaven-attested Declaration [of Independence], that all men are created equal.” Frederick Douglass was even more explicit, itemizing the Three Fifths Clause, the 20-year breathing room given to the importation of slaves, the fugitive clause, and even the provisions for suppression of domestic insurrection as deliberately written to befriend slavery.

Modern neo-abolitionist historians have taken up the Garrison-Douglass argument, beginning with Paul Finkelman, who develops an even longer list of provisions in the Constitution which betray a pro-slavery bias—the Electoral College and the direction that assessment of direct taxes, both of which are calculated by using the Three Fifths clause, the ban on export taxes (to favor cotton as an export commodity), and the limitation of civil suits and “privileges and immunities” to “citizens” (Article 3, Section 2). “A careful reading of the Constitution,” Finkelman insists, “reveals that the Garrisonians were correct: the national compact did favor slavery. . . . No one who attended the Philadelphia Convention could have believed that slavery was temporary.” Similar arguments are made by David Waldstreicher, who notes that “Of its eighty-four clauses, six are directly concerned with slaves and their owners,” while “five others had implications for slavery.” In fact, Waldstreicher adds, the motivation for many of the Founders in their Revolution was a desire to protect slavery from what they perceived as increasing British imperial hostility to it, beginning with the Somerset decision in 1772. Hence, in “growing their government, the framers and their constituents created fundamental laws that sustained human bondage.”

But in conclusion:

The original abolitionist argument was less a matter of serious constitutional argument and more a sensationalist strategy for awakening Americans to the encroachments of “the Slave Power.” The neo-abolitionist case is a more serious one, but it is marred by a highly partisan reading of the Constitution’s provisions, arising in some measure from a hostility to Constitutional originalism (so that if the Constitution is to be read through an originalist lens, originalism could be embarrassed into supporting slaveholding). The arguments of Lincoln, Fehrenbacher, and Oakes could be construed as suffering from an equal-but-opposite optimism about the Constitution’s pro-freedom intentions. But the proof surely lies in the slaveholders’ response to the election of Lincoln to the presidency in 1860: they were so convinced that the Constitution would not protect slavery that they attempted to secede from the Union, and then wrote a replacement Constitution which did expressly legitimize slavery. Their actions spoke louder than the neo-abolitionists’ words, and testified that the Constitution is a freedom document, after all.

03/15/2018

The Supreme Court and the "Modern Liberal Judicial Activist’s Favorite Tool"
Andrew Hyman

A few days ago, over at the great blog Bench Memos, longtime blogger Ed Whelan wrote  the following:

Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—"substantive due process"—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: "[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law."

Ed is a great blogger and legal scholar, with whom I agree very often, but I believe this characterization is amiss.  It's true that liberal activist justices have cited Taney’s opinion to justify the modern doctrine of substantive due process (SDP), and here is William O. Douglas lauding Taney for making SCOTUS almost as powerful as Xi Jinping:

Substantive due process had its beginnings in state court decisions construing 'due process' as used in state Constitutions. Taney in his Dred Scott opinion gave the idea wings when he said ‘[A]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law,' 19 How. 393, 450.  That view – expanded and refined – meant that the judiciary judged legislation by whether it was reasonable, rational, or desirable.  As Edwin Borchard once said, "if the due process decisions on substantive law prove anything, they demonstrate that the Court's judgment is the product of the will. It is the social and economic predilection which speaks."

But, if a pro-slavery majority of the U.S. Supreme Court in Dred Scott really did engage in an SDP attack upon congressional power in 1857, then the victors in the subsequent Civil War would likely have wanted the Fourteenth Amendment’s Due Process Clause to attack the states in the same way. After all, leading Republican politicians like James F. Wilson were keen to "turn the artillery of slavery upon itself."  In reality, Taney was not advocating anything like SDP, and Justice Souter perhaps inadvertently conceded this point in 1997:

Dred Scott was textually based on a Due Process Clause (in the Fifth Amendment, applicable to the National Government), and it was in reliance on that Clause's protection of property that the Court invalidated the Missouri Compromise. 19 How., at 449–452. This substantive protection of an owner’s property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, id., at 451–452, the implication being that the Government had no legitimate interest that could support the earlier congressional compromise.

As Souter said, Taney’s (awful and weak) enumerated powers argument was ostensible support for Taney’s assertion of a due process violation.  Not vice versa.

Each one of the several awful and weak arguments presented by Taney and his concurring justices against the Missouri Compromise provided independent support for Taney’s allegation of a due process violation, in view of the unanimous SCOTUS opinion the year before stating that the first step in a due process analysis is that, “We must examine the Constitution itself to see whether this process be in conflict with any of its provisions.”  Incidentally, many scholars have agreed with Edward Corwin that when Taney briefly mentioned due process he "carries with him only two of his associates, Grier and Wayne," which again would mean that SCOTUS did not rely upon SDP in Dred Scott (the same conclusion is reached by the many scholars who have described Taney’s statement about due process as "dicta").

Judge Ethan Greenberg perceptively wrote in 2010 that Taney cited the Due Process Clause "in a very loose way in an effort to dress up what was an inherently weak and flawed argument for invalidating the Missouri Compromise," and did not rely upon SDP. Saying that Taney did rely upon SDP may somewhat stigmatize SDP, but it also somewhat legitimizes SDP which is not something that even one of the nine justices in Dred Scott sought. 

Taney’s remark about due process was "meager and somewhat obscure" according to Don Fehrenbacher, so we may never know with 100% certainty exactly what Taney meant.   Gerard Magliocca has speculated that Taney was using the Due Process Clause as a tool to help construe the scope of implied congressional power, versus creating an exception to express congressional power.  Other scholars have speculated that the Missouri Compromise would have satisfied Taney’s due process complaint if that federal statute had defined a misdemeanor or felony instead of simply banning slavery in the territories.  Either way, Dred Scott is no precedent for substantive due process.   

If Taney’s due process remark is correctly described as mainly based upon a flawed enumerated-powers argument (as Justice Souter reasonably supposed), then perhaps one could try to correspondingly describe modern substantive due process rulings as nothing more than (similarly flawed) lack-of-state-police-power arguments. But the latter description masks a fundamental difference: the enumerated powers analyzed by Taney, such as those in the  Property Clause, are actually part of the Constitution, whereas the Constitution has no State Police Power Clause, so looking to the latter would not comply with the unanimous SCOTUS opinion in Murray v. Hoboken Land (1856) that I already quoted above: “We must examine the Constitution itself to see whether this process be in conflict with any of its provisions.”

Administrative Law Judges and the Constitution
Mike Rappaport

Recently, there has been controversy in the federal circuit courts about the constitutionality of the current arrangements for administrative law judges (ALJs), and now the Supreme Court has accepted cert in the Lucia case which raises some of these issues. There are two main questions that these cases raise: whether the appointment of the ALJs conforms to the Appointments Clause and whether the removal restrictions on ALJs is consistent with the executive power being vested in the President.

There are two ways to look at this question. One way is to ask what the Constitution’s original meaning requires; the other is to ask what is likely to be the resolution under existing law.

Existing law has placed real, but limited restraints on government through the separation of powers. From the New Deal until 1976, the Supreme Court essentially stopped enforcing the separation of powers (especially against congressional laws). These Supreme Court actions allowed significant departures from the prior constitutional regime, including broad delegations of “quasi-legislative and quasi judicial authority” and restrictions on the President’s direction/removal authority.

Then in 1976, in Buckley v. Valeo, the Supreme Court once again started to enforce the separation of powers, holding that the Congress could not appoint officers of the United States. Since that time, the Supreme Court has occasionally struck down congressional laws and other actions on separation of powers grounds, but in the main these decisions have not significantly interfered with the administrative state. Probably the most important Supreme Court decision was INS v. Chadha, which held the legislative veto unconstitutional. But that decision has still allowed the administrative state to operate, and in some ways has enhanced the power of agencies.

One can imagine two alternatives to this post-Buckley approach of the current Supreme Court. One is the pre-Buckley approach of allowing everything. While that pre-Buckley approach would have allowed some things that the Supreme Court has struck down (such as Bowsher and Free Enterprise Fund), it is not clear how big a change that would have made (except for legislative vetoes). The real danger is that this hands off approach would have emboldened Congress to pass a slew of laws that would have departed even further from the traditional separation of powers regime.

The other alternative is to follow the Constitution’s original meaning. One problem with this alternative is that the original meaning in this area (at least for some issues) is not clear. That said, I believe the most likely possibilities would require a radical departure from the existing approach. In particular, agency adjudication in a wide variety of circumstances would be unconstitutional, requiring instead that adjudications be conducted by Article III courts. It is obvious to me that the current Supreme Court would not go near this approach, because it would involve such a departure from existing practices.

While this approach would change things significantly, I still think it would allow the administrative state to continue to function. In this article, I argue that administrative adjudication should be conducted before independent article III judges instead of before ALJs. Those article III judges would have expertise about matters and could often employ streamlined procedures.

Lee Strang: The Original Meaning of 'Religion' in the First Amendment
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted The Original Meaning of 'Religion' in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics (Brigham Young University Law Review, Vol. 2017).  Here is the abstract: 

Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy.

This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This affords a first-cut illustration of the extent to which corpus linguistics can make originalism’s methodology more rigorous. Second, this Essay utilizes the tools of corpus linguistics to provide additional evidence of the original meaning of “religion” in the First Amendment. Third, based on this experience, it describes some of the challenges originalist scholars will likely face employing corpus linguistics.

03/14/2018

Originalism and Corpus Linguistics
Mike Rappaport

This past weekend I attended a BYU conference on Corpus Linguistics at the beautiful Sundance Resort in Utah.  It was a great setting to discuss the application of this field to originalist constitutional interpretation.

As I have previously mentioned, corpus linguistics is a part of linguistics which uses databases and sophisticated software to study the “real life” use of language. While people often use dictionaries to determine word meanings, corpus linguistics is often far superior as a means of understanding how people actually use words. One problem of dictionaries is that they fail to give significant information about how common a particular meaning or usage is. Another problem is that they do not typically provide information about phrases or how words are used in the context of other words. Corpus linguistics does all of this. While it is not a fault of dictionaries, dictionaries are also often misused by judges, including Supreme Court justices.

How useful will corpus linguistics be for originalist scholarship? A number of articles are now being produced which suggest that the answer is very useful. While corpus linguistics will not be able to substitute for all other methods of originalist scholarship (which it does not seek to do), it is likely to be an important aspect of such scholarship. One benefit of corpus linguistics is the compilation of databases. The BYU sponsored database (which has not yet been released to the public) has produced a large amount of materials from exactly the relevant period – 1760 to 1799.  The database includes three portions – one that is focused on ordinary language documents, another that is focused on legal materials, and a third that is focused on the writings of some significant founders. Another benefit of corpus linguistics is that it allows a variety of searches, including ones that show the “key word in context” and the investigation of other words that are used most often with the word one is investigating.

A recent paper written by Utah Supreme Court Justice Thomas Lee and James Phillips sought to use corpus linguistics to shed light on some originalist controversies. (The paper was given at the recent Originalism Works in Progress Conference at USD.)  Here let me focus on two questions they explored which enhance our understanding of the original meaning. First, they looked at the dispute over the original meaning of the Commerce Clause – did it have the narrow meaning of trading goods or a broader understanding (such as including manufacturing or all economic activity)?  Lee and Phillips conclude that the trade sense was by far the most common. In the three databases, the trade sense existed 86%, 84%, and 58% percent of the time. The other senses were exceedingly low (no more than 10%).  By itself, this does not prove that the trade sense was employed, but it does represent an important piece of evidence that supports the trade sense.

The second question involves the meaning of public use in the Takings Clause, as debated in the (in)famous Kelo case. The question is what does the constitutional requirement that a taking only occur for the public use mean. Under Justice Thomas’s position, takings are for the public use only when the government, military, or public owns or directly employs the property for a purpose.  Under the Supreme Court majority position, a taking is for the public use when it increases the convenience of or helps in some way the government or public, including indirect benefits.

Lee and Phillips again conclude that corpus evidence supports the narrower position, with 54%, 45% and 42% of the uses following the sense Justice Thomas supports. The majority’s sense is supported only 8%, 1%, and 0%. (There was a large number of cases where it was hard to classify.) This provides some important (albeit not dispositive) evidence on the issue.