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34 posts from May 2018


New Book: Making Habeas Work by Eric Freedman

Recently published, by Eric Freedman (Hofstra): Making Habeas Work: A Legal History (NYU Press 2018).  Here is the book description from the publisher: 

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes. 

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

(Thanks to Seth Barrett Tillman for the pointer.)

RELATED: Noted here earlier this year, Habeas Corpus in Wartime (Oxford Univ. Press 2017) by Amanda Tyler (Berkeley).


Illegal Immigration and Congressional Apportionment
Michael Ramsey

At Huffington Post, Sam Levine reports: Alabama Sues To Exclude Undocumented Immigrants From Census Count.  The post references several law professors on the dubiousness of the suit, including me.

Alabama is suing the Trump administration to force the Census Bureau not to count undocumented people as part of the decennial tally used to determine how many seats in Congress each state gets.

The suit signals a continued conservative interest in changing the way the census counts immigrants. In a statement, Rep. Mo Brooks (R-Ala.), one of the plaintiffs in the suit, said apportionment should exclude immigrants and be based on only the citizen population. [Ed.: actually I think the suit is just to exclude people who are in the U.S. unlawfully, not all non-citizens].  Rep. Steve King (R-Iowa) and Kansas Secretary of State Kris Kobach (R) have made similar calls. Missouri lawmakers are considering legislation to base their state legislative districts based only on citizen population.


Every 10 years, the census counts all people in the United States, regardless of their immigration status, and that tally is used as the basis to figure out how many congressional seats each state gets. The 14th Amendment says congressional seats should be apportioned based on simply the number of “persons.”

But in a suit filed Tuesday in federal court in Alabama, Brooks and the state’s Attorney General Steve Marshall (R) argue that in the 18th and 19th centuries, the word “persons” would not have been understood to include undocumented people in the country. They argue that including undocumented immigrants in the count to determine congressional representation unfairly allows states with large undocumented populations to have inflated political representation. Alabama is projected to lose a congressional seat after the next census.

Franita Tolson (USC), Pamela Karlan (Stanford) and I are noted as questioning the basis of the suit.  My reported comment is but truncated but basically accurate.  Here's my full comment to Mr. Levine:

I haven't followed this particular suit but I'm familiar with the issue.  I also haven't looked closely at the historical evidence.  That said, I'm very skeptical that there is historical evidence to support Alabama's position.  The ordinary meaning of person obviously included illegal immigrants at the relevant times.  The framers notoriously added a specific clause to limit the counting of slaves (the 3/5 clause) so they plainly thought that absent that clause slaves would count as "persons" for purposes of apportionment.  In the same clause they also specifically excluded "Indians not taxed" from apportionment.  So again they seemed to be thinking of "person" as having the ordinary all-encompassing meaning, and then putting some limitations on what persons would be counted.  If they'd meant to also limit the apportionment to persons lawfully in the country, they could easily have said so, in the same clause.  True, unlawful immigration wasn't a big issue back then because there were few restrictions on immigration -- but there were some (at the state level) so the issue would not have been beyond their understanding.  Perhaps there is some evidence from commentary at the time that would call this textual analysis into question, but I'm not aware of it.  And surely the burden is on Alabama to explain why individuals ordinarily called persons were not "persons" for this purpose.

On further reflection, I should have made clear that mine is a textual/originalist analysis.  And also on further reflection I still think I'm right, although the analysis may be a bit more complicated.  The operative language is Section 2 of the 14th Amendment (which is taken from the original language of Article I, Section 2, with the 3/5 clause dropped):

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

If there's any ambiguity here, it's in the question of who are persons "in each State" rather than who are "persons."  I'm confident that there's no relevant historical meaning of "persons" that doesn't include all human beings (and, as I noted in my comments, the 3/5 clause confirms this -- the drafters of the original Art. I Sec. 2 language thought slaves were "persons" and would be counted in full for apportionment unless the text expressed a limitation.)  So unlawful immigrants are clearly "persons" -- the question is whether they are persons "in" the State.  I assume travelers not resident in the state, although obviously persons, are not counted for apportionment purposes because they are not "in" the State for purposes of apportionment, even though they may be literally physically in the state on the date of the census.  Perhaps one could similarly argue that persons unlawfully present, even though resident, are not "in" the state in the constitutional sense.

But I think that interpretation is ruled out by the "Indians not taxed" exclusion.  This phrase referred to tribes not under the jurisdiction of the state and the United States, either legally (by treaty) or practically (because they were beyond effective control).  The existence of this exclusion indicates that the drafters understood that these tribes would be "persons in [the] State" for apportionment purposes unless specifically excluded.  It also shows (as indicated in my comments) that the drafters were thinking about categories of persons to exclude from the count -- and if they had concerns about people unlawfully present, they could have added that exclusion as well.  The Alabama suit tries to add a word the framers left out: "counting the whole number of persons [lawfully] in each State."

This, I emphasize, is a textualist/originalist analysis.  I think it is conclusive (scholars who think originalism doesn't yield definite answers to actual litigated cases are encouraged to show why I'm wrong).

A living Constitution analysis, on the other hand, is much stronger for Alabama.  Although there likely were some persons unlawfully present (under state law) at the time of the Amendment, it was undoubtedly a very small number.  Material restrictions on lawful immigration weren't adopted until later, and the existence of large numbers of undocumented residents is a recent phenomenon.  Thus it made sense for the framers not to bother excluding this category, because it wouldn't materially affect the count and surely wouldn't affect the apportionment.  Now, matters are entirely changed -- it may well be, as Alabama argues, that excluding the category would affect the apportionment.  So perhaps Alabama can argue that, similar to "Indians not taxed" in the nineteenth century, the category of undocumented residents represents a category of persons not a full part of the political entity, and thus appropriately excluded from apportionment as not fully "in" the state.

Of course there are living Constitution arguments in response as well.  The outcome would mostly come down to whether one thought undocumented residents ought to be counted for apportionment as a policy matter.  My point is that a textualist/originalist approach seems to give a more definite and objective answer.  (And note that the two other professors quoted in the article as opposing the suit also give originalist-oriented responses).

(Thanks again to Mr. Levine for letting me know about the suit and getting me thinking about it).



Ilya Somin on Intrinsic and Instrumental Originalism
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Intrinsic vs. Instrumental Justifications for Originalism.  It begins:

Originalists disagree among themselves about what exactly qualifies as the original meaning that judges and other government officials are required to obey. They also differ on the even more fundamental question of why we should obey the original meaning in the first place. Some believe that adhering to original meaning is inherently valuable, independent of consequences. These people can be called "intrinsicist" originalists. Others advocate originalism for instrumental reasons: they believe that following the original meaning leads to good consequences, or at least better ones than living constitutionalism. The difference between intrinsic and instrumental justifications for originalism has important practical implications, as well as theoretical ones.

The post then examines "Problems with Intrinsicist Justifications for Originalism," identifying several intrinsic justifications, including: 

Finally, some originalists argue that we must obey the original meaning because that is the only way to adhere to the "rule of law." The rule of law means different things to different people. But, at least on several standard conceptions of it, the relationship between the rule of law and originalism is merely a contingent one. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning.

For example, the rule of law is often defined in contrast to "the rule of men." Whereas the former is based on general, impersonal rules, the latter is subject to the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. Consider a constitution that includes a provision saying that "the meaning of the law is whatever the president says it is," and historical evidence indicates that this clause was meant to give the president unfettered power to define what counts as lawbreaking and punish offenders as he sees fit. In this scenario, adherents of the rule of law defined as the antithesis of the rule of men, would do well to reject originalism and try to give this clause as narrow an interpretation as they can. They should try to minimize its impact in much the same way as liberal Christians and Jews minimize the significance of biblical passages endorsing slavery and the subordination of women. Similar contingent factors affect the connection between originalism and other standard conceptions of the rule of law.

(As an aside at this point, I'll say that it's not clear to me that support of the rule of law is an intrinsic rather than an instrumental justification.  The reasons one would support the rule of law are, I think, typically instrumental).

The next section of the post is titled "Implications of Adopting an Instrumental Justification for Originalism" and begins:

In my view, like that of McGinnis and Rappaport, originalism can only be effectively defended on instrumental grounds. I think the original meaning of the US Constitution protects liberty and several other important values better than any currently feasible alternative is likely to do. And, like them, I believe (at least tentatively) that constitutional rules adopted through supermajority processes are likely to be, on average, better (on consequentialist grounds) than those developed by judges or conventional political majorities.

I will not try to defend these conclusions in any detail here (though I have in part done so previously). I will instead note some important implications of instrumental defenses of originalism, which qualify their scope.

And in conclusion:

In sum, there is good reason to reject intrinsicist justifications of originalism in favor of instrumental ones. But the latter have a number of potentially uncomfortable implications. Of course, the same thing is true for any plausible version of living constitutionalism. No approach to constitutional theory can sidestep difficult questions about the reasons why we should adopt it in the first place.

This is an important and thought-provoking post (inspired by Andrew Coan's important and thought-provoking article noted here).


John McGinnis on Populism and Federalism
Michael Ramsey

At Liberty law Blog, John McGinnis: To Restrain Populism, Revive Federalism.  From the beginning:

[T]here is no doubt the Framers designed the federal government to have more elite elements than the state governments of the time.  The Electoral College was structured to filter the popular will to elect individuals of substantial preexisting reputation.  The Senate also was indirectly elected and its long terms made it more likely that the wealthy would serve. The judiciary was the redoubt of the learned profession of lawyers, representing the cognitive form of elite that was rising in importance in the Framers’ day and has become dominant in our own.

States, in contrast, could be reservoirs of populism. In the critical period between the Articles and the Constitution, they had in fact often reflected populist policies. The Constitution was designed to counteract their worst excesses through giving the more elite federal government power over such matters as interstate commerce and the federal judiciary some control over such matters as the abrogation of contracts. But our system of dual sovereignty assured that populism still had a role to play in the many areas where no institution of the federal government was given power.

And in conclusion:

With the rise of populist figures as ideologically diverse as President Donald Trump and Senator Bernie Sanders, we may well be now witnessing the backlash against the elite element of government that comes from the excessive reduction of the Constitution’s popular element.  If so, the remedy for populism is not to stamp it out, but to restore the elements of our original Constitution that gave it greater play. We need a constitution that will bend to populist winds so that it will not break.


The President, the First and Fourteenth Amendments, and the Take-Care Clause
Chris Green

Recent cases at the Supreme Court, the Ninth Circuit, and the Southern District of New York all pose an important issue that could be clarified with more attention to the Take-Care Clause of Article II.  Trump v. Hawaii, the travel-ban case argued at the Supreme Court last month, featured an Establishment Clause issue added by the Court itself. Yet the First Amendment applies only to Congress, not executive officers. The DACA case at the Ninth Circuit, Regents v. DHS, featured an argument under the Equal Protection Clause, which doesn't even apply to Congress, and certainly not the President. Finally, today, in Knight Institute v. Trump, SDNY Judge Buchwald held that the President violated the First Amendment by blocking particular users on Twitter.

None of the litigants or amici in these cases has couched the arguments against presidential discrimination in terms of the Take-Care Clause: "he shall take Care that the Laws be faithfully executed." But this is a much better home, textually, for allegations of unconstitutionally discriminatory presidential behavior than the First or Fourteenth Amendments. As readers of this blog will surely know quite well, constitutional interpretation is sometimes difficult. But interpretive issues do not get any easier than whether "Congress" or "State" includes the President.

We might imagine a hypothetical: in 1790, would it have been constitutional for President Washington to have enforced the criminal law only against his political enemies (as few as they were at the time)? This seems a paradigmatic violation of the take-care duty: to be "faithful"--to be bona fide--means, in part, not to be invidiously discriminatory. Nicholas Quinn Rosencranz has suggested that "the Take Care Clause ... reflects a principle of nondiscrimination (on the basis of speech and religion, among other things) in the execution of law."

The Take-Care Clause has, alas, received almost no attention in Trump v. Hawaii, Regents v. DHS, or Knight Institute. This is unfortunate. None of these cases, however, is final. The Supreme Court has another month to think about including a discussion of the take-care duty in the Hawaii case, and the Ninth and Second Circuits still have the chance to do the same in Regents and Knight. The issue of the textual foundations for the President's nondiscrimination duty is surely worth at least a learned footnote, or three!

Dennis Baron on Scalia, Heller and Corpus Linguistics
Michael Ramsey

In the Washington Post, Dennis Baron (Illinois, English/Linguistics): Antonin Scalia was wrong about the meaning of ‘bear arms’.  Key excerpts:

In his opinion in Heller, Justice Antonin Scalia, who said that we must understand the Constitution’s words exactly as the framers understood them, disconnected the right to keep and bear arms from the need for a well-regulated militia, in part because he concluded that the phrase “bear arms” did not refer to military contexts in the founding era.


But Scalia was wrong. Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare — they’re almost nonexistent.

A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.

I would like to hear more about the eighteenth century use of the full phrase "keep and bear arms."  But clearly corpus linguistics analysis is not always going to produce result originalists expect or are happy with.

Thanks to Neal Goldfarb (LAWnLinguistics) for the pointer.  He has a helpful background post on the BYU project here: The BYU Law corpora (updated).  It begins:

I’d imagine that most people who’ve been actively involved with corpus linguistics are familiar with the BYU corpora—a collection of web-accessible corpora created by Brigham Young University linguistics professor Mark Davies. These corpora (and BYU’s corpus-linguistics program more generally) have played an essential part in the development of what I’ll call the corpus-linguistic turn in legal interpretation. The BYU corpora served as my entry-point into corpus linguistics, and they have provided the corpus data that has been used in most of the law-and-corpus-linguistics work that has been done to date. And beyond that, the BYU Law School has played an enormous role, in a variety of ways, in Law and Corpus Linguistics becoming a thing.

One of the things that the law school has been doing has been happening largely behind the scenes. For the past two or three years, people there have been developing the Corpus of Founding Era American English (COFEA)—a historical corpus that is intended as resource for studying language usage in the time leading up to the drafting and ratification of the U.S. Constitution. At this year’s conference on law and corpus linguistics (the third such conference, all of them hosted by the BYU Law School), we were given a preview of COFEA. And via a tweet by the law school’s dean, Gordon Smith, I’ve now learned that a beta version of COFEA is up and available for public playing-around-with, as are beta versions of two other corpora: the Corpus of Early Modern English and the Corpus of Supreme Court of the United States.


Kristen Eichensehr: Courts, Congress, and the Conduct of Foreign Relations
Michael Ramsey

Recently published in the University of Chicago Law Review, Kristen E. Eichensehr (UCLA): Courts, Congress, and the Conduct of Foreign Relations (85 U. Chi. L. Rev. 609 (2018)).  Here is the abstract:

In the US constitutional system, the president generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. Nonexecutive conduct of foreign relations occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the US nonexecutive branch and a foreign executive branch. Nonexecutive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, nonexecutive conduct of foreign relations is likely to become more frequent due to changes in technology, foreign governments’ increasing sophistication about the US government, hyperpartisanship in the United States, and what might be called the “Trump effect.”

Building on Justice Robert Jackson’s iconic tripartite framework from Youngstown Sheet & Tube Co v Sawyer, this Article proposes a converse Youngstown framework for determining when nonexecutive conduct of foreign relations is constitutional. The converse Youngstown framework judges the constitutionality of the courts’ or Congress’s actions in light of executive authorization or condonation (Category 1), executive silence (Category 2), or executive opposition (Category 3). The converse Youngstown framework offers significant advantages over the current ad hoc approach to analyzing nonexecutive conduct of foreign relations, and it avoids some of the pitfalls that critics have identified with traditional Youngstown analysis. First, it more accurately reflects the fact that the president isn’t the only actor who exercises foreign relations initiative. Second, it avoids much of the indeterminacy that plagues traditional Youngstown analysis. Finally, it simplifies the constitutional analysis of nonexecutive conduct of foreign relations by explaining why easy cases are easy, allowing courts to engage in constitutional avoidance in some cases, and showing how Congress and the courts may sometimes trump the executive, even in Category 3.

Though I'm not a fan of tripartate analyses not connected to Constitution's text, I agree at least to this extent: (1) textually, Congress has some powers it can exercise in conjunction with or in support of the President but cannot exercise in opposition to the President.  These are powers it holds from the grant of power "To make all Laws which shall be necessary and proper for carrying into Execution ... all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (2) I think it clear that "Congress ... may sometimes trump the executive, even in Category 3 [i.e., where the President disapproves]" -- that would be the case where Congress has its own textually granted foreign affairs powers (which is actually quite often).

Bonus: The Originalism Blog is cited in notes 108 and 110.  Thanks!

(Thanks to Seth Barrett Tillman for the pointer.)


Andrew Coan: Amending the Law of Constitutional Interpretation
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Amending the Law of Constitutional Interpretation (13 Duke Journal of Constitutional Law & Public Policy 85 (2018)) on SSRN.  Here is the abstract:

In recent years, the law of interpretation has received a welcome flurry of attention. Much of this attention has focused on the law of U.S. constitutional interpretation circa 2018 and whether that law should be understood as embracing originalism—or any other specific approach—or whether it is better understood as broadly open-textured or otherwise pluralist. This symposium essay takes a different tack. As a thought experiment, it proposes a constitutional amendment explicitly mandating a nonoriginalist approach to constitutional interpretation. This thought experiment has a number of interesting implications for both originalism and nonoriginalism and for the law of interpretation more generally. Most fundamentally, it suggests that constitutional theorists should think more deeply about the nature and grounds of constitutional decision-makers’ presumptive obligation to follow the law.

And from the introduction to the article:

Without further ado, here is my proposed amendment:

Section 1. The United States Constitution, including this Amendment, shall be construed to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society.

 Section 2. Originalism is not our law and never has been.

 As Section 2 implies, this is intended as a clarifying amendment. Contrary to the views of some originalists, the U.S. Constitution as it now stands does not compel an originalist approach to constitutional interpretation. More important for present purposes, the Constitution could not have been written to compel such an approach, nor could it be amended to do so. Even if the constitutional text explicitly mandated originalism, nonoriginalist Supreme Court justices and other constitutional decisionmakers would still have good normative reasons for ignoring that mandate, reading it flexibly, or following it selectively. At most, such an amendment might supply countervailing normative reasons for adhering to originalism, which may or may not outweigh the reasons for adhering to some form of nonoriginalism. Or so I shall argue.

The same does not hold for an amendment explicitly mandating nonoriginalism. Rather, the logic of originalism would compel nearly all committed originalists to respect the original meaning of such an amendment. The only originalists for whom this would not be true are what I have called “substantive originalists,” who embrace the Constitution’s original meaning because they believe it to be morally just or likely to produce good practical consequences. But this is a relatively small group. Other originalists would be compelled by their own precepts—popular sovereignty, written constitutionalism, legal positivism, etc.—to embrace nonoriginalism

Agreed.  But I think this thought experiment proves something rather different from what the author thinks.  First, let's rewrite the amendment to state the proposition a bit more clearly, so everyone knows what we are talking about: 

Section 1.  In the name of the Constitution, judges shall have the power to disallow any laws or government actions which they think inappropriate on moral or pragmatic grounds.

I agree that if this amendment were adopted, originalists would accept that it grants to judges the power to strike down any laws or government actions which they think inappropriate on moral or pragmatic  grounds.  But this amendment has not been, and would not be, adopted.  It is not consistent with the way we think about judges in our separation of powers system.  We do not think of the judiciary as a third branch of the legislature with a policy-driven veto power over the actions of the other branches. We think that judges have the constitutional powers they do because they interpret the existing law, not because they are well-suited to make policy. 

I would also expect most (though perhaps not all) originalists to oppose the hypothetical amendment on the ground that it vests judges with a power that is inappropriate for a non-elected branch of government.  If they lost this debate, I think most (perhaps all) originalists would concede to the lawmaking power of the people, as exercised through amendment.  The originalists' core point, though, is that this amendment has not been adopted by the people; rather it has been imposed by the fiat of nonoriginalist judges.


Lynn Uzzell on Originalism and Madison's Notes (with a Response by John McGinnis)
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell has a two-part post on the reliability and significance of Madison's Notes: A Pox on Both Your Houses, Part I: Anti-Historical Originalists and A Pox on Both Your Houses, Part II: Anti-Originalist Historians.

From the first:

... [T]wo very different camps — originalist legal scholars and anti-originalist historians — unite in promoting some dubious history about Madison’s Notes of the Constitutional Convention. Each side of the debate has contributed to the debunking of Madison’s Notes, apparently in pursuit of its own agenda.


Crucial to the credibility and respectability of originalists is a credible respect for history in both of its primary meanings. First, history means the actual events that took place in the past. Of special interest to the originalist would be the persons, arguments, and activities related to the formation, adoption, and early application of the Constitution.  The second meaning is the scholarly discipline of studying the extant evidence of those past events to form a coherent narrative about them.

And both senses of history, at least insofar as the history of the Constitutional Convention is concerned, have been under threat since the 2015 publication of Mary Sarah Bilder’s book, Madison’s Hand: Revising the Constitutional Convention. This book is suffused with imaginative conjectures about how Madison “doctored” his Notes of the Constitutional Convention in order to improve his own image, yet it offers very little in new evidence—at least, very little evidence that will stand up to careful scrutiny.

And further:

That the anti-originalist historians have warmly embraced a narrative that discredits the most important historical records about the Constitution’s formation is easy to understand. But the response by some originalists is more perplexing to the outside observer. Georgetown law professor Lawrence Solum and at least one other originalist have privately confided that they believe that Madison’s Hand “helps us.” More publicly, Professor Solum has enthused: “Every constitutional law scholar needs to read this book. And the judges, lawyers, legal scholars, and historians need to rethink its approach to the Framing. Highly recommended!”  Other originalists have been conspicuously indifferent to the book.

By way of contrast, scholars who are more thoroughly acquainted with the history of Madison’s Notes — such as Gordon LloydW. B. Allen, Paul Rahe, and myself — have given compelling reasons to be highly skeptical of the most provocative claims made in Madison’s Hand.  Professor Solum did not offer his reasons for insisting so strenuously that not only historians, but also judges, lawyers, and legal scholars need to read this book and rethink the Framing. However, it is difficult not to suspect that his brief but fervent endorsement arises from some mixture of ignorance of and disdain for the history of the Constitution’s formation. In other words, not only are the details of this epoch unknown to originalists but, as far as they’re concerned, they’re not worth knowing. Therefore, a book suggesting that the history is less knowable is all to the good.

The growing tendency among originalists to spurn constitutional history is a mistake if they hope to appeal to non-specialists who are not already sold on originalism ...

John McGinnis responds: Originalism Deploys History Under Legal Discipline.  It begins:

Lynn Uzzell has written a broadside against both anti-historical originalists and anti-originalist historians. I am one of the originalists criticized. But more importantly, the picture Uzzell paints of originalism as practiced is unrecognizable to me.

Originalism today is deeply historical in its effort to recover the meaning of the Constitution as it would have been understood by the Framers of the Constitution. Indeed, the brand of originalism which Mike Rappaport and I formulated requires following the methods of interpretation that would have been deemed applicable at the time—a subject that obviously requires research into legal history. But more generally, as Mike Rappaport and I have recently discussed, scholars interpreting particular constitutional provisions today undertake deep dives into the historical usage of its legal terms, like “due process” or “cruel and unusual punishment.” They have also applied legal interpretive rules that and they have supported their use by showing that the Framers themselves used them. It is hard to think of more pro-historical originalism than this.

And from further on:

Thus, while I do not I agree with Larry Solum that Mary Sarah Bilder’s claims, even were they true, about Madison, are likely to advance originalism as a positive enterprise, they not likely to dramatically revise our interpretation of the Constitution’s original meaning. It is largely fixed by other historical evidence more relevant to the way legal meaning was determined at the time. That does not mean that the private intentions of the Framers cannot point to the relevant context of the provision. Larry Solum, who Uzzell also criticizes, says as much here, and originalists do make use of such statements for these limited purposes.

One quick sidenote (which I think supports John McGinnis):  in my investigation of Justice Scalia's methodology I conclude that he made only infrequent use of Madison's notes -- see here, Part II.A (finding only eight opinions "citing the Convention debates in support of a substantial argument" and concluding that "the course of the Convention and the discussions within it do not play as central a role in his opinions as they do in some originalist scholarship").


Nicholas Zinos: Fundamental Rights in Early American Case Law
Michael Ramsey

Nicholas Zinos (Mitchell Hamline School of Law) has posted Fundamental Rights in Early American Case Law: 1789-1859 (forthcoming British Journal of American Legal Studies Vol. 7) on SSRN.  Here is the abstract:

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.