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43 posts from June 2018

06/30/2018

Aditya Bamzai on Ortiz v. United States
Michael Ramsey

At Lawfare, Aditya Bamzai (University of Virginia Law School): Reflections on Ortiz and the Structural Separation of Powers.  From the introduction: 

On [June 22], the Supreme Court released its opinion in Ortiz v. United States, a case in which I participated at oral argument as an amicus curiae in January of this year. In relevant part, Ortiz addressed the question whether the Supreme Court has Article III jurisdiction to issue writs of certiorari directly to the Court of Appeals for the Armed Forces (CAAF), an adjudicatory body that sits atop the military justice system for service members. Though called a court by statute, the CAAF (as everyone in the case agreed) is not an Article III tribunal with the Constitution’s life-tenure and salary protections for judges. Instead, it is housed within the executive branch and subject to presidential control—for example, through a provision allowing the president to remove its members for cause. The constitutional question in the case depended on whether these attributes have any impact on the Supreme Court’s ability to assert jurisdiction over, and to supervise, the CAAF directly, as it would any state court or any of the lower federal courts of appeals. I argued that the court lacked Article III jurisdiction. On Friday, the court held that it had jurisdiction. Justice Elena Kagan wrote the court’s opinion, Justice Clarence Thomas a concurring opinion and Justice Samuel Alito a dissent.

As an obscure (not to mention pre-tenure) professor, I was grateful, to say the least, that the justices gave two hoots about what I had to say on the subject of Article III. Now that the opinions are out, I’m doubly grateful that my argument drew reactions from three justices I deeply respect and admire. All that said, I disagree with the Supreme Court’s opinion. In the spirit of a full and frank exchange of ideas, I thought I would briefly explain why.

ALSO:  Professor Bamzai has posted The Attorney General and Early Appointments Clause Practice (93 Notre Dame Law Review 1501 (2018)) on SSRN.  Here is the abstract:

Among the structural provisions of the Constitution are a series of rules specifying the method by which the federal government will be staffed. One of those rules, contained in what is known as the Appointments Clause, establishes the procedures for appointing “all . . . Officers of the United States, whose Appointments are not . . . otherwise provided for” in the Constitution—requiring one mechanism (presidential appointment and senate confirmation) for “principal” officers and permitting a set of alternatives (appointment by the “President alone,” the “Courts of Law,” or the “Heads of Departments”) for “officers” who are considered “inferior.” The Clause has traditionally been understood to require these appointment procedures for a subset of federal government employees who meet some constitutional threshold that establishes their status as “officers,” rather than for all federal employees. In light of that understanding, the Clause naturally raises a question about the precise boundary between constitutional “officers” and other federal “employees”—a question that has recently been the subject of substantial litigation and extensive treatment within the executive branch and the scholarly literature.

The caselaw and the scholarly debate, however, have overlooked a significant source of early interpretations of the Clause: opinions construing the Clause written by the Attorneys General of the United States during the nation’s first century. Ever since the Judiciary Act of 1789, the Attorney General has been authorized “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States.” Using this authority, several Attorneys General opined on the Clause’s meaning. This Article examines their heretofore-neglected opinions, specifically addressing the opinions’ treatment of the constitutional status of the “deputies” of “officers.”

06/29/2018

Not Much Originalism this Week from the Supreme Court
Michael Ramsey

In contrast to last week, this week was a disappointing one for Supreme Court originalism.  First, in Trump v. Hawaii, Chief Justice Roberts' majority opinion upholding the constitutionality of the President's travel ban relied on the rational basis test.  Though it may reach the right result here, the rational basis test is (as various originalist scholars have argued) is a Court invention.  And the Court's strongest originalists didn't add much in concurrence -- just this from Justice Thomas (who went on to complain about nationwide injunctions):

[T]he President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14).

If Justice Thomas means by this that President's "executive Power" in article II, Section 1 includes the power to exclude aliens, I think there may be an originalist case for it (though I'm not sure why this would override Bill-of-Rights protections). But Knauff does not develop a constitutional argument; instead it relies on powers of sovereignty, which suggests the extraconstitutional theory of foreign affairs power in the Curtiss-Wright case and which does not have a sound originalist foundation.  Thomas' extensive originalist dissent in Dimaya mostly addresses a separate issue -- whether immigration statutes are limited by the due process clause; it says little about the President's independent power.

Second, in Janus v. NFSCME, Justice Alito's majority opinion -- finding compelled public sector union dues unconstitutional -- had this rather thin originalist analysis:

The most surprising of these new arguments is the Union respondent’s originalist defense of Abood [the case overruled in Janus]. According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees. Brief for Union Respondent 2–3, 17–20.

As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have “no [free speech] rights.” ...

Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. See Ex parte Curtis, 106 U. S. 371, 372–373 (1882). The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using “‘contemptuous or disrespectful words against the President’” and other officials, and an 1801 directive limiting electioneering by top government employees. Brief for Union Respondent 3. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while recognizing that government employees possess First Amendment rights. ... 

...

The Union has also failed to show that, even if public employees enjoyed free speech rights, the First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who
framed and ratified the Bill of Rights. Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “‘sinful and tyrannical,’” supra, at 9, and others expressed similar views.

In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment.

This analysis seems to put the burden on the government to show support from the original understanding, without explaining why the burden should be allocated this way.  Also it does not really grapple much with what I think is the core originalist question in the case, namely whether forced contributions to private entities that engage in expressive activities is different from forced contributions to the government itself (where the government engages in some expressive activities).  None of the other Justices in the majority concurred to offer additional analysis.

(Of course, Justice Kennedy's retirement may have some originalist implications...)

06/28/2018

The Problems With Declaring Procedurally Valid Constitutional Amendments to be Unconstitutional
Mike Rappaport

In a recent post, I discussed the movement in much of the world to declare constitutional amendments that are otherwise procedurally valid to be unconstitutional on the ground that they violate implicit or extra constitutional norms. Here I want to discuss why, in the American context and perhaps in other countries, that is such a bad idea.

In the American context, declaring an amendment that is otherwise valid – such as an amendment banning flag burning or overturning Citizens United’s First Amendment protections for corporations – to be unconstitutional would be extremely problematic. If the Supreme Court made such a declaration, an amendment that had passed the very strict constitutional amendment process – and therefore was supported by a significant consensus of the American people – would have been blocked by the extra-constitutional action of the Court. There would be no justification for such action and it is likely to be harmful, since the constitutional amendment process is a better judge of what constitutional provisions should exist than the Court.

But declaring some constitutional amendments to be unconstitutional would also be problematic because it would further obstruct the constitutional amendment process. The reason that the constitutional amendment process no longer works in America – there has not been a new constitutional amendment enacted since the 26th Amendment in 1971* – is largely the fault of nonoriginalism, for several reasons. First, a constitutional amendment may take a long time to pass, because it requires a consensus of the American people to enact it. But such a consensus may take a long time to develop. If a nonoriginalist Supreme Court updates the constitution through “interpretation” every time it deems there to be a significant problem with the Constitution, there will never be an opportunity for a consensus to form and a constitutional amendment to pass.

Second, a nonoriginalist Supreme Court cannot be trusted to enforce the constitutional amendments that are written. They will ignore the original meaning and enforce a different meaning than the one enacted.  This means that the incentive to pass a constitutional amendment is greatly reduced by nonoriginalism.

In my view, these two reasons explain why the Equal Rights Amendment, which seemed to have so much appeal, was not able to secure ratification.

Declaring constitutional amendments unconstitutional for violating extra-constitutional norms would put a further (perhaps) redundant nail in the coffin of constitutional amendments. It would further reduce the incentives of the country to pursue constitutional amendments with which the Supreme Court disagrees, because there would now be a chance – perhaps a significant chance – that the Supreme Court would declare them unconstitutional. Why put in the enormous effort to pass an amendment, when it is better to try to pack the court?

Happily, there is, at present, little chance that the Supreme Court would declare a validly passed constitutional amendment unconstitutional based on extra-constitutional norms. But it is significant that this occurs throughout the world. For many of the countries, this arrangement may be as problematic as it would be in the United States. And if nonoriginalism makes further progress in the United States, it is quite possible that the Court might one day decide to take this type of action.

* The 27th Amendment was first proposed in 1789 and therefore does not really count.

Mark Pulliam: Unleashing the "Least Dangerous" Branch
Michael Ramsey

In the Texas Review of Law and Politics, Mark Pulliam: Unleashing the "Least Dangerous" BRanch: Quis Custodiet Ipsos Custodes?  From the introduction (footnotes omitted):

In recent years, a schism has developed on the Right between libertarian and conservative legal scholars regarding the role courts should play in conducting judicial review of laws challenged as unconstitutional. Many libertarians have coined the term “judicial engagement” to describe the heightened scrutiny they advocate. Many conservatives, in contrast, embrace a more limited approach to judicial review: the traditional doctrine of “judicial restraint” espoused by Robert Bork and Justice Antonin Scalia, among others. These phrases and labelstend to obscure the real issue, which is, “What role did the Framers envision for the federal judiciary in our system of government?” Or, more fundamentally, “Who determines public policy in our constitutional republic?”

...

The theory of judicial engagement ultimately rests on the premise that ratification of the Constitution and the Bill of Rights (especially the Ninth Amendment) left individuals with all their “natural rights,” except those expressly delegated to the federal government, and that these unenumerated rights enjoy full constitutional status. The Bill of Rights is therefore not an exclusive enumeration of rights; individuals inherently possess all rights—whether enumerated or not—unless specifically surrendered to the federal government in the Constitution. Then, with the ratification of the Fourteenth Amendment in 1868, all of the rights embodied in the Constitution, including “unenumerated rights,” became judicially enforceable against the states. Accordingly, any state or federal law that impinges on individuals’ “natural” (or unenumerated) rights is presumptively invalid. Federal courts should strike down such laws if the government cannot justify those laws under a standard of review
closer to strict scrutiny than the rational-basis test.

...

Judicial engagement purports to be an “originalist” theory, meaning that it is supposedly consistent with the original public meaning of the Constitution. I strongly disagree. Judicial engagement is faux originalism. The theory of judicial engagement is unsound as a matter of history and contrary to the original understanding of the Framers. Moreover, it is flawed in theory and practically unworkable. Critics have accused
judicial engagement of being an invitation for libertarian judicial activism, but given the overwhelmingly liberal orientation of the legal academy, the organized bar, and the federal courts, the theory will likely just encourage more mischief by progressive judges seeking to impose their personal predilections on the polity—continuing (or accelerating) a trend that began in the 1960s with the notorious activism of the Warren Court.

(Via Misrule of Law).

06/27/2018

Corpus Linguistics Arrives At the Supreme Court
James A. Heilpern

[Editor's note:  For this guest post we welcome James Heilpern, Law & Corpus Linguistics Fellow at the J. Reuben Clark Law School, Brigham Young University.]

As Mike Rappaport explained in a previous post, “corpus linguistics is a part of linguistics which uses databases and sophisticated software to study the ‘real life’ use of language.” In 2011, Justice Thomas Lee of the Utah Supreme Court became the first judge in the country to employ this methodology in a judicial opinion. Although a number of judges around the country have followed suit, thus far all of the opinions citing corpus data have focused on statutory or trademark disputes. That changed last week when Justice Thomas issued not one, but two opinions influenced by corpus linguistics, marking a historic step forward for proponents of data-driven originalism.

First, on Thursday the Court released its opinion in Lucia v. SEC, declaring that administrative law judges were “officers” subject to the Appointments Clause of the U.S. Constitution. The 7-2 majority―authored by Justice Kagan―reiterated the two prong test articulated in past case law for determining whether a federal official is an officer or mere employee: (1) is the position “continuing and permanent” and (2) does the official “exercise significant authority pursuant to the laws of the United States.”  If the answer to both questions is yes, then the official is an “Officer of the United States” and must be appointed by the President, the Courts, or a Department Head. The majority recognized that the second prong, in particular, was rather vague and subject to various “glosses” but declined to “refine or enhance the test.” Instead, they found Lucia to be virtually indistinguishable from Freytag v. Commissioner, 501 U.S. 868 (1991), where the Court held that Special Tax Judges were subject to the Appointments Clause.

In his concurring opinion, Justice Thomas (joined by Justice Gorsuch) explained that he felt the Court should have provided more guidance for future cases: “While precedents like Freytag discuss what is sufficient to make someone an officer of the United States, our precedents have never clearly defined what is necessary.” He then dove into an analysis of “the original public meaning of ‘Officers of the United States.’” Although he did not explicitly cite corpus data, he cited Jennifer Mascott’s recent Stanford Law Review article four times which did, endorsing the conclusion that “[t]o the Founders, this term encompassed all federal civil officials with responsibility for an ongoing statutory duty.”

This tepid reliance on corpus data in a Supreme Court opinion was considered a major victory in its own right for proponents of data-driven originalism. But the following day, Justice Thomas took it a step further and cited corpus linguistics directly in his dissent in Carpenter v. United States. Carpenter asked whether the Fourth Amendment prevented law enforcement officials from obtaining (without a warrant) personal location information (i.e. GPS coordinates) stored by third-party cell phone providers. A 5-4 majority―authored by the Chief and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan―concluded that it did because Carpenter had a “reasonable expectation of privacy” to his physical location.

Justice Thomas dissented on originalist ground, taking onus with the Court’s line of cases protecting a person’s “reasonable expectation of privacy”―as first articulated in Justice Harlan’s concurrence in Katz. As Justice Thomas explained, “[t]he most glaring problem with this test is that it has ‘no plausible foundation in the text of the Fourth Amendment’” and thus “distorts the original meaning of ‘search’―the word in the Fourth Amendment that it purports to define.” To prove this point, he cites definitions for the word “search” from a number of historical dictionaries and notes that “[t]he phrase ‘expectation(s) of privacy” does not appear in the pre-Katz federal or state case reporters, the papers of prominent Founders, early congressional documents and debates, collections of early American English texts, or early American newspapers.” As evidence, he cites six different electronic databases containing documents contemporaneous (or nearly contemporaneous) to the Constitution: Founders Online, the Library of Congress’s Century of Lawmaking for a New Nation; BYU’s Corpus of Historical American English (COHA) and American Google Books corpus; BYU Law’s new Corpus of Founding Era American English (COFEA); and Readex’s database of Early American Newspapers. It is worth noting that this evidence was not cited by any of the parties or amici, meaning that Justice Thomas―like his former clerk Justice Lee of Utah―engaged in corpus analysis sua sponte![1] That said, it is difficult to miss the fact that three of the databases―Founders Online, COFEA, and Readex―were cited in Mascott’s Stanford article that formed the basis of his Lucia opinion.

* *  *

Although last week marked the first time a Justice was willing to consider corpus data to answer a constitutional question, at least two other Justices have shown a willingness to consider (and perhaps seek out on their own) data drawn from electronic databases in the past. Clear back in 1997, Justice Breyer performed a corpus-like search of “computerized newspaper databases”  in Muscarello v. United States to help identify the ordinary meaning of the phrase “carry a firearm” as used in 18 U.S.C. § 924(c)(l). Then during the oral argument of FCC v. AT&T in 2011, Justice Ginsburg favorably referenced[2] corpus data provided to the court in an amicus brief submitted by the Project on Government Oversight. Although Chief Justice Roberts eventual opinion did not explicitly cite corpus linguistics, its reasoning tracked that of the brief Justice Ginsburg cited.  By my count that makes at least five justices[3]―Thomas, Gorsuch, Roberts, Ginsburg, and Breyer―showing some openness to such linguistic data, and at least two willing to engage in such research sua sponte. Litigators should take note and hasten to oblige.

 

[1] Michael Varco did cite Founders Online in his amicus brief, but did not engage in anything like corpus linguistics.

[2] See Transcript of Oral Argument in No. 09-1279 at 37

[3] Maybe six―Justice Kennedy joined Justice Breyer’s majority opinion in Muscarello.

Richard Primus: Enumerated Powers and the Bank of the United States
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted 'The Essential Characteristic': Enumerated Powers and the Bank of the United States (Michigan Law Review, forthcoming) on SSRN.  Here is the abstract:

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. The idea that that proposition has always been fundamental is reinforced by a conventional understanding of several episodes in constitutional history. But reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been fundamental, and agreed upon, from the beginning. But in 1791, Members of the First Congress disagreed about whether Congress needed to point to some specific enumerated power in order to create the Bank. Moreover, Madison’s enumerated-powers argument against the Bank seems to have involved two rethinkings of Congress’s enumerated powers, one about the importance of enumeration in general and one about the enumeration’s specific application to the Bank. At the general level, Madison in the Bank debate elevated the supposed importance of the enumerated-powers framework: in 1787 he had been skeptical that enumerating congressional powers could be valuable, but in the Bank debate he described the enumerated-powers framework as essential to the Constitution. At the particular level, Madison’s enumerated-powers argument against the Bank seems to have been an act of last-minute creativity in which he took constitutional objections which sounded naturally in the register of affirmative prohibitions, but which the Constitution’s text did not clearly support, and gave them a textual home by translating them into the register of enumerated powers. Madison’s move may have set a paradigm for enumerated-powers arguments at later moments in constitutional history: subsequent enumerated-powers arguments down to those against the Affordable Care Act might be best understood as translations of constitutional objections best expressed in terms of affirmative prohibitions, forced into the register of enumerated powers because the relevant prohibitions are not found in the Constitution.

Professor Primus presented an earlier version of this paper at the originalist works-in-progress conference in San Diego in February, where it inspired spirited debate.

06/26/2018

Robert Natelson on the Meaning of "High ... Misdemeanors"
Michael Ramsey

In the Federalist Society Review, Robert G. Natelson (Independence Institute): Impeachment: The Constitution’s Fiduciary Meaning of “High . . . Misdemeanors”. Here is the introduction (footnotes omitted): 

The Constitution provides expressly for three methods by which federal government officials can be removed from office: (1) elected officials may be defeated for re-election, (2) members of Congress may be expelled, and (3) judicial and executive officers may be removed on impeachment by the House of Representatives followed by trial and conviction by the Senate. The Constitution contains no standards governing the first two methods of removal. For the third method, however, the official must be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.” 

Modern commentators disagree over what the Founders meant by the term “high . . . Misdemeanors.” Some have argued the term comprehends only violations of the criminal law. Others, most famously then-Representative Gerald Ford, have claimed it encompasses whatever Congress decides it encompasses. Neither of these two views comports with the Constitution’s text. If the Founders understood “high . . . Misdemeanors” to be limited to criminal violations, they could have omitted the words entirely and ended the sentence with “Crimes.” If they understood “high . . . Misdemeanors” to grant unlimited discretion, they could have omitted the phrase “Treason, Bribery, or other high Crimes.”

Other commentators contend the actual standard lies between these two extremes. The text implies this is correct, but commentators have not had great success determining what that standard is. Their formulations have tended to center on vague terms without discernible legal content, such as “unacceptable risk” and “egregious abuse.”

Why have commentators not deduced a clearer standard? Perhaps politics has gotten in the way. Most modern commentary dates from the time of the Nixon and Clinton impeachments and seems influenced by whether or not the author wanted the incumbent president impeached and convicted. A more fundamental problem may be the methodology employed. Writers have attempted to deduce standards from charges in English and American impeachment cases decided from the fourteenth through the twentieth centuries; Professor Raoul Berger’s authoritative 1973 book on the impeachment process is the premier example of this methodology. However, most of the cases examined are not particularly probative of the founders’ understanding. Those decided after the Constitution was ratified, of course, had no effect on their understanding. The value of early cases—those arising before the eighteenth century—is compromised by the fact that the goals and values driving the impeachment process changed over time. To recapture the founding generation’s understanding of “high . . . Misdemeanors,” we do best to limit ourselves to the events and literature of the eighteenth century. We should take heed of earlier proceedings only to the extent authors influential during the founding generation relied on them.

I must qualify in one respect my statement about the unsatisfying nature of prior explanations of “high . . . Misdemeanors.” In a 1975 study, two practitioners, E. Mabry Rogers and Stephen B. Young (later Dean Young, of the Hamline University Law School), concluded that the term meant “breach of fiduciary duty.” I believe that conclusion to be precisely correct. This essay marshals additional sources to demonstrate why it is correct.

06/25/2018

The Original Meaning and The Exclusionary Rule
Mike Rappaport

In his recent concurrence in Collins v. Virginia, Justice Clarence Thomas argues that the exclusionary rule for Fourth Amendment violations should not be applied against the states. He states that even the Supreme Court has acknowledged that the rule is not a constitutional rule. And he argues further that at the time of the Constitution, Fourth Amendment violations were remedied through an action against the officer (or self help).  They were not remedied through the exclusion of the evidence.

Assuming Justice Thomas’s historical account (which is also my understanding) is correct, I agree with his conclusion that the exclusionary rule seems problematic. But matters here are more complicated. In the modern world, lawsuits against state officers are often blocked by obstacles – most significantly, that of qualified immunity. It is constitutionally problematic to prevent enforcement of the Fourth Amendment be eliminating all of the remedies. But that is what the Supreme Court has sometimes done and what Justice Thomas’s theory may contemplate.

In some earlier posts, I argued a similar position as to the due process and judicial power clauses. There are two basic points to these posts: (1) the Constitution often assumed and incorporated a historical background, such as the remedies allowed for a violation of a right and (2) the Constitution cannot be read to allow the government to circumvent a constitutional provision by eliminating all of the remedies.

So what does the Fourth Amendment require in this context? If the government – and in this case it is the judicial branch of the government through its invention of qualified immunity – does not allow or limits lawsuits for damages against government officials for Fourth Amendment violations, then it must supply a substitute remedy that is comparable. What would such a remedy be?

One obvious possibility would be a lawsuit against the state for damages due to Fourth Amendment violations. Whether this would be a comparable remedy is an interesting question. There are arguments on both sides. On the one hand, if the remedy is compensation, then receiving compensation from the government instead of the officer should be sufficient. On the other hand, perhaps compensation is only part of the remedy. After all, the requirement to pay damages also deters violations of the wrongful act. If deterrence is also relevant, it might be thought that having the government pay compensation instead of the officer might induce more violations of the law, since the officer would not face liability (and the government could more easily bear the costs).

So how should the Supreme Court address the issue today? If the exclusionary rule is not constitutionally required and the current regime with qualified immunity is unconstitutional, then the best result would simply be to eliminate qualified immunity and the exclusionary rule – and allow lawsuits against officers for compensation. If the states seek to confer immunity on the officers and pay the compensation themselves, then the result depends upon the analysis in the prior paragraph. Either government compensation would be constitutional or not. In the latter case, then the officer liability might be required. But if the government insisted on insulating officers from liability, perhaps the exclusionary rule might be an adequate remedy in some instances. So in this indirect way, it is conceivable that the exclusionary rule might be justified. But the argument requires several steps and is by no means obvious.

The most clearly constitutional result would involve restoring the lawsuit against the state officials who violate the Fourth Amendment. But lawsuits against the state itself or the exclusionary rule might be alternative remedies.

Saul Cornell on Originalism and History
Michael Ramsey

At Take Care Blog, Sual Cornell (Fordham, History): Originalist Critiques of Anti-Originalism: Still Don’t Know About History (commenting on my post on the recent law professors' letter regarding fiduciary limits on executive power).  It begins:

To understand the exalted views of presidential power associated with the Trump administration one must appreciate the role that originalism and its theory of the unitary executive plays in contemporary right wing thought and culture.  According to Trump’s lawyers, the President “possesses the indisputable authority to direct that any executive branch investigation be open or closed because the Constitution provides for a unitary executive with all executive power resting with the President.”  As is true for many originalist claims about the past, the unitary executive rests on  a series of distortions, simplifications, and a profoundly ahistorical reading of  the Constitution.  Although originalists invoke the authority of history, their method is profoundly ahistorical.  This failure to grasp the nature of history is evident in a recent posting on the Originalism Blog by Professor Mike Ramsey expressing consternation that critics of Trump’s originalist justification would turn to history and text as the foundation of their critique.  Most originalists share Ramsey’s confused view of anti-originalism.  According to Ramsey opponents of originalism share three common views:

(1) Originalism is a radical cultish ideology that is inconsistent with ordinary approaches to legal interpretation.

(2) Originalism is impossible because we can’t know for sure what the framers thought about anything or what words meant historically, and in any event only trained historians can fully understand the past.

(3) Originalism is irrelevant because we shouldn’t be bound by the framers’ design.

Two quick points at the outset: 

(1)  I did not "express consternation that critics of the Trump administration would turn to history and text as the foundation of their critique."  I think this it's great that they did.  I like originalist arguments (else I would likely not write for a site called The Originalism Blog!) regardless of who makes them or why.  Indeed, in a subsequent post (which I'm not sure Professor Cornell has read) I wrote that the law professors' letter made a persuasive originalist argument in support of the fiduciary duties of the executive -- one that's backed up by quite a bit of originalist scholarship.  I congratulate the signatories of the letter for relying on history and text.

What I did suggest in the post that Professor Cornell cites is that I was surprised that a number of law professors made the strongly originalist arguments in the letter, because many (not all) are generally not originalists in orientation and some have been harsh critics of originalism in the past.

(2) I did not say all opponents of originalism shared the three common views Professor Cornell lists (or that these are the only criticisms of originalism).  I said that these are common criticisms raised against originalism that were prominent during the Gorsuch hearings.  And (this was my main point) the law professors' letter tends to refute all of them, because it implicitly reflects the view of a number of conventional legal scholars that originalism is (at least sometimes) an appropriate methodology; that the the Constitution's historical meaning is (at least sometimes) knowable; and that the Constitution's original meaning is (at least sometimes) binding on us today.

Professor Cornell goes on to raise (as I count them) three different objections to originalism:

First, it is important to point out that critics of originalism do not view it as cultish, but ideological.  This is an important distinction.  As many critics of have noted, originalism functions as both the method and ideological foundation for much contemporary right-wing constitutionalism.

...

Historical arguments are hardly unique to originalism.  Such arguments are widely recognized by non-originalists as one of the many modalities typically employed in modern constitutional interpretation. Critics of originalism do not ignore Founding era thought, but they insist that constitutional ideas were not fixed in 1788. (The entire notion of fixation, a claim shared by many originalists, itself rests on a serious misreading of the philosophy of language and linguistics, a point that originalist critics have made on multiple occasions.)  Rather than embrace the stilted version of history espoused by originalists, non-originalists share a view common among the leading constitutional thinkers of the Founding era.  Constitutional culture in the Founding was decidedly not originalist in the sense in which this term is typically used in modern legal debate.  History, was indisputably important to many in the Founding era and historical argument has always been important in American constitutional law in the centuries that have followed, but it is important to distinguish genuinely historical approaches to the past with originalism.

Ramsey and other leading originalists, including Lawrence Solum, Randy Barnett, Michael Rappaport, and John McGinnis have all consistently misrepresented the historical critique of originalism.  The point of the historical critique of originalism is not that we are unable to recover historical meaning.  One need not be a PhD. to comprehend the relevant historical methodology necessary to understand Founding-era constitutional culture and debate. There are many outstanding legal academics who do high quality historical work who do not have professional training in history.  The problem is that few originalists fall into this category.

I take two of these arguments to be methodological objections -- that originalism isn't being done correctly because it's ideological or insufficiently educated on historical method.  (I'm happy that Professor Cornell rejects the idea "that we are unable to uncover historical meaning," although I don't think it's a "misrepresent[ation]" to identify that as a common critique of originalism).  These two objections don't go to the idea of originalism, only to its practice.  If originalism as practiced is too ideological or historically inaccurate, originalists should welcome such criticism and do better.

But I find it difficult to discuss methodological objections in the abstract.  Although he begins with a reference to the law professors' letter, Professor doesn't say what he thinks of it (and of the scholarship on which it rests).  (1) Is it too ideological?  Perhaps, because its signatories are (I surmise) principally opponents of the President.  But it rests on ideas developed earlier, and by scholars who may have different views of this President.  And in any event, isn't the question whether it is accurate, not its motivation?  Even if all its signatories were motivated by ideological opposition to the President, that does not mean its history is wrong. (2) Is it using inappropriate historical and linguistic methods to reach its conclusion?  Perhaps, but without hearing the specific objections it's hard to say.  In a prior exchange with Professor Cornell where he and I debated some specific methodological objections regarding the debate over the natural born citizen clause, I found his objections insubstantial.

Professor Cornell's third objection appears to be the fairly standard nonoriginalist position that originalism is one of the "modalities" of constitutional interpretation but not the only one, and that constitutional ideas can evolve over time.  I think he's right that this is the real point of dispute between originalists and nonoriginalists.  But I'm not sure what he adds to this debate, or why he thinks I see the contours of that debate differently.

06/24/2018

Lynn Uzzell Replies to John McGinnis and Michael Rappaport
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell: The Polylingual Constitution (replying to posts by John McGinnis and Michael Rappaport commenting on her earlier posts on originalism and history).  From the introduction: 

In a pair of posts for Law and Liberty, I argued that public meaning originalists are not doing a good job of communicating with those beyond their narrow circle—neither the public at large nor scholars in other disciplines. John O. McGinnis and Michael Rappaport both honored me with a response, and both responded with their own version of: while that may be true, it’s not important.

But this indifference to historical expertise beyond the confines of legal history, I still believe, will harm their credibility among the general public and among other experts. I had pointed out that attempts to malign the Framers of the Constitution (in particular, the recent book by Mary Sarah Bilder) will ultimately damage originalism in the minds of a more popular constituency, many of whom harbor originalist sympathies because they admire the Framers.

And in conclusion:

Judges must possess sufficient fluency in the language of power when determining the meaning of those political clauses within the Constitution. For instance, when Article II states simply that “the executive Power shall be vested in a President,” what did that generation mean by “executive power”? When Article I, Section 8, empowers Congress to tax for the “general Welfare,” do those two words (which have a political history—see the Articles of Confederation) broaden the scope of congressional power? Or is it possible that they were inserted to limit that scope? In such cases, courts must render judgments about the degree of power properly exercised by these branches; looking to William Blackstone, common law, or prior judicial decisions will be of no help. According to Madison, even looking to prior political theorists or political arrangements will be as likely to mislead the interpreter as to lead him aright. A different kind of interpretation is needed.

The historical research that McGinnis and Rappaport describe in “The Legal Turn” is a valuable and necessary condition for understanding the original meanings of the Constitution. But few outside of the world of lawyers and legal scholars could possibly deem it sufficient. Admittedly, there are individual clauses that had a long history prior to the Constitution’s framing and that were adopted by that generation with little or no alteration, such as “habeas corpus” and “due process of law.” The monolingualism of “The Legal Turn” is no doubt sufficient for navigating original meanings when traversing that limited terrain. But what about the rest of the Constitution?

(Thanks to Mark Pulliam for the pointer).