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31 posts from June 2018


Two Sort-Of Originalist Outcomes
Michael Ramsey

Yesterday the Supreme Court decided, among other cases, Lucia v. SEC and South Dakota v.  Wayfair, Inc.  Neither majority opinion (by Justices Kagan and Kennedy, respectively) is originalist.  But arguably the results are.

In Lucia, the Court held that the Securities and Exchange Commission's Administrative Law Judges are officers of the United States and thus must be appointed in accordance with the appointments clause.  The majority said the outcome was required by the prior decision in Freytag v. Commissioner (1991) [aside:  I have experience with Freytag.  It's too much of a mess to require anything, although it does support the majority].  Justice Thomas concurred, joined by Justice Gorsuch, relying on Jennifer Mascott's originalist account of "officers" [congratulations to Professor Mascott]: 

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. I would resolve that question based on the original public meaning of “Officers of the United States.” To the Founders, this term encompassed all federal civil officials “‘with responsibility for an ongoing statutory duty.’” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (THOMAS, J., concurring) (slip op., at 4); Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 564 (2018) (Mascott).

The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty. See Mascott 454. “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. Based on how the Founders used it and similar terms, the phrase “of the United States” was merely a synonym for “federal,” and the word “Office[r]” carried its ordinary meaning. See id., at 471–479. The ordinary meaning of “officer” was anyone who performed a continuous public duty. See id., at 484–507; e.g., United States v. Maurice, 26 F. Cas. 1211, 1214 (No. 15,747) (CC Va. 1823) (defining officer as someone in “‘a public charge or employment’” who performed a “continuing” duty); 8 Annals of Cong. 2304–2305 (1799) (statement of Rep. Harper) (explaining that the word officer “is derived from the Latin word officium” and “includes all persons holding posts which require the performance of some public duty”). For federal officers, that duty is “established by Law”—that is, by statute. Art. II, §2, cl. 2. The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse). See Mascott 484–507. Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. See id., at 507–545. Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. See 15 U. S. C. §78d–1(a); 17 CFR §§200.14, 200.30– 9 (2017). As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.

In short, the administrative law judges of the Securities Exchange Commission are “Officers of the United States” under the original meaning of the Appointments Clause. They have “‘responsibility for an ongoing statutory duty,’” which is sufficient to resolve this case. SW General, 580 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4). Because the Court reaches the same conclusion by correctly applying Freytag, I join its opinion.

I agree.  Professor Mascott's article is very persuasive on this point.

In Wayfair, the Court held that the dormant commerce clause does not bar states from collecting taxes on sales made by out-of-state companies to in-state buyers, overruling Quill Corp.  v. North Dakota (1992) and National Bellas Hess, Inc. v. Department of Revenue of Ill. (1967).  Justice Thomas filed a brief concurrence, basically apologizing for his vote with the majority in Quill, and commenting: 

a quarter century of experience has convinced me that Bellas Hess and Quill “can no longer be rationally justified.” 504 U. S., at 333. The same is true for this Court’s entire negative Commerce Clause jurisprudence. See Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 1). Although I adhered to that jurisprudence in Quill, it is never too late to “surrende[r] former views to a better considered position.” McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring).

Justice Gorsuch also concurred briefly, observing:

... My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day. See Energy & Environment Legal Inst. v. Epel, 793 F. 3d 1169, 1171 (CA10 2015); Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___–___ (2015) (Scalia, J., dissenting) (slip op., at 1–3); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610–620 (1997) (THOMAS, J., dissenting). Today we put Bellas Hess and Quill to rest and rightly end the paradox of condemning interstate discrimination in the national economy while promoting it ourselves.

Again, I agree.  An originalist account of the dormant commerce clause generally is a challenging project.  My sometime co-author Brannon Denning has convinced me that there may be something to be said for its anti-discrimination principle.  But as Justice Gorsuch says, the Court-created Quill rule was the opposite of an anti-discrimination principle; it required states to treat out-of-state sellers better than in-state sellers (by not taxing them).

Thus both cases are part of the project of gradually bringing constitutional law back to the Constitution's original meaning.  First, both majority opinions depended on the votes of Justices Thomas and Gorsuch.  Second, Thomas and Gorsuch made clear that their votes arose from an originalist assessment.  And third, I suspect that at least some of the other Justices were influenced by the originalist foundations of the winning arguments, even if the majority opinions were more doctrinal in nature.  One can see these cases as involving what Randy Barnett has called the "gravitational force of originalism." 


Gorsuch and the Sense-Reference Distinction
Chris Green

Justice Gorsuch's opinion for the Court today in Wisconsin Central Ltd. v. United States has a nice little passage at the end distinguishing between meaning and application:

This hardly leaves us, as the dissent worries, “trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.” ... While every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world. So “money,” as used in this statute, must always mean a “medium of exchange.” But what qualifies as a “medium of exchange” may depend on the facts of the day. Take electronic transfers of paychecks. Maybe they weren’t common in 1937, but we do not doubt they would qualify today as “money remuneration” under the statute’s original public meaning. The problem with the government’s and the dissent’s position today is not that stock and stock options weren’t common in 1937, but that they were not then—and are not now—recognized as mediums of exchange. 

While the Court does not cite the case, this passage is strikingly similar, even down to the italicization of "meaning" and "application," to Euclid v. Ambler Realty from 1926 (analyzed, e.g., here at 574-76):

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.... [A] degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles...


Epstein on Self Pardons
Mike Rappaport

Note: I posted this on the Liberty Law Blog about 10 days ago, before much of the subsequent commentary here and elsewhere on the issue, but I thought I would post here anyway.  

In the Wall Street Journal, eminent law professor Richard Epstein, who is certainly not a Trump partisan, argues that the President can pardon himself. While Epstein strongly believes that the President can pardon himself, I am not sure what the answer is – but based on the existing evidence, I lean towards the view that the President cannot do so. Yet, I do agree with Epstein that an attempted self pardon by President Trump (or any President) – whether it turns out to be deemed legal or not by the courts – is not an impeachable offense.

Epstein’s first and primary argument is textual. The Pardon Clause provides the President with the power to “grant . . . pardons for offenses against the United States.” It does not say anything about the President not being able to pardon himself. That is a powerful argument, and were the language entirely clear, I would agree with Epstein that that settles the matter. But the language is not clear.

It is not clear what the power to pardon means. One possibility is that it simply means the power to grant anyone absolution from the effects of being convicted of a crime. But another possibility is that the power refers to the King of England’s power under English law. And it is possible that King’s power did not extend to pardoning himself.

We do not have direct evidence on the King’s self pardon power. But no King ever pardoned himself. The reason appears to be that, under English law, the King could not be touched by legal process and therefore he did not need the power to pardon himself. But simply because he did not need the power (although the President might) does not mean that the King had the power. So the question is uncertain.

To my mind, this creates something of an ambiguity about the meaning of the power to pardon. It could have included self pardons, but it might not have. Since the term is ambiguous, Epstein’s textual argument does not answer the question.

How, then, should we resolve this ambiguity? One way is to consider the principles of the law that existed at the time. One such principle was that a person should not be a judge in his own case.  If that is the case, then the President does not have the power to pardon himself, because it would involve judging his own case.

Epstein’s acknowledges this argument, but responds that the power to pardon does not involve judging. True enough, but not really that significant. Pardoning a person is very similar to judging a person, and it is quite likely that the Framers’ generation would have understood the principle against judging yourself also to apply to pardoning yourself. Thus, I lean towards resolving the ambiguity against the self pardoning power.

But I do agree with Epstein about one thing. If President Trump does choose to pardon himself, that is not an impeachable offense. The answer to the self pardon issue is not clear and asserting a contested power is usually not impeachable. Part of the reason President Andrew Johnson was not convicted during his impeachment trial was the belief that he was challenging an unresolved constitutional issue. The same could be said of President Trump.

Of course, that a self pardon is not an impeachable offense does not mean that the House of Representatives could not conclude that the actions for which the President pardoned himself constituted an impeachable offense. It is entirely appropriate for the Congress to use the impeachment power to remove a President who had behaved improperly. But pardoning himself – by itself – is not an improper action.


Over at the Originalism Blog, Mike Ramsey discusses the arguments of Eric Muller and Andrew Hyman that the power to grant pardons suggests that a self pardon is not permissible because one does not grant things to oneself.  Muller uses an analysis of word usage from the 18th century to conclude that while “give myself” was a not uncommon usage, “grant myself” was an uncommon usage.

This is an interesting argument.  If one accept’s Muller’s claim, it adds to the case against self pardons.  It is true that the idea that one cannot grant something to oneself is a pretty subtle way to convey an idea.  But it still counts.  More importantly, I think, is that it may reinforce the argument about the King not having the self pardon power under English law.  The Constitution may have used the word grant because it was thought that the pardon power did not cover self pardons.  Thus, the “grant” argument and the “King’s power” may reinforce one another.

That said, I would like to see the grant argument explored further.  There are important methodological questions involved in these types of usage arguments.  If some people used the phrase “grant myself” but it was uncommon, which way does that cut?  If people sometimes used the term that way, that seems suggest that the term did not imply that grants could not be made to oneself.  This would be especially the case if there were other reasons why the usage was uncommon.

Timbs v. Indiana
Andrew Hyman

Co-blogger Chris Green is correct that substantive due process is not a valid basis for incorporating the Excessive Fines Clause against the states, and he is also correct that using the Privileges or Immunities Clause (PIC) would be a valid way to do it.  But getting judges to use PIC instead of substantive due process would be very difficult by being so ambiguous about what PIC means.

Chris Green suggests for SCOTUS to acknowledge that one of the four most plausible interpretations of PIC is that it protects “morally-genuine rights.”   In my view, such an interpretation is implausible as an original matter, and dangerously so because it would basically authorize the Court majority to substitute its sense of morality in place of the good (or bad) sense of hundreds of millions of voters and legislators regarding every issue that the Court majority believes is too important for the American people to deal with.  Moreover, the strategy of being ambiguous about the meaning and scope of PIC did not work out well in McDonald v. Chicago, and it probably would not work out well in Timbs v. Indiana.

Here are the four most plausible interpretations of what PIC protects per Chris Green: “(a) rights in the Bill of Rights or elsewhere in the text of the federal constitution as limits on the federal government, (b) rights prevalent in 1868, when the Fourteenth Amendment was adopted, (c) morally-genuine rights, and (d) rights prevalent today, at the time we are applying the Clause.”  In my view, (b), (c), and (d) are all much less plausible than (e): longstanding fundamental rights of U.S. citizens that federal law has protected throughout federal jurisdiction for many generations including today.  This interpretation (e) parallels the very longstanding, correct, and prevalent understanding of the Comity Clause in Article IV (also called the Privileges and Immunities Clause); the Comity Clause extends rights that are already recognized but only if those rights have been enjoyed by citizens during many preceding generations.  This understanding of the Comity Clause is a reasonable reading of the text of that Clause, consistent with the famous reading by Justice Washington upon whom the 39th Congress heavily relied in 1866, and PIC can be read in a parallel way.  

I have some uncertainty as between (a) and (e), but they are both way more plausible than (b), (c), or (d).  After all, (b) and (c) do not require prevalence today, (c) and (d) do not require any long-term prevalence, and none of (b), (c), or (d) focus on prevalence in federal rather than state law even though the language of PIC plainly focuses on rights emanating from federal rather than state citizenship.

Telling the Court that PIC means either (a) or (e) would cut the ambiguity in half.   It would thus reduce the Court’s trepidation, and enhance the chances that the presently-defunct PIC will be resuscitated.

MICHAEL RAMSEY ADDS:  More on Timbs from Ilya Somin at Volokh Conspiracy, here.

Glenn Chappell: The Historical Case for Constitutional 'Concepts'
Michael Ramsey

Glenn Chappell (Law Clerk, United States Court of Appeals for the Eleventh Circuit; Duke JD '17) has posted The Historical Case for Constitutional 'Concepts' on SSRN.  Here is the abstract: 

The concepts/conceptions dichotomy is prominent in both communication theory and the field of constitutional interpretation. It is most prominently illustrated by the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. Those who hold the “concepts” view believe that the Constitution’s language directs the reader to objective moral concepts only; hence, its legal content does not contain any particular person’s or group of persons’ conceptions of those concepts. Thus, under this view, the judge’s task is mostly analytical: he must attempt to analyze the concepts to ascertain their defining criteria and develop applicational criteria from that analysis. 

Through a focused study of the interpretive methods of William Cushing, James Madison, and lawmakers in the Virginia House of Delegates, this Article demonstrates that this debate has existed since at least the founding era, and that the above-named founding-era authorities held a conceptual view of the Constitution. It then reflects upon their interpretations to reveal that they used the Constitution’s text, structure, and moral authority to apply its concepts to the cases before them. Finally, this Article sets forth a preliminary sketch of the conceptual approach’s normative claim. It concludes that the conceptual approach taken by these authorities better respects the constitutional text, the Rule of Law, and the ideal of objectivity in law than those that seek to derive legal content from the conceptions of past actors.

Via Larry Solum at Legal Theory Blog, who has a comment beginning: "Highly recommended.  This article is must reading for anyone interested in the use of the concept-conception distinction in constitutional theory.  My reading of the evidence presented by Chappell is a bit different than his. ..."


Unconstitutional Constitutional Amendments
Mike Rappaport

Throughout the world, constitutional courts have asserted ever increasing powers. One of the most significant areas involves the claimed judicial power to declare otherwise perfectly constitutional amendments to be unconstitutional, because the judges believe they are not in accord with constitutional norms. This recent article describes the issue:

Courts around the world—from Bangladesh to Belize, India to Peru, Colombia to Taiwan— have either asserted or exercised the power to invalidate a constitutional amendment. Courts have drawn from textually-entrenched rules and extra-constitutional norms to declare that procedurally perfect amendments are nonetheless substantively void. Scholars have in recent years taken a keen interest in this phenomenon, producing a burgeoning literature in public law seeking both to explain and justify the judicial doctrine of unconstitutional constitutional amendment. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule. There are relatively few exceptions to the global chorus of voices in support of the extraordinary judicial power to invalidate constitutional amendments. The dearth of contrary views reflects the normalization of the phenomenon Ran Hirschl has identified as the “judicialization of mega-politics,” a now-common phrase referring to the most important matters of political significance that constitute, define and divide polities—and that are now often adjudicated by courts. National courts today decide a host of decidedly political questions: the winner of presidential elections, the legitimacy of political parties, and the self-determination of a people. Against this backdrop, invalidating a constitutional amendment is just par for the course [emphasis added].

Different constitutional systems throughout the world follow different principles – both as to judicial implementation and as to their framing. (For the argument that seemingly nonoriginalist methods in some foreign constitutions might actually be consistent with originalism, see here.) But to understand how outrageous such “unconstitutional” constitutional amendments might be under at least certain systems, let’s focus on the U.S.

The U.S. Constitution does prohibit certain constitutional amendments. For example, if an amendment proposed by Congress does not receive two-thirds of each house of Congress or is not ratified by three-quarters of the states, then it is invalid. Apart from such procedural infirmities, an amendment might be deemed substantively unconstitutional if it deprived a state of its equal voting rights in the Senate without its consent (which is explicitly protected by Article V of the Constitution).

But let’s imagine that an amendment passed that complied with the textual provisions of the Constitution, but a court declared it unconstitutional as inconsistent with the “underlying principles” of the Constitution or its design.  For example, imagine that congressional term limits were enacted, but the Supreme Court said that it was unconstitutional because it was inconsistent with the democratic principles of the Constitution.

Or imagine that the Democrats enacted an amendment to overturn Citizens United, but then the Supreme Court declared it unconstitutional on the ground that it was inconsistent with the First Amendment. This might seem like a strange position for liberal nonoriginalists, but liberal law professors have over the years argued that amendments inconsistent with the First Amendment might be unconstitutional – and thus the only thing strange here is that a traditional liberal position would now be used to combat a liberal initiative.

In a future post, I will discuss the harm that such extra constitutional actions can have on a constitution.

Evan Bernick: Envisioning Administrative Procedure Act Originalism
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Envisioning Administrative Procedure Act Originalism (Administrative Law Review, Vol. 70, No. 4, 2018) on SSRN.  Here is the abstract:

Much of our administrative law is governed by judicially-created “common law” doctrines that seem untethered to either the text or the history of the Administrative Procedure Act of 1946. In recent years, scholars have produced a number of articles questioning the consistency of long-settled administrative common-law doctrines and agency practices with the APA’s original meaning, and Congress is presently considering legislation that is designed to abolish common-law doctrines that require judicial deference to agencies. Because efforts to “turn back the clock” to 1946 could have a wide-ranging impact on administrative law doctrine, the regulatory activity that is governed by that doctrine, and the lives of Americans whose daily affairs are affected by that regulatory activity in countless ways, this turn towards “APA originalism” merits careful attention.

This Article considers what a full-fledged movement to restore a lost administrative Constitution might amount to in theory and practice. It constructs a provisional originalist methodology for interpreting the APA and considers some of the doctrinal implications of putting that methodology into institutional practice, evaluating several important administrative common-law doctrines to determine whether they can be squared with the original APA: “hard-look” arbitrariness review; “Chevron deference” to reasonable agency interpretations of ambiguous statutory language, and “Auer deference” to reasonable agency interpretations of ambiguous regulatory language; and the “logical outgrowth” rule. Finally, it sketches the terms of the normative debate over whether APA originalism ought to be adopted by judges and considers the prospects of that adoption actually taking place.

UPDATE:  Larry Solum at Legal Theory Blog says: "Highly recommended.  Download it while it's hot!"


Timbs and the Privileges or Immunities Clause
Chris Green

Yesterday the Supreme Court granted certiorari in Timbs v. Indiana, a case asking "[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under
the Fourteenth Amendment." Unlike the Court's last incorporation case, McDonald v. Chicago, the petitioners did not separate out the Fourteenth Amendment's clauses in the question presented, so the Court's failure to rewrite the question presented in terms of only the Due Process Clause did not make waves. But there is reason to think that the case may feature significant discussion of the Privileges or Immunities Clause, rather than merely due process. Timbs and his Land Rover are represented by the Institute for Justice, which advocated a Privileges or Immunities Clause revival in McDonald. Further, the Timbs petition included a brief ode to the "dignity and glory of American citizenship" from Justice Harlan's Plessy dissent. 

Most importantly, there are several compelling reasons--reasons beyond a general opposition to due substance--to think the Due Process Clause does not ban excessive fines (or excessive punishments generally). 

Continue reading "Timbs and the Privileges or Immunities Clause
Chris Green" »

Michael Dorf on Originalism's Bait and Switch
Michael Ramsey

As Justia, Michael Dorf:  Originalism, the Contracts Clause, and the Sveen Case.  It begins: 

On Monday evening, I had the pleasure to debate Georgetown Law Professor Randy Barnett on the question whether “the U.S. Constitution should be interpreted and applied according to the original meaning communicated to the public by the words of the text.” Professor Barnett said yes; I said no. Actually, that’s not quite right. At least as I experienced the debate, Professor Barnett said “yes, but,” whereas I said “so what?”

Allow me to explain with an extraordinarily abbreviated history of the last century of American constitutional jurisprudence, followed by an illustration drawn from a case the Supreme Court decided this week.

Here is the key part of that history:

Bork’s answer [to problems of finding the framers' intent] was of a piece with a general shift that has been ongoing now for three decades and was evident in my debate with Professor Barnett: Self-styled originalists abandoned original intent in favor of what came to be known as “original public meaning.” In this view, even if the vast majority of people who proposed and ratified the Fourteenth Amendment did not intend or expect that it would invalidate de jure racial segregation, that result is required by the meaning of the amendment’s language.

Yet once one allows that a constitutional provision can have profoundly unexpected implications, it is hard to see how originalism differs from its supposed rival, living Constitutionalism. And indeed, not long ago Yale Law Professor Jack Balkin wrote a book provocatively titled Living Originalism, in which he argued—without intended irony—that public-meaning originalism and living Constitutionalism are merely opposite sides of the same coin. If so, however, then originalism would seem to invite the old critique of judicial activism.

To be sure, some originalists have tried to keep the likes of Professor Balkin out of their club, but it is hardly clear that their own versions of originalism are any more determinate than his.

Consider Professor Barnett. He is a libertarian who generally (albeit not always) sees libertarianism in the original meaning of the Constitution. Yet that looks more like projection than history or lexicography. As I pointed out in our debate, and as scholars have explored in depth, the original meaning of freedom of speech (in the First Amendment) and the limitations on the power of eminent domain (in the Fifth Amendment) were much narrower than their contemporary meanings, because libertarianism as we know it today developed after the Founding period, which was better characterized by what we would now call civic republicanism. And if one wants to say that the People who ratified the Constitution and Bill of Rights only gave effect to very broad principles, which can be given libertarian content regardless of the framers’ and ratifiers’ subjective intentions and expectations, then one has joined Balkin in admitting that the originalism emperor has no clothes.

And here is the alleged bait and switch:

As I wrote in a 2012 essay in the Harvard Law Review, Professor Barnett and like-minded scholars “make originalism respectable by answering objections leveled at ‘expectations-based originalism’—but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers’ and ratifiers’ expected applications in considering concrete cases.” Justice Gorsuch’s solo dissent from Monday’s ruling in Sveen v. Melin provides a brand new illustration of this kind of bait and switch.


In his dissent, Justice Gorsuch took issue with the substantial-impairment test [in contracts clause analysis] on the ground that it “seems hard to square with the Constitution’s original public meaning.” Yet despite invoking original public meaning, his historical analysis relied on the old discredited form of intentions-and-expectations originalism. Justice Gorsuch cited a statement made by James Madison at the Constitutional Convention as well as the response Madison gave in public debate to the charge by Antifederalists that the Contracts Clause would forbid valuable legislation; on the contrary, Madison claimed, it would give valuable protection to liberty and property. Notably, Justice Gorsuch did not say anything specifically about what any of the words of the Contracts Clause meant in 1789; his argument was entirely about what the framers and ratifiers intended and expected.

And, after noting that Justice Gorsuch also made a textual argument, a further key point:

Whatever the merits of the textual argument offered by Justice Gorsuch, note, crucially, that nothing about it relies on any distinctively original meaning. It is as true today as it was in 1789 that the phrase “any . . . law impairing the obligation of contracts” by its terms appears to apply to all impairments rather than only to substantial impairments. Justice Gorsuch might have as accurately said that the substantial-impairment test is hard to square with the text of the Contracts Clause as with its original public meaning.

That elision points to one further bit of legerdemain employed by originalists. There has been virtually no relevant “semantic drift”—that is, changes in the meaning of words and phrases—since the Founding. Reading The Federalist Papers or the Constitution is nothing like reading Chaucer’s Canterbury Tales in the original Middle English. Yet self-styled originalists often write as though a vast linguistic gulf separates us from the Founding generation.

If there are virtually no practical differences between the Constitution’s original public meaning and its contemporary meaning, why bother resisting original public meaning? Once again, we should do so to prevent the originalist bait and switch. When originalists with power—which is to say originalist judges and justices—go looking for the original public meaning of the Constitution, they typically retrieve the framers’ and ratifiers’ intentions and expectations.

(Thanks to Mark Pulliam for the pointer).

As usual, Professor Dorf offers important and insightful criticism.  Much could be said in response.  I'll note briefly where I think the most promising responses might go.

On the first point, I would say that the difference between original intent originalism and original meaning originalism is not as great as he supposes (and, in fairness, it may be true that some originalist theorists have oversold the difference).  The central difference is the ultimate objective: to find the subjective intent versus to find the objective meaning.  But changing the ultimate objective from the former to the latter (as Justice Scalia encouraged in his famous speech on the matter) does not mean that intent (or expectations) become irrelevant.  Where the text is ambiguous, it's helpful to know what was generally on the minds of people of the time -- the framers and ratifiers, but also other opinion leaders. For this reason, almost universally in originalist scholarship addressed to a particular clause or issue, there is significant exploration of founding-ear materials.  (This includes Professor Barnett's scholarship).  That's because context is important to meaning.  Very few originalists think that one can find meaning without context, and the inquiry into founding-era commentary is a way (though not the only way) to provide context.  But the intent (or rather the objectives and expectations) one finds in this context is neither decisive nor essential, because the ultimate inquiry is the meaning of the text.

On the second point, I think there is more linguistic drift than Professor Dorf acknowledges, although surely it is not as great as he characterizes originalists as believing.  Typically (though not always) the issue is ambiguity arising from context: a word may have different meanings depending on its context, so the issue is not so much that an entirely new meaning has arising as it is that one must choose between meanings.  For example, in the Sveen case the issue is whether "any" in the contacts clause is to be read literally to mean any impairment or more loosely to mean any substantial impairment.  In thinking about this question, it's relevant (as Justice Gorsuch said) that key framers seemed to think that the protection was a very important one.  The context is that people in the founding era were very worried about state impairments of contracts.  Thus it's plausible to believe that the clause was understood as having its literal meaning.

I agree that there's not much daylight between the original meaning and the modern meaning in this example.  But one can imagine others where the ambiguity is much greater -- for example, the ambiguity in "declare war" or (to use an example recently discussed on this blog) "faithfully executed."  Even though the meanings of the individual words have not changed much (in a Chaucer-to-today sense), the clauses are ambiguous without attention to their context, and part of that context is the way the framers and ratifiers appeared to understand them.


Even More on Presidential Self-Pardons (Update: with Comments by David Weisberg)
Michael Ramsey

At The Faculty Lounge, Eric Muller responds to this Originalism Blog guest post by Michael McConnell.  Professor Muller begins:

Not long ago I put up a post here noting the extreme rarity of the reflexive use of the verb "to grant," both in the 18th century and now.  (This in the context of whether the president can "grant" a pardon to himself.)  I contrasted the verb "to grant" with the verb "to give," which does have a common reflexive usage.  I believe we'd all agree, for example, that President Trump can "give himself" credit.  (In fact, I think I've even seen him do it!)  The verb "to grant," as I understand its meaning, operates differently. 

Michael McConnell makes short work of my argument, observing that a person can "grant" property to himself as a trustee to hold in trust for certain purposes.

I'm not sure that the example does the work for him that he believes it does.  My point is that the verb "to grant" connotes a transfer from an entity to another that has no claim of right to the thing granted.  Note that McConnell's example involves a a grantor's grant of something to himself "as a trustee."  That's significant, isn't it?  There are two different legally recognized entities here that play distinct roles -- a grantor and a trustee.  There remains here the one-entity-to-a-different-entity sense.  The grantor isn't really giving the thing to himself, the grantor.  He's giving something to a different entity, a trustee, who in this case happens also to be the same person who's playing the role of grantor.

But this obscures the larger and more important point that is captured in the Hunter's Lessee quote atop this post.  The inquiry into original meaning is not an inquiry into original rare-and-odd-but-still-conceivable meaning.  It's an inquiry into original natural and obvious meaning.  So even if it's true that one can locate rare scenarios in which a grant can go from the grantor to the grantor, all this means is that if we could sit down with the ordinary person in 1789, we would have to go on at some length about a unique and unusual sense of a word, and the 1789 person would listen, cock his head, look skeptical, and then maybe finally come around to saying, "ohhhhhhh, I see what you mean -- you're using "grant" in that specific and rare sense, aren't you?  OK then."

Surely that can't be how the work of original meaning gets done, can it?

At Take Care Blog, Andrew Kent, Ethan Leib, and Jed Shugerman have posted Self-Pardons, Constitutional History, and Article II (responding to Professor McConnell's earlier Washington Post essay, and also an essay by Richard Epstein).  It begins:

In the aftermath of President Trump tweeting last week that "I have the absolute right to PARDON myself," two of this country's most prominent conservative legal academics published defenses of the president's ability to self-pardon. Michael McConnell of Stanford argued in the Washington Post that the Constitution's drafters specifically contemplated and approved presidential self-pardons, while pointing to impeachment as the sole remedy for abuse of the pardon power. Richard Epstein of NYU wrote in the Wall Street Journal that the president's power to pardon is unlimited, except that misuse of the pardon power may subject him to impeachment in Congress. These views are not correct readings of our Constitution.

On the McConnell essay, the post argues:

McConnell does not closely analyze the text of the Constitution, but rather points to an episode at the 1787 Philadelphia Convention, which he reads as showing that the Framers of the Constitution approved of presidential self-pardons.

Yet the notes from the Philadelphia Convention are well known to be incomplete and imprecise – and are not always a reliable source for divining definitive interpretations of the Constitution. The proceedings were held in secret, and for several decades little information about what had transpired was public. Most importantly, the secret intentions of the drafters are not what made the Constitution our supreme law. As Chief Justice John Marshall famously wrote, when the proposed Constitution was released, it "was a mere proposal, without obligation, or pretensions to it." The people of the states met in conventions to debate whether to adopt the Constitution. "From these conventions," Marshall wrote, "the constitution derives its whole authority." That is why the most plausible and widely-accepted version of originalist constitutional interpretation looks not to the intentions of the drafters at Philadelphia but at the objective meaning that the Constitution's words would have conveyed to the American public at the time of ratification. 

I just want to pause here and note that the post's lead criticism of Professor McConnell is not that he's an originalist , but that he's doing originalism wrong.

The post continues:

But even if the intentions held by delegates at Philadelphia govern, McConnell misreads the extant records and overlooks how later debates during ratification clarified the discussion at Philadelphia. ... [Close analysis of the Convention records follows] ... Thus a fuller look at the historical record suggests that McConnell’s interpretation of the Philadelphia debate is unlikely.

Turning to Professor Epstein's arguments:

Professor Epstein, for his part, does analyze the text of Article II, but he errs in his reading of it. Article II of the Constitution vests "[t]he executive power" in the President, enjoins him or her to "take care that the laws be faithfully executed," and requires that the President take a special oath, swearing that he or she shall "faithfully execute the office of President of the United States." In addition, Article II authorizes the President "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Epstein supposes that the pardon power is unconstrained by the President’s Article II obligations of fidelity, and asserts that self-pardoning would be permissible.

We recently helped write a public letter to the President's lawyers, signed by a number of legal academics, which interpreted Article II in the context of the question whether the President has—as some of his defenders like Harvard's Alan Dershowitz have argued—a constitutional immunity to obstruct justice. As we explained there and in a related scholarly paper, when the Founders defined the Presidency as an office bound and restricted by overarching duties of "care" and "faithful[ness]" to the Constitution and laws of the United States, they were invoking well-known limitations on public officers as fiduciaries. In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions. The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty-bound and oath-bound to act with faithfulness to the law and the people, not to his own selfish interests. 

As with prior discussions of this and related topics, I want to emphasize the the extent to which these are all orignialist arguments.  Originalism is completely dominating the debate over self-pardons and, more broadly, the debate over the President's control over prosecutions.  My main interest here (since I think it quite unlikely that the President will pardon himself) is what this says more broadly about the debate over originalism.

DAVID WEISBERG ADDS:  In response to Eric Muller’s latest blog post on the pardon power:  Suppose a contract were drafted today to settle the rights and obligations of many people (collectively designated in the contract as “the Parties”) with regard to several valuable items, including a certain prize (designated as “the Prize.”)  Consider these two possible contractual provisions:

(1) “Party A shall have power to grant the Prize to any of the Parties.”
(2) “Party A shall have power to grant the Prize to any of the Parties, other than himself.”
Does anyone believe that today, in 2018, a court would decide, based on the “natural and obvious meaning” (to use Muller’s terminology) of “to grant,” that provisions (1) and (2) are identical in contractual effect?  I would think not.
 If I’m correct, then when after adoption of the Constitution did the meaning of “to grant” change in such a way that, although it used to be that one could not properly speak of granting something to oneself (except perhaps in very unique, unusual circumstances), today one can grant something to oneself?  When, over the last 230 years, did that change in meaning occur, and why isn’t the change noted in authoritative etymological dictionaries?