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24 posts from July 2018


Robert Natelson on Latin in Constitutional Interpretation
Michael Ramsey

Recently published, in the Federalist Society Review (vol. 19, 2018), Robert Natelson: Why Constitutional Lawyers Need to Know Latin.  From the introduction:

The reason the Constitution’s language was so readily understandable to the founding generation but is obscure to the modern American public is that we lack much of the knowledge they possessed. Involved members of the founding generation knew, or could readily learn about, then-prevailing political practices. They were broadly aware of recent developments in America and Europe, and of the historical background of those events. They were one of the most legally sophisticated generations ever, as Edmund Burke observed in a famous parliamentary speech. Moreover, every boy (and some girls) with educational aspirations studied the Greco-Roman classics from an early age. They were imbued with classical literature, poetry, history, philosophy, fable, and myth. Central to the curriculum was the Latin language, and Latin competency also opened the doors to the scholarship of the Medieval and early-modern worlds. During the founding era, Latin was, in a very real sense, America’s second language. Despite its importance for understanding our nation’s founding and Constitution, none of this knowledge—of eighteenth century practices and law or of Latin and classical studies—is prevalent among the voting public now. It is also rare among the lawyers, law professors, and judges who interpret the Constitution for the rest of us.

Later essays in this series will discuss eighteenth century law and political practice as tools of constitutional interpretation. This essay focuses on why the Latin language and, to some extent, its associated classical studies are indispensable tools for understanding the Constitution. I do not argue that everyone should study Latin, but I do contend that one should acquire a reasonable competency in the language before purporting to offer learned commentary on the Constitution. Note that this essay focuses on the value of the language to constitutional interpretation; it does not enter the long-standing debate over the extent of Latin’s pedagogical benefits.


Eric Posner Asks: Is Judge Kavanaugh an Originalist?
Michael Ramsey

At his eponymous blog, Eric Posner: Is Brett Kavanaugh an Originalist?  From the introduction:

If there is one thing that Kavanaugh’s critics and most ardent supports agree on, it is that he is an “originalist,” someone who interprets the Constitution according to the public understanding of it at the time of ratification (and in the case of amendments, adoption).

But there is, in fact, no evidence—at least, none I can find—that Kavanaugh considers himself an originalist. At the White House, he says only “a judge must interpret the Constitution as written, informed by history and tradition and precedent”—a standard line that could be given by anyone at all. In a video, he is asked point blank about his originalism, and he simply fails to answer. Instead, he talks about interpretation of statutes (which is not what he was asked), and only at the very end says this about the Constitution: “you start with the text but there are whole bodies of precedent on all of these areas or most of all of these areas of constitutional interpretation.” Not much of answer, and certainly not a ringing endorsement of originalism.

In fact, in his writings, Kavanaugh hardly mentions originalism at all. A textualist, yes. An enthusiastic fan of Justice Scalia, yes. But also a fan of William Rehnquist, no one’s idea of an originalist.

(For people who don’t follow legal debates, a “textualist” is someone who, when interpreting statutes [Ed.:  and the Constitution], places primary weight on the normal meanings of the words [Ed.: typically, at the time they were enacted], rather than on legislative history, the purpose of the statute, public policy, etc. A textualist is not necessarily an originalist, indeed, the two ideas are in tension, as the originalist tends to fall back on constitutional purposes as reflected in the contemporary [Ed.:  I think he means "contemporaneous" here] public debate because the constitutional text is so often vague.)

I agree that Judge Kavanaugh is strongly textualist.  See this post, for example.  Given his professed admiration for Justice Scalia, I also think that means he's an original meaning textualist.  Most, though not all, textualists look for the meaning of the text at the time it was enacted, as Scalia emphasized in Reading Law (p. 78), and I'd be very surprised if Judge Kavanaugh did not agree with that proposition.  And given that, I assume he would use standard originalist materials to try to determine original meaning.  I agree with Professor Posner that it's more of a question how far he would go into historical materials to resolve ambiguities on the basis of the framers' purposes or expectations, as opposed to their use of language.  (This is also something Justice Scalia struggled with, as I've discussed).  But I would still call him an originalist if he is looking for the text's original meaning, even if he's skeptical (as Scalia was) of arguments from framers' intent.


16th Amendment Originalism? (Updated)
Michael Ramsey

At Above the Law, Elie Mystal: States Are Suing For Their SALT Deductions Back Under The 16th Amendment.  

The Republican tax bill famously capped the deductions for state and local taxes (SALT) at $10,000 for the purposes of federally taxed income.  ...

The blue states are fighting back, such as they can. A lawsuit was filed by New York Governor (for now) Andrew Cuomo against the federal government, joined by Connecticut, Maryland, and New Jersey. They argue ... [among other things]  that federal government is violating the original meaning of the Sixteenth Amendment… and I am all here for that. Blue states are making an originalist argument about the 16th Amendment and that is goddamn fascinating!

From the complaint:

36. Recognizing this structural limitation on its power to tax, the federal government has always respected the sovereign tax authority of the States by providing a deduction for all or a substantial portion of state and local taxes as part of the federal income tax. Indeed, since the federal government first exercised its income tax power in 1861, Congress has included such a deduction in every federal income tax law. Relying on this constitutional guarantee and uninterrupted practice, the States have structured their own state tax regimes around the federal SALT deduction.

37. The ratification history of the Sixteenth Amendment provides further confirmation that a deduction for all or a significant portion of state and local taxes is constitutionally required. When the States ratified the Sixteenth Amendment, they confirmed the historic limitations on the federal government’s income tax power. At the time of the amendment’s ratification, it was widely understood that, to the extent the federal government taxed income, it would provide a deduction for all or a significant portion of state and local taxes. The States—including the Plaintiff States— relied upon this understanding in making the decision to ratify the Sixteenth Amendment.

The post continues: 

This is the kind of issue that should illuminate the differences between so-called “originalists” versus “textualists.” Clearly, there’s nothing in the text of the 16th Amendment that requires the federal government to respect the SALT deduction. But if you look at the original understanding of the Amendment…

60. These public declarations about the meaning of the Sixteenth Amendment also provide insight into how Congress’s income tax power under the Sixteenth Amendment should be construed. See, e.g., New York v. United States, 505 U.S. 144, 163-66 (1992).

61. The drafters and defenders of the Sixteenth Amendment intended for the federal government’s income tax powers to be constrained by the need to accommodate the States’ sovereign tax authority.

62. When Congress first exercised its income tax power after the amendment’s ratification in 1913, Congress respected the federalism constraints promised by the amendment’s champions. Similar to prior federal income tax statutes, the first post-amendment federal income tax law—the Revenue Act of 1913—included a deduction for “all national, State, county, school, and municipal taxes paid within the year.”40

63. Under Supreme Court precedent, “[e]arly congressional enactments” of this nature “provide contemporaneous and weighty evidence of the Constitution’s meaning.” Printz, 521 U.S. at 905 (alteration and quotation marks omitted). As relevant here, the 1913 Revenue Act’s SALT deduction establishes that Congress understood that its newly minted power to impose a federal tax on incomes was subject to the same federalism limitations that had applied to every federal tax statute since the Founding.

This seems like a more interesting and substantial issue than I thought at first, and I agree about it illuminating differences between textualists and non-textualist originalists.  But I think that's why the states' argument won't have much traction among originalists.  Most modern originalists are textualists, at least for their starting point (or "textualist originalists").  As the post says, the text of the Sixteenth Amendment has no hint of such a limitation and conveys the taxing power in very broad unqualified terms.  It's possible that there was such a strong background assumption against double taxation that no one thought it needed to be written into the amendment, but that seems like it would be hard to establish.  The fact that it was "widely understood" that the federal government "would" provide a deduction does not show a constitutional obligation to do so (at least not to a textualist).  The states should have gotten it in writing -- and also they should not have given up their control over the Senate by ratifying the Seventeenth Amendment if they wanted to maintain the framers' political safeguards of federalism.  [Sadly, a conclusion against personal interest, as a California taxpayer].

UPDATE:  Ilya Somin discusses the suit at Volokh Conspiracy here.  He's even more skeptical than I am ("their legal argument ... borders on the absurd"):

The states point to various statements by framers and ratifiers of the Sixteenth Amendment indicating that the Amendment was not intended to impinge on the rights and powers of state governments. But none of these statements indicate that the federal government was required to create an exemption for state and local tax payments. The absence of such an exemption in no way diminishes states' powers to raise their income taxes as high as they want, although it might, of course, increase political resistance to high state tax rates.

Originalism (in some versions) does accept arguments based on structure and background understandings.  (I believe Professor Somin is a defender of Justice Scalia's opinion in Pintz v. United States, which relies on such arguments).  So I would not be as dismissive.  But in the end I think he's right.


Mark Kleiman on Originalism and Immigration [Updated]
Michael Ramsey

At Samefacts, Mark Kleiman (NYU Public Policy): Does the Constitution authorize immigration restriction?  From the introduction:

If, as the originalists keep reminding us, the Constitution gives the federal government only strictly limited, “enumerated” powers, what provision could be interpreted to authorize immigration restrictions, let alone the creation of a massive national police force entitled to stop people at random within 100 miles of any coast or land border and make them prove their right to be in the country?
As you can see from Art. I, Sec. 8 above, restricting immigration is clearly not one of the “enumerated powers” of the Congress, unlike – for example – passing anti-piracy laws and granting letters of marque.  More to the point, naturalization laws are among the enumerated powers, making the omission of immigration restriction stand out as a “loud silence.”
A few other provisions seemed promising, but didn’t really pan out. For example, Article 9 forbids the Congress from interfering with “migration or importation” before 1808, but that was clearly about the slave trade, and works with the anti-amendment provisions of Article V to prevent its abolition before that year.  It would be a big stretch to infer from it  a general, unenumerated power of Congress over immigration.
So: a puzzle.
And from the conclusion:
The problem for originalists here is that, in the Eighteenth Century, immigration (by contrast with the slave trade) was regarded as a boon rather than a problem. The Framers didn’t give the Congress or the President the power to restrict it simply because it didn’t occur to them that restricting it might be regarded as desirable, just as they allowed the creation of a navy, in addition to an army, but not an air force, because they couldn’t imagine aerial combat. A reasonable person might say that that was then and this is now, and that the federal government’s enumerated powers ought to be stretched to cover the contemporary situation.  But that’s exactly the view originalists hate when it comes to same-sex marriage.

[Most people seem] to be working backwards: starting with the proposition that surely there must be some power to limit immigration, and searching for something in the text that could be used to allow for that, precisely as they mock liberal justices for having done to discover a general right to reproductive freedom – overruling the police power of the states – that would have surprised the hell out of the authors of the Fifth and Fourteenth Amendments.

What’s absolutely certain is that not a single elected official who preaches originalism and “limited government” and “not legislating from the bench,” and who also supports restrictive immigration policies as a matter of economic policy (or applied racism), will be bothered for a millisecond by the fact that the Constitution as written needs to be bent all out of shape to make it confer that power on the federal government.

Plus a quote from me, but I don't really try to solve the problem.  I think originalists have some responses, but the topic has not been developed as much as it might be.

UPDATE (by Andrew Hyman):   

This brief opinion piece by Rob Natelson seems very compelling to me: The Constitution does indeed permit immigration caps as part of ‘the law of nations’.

Natelson emphasizes the Define and Punish Clause, which is not addressed at all by Mark Kleiman.  Although immigrating into the U.S. was not necessarily an offense against the law of nations circa 1787, intruding into any country against its will was indeed an offense against the law of nations circa 1787, as Natelson shows.


William Baude: Constitutional Liquidation
Michael Ramsey

William Baude (University of Chicago - Law School) has posted Constitutional Liquidation (71 Stanford Law Review (forthcoming 2019)) on SSRN.  Here is the abstract:

James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This paper attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.

Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution, but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction” – a real or imputed popular ratification.

While this paper does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.

(Via Volokh Conspiracy, where Professor Baude has some additional quotes and excerpts).

Mike Rappaport adds:  This paper was given at the 8th Annual Originalist Works in Progress Conference.  The video of the presentation, commentary and discussion is available at the Center's new youtube channel.   Readers are encouraged to subscribe to the channel.  


Christopher Sprigman on Judge Kavanaugh and Originalism
Michael Ramsey

At Just Security, Christopher Sprigman (NYU): What Judge Kavanaugh’s “Originalism” Means for the Country (via How Appealing).  Despite the title, it's really two criticisms of originalism and a prescription.  From the criticisms:

Courts striking down legislation, or thwarting the actions of democratically-elected officials, is something that happens so regularly in America that we take it for granted. But we should remember that what the courts are doing in these cases is extraordinary in a democracy. A judge is displacing the decision of a current majority in favor of some inconsistent rule put in place by people long dead. A judge is, in short, allowing the dead to govern the living.

That isn’t democratic. It’s necrocratic. And this “dead hand” problem is endemic to constitutionalism generally. All constitutions that are backed by judicial review sometimes privilege decisions made in the past, decisions that living voters never approved, over decisions made by democratic majorities today.

The question for how we govern ourselves isn’t whether this happens in a constitutional democracy. It does, and to some extent, it must. The question is how often, and on what basis. Originalist judges have shown little reluctance to override the decisions of current democratic majorities; they do so at least as often as judges who believe in a “living Constitution.” Are they doing so based on a reliable understanding of what the fixed, original meaning of the Constitution? Or are they acting out their political beliefs? Those are the vital questions.

... [after a extended discussion of D.C. v. Heller]

Originalists claim that their interpretive method is politically neutral. However, on the federal bench, originalism is a right-wing sport. That is no accident. Originalism pins us to the distant past. A past that predates both the tremendous growth in U.S. population and in the scope and power of the federal government starting with the New Deal and continuing through the Second World War and the Great Society programs. Originalism valorizes a distant past that can be weaponized to halt and even reverse the progressive transformation of society accomplished during that long era of liberal dominance.

Some right wing judges are hiding behind originalism, using it as a stalking horse for the very thing that originalism promises to prevent — partisan judging. These judges exploit originalism’s usefulness in imposing conservative policy preferences, but have no deep dedication to the method itself. You can see this in the selectivity with which some judges will either use or ignore originalism, depending on which way it points in a particular case. As Eric Segall and others have notedJustice Scalia, in particular, was known for this sort of “opportunistic originalism.” For these judges, they have the choice of either picking up originalism when it suits their favored outcome and discarding it in other important cases, or they may very well stick with originalism across cases as they know the framework will in general and on average provide the policy results they have come to believe are just.

But other originalist judges, the ones operating in good faith, are perhaps no less prone to imposing their partisan preferences in the name of the Constitution. These judges presumably tend to suffer, as all of us do, from a version of the confirmation bias that afflicts decision-making. Without systematic mechanisms in place to overcome such bias, they will often see certainty in uncertain arguments for original meaning when those arguments reinforce policy outcomes they like. An originalist judge who unconsciously aligns what the Constitution means with what he wants it to mean is behaving in a way that is altogether human. But it’s no way to run a constitutional democracy.

That originalism is a cover for conservative ideological judging is a common objection but (as I'll try to address in a separate post) not a very compelling one.  The dead hand objection, in contrast, seems to me to be among the more forceful.   (But the two objections are actually a bit in conflict: if originalism is a cover for conservative ideological judging it's not subject to the dead hand objection, and vice-versa).

The post then continues, in a possibly surprising turn: 

So what to do about Brett Kavanaugh, the conservative originalist? In the end, and barring some change in the current political situation, Kavanaugh probably gets confirmed. But this is where I hope that Americans are ready for some new thinking. The problem isn’t just the man, or his politics, or his interpretive ideology. The problem is, more deeply and more fundamentally, that our system has slid too far away from democracy, and too far down a road that leads to the rule of judges. The answer, I’d submit, is not to demand the appointment of fewer originalists, and more living constitutionalists, to the federal bench. Viewed from a certain altitude, originalism and living constitutionalism aren’t all that different. They are both ways of interpreting the Constitution that tend to expand judicial power at the expense of democracy.

The answer is to shrink the power of the federal courts over our lives, including the power of the Supreme Court. But how to do that given the systems we have inherited and the norms we have come to accept?

(There follow several suggestions of varying plausibility).

I don't know Professor Sprigman, so I assume he's a genuine and longstanding advocate of judicial restraint (meaning great reluctance for judges to intervene against the political branches).  Of course, judicial restraint is a very substantial and legitimate position in constitutional interpretation.  And Professor Sprigman is right to understand it as a rival to originalism, not as an ally.  As he says, a consequence of originalism is that acts of the political branches will be overridden, not infrequently, by judges' assessment of the Constitution's historical meaning.  And that is indeed anti-democratic to an extent.

But judicial restraint also carries devastating implications for the liberal constitutional project.  The anti-democratic argument applies in equal force to the iconic cases reaching liberal results.  I'll further assume that Professor Sprigman thinks judges should not be involved in, to pick a few examples, abortion rights, same sex marriage, the death penalty, habeas corpus rights for terrorist suspects, the exclusionary rule, Miranda warnings, and most if not all of the constitutional objections to President Trump's activities.    But I expect that his idea of "what to do about Brett Kavanaugh, the conservative originalist" --namely, push judicial restraint -- will have broader resonance among those concerned about the direction of the Court.   As judicial restraint becomes more of a talking point on the left (as I expect it will), it's important to press to see if its new advocates accept its full implications.  If not, it would seem to be "judicial restraint for thee [or rather, for Judge Kavanaugh] but not for me."


Suzanna Sherry Reviews Lawson & Seidman's "A Great Power of Attorney"
Michael Ramsey

Suzanna Sherry (Vanderbilt University - Law School) has posted The Imaginary Constitution (Georgetown Journal of Law & Public Policy, Vol. 17, forthcoming) on SSRN.  Here is the abstract: 

How many ways can conservatives spin an originalist tale to support their deregulatory, small-government vision? The answer is apparently infinite.  [Ed.: No overstatements in this review!!]  In a new book, Gary Lawson and Guy Seidman are the latest in a long line of scholars who insist that the real original meaning of the Constitution demands unwinding the regulatory state and substantially limiting the power of the federal government. They argue that the Constitution is a fiduciary instrument, specifically a power of attorney. After summarizing the book, this essay turns to three of its most important failings, each of which serves to make the book a work of politics, not history. In the end, their account is imaginative but their Constitution is imaginary.

The book is Gary Lawson & Guy Seidman, A Great Power of Attorney: Understanding the Fiduciary Constitution (Univ. of Kansas Press 2017).  Here is the book description from Amazon: 

What kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. Legal scholars Gary Lawson and Guy Seidman propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document—or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.” What follows from this particular conception of the Constitution—and is of greater importance—is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government.

In mapping out what these imperatives might mean—such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitution's beneficiaries—Lawson and Seidman offer a clearer picture of the original design for a limited government.

And comments from some people who liked it better than Professor Sherry did: 

"This book makes an important intervention into discussions about fiduciary political theory's purchase on questions of American constitutional and administrative law. I have no doubt it will be widely debated--and that it will even win over many scholars who have not yet fully appreciated the fiduciary roots of American constitutional government. Although some of Lawson and Seidman's conclusions are not ones all fiduciary political theorists must endorse or adopt, others are so elegant and incisive that they cast fresh light on subjects like the non-delegation doctrine that others have left for dead."-- Ethan J. Leib, Professor of Law, Fordham Law School

"A Great Power of Attorney is the best book written about judicial interpretation of the Constitution in my lifetime! It is must reading for anyone interested in American constitutional law or judicial review."-- Steven G. Calabresi, the Clayton J. and Henry R. Barber Professor of Law, Northwestern University


Michael Dorf on Liberal Originalism
Michael Ramsey

At Dorf on Law, Michael Dorf: Reinvigorating "Defensive Crouch Liberal Constitutionalism" Part 1: Originalism and Searches.  Key passage:

Defensive crouch liberal constitutionalism is not a trick or a ruse. It is not an effort to fool conservative justices into voting for liberal results that they actually disfavor. The justices and their clerks are much too smart for that to work. Rather, the basic idea--and it is one with which every sophisticated liberal cause lawyer now working is familiar--is to make a genuine appeal to conservative justices based on conservative values. It can sometimes work because, as Charles Fried's recent essay on the Harvard Law Review blog underscores, much of what we now code as "liberal" can also be understood to be conservative, especially when one counts adherence to precedent as manifesting Burkean conservatism (as Fried does).

Where else can liberals turn conservative arguments to our own ends? I have been, and continue to be, highly skeptical of the arguments for constitutional originalism, but I acknowledge that originalist arguments can be made for liberal no less than conservative results. That is especially true of public-meaning originalism as opposed to expected-applications originalism. Although I have argued that conservative judges and justices frequently use originalist rhetoric to cloak decisions reached on ideological grounds, I do not think that they typically do so consciously. That is, I don't think a conservative justice asks himself "I'd like to vote for the government here, so how can I concoct an originalist argument for that result?" Rather, he tries in what he regards as good faith to read the constitutional text and historical record, but because those sources are typically not decisive, he is influenced by his priors. Still, good faith at the conscious level creates an opening for originalist arguments for liberal results.

Agreed, and as I've argued here before, I think it's critical -- if originalists wants to expand originalism's role in the legal culture -- for originalism to broaden its appeal and produce some results that the political left favors.  Justice Scalia's Fourth and Sixth Amendment opinions are excellent examples.  The fact that Professor Dorf, one of the nation's leading originalism skeptics, is pursuing this idea seems very important for the future of originalism.

(At the same time, isn't there something a little troubling about his post?  The assumption seems to be that liberal results are the ultimate goal and whatever tool works best to get there is the one to use.  Of course this is the way practicing lawyers should think, but is it the right posture for scholars?  I would think that constitutional theorists should have a view about interpretive methodology that's independent of how effective it's likely to be as argument to any particular judge or set of judges.  Otherwise, there seems to be an implication that liberal constitutional theory is ultimately just about liberal results.)


Anthony Gaughan on Judge Kavanaugh and Originalism
Michael Ramsey

At The Faculty Lounge, Anthony Gaughan: A Window into Brett Kavanaugh’s Judicial Philosophy (discussing this roundtable discussion from 2011 published in the George Washington Law Review).  From the core of the post:

To a striking degree, Judge Kavanaugh’s 2011 remarks suggest that his judicial philosophy most closely resembles that of the late Justice Antonin Scalia, a frequent ally of Justice Thomas.

Although the roundtable’s topic was the importance of history in judicial interpretation, Judge Kavanaugh took a contrarian view, indicating that he does not think historical context is all that helpful to judges. During the dialogue, he pointed out that the framers were not “all of one mind” and in fact had “wildly different views.” As an example of the diverse viewpoints expressed at the Constitutional Convention, Kavanaugh noted the stark contrast between how Alexander Hamilton of New York and George Mason of Virginia viewed the proper role of the federal government.

According to Kavanaugh, the framers’ diverse and often conflicting opinions should make judges skeptical of historical evidence, even in the case of a document as renowned and influential as the Federalist Papers. As the judge explained during the roundtable:

“The point being, be careful about even The Federalist . . . point of view. That’s not the authoritative interpretation of the [Constitution’s] words. You’ve [also] got to be careful about some of the ratification debates. You’ve got to be careful about different people at the Convention itself. They had different views.”

As an aside, compare this view to the claim, discussed in a post earlier this week, that originalists must think the framers all agreed on everything.

More from Professor Gaughan:

Under Judge Kavanaugh’s approach, history has value only if it helps judges “figure out what the words meant.” But since almost every word in the Constitution resulted from some sort of compromise, history ultimately offers very little of value to judges according to Kavanaugh. But that conclusion did not trouble him at all. History, he maintained, isn't really all that necessary in any case because “the words actually tell us a lot more than we often assume. . . [T]hey’re not so complicated. It’s not mystifying to actually read this and get some meaning out of it.”

Above all, Judge Kavanaugh made clear the tremendous interpretive importance he places on the Constitution’s text:

“The text of the document is not just something that we’re supposed to look at just for interest. It’s law. It is binding law. It says in Article VI it’s the supreme law of the land, and it is binding on us. Those words in the document are binding on us in all three branches of the federal government, not just as judges, unless it’s amended.”

And further:

To the extent that the 2011 roundtable provides a window into his thinking, Judge Kavanaugh’s judicial philosophy bears all the hallmarks of Antonin Scalia’s judicial philosophy.

As Justice Scalia famously declared, “The text is the law.” Both an originalist and a textualist, Scalia insisted that courts should resolve constitutional disputes by ascertaining the original public meaning of the Constitutional text. Likewise, in statutory cases, he maintained that the courts should stick to the text and reject the use of legislative history, which he derided as the “last hope of lost interpretive causes, that St. Jude of the hagiology of statutory construction.” For example, in a 2007 case he rebuked the majority’s reliance on legislative history and announced in his dissent that “today’s decision is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.”

Kavanaugh’s 2011 remarks embrace Scalia’s interpretive approach and apply it to the Constitution’s text. Accordingly, to the extent the roundtable discussion reflects Kavanaugh’s current views, it seems likely he will build a Supreme Court voting record every bit as conservative as that of Justice Scalia, which in turn would position Kavanaugh much closer to Justice Thomas than to Chief Justice Roberts. 

Replacing Kennedy with a Scalia-type justice will produce a seismic change in the Court’s center of gravity on social issues. Justice Kennedy provided a reliably conservative vote on economic and regulatory issues, but he sided with the liberal wing on abortionsame sex marriagejuvenile sentencing, and the death penalty, using reasoning and sources that went far beyond the Constitution’s text. Kavanaugh’s laser-like focus on constitutional wording will likely place in jeopardy all of the 5-4 decisions in which Kennedy sided with the liberals. 

Although I generally agree with the analysis, I think it may overstate the Scalia/Kavanaugh rejection of history.  Scalia used history quite a lot.  What Scalia objected to (and what I suspect Judge Kavanaugh objects to) is appealing to history to speculate about the Framers' intentions (described in an abstract and malleable way), as opposed to appealing to history to resolve the meaning of ambiguous words and phrases in the Constitution.


Judge Kavanaugh
Mike Rappaport

So it was Judge Kavanaugh. I haven’t studied his opinions, but from what I know of him Kavanaugh is very smart and an originalist. As compared to the other potential nominees, Kavanaugh also had the advantage of many years on the bench. You appear to know what you are getting with Brett Kavanaugh.

One of the obvious problems for confirmation is that Kavanaugh served on Ken Starr’s staff. As Senator Mitch McConnell reportedly told President Trump, Democrats might try to delay the confirmation vote to review many thousands of pages of records from the Starr investigation. In the next couple of months, we should expect to hear quite a lot about Bill Clinton and Monica Lewinsky. Of course, some of Starr’s (and perhaps Kavanaugh’s) behavior regarding Clinton might look different these days to a lot of people who formerly opposed the Independent Counsel.

In looking over my posts over the past years, I realized that I wrote four posts about Judge Kavanaugh – two (here and here) on whether the Constitution guarantees the executive branch prosecutorial discretion and two (here and here) on Kavanaugh’s opinion holding that the removal provisions of the Consumer Protection Financial Agency were unconstitutional. That’s very likely way more than on any other lower court judge. In two of the posts, I largely praised arguments made by Judge Kavanaugh; in two, I criticized his arguments.

I agreed with Kavanaugh’s opinion holding that the Director of the Consumer Financial Protection Bureau could not be made removable only for cause. I wrote:

Of course, Supreme Court precedent has allowed removal restrictions on executive officials since at least Humphrey’s Executor.  But as Judge Kavanaugh notes, no significant Supreme Court precedents or long standing practice allows removal restrictions on single headed agencies. Instead, these restrictions have been limited to multi-member commissions. Thus, there is no clear precedent on point.

One could, of course, extend Humphrey’s Executor and other precedents to single headed agencies, but the question is whether the courts are required to do so.  It is by no means clear that they are. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Robert’s decision largely followed the type of analysis applied by the D.C. Circuit. Roberts described the removal authority of the President as flowing from the Constitution. He described the permissibility of removal restrictions as coming from precedent.  Since the removal restriction in that case was not covered by precedent, the opinion followed the original meaning.

Moreover, the D.C. Circuit’s attempt to distinguish the precedent makes sense. The court noted that the separation of powers operates to place checks on agency officials. Those could be provided by the President (when there were no removal restrictions) or by the other commission members (when there were removal restrictions). Thus, not extending the precedent to a single-headed agency made sense.

In the other posts, I criticized Kavanaugh’s claim that the President enjoys constitutional power over prosecutorial discretion. That is, I believe that the Constitution allows Congress to take away the executive branch’s prosecutorial discretion, although it is hard to do in practice. Here is what I had to say about one of Kavanaugh’s arguments:

One argument, made by Judge Kavanaugh, is that the pardon power supports such discretion:

The President may decline to prosecute certain violators of federal law just as the President may pardon certain violators of federal law. . . . In light of the President’s Article II prosecutorial discretion, Congress may not mandate that the President prosecute a certain kind of offense or offender. The logic behind the pardon power further supports that conclusion. As has been settled since the Founding, the President has absolute authority to issue a pardon at any time after an unlawful act has occurred, even before a charge or trial. So it would make little sense to think that Congress constitutionally could compel the President to prosecute certain offenses or offenders, given that the President has undisputed authority to pardon all such offenders at any time after commission of the offense.

Well, maybe, but I think the argument goes in the other direction. The pardon power and the power of prosecutorial discretion are distinct powers. That the Constitution gives one does not mean it gives another. If the President wants to protect an individual from prosecution, then he must actually exercise the pardon power.

This argument is reinforced by the fact that there was private prosecution of crimes in both England and in the United States at the time of the Constitution. Perhaps the executive could exercise the pardon in those cases, but that does not mean he had the power to exercise prosecutorial discretion.

Based on what I know, Judge Kavanaugh is a smart originalist. That should make him a first rate Justice.