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23 posts from August 2018

08/19/2018

Michael Stern on Impeachment and Self-Pardons
Michael Ramsey

At Point of Order, Michael Stern: Pardons, Self-Pardons and Impeachment, Parts 1-4 (I missed this series from last month but it still seems relevant).

Part 1 (with some discussion of posts on this blog relating to self-pardons).

Part 2 (focusing on the idea of impeachment for abuses of the power, which is really the key to this series; here is an excerpt)

There can be little doubt that impeachment will lie for abuse of the pardon power. See In re Aiken County, 725 F.3d 255, 266 (D.C. Cir. 2013) (Kavanaugh, J.) (“The remedy for Presidential abuses of the power to pardon . . . [is] ultimately impeachment in cases of extreme abuse.”). As much was suggested by the Randolph/Wilson colloquy cited in my prior post, in which Wilson said that a president who corruptly pardoned his co-conspirators would be subject to impeachment, although it is unclear whether he meant impeachment for the pardons, the underlying crime, or both.

Randolph’s concerns about potential abuse of the pardon power were echoed by George Mason at the Virginia ratifying convention. Mason said “the President ought not have the power of pardoning, because he may frequently pardon crimes which were advised by himself . . . . If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” 3 Elliot’s Debates 497. To this, Madison replied:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty . . . .

Id. at 498. ...

Part 3 (discussing President Trump's pardons)

Part 4 (assessing whether the House should open an impeachment investigation).

RELATED:  More from Michael Stokes Paulsen, at Liberty Law Blog, on impeachment: Alexander Hamilton, The Federalist, and the Power of Impeachment and The Ratification-Era Understanding of “High Crimes and Misdemeanors”.  From the introduction to the latter:

Yesterday, I set forth Alexander Hamilton’s treatment of the scope of the constitutional power of impeachment in The Federalist: the broad range of offenses embraced by that power (including “political” offenses against the system of government, injuries done “immediately to the society itself,” “encroachments” on the powers and prerogatives of other branches, and “usurpations” of authority or of the Constitution); the fact that impeachment proceedings “can never be tied down by such strict rules” in the “delineation of the offense” by the House of Representatives or “in the construction of it” by the Senate; the fact that the power of impeachment implied “awful discretion” in these matters; and the crisp distinction between impeachment proceedings and the operation of the criminal law – even though the misconduct of a civil officer sometimes might render him subject to both.

The Federalist essays touching on the impeachment power – Federalist 65 and 66, concerning the power generally, and Federalist 79 and 81 addressing impeachment as a check on misuse of judicial power specifically – furnish powerful historical evidence in support of a broad understanding of the power of impeachment, and the sweep of the phrase “high Crimes and Misdemeanors.”

But these were not just Hamilton’s views. In this post, I turn to other ratification-era debates, and some early post-ratification statements and commentary, all of which support Hamilton’s core conclusions. Significantly, nobody at the time questioned Hamilton’s assertions concerning the sweeping breadth of the power of impeachment. To the contrary, all prominent statements concerning impeachment in the state debates over ratification of the Constitution appear to be in essential agreement with Hamilton on these points.

This is mildly stunning; the historical evidence rarely lines up in this manner. There may have been some disagreement over whether the impeachment power should be so broad; and some questioned whether it was right to vest so broad a power in the Senate specifically. (That had been a concern Madison expressed at the Constitutional Convention.) But no one ever doubted – all in the ratification debates consistently affirmed – that the impeachment standard itself conferred broad discretion in the house and Senate, reaching a broad variety of potential types of misconduct including “political” misconduct not prohibited by ordinary criminal law. The illustrations employed in the ratification debates of impeachable misconduct all support a broad understanding of the term “high Crimes and Misdemeanors.” So too do important constitutional debates in the First Congress – early post-enactment, roughly contemporaneous evidence of the generally understood linguistic meaning of the impeachment standard.

08/18/2018

Jud Campbell: The Invention of First Amendment Federalism
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted The Invention of First Amendment Federalism (Texas Law Review, forthcoming) on SSRN.  Here is the abstract:

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding-Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule. 

Mostly ignored in the literature, and never analyzed as a central feature of the opposition to the Sedition Act, the problem of partisan jury selection drove the shift in Republican thought. As originally understood, speech and press freedoms put juries primarily in charge of administering governmental limitations of expression. Following the development of political parties, however, Republicans perceived that the guarantee of a jury trial was nearly meaningless when federal jurors were hand selected by partisan federal marshals. In response, Republicans promoted a new reading of the First Amendment. Deeply suspicious of abuse by federal judges and juries, Republicans insisted that the First Amendment deprived the federal government of any authority to regulate speech or the press even though analogous speech and press clauses at the state level left considerable room for states to regulate harmful expression. 

This episode reveals a latent tension in eighteenth-century constitutionalism. Some threads of Founding-Era thought embraced the notion of a document with fixed meaning, but other features encouraged constitutional evolution as conditions changed. Rather than seeking a principled resolution of this tension, however, Republicans developed entirely new arguments and then cast them in historical terms. The invention of First Amendment federalism also raises the possibility of a different path for modern speech doctrine, guided less by a particular theory of why speech is special and more by practical concerns about political entrenchment and politically biased enforcement.

08/17/2018

The "Entry Fiction" and the Citizenship Clause
Andrew Hyman

The Citizenship Clause of the Fourteenth Amendment says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  In a recent blog post, I wrote that the Citizenship Clause perhaps withholds birthright citizenship in the case of parents who have immigrated illegally, based either upon the phrase "subject to the jurisdiction thereof" or alternatively based upon the phrase "born…in the United States."  The former rationale is well known, but the latter is not.  Of course, Congress is free to grant citizenship at birth to any children born inside or outside the United States whom Congress believes are justly deserving of U.S. citizenship, but I do not think the Citizenship Clause grants that citizenship automatically in the situation of parents who have immigrated illegally.

In a section titled "The Meaning of ‘[B]orn ... in the United States,’" Allison Hartry wrote in her 2012 law review article that, "Although the definition at first may appear obvious, confusion over the last century suggests that this issue, left unaddressed by the Supreme Court in Wong Kim Ark, is at least as contentious as the definition of 'jurisdiction.'"  I agree, and already quoted some of those twentieth-century cases.

Looking back all the way to 1866, the Citizenship Clause was added by the U.S. Senate after the House had already approved the rest of the Fourteenth Amendment.  The person who first proposed the language that would become the Citizenship Clause was Senator Benjamin Wade, and his proposal was to replace the words "citizens of the United States" in the Privileges or Immunities Clause with the words "persons born in the United States or naturalized by the laws thereof…."  Sen. Jacob Howard then proposed a Citizenship Clause as a separate sentence at the beginning of the amendment, and Sen. William Fessenden finalized Howard’s language by inserting two words that Wade had already suggested: "or naturalized."

Wade was an interesting character.  Because of his seniority, he would have become President of the United States in 1868 if President Andrew Johnson had been convicted by the Senate (Johnson escaped that fate by a single vote in the Senate and so Wade came as close to the presidency one could imagine).  Anyway, Wade apparently believed in 1866 that the language he proposed relating to citizenship would exclude newborn children of ambassadors, because of the legal fiction that diplomats are located "near" the United States instead of "in" the United States.  Wade explained that "[i]t would make no difference in the result" if further language were added to his proposal, which he regarded as "beyond all doubt and all cavil."  Wade’s comments illustrate that his phrase "born in the United States" was not as simple a concept as it might initially seem, and his comments support the idea that this phrase referred to being legally in the United States, and not just physically in the United States.

As of 1866, the so-called "entry fiction" had not often been applied outside the diplomatic context.  But, there is evidence that imported goods were sometimes subjected to such treatment, when they were examined for admissibility at ports of entry.  One example of this was in Britain, where a provisional examination of goods was performed after those goods were unloaded from ships, but those goods were not "deemed to be landed, or delivered out of the ship" unless and until they passed the provisional examination.  This British practice was known and understood in the United States during the mid-nineteenth century, and was later replicated in United States immigration law once the federal government took over immigration regulation from the states in the 1870s and 1880s.  

If people who are being examined for eligibility to enter the United States are not yet "in" the United States, it is difficult to see how someone who has not yet been examined for eligibility could be "in" the United States.  But suppose that some states in 1866 treated immigrants as being lawfully “within” the state during proceedings to determine if they could continue to be lawfully within the state; that would still be consistent with the notion that “in the United States” meant being legally as well as physically in the United States.

Immigrants who have not yet been officially granted admission have typically been considered under U.S. law to be at the limit of U.S. jurisdiction, and likewise people who have immigrated illegally can reasonably be understood as subject to U.S. jurisdiction to the same extent as any other temporary visitor to the U.S., and also understood as being within a U.S. state’s jurisdictional reach, but nevertheless understood as not being legally inside either the U.S. or any state.  And that is exactly how they have usually been understood.

08/16/2018

Nicholas Bagley & Abbe Gluck on the President and Obamacare
Michael Ramsey

In the New York Times, Nicholas Bagley & Abbe R. Gluck: Trump’s Sabotage of Obamacare Is Illegal: A president doesn’t have the right to dispense with laws he dislikes.  From the introduction:

From the moment he took office, President Trump has used all aspects of his executive power to sabotage the Affordable Care Act. He has issued executive orders, directed agencies to come up with new rules and used the public platform of the presidency in a blatant attempt to undermine the law. Indeed, he has repeatedly bragged about doing so, making statements like, “Essentially, we are getting rid of Obamacare.”

But Mr. Trump isn’t a king; he doesn’t have the power to dispense with laws he dislikes. He swore to preserve, protect and defend the Constitution of the United States. That includes the requirement, set forth in Article II, that the president “take care that the laws be faithfully executed.”

Faithfully executing the laws requires the president to act reasonably and in good faith. It does not countenance the deliberate sabotage of an act of Congress. Put bluntly: Mr. Trump’s assault on Obamacare is illegal.

Via Professor Gluck at Balkinization, where she adds:

This is not a question of whether a president has discretion in statutory implementation, as most Take Care claims are.  This is a question of whether a president is allowed to deliberately sabotage a law--whether he is allowed to act in bad faith. Conservative scholars, including Randy BarnettJohn Manning and Jack Goldsmith, have previously suggested that the Take Care clause means what it says:  A president has to "faithfully" execute the laws.  No plausible reading of those words includes deliberate sabotage.  In contrast, Trump has said, over and over again, that he is using his authority to "dismantle" the ACA.

From an originalist perspective I generally agree on basic principles.  The President does not have the "dispensing power" claimed by some English monarchs; that was part of the point of the take care clause.  (See this excellent essay by Michael McConnell, discussing President Obama's non-enforcement of the immigration laws as to certain classes of people). Further, the clause likely does impose a duty of good faith derived from the idea of "faithful" execution, as Professor Gluck says.

But I'm much more skeptical on the particular applications (both as to President Trump and President Obama).  To the extent the President has discretion vested in him by the statute, it seems entirely consistent with faithful execution to exercise that discretion according to his views of public policy, including in ways that limit the scope of the law.  I'm not a health care scholar, but it appears from the examples given later in the Bagley/Gluck essay that the actions to which they object are mostly exercises of discretion vested in the President by the Obamacare statute.  (At least one example may be a situation in which the President has concluded that part of the statute, or part of prior implementation, was unconstitutional; but that too is consistent with faithful execution, as the President also must faithfully uphold the Constitution).  Similarly, I'm inclined to disagree with Professor McConnell regarding Obama's immigration orders to the extent that the President was acting pursuant to discretion vested in him by statute.  Part of separation of powers' protection of liberty is that the laws are executed by a different entity from the one that enacts them, thus introducing a checking function.  (Montesquieu, Spirit of the Laws, Ch. VI).

As long as the President is acting consistently with the statute (including its delegations of discretion), he seems to me to be faithfully executing it, even if he's executing it in a way that we may speculate the enacting Congress or the present Congress might disapprove of.  The problem (if there is one) is not excessive exercise of presidential power, but rather too much delegation by Congress.

I'll add another recurring comment.  Professors Bagley and Gluck refer to a lawsuit challenging President Trump's execution of the Obamacare statute:

That is also the message of a lawsuit — the first of its kind — filed this month in federal court in Maryland. Brought by several plaintiffs including the cities of Chicago, Cincinnati and Columbus, the lawsuit recounts the “relentless and unlawful campaign to sabotage and, ultimately, to nullify” the Affordable Care Act. Taken individually, some of the Trump administration’s actions may be defensible. Taken together, they amount to a derogation of his constitutional duties.

The lawsuit asks the court to strike down the administration’s new rules and to enjoin the president from further sabotage. To prevail, the plaintiffs may have to overcome some procedural hurdles, including questions about whether the courts have the authority or the institutional competence to prevent violations of Article II’s requirement that the president “take care that the laws be faithfully executed” — especially given the wide discretion that presidents traditionally have to implement the laws.

As regular readers will guess, I strongly share the authors' doubts about courts' "authority and institutional competence" to hear such a claim -- especially their authority.  Of course, courts have authority to hear claims that the President is acting within the discretion conveyed by statute.  But if the President is acting within the discretion conveyed by statute, my view is that courts do not have authority to decide if the President is misusing that discretion.  Chief Justice Marshall wrote in Marbury, the President's exercise of discretion is a political, not a legal, question.  I think that's consistent with the original design. The alternative view would make every presidential action subject to review to determine if it is made in good faith (however that may be defined and determined), with the result that the judiciary would become a general supervisor of the executive branch.  If the President is using his lawful discretion to "sabotage" -- or, one might say, limit the scope of -- the Obamacare statute (or the immigration laws), the Constitution provides political remedies.

08/15/2018

BYU Corpus Linguistics Conference: Call for Papers
James Heilpern

[Editor's note: This call for papers is brought to us by James Heilpern, Law and Corpus Linguistics Fellow, J. Reuben Clark Law School, Brigham Young University.]

Call for Papers: The Fourth Annual Law & Corpus Linguistics Conference

Deadline: October 10, 2018

Event Date: February 7-9, 2019

Location: Brigham Young University, Provo, UT

Organization: Brigham Young University

BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.

The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information.

[Further editor's note: For those interested in both corpus linguistics and originalism, the BYU conference will not conflict with the University of San Diego's 2019  Originalism Works in Progress Conference, which will be held February 22-23, 2019.]

Gerard Magliocca and Kurt Lash on John Bingham
Michael Ramsey

The National Constitution Center has this podcast, featuring Gerard Magliocca (Indiana/McKinney) and Kurt Lash (Richmond) discussing John Bingham with moderator Jeffrey Rosen: John Bingham, Father of the 14th Amendment.  Here is the introduction:

John Bingham was one of the most influential but least known visionaries of the post-Civil War Constitution. Dubbed “the James Madison of the 14th Amendment” by Justice Hugo Black, Bingham drafted a constitutional provision that changed the course of American history by ensuring that states were duty-bound to uphold their citizens’ constitutional rights. A moderate Republican and dedicated supporter of abolition before the Civil War, Bingham spearheaded the Reconstruction-era efforts to guarantee citizenship to all people born in the United States, regardless of race, and to extend the Constitution’s promise of equality to all American citizens.

(Via Balkinization).

08/14/2018

David Lat Interviews Bryan Garner on "Nino and Me"
Michael Ramsey

At Above the Law, David Lat: Nino And Me: An Interview With Bryan A. Garner.  From the introduction:

August is a nice, slow month — a perfect time for lawyers to catch up on their pleasure reading, perhaps at the beach or pool. If you’re looking for something that’s a pleasure to read — but not a guilty pleasure, because it’s also very smart and informative — then check out Nino and Me: My Unusual Friendship with Justice Antonin Scalia, by Bryan A. Garner.

Garner, the longtime editor of Black’s Law Dictionary, is most famous among lawyers as a lexicographer and expert in legal writing. But Nino and Me reveals the person behind the pen, since it’s Garner’s memoir of his friendship with the late Justice Scalia, with whom he worked closely on two books: Making Your Case: The Art of Persuading Judges and Reading Law: The Interpretation of Legal Texts.

Garner’s memoir appealed to me, as it will appeal to large segments of the Above the Law readership, on two levels. First, it’s a book for people who are Article III groupies— i.e., folks who are fascinated by the federal judiciary and federal judges, especially justices of the U.S. Supreme Court. Garner gives Justice Scalia the full celebrity treatment, revealing fun facts like what the justice liked to sing in the shower (p. 112), his issues with Mexican food (p. 112), what he thinks of Serena and Venus Williams (p. 298), and whether he enjoyed Bridge of Spies (p. 336). It’s also full of delicious tidbits of “inside baseball,” like Justice Scalia’s reaction to his famous spat with Judge Richard Posner (p. 196), and whether it affected Justice Scalia’s hiring of Posner clerks to work for him at SCOTUS (p. 227). (On the other hand, if you share Professor Rick Hasen’s concerns about “judicial celebrity,” then this might not be the book for you.)

Second, Nino and Me will appeal to readers who appreciate good writing — on two levels. First, it’s a beautifully written book, full of elegant, novelistic prose. ...

Not too long ago, I had the pleasure of speaking by phone with Professor Garner about Nino and Me. Here’s a (lightly edited and condensed) write-up of our conversation.

And here is the book description from Amazon:

From legal expert and veteran author Bryan Garner comes a unique, intimate, and compelling memoir of his friendship with the late Supreme Court Justice Antonin Scalia.

For almost thirty years, Antonin Scalia was arguably the most influential and controversial Justice on the United States Supreme Court. His dynamic and witty writing devoted to the Constitution has influenced an entire generation of judges.

Based on his reputation for using scathing language to criticize liberal court decisions, many people presumed Scalia to be gruff and irascible. But to those who knew him as “Nino,” he was characterized by his warmth, charm, devotion, fierce intelligence, and loyalty.

Bryan Garner’s friendship with Justice Scalia was instigated by celebrated writer David Foster Wallace and strengthened over their shared love of language. Despite their differing viewpoints on everything from gun control to the use of contractions, their literary and personal relationship flourished. Justice Scalia even officiated at Garner’s wedding.

In this humorous, touching, and surprisingly action-packed memoir, Garner gives a firsthand insight into the mind, habits, and faith of one of the most famous and misunderstood judges in the world.

08/13/2018

Rick Hills on William Baude on Liquidation
Michael Ramsey

At Prawsblawg, Rick Hills (NYU): Will Baude on Madison's Constitutional Liquidation: A Triumph for Baude, A Failure for Madison? (commenting on this paper by Professor Baude).  Here is the introduction:

Will Baude has produced an erudite and thought-provoking piece on “constitutional liquidation” written with his trademark clarity and grace: It is a pleasure to read and a cinch to understand. Here’s the gist of Baude’s paper. In a Federalist Paper, a veto message, and several letters written late in life, Madison famously argued that a series of decisions by Congress, the courts, and the President over a long enough period of time could “liquidate” (meaning clarify) constitutional ambiguities in ways binding on other interpreters after the liquidating decisions. Baude reduces these various statements to an admirably simple three-part theory in which (1) a course of deliberate practice by political leaders interpreting (2) ambiguous or vague constitutional terms (3) results in a settlement of those terms’ meaning accepted not only by the political leaders but also by We the People. In theory, liquidation holds the promise of eliminating the Constitution in Exile — that is, prevailing constitutional interpretations that are stubbornly pressed by purists who think the Powers that Be are getting it wrong. Liquidating decisions deprive those constitutional exiles of their status as legitimate Pretenders, because those decisions represent not just one interpretation among many but the interpretation endorsed by We the People.

There have been other discussions of how political precedents clarify constitutional ambiguities by (among others) Dick FallonBrad Clarke [Ed.: this should be Curtis Bradley] and Trevor Morrison, and Shalev Roisman. Baude’s piece, however, is the first of which I am aware that relentlessly focuses on Madison’s idea on liquidation, thereby simultaneously 1) providing CliffNotes for Madison’s later writings and 2) combining departmentalism with with Ackerman’s style of constitutional moments to 3) give us a spare, plain, usable theory of constitutional settlement. It is a hat trick of constitutional history and theory, so clearly laying out the essence of Madison’s theory that we can easily evaluate its strengths and weaknesses, rejecting it if it turns out to be a bust.

... I will suggest that the theory is indeed a bust. Baude’s exposition, I will argue, shows that truly liquidating decisions in the Madisonian sense are almost impossible to obtain and, therefore, practically useless for permanent constitutional settlement . The weak point is Madison’s effort to enlist popular sovereignty to bless liquidating decisions: Madison’s theory requires We the People to express opinions about constitutional arcana through elections following constitutional precedents set by the political branches. That’s a lot to ask of us voters — too much, in fact. This does not mean that repeated appeals to the People cannot settle constitutional questions for a time — but the time is generally temporary. With rare exceptions, the constitutional Pretenders can always make a bid to return from exile by challenging the existence or scope of some earlier “liquidating” decision.

(Thanks to Andrew Hyman for the pointer).

08/12/2018

More from Michael Stokes Paulsen on High Crimes and Misdemeanors
Michael Ramsey

At Liberty Law Blog, Michael Stokes Paulsen has two posts on the original meaning of the impeachment clause: 

The Original Meaning of “High Crimes and Misdemeanors,” Part I (addressing the English law background)

The Original Meaning of “High Crimes and Misdemeanors,” Part II (addressing the founding era).

From the introduction:

Here’s the key point in summary: the evidence of original meaning overwhelmingly supports the conclusion that, at the time of the framing of the U.S. Constitution, the composite term “high Crimes and Misdemeanors” was a well-established, familiar legal term of art that the framers consciously borrowed from longstanding English practice and usage dating back four centuries. That meaning was not so much “vague” as simply broad: a sweeping delegation of power and responsibility to the legislative bodies entrusted with the impeachment power. The term “high Crimes and Misdemeanors” had a broad meaning in English practice and in the American understanding, confiding to the two houses of the national legislature (under the U.S. Constitution, the House and the Senate, exercising their respective roles in the impeachment process) a sweeping range of power to punish what those political bodies determined to be misconduct or abuse of power by executive and judicial officers of a wide variety of types.

The meaning of “high Crimes and Misdemeanors” was, so to speak, its own distinct thing. It was not a combination of “crimes” and “misdemeanors” as understood in today’s criminal-law sense. It was instead a unique legal term with its own meaning. The framers of the Constitution understood and used the phrase in that specialized sense, consciously adopting a known English-practice term of art in preference to other proposed formulations of the impeachment standard. And the ratification debates uniformly reflect that same broad understanding.

My brisk tour of the evidence of the original meaning therefore begins with the backdrop English understanding of “high Crimes and Misdemeanors.” [In part II], I will proceed through those debates of the Constitutional Convention – fascinating deliberative history that reveals an intention to enact a broad standard for impeachment reaching serious wrongs of a “political” nature (as well as more pedestrian criminality) and then choosing the familiar English term “high Crimes and Misdemeanors” as the language best capturing that understanding.

Also this important methodological preface: 

The search is for the objective, original meaning of the words of the Constitution: what would a reasonably well informed speaker or reader of the English language, in America, at or about the time of the Constitution’s drafting, have understood the words and phrases of the Constitution to mean, in this social, political, and linguistic context? In a sense, this is an “informed reasonable person” standard, derived from textual and historical evidence – a hypothetical construct.

It is not a search for the subjective intentions of any particular person, group, or body. Evidence of such specific intentions, understanding, or expectations of course can constitute useful, potentially probative evidence of probable textual meaning, in several respects: it usefully displays how the Constitution’s language was actually used by the people who were using it, in social and political context; it can reveal specialized usages and understandings; and it is a guard against linguistic anachronism – the errant tendency of many readers today to read the words of the 1789 Constitution in modern senses, which might vary significantly from the meanings such words or phrases had at the time. All of these features are present with respect to historical evidence of the meaning of “high Crimes and Misdemeanors.” But keep in mind that the goal is to ascertain the objective meaning of the words and terms used, not the specific “intentions” of the framers. The two often work in harmony, but not invariably so.

08/11/2018

Aziz Huq on Originalism and the Kavanaugh Nomination
Michael Ramsey

At Politico, Aziz Huq (Chicago): Why You Shouldn’t Care Whether Kavanaugh Is an ‘Originalist’.  An excerpt:

The test of a judge’s mettle is not whether they are an “originalist.” That term just isn’t as illuminating as many think. All judges, whether liberal or conservative, account for the Constitution’s original understanding at times. All also rely on other sources of law. Even as legal scholars have refined precise definitions of originalism, the heat of partisan debate has reduced the term in public life into little more than code for substantive positions on abortion, gun control and the like.   

As the public wearies of the ensuing charade, both Democrats and Republicans have strong incentives to ask better, more revealing questions of Kavanaugh. Those questions would illuminate where his appointment will take the Supreme Court and the country.

Originalism wasn’t always the topic du jour. In 1955, John Marshall Harlan was asked only three questions about his judicial philosophy, a mere two percent of the questions posed. The term first came to public prominence as deliberate riposte to what President Ronald Reagan’s Attorney General Ed Meese called the Warren Court’s “radical egalitarianism and expansive civil libertarianism.” In a landmark speech to the American Bar Association in 1985, he championed  instead “the jurisprudence of original intention.”

Originalism has since been shellacked by legal scholars calling it incoherent and internally inconsistent as a comprehensive theory of the Constitution. Many, including me, readily acknowledge that original understandings properly play some role in constitutional law, but resist the idea that they can or should squeeze out all other considerations.

But for a long time, it seemed as if Meese’s heirs had prevailed with the public, if not the legal academy. Even as liberal legal scholars seized on the slogan of a “living constitution”—i.e, a vision of constitutional law evolving and adapting to new political and social conditions—in response to Meese, originalism’s advocates doubled-down on the notion that originalism is simply “common sense” about what judges should do. As a political strategy, this move has paid dividends. Liberal senators have been caught in a rhetorical bind: Either they ask vapid questions about “judicial philosophy” that accept the misleading assumption of Meese et al. that a single comprehensive principle could explain everything that judges do. If they instead focus on what judges in fact do in cases, they can be accused of being improperly ends-oriented because their questions seem to bear on specific issues or litigants.

Professor Huq is an outstanding scholar, but he's oversimplifying a lot here.  I don't think any originalist-oriented judges (and very few originalist-oriented scholars) think that originalism "can or should squeeze out all other considerations" or that it is a "single comprehensive principle [that] could explain everything that judges do."  In particular, most think that originalism must accommodate precedent to some extent (it seems like that would be a good question to ask Judge Kavanaugh, but I think I know roughly his answer).  And many agree that originalism does not provide answers in all constitutional questions, leaving some matters to be decided by the application of default rules like a presumption of constitutionality or by constitutional construction.

He continues: 

But most importantly, judging is not a matter of original meaning or nothing. In most hard cases, all conscientious judges acknowledge the relevance of many sources. No judge of whom I am aware denies that they look at text, original understanding, the structure of the Constitution, the government’s historical practice and past judicial precedent. Every justice, included famous so-called originalists Thomas, Antonin Scalia, and Neil Gorsuch, routinely rely on all these sources when interpreting the Constitution.

Agreed.  But the key consideration, which he omits, is whether judges look to their idea of what the Constitution should say given modern circumstances.  That's what really defines originalism, which denies that judges should have this power, at least where the original meaning can be ascertained.  By caricaturing orginalism, Professor Huq manages to avoid the central issue.

The then shifts to some alternative questions: 

So, originalism isn’t the whole game, and it’s not very illuminating one when it’s played. Even if it is possible to imagine a wholly coherent originalism—and I have my doubts—that’s not what we have seen on the bench, nor it is what we are likely to see in future.

In this light, it is perhaps unsurprising that a majority of Americans no longer take originalism as the single touchstone of a good judge. To speak to those Americans, senators need to pose Kavanaugh a different set of queries. But if the action lies elsewhere, what questions might senators of both sides ask? Consider three.